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Tan vs.

Barrios [GRs 85481-82, 18 October 1990] En Banc, Grino-Aquino (J): 12 concur, 1 concurs in
separate opinion, 1 took no part

Facts: On the basis of Proclamation 1081 dated 21 September 1972, then President Ferdinand E.
Marcos, thru General Order 8 dated 27 September 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 21 dated 30 September 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 12-b dated 7 November 1972, "crimes against persons as
defined and penalized in the Revised Penal Code" were added to the jurisdiction of military
tribunals/commissions. Subsequently, General Order 49, dated 11 October 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 GO 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 17
April 1975, William Tan (@ Go Bon Ho), Joaquin Tan Leh (@ Go Bon Huat, @ Taowie) and Vicente Tan
(@ Go Bon Beng, @ Donge), with 12 others (Luis Tan [@ Tata, @ Go Bon Hoc], Ang Tiat Chuan [@
Chuana], Mariano Velez, Jr., Antonio Occaciones, Leopoldo Nicolas, Enrique Labita, Oscar Yaun, Eusebio
Tan [@ Go Bon Ping], Alfonso Tan [@ Go Bon Tiak], Go E Kuan [@ Kunga], Marciano Benemerito [@
Marcing, @ Dodong], Manuel Beleta, and John Doe), were arrested and charged in Criminal Case MC-1-
67 before the Military Commission 1, for the crimes of: (1) murder through the use of an unlicensed or
illegally-possessed firearm, penalized under Article 248 of the Revised Penal Code, in relation to Section
1, par. 6 of General Order 49, for the killing on 25 August 1973 of Florentino Lim of the wealthy Lim Ket
Kai family of Cagayan de Oro City; and (2) unlawful possession, control, and custody of a pistol, caliber
.45 SN-1283521 with ammunition, in violation of General Orders 6 and 7 in relation to Presidential
Decree 9. Because the case was a "cause celebre" in Cagayan de Oro City, President Marcos, pursuant to
the recommendation of Defense Secretary Juan Ponce Enrile, withdrew his earlier order to transfer the
case to the civil courts. Hence, the case was retained in the military court. All the accused were detained
without bail in the PC Stockade in Camp Crame. Upon arraignment on 6 May 1975, all the accused
pleaded "not guilty." Manuel Beleta was discharged to be used as a state witness. He was released from
detention on 5 May 1975. Almost daily trials were held for more than 13 months. The testimonies of 45
prosecution witnesses and 35 defense witnesses filled up 21 volumes of transcripts consisting of over
10,000 pages. On 10 June 1976, a decision entitled "Findings and Sentence," was promulgated by the
Military Commission finding 5 of the accused namely: Luis Tan, Ang Tiat

Constitutional Law II, 2005 ( 13 )

Narratives (Berne Guerrero)

Chuan, Mariano Velez, Jr., Antonio Occaciones, and Leopoldo Nicolas guilty of murder, where each of
them was sentenced to suffer an indeterminate prison term of from 17 years, 4 months, and 21 days, to
20 years. A sixth accused, Marciano Benemerito, was found guilty of both murder and illegal possession
of firearm, and was sentenced to suffer the penalty of death by electrocution. 8 of the accused, namely:
Oscar Yaun, Enrique Labita, Eusebio Tan, Alfonso Tan, Go E Kuan, William Tan, Joaquin Tan Leh, and
Vicente Tan were acquitted of the charges, and released on 11 June 1976.

On 17 January 1981, Proclamation 2045 ended martial rule and abolished the military tribunals and
commissions. On 22 May 1987, the Supreme Court promulgated a decision in Olaguer vs. Military
Commission 34, et al. (150 SCRA 144), vacating the sentence rendered on 4 December 1984 by Military
Commission 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. In October 1986, 6 habeas corpus petitions were filed in the Supreme Court by some 217
prisoners in the national penitentiary, who had been tried for common crimes and convicted by the
military commissions during the 9-year span of official martial rule (G.R. Nos. 75983, 79077,79599-
79600, 79862 and 80565 consolidated and entitled Manuel R. Cruz, et al. vs. Minister Juan Ponce Enrile,
et al., 160 SCRA 700). Conformably with the ruling in Olaguer, the Supreme 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.

On 15 September 1988, Secretary of Justice Sedfrey Ordoez issued Department Order 226 designating
State Prosecutor Hernani Barrios "to collaborate with the City Fiscal of Cagayan de Oro City in the
investigation/reinvestigation of Criminal Case MC-1-67 and, if the evidence warrants, to prosecute the
case in the court of competent jurisdiction." On 15 November 1988, State Prosecutor Hernani T. Barrios
was designated Acting City Fiscal of Cagayan de Oro City in lieu of the regular fiscal who inhibited
himself. Without conducting an investigation/reinvestigation, Fiscal Barrios filed on 9 December 1988, in
the Regional Trial Court of Cagayan de Oro City two (2) informations for (1) Illegal Possession of Firearm
[Criminal Case 88-824]; and (2) Murder [Criminal Case 88-825] against all the 15 original defendants in
Criminal Case MC1-67 including those who had already died. Criminal Cases 88-824 and 88-825 of the
RTC, Cagayan de Oro City, were assigned by raffle to the sala of RTC Judge Leonardo N. Demecillo.
Before issuing warrants for the arrest of the accused, Judge Demecillo issued an order on 26 October
1988, requiring State Prosecutor Barrios to submit certified copies of "the supporting affidavits of the
previous cases wherever they are now," and of the Supreme Court order "which is the basis of filing the
cases, within 5 days from receipt" of his said order. The State Prosecutor has not complied with that
order. On 7 November 1988, William Tan, Joaquin Tan Leh and Vicente Tan filed the petition for
certiorari and prohibition praying that the informations in Criminal Cases 88-824 and 88-825, and the
order of Judge dated 26 October 1988 be annulled, among others.

Issue: Whether the reprosecution of Tan, et. al. would violate their right to protection against double
jeopardy.

Held: 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 the Court's 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 Tan, et. al. and their co-accused before
the Military Commission. 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 Tan,
et. al., 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 the Supreme Court (Aquino vs.
Military Commission No. 2, 63 SCRA 546) years before the Olaguer case arose and came before the
Supreme Court. Because of these established operative facts, the refiling of the information against Tan,
et. al. would place them in double jeopardy, in hard fact if not in constitutional logic. The doctrine of
double jeopardy protects the accused from harassment by the strong arm of the State: "The
constitutional mandate is (thus) a rule of finality. A single prosecution for any offense is all the law
allows. It protects an accused from harassment, enables him to treat what had transpired as a closed
chapter in his life, either to exult in his freedom or to be resigned to whatever penalty is imposed, and is
a bar to unnecessary litigation, in itself time-consuming and expense-producing for the state as well. It
has been referred to as 'res judicata in prison grey.' The ordeal of a criminal prosecution is inflicted only
once, not whenever it pleases the state to do so."