The Adjutant General MILITARY JUSTICE
Lesson Objectives:
Upon completion of this topic the student will:
a. State the definition of military justice and its four (4) components.
b. Enumerate the two (2) distinct division of military justice.
c. Identify the corresponding Articles of War given an offense.
d. Enumerate the persons subject to military law.
e. State the types of courts-martial and their respective jurisdiction as to
person, offense and punishment.
A. Introduction:
The military justice system is meant to enable commanders to dispose of
personnel problems in their units in the most expeditious manner. Speedy
disposition of cases preserves discipline, promotes justice and enhances the
attainment of the Commander’s mission.
In concept, the military justice system is designed to enforce discipline and
administer justice in the military service, and it is composed of four (4)
components:
1. Investigation - is the process of looking into the circumstances of
a case for the purpose of verifying and establishing the facts. It also involves
the gathering, handling, protection and preservation of evidence to prevent
destruction, loss or tampering.
2. Prosecution - the accusation of a crime before a legal tribunal.
3. Trial or adjudication - a legal action before a judge and jury.
4. Judgment or decision - punishment given to the accused who
committed such crime.
B. These components permeate two distinct division of the system,
namely:
1. Administrative cases - are those that result in decisions not
involving penal sanctions and may take such mild disciplinary or instructive
forms as admonition, reprimand and the like. These are usually disposed of
by all commanders from a detached unit to the highest command level.
These can also be disposed of by other designated staff officers at certain
command levels.
2. Punitive cases - are those that result in judgment of fine,
hard labor, deprivation of liberty or combination of these whenever guilt of
those involved are proven. These are usually higher command level matters.
The type of evidence and degree of proof required are also different for these
two categories.
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Punitive cases require guilt to be proven beyond reasonable doubt while
administrative cases require only preponderance of evidence to gain positive
adjudication.
C. Sources of Military Law:
Our study of military justice should encompass an understanding of military that
we call the Articles of War. This set of laws, known as Commonwealth Act No.
408, was enacted by the Philippine National Assembly on 14 September 1938.
Among others, the Articles of War defines the offenses punishable under the law
and prescribes the corresponding punishment.
Rules governing the conduct of military personnel and providing for a method
by which persons be punished are contained in the Articles of War, the Manual
for who break them may Court-Martial, the Constitution of the Philippines and
pertinent laws that brings us to the topic of military jurisdiction.
D. Military Jurisdiction:
Military jurisdiction emanates from several sources, among which are the
constitution of the Philippines and International Law, some specific provisions
of the Constitution granting some powers to Congress, and in the authority
vested in the President of the Philippines as Commander-in-Chief of all Armed
Forces. But how is military jurisdiction exercised and what are the agencies
through which it is being carried out? Its exercises are carried out by the
following agencies:
1. Court-Martial - General, Special and Summary
2. Commanding Officers in exercising their disciplinary powers under
AW 105.
3. Court of Inquiry
4. Military Tribunals or Commission
Let us now consider the classes of individuals who automatically fall under the
jurisdiction of Court-Martial. As a general rule, courts-martial have the exclusive
jurisdiction over-all persons subject to military law who commit an offense
penalized by the punitive articles of war.
E. Persons subject to military law:
1. All officers and enlisted personnel in the regular force of the AFP
2. All reservists from the date of their call to active duty and while on
such active duty
3. All trainees undergoing military instructions
4. All cadets of the PMA and PAF Flying School, and Probationary
Lieutenants on actual training
5. Retainers to camp and all persons accompanying or serving with the
AFP in the field in time of war or when martial law is declared
6. All persons under sentence adjudged by a court-martial or military
tribunal
It would be appropriate to state at this juncture that CAT and ROTC midshipmen
are not “persons subject to military law” because they are not considered as
“cadet” as defined by the Articles of War.
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F. Selected Punitive Articles of War and Relationship Between
Civil Military Courts:
As gleaned from historical records, the Articles of War were promulgated
effective September 14, 1938 when the unicameral Philippine National Assembly
enacted Commonwealth Act No. 408 which became the basic law that gave the
guidance and operations of the country’s Armed Forces, then known as the Army
of the Philippines. Then as now, there are 120 Articles, most of which are lifted
from US Uniform Code of Military Justice. It is for this reason that our articles of
war had the same substance as the American Military Code of 1928 which was
found applicable to Philippine conditions. Of the 120 Articles of War, 52 are
considered as the punitive, because they specify what punishment is to be
imposed for each military offense committed. Articles of War 54 to 105,
inclusive, are the punitive articles. There are two (2) broad categories of crimes
or offenses that are similarly within the contemplation of the Revised Penal Code
of the Philippines two offenses that are strictly classified as purely military.
G. Punitive Articles: (
1. Article 54 - Fraudulent Enlistment
2. Article 55 - Officer Making Unlawful Enlistment
3. Article 56 - False Muster
4. Article 57 - False Returns or Omission to Render Returns
5. Article 58 - Acts to Constitute Desertion
6. Article 59 - Punishment for Desertion
7. Article 60 - Advising or Aiding Another to Desert
8. Article 61 - Entertaining a Deserter
9. Article 62 - Absence Without Leave
10. Article 63 - Disrespect Toward the President, Vice President, Prime
Minister, Chairman of the National
Assembly or Minister of National Defense
11. Article 64 - Disrespect Toward Superior Officer
12. Article 65 - Assaulting or Willfully Disobeying Superior Officer
13. Article 66 - Insubordinate Conduct Toward Non-Commissioned
officer
14. Article 67 - Mutiny or Sedition
15. Article 68 - Failure to Suppress Mutiny or Sedition
16. Article 69 - Quarrels, Frays and Disorders
17. Article 70 - Arrest or Confinement
18. Article 71 - Charges, Action Upon
19. Article 72 - Refusal or Receive and Keep Prisoners
20. Article 73 - Report of Prisoners Received
21. Article 74 - Releasing Prisoner of Without Proper Authority
22. Article 75 - Delivery of Offenders to Civil Authorities
23. Article 76 - Misbehavior Before the Enemy
24. Article 77 - Subordinate Compelling Commander to Surrender
25. Article 78 - Improper Use of Countersign
26. Article 79 - Forcing A Safeguard
27. Article 80 - Captured Property to be Secured for Public Service
28. Article 81 - Dealing in Captured or Abandoned Property
29. Article 82 - Relieving, Corresponding with or Aiding the Enemy
30. Article 83 - Spies
31. Article 84 - Military Property, Willful or Negligent Loss
32. Article 85 - Waste or Unlawful Disposition of Military Property
Issued to Soldiers
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33. Article 86 - Drunk on Duty
34. Article 87 - Misbehavior of Sentinel
35. Article 88 - Personal Interest in Sale of Provisions
36. Article 88A - Unlawfully Influencing Action of Court
37. Article 89 - Intimidating of Persons Bringing Provisions
38. Article 90 - Good Order to be Maintained and Wrong Redressed
Courts-martial and other military tribunals generally exist to assist commanders
in the administration of military justice. Specifically they are established to
enforce discipline in the military establishment and to serve as deterrents to
military crimes and offenses. And, by the very nature of the conduct of trial,
these courts-martial and other military tribunals hasten the administration of
military justice. Let us look into the jurisdiction as to person, offense and
punishment of each of the three (3) types of courts-martial to substantiate the
contention just cited. Courts Martial are classified as follows:
H. General Courts Martial:
Consist of any number of members not less than five (5) and by whom may be
appointed by the following: the President, Chief of Staff of the AFP and when
empowered by the President, the Commanding Officers of major commands or
task forces, division regional commands, the Superintendent of the Philippine
Military Academy, Commanding Officers of separate brigades or body of troops.
Appointing authority shall detail as member of the general court martial a
member of the bar, who may be an officer of the Judge Advocate General to be
qualified for such appointment. A general court martial has a jurisdiction over all
commissioned officers and other persons subject to military law who commit an
offense capital in nature and whose possible sentence or punishment includes
death, dismissal or dishonorable discharge from the service, total forfeiture of
pay and allowances, or confinement at hard labor.
In the PN, a general court martial can impose the following: deprivation of
liberty on shore, solitary confinement not exceeding thirty days, and solitary
confinement on diminished rations not exceeding thirty days. Thus, we can see
that since officers are triable by a general court martial, this thought alone
construes a more tedious legal process to serve the ends of justice. This is
compounded by the nature of the offense and the probable punishment to be
meted out.
I. Special Courts Martial:
Consist of any number of members not less than three (3). The following may
appoint special court martial: Commanding Officers of major commands, task
forces, regional commands or divisions and when empowered by the President,
Commanding Officer of a garrison, camp, brigade, regiment, detached battalion
or other detached command or commissioned vessel. However, when subject
Commanding Officer is the accuser or prosecutor, the court shall be appointed by
superior authority.
A special court martial on one hand, has the exclusive jurisdiction to try all
other persons subject to military law, except the officers, for offenses not capital
in nature and whose probable sentence includes confinement not exceeding six
(6) months, forfeiture of 2/3 pay per month not to exceed six (6) months per
months, restriction to limits, hard labor without confinement not exceeding three
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(3) months, and reprimand, admonition and demotion in rank. The proceedings
so conducted are not as tedious as those for a general court martial.
J. Summary Courts Martial:
An entirely different case would be the trial by a summary court martial where
its proceedings are much faster than those of the other types of courts martial.
Since it has at least one member who sits as president, trial judge advocate
(TJA), and defense council at the same time, and since its jurisdiction as to
person, offense, and punishment is limited, a summary court martial can dispose
of a certain case in the most expeditious manner.
It shall have the power to try any person subject to military law, except an
officer, a midshipman, a flying midshipman or probationary second lieutenant,
for any crime or offense not capital but punishable by these articles. However,
no non-commissioned officer shall be tried in a summary court-martial without
the authority of the officer competent to bring him to trial in a special court-
martial. It can impose judgment as follows: confinement for one month,
restriction to limits for three (3) months and forfeiture or detention of 2/3 pay for
one month.
K. Military Commissions or Tribunals:
The commission or tribunal plays the same role as court-martial. During martial
law, which was in effect throughout the country from 1972 to 1981, these
commissions or tribunals tried cases referred to them in the same expeditious
way. Even civilians who committed offenses not triable by courts martial fell
under the jurisdiction of these special bodies whose proceedings were in
accordance with procedural law. Mention must be made here that that a Chinese
national who was accused of drug pushing and distribution was found guilty by a
military commission and meted out the death penalty thru musketry. These
bodies had helped in the faster dispensation of justice which could have taken
years to dispose of under normal condition.
HUMAN RIGHTS
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Lesson Objectives:
Upon completion of this lesson the student will:
a. Define Human Rights and its Basic Principles.
b. State the Classification of Human Rights according to source, recipient,
struggle and recognition, and derogability.
c. State the provision of human rights under Article III, Bill of Rights
A. Human Rights:
Human Rights are the supreme, inherent and inalienable rights to life, to dignity
and to self-development. It is the essence of these rights that makes man
human.
B. Basic Principles in Human Rights:
Man has the basic rights to life, dignity and self-development. Society has the
basic right to survive, selfdetermination and right to develop as a society. The
government is created by the society or by the people, for the people, and of the
people. The Philippines adopts the generally accepted principles of international
law as part of the law of the land and adheres to the policy of peace, equality,
justice, freedom, cooperation, and amity with all nations.
C. Classifications of Rights:
Rights can be classified according to the following:
1. According to source:
Natural rights are God given rights, acknowledged by everybody to
a.
be morally good. They are
unwritten but they prevail as norms of the society.
Example, the right to life, dignity and self-development.
b. Constitutional rights are those rights guaranteed by the
Constitution.
[Link] rights are those enacted by Congress. Put together,
constitutional rights and statutory
rights are sometimes referred to as legal rights.
2. According to recipient:
a. Individual rights are those rights being accorded to individuals.
b. Collective rights are rights of the society, those that can be enjoyed
only in company with others.
Example, right to peaceably assemble, right to peace, right to
development.
3. According to the aspects of life:
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[Link] rights are those that that the law will enforce at the instance of
private individuals for the
purpose of securing to them the enjoyment of their means of happiness,
example, right to a name, right to form a family, right to security of persons,
papers and effects, right against unreasonable searches and seizures.
b. Political rights are those rights which enable us to participate in
affairs of the government – either
directly or indirectly. Example, right to vote, right to information on matters of
public concern, right to initiative and referendum.
c. Economic and social rights are those which the law confers upon the
people to enable them to
achieve social and economic development, thereby ensuring them their well-
being, happiness and financial security, like right to property, education,
promotion of social justice.
d. Cultural rights are those rights that ensure the well-being of the
individual and foster the
preservation, enrichment, and dynamic evolution of national culture based on
the principle of unity in diversity in a climate of free artistic and intellectual
expression.
4. According to struggle and recognition:
a. First generation, the first kind of rights that people clamored and
fought for these are the civil and
political rights.
b. Second generation of rights are the economic, social and cultural
rights.
c. Third generation of rights are collective rights.
5. According to its derogability:
a. Non-derogable or absolute rights can’t be suspended or taken away
even or extreme emergency, like the rights to life and dignity.
Derogable or relative rights can be suspended or taken and limited
depending on circumstances. Example, right to freely move maybe
limited through the imposition of curfews. However, three conditions
should be present before a right can be limited/curtailed namely:
1)It is only publicly announced or legislated, it is not by official’s
whim only;
2) There is a state of emergency which requires the urgent
preservation of the public moral,
public safety and public good and;
3) There must be a time limit
D. Article III. Bill of Rights:
Constitutional Guarantees to Human Rights
Sec. 1 No person shall be deprived of life, liberty, or property without due
process of law, nor shall any person be denied the equal protection of the laws.
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Sec. 2 The right of the people to be secure in their persons, houses, papers,
and effects against unreasonable searches and seizures of whatever nature and
for any purpose shall be inviolable, and no search warrant or warrant of arrest
shall issue except upon probable cause to be determined personally by the judge
after examination under oath or affirmation of the complainant and the
witnesses he may produce, and particularly describing the place to be searched
and the persons or things to be seized.
Sec. 3 (1) The privacy of communication and correspondence shall be
inviolable except upon lawful order of the court, or when public safety or order
requires otherwise as prescribed by law.
(2) Any evidence obtained in violation of this or the preceding section
shall be inadmissible for any purpose in any proceedings.
Sec. 4 No law shall be passed abridging the freedom of speech, of
expression, or of the press, or the right of the people peaceably to assemble and
petition the government for redress of grievances.
Sec. 5 No law shall be made respecting an establishment of religion, or
prohibiting the free exercise thereof. The free exercise and enjoyment of
religious profession and worship, without discrimination or preference, shall
forever be allowed. No religious test shall be required for the exercise of civil or
political rights.
Sec. 6 The liberty of abode and of changing the same within the limits
prescribed by law shall not be impaired except upon lawful order of the court.
Neither shall the right to travel be impaired except in the interest of national
security, public safety, or public health, as may be provided by law.
Sec. 7 The right of the people to information on matters of public concern
shall be recognized. Access to official records, and to documents, and papers
pertaining to official acts, transactions, or decisions, as well as to government
research data used as basis for policy development, shall be afforded the
citizen, subject to such limitations as may be provided by law.
Sec. 8 The right of the people, including those employed in the public and
private sectors, to form unions, associations, or societies for purposes not
contrary to law shall not be abridged.
Sec. 9 Private property shall not be taken for public use without just
compensation.
Sec. 10 No law impairing the obligation of contracts shall be passed.
Sec. 11 Free access to the courts and quasi-judicial bodies and adequate legal
assistance shall not be denied to any person by reason of poverty.
Sec. 12 (1) Any person under investigation for the commission of an offense
shall have the right to be informed of his right to remain silent and to have
competent and independent counsel preferably of his own choice. If the person
cannot afford the services of counsel, he must be provided with one. These rights
cannot be waived except in writing and in the presence of counsel.
(2) No torture, force, violence, threat, intimidation, or any other means which
vitiate the free will shall be used against him. Secret detention places, solitary,
incommunicado, or other similar forms of detention are prohibited.
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(3) Any confession or admission obtained in violation of this or Section 17
hereof shall be inadmissible in evidence against him. The law shall provide for
penal and civil sanctions for violations of this section as well as compensation to
and rehabilitation of victims torture or similar practices, and their families.
Sec. 13 All persons, except those charged with offenses punishable by
reclusion perpetua when evidence of guilt is strong, shall, before conviction, be
bailable by sureties, or be released on recognizance as maybe provided by law.
The right to bail shall not be impaired even when the privilege of the writ of
habeas corpus is suspended. Excessive bail shall not be required.
Sec. 14 (1) No person shall be held to answer for a criminal offense without
due process of law. (2) In all criminal prosecutions, the accused shall be
presumed innocent until the contrary is proved, and shall enjoy the right so be
heard by himself and counsel, to be informed of the nature and cause of the
accusation against him, to have a speedy, impartial, and public trial, to meet the
witnesses face to face, and to have compulsory process to secure the attendance
of witnesses and the production of evidence in his behalf. However, after
arraignment, trial may proceed notwithstanding the absence of the accused
provided that he has been duly notified and his failure to appear is unjustifiable.
Sec. 15 The privilege of the writ of habeas corpus shall not be suspended
except in case of invasion or rebellion when the public safety requires it.
Sec. 16 All persons shall have the right to a speedy disposition of their
cases before all judicial, quasi-judicial, or administrative bodies.
Sec. 17 No person shall be compelled to be a witness against himself.
Sec. 18 (1) No person shall be detained solely be reason of his political
beliefs and aspirations.
(2) No involuntary servitude in any form shall exist except as a
punishment for a crime whereof the party shall have been duly convicted.
Sec. 19 Excessive fines shall not be imposed, nor cruel, degrading or in
human punishment inflicted. Neither shall death penalty be imposed, unless, for
compelling reasons involving heinous crimes, the Congress hereafter provides for
it. Any death penalty already imposed shall be reduced to reclusion perpetua.
Sec. 20 No person shall be imprisoned for debt or non-payment of a poll tax.
Sec. 21 No person shall be twice put in jeopardy of punishment for the same
offense. If an act is punished by law and an ordnance, conviction or acquittal
under Either shall constitute a bar to another prosecution for the same act.
Sec. 22 No ex post facto law or bill of attainder shall be enacted.
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