Amending the Rules Governing Military Tribunals

October 31, 1973

PRESIDENTIAL DECREE NO. 328

AMENDING THE RULES GOVERNING MILITARY TRIBUNALS

WHEREAS, the rules governing the creation, composition, jurisdiction, procedures and other matters relevant to military tribunals as promulgated by Presidential Decree No. 39 dated 7 November 1972 does not authorize/provide for: (a) right to counsel to respondent during summary preliminary investigation, and (b) perpetuation of testimony;

WHEREAS, in the counterpart Fiscal's preliminary investigation in the civil courts, the procedure set forth in Presidential Decree No. 77 dated 6 December 1972, amended Section 1 of RA No. 5180, affords respondent the right to counsel but the presentation of evidence is limited to sworn statements of the parties;

WHEREAS, to prevent a failure or delay of justice, it is imperative, more so when the overriding interest of national security is at stake, that perpetuation of testimony be provided for and authorized in such manner as would achieve the aforecited ends without impairing the substantive rights of the accused;

NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the Philippines, by virtue of the powers vested in me by the Constitution as Commander-in-Chief of all the Armed Forces of the Philippines, and pursuant to Proclamation No. 1081 dated September 21, 1972 do hereby decree, declare and promulgate the following amendments to the rules governing the creation, composition, jurisdiction, procedure and other matters relevant to military tribunals, which are hereby approved, adopted and made part of the law of the land:

(1) Subparagraph 4a shall read as follows:

Before any charge is referred for trial, a summary preliminary investigation shall be conducted, unless one has previously been made. The investigation shall be for the purpose of determining whether or not there is prima facie evidence warranting referral to a military commission for trial. The investigator shall have the power to issue compulsory process to secure either testimonial or documentary evidence. The investigation shall, to the extent appropriate, follow the procedure set forth in Presidential Decree No. 77, dated December 6, 1972 and shall be concluded with the least possible delay. The investigation report shall contain a summary of the evidence, the acts constituting the offenses committed, and the findings and recommendation of the investigating officer. It shall be forwarded to the Judge Advocate General, AFP who shall determine for either the Secretary of National Defense, or the Chief of Staff, AFP, whether the case shall be referred for trial by a military commission.

(2) Subparagraph 4b(7) captioned: Evidence,is amended by adding a new provision to be known as subparagraph 4b(7) (b) which read as follows:

WHERE, upon proper application, it shall satisfactorily appear to the military tribunal before which a case is pending, that a witness for the prosecution or the defense is too sick or infirmed to appear at the trial, or has to leave the Philippines with no definite date of returning thereto, or where delay in the taking of his testimony may result in the failure of justice or adversely affect national security, the witness may forwith be examined and his deposition immediately taken, such examination to be by question and answer, in the presence of the other party, or even in the latter's absence provided that reasonable notice to attend the examination or the taking of the deposition has been served on him, and will be conducted in the same manner as examination, at the trial, in which latter event the failure or refusal to attend the examination or the taking of the deposition shall be considered a waiver.

The testimony thus perpetuated shall be admissible in any proceeding or action before any court or tribunal, civil or military, even for or against such person or persons who were not present at the time of perpetuation; Provided,however,That the pertinent petition for the perpetuation of the testimony in question shall have been published at least once a week for two (2) consecutive weeks in any newspaper of general circulation.

The Secretary of National Defense shall issue rules and regulations to implement the objectives and purposes of this Decree.

This Decree shall take effect immediately.

DONE in the City of Manila, this 31st day of October, in the year of Our Lord, Nineteen Hundred and Seventy-Three.