Human Rights in the Administration of Phillipine Military Justice

• Author: By Lieutenant Colonel Primitivo D. Chingcuangco
• Pages: 03

The author discusses certain rzghts contained in the United Nations Universal Declaration of Human Rights, indicating the extent to which those rights w e pro-tected under the present military iustiee system of the Philippine Armed Foroes. He concludes that sub-stantial protections ase now afforded an aocused under the Philippine system but that further advancementin the area is desirable.

1. IXTRODUCTION A. PURPOSE AND SCOPE

   The purpose of this article is to present B broad picture of how the principles of the Uni\,ersai Declaration of Human Rights' pertaining to the application of criminal law are observed within the framework of our military justice system. What the Declaration defines as human rights' me to us civil or legal rights under the Philippine Constitution and Articles of War,' which, together with the Manual for Corvts-Martial, PhiG

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   ABIO (1948)

   .~~

   Sions presented herein are those of the author and do not neeeasarily mpm-lent the view of The Judge Advocate General's Office, Philippine Armed Forces; The Judge Advocate General's School, United States A m y ; or m y other governmental agency.

   **JAGS: Chief, Military Justice Branch, JAGO, Phiilppine Armed Forces; LL.B., 1041, LL.M., 1048, University of Santo Tomas; member of the Philippine bar; graduate of 30th Special Class The Judge Advocate Gen. eral's Sehaal, U.S. Army: Attorney and Counhm of the United States Court of Military Appeals (Honorary).

   [hereafter called the Declaration and cited 8s UDHR].

   'The Declaration contains nothmg more than B mere recommendation, or a eOmmOn standard of achievement for sli peoples and all nations. Iehang V.

   Hernandez. GR Xo. L-7005, 31 Pay 196:. But me Msjoff V. Director ofPriaona, GR No. L-4254,26 Sept. 1961.

   Rereafter cited as .4W ~~..,

   'G.A. R~S.

   217, a U.W. GADR, R ~ ~ .

   I, at 11, U.N. N ~ .

   PA.

   iiipine Army,' are the primary sources of the military criminal Ian in this jurisdiction.

   The scope of this article is limited ta that category of cases vhiih 111. Chief Justice Warren of the United States Supreme Court described as the vertical reach of the Bill of Rights within the military; that 1s a class of cases that involves questions concerning the militar3- establishment's treatment of persons who are concededly subject to military authority.' Therefore, neither the legal struggle between protected liberties and military necessity nor the relationship of the military with the civil government or affairs will be treated here. This article is confined substantially ta the pertinent previsions of the Universal Declaration of Human Rights* and their counterparts in our Constitution and Articles of IYar. Related constitutional and statutory pi'orismns dealing with certain rights of accused military personnel are, to a limited extent, likewise treated in this article. Some discussion is also devoted to the inapplicabiiity of some constitutional safeguards to the members of the armed foices.

   B. THE SOLDIER AKD THE CITIZES

   Inscribed across the dame of the Arlington Memorial Amphitheater is the following declaration: "When Ke Assumed the Soldier, We Did Not Disregard the Citizen." This inscription reflects the proposition iecognized in Biirns 2. Wilson' that the citizens of the United States in uniform may not be Stripped of basic rights simpiy because they hare doffed their civilian clothing. The same basic principle is obsen'ed in our system of jurisprudence. But, cast in the background of his basic mission, the soldier's rights in this respect must cf necessity be "conditioned to meet certain orerriding demands of discipline

   'Hereafter cited as MCY, PA,'Warren, Tile Bill o i Riobts and tbe .+fiMmv, AF JAG Bull., .MayJune 1962, p. 0. 9.

   Thin article me3 not discuss the United Yations draft International Cavenanra on Human Righta. B composite text of which appeari m 58 Am J. IRT'L L. 85; (1961)

   .346 US.

   1 3 i (1952). An individual does not cease Go be B person xirhin the protection of the fifth amendment (due pmcess) of the United States Cansritvtian 'leeause he has joined the nation's amed forces and has takenthe oath to support that Canatitvrion with his life, if need be. United States e= vel. Inner, Hiatt, 111 F.2d 864 (30 Cir. 1944)

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   PHILIPPINE MILITARY JUSTICE

   and duty."' In our republican form of government, it is Congress which must strike the exact balance in this personality adjustment.

   C. GESERAL COKCEPT ASD SATURE OF COURTS-MARTIAL

   For the purpose of this article, it is worthwhile to review briefly the concept and nature of courts-martial. At this juncture, let it be recalled that the Philippine Articles of War (Cornmonwealth Act KO, 408), enacted in 1938, was patterned after the United States Articles of War of 1920. A substantial portion of the United States military jurisprudence, particularly in the area of military criminal law, constitutes a fertile source of authoritative precedents for the resolution of our military justice problems, both substantial and proeedural.' 1. General Coneept.

   Courts-martial are lawful tribunals with authority to determine finally any ca~eover which they have jurisdiction; they are supreme nhile acting within the sphere of their exclusive jurisdiction.'o It should be observed in this connection that courts-martial have ezolusive jurisdiction of purely military offenses, such as desertion, free from interference by the civilian courts." As to offenses not of a purely military nature, the jurisdiction of a court-martial is concurrent with that of the civilian courts," the jurisdiction which flrst attaches in any case being entitled to proceed therein." Persons subject to military law cannot, however, while in that status, claim the right to trial by the civilian courts for offenses over which courts-martial have concurrent jurisdiction." Conversely, such persons enjoy no constitutional right to be tried only by courts-martial to the exclusion of the civilian courts." In

   'Bums V. Wilson, 346 U.S. 137, 140 (18521.'United States precedents have been largely relied upon by the Philippine

   "In 7s Zimmerman, SO Fed. 176 1C.C N.D. Cal. 1857).

   " Caidreli 'I. Parker, 252 C.S. 376 (1920) ; Crisologo Y. People, 60 OG1021 (1954) i Valdez V. Lucero, 76 Phil. 866 (1846) : People V. Ria, No.

   "WIITXROP. MILITARY LAW AXD PRECEDEWTE 94 12d ed. rev. & enl. 1920

   Supreme Court in most of its decisions an military justice matters. DfeLean V. United Staten, 73 F. Supp. 776 (W.D.S.C. 1947).

   o ~ ~ - c R . ,

   20 oet. 1963,60 OG 7400.

   reprint) [hereafter eited as Wmrxno~l.l ' E ~ pmte Miligan, 71 U.S. (4 Wsll.) 2 (1866).

   IbSse United States v, Canella, 157 F.2d 470 (8th Cir. 18461, 64'8 68 F. Supp. ai7 (S.D. Cal. 1945) ; People Y. Livara, GR No. L-6201, 20 April 1864.

   sum, the accused cannot select the jurisdiction in which he will be tried:* 2. Agencies of the Emcuiiar Department.

   Unlike courts of law, courts-martial are not a pcrtion of the judiciary. They are merely creatures of orders; the power to convene them, as well as the power to act upon their proceedings, is an attnhute of command:' Not belonging to the judicial branch of the government, it follows that courts-martial must pertain to the executive department; and they are in fact simply instrumentalities of the executive power, provided by Congress far the President 2s Commander-in-Chief, to aid him in properly commanding the armed forces and enfoicing discipjine therein." 3. Const&istlonal Sense.

   Courts-martial are not included among the "inferior courts" \%-hich Congress may establish under section I, article VI11 of the Constitution, defining where judicial pomer of the Philip-pines shall he rested." Neither are couits-martial included in the wolds "inferior courts" used in section 2, article VI11 of the Constitution in connection with the appellate jurisdicticn of the Supreme Court to rewew iudgments involving the death penalty." n'ithin the meaning of section 17, article VI of the Constitution prohibiting any member of Congress from appearing as counsel before an? court in any criminal case wherein any government cfficer or employee is accused of an offense committed In relation to his office, courts-martial are included in the term "any court" and court-martial cases are deemed "crimina! cases." ''

   4. C0uli.t of Lato and Jwtice.

   Notwithstandinp that the court-martial is only an instrumentality of the executire power having no relation in law with the judicial establishment, it 1s yet, so far as It is a court at all and within its fieid of action, as fully a court of law and justice as is any cirilian court." As a court of law, it is

   Harm V. Hunter, 170 F.2d E62 (10th Cir. 1948).

   "See DAVIS, D1lllTin.T LA" OF TEE F'VITED STATES 15 (3d ed. 19131. "Ruffyv Chief of Staff, 75 Phll. 876 (1946).

   "Ci.

   W-IXTHROP

   49.**Ruffy Y. Chief of Staff. 75 Pnd 87; (1946).':Mareor T. Chief of Staff. 89 Phil 246 (1961). See (1180 Maranilia-Sew V.

   R'IRTXROP 14.

   Andrada, 89 Phll. 262 (19%).

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   bound, as is any court, by the fundamental principles of criminal law; and, in the absence of special provisions on the subject in the military code, it observes in general the rules of evidence as adopted in the civilian courts.'* As a couli of jus. tice, it is required by the terms of its statutory oath under Article of War 19 to adjudicate hetween the People of the Philippines and the accused "without partiality, favor, or affection," and according not only to the laws and customs of the service but also to its "conscience," Le., its sense of substantial right and justice unaffected by technicalities." 6. Criminal Court.

   A court-martial is strictly a criminal court, and its judgment is a criminal sentence, not a civil verdict." The prosecution of an accused before a court-martial would, under certain conditions, be a bar to another prosecution of the defendant for the same offense, because the latter would place the accused in double jeopardy."* 6. Jcdicial Review.

   The proceedings of B court-martial are not subject to dimct review by the...