WILLIAM TAN, JOAQUIN TAN LEH and VICENTE TAN, petitioners, vs. HERNANI T.

BARRIOS, in his capacity as State

DOCTRINE: Operative Facts, Retroactivity/Prospectively of Laws

FACTS: 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.

Because the case was a "cause celebre" (a controversial issue attracting a great deal of public attention), in Cagayan de
Oro City, President Marcos 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.

On June 10, 1976, a decision was promulgated by the Military Commission. Luis Tan, Ang Tiat Chua, Mariano Velez, Jr.,
Antonio Occaciones, and Leopoldo Nicolas were adjudged guilty of MURDER. Marciano Benemerito, was found guilty of
both MURDER and ILLEGAL POSSESSION OF FIREARM. Eight (8) of the accused, Oscar Yaun, Enrique Labita, Eusebio Tan,
Alfonso Tan, Go E Kuan, William Tan (petitioner herein), Joaquin Tan Leh (petitioner herein) and, 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:

"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.

"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 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. The petitioners asked the Court to 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 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.

ISSUE: WON the cases decided by the Military Tribunals created by Gen. Order 8 should be completely nullified — NO

RULING: NO. 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.

Res inter alios judicatae nullum aliis praejudicium faciunt. "Matters adjudged in a cause do not prejudice those who were
not parties to it.” 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 (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 the trial of civilians by military process was not due process.

However, 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 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 civil courts) and another of prospective invalidity for the others (whom the Court ordered
to be released from custody).

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.

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.

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 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. 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.

DISPOSITION: 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 restraining order which we issued on January
16,1989 is hereby made permanent. No costs.