MILITARY JUSTICE

Military justice is the system for enforcing discipline and

administering criminal law in the Military Establishment. Under the
broad concept, rules governing the conduct of military personnel
and providing for a method by which persons who break them may
be punished are contained in the Articles of War, the Manual for
Court-Martial, the Constitution of the Philippines, and pertinent
laws.

1. Military Jurisdiction.

Military Law emanates from several sources, among which

are the Constitution of the Philippines and International Law, some
specific provisions of the Constitution granting some powers to
Congress, and in the authority vested in the President of the
Philippines as Commander-in-Chief of all Armed Forces.

Military jurisdiction is exercised by a belligerent state

occupying an enemy’s territory (military government); by a
government temporarily governing the civil populace through its
military forces without authority of a written law as necessity may
require (martial law); and by the government in the execution of its
authority over the military as conferred by a branch of municipal
law. Each exercise is carried out by the following agencies.

a. Courts-martial – general, special, and summary

b. Commanding Officers in exercising their disciplinary
powers under Articles of War 105.
c. Courts of inquiry
d. Military tribunals or commissions.

2. Persons Subject to Military Law

As a general rule, courts-martial have the exclusive

jurisdiction over all persons subject to military law who commit an
offense penalized by the punitive articles of war. Persons subject to
military law refer to the following.

a. All officers and enlisted personnel in the Regular Force

of the AFP.
b. All reservists from the date of their call to active duty
and while on such active duty.
c. All trainees undergoing military instructions.
d. All cadets of the PMA and PAF Flying School, and
Probationary Lieutenants on actual training.
 e. Retainers to camp and all persons accompanying or
serving with the AFP in the field of war or when martial law is
declared.
f. All persons under sentence adjudged by a court-martial
or military tribunal.

Military jurisdiction over a person is terminated upon

discharge or separation from the service. However, jurisdiction of a
court-martial as to offense is not automatically terminated upon
discharge or separation in the following instances:

a. Cases of fraud or embezzlement.

b. Where a discharge or separation is obtained through
fraud, the discharge or separation may be canceled and individual
is arrested and returned to military control.
c. Where a soldier’s discharge or separation does not
interrupt his status as a “person subject to military law”.

When a person “subject to military law” commits or is

charged with a serious military offense, he/she shall be placed in
confinement or in arrest as circumstances may require. Arrest, in
the sense, means the taking into custody of someone by legal
authority. When charged with a minor offense only, such person
shall not ordinary be placed in confinement. Arrest or confinement
may be deferred until arraignment and failure to arrest or confine a
person does not affect the jurisdiction of court-martial.

The following classes of persons subject to military law shall

be placed in arrest and confinement as follows:

a. Enlisted person – by officers only in person, through

other persons subject to military law, or by oral written orders or
communication.
b. Officers, Probationary lieutenants, and cadets – by
Commanding Officers only a person, through other officers, or by
oral and written orders or communication. The authority to place
such persons under arrest confinement can be not be delegated.

Where any person subject to military law is placed under

arrest or confinement, immediate steps are taken either it prefers
charges against him with the view to bringing him to trial and carry
the case to a final conclusion, or dismiss the charges and
subsequently release him. But who may initiate or prefer the
charges against an erring military man? They are as follows:

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 a. Anybody – whether subjects to military law or into, may
give information to military authorities concerned that an offense is
supposedly committed by a person subject to military law.
b. Any person subject to military law may prefer charges
against a military offender although he is under arrest or
confinement. (In minor cases, however, the necessary information
is brought to the attention of the immediate Commanding Officer of
the accused).

Where no formal investigation is conducted, the charges are

referred to an investigating officer. This officer conducts the
investigation to determine whether a prima facie case exists. The
report of investigation is submitted to the Staff Judge Advocate
(SJA) for his study and/or advice.

If it is determined that no prima facie case exists to warrant

trial by court-martial, the case either dropped, or some other
appropriates action is taken.

On the other hand, where the SJA determines that there is

prima facie case, he recommends to the Commanding Officer
exercising court-martial jurisdiction to referral of the case to a
court-martial for prosecution. The action of a Commanding Officer
on a case disposable by operation of Article of War 105 shall be
discussed under a separate sub-topic of this chapter.

The Commanding Officer appoints a court-martial to try the

case. Once the trial is terminated and results in the conviction of
the accused, the sentence, as adjudged is ordered promulgate until
it is fully served. If, on the other hand, the trials end in the acquittal
of the accused, he is immediately ordered released from
confinement and restored to military duty.

3. Role of Courts-martial and other Tribunals

Courts-martial and other military tribunals generally exist to

assist commanders in the administration of military justice.
Specifically, they are established to enforce discipline in the
Military Establishment and to serve as deterrents to military crimes
and offense. And, by the very nature of the conduct of trial, these
courts-martial and other military tribunals hasten the
administration of military justice, let us look into the jurisdiction as
to person, offense, and punishments of each of the three (3) types
of court-martial to substantiate the contention just cited.

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 For instance, a general court-martial has jurisdiction over all
commissioned officers and other persons subject to military law
who commit an offense capital in nature and whose possible
sentence or punishment includes death, dismissal or dishonorable
discharge from the service, total forfeiture to pay and allowances,
or confinement at hard labor. In the Philippines Nay, a general
court-martial can impose the following: deprivation of liberty on
shore, solitary confinement not exceeding to thirty (30) days, and
solitary confinement on diminished rations not exceeding to thirty
(30) days. Thus, we can see that since officers are subject for trial
to a general court-martial, this thought alone construes a more
tedious legal process to serve the ends of justice. This
compounded by the nature of the offense and the punishment to be
meted out.

A special court-martial, on one hand, has the exclusive

jurisdiction to try all other persons subject to military law,
excepting officers, for offense not capital in nature and whose
probable sentence includes confinement not exceeding six (60
months, restriction to limits hard labor without confinement not
exceeding three (3) months, and reprimand, admonition, and
demotion in rank. The proceeding conducted are not as tedious as
those for a general court-martial.

An entirely different case would be the trial by a summary

court-martial where its proceeding is much faster than those of the
other types of court-martial. Since it has at least one (1) member
who seats as president, trial judge advocate (TJA), and defense
counsel (DC) at the same time, and since its jurisdiction as to
person, offense and punishment is limited, summary court-martial
can dispose of a certain case in most expeditious manner. A
summary court-martial can try private, private first class, and NCOs
below TSg for offenses not capital in nature. It can judgement as
follows: confinement from one (1) month, restriction to limits for
three (3) months, and for forfeiture or detention of 2/3 pay for one
(1) month.

Military commissions or tribunals play the same role as court-

martial. During martial law, which was in effect throughout the
country from 1972 to 1981, these commission or tribunals tried
cases referred to them in the same expeditious way. Even civilians
who committed offenses not subject for trial by the court-martial
fell under the jurisdiction of the special bodies whose proceedings
were in accordance with procedural law. Mention must be made
here that a Chinese national who was accused of drug pushing and
distribution was found guilty by a military commission and meted
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out the death penalty through musketry. These bodies had helped
in the faster dispensation of justice which would have taken years
to dispose of under normal conditions.

4. Punitive Articles of War

As gleaned from historical records, the Articles of War were

promulgated effective September 14, 1938 when the unicameral
Philippine National Assembly enacted Commonwealth Act. No. 408
which became the basic law that give the guidance in the
operations of the Country’s Armed Forces, then known as the Army
of the Philippines. Then as now, there are 120 Articles most of
which were lifted from the US Uniform Code of Military Justice. It is
for this reason that our Articles of War had the same substance as
the American Military Code of 1928 which was found applicable of
Philippine conditions.

Of the 120 Articles of War, 52 are considered as the punitive

because they specify that punishment is to be imposed for each
military offense committed. Articles of War 54 to 105, inclusive, are
the punitive articles. There are two (2) broad categories of crimes
or offenses included in the punitive articles of war and these are:

a. Crimes or offenses that are similarly within in the

contemplation of the Revised Penal Code of the Philippines.
b. Offenses that are strictly classified as purely military.

5. Article of War 105

This particular article of war empowers Commanding Officers

of units to punish personnel under them for minor offenses without
the intervention of a court-martial. This is the most expeditious way
of disposing minor cases without necessarily sacrificing the ends
of justice and military discipline.

Whether an offense is minor or serious one, its often a matter

of judgment on the part of Commanding Officers. In making
decisions pursuant to Article of War 105, Commanding Officer are
guided by the following factors: nature and circumstances
attendant to the offense, effect of the punishment on the unit as a
whole, and manner by which the offense is customarily punished in
the military. Now, let us go back into those factors that make an
offense as serious and not minor. The following are considered as
serious military offenses.

a. Offenses involving moral turpitude.

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 b. Offenses with specific or mandatory punishment based
on the punitive articles of war.
c. Crimes or offenses calling for the imposition of the
death penalty.
d. Other offenses where the judgment or sentence of
confinement in a penal institution is called for.

Under Article of War 105, Commanding Officers are

authorized to impose the following penalties under their broad
disciplinary powers.

a. Admonition
b. Reprimand
c. Suspension of privileges for a period not exceeding one
(1) week.
d. Extra fatigue not exceeding one (1) week.
e. Hard Labor without confinement not exceeding one (1)
week for privates and privates first class.
f. Any combination of the penalties just cited not
exceeding one (1) week.

These authorized punishments may be imposed only when

the offender does not demand trial by a court-martial. This is a
basic requirement to be met before any form of punishment can be
imposed. Once an accused demand trial by a court-martial, the
necessary charges are preferred for trial by a court-martial vested
with competent jurisdiction.