G.R. No. L-37364 - Concurring Opinion

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.

I concur in the main opinion so very ably penned for the Court by our distinguished colleague, Mr. Justice Antonio. I am writing this separate opinion not with intent to unnecessarily lend force to the cogent and compelling considerations expounded therein but only to articulate a few thoughts I entertain relative to certain aspects of this case which have additionally impelled me to overrule the contentions of petitioner other than his invocation of his right to waive his presence at the proceedings being held against him.

At the outset, I would like to underscore the fact that this is the first decision of this Court regarding major martial law issues wherein the main opinion carries the unqualified concurrence of the required number of justices for doctrinal purposes. Since I have heretofore regretted Our failure to agree on a common opinion that would not be subject to varying constructions, including distorted and self-motivated ones which could be peddled around for propaganda purposes by those who for reasons of their own cannot see anytime right in the present order, it is to me a cause of genuine satisfaction that at long last the Court has been able to render the instant opinion and judgment, touching on important and basic constitutional and legal features of the prevailing martial law administration, in a manner that leaves no room for doubt as to the meaning and scope of Our pronouncements.

To be more specific, the main opinion in this case and the rulings therein contained own the full support of at least eight members of the Court, without counting what I consider to be the close-enough-to-concurrence posture of Mr. Justice Fernando, which betrays no little effort to reconcile long cherished traditional views with the innovative and progressive juridical concepts emerging from the imperatives of the legal character of the presently established government. In the light of the constitutional requirement of ten (10) votes for a declaration of invalidity of any order of the President, eight negative votes is more than impressive. And certainly, all the rulings in the main opinion, having as they do have the support of those eight votes, constitute authoritative doctrines, against which, the contrary views of any member of the bar should have no more than academic value. At these times when it is best that the legal foundations of the existing government should be securely solidified to better and faster achieve the ends for which martial law has been proclaimed, the pronouncements of the Court in this case should put an end to an effort to discredit the actions of this Government as being founded only on might rather than right. Indeed, my faith is that the rule of law obtains today as it has always obtained before, arid due consideration and corresponding accommodation accorded to the requirements of the emergency confronting the nation do not detract in any way from the effective supremacy of the law.

It is a settled rule consistent with the fitting dignity of judicial proceedings that after a case has been submitted for decision, withdrawal of the same from the jurisdiction of the court is a matter addressed to its sound discretion and is far from being a matter of right on the part of any of the parties. For obvious reasons, a party should not be allowed to provoke issues of far reaching interest and importance and hurl accusations against the actuations of the adverse party, thereby creating doubts in the public mind as to the validity of said actuations, and thereafter, upon being confronted with the defenses of his opponent and sensing perhaps probable defeat, to just take a retreat, without expressly admitting the infirmity of his position, thereby making sure that he can with relative impunity continue with his critical attitude in the manner suitable to his convenience and purposes. Observance of the laudable policy of terminating litigations at the earliest opportunity may not be invoked when the evident result is detriment to the more paramount objective of having a definite ruling by the Supreme Court as to what the law is in regard to the matters of vital public interest actually and properly brought to it for adjudication.

But the imperative need to settle the important issues raised in this case is not the only reason I have for voting to deny petitioner's motion. When petitioner was required by the Court to amplify his initial unreasoned request to be allowed to withdraw all his petitions, motions and other incidents herein, his counsel submitted a letter purportedly coming from petitioner, wherein he vehemently cast aspertions against this Court, alleging that he does "not want anything from the Supreme Court, and that the whole thing had been designed, composed and orchestrated in Malacañang" and that his "legal battles in the Supreme Court are now over. Mr. Marcos is the single genius, composing and directing all the proceedings, whether in the military tribunal or in the civil courts," and even going as far as referring to the "Supreme Court as an obstacle."

I do not believe 'it is under any circumstance proper for a Supreme Court to leave such accusations unchallenged. Most likely, they could be mere uncontrollable outburst of a desperate soul which are without judicial significance, but since it is as likely that petitioner's letter would be used as propaganda material not only here but abroad to discredit the Philippine Government in the eyes of the world, I consider it inevitable for the Court to proceed to dispose of the merits of petitioner's case and thus let all and sundry judge for themselves on the basis of the Court's expressed considerations rather than on that of petitioner's self-serving opinion, whether or not our judiciary is what petitioner claims it to be. It is my considered view that if a party who comes to court has indeed any right to withdraw his case therefrom, such withdrawal should not receive the sanction of the court when the party tells the court that his reason for withdrawing is because he has no confidence in its impartiality and capacity to render justice. In such a situation, the only recourse of the court is to prove by actually deciding the case how just and impartial it is.

I would like to state here emphatically that petitioner's apprehensions about the dangers to the independence of the judiciary of the Philippines at present, particularly the Supreme Court, is nothing more than an a priori opinion and is not and cannot be supported by facts. After all, the Court does not have to necessarily agree with everyone who feels that certain acts of the Government are illegal or unconstitutional. Surely, a propensity to overrule the other departments of the Government is not the true mark of the independence of the judicial branch. If so far, the Supreme Court has not yet declared any impugned acts of the President or the martial law government unconstitutional, it is not because the Court is subservient to the President in any way, but simply because, in the honest conviction of its members, the proper case for such a declaration has not come. That the Court can and will strike down acts of the President in the appropriate instances, there should be no doubt whatsoever. The people can rest assured that when the proper occasions arise, the justices, individually and collectively, will not be found wanting in wisdom and courage to act accordingly, regardless of what might be the views and wishes of the Executive and/or any other department of the government.

At this point, it may not be amiss to say a few words respecting petitioner's decision to resort to what is being referred to as a "hunger strike."

According to his letter aforementioned, the initial reason for such a step was, to quote his own words, to "protest against a procedure intended to humiliate and dehumanize me, considering that all they wanted was for me to be identified as a common criminal and not as a political rival. I also said that my hunger strike was not only for myself but on behalf of many other victims of today's oppression and injustices." Later, however, the causes thereof were broadened by him thus: têñ.£îhqwâ£

In so far as petitioner's "hunger strike" may be understood as an attempt to stampede the Court to render a verdict favorable to his views, I must state categorically that it is subversive and contumacious, specially because it is being admittedly done with "unmistakable clarity" of mind and purpose. Frankly, I am at a loss as to what kind of procedure would suit him. In the same breadth that he professes to advocate that every man is entitled to equal protection of the laws, he claims that he should be treated not as an ordinary accused but "as a political rival", evidently meaning, of the President. How indeed is "a political rival" of the Administrator of martial law supposed to be prosecuted for an offense committed against the laws of the land?

Be that as it may, anyone can easily imagine the unmanageable situation and judicial chaos that would result should We create a precedent wherein the Court should yield to the demands of a person under formal charge of committing an offense, as otherwise he would resort to a hunger strike. Nonetheless, We were somehow disposed to lean backwards and rule interlocutorily as early as We could on the issue as to whether or not the respondent Military Commission was right in compelling petitioner to attend the perpetuation proceedings and thereby place his initial cause for the "hunger strike" in its true perspective. But Our efforts to this end were met by petitioner's Churchill like reaction that what We could possibly give was "too late and too little", manifested by his once more disauthorizing his lawyers from henceforth speaking for him and finally seeking the withdrawal of this case from our hands. Is the Court supposed to extend to a "political rival" of the President more than what the existing laws provide for others?

As a Filipino myself, I am ready to concede that petitioner is being actuated by what he honestly believes to be his duty to our country and people. His abiding loyalty to his cause and his firm conviction to attain his objectives are to me admirable. But I reject any suggestion that for the Court to uphold the legality and constitutionality of the existing government is inimical to the national interests and ideals. I can see that the concept of martial law presently being evolved here as well as some features of its implementation do not conform with certain views of the American Supreme Court and some alien writers on the subject, but is it imperative that the Supreme Court of the Philippines should adhere to the doctrines laid down by alien authorities in order to be right?

Incidentally, it is becoming increasingly evident that some religious quarters as such would want their influence felt in the resolution of the legal issues before Us. One does not have to dig deep into the pages of history to learn that nations and peoples have also suffered where and when there was no separation of the church and state as when they were under despots and autocrats. In any event, while one can commiserate and sympathize with petitioner for the personal sufferings he has elected to undergo, I cannot convince myself that they are in anyway comparable with the agonies of Christ at Calvary, as seemingly, I am informed, has been somehow or seemingly suggested at a religious gathering sometime ago of those who share convictions with petitioner. Withal, I am afraid that even the mere attempt to draw such a comparison could be a sin of sacrilege and of having strange gods before our only Holy Redeemer.

2. Military tribunals and trials for persons who have committed offenses against the objectives of martial law is a natural and logical concomitant of martial rule.

The legalistic and scholarly discussion in the main opinion of the issue of jurisdiction of herein respondent Military Commission No. 2 needs no amplification. I only wish to punctualize a broader foundation for my concurrence. I have always maintained it is elementary, historically and legally, that in any regime of martial law, offenders against its objectives are and ought to be tried by military tribunals in accordance with the procedure prescribed for them. To feel apprehensive than that unless the Court upholds petitioner's contention that as a civilian he cannot be tried by respondent commission for the crimes allegedly committed prior to the proclamation of martial law, thousands of Filipinos run the risk of being similarly hailed before military courts and deprived of their constitutional rights to due process, is to ignore that throughout the life of all nations, when rebellions and revolutions were mounted, no distinction has ever been drawn, among those igniting the uprising which naturally was done before any declaration of martial law, as to whether they are civilians or military men, for purposes of trying them before the military courts of the legitimate or victorious government, at least, whenever prosecution has to be undertaken before the hostilities were over. And in this connection, it may be said of more recent military tribunals trying rebels that more safeguards are being adopted in order that the elementary requirements of due process may be surely observed by them. Moreover, it would be a misconception of the true import of this decision to suppose that it may be taken advantage of by any future government, for, as I have explained in my concurring opinion in the Habeas Corpus cases,1 any self-restraint the Court has opted to exercise in its decisions so far rendered, from asserting its judicial authority to interfere with the actuations of the Executive, considering it has not found any evidence of manifest abuse of discretion or gross arbitrariness in them, does not mean the Supreme Court has lost the power to act accordingly in appropriate cases that may come later. And there being no question that Proclamation 1081 which established martial law in the Philippines is valid,2 it necessarily follows that respondent military tribunal which has been created under it are vested with jurisdiction to try and decide petitioner's cases, it appearing that the charges and specifications against him are related to the causes that gave occasion to the Proclamation, no matter that the offenses charged therein were committed long before the issuance of said proclamation. Otherwise, the alternative would be to await the termination of martial law when all passions shall have subsided and the courts could calmly and without regard to the personal feelings of the judge as to the merits of the rebellion make an impartial decision, but that would mean the continued detention of the petitioner in the meantime.

It is insisted, however, that since the civil courts are open, it is derogative of their constitutional authority to sanction petitioner's trial in a military commission. Such contention ignores the fundamental mission of military courts during martial law. In any martial law situation wherein civil courts are continued, their co-existence with military tribunals ought not to create any conflict of jurisdiction. The trial and punishment of offenders against the established order should as a matter of necessity be left in the hands of the military whereas the civil courts are supposed to aid in the preservation of normal society among the non-offenders by continuing the exercise of their jurisdiction over all civil matters which have no direct relation to the imperatives of the Proclamation. And as very well explained in the main opinion, the constitutional requirements of due process are being complied with even in the military tribunals.

In legal contemplation, there is here no diminution much less a derogation of the judicial power vested by the Constitution upon the Supreme Court and other inferior courts established by law. As I made clear in my separate opinion in the Habeas Corpus cases,3 once the Supreme Court refrains, during a national emergency, by virtue of the discretion implicitly granted to it by the people in the Constitution, from invalidating the proclamation of martial law, because it is convinced that there has been no patent arbitrariness in its issuance, which We have actually done already in said cases, there can be no legal objection to the existence of military courts for the purposes I have just indicated. And it must be so, for it is entirely rational that military tribunals are peculiarly fit, in view of the more summary and expeditious procedure designed for their functioning, to temporarily administer justice in the prompt and unencumbersome manner required by the exigencies of the situation. In other words, the theater-of-war test is not truly determinative of the constitutionality of military trials during martial law, even when martial law is proclaimed for the express purposes of simultaneously reforming society with the suppression of the rebellion by causes therefore may not recur. Whether or not the authority of the civil courts may give way to military jurisdiction should rather depend on the nature of the offenses committed and its relation to the elimination of the unnecessary hindrances or obstacles to the complete restoration of order and the attainment of the social and political objectives of the Proclamation.

3. Petitioner's allegation of pre-judgment, albeit lacking in sufficient juridical persuasiveness is nevertheless worthy of serious consideration by the authorities who can provide relief.

That I am somehow impressed by petitioner's contention of supposed pre-judgment of his case by the President who has ordered the creation of the military courts and by whom their decisions are to be reviewed for final approval is no secret. At the open hearing of this case before this Court on April 14 last, I had occasion to ask the Solicitor General what possible impediments are there to the transfer of petitioner's case to the civil courts, which can rightly be done under the law. But that was, of course, far from indicating that I believe that indeed there could be such prejudgment. I have faith that in the discharge of his solemn constitutionally prescribed oath to "do justice to every man", President Marcos would not be capable of wantonly discarding the inherent responsibilities of his high office, knowing as he does that he would not be where he is were it not for the trust and confidence reposed in him by the people when they elected him as the man who by the exercise of the immense powers given him by the Constitution would precisely protect and defend them against injustice and oppression.

Truth to tell, the thought or suspicion of prejudgment in military justice during martial law is inevitable, for the obvious reason that the concentration of powers in such a situation carries with it inherently the spectacle of the army being the accuser and judge at the same time. When it is considered, however, that military courts are generally collegiate, with each member thereof being obliged to vote secretly not only on the issue of the guilt of the accused as to each charge and specification but separately, also on the penalty to be imposed, and that in important cases, particularly capital ones like some of those of petitioner, their decisions are automatically subject to review and recommendation by a number of levels of authority, such as the Chief of Staff, the Board of Review, the Secretary of National Defense etc., each with their corresponding staff judge advocates, before reaching the President for the final verdict, one cannot escape the conviction that more exacting safeguards against any possibility of partiality and prejudgment may not be found in the civil courts. It is entirely wrong, unjust and unwarranted to think of all army men as having only one mind. After all, they are also Filipinos like petitioner and counsel, and they cannot have less interest in and devotion to the sacred ideals for which our common country and people exist.

Moreover, in the case at bar, the statements attributed to the President and which petitioner quotes and maintains are reflective of the President's supposed pre-judgment of his cases, viewed objectively, would indicate at most only an offhand evaluation of the evidence then on hand, without regard to the other evidence now in possession of the prosecution, and without counting those which petitioner will present on his behalf, and does not necessarily amount to a pronouncement of guilt. As such, therefore, they do not sufficiently prove what the judgment of the President would be after the whole evidence of petitioner's cases shall have been examined and evaluated by him. In other words, from the strictly legal point of view of petitioner's pose about denial of due process to him by reason of prejudgment lacks persuasiveness.

Legal standards aside, however, it is immensely reassuring that the President has announced that as soon as the present perpetuation proceedings are terminated, he will consider the advisability of transferring the cases in question to the civil courts. Should that be done, and I have no reason for believing that it will not be so done, it will not only be that petitioner will be relieved of a great degree of mental torture, but, as importantly if not more so, the President shall have given the nation eloquent proof not so much of his nobility as of his determination not to allow the decision in the cases of petitioner to be in any manner tainted by the slightest suspicion of any personal feeling or opinion on his part. And I have no fears at all that others who are also similarly charged before military commissions will demand the same treatment, thereby subverting the whole system of crime prosecution under martial law I have earlier adverted to, for in the particular case of petitioner, there is the singular circumstances that the President has made statements which have some relevance to his cases, which it does not appear has been done in those of the others. Besides, under General Order No. 49, the President has already transferred the mass of the cases against civilians to the civil courts. Briefly then, while I hold that there is nothing constitutionally wrong with having petitioner tried by a military tribunal, it is my conviction that it is preferable from all other points of view that his cases be transferred to the civil courts, and not because in fact he will not get justice from the former, but because he will have more peace of mind in the latter and the people will be spared every doubt as to whether or not the slightest element of partiality or bias has crept into one of the most important trials in the current history of our country. But, of course, it is not within the ambit of the authority of even the Court itself, much less this writer, to direct the President's exercise of the powers vested in him by the Constitution; so, all that I can do is to voice the faith and hope that the President may not encounter any further obstacle to his actually ordering the transfer of petitioner's cases to the civil courts in accordance with his afformentioned public announcement, the sooner the better.

4. Petitioner has the right to waive his presence at the perpetuation proceedings before the respondent Commission.

As I stated earlier, what really seems to have initially provoked petitioner's decision to go on some kind of a hunger-strike was the respondent Commission's turnabout in regard to the issue of whether or not he can waive his presence during the perpetuation proceedings before it. After ruling at first that he had such right, subsequently, upon motion for reconsideration of the prosecution, the Commission reversed itself and ruled that his presence is indispensable and can thus be secured compulsorily. But if such action of the respondent commission is the cause of petitioner's hunger strike, as he had stated at the beginning, he may now desist from continuing with his rather perilous posture. All the members of the Court participating in this case are agreed that the ruling in People vs. Avanceña4 relied upon by the prosecution should be at least modified, if not completely overturned. Six of us, namely, Justices Fernando, Teehankee, Antonio, Muñoz Palma, Aquino and this writer are of the view that petitioner, although under detention and charged with a capital offense, has the right to absent himself at any stage of the trial, while the other five Justices, namely, Justices Castro, Makasiar, Esguerra, Concepcion Jr. and Martin, believe also that that right exists subject however to the qualification that it cannot be invoked whenever his presence is needed for identification purposes. Accordingly, it is entirely up to the petitioner whether or not to attend the perpetuation proceedings now going on except when he is to be identified by the witnesses on the stand and only for just the time needed for that exclusive purpose.

Speaking for myself, I find eminent merit in the contention of petitioner that even for identification purposes he cannot be made to be present at the trial against his will. Since under the Constitution, trial of criminal cases in the absence of the accused is allowed, when after the arraignment and in spite of due notice he fails to appear without justification, pursuant to Section 19 of the Bill of Rights or Article IV, I cannot see why an accused who does not want to undergo the experience of being repeatedly pointed to and of being the target of the curious eyes of the public, cannot elect to leave the defense of his case and of his rights to his counsel in his absence or even put himself completely at the mercy of the court, secure in the thought that it is anyway the inescapable duty of the judge not to allow anything illegal or inhuman to be done to him.

I can understand why an accused has to be present at the arraignment and at the reading of the sentence. In the former, it has to be known to the court that he is indeed the person charged and that he personally understands the accusation against him. More importantly, the plea must be entered by him personally to avoid any misconstruction or misrepresentation, innocent or otherwise. In the latter, it is essential that the accused himself should be aware from personal knowledge what is the verdict of the court, and if it be conviction, what is the penalty to be served by him. These are matters too personal to permit delegation. At the same time, his presence makes it simpler in the public interest for the authorities to enforce execution of any adverse judgment. But I cannot see why an accused should be compelled to be present at the trial when he prefers perhaps the solitude of his cell to pray either for forgiveness, if he knows he is guilty, or, if he is innocent, for God to illumine the court so there would be unerring justice in his case.

My understanding is that the problem of identification of an accused may be adequately solved without violating the justified wishes of the accused to be left alone. To start with, if he is referred to by the witnesses of the prosecution by name, the court may presume that the accused who has acknowledged his true name at the arraignment is the one indicated. This Court ruled unequivocally more than sixty-five years ago in U.S. vs. Adolfo, 12 Phil. 296, and reiterated it in People vs. Santos, 53 Phil. 863, twenty years later, and there has been no contrary opinion since then, that the rebuttable presumption of identity of person is applicable not only in civil cases but also to the identification of the accused in criminal cases. To my mind, there is absolutely no need that the accused be personally identified by the court while the inculpating witness is testifying, where the accused voluntarily waives his presence and even suggests to the court, as petitioner has done, to avail of the legally presumption just mentioned. (See Sec. 5 (w), Rule 131.)

Of course, it is to be underscored that the presumption is juris tantum. Thus, the waiver of the presence of the accused at the trial does not preclude him from presenting evidence to overcome the presumption. I admit that the ensuing situation may pose problems for the prosecution, but where in the democratic world is the accused supposed to lend his hand in order to make it that much easier for the court to convict him. Our fundamental law, no less than the rudimentary rules of fair play, expressly enjoins that the accused may not be compelled to incriminate himself. I take such injunction to be consistent with man's inalienable right to be treated with the dignity of a human being and it therefore extends to any and all forms of making the accused aid the prosecution in proving its case.

It is claimed that the state has the unquestionable right and duty to see to it that the accused is not convicted unless he is duly identified.ℒαwρhi৷ To the wisdom and nobility of such proposition, I must say amen. But I maintain that it is an incongruity in principle to predicate on such a just premise the conclusion that the state may compel the accused to assist it by exhibiting himself for purposes of identification. I am aware of precedents to the effect that the compulsion against self-incrimination prohibited by the Bill of Rights does not contemplate acts required of the accused which do not involve the employment of his intellect. In other words, he cannot be made to produce evidence against himself, but he can be compelled to perform mechanical acts conducive to that end. But I do not see any analogy between the facts in those precedents and the case at bar, and, in any event, I do not see the justice and fairness of those precedents. As far as I am concerned, the prosecution must prove its ease by its own effort and within own resources and should not be permitted to depend on the accused for anything that will help it secure his conviction. I know that the Constitution has placed emphasis on the duties and obligations of persons in the Philippines equally with the Bill of Rights, but nowhere in those pertinent provisions in Article V do I discern any duty or obligation on the part of an accused to help the prosecution in having himself identified by the witnesses of the state.

After having been in continuous practice at the bar for more than three decades before joining the Court, I should know that the almost invariable procedure practiced in the identification of accused persons at the trial is in a sense impractical, if not farcical. As the cases are called from the calendar, the accused are made to stand and evidence their presence within the view of everybody in the courtroom including the witnesses of the prosecution. Rare is the occasion when necessary precautions are taken at the initiative of meticulous defense lawyers to prevent the witnesses from seeing the accused as they answer the calling of the calendar. My point is that any quibbling about the proper identification of the accused by compelling his presence at the trial may not be worth the irreparable injury to human dignity that can be caused by bodily and forcibly taking the accused from his place of confinement to the place of trial in the event he insists on his pose that he is agreeable anyway that the presumption on identities I have referred to be applied to his case.

In the precedents relied on by the prosecution, it is held that inasmuch as the accused is under detention, his person is subject to the disposition of the court before whom he is charged. I disagree. My position on this point is that his detention is only for the purpose of securing the execution of the judgment in the eventuality of conviction and for no other purpose derogative of his freedom to waive his personal rights related to the procedure of his trial. His constitutional rights "to be heard by himself or counsel, to be informed of the nature and cause of the accusation against him, to have a speedy 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 witnesses on his behalf" (Section 19, Art. IV) including those not to be "compelled to be a witness against himself ... to remain silent" and not to be subjected to "force, violence, threat, intimidation, or any other means which vitiates (his) free will" (Sec. 20, id.) and even that of not being "twice put in jeopardy of punishment for the same offense" (Sec. 22, id.) may be waived by him provided the waiver is made properly. As I see it, the right to be present at the trial is more or less the composite of these rights I have enumerated. Since all of them separately are waivable, why may not the waiver of all of them be done wholesale, so to speak, as long as the waiver is clearly and voluntarily manifested to the court. Above all, I consider the right of an accused to human dignity to be more precious than all his other rights, hence I cannot see the point in compelling the accused to sacrifice his human dignity for the sake of enabling the prosecution to identify him in person when the same end can as well be legally attained without exacting from him such sacrifice.

Sustaining as I do sustain the right of petitioner to absent himself at the trial proper, it is unnecessary for me to discuss whether or not the perpetuation proceedings constitute part of the trial. I must make it clear, however, than even if We were to hold that they are part of the trial proper, I insist that if the witnesses who have testified or will testify at the perpetuation proceedings should be available when the trial actually takes place it is the right of the accused to have them recalled and to be examined further and even anew in the sound discretion of the trial court. Presidential Decree 328, paragraph 2, amending subparagraph 4 b (7) of Presidential Decree No. 39 is to be so construed, in the interest of fairness and justice.

As I close this concurrence, two thoughts continuously recurring in my mind during its preparation keep urging articulation. The first is that to commit suicide is prohibited by the laws of God and man. No one has the right to take his life for any reason. Withal, leadership in any field of human endeavor creates a responsibility that knows no surcease for any kind of convenience. Perseverance of purpose to be of real significance and worth requires one's survival. The future is inscrutable the hand of fate guides only those who bide their time and do not despair before the designed moment comes. Thus, it could yet be a crime also against the interests of our country and people to indulge in self-destruction when one knows that he has talents and attributes that can be offered for the attainment of the national destiny.

The second concerns the Supreme Court whose independence of conviction it is the bounden duty of every Filipino to keep unsullied. The unkindest thing of all is for those to whom you concede the loftiest of motives to impugn recklessly your own. The unceasing quest for the achievement of the national goal naturally divides men in all democracies into groups each composed of those sharing common views and feelings as to how to make the country succeed earlier in realizing its ideals. Such disparity, however, cannot produce disunity, as long as everyone involved because of official duty or choice trusts the good faith of the other.

For the members of the Court to happen to coincide in legal views with the Executive is not servility. Neither should it be considered evidence of any measure of orchestration or common planning. As a matter of fact, there has never been any such thing. The best proof is that, as I have emphasized at the outset, this is the first martial law case in which the required majority for doctrinal purposes has been attained. Where then is the alleged orchestration? And how could the charge have basis in the face of the undeniable happenstance that no martial law or constitutional decision has yet come out from the Court without vigorous and extensive dissents of notable consistency. Indeed, occasions there have been when one or two more votes became imperative for a more effective and conclusive ruling, and no one can say that anybody concerned received dictation as to what to do. Of my own knowledge, I bear witness that not even a finger has been lifted in any manner against any of the dissenters. As of now, the Court has not found enough cause to hold any of the President's actuations submitted for Our scrutiny to have overstepped constitutional bounds. It is evident that due care is being taken to avoid fault in this respect. I can imagine no reason why and no occasion when such effort will ever be relaxed at all. More so in the earnest vigil by the Supreme Court.