On 26 August 2006, a mass grave was discovered by elements of the 43^rd Infantry Brigade of the Philippine Army at Sitio Sapang Daco, Barangay Kaulisihan, Inopacan, Leyte.^[1] The mass grave contained skeletal remains of individuals believed to be victims of "Operation Venereal Disease" (Operation VD) launched by members of the Communist Party of the Philippines/New People's Army/National Democratic Front of the Philippines (CPP/NPA/NDFP) to purge their ranks of suspected military informers.

While the doctrine of hierarchy of courts normally precludes a direct invocation of this Court's jurisdiction, we take cognizance of these petitions considering that petitioners have chosen to take recourse directly before us and that the cases are of significant national interest.

Petitioners have raised several issues, but most are too insubstantial to require consideration. Accordingly, in the exercise of sound judicial discretion and economy, this Court will pass primarily upon the following:

1. Whether petitioners were denied due process during preliminary investigation and in the issuance of the warrants of arrest.
   
   
2. Whether the murder charges against petitioners should be dismissed under the political offense doctrine.
   

These are petitions for certiorari and prohibition^[2] seeking the annulment of the orders and resolutions of public respondents with regard to the indictment and issuance of warrants of arrest against petitioners for the crime of multiple murder.

Police Chief Inspector George L. Almaden (P C/Insp. Almaden) of the Philippine National Police (PNP) Regional Office 8 and Staff Judge Advocate Captain Allan Tiu (Army Captain Tiu) of the 8^th Infantry Division of the Philippine Army sent 12 undated letters to the Provincial Prosecutor of Leyte through Assistant Provincial Prosecutor Rosulo U. Vivero (Prosecutor Vivero).^[3] The letters requested appropriate legal action on 12 complaint-affidavits attached therewith accusing 71 named members of the Communist Party of the Philippines/New People's Army/National Democratic Front of the Philippines (CPP/NPA/NDFP) of murder, including petitioners herein along with several other unnamed members.

The letters narrated that on 26 August 2006, elements of the 43^rd Infantry Brigade of the Philippine Army discovered a mass grave site of the CPP/NPA/NDFP at Sitio Sapang Daco, Barangay Kaulisihan, Inopacan, Leyte.^[4] Recovered from the grave site were 67 severely deteriorated skeletal remains believed to be victims of Operation VD.^[5]

The PNP Scene of the Crime Operation (SOCO) Team based in Regional Office 8 was immediately dispatched to the mass grave site to conduct crime investigation, and to collect, preserve and analyze the skeletal remains.^[6] Also, from 11-17 September 2006, an investigation team composed of intelligence officers, and medico-legal and DNA experts, conducted forensic crime analysis and collected from alleged relatives of the victims DNA samples for matching.^[7]

The Initial Specialist Report^[8] dated 18 September 2006 issued by the PNP Crime Laboratory in Camp Crame, Quezon City, was inconclusive with regard to the identities of the skeletal remains and even the length of time that they had been buried. The report recommended the conduct of further tests to confirm the identities of the remains and the time window of death.^[9]

However, in a Special Report^[10] dated 2 October 2006, the Case Secretariat of the Regional and National Inter-Agency Legal Action Group (IALAG) came up with the names of ten (10) possible victims after comparison and examination based on testimonies of relatives and witnesses.^[11]

The 12 complaint-affidavits were from relatives of the alleged victims of Operation VD. All of them swore that their relatives had been abducted or last seen with members of the CPP/NPA/NDFP and were never seen again. They also expressed belief that their relatives' remains were among those discovered at the mass grave site.

Also attached to the letters were the affidavits of Zacarias Piedad,^[12] Leonardo C. Tanaid, Floro M. Tanaid, Numeriano Beringuel, Glecerio Roluna and Veronica P. Tabara. They narrated that they were former members of the CPP/NPA/NDFP.^[13] According to them, Operation VD was ordered in 1985 by the CPP/NPA/NDFP Central Committee.^[14] Allegedly, petitioners Saturnino C. Ocampo (Ocampo),^[15] Randall B. Echanis (Echanis),^[16] Rafael G. Baylosis (Baylosis),^[17] and Vicente P. Ladlad (Ladlad)^[18] were then members of the Central Committee.

According to these former members, four sub-groups were formed to implement Operation VD, namely, (1) the Intel Group responsible for gathering information on suspected military spies and civilians who would not support the movement; (2) the Arresting Group charged with their arrests; (3) the Investigation Group which would subject those arrested to questioning; and (4) the Execution Group or the "cleaners" of those confirmed to be military spies and civilians who would not support the movement.^[19]

From 1985 to 1992, at least 100 people had been abducted, hog-tied, tortured and executed by members of the CPP/NPA/NDFP^[20] pursuant to Operation VD.^[21]

On the basis of the 12 letters and their attachments, Prosecutor Vivero issued a subpoena requiring, among others, petitioners to submit their counter-affidavits and those of their witnesses.^[22] Petitioner Ocampo submitted his counter-affidavit.^[23] Petitioners Echanis^[24] and Baylosis^[25] did not file counter-affidavits because they were allegedly not served the copy of the complaint and the attached documents or evidence. Counsel of petitioner Ladlad made a formal entry of appearance on 8 December 2006 during the preliminary investigation.^[26] However, petitioner Ladlad did not file a counter-affidavit because he was allegedly not served a subpoena.^[27]

In a Resolution^[28] dated 16 February 2007, Prosecutor Vivero recommended the filing of an Information for 15 counts of multiple murder against 54 named members of the CPP/NPA/NDFP, including petitioners herein, for the death of the following: 1) Juanita Aviola, 2) Concepcion Aragon, 3) Gregorio Eras, 4) Teodoro Recones, Jr., 5) Restituto Ejoc, 6) Rolando Vasquez, 7) Junior Milyapis, 8) Crispin Dalmacio, 9) Zacarias Casil, 10) Pablo Daniel, 11) Romeo Tayabas, 12) Domingo Napoles, 13) Ciriaco Daniel, 14) Crispin Prado, and 15) Ereberto Prado.^[29]

Prosecutor Vivero also recommended that Zacarias Piedad, Leonardo Tanaid, Numeriano Beringuel and Glecerio Roluna be dropped as respondents and utilized as state witnesses, as their testimonies were vital to the success of the prosecution.^[30] The Resolution was silent with regard to Veronica Tabara.

The Information was filed before the Regional Trial Court (RTC) Hilongos, Leyte, Branch 18 (RTC Hilongos, Leyte) presided by Judge Ephrem S. Abando (Judge Abando) on 28 February 2007, and docketed as Criminal Case No. H-1581.^[31] Petitioner Ocampo filed an Ex Parte Motion to Set Case for Clarificatory Hearing dated 5 March 2007 prior to receiving a copy of the Resolution recommending the filing of the Information.^[32]

On 6 March 2007, Judge Abando issued an Order finding probable cause "in the commission by all mentioned accused of the crime charged."^[33] He ordered the issuance of warrants of arrest against them with no recommended bail for their temporary liberty.^[34]

On 16 March 2007, petitioner Ocampo filed before us this special civil action for certiorari and prohibition under Rule 65 of the Rules of Court and docketed as G.R. No. 176830 seeking the annulment of the 6 March 2007 Order of Judge Abando and the 16 February 2007 Resolution of Prosecutor Vivero.^[35] The petition prayed for the unconditional release of petitioner Ocampo from PNP custody, as well as the issuance of a temporary restraining order/ writ of preliminary injunction to restrain the conduct of further proceedings during the pendency of the petition.^[36]

Petitioner Ocampo argued that a case for rebellion against him and 44 others (including petitioners Echanis and Baylosis^[37] and Ladlad^[38] docketed as Criminal Case No. 06-944 was then pending before the RTC Makati, Branch 150 (RTC Makati).^[39] Putting forward the political offense doctrine, petitioner Ocampo argues that common crimes, such as murder in this case, are already absorbed by the crime of rebellion when committed as a necessary means, in connection with and in furtherance of rebellion.^[40]

We required^[41] the Office of the Solicitor General (OSG) to comment on the petition and the prayer for the issuance of a temporary restraining order/ writ of preliminary injunction, and set^[42] the case for oral arguments on 30 March 2007. The OSG filed its Comment on 27 March 2007.^[43]

The following were the legal issues discussed by the parties during the oral arguments:

1. Whether the present petition for certiorari and prohibition is the proper remedy of petitioner Ocampo;
   
   
2. Assuming it is the proper remedy, whether he was denied due process during preliminary investigation and in the issuance of the warrant of arrest;
   
   
3. Whether the murder charges against him are already included in the rebellion charge against him in the RTC.^[44]
   

Afterwards, the parties were ordered to submit their memoranda within 10 days.^[45] On 3 April 2007, the Court ordered the provisional release of petitioner Ocampo under a P100,000 cash bond.^[46]

Acting on the observation of the Court during the oral arguments that the single Information filed before the RTC Hilongos, Leyte was defective for charging 15 counts of murder, the prosecution filed a Motion to Admit Amended Information and New Informations on 11 April 2007.^[47] In an Order dated 27 July 2007, Judge Abando held in abeyance the resolution thereof and effectively suspended the proceedings during the pendency of G.R. No. 176830 before this Court.^[48]

While the proceedings were suspended, petitioner Echanis was arrested on 28 January 2008 by virtue of the warrant of arrest issued by Judge Abando on 6 March 2007.^[49] On 1 February 2008, petitioners Echanis and Baylosis filed a Motion for Judicial Reinvestigation/ Determination of Probable Cause with Prayer to Dismiss the Case Outright and Alternative Prayer to Recall/ Suspend Service of Warrant.^[50]

On 30 April 2008, Judge Abando issued an Order denying the motion.^[51] Petitioners Echanis and Baylosis filed a Motion for Reconsideration^[52] dated 30 May 2008, but before being able to rule thereon, Judge Abando issued an Order dated 12 June 2008 transmitting the records of Criminal Case No. H-1581 to the Office of the Clerk of Court, RTC Manila.^[53] The Order was issued in compliance with the Resolution dated 23 April 2008 of this Court granting the request of then Secretary of Justice Raul Gonzales to transfer the venue of the case.

The case was re-raffled to RTC Manila, Branch 32 (RTC Manila) presided by Judge Thelma Bunyi-Medina (Judge Medina) and re-docketed as Criminal Case No. 08-262163.^[54] Petitioner Echanis was transferred to the PNP Custodial Center in Camp Crame, Quezon City. On 12 August 2008, petitioners Echanis and Baylosis filed their Supplemental Arguments to Motion for Reconsideration.^[55]

In an Order^[56] dated 27 October 2008, Judge Medina suspended the proceedings of the case pending the resolution of G.R. No. 176830 by this Court.

On 18 December 2008, petitioner Ladlad filed with the RTC Manila a Motion to Quash and/or Dismiss.^[57]

On 23 December 2008, petitioner Echanis filed before us a special civil action for certiorari and prohibition under Rule 65 of the Rules of Court seeking the annulment of the 30 April 2008 Order of Judge Abando and the 27 October 2008 Order of Judge Medina.^[58] The petition, docketed as G.R. No. 185587, prayed for the unconditional and immediate release of petitioner Echanis, as well as the issuance of a temporary restraining order/ writ of preliminary injunction to restrain his further incarceration.^[59]

On 5 January 2009, petitioner Baylosis filed before us a special civil action for certiorari and prohibition under Rule 65 of the Rules of Court also seeking the annulment of the 30 April 2008 Order of Judge Abando and the 27 October 2008 Order of Judge Medina.^[60] The petition, docketed as G.R. No. 185636, prayed for the issuance of a temporary restraining order/ writ of preliminary injunction to restrain the implementation of the warrant of arrest against petitioner Baylosis.^[61]

The Court consolidated G.R. Nos. 185587 and 185636 on 12 January 2009.^[62]

On 3 March 2009, the Court ordered the further consolidation of these two cases with G.R. No. 176830.^[63] We required^[64] the OSG to comment on the prayer for petitioner Echanis's immediate release, to which the OSG did not interpose any objection on these conditions: that the temporary release shall only be for the purpose of his attendance and participation in the formal peace negotiations between the Government of the Republic of the Philippines (GRP) and the CPP/NPA/NDFP, set to begin in August 2009; and that his temporary release shall not exceed six (6) months.^[65] The latter condition was later modified, such that his temporary liberty shall continue for the duration of his actual participation in the peace negotiations.^[66]

On 11 August 2009, the Court ordered the provisional release of petitioner Echanis under a P100,000 cash bond, for the purpose of his participation in the formal peace negotiations.^[67]

Meanwhile, the Department of Justice (DOJ) filed its Opposition^[68] to petitioner Ladlad's motion to quash before the RTC Manila. The trial court conducted a hearing on the motion on 13 February 2009.^[69]

On 6 May 2009, Judge Medina issued an Order^[70] denying the motion to quash. The motion for reconsideration filed by petitioner Ladlad was also denied on 27 August 2009.^[71]

On 9 November 2009, petitioner Ladlad filed before us a special civil action for certiorari under Rule 65 of the Rules of Court seeking the annulment of the 6 May 2009 and 27 August 2009 Orders of Judge Medina.^[72] The petition was docketed as G.R. No. 190005.

On 11 January 2010, we ordered the consolidation of G.R. No. 190005 with G.R. Nos. 176830, 185587 and 185636.^[73] We also required the OSG to file its comment thereon. The OSG submitted its Comment^[74] on 7 May 2010.

On 27 July 2010, we likewise required the OSG to file its Comment in G.R. Nos. 185636 and 185587.^[75] These Comments were filed by the OSG on 13 December 2010^[76] and on 21 January 2011,^[77] respectively. Petitioners Echanis and Baylosis filed their Consolidated Reply^[78] on 7 June 2011.

On 2 May 2011, petitioner Ladlad filed an Urgent Motion to Fix Bail.^[79] On 21 July 2011, petitioner Baylosis filed A Motion to Allow Petitioner to Post Bail.^[80] The OSG interposed no objection to the grant of a ?100,000 cash bail to them considering that they were consultants of the NDFP negotiating team, which was then holding negotiations with the GRP peace panel for the signing of a peace accord.^[81]

On 17 January 2012, we granted the motions of petitioners Ladlad and Baylosis and fixed their bail in the amount of P100,000, subject to the condition that their temporary release shall be limited to the period of their actual participation in the peace negotiations.^[82]

Petitioner Ladlad filed his Reply^[83] to the OSG Comment on 18 January 2013.

OUR RULING

Petitioners were accorded due process during preliminary investigation and in the issuance of the warrants of arrest.

A. Preliminary Investigation

A preliminary investigation is "not a casual affair."^[84] It is conducted to protect the innocent from the embarrassment, expense and anxiety of a public trial.^[85] While the right to have a preliminary investigation before trial is statutory rather than constitutional, it is a substantive right and a component of due process in the administration of criminal justice.^[86]

In the context of a preliminary investigation, the right to due process of law entails the opportunity to be heard.^[87] It serves to accord an opportunity for the presentation of the respondent's side with regard to the accusation. Afterwards, the investigating officer shall decide whether the allegations and defenses lead to a reasonable belief that a crime has been committed, and that it was the respondent who committed it. Otherwise, the investigating officer is bound to dismiss the complaint.

"The essence of due process is reasonable opportunity to be heard and submit evidence in support of one's defense."^[88] What is proscribed is lack of opportunity to be heard.^[89] Thus, one who has been afforded a chance to present one's own side of the story cannot claim denial of due process.^[90]

Petitioners Echanis and Baylosis allege that they did not receive a copy of the complaint and the attached documents or evidence.^[91] Petitioner Ladlad claims that he was not served a subpoena due to the false address indicated in the 12 undated letters of P C/Insp. Almaden and Army Captain Tiu to Prosecutor Vivero.^[92] Furthermore, even though his counsels filed their formal entry of appearance before the Office of the Prosecutor, petitioner Ladlad was still not sent a subpoena through his counsels' addresses.^[93] Thus, they were deprived of the right to file counter-affidavits.

Petitioner Ocampo claims that Prosecutor Vivero, in collusion with P C/Insp. Almaden and Army Captain Tiu, surreptitiously inserted the Supplemental Affidavit of Zacarias Piedad in the records of the case without furnishing petitioner Ocampo a copy.^[94] The original affidavit of Zacarias Piedad dated 14 September 2006 stated that a meeting presided by petitioner Ocampo was held in 1984, when the launching of Operation VD was agreed upon.^[95] Petitioner Ocampo refuted this claim in his Counter-affidavit dated 22 December 2006 stating that he was in military custody from October 1976 until his escape in May 1985.^[96] Thereafter, the Supplemental Affidavit of Zacarias Piedad dated 12 January 2007 admitted that he made a mistake in his original affidavit, and that the meeting actually took place in June 1985.^[97] Petitioner Ocampo argues that he was denied the opportunity to reply to the Supplemental Affidavit by not being furnished a copy thereof.

Petitioner Ocampo also claims that he was denied the right to file a motion for reconsideration or to appeal the Resolution of Prosecutor Vivero, because the latter deliberately delayed the service of the Resolution by 19 days, effectively denying petitioner Ocampo his right to due process.^[98]

As to the claim of petitioners Echanis and Baylosis, we quote the pertinent portion of Prosecutor Vivero's Resolution, which states:

In connection with the foregoing and pursuant to the Revised Rules of Criminal Procedure[,] the respondents were issued and served with Subpoena at their last known address for them to submit their counter-affidavits and that of their witnesses.

Majority of the respondents did not submit their counter-affidavits because they could no longer be found in their last known address, per return of the subpoenas. On the other hand, Saturnino Ocampo @ Satur, Fides Lim, Maureen Palejaro and Ruben Manatad submitted their Counter-Affidavits. However, Vicente Ladlad and Jasmin Jerusalem failed to submit the required Counter Affidavits in spite entry of appearance by their respective counsels.^[99]

Section 3(d), Rule 112 of the Rules of Court, allows Prosecutor Vivero to resolve the complaint based on the evidence before him if a respondent could not be subpoenaed. As long as efforts to reach a respondent were made, and he was given an opportunity to present countervailing evidence, the preliminary investigation remains valid.^[100] The rule was put in place in order to foil underhanded attempts of a respondent to delay the prosecution of offenses.^[101]

In this case, the Resolution stated that efforts were undertaken to serve subpoenas on the named respondents at their last known addresses. This is sufficient for due process. It was only because a majority of them could no longer be found at their last known addresses that they were not served copies of the complaint and the attached documents or evidence.

Petitioner Ladlad claims that his subpoena was sent to the nonexistent address "53 Sct. Rallos St., QC,"^[102] which had never been his address at any time.^[103] In connection with this claim, we take note of the fact that the subpoena to Fides Lim, petitioner Ladlad's wife,^[104] was sent to the same address, and that she was among those mentioned in the Resolution as having timely submitted their counter-affidavits.

Despite supposedly never receiving a subpoena, petitioner Ladlad's counsel filed a formal entry of appearance on 8 December 2006.^[105] Prosecutor Vivero had a reason to believe that petitioner Ladlad had received the subpoena and accordingly instructed his counsel to prepare his defense.

Petitioner Ladlad, through his counsel, had every opportunity to secure copies of the complaint after his counsel's formal entry of appearance and, thereafter, to participate fully in the preliminary investigation. Instead, he refused to participate.

We have previously cautioned that "litigants represented by counsel should not expect that all they need to do is sit back, relax and await the outcome of their case."^[106] Having opted to remain passive during the preliminary investigation, petitioner Ladlad and his counsel cannot now claim a denial of due process, since their failure to file a counter-affidavit was of their own doing.

Neither do we find any merit in petitioner Ocampo's allegation of collusion to surreptitiously insert the Supplemental Affidavit of Zacarias Piedad in the records. There was nothing surreptitious about the Supplemental Affidavit since it clearly alludes to an earlier affidavit and admits the mistake committed regarding the date of the alleged meeting. The date of the execution of the Supplemental Affidavit was also clearly stated. Thus, it was clear that it was executed after petitioner Ocampo had submitted his counter-affidavit. Should the case go to trial, that will provide petitioner Ocampo with the opportunity to question the execution of Zacarias Piedad's Supplemental Affidavit.

Neither can we uphold petitioner Ocampo's contention that he was denied the right to be heard. For him to claim that he was denied due process by not being furnished a copy of the Supplemental Affidavit of Zacarias Piedad would imply that the entire case of the prosecution rested on the Supplemental Affidavit. The OSG has asserted that the indictment of petitioner Ocampo was based on the collective affidavits of several other witnesses^[107] attesting to the allegation that he was a member of the CPP/NPA/NDFP Central Committee, which had ordered the launch of Operation VD.

As to his claim that he was denied the right to file a motion for reconsideration or to appeal the Resolution of Prosecutor Vivero due to the 19-day delay in the service of the Resolution, it must be pointed out that the period for filing a motion for reconsideration or an appeal to the Secretary of Justice is reckoned from the date of receipt of the resolution of the prosecutor, not from the date of the resolution. This is clear from Section 3 of the 2000 National Prosecution Service Rule on Appeal:

Sec. 3. Period to appeal. The appeal shall be taken within fifteen (15) days from receipt of the resolution, or of the denial of the motion for reconsideration/ reinvestigation if one has been filed within fifteen (15) days from receipt of the assailed resolution. Only one motion for reconsideration shall be allowed. (Emphasis supplied)

Thus, when petitioner Ocampo received the Resolution of Prosecutor Vivero on 12 March 2007,^[108] the former had until 27 March 2007 within which to file either a motion for reconsideration before the latter or an appeal before the Secretary of Justice. Instead, petitioner Ocampo chose to file the instant petition for certiorari directly before this Court on 16 March 2007.

B. Issuance of the Warrants of Arrest

Article III, Section 2 of the Constitution provides that "no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce."

Petitioner Ocampo alleges that Judge Abando did not comply with the requirements of the Constitution in finding the existence of probable cause for the issuance of warrants of arrest against petitioners.^[109]

Probable cause for the issuance of a warrant of arrest has been defined as "such facts and circumstances which would lead a reasonably discreet and prudent man to believe that an offense has been committed by the person sought to be arrested."^[110] Although the Constitution provides that probable cause shall be determined by the judge after an examination under oath or an affirmation of the complainant and the witnesses, we have ruled that a hearing is not necessary for the determination thereof.^[111] In fact, the judge's personal examination of the complainant and the witnesses is not mandatory and indispensable for determining the aptness of issuing a warrant of arrest.^[112]

It is enough that the judge personally evaluates the prosecutor's report and supporting documents showing the existence of probable cause for the indictment and, on the basis thereof, issue a warrant of arrest; or if, on the basis of his evaluation, he finds no probable cause, to disregard the prosecutor's resolution and require the submission of additional affidavits of witnesses to aid him in determining its existence.^[113]

Petitioners Echanis and Baylosis claim that, had Judge Abando painstakingly examined the records submitted by Prosecutor Vivero, the judge would have inevitably dismissed the charge against them.^[114] Additionally, petitioner Ocampo alleges that Judge Abando did not point out facts and evidence in the record that were used as bases for his finding of probable cause to issue a warrant of arrest.^[115]

The determination of probable cause for the issuance of warrants of arrest against petitioners is addressed to the sound discretion of Judge Abando as the trial judge.^[116] Further elucidating on the wide latitude given to trial judges in the issuance of warrants of arrest, this Court stated in Sarigumba v. Sandiganbayan^[117] as follows:

x x x. The trial court's exercise of its judicial discretion should not, as a general rule, be interfered with in the absence of grave abuse of discretion. Indeed, certiorari will not lie to cure errors in the trial court's appreciation of the evidence of the parties, the conclusion of facts it reached based on the said findings, as well as the conclusions of law. x x x.

Whether or not there is probable cause for the issuance of warrants for the arrest of the accused is a question of fact based on the allegations in the Informations, the Resolution of the Investigating Prosecutor, including other documents and/or evidence appended to the Information.

Here, the allegations of petitioners point to factual matters indicated in the affidavits of the complainants and witnesses as bases for the contention that there was no probable cause for petitioners' indictment for multiple murder or for the issuance of warrants for their arrest. As stated above, the trial judge's appreciation of the evidence and conclusion of facts based thereon are not interfered with in the absence of grave abuse of discretion. Again, "he sufficiently complies with the requirement of personal determination if he reviews the [I]nformation and the documents attached thereto, and on the basis thereof forms a belief that the accused is probably guilty of the crime with which he is being charged."^[118]

Judge Abando's review of the Information and the supporting documents is shown by the following portion of the judge's 6 March 2007 Order:

On the evaluation of the Resolution and its Information as submitted and filed by the Provincial Prosecution of Leyte Province supported by the following documents: Affidavits of Complainants, Sworn Statements of Witnesses and other pertinent documents issued by the Regional Crime Laboratory Office, PNP, Region VIII and Camp Crame, Quezon City, pictures of the grave site and skeletal remains, this court has the findings [sic] of probable cause in the commission by all mentioned accused of the crime charged.^[119]

At bottom, issues involving the finding of probable cause for an indictment and issuance of a warrant of arrest, as petitioners are doubtless aware, are primarily questions of fact that are normally not within the purview of a petition for certiorari,^[120] such as the petitions filed in the instant consolidated cases.

The political offense doctrine is not a ground to dismiss the charge against petitioners prior to a determination by the trial court that the murders were committed in furtherance of rebellion.

Under the political offense doctrine, "common crimes, perpetrated in furtherance of a political offense, are divested of their character as "common" offenses and assume the political complexion of the main crime of which they are mere ingredients, and, consequently, cannot be punished separately from the principal offense, or complexed with the same, to justify the imposition of a graver penalty."^[121]

Any ordinary act assumes a different nature by being absorbed in the crime of rebellion.^[122] Thus, when a killing is committed in furtherance of rebellion, the killing is not homicide or murder. Rather, the killing assumes the political complexion of rebellion as its mere ingredient and must be prosecuted and punished as rebellion alone.

However, this is not to say that public prosecutors are obliged to consistently charge respondents with simple rebellion instead of common crimes. No one disputes the well-entrenched principle in criminal procedure that the institution of criminal charges, including whom and what to charge, is addressed to the sound discretion of the public prosecutor.^[123]

But when the political offense doctrine is asserted as a defense in the trial court, it becomes crucial for the court to determine whether the act of killing was done in furtherance of a political end, and for the political motive of the act to be conclusively demonstrated.^[124]

Petitioners aver that the records show that the alleged murders were committed in furtherance of the CPP/NPA/NDFP rebellion, and that the political motivation behind the alleged murders can be clearly seen from the charge against the alleged top leaders of the CPP/NPA/NDFP as co-conspirators.

We had already ruled that the burden of demonstrating political motivation must be discharged by the defense, since motive is a state of mind which only the accused knows.^[125] The proof showing political motivation is adduced during trial where the accused is assured an opportunity to present evidence supporting his defense. It is not for this Court to determine this factual matter in the instant petitions.

As held in the case of Office of the Provincial Prosecutor of Zamboanga Del Norte v. CA,^[126] if during trial, petitioners are able to show that the alleged murders were indeed committed in furtherance of rebellion, Section 14, Rule 110 of the Rules of Court provides the remedy, to wit:

SECTION 14. Amendment or substitution. A complaint or information may be amended, in form or in substance, without leave of court, at any time before the accused enters his plea. After the plea and during the trial, a formal amendment may only be made with leave of court and when it can be done without causing prejudice to the rights of the accused.

However, any amendment before plea, which downgrades the nature of the offense charged in or excludes any accused from the complaint or information, can be made only upon motion by the prosecutor, with notice to the offended party and with leave of court. The court shall state its reasons in resolving the motion and copies of its order shall be furnished all parties, especially the offended party. (n)

If it appears at any time before judgment that a mistake has been made in charging the proper offense, the court shall dismiss the original complaint or information upon the filing of a new one charging the proper offense in accordance with Section 19, Rule 119, provided the accused shall not be placed in double jeopardy. The court may require the witnesses to give bail for their appearance at the trial. (Emphasis supplied)

Thus, if it is shown that the proper charge against petitioners should have been simple rebellion, the trial court shall dismiss the murder charges upon the filing of the Information for simple rebellion, as long as petitioners would not be placed in double jeopardy.

Section 7, Rule 117 of the Rules of Court, states:

SEC. 7. Former conviction or acquittal; double jeopardy. When an accused has been convicted or acquitted, or the case against him dismissed or otherwise terminated without his express consent by a court of competent jurisdiction, upon a valid complaint or information or other formal charge sufficient in form and substance to sustain a conviction and after the accused had pleaded to the charge, the conviction or acquittal of the accused or the dismissal of the case shall be a bar to another prosecution for the offense charged, or for any attempt to commit the same or frustration thereof, or for any offense which necessarily includes or is necessarily included in the offense charged in the former complaint or information.

Based on the above provision, double jeopardy only applies when: (1) a first jeopardy attached; (2) it has been validly terminated; and (3) a second jeopardy is for the same offense as in the first.^[127]

A first jeopardy attaches only after the accused has been acquitted or convicted, or the case has been dismissed or otherwise terminated without his express consent, by a competent court in a valid indictment for which the accused has entered a valid plea during arraignment.^[128]

To recall, on 12 May 2006, an Information for the crime of rebellion, as defined and penalized under Article 134 in relation to Article 135 of the Revised Penal Code, docketed as Criminal Case No. 06-944 was filed before the RTC Makati against petitioners and several others.^[129]

However, petitioners were never arraigned in Criminal Case No. 06-944. Even before the indictment for rebellion was filed before the RTC Makati, petitioners Ocampo, Echanis and Ladlad had already filed a petition before this Court to seek the nullification of the Orders of the DOJ denying their motion for the inhibition of the members of the prosecution panel due to lack of impartiality and independence.^[130] When the indictment was filed, petitioners Ocampo, Echanis and Ladlad filed supplemental petitions to enjoin the prosecution of Criminal Case No. 06-944.^[131] We eventually ordered the dismissal of the rebellion case. It is clear then that a first jeopardy never had a chance to attach.

Petitioner Ocampo shall remain on provisional liberty under the P100,000 cash bond posted before the Office of the Clerk of Court. He shall remain on provisional liberty until the termination of the proceedings before the RTC Manila.

The OSG has given its conformity to the provisional liberty of petitioners Echanis, Baylosis and Ladlad in view of the ongoing peace negotiations. Their provisional release from detention under the cash bond of P100,000 each shall continue under the condition that their temporary release shall be limited to the period of their actual participation as CPP-NDF consultants in the peace negotiations with the government or until the termination of the proceedings before the RTC Manila, whichever is sooner. It shall be the duty of the government to inform this Court the moment that peace negotiations are concluded.

WHEREFORE, the instant consolidated petitions are DISMISSED. The RTC of Manila, Branch 32, is hereby ORDERED to proceed with dispatch with the hearing of Criminal Case No. 08-262163. Petitioner Saturnino C. Ocampo shall remain on temporary liberty under the same bail granted by this Court until the termination of the proceedings before the RTC Manila. Petitioners Randall B. Echanis, Rafael G. Baylosis and Vicente P. Ladlad shall remain on temporary liberty under the same bail granted by this Court until their actual participation as CPP-NDF consultants in the peace negotiations with the government are concluded or terminated, or until the termination of the proceedings before the RTC Manila, whichever is sooner.

SO ORDERED.

Carpio, Velasco, Jr., Leonardo-De Castro, Brion, Peralta, Bersamin, Del Castillo, Abad, Villarama, Jr., Perez, Mendoza, Reyes, and Perlas-Bernabe, JJ., concur.
Leonen, J., see separate concurring opinion.

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^[1] Also allegedly found from 2009 to 2012 were more mass grave sites in Gubat, Sorsogon; Camalig, Albay; and Labo, Camarines Norte all in the Bicol Region [http://www.interaksyon.com/article/38278/photos--bones-in-npa-mass-grave-dont-easily-surrender-names-of-victims (Last accessed on 13 January 2014)].

On 21 July 2012, a mass grave was found in San Francisco, Quezon [http://newsinfo.inquirer.net/233887/remains-found-in-quezon-mass-grave-include-a-pregnant-rebel-army-exec (Last accessed on 13 January 2014)].

^[2] Except G.R. No. 190005, which is only a petition for certiorari.

^[3] Rollo (G.R. No. 176830), pp. 135-269.

^[4] Id. at 139.

^[5] Id. at 336.

^[6] Id.

^[7] Id. at 337.

^[8] Id. at 424-427.

^[9] Id. at 427.

^[10] Id. at 336-338.

^[11] Id. at 337-338.

^[12] With Supplemental Affidavit dated 12 January 2007; id. at 276-278.

^[13] Id. at 273, 287, 296, 309, 318 and 329.

^[14] Id. at 289.

^[15] Id. at 288, 310, 319 and 329.

^[16] Id. at 319.

^[17] Id. at 310, 319 and 329.

^[18] Id. at 310 and 319.

^[19] Id. at 289-290.

^[20] Id. at 89.

^[21] Id. at 291.

^[22] Id. at 91.

^[23] Id.

^[24] Rollo (G.R. No. 185587), p. 10.

^[25] Rollo (G.R. No. 185636), p. 14.

^[26] Rollo (G.R. No. 190005), p. 51.

^[27] Id. at 52.

^[28] Rollo (G.R. No. 176830), pp. 88-94.

^[29] Id. at 93.

^[30] Id.

^[31] Id. at 84-87.

^[32] Id. at 96-99. Petitioner Ocampo received a copy of the Resolution on 12 March 2007.

^[33] Id. at 82.

^[34] Id.

^[35] Id. at 3-81.

^[36] Id. at 77.

^[37] Rollo (G.R. No. 185587), p. 451.

^[38] Rollo (G.R. No. 190005), p. 75.

^[39] Rollo (G.R. No. 176830), p. 59. On 1 June 2007, the Supreme Court granted the petitions in Ladlad v. Velasco G.R. Nos. 172070-72, 172074-76 and 175013 in which the RTC of Makati, Branch 150, was ordered to dismiss Criminal Case Nos. 06-452 and 06-944.

^[40] Id. at 62.

^[41] Id. at 515-A 515-B.

^[42] Id. at 541-542.

^[43] Id. at 554-A.

^[44] Id. at 554-C 554-D.

^[45] Id. at 554-D.

^[46] Id. at 557-558.

^[47] Rollo (G.R. No. 185587), pp. 426-427.

^[48] Id. at 428-429.

^[49] Id. at 18.

^[50] Id. at 430-460.

^[51] Id. at 69-73.

^[52] Id. at 461-485.

^[53] Id. at 486.

^[54] Id. at 19.

^[55] Id. at 487-519.

^[56] Id. at 64-68.

^[57] Rollo (G.R. No. 190005), pp. 162-218.

^[58] Rollo, (G.R. No. 185587), pp. 3-63.

^[59] Id. at 56.

^[60] Rollo (G.R. No. 185636), pp. 7-71.

^[61] Id. at 64.

^[62] Id. at 564.

^[63] Rollo (G.R. No. 185587), p. 587.

^[64] Id. at 606-607.

^[65] Rollo (G.R. No. 176830), pp. 736-740.

^[66] Id. at 1029-1032.

^[67] Id. at 742-743.

^[68] Rollo (G.R. No. 190005), pp. 331-340.

^[69] Id. at 347-348.

^[70] Id. at 108-111.

^[71] Id. at 112.

^[72] Id. at 3-107.

^[73] Id. at 860-861.

^[74] Id. at 879-922.

^[75] Id. at 932-933.

^[76] Id. at 940-1003.

^[77] Rollo (G.R. No. 185587), pp. 807-851.

^[78] Rollo (G.R. No. 185636), pp. 1363-1391.

^[79] Rollo (G.R. No. 190005), pp. 1006-1024.

^[80] Rollo (G.R. No. 185636), pp. 1399-1402.

^[81] Rollo (G.R. No. 190005), p. 1046; rollo (G.R. No. 185636), p. 1419.

^[82] Rollo (G.R. No. 190005), pp. 1050-1053.

^[83] Id. at 1073-1116.

^[84] Ang-Abaya v. Ang, G.R. No. 178511, 4 December 2008, 573 SCRA 129, 146.

^[85] Uy v. Office of the Ombudsman, G.R. Nos. 156399-400, 27 June 2008, 556 SCRA 73, 93.

^[86] Id.

^[87] Santos v. People, G.R. No. 173176, 26 August 2008, 563 SCRA 341, 369.

^[88] Kuizon v. Desierto, 406 Phil. 611, 630 (2001).

^[89] Id.

^[90] Pascual v. People, 547 Phil. 620, 627 (2007).

^[91] Rollo (G.R. No. 185587), p. 31; rollo (G.R. No. 185636), p. 41.

^[92] Rollo (G.R. No. 190005), pp. 49-50.

^[93] Id. at 51-52.

^[94] Rollo (G.R. No. 176830), pp. 75-76.

^[95] Id. at 288-289.

^[96] Id. at 45-46.

^[97] Id. at 277.

^[98] Id. at 74-75.

^[99] Id. at 91.

^[100] Rodis, Sr. v. Sandiganbayan, 248 Phil. 854, 859 (1988).

^[101] Id.

^[102] Rollo (G.R. No. 176830), p. 136.

^[103] Rollo (G.R. No. 190005), p. 51.

^[104] Id. at 11.

^[105] Id. at 51.

^[106] Balgami v. CA, 487 Phil. 102, 115 (2004), citing Salonga v. CA, 336 Phil. 514 (1997).

^[107] Rollo (G.R. No. 176830), p. 587.

^[108] Id. at 74.

^[109] Id. at 21.

^[110] Allado v. Diokno, G.R. No. 113630, 5 May 1994, 232 SCRA 192, 199-200.

^[111] De los Santos-Reyes v. Montesa, Jr., 317 Phil. 101, 111 (1995).

^[112] People v. Grey, G.R. No. 180109, 26 July 2010, 625 SCRA 523, 536.

^[113] Supra note 111.

^[114] Rollo (G.R. No. 185587), p. 27; rollo (G.R. No. 185636), p. 34.

^[115] Rollo (G.R. No. 176830), p. 64.

^[116] Sarigumba v. Sandiganbayan, 491 Phil. 704, 720 (2005).

^[117] Id. at 720-721.

^[118] Cuevas v. Muñoz, 401 Phil. 752, 773-774 (2000).

^[119] Rollo (G.R. No. 176830), p. 82.

^[120] Heirs of Marasigan v. Marasigan, G.R. No. 156078, 14 March 2008, 548 SCRA 409, 443; Serapio v. Sandiganbayan (Third Division), 444 Phil. 499, 529 (2003); Reyes v. CA, 378 Phil. 984, 990 (1999).

^[121] People v. Hernandez, 99 Phil. 515, 541 (1956).

^[122] People v. Lovedioro, 320 Phil. 481, 489 (1995).

^[123] Glaxosmithkline Philippines, Inc. v. Malik, 530 Phil. 662 (2006); Punzalan v. Dela Peña, 478 Phil. 771 (2004); Potot v. People, 432 Phil. 1028 (2002).

^[124] Supra note 122.

^[125] Id.

^[126] 401 Phil. 945, 961 (2000).

^[127] Pacoy v. Cajigal, G.R. No. 157472, 28 September 2007, 534 SCRA 338, 352.

^[128] Id.

^[129] Rollo (G.R. No. 176830), pp. 117-128.

^[130] Ladlad v. Velasco, G.R. Nos. 172070-72, 172074-76, 175013, 1 June 2007, 523 SCRA 318, 340.

^[131] Id.

---

"Some say freedom is relative. One man's freedom is another man's bondage. We may have been in chains, but we weren't shackled by delusions. Our movements were restrained, but we weren't tied up by myth. Our tormentors thought they were free, but they were blinded by falsehood; their senses were deadened by the mirage of power they clutched and made god. And then they were stunned by their own shadows; paralyzed by fear of the very monsters and demons they fashioned in their heads that stood to devour them at the end of it all.

. . . Our eventual freedom was truly memorable. The process of unchaining was both literal and symbolic, and not without drama and fanfare. We weren't released all at once, but one or two at a time. Ka Ranel and myself were freed at the same time around December of 1988. 'Free at last!' we declared, grinning from ear to ear. We were guided through some underbrush, after it we came upon a clearing where the rest of the former captives were waiting. We were greeted with applause. Tearful hugs, handshakes, up-heres, singing, merry-making, even role-playing. Rage and retribution will have to wait. The moment was a celebration."

Robert Francis Garcia
"To Suffer Thy Comrades:
How the Revolution Decimated Its Own" 24 (2001)

LEONEN, J.:

Dissent affirms the dissenter's belief in how human dignity should be shaped. It assumes difference with the status quo. It is this assertion that provides depth and dynamism in our democracy.

However, indignities masquerading as dissent or even brought about by misguided assessments of what is pragmatic do not deserve any legal protection. Such acts cease to become political. These are simply inhuman.

Acts which debase humanity even by the most organized and ardent dissenters do not even deserve the label of rebellion.

I concur with the Chief Justice that this case should be remanded so that the court can properly examine the evidence raised by the defense. I write this separate opinion in the interest of judicial economy. Should it be shown that there are acts committed in violation of Republic Act No. 9851, otherwise known as the Philippine Act on Crimes Against International Humanitarian Law, Genocide and Other Crimes Against Humanity, these acts could not be absorbed in the crime of rebellion.

I

For our decision are consolidated petitions for certiorari and prohibition that pray for the declaration of several Informations and Warrants of Arrests as void. The Informations and Warrants were issued for the crime of multiple murder. Petitioners assert that they have a pending criminal charge of rebellion^[1] and that the acts raised in their petitions should be dismissed because they are deemed to be affected by the political offense doctrine. The political offense doctrine states that certain crimes, such as murder, are already absorbed by the charge of rebellion when committed as a necessary means and in connection with or in furtherance of rebellion.

I agree that this case should be remanded because there has been no evidence yet to prove that the acts imputed to the petitioners actually happened or are attributable to them. Judicial economy, however, requires that we state that there are certain acts which have been committed on the occasion of a rebellion which should no longer be absorbed in that crime.

Acts committed in violation of Republic Act No. 9851, even in the context of armed conflicts of a non-international character and in view of the declarations of the Communist Party of the Philippines and the National Democratic Front, cannot be deemed to be acts in connection with or in furtherance of rebellion.

II

We survey the evolution of the political offense doctrine to provide better context.

As early as 1903, this court distinguished common crimes from crimes committed in furtherance of a political objective. In United States v. Lardizabal,^[2] the accused, Commanding Officer of Filipino insurgents, ordered the execution of an American prisoner before retreating from the enemy. We said in this case that the accused's act falls under the Amnesty Proclamation of 1902, thus:

x x x [the execution] was not an isolated act such as a "political offense committed during the insurrection pursuant to orders issued by the civil or military insurrectionary authorities," but was a measure which, whether necessary or not, was inherent in the military operations for the preservation of the troops commanded by him and of which he was the supreme officer on that island. It was an act which, while from the standpoint of military law might be regarded as one of cruelty, was at the same time one depending absolutely upon the discretion of an officer in charge of a command for securing the safety of the troops under his control and constitutes no other offense than that of sedition, within which term the war itself is included by the letter and spirit of the proclamation.^[3] (Emphasis provided)

In United States. v. Pacheco,^[4] two men selling English dictionaries within the Dagupan area were abruptly abducted and killed by the accused and his men. Witnesses testified that it was presumed by the accused that the salesmen were American spies because the dictionaries being sold were written in English. This court observed:

It does not appear from the record that the aggressors were impelled to kill the deceased by any motive other than that the latter were suspected of being spies and, therefore, traitors to the revolutionary party to which the defendants belonged. From the foregoing statement of facts, it may therefore be said that the two murders prosecuted herein were of a political character and the result of internal political hatreds between Filipinos, the defendants having been insurgents opposed to the constituted government.

The case has to do with two crimes for which, under the penal law, the severest punishment has always been inflicted. However, considering the circumstances under which these crimes were committed and the fact that the sovereign power in these Islands, in view of the extraordinary and radical disturbance which, during the period following the year 1896, prevailed in and convulsed this country, and prompted by the dictates of humanity and public policy, has deemed it advisable to blot out even the shadow of a certain class of offenses, decreeing full pardon and amnesty to their authors an act of elevated statesmanship and timely generosity, more political than judicial in its nature, intended to mitigate the severity of the law it is incumbent upon us, in deciding this case, to conform our judgment to the requirements and conditions of the decree so promulgated.^[5] (Emphasis provided)

Then in the landmark case of People v. Hernandez,^[6] this court defined the term, political offense:

In short, political crimes are those directly aimed against the political order, as well as such common crimes as may be committed to achieve a political purpose. The decisive factor is the intent or motive. If a crime usually regarded as common, like homicide, is perpetrated for the purpose of removing from the allegiance "to the Government the territory of the Philippines Islands or any part thereof." then said offense becomes stripped of its "common" complexion, inasmuch as, being part and parcel of the crime of rebellion, the former acquires the political character of the latter.^[7] (Emphasis provided)

This court in Hernandez first clarified whether common crimes such as murder, arson, and other similar crimes are to be complexed with the main crimes in the Revised Penal Code. Thus:

x x x national, as well as international, laws and jurisprudence overwhelmingly favor the proposition that common crimes, perpetrated in furtherance of a political offense, are divested of their character as "common" offenses and assume the political complexion of the main crime of which they are mere ingredients, and, consequently, cannot be punished separately from the principal offense, or complexed with the same, to justify the imposition of a graver penalty.^[8] (Emphasis provided)

Article 48 of the Revised Penal Code covering complex crimes provides:

Art. 48. Penalty for complex crimes. When a single act constitutes two or more grave or less grave felonies, or when an offense is a necessary means for committing the other, the penalty for the most serious crime shall be imposed, the same to be applied in its maximum period.

The Hernandez ruling was then affirmed by this court in subsequent cases, such as Enrile v. Salazar.^[9] It is worthy to note, however, that in "affirming" the doctrine in Hernandez, this court in Enrile said:

It may be that in the light of contemporary events, the act of rebellion has lost that quintessentially quixotic quality that justifies the relative leniency with which it is regarded and punished by law, that present-day rebels are less impelled by love of country than by lust for power and have become no better than mere terrorists to whom nothing, not even the sanctity of human life, is allowed to stand in the way of their ambitions. Nothing so underscores this aberration as the rash of seemingly senseless killings, bombings, kidnappings and assorted mayhem so much in the news these days, as often perpetrated against innocent civilians as against the military, but by and large attributable to, or even claimed by so-called rebels to be part of, an ongoing rebellion.

It is enough to give anyone pause and the Court is no exception that not even the crowded streets of our capital City seem safe from such unsettling violence that is disruptive of the public peace and stymies every effort at national economic recovery. There is an apparent need to restructure the law on rebellion, either to raise the penalty therefor or to clearly define and delimit the other offenses to be considered as absorbed thereby, so that it cannot be conveniently utilized as the umbrella for every sort of illegal activity undertaken in its name. The Court has no power to effect such change, for it can only interpret the law as it stands at any given time, and what is needed lies beyond interpretation. Hopefully, Congress will perceive the need for promptly seizing the initiative in this matter, which is properly within its province.^[10] (Emphasis provided)

However, other cases declined to rule that all other crimes charged in the Information are absorbed under alleged political offenses.^[11] In Misolas v. Panga,^[12] this court ruled:

Neither would the doctrines enunciated by the Court in Hernandez and Geronimo, [sic] and People v. Rodriguez [107 Phil. 659] save the day for petitioner.

In Hernandez, the accused were charged with the complex crime of rebellion with murder, arson and robbery while in Geronimo, the information was for the complex crime of rebellion with murder, robbery and kidnapping. In those two cases[,] the Court held that aforestated common crimes cannot be complexed with rebellion as these crimes constituted the means of committing the crime of rebellion. These common crimes constituted the acts of "engaging in war" and "committing serious violence" which are essential elements of the crime of rebellion [See Arts. 134-135, Revised Penal Code] and, hence, are deemed absorbed in the crime of rebellion. Consequently, the accused can be held liable only for the single crime of rebellion.

On the other hand, in Rodriguez, the Court ruled that since the accused had already been charged with rebellion, he can no longer be charged for illegal possession of firearms for the same act of unauthorized possession of firearm on which the charge of rebellion was based, as said act constituted the very means for the commission of rebellion. Thus, the illegal possession of the firearm was deemed absorbed in the crime of rebellion.

However, in the present case, petitioner is being charged specifically for the qualified offense of illegal possession of firearms and ammunition under P.D. 1866. HE IS NOT BEING CHARGED WITH THE COMPLEX CRIME OF SUBVERSION WITH ILLEGAL POSSESSION OF FIREARMS. NEITHER IS HE BEING SEPARATELY CHARGED FOR SUBVERSION AND FOR ILLEGAL POSSESSION OF FIREARMS. Thus, the rulings of the Court in Hernandez, Geronimo and Rodriquez find no application in this case.^[13] (Emphasis in the original)

In Baylosis v. Chavez, Jr.,^[14] this court held that:

x x x The Code allows, for example, separate prosecutions for either murder or rebellion, although not for both where the indictment alleges that the former has been committed in furtherance of or in connection with the latter. Surely, whether people are killed or injured in connection with a rebellion, or not, the deaths or injuries of the victims are no less real, and the grief of the victims' families no less poignant.

Moreover, it certainly is within the power of the legislature to determine what acts or omissions other than those set out in the Revised Penal Code or other existing statutes are to be condemned as separate, individual crimes and what penalties should be attached thereto. The power is not diluted or improperly wielded simply because at some prior time the act or omission was but an element or ingredient of another offense, or might usually have been connected with another crime.

The interdict laid in Hernandez, Enrile and the other cases cited is against attempts to complex rebellion with the so called "common" crimes committed in furtherance, or in the course, thereof; this, on the authority alone of the first sentence of Article 48 of the Revised Penal Code. Stated otherwise, the ratio of said cases is that Article 48 cannot be invoked as the basis for charging and prosecuting the complex crime of rebellion with murder, etc., for the purpose of obtaining imposition of the penalty for the more serious offense in its maximum period (in accordance with said Art. 48). Said cases did not indeed they could not and were never meant to proscribe the legislative authority from validly enacting statutes that would define and punish, as offenses sui generis crimes which, in the context of Hernandez, et al. may be viewed as a complex of rebellion with other offenses. There is no constitutional prohibition against this, and the Court never said there was. What the Court stated in said cases about rebellion "absorbing" common crimes committed in its course or furtherance must be viewed in light of the fact that at the time they were decided, there were no penal provisions defining and punishing, as specific offenses, crimes like murder, etc. committed in the course or as part of a rebellion. This is no longer true, as far as the present case is concerned, and there being no question that PD 1866 was a valid exercise of the former President's legislative powers.^[15] (Emphasis provided)

It is not our intention to wipe out the history of and the policy behind the political offense doctrine. What this separate opinion seeks to accomplish is to qualify the conditions for the application of the doctrine and remove any blanket application whenever political objectives are alleged. The remnants of armed conflict continue. Sooner or later, with a victor that emerges or even with the success of peace negotiations with insurgent groups, some form of transitional justice may need to reckon with different types of crimes committed on the occasion of these armed uprisings. Certainly, crimes that run afoul the basic human dignity of persons must not be tolerated. This is in line with the recent developments in national and international law.^[16]

III

International humanitarian law^[17] (IHL) is the body of international law that regulates the conduct of armed conflicts, whether of an international or non-international character. This body of law seeks to limit the effects of the conflict on individuals.^[18] The 1949 Geneva Conventions and its Additional Protocols are the main instruments that govern IHL.^[19] Nevertheless, IHL and the rules and principles contained in the Geneva Conventions are largely regarded in the international sphere as having the character of general or customary international law given the fundamental nature of the rules and "because they constitute intransgressible principles of international customary law."^[20]

In the Philippines, Republic Act No. 9851 was enacted in view of its policy to "[renounce] war x x x, [adopt] the generally accepted principles of international law as part of the law of the land and [adhere] to a policy of peace, equality, justice, freedom, cooperation and amity with all nations."^[21] Accordingly, "[t]he most serious crimes of concern to the international community as a whole must not go unpunished and their effective prosecution must be ensured by taking measures at the national level, in order to put an end to impunity for the perpetrators of these crimes and thus contribute to the prevention of such crimes, it being the duty of every State to exercise its criminal jurisdiction over those responsible for international crimes."^[22]

Armed conflict in the law is defined as:

x x x any use of force or armed violence between States or a protracted armed violence between governmental authorities and organized armed groups or between such groups within a State: Provided, That such force or armed violence gives rise, or may give rise, to a situation to which the Geneva Conventions of 12 August 1949, including their common Article 3, apply. Armed conflict may be international, that is, between two (2) or more States, including belligerent occupation; or non-international, that is, between governmental authorities and organized armed groups or between such groups within a State. It does not cover internal disturbances or tensions such as riots, isolated and sporadic acts of violence or other acts of a similar nature.^[23] (Emphasis provided)

Article 3 common to the 1949 Geneva Conventions and Additional Protocol II^[24] are the foundation of the applicable rules in a non-international or internal armed conflict. Common Article 3, which has attained a customary law character,^[25] prescribes a minimum standard to be applied to persons who are not actively taking part in an internal armed conflict. Common Article 3 provides:

In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum, the following provisions: 
 

1)

Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria.

To this end, the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons:

a)	violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;
b)	taking of hostages;
c)	outrages upon personal dignity, in particular humiliating and degrading treatment;
d)	the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples.

2) The wounded and sick shall be collected and cared for.

This portion of the provision is substantially reproduced in Section 4, paragraph (b) of Republic Act No. 9851, which provides:

In case of a non-international armed conflict, serious violations of common Article 3 to the four (4) Geneva Conventions of 12 August 1949, namely, any of the following acts committed against persons taking no active part in the hostilities, including members of the armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention or any other cause:

(1) Violence to life and person, in particular, willful killings, mutilation, cruel treatment and torture;

(2) Committing outrages upon personal dignity, in particular, humiliating and degrading treatment;

(3) Taking of hostages; and

(4) The passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all judicial guarantees which are generally recognized as indispensable.

Additional Protocol II supplements Common Article 3 in terms of the rules applicable to internal armed conflict.^[26] Additional Protocol II specifies: 1) the guarantees afforded to persons involved in the internal armed conflict; and 2) the obligations of the parties to the internal armed conflict. These rights and duties are seen in Articles 4 to 6, to wit:

Article 4 Fundamental guarantees

1. All persons who do not take a direct part or who have ceased to take part in hostilities, whether or not their liberty has been restricted, are entitled to respect for their person, honour and convictions and religious practices. They shall in all circumstances be treated humanely, without any adverse distinction. It is prohibited to order that there shall be no survivors.
   
   
2. Without prejudice to the generality of the foregoing, the following acts against the persons referred to in paragraph 1 are and shall remain prohibited at any time and in any place whatsoever:
   

a)	violence to the life, health and physical or mental well-being of persons, in particular murder as well as cruel treatment such as torture, mutilation or any form of corporal punishment;
b)	collective punishments;
c)	taking of hostages;
d)	acts of terrorism;
e)	outrages upon personal dignity, in particular humiliating and degrading treatment, rape, enforced prostitution and any form of indecent assault;
f)	slavery and the slave trade in all their forms;
g)	pillage;
h)	threats to commit any of the foregoing acts.

Article 5 Persons whose liberty has been restricted

1. In addition to the provisions of Article 4, the following provisions shall be respected as a minimum with regard to persons deprived of their liberty for reasons related to the armed conflict, whether they are interned or detained:
   
   

   a)	the wounded and the sick shall be treated in accordance with Article 7;
   b)	the persons referred to in this paragraph shall, to the same extent as the local civilian population, be provided with food and drinking water and be afforded safeguards as regards health and hygiene and protection against the rigours of the climate and the dangers of the armed conflict;
   c)	they shall be allowed to receive individual or collective relief;
   d)	they shall be allowed to practice their religion and, if requested and appropriate, to receive spiritual assistance from persons, such as chaplains, performing religious functions;
   e)	they shall, if made to work, have the benefit of working conditions and safeguards similar to those enjoyed by the local civilian population.

   
   
2. Those who are responsible for the internment or detention of the persons referred to in paragraph 1 shall also, within the limits of their capabilities, respect the following provisions relating to such persons:
   
   

   a)	except when men and women of a family are accommodated together, women shall be held in quarters separated from those of men and shall be under the immediate supervision of women;
   b)	they shall be allowed to send and receive letters and cards, the number of which may be limited by competent authority if it deems necessary;
   c)	places of internment and detention shall not be located close to the combat zone. The persons referred to in paragraph 1 shall be evacuated when the places where they are interned or detained become particularly exposed to danger arising out of the armed conflict, if their evacuation can be carried out under adequate conditions of safety;
   d)	they shall have the benefit of medical examinations;
   e)	their physical or mental health and integrity shall not be endangered by any unjustified act or omission. Accordingly, it is prohibited to subject the persons described in this Article to any medical procedure which is not indicated by the state of health of the person concerned, and which is not consistent with the generally accepted medical standards applied to free persons under similar medical circumstances.

   
   
3. Persons who are not covered by paragraph 1 but whose liberty has been restricted in any way whatsoever for reasons related to the armed conflict shall be treated humanely in accordance with Article 4 and with paragraphs 1 a), c) and d), and 2 b) of this Article.
   
   
4. If it is decided to release persons deprived of their liberty, necessary measures to ensure their safety shall be taken by those so deciding.
   

Article 6 Penal prosecutions

This Article applies to the prosecution and punishment of criminal offences related to the armed conflict.

No sentence shall be passed and no penalty shall be executed on a person found guilty of an offence except pursuant to a conviction pronounced by a court offering the essential guarantees of independence and impartiality. In particular:

a)	the procedure shall provide for an accused to be informed without delay of the particulars of the offence alleged against him and shall afford the accused before and during his trial all necessary rights and means of defence;
b)	no one shall be convicted of an offence except on the basis of individual penal responsibility;
c)	no one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence, under the law, at the time when it was committed; nor shall a heavier penalty be imposed than that which was applicable at the time when the criminal offence was committed; if, after the commission of the offence, provision is made by law for the imposition of a lighter penalty, the offender shall benefit thereby;
d)	anyone charged with an offence is presumed innocent until proved guilty according to law;
e)	anyone charged with an offence shall have the right to be tried in his presence;
f)	no one shall be compelled to testify against himself or to confess guilt.

A convicted person shall be advised on conviction of his judicial and other remedies and of the time-limits within which they may be exercised.

The death penalty shall not be pronounced on persons who were under the age of eighteen years at the time of the offence and shall not be carried out on pregnant women or mothers of young children.

At the end of hostilities, the authorities in power shall endeavour to grant the broadest possible amnesty to persons who have participated in the armed conflict, or those deprived of their liberty for reasons related to the armed conflict, whether they are interned or detained. (Emphasis provided)

Furthermore, protection for the civilian population is expressly provided for in Additional Protocol II:

Article 13 Protection of the civilian population

The civilian population and individual civilians shall enjoy general protection against the dangers arising from military operations. To give effect to this protection, the following rules shall be observed in all circumstances.

The civilian population as such, as well as individual civilians, shall not be the object of attack. Acts or threats of violence the primary purpose of which is to spread terror among the civilian population are prohibited.

Civilians shall enjoy the protection afforded by this Part, unless and for such time as they take a direct part in hostilities.

Some have asserted that Common Article 3 of the Geneva Conventions belongs to the body of jus cogens norms.^[27] Jus cogens norms under the Vienna Convention of Law of the Treaties are "norm[s] accepted and recognized by the international community of States as a whole as [norms] from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character."^[28]

The principles embedded in Common Article 3 have been held to apply even to international armed conflict, thus, depicting a universal character.

It lays down fundamental standards which are applicable at all times, in all circumstances and to all States and from which no derogation at any time is permitted. As was stated, it "sets forth a minimum core of mandatory rules [and], reflects the fundamental humanitarian principles which underlie international humanitarian law as a whole, and upon which the Geneva Conventions in their entirety are based. These principles, the object of which is the respect for the dignity of the human person, developed as a result of centuries of warfare and had already become customary law at the time of the adoption of the Geneva Conventions because they reflect the most universally recognized humanitarian principles."^[29] (Emphasis provided)

Hence, non-observance of the minimum standard provided for in Common Article 3 triggers a violation of well-accepted principles of international law.

In a similar vein, there exist international human rights laws or IHRL (not necessarily belonging to international humanitarian law) that are of jus cogens nature. Thus:

There is a consensus x x x about the jus cogens nature of a number of prohibitions formulated in international human rights law x x x. These include at a minimum the prohibition of aggression, slavery and the slave trade, genocide x x x, racial discrimination, apartheid and torture x x x, as well as basic rules of international humanitarian law applicable in armed conflict, and the right to self-determination.^[30] (Emphasis provided)

International humanitarian law and international human rights law are two sets of regimes in international law. The two regimes have been compared and contrasted with each other, to wit:

The two sets of rules certainly have a different history and often a different field of application, both ratione personae and ratione temporis. Human rights thus apply to all people and humanitarian law applies to certain groups of persons (for example, to the wounded, to prisoners o[f] war, to civilians) and, furthermore, humanitarian law applies only in times of armed conflict. On the other hand, 'human rights' and 'humanitarian law' regulate, ratione materiae, similar rights at least insofar that they all intend to increase the protection of individuals, alleviate pain and suffering and secure the minimum standard of persons in various situations.^[31] (Emphasis in the original)

Thus, all persons are protected in both times of war and peace. The protection accorded by human rights laws does not cease to apply when armed conflict ensues.^[32] Still, some "human rights" are allowed to be derogated in times of "emergency which threatens the life of the nation."^[33] Nevertheless, provisions on the right to life, prohibition from torture, inhuman and degrading treatment, and slavery remain free from any derogation whatsoever, having acquired a jus cogens character.^[34]

We do not need to go further to determine whether these norms form part of "generally accepted principles of international law" to determine whether they are "part of the law of the land."^[35] At minimum, they have been incorporated through statutory provisions.

Rep. Act No. 9851 defines and provides for the penalties of crimes against humanity, serious violations of IHL, genocide, and other crimes against humanity.^[36] This law provides for the non-prescription of the prosecution of and execution of sentences imposed with regard to the crimes defined in the Act.^[37] It also provides for the jurisdiction of the Regional Trial Court over the crimes defined in the Act.^[38]

These crimes are, therefore, separate from or independent from the crime of rebellion even if they occur on the occasion of or argued to be connected with the armed uprisings.

Not only does the statute exist. Relevant to these cases are the Declarations made by the Communist Party of the Philippines/New People's Army/National Democratic Front or CPP/NPA/NDF invoking the Geneva Conventions and its 1977 Additional Protocols.

One of these documents is the Declaration of Adherence to International Humanitarian Law dated August 15, 1991, whereby the National Democratic Front "formally declare[d] its adherence to international humanitarian law, especially Article 3 common to the Geneva Conventions as well as Protocol II additional to said conventions, in the conduct of armed conflict in the Philippines."^[39]

We may take judicial notice that on July 5, 1996, the National Democratic Front issued the Declaration of Undertaking to Apply the Geneva Conventions of 1949 and Protocol I of 1977. The National Democratic Front stated that:

Being a party to the armed conflict, civil war or war of national liberation and authorized by the revolutionary people and forces to represent them in diplomatic and other international relations in the ongoing peace negotiations with the GRP, we the National Democratic Front of the Philippines hereby solemnly declare in good faith to undertake to apply the Geneva Conventions and Protocol I to the armed conflict in accordance with Article 96, paragraph 3 in relation to Article 1, paragraph 4 of Protocol I.

The NDFP is rightfully and dutifully cognizant that this declaration x x x shall have in relation to the armed conflict with the GRP, the following effects:

a. the Geneva Conventions and Protocol I are brought into force for the NDFP as a Party to the conflict with immediate effect;

b. the NDFP assumes the same rights and obligations as those which have been assumed by a High Contracting Party to the Geneva Conventions and Protocol I; and

c. the Geneva Conventions and this Protocol are equally binding upon all Parties to the conflict.^[40] (Emphasis in the original)

In addition, in the context of peace negotiations, it appears that there is a Comprehensive Agreement on Respect for Human Rights and International Humanitarian Law (CARHRIHL) executed by the Government of the Republic of the Philippines (GRP) and the CPP/NPA/NDF. This agreement establishes the recognition of the existence, protection, and application of human rights and principles of international humanitarian law as well as provides the following rights and protections to individuals by the CPP/NPA/NDF. The agreement partly provides:

PART III
RESPECT FOR HUMAN RIGHTS

Article 1. In the exercise of their inherent rights, the Parties shall adhere to and be bound by the principles and standards embodied in international instruments on human rights.

Article 2. This Agreement seeks to confront, remedy and prevent the most serious human rights violations in terms of civil and political rights, as well as to uphold, protect and promote the full scope of human rights and fundamental freedoms, including:

1.	The right to self-determination of the Filipino nation by virtue of which the people should fully and freely determine their political status, pursue their economic, social and cultural development, and dispose of their natural wealth and resources for their own welfare and benefit towards genuine national independence, democracy, social justice and development.
	x x x x
3.	The right of the victims and their families to seek justice for violations of human rights, including adequate compensation or indemnification, restitution and rehabilitation, and effective sanctions and guarantees against repetition and impunity.
4.	The right to life, especially against summary executions (salvagings), involuntary disappearances, massacres and indiscriminate bombardments of communities, and the right not to be subjected to campaigns of incitement to violence against one's person.
	x x x x
7.	The right not to be subjected to physical or mental torture, solitary confinement, rape and sexual abuse, and other inhuman, cruel or degrading treatment, detention and punishment.
	x x x x
9.	The right to substantive and procedural due process, to be presumed innocent until proven guilty, and against self-incrimination.
	x x x x

PART IV
RESPECT FOR INTERNATIONAL HUMANITARIAN LAW

Article 1. In the exercise of their inherent rights, the Parties to the armed conflict shall adhere to and be bound by the generally accepted principles and standards of international humanitarian law.

Article 2. These principles and standards apply to the following persons:

1. civilians or those taking no active part in the hostilities;
   
   
2. members of armed forces who have surrendered or laid down their arms;
   
   
3. those placed hors de combat by sickness, wounds or any other cause;
   
   
4. persons deprived of their liberty for reasons related to the armed conflict; and,
   
   
5. relatives and duly authorized representatives of above-named persons.
   

Article 3. The following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the persons enumerated in the preceding Article 2:

1. violence to life and person, particularly killing or causing injury, being subjected to physical or mental torture, mutilation, corporal punishment, cruel or degrading treatment and all acts of violence and reprisals, including hostage-taking, and acts against the physical well-being, dignity, political convictions and other human rights;
   
   
2. holding anyone responsible for an act that she/he has not committed and punishing anyone without complying with all the requisites of due process;
   
   
3. requiring persons deprived of their liberty for reasons related to the armed conflict to disclose information other than their identity;
   
   
4. desecration of the remains of those who have died in the course of the armed conflict or while under detention, and breach of duty to tender immediately such remains to their families or to give them decent burial;
   
   
5. failure to report the identity, personal condition and circumstances of a person deprived of his/her liberty for reasons related to the armed conflict to the Parties to enable them to perform their duties and responsibilities under this Agreement and under international humanitarian law;
   

x x x x (Emphasis provided)

The CARHRIHL has provided a clear list of rights and duties that the parties must observe in recognizing the application of human rights and international humanitarian laws. The CPP/NPA/NDF, parties to an ongoing armed conflict and to which petitioners allegedly belong, are required to observe, at the minimum, the humane treatment of persons involved in the conflict, whether hors de combat or a civilian.

In all these instruments, even spies are accorded protection under Common Article 3 of the Geneva Conventions. Common Article 3 and Additional Protocol II are broad enough to secure fundamental guarantees to persons not granted prisoner of war or civilian status, such as protection from summary execution and right to fair trial.^[41] These fundamental guarantees are also found in Article 75, in relation to Articles 45 and 46 of Additional Protocol I.^[42] Spies and civilians suspected of being spies are also accorded protection under Rep. Act No. 9851.

IV

Concomitantly, persons committing crimes against humanity or serious violations of international humanitarian law, international human rights laws, and Rep. Act No. 9851 must not be allowed to hide behind a doctrine crafted to recognize the different nature of armed uprisings as a result of political dissent. The contemporary view is that these can never be considered as acts in furtherance of armed conflict no matter what the motive. Incidentally, this is the view also apparently shared by the CPP/NPA/NDF and major insurgent groups that are part of the present government's peace process.

We, therefore, should nuance our interpretation of what will constitute rebellion.

The rebel, in his or her effort to assert a better view of humanity, cannot negate himself or herself. Torture and summary execution of enemies or allies are never acts of courage. They demean those who sacrificed and those who gave their lives so that others may live justly and enjoy the blessings of more meaningful freedoms.

Torture and summary execution in any context are shameful, naked brutal acts of those who may have simply been transformed into desperate cowards. Those who may have suffered or may have died because of these acts deserve better than to be told that they did so in the hands of a rebel.

ACCORDINGLY, I concur that these petitions be dismissed and the Regional Trial Courts be directed to hear the cases with due and deliberate dispatch taking these views into consideration should the evidence so warrant.

---

^[1] However, see Ladlad v. Velasco, G.R. Nos. 172070-72, 172074-76, and 175013, June 1, 2007, 523 SCRA 318, wherein this court granted the petitions and ordered the dismissal of Criminal Case Nos. 06-452 and 06-944 for rebellion.

^[2] 1 Phil. 729 (1903).

^[3] Id. at 730.

^[4] 2 Phil. 345 (1903).

^[5] Id. at 346-347.

^[6] 99 Phil. 515 (1956).

^[7] Id. at 535-536.

^[8] Id. at 541.

^[9] 264 Phil. 593 (1990) [Per J. Narvasa, En Banc].

^[10] Id. at 617-618.

^[11] See Office of the Provincial Prosecutor of Zamboanga del Norte v. Court of Appeals, 401 Phil. 945 (2000).

^[12] 260 Phil. 702 (1990) [Per J. Cortes, En Banc].

^[13] Id. at 709-710.

^[14] 279 Phil. 448 (1991).

^[15] Id. at 462-463.

^[16] In August 30, 2011, the Philippines ratified the Rome Statute of the International Criminal Court.

^[17] See Vincent Chetail, 'The contribution of the International Court of Justice to international humanitarian law', 85 IRRC (2003) < http://www.icrc.org/eng/assets/files/other/irrc_850_chetail.pdf> accessed on February 5, 2014. Contemporary IHL developed from the early laws of war (jus in bello), the Martens Clause and the "elementary considerations of humanity," and the Hague Conventions of 1907.

^[18] See 'The Geneva Conventions of 1949 and their Additional Protocols', International Committee of the Red Cross <<u>http://www.icrc.org/eng/war-and-law/treaties-customary-law/geneva conventions/overview-geneva-conventions.htm> accessed on February 5, 2014. See also C. Greenwood, Historical Development and Basis in THE HANDBOOK OF HUMANITARIAN LAW IN ARMED CONFLICTS 9-10 (1995).
 
^[19] The Philippines is a signatory of the 1949 Geneva Conventions. It ratified the conventions on October 10, 1952. The Philippines acceded to Additional Protocol II on December 11, 1986.
 
^[20] M. M. MAGALLONA, FUNDAMENTALS OF PUBLIC INTERNATIONAL LAW 297 (2005) citing Legality of the Threat or Use of Nuclear Weapons, ICJ Reports, 1996, paras. 79 and 82.
 
^[21] Rep. Act No. 9851 (2009), "An Act Defining and Penalizing Crimes Against International Humanitarian Law, Genocide and Other Crimes Against Humanity, Organizing Jurisdiction, Designating Special Courts, and For Related Purposes," sec. 2 (a).

^[22] Rep. Act. No. 9851 (2009), sec. 2 (e).

^[23] Rep. Act. No. 9851 (2009), sec. 3 (c). See also The Prosecutor v. Dusko Tadic (Jurisdiction of the Tribunal), Case No. IT-94-1-AR72 (1995).

^[24] Protocol Additional To The Geneva Conventions of 12 August 1949, And Relating To The Protection of Victims of Non-International Armed Conflicts (Protocol II) of 8 June 1977.

^[25] See J. M. Henckaerts & L. Doswald-Beck, CUSTOMARY INTERNATIONAL HUMANITARIAN LAW 1-2 (vol. I [reprinted with corrections], 2009).

^[26] Article 1 Material field of application

1. This Protocol, which develops and supplements Article 3 common to the Geneva Conventions of 12 August 1949 without modifying its existing conditions of applications, shall apply to all armed conflicts which are not covered by Article 1 of the Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I) and which take place in the territory of a High Contracting Party between its armed forces and dissident armed forces or other organized armed groups which, under responsible command, exercise such control over a part of its territory as to enable them to carry out sustained and concerted military operations and to implement this Protocol.
   
   
2. This Protocol shall not apply to situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence, and other acts of a similar nature, as not being armed conflicts.
   

^[27] See Rafael Nieto-Navia, 'International Peremptory Norms (Jus Cogens) and International Humanitarian Law' (2001) < http://www.iccnow.org/documents/WritingColombiaEng.pdf> pp. 24-26, accessed on February 6, 2014. See also Ulf Linderfalk, 'The Effect of Jus Cogens Norms: Whoever Opened Pandora's Box, Did You Ever Think About the Consequences?', vol. 18, no. 5 European Journal of International Law (2007) < http://www.ejil.org/pdfs/18/5/248.pdf> pp. 853-871, accessed on February 6, 2014. Consider Ulf's discussion on the proposition that IHL, in relation to the right to self-defense and the right to use of force, has jus cogens character, pp. 865-867.

^[28] Article 53. Treaties conflicting with a peremptory norm of general international law ("jus cogens")

A treaty is void if, at the time of its conclusion, it conflicts with a peremptory norm of general international law. For the purposes of the present Convention, a peremptory norm of general international law is a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character.

^[29] See Rafael Nieto-Navia, 'International Peremptory Norms (Jus Cogens) and International Humanitarian Law' (2001) < http://www.iccnow.org/documents/WritingColombiaEng.pdf> p. 26, accessed on February 6, 2014.

^[30] O. DE SCHUTTER, INTERNATIONAL HUMAN RIGHTS LAW: CASES, MATERIALS, COMMENTARY 65 (2010).

^[31] I. DETTER, THE LAW OF WAR 160-161 (2nd edition, 2000).

^[32] See M. M. MAGALLONA, FUNDAMENTALS OF PUBLIC INTERNATIONAL LAW 311-312 (2005) citing the advisory opinion of the International Court of Justice on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, ICJ Reports, 2004, par. 106.

^[33] See Art. 4, International Covenant on Civil and Political Rights or ICCPR.

^[34] I. DETTER, THE LAW OF WAR 162 (2nd edition, 2000) citing Articles 6, 7, and 8 of the ICCPR.

^[35] Consti., art II, sec. 2. The Philippines renounces war as an instrument of national policy, adopts the generally accepted principles of international law as part of the law of the land and adheres to the policy of peace, equality, justice, freedom, cooperation, and amity with all nations. (Emphasis provided)

^[36] Rep. Act No. 9851 (2009), sec. 4 (b). In case of a non-international armed conflict, serious violations of common Article 3 to the four (4) Geneva Conventions of 12 August 1949, namely, any of the following acts committed against persons taking no active part in the hostilities, including members of the armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention or any other cause:

(1) Violence to life and person, in particular, willful killings, mutilation, cruel treatment and torture;
(2) Committing outrages upon personal dignity, in particular, humiliating and degrading treatment;
(3) Taking of hostages; and
(4) The passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all judicial guarantees which are generally recognized as indispensable.

^[37] Rep. Act No. 9851 (2009), sec. 11. Non-prescription. - The crimes defined and penalized under this Act, their prosecution, and the execution of sentences imposed on their account, shall not be subject to any prescription.

^[38] Rep. Act No. 9851 (2009), sec. 18. Philippine Courts, Prosecutors and Investigators. - The Regional Trial Courts of the Philippines shall have original and exclusive jurisdiction over the crimes punishable under this Act. Their judgments may be appealed or elevated to the Court of Appeals and to the Supreme Court as provided by law.   

The Supreme Court shall designate special courts to try cases involving crimes punishable under this Act. For these cases, the Commission on Human Rights, the Department of Justice, the Philippine National Police or other concerned law enforcement agencies shall designate prosecutors or investigators as the case may be.    

The State shall ensure that judges, prosecutors and investigators, especially those designated for purposes of this Act, receive effective training in human rights, International Humanitarian Law and International Criminal Law.   

See also the Rome Statute which the Philippines ratified on August 30, 2011. See par. 10 of the Preamble, Article 1, and Article 17 of the Rome Statute regarding the International Criminal Court's complementary jurisdiction over a case when a State party is unwilling or unable to carry out an investigation or prosecution.   

^[39] Declaration of Undertaking to Apply the Geneva Conventions of 1949 and Protocol I of 1977, National Democratic Front of the Philippines Human Rights Monitoring Committee, Annex D, 98 (Booklet Number 6, 2005).

^[40] Declaration of Undertaking to Apply the Geneva Conventions of 1949 and Protocol I of 1977, National Democratic Front of the Philippines Human Rights Monitoring Committee, Annex D, 12-13 (Booklet Number 6, 2005).
 
^[41] See J. M. Henckaerts & L. Doswald-Beck, CUSTOMARY INTERNATIONAL HUMANITARIAN LAW 2363 (vol. II, 2005).

^[42] Additional Protocol I, however, pertains to the protection of victims of international armed conflicts. Article 75 on Fundamental guarantees provides:

1. In so far as they are affected by a situation referred to in Article 1 of this Protocol, persons who are in the power of a Party to the conflict and who do not benefit from more favourable treatment under the Conventions or under this Protocol shall be treated humanely in all circumstances and shall enjoy, as a minimum, the protection provided by this Article without any adverse distinction based upon race, colour, sex, language, religion or belief, political or other opinion, national or social origin, wealth, birth or other status, or on any other similar criteria. Each Party shall respect the person, honour, convictions and religious practices of all such persons.
      
   
2. The following acts are and shall remain prohibited at any time and in any place whatsoever, whether committed by civilian or by military agents:
   
   

   (a)	violence to the life, health, or physical or mental well-being of persons, in particular:
   	(i)	murder;
   	(ii)	torture of all kinds, whether physical or mental;
   	(iii)	corporal punishment; and
   	(iv)	mutilation;
   (b)	outrages upon personal dignity, in particular humiliating and degrading treatment, enforced prostitution and any form of indecent assault;
   (c)	the taking of hostages;
   (d)	collective punishments; and
   (e)	threats to commit any of the foregoing acts.

3. Any person arrested, detained or interned for actions related to the armed conflict shall be informed promptly, in a language he understands, of the reasons why these measures have been taken. Except in cases of arrest or detention for penal offences, such persons shall be released with the minimum delay possible and in any event as soon as the circumstances justifying the arrest, detention or internment have ceased to exist.
   
   
4. No sentence may be passed and no penalty may be executed on a person found guilty of a penal offence related to the armed conflict except pursuant to a conviction pronounced by an impartial and regularly constituted court respecting the generally recognized principles of regular judicial procedure, which include the following:
   
   

   (a)	the procedure shall provide for an accused to be informed without delay of the particulars of the offence alleged against him and shall afford the accused before and during his trial all necessary rights and means of defence;
   (b)	no one shall be convicted of an offence except on the basis of individual penal responsibility;
   (c)	no one shall be accused or convicted of a criminal offence on account of any act or omission which did not constitute a criminal offence under the national or international law to which he was subject at the time when it was committed; nor shall a heavier penalty be imposed than that which was applicable at the time when the criminal offence was committed; if, after the commission of the offence, provision is made by law for the imposition of a lighter penalty, the offender shall benefit thereby;
   (d)	anyone charged with an offence is presumed innocent until proved guilty according to law;
   (e)	anyone charged with an offence shall have the right to be tried in his presence;
   (f)	no one shall be compelled to testify against himself or to confess guilt;
   (g)	anyone charged with an offence shall have the right to examine, or have examined, the witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;
   (h)	no one shall be prosecuted or punished by the same Party for an offence in respect of which a final judgement acquitting or convicting that person has been previously pronounced under the same law and judicial procedure;
   (i)	anyone prosecuted for an offence shall have the right to have the judgement pronounced publicly; and
   (j)	a convicted person shall be advised on conviction of his judicial and other remedies and of the time-limits within which they may be exercised.

   
   
5. Women whose liberty has been restricted for reasons related to the armed conflict shall be held in quarters separated from men's quarters. They shall be under the immediate supervision of women. Nevertheless, in cases where families are detained or interned, they shall, whenever possible, be held in the same place and accommodated as family units.
   
   
6. Persons who are arrested, detained or interned for reasons related to the armed conflict shall enjoy the protection provided by this Article until their final release, repatriation or re-establishment, even after the end of the armed conflict.
   
   
7. In order to avoid any doubt concerning the prosecution and trial of persons accused of war crimes or crimes against humanity, the following principles shall apply: 
    
   

   (a)	persons who are accused of such crimes should be submitted for the purpose of prosecution and trial in accordance with the applicable rules of international law; and
   (b)	any such persons who do not benefit from more favourable treatment under the Conventions or this Protocol shall be accorded the treatment provided by this Article, whether or not the crimes of which they are accused constitute grave breaches of the Conventions or of this Protocol.

   
   
8. No provision of this Article may be construed as limiting or infringing any other more favourable provision granting greater protection, under any applicable rules of international law, to persons covered by paragraph 1.