EDDIE GUAZON VS. MAJ. GEN. RENATO DE VILLA

GUTIERREZ, JR., J.:

This is a petition for prohibition with preliminary injunction to prohibit the military and police officers represented

by public respondents from conducting "Areal Target Zonings" or "Saturation Drives" in Metro Manila.

The forty One (41) petitioners state that they are all of legal age, bonafide residents of Metro Manila and taxpayers

and leaders in their respective communities. They maintain that they have a common or general interest in the

preservation of the rule of law, protection of their human rights and the reign of peace and order in their

communities. They claim to represent "the citizens of Metro Manila who have similar interests and are so numerous

that it is impracticable to bring them all before this Court."

The public respondents, represented by the Solicitor General, oppose the petition contending inter alia that

petitioners lack standing to file the instant petition for they are not the proper parties to institute the action.

According to the petitioners, .the following "saturation drives" were conducted in Metro Manila:

1. March 5, 1987 at about 9:30 PM in Tindalo, Kagitingan, and Magdalena Streets, Tondo, Manila.

2. June 19, 1987 at about 10:00 PM in Mata Street, Pinday Pira Extension and San Sebastian Street, Tondo, Manila.

3. July 20, 1987 at about 8:00 AM in Bangkusay Street, Tondo, Manila.

4. August 11 to 13, 1987 between 11:00 PM and 2:00 AM in six blocks along Aroma Beach up to Happy Land,

Magsaysay Village, Tondo, Manila.

5. August 19, 1987 at 9:00 PM in Herbosa Extension, Quirino Street, and Pacheco Street, Tondo, Manila.

6. August 28, 1987 at 10:30 PM, in Block 34, Dagat-dagatan, Navotas, Metro Manila.

7. August 30, 1987 at 9:30 PM at Paraiso Extension, Magsaysay Village, Tondo, Manila.

8. October 12, 1987 at 12:00 midnight in Apelo Cruz Compound, Quezon City.

9. October 17, 1987 at 11:00 PM in Quirino Street, Tondo, Manila.

10. October 23, 1987 at 2:30 A.M. in Sun Valley Drive, Manila International Airport, Pasay City.

11. November 1, 1987 at 4s00 A.M. in Cordillera Street, Sta. Mesa, Manila.

12. November 3, 1987 at 5:00 A.M. in Lower Maricaban, Pasay City, Metro Manila.

According to the petitioners, the "areal target zonings" or "saturation drives" are in critical areas pinpointed by the

military and police as places where the subversives are hiding. The arrests range from seven (7) persons during the

July 20 saturation drive in Bangkusay, Tondo to one thousand five hundred (1,500) allegedly apprehended on

November 3 during the drive at Lower Maricaban, Pasay City. The petitioners claim that the saturation drives follow

a common pattern of human rights abuses. In all these drives, it is alleged that the following were committed: 

"1. Having no specific target house in mind, in the dead of the night or early morning hours, police and military

units without any search warrant or warrant of arrest cordon an area of more than one residence and sometimes

whole barangay or areas of barangay in Metro Manila. Most of them are in civilian clothes and without nameplates

or identification cards. 

"2. These raiders rudely rouse residents from their sleep by banging on the walls and windows of their homes,

shouting, kicking their doors open (destroying some in the process), and then ordering the residents within to come

out of their respective residences. 

"3. The residents at the point of high-powered guns are herded like cows, the men are ordered to strip down to their

briefs and examined for tattoo marks and other imagined marks. 

"4. While the examination of the bodies of the men are being conducted by the raiders, some of the members of the

raiding team force their way into each and every house within the cordoned off area and then proceed to conduct

search of the said houses without civilian witnesses from the neighborhood. 

"5. In many instances, many residents have complained that the raiders ransack their homes, tossing about the

residents' belongings without total regard for their value. In several instances, walls are destroyed, ceilings are

damaged in the raiders' illegal effort to 'fish' for incriminating evidence. 

"6. Some victims of these illegal operations have complained with increasing frequency that their money and

valuables have disappeared after the said operations. 

"7. All men and some women who respond to these illegal and unwelcome intrusions are arrested on the spot and

hauled off to waiting vehicles that take them to detention centers where, they are interrogated and 'verified.' These

arrests are all conducted without any warrants of arrest duly issued by a judge, nor under the conditions that will

authorize warrantless arrest. Some hooded men are used to fingerpoint suspected subversives. 

"8. In some instances, arrested persons are released after the expiration of the period wherein they can be legally

detained without any charge at all. In other instances, some arrested persons are released without charge after a few

days of arbitrary detention. 

"9. The raiders almost always brandish their weapons and point them at the residents during these illegal operations. 

"10. Many have also reported incidents of 'on-the-spot beatings', maulings and maltreatment. 

"11. Those who are detained for further 'verification' by the raiders are subjected to mental and physical torture to

extract confessions and tactical information." (Rollo, pp. 2-4)

The public respondents stress two points in their Comment which was also adopted as their Memorandum after. the

petition was given due course.

First, the respondents have legal authority to conduct saturation drives. And second, they allege that, the accusations

of the petitioners about a deliberate disregard for human rights are  total lies.

Insofar as the legal basis for saturation drives is concerned, the respondents cite Article VII, Section 17 of the

Constitution which provides: 

"The President shall have control of all the executive departments, bureaus and offices. He shall ensure that the laws

be faithfully executed. (Emphasis supplied by the respondents.)

They also cite Section 18 of the same Article which provides: 

"The President shall be the Commander-in-Chief of all armed forces of the Philippines and whenever it becomes

necessary, he may call, out such armed farces to prevent or suppress lawless violence, invasion ' or rebellion. x x x."

There can be no question that under ordinary circumstances, the police action, of the nature described by the

petitioners would be illegal and blatantly violative of the express guarantees of the Bill of Rights. If the military and

the police must conduct concerted campaigns to flush out and catch criminal elements, such drives must be

consistent with the constitutional and statutory rights of all the people affected by such actions.

There is, of course, nothing in the Constitution which denies the authority of the Chief Executive, invoked by the

Solicitor General, to order police actions to stop unabated criminality, rising lawlessness, and alarming communist

activities. The Constitution grants to Government the power to seek and cripple subversive movements which would

bring down constituted authority and substitute a regime where individual liberties are suppressed as a matter of

policy in the name of security of the State. However, all police actions are governed by the limitations of the Bill of

Rights. The Government cannot adopt the same reprehensible methods of authoritarian systems both of the right and

of the left the enlargement of whose spheres of influence it is trying hard to suppress. Our democratic institutions

may still be fragile but they are not in the least bit strengthened through violations of the constitutional protections

which are their distinguishing features.

In Roan v. Gonzales (145 SCRA 687; 690-691 [1986]), the Court stated: 

"One of the most precious rights of the citizen in a free society is the right to be left alone in the privacy of his own

house. That right has ancient roots, dating back through the mists of history to the mighty English kings in their

fortresses of power. Even then, the lowly subject had his own castle where he was monarch of all he surveyed. This

was hits humble cottage from which he could bar his sovereign lord and all the forces of the Crown. 

"That right has endured through the ages albeit only in a few libertarian regimes. Their number, regrettably;

continues to dwindle against the onslaughts of authoritarianism. We are among the fortunate few, able again to enjoy

this right after the ordeal of the past despotism. We must cherish and protect it all the more now because it is like a

prodigal son returning. 

"That right is guaranteed in the following provisions of Article IV of the 1973 Constitution:

"SEC. 3. The right of the people to be secure in their persons, houses, papers and effects against unreasonable

searches and seizures of whatever nature and for any purpose shall not be violated, and no search warrant or warrant

of arrest shall issue except upon probable cause to be determined by the judge, or such other responsible officer as

may be authorized by law, after examination under oath or affirmation of the complainant and the witnesses he may

produce, and particularly describing the place to be searched, and the persons or things to be seized." 

x x x x x x x x x

Only last year, the Court again issued this reminder in 20th Century Fox Film Corporation v. Court of Appeals (164

SCRA 655; 660-661 [1988]: 

"This constitutional right protects a citizen against wanton and unreasonable invasion of his privacy and liberty as to

his person, papers and effects. We have explained in the case of People v. Burgos (144 SCRA 1) citingVillanueva v.

Querubin (48 SCRA 345) why the right is so important:

“’It is deference to one's personality that lies at the core of this right but it could be also looked upon as a

recognition of a constitutionally protected area, primarily one's home but not necessarily thereto confined.,

(Cf.Hoffa v. United States, 385 US 293 [1966]) What is sought to be guarded is a man's prerogative to choose who

is allowed entry to his residence. In that haven of refuge, his individuality can assert itself not only in the choice of

who shall be welcome but likewise in the kind of objects he wants around him. There the state, however powerful,

does not as such have access except under the circumstances above noted, for in the traditional formulation, his

house, however humble, is his castle. Thus is outlawed any unwarranted intrusion by government, which is called

upon to refrain from any invasion of his dwelling and to respect the privacies of his life. (Cf. Schmerber v.

California, 384 US 757 [1966], Brennan, J. and Boyd v. United States 116 630 [1886]). In the same vein, Landynski

in his authoritative work (Search and Seizure and the Supreme Court [1966)], could fitly characterize constitutional

right as the embodiment of a ‘spiritual concept: the belief that to value the privacy of home and person and to afford

its constitutional protection against the long reach of government is no less than to value human dignity, and that his

privacy must not be disturbed except in case of overriding social need, and then only under stringent procedural

safeguards.’ (ibid, p. 74.)" 

The decision of the United States Supreme Court in Rochin v. California, (342 US 165; 96 L. Ed. 183 [1952])

emphasizes clearly that police actions should not be characterized by methods that offend a sense of justice. The

court ruled: 

''Applying these general considerations to the circumstances of the present case, we are compelled to conclude that

the proceedings by which this conviction was obtained do more than offend some fastidious squeamishness or

private sentimentalism about combatting crime too energetically. This is conduct that shocks the conscience.

Illegally breaking into the privacy of the petitioner, the struggle to open his mouth and remove what was there, the

forcible extraction of his stomach's contents--this course of proceeding by agents of government to obtain evidence

is bound to offend even hardened sensibilities. They are methods too close to the rack and the screw to permit of

constitutional differentiation."

It is significant that it is not the police action per se which is impermissible and which should be prohibited. Rather,

it is the procedure used or in the words of the court, methods which "offend even hardened sensibilities." In

Breithaupt v. Abram (352 US 432, 1 L. Ed. 2nd 448 [1957], the same court validated the use of evidence, in this

case blood samples involuntarily taken from the petitioner, where there was nothing brutal or offensive in the taking.

The Court stated: 

"Basically the distinction rests on the fact that there is nothing 'brutal' or 'offensive' in the taking of a sample of

blood when done, as in this case, under the protective eye of a physician. To be sure, the driver here was

unconscious when the blood was taken, but the absence of conscious consent, without more, does not necessarily

render the taking a violation of a constitutional right; and certainly the test was administered here would not be

considered offensive by even the most delicate. Furthermore, due process is not measured by the yardstick of

personal reaction or the sphygmogram of the most sensitive person, but by that whole community sense of 'decency

and fairness’ that has been woven by common experience into the fabric of acceptable conduct. x x x."

The individual's right to immunity from such invasion of his body was considered as "far outweighed by the value of

its deterrent effect" on the evil sought to be avoided by the police action.

It is clear, therefore, that the nature of the affirmative relief hinges closely on the determination of the exact facts

surrounding a particular case.

The violations of human rights alleged by the petitioners are serious. If an orderly procedure ascertains their truth,

not only a writ of prohibition but criminal prosecutions would immediately issue as a matter of course. A persistent

pattern of wholesale and gross abuse of civil liberties, as alleged in the petition, has no place in civilized society.

On the other hand, according to the respondents, the statements made by the petitioners are a complete lie.

The Solicitor General argues: 

"This is a complete lie. 

Just the contrary, they had been conducted with due regard to human rights. Not only that, they were intelligently

and carefully planned months ahead of the actual operation. They were executed in coordination with barangay

officials who pleaded with their constituents to submit themselves voluntarily for character and personal

verification. Local and foreign correspondents, who had joined these operations, witnessed and recorded the events

that transpired relative thereto. (After Operation Reports: November 5, 1987, Annex 12; November 20, 1987, Annex

13; November 24, 1987, Annex 14). That is why in all the drives so far conducted, the alleged victims who

numbered thousands had not themselves complained. 

"In her speech during turn-over rites on January 26, 1987 at Camp Aguinaldo, President Aquino branded all

accusations of deliberate disregard for human rights as ‘total lies’. Here are excerpts from her strongest speech yet in

support of the military:

“’All accusations of a deliberate disregard for human rights have been shown up to be total lies. 

“’ x x x. To our soldiers, let me. say go out and fight, fight with every assurance that I will stand by you through

thick and thin to share the blame, defend your actions, mourn the losses and enjoy with you the final victory that I

am certain will be ours. 

“’You and I will see this through together. 

“’I've sworn to defend and uphold the Constitution. 

"We have wasted enough time answering their barkings for it is still a long way to lasting peace. x x x The dangers

and hardships to our men in the field are great enough as it is without having them distracted by this worthless

carping at their backs. 

“’Our counter-insurgency policy remains the same: economic development to pull out the roots — and military

operations to slash the growth — of the insurgency. 

“’The answer to terror is force — now. 

“’Only feats of arms can buy us the time needed to make our economic and social initiatives bear fruit. x x x. Now

that the extreme Right has been defeated. I expect greater vigor in the prosecution of the war against the communist

insurgency, even as we continue to watch our backs against attacks from the Right. (Philippine Star, January 27,

1988, p. 1, Annex 15; underlining ours.'

“Viewed in the light of President Aquino’s observation on the matter, it can be said that petitioners misrepresent as

human rights violations the military and police’s zealous vigilance over the people’s right to live in peace and

safety.” (Rollo, pp. 36-38)

Herein lies the problem of the Court. We can only guess the truth. Everything before us consists of allegations.

According to the petitioners, more than 3,407 persons were arrested in the saturation drives covered by the petition.

No estimates are given for the drives in Block 34, Dagat-dagatan, Navotas; Apelo Cruz Compound, Pasig; and Sun

Valley Drive near the Manila International Airport Area. Not one of the several thousand persons treated in the

illegal and inhuman manner described by the petitioners appears as a petitioner or has come before a trial court to

present the kind of evidence admissible in courts of justice. Moreover, there must have been tens of thousands of

nearby residents who were inconvenienced in addition to the several thousand allegedly arrested. None of those

arrested has apparently been charged and none of those affected has apparently complained.

A particularly intriguing aspect of the Solicitor General’s comment is the statement that local and foreign

correspondents actually joined the saturation drives and witnessed and recorded the events. In other words, the

activities sought to be completely proscribed were in full view of media. The sight of hooded men allegedly being

used to finger point suspected subversives would have been good television copy. If true, this was probably effected

away from the ubiquitous eye of the TV cameras or, as the Solicitor General contends, the allegation is a "complete

lie."

The latest attempt to stage a coup d'etat where several thousand members of the Armed Forces of the Philippines

sought to overthrow the present Government introduces another aspect of the problem and illustrates quite clearly

why those directly affected by human rights violations should be the ones to institute court actions and why

evidence of what actually transpired should first be developed before petitions are filed with this Court.

Where there is large scale mutiny or actual rebellion, the police or military may go in force to the combat areas,

enter affected residences or buildings, round up suspected rebels and otherwise quell the mutiny or rebellion without

having to secure search warrants and without violating the Bill of Rights. This is exactly what happened in the

White Plains Subdivision and the commercial center of Makati during the first week of December, 1989.

The areal target zonings in this petition were intended to flush out subversies and criminal elements particularity

because of the blatant assassinations of public officers and police officials by elements supposedly coddled by the

communities where the "drives" were conducted.

It is clear from the pleadings of both petitioners and respondents, however, that, there was no rebellion or criminal

activity similar to that of the attempted coup d'etats. There appears to have been no impediment to securing search

warrants or warrants of arrest before any houses were searched or individuals roused from sleep were arrested.

There is no strong showing that the objectives sought to be attained by the "areal zoning" could not be achieved

even as the rights of squatter and low income families are fully protected.

Where a violation of human rights specifically guaranteed by the Constitution is involved, it is the duty of the court

to stop the transgression and state where even the awesome power of the state may not encroach upon the rights of

the individual.

It is the duty of the court to take remedial action even in cases such as the present petition where the petitioners do

not complain that they were victims of the police actions, where no names of any of the thousands of alleged victims

are given, and where the prayer is a general one to stop all police "saturation drives," as long as the Court is

convinced that the event actually happened.

The Court believes it highly probable that some violations were actually committed. This is so inspite of the alleged

pleas of barangay officials for the thousands of residents "to submit themselves voluntarily for character and

personal verification." We cannot imagine police actions of the magnitude described in the petitions and admitted by

the respondents, being undertaken without some undisciplined soldiers and policemen committing certain abuses.

However, the remedy is not to stop all police actions, including the essential and legitimate ones. We see nothing

wrong in police making their presence visibly felt in troubled areas. Police cannot respond to riots or violent

demonstrations if they do not move in sufficient numbers. A show of force is sometimes necessary as long as the

rights of people are protected and not violated. A blanket prohibition such as that sought by the petitioners would

limit all police actions to one on one confrontations where search warrants and warrants of arrests against specific

individuals are easily procured. Anarchy may reign if the military and the police decide to sit down in their offices

because all concerted drives where a show of force is present are totally prohibited.

The remedy is not an original action for prohibition brought through a taxpayers' suit. Where not one victim

complains and not one violator is properly charged, the problem is not initially for the Supreme Court. It is basically

one for the executive departments and for trial courts. Well meaning citizens with only second hand knowledge of

the events cannot keep on indiscriminately tossing problems of the executive, the military, and the police to the

Supreme Court as if we are the repository of all remedies for all evils. The rules of constitutional litigation have

been evolved for an orderly procedure in the vindication of rights. They should be followed. If our policy makers

sustain the contention of the military and the police that occasional, saturation drives are essential to maintain the

stability of government and to insure peace and order, clear policy guidelines on the behaviour of soldiers and

policemen must not only be evolved, they should also be enforced. A method of pinpointing human rights abuses

and identifying violators is necessary.

The problem is appropriate for the Commission on Human Rights. A high level conference should bring together the

heads of the Department of Justice, Department of National Defense and the operating heads of affected agencies

and institutions to devise procedures for the prevention of abuses.

Under the circumstances of this taxpayers' suit, there is no erring soldier or policeman whom we can order

prosecuted. In the absence of clear facts ascertained through an orderly procedure, no permanent relief can be given

at this time. Further investigation of the petitioners charges and a hard look by administration officials at the policy

implications of the prayed for blanket prohibition are also warranted.

In the meantime and in the face of prima facie showing that Some abuses were probably committed and could be

committed during future police actions, we have to temporarily restrain the alleged banging on walls, the kicking in

of doors, the herding of half-naked men to assembly areas for examination of tattoo marks, the violation of

residences even if these are humble shanties of squatters, and the other alleged acts which are shocking to the

conscience.

WHEREFORE, the petition is hereby REMANDED to the Regional Trial Courts of Manila, Malabon, and Pasay

City where the petitioners may present, evidence supporting their allegations and where specific erring parties may

be pinpointed and prosecuted.

Copies of this decision are likewise forwarded to the Commission on Human Rights, the Secretary of Justice, the

Secretary of National Defense, and the Commanding General PC-INP for the drawing up and enforcement of clear

guidelines to govern police actions intended to abate riots and civil disturbances, flush out criminal elements, and

subdue terrorist activities.

"In the meantime, the acts violative of human rights alleged by the petitioners as committed during the police

actions are ENJOINED  until such time as permanent rules to govern such actions are promulgated.

SO ORDERED.

GUANZON VS. DE VILLA [181 SCRA 623; G.R. 80508; 30 JAN 1990]

Facts: The 41 petitioners alleged that the "saturation drive" or "aerial target zoning" that were conducted in their

place (Tondo Manila) were unconstitutional. They alleged that there is no specific target house to besearch and that

there is no search warrant or warrant of arrest served. Most of the policemen are in their civilian clothes and without

nameplates or identification cards. The residents were rudely rouse from their sleep by banging on the walls

and windows of their houses. The residents were at the point of high-powered guns and herded like cows. Men were

ordered to strip down to their briefs for the police to examine their tattoo marks. The residents complained that

they're homes were ransacked, tossing their belongings and destroying their valuables. Some of their money and

valuables had disappeared after the operation. The residents also reported incidents of maulings, spot-beatings and

maltreatment. Those who weredetained also suffered mental and physical torture to extract confessions and tactical

informations. The respondents said that such accusations were all lies. Respondents contends that the Constitution

grants to government the power to seek and cripple subversive movements for the maintenance of peace in the state.

The aerial target zoning were intended to flush out subversives and criminal elements coddled by the communities

were the said drives were conducted. They said that they have intelligently and carefully planned months ahead for

the actual operation and that local and foreign media joined the operation to  witness and record such event.

Issue: Whether or Not the saturation drive committed consisted of violation of human rights.

Held: It is not the police action per se which should be prohibited rather it is the procedure used or the methods

which "offend even hardened sensibilities" .Based on the facts stated by the parties, it appears to have been no

impediment to securing search warrants or warrants of arrest before any houses were searched or individuals roused

from sleep were arrested. There is no showing that the objectives sought to be attained by the "aerial zoning" could

not be achieved even as th rights of the squatters and low income families are fully protected. However, the remedy

should not be brought by a tazpaer suit where not one victim complaints and not one violator is properly charged. In

the circumstances of this taxpayers' suit, there is no erring soldier or policeman whom the court can order

prosecuted. In the absence of clear facts no permanent relief can be given.

In the meantime where there is showing that some abuses were committed, the court temporary restraint the alleged

violations which are shocking to the senses. Petition is remanded to the RTC of Manila.

EDUARDO B. OLAGUER, VS. MILITARY COMMISSION

GANCAYCO, J.:

Filed with this Court are two Petitions wherein the fundamental question is whether or not a military tribunal

has the jurisdiction to try civilians while the civil courts are open and functioning.  The two Petitions have been

consolidated inasmuch as the issues raised therein are interrelated.

On December 24, 1979, the herein petitioners Eduardo B. Olaguer, Othoniel V. Jimenez, Ester Misa-Jimenez,

Carlos Lazaro, Reynaldo Maclang, Magdalena De Los Santos-Maclang, Teodorico N. Diesmos,

Rene J. Marciano, Danilo R. De Ocampo andVictoriano C. Amado were arrested by the military authorities.  They

were all initially detained at Camp Crame in Quezon City.  They were subsequently transferred to the detention

center at Camp Bagong Diwa in Bicutan except for petitioner Olaguer who remained in detention

at Camp Crame.  Petitioner Mac Aceron voluntarily surrendered to the authorities sometime in June, 1980 and was,

thereafter, also incarcerated at Camp Bagong Diwa.  All of the petitioners are civilians.

On May 30, 1980, the petitioners were charged for subversion [1] upon the recommendation of the respondent

Judge Advocate General and the approval of the respondent Minister of National Defense.[2] The case was

designated as Criminal Case No. MC-34-1.

On June 13, 1980, the respondent Chief of Staff of the Armed Forces of

thePhilippines[3] created the respondent Military Commission No. 34 to try the criminal case filed against the

petitioners.[4] On July 30, 1980, an amended charge sheet was filed for seven (7) offenses, namely:  (1) unlawful

possession of explosives and incendiary devices; (2) conspiracy to assassinate President and Mrs. Marcos; (3)

conspiracy to assassinate cabinet members Juan Ponce Enrile, Francisco Tatad and VicentePaterno; (4) conspiracy

to assassinate Messrs. Arturo Tangco, Jose Roño and OnofreCorpus; (5) arson of nine buildings; (6) attempted

murder of Messrs. Leonardo Perez,Teodoro Valencia and Generals Romeo Espino and Fabian Ver; and (7)

conspiracy and proposal to commit rebellion, and inciting to rebellion.[5] Sometime thereafter, trial ensued.

In the course of the proceedings, particularly on August 19, 1980, the petitioners went to this Court and filed

the instant Petition for prohibition and habeas corpus.[6]They sought to enjoin the respondent Military Commission

No. 34 from proceeding with the trial of their case.  They likewise sought their release from detention by way of a

writ of habeas corpus.  The thrust of their arguments is that military commissions have no jurisdiction to try civilians

for offenses alleged to have been committed during the period of martial law.  They also maintain that the

proceedings before the respondent Military Commission No. 34 are in gross violation of their constitutional right to

due process of law.

On September 23, 1980, the respondents filed their Answer to the Petition. [7] OnNovember 20, 1980, the

petitioners submitted their Reply to the Answer.[8] In a Motion filed with this Court on July 25, 1981,

petitioner Olaguer requested that the Petition be considered withdrawn as far as he is concerned.[9] In the Resolution

of this Court datedJuly 30, 1981, the said prayer was granted.[10] On August 31, 1984, the respondents filed a

Rejoinder to the Reply submitted by the petitioners.[11]

On December 4, 1984, pending the resolution of the Petition, the respondentMilitary Commission No. 34

passed sentence convicting the petitioners and imposed upon them the penalty of death by electrocution.  Thus,

on February 14, 1985, petitioners Olaguer, Maclang and Othoniel and Ester Jimenez went to this Court and filed the

other instant Petition, this time for habeas corpus, certiorari, prohibition andmandamus.  They also sought the

issuance of a writ of preliminary injunction.[12] The respondents named in the Petition are the Chief of Staff of the

Armed Forces of thePhilippines, Military Commission No. 34, the Judge Advocate General, the Minister of National

Defense and the Director of the Bureau of Prisons.

In sum, the second Petition seeks to enjoin the said respondents from taking any further action on the case

against the petitioners, and from implementing the judgment of conviction rendered by the respondent Military

Commission No. 34 for the reasonthat the same is null and void.  The petitioners also seek the return of all property

takenfrom them by the respondents concerned.  Their other arguments in the earlier Petition are stressed anew.

On August 9, 1985, the respondents filed their Answer to the Petition.[13] OnSeptember 12, 1985, this

Court issued a temporary restraining order enjoining the respondents from executing the Decision of the respondent

Military Commission No. 34.[14] On February 18, 1986 the petitioners submitted an extensive Brief.[15] Thereafter,

and in due time, the cases were submitted for decision.

In resolving these two Petitions, We have taken into account several supervening events which have occurred

hitherto, to wit --

(1)  On January 17, 1981, President Ferdinand E. Marcos issued Proclamation No. 2045 officially lifting martial law

in the Philippines.  The same Proclamation revoked General Order No. 8 (creating military tribunals) and directed

that "the military tribunals created pursuant thereto are hereby dissolved upon final determination of cases pending

therein which may not be transferred to the civil courts without irreparable prejudice to the state in view of the rules

on double jeopardy, or other circumstances which render prosecution of the cases difficult, if not impossible." ; and

(2)  Petitioner Ester Misa-Jimenez was granted provisional liberty in January, 1981.  On the other hand, petitioners

Eduardo Olaguer and Othoniel Jimenez obtained provisional liberty on January 23, 1986.[16] The rest of the

petitioners have been released sometime before or after President Corazon C. Aquino assumed office in February,

1986.

The sole issue in habeas corpus proceedings is detention.[17] When the release of the persons in whose

behalf the application for a writ of habeas corpus was filed is effected, the Petition for the issuance of the writ

becomes moot and academic.[18]Inasmuch as the herein petitioners hav been released from their confinement in

military detention centers, the instant Petitions for the issuance of a writ of habeas corpusshould be dismissed for

having become moot and academic.

We come now to the other matters raised in the two Petitions.   The main issue raised by the petitioners is

whether or not military commissions or tribunals have the jurisdiction to try civilians for offenses allegedly

committed during martial law when civil courts are open and functioning.

The petitioners maintain that military commissions or tribunals do not have such jurisdiction and that the

proceedings before the respondent Military Commission No. 34 are in gross violation of their constitutional right to

due process of law.  The respondents, however, contend otherwise.

The issue on the jurisdiction of military commissions or tribunals to try civilians for offenses allegedly

committed before, and more particularly during a period of martial law, as well as the other issues raised by the

petitioners, have been ruled upon by a divided Supreme Court in Aquino, Jr. v. Military Commission No. 2.[19] The

pertinent portions of the main opinion of the Court are as follows -?

"We hold that the respondent Military Commission No. 2 has been lawfully constituted and validly vested with

jurisdiction to hear the cases against civilians, including the petitioner.

"1.  The Court has previously declared that the proclamation of Martial Law xxx on September 21, 1972, xxx is

valid and constitutional and that its continuance is justified by the danger posed to the public safety.[20]

"2.  To preserve the safety of the nation in times of national peril, the President of the Philippines necessarily

possesses broad authority compatible with the imperative requirements of the emergency.  On the basis of this, he

has authorized in General Order No. 8 xxx the Chief of Staff, Armed Forces of the Philippines, 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. 12 xxx, the military tribunals were vested with jurisdiction ‘exclusive of the civil courts', among others,

over crimes against public order, violations of the Anti-Subversion Act, violations of the laws on firearms, and other

crimes which, in the face of the emergency, are directly related to the quelling of the rebellion and preservation of

the safety and security of the Republic.  xxx.  These measures he had the authority to promulgate, since this Court

recognized that the incumbent President (President Marcos), under paragraphs 1 and 2 of Section 3 of Article XVII

of the new (1973) Constitution, had the authority to ‘promulgate proclamations, orders and decrees during the period

of martial law essential to the security and preservation of the Republic, to the defense of the political and social

liberties of the people and to the institution of reforms to prevent the resurgence of the rebellion or insurrection or

secession or the threat thereof xxx'.[21] xxx.

"3.  Petitioner nevertheless insists that he being a civilian, his trial by military commission deprives him of his right

to due process, since in his view the due process guaranteed by the Constitution to persons accused of 'ordinary'

crimes means judicial process.  This argument ignores the reality of the rebellion and the existence of martial law. It

is, of course, essential that in a martial law situation, the martial law administrator must have ample and sufficient

means to quell the rebellion and restore civil order.  Prompt and effective trial and punishment of offenders have

been considered as necessary in a state of martial law, as a mere power of detention may be wholly inadequate for

the exigency.[22] 'xxx martial law xxx creates an exception to the general rule of exclusive subjection to the civil

jurisdiction, and renders offenses against the laws of war, as well as those of a civil character, triable, xxx by

military tribunals.'[23] 'Public danger warrants the substitution of executive process for judicial process.'[24] xxx.  'The

immunity of civilians from military jurisdiction must, however, give way in areas governed by martial law.  When it

is absolutely imperative for public safety, legal processes can be superseded and military tribunals authorized to

exercise the jurisdiction normally vested in courts.'[25] xxx."

"xxx.

"5.  xxx.  The guarantee of due process is not a guarantee of any particular form of tribunal in criminal cases.  A

military tribunal of competent jurisdiction, accusation in due form, notice and opportunity to defend and trial before

an impartial tribunal, adequately meet the due process requirement.  Due process of law does not necessarily mean a

judicial proceeding in the regular courts.[26] xxx."

This ruling has been affirmed, although not unanimously, in at least six other cases, to wit:  Gumaua v. Espino,[27] Buscayno v. Enrile,[28] Sison v. Enrile,[29] Luneta v. Special Military Commission No. 1,[30] Ocampo v. Military

Commission No. 25,[31] and Buscaynov. Military Commission Nos. 1, 2, 6 and 25.[32]

These rulings notwithstanding, the petitioners anchor their argument on their prayer that the ruling in Aquino,

Jr. be appraised anew and abandoned or modified accordingly.  After a thorough deliberation on the matter, We find

cogent basis for re-examining the same.

Some recent pronouncements of this Court could be considered as attempts to either abandon or modify the

ruling in Aquino, Jr.

In De Guzman v. Hon. Leopando, et al.,[33] an officer of the Armed Forces of thePhilippines and several other

persons were charged with Serious Illegal Detention before the Court of First Instance of Maguindanao sometime in

October, 1982.  The military officer sought to effect the transfer of the case against him to the General CourtMartial

for trial pursuant to the provisions of Presidential Decree No. 1850.  The trial court disallowed such transfer for the

reason that the said Decree is unconstitutional inasmuch as it violates the due process and equal protection clauses of

the Constitution, as well as the constitutional provisions on social justice, the speedy disposition of cases, the

republican form of government, the integrity and independence of the judiciary, and the supremacy of civilian

authority over the military.

When the matter was elevated to this Court by way of a Petition for certiorari, prohibition and mandamus, the

Court decided that a ruling on the constitutional issues raised was not necessary.  With the view that practical and

procedural difficulties will result from the transfer sought, this Court resolved to dismiss the Petition for lack of

merit.

In Animas v. The Minister of National Defense,[34] a military officer and several civilians were charged with

murder alleged to have been committed sometime in November, 1971.  All of the said accused were recommended

for prosecution before a military tribunal.  In the course of the proceedings, the said accused went to this Court on a

Petition for certiorari and challenged the jurisdiction of the military tribunal over their case.  The petitioners

contended that General Order No. 59 upon which the jurisdiction of the military tribunal is anchored refers only to

the crime of illegal possession of firearms and explosives in relation to other crimes committed with a political

complexion.  They stressed that the alleged murder was devoid of any political complexion.

This Court, speaking through Mr. Justice Hugo E. Gutierrez, Jr., ordered the transfer of the criminal

proceedings to the civil courts after noting that with martial law having been lifted in the country in 1981, all cases

pending before the military tribunals should, as a general rule, be transferred to the civil courts.  The Court was also

of the view that the crime alleged to have been committed did not have any political complexion.   We quote the

pertinent portions of the Decision of the Court, to wit --

"Inspite or because of the ambiguous nature of xxx civilian takeover of jurisdiction was concerned and

notwithstanding the shilly-shallying and vacillation characteristic of its implementation, this Court relied on the

enunciated policy of normalization in upholding the primacy of civil courts.  This policy meant that as many cases

as possible involving civilians being tried by military tribunals as could be transferred to civil courts should be

turned over immediately.  In case of doubt, the presumption was in favor of civil courts always trying civilian

accused.

"xxx.

"The crime for which the petitioners were charged was committed xxx long before the proclamation of martial

law. xxx.  Now that it is already late 1986, and martial law is a thing of the past, hopefully never more to return,

there isno more reason why a murder committed in 1971 should still be retained, at this time, by a military

tribunal.  xxx."

We agree with the dissenting views of then Justice, now Chief Justice ClaudioTeehankee[35] and Madame

Justice Cecilia Muñoz-Palma[36] in Aquino, Jr. in so far as they hold that military commissions or tribunals have

no jurisdiction to try civilians for alleged offenses when the civil courts are open and functioning.

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. [37] 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.  As explained by Justice Teehankeein his separate dissenting opinion --

"xxx Civilians like (the) petitioner placed on trial for civil offenses under general law are entitled to trial by judicial

process, not by executive or military process.

"Judicial power is vested by the Constitution exclusively in the Supreme Court and in such inferior courts as are

duly established by law.  Judicial power exists only in the courts, which have 'exclusive power to hear and determine

those matters which affect the life or liberty or property of a citizen.'[38]

"Since we are not enemy-occupied territory nor are we under a military government and even on the premise that

martial law continues in force, the military tribunals cannot try and exercise jurisdiction over civilians for civil

offenses committed by them which are properly cognizable by the civil courts that have remained open and have

been regularly functioning.[39] xxx.

"And in Toth v. Quarles,[40] the U.S. Supreme Court further stressed that 'the assertion of military authority over

civilians cannot rest on the President's power as Commander-in-Chief or on any theory of martial law.'

"xxx.

"The U.S. Supreme Court aptly pointed out xxx, in ruling that discharged army veterans (estimated to number more

than 22.5 million) could not be rendered 'helpless before some latter-day revival of old military charges' and

subjected to military trials for offenses committed while they were in the military service prior to their discharge,

that ‘the presiding officer at a court martial is not a judge whose objectivity and independence are protected by

tenure and undiminished salary and nurtured by the judicial tradition, but is a military law officer.  Substantially

different rules of evidence and procedure apply in military trials.  Apart from these differences, the suggestion of the

possibility of influence on the actions of the court-martial by the officer who convenes it, selects its members and

the counsel on both sides, and who usually has direct command authority over its members is a pervasive one in

military law, despite strenuous efforts to eliminate the danger.'

"The late Justice Black xxx added that '(A) Court-Martial is not yet an independent instrument of justice but remains

to a significant degree a specialized part of the over-all mechanism by which military discipline is preserved,’ and

that exservicemen should be given 'the benefits of a civilian court trial when they are actually civilians xxx.  Free

countries of the world have tried to restrict military tribunals to the narrowest jurisdiction deemed absolutely

essential to maintaining discipline among troops in active service.' "

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.[41] 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.[42] 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. [43] To have it otherwise would be

a violation of the constitutional right to due process of the civilian concerned.

In addition to this pronouncement, We take note of the observation made by the Solicitor General to the effect

that the death penalty imposed upon the petitioners by the respondent Military Commission No. 34 appears to have

been rendered too hastily to the prejudice of the petitioners, and in complete disregard of their constitutional right to

adduce evidence on their behalf.  We quote the pertinent portions of the Manifestation submitted by the Solicitor

General, to wit -

"Prior to the session of December 4, 1984, when the respondent Commission rendered its sentence, petitioners have

requested the prosecution to provide them with copies of the complete record of trial, including the evidences pres-

ented against them, but the prosecution dillydallied and failed to provide them with the documents

requested. According to petitioners, they needed the documents to adequately prepare for their defense.

"But a few days before December 4, 1984 the prosecution suddenly furnished them with certain transcripts of the

proceedings which were not complete.  Petitioner Othoniel Jimenez was scheduled to start with the presentation of

his evidence on said date and he requested that his first witness be served with subpoena.  The other petitioners, as

agreed upon, were to present their evidence after the first one, Othoniel Jimenez, has finished presenting his

evidence.  But on that fateful day, December 4, 1984, the witness requested to be served with subpoena was not

around, because as shown by the records, he was not even served with the requested subpoena.  But in spite of that,

respondent Military Commission proceeded to ask each one of the petitioners if they are ready to present their

evidence.  Despite their explanation that Othoniel Jimenez cannot proceed because the prosecution, which performs

the duties and functions of clerk of court, failed to subpoena his witness, and that the other petitioners were not

ready because it was not yet their turn to do so, the Commission abruptly decided that petitioners aredeemed to have

waived the presentation of evidence in their behalf, and considered the case submitted for resolution.

"After a recess of only twenty-five (25) minutes, the session was resumed and the Commission rendered its sentence

finding petitioners guilty of all the charges against them and imposing upon them the penalty of death by electrocu-

tion."[44]

Thus, even assuming arguendo that the respondent Military Commission No. 34 does have the jurisdiction to try the

petitioners, the Commission should be deemed ousted of its jurisdiction when, as observed by the Solicitor General,

the said tribunal acted in disregard of the constitutional rights of the accused.  Indeed, it is well-settled that

oncea deprivation of a constitutional right is shown to exist, the tribunal that rendered the judgment in question is

deemed ousted of jurisdiction.[45]

Moreover, We find that Proclamation No. 2045 (dated January 17, 1981) officially lifting martial law in the

Philippines and abolishing all military tribunals created pursuant to the national emergency effectively divests the

respondent Military Commission No. 34 (and all military tribunals for that matter) of its supposed authority to try

civilians, including the herein petitioners.

The main opinion in Aquino, Jr. is premised on the theory that military tribunals have the jurisdiction to try

civilians as long as the period of national emergency (brought about by public disorder and similar causes)

lasts.  Undoubtedly, Proclamation No. 2045 is an acknowledgment on the part of the Executive Department of the

Government that the national emergency no longer exists.  Thereafter, following the theory relied upon in the main

opinion, all military tribunals should henceforth be considered functus officio in their relationship with civilians.

By virtue of the proclamation itself, all cases against civilians pending therein should eventually be transferred

to the civil courts for proper disposition.  The principle of double jeopardy would not be an obstacle to such transfer

because an indispensable element of double jeopardy is that the first tribunal which tried the case must be of

competent jurisdiction.[46] As discussed earlier, the military tribunals are devoid of the required jurisdiction.

We take this opportunity to reiterate that as long as the civil courts in the land are open and functioning,

military tribunals cannot try and exercise jurisdiction over civilians for offenses committed by them.  Whether or not

martial law has been proclaimed throughout the country or over a part thereof is of no moment.   The imprimatur for

this observation is found in Section 18, Article VII of the 1987 Constitution, to wit -?

"A state of martial law does not suspend the operation of the Constitution,

nor supplant the functioning of the civilcourts or legislative

assemblies, nor authorize the conferment of jurisdiction on military courts and agencies overcivilians where civil co

urts are able to function, nor automatically suspend the privilege of the writ." (Emphasis supplied.)

This provision in the fundamental law is just one of the many steps taken by the Filipino people towards the

restoration of the vital role of the judiciary in a free country -- that of the guardian of the Constitution and  the

dispenser of justice without fear or favor.

No longer should military tribunals or commissions exercise jurisdiction over civilians for offenses allegedly

committed by them when the civil courts are open and functioning.  No longer may the exclusive judicial power of

the civil courts, beginning with the Supreme Court down to the lower courts[47] be appropriated by any military body

or tribunal, or even diluted under the guise of a state of martial law, national security and other similar labels.

At this juncture, We find it appropriate to quote a few paragraphs from

the ponenciaof Mr. Justice Gutierrez in Animas v. The Minister of National Defense,[48] viz --

"The jurisdiction given to military tribunals over common crimes and civilian(s) accused at a time when all civil

courts were fully operational and freely functioning constitutes one of the saddest chapters in the history of

thePhilippine judiciary.

"The downgrading of judicial prestige caused by the glorification of military tribunals, the instability and insecurity

felt by many members of the judiciary due to various causes both real and imagined, and the many judicial problems

spawned by extended authoritarian rule which effectively eroded judicial independence and self-respect will require

plenty of time and determined efforts to cure.

"The immediate return to civil courts of all cases which properly belong to them is only a beginning."

And in his separate concurring opinion in Animas, Mr. Chief Justice Teehankee had this to say --

"I only wish to add that the great significance of our judgment in this case is that we reestablish and reinstate the

fundamental principle based on civilian supremacy over the military as urged in vain in my dissent in the case

ofBenigno S. Aquino, Jr. vs. Military Commission No. 2, et al. that 'Civilians placed on trial for offenses under

general law are entitled to trial by judicial process, not by executive or military process.  Judicial power is vested by

the Constitution exclusively in the Supreme Court and in such inferior courts as are duly established by

law.  Military commissions, or tribunals, are not courts and do not form part of the judicial system.  Since we are not

enemy-occupied territory nor are we under a military government and even on the premise that martial law

continues in force, the military tribunals cannot try and exercise jurisdiction over civilians for civil offenses

committed by them which are properly cognizable by the civil courts that have remained open and have been

regularly functioning.'

"xxx.

"The terrible consequences of subjecting civilians to trial by military process is best exemplified in the sham

military trial of the martyred former Senator Benigno S. Aquino, Jr., whereby he was deprived (1) by the

summary ex parteinvestigation by the chief prosecution staff of the JAGO, of his right to be informed of the charges

against him and of his right to counsel as expressly recognized by Section 20 of the Bill of Rights of the 1973

Constitution; (2) of his vested statutory right to a preliminary investigation of the subversion charges against him

before the proper court of first instance as required under Section 5 of the Anti-Subversion Act, R.A. 1700 and of

the other charges against him before the proper civilian officials and to confront and cross-examine the witnesses

against him under R.A. 5180; (3) of the right to be tried by judicial process, by the regular independent courts of

justice, with all the specific constitutional, statutory and procedural safeguards embodied in the judicial process and

presided over not by military officers; and (4) of the right to appeal to the regular appellate courts and to judicial

review by this Court in the event of conviction and imposition of a sentence of death or life imprisonment which the

charges carry and wherein a qualified majority of ten (10) votes for affirmance of the death penalty is required.  In

fine, he was denied due process of law as guaranteed under the Bill of Rights which further ordains that ‘No person

shall be held to answer for a criminal offense without due process of law.' Worse, his trial by a military tribunal

created by the then President and composed of the said President's own military subordinates without tenure and of

non?lawyers (except the law member) and of whose decision the President is the final reviewing authority as

Commander-in-Chief of the Armed Forces deprived him of a basic constitutional right to be heard by a fair and

impartial tribunal, considering that the said President had publicly declared the evidence against petitioner 'not only

strong (but) overwhelming’ and thereby prejudged and predetermined his guilt, and none of his military

subordinates could be expected to go against their Commander-in-Chief's declaration.

"Hopefully, all these aberrations now belong to the dead and nightmarish past, when time-tested doctrines, toborrow

a phrase from the then Chief Justice, ‘shrivelled in the effulgence of the overpowering rays of martial rule.' "[49]

As stated earlier, We have been asked to re-examine a previous ruling of the Court with a view towards aban-

doning or modifying the same.  We do so now but not without careful reflection and deliberation on Our

part.  Certainly, the rule of stare decisis is entitled to respect because stability in jurisprudence is

desirable.  Nonetheless, reverence for precedent, simply as precedent, cannot prevail when constitutionalism and the

public interest demand otherwise.  Thus, a doctrine which should be abandoned or modified should be abandoned or

modified accordingly.  After all, more important than anything else is that this Court should be right.[50]

Accordingly, it is Our considered opinion, and We so hold, that a military commission 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.[51] For the same

reasons, Our pronouncement in Aquino, Jr. v. Military Commission No. 2[52] and all decided cases affirming the

same, in so far as they are inconsistent with this pronouncement, should be deemed abandoned.

WHEREFORE, in view of the foregoing, the Petitions for habeas corpus are DISMISSED for having become

moot and academic.  The Petitions for certiorari and prohibition are hereby GRANTED.  The creation of the

respondent Military Commission No. 34 to try civilians like the petitioners is hereby declared unconstitutional and

all its proceedings are deemed null and void.  The temporary restraining order issued against the respondents

enjoining them from executing the Decision of the respondent Military Commission No. 34 is hereby made

permanent and the said respondents are permanently prohibited from further pursuing Criminal Case No. MC-34-1

against the petitioners.  The sentence rendered by the respondent Military Commission No. 34 imposing the death

penalty on the petitioners is hereby vacated for being null and void, and all the items or properties taken from the

petitioners in relation to the said criminal case should be returned to them immediately.   No pronouncement as to

costs.

SO ORDERED.

Olaguer vs Military Commission

FACTS: Petitioners, as civilians, have been charged the crime of subversion. Consequently, the Chief-of-Staff of

the AFP created a military tribunal, named Military Commission No. 34, to try criminal case against petitioners.

Petitioners were then convicted and have been imposed a penalty of death penalty. Thereafter, petitioners filed a

petition to enjoin the military tribunal from taking further action on their case for the tribunal should be considered

null and void. Respondents invoked that the creation of Military Commission is constitutional as ruled upon in a

previous case – Aquino v. Military Commission No. 2.- as decided upon by the Supreme Court. However,

petitioners contend that such ruling must be overturned because the ruling is now inapplicable since Martial Law has

already been lifted.

 

ISSUE: Whether or not the ruling in Aquino v. Military Commission be abandoned and/or modified in so far as the

case at bar is concerned?

 

HELD: Yes. First, the Court considered that since the martial law has been lifted during the case is still pending,

military tibunals, which were created for the purpose of martial law, shall be held void already since the law itself is

lifted. Second, the Court relied on the dissenting views of some justices in AQUINO V. MILCOMM, stating

that ‘…Civilians like the petitioner placed on tiral for civil offenses under general law are entited o trial by judicial

process, not by executive or military process…xxx..Judicial power exist only in courts’.1Moreover, the Court

emphasized that“Reverence for precedent, simply as precedent, cannot prevail when constitutionalism and the public

interest demand otherwise. Thus, a doctrine which should be abandoned or modified should be abandoned or

modified accordingly. after all, more important than anything else is that this Court should be right.