G.R. No. L-37364

G.R. No. L-37364, May 9, 1975,
♦ Decision, Antonio, [J]
♦ Concurring & Dissenting Opinion, Castro, Fernando [JJ]
♦ Dissenting Opinion, Teehankee, Muñoz-Palma [JJ]
♦ Concurring Opinion, Barredo, [J]

BENIGNO S. AQUINO, JR., petitioner,
vs.
MILITARY COMMISSION 2, CHIEF OF STAFF, ARMED FORCES OF THE PHILIPPINES, and SECRETARY OF NATIONAL DEFENSE, THE CHIEF JUSTICE OF THE SUPREME COURT, and SECRETARY OF JUSTICE,* respondents.

Tañada, Salonga, Ordoñez, Gonzales, Rodrigo, Jr., Roxas, Arroyo, Castro and Felipe for petitioner.

Office of the Solicitor General Estelito P. Mendoza, Assistant Solicitor-General Vicente V. Mendoza, Assistant Solicitor General Hugo E. Gutierrez, Jr., Assistant Solicitor General Reynato S. Puno and Attorney Blesila Quintillan for respondents.

Following the proclamation of martial law in the Philippines, petitioner was arrested on September 23, 1972, pursuant to General Order No. 2-A of the President for complicity in a conspiracy to seize political and state power in the country and to take over the Government. He was detained at Fort Bonifacio in Rizal province. On September 25, 1972, he sued for a writ of habeas corpus1 in which he questioned the legality of the proclamation of martial law and his arrest and detention. This Court issued a writ of habeas corpus, returnable to it, and required respondents to file their respective answers, after which the case was heard. Thereafter, the parties submitted their memoranda. Petitioner's last Reply memorandum was dated November 30, 1972. On September 17, 1974, this Court dismissed the petition and upheld the validity of martial law and the arrest and detention of petitioner.2

In the present case, petitioner challenges the jurisdiction of military commissions to try him, alone or together with others, for illegal possession of firearms, ammunition and explosives, for violation of the Anti-Subversion Act and for murder. The charges are contained in six (6) amended charge sheets3 filed on August 14, 1973 with Military Commission No. 2.

The original petition in this case was filed on August 23, 1973. It sought to restrain the respondent Military Commission from the proceeding with the hearing and trial of petitioner on August 27, 1973. Because of the urgency of the petition, this Court called a hearing on Sunday, August 26, on the question of whether with its membership of only nine (9) Justices, it had a quorum to take cognizance of the petition in view of the constitutional questions involved. At that hearing, this Court asked the parties to agree to seek from the Military Commission a postponement of petitioner's trial the following day. The purpose was to relieve the Court of the pressure of having to decide the question of quorum without adequate time to do so.

When the proceedings before the Military Commission opened the following day, however, petitioner questioned the fairness of the trial and announced that he did not wish to participate in the proceedings even as he discharged both his defense counsel of choice and his military defense counsel.

The proceedings were thereupon adjourned to another day. In the meantime, for the petitioner's assurance, a Special Committee, composed of a retired. Justice of the Supreme Court, to be designated by the Chief Justice, as Chairman, and four (4) members to be designated respectively by petitioner, the President of the Integrated Bar of the Philippines, the Secretary of Justice and the Secretary of National Defense, was created to reinvestigate the charges against petitioner. The Secretaries of Justice and National Defense designated their representatives but the petitioner refused to name his. The Chief Justice asked former Justice J.B.L. Reyes but the latter declined, as he also declined in his capacity as President of the IBP to designate a representative to the Committee. As a result, with only two of its members designed, the Special Committee has not been able to function.

On September 4, 1973, a supplemental petition alleging the creation of the Special Committee and questioning the legality of its creation was filed. The Chief Justice of the Supreme Court and the Secretary of Justice were included as respondents. Subsequently, the Court resolved to require the respondents to file their answer and on August 21, 1974, within the extended period granted by the Court, respondents, with the exception of the Chief Justice, filed their answer to the supplemental petition.

Thereafter, petitioner was required to file a reply and was granted additional time after the lapse of the original period, but instead of doing so, petitioner asked for the admission of a second supplemental petition challenging the continued enforcement of martial law in the Philippines, in the light of Presidential statements to the effect that with the coming into force of the new Constitution on January 17, 1973, martial law was "technically and legally" lifted. To this petition respondents answered. Thereafter, the parties submitted their respective memoranda in lieu of oral argument as per Resolution of this Court on January 14, 1975.4

On March 24, 1975, petitioner filed an "Urgent Motion for Issuance of Temporary Restraining Order Against Military Commission No. 2"; praying that said Commission be prohibited from proceeding with the perpetuation of testimony under its Order dated March 10, 1975, the same being illegal, until further orders from the Supreme Court..

On March 31, 1975, respondents filed their Comment to petitioner's aforementioned urgent motion, which motion and other related incidents were set for hearing on April 14, 1975 at 10:00 a.m., as per Resolution of this Court on April 8, 1975.

Meanwhile, or on April 1, 1975, this Court issued a Resolution, stating that "for lack of a necessary quorum", it could not act on petitioner's Urgent Motion for Issuance of temporary Restraining Order Against Military Commission No. 2, inasmuch as this case involved a constitutional question..

On April 7, 1975, petitioner filed a "Manifestation" stating, among others, that the "Urgent Motion did not and does not involve a constitutional question", for reasons stated therein.

On April 12, 1975, respondents filed their "Reply to Petitioner's Manifestation", followed by Respondents' Manifestation filed on April 14, 1975, attaching thereto fourteen (14) sworn statements of witnesses whose testimonies are sought to be perpetuated..

On April 14, 1975, this Court also issued a restraining order against respondent Military Commission No. 2, restraining it from further proceeding with the perpetuation of testimony under its Order dated March 10, 1975 until the matter is heard and further orders are issued.

When this case was called for hearing, petitioner's counsel presented to this Court a motion to withdraw the petition, as well as all other pending matters and/or incidents in connection therewith. Respondents' counsel interposed objection to the granting of the aforesaid motion to withdraw.

After the hearing, this Court Resolved: "(a) to require the Solicitor General to furnish the Court as well as the petitioner and the latter's counsel, with copies of the transcript of all the stenographic notes taken at the hearing before the Military Commission No. 2 for the perpetuation of the testimony of the witnesses for the prosecution in various criminal cases filed against herein petitioner, within five (5) days from today; (b) to request the Solicitor General and the AFP Judge Advocate General to make the necessary arrangements for the petitioner to confer with his counsel on matters connected with the aforementioned motion to withdraw; (c) to allow counsel for the petitioner, if they so desire, to file a manifestation in amplication of the aforesaid motion to withdraw, within ten (10) days from the date they confer with the petitioner, and thereafter to allow the Solicitor General to file a counter-manifestation within ten (10) days from receipt of a copy thereof; and (d) to consider the case submitted for decision after submission by both parties of their respective pleadings on the motion to withdraw."

Acting on petitioner's motion to withdraw the petitions and motions in this case, and there being only three (3) Justices (Justices Fernando, Teehankee and Muñoz Palma) who voted in favor of granting such withdrawal, whereas seven (7) Justices (Justices Castro, Barredo, Antonio, Esguerra, Aquino, Concepcion and Martin) voted for its denial, the said motion to withdraw is deemed denied (Section 11, Rule 56 of the Revised Rules of Court). The Chief Justice has inhibited himself, having been made respondent by petitioner in his Supplemental Petitions.5

The Justice who voted to deny the withdrawal are of the opinion that since all matters in issue in this case have already been submitted for resolution, and they are of paramount public interest, it is imperative that the questions raised by petitioner on the constitutionality and legality of proceedings against civilians in the military commissions, pursuant to pertinent General Orders, Presidential Decrees and Letters of Instruction, should be definitely resolved.

In regard to the merits, We Resolve by a vote of eight (8) Justices to dismiss the main as well as the supplemental petitions. 5*

We have that the respondent Military Commission No. 2 has been lawfully constituted and validly vested with jurisdiction to hear the cases against civilians, including the petitioner.

1. The Court has previously declared that the proclamation of Martial Law (Proclamation No. 1081) on September 21, 1972, by the President of the Philippines is valid and constitutional and that its continuance is justified by the danger posed to the public safety.6

2. To preserve the safety of the nation in times of national peril, the President of the Philippines necessarily possesses broad authority compatible with the imperative requirements of the emergency. On the basis of this, he has authorized in General Order No. 8 (September 27, 1972) the Court of Staff, Armed Forces of the Philippines, to create military tribunals to try and decide cases "of military personnel and such other cases as may be referred to them." In General Order No. 12 (September 30, 1972), the military tribunals were vested with jurisdiction "exclusive of the civil courts", among others, over crimes against public order, violations of the Anti-Subversion Act, violations of the laws on firearms, and other crimes which, in the face of the emergency, are directly related to the quelling of the rebellion and preservation of the safety and security of the Republic. In order to ensure a more orderly administration of justice in the cases triable by the said military tribunals, Presidential Decree No. 39 was promulgated on November 7,1972, providing for the "Rules Governing the Creation, Composition, Jurisdiction, Procedure and Other Matters Relevant to Military Tribunals." These measures he has the authority to promulgate, since this Court recognized that the incumbent President, under paragraphs 1 and 2 of Section 3 of Article XVII of the new Constitution, had the authority to "promulgate proclamations, orders and decrees during the period of martial law essential to the security and preservation of the Republic, to the defense of the political and social liberties of the people and to the institution of reforms to prevent the resurgence of the rebellion or insurrection or secession or the threat thereof....."7 Pursuant to the aforesaid Section 3 [1] and [2] of Article XVII of the Constitution, General Orders No. 8, dated September 27, 1972 (authorizing the creation of military tribunals), No. 12, dated September 30, 1972 (defining the jurisdiction of military criminals and providing for the transfer from the civil courts to military tribunals of cases involving subversion, sedition, insurrection or rebellion, etc.), and No. 39, dated November 7, 1972, as amended (prescribing the procedures before military tribunals), are now "part of the law of the land."8

3. Petitioner nevertheless insists that he being a civilian, his trial by a military commission deprives him of his right to due process, since in his view the due process guaranteed by the Constitution to persons accused of "ordinary" crimes means judicial process. This argument ignores the reality of the rebellion and the existence of martial law. It is, of course, essential that in a martial law situation, the martial law administrator must have ample and sufficient means to quell the rebellion and restore civil order. Prompt and effective trial and punishment of offenders have been considered as necessary in a state of martial law, as a mere power of detention may be wholly inadequate for the exigency. 9 "It need hardly be remarked that martial law lawfully declared," observed Winthrop, "creates an exception to the general rule of exclusive subjection to the civil jurisdiction, and renders offenses against the laws of war, as well as those of a civil character, triable, at the discretion of the commander, (as governed by a consideration for the public interests and the due administration of justice) by military tribunals."10

Indeed, it has been said that in time of overpowering necessity, "public danger warrants the substitution of executive process for judicial process."11 According to Schwartz, "The immunity of civilians from military jurisdiction must, however, give way in areas governed by martial law. When it is absolutely imperative for public safety, legal processes can be superseded and military tribunals authorized to exercise the jurisdiction normally vested in court."12

In any case, We cannot close Our eyes to the fact that the continued existence of these military tribunals and the exercise by them of jurisdiction over civilians during the period of martial law are within the contemplation and intendment of Section 3, paragraph 2 of Article XVII of the Constitution. These are tribunals of special and restricted jurisdiction created under the stress of an emergency and national security. This is the only logical way to construe said Section 3, paragraph 2 of Article XVII of the Constitution, in relation to General Order Nos. 8, 12 and 39, in the context of contemporary history and the circumstances attendant to the framing of the new charter.

4. When it has been established that martial law is in force, the responsibility for all acts done thereunder must be taken by the authorities administering it.13 It is a serious responsibility which merits the cooperation of all in the collective desire for the restoration of civil order. In the case at bar, petitioner is charged with having conspired with certain military leaders of the communist rebellion to overthrow the government, furnishing them arms and other instruments to further the uprising. There is no question that the continuing communist rebellion was one of the grave threats to the Republic that brought about the martial law situation. Under General Order No. 12, jurisdiction over this offense has been vested exclusively upon military tribunals. It cannot be said that petitioner has been singled out for trial for this offense before the military commission. Pursuant to General Order No. 12, all "criminal cases involving subversion, sedition, insurrection or rebellion or those committed in furtherance of, on the occasion of incident to or in connection with the commission of said crimes" which were pending in the civil courts were ordered transferred to the military tribunals. This jurisdiction of the tribunal, therefore, operates equally on all persons in like circumstances..

5. Neither are We impressed with petitioner's argument that only thru a judicial proceeding before the regular courts can his right to due process be preserved. The guarantee of due process is not a guarantee of any particular form of tribunal in criminal cases. A military tribunal of competent jurisdiction, accusation in due form, notice and opportunity to defend and trial before an impartial tribunal, adequately meet the due process requirement. Due process of law does not necessarily means a judicial proceeding in the regular courts.14 The guarantee of due process, viewed in its procedural aspect, requires no particular form of procedure. It implies due notice to the individual of the proceedings, an opportunity to defend himself and "the problem of the propriety of the deprivations, under the circumstances presented, must be resolved in a manner consistent with essential fairness."15 It means essentially a fair and impartial trial and reasonable opportunity for the preparation of defense.16

Here, the procedure before the Military Commission, as prescribed in Presidential Decree No. 39, assures observance of the fundamental requisites of procedural due process, due notice, an essentially fair and impartial trial and reasonable opportunity for the preparation of the defense.17

6. It is, however, asserted that petitioner's trial before the military commission will not be fair and impartial, as the President had already prejudged petitioner's cases and the military tribunal is a mere creation of the President, and "subject to his control and direction." We cannot, however, indulge in unjustified assumptions. Prejudice cannot be presumed, especially if weighed against the great confidence and trust reposed by the people upon the President and the latter's legal obligation under his oath to "do justice to every man". Nor is it justifiable to conceive, much less presume, that the members of the military commission, the Chief of Staff of the Armed Forces of the Philippines, the Board of Review and the Secretary of National Defense, with their corresponding staff judge advocates, as reviewing authorities, through whom petitioner's hypothetical conviction would be reviewed before reaching the President, would all be insensitive to the great principles of justice and violate their respective obligations to act fairly and impartially in the premises.

This assumption must be made because innocence, not wrongdoing, is to be presumed.ℒαwρhi৷ The presumption of innocence includes that of good faith, fair dealing and honesty. This presumption is accorded to every official of the land in the performance of his public duty. There is no reason why such presumption cannot be accorded to the President of the Philippines upon whom the people during this period has confided powers and responsibilities which are of a very high and dedicate nature. The preservation of the rights guaranteed by the Constitution rests at bottom exactly where the defense of the nation rests: in the good sense and good will of the officials upon whom the Constitution has placed the responsibility of ensuring the safety of the nation in times of national peril.

We also find that petitioner's claim that Administrative Order No. 355 actually "strips him of his right to due process" is negated by the basic purpose and the clear provisions of said Administrative Order. It was precisely because of petitioner's complaint that he was denied the opportunity to be heard in the preliminary investigation of his charges that the President created a Special Committee to reinvestigate the charges filed against him in the military commission. The Committee is to be composed of a retired Justice of the Supreme Court, to be designated by the Chief Justice, as Chairman, and four (4) members to be designated respectively by the accused, the President of the Integrated Bar, the Secretary of Justice and the Secretary of National Defense, all of whom, according to Administrative Order No. 355 "must be learned in the law, reputed for probity, integrity, impartiality, incorruptibility and fairness...." It is intended that the Committee should conduct the investigation with "utmost fairness, 'impartiality and objectivity' ensuring to the accused his constitutional right to due process, to determine whether "there is reasonable ground to believe that the offenses charged were in fact committed and the accused is probably guilty thereof."

Petitioner, however, objected by challenging in his supplemental petition before this Court the validity of Administrative Order No, 355, on the pretense that by submitting to the jurisdiction of the Special Committee he would be waiving his right to cross-examination because Presidential Decree No. 77, which applies to the proceedings of the Special Committee, has done away with cross-examination in preliminary investigation.

The infirmity of this contention is apparent from the fact that the committee "shall have all the powers vested by law in officials authorized to conduct preliminary investigations." We have held as implicit in the power of the investigating Fiscal or Judge in the discharge of his grave responsibility of ascertaining the existence of probable cause, is his right to cross-examine the witnesses since "cross-examination whether by the judge or by the prosecution supplies the gap by permitting an instant contrast of falsehoods and opposing half-truths, mixed with elements of truth, from which the examining judge or officer is better able to form a correct synthesis of the real facts."18

In the case at bar, petitioner's representative in the Committee having been conferred with "all the powers" of officials authorized to conduct preliminary investigations, is, therefore, expressly authorized by Section 1[c] of Presidential Decree No. 77 to subpoena the complainant and his witnesses and "profound clarificatory questions". Viewed in the context of Our ruling in Abrera v.. Muñoz,19this implies the authority of his representative in the Committee to cross-examine the witnesses of the prosecution, in order to reach an intelligent and correct conclusion on the existence of probable cause.

Equally untenable is petitioner's contention that his constitutional right to due process has been impaired when the anti-subversion charges filed against him with the military commission were not investigated preliminarily in accordance with Section 5 of the Anti-Subversion Act, but in the manner prescribed by Presidential Decree No. 39, as amended by Presidential Decree No. 77. It is asserted that under the aforesaid Presidential Decrees, he is precluded from cross-examining the prosecution witnesses and from being assisted by counsel. Contrary to petitioner's contention, Section 1[b] of Presidential Decree No. 77 specifically grants him the right to counsel, and Presidential Decree No. 328 amended Presidential Decree No. 39, precisely to secure the substantial rights of the accused by granting him the right to counsel during preliminary investigation. Under Section 5 of Republic Act No. 1700, the accused shall have the right "to cross-examine witnesses against him" and in case the offense is penalized by prision mayor to death, the preliminary investigation shall be conducted by the proper Court of First Instance. As to whether or not the denial to an accused of an opportunity to cross-examine the witnesses against him in the preliminary investigation constitutes an infringement of his right to due process, We have to advert to certain basic principles. The Constitution "does not require the holding of preliminary investigations. The right exists only, if and when created by statute."20It is "not an essential part of due process of law."21 The absence thereof does not impair the validity of a criminal information or affect the jurisdiction of the court over the case.22 As a creation of the statute it can, therefore, be modified or amended by law.

It is also evident that there is no curtailment of the constitutional right of an accused person when he is not given the opportunity to "cross-examine the witnesses presented against him in the preliminary investigation before his arrest, this being a matter that depends on the sound discretion of the Judge or investigating officer concerned."23

Speaking for the Court, Justice Tuason, in Bustos v. Lucero,24 discussed the matter extensively, thus: têñ.£îhqwâ£

In rejecting the contention of the political offenders accused in the People's Court that their constitutional right to equal protection of the laws was impaired because they were denied preliminary examination and investigation, whereas the others who may be accused of the same crimes in the Court of First Instance shall be entitled thereto, this Court said: têñ.£îhqwâ£

It was realized that the procedure prescribed in Republic Act No. 5180 granting the complainant and respondent in a preliminary investigation the right to cross-examine each other and their witnesses was "time consuming and not conducive to the expeditious administration of justice". Hence, it was found necessary in Presidential Decree No. 77 to simplify the procedure of preliminary investigation to conform to its summary character, by eliminating the cross-examination by the contending parties of their respective witnesses which in the past had made the proceeding the occasion for the full and exhaustive display of parties' evidence. The procedure prescribed in the aforecited decrees appears justified by the necessity of disposing cases during martial law, especially those affecting national security, at the earliest date. On the basis of the aforestated settled principles, the curtailment of the right of an accused to cross-examine the witnesses against him in the preliminary investigation does not impair any constitutional right. It may be relevant to note that recently in Litton, et al. v. Castillo, et al.,26 this Court denied for lack of merit a petition challenging the validity of Presidential Decree No. 77 issued on December 6, 1972, on the ground that aforesaid decree now "forms part of the law of the land."

Petitioner claims that the order of the Military Commission for the perpetuation of the testimony of prosecution witnesses is void because no copy of the petition was previously served on him. He asserts that, as a consequence, he was not given the opportunity to contest the propriety of the taking of the deposition of the witnesses. It must be noted that petitioner does not dispute respondents' claim that on March 14, 1975, he knew of the order allowing the taking of the deposition of prosecution witnesses on March 31, to continue through April 1 to 4, 1975.

The provisions of Presidential Decree No. 328, dated October 31, 1973, for the conditional examination of prosecution witnesses before trial, is similar to the provisions of Section 7 of Rule 119 of the Revised Rules of Court. Presidential Decree No. 328 provides: têñ.£îhqwâ£

The foregoing was taken substantially from Section 7 of Rule 115 of the old Rules of Court, with the difference, among others, that the phrase "or after one hour notice" in the old Rules of Court has been changed to "or after reasonable notice" in the Revised Rules of Court.

In Elago v. People,27 this Court, in rejecting the contention that no written motion was filed by the prosecuting attorney for the taking of the depositions and that less than one hour notice has been given the defendant, held that "the one-hour notice mentioned in Section 7, Rule 115, of the Rules of Court, was intended by law mainly to give the defendant time to attend the taking of a deposition and not to prepare for the taking thereof because in reality there is no need for preparation. It is not a trial where the defendant has to introduce his evidence. It is only taking down the statements of the witnesses for the prosecution with opportunity on the part of the defendant to cross-examine them."

The thrust of Elago is that the order of the court authorizing the taking of the deposition of the witnesses of the prosecution and fixing the date and time thereof is the one that must be served on the accused within a reasonable time prior to that fixed for the examination of the witnesses so that the accused may be present and cross-examine the witness. On this point of the time given the defendant to attend the taking of the deposition, Professor Wigmore has the following to say: têñ.£îhqwâ£

We, therefore, hold that the taking of the testimony or deposition was proper and valid.

There is conflict among the authorities as to whether an accused can waive his right to be present at his trial. Some courts have regarded the presence of the accused at his trial for felony as a jurisdictional requirement, which cannot be waived.29Many others do not accept this view.30 In defense of the first view, it has been stated that the public has an interest in the life and liberty of an accused and that which the law considers essential in a trial cannot be waived by the accused.31 In support of the latter view, it has been argued that the right is essentially for the benefit of the accused,32 and that "since the accused, by pleading guilty, can waive any trial at all, he should be able to waive any mere privilege on the trial that is designated only to aid him in shielding himself from such result."33

In this jurisdiction, this Court, in People v. Avanceña,34 traced the history of the constitutional right of the accused to be present at his trial from U.S. v. Karelsen35 and U.S. v. Bello36Diaz v. United States37 and People v. Francisco.38 In the first two cases, it was ruled that one whose life or liberty is involved in the prosecution for felony must be personally present at every stage of the trial when his substantive rights may be affected by the proceedings and that it is not within his power to waive the right to be personally present. In Diaz v. United States and People v. Francisco, this rule was modified. Upon the authority of the Diaz and Francisco cases, the Court laid down as the law in this jurisdiction that: (1) in cases of felony, the accused has the right to be present at every stage of the trial, inclusive of the arraignment and pronouncement of the judgment; (2) where the offense is capital the right of the accused to be present at every stage of the trial is indispensable and cannot be waived; (3) even in felonies not capital, if the accused is in custody, his right to be present at every stage of the trial is likewise indispensable and cannot be waived; (4) where the offense is not capital and the accused is not in custody his presence is indispensable only: (a) at the arraignment; (b) at the time the plea is taken, if it be one of guilt; and (c) at the pronouncement of judgment. The Court looted the rationale of Diaz v. United States as basis of its ruling, thus: têñ.£îhqwâ£

In Avanceña, the issue was whether the defendant charged with an offense which is not capital had impliedly waived his right to be present at his trial, because of his failure to appear in court at the trial of his case.

Under the present Constitution, however, trial even of a capital offense may proceed notwithstanding the absence of the accused. It is now provided 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."40

On the basis of the aforecited provision of the Constitution which allows trial of an accused in absentia, the issue has been raised whether or not petitioner could waive his right to be present at the perpetuation of testimony proceedings before respondent Commission..

As a general rule, subject to certain exceptions, any constitutional or statutory right may be waived if such waiver is not against public policy. The personal presence of the accused from the beginning to the end of a trial for felony, involving his life and liberty, has been considered necessary and vital to the proper conduct of his defense. The "trend of modern authority is in favor of the doctrine that a party in a criminal case may waive irregularities and rights, whether constitutional or statutory, very much the same as in a civil case."41

There are, for instance, certain rights secured to the individual by the fundamental charter which may be the subject of waiver. The rights of an accused to defend himself in person and by attorney, to be informed of the nature and cause of the accusation, to a speedy and public trial, and to meet the witnesses face to face, as well as the right against unreasonable searches and seizures, are rights guaranteed by the Constitution. They are rights necessary either because of the requirements of due process to ensure a fair and impartial trial, or of the need of protecting the individual from the exercise of arbitrary power. And yet, there is no question that all of these rights may be waived.42 Considering the aforecited provisions of the Constitution and the absence of any law specifically requiring his presence at all stages of his trial, there appears, therefore, no logical reason why petitioner, although he is charged with a capital offense, should be precluded from waiving his right to be present in the proceedings for the perpetuation of testimony, since this right, like the others aforestated, was conferred upon him for his protection and benefit.

It is also important to note that under Section 7 of Rule 119 of the Revised Rules of Court (Deposition of witness for the prosecution) the "Failure or refusal on the part of the defendant to attend the examination or the taking of the deposition after notice hereinbefore provided, shall be considered a waiver" (Emphasis supplied.) Similarly, Presidential Decree No. 328 expressly provides that " ... the failure or refusal to attend the examination or the taking of the deposition shall be considered a waiver." (Emphasis supplied).

It is for the foregoing reasons that the writer of this opinion voted with the six (6) Justices who ruled on the full right of petitioner to waive his presence at said proceedings..

Since only six (6) Justices (Fernando, Teehankee, Barredo, Antonio, Muñoz Palma and Aquino) are of the view that petitioner may waive his right to be present at all stages of the proceedings while five (5) Justices (Castro, Makasiar, Esguerra, Concepcion Jr. and Martin) are in agreement that he may so waive such right, except when he is to be identified, the result is that the respondent Commission's Order requiring his presence at all times during the proceedings before it should be modified, in the sense that petitioner's presence shall be required only in the instance just indicated. The ruling in People v. Avanceña43 is thus pro tanto modified.

Finally, it is insisted that even if said orders and decrees were valid as martial law measures, they have ceased to be so upon the termination of the emergency. In Aquino, et al. v. Enrile, et al., supra, We adverted to the fact that the communist rebellion which impelled the proclamation of martial law has not abated. In the absence of any official proclamation by the President of the cessation of the public emergency, We have no basis to conclude that the rebellion and communist subversion which compelled the declaration of martial law, no longer pose a danger to public safety.

It is important to note here that an accused being tried before a military tribunal enjoys the specific constitutional safeguards pertaining to criminal trials. Thus, he is entitled to be heard by himself and counsel,44 to be informed of the nature and cause of the accusation,45 to meet the witnesses face to face, to have compulsory process to secure the attendance of witnesses and the production of evidence in his behalf,46 and to be exempt from being a witness against himself. As in trial before civil courts, the presumption of innocence can only be overcome by evidence beyond reasonable doubt of the guilt of the accused.47 These tribunals, in general, are "bound to observe the fundamental rules of law and principles of justice observed and expounded by the civil judicature."48 Section 11 of the Manual for Courts-Martial specifically provides that the "rules of evidence generally recognized in the trial of criminal cases in the courts of the Philippines shall be applied by courts-martial."49 This is applicable to trials in the military commission .50 There is, therefore, no justification for petitioner's contention that such military tribunals are concerned primarily with the conviction of an accused and that proceedings therein involve the complete destruction and abolition of petitioner's constitutional rights. This is not, however, to preclude the President from considering the advisability of the transfer of these cases to the civil courts, as he has previously announced.

IN VIEW OF ALL THE FOREGOING, judgment is hereby rendered dismissing the petitions for prohibition with preliminary injunction and setting aside the temporary restraining order issued on April 8, 1975, with costs against petitioner.