686 SUPREME COURT REPORTS ANNOTATED

Tan vs. Barrios

*
G.R. Nos. 85481-82. October 18, 1990.

WILLIAM TAN, JOAQUIN TAN LEH and VICENTE TAN,

petitioners, vs. HERNANI T. BARRIOS, in his capacity as
State Prosecutor, Department of Justice, THE CITY
FISCAL OF CAGAYAN DE ORO CITY, THE
HONORABLE LEONARDO N. DEMECILLO, Presiding
Judge of the Regional Trial Court, Branch 24, Cagayan De
Oro City, and THE PEOPLE OF THE PHILIPPINES,
respondents.

Criminal Procedure; Military Tribunals; Judgments; Due

Process; Matters adjudged in a cause do not prejudice those who
were not parties to it. Hence, the decision in Cruz vs. Enrile
nullifying the proceedings in military courts against the civilian
petitioners therein and ordering the refiling of informations
against them in the proper civil courts, may not affect the rights of
persons who were not parties in that case and who, not having
submitted to the court's jurisdiction, did not have their day in
court.—The petition is meritorious. The public respondents
gravely abused their discretion and acted without or in excess of
their jurisdiction in misconstruing the third paragraph of the
dispositive portion of this Court's decision in Cruz vs. Enrile as
their authority to refile in the civil court the criminal actions
against petitioners who had been tried and acquitted by Military
Commission No. 1 during the period of martial law. It is an
unreasonable application of Cruz vs. Enrile, for the decision
therein will be searched in vain for such authority to reprosecute
every civilian who had ever faced a court martial, much less those
who had been acquitted by such bodies more than a decade ago
like the petitioners Tan, et al. herein. The decision in Cruz vs.
Enrile would be an instrument of oppression and injustice unless
given a limited application only to the parties/petitioners therein
who sought the annulment of the court martial pro ceedings
against themselves and prayed for a retrial in the civil courts of
the criminal cases against them. They alone are affected by the
judgment in Cruz vs. Enrile, not all and sundry who at one time
or another had been tried and sentenced by a court martial during
the period of martial law. Res inter alios judicatae nullum aliis
praejudicium faciunt. "Matters adjudged in a cause do not
prejudice those who were not parties to it." (54 C.J. 719.) It is a
cardinal rule of procedure that a court's judgment or order in a
case shall not adversely affect

_______________

* EN BANC.

687

VOL. 190, OCTOBER 18, 1990 687

Tan vs. Barrios

persons who were not parties to the self same case (Icasiano vs.
Tan, 84 Phil. 860). Hence, this court's pronouncement in Cruz vs.
Enrile nullifying the proceedings in military courts against the
civilian petitioners therein and ordering the refiling of
informations against them in the proper civil courts, may not
affect the rights of persons who were not parties in that case and
who not having submitted to the court's jurisdiction, did not have
.their day in court (Busacay vs. Buenaventura, 94 Phil. 1033).
Their reprosecution, based on the decision in Cruz us. Enrile in
which they took no part and were not heard, would be violative of
their right to due process, the same right of the petitioners in
Cruz vs. Enrile that this Court endeavored to protect when it
nullified the proceedings against them in the military tribunals
by applying the Olaguer doctrine that the trial of civilians by
military process was not due process.
Same; Same; Same; Same; Same; The decision in Olaguer vs.
Military Commission No. 34 should be applied prospectively only
to future cases and cases still ongoing or not yet final when said
decision was promulgated.—In the interest of justice and
consistency, we hold that Olaguer should, in principle, be applied
prospectively only to future cases and cases still ongoing or not
yet final when that decision was promulgated. Hence, there
should be no retroactive nullification of final judgments, whether
of conviction or acquittal, rendered by military courts against
civilians before the promulgation of the Olaguer decision. Such
final sentences should not be disturbed by the State. Only in
particular cases where the convicted person or the State shows
that there was serious denial of the Constitutional rights of the
accused should the nullity of the sentence be declared and a
retrial be ordered based on the violation of the constitutional
rights of the accused, and not on the Olaguer doctrine. If a retrial
is no longer possible, the accused should be released since the
judgment against him is null on account of the violation of his
constitutional rights and denial of due process.
Same; Same; Same; Double Jeopardy; The refiling of the
information against herein petitioners who had been acquitted by
the military tribunal long before the promulgation of the Olaguer
decision, would place them in double jeopardy.—The doctrine of
"operative facts" applies to the proceedings against the petitioners
and their co-accused before Military Commission No. 1. The
principle of absolute invalidity of the jurisdiction of the military
courts over civilians should not be allowed to obliterate the
"operative facts" that in the particular case of the petitioners, the
proceedings were fair, that there were no serious

688

688 SUPREME COURT REPORTS ANNOTATED

Tan vs. Barrios

violations of their constitutional right to due process, and that the

jurisdiction of the military commission that heard and decided the
charges against them during the period of martial law, had been
affirmed by this Court (Aquino vs. Military Commission No. 2, 63
SCRA 546) years before the Olaguer case arose and came before
us. Because of these established operative facts, the refiling of the
information against the petitioners would place them in double
jeopardy, in hard fact if not in constitutional logic.
Same; Same; Same; Constitutional Law; Ex Post Facto Law;
Depriving the petitioners of the protection of the judgment of
acquittal by retroactively divesting the military commission of the
jurisdiction it had exercised over them would amount to an ex post
facto law.—Furthermore, depriving the petitioners of the
protection of the judgment of acquittal rendered by the military
commission in their particular case by retroactively divesting the
military commission of the jurisdiction it had exercised over them
would amount to an ex past facto law or ruling, again, in sharp
reality if not in strict constitutional theory.

GUTIERREZ, JR., J.: Separate Opinion

Criminal Procedure; There should be no distinction in

applying the doctrine established in this case.—We now rule in
this petition that Olaguer should be applied prospectively. What
happens to the 90 convictions for murder, 21 for kidnapping, 5 for
kidnapping with murder, 23 for robbery with homicide, 10 for
frustrated or attempted murder or homicide, 20 for robbery, 4 for
rape, 22 for illegal possession of firearms and one for abortion
which the Court nullified in Cruz v. Enrile? Most of those
convicted and serving sentence have been released and the filing
of new prosecutions have been ordered. Shall the new
prosecutions now stop and all the 217 petitioners be ordered
recommitted to jail? If the new prosecutions will continue because
that is the law of that case why should William Tan, Joaquin Tan
Leh and Vicente Tan be treated differently? Why should the
judgments of military tribunals involving civilians be valid for one
group while invalid for another? Prospective for some and
retroactive for others?

PETITION for certiorari and prohibition to review the

decision of the Regional Trial Court of Cagayan de Oro
City, Br. 24. Demecillo, J.

The facts are stated in the opinion of the Court.

689

VOL. 190, OCTOBER 18, 1990 689

Tan vs. Barrios

GRIÑO-AQUINO, J.:

On the basis of Proclamation No. 1081 dated September 21,

1972, then President Ferdinand E. Marcos, thru General
Order No. 8 dated September 27, 1972, authorized the AFP
Chief of Staff to create military tribunals "to try and decide
cases of military personnel and such other cases as may be
referred to them."
In General Order No. 21 dated September 30, 1972, the
military tribunals, "exclusive of the civil courts," were
vested with jurisdiction among others, over violations of the
law on firearms, and other crimes which were directly
related to the quelling of rebellion and the preservation of
the safety and security of the Republic.
In General Order No. 12-b dated November 7, 1972,
"crimes against persons x x x as defined and penalized in
the Revised Penal Code" were added to the jurisdiction of
military tribunals/commissions.
Subsequently, General Order No. 49, dated October 11,
1974, redefined the jurisdiction of the Military Tribunals.
The enumeration of offenses cognizable by such tribunals
excluded crimes against persons as defined and penalized in
the Revised Penal Code. However, although civil courts
should have exclusive jurisdiction over such offenses not
mentioned in Section 1 of G.O. No. 49, Section 2 of the
same general order provided that "the President may, in
the public interest, refer to a Military Tribunal a case
falling under the exclusive jurisdiction of the civil courts"
and vice versa.
On April 17, 1975, the three petitioners, with twelve (12)
others, were arrested and charged in Criminal Case No.
MC-1-67 entitled, "People of the Philippines vs. Luis Tan
alias Tata alias Go Bon Hoc, et al." before the Military
Commission No. 1, for the crimes of:
(1) murder through the use of an unlicensed or illegally-
possessed firearm, penalized under Article 248 of the
Revised Penal Code, in relation to Section 1, par. 6 of
General Order No. 49, for the killing on August 25, 1973 of
Florentino Lim of the wealthy Lim Ket Kai family of
Cagayan de Oro City; and
(2) unlawful possession, control, and custody of a pistol,
caliber .45 SN-1283521 with ammunition, in violation of
General
690

690 SUPREME COURT REPORTS ANNOTATED

Tan vs. Barrios

Orders Nos. 6 and 7 in relation to Presidential Decree No.

9.
The accused were:

1. Luis Tan alias Tata alias Go Bon Hoc

2. Ang Tiat Chuan alias Chuana
3. Mariano Velez, Jr.
4. Antonio Occaciones
5. Leopoldo Nicolas
6. Enrique Labita
7. Oscar Yaun
8. Joaquin Tan Leh alias Go Bon Huat alias Taowie
9. Eusebio Tan alias Go Bon Ping
10. Vicente Tan alias Go Bon Beng alias Donge
11. Alfonso Tan alias Go Bon Tiak
12. Go E Kuan alias Kunga
13. William Tan alias Go Bon Ho
14. Marciano Benemerito alias Marcing alias Dodong
 15. Manuel Beleta, and
16. John Doe (Annex A, Petition).

(Names italicized are the petitioners herein.)

Because the case was a "cause celebre" in Cagayan de Oro

City, President Marcos, pursuant to the recommendation of
Defense Secretary Juan Ponce Enrile, withdrew his earlier
order (issued in response to the requests of the defendants'
lawyers) to transfer the case to the civil courts. Hence, the
case was retained in the military court (Annexes A to C of
Supplemental/Amended Petition, pp. 72-88, Rollo). All the
accused were detained without bail in the P.C. Stockade in
Camp Crame.
Upon arraignment on May 6, 1975, all the accused
pleaded "not guilty." Manuel Beleta was discharged to be
used as a state witness. He was released from detention on
May 5, 1975 (p. 4, Rollo).
Almost daily trials were held for more than thirteen (13)
months. The testimonies of 45 prosecution witnesses and
35 defense witnesses filled up twenty-one (21) volumes of
transcripts consisting of over 10,000 pages (p. 75, Rollo).
On June 10, 1976, a decision entitled "Findings and
Sentence," was promulgated by the Military Commission
finding five (5) of the accused namely:
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VOL. 190, OCTOBER 18, 1990 691

Tan vs. Barrios

1. Luis Tan
2. Ang Tiat Chuan
3. Mariano Velez, Jr.
4. Antonio Occaciones, and
5. Leopoldo Nicolas

guilty of MURDER. Each of them was sentenced to suffer

an indeterminate prison term of from seventeen (17) years,
four (4) months, and twenty-one (21) days, to twenty (20)
years.
A sixth accused, Marciano Benemerito, was found guilty
of both MURDER and ILLEGAL POSSESSION OF
FIREARM, and was sentenced to suffer the penalty of
death by electrocution (Annex B, Petition).
Eight (8) of the accused, namely:
 1. Oscar Yaun
2. Enrique Labita
3. Eusebio Tan
4. Alfonso Tan
5. Go E Kuan
6. William Tan (petitioner herein)
7. Joaquin Tan Leh (petitioner herein) and
8. Vicente Tan (petitioner herein)

were acquitted of the charges, and released on June 11,

1976 (p. 8, Rollo).
On January 17, 1981, Proclamation No. 2045 ended
martial rule and abolished the military tribunals and
commissions.
On May 22, 1987, this Court promulgated a decision in
Olaguer vs. Military Commission No. 34, et al. (150 SCRA
144), vacating the sentence rendered on December 4, 1984
by Military Commission No. 34 against Olaguer, et al. and
declaring that military commissions and tribunals have no
jurisdiction, even during the period of martial law, over
civilians charged with criminal offenses properly cognizable
by civil courts, as long as those courts are open and
functioning as they did during the period of martial law.
This Court declared unconstitutional the creation of the
military commissions to try civilians, and annulled all their
proceedings as follows:
692

692 SUPREME COURT REPORTS ANNOTATED

Tan vs. Barrios

"Due process of law demands that in all criminal prosecutions

(where the accused stands to lose either his life or his liberty), the
accused shall be entitled to, among others, a trial. The trial
contemplated by the due process clause of the Constitution, in
relation to the Charter as a whole, is a trial by judicial process,
not by executive or military process, Military commissions or
tribunals, by whatever name they are called, are not courts within
the Philippine judicial system. x x x.
"xxx      xxx      xxx.
"Moreover, military tribunals pertain to the Executive
Department of the Government and are simply instrumentalities
of the executive power, provided by the legislature for the
President as Commander-in-Chief to aid him in properly
commanding the army and navy and enforcing discipline therein,
and utilized under his orders or those of his authorized military
representatives. Following the principle of separation of powers
underlying the existing constitutional organization of the
Government of the Philippines, the power and the duty of
interpreting the laws (as when an individual should be considered
to have violated the law) is primarily a function of the judiciary. It
is not, and it cannot be the function of the Executive Department,
through the military authorities. And as long as the civil courts in
the land remain open and are regularly functioning, as they do so
today and as they did during the period of martial law in the
country, military tribunals cannot try and exercise jurisdiction
over civilians for offenses committed by them and which are
properly cognizable by the civil courts. To have it otherwise would
be a violation of the constitutional right to due process of the
civilian concerned." (Olaguer, et al. vs. Military Commission No.
34, 150 SCRA 144, 158-160.)

In October 1986, several months after the EDSA

revolution, six (6) habeas corpus
1
petitions were filed in this
Court by some 217 prisoners in the national penitentiary,
who had been tried for common crimes and convicted by the
military commissions during the nine-year span of official
martial rule (G.R. Nos. 75983, 79077, 79599-79600, 79862
and 80565 consolidated and entitled Manuel R. Cruz, et al.
vs. Minister Juan Ponce Enrile, et al., 160 SCRA 700). The
petitioners asked the Court to

_______________

1 Among whom were 157 civilians and 26 were confirmed to be military

personnel.

693

VOL. 190, OCTOBER 18, 1990 693

Tan vs. Barrios

declare unconstitutional General Order No. 8 creating the

military tribunals, annul the proceedings against them
before these bodies, and grant them a retrial in the civil
courts where their right to due process may be accorded
respect.
Conformably with the ruling in Olaguer, this Court in
Cruz vs. Enrile (160 SCRA 700), nullified the proceedings
leading to the conviction of non-political detainees who
should have been brought before the courts of justice as
their offenses were totally unrelated to the insurgency
sought to be controlled by martial rule.
 The Court—

(1) granted the petition for habeas corpus and ordered

the release of those of some who had fully served
their sentences, or had been acquitted, or had been
granted amnesty;
(2) dismissed the petitions of those who were
military personnel; and
(3) nullified the proceedings against those who were
convicted and still serving the sentences meted to
them by the military courts, but, without ordering
their release, directed the Department of Justice to
file the necessary informations against them in the
proper civil courts. The dispositive part of the
decision reads:

"Wherefore the petition is 2hereby GRANTED insofar as

petitioners Virgilio Alejandrino, Domingo Reyes, Antonio
3
Pumar,
Teodoro Patono, Andres Parado, 4 Daniel Campus, Reynaldo C.
Reyes and Rosalino de los Santos are concerned. The Director of
the Bureau of Prisons is hereby ordered to effect the immediate
release of the abovementioned petitioners, unless there are other
legal causes that may warrant their detention.
"The petition is DISMISSED as to petitioners Elpidio Cacho,
William Lorenzana, Benigno Bantolino, Getulio G. Braga, Jr.,
Tomas

________________

2 He had been granted presidential amnesty but was then still under detention
(160 SCRA 706).
3 Reyes, Pumar, Patono, Parado and Campus had been acquitted but continued
to be detained (160 SCRA 706).
4 Reynaldo C. Reyes and Rosalino de los Santos had fully served the sentences
imposed by the military commissions (160 SCRA 706-707) but had not been
released.

694

694 SUPREME COURT REPORTS ANNOTATED

Tan vs. Barrios

C. Amarte, Rogelio L. Caricungan, Ernesto Baradiel, Isabelo

Narne, Eric F. Pichay, Pablo Callejo, Russel A. Paulino, Laurel
Lamaca, Tirso F. Bala, Calixto Somera, Edulino Lacsina
(Draftee), Ronnie A. Celiz, Elpidio Urbano, Sofronio Galo,
Aquilino Leyran, Leopoldo Arcadio, Rolando Tudin, Rosendo I.
Ramos, Pacifico Batacan, Edilberto Liberato, Jimmy C. Realis.
Democrito Lorana who are all military personnel.
"As to the other petitioners, the Department of Justice is
hereby DIRECTED TO FILE the necessary informations against
them in the courts having jurisdiction over the offenses involved,
within one hundred eighty (180) days from notice of this decision,
without prejudice to the reproduction of the evidence submitted
by the parties and admitted by the Military Commission. If
eventually convicted, the period of the petitioners' detention shall
be credited in their favor.
The Courts wherein the necessary informations are filed are
DIRECTED TO CONDUCT with dispatch the necessary
proceedings inclusive of those for the grant of bail which may be
initiated by the accused." (Cruz, et al. vs. Enrile, et al., 160 SCRA
700, 711-712.)

On September 15, 1988, Secretary of Justice Sedfrey

Ordoñez issued Department Order No. 226 designating
State Prosecutor Hernani Barrios "to collaborate with the
City Fiscal of Cagayan de Oro City in the
investigation/reinvestigation of Criminal Case No. MC-1-67
and, if the evidence warrants, to prosecute the case in the
court of competent jurisdiction" (Annex C, Petition). On
November 15, 1988, State Prosecutor Barrios was
designated Acting City Fiscal of Cagayan de Oro City in
lieu of the regular fiscal who inhibited himself (p. 66,
Rollo).
Without conducting an investigation/reinvestigation,
Fiscal Barrios filed on December 9,1988, in the Regional
Trial Court of Cagayan de Oro City two (2) informations
for:

1. Illegal Possession of Firearm docketed as Crim.

Case No. 88-824; and
2. Murder docketed as Crim. Case No. 88-825 against
all the 15 original defendants in Criminal Case No.5
MC-1-67 including those who had already died
(Annexes D and E, Petition)

_______________

5 Of the fifteen (15) persons charged in the two informations, five (5)
have died, namely, Eusebio Tan, Alfonso Tan, and Go E Kuan (who had
been acquitted by the military court), and Leopoldo Nicolas and

695

VOL. 190, OCTOBER 18, 1990 695

 Tan vs. Barrios

The State Prosecutor incorrectly certified in the

informations that:

"this case is filed in accordance with the Supreme Court Order in

the case of Cruz, et al. vs. Ponce Enrile in G.R. Nos. 75983, 79077,6
79599, 79600, 79862 and 80565 as all accused are detained
except those that are already dead." (p. 7, Rollo.)

He recommended bail of P50,000 for each of the accused in

the two cases (p. 8, Rollo). Later, he increased the
recommended bail to P1 40,000 for each accused in the
firearm case (Crim. Case No. 88-824). In the murder case
(Crim. Case No. 88-825), he recommended that the bail be
increased to P250,000 for each of the accused, except Luis
Tan, Ang Tiat Chuan, and Mariano Velez, Jr., for whom he
recommended no bail. Still later, on October 28, 1988, he
recommended no bail for all the accused (pp. 8-9, Rollo)
because of the presence of two aggravating circumstances;
(1) prize or reward; and (2) use of a motor vehicle (p. 65,
Rollo).
Criminal Cases Nos. 88-824 and 88-825 of the RTC,
Cagayan de Oro City, were assigned by raffle to the sala of
RTC Judge Leonardo N. Demecillo. Before issuing
warrants for the arrest

_______________

Marciano Benemerito who had been convicted. Informations were filed

against them by the State Prosecutor because allegedly, no evidence of
their deaths could be found by him in the records of the military court nor
has any so far been submitted (p. 65, Rollo). The causes of their deaths do
not appear in the records before us, but it is possible that Benemerito, who
was sentenced to death by the military commission, may have been
executed already.
6 In truth, only four (4) of the six (6) defendants who had been convicted
are still detained. They are Luis Tan, Ang Tiat Chuan, Mariano Velez, Jr.
and Antonio Occaciones. Two (2) of those convicted—Leopoldo Nicolas and
Marciano Benemerito—died in detention. Those who were acquitted were
released from custody upon the promulgation of the decision of the
military court. Only Antonio Occasiones, among the six defendants who
were convicted by the military court in Crim. Case No. MC-1-67, joined
the 217 petitioners in "Cruz, et al. vs. Enrile," 160 SCRA 700 (p. 6, Rollo).
The others did not.

696

696 SUPREME COURT REPORTS ANNOTATED

 Tan vs. Barrios

of the accused, Judge Demecillo issued an order on October

26, 1988, requiring State Prosecutor Barrios to submit
certified copies of "the supporting affidavits of the previous
cases wherever they are now," and of the Supreme Court
order "which is the basis of filing the above-entitled cases,
within five (5) days from receipt" of his said order (Annex
F, Petition). The State Prosecutor has not complied with
that order for, as a matter of fact, there is no Supreme
Court order to re-file the criminal cases against the herein
petitioners and their twelve (12) coaccused in Crim. Case
No. MC-1-67 of the now defunct Military Commission No.
1, because none of them, except Antonio Occaciones, were
parties in the Cruz vs. Enrile habeas corpus cases (160
SCRA 700).
On November 7, 1988, William Tan, Joaquin Tan Leh
and Vicente Tan filed this petition for certiorari and
prohibition praying that the informations in Crim. Cases
Nos. 88-824 and 88-825, and the order of respondent Judge
dated October 26, 1988 be annulled, and that the public
respondents or any other prosecution officer "be
permanently enjoined from indicting, prosecuting and
trying them anew for the offenses charged therein because
they had already been acquitted of the same by Military
Commission No. 1 in Crim. Case No. MC-1-67" (p. 23,
Rollo).
On November 23, 1988, the First Division of this Court
dismissed the petition for being premature as:

"x x x the petitioners have not yet filed a motion to quash the
allegedly invalid informations in Criminal Cases Nos. 88-824 and
88825 (Annexes D and E) whose annulment they seek from this
Court (Sec. 3, Rule 117, 1985 Rules on Criminal Procedure). The
filing in the lower court of such motion is the plain, speedy and
adequate remedy of the petitioners. The existence of that remedy
(which they have not yet availed of) bars their recourse to the
special civil actions of certiorari and prohibition in this Court
(Sec. 1, Rule 65, Rules of Court)." (p. 41, Rollo.)

Upon the petitioners' filing a motion for reconsideration

informing this Court that the lower court had issued
warrants for their arrest (p. 48, Rollo), we issued a
temporary restraining order on January 16,1989 enjoining
the respondents from implementing the orders of arrest
and ordering them to comment
697
 VOL. 190, OCTOBER 18, 1990 697
Tan vs. Barrios

on the petition (p. 50, Rollo).

The petitioners allege that State Prosecutor Barrios
exceeded his jurisdiction and gravely abused his discretion
in reprosecuting them upon the supposed authority of Cruz
vs. Enrile for the following reasons:

1. The decision in Cruz vs. Enrile does not in fact

direct the filing of informations by the Secretary of
Justice against THOSE who, like the petitioners,
WERE ACQUITTED after court martial
proceedings during the period of martial law.
2. The decision in Cruz vs. Enrile does not apply to the
petitioners who were not parties in that case, who
were not heard, and over whom the court did not
acquire jurisdiction.
3. The reprosecution of the petitioners would violate
their right to protection against double jeopardy.
4. The State is estopped from reprosecuting the
petitioners after they had been acquitted by the
military tribunal which the State itself had clothed
with jurisdiction to try and decide the criminal
cases against them. The State may not retroactively
divest of jurisdiction the military tribunal that tried
and acquitted them (pp. 14-15, Petition).
5. The retroactive invalidation of the jurisdiction of
the military court that acquitted the petitioners
would amount to an ex post facto ruling (p. 81,
Rollo, Supplemental Petition).
6. The information against the petitioner s in Crim.
Case No. 88-825 is null and void because it was
filed without a prior preliminary investigation, nor
a finding of probable cause, nor the written
approval of the Chief State Prosecutor (Secs. 3 and
4, Rule 112, 1985 Rules on Criminal Procedure).

In his Comment dated February 1, 1985 (should be 1989),

Fiscal Barrios disclosed that the information in Criminal
Case No, 88-824 for illegal possession of firearm was
"already withdrawn by the prosecution at a hearing on
January 27, 1988" (should be 1989?) (pp. 66-68, Rollo). The
reason for dropping the charge is not stated. It may be
because Benemerito, the gunman who was convicted of this
felony and sentenced to death by the Military Commission,
is already dead—possibly executed. Hence, only the
information for murder (Crim. Case No. 88-825) against the
petitioners and twelve (12) others, including those already
dead, is pending in the lower court (p. 37, Rollo). He
defended the reprosecution of the petitioners on the ground
698

698 SUPREME COURT REPORTS ANNOTATED

Tan vs. Barrios

that it will not constitute double jeopardy because the

nullity of the jurisdiction of the military tribunal that
acquitted them prevented the first jeopardy from attaching,
thereby nullifying their acquittal. For the same reason, res
judicata is not applicable. Neither prescription, because "it
had been interrupted by the filing of the earlier charge
sheets with the Military Commis-sion" (p. 67, Rollo).
The Solicitor General, in his separate comment, argued
that the proceedings involving civilians before a military
commission were null and void because we ruled in
Olaguer that military tribunals are bereft of jurisdiction
over civilians, hence, their decisions, whether of conviction
or acquittal, do not bar reprosecution for the same crime
before a civil court (p. 102, Rollo).
The petition is meritorious. The public respondents
gravely abused their discretion and acted without or in
excess of their jurisdiction in misconstruing the third
paragraph of the dispositive portion of this Court's decision
in Cruz vs. Enrile as their authority to refile in the civil
court the criminal actions against petitioners who had been
tried and acquitted by Military Commission No. 1 during
the period of martial law. It is an unreasonable application
of Cruz vs. Enrile, for the decision therein will be searched
in vain for such authority to reprosecute every civilian who
had ever faced a court martial, much less those who had
been acquitted by such bodies more than a decade ago like
the petitioners Tan, et al. herein.
The decision in Cruz vs. Enrile would be an instrument
of oppression and injustice unless given a limited
application only to the parties/petitioners therein who
sought the annulment of the court martial proceedings
against themselves and prayed for a retrial in the civil
courts of the criminal cases against them. They alone are
affected by the judgment in Cruz vs. Enrile, not all and
sundry who at one time or another had been tried and
sentenced by a court martial during the period of martial
law.
 Res inter alios judicatae nullum aliis praejudicium
faciunt. "Matters adjudged in a cause do not prejudice
those who were not parties to it." (54 C.J. 719.) It is a
cardinal rule of procedure that a court's judgment or order
in a case shall not adversely affect persons who were not
parties to the self same case
699

VOL. 190, OCTOBER 18, 1990 699

Tan vs. Barrios

(Icasiano vs. Tan, 84 Phil. 860). Hence, this court's

pronouncement in Cruz vs. Enrile nullifying the
proceedings in military courts against the civilian
petitioners therein and ordering the refiling of informations
against them in the proper civil courts, may not affect the
rights of persons who were not parties in that case and
who, not having submitted to the court's jurisdiction, did
not have their day in court (Busacay vs. Buenaventura, 94
Phil. 1033). Their reprosecution, based on the decision in
Cruz vs. Enrile in which they took no part and were not
heard, would be violative of their right to due process, the
same right of the petitioners in Cruz vs. Enrile that this
Court endeavored to protect when it nullified the
proceedings against them in the military tribunals by
applying the Olaguer doctrine that the7
trial of civilians by
military process was not due process.
There is, however, a perceptible lack of consistency in
the application of the Olaguer doctrine to Cruz vs. Enrile
which needs to be rectified. For, although the Court
nullified the proceedings against the civilians-petitioners
who were still serving their sentences after conviction by
the military courts and commissions, and we directed the
Secretary of Justice to file the necessary informations
against them in the proper civil courts, we did not nullify
the court martial proceedings against the other civilians-
petitioners who: (1) had finished serving their sentences;
(2) had been granted amnesty; or (3) had been acquitted by
the military courts. We did not order their reprosecution,
retrial, and resentencing by the proper civil courts. We set
them free.
In effect, the Court applied one rule for those civilians
who were convicted by the military courts and were still
serving their sentences, and another rule for those who
were acquitted, or pardoned, or had finished the service of
their sentences. The Court applied a rule of retroactive
invalidity to the first group (whom the Court ordered to be
reprosecuted before the proper

_______________

7 "The trial contemplated by the due process clause of the Constitution,

in relation to the Charter as a whole, is a trial by judicial process, not by
executive or military process." (Olaguer vs. Military Commission No. 34,
150 SCRA 144, 158.)

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700 SUPREME COURT REPORTS ANNOTATED

Tan vs. Barrios

civil courts) and another of prospective invalidity for the

others (whom the Court ordered to be released from
custody).
In the interest of justice and consistency, we hold that
Olaguer should, in principle, be applied prospectively only
to future cases and cases still ongoing or not yet final when
that decision was promulgated. Hence, there should be no
retroactive nullification of final judgments, whether of
conviction or acquittal, rendered by military courts against
civilians before the promulgation of the Olaguer decision.
Such final sentences should not be disturbed by the State.
Only in particular cases where the convicted person or the
State shows that there was serious denial of the
Constitutional rights of the accused should the nullity of
the sentence be declared and a retrial be ordered based on
the violation of the constitutional rights of the accused, and
not on the Olaguer doctrine. If a retrial is no longer
possible, the accused should be released since the judgment
against him is null on account of the violation of his
constitutional rights and denial of due process.
It may be recalled that Olaguer was rescued from a
court martial which sentenced him to death without
receiving evidence in his defense. It would be a cruel
distortion of the Olaguer decision to use it as authority for
reprosecuting civilians regardless of whether, unlike
Olaguer, they had been accorded a fair trial and regardless
of whether they have already been acquitted and released,
or have accepted the sentences imposed on them and
commenced serving the same. Not everybody who was
convicted by a military court, much less those who were
acquitted and released, desires to undergo the ordeal of a
second trial for the same offense, albeit in a civil court.
Indeed, why should one who has accepted the justness of
the verdict of a military court, who is satisfied that he had
a fair hearing, and who is willing to serve his sentence in
full, be dragged through the harrow of another hearing in a
civil court to risk being convicted a second time perchance
to serve a heavier penalty? Even if there is a chance of
being acquitted the second time around, it would be small
comfort for the accused if he is held without bail pending
the completion of his second trial which may take as long
as, if not longer than, the sentence he has been serving or
already served.
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Tan vs. Barrios

The trial of thousands of civilians for common crimes before

military tribunals and commissions during the ten-year
period of martial rule (1971-1981) which were created
under general orders issued by President Marcos in the
exercise of his legislative powers, is an operative fact that
may not be justly ignored. The belated declaration in 1987
of the unconstitutionality and invalidity of those
proceedings did not erase the reality of their consequences
which occurred long before our decision in Olaguer was
promulgated and which now prevent us from carrying
Olaguer to the limit of its logic. Thus, did this Court rule in
Municipality of Malabang vs. Benito, 27 SCRA 533, where
the question arose as to whether the declaration of nullity
of the creation of a municipality by executive order wiped
out all the acts of the local government thus abolished:

"In Norton vs. Shelby Count, Mr. Justice Field said: 'An
unconstitutional act is not a law; it confers no rights; it imposes
no duties; it affords no protection; it creates no office; it is, in legal
contemplation, as inoperative as though it had never been
passed.' Accordingly, he held that bonds issued by a board of
commissioners created under an invalid statute were
unenforceable.
"Executive Order 386 'created no office/ This is not to say,
however, that the acts done by the municipality of Balabagan in
the exercise of its corporate powers are a nullity because the
executive order 'is, in legal contemplation, as inoperative as
though it had never been passed.' For the existence of Executive
Order 386 is 'an operative fact which cannot justly be ignored.' As
Chief Justice Hughes explained in Chicot County Drainage
District vs. Baxter State Bank:
'The courts below have proceeded on the theory that the Act of Congress,
having been found to be unconstitutional, was not a law; that it was
inoperative, conferring no rights and imposing no duties, and hence
affording no basis for the challenged decree. Norton vs. Shelby County,
118 U.S. 425, 442; Chicago, I. & L. Ry. Co. vs. Hackett, 228 U.S. 559, 566.
It is quite clear, however, that such broad statements as to the effect of a
determination of unconstitutionality must be taken with qualifications.
The actual existence of a statute, prior to such a determination, is an
operative fact and may have consequences which cannot justly be ignored.
The past cannot always be erased by a new judicial declaration. The effect
of the subsequent ruling as to invalidity may have to be considered in
various aspects—with respect to

702

702 SUPREME COURT REPORTS ANNOTATED

Tan vs. Barrios

particular relations, individual and corporate, and particular conduct,

private and official. Questions of rights claimed to have become vested, of
status, of prior determinations deemed to have finality and acted upon
accordingly, of public policy in the light of the nature both of the statute
and of its previous application, demand examination. These questions are
among the most difficult of those which have engaged the attention of
courts, state and federal, and it is manifest from numerous decisions that
an all-inclusive statement of a principle of absolute retroactive invalidity,
cannot be justified.'

"There is then no basis for the respondents' apprehension that

the invalidation of the executive order creating Balabagan would
have the effect of unsettling many an act done in reliance upon
the validity of the creation of that municipality." (Municipality of
Malabang vs. Benito, 27 SCRA 533.)

The doctrine of "operative facts" applies to the proceedings

against the petitioners and their co-accused before Military
Commission No. 1. The principle of absolute invalidity of
the jurisdiction of the military courts over civilians should
not be allowed to obliterate the "operative facts" that in the
particular case of the petitioners, the proceedings were fair,
that there were no serious violations of their constitutional
right to due process, and that the jurisdiction of the
military commission that heard and decided the charges
against them during the period of martial law, had been
affirmed by this Court (Aquino vs. Military Commission
No. 2, 63 SCRA 546) years before the Olaguer case arose
and came before us.
Because of these established operative facts, the refiling
of the information against the petitioners would place them
in double jeopardy, in hard fact if not in constitutional
logic.
The doctrine of double jeopardy protects the accused
from harassment by the strong arm of the State:

"The constitutional mandate is (thus) a rule of finality. A single

prosecution for any offense is all the law allows. It protects an
accused from harassment, enables him to treat what had
transpired as a closed chapter in his life, either to exult in his
freedom or to be resigned to whatever penalty is imposed, and is a
bar to unnecessary litigation, in itself time-consuming and
expense-producing for the state as well. It has been referred to as
'res judicata in prison grey,'

703

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Tan vs. Barrios

The ordeal of a criminal prosecution is inflicted only once, not

whenever it pleases the state to do so." (Fernando, The
Constitution of the Philippines, 2nd Ed., pp. 722-723.)

Furthermore, depriving the petitioners of the protection of

the judgment of acquittal rendered by the military
commission in their particular case by retroactively
divesting the military commission of the jurisdiction it had
exercised over them would amount to an ex post facto law
or ruling, again, in sharp reality if not in strict
constitutional theory. An ex-post facto law or rule, is one
which—

"1. makes criminal an act done before the passage of

the law and which was innocent when done, and
punishes such an act;
"2. aggravates a crime, or makes it greater than it was,
when committed;
"3. changes the punishment and inflicts a greater
punishment than the law annexed to the crime
when committed;
"4. alters the legal rules of evidence, and authorizes
conviction upon less or different testimony than the
law required at the time of the commission of the
offense;
"5. assuming to regulate civil rights and remedies only,
in effect imposes penalty or deprivation of a right
for something which when done was lawful; and,
 "6. deprives a person accused of a crime of some lawful
protection to which he has become entitled, such as
the protection of a former conviction or acquittal, or
a proclamation of amnesty." (In re: Kay Villegas
Kami, Inc., 35 SCRA 428, 431)

Article IV, Section 22, of the 1987 Constitution prohibits

the enactment of an ex post facto law or bill of attainder.
We need not discuss the petitioners' final argument that
the information against them is invalid because there was
no preliminary investigation, no finding of probable cause
by the investigating fiscal and no prior approval of the
information by the City Fiscal before it was filed.
WHEREFORE, the petition for certiorari and
prohibition is granted. Respondent State Prosecutor and
the Presiding Judge of the Regional Trial Court, Branch 24,
at Cagayan de Oro City, are hereby ordered to discharge
the petitioners from the information in Criminal Case No.
88-825. The temporary restrain-
704

704 SUPREME COURT REPORTS ANNOTATED

Tan vs. Barrios

ing order which we issued on January 16,1989 is hereby

made permanent. No costs.
SO ORDERED.

     Narvasa, Melencio-Herrera, Cruz, Paras, Feliciano,

Gancayco, Padilla, Bidin, Sarmiento, Cortés, Medialdea
and Regalado, JJ., concur.
          Fernan (C.J.), No part—my late father-in-law
appeared for some of the parties.
     Gutierrez, JR., J., Please see separate opinion.

GUTIERREZ, JR., J.: Separate Opinion

I am glad that the Court has adopted my dissenting

opinion in Cruz, et al. v. Enrile (160 SCRA 700 [1988])
where I urged that the ruling in Olaguer, et al. v. Military
Commission No. 34, et al. (150 SCRA 144 [1987]) should
not be given any retroactive effect.
When a new Administration takes over the reins of
Government, it may be so angry with perceived misdeeds of
the past and so flushed with its power and popularity that
it lashes out indiscriminately at everything it dislikes,
ignoring many undesirable consequences that correctly
raise constitutional questions. The 217 civilians charged
with common crimes in Cruz v. Enrile should never have
been tried by military tribunals while civil courts were
open and fully functioning. However, we cannot ignore the
fact that they were actually tried and convicted by military
tribunals. Evidence was presented and on the basis of that
evidence, the accused were convicted. There are things that
took place in the past which in legal contemplation are null
and void. But they have already taken place and no amount
of declaring them unconstitutional can wipe their effects
clean from the slate as if the acts had never been done.
We now rule in this petition that Olaguer should be
applied prospectively. What happens to the 90 convictions
for murder, 21 for kidnapping, 5 for kidnapping with
murder, 23 for robbery with homicide, 10 for frustrated or
attempted murder or homicide, 20 for robbery, 4 for rape,
22 for illegal possession of firearms and one for abortion
which the Court nullified in Cruz v. Enrile? Most of those
convicted and serving sentence have
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Tan vs. Barrios

been released and the filing of new prosecutions have been

ordered, Shall the new prosecutions now stop and all the
217 petitioners be ordered recommitted to jail? If the new
prosecutions will continue because that is the law of that
case why should William Tan, Joaquin Tan Leh and
Vicente Tan be treated differently? Why should the
judgments of military tribunals involving civilians be valid
for one group while invalid for another? Prospective for
some and retroactive for others?
I am disturbed whenever I find myself and others in this
Court inadvertently caught by inconsistencies. Consistency
has an important purpose—to maintain the record of this
Court for stability and continuity especially in a period of
transition.
Whenever venerable institutions are subjected to
senseless and destructive assaults, when executive officers
sweep away policies and personnel of former
administrators, including those of their immediate
predecessors under the very same administration, and
when so much disarray and indecision is evident, the
Court's image of judiciousness and rationality becomes a
stabilizing factor.
 I concur in the Court's adoption of my dissent in Cruz, et
al. v. Enrile but am disturbed by the new problems that it
poses because of what we ordered in that decision.
Petition granted.

Note.—The requisites that must concur for legal

jeopardy to attach are to wit: (1) a valid complaint or
information; (2) a court of competent; jurisdiction; (3) the
accused has pleaded to the charge and (4) accused has been
convicted or acquitted or the case dismissed or terminated
without the express consent of the accused. (Que vs. Cosico,
177 SCRA 410;)

——o0o——

706

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