Articles of War: key definitions
- The term “officer” means a commissioned officer (Article 1).
- The term “soldier” includes a non-commissioned officer, a private, or any other enlisted man (Article 1).
- The term “company” includes a troop or battery (Article 1).
- The term “battalion” includes a squadron (Article 1).
Persons covered by military law
- All officers, members of the Nurse Corps and soldiers of the Regular Force of the Philippine Army; all reservists are subject to the Articles of War from the dates of their call to active duty and while on such active duty (Article 2).
- All trainees undergoing military instructions are subject to the Articles of War from the dates they are required by the terms of the call, draft, or order to obey the same (Article 2).
- All other persons lawfully called, drafted, or ordered into, or to duty or for training in the service are subject to the Articles of War from the dates required to obey the call, draft, or order (Article 2).
- Cadets, flying cadets, and probationary third lieutenants are subject to the Articles of War (Article 2).
- All retainers/to the camp and all persons accompanying or serving with the Army of the Philippines in the field in time of war or when martial law is declared are subject to the Articles of War though not otherwise subject (Article 2).
- Persons are subject to the Articles of War if they are under sentence adjudged by courts-martial (Article 2).
- Officers are triable under these Articles only through the court-martial structure provided by Articles 16, 12–14, and officers are protected against being tried by inferior rank when it can be avoided (Article 16).
Court-martial structure and appointment
The Act classifies courts-martial into three kinds: General Courts-Martial, Special Courts-Martial, and Summary Courts-Martial (Article 3).
General Courts-Martial may consist of any number of officers not less than five (Article 5).
Special Courts-Martial may consist of any number of officers not less than three (Article 6).
Summary Courts-Martial consist of one officer (Article 7).
All officers in active duty in the Army are competent to serve on courts-martial for trials, and the appointing authority must detail officers best qualified by age, training, experience, and judicial temperament (Article 4).
Officers with less than two years’ service must not be appointed as members of courts-martial in excess of the minority membership, if it can be avoided without manifest injury to the service (Article 4).
General Courts-Martial may be appointed by the President, the Chief of Staff of the Philippine Army, and—when empowered by the President—the Provost Marshal General, the Commanding Officer of a Division, the District Commander, the Superintendent of the Military Academy, or the Commanding Officer of a separate brigade or body of troops (Article 8).
When a commander appointing a general court-martial is the accuser or prosecutor, the court-martial must be appointed by superior competent authority (Article 8).
No officer may sit as a member of a general court-martial if he is the accuser or a witness for prosecution or defense (Article 8).
The appointing authority must detail one law member for each general or special court-martial; for general courts-martial the law member is an officer of the Judge Advocate Service, unless not available whereupon an officer of another branch selected by the appointing authority as specially qualified performs the duties (Article 8).
For each general or special court-martial, the appointing authority appoints a trial judge advocate and defense counsel, and for each general courts-martial it must appoint assistant trial judge advocates and assistant defense counsel when necessary (Article 11).
No officer who acted as member, trial judge advocate, assistant trial judge advocate, defense counsel, or assistant defense counsel in the same case may later act as staff judge advocate to the reviewing or confirming authority (Article 11).
Special Courts-Martial may be appointed by the commanding officer of a district and—when empowered by the President—by the commanding officer of a garrison, fort, camp, brigade, regiment, detached battalion, or other detached command (Article 9).
If the commanding officer is the accuser or prosecutor, the court-martial must be appointed by superior authority, and it may be appointed by superior authority when desirable (Article 9).
No officer may sit as a member of a special court-martial if he is the accuser or a witness for prosecution or defense (Article 9).
Summary Courts-Martial may be appointed by the commanding officer of a garrison, fort, camp, or other place where troops are on duty, and by the commanding officer of a regiment, detached battalion, detached company, or other detachment (Article 10).
When only one officer is present with the command, that officer serves as the summary court-martial for the command (Article 10).
Superior authority may in any case appoint a summary court-martial when deemed desirable (Article 10).
Jurisdiction and limits by court type
General Courts-Martial have power to try any person subject to military law for any crime or offense made punishable by the Articles and also other persons subject to trial by military tribunals under the law of war (Article 12).
No officer may be brought to trial by a general court-martial appointed by the Superintendent of the Military Academy (Article 12).
The authority competent to appoint a general court-martial may cause any case to be tried by a special court-martial despite special-court limitations on offenses, when in the interest of the service required; limitations as to persons and punishing power must still be observed (Article 12).
Special Courts-Martial may try persons subject to military law for any crime or offense not capital punishable by the Articles (Article 13).
The President may by regulations except from the jurisdiction of special courts-martial any class or classes of persons subject to military law (Article 13).
Special courts-martial may not adjudge confinement in excess of six months and may not adjudge forfeiture of more than two-thirds pay per month for a period not exceeding six months (Article 13).
Summary Courts-Martial may try persons subject to military law for any crime or offense not capital, but they cannot try an officer, a member of the Nurse Corps, a cadet, a flying cadet, or a probationary third lieutenant (Article 14).
Non-commissioned officers may not be brought to trial before a summary court-martial if they object, without authority of the officer competent to bring them to trial before a general court-martial (Article 14).
The President may by regulations except from the jurisdiction of summary courts-martial any class or classes of persons subject to military law (Article 14).
Summary courts-martial may not adjudge confinement in excess of one month, restriction to limits for more than three months, or forfeiture or detention of more than two-thirds of one month’s pay (Article 14).
Jurisdiction rules on courts-martial do not prevent other military tribunals from exercising concurrent jurisdiction in respect of offenders or offenses triable by them under statute or the law of war (Article 15).
Officers must be triable only by general and special courts-martial, and an officer must not, when it can be avoided, be tried by officers inferior in rank (Article 16).
Trial rights, prosecution, and defenses
For a general or special court-martial, the trial judge advocate prosecutes in the name of the People of the Philippines and, under the court’s direction, prepares the record of proceedings (Article 17).
The accused has the right to be represented by counsel of his own selection, by civil counsel if he provides such counsel, or by military counsel if reasonably available; otherwise representation is by the defense counsel duly appointed for the court under Article 11 (Article 17).
If the accused has counsel of his own selection, the court’s appointed defense counsel (and assistant defense counsel if any) acts as associate counsel if the accused so desires (Article 17).
Members of a general or special court-martial may be challenged by the accused or trial judge advocate for cause stated, and the court determines relevancy and validity (Article 18).
Challenges are not allowed for more than one member at a time; challenges by the trial judge advocate must ordinarily be presented and decided before those offered by the accused (Article 18).
Required oaths and evidence handling
The trial judge advocate must administer to court members an oath requiring them to try and determine matters between the People and the person to be tried, without partiality, and to follow rules and articles; if doubt arises unexplained by rules and articles, they must decide according to conscience and the best understanding and the custom of war (Article 19).
Members must not divulge findings or sentence until published by proper authority or duly announced by the court, and they must not disclose votes or opinions of any particular member upon challenge or findings/sentence except when required as a witness by a court of justice in due course (Article 19).
The court president must administer to the trial judge advocate and assistant trial judge advocate an oath to perform duties faithfully and impartially and not divulge findings or sentence to any but the proper authority until properly disclosed (Article 19).
Witnesses must be examined on oath or affirmation that their evidence is the truth, the whole truth and nothing but the truth, with God-formal language if affirmation is not used (Article 19).
Reporters of proceedings must take oath to faithfully perform duties (Article 19).
Interpreters must take oath to truly interpret (Article 19).
The court may grant a continuance to either party for reasonable cause as often as just (Article 20).
If the accused fails or refuses to plead, answers foreign to the purpose, makes an inconsistent statement after a guilty plea, or the court finds guilty plea improvident or through lack of understanding, the court proceeds to trial and judgment as if not guilty (Article 21).
Trial judge advocates and summary courts-martial may issue process to compel witnesses to appear and testify in the same manner courts in the Philippines with criminal jurisdiction may lawfully issue (Article 22).
Subpoenas, contempt, and self-incrimination
- A person not subject to military law who is duly subpoenaed and willfully neglects or refuses to appear, qualify, testify, or produce legally subpoenaed documentary evidence is guilty of contempt and is punished on information in the Court of First Instance of the Province or city where the subpoena is issued, with jurisdiction conferred for this purpose (Article 23).
- The city fiscal or city attorney or provincial fiscal must file and prosecute the contempt case upon certification of facts by the military court, commission, court of inquiry, or board (Article 23).
- Indigent witnesses must receive reasonable traveling expenses paid out of the appropriation of the Army (Article 23).
- Witnesses cannot be compelled to incriminate themselves or to answer any question not material to the issue when the answer might degrade them (Article 24).
Depositions and records of inquiry
- A duly authenticated deposition taken upon reasonable notice to the opposite party may be read in evidence in any non-capital case before a military court or commission, or in proceedings before a court of inquiry or military board, when taken if the witness resides, is found, or is about to go outside the Philippines or beyond one hundred and fifty kilometers from the place of trial/hearing, will probably continue absent when testimony is required, or when the court/commission/board/appointing authority is satisfied the witness is unable to appear in person due to age, sickness, bodily infirmity, imprisonment, or other reasonable cause (Article 25).
- Deposition testimony may be adduced by the defense in capital cases (Article 25).
- Depositions may be taken before and authenticated by any officer, military or civil, authorized by Philippine laws or by the laws of the place where the deposition is taken to administer oaths (Article 26).
- Records of proceedings of a court of inquiry may be read in evidence before a court-martial or military commission in any case not capital nor extending to dismissal of an officer, and may be read in any proceeding before a court of inquiry or military board; such evidence may be adduced by the defense in capital cases or cases extending to dismissal of an officer, when the accused gives consent (Article 27).
Announcement of acquittal and closed sessions
- When a court has acquitted the accused upon all specifications and charges, it must at once announce the result in open court; in other cases, the findings and sentence may be similarly announced under presidential regulations (Article 28).
- When a general or special court-martial sits in closed session, the trial judge advocate and assistant trial judge advocate must withdraw; any assistance required in referring to recorded evidence must be obtained in open court in the presence of the accused and his counsel if any (Article 29).
Voting rules and contempt in proceedings
- Voting on challenges, findings, and sentence by general or special court-martial members must be by secret written ballot (Article 30).
- The junior member counts votes and the president checks and announces the result to members (Article 30).
- For interlocutory questions other than challenges, the law member may rule in open court; if an objection is made, the court is cleared and closed and the question is decided by majority vote viva voce, beginning with the junior in rank (Article 30).
- Specific disputes are carved out from “objection to admissibility of evidence offered during the trial,” including matters on order of witness evidence, recall, admission/experts, view of premises, competency of witnesses (including children and mentally incompetent witnesses), insanity issues and physical examinations, propriety of counsel arguments/statements, and rulings involving military strategy or tactics—when members object to the law member’s ruling on these matters, the court clears and closes and decides by majority vote viva voce beginning with the junior in rank (Article 30).
- A military tribunal may punish as contempt any person who disturbs proceedings by riot or disorder, but the punishment must not exceed ten days’ confinement or a fine not exceeding two hundred pesos, or both (Article 31).
Records, forwarding, and preservation
- Each general court-martial must keep a separate record of proceedings for each case and must authenticate it by signatures of the president and trial judge advocate; if not possible due to death, disability, or absence, alternate signatories are specified, including a member in lieu of the president and an assistant trial judge advocate in lieu of the trial judge advocate (Article 32).
- Each special and summary court-martial must keep separate records for each case, containing required matter and authenticated in the manner required by presidential regulations (Article 33).
- The trial judge advocate must forward original records of proceedings with expedition to the appointing authority or successor command, and after action transfer records to the Judge Advocate General of the Army (Article 34).
- For summary courts-martial, after action by the appointing officer or officer commanding for the time being, a report of each trial is transmitted to general headquarters designated by presidential regulations for filing in the office of the judge advocate; when no longer of use, records of summary courts-martial may be destroyed (Article 35).
Effect of irregularities and presidential procedural rules
- Proceedings of a court-martial are not invalid, and findings/sentences are not disapproved, for improper admission/rejection of evidence or errors in pleading/procedure unless, in the opinion of the reviewing or confirming authority after examination of the entire proceedings, the error injuriously affected substantial rights (Article 36).
- The act or omission tried must constitute an offense denounced and made punishable by the Articles (Article 36).
- Omission of the words “hard labor” in any sentence adjudging imprisonment or confinement does not deprive executing authorities of the power to require hard labor when authorized by the Executive Order prescribing maximum punishments (Article 36).
- The President may prescribe procedural rules (including modes of proof) for cases before courts-martial, courts of inquiry, military commissions, and other military tribunals, applying generally recognized rules of evidence in Philippine criminal trials insofar as practicable, and the President’s regulations must not be contrary or inconsistent with the Articles (Article 37).
Limitations on prosecution and double jeopardy
- Except for desertion or murder committed in time of war, or mutiny, no person subject to military law may be tried or punished by court-martial for an offense committed more than two years before arraignment (Article 38).
- For desertion in time of peace or for any crime or offense punishable under articles ninety-four and ninety-five, the limitation period is three years (Article 38).
- In computing the limitation periods, the period of the accused’s absence from the jurisdiction of the Philippines and any period during which due to a manifest impediment the accused is not amenable to military justice are excluded (Article 38).
- The limitation rule does not authorize trial or punishment for any offense barred by existing law (Article 38).
- No person shall, without consent, be tried a second time for the same offense (Article 39).
- A trial for purposes of the double jeopardy bar is not complete until reviewing and, if there be one, confirming authority have taken final action (Article 39).
- Records of trial may not be returned for reconsideration of an acquittal, a finding of not guilty of any specification, a finding of not guilty of any charge (subject to a condition where the record shows a guilty finding under a sufficiently alleging specification), or the sentence with a view to increasing severity (except when less than mandatory sentence fixed by law) (Article 39).
- No court-martial may reconsider findings or sentence in particular matters where returning the record is prohibited (Article 39).
Punishments: prohibited measures
The Articles prohibit cruel and unusual punishments of every kind (Article 40).
A person under sentence of a court-martial cannot be punished by confinement in a penitentiary unless:
- the case does not fall under enumerated exceptions involving desertion in time of war, repeated desertion in time of peace, and mutiny; and
- the convicted act or omission is recognized as a civil offense punishable by penitentiary confinement for more than one year by statute of the Philippines; or is by commutation of a death sentence; and
- the confinement authorized and adjudged is more than one year (Article 41).
When two or more acts or omissions are convicted and at least one is punishable by penitentiary confinement under the Articles, the entire confinement may be executed in a penitentiary (Article 41).
Penitentiary confinement may be served in any penitentiary under jurisdiction of the Philippines (Article 41).
Persons sentenced to dishonorable discharge and to confinement not in a penitentiary must be confined in disciplinary barracks or elsewhere as the President or reviewing authority directs, but not in a penitentiary (Article 41).
The death penalty may be imposed only by a general court-martial in strictly limited vote concurrence conditions:
- no person may be convicted of an offense for which death is mandatory by law and sentenced to suffer death unless all members present at the time the vote is taken concur;
- death is allowed only for offenses expressly made punishable by death in these Articles; and
- life imprisonment and confinement for more than ten years require concurrence of three-fourths of all members present at the time of the vote;
- all other convictions and sentences are determined by a two-thirds vote of those members present; and all other questions are determined by majority vote (Article 42).
When an officer is dismissed from service for cowardice or fraud, the Act requires publication of the delinquent’s crime, punishment, name, and place of abode in newspapers in and about the camp and the province or city of usual residence, and after publication it is scandalous for an officer to associate with him (Article 43).
When punishment for an offense leaves discretion to a court-martial, punishment must not exceed maximum limits the President prescribes (Article 44).
In time of peace, penitentiary confinement may not exceed the maximum period prescribed by law under Article 41 unless, in addition to the penitentiary-eligible offense, the accused is convicted at the same time of one or more other offenses (Article 44).
Procedure for approval, confirmation, review, and remission
No sentence of a court-martial may be carried into execution until approved by the officer appointing the court or the officer commanding for the time being (Article 45).
Records received by reviewing or confirming authorities must be referred before action to the staff judge advocate or Judge Advocate General (Article 45).
The approving authority’s power includes:
- approving/disapproving a finding and approving only so much of a finding of guilty as involves a lesser included offense when evidence requires only the lesser degree; and
- approving or disapproving the whole or any part of the sentence (Article 46).
The approving authority may remand for rehearing under Article 50 (Article 46).
The President’s confirmation is required for:
- any sentence respecting a general officer;
- any sentence extending to the dismissal of an officer, except that in time of war dismissal of an officer below grade of “brigadier general” may be carried into execution upon confirmation by the commanding general of the Army in the field;
- any sentence extending to suspension or dismissal of a cadet, flying cadet, or probationary third lieutenant; and
- any sentence of death, except for persons convicted in time of war, of murder, mutiny, desertion, or as spies, where death may be executed subject to Article 50 upon confirmation by the commanding general of the Army in the field (Article 47).
If the competent confirming authority has already acted as approving authority, no additional confirmation is necessary (Article 47).
The power to confirm includes:
- confirming/disapproving findings (including lesser included offenses when evidence supports only lesser degree);
- confirming/disapproving the whole or any part of the sentence; and
- remanding for rehearing under Article 50 (Article 48).
Execution and mitigation/remission are controlled by specific authority rules:
- the power to order execution includes power to mitigate or remit whole or any part of sentence (Article 49).
- an unexecuted portion may be mitigated or remitted by the military authority competent to appoint for the command a court of the kind that imposed the sentence, excluding penitentiaries and Philippine Army Disciplinary Barracks; superior military authority may also do so (Article 49).
- no sentence approved or confirmed by the President may be remitted/mitigated by any other authority, and loss of files by an officer may not be remitted/mitigated by any authority inferior to the President except as provided in Article 52 (Article 49).
- when empowered by the President, the commanding general of the Army in the field or district commander may approve/confirm and commute, and may mitigate or remit and then order execution as commuted/mitigated/remitted, even when presidential confirmation is required by these Articles (Article 49).
Review boards and rehearing rules
- The Judge Advocate General must constitute, in his office, a board of review consisting of one or more officers of the Judge Advocate Service (Article 50).
- Before any record of trial requiring Presidential approval or confirmation is submitted to the President, the record must be examined by the board of review, which submits a written opinion to the Judge Advocate General; the Judge Advocate General transmits the record, board opinion, and recommendations to the Chief of Staff for presidential action (Article 50).
- No execution is allowed for sentences of a general court-martial involving death, dismissal not suspended, dishonorable discharge not suspended, or confinement in a penitentiary unless the board of review (with approval of the Judge Advocate General) holds the record legally sufficient to support the sentence; an exception exists when the case involves dishonorable discharge or confinement in a penitentiary based solely on guilty pleas to charges/specifications where the accused pleaded guilty (Article 50).
- If legally sufficient, the Judge Advocate General advises the reviewing/confirming authority; if legally insufficient or errors of law injuriously affect substantial rights and the Judge Advocate General concurs, findings and sentence are vacated in whole or in part and the record is transmitted to convening authority for rehearing or proper action (Article 50).
- If the Judge Advocate General does not concur, the Judge Advocate General forwards papers including board opinion and dissent directly to the Chief of Staff for presidential action, which may confirm, disapprove, vacate, and grant remission/mitigation/commutation, or disapprove any finding/sentence in whole or part (**Article