G. R. No. 68347 entitled "Nolasco, et al. vs. Hon. Juan Ponce Enrile, et al." is a Petition for Mandamus to compel respondents to comply with the Order to release Cynthia NOLASCO, Willie TOLENTINO and Mila AGUILAR issued by the Metropolitan Trial Court of Quezon City in Criminal Case No. 223466 for Illegal Possession of Subversive Documents, which respondents have refused to do on the ground that they are in custody under a Presidential Detention Action (PDA). In this Court's Resolution of December 19, 1984, we ordered NOLASCO and TOLENTINO released, while in respect of AGUILAR, the case was set for hearing and she continued to remain under custody. NOLASCO and TOLENTINO were released from detention on January 12, 1985 pursuant to the Order of the President "on the basis of findings that they no longer pose any appreciable danger to national security and public order".^[1] G. R. No. 68347, therefore, is now confined to AGUILAR's petition for release.

G. R. No. 69482, entitled "Mila Aguilar vs. Military Commission No. 25," is a Petition for Certiorari, Prohibition and Mandamus with Preliminary Injunction praying that said Commission be restrained from further proceeding with Criminal Case No. MC-25-113 for Subversion, entitled "People vs. Jose Ma. Sison, et al." insofar as AGUILAR, who is one of the ten (10) defendants therein, is concerned on the ground that it lacks jurisdiction over her, and that the Commission be ordered to dismiss the subversion charge against her. On January 10, 1985, this Court issued a Temporary Restraining Order enjoining said Military Commission from further proceeding with the case insofar as AGUILAR is concerned.

The two cases were ordered consolidated upon motion of petitioners' counsel.

The background facts for those two consolidated cases may be stated as follows:

1.  On March 18, 1977, before Special Military Commission No. 1, petitioner Mila Aguilar (hereinafter referred to as AGUILAR), who is listed as No. 74 among the defendants, was charged with Rebellion^[2] in Criminal Case No. SMC 1-1 (hereinafter referred to as SMC 1) entitled "People vs. Jose Ma. Sison, et al." (hereinafter referred to as the Rebellion Case). The charge alleged that the rebellion was committed "in or about the month of August, 1973 to February, 1974 and for sometime prior and subsequent thereto." During the alleged period (August, 1973 to March 18, 1977), Rebellion was not a capital offense, being punishable only with "prision mayor and a fine not exceeding 20,000 pesos" under Article 135 of the Revised Penal Code. Presidential Decree No. 942, effective on June 10, 1976, increased the penalty to reclusion temporal in its medium period and a fine in the same amount. It was only on January 16, 1981, and through Presidential Decree No. 1834, that Rebellion became a capital offense with Article 135 of the Code being amended by raising the penalty for Rebellion to "reclusion perpetua to death."

2.  On October 3, 1978, AGUILAR and nine others were charged before Military Commission No. 25 (hereinafter referred to as MC 25) with Subversion^[3] in Criminal Case No. MC-25-113 entitled "People of the Philippines vs. Jose Ma. Sison, et al.," committed "on or about the year 1968 and for sometime prior and subsequent thereto" (hereinafter referred to as the Subversion Case).

3.  AGUILAR was at large until August 6, 1984 when she was arrested. In the meantime:

(a)  In the Rebellion Case, arraignment was held on October 28, 1978, without the presence of AGUILAR. The other defendants in custody refused to plead, and pleas of "not guilty" were entered for them including one for AGUILAR. In June, 1982, trial commenced and towards the latter part of that year the prosecution rested its case. In July, 1984, Petitions for Certiorari, Prohibition and Mandamus were filed against SMC 1 in G.R. Nos. 67850 and 67851 of this Court, entitled "Ruben Guevarra, et al. vs. Special Military Commission No. 1." On July 31, 1984, we issued in those cases a Temporary Restraining Order enjoining SMC 1 from proceeding with the Rebellion Case.^[4]

(b)  In regards to the Subversion Case, a Petition for Habeas Corpus, Prohibition and Mandamus with Preliminary Injunction was filed in G. R. No. 50155 entitled "Saturnino Ocampo, et, al. vs. Military Commission No. 25" in March, 1979 which, however, was dismissed on November 6, 1981. A Motion for Reconsideration was denied on July 20, 1982. Trial in the Subversion Case resumed on January 16, 1984. It may be mentioned that a plea of "not guilty" had also been entered for AGUILAR notwithstanding that she had not yet been arrested up to then.

4.   (a) As previously stated, AGUILAR was arrested on August 6, 1984 in Quezon City, together with one, Cynthia Nolasco (hereinafter referred to as NOLASCO).

(b)  On that same date, an apartment leased by NOLASCO at No. 239-B Mayon, Quezon City, was raided as a suspected CPP-NPA under-ground house, which was found under the charge of Willie Tolentino (hereinafter referred to as TOLENTINO). Several documents were seized from the apartment, and TOLENTINO was arrested.

(c)  On August 7, 1984, a Presidential Detention Action (PDA) was issued against AGUILAR NOLASCO and TOLENTINO.

(d)  On August 13, 1984, an Information was filed against AGUILAR, NOLASCO and TOLENTINO for Illegal Possession of Subversive Documents in Criminal Case No. 223466 of the Quezon City Metropolitan Trial Court (hereinafter referred to as the Subversive Documents Case). That Court ordered the release of the three defendants on the same day, August 13, 1984, on a P600.00 bail for each, "subject to the existence of any other order from any other court or competent authority to the effect that they continue to remain under your custody."

(e)  On August 16, 1984, in the Rebellion Case, SMC-1 ordered AGUILAR held in custody. On August 17, 1984, in the Subversion Case, MC 25 also directed AGUILAR's confinement during the pendency of trial.^[5]

(f)  As the custodial authorities had refused to release them because of the PDA, the three defendants filed the Petition for Mandamus in G. R. No. 68347. In our Resolution of December 19, 1984 in that case, we ordered the release of NOLASCO and TOLENTINO, but reserved action in regards to AGUILAR. NOLASCO and TOLENTINO were subsequently released such that, in G. R. No. 68347, AGUILAR has remained the sole petitioner. Hence, the consolidation of these two cases.

In G. R. No. 68347, respondents oppose the release of AGUILAR on the ground inter alia that she belongs to the highest echelon of the Communist Party of the Philippines' (CPP) central committee; that in 1982 a reward of P100,000.00 had been posted for her capture; and that to release her would undermine Government efforts to repel the movement to overthrow our democratic institutions with the use of deception, force and violence. While in G. R. No. 69482, respondent MC 25 upholds its jurisdiction over AGUILAR on the ground that her case was already filed and pending trial before it as of January 12, 1981 when General Order No. 69 (infra) was issued.

5.   (a) As previously stated, the prosecution in the Rebellion Case had rested its case in the latter part of 1982; and that, on July 31, 1984, we had issued a Temporary Restraining Order in G. R. Nos. 67850 and 67851 enjoining SMC 1 from proceeding with the case.

(b)  On September 14, 1984, in the Subversion Case, AGUILAR was brought before MC 25 to appear and be involved in the ongoing trial of the case. AGUILAR's counsel questioned the jurisdiction of the Commission over her, but the Commission upheld its jurisdiction. Challenging that ruling, on January 7, 1985, AGUILAR filed her Petition in G. R. No. 69482 for Certiorari, Prohibition and Mandamus with Preliminary Injunction. A Temporary Restraining Order enjoining MC 25 from proceeding further with the Subversion Case, insofar as it involves AGUILAR, was issued by this Court on January 10, 1985.

The basic issue to be resolved is whether or not MC 25 can still exercise jurisdiction over AGUILAR in the Subversion Case. What has first to be determined is the validity of the plea of "not guilty" entered by the Commission on her behalf in that case.

We hold that AGUILAR had not been legally arraigned when a plea of "not guilty" had been entered for her together with the other defendants who had refused to plead. There can be no arraignment or plea in absentia. Under both the 1964 Rules of Court^[6] and the 1985 Rules on Criminal Procedure^[7], a defendant must be present at the arraignment and must personally enter his plea. Even under Section 62 of the Manual of Courts Martial, it is provided that "during arraignment, the accused and personnel will stand."

Respondent MC 25, in its Answer submitted in G. R No. 69482, invoked Section 5(c) of Presidential Decree No. 39 ^[8] to justify a plea in absentia, stating that she was informed of the date set for trial and apprised of the content of the charge sheet through the prescribed service. The cited provision, allowing trial in absentia, and which presupposes arraignment in absentia (through publication), was promulgated in 1972. It should give way to the 1973 Constitution, effective January 17, 1973, which provides 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".^[9] In the Constitutional provision, "arraignment" cannot be construed as inclusive of "arraignment in absentia." As a matter of fact, in the codification made in Presidential Decree No. 1835, Section 5 provides:

"SEC. 5. After the arraignment of an accused who is charged with subversion, the trial may proceed notwithstanding the absence of the accused, provided that he has been duly notified and his failure to appear is unjustified. Judgment may be promulgated in absentia and the penalty of confiscation of his properties in the Philippines may be immediately executed."

The codal section replaces Section 5(c) of Presidential Decree No. 39. And it should be borne in mind that actual arraignment is an element of due process.^[10] Even military tribunals are bound to observe fundamental rules of law^[11] and arraignment in absentia would be violative of due process.

As AGUILAR was not arraigned before MC 25, the next question is to determine whether MC 25 can try her at this late date in the Subversion Case, together with her other co-defendants, or whether a new Complaint or Information should be filed against her before the civil Courts. General Order No. 69, effective January 12, 1981, provides:

"(b)  Cases already investigated (ready for trial) All cases which, on the effective date of this Order, have been referred to the military tribunals for trial pursuant to Presidential Decree No. 39, as amended, wherein the accused have not as yet entered their pleas, shall be referred to the provincial or city fiscals or civil government prosecutors concerned, who, on the basis of the charges thus preferred by the Judge Advocate General, AFP, consequent to a finding of a prima facie case after preliminary investigation, shall file the corresponding informations before the civil courts of competent jurisdiction without the need of conducting another preliminary investigation."

If all the accused in the Subversion Case had not been arraigned by January 12, 1981, there would be no question but that the case should be referred to Fiscals for filing with the civil Courts. The provision does not expressly provide for a case where some defendants had been arraigned prior to January 12, 1981, but other defendants had not been arraigned before said date. We find, in the light of the attendant facts, particularly, that AGUILAR was still not arraigned in the Subversion Case as of January 12, 1981, that MC 25 had lost jurisdiction to try AGUILAR in the Subversion Case when she was brought before that tribunal on September 14, 1984 to appear before the ongoing trial of the other defendants. Moreover, with the lifting of Martial Law on January 17, 1981, Military Commissions were dissolved and they could no longer try civilians.^[12]

It is true that the dissolution of Military Commissions was conditioned on the final determination of cases pending with them.

"General Order No. 8 is also hereby revoked and the military tribunals created pursuant thereto are hereby dissolved upon final determination of cases pending therein which may not be transferred to the civil courts without irreparable prejudice to the state in view of the rules on double jeopardy, or other circumstances which render further prosecution of the cases difficult, if not impossible; x x x"^[13]

That is so in respect of those who are already undergoing trial at the time of the lifting of Martial Law. That yardstick does not apply to AGUILAR who was not within the Military Commission's jurisdiction when Martial Law was lifted. Her case was not effectively pending before said Commission at that point of time.

The Subversion Case, therefore, should be transferred to the civil Court for further proceedings. No "irreparable prejudice" will be caused the State inasmuch as, due to the absence of arraignment, no double jeopardy can attach. Nor has any evidence been presented against AGUILAR thus far. The inconvenience and "difficult(ies)" attendant to the trans­fer, and the quantity of evidence that the State may have to re-introduce in a separate trial must yield to the Constitutional rights of a defendant, and to the desired objective for normalcy and civilian supremacy to prevail, with judicial power vested exclusively in civil Courts.

We have also noted that, in the Charge Sheet for Subversion, the ten defendants were accused of being "officers and/or ranking members of the Communist Party of the Philippines (CPP) and/or the New People's Army." There was no indication of who were officers and who were ranking members. Moreover, the guilt of a ranking member (not a ranking leader) should not be equated with that of an officer. If AGUILAR should now be charged before a civil Court with Subversion, the Complaint or Information against her can be made more specific that she is an officer of the Communist Party, or a ranking member thereof. As a ranking member, the charge against her will not be a capital offense.^[14]

In so far as the Rebellion Case is concerned, while it is not involved in these two cases, it does have an im­portant bearing. It should be recalled that, on August 16, 1984, SMC-1 had again ordered AGUILAR held in custody. And since the Order of Release of the Metropolitan Trial Court of Quezon City in the Subversive Documents Case was "subject to the existence of any other order from any other court or competent authority to the effect that they continue to remain under your custody", the release of AGUILAR cannot be ordered. Significant also is the fact that on July 31, 1984, this Court, in G.R. Nos. 67850 and 67851 entitled "Ruben Guevarra, et al. vs. Special Military Commission No. 1", had issued a Temporary Restraining Order enjoining SMC 1 from proceeding with the Rebellion Case. To all intents and purposes, therefore, it is still a pending case.

WHEREFORE, judgment in these two consolidated cases is rendered as follows:

(1)  Respondent Military Commission No. 25 shall not take jurisdiction over petitioner, Mila Aguilar, in its Case No. MC-25-113, entitled "People of the Philippines vs. Jose Ma. Sison, et al." The Temporary Restraining Order heretofore issued is hereby made permanent. Within 30 days after receipt of notice hereof, the said respondent shall refer the case against petitioner Mila Aguilar to the proper provincial or city Fiscal, or civil government prosecutor, so that the corresponding Information may be filed against her before a civil Court of competent jurisdiction. The date of the referral shall be immediately advised to this Court.

(2)  If, within forty-five (45) days after the date of referral, no Information is filed against petitioner, Mila Aguilar, before a civil Court, she shall be immediately released in relation to the MC-25-113 case, as well as in relation to Criminal Case No. 223466 of the Quezon City Metropolitan Trial Court where she has already filed bail without prejudice to her detention during the continued pendency of the Rebellion Case in her regard.

(3)  If, within forty-five (45)days after the mentioned referral, an Information is filed before a civil Court against petitioner Mila Aguilar, charging her with a capital offense, her petitions in these consolidated G. R. No. 68347 and No. 69482 cases shall be deemed dismissed in view of the pendency of the Rebellion Case and of the capital offense case.

(4)  If the Information filed before a civil Court does not charge petitioner, Mila Aguilar, with a capital offense, and the civil Court shall order her release on bail, she shall also be released in relation to Criminal Case No. 223466 of the Metropolitan Trial Court of Quezon City, on the strength of the bail she has already filed, but also without prejudice to her detention during the continued pendency of the Rebellion Case in her regard.

SO ORDERED.

Makasiar, C.J., Plana, Escolin, Relova, Gutierrez, Jr., De La Fuente, Cuevas, Alampay, and Patajo, JJ., concur.
Teehankee and Abad Santos, JJ., see separate concurring and dissenting opinion.
Aquino, J., dissent, section 5 (c) of PD No. 39 applies to the case.
Concepcion, Jr., J., no part.

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^[1] Rollo, p. 147.

^[2] Article 134, in relation to Article 135, Revised Penal Code.

^[3] Violation of R.A. No. 1700, as amended by P.D. No. 885.

^[4] G. R. No. 68347 Rollo, p. 229.

^[5] Annexes "1" and "2", Reply by respondents to Traverse.

^[6] Sections 1 and 2, Rule 116.

^[7] Section 1(a) and (b), Rule 116.

^[8] "(5) Rights of Accused. The accused shall be entitled:

xxx                               xxx                               xxx
(c) To be present at the arraignment, when he enters a plea of guilt and at the pronouncement of judgment of conviction. Where the accused is in custody or charged with a capital offense, he shall be entitled to be present at all stages of the trial. In cases where there is allegation of conspiracy and one or more accused are available for trial and others are not, trial may proceed against all, provided, that the indictment shall have been published at least once a week for two consecutive weeks in any newspaper of general circulation and a copy of a notice of trial shall have been served on the accused or on his next of kin or at his last known residence or business address with a person of sufficient discretion to receive the same."

^[9] Section 19, Article IV.

^[10] Borja vs. Mendoza, 77 SCRA 422 [1977].

^[11] Aquino, Jr. vs. Military Commission No. 2, 63 SCRA 546 [1975].

^[12] Sison vs. Enrile, 102 SCRA 33, 37 [1981].

^[13] Proclamation No. 2045, p. 17.

^[14] R. A. 1700, as amended by P.D. No. 885.


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