part 1

MILITARY JUSTICE SYSTEM

History/Rationale for Military Law

In PHILIPPINES, Courts-martial were established by the Revolutionary

Army of 1896 to enforce discipline. This system was adopted from the Spanish court-
martial system, which was of European origin.

Philippine Military Code

- Commonwealth Act No 408, the first military law enacted by the National
Assembly of the Philippines, approved on Sept 14, 1938, consists of one hundred
and twenty (120) articles and is the counterpart of American Code of 1928;

- Executive Order No 178, to implement the Commonwealth Act No 408 was

promulgated on Dec 17, 1938, it prescribes the rules of procedures including modes of
proof in cases before the courts-martial, courts of inquiry, military commissions, and
other military tribunals in the Army of the Philippines;

- At present, the Commonwealth Act No 408 as recently amended by RA No

242 and further amended by RA No 516, is still the organic law of the Armed Forces of
the Philippines.

Persons Subject to Military Law

The following persons are subject to these articles and shall be understood as
included in the term “ any person subject to military Law” or “persons subject to
military law”, whenever used in these articles:

a. All Officers and soldiers in the active service of the Armed Forces of the
Philippines; all members of the reserve force, from the dates of their call to active
duty and while on such active duty; all trainees undergoing military instructions;
and all other persons lawfully called, drafted, or ordered into, or to duty or for
training in, the said service, from the dates they are required by the terms of the call,
draft or order to obey the same;

b. Cadets, flying cadets, and probationary second lieutenants;

c. All retainers to the camp and all persons accompanying or serving with the
Armed Forces of the Philippines in the field in time of war or when martial law is
declared though not otherwise subject to these articles;

d. All persons under sentence adjudged by courts-martial.

* Offenses committed prior to entry into service
* Separation from service
* Expiration of term of service
* Officer dropped from rolls
* Dishonorable discharge does not relate to any particular contract
* Dishonorably discharged general prisoner still in confinement amenable
to trial by Court-Martial
* Retention in the Service of Reserve Officers for purpose of Court-
Martial.
* Military prisoner under cumulative sentences

Classification of Courts-Martial and Its General Application

I. General Courts- Martial

II. Special Courts-Martial

III. Summary Courts Martial

• Court-Martial an instrumentality of the Executive Power

• Court-Martial a court of law
• Court-Martial strictly a criminal court

General Courts Martial

* has the power to try any person subject to military law for any crime or offenses
made punishable by Articles of War and any person who by law of war is subject to
trial by military tribunals;

* has the power to adjudge any punishment authorized by law or the customs of the
service, including a bad conduct discharge, and that in Philippine Navy, general
courts-martial may impose deprivation of liberty on shore as a punishment and in
imposing a sentence of confinement may include in the sentence solitary
confinement not exceeding 30 days or solitary confinement not exceeding 30 days or
solitary confinement on diminished ratios not exceeding 30 days.

Special Courts Martial

* has the power to try any person subject to military law for any crime or offenses
not capital made punishable by Articles of War;

* shall not have the power to adjudge dishonorable discharge or dismissal or

confinement in excess of 6 months, nor to adjudge forfeiture of more than 2/3 pay per
month for a period not exceeding 6 months;
Special Courts Martial

* has the power to adjudge a bad conduct discharge in addition to any other
authorized punishment provided that a bad conduct discharge shall not be adjudged
by special court-martial unless a complete record of the proceedings of and testimony
admitted by the court is taken in the case and provided further that in the
Philippine Navy, special courts-martial may also impose deprivation of liberty on shore
as a punishment and in imposing a sentence of confinement may include in the sentence
solitary confinement not exceeding 30 days, or solitary confinement on diminished
rations not exceeding 30 days.

Summary Courts Martial

* has the power to try any person subject to military law, except an officer, a cadet,
a flying cadet or probationary second lieutenant, for any crime or offense not capital
made punishable by Art of War;

* Provided, that con-commissioned officers shall not, if they object thereto, be

brought to trial before a summary courts-martial without the authority of the officer
competent to bring them to trial
before a special court-martial;

* shall not have the power to adjudge confinement in excess of 1 month, restriction to
limits for more than 3 months or forfeiture or detention of more than 2/3 of one month’s
pay. Provided, that a punishment and in imposing a sentence of confinement may
include in the sentence solitary confinement not exceeding 15 days, or solitary
confinement on diminished rations not exceeding 15 days.

Who may serve on Court-Martial?

* All Officers in active duty in the AFP;

* Enlisted Personnel in the active military service of the AFP shall be competent to serve
in General and Special courts-martial for the trial of the enlisted personnel or trainees
when requested in writing by the accused at any time prior to the convening of the court
and in no case, the number of enlisted men detailed exceed one-third of the total
membership of the court;

* Probationary Officer not competent to serve on courts-martial;

* Cadet not eligible to sit in Court Martial.

Qualifications of members of the Court-Martial

In the opinion of the appointing authority, to wit:

1. Best qualified by reason of age,

2. Training,
3. Experience,
4. Judicial temperament,
5. Less than 2 years in service shall not, if it can be avoided without manifest
injury to the service, be appointed as members of court-martial in excess of the minority
membership thereof.
6. Must not be an accuser or witness for either parties.
7. Must not previously a member of the court,
8. Must not be suspended from rank.

Composition of the Different Types of Courts-Martial

General Courts-Martial

* consist of any number not less than five

* appointed by the President, the Chief of Staff of the Armed Forces of the Philippines,
and when empowered by the President, the Commanding Officer of a division, the
Commanding Officer of a military area, the Superintendent of the Military Academy,
the Commanding Officer of a separate brigade or body of troops;
* the authority appointing a GCM shall detail as one of the members thereto a member
of the BAR called LAW MEMBER, who shall be an officer of JAGS or of some
other branch of the service who is a member of the BAR and certified by the Judge
Advocate General;

General Courts-Martial

* No GCM shall receive evidence or vote upon its findings or sentence in the absence of
the LAW MEMBER;

* Senior in rank among the members present is the

PRESIDENT/PRESIDING OFFICER of the court. He maintains order, gives direction
necessary for the regular and proper conduct of the proceedings, and takes
proper steps to expedite the trial of all charges referred for trial.

Special Courts-Martial

* consists of any number of members not less than three (3);

* appointed by the Commanding Officer of the Major Command, task force, military
area, or division and when empowered by the President, the Commanding
Officer of a garrison, fort, camp, brigade, regiment, detached battalion or
squadron, or other detached command, or place, zone or commissioned vessel where
troops are on duty;
* any authority who can appoint GCM can also appoint a SCM.

Summary Courts-Martial

* consists of only one officer;

* appointed by the Commanding Officer of a garrison, fort, camp, or other place,
where troops are on duty, and the Commanding Officer of a regiment,
commissioned vessel, detached battalion, detached company, or other detachment;
* may in any case be appointed by superior authority when it is deemed desirable.

Other Members of the GCM and SCM

1. Trial Judge Advocate - primary duty is to prosecute in the name of the people of the
Phil and shall prepare the records of the proceedings;

2. Asst Trial Judge Advocate - perform any duty devolved by law, regulations or the
custom of the service upon the trial judge advocate of the court;

3. Defense Counsel - guard the interests of the accused by all honorable and
legitimate means known to the law, undertake the defense, and represent accused, in the
absence of his counsel of his own choice. Defense Counsel, if the accused desires, act as
his associate counsel;

4. Asst Defense Counsel - perform any duty devolved by law, regulations, or the
custom of the service upon counsel for the accused;
Part 2

MILITARY LAW AND JUSTICE SYSTEM

OVERVIEW

I. History/Rationale for Military Law

II. Military Laws:

British Military Code
American Military Code
Philippine Military Code

III. Persons Subject to Military Law

VI. Classification of Courts-Martial and its General Application

V. Composition of Different Types of Courts-Martial

VI. ARTICLE OF WAR

I - HISTORY

History points out the fact that nations have been engaged in wars. With this,
odies of men have been organized into Armed Forces under a Commander in
Chief, who enforces highest form of discipline to ensure military efficiency.

In ROMAN EMPIRE, Justice was administered by magistri militum and

legionary tribunes, either as sole judges or with the assistance of councils

In EARLY GERMANS, in time of peace, judicial proceedings were conducted by

the Counts assisted by Assemblages of freemen and in time of war by the Duke or
Military Chief, who usually delegates his jurisdiction to the priest who
accompanied the army.

In FRANCE, Courts-martial were first established by an Ordinance of 1955.

Persons subject to French Military were under the jurisdiction of Mayor of
the Palace, the Grand Seneschal (officer in the household of medieval prince),
the Constable and Provost Marshall. Anglo- Norman system of administration
of justice was adopted.

In PHILIPPINES, Courts-martial were established by the Revolutionary

Army of 1896 to enforce discipline. This system was adopted from the Spanish
court-martial system, which was of European origin.
II - MILITARY LAWS

British Military Code

- military law existed in actual war during early periods;

- Articles of War in the form of Military Orders or Directions

were issued to the army during war or during an expedition;

- Military law in time of peace existed thru the passing of the First Mutiny
Act of 1689;

- First Mutiny Act had a peculiar trait in that its operation was
limited to a term of about seven months. It was then renewed and the renewal
became annual obligation for the British Parliament;

- These annual enactment, later became so enlarged as to embrace about one

hundred sections in 1878;

- The Act together with the Articles of War formed the body of
the British Military Code.
American Military Code

- Provisional Congress of Massachusetts Bay adopted its Articles of

War on April 5, 1775 then similar articles were adopted by the Provincial
Assemblies of Connecticut and Rhode Island and Congress of New Hampshire;

- Second Continental Congress in its session on June 14,1775 resolved that

a military force be raised to Boston. Congress then appointed a committee to
prepare rules and regulations for the government of the army. On June 30, 1775,
the first American Articles of War-Code of 1775- was enacted;

- On Sept 20, 1776, the Code of 1776 was enacted which superseded the
Articles of 1775. It was modified to adopt the new form of government under the
New Constitution designated as the Code of 1806;

Philippine Military Code

- Commonwealth Act No 408, the first military law enacted by the National
Assembly of the Philippines, approved on Sept 14, 1938, consists of one
hundred and twenty (120) articles and is the counterpart of American Code of
1928;

- Executive Order No 178, to implement the Commonwealth Act No 408

was promulgated on Dec 17, 1938, it prescribes the rules of procedures including
modes of proof in cases before the courts-martial, courts of inquiry, military
commissions, and other military tribunals in the Army of the Philippines ;

- At present, the Commonwealth Act No 408 as recently amended by

RA No 242 and further amended by RA No 516, is still the organic law of the Armed
Forces of the Philippines.

III - PERSON SUBJECT TO MILITARY LAW

The following persons are subject to these articles and shall be understood as
included in the term “ any person subject to military law” or “persons subject to
military law”, whenever used in these articles:

a. All Officers and soldiers in the active service of the Armed Forces of
the Philippines; all members of the reserve force, from the dates of their call to
active duty and while on such active duty; all trainees undergoing military
instructions; and all other persons lawfully called, drafted, or ordered into, or
to duty or for training in, the said service, from the dates they are required by the
terms of the call, draft or order to obey the same;

b. Cadets, flying cadets, and probationary second lieutenants;

c. All retainers to the camp and all persons accompanying or serving with
the Armed Forces of the Philippines in the field in time of war or when martial law
is declared though not otherwise subject to these articles;

d. All persons under sentence adjudged by courts-martial.

* Offenses committed prior to entry into service

* Separation from service
* Expiration of term of service
* Officer dropped from rolls
* Dishonorable discharge does not relate to any particular contract
* Dishonorably discharged general prisoner still in
confinement amenable to trial by Court-Martial
* Retention in the Service of Reserve Officers for purpose of Court-
Martial
* Military prisoner under cumulative sentences

VI. Classification of Courts-Martial and its General Application

I. General Courts- Martial

- has the power to try any person subject to military law for any crime or
offenses made punishable by Articles of War and any person who by law of war is
subject to trial by military tribunals;
- has the power to adjudge any punishment authorized by law or the customs of
the service, including a bad conduct discharge, and that in Philippine Navy,
general courts-martial may impose deprivation of liberty on shore as a
punishment and in imposing a sentence of confinement may include in the
sentence solitary confinement not exceeding 30 days or solitary confinement not
exceeding 30 days or solitary confinement on diminished ratios not exceeding 30
days.

II. Special Courts-Martial

- has the power to try any person subject to military law for any crime or
offenses not capital made punishable by Articles of War;

- shall not have the power to adjudge dishonorable discharge or dismissal or

confinement in excess of 6 months, nor to adjudge forfeiture of more than 2/3 pay
per month for a period not exceeding 6 months;

- has the power to adjudge a bad conduct discharge in addition to any other
authorized punishment provided that a bad conduct discharge shall not be
adjudged by special court-martial unless a complete record of the proceedings of
and testimony admitted by the court is taken in the case and provided further
that in the Philippine Navy, special courts-martial may also impose deprivation
of liberty on shore as a punishment and in imposing a sentence of confinement
may include in the sentence solitary confinement not exceeding 30 days, or solitary
confinement on diminished rations not exceeding 30 days.

III. Summary Courts Martial

- has the power to try any person subject to military law, except an officer, a
cadet, a flying cadet or probationary second lieutenant, for any crime or offense not
capital made punishable by Art of War;

- Provided, that con-commissioned officers shall not, if they object thereto, be

brought to trial before a summary courts-martial without the authority of the
officer competent to bring them to trial before a special court-martial;

- shall not have the power to adjudge confinement in excess of 1 mo, restriction to
limits for more than 3 months or forfeiture or detention of more than 2/3 of one
month’s pay. Provided, that a punishment and in imposing a sentence of
confinement may include in the sentence solitary confinement not exceeding 15
days, or solitary confinement on diminished rations not exceeding 15 days.

• Court-Martial an instrumentality of the Executive Power

• Court-Martial a court of law
• Court-Martial strictly a criminal court

V. Composition of Different Types of Courts-Martial

Who may serve on Court-Martial?

- All Officers in active duty in the AFP;

- Enlisted Personnel in the active military service of the AFP shall be competent to
serve in General and Special courts-martial for the trial of the enlisted personnel
or trainees when requested in writing by the accused at any time prior to the
convening of the court and in no case, the number of enlisted men detailed exceed
one-third of the total membership of the court;

- Probationary Officer not competent to serve on courts-martial;

- Cadet not eligible to sit in Court Martial.

Qualifications of members of the Court-Martial

In the opinion of the appointing authority, to wit:

1. Best qualified by reason of age,

2. Training,
3. Experience,
4. Judicial temperament,
5. Less than 2 years in service shall not, if it can be avoided without manifest
injury to the service, be appointed as members of court-martial in excess of the
minority membership thereof,
6. Must not be an accuser or witness for either parties,
7. Must not previously a member of the court,
8. Must not be suspended from rank.

A. General Courts-Martial

- consist of any number not less than five

- appointed by the President, the Chief of Staff of the Armed Forces of the
Philippines, and when empowered by the President, the Commanding Officer of
a division, the Commanding Officer of a military area, the Superintendent of
the Military Academy, the Commanding Officer of a separate brigade or body of
troops;
- the authority appointing a GCM shall detail as one of the members thereto a
member of the BAR called LAW MEMBER, who shall be an officer of JAGS or
of some other branch of the service who is a member of the BAR and certified by
the Judge Advocate General;

- no GCM shall receive evidence or vote upon its findings or sentence in the
absence of the LAW MEMBER;

- Senior in rank among the members present is the

PRESIDENT/PRESIDING OFFICER of the court. He maintains order, gives
direction necessary for the regular and proper conduct of the proceedings,
takes proper steps to expedite the trial of all charges referred for trial.

B. Special Courts-Martial

- consists of any number of members not less than three (3);

- appointed by the Commanding Officer of the Major Command, task force,

military area, or division and when empowered by the President, the
Commanding Officer of a garrison, fort, camp, brigade, regiment, detached
battalion or squadron, or other detached command, or place, zone or
commissioned vessel where troops are on duty;

- any authority who can appoint GCM can also appoint a SCM.

C. Summary Courts-Martial

- consists of only one officer;

- appointed by the Commanding Officer of a garrison, fort, camp, or other

place, where troops are on duty, and the Commanding Officer of a regiment,
commissioned vessel, detached battalion, detached company, or other detachment;

- may in any case be appointed by superior authority when it is deemed desirable.

Other Members of the GCM and SCM

1. Trial Judge Advocate - primary duty is to prosecute in the name of the people of
the Phil and shall prepare the records of the proceedings;

2. Asst Trial Judge Advocate - perform any duty devolved by law,

regulations or the custom of the service upon the trial judge advocate of the
court;
3. Defense Counsel - guard the interests of the accused by all honorable and
legitimate means known to the law, undertake the defense, and represent the
accused, in the absence of his counsel of his own choice,

- in the presence of the accused’s counsel, Defense

Counsel, if the accused desires, act as his associate counsel;

4. Asst Defense Counsel - perform any duty devolved by law, regulations, or

the custom of the service upon counsel for the accused;

5. Reporter - serve as stenographer, shall record the proceedings of and testimony

taken before such court;

6. Interpreter - serve as translator, shall translate questions and answers given to

him;

7. Clerk and Orderlies - assists the trial judge advocate and counsel for the accused

VI. ARTICLE OF WAR (TITLE III – PUNITIVE ARTICLES)

A. ENLISTMENT; MUSTER; RETURNS

ART. 54 - Fraudulent Enlistment

ART. 55 - Officer Making Unlawful Enlistment
ART. 56 - False Muster
ART. 57 - False Return – Ommission to Render returns

B. DESERTION; ABSENCE WITHOUT LEAVE

ART. 58 - Certain Acts to Constitute Desertion

ART. 59 - Desertion
ART. 60 - Advising or Aiding Another to Desert
ART. 61 - Entertaining a Deserter
ART. 62 - Absence Without Leave

C. DISRESPECT; INSUBORDINATION; MUTINY

ART. 63 - Disrespect Toward the President, Vice President,

Congress of
the Philippines, or Secretary of National Defense
ART. 64 - Disrespect Toward Superior Officer
ART. 65 - Assaulting or Willfully Disobeying Superior Officer
ART. 66 - Insubordinate Conduct Toward Non- Commissioned
Officer
ART. 67 - Mutiny or Sedition
ART. 68 - Failure to Suppress Mutiny or Sedition
ART. 69 - Quarrels, Fights, Frays and Disorders

D. ARREST; CONFINEMENT

ART. 70 - Arrest or Confinement

ART. 71 - Charges, or Action upon
ART. 72 - Refusal to Receive and Keep Prisoners
ART. 73 - Report of Prisoner Received
ART. 74 - Releasing Prisoner without Proper Authority
ART. 75 - Delivery of Offenders to Civil Authority

E. WAR OFFENCES

ART. 76 - Misbehavior Before the Enemy

ART. 77 - Subordinate Compelling Commander to Surrender
ART. 78 - Improper use of countersigns
ART. 79 - Forcing a Safeguard
ART. 80 - Captured property to be secured for Public Service
ART. 81 - Dealing in Captured or abandoned property
ART. 82 - Relieving, Corresponding of With, or Aiding the Enemy
ART. 83 - Spies

F. MISCELLANEOUS CRIME AND OFFENCES

ART. 84 - Military Property – Willful or Negligent Loss, or Damage

of Wrongful Disposition
ART. 85 - Waste or Unlawful Disposition of Military Property
Issued to
Soldiers
ART. 86 - Drunk on Duty
ART. 87 - Misbehavior of Sentinel
ART. 88 - Personal Interest on Sale Provisions
ART. 88 - Awfully Influencing Action of Court
ART. 89 - Intimidating of Persons Bringing Provision
ART. 90 - Good Order to or Maintained and Wrong Redressed
ART. 91 - Provoking Speeches or Gestures
ART. 92 - Dueling
ART. 94 - Various Crimes
ART. 95 - Frauds against the Government
ART. 96 - Conduct Unbecoming an Officer and Gentleman
ART. 97 - General Article
ART. 105 - Disciplinary Power of Commanding Officer