[ G.R. No. L-54. September 27, 1945 ] 75 Phil. 225
[ G.R. No. L-54. September 27, 1945 ]
FRANCISCO REYES, PETITIONER, VS. MAJOR JUAN CRISOLOGO, PROVOST MARSHAL, MILITARY POLICE, PHILIPPINE ARMY, RESPONDENT. D E C I S I O N
PARAS, J.:
Francisco Reyes has instituted this original petition, praying for the issuance of the writ of habeas corpus on the alleged ground that, without having been charged with or convicted of any offense whatsoever, the said Francisco Reyes, who is a civilian and, therefore, beyond military jurisdiction, has been detained and imprisoned by the Provost Marshal of the Military Police, Philippine Army, at Camp Murphy, since August 30, 1945, and that the said Provost Marshal, notwithstanding the representations properly made by or on behalf of the said Francisco Reyes, has refused and still refuses to release the latter from such detention and imprisonment.
The respondent Provost Marshal, in his return, alleges that since August 31, 1945, or thereabouts, the petitioner, a first sergeant of the Philippine Army, has been committed to his custody upon a charge of desertion, in that the “said Francisco Reyes, while assigned to ‘K’ Company, 3rd Bn, 41st Infantry, 41st Division, deserted the service of the Philippine Army at Matabang, Abucay, Bataan, on or about the 31st day of December, 1941, and remained absent in desertion until he was apprehended on or about August 31, 1945.”
On the other hand, the petitioner alleges that “he was properly discharged by his Commanding Officer on or about December 10, 1941, by virtue of an order to that effect dated about the 2nd of November, 1941, from Philippine Army Headquarters in Manila.”
The decisive question that presents itself under the averments of the parties, is whether the petitioner had been discharged, as claimed by him, or is still a member of the Philippine Army, as contended by the respondent. We are of the opinion that said question, which is one of fact, should be raised before, and can better be determined by, the proper military court which, under the Articles of War (Commonwealth Act No. 408), has unquestionable jurisdiction over the serious military offense of desertion. Indeed, we cannot decide said factual issue without necessarily, touching the merits of the case for desertion, the claim that the petitioner had been discharged being a matter of defense. Even so, we shall presently make reference to certain details just to demonstrate that no prima facie case—which the petitioner is bound to show—has been established so as to even suggest that the military court has no jurisdiction or that petitioner’s confinement is illegal for lack of due process. It is admitted that, notwithstanding the alleged discharge, the petitioner had remained with the Philippine forces in Bataan twenty-one days thereafter. According to Article of War 109, no enlisted man shall be discharged from the military service before his term has expired, except by order of the President, the Chief of Staff, or by sentence of a general court martial; and there is absolutely no documentary evidence in the record indicating that this requirement had been complied with. Upon the other hand, it is noteworthy that Article of War 71 provides, among other things, that “no charge will be referred for trial until after a thorough and impartial investigation thereof shall hav.e been made,” and we have every reason to believe that the investigation had been convinced as to the sufficiency of the facts warranting at least the formulation and reference of the charge of desertion.
In this connection, it is likewise noteworthy that the military authorities had in this case strictly complied with the provisions of said Article of War 71 by taking the following steps: On July 26, 1945, an investigation was ordered. This was followed by the corresponding report submitted on August 11, 1945. On August 24, 1945, the Judge Advocate recommended that charges be filed. On August 31, 1945, the petitioner was apprehended. Soon thereafter, or on September 2, 1945, the Adjutant General ordered the filing of formal charges. A report was submitted to the Chief of Staff on September 8, 1945. The next day, September 9, 1945, formal charges were signed under oath by Lt. A. de la Cruz.
In view whereof, it cannot be seriously contended that the arrest and confinement of the petitioner are without any due process of law. But it is insisted on behalf of the petitioner that the presentation of the charge of desertion against him has been or is being unreasonably delayed to the detriment of his legal and constitutional rights. It is true that, under Article of War 71, charges against a person held for a trial by a general court martial should be forwarded within eight days, if practicable, after his arrest or confinement; but considering the explanation given by the respondent at the hearing of this case, we are not prepared to rule that there was such a delay as to make the detention and confinement of the petitioner illegal, specially in view of the uncontradicted circumstance that many officers or persons having knowledge of the charge are stationed in different parts of th,e Islands and that there, are actually numerous cases pending investigation by the Army authorities. While this Court will not hesitate to grant without fear or favor, in clear cases of illegal confinement, the writ of habeas corpus, it will be cautious and slow in interfering with the official acts of another agency of the government in the absence of a showing that they are patently violative of the law or the Constitution, It is undoubtedly to forestall unavoidable situations that the requirement in said Article of War 71 is not absolute, and should be fulfilled only “if practicable.” Moreover, if any one is in fact guilty of negligence or omission resulting in the alleged delay, he may be held accountable therefor also under Article of War 71.
Upon the whole, we are constrained to hold that the petition is without merit. The same will therefore be, as it is hereby, denied without special pronouncement as to costs. So ordered.
Moran, C, J., Jaranilla, De Joya, Pablo, and Hilado, JJ., concur.