G.R. No. 75983




Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 75983 April 15, 1988 MANUEL R. CRUZ; PAULINO M. ARCEO; ELPIDIO G. CACHO; ROGELIO P. GARCIA; MANUEL M. DELA CRUZ; WILLIAM H. LORENZANA; PABLO P. GARCIA; RODRIGO A. HALASAN; ADRIANO B. CASTILLO; LEONARDO L. PAQUINTO; NESTOR T. LIWANAG; ALEXANDER P. ROXAS; PABLO M. MERCADO; EDUARDO P. GARCIA; GERARDO M. LUCAS; LEONIDES G. MAÑABO; BRAULIO DEPUSOY; ALFREDO M. TILA; JEOFREY T. METEORO; BENIGNO G. BANTOLINO; ANTONIO P. DATUL; RENATO V. VENGCO; EDGARDO TERRENAL; EDUARDO D. DELFIN; CORNELIO C. TACDERAN; AMANCIO D. LORIESTO; JOSE A. SELOTERIO; APOLONIO E. ONIA; DOMINGO MARCO; ARTURO VILLASANTA; ANTONIO OCCASIONES; TEODORO C. CARANDANG; ROGELIO A. GARCIA; ROMEO A. BASENSE; HARRY B. BENLIRO; ROLANDO B. BENLIRO; JAMES A. UMADHAY; VICENTE A. GENER; ERNESTO A. CARPIO; MANUEL S. SALARDA; GETULIO B. BRAGA, JR.; ARCADIO D. CELENDRO; VIRGILIO P. GOMEZ; SERGIO R. PREYE; CIRIACOM DELA GUARDIA; RODITO B. SORIASO ANTONIO D. PUMAR; FEDERICO B. VECINAL; CESARIO D. VECINAL; LORETO D. VECINAL; ROGELIO D. VECINAL; MARCELO B. DE MESA; JULIAN DE MESA; GAVINO B. DE MESA; REMIGIO B. DE MESA; DANILO B. DE MESA; ROLANDO P. TOLENTINO; ANASTACIO P. DEL ROSARIO; REYNALDO C. REYES; BENITO B. PANGANIBAN; ROMUALDO M. MONTENEGRO; ROMULO C. OCAMPO; DEMOCRITO M. SILVESTRE; SALLY B. DIMAISIP; FILIPINO B. DE LEON; NARCISO G. VIGO; TOMAS C. AMORTE; CATALINO S. CRUZ; EDUARDO F. JAVIER; ROGELIO L. CARICUNGAN; ERNESTO R. BARADI; RENE P. CORTEZ; EDUARDO D. RAMIREZ; DONATO G. CABONITALIA; CAMILO PATAO; JOSE TORRES; ISABELO NARNE; ERIC F. PICHAY; DELFIN PIANO; FRANCISCO PIANO; RUDY G. ROMERO; MARIO G. MERCADO; JUANITO PIANO; REYNOSO J. LAGMAY; PABLO S. CALLEJO; FLORANTE SAGUN; RUSSEL A. PAULINO; LAUREL LAMACA; RUFINO GAMBOA; TIRSO F. BALA, JR.; ANTONIO CRUZ; BENITO PUGAL; CASIMIRO PATAO; ROGELIO PATAO; EULOGIO PUGAL; CARLITO PUGAL; ANDRES PATAO; VICENTE ARCANO; MARIANO YTURIAGA RODOLFO MANUEL; EDUARDO ABIHAY; MANUEL CARREON; CAMILO PIANO; LUCIO ARIMANDO PABLO ACIERTO; EDUARDO PASCUAL; FERMIN PUGAL; FLOR PIANO; RUDY PIANO; JUANITO BAFUL; GODOFREDO RAQUEÑO; CALIXTO SOMERA; HILARION PATAO; DELFIN B. GUTIERREZ; TEODULO BUGARIN; JAIME A. SABADO, JR.; ALMARIO VILLANUEVA; APOLONIO SOMUDIO; OSCAR LITADA; ROLANDO L. TOLENTINO; HERMINIO BATONGBAKAL; ROGELIO TURION; NELSON REMO; FERMIN CORREA; DOMINGO SALAZAR; FELIPE PAREDES; DOMINGO RECINTO; SILVANO BEATO; TOMAS GARCIA; RODOLFO ABIHAY; MELCHOR CA-AMIK; NELITO C. LONTOC; EDERLINO LACSINA; DOMINGO R. REYES; RODOLFO D. MANANSALA; ROSALINO R. DELOS SANTOS; RONIE A. CELIZ; VIRGILIO M. MALGAPO; DIONISIO C. CABRERA; ROGELIO V. PORTILLO; JOSE D. PAMINTUAN; ROBERTO P. GALVEZ; LINO B. DAPADAP; FERNANDO R. ROMERO; LINO M. VILLARIN; EMILIANO P. SICANGCO; PAULINO V. ZAMORA; LEONARDO C. REYES; GUMAL A. SAMO; IMPERIAL D. USMAN; GERUNDIO A. BOYLES; ELPIDIO L. URBANO; ROMEO S. CANTADA; SOFRONIO B. GALO; EUGENE D. BALANSAG; CIRILO P. MARIANO; ROMEO C. CARIÑO EDGARDO L. GOMEZ; EUGENIO CABAÑERO; AQUILINO LEYRAN; ANTONIO A. HERMIDA; ALVARO P. CABASAG; PRIMITIVO SULAYAD; TEODORO B. PATANO; DOMINGO R. RODRIGUEZ; ROGER N. MAGALLANES; SALVADOR 0. CALDERON; LEOPOLDO B. ARCADIO; APLON M. LINOGAMAN; JOSE E. ABRIA; JESUS N. ABRIA; ANDRES P. PARADO; LARRY A. ARPON; JESSIE CABAÑGUNAY; MANUEL A. BARQUILLIA; DANIEL S. CINCO; TIMOTEO C. LLAMERA JR.; ERNESTO D. DUMPA; ORLANDO G. ACSALAN; BONIFACIO VALLETE; AGUSTIN VALLETE; SAMSON ARANETA; ERNESTO DOCTOLERO; AVELINO HABULAN; ROLANDO TUDIN; CONRADO M. GLORIA; DANIEL G. CAMPOS; JAIME F. CO; VIRGILIO ALEJANDRO; SULPECIO L. REJUSO, JR.; MARCELO S. GUESE; VICENTE PATAO; ROMEO IBAYAN; DANILO MAGALLANES; RICARDO C. JARATA; ERNESTO H. ABOLOC; DIOSDADO RODRIGUEZ; ALFREDO P. PEREZ; FEDERICO VILICINA; ROSENDO I. RAMOS; JOSE C. SIOCHI; FEDERICO MARCELINO; BENJAMIN V. TAN; DANILO CRUZ; CONSTANTE CABANILIA; LEOPOLDO V. JOSE; PACIFICO BATACAN; VICENTE SY; JOSE TORDESILLAS; ANTONIO DEPUSOY; ARMANDO I. ULPINDO; EDILBERTO LIBERATO; JIMMY C. REALIS; SULPICIO C. REJUSO; GEDALTIE MARIN; RENATO BALLESTEROS; and DEMOCRITO LORAÑA petitioners, vs. MINISTER JUAN PONCE ENRILE, GENERAL FIDEL RAMOS, GENERAL (RET.) EMILIO N. CEA, MINISTER NEPTALI GONZALES AND BRIG. GENERAL SAMUEL SORIANO, respondents. G.R. No. 79077 April 15, 1988 IN THE MATTER OF THE PETITION FOR WRIT OF HABEAS CORPUS OF IMPERIAL D. USMAN AND SAMU GUMAL, ACSARA GUMAL, petitioner, vs. THE SECRETARY OF NATIONAL DEFENSE, THE PRESIDENT OF MILITARY COMMISSION NO. 30, THE DIRECTOR OF PRISONS AND THE EXECUTIVE SECRETARY, respondents. G.R. Nos 79599-79600 April 15, 1988 CONRADO M. GLORIA AND DANILO V. MAGALLANES, petitioners, vs. THE CHIEF OF STAFF (AFP), THE JUDGE ADVOCATE GENERAL (AFP), THE SECRETARY OF JUSTICE, THE DIRECTOR OF PRISONS, respondents. G.R. No. 79862 April 15, 1988 IN THE MATTER OF THE APPLICATION FOR HABEAS CORPUS IN BEHALF OF MANUEL DE LA CRUZ, petitioner, vs. BRIG. GEN. MELITON GOYENA (RET.), IN HIS CAPACITY AS DIRECTOR OF THE BUREAU OF PRISONS, respondents. G.R. No. 80565 April 15, 1998 LEOPOLDO V. JOSE, petitioner, vs. DIRECTOR OF PRISONS, SECRETARY RAFAEL IL ETO, GENERAL FIDEL RAMOS, SECRETARY SEDFREY ORDOÑEZ AND BRIG. GEN. SAMUEL SORIANO, respondents. Leopoldo P. Dela Rosa for petitioners in 75983. Anselmo M. Mabuti for petitioners D. Cruz and F. Marcelino. Lininding P. Pangandaman for petitioners in 79077. Segundo M. Gloria, Jr. for petitioners in 79599-79600. Jack L. Soriano for petitioner in 79862. NARVASA, J.: Habeas corpus proceedings were commenced in this Court on October 1, 1986 1 to test the legality of the continued detention of some 217 so-called "political detainees 2 arrested in the nine-year span of official martial rule and committed to the New Bilibid Prisons in Muntinlupa. All had been made to stand trial for common crimes 3 before various courts martial; 4 if any of these offenses had any political color, this had neither been pleaded nor proved. Of the 217 prisoners, 157 are civilians, and only 26 confirmed as military personnel. 5 One hundred and fifteen (115) accused had been condemned to die. Forty-six (46) were sentenced to life imprisonment. To nine (9) others were meted prison terms of from twenty to thirty years; to forty-one (41), prison terms of ten to twenty years; and to three (3), less than ten years. The present status of their cases are disparate, as might be expected. As of the date of filing of the petitions in this Court, the sentences of sixty-eight (68) had become final upon their approval by the Office of the President, 6 seventy-five (75) cases were pending review in either that Office or before the Board of Military Review, while the appeal or review of the remaining seventy-three (73) cases either had been expressly suspended pending the outcome of these petitions, or are simply not dealt with in the records. Presidential amnesty was granted to petitioner Virgilio Alejandrino, 7 yet to this date he remains a prisoner at the Penitentiary, as do Domingo Reyes, Antonio Pumar, Teodoro Patano, Andres Parado and Daniel Campus, although they were acquitted of the charges against them, 8 and Reynaldo C. Reyes and Rosalino de los Santos, who appear to have fully served the sentences imposed on them by the military commissions which convicted them. 9 The petitioners urge the Court to declare unconstitutional the establishment of all military tribunals as well as General Order No. 8 ordaining their creation, and the nullity of all the proceedings had against them before these bodies as a result of which they had been illegally deprived of their liberty. Their plea is for the grant of a retrial of their respective cases in the civil courts, where their right to due process may be accorded respect. 10 The writ of habeas corpus issued on July 31, 1987, two weeks after an amended petition 11 was filed with leave of court, reiterating the arguments originally pleaded, and setting forth the additional claim that the pronouncement of this Court of the lack of jurisdiction of military tribunals to try cases of civilians even during martial rule, as declared in Olaquer, et al. vs. Military Commission No. 34, et al., 12 entitled the petitioners to be unconditionally freed from detention. The Solicitor General's return of the writ in behalf of the public respondents stated that the latter "offer no objection or opposition to the release from detention of petitioners-civilians ... (which) may be immediately effected, unless there are other legal causes that may warrant their detention ... (while) the other petitioners who are military personnel x x should not be released. 13 This return was shortly amended however 14 to urge that this Court take a "second look" and undertake a "thorough re-examination of the Olaquer decision," suggesting the inapplicability of the ruling to "cases involving civilians charged with, and convicted of common crimes and ... cases where the detained accused have, in effect, fully served the sentence by their continued detention for the duration of the penalty imposed." Also suggested was the giving of "limited retroactive" to the decision, considering the consequences "of voiding earlier convictions, ... (such as) The grant of immunity from prosecution as a result of prescription or of the Statute of (L)imitations having run, witnesses having been scattered and no longer available, ... memories hav(ing) also been taxed beyond permissible limits, ... and (the annulment) of acquittal decisions, ... to the great prejudice of the rights of the accused. 15 In Olaquer, this Court in no uncertain terms affed that — ... a military jurisdiction or tribunal cannot try and exercise jurisdiction, even during the period of martial law, over civilians for offenses allegedly committed by them as long as the civil courts are open and functioning, and that any judgment rendered by such body relating to a civilian is null and void for lack of jurisdiction on the part of the military tribunal concerned (People v. Navarro, 63 SCRA 264, 274 [1975]). For the same reasons, Our pronouncement in Aquino, Jr. v. Military Commission No. 2 (L-37364,63 SCRA 546) and all decided cases affirming the same, in so far as they are inconsistent with this pronouncement, should be deemed abandoned. 16 Such is the statement of the doctrine squarely applicable in these cases. 1. Clearly, no right to relief under Olaquer exists in favor of the 26 petitioners who were admittedly in the military service. 17 Over them the courts martial yardly exercised jurisdiction. It need only be said that these tribunals were created precisely to try and decide cases of military personnel, and the validity of General Order No. 8 ordaining their creation, although repeatedly challenged on constitutional grounds, has as many times been upheld by the Court, either expressly or impliedly. 18 As to these petitioners, the writ is thus unavailing. 2. Deference to the Olaquer decision impels on the other hand the application thereof to all civilians, without distinction, who were haled before military tribunals. To be sure, due consideration was given to the submittal that the doctrine is, or should be declared as, limited in aplicability to "political of fenders," and not "ordinary crimes" such as those of which the civilian petitioners were convicted. 18a But distinction should not be set where none were clearly intended. The issue in Olaquer, as here, is the jurisdiction of courts martial over the persons of civilians, and not merely over the crimes imputed to them, regardless of which they are entitled to trial by judicial, not executive or military process. Conformably with this holding, the disposition of these cases would necessarily have, as a premise, the invalidity of any and all proceedings had before courts martial against the civilian petitioners. There is all the more reason to strike down the proceedings leading to the conviction of these non-political detainees who should have been brought before the courts of justice in the first place, as their offenses are totally unrelated to the insurgency avowedly sought to be controlled by martial rule. Due regard for consistency likewise dictates rejection of the proposal to merely give "prospective effect" to Olaquer. No distinction should be made, as the public respondents propose, between cases still being tried and those finally decided or already under review. All cases must be treated alike, regardless of the stage they happen to be in, and since according to Olaquer, all proceedings before courts martial in cases involving civilians are null and void, the court deems it proper to adhere to that unequivocal pronouncement, perceiving no cogent reason to deviate from the doctrine. The fact cannot be ignored, however, that crimes appear to have been committed, and there are accusations against herein petitioners for those offenses. Olaquer cannot and does not operate to absolve the petitioners of these charges, or establish that the same are baseless, so as to entitle them to immediate release from detention. It is not to be forgotten that the victims in offenses ascribed to the petitioners have as much interest as the State has to prosecute the alleged authors of the misdeeds. Justice will be better served if the detention of such of the petitioners as are not hereby ordered released or excepted, is continued until their cases are transferred to the ordinary courts having jurisdiction, and the necessary informations have been filed against them therein, as has already been done in the case of petitioners Imperial D. Usman and Samu Gumal. 19 The State should be given a reasonable period of time to accomplish this transfer, at which time the petitioners may apply for bail for their temporary release. The Solicitor General not unreasonably anticipates questions to arise as to the availability of certain defenses to the petitioners upon their prosecution before the civil courts. It seems evident, however, that no breach of the constitutional prohibition against twice putting an accused in jeopardy of punishment for the same offense 20 would result from the retrial of the petitioners" cases, for the simple reason that the absence of jurisdiction of the courts martial to try and convict the petitioners prevented the first jeopardy from attaching. 21 Valid previous proceedings are required in order that the defense of double jeopardy can be raised by the accused in the second prosecution. 22 Neither does the defense of prescription appear to be available to the petitioners who, except for a handful, were charged with offenses punishable by death or reclusion perpetua, which prescribe in twenty years. 23 Even the few not so charged cannot raise such defense since the filing of the first indictments suspended the running of the prescriptive period, and the prosecutions under the informations to be filed should be regarded as mere continuations of the previous proceedings. 24 At the very least, the filing of the first charges should be considered as having interrupted the prescriptive period notwithstanding the lack of jurisdiction of the military tribunal in which they were filed, applying, by analogy, the ruling in People vs. Olarte. 25 In fine, the Court holds that the merits of the indictments against all these civilians are solely for the civil courts to weigh and decide upon after due proceedings. Otherwise stated, they are entitled to the retrial they have explicitly requested of their respective cases in the civil courts. WHEREFORE, the petition is hereby granted insofar as petitioners Vergilio Alejandrino, 26 Domingo Reyes, Antonio Pumar Teodoro Patono, Andres Parado, Del Campus, 27 Reynaldo C. Reyes and Rosalino de los Santos 28 are concerned. The Director of the Bureau of Prisons is hereby ordered to effect the immediate release of the above-mentioned 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 B. Braga, Jr., Tomas 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, Pacifica Batacan, Edilberto Liberato, Jimmy C. Realis, Democrito Loraña 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. SO ORDERED. Teehankee, C.J., Yap, Fernan, Melencio-Herrera, Cruz, Paras, Feliciano, Gancayco, Padilla, Bidin, Sarmiento, Cortes and Griño-Aquino, JJ., concur. Separate Opinions GUTIERREZ, JR., J.:concuring and dissenting I agree with the Court's reiteration of the doctrine enunciated in Olaquer, et al. v. Military Commission No. 34, et al. (1 50 SCRA 144) but find it difficult to accept the proposition that our ruling in that case should be given retroactive effect. True, the petitioners should never have been tried by military tribunals while civil courts were open and fully functioning. But the fact remains that they were tried and convicted by military tribunals. And the Court in its earlier decisions, notably Aquino, Jr. v. Military Commission No. 2 (63 SCRA 546) upheld the exercise of criminal jurisdiction over civilians s charged with civil offenses pursuant to then existing Presidential Decrees or General Orders. We now declare, and rightly so to my mind, that the Aquino, Jr. v. Military Commission No. 2 ruling was wrong and was, therefore, abandoned through Olaquer. Does it necessarily follow that everything performed by military tribunals in the past contrary to our present Olaquer ruling is null and void, of no force and effect, and wiped clean from the slate as if it had never been done? First, let me emphasize the serious consequences of the Court's decision to give retroactive effect to Olaquer. The cases of the petitioners were referred to military tribunals Precisely because of the extremely serious nature of the offenses. As mentioned by Justice Narvasa in his ponencia, one hundred fifteen (115) of two hundred seventeen (217) prisoners were sentenced to the extreme penalty of DEATH. Forty six (46) were sentenced to life imprisonment. Nine (9) were given prison terms for twenty (20) to thirty (30) years, forty one (41) from ten (10) to twenty (20) years and three (3) to less than ten (10) years. According to the records, there were ninety (90) charges for murder including some for murder with arson, twenty one (21) for kidnapping, five (5) for kidnapping with murder, twenty three (23) for robbery with homicide and/or rape, three (3) for parricide, nine (9) for homicide, ten (10) for frustrated or attempted murder or homicide, twenty (20) for robbery, four (4) for rape, twenty two (22) for illegal possession of firearms, and one (1) for abortion. Many of the accused were charged with more than one offense. There was then the erroneous impression under martial law that military tribunals were better qualified than civil courts to mete out justice for heinous crimes or for offenses committed under reprehensible and vicious crcumstances. This notwithstanding, there is no claim or allegation and no proof whatsoever that the same evidence adduced before military tribunals would have correctly resulted in acquittal or lesser sentences if presented before civil courts. The attack is against jurisdiction, nor error or unfairness of the sentences. Why do we have to go through the arduous time-consuming, and expensive process of again prosecuting and trying the same offenses? Are the records of the military trials still intact? Are the witnesses still available? Apart from the issue of jurisdiction, was there a denial of due process? What about the innocent victims of these petitioners? Should they or their loved ones go through the agony of prosecutions with the ever present possibility that some hardened criminals may go scot-free because proof beyond reasonable doubt may no longer be available at this late date? Second, I should mention that a declaration of unconstitutionality or invalidity does not always result in wiping out the consequences of the invalidated act. In Municipality of Malabang v. Benito (27 SCRA 533) the Court was faced with a similar situation. Pursuant to Section 68 of the Revised Administrative Code of 1917, the Governor-Generals under American rule and Philippine Presidents under the Commonwealth and the Republic created hundreds of municipalities and local governments through Executive Orders. In 1967, Pelaez v. Auditor General (19 SCRA 599) declared that Section 68 of the Revised Administrative Code was repealed by the Constitution on November 15, 1955 and, therefore, any Executive Orders creating municipalities after that date were invalid, null and void. Did the declaration of nullity of the creation of the municipalities also wipe out all acts of the local governments thus abolished? What happened to municipal ordinances, appointments, connection of taxes and fees, and other acts of local officials and employees criminal prosecutions based on local ordinances and thousands of other acts of the suddenly deeland unconditional local governments? This Court ruled in the Municipality of Malabang case: In Norton v. Shelby County (118 U.S. 425,442 (1886) 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 pass 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 acto done by the municipality of Balabagan in the exercise of its corporate powers are a nullity because the ve order Is in legal contemplation, as inoperative as though it had never been passed. "For the existence of Executive Order 386isan operative fact which cannot justly be ignored." As Chief Justice Hughes explained in Chicot County Drainage District v. Baxter State Bank. (308 U/S. 371, 374 (1940); accord: Rutter v. Fateban, 98 PhiL 68 (1953); Manila Motor Co., Inc. v. Flores 99 Phil. 139.(1956); Fernandez v. Cueva & Co. L-21114, November 20,1967,21 SCRA 1102): The Courts below have proceeded on the theory that the Act of Co , having been found to be unconstitutional , was not law that it was inoperative, conferring no rights and no duties, and hence affording no basis for the challenged decree. (Norton v. Shelby County, 11 8 U.S. 425, 442; Chicago L & R.y Co v. Hackett, 228 U.S. 559, 566.) It is quite clear, however, that such broad statements as to the effect of a determination of deemed be taken with qualifications. The actual existance of a statute prior to such a determination, is an operataive fact and may have consequenses which cannot justly be ignored. The past cannot always be embarrased by a new judicial declaration. The effect of -the subsequent ruling as to invalidity may have to be considered in various as with respect to particular relations, individual and corporate, and particular conduct, private and official. Quesions of rights claimed to have income vested, of status of prior determinations deemed to have finality and acted upon "accordingly, of public policy in the light of the nature of both the statute and of its previous application, demand e petition. These questions are among the most difficult of those which have engaged the attention of courts state and federal, and it is manifest from qqqniltnerous decisions that an all inclusive statement of a principle of absolute retroactive invalidity cannot be justified. (Emphasis supplied) 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. The judgments meted out to the petitioners are operative facts which cannot just be ignored. The consequences of judgments declared valid by this. Court in an earlier decision cannot be erased simply because the Court changes its mind and decides to abandon or reverse its earlier decision. I am glad that the Court has decided to consider further trials as mere continuations of the previous proceedings and to allow reproduction of the evidence admitted by the military tribunals. In that sense, the proceedings before the tribunals are not completely nullified. The cases of persons already serving sentences in Muntinglupa based on judgements of military courts long final executory may no longer be opened. The Court however, should have gone further. The question judgement should be treated as happening or facts which can be no longer erased. A review procedure cuold be divised to insure that the jugement are correct based on evidence and no violation of due process or penal law has been committed. To allow a retrial in all these case is, however, neither warranted nor wise. Separate Opinions GUTIERREZ, JR., J.:concuring and dissenting I agree with the Court's reiteration of the doctrine enunciated in Olaquer, et al. v. Military Commission No. 34, et al. (1 50 SCRA 144) but find it difficult to accept the proposition that our ruling in that case should be given retroactive effect. True, the petitioners should never have been tried by military tribunals while civil courts were open and fully functioning. But the fact remains that they were tried and convicted by military tribunals. And the Court in its earlier decisions, notably Aquino, Jr. v. Military Commission No. 2 (63 SCRA 546) upheld the exercise of criminal jurisdiction over civilians s charged with civil offenses pursuant to then existing Presidential Decrees or General Orders. We now declare, and rightly so to my mind, that the Aquino, Jr. v. Military Commission No. 2 ruling was wrong and was, therefore, abandoned through Olaquer. Does it necessarily follow that everything performed by military tribunals in the past contrary to our present Olaquer ruling is null and void, of no force and effect, and wiped clean from the slate as if it had never been done? First, let me emphasize the serious consequences of the Court's decision to give retroactive effect to Olaquer. The cases of the petitioners were referred to military tribunals Precisely because of the extremely serious nature of the offenses. As mentioned by Justice Narvasa in his ponencia, one hundred fifteen (115) of two hundred seventeen (217) prisoners were sentenced to the extreme penalty of DEATH. Forty six (46) were sentenced to life imprisonment. Nine (9) were given prison terms for twenty (20) to thirty (30) years, forty one (41) from ten (10) to twenty (20) years and three (3) to less than ten (10) years. According to the records, there were ninety (90) charges for murder including some for murder with arson, twenty one (21) for kidnapping, five (5) for kidnapping with murder, twenty three (23) for robbery with homicide and/or rape, three (3) for parricide, nine (9) for homicide, ten (10) for frustrated or attempted murder or homicide, twenty (20) for robbery, four (4) for rape, twenty two (22) for illegal possession of firearms, and one (1) for abortion. Many of the accused were charged with more than one offense. There was then the erroneous impression under martial law that military tribunals were better qualified than civil courts to mete out justice for heinous crimes or for offenses committed under reprehensible and vicious crcumstances. This notwithstanding, there is no claim or allegation and no proof whatsoever that the same evidence adduced before military tribunals would have correctly resulted in acquittal or lesser sentences if presented before civil courts. The attack is against jurisdiction, nor error or unfairness of the sentences. Why do we have to go through the arduous time-consuming, and expensive process of again prosecuting and trying the same offenses? Are the records of the military trials still intact? Are the witnesses still available? Apart from the issue of jurisdiction, was there a denial of due process? What about the innocent victims of these petitioners? Should they or their loved ones go through the agony of prosecutions with the ever present possibility that some hardened criminals may go scot-free because proof beyond reasonable doubt may no longer be available at this late date? Second, I should mention that a declaration of unconstitutionality or invalidity does not always result in wiping out the consequences of the invalidated act. In Municipality of Malabang v. Benito (27 SCRA 533) the Court was faced with a similar situation. Pursuant to Section 68 of the Revised Administrative Code of 1917, the Governor-Generals under American rule and Philippine Presidents under the Commonwealth and the Republic created hundreds of municipalities and local governments through Executive Orders. In 1967, Pelaez v. Auditor General (19 SCRA 599) declared that Section 68 of the Revised Administrative Code was repealed by the Constitution on November 15, 1955 and, therefore, any Executive Orders creating municipalities after that date were invalid, null and void. Did the declaration of nullity of the creation of the municipalities also wipe out all acts of the local governments thus abolished? What happened to municipal ordinances, appointments, connection of taxes and fees, and other acts of local officials and employees criminal prosecutions based on local ordinances and thousands of other acts of the suddenly deeland unconditional local governments? This Court ruled in the Municipality of Malabang case: In Norton v. Shelby County (118 U.S. 425,442 (1886) 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 pass 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 acto done by the municipality of Balabagan in the exercise of its corporate powers are a nullity because the ve order Is in legal contemplation, as inoperative as though it had never been passed. "For the existence of Executive Order 386isan operative fact which cannot justly be ignored." As Chief Justice Hughes explained in Chicot County Drainage District v. Baxter State Bank. (308 U/S. 371, 374 (1940); accord: Rutter v. Fateban, 98 PhiL 68 (1953); Manila Motor Co., Inc. v. Flores 99 Phil. 139.(1956); Fernandez v. Cueva & Co. L-21114, November 20,1967,21 SCRA 1102): The Courts below have proceeded on the theory that the Act of Co , having been found to be unconstitutional , was not law that it was inoperative, conferring no rights and no duties, and hence affording no basis for the challenged decree. (Norton v. Shelby County, 11 8 U.S. 425, 442; Chicago L & R.y Co v. Hackett, 228 U.S. 559, 566.) It is quite clear, however, that such broad statements as to the effect of a determination of deemed be taken with qualifications. The actual existance of a statute prior to such a determination, is an operataive fact and may have consequenses which cannot justly be ignored. The past cannot always be embarrased by a new judicial declaration. The effect of -the subsequent ruling as to invalidity may have to be considered in various as with respect to particular relations, individual and corporate, and particular conduct, private and official. Quesions of rights claimed to have income vested, of status of prior determinations deemed to have finality and acted upon "accordingly, of public policy in the light of the nature of both the statute and of its previous application, demand e petition. These questions are among the most difficult of those which have engaged the attention of courts state and federal, and it is manifest from qqqniltnerous decisions that an all inclusive statement of a principle of absolute retroactive invalidity cannot be justified. (Emphasis supplied) 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. The judgments meted out to the petitioners are operative facts which cannot just be ignored. The consequences of judgments declared valid by this. Court in an earlier decision cannot be erased simply because the Court changes its mind and decides to abandon or reverse its earlier decision. I am glad that the Court has decided to consider further trials as mere continuations of the previous proceedings and to allow reproduction of the evidence admitted by the military tribunals. In that sense, the proceedings before the tribunals are not completely nullified. The cases of persons already serving sentences in Muntinglupa based on judgements of military courts long final executory may no longer be opened. The Court however, should have gone further. The question judgement should be treated as happening or facts which can be no longer erased. A review procedure cuold be divised to insure that the jugement are correct based on evidence and no violation of due process or penal law has been committed. To allow a retrial in all these case is, however, neither warranted nor wise. Footnotes 1 The original proceeding was docketed as G.R. No. 75983. Subsequent petitions having been filed, consolidation of all proceedings was directed by this Court's Resolutions dated August 25, 1987 (G.R. Nos. 79077), September 24,1987 (G.R. Nos. 79862 and 79599-79600) and November 27,1987 (G.R. No. 80565) 2 P. 7, Rollo of G.R. No. 75983. 3 With the exception of PAF Staff Sergeant Pablo Callejo, who was convicted of "Assaulting arid Wilfully Disobeying a Superior Officer," all the rest were charged with such crimes as robbery, murder, arson, kidnapping, illegal possession of firearms, etc. 4 Created under General Order No. 8. 5 Namely, Elpidio Cacho, William Lorenzana, Benigno Bantolino, Getulio B. Braga, Jr., Tomas 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 Loraña the records do not indicate the status of the 34 remaining petitioners. 6 But the sentences of 37 were reduced. 7 p. 326, Record. 8 Consequent upon the disapproval of their sentences by the Office of the President; p. 108 and p. 257, Record. 9 P. 119 and p. 259, respectively, of the Record. 10 Original petition, p. 2, et seq., Rollo of the G.R. No. 75983; an amended petition was filed on July 14,1987, infra. 11 P. 114, et seq., Rollo of G.R. No. 75983. 12 150 SCRA 144. 13 P. 130, Rollo of G.R. No. 75983. 14 P. 155 et seq., lbid. 15 Pp. 155-156,156-157, Ibid. 16 Olaquer vs. Military Commission, supra, at p. 165. 17 See footnote 5, supra. 18 SEE footnotes 3 and 4, and related text, at p. 4, supra. 19 Petitioners in G.R. No. 79077. 20 Sec. 21, Art. III, 1987 Constitution. 21 The requisites of double jeopardy being (a) a first jeopardy must have attached prior to the secnd; (b) the first jeopardy must have been validly terminated; and (c) the second jeopardy must be for the same offense as that of the first. Legal jeopardy attaches only (a) upon a valid indictment (b) before a competent court (c) after arraignment (d) a valid plea having benn entered and (e) the case was dismissed or otherwise terminated without the consent of the accused ( People v. Bocar, 138 SCRA 166 citing People v. Ylagan, 58 Phil 85; People v. Galano, 75 SCRA 193; People v. Brecinio, 125 SCRA 182. 22 Peolple v. Brecinio, supra. 23 Article 92, Revised Penal Code. 24 Hickey v. State, 174 SW 269. 25 19 SCRA 494, 500. 26 Who was granted Presidential amnesty. 27 Who were acquitted of the charges against them the military. 28 Who appear to have fully served their respectively sentences as imposed by the Military Commission. 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