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Republic of the Philippines SUPREME COURT Manila FIRST DIVISION

G.R. No. L-45129 March 6, 1987 PEOPLE OF THE PHILIPPINES, petitioner, vs. THE HONORABLE BENJAMIN RELOVA, in his capacity as Presiding Judge of the Court of First Instance of Batangas, Second Branch, and MANUEL OPULENCIA, respondents.

FELICIANO, J.:
In this petition for certiorari and mandamus, the People of the Philippines seek to set aside the orders of the respondent Judge of the Court of First Instance of Batangas in Criminal Case No. 266, dated 12 August 1976 and 8 November 1976, respectively, quashing an information for theft filed against private respondent Manuel Opulencia on the ground of double jeopardy and denying the petitioner's motion for reconsideration.

On 1 February 1975, members of the Batangas City Police together with personnel of the Batangas Electric Light System, equipped with a search warrant issued by a city judge of Batangas City, searched and examined the premises of the Opulencia Carpena Ice Plant and Cold Storage owned and operated by the private respondent Manuel Opulencia. The police discovered that electric wiring, devices and contraptions had been installed, without the necessary authority from the city government, and "architecturally concealed inside the walls of the building" 1 owned by the private respondent. These electric devices and contraptions were, in the allegation of the petitioner "designed purposely to lower or decrease the readings of electric current consumption in the electric meter of the said electric [ice and cold storage] plant." 2 During the subsequent investigation, Manuel Opulencia admitted in a written statement that he had caused the installation of the electrical devices "in order to lower or decrease the readings of his electric meter. 3 On 24 November 1975, an Assistant City Fiscal of Batangas City filed before the City Court of Batangas City an information against Manuel Opulencia for violation of Ordinance No. 1, Series of 1974, Batangas City. A violation of this ordinance was, under its terms, punishable by a fine "ranging from Five Pesos (P5.00) to Fifty Pesos (P50.00) or imprisonment, which shall not exceed thirty (30) days, or both, at the discretion of the court." 4 This information reads as follows:
The undersigned, Assistant City Fiscal, accuses Manuel Opulencia y Lat of violation of Sec. 3 (b) in relation to Sec. 6 (d) and Sec. 10 Article II, Title IV of ordinance No. 1, S. 1974, with damage to the City Government of Batangas, and penalized by the said ordinance, committed as follows: That from November, 1974 to February, 1975 at Batangas City, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, with intent to defraud the City Government of Batangas, without proper authorization from any lawful and/or permit from the proper authorities, did then and there wilfully, unlawfully and

feloniously make unauthorized installations of electric wirings and devices to lower or decrease the consumption of electric fluid at the Opulencia Ice Plant situated at Kumintang, Ibaba, this city and as a result of such unathorized installations of electric wirings and devices made by the accused, the City Government of Batangas was damaged and prejudiced in the total amount of FORTY ONE THOUSAND, SIXTY TWO PESOS AND SIXTEEN CENTAVOS (P41,062.16) Philippine currency, covering the period from November 1974 to February, 1975, to the damage and prejudice of the City Government of Batangas in the aforestated amount of P41,062.16, Philippine currency. The accused Manuel Opulencia pleaded not guilty to the above information. On 2 February 1976, he filed a motion to dismiss the information upon the grounds that the crime there charged had already prescribed and that the civil indemnity there sought to be recovered was beyond the jurisdiction of the Batangas City Court to award. In an order dated 6 April 1976, the Batangas City Court granted the motion to dismiss on the ground of prescription, it appearing that the offense charged was a light felony which prescribes two months from the time of discovery thereof, and it appearing further that the information was filed by the fiscal more than nine months after discovery of the offense charged in February 1975. Fourteen (14) days later, on 20 April 1976, the Acting City Fiscal of Batangas City filed before the Court of First Instance of Batangas, Branch 11, another information against Manuel Opulencia, this time for theft of electric power under Article 308 in relation to Article 309, paragraph (1), of the Revised Penal Code. This information read as follows: The undersigned Acting City Fiscal accuses Manuel Opulencia y Lat of the crime of theft, defined and penalized by Article 308, in relation to Article 309, paragraph (1) of the Revised Penal Code, committed as follows: That on, during, and between the month of November, 1974, and the 21st day of February, 1975, at Kumintang, lbaba, Batangas City, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, with intent of gain and without the knowledge and consent of the Batangas Electric Light System, did then and there, wilfully, unlawfully and feloniously take, steal and appropriate electric current valued in the total amount of FORTY ONE THOUSAND, SIXTY TWO PESOS AND SIXTEEN CENTAVOS (P41,062.16) Philippine Currency, to the damage and prejudice of the said Batangas Electric Light System, owned and operated by the City Government of Batangas, in the aforementioned sum of P41,062.16. The above information was docketed as Criminal Case No. 266 before the Court of First Instance of Batangas, Branch II. Before he could be arraigned thereon, Manuel Opulencia filed a Motion to Quash, dated 5 May 1976, alleging that he had been previously acquitted of the offense charged in the second information and that the filing thereof was violative of his constitutional right against double jeopardy. By Order dated 16 August 1976, the respondent Judge granted the accused's Motion to Quash and ordered the case dismissed. The gist of this Order is set forth in the following paragraphs: The only question here is whether the dismissal of the first case can be properly pleaded by the accused in the motion to quash. In the first paragraph of the earlier information, it alleges that the prosecution "accuses Manuel Opulencia y Lat of violation of Sec. 3(b) in relation to Sec. 6(d) and Sec. 10 Article II, Title IV of Ordinance No. 1, s. 1974, with damage to the City Government of Batangas, etc. " (Emphasis supplied). The first case, as it appears, was not simply one

of illegal electrical connections. It also covered an amount of P41,062.16 which the accused, in effect, allegedly with intent to defraud, deprived the city government of Batangas. If the charge had meant illegal electric installations only, it could have alleged illegal connections which were done at one instance on a particular date between November, 1974, to February 21, 1975. But as the information states "that from November, 1974 to February 1975 at Batangas City, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused with intent to defraud the City Government of Batangas, withoutproper authorization from any lawful and/or permit from the proper authorities, did then and there wilfully, unlawfully and feloniously make unauthorized installations of electric wirings and devices,etc." (Emphasis supplied), it was meant to include the P 41,062.16 which the accused had, in effect, defrauded the city government. The information could not have meant that from November 1974 to 21 February 1975, he had daily committed unlawful installations. When, therefore, he was arraigned and he faced the indictment before the City Court, he had already been exposed, or he felt he was exposed to consequences of what allegedly happened between November 1974 to February 21, 1975 which had allegedly resulted in defrauding the City of Batangas in the amount of P 41,062.16. (Emphases and parentheses in the original) A Motion for Reconsideration of the above-quoted Order filed by the petitioner was denied by the respondent Judge in an Order dated 18 November 1976. On 1 December 1976, the present Petition for certiorari and mandamus was filed in this Court by the Acting City Fiscal of Batangas City on behalf of the People. The basic premise of the petitioner's position is that the constitutional protection against double jeopardy is protection against a second or later jeopardy of conviction for the same offense. The petitioner stresses that the first information filed before the City Court of Batangas City was one for unlawful or unauthorized installation of electrical wiring and devices, acts which were in violation of an ordinance of the City Government of Batangas. Only two elements are needed to constitute an offense under this City Ordinance: (1) that there was such an installation; and (2) no authority therefor had been obtained from the Superintendent of the Batangas City Electrical System or the District Engineer. The petitioner urges that the relevant terms of the City Ordinance which read as follows: Section 3.-Connection and Installation (a) x x x (b) The work and installation in the houses and building and their connection with the Electrical System shall be done either by the employee of the system duly authorized by its Superintendent or by persons adept in the matter duly authorized by the District Engineer. Applicants for electrical service permitting the works of installation or connection with the system to be undertaken by the persons not duly authorized therefor shall be considered guilty of violation of the ordinance. would show that:
The principal purpose for (sic) such a provision is to ensure that electrical installations on residences or buildings be done by persons duly authorized or adept in the matter, to avoid fires and accidents due to faulty electrical wirings. It is primarily a regulatory measure and not intended to punish or curb theft of electric fluid which is already covered by the Revised Penal Code. 5

The gist of the offense under the City Ordinance, the petitioner's argument continues, is the installing of electric wiring and devices without authority from the proper officials of the city government. To constitute an offense under the city ordinance, it is not essential to establish any mens rea on the part of the offender generally speaking, nor, more specifically, an intent to appropriate and steal electric fluid. In contrast, the petitioner goes on, the offense of theft under Article 308 of the Revised Penal Code filed before the Court of First Instance of Batangas in Criminal Case No. 266 has quite different essential elements. These elements are: 1. That personal property be taken; 2. That the personal property (taken) belongs to another; 3. That the taking be done with intent of gain; 4. That the taking be done without the consent of the owner; and
5. That the taking be accomplished without violence against or intimidation of persons or force upon things. 6

The petitioner also alleges, correctly, in our view, that theft of electricity can be effected even without illegal or unauthorized installations of any kind by, for instance, any of the following means: 1. Turning back the dials of the electric meter; 2. Fixing the electric meter in such a manner that it will not register the actual electrical consumption; 3. Under-reading of electrical consumption; and
4. By tightening the screw of the rotary blade to slow down the rotation of the same.
7

The petitioner concludes that:

The unauthorized installation punished by the ordinance [of Batangas City] is not the same as theft of electricity [under the Revised Penal Code]; that the second offense is not an attempt to commit the first or a frustration thereofand that the second offense is not necessarily included in the offense charged in the first inforrnation 8

The above arguments made by the petitioner are of course correct. This is clear both from the express terms of the constitutional provision involved which reads as follows:
No person shall be twice put in jeopardy of punishment for the same offense. If an act is punished by a law and an ordinance, conviction or acquittal under either shall constitute a bar to another prosecution for the same act. (Emphasis supplied; Article IV (22), 1973 Constitution) 9

and from our case law on this point. 10 The basic difficulty with the petitioner's position is that it must be examined, not under the terms of the first sentence of Article IV (22) of the 1973 Constitution, but rather under the second sentence of the same section. The first sentence of Article IV (22) sets forth the general rule: the constitutional protection against double jeopardy is not available where the second prosecution is for an offense that is different from the offense charged in the first or prior prosecution, although both the first and second offenses may be based upon the same act or set of acts. The second sentence of Article IV (22) embodies an exception to the general proposition: the constitutional protection, against double jeopardy is available although the prior offense charged under an ordinance be different from the offense charged subsequently under a national statute such as the Revised Penal Code, provided that both offenses spring from the same act or set of acts. This was made clear sometime ago in Yap vs. Lutero. 11

In Yap, petitioner Manuel Yap was charged in Criminal Case No. 16054 of the Municipal Court of Iloilo City, with violation of Article 14 of Ordinance No. 22, Series of 1951, in relation to Ordinance No. 15, Series of 1954, of the City of Iloilo. The information charged him with having "wilfully, unlawfully and feloniously drive[n] and operate[d]" an automobile "recklessly and without reasonable caution thereby endangering other vehicles and pedestrians passing in said street." Three months later, Yap was again charged in Criminal Case No. 16443 of the same Municipal Court, this time with serious physical injuries through reckless imprudence. The information charged him with violation of the Revised Motor Vehicle Law (Act No. 3992 as amended by Republic Act No. 587) committed by driving and operating an automobile in a reckless and negligent manner and as a result thereof inflicting injuries upon an unfortunate pedestrian. Yap moved to quash the second information upon the ground that it placed him twice in jeopardy of punishment for the same act. This motion was denied by the respondent municipal judge. Meantime, another municipal judge had acquitted Yap in Criminal Case No. 16054. Yap then instituted a petition for certiorari in the Court of First Instance of Iloilo to set aside the order of the respondent municipal judge. The Court of First Instance of Iloilo having reversed the respondent municipal judge and having directed him to desist from continuing with Criminal Case No. 16443, the respondent Judge brought the case to the Supreme Court for review on appeal. In affirming the decision appealed from and holding that the constitutional protection against double jeopardy was available to petitioner Yap, then Associate Justice and later Chief Justice Roberto Concepcion wrote: To begin with, the crime of damage to property through reckless driving with which Diaz stood charged in the court of first instance is a violation of the Revised Penal Code (third paragraph of Article 365), not the Automobile Law (Act No. 3992, as amended by Republic Act No. 587). Hence, Diaz was not twice accused of a violation of the same law. Secondly, reckless driving and certain crimes committed through reckless driving are punishable under different provisions of said Automobile Law. Hence from the view point of Criminal Law, as distinguished from political or Constitutional Law they constitute, strictly, different offenses, although under certain conditions, one offense may include the other, and, accordingly, once placed in jeopardy for one, the plea of double jeopardy may be in order as regards the other, as in the Diaz case. (Emphases in the original)
Thirdly, our Bill of Rights deals with two (2) kinds of double jeopardy. The first sentence of clause 20, section 1, Article III of the Constitution, ordains that "no person shall be twice put in jeopardy of punishment for the sameoffense." (Emphasis in the original) The second sentence of said clause provides that "if an act is punishable by a law and an ordinance, conviction or acquittal under either shall constitute a bar to another prosecution for the same act." Thus, the first sentence prohibits double jeopardy of punishment for the same offense, whereas the second contemplates double jeopardy of punishment for the same act. Under the first sentence, one may be twice put in jeopardy of punishment of the same act provided that he is charged with different offenses, or the offense charged in one case is not included in or does not include, the crime charged in the other case. The second sentence applies, even if the offenses charged are not the same, owing to the fact that one constitutes a violation of an ordinance and the other a violation of a statute. If the two charges are based on one and the same act conviction or acquittal under either the law or the ordinance shall bar a prosecution under the other. 12 Incidentally, such conviction or acquittal is not indispensable to sustain the plea of double jeopardy of punishment for the same offense. So long as jeopardy has attached under one of the informations charging said offense, the defense may be availed of in the other case involving the same offense, even if there has been neither conviction nor acquittal in either case.

The issue in the case at bar hinges, therefore, on whether or not, under the information in case No. 16443, petitioner could if he failed to plead double jeopardy be convicted of the same act charged in case No. 16054, in which he has already been acquitted. The information in case No. 16054 alleges, substantially, that on the date

and in the place therein stated, petitioner herein had wilfully, unlawfully and feloniously driven and operated "recklessly and without reasonable caution" an automobile described in said information. Upon the other hand, the information in case No. 16443, similarly states that, on the same date and in the same place, petitioner drove and operated the aforementioned automobile in a "reckless and negligent manner at an excessive rate of speed and in violation of the Revised Motor Vehicle Law (Act No. 3992), as amended by Republic Act No. 587, and existing city ordinances." Thus, if the theories mentioned in the second information were not established by the evidence, petitioner could be convicted in case No. 16443 of the very same violation of municipal ordinance charged in case No. 16054, unless he pleaded double jeopardy. It is clear, therefore, that the lower court has not erred eventually sustaining the theory of petitioner herein. Put a little differently, where the offenses charged are penalized either by different sections of the same statute or by different statutes, the important inquiry relates to the identity of offenses charge: the constitutional protection against double jeopardy is available only where an Identity is shown to exist between the earlier and the subsequent offenses charged. In contrast, where one offense is charged under a municipal ordinance while the other is penalized by a statute, the critical inquiry is to the identity of the acts which the accused is said to have committed and which are alleged to have given rise to the two offenses: the constitutional protection against double jeopardy is available so long as the acts which constitute or have given rise to the first offense under a municipal ordinance are the same acts which constitute or have given rise to the offense charged under a statute.

The question may be raised why one rule should exist where two offenses under two different sections of the same statute or under different statutes are charged, and another rule for the situation where one offense is charged under a municipal ordinance and another offense under a national statute. If the second sentence of the double jeopardy provision had not been written into the Constitution, conviction or acquittal under a municipal ordinance would never constitute a bar to another prosecution for the same act under a national statute. An offense penalized by municipal ordinance is, by definition, different from an offense under a statute. The two offenses would never constitute the same offense having been promulgated by different rule-making authorities though one be subordinate to the other and the plea of double jeopardy would never lie. The discussions during the 1934-1935 Constitutional Convention show that the second sentence was inserted precisely for the purpose of extending the constitutional protection against double jeopardy to a situation which would not otherwise be covered by the first sentence. 13
The question of Identity or lack of Identity of offenses is addressed by examining the essential elements of each of the two offenses charged, as such elements are set out in the respective legislative definitions of the offenses involved. The question of Identity of the acts which are claimed to have generated liability both under a municipal ordinance and a national statute must be addressed, in the first instance, by examining the location of such acts in time and space. When the acts of the accused as set out in the two informations are so related to each other in time and space as to be reasonably regarded as having taken place on the same occasion and where those acts have been moved by one and the same, or a continuing, intent or voluntary design or negligence, such acts may be appropriately characterized as an integral whole capable of giving rise to penal liability simultaneously under different legal enactments (a municipal ordinance and a national statute). In Yap, the Court regarded the offense of reckless driving under the Iloilo City Ordinance and serious physical injuries through reckless imprudence under the Revised Motor Vehicle Law as derived from the same act or sets of acts that is, the operation of an automobile in a reckless manner. The additional technical element of serious physical injuries related to the physical consequences of the

operation of the automobile by the accused, i.e., the impact of the automobile upon the body of the offended party. Clearly, such consequence occurred in the same occasion that the accused operated the automobile (recklessly). The moral element of negligence permeated the acts of the accused throughout that occasion. In the instant case, the relevant acts took place within the same time frame: from November 1974 to February 1975. During this period, the accused Manuel Opulencia installed or permitted the installation of electrical wiring and devices in his ice plant without obtaining the necessary permit or authorization from the municipal authorities. The accused conceded that he effected or permitted such unauthorized installation for the very purpose of reducing electric power bill. This corrupt intent was thus present from the very moment that such unauthorized installation began. The immediate physical effect of the unauthorized installation was the inward flow of electric current into Opulencia's ice plant without the corresponding recording thereof in his electric meter. In other words, the "taking" of electric current was integral with the unauthorized installation of electric wiring and devices.

It is perhaps important to note that the rule limiting the constitutional protection against double jeopardy to a subsequent prosecution for the same offense is not to be understood with absolute literalness. The Identity of offenses that must be shown need not be absolute Identity: the first and second offenses may be regarded as the "same offense" where the second offense necessarily includes the first offense or is necessarily included in such first offense or where the second offense is an attempt to commit the first or a frustration thereof. 14 Thus, for the constitutional plea of double jeopardy to be available, not all the technical elements constituting the first offense need be present in the technical definition of the second offense. The law here seeks to prevent harrassment of an accused person by multiple prosecutions for offenses which though different from one another are nonetheless each constituted by a common set or overlapping sets of technical elements. As Associate Justice and later Chief Justice Ricardo Paras cautioned in People vs. del Carmen et al., 88 Phil. 51 (1951):
While the rule against double jeopardy prohibits prosecution for the same offense, it seems elementary that an accused should be shielded against being prosecuted for several offenses made out from a single act. Otherwise, an unlawful act or omission may give use to several prosecutions depending upon the ability of the prosecuting officer to imagine or concoct as many offenses as can be justified by said act or omission, by simply adding or subtracting essential elements. Under the theory of appellant, the crime of rape may be converted into a crime of coercion, by merely alleging that by force and intimidation the accused prevented the offended girl from remaining a virgin. (88 Phil. at 53; emphases supplied) By the same token, acts of a person which physically occur on the same occasion and are infused by a common intent or design or negligence and therefore form a moral unity, should not be segmented and sliced, as it were, to produce as many different acts as there are offenses under municipal ordinances or statutes that an enterprising prosecutor can find

It remains to point out that the dismissal by the Batangas City Court of the information for violation of the Batangas City Ordinance upon the ground that such offense had already prescribed, amounts to an acquittal of the accused of that offense. Under Article 89 of the Revised Penal Code, "prescription of the crime" is one of the grounds for "total extinction of criminal liability." Under the Rules of Court, an order sustaining a motion to quash based on prescription is a bar to another prosecution for the same offense. 15

It is not without reluctance that we deny the people's petition for certiorari and mandamus in this case. It is difficult to summon any empathy for a businessman who would make or enlarge his profit by stealing from the community. Manuel Opulencia is able to escape criminal punishment because an Assistant City Fiscal by inadvertence or otherwise chose to file an information for an offense which he should have known had already prescribed. We are, however, compelled by the fundamental law to hold the protection of the right against double jeopardy available even to the private respondent in this case.

The civil liability aspects of this case are another matter. Because no reservation of the right to file a separate civil action was made by the Batangas City electric light system, the civil action for recovery of civil liability arising from the offense charged was impliedly instituted with the criminal action both before the City Court of Batangas City and the Court of First Instance of Batangas. The extinction of criminal liability whether by prescription or by the bar of double jeopardy does not carry with it the extinction of civil liability arising from the offense charged. In the present case, as we noted earlier, 16 accused Manuel Opulencia freely admitted during the police investigation having stolen electric current through the installation and use of unauthorized elibctrical connections or devices. While the accused pleaded not guilty before the City Court of Batangas City, he did not deny having appropriated electric power. However, there is no evidence in the record as to the amount or value of the electric power appropriated by Manuel Opulencia, the criminal informations having been dismissed both by the City Court and by the Court of First Instance (from which dismissals the Batangas City electric light system could not have appealed 17) before trial could begin. Accordingly, the related civil action which has not been waived expressly or impliedly, should be remanded to the Court of First Instance of Batangas City for reception of evidence on the amount or value of the electric power appropriated and converted by Manuel Opulencia and rendition of judgment conformably with such evidence.
WHEREFORE, the petition for certiorari and mandamus is DENIED. Let the civil action for related civil liability be remanded to the Court of First Instance of Batangas City for further proceedings as indicated above. No pronouncement as to costs. SO ORDERED. Yap (Chairman), Narvasa, Melencio-Herrera, Gancayco and Sarmiento, JJ., concur. Cruz, J., took no part.

Republic of the Philippines SUPREME COURT Manila EN BANC

G.R. Nos. 59568-76 January 11, 1990 PETER NIERRAS, petitioner, vs. HON. AUXENCIO C. DACUYCUY and HON. ANTONIO S. LOPEZ, in their capacity as Presiding Judge, Branch IV, Court of First Instance of Leyte, Palo, Leyte, and City Fiscal of Tacloban City, Leyte, respectively, respondents. Victor C. Veloso for petitioner.

PARAS, J.: Before Us is a petition for certiorari with preliminary injunction for the annulment of the resolution dated September 17, 1981 of the respondent Judge Auxencio C. Dacuycuy in nine (9) criminal cases, entitled "People of the Philippines v. Peter Nierras" docketed as Criminal Cases Nos. 4379, 4380, 4381, 4382, 4383, 4384, 4385, 4386 and 4387, for estafa under Article 315 (2-d) of the Revised Penal Code which denied petitioner's motion to quash. Said motion to quash was filed by petitioner on the ground of double jeopardy as these offenses were already included in Criminal Cases Nos. 3790, 3791, 3792, 3793, 4085, 4122, 4123, 4124, and 4125, entitled "People of the Philippines v. Peter Nierras," for violation of the Bouncing Checks Law or Batas Pambansa Blg. 22, pending before the lower court. In both sets of criminal cases, petitioner entered a plea of not guilty upon arraignment before the lower court. However, immediately after his plea of not guilty in these estafa cases, petitioner moved in open court to be allowed to withdraw his plea of not guilty upon his filing of a motion to quash, which was denied by respondent Judge ruling as follows: The motion to quash should be and is hereby denied. Accused Peter Nierras allegedly issued the checks in favor of complainant Pilipinas Shell Petroleum Corporation in payment of oil products which the latter delivered to him simultaneously with the issuance of the checks. xxx xxx xxx . . . The crime of estafa committed by means of bouncing checks is not committed by mere issuance of a check. Under Art. 315, par. 2 (d) of the Revised Penal Code, as amended by Republic Act 4885, the following are the elements of estafa: (1) the postdating or issuance of a check in payment of an obligation contracted at the time the check was issued; (2) lack of or insufficiency of funds to cover the check; and (3) damage to the payee thereof (People v. Sabio, 86 SCRA 568). Under Batas Pambansa Bilang 22 (1979) the mere issuance of a check without sufficient funds issued in payment of a simultaneous obligation and the check was dishonored upon presentation for that estafa is committed under the Revised Penal Code. At the same

time, the drawer will also be liable under Batas Pambansa Bilang 22 for offense of issuing a check without sufficient funds (pp. 1-2, Resolution On Motion To Quash dated September 17, 1981; Annex "MM", Petition). (p. 100, Rollo) The issue now submitted for Our consideration is whether the filing of the nine (9) other informations for estafa against petitioner under the Revised Penal Code after he had earlier been charged with violation of Batas Pambansa Blg. 22 for issuing the same bouncing checks will put him in jeopardy of being convicted twice for the same offenses. In other words, can petitioner be held liable for the nine criminal cases for violation of Batas Pambansa Blg. 22, and separately also be held liable for the crime of estafa under Article 315 (2-d) of the Revised Penal Code for the issuance of the same bouncing checks? It appears that petitioner, a customer of Pilipinas Shell Petroleum Corporation, purchased oil products from it. Simultaneous with the delivery of the products, he issued nine (9) checks in payment thereof. Upon presentation to the Philippine National Bank at Naval, Leyte, said checks were dishonored for the reason that his account was already closed. Thereafter, Pilipinas Shell Petroleum Corporation repeatedly demanded of petitioner either to deposit funds for his checks or pay for the oil products he had purchased but he failed and refused to do either. Petitioner argues that he would be placed in double jeopardy as all the elements of estafa under Article 315 (2-d) of the Revised Penal Code are also present in that crime punishable under Batas Pambansa Bilang 22 namely (1) "the postdating or issuance of a check in payment of an obligation contracted at the time the check was issued; (2) lack or insufficiency of funds to cover the check and (3) damage to the payee thereof." Petitioner's contentions are devoid of merit. Petitioner is charged with two (2) distinct and separate offenses, first under Section 1 of Batas Pambansa Bilang 22 approved on April 3, 1979 which provides that: Any person who makes or draws and issues any check to apply on account or for value, knowing at the time of issue that he does not have sufficient funds in or credit with the drawee bank for the payment of such check in full upon its presentment, which check is subsequently dishonored by the drawee bank for insufficiency of funds or credit or would have been dishonored for the same reason had not the drawer, without any valid reason ordered the bank to stop payment, shall be punished by imprisonment of not less than thirty days but not more than one (1) year or by a fine of not less than but not more than double the amount of the check which fine shall in no case exceed TWO HUNDRED THOUSAND PESOS or both such fine and imprisonment at the discretion of the court. and, second, under Article 315, (2-d) of the Revised Penal Code which states as follows: Art. 315. Swindling (estafa). Any person who shall defraud another by any of the means mentioned herein below . . . xxx xxx xxx 2. By means of any of the following false pretenses or fraudulent acts, executed prior to or simultaneously with the commission of the fraud;

xxx xxx xxx (d) By postdating a check or issuing a check in payment of an obligation when the offender had no funds in the bank, or his funds deposited therein were not sufficient to cover the amount of the check. What petitioner failed to mention in his argument is the fact that deceit and damage are essential elements in Article 315 (2-d) Revised Penal Code, but are not required in Batas Pambansa Bilang 22. Under the latter law, mere issuance of a check that is dishonored gives rise to the presumption of knowledge on the part of the drawer that he issued the same without sufficient funds and hence punishable (People v. Veridiano, 132 SCRA 523) which is not so under the Penal Code. Other differences between the two also include the following: (1) a drawer of a dishonored check may be convicted under Batas Pambansa Bilang 22 even if he had issued the same for apreexisting obligation, while under Article 315 (2-d) of the Revised Penal Code such circumstance negates criminal liability; (2) specific and different penalties are imposed in each of the two offenses; (3) estafa is essentially a crime against property, while violation of Batas Pambansa Bilang 22 is principally a crime against public interest as it does injury to the entire banking system; (4) violations of Article 315 of the Revised Penal Code are mala in se, while those of Batas Pambansa Bilang 22 are mala prohibita. These differences are better understood by presenting the pertinent discussions on the passage of Batas Pambansa Bilang 22 between the author of the bill, former Solicitor General and Member of the Batasang Pambansa, the Honorable Estelito P. Mendoza, presented in the memorandum for the government as follows: MR. MENDOZA. If there is evidence demonstrating that the act committed does not only violate this proposed Act but also the Revised Penal Code, there will be further prosecution under the Revised Penal Code. That is why it is proposed in this Act that there be a single uniform penalty for all violations in this Act. However the court is given the discretion whether to impose imprisonment or fine or both or also in whatever severity the court may consider appropriate under the circumstances. xxx xxx xxx MR. VELOSO, F. The other way around, it is not so. So precisely, if I file a case for estafa against a particular person for issuance of a bouncing check, then necessarily I can also be prosecuted under this proposed bill. On the other hand, if a person is prosecuted under the proposed bill, it does not necessarily follow that he can be prosecuted for estafa. MR. MENDOZA. This is simply because that in a certain set of circumstances, the offense under this Act is the only offense committed while under a different set of circumstances, not only the offense described in this Act is committed but also estafa. So that, for example, if a check with sufficient funds is issued in payment of a pre-existing obligation and the position of the Government should turn out to be correct that there is no estafa, then the drawer of the check would only be liable under this Act but not under the Revised Penal Code. But if he issues a check in payment, or contemporaneously with incurring, of an obligation, then he will be liable not only for estafa but also for violation for this Act. There is a difference between the two cases. In that situation where the check was issued in payment of a pre-existing obligation, the issuance of the check does not cause damage to the payee and so it is but appropriate that he should not be held for estafa but only for violating this Act. But if he issued a check to induce another, to part with a valuable consideration and the check bounces,then he does inflict an injury to the payee of the check apart from violating this law. In that case, it should be but fair that he be subject to prosecution not only for estafa but also for violating this law.

MR. VELOSO, F. Yes, I agree with the Solicitor General on that point but my worry is with respect to situations where there is prosecution first to estafa. MR. MENDOZA. Well, if there is estafa . . . MR. VELOSO, F. Estafa committed by the issuance of a bouncing check, in which case it will be mandatory on the part of the prosecuting official to also file a case for violation of this offense under the proposed bill. MR. MENDOZA. Yes, that is correct. In such a situation because if the offender did not only cause injury on account of the issuance of the check but did issue a bouncing check penalized under this Act, then he will be liable for prosecution under both laws. I would admit that perhaps in such situation, the penalty may be somewhat severe. As a matter of fact, in other jurisdictions, the issuance of bouncing checks is penalized with substantially lower penalty. However, because of the situation in the Philippines, the situation being now relatively grave that practically everybody is complaining about bouncing checks, may be it is necessary at least initially, at this point in time for us to impose a rather severe penalty and even allow liability not only under this Act but also for estafa. Then perhaps, after the necessary discipline has been inculcated in our people and that the incidence of the offense has been reduced, we may then decide to amend the law and reduce the penalty. But at this time, shall we say the evil is of such magnitude that only a dramatic and expeditious effort to prosecute persons who issue bouncing checks may be necessary to curb quickly this evil. (explanations given by Solicitor General ESTELITO P. MENDOZA at the Batasan Pambansa during his sponsorship speech of BP 22 which he authored, pages 1037-1038, Record of the Batasan, Plenary Session No. 70, Dec. 4, 1978). (Emphasis supplied). (pp. 115-117,Rollo or pp. 9-11, Memorandum for respondents). Furthermore, Section 5 of Batas Pambansa Bilang 22 provides that: Prosecution under this Act shall be without prejudice to any liability for violation of any provision of the Revised Penal Code. While the filing of the two sets of Information under the provisions of Batas Pambansa Bilang 22 and under the provisions of the Revised Penal Code, as amended, on estafa, may refer to identical acts committed by petitioner, the prosecution thereof cannot be limited to one offense, because a single criminal act may give rise to a multiplicity of offenses and where there is variance or differences between the elements of an offense in one law and another law as in the case at bar there will be no double jeopardy because what the rule on double jeopardy prohibits refers to identity of elements in the two (2) offenses. Otherwise stated prosecution for the same act is not prohibited. What is forbidden is prosecution for the same offense. Hence, the mere filing of the two (2) sets of information does not itself give rise to double jeopardy (People v. Miraflores, 115 SCRA 570). In the instant petition, certiorari is not the proper remedy. We have held in Acharon v. Purisima, et al. (13 SCRA 309) that "when a motion to quash a criminal case is denied, remedy is not certiorari but to go to court without prejudice to reiterating special defenses invoked in the motion, and if after trial on the merits, an adverse decision is rendered, to appeal therefrom in the manner authorized by law," invoking the rule laid down in People v.Magdaluyo (1 SCRA 990). If the petitioner cannot appeal at this state of the proceeding, it is because there is still a necessity for the trial on the merits wherein the parties may present proofs in support of their contentions and not because the remedy of appeal is unavailing. WHEREFORE, premises considered, the petition for certiorari is hereby DISMISSED for lack of merit. SO ORDERED.

Narvasa, Melencio-Herrera, Gutierrez, Jr., Cruz, Feliciano, Gancayco, Padilla, Bidin, Sarmiento, Cortes, Grio-Aquino, Medialdea and Regalado, JJ., concur. Fernan, C.J., took no part.

Republic of the Philippines SUPREME COURT Manila EN BANC

G.R. No. 85481-82 October 18, 1990 WILLIAM TAN, JOAQUIN TAN LEH and VICENTE TAN, petitioners, vs. HERNANI T. BARRIOS, in his capacity as State Prosecutor, Department of Justice, THE CITY FISCAL OF CAGAYAN DE ORO CITY, THE HONORABLE LEONARDO N. DEMECILLO, Presiding Judge of the Regional Trial Court, Branch 24, Cagayan De Oro City, and THE PEOPLE OF THE PHILIPPINES,respondents.

GRIO-AQUINO, J.: On the basis of Proclamation No. 1081 dated September 21, 1972, then President Ferdinand E. Marcos, thru General Order No. 8 dated September 27, 1972, authorized the AFP Chief of Staff to create military tribunals "to try and decide cases of military personnel and such other cases as may be referred to them." In General Order No. 21 dated September 30, 1972, the military tribunals, "exclusive of the civil courts," were vested with jurisdiction among others, over violations of the law on firearms, and other crimes which were directly related to the quelling of rebellion and the preservation of the safety and security of the Republic. In General Order No. 12-b dated November 7, 1972, "crimes against persons . . . as defined and penalized in the Revised Penal Code" were added to the jurisdiction of military tribunals/commissions. Subsequently, General Order No. 49, dated October 11, 1974, redefined the jurisdiction of the Military Tribunals. The enumeration of offenses cognizable by such tribunals excluded crimes against persons as defined and penalized in the Revised Penal Code. However, although civil courts should have exclusive jurisdiction over such offenses not mentioned in Section 1 of G.O. No. 49, Section 2 of the same general order provided that "the President may, in the public interest, refer to a Military Tribunal a case falling under the exclusive jurisdiction of the civil courts" and vice versa. On April 17, 1975, the three petitioners, with twelve (12) others, were arrested and charged in Criminal Case No. MC-1-67 entitled, "People of the Philippines vs. Luis Tan alias Tata alias Go Bon Hoc, et al." before the Military Commission No. 1, for the crimes of:

(1) murder through the use of an unlicensed or illegally possessed firearm, penalized under Article 248 of the Revised Penal Code, in relation to Section 1, par. 6 of General Order No. 49, for the killing on August 25, 1973 of Florentino Lim of tile 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 Nos. 6 and 7 in relation to Presidential Decree No. 9. The accused were: 1. Luis Tan alias Tata alias Go Bon Hoc 2. Ang Tiat Chuan alias Chuana 3. Mariano Velez, Jr. 4. Antonio Occaciones 5. Leopoldo Nicolas 6. Enrique Labita 7. Oscar Yaun 8. Joaquin Tan Leh alias Go Bon Huat alias Taowie 9. Eusebio Tan alias Go Bon Ping 10. Vicente Tan alias Go Bon Beng alias Donge 11. Alfonso Tan alias Go Bon Tiak 12. Go E Kuan alias Kunga 13. William Tan alias Go Bon Ho 14. Marciano Benemerito alias Marcing alias Dodong 15. Manuel Beleta, and 16. John Doe (Annex A, Petition). (Names italicized are the petitioners herein.) Because the case was a "cause celebre" in Cagayan de Oro City, President Marcos, pursuant to the recommendation of Defense Secretary Juan Ponce Enrile, withdrew his earlier order (issued in response to the requests of the defendants' lawyers) to transfer the case to the civil courts. Hence, the case was retained in the military court (Annexes A to C of Supplemental/Amended Petition, pp. 72-88, Rollo). All the accused were detained without bail in the P.C. Stockade in Camp Crame. Upon arraignment on May 6, 1975, all the accused pleaded "not guilty." Manuel Beleta was discharged to be used as a state witness. He was released from detention on May 5, 1975 (p. 4, Rollo). Almost daily trials were held for more than thirteen (13) months. The testimonies of 45 prosecution witnesses and 35 defense witnesses filled up twenty-one (21) volumes of transcripts consisting of over 10,000 pages (p. 75, Rollo). On June 10, 1976, a decision entitled "Findings and Sentence," was promulgated by the Military Commission finding five (5) of the accused namely: 1. Luis Tan 2. Ang Tiat Chuan 3. Mariano Velez, Jr. 4. Antonio Occaciones, and 5. Leopoldo Nicolas guilty of MURDER. Each of them was sentenced to suffer an indeterminate prison term of from seventeen (17) years, four (4) months, and twenty-one (21) days, to twenty (20) years.

A sixth accused, Marciano Benemerito, was found guilty of both MURDER and ILLEGAL POSSESSION OF FIREARM, and was sentenced to suffer the penalty of death by electrocution (Annex B, Petition). Eight (8) of the accused, namely: 1. Oscar Yaun 2. Enrique Labita 3. Eusebio Tan 4. Alfonso Tan 5. Go E Kuan 6. William Tan (petitioner herein) 7. Joaquin Tan Leh (petitioner herein) and 8. Vicente Tan (petitioner herein) were acquitted of the charges, and released on June 11, 1976 (p. 8, Rollo). On January 17, 1981, Proclamation No. 2045 ended martial rule and abolished the military tribunals and commissions. On May 22, 1987, this Court promulgated a decision in Olaguer vs. Military Commission No. 34, et al. (150 SCRA 144), vacating the sentence rendered on December 4, 1984 by Military Commission No. 34 against Olaguer, et al. and declaring that military commissions and tribunals have no jurisdiction, even during the period of martial law, over civilians charged with criminal offenses properly cognizable by civil courts, as long as those courts are open and functioning as they did during the period of martial law. This Court declared unconstitutional the creation of the military commissions to try civilians, and annulled all their proceedings as follows: 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. ... xxx xxx xxx Moreover, military tribunals pertain to the Executive Department of the Government and are simply instrumentalities of the executive power, provided by the legislature for the President as Commander in-Chief to aid him in properly commanding the army and navy and enforcing discipline therein, and utilized under his orders or those of his authorized military representatives. Following the principle of separation of powers underlying the existing constitutional organization of the Government of the Philippines, the power and the duty of interpreting the laws (as when an individual should be considered to have violated the law) is primarily a function of the judiciary. It is not, and it cannot be the function of the Executive Department, through the military authorities. And as long as the civil courts in the land remain open and are regularly functioning, as they do so today and as they did during the period of martial law in the country, military tribunals cannot try and exercise jurisdiction over civilians for offenses committed by them and which are properly cognizable by the civil courts. To have it otherwise would be a violation of the constitutional right to due process of the civilian concerned. (Olaguer, et al. vs. Military Commission No. 34, 150 SCRA 144, 158-160.)

In October 1986, several months after the EDSA revolution, six (6) habeas corpus petitions were filed in this Court by some 217 prisoners 1 in the national penitentiary, who had been tried for common crimes and convicted by the military commissions during the nine-year span of official

martial rule (G.R. Nos. 75983, 79077, 79599-79600, 79862 and 80565 consolidated and entitled Manuel R. Cruz, et al. vs. Minister Juan Ponce Enrile, et al., 160 SCRA 700). The petitioners asked the Court to declare unconstitutional General Order No. 8 creating the military tribunals, annul the proceedings against them before these bodies, and grant them a retrial in the civil courts where their right to due process may be accorded respect.
Conformably with the ruling in Olaguer, this Court in Cruz vs. Enrile (160 SCRA 700), nullified the proceedings leading to the conviction of non-political detainees who should have been brought before the courts of justice as their offenses were totally unrelated to the insurgency sought to be controlled by martial rule. The Court (1) granted the petition for habeas corpus and ordered the release of those of some who had fully served their sentences, or had been acquitted, or had been granted amnesty; (2) dismissed the petitions of those who were military personnel; and (3) nullified the proceedings against those who were convicted and still serving the sentences meted to them by the military courts, but, without ordering their release, directed the Department of Justice to file the necessary informations against them in the proper civil courts. The dispositive part of the decision reads:
Wherefore the petition is hereby GRANTED insofar as petitioners Virgilio Alejandrino, 2 Domingo Reyes, Antonio Pumar, Teodoro Patono, Andres Parado, Daniel Campus, 3 Reynaldo C. Reyes and Rosalino de los Santos, 4 are concerned. The Director of the Bureau of Prisons is hereby ordered to effect the immediate release of the abovementioned petitioners, unless there are other legal causes that may warrant their detention.

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

On September 15, 1988, Secretary of Justice Sedfrey Ordoez issued Department Order No. 226 designating State Prosecutor Hernani Barrios "to collaborate with the City Fiscal of Cagayan de Oro City in the investigation/reinvestigation of Criminal Case No. MC-1-67 and, if the evidence warrants, to prosecute the case in the court of competent jurisdiction" (Annex C, Petition). On November 15, 1988, State Prosecutor Barrios was designated Acting City Fiscal of Cagayan de Oro City in hell of the regular fiscal who inhibited himself (p. 66, Rollo). Without conducting an investigation/reinvestigation, Fiscal Barrios filed on December 9, 1988, in the Regional Trial Court of Cagayan de Oro City two (2) informations for: 1. Illegal Possession of Firearm docketed as Crim. Case No. 88-824; and

2. Murder docketed as Crim. Case No. 88-825 against all the 15 original defendants in Criminal Case No. MC-1-67 including those who had already died 5 (Annexes D and E, Petition)
The State Prosecutor incorrectly certified in the informations that:
this case is filed in accordance with the Supreme Court Order in the case of Cruz, et al. vs. Ponce Enrile in G.R. Nos. 75983, 79077, 79599, 79600, 79862 and 80565 as all accused are detained 6except those that are already dead. (p. 7, Rollo.)

He recommended bail of P50,000 for each of the accused in the two cases (p. 8, Rollo). Later, he increased the recommended bail to P140,000 for each accused in the firearm case (Crim. Case No. 88-824). In the murder case (Crim. Case No. 88-825), he recommended that the bail be increased to P250,000 for each of the accused, except Luis Tan, Ang Tiat Chuan, and Mariano Velez, Jr., for whom he recommended no bail. Still later, on October 28, 1988, he recommended no bail for all the accused (pp. 8-9, Rollo) because of the presence of two aggravating circumstances; (1) prize or reward; and (2) use of a motor vehicle (p. 65, Rollo). Criminal Cases Nos. 88-824 and 88-825 of the RTC, Cagayan de Oro City, were assigned by raffle to the sala of RTC Judge Leonardo N. Demecillo. Before issuing warrants for the arrest of the accused, Judge Demecillo issued an order on October 26, 1988, requiring State Prosecutor Barrios to submit certified copies of "the supporting affidavits of the previous cases wherever they are now," and of the Supreme Court order "which is the basis of filing the above-entitled cases, within five (5) days from receipt" of his said order (Annex F, Petition). The State Prosecutor has not complied with that order for, as a matter of fact, there is no Supreme Court order to re-file the criminal cases against the herein petitioners and their twelve (12) coaccused in Crim. Case No. MC-1-67 of the now defunct Military Commission No. 1, because none of them, except Antonio Occaciones, were parties in the Cruz vs. Enrile habeas corpus cases (160 SCRA 700). On November 7, 1988, William Tan, Joaquin Tan Leh and Vicente Tan filed this petition for certiorari and prohibition praying that the informations in Crim. Cases Nos. 88-824 and 88-825, and the order of respondent Judge dated October 26, 1988 be annulled, and that the public respondents or any other prosecution officer "be permanently enjoined from indicting, prosecuting and trying them anew for the offenses charged therein because they had already been acquitted of the same by Military Commission No. 1 in Crim. Case No. MC-1-67" (p. 23, Rollo). On November 23, 1988, the First Division of this Court dismissed the petition for being premature as: ... the petitioners have not yet filed a motion to quash the allegedly invalid informations in Criminal Cases Nos. 88-824 and 88825

(Annexes D and E) whose annulment they seek from this Court (Sec. 3, Rule 117, 1985 Rules on Criminal Procedure). The filing in the lower court of such motion is the plain, speedy and adequate remedy of the petitioners. The existence of that remedy (which they have not yet availed of) bars their recourse to the special civil actions of certiorari and prohibition in this Court (Sec. 1, Rule 65, Rules of Court (p. 41, Rollo.) Upon the petitioners' filing a motion for reconsideration informing this Court that the lower court had issued warrants for their arrest (p. 48, Rollo), we issued a temporary restraining order on January 16, 1989 enjoining the respondents from implementing the orders of arrest and ordering them to comment on the petition (p. 50, Rollo). The petitioners allege that State Prosecutor Barrios exceeded his jurisdiction and gravely abused his discretion in reprosecuting them upon the supposed authority of Cruz vs. Enrile for the following reasons: 1. The decision in Cruz vs. Enrile does not in fact direct the filing of informations by the Secretary of Justice against THOSE who, like the petitioners, WERE ACQUITTED after court martial proceedings during the period of martial law. 2. The decision in Cruz vs. Enrile does not apply to the petitioners who were not parties in that case, who were not heard, and over whom the court did not acquire jurisdiction. 3. The reprosecution of the petitioners would violate their right to protection against double jeopardy. 4. The State is estopped from reprosecuting the petitioners after they had been acquitted by the military tribunal which the State itself had clothed with jurisdiction to try and decide the criminal cases against them. The State may not retroactively divest of jurisdiction the military tribunal that tried and acquitted them (pp. 14-15, Petition). 5. The retroactive invalidation of the jurisdiction of the military court that acquitted the petitioners would amount to an ex post facto ruling (p. 81, Rollo, Supplemental Petition). 6. The information against the petitioners in Crim. Case No. 88-825 is null and void because it was filed without a prior preliminary investigation, nor a finding of probable cause, nor the written approval of the Chief State Prosecutor (Secs. 3 and 4, Rule 112, 1985 Rules on Criminal Procedure). In his Comment dated February 1, 1985 (should be 1989), Fiscal Barrios disclosed that the information in Criminal Case No. 88-824 for illegal possession of firearm was "already withdrawn by the prosecution at a hearing on January 27, 1988" (should be 1989?) (pp. 66-68, Rollo). The reason for dropping the charge is not stated. It may be because Benemerito, the gunman who was convicted of this felony and sentenced to death by the Military Commission, is already dead-possibly executed. Hence, only the information for murder (Crim. Case No. 88-825) against the petitioners and twelve (12) others, including those already dead, is pending in the lower court (p. 37, Rollo). He defended the reprosecution of the petitioners on the ground that it will not constitute double jeopardy because the nullity of the jurisdiction of the military tribunal that acquitted them prevented the first jeopardy from attaching, thereby nullifying their acquittal. For the same reason, res judicata is not applicable. Neither prescription, because "it had been interrupted by the filing of the earlier charge sheets with the Military Commission" (p. 67, Rollo).

The Solicitor General, in his separate comment, argued that the proceedings involving civilians before a military commission were null and void because we ruled in Olaguer that military tribunals are bereft of jurisdiction over civilians, hence, their decisions, whether of conviction or acquittal, do not bar reprosecution for the same crime before a civil court (p. 102, Rollo). The petition is meritorious. The public respondents gravely abused their discretion and acted without or in excess of their jurisdiction in misconstruing the third paragraph of the dispositive portion of this Court's decision in Cruz vs. Enrile as their authority to refile in the civil court the criminal actions against petitioners who had been tried and acquitted by Military Commission No. 1 during the period of martial law. It is an unreasonable application ofCruz vs. Enrile, for the decision therein will be searched in vain for such authority to reprosecute every civilian who had ever faced a court martial, much less those who had been acquitted by such bodies more than a decade ago like the petitioners Tan, et al. herein. The decision in Cruz vs. Enrile would be an instrument of oppression and injustice unless given a limited application only to the parties/petitioners therein who sought the annulment of the court martial proceedings against themselves and prayed for a retrial in the civil courts of the criminal cases against them. They alone are affected by the judgment in Cruz vs. Enrile, not all and sundry who at one time or another had been tried and sentenced by a court martial during the period of martial law.

Res inter alios judicatae nullum aliis praejudicium faciunt. "Matters adjudged in a cause do not prejudice those who were not parties to it." (54 C.J. 719.) It is a cardinal rule of procedure that a court's judgment or order in a case shall not adversely affect persons who were not parties to the self same case (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. 7
There is, however, a perceptible lack of consistency in the application of the Olaguer doctrine to Cruz vs. Enrilewhich needs to be rectified. For, although the Court nullified the proceedings against the civilians-petitioners who were still serving their sentences after conviction by the military courts and commissions, and we directed the Secretary of Justice to file the necessary informations against them in the proper civil courts, we did not nullify the court martial proceedings against the other civilians petitioners who: (1) had finished serving their sentences; (2) had been granted amnesty; or (3) had been acquitted by the military courts. We did not order their reprosecution, retrial, and resentencing by the proper civil courts. We set them free. In effect, the Court applied one rule for those civilians who were convicted by the military courts and were still serving their sentences, and another rule for those who were acquitted, or pardoned, or had finished the service of their sentences. The Court applied a rule of retroactive invalidity to the first group (whom the Court ordered to be reprosecuted before the proper civil courts) and another of prospective invalidity for the others (whom the Court ordered to be released from custody). In the interest of justice and consistency, we hold that Olaguer should, in principle, be applied prospectively only to future cases and cases still ongoing or not yet final when that decision was promulgated. Hence, there should be no retroactive nullification of final judgments, whether of

conviction or acquittal, rendered by military courts against civilians before the promulgation of the Olaguer decision. Such final sentences should not be disturbed by the State. Only in particular cases where the convicted person or the State shows that there was serious denial of the Constitutional rights of the accused should the nullity of the sentence be declared and a retrial be ordered based on the violation of the constitutional rights of the accused, and not on the Olaguer doctrine. If a retrial, is no longer possible, the accused should be released since the judgment against him is null on account of the violation of his constitutional rights and denial of due process. It may be recalled that Olaguer was rescued from a court martial which sentenced him to death without receiving evidence in his defense. It would be a cruel distortion of the Olaguer decision to use it as authority for reprosecuting civilians regardless of whether, unlike Olaguer, they had been accorded a fair trial and regardless of whether they have already been acquitted and released, or have accepted the sentences imposed on them and commenced serving the same. Not everybody who was convicted by a military court, much less those who were acquitted and released, desires to undergo the ordeal of a second trial for the same offense, albeit in a civil court. Indeed, why should one who has accepted the justness of the verdict of a military court, who is satisfied that he had a fair hearing, and who is willing to serve his sentence in full, be dragged through the harrow of another hearing in a civil court to risk being convicted a second time perchance to serve a heavier penalty? Even if there is a chance of being acquitted the second time around, it would be small comfort for the accused if he is held without bail pending the completion of his second trial which may take as long as, if not longer than, the sentence he has been serving or already served. The trial of thousands of civilians for common crimes before military tribunals and commissions during the ten-year period of martial rule (1971-1981) which were created under general orders issued by President Marcos in the exercise of his legislative powers, is an operative fact that may not be justly ignored. The belated declaration in 1987 of the unconstitutionality and invalidity of those proceedings did not erase the reality of their consequences which occurred long before our decision in Olaguer was promulgated and which now prevent us from carrying Olaguer to the limit of its logic. Thus, did this Court rule in Municipality of Malabang vs. Benito, 27 SCRA 533, where the question arose as to whether the declaration of nullity of the creation of a municipality by executive order wiped out all the acts of the local government thus abolished: In Norton vs. Shelby Count, Mr. Justice Field said: 'An unconstitutional act is not a law; it confers no rights; it imposes no duties; it affords no protection; it creates no office; it is, in legal contemplation, as inoperative as though it had never been passed.' Accordingly, he held that bonds issued by a board of commissioners created under an invalid statute were unenforceable. Executive Order 386 'created no office.' This is not to say, however, that the acts done by the municipality of Balabagan in the exercise of its corporate powers are a nullity because the executive order is, in legal contemplation, as inoperative as though it had never been passed.' For the existence of Executive Order 386 is 'an operative fact which cannot justly be ignored.' As Chief Justice Hughes explained in Chicot County Drainage District vs. Baxter State Bank: 'The courts below have proceeded on the theory that the Act of Congress, having been found to be unconstitutional, was not a law; that it was inoperative, conferring no rights and imposing no duties, and hence affording no basis for the challenged decree. Norton vs.

Shelby County, 118 U.S. 425, 442; Chicago, I. & L. Ry. Co. vs. Hackett, 228 U.S. 559, 566.It is quite clear, however, that such broad statements as to the effect of a determination of unconstitutionality must be taken with qualifications. The actual existence of a statute, prior to such a determination, is an operative fact and may have consequences which cannot justly be ignored. The past cannot always be erased by a new judicial declaration. The effect of the subsequent ruling as to invalidity may have to be considered in various aspects-with respect to particular relations, individual and corporate, and particular conduct, private and official. Questions of rights claimed to have become vested, of status, of prior determinations deemed to have finality and acted upon accordingly, of public policy in the light of the nature both of the statute and of its previous application, demand examination. These questions are among the most difficult of those which have engaged the attention of courts, state and federal, and it is manifest from numerous decisions that an all-inclusive statement of a principle of absolute retroactive invalidity, cannot be justified. There is then no basis for the respondents' apprehension that the invalidation of the executive order creating Balabagan would have the effect of unsettling many an act done in reliance upon the validity of the creation of that municipality. (Municipality of Malabang vs. Benito, 27 SCRA 533) The doctrine of "operative facts" applies to the proceedings against the petitioners and their coaccused before Military Commission No. 1. The principle of absolute invalidity of the jurisdiction of the military courts over civilians should not be allowed to obliterate the "operative facts" that in the particular case of the petitioners, the proceedings were fair, that there were no serious violations of their constitutional right to due process, and that the jurisdiction of the military commission that heard and decided the charges against them during the period of martial law, had been affirmed by this Court (Aquino vs. Military Commission No. 2, 63 SCRA 546) years before the Olaguer case arose and came before us. Because of these established operative facts, the refiling of the information against the petitioners would place them in double jeopardy, in hard fact if not in constitutional logic. The doctrine of double jeopardy protects the accused from harassment by the strong arm of the State: The constitutional mandate is (thus) a rule of finality. A single prosecution for any offense is all the law allows. It protects an accused from harassment, enables him to treat what had transpired as a closed chapter in his life, either to exult in his freedom or to be resigned to whatever penalty is imposed, and is a bar to unnecessary litigation, in itself time-consuming and expense-producing for the state as well. It has been referred to as 'res judicata in prison grey.' The ordeal of a criminal prosecution is inflicted only once, not whenever it pleases the

state to do so. (Fernando, The Constitution of the Philippines, 2nd Ed., pp. 722-723.) Furthermore, depriving the petitioners of the protection of the judgment of acquittal rendered by the military commission in their particular case by retroactively divesting the military commission of the jurisdiction it had exercised over them would amount to an ex post facto law or ruling, again, in sharp reality if not in strict constitutional theory. An ex-post facto law or rule, is one which 1. makes criminal an act done before the passage of the law and which was innocent when done, and punishes such an act; 2. aggravates a crime, or makes it greater than it was, when committed; 3. changes the punishment and inflicts a greater punishment than the law annexed to the crime when committed; 4. alters the legal rules of evidence, and authorizes conviction upon less or different testimony than the law required at the time of the commission of the offense; 5. assuming to regulate civil rights and remedies only, in effect imposes penalty or deprivation of a right for something which when done was lawful; and, 6. deprives a person accused of a crime of some lawful protection to which he has become entitled, such as the protection of a former conviction or acquittal, or a proclamation of amnesty. (In re: Kay Villegas Kami, Inc., 35 SCRA 428, 431) Article IV, Section 22, of the 1987 Constitution prohibits the enactment of an ex post facto law or bill of attainder. We need not discuss the petitioners' final argument that the information against them is invalid because there was no preliminary investigation, no finding of probable cause by the investigating fiscal and no prior approval of the information by the City Fiscal before it was filed. WHEREFORE, the petition for certiorari and prohibition is granted. Respondent State Prosecutor and the Presiding Judge of the Regional Trial Court, Branch 24, at Cagayan de Oro City, are hereby ordered to discharge the petitioners from the information in Criminal Case No. 88-825. The temporary restraining order which we issued on January 16, 1989 is hereby made permanent. No costs. SO ORDERED. Narvasa, Melencio-Herrera, Cruz, Paras, Feliciano, Gancayco, Padilla, Bidin, Sarmiento, Cortes, Medialdea and Regalado, JJ., concur. Fernan, C.J., took no part.