In essence, the decisive issue posed in this habeas corpus  and prohibition proceeding, filed on October 25, 1977, namely, the power of military tribunals to try individuals, not members of the armed forces, was raised and decided adversely to the claim of petitioner Bernabe Buscayno in the leading case of Aquino Jr. v. Military Commission.^[1] A novel aspect is, however, sought to be imparted by the allegation that respondent Military Commission "lost on October 17, 1976, the judicial power vested in it by the respondent Secretary, now Minister, of the National Defense^[2] to conduct the trial of persons charged with the commission of crimes defined by the penal statutes of the land, when, on said date, the Filipino people terminated the authoritarian regime, or military dictatorship established by the Commander-in-Chief of the Armed Forces of the Philippines, when they ratified the amendments to the Constitution"^[3]  and the contention that whatever judgment will be rendered by it against petitioner would be violative of Section 9, Article X of the Constitution.^[4] For reasons to be hereinafter set forth specifically, this Court sees no valid distinction sufficient to call for a different ruling. There is no justification for granting the remedies prayed for.

Such conclusion gains reinforcement from the fact that in the Comment^[5] submitted by respondents to petitioner's urgent supplemental petition,^[6]  filed on December 3, 1977, reiterating but this time in a much more detailed manner, the alleged denial of procedural due process, an order of the President to respondent Secretary of National Defense dated November 29, 1977 was quoted in full. Insofar as pertinent, it reads: "While according to the records, ample opportunity has been granted the accused to exercise their rights under the law and the constitution, in view of the severity of the charges against them and the consequent penalty that has been imposed upon them, that is death and although the trial has lasted several years during which time the Military Commission has given them every opportunity to have a fair trial, in the interest of justice, you are hereby directed to see to it that they get another opportunity and that the Military Commission reopen the trial for the purpose of receiving such arguments, witnesses and other evidences as the two accused and other co-accused may wish to present."^[7]  Even on the assumption then that the proceedings before respondent Commission were vitiated by constitutional infirmity, the above Presidential order to respondent Secretary, now Minister, of National Defense, if availed of, would attain the purpose sought to be achieved by petitioner.

The facts as set forth in the petition are with some modifications admitted in the answer. Petitioner was arrested in Barrio Sto. Rosario, Mexico, Pampanga, as ranking leader of the Communist Party of the Philippines (CPP), the Hukbong Mapagpalaya ng Bayan (HMB) or the New People's Army (NPA), and was accused in two criminal cases, one for violation of R.A. No. 1700 and another for murder, both pending with respondent Military Commission No. 2. He is likewise an accused in the MV Karagatan case for rebellion before Military Commission No. 1. Prior to his arrest, his trial before respondent Military Commission had started; it continued thereafter after he was duly arraigned. Then, on October 25, 1977, this petition was filed, to be followed by the urgent supplemental petition, of December 3, 1977.

As noted at the outset, this petition must be dismissed.

1. To demonstrate the lack of merit of the argument advanced by petitioner that from and after October 17, 1976, respondent Military Commission was deprived of any power to try petitioner as in the plebiscite then held, the Filipino people terminated the authoritarian regime "or military dictatorship established by the Commander-in-Chief" in General Order No. 1 dated September 22, 1972, it suffices to quote this relevant excerpt from the opinion of then Chief Justice Makalintal in Aquino Jr. v. Ponce Enrile:^[8]  "In the first place I am convinced (as are the other Justices), without need of receiving evidence as in an ordinary adversary court proceeding, that a state of rebellion existed in the country when Proclamation No. 1081 was issued. It was a matter of contemporary history within the cognizance not only of the courts but of all observant people residing here at the time. Many of the facts and events recited in detail in the different 'Whereases' of the proclamation are of common knowledge. The state of rebellion continues up to the present. The argument that while armed hostilities go on in several provinces in Mindanao there are none in other regions except in isolated pockets in Luzon, and that therefore there is no need to maintain martial law all over the country, ignores the sophisticated nature and ramifications of rebellion in a modern setting. It does not consist simply of armed clashes between organized and identifiable groups on fields of their own choosing. It includes subversion of the most subtle kind, necessarily clandestine and operating precisely where there is no actual fighting. Underground propaganda, through printed newssheets or rumors disseminated in whispers; recruitment of armed and ideological adherents, raising of funds, procurement of arms and material, fifth-column activities including sabotage and intelligence all these are part of the rebellion which by their nature are usually conducted far from the battle fronts. They cannot be counteracted effectively unless recognized and dealt with in that context."^[9]  This, too: "Secondly, my view, which coincides with that of other members of the Court as stated in their opinions, is that the question of validity of Proclamation No. 1081 has been foreclosed by the transitory provision of the 1973 Constitution [Art. CVII, Sec. 3(2)] that 'all proclamations, orders, decrees, instructions, and acts promulgated, issued or done by the incumbent President shall be part of the law of the land and shall remain valid, legal, binding and effective even after * * * the ratification of this Constitution * * *.' To be sure, there is an attempt in these cases to resuscitate the issue of the effectivity of the new Constitution. All that, however, is behind us now. The question has been laid to rest by our decision in Javellana v. Executive Secretary (L-36142, 50 SCRA 30, March 31, 1973), and of course by the existing political realities both in the conduct of national affairs and in our relations with other countries."^[10]  It may be added that in the address of President Marcos delivered before the American Newspaper Publishers Association in Honolulu on April 22, 1980, he quoted with approval the view of Willoughby as to the significance of the martial law provision found in our Constitution, Proclamation No. 1081 being based on the commander-in-chief clause of the 1935 Constitution vesting on the President the power to do so under the circumstances therein enumerated: "There is, then, strictly speaking, no such thing in American law as a declaration of martial law whereby military law is substituted for civil law. So-called declarations of martial law are, indeed, often made, but their legal effect goes no further than to warn citizens that the military powers have been called upon by the executive to assist him in the maintenance of law and order and that, while the emergency lasts, they must, upon pain of arrest and punishment not commit any acts which will in any way render more difficult the restoration of order and the enforcement of law."^[11] The President likewise referred to Burdick and Willis, two other eminent constitutional scholars of note, who expressed the same view.^[12]

2. It is not to be lost sight of that he is Commander-in-Chief precisely because he is the incumbent President. Thus this Court in Aquino Jr. v. Commission on Elections,^[13]  enabled him 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 rebellion or insurrection or secession or the threat thereof as well as to meet the impact of a worldwide recession, inflation or economic crisis which presently threatens all nations including highly developed countries."^[14] Moreover, this decision reiterated the ratification of such orders and decrees in these words: "To dissipate all doubts as to the legality of such lawmaking authority by the President during the period of Martial Law, Section 3(2) of Article XVII of the new Constitution expressly affirms that all the proclamations, orders, decrees, instructions and acts he promulgated, issued or did prior to the approval by the Constitutional Convention on November 30, 1972 and prior to the ratification by the people on January 17, 1973 of the new Constitution, are 'part of the law of the land, and shall remain valid, legal, binding and effective even after the lifting of Martial Law or the ratification of this Constitution, unless modified, revoked or superseded by subsequent proclamations, orders, decrees, instructions or other acts of the incumbent President, or unless expressly and specifically modified or repealed by the regular National Assembly."^[15]

3. Whatever doubts may still exist as to the power of respondent Military Commission to try petitioner should be dispelled, as was set forth in the opening sentence of this opinion by the aforesaid Aquino Jr. v. Military Commission decision.^[16] Justice Antonio, now retired, as ponente, left no doubt on that score. Thus: "We hold 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. 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 require-ments of the emergency. On the basis of this, he has authorized in General Order No. 8 (September 27, 1972) the Chief 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 had 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 * * *.' 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 tribunals 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.'"^[17]

4. It was likewise held therein that to recognize such competence of a military commission would amount to sanctioning a disregard of procedural due process. As was made clear in the opinion of Justice Antonio: "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 mean a judicial proceeding in the regular courts. 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.' It means essentially a fair and impartial trial and reasonable opportunity for the preparation of defense. 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, on essentially fair and impartial trial and reasonable opportunity for the preparation of the defense."^[18]

5. This decision likewise authoritatively settles the question as to the alleged lack of impartiality, Justice Antonio expressing the view of the Court in these words: "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."^[19]

6. One other issue raised by petitioner remains. It was likewise contended that a judgment of respondent Military Commission would be violative of Article X, Section 9 of the Constitution. That provision requires that a decision of a court of record "shall clearly and distinctly state the facts and the law on which it is based." The proceeding in a military commission terminates with a guilty or not guilty verdict. Hence this objection. It can be said of course that a military commission is not a court of record within the meaning of this Article on the judiciary. Moreover, the procedure followed, including the form the judgment takes, was given the seal of approval in the above Aquino decision citing the applicable section of the Article on Transitory Provisions.^[20] That would remove any taint of unconstitutionality. It may be stated further that the record of the proceedings are available to the reviewing authorities. Hence any imputation of arbitrariness sought to be avoided by the above provision would not be warranted.

7. It may be noted that less than a year ago, in an exhaustive opinion by Justice Makasiar, this Court once again sustained the power of the President to create military commissions or courts martial to try not only members of the armed forces but also civilian offenders.^[21]  Counsel for petitioner, in his voluminous pleadings, was quite vehement in his assertion that there was a marked failure to abide by constitutional processes. Such an attitude is reminiscent of the aphorism of Holmes that certitude is not the test of certainty. For beginning with Javellana v. Executive Secretary,^[22] decided on March 31, 1973, up to and including Sanidad v. Commission on Elections,^[23]  decided five days before the October 17, 1976 plebiscite, the question raised in the former case being the validity of the ratification of the present Constitution and in the latter the power of the President to propose amendments, this Court performed its awesome and delicate power of judicial review. In the three Aquino cases referred to in the body of the opinion, the question raised and decided dealt with the presidential authority to issue the challenged decrees. It is quite apparent, therefore, that to stigmatize the existing government between September 22, 1972 to October 17, 1976 as a military dictatorship is bereft of any support in law. The Constitution remained supreme, with the fundamental principle of civilian supremacy upheld.^[24]

Nothing said in this opinion is to be construed or to be understood as in any way lending approval to any failure to accord full respect to all the rights of an accused person conformably to my concurrence and dissent set forth in the aforesaid Aquino Jr. v. Military Commission decision and in accordance with the Universal Declaration of Human Rights as well as the Covenant on Civil and Political rights.

WHEREFORE, the petition is dismissed for lack of merit. No costs.

Barredo, Makasiar, Aquino, Fernandez, Guerrero, Abad Santos, De Castro, and Melencio-Herrerra, JJ., concur.

Teehankee, J., files a separate opinion.

Concepcion, Jr., J., on leave.

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^[1] L-37364, May 9, 1975, 63 SCRA 546. Justice Teehankee and retired Justice Muñoz Palma dissented. The writer of this opinion filed a separate concurrence and dissent.

^[2] The other respondents are Gen. Romeo C. Espino, Chief of Staff, AFP; Gen. Fidel V. Ramos, Chief, Philippine Constabulary; the Military Commission No. 2; and Col. Miguel V. Aure, Philippine Constabulary.

^[3] Petition, 6-7.

^[4] According to Article X, Section 9 of the Constitution: "Every decision of a court of record shall clearly and distinctly state the facts and the law on which it is based. The Rules of Court shall govern the promulgation of minute resolutions."

^[5] Comment dated December 12, 1977. Solicitor General Estelito P. Mendoza was assisted by Assistant Solicitor General Reynato S. Puno and Solicitor Ramon A. Barcelona.

^[6] Urtent Supplemental Petition dated December 1, 1977.

^[7] Comment, 18.

^[8] L-35546, September 17, 1974, 59 SCRA 183.

^[9] Ibid, 240-241.

^[10] Ibid, 241.

^[11] This excerpt appeared in a concurrence and dissent in Aquino Jr. v. Ponce Enrile at 303. It came from the writer of this opinion.

^[12] Ibid.

^[13] L-40004, January 31, 1975, 62 SCRA 275.

^[14] Ibid. Justice Makasiar as ponente quoted Rossiter on Constitutional Dictatorship 7, 303 (1948) as well as the concurring opinion of Chief Justice Stone in Duncan v. Kahanamoku, 327 US 304.

^[15] Ibid.

^[16] 63 SCRA 546.

^[17] Ibid, 573-574.

^[18] Ibid, 576-578. The footnotes in the opinion of Justice Antonio are omitted.

^[19] Ibid, 579. The ponente of this opinion, in his concurrence and dissent, was of a different mind. His view, however, did not prevail. In speaking for the Court, therefore, he feels bound by the decision reached by the majority.

^[20] Article XVII of the Constitution.

^[21] Gumaua v. Major General Romeo Espino, L-36188, February 29, 1980.

^[22] L-36142, March 31, 1973, 50 SCRA 30.

^[23] L-44640, October 12, 1976, 73 SCRA 333.

^[24] According to Article II, Section 8: "Civilian authority is at all times supreme over the military." It may be observed parenthetically that distinguished counsel for petitioner continued his extensive practice before the courts of the land during the period characterized by him as without any constitutional foundation in vehement language reminiscent of what Dean Pound called Epithetical Jurisprudence.

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