Today is Wednesday, April 18, 2018

Custom Search

Republic of the Philippines

G.R. No. L-68347 November 7, 1985

CYNTHIA NOLASCO, MILA AGUILAR, and WILLIE TOLENTINO, petitioners,

G.R. No.L-69482. November 7, 1985.

MILA AGUILAR, petitioner,

Jose W. Diokno, Joker P. Arroyo, Rene A. V. Sarmiento, Dan Malabonga and Cesar Maravilla for petitioners.

MELENCIO-HERRERA, J.:

G. R. No. 68 347 entitled " Nolasco, et al. vs. Hon. Juan Ponce Enrile, et al." is a Petition for mandamus to compel
respondents to comply with the Order to release CYNTHIA NOLASCO, Willie TOLENTINO and Mila AGUILAR
issued by the Metropolitan Trial Court of Quezon City in Criminal Case No. 223466 for Illegal Possession of
Subversive Documents, which respondents have refuse to do on the ground that they are in custody under
Presidential Detention Action (PDA). In this Court's Resolution of December 19, 1984, we ordered NOLASCO and
TOLENTINO released, while in respect of AGUILAR, the case was set for hearing and she continued to remain
under custody. NOLASCO and TOLENTINO were released from detention on January 12, 1985 pursuant to the
Order of the President "on the basis of findings that they no longer pose any appreciable danger to national security
and public order. 1 G.R. No. 68347, therefore, is now confined to AGUILAR's petition for release.

G.R. No. 69482, entitled "Mila Aguilar vs. Military Commission No. 25," is a Petition for Certiorari, Prohibition and
mandamus with Preliminary Injunction praying that said Commission be restrained from further proceeding with
Criminal Case No. MC-25-113 for Subversion, entitled "People vs. Jose Ma. Sison, et al." insofar as AGUILAR, who
is one of the ten (10) defendants therein, is concerned on the ground that it lacks jurisdiction over her, and that the
Commission be ordered to dismiss the subversion charge against her. On January 10, 1985, this Court issued a
Temporary Restraining Order enjoining said Military Commission from further proceeding with the case insofar as
AGUILAR is concerned.

The two cases were ordered consolidated upon motion of petitioners' counsel.

The background facts for those two consolidated cases may stated as follows:

1. On March 18, 1977, before Special Military Commission No. 1, petitioner Mila Aguilar (hereinafter referred to as
AGUILAR), who is listed as No. 74 among the defendants, was charged with Rebellion 2 in Criminal Case No. SMC
1-1 (hereinafter referred to as SMC 1) entitled "People vs. Jose Ma. Sison. et al. (thereinafter referred to as the
Rebellion Case). The charge alleged that the rebellion was committed "in or about the month of August, 1973 to
February, 1974 and for sometime prior and subsequent thereto." During the alleged period (August, 1973 to March
18, 1977), Rebellion was not a capital offense, being punishable only with "prision mayor and a fine not exceeding
20,000 pesos" under Article 135 of the Revised Penal Code. Presidential Decree No. 942, effective on June 10,
1976, increased the penalty to reclusion temporal in its medium period and a fine in the same amount It was only
January 16, 1981, and through Presidential Decree No. 1834, that Rebellion became a capital offense with Article
135 of the Code being amended by raising the penalty for Rebellion to "reclusion perpetua to death."

2. On October 3, 1978, AGUILAR and nine others were charged before Military Commission No. 25 (hereinafter
referred to as MC- 25), with Subversion 3 in Criminal Case No. MC-25-113 entitled "People of the Philippines vs.
Jose Ma. Sison, et al.," committed "on or about the year 1968 and for some-time prior and subsequent thereto"
(hereinafter referred to as the Subversion Case).

3. AGUILAR was at large until August 6, 1984 when she was arrested. In the meantime:

(a) In the Rebellion Case, arraignment was held on October 28, 1978, without the presence of AGUILAR. The other
defendants in custody refused to plead, and pleas of 'not guilty" were entered for them including one for AGUILAR.
In June, 1982, trial commenced and towards the latter part of that year the prosecution rested its case. In July, 1984.
Petitions for Certiorari, Prohibition and mandamus were filed against SMC in G.R. Nos. 67850 and 6M51 of this
Court. entitled "Ruben Guevarra, et al. vs. Special Military Commission No. l." On July 31, 1984, we issued in those
cases a Temporary Restraining Order enjoining SMC 1 from proceeding with the Rebellion Case. 4

(b) In regards to the Subversin Case, a Petition for Habeas Corpus, Prohibition and mandamus with Preliminary
Injunction was filed in G.R. No. 50155 entitled "Saturnino Ocampo, et al, vs. Military Commission No. 25" in March,
1979 which, however, was dismissed on November 6, 1981. A Motion for Reconsideration was denied on July 20,
1982. Trial in the Subversion Case resumed on January 16, 1984. It maybe mentioned that a plea of "not guilty" had
also been entered for AGUILAR notwithstanding that she had not yet been arrested up to then,

4. (a) As previously stated, AGUILAR was arrested on August 6, 1984 in Quezon City, together with one, Cynthia
Nolasco (hereinafter referred to as NOLASCO).

(b) On that same date, an apartment leased by NOLASCO at No. 239-B Mayon, Quezon City, was raided as a
suspected CPP-NPA under-ground house, which was found under the charge of Willie Tolentino (hereinafter
referred to as TOLENTINO). Several documents were seized from the apartment and TOLENTINO was arrested.

(c) On August 7, 1984, a Presidential Detention Action(PDA) was issued against AGUILAR, NOLASCO and
TOLENTINO.

(d) On August 13, 1984, an Information was filed against AGUILAR, NOLASCO and TOLENTINO for illegal
possession of Subversive Documents in Criminal Case No. 223466 of the Quezon City Metropolitan Trial Court
(hereinafter referred to as the Subversive Documents Case). That Court ordered the release of the three defendants
on the same day, August 13, 1984, on a P600.00 bail for each, "subject to the existence of any other order from any
other court or competent authority o the effect that they continue to remain under your custody."

(e) On August 16, 1984, in the Rebellion Case, SMC-1 ordered AGUILAR held in custody. On August 17, 1984, in
the Subversion Case, MC 25 also directed AGUILAR's confinement during the pendency of the trail. 5

(f) As the custodial authorities had refuse to release them because of the PDA, the three defendants filed the
petition for mandamus in G.R. No. 68437. In our Resolution of December 19, 1984 in that case, we ordered the
released of NOLASCO and TOLENTINO, but served action in regards to AGUILAR. NOLASCO and TOLENTINO
were subsequently released such that, in G. R. No. 68347, AGUILAR has remained the sole petitioner. Hence, the
consolidation of these two cases.

In G.R. No. 68347, respondents oppose the release of AGUILAR on the ground of inter alia that she belongs to the
highest echelon of the Communist Party of the Philippines (CCP) central committee; that in 1982 a reward of
P100,000.00 had been posted for his capture; and that the released her would undermined Government efforts to
repel the movement to overthrow our democratic institutions with the use of deception, force and violence. While in
G.R. No. 69482, respondent MC 25 upholds its jurisdiction over AGUILAR on the ground that her case was already
filed and pending trial before it as of January 12, 1981 when General Order No. 69 (infra) was issued.

5) (a) As previously stated, the prosecution in the Rebellion Case had rested its case in the latter part of 1982; and
that on July, 31, 1984, we had issued a Temporary Restraining Order in G.R. Nos. 67850 and 67851 enjoining SMC
1 from proceeding with the case.

(b) On September 14, 1984, in the Subversion Case, AGUILAR was brought before MC 25 to appear and be
involved in the ongoing trial of the case. AGUILAR's counsel questioned the jurisdiction of the Commission over her,
but the Commission upheld its jurisdiction. Challenging that ruling, on January 7, 1985, AGUILAR filed her Petition
in G.R. No. 69482 for Certiorari, Prohibition and mandamus with Preliminary Injunction. A Temporary Restraining
Order en-joining MC-25 from proceeding further with the Subversion Case, insofar as it involves AGUILAR, was
issued by this Court January 10, 1985.

The basic issue to be resolved is whether or not MC 25 can still exercise jurisdiction over AGUILAR in the
Subversion Case what has first to be determined is the validity of the plea of 'not guilty' entered by the Commission
on her behalf in that case.

We hold that AGUILAR had not been legally arraigned when a plea of "not guilty" had been entered for her together
with the other defendants who had refused to plead. There can be no arraignment or plea in absentia.
absent Under both
the 1964 Rules of Court 6 and the 1985 Rules on Criminal Procedure, 7 a defendant must be present at the
arraignment and must personally enter his plea. Even under Section 62 of the Manual of Courts Martial, it is
provided that "during arraignment, the accused and personnel will stand

Respondent MC 25, in its Answer submitted in G.R. No. 69482, invoked Section 5(c) of Presidential Decree No. 39 8
to justify a plea in absentia
absent , stating that she was informed of the date set for trial and apprised of the content of the
charge sheet through the prescribed service. The cited provision, allowing trial in absentia
absent , and which presupposes
arraignment in absentia
absent (through publication), was promulgated in 1972. It should give way to the 1973 Constitution,
effective January 17, 1973, which provides that "after arraignment, trial may proceed notwithstanding the absence of
the accused provided that he has been duly notified and his failure to appear is unjustified. 9 In the Constitutional
provision, "arraignment" cannot be construed as inclusive of "arraignment in absentia."
absent As a matter of fact, in the
codification made in Presidential Decree No. 1835, Section 5 provides:

SEC. 5. After the arraignment of an accused who is charged with subversion, the trial may proceed
notwithstanding the absence of the accused, provided that he has been duly notified and his failure to
 appear is unjustified. Judgment may be promulgated in absent
absentia and the penalty of confiscation of his
properties in the Philippines may be immediately executed.

The codal section replaces Section 5(c) of Presidential Decree No. 39, And it should be borne in mind that actual
arraignment is an element of due process. 10 Even military tribunals are bound to observe fundamental rules of law
11
and arraignment in absentia
absent would be violative of due process.

As AGUILAR was not arraigned before MC 25, the next question is to determine whether MC 25 can try her at this
late date in the Subversion Case, together with her other co-defendants, or whether a new Complaint or Information
should be filed against her before the civil Courts. General Order No. 69, effective January 12, 1981, provides:

(b) Cases already investigated (ready for trial)—All cases which, on the effective date of this Order,
have been referred to the military tribunals for trial pursuant to Presidential Decree No. 39, as
amended, wherein the accused have not as yet entered their pleas, shall be referred to the provincial
or city fiscals or civil government prosecutors concerned, who, on the basis of the charges thus
preferred by the Judge Advocate General, AFP, consequent to a finding of a prima facie case after
preliminary investigation, shall file the corresponding informations before the civil courts of competent
jurisdiction without the need of conducting another preliminary investigation.

If all the accused in the Subversion Case had not been ar-.signed by January 12, 1981, there would be no question
but that the case should be referred to Fiscals for filing with the civil Courts. The provision does not expressly
provide for a case where some defendants had been arraigned prior to January 12, 1981, but other defendants had
not been arraigned before said date. We find, in the light of the attendant facts, particularly, that AGUILAR was still
not arraigned in the Subversion Case as of January 12, 1981, that MC 25 had lost jurisdiction to try AGUILAR in the
Subversion Case when she was brought before that tribunal on September 14, 1984 to appear before the ongoing
trial of the other defendants. Moreover, with the lifting of Martial Law on January 17, 1981, Military Commissions
were dissolved and they could no longer try civilians. 12

It is true that the dissolution of Military Commissions was conditioned on the final determination of cases pending
with them.

General Order No. 8 is also hereby revoked and the military tribunals created pursuant thereto are
hereby dissolved upon final determination of cases pending therein which may not be transferred to the
civil courts without irreparable prejudice to the state in view of the rules on double jeopardy, or other
circumstances which render further prosecution of the cases difficult, if not impossible ... 13

That is so in respect of those who are already undergoing trial at the time of the lifting of Martial Law. That yardstick
does not apply to AGUILAR who was not within the Military Commission's jurisdiction when Martial Law was lifted.
Her case was not effectively pending before said Commission at that point of time.

The Subversion Case, therefore, should be transferred to the civil Court. for further proceedings. No "irreparable
prejudice" will be caused the State inasmuch as, due to the absence of ar-raignment, no double jeopardy can
attach. Nor has any evidence been presented against AGUILAR thus far, The in-convenience and "difficult(ies)"
attendant to the transfer, and the quantity of evidence that the State may have to re-introduce in a separate trial
must yield to the Constitutional rights of a defendant, and to the desired objective for normally and civilian
supremacy to prevail, with judicial power vested exclusively in civil Courts.

We have also noted that, in the Charge Sheet for Subversion, the ten defendants were accused of being "officers
and/or ranking members of the Communist Party of the Philippines(CPP) and/or the New People's Army." There
was no indication of who were officers and who were ranking members. Moreover, the guilt of a ranking member
(not a ranking leader)should not be equated with that of an officer. If AGUILAR should now be charged before a civil
Court with Subversion, the Complainant or Information against her can be made more specific that she is an officer
of the Communist Party, or a ranking member thereof. As a ranking member, the charge against her will not be a
capital offense. 14

In so far as the Rebellion Case is concerned, while it is not involved in these two cases, it does have an important
bearing. It should be recalled that, on August 16, 1984, SMC-1 had again ordered AGUILAR held in custody. And
since the Order of Release of the Metropolitan Trial Court of Quezon City in the-Subversive Documents Case was
"subject to the existence of any other order from any other court or competent authority to the effect that they
continue to remain under your custody' ,the release of AGUILAR cannot be ordered. Significant also is the fact that
on July 31, 1984, this Court, in G.R. Nos, 67850 and 67851 entitled "Ruben Guevarra, et al. vs. Special Military
Commission No. 1", had issued a Temporary Restraining Order enjoining SMC I from proceeding with the Rebellion
Case. To all intends and purposes, therefore, it is still,-lending case.

WHEREFORE, judgment in these two consolidated cases is rendered as follows:

(1) Respondent Military Commission No. 25 shall not take jurisdiction over petitioner, Mila Aguilar, in its Case No.
MC-25-113, entitled "People of the Philippines vs. Jose Ma. Sison, et al." The Temporary Restraining Order
heretofore issued is hereby made permanent. Within 30 days after receipt of notice hereof, the said respondent shall
refer the case against petitioner Mila Aguilar to the proper provincial or city Fiscal, or civilian government prosecutor,
so that the corresponding Information may be filed against her before a civil Court of competent jurisdiction. The
date of the referral shall be immediately advised to this Court.
(2) If, within forty-five (45) days after the date of referral, no Information is filed against petitioner, Mila Aguilar,
before a civil Court, she shall be immediately released in relation to the MC-25-113 case, as well as in relation to
Criminal Case No. 223466 of the Quezon City Metropolitan Trial Court where she has already filed bail without
prejudice to her detention during the continued pendency of the Rebellion Case in her regard.

(3) If, within forty-five (45) days after the mentioned referral, an Information is filed before a civil court against
petitioner Mila Aguilar, charging her with a capital offense, her petitions in these consolidated G.R. No. 68347 and
No. 69482 cases shall be deemed dismissed in view of the pendency of the Rebellion Case and of the capital
offense case.

(4) If the Information filed before a civil Court does not charge petitioner, Mila Aguilar, with a capital offense, and the
civil Court shall order her release cm ball, she shag ako be released in relation to Criminal Case No. 223466 of the
Metropolitan Trial Court of Quezon City, on the strength of the bail she has already filed, but also without prejudice
to her detention during the continued pendency of the Rebellion Casein her regard.

SO ORDERED.

Makasiar, C.J., Plana, Escolin, relova, Gutierrez, Jr., De la Fuente, Cuevas, Alampay and Patajo JJ., concur.

Concepcion, jr., J. took no part.

Separate Opinions

TEEHANKEE, J., concurring and dissenting:

Petitioner Mila Aguilar, together with her co-petitioners in the main case, G.R. No. 68347 (referring to the criminal
case for illegal possession of Subversive Documents filed against them in the Metropolitan Trial Court of Quezon
City), seeks to be set at liberty and prays of this Court to order her release on P600. —bail as fixed and granted by
the said trial court and duly posted by them. Cynthia Nolasco and herein petitioner Mila Aguilar, Directress and
Assistant Directress, respectively, of the Extension Services Center at St. Joseph's College in Quezon City, were
taken into custody by several armed plain clothes men of the Constabulary Security Group in Quezon City on
August 6, 1984 while on board a passenger jeepney at the intersection of Mayon and P. Margal Streets in Quezon
City. A red Ford Fiera blocked the passenger jeepney. Then the men alighted from two cars and forcibly took the
women from the jeepney and blindfolded them. They did not Identify, themselves nor warn the woman about the
arrest The incident was first reported by the press as a criminal abduction. Willie Tolentino, a grant-in-aid scholar at
the same college's non-formal Education Program had likewise been taken into custody on the same day by other
armed plainclothes men of the same Constabulary Security Group at Cynthia Nolasco's apartment at Mayon Street,
of which he was the caretaker. The apartment was ransacked without any search warrant shown to him. 1 The
Quezon City fiscal on August 10,1984 conducted an investigation of the subversion charges 2 filed against all three
and found that they could be charged only for illegal possession of subversive documents under P.D. 33 and
recommended their release on bail at P600.00 each, which they forthwith posted and the trial court approved on
August 13, 1981 But the respondent military authorities refused to honor the court's release order on bail, When
FLAG Atty. Cesar F, Maravilla went to Camp Crame in the morning of the next day, August 14th, to serve the court's
order of release, the duty officer refused to receive the same, despite counsel' separated explanations that it was a
ministerial duty on the officer's part to receive it. 3 At 5:00 p.m. of the same day. the CSG legal officer furnished
FLAG Atty. Rene V. Sarmiento a xerox copy of a Preventive Detention Action (PDA) dated August 7, 1984 issued
against the three detainees, after earlier representations that no PDA was issued against them. The PDA was
issued "on the basis of evidence and verified reports that [they] have violated P.D. 1835 [on subversion] and had
committed acts inimical to public safety and public order." The FLAG lawyers went to Camp Crame on August 7th.
The custodian there denied having custody of the detainees. They were able to see the detainees only in the
afternoon of August 8th. 4 The military's motion of August 16, 1984 for reconsideration to amend the information to
subversion under P.D. No. 1835 (excluding Tolentino) was rejected for lack of basis by the fiscal per resolution of
November 16, 1984.

The Court per its Resolution dated December 19, 1984 but released only on January 7, 1985 granted the petition
insofar as Cynthia Nolasco and Willie Tolentino were concerned, not-withstanding the PDA (which ordered their
detention for at least one year). As stated in the majority decision, Nolasco and TOLENTINO were released from
detention on January 12, 1985, after the President lifted the PDA "on the basis of findings that they no longer pose
any appreciable danger to national security and public order. (Emphasis supplied).

But since the Quezon City trial court's order of release on bail carried the standard saving clause to effect release
subject the existence of any other order from any other court or competent authority to the effect that the continue to
remain under your custody" and respondents alleged that Mila Aguilar is a communist leader with two pending
related cases of subversion and rebellion before military commissions, the court held in abeyance her release until
the parties could be heard. So Mila Aguilar is now the sole remaining petitioner at bar.

Concurrence