Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-30894 March 25, 1970

EDUARDO L. MARTELINO, CIRILO OROPESA, TEODORO FACELO,

RUPERTO AMISOTO, ALBERTO SOTECO, SOLFERINO TITONG, ET AL.,
petitioners,
vs.
JOSE ALEJANDRO, RUBEN S. MONTOYA, SIXTO R. ALHAMBRA,
AVELINO C. MENEZ, EFRAIN S. MACLANG, ET AL., respondents.

Amelito R. Mutuc for petitioners.

Colonel Manuel V. Reyes (Judge Advocate General, GSC), Major Samuel M.

Soriano (JAGS), Major Higinio E. Dacanay, Jr. (JAGS, PC) and Solicitor
General Felix V. Makasiar, Assistant Solicitor General Crispin V. Bautista,
Solicitor Jaime M. Lantin and Guillermo Nakar, Jr. for respondents.

CASTRO, J.:

This case presents another aspect of the court-martial proceedings against

the petitioner, Major Eduardo Martelino, alias Abdul Latif Martelino, of the
Armed Forces of the Philippines, and the officers and men under him, for
violation of the 94th and 97th Articles of War, as a result of the alleged
shooting on March 18, 1968 of some Muslim recruits then undergoing
commando training on the island of Corregidor. Once before the question was
raised before this Court whether the general court-martial, convened on April
6, 1968 to try the case against the petitioners, acquired jurisdiction over the
case despite the fact that earlier, on March 23, a complaint for frustrated
murder had been filed in the fiscal's office of Cavite City by Jibin Arula (who
claimed to have been wounded in the incident) against some of the herein
petitioners. The proceedings had to be suspended until the jurisdiction issue
could be decided. On June 23, 1969 this Court ruled in favor of the jurisdiction
of the military court.1

The jurisdiction question thus settled, attention once again shifted to the
general court-martial, but no sooner had the proceedings resumed than
another hitch developed. This came about as the petitioners, the accused in
the court-martial proceedings, in turn came to this Court, seeking relief
against certain orders of the general court-martial.

It appears that at the hearing on August 12, 1969 the petitioner Martelino
sought the disqualification of the President of the general court-martial,
following the latter's admission that he read newspaper stories of the
Corregidor incident. The petitioner contended that the case had received such
an amount of publicity in the press and other news media and in fact was
being exploited for political purposes in connection with the presidential
election on November 11, 1969 as to imperil his right to a fair trial. After
deliberating, the military court denied the challenge.

Thereafter the petitioners raised peremptory challenges against Col.

Alejandro, as president of the court-martial, and Col. Olfindo, Lt. Col.
Camagay, Lt. Col. Valones, Lt. Col. Blanco and Col. Malig, as members. With
regard to peremptory challenges it was the petitioners' position that for each
specification each accused was entitled to one such challenge. They later
changed their stand and adopted that of the trial judge advocate that "for each
specification jointly tried, all of the accused are entitled to only 1 peremptory
challenge; and that with respect to the specifications tried commonly, each
one of the accused is entitled to one peremptory challenge." They there
contended that they were entitled to a total of eleven peremptory challenges.
On the other hand the court-martial ruled that the accused were entitled to
only one peremptory challenge as the specifications were being jointly tried.

The petitioners therefore filed this petition for certiorari and prohibition, to
nullify the orders of the court-martial denying their challenges, both
peremptory and for cause. They allege that the adverse publicity given in the
mass media to the Corregidor incident, coupled with the fact that it became an
issue against the administration in the 1969 elections, was such as to unduly
influence the members of the court-martial. With respect to peremptory
challenges, they contend that they are entitled to eleven such challenges, one
for each specification.

On August 29, 1969 this Court gave due course to the petition, required the
respondents as members of the general court-martial to answer and, in the
meantime, restrained them from proceeding with the case.

In their answer the respondents assert that despite the publicity which the
case had received, no proof has been presented showing that the court-
martial's president's fairness and impartiality have been impaired. On the
contrary, they claim, the petitioner's own counsel expressed confidence in the
"integrity, experience and background" of the members of the court. As a
preliminary consideration, the respondents urge this Court to throw out the
petition on the ground that it has no power to review the proceedings of the
court-martial, "except for the purpose of ascertaining whether the military
court had jurisdiction of the person and subject matter, and whether, though
having such jurisdiction, it had exceeded its powers in the sentence
pronounced," and that at any rate the petitioners failed to exhaust remedies
available to them within the military justice system.

It is true that civil courts as a rule exercise no supervision or correcting power

over the proceedings of courts-martial, and that mere errors in their
proceedings are not open to consideration. "The single inquiry, the test, is
jurisdiction."2 But it is equally true that in the exercise of their undoubted
discretion, courts-martial may commit such an abuse of discretion — what in
the language of Rule 65 is referred to as "grave abuse of discretion" — as to
give rise to a defect in their jurisdiction.3 This is precisely the point at issue in
this action suggested by its nature as one for certiorari and prohibition,
namely, whether in overruling the petitioners' challenges, the general court-
martial committed such an abuse of discretion as to call for the exercise of the
corrective powers of this Court. It is thus obvious that no other way is open to
this Court by which it may avoid passing upon the constitutional issue thrust
upon it. Nor will the fact that there may be available remedies within the
system of military justice bar review considering that the questions raised are
questions of law.4

And so the threshold question is whether the publicity given to the case
against the petitioners was such as to prejudice their right to a fair trial. As
already stated, the petitioner Martelino challenged the court-martial president
on the ground that newspaper accounts of what had come to be referred to as
the "Corregidor massacre" might unduly influence the trial of their case. The
petitioner's counsel referred to a news item appearing in the July 29, 1969
issue of the Daily Mirror and cited other news reports to the effect that "coffins
are being prepared for the President (of the Philippines) in Jolo," that
according to Senator Aquino "massacre victims were given sea burial," and
that Senator Magsaysay, opposition Vice President candidate, had gone to
Corregidor and "found bullet shells." In addition the petitioners cite in this
Court a Manila Times editorial of August 26, 1969 which states that "The
Jabidah [code name of the training operations] issue was bound to come up in
the course of the election campaign. The opposition could not possibly ignore
an issue that is heavily loaded against the administration." The petitioners
argue that under the circumstances they could not expect a just and fair trial
and that, in overruling their challenge for cause based on this ground, the
general court-martial committed a grave abuse of discretion. In support of
their contention they invoke the rulings of the United States Supreme Court in
Irvin v. Dowd,5 Rideau vs. Louisiana,6 Estes v. Texas,7 and Shepard v.
Maxwell.8

An examination of the cases cited, however, will show that they are widely
disparate from this case in a fundamental sense. In Irvin, for instance, the
Supreme Court found that shortly after the petitioner's arrest in connection
with six murders committed in Vanderburgh County, Indiana, the prosecutor
and police officials issued press releases stating that the petitioner had
confessed to the six murders and that "a barrage of newspaper headlines
articles, cartoons and pictures was unleashed against him during the six or
seven months preceding his trial." In reversing his conviction, the Court said:

Here the "pattern of deep and bitter prejudice' shown to be present

throughout the community, ... was clearly reflected in the sum total of the voir
dire examination of a majority of the jurors finally placed in the jury box. Eight
out of the 12 thought petitioner was guilty. With such an opinion permeating
their minds, it would be difficult to say that each could exclude this
preconception of guilt from his deliberations. The influence that lurks in an
 opinion once formed is so persistent that it unconsciously fights detachment
from the processes of the average man. ... Where one's life is at stake — and
accounting for the frailties of human nature — we can only say that in the
light of the circumstances here the finding of impartiality does not meet the
constitutional standard.9

Irvin marks the first time a state conviction was struck down solely on the
ground of prejudicial publicity. 10 In the earlier case of Shepherd v. Florida, 11
which involved elements of publicity, the reversal of the conviction was based
solely on racial discrimination in the selection of the jury, although to
concurring Justice Jackson, who was joined by Justice Frankfurter, "It is hard
to imagine a more prejudicial influence than a press release by the officer of
the court charged with defendants' custody stating that they had confessed,
and here just such a statement unsworn to, unseen, uncross-examined and
uncontradicted, was conveyed by the press to the jury. 12

In Rideau, the petitioner, suspect in the robbery of a bank in Lake Charles,

Louisiana and in the kidnapping of three of its employees, and in the killing of
one of them, was similarly given "trial by publicity." Thus, the day after his
arrest, a moving picture film was taken of him in an "interview" with the sheriff.
The "interview," which lasted approximately 20 minutes, consisted of
interrogation by the sheriff and admission by Rideau that he had perpetrated
the bank robbery, kidnapping and murder. The interview was seen and heard
on television by 24,000 people. Two weeks later he was arraigned. His
lawyers promptly moved for a change of venue but their motion was denied
and Rideau was convicted and sentenced to death. Rideau's counsel had
requested that jurors be excused for cause, having exhausted all of their
peremptory challenges, but these challenges for cause had been denied by
the trial judge. In reversing his conviction, the Court said:

[W]e hold that it was a denial of due process of law to refuse the request for a
change of venue, after the people of Calcasieu Parish had been exposed
repeatedly and in depth to the spectacle of Rideau personally confessing in
detail to the crimes with which he was later to be charged. For anyone who
has ever watched television the conclusion cannot be avoided that this
spectacle, to the tens of thousands of people who saw and heard it, in a very
real sense was Rideau's trial — at which he pleaded guilty to murder. Any
subsequent court proceedings in a community so pervasively exposed to
such a spectacle could be but a hollow formality. 13

In the third case, Estes, the Court voided a televised criminal trial for being
inherently a denial of due process.

The state ... says that the use of television in the instant case was "without
injustice to the person immediately concerned," basing its position on the fact
that the petitioner has established no isolate prejudice and that this must be
shown in order to invalidate a conviction in these circumstances. The State
paints too broadly in this contention, for this Court itself has found instances
in which a showing of actual prejudice is not a prerequisite to reversal. This is
such a case. It is true that in most cases involving claims of due process
deprivations we require a showing of identifiable prejudice to the accused.
Nevertheless, at times a procedure employed by the State involves such a
probability that prejudice will result that it is inherently lacking in due process.
14
In Sheppard, the celebrated murder case of Sam Sheppard, who was
accused of the murder of his wife Marilyn, the Supreme Court observed a
"carnival atmosphere" in which "bedlam reigned at the courthouse ... and
newsmen took over practically the entire courtroom, hounding most of the
participants in the trial, especially Sheppard." It observed that "despite the
extent and nature of the publicity to which the jury was exposed during the
trial, the judge refused defense counsel's other requests that the jury be
asked whether they had read or heard specific prejudicial comment about the
case. ... In these circumstances, we assume that some of this material
reached members of the jury." The Court held:

From the cases coming here we note that unfair and prejudicial news
comment on pending trials has become increasingly prevalent. Due process
requires that the accused receive a trial by an impartial jury free from outside
influences. Given the pervasiveness of modern communications and the
difficulty of effacing prejudicial publicity from the minds of the jurors, the trial
courts must take strong measures to ensure that the balance is never
weighed against the accused. And appellate tribunals have the duty to make
an independent evaluation of the circumstances. Of course, there is nothing
that proscribes the press from reporting events that transpire in the
courtroom. But where there is a reasonable likelihood that prejudicial news
prior to trial will prevent a fair trial, the judge should continue the case until
the threat abates, or transfer it to another county not so permeated with
publicity. In addition sequestration of the jury was something the judge should
have sua sponte with counsel. If publicity during the proceeding threatens the
fairness of the trial, a new trial should be ordered. But we must remember
that reversals are but palliatives; the cure lies in those remedial measures
that will prevent the prejudice at its inception. The courts must take such
steps by rule and regulation that will protect their processes from prejudicial
outside interference. Neither prosecutors, counsel for defense, the accused,
witnesses, court staff nor enforcement officers coming under the jurisdiction
of the court should be permitted to frustrate its function. Collaboration
between counsel and the press as to information affecting the fairness of a
criminal trial is not only subject to regulation, but is highly censurable and
worthy of disciplinary measure. 15

In contrast the spate of publicity in this case before us did not focus on the
guilt of the petitioners but rather on the responsibility of the Government for
what was claimed to be a "massacre" of Muslim trainees. If there was a "trial
by newspaper" at all, it was not of the petitioners but of the Government.
Absent here is a showing of failure of the court-martial to protect the accused
from massive publicity encouraged by those connected with the conduct of
the trial 16 either by a failure to control the release of information or to remove
the trial to another venue or to postpone it until the deluge of prejudicial
publicity shall have subsided. Indeed we cannot say that the trial of the
petitioners was being held under circumstances which did not permit the
observance of those imperative decencies of procedure which have come to
be identified with due process.

At all events, even granting the existence of "massive" and "prejudicial"

publicity, since the petitioners here do not contend that the respondents have
been unduly influenced but simply that they might be by the "barrage" of
publicity, we think that the suspension of the court-martial proceedings has
accomplished the purpose sought by the petitioners' challenge for cause, by
postponing the trial of the petitioner until calmer times have returned. The
atmosphere has since been cleared and the publicity surrounding the
Corregidor incident has so far abated that we believe the trial may now be
resumed in tranquility.

II

Article of War 18 provides that "Each side shall be entitled to one peremptory
challenge, but the law member of the court shall not be challenged except for
cause." The general court-martial originally interpreted this provision to mean
that the entire defense was entitled to only one peremptory challenge.
Subsequently, on August 27, 1969, it changed its ruling and held that the
defense was entitled to eight peremptory challenges, but the petitioners
declined to exercise their right to challenge on the ground that this Court had
earlier restrained further proceedings in the court-martial.

It is the submission of the petitioners that "for every charge, each side may
exercise one peremptory challenge," and therefore because there are eleven
charges they are entitled to eleven separate peremptory challenges. The
respondents, upon the other hand, argue that "for each specification jointly
tried, all of the accused are entitled to only one peremptory challenge and that
with respect to specifications tried commonly each of the accused is entitled
to one peremptory challenge." Although there are actually a total of eleven
specifications against the petitioners, three of these should be considered as
merged with two other specifications, "since in fact they allege the same
offenses committed in conspiracy, thus leaving a balance of eight
specifications." The general court-martial thereof takes the position that all the
23 petitioners are entitled to a total of only eight peremptory challenges.

We thus inescapably confront, and therefore now address, the issue here
posed.

We are of the view that both the petitioners and the general court-martial
misapprehend the true meaning, intent and scope of Article of War 18. As will
hereinafter be demonstrated, each of the petitioners is entitled as a matter of
right to one peremptory challenge. The number of specifications and/or
charges, and whether the accused are being jointly tried or undergoing a
common trial, are of no moment.

In the early formative years of the infant Philippine Army, after the passage in
1935 of Commonwealth Act No. 1 (otherwise known as the National Defense
Act), except for a handful of Philippine Scout officers and graduates of the
United States military and naval academies who were on duty with the
Philippine Army, there was a complete dearth of officers learned in military
law, this aside from the fact that the officer corps of the developing army was
numerically inadequate for the demands of the strictly military aspects of the
national defense program. Because of these considerations it was then felt
that peremptory challenges should not in the meanwhile be permitted and that
only challenges for cause, in any number, would be allowed. Thus Article 18
of the Articles of War (Commonwealth Act No. 408), as worded on September
14, 1938, the date of the approval of the Act, made no mention or reference to
any peremptory challenge by either the trial judge advocate of a court-martial
or by the accused. After December 17, 1958, when the Manual for Courts-
Martial 17 of the Philippine Army became effective, the Judge Advocate
General's Service of the Philippine Army conducted a continuing and intensive
program of training and education in military law, encompassing the length
and breadth of the Philippines. This program was pursued until the outbreak
of World War II in the Pacific on December 7, 1941. After the formal surrender
of Japan to the allies in 1945, the officer corps of the Armed Forces of the
Philippines had expanded to a very large number, and a great many of the
officers had been indoctrinated in military law. It was in these environmental
circumstances that Article of War 18 was amended on June 12, 1948 to entitle
"each side" to one peremptory challenge, with the sole proviso that "the law
member of court shall not be challenged except for cause."

By its very inherent nature a peremptory challenge does not require any
reason or ground therefor to exist or to be stated. It may be used before,
during, or after challenges for cause, or against a member of the court-martial
unsuccessfully challenged for cause, or against a new member if not
previously utilized in the trial. A member challenged peremptorily is forthwith
excused from duty with the court-martial.

The right of challenge comes from the common law with the trial by jury itself,
and has always been held essential to the fairness of trial by jury. 18

As was said by Blackstone, and repeated by Mr. Justice Story: 'In criminal
cases, or at least in capital ones, there is in favorem vitae, allowed to the
prisoner an arbitrary and capricious species of challenge to a certain number
of jurors, without showing any cause at all, which is called a peremptory
challenge; a provision full of that tenderness and humanity to prisoners, for
which our English laws are justly famous. This is grounded on two reasons:
1) As every one must be sensible, what sudden impression and
unaccountable prejudices we are apt to conceive upon the bare looks and
gestures of another; and how necessary it is that a prisoner (when put to
defend his life) should have a good opinion of his jury, the want of which
might totally disconcert him; the law has conceived a prejudice even without
being able to assign a reason for his dislike. 2) Because, upon challenges for
cause shown, if the reason assigned prove insufficient to set aside the juror,
perhaps the bare questioning his indifference may sometimes provoke a
resentment, to prevent all ill consequences from which, the prisoner is still at
liberty, if he pleases, peremptorily to set him aside.' 19

The right to challenge is in quintessence the right to reject, not to select. If

from the officers who remain an impartial military court is obtained, the
constitutional right of the accused to a fair trial is maintained. ... 20

As we have hereinbefore stated, each of the 23 petitioners (accused before

the general court-martial) is entitled to one peremptory challenge, 21
irrespective of the number of specifications and/or charges and regardless of
whether they are tried jointly or in common. Three overriding reasons compel
us to this conclusion.
First, a peremptory challenge is afforded to an accused who, whether rightly
or wrongly, honestly feels that the member of the court peremptorily
challenged by him cannot sit in judgment over him, impartially. Every accused
person is entitled to a fair trial. It is not enough that objectively the members of
the court may be fair and impartial. It is likewise necessary that subjectively
the accused must feel that he is being tried by a fair and impartial body of
officers. Because the petitioners may entertain grave doubts as to the fairness
or impartiality of distinct, separate and different individual members of the
court-martial, it follows necessarily that each of the accused is entitled to one
peremptory challenge.

Second, Article of War 18 does not distinguish between common trials and
joint trials, nor does it make the nature or number of specifications and/or
charges a determinant. Reference is made by the respondents here to US
military law, in support of their argument that for each specification jointly tried
all of the accused are entitled to only one peremptory challenge and with
respect to all specifications tried in common each of the accused is entitled to
one peremptory challenge. We have carefully scrutinized U.S. military law,
and it is unmistakable from our reading thereof that each accused person,
whether in a joint or common trial, unquestionably enjoys the right to one
peremptory challenge. 22

Third, a perceptive analysis of the companion articles 23 to Article 18

convinces us that the word, "each side," as used in the said article in
reference to the defense, should be construed to mean each accused person.
Thus, Articles of War 17 (Trial Judge Advocate to Prosecute; Counsel to
Defend), 19 (Oath), 21 (Refusal or Failure to Plead), 28 (Court to Announce
Action), 29 (Closed Sessions), 30 (Method of Voting), and 36 (Irregularities —
Effect of), unequivocally speak of and refer to the "accused" in the singular.

ACCORDINGLY, subject to our pronouncement that each of the 23 petitioners

is entitled to one separate peremptory challenge, the present petition is
denied. The temporary restraining order issued by this Court on August 29,
1969 is hereby lifted. No pronouncement as to costs. .

Concepcion, C.J., Reyes, J.B.L., Makalintal, Zaldivar, Fernando, Teehankee,

Barredo and Villamor, JJ., concur.

Dizon, J., took no part.