The validity of a court-martial proceeding was challenged in the lower court on due process grounds to show lack of jurisdiction.  Petitioner, a sergeant in the Philippine Army and the accused in court-martial proceeding, through a writ of certiorari and prohibition, filed on April 17, 1963, with the lower court, sought to restrain respondents, the officers, constituting the court-martial, that was then in the process of trying petitioner for alleged violation of two provisions of the Articles of War, from continuing with the proceedings on the ground of its being without jurisdiction.  There was likewise a plea for a restraining order, during the pendency of his petition, but it was unsuccessful.

No response, either way, was deemed necessary by the then Presiding Judge of the lower court, now Justice Nicasio Yatco of the Court of Appeals, as petitioner had, in the meanwhile, been convicted by the court-martial.  The lower court verdict, render on September 16, 1963, was one of dismissal, as in its opinion, "this case had already become moot and academic * * *."

An appeal was taken to us, the same due process objections raised.  We think that the question before us is of such import significance that an easy avoidance through the technicality of the "moot and academic" approach hardly recommendation itself.  For reasons to be more fully set forth, we find such court-martial was not lawfully convened, and, consequently devoid of jurisdiction.  Accordingly, we reverse the lower court.

There was a stipulation of facts submitted to the lower court on July 10, 1963, to the following effect:  "That the arraignment petitioner on December 17, 1962 was for the purpose of avoiding prescription pursuant to Article of War 38 of one of the offenses with which the accused is charged since, as charged, same was allegedly committed on or about December 18, 1960; That prior to the said arraignment, no written summons or subpoena was issued addressed to the petitioner or his counsel, informing them of said arraignment; that instead of said written summons or subpoena Col. Eladio Samson, Constabulary Staff Judge Advocate called up First Sergeant Manuel Soriano at the Headquarters II Philippine Constabulary Zone, Camp Vicente Lim, Canlubang, Laguna on December 16, 1962 by telephone with instructions to send the petitioner to HPC, Camp Crame, Quezon City, under escort, for arraignment and only for arraignment; That upon arrival in HPC, the petitioner was directed to proceed to the PC Officer's Clubhouse, where a General Court-Martial composed of the respondents, created to try the case of 'People vs. Capt. Egmidio Jose, for violation of Articles of War 96 and 97', pursuant to paragraph 10, Special Order No. 14, Headquarters Philippine Constabulary, dated 18 July 1962, * * *, was to resume, as scheduled, the trial of People vs. Pfc. Numeriano Ohagan, for violation of Articles of War 64, 85, and 97'; That it was only at the time (December 17, 1962) that petitioner learned that he will be arraigned for alleged violation of Articles of War 85 and 97, after being informed by one of the respondents, Capt. Cuadrato Palma as Trial Judge Advocate why he was there; That prior to that arraignment on December 17, 1962 there was no special order published by the Headquarters Philippine Constabulary creating or directing the General Court-Martial composed of the respondents to arraign and try the case against the petitioner, there however was already an existing court trying another case; That the respondents relied on the first indorsement of the Acting Adjutant General, HPC, Camp Crame, Quezon City, dated December 14, 1962 and addressed to the Trial Judge Advocate, of the General Court-Martial * * * directing the said Trial Judge Advocate to refer the case against petitioner to the above-mentioned court, * * *; That the above paragraph 10, Special Order No. 14 dated 18 July 1962, does not contain the phrase 'and such other cases which may be referred to it', but however said orders were amended only on 8 January 1963, to include such phrase.  * * *"^[1]

It was further stipulated that petitioner's counsel did object to his arraignment asserting that a general court-martial then convened was without jurisdiction, as there was no special order designating respondents to compose a general court-martial for the purpose of trying petitioner, as petitioner was not furnished a copy of the charge sheet prior to his arraignment as required in the Manual for Court-Martial, except on the very day thereof, and as there was no written summons or subpoena served on either the petitioner, as accused, or the counsel.  Respondents, acting as the general court-martial, overruled the above objections, and the Trial Judge Advocate was then ordered to proceed to read the charges and specifications against petitioner over the vigorous objections of counsel, it was shown, likewise, in the stipulation of facts, that the case, having been postponed to February 21, 1963, petitioner's counsel had in the meanwhile complained to the Chief of Constabulary against the proceedings on the ground of its nullity, and sought to have respondents restrained from continuing with the trial of petitioner due to such lack of jurisdiction but the Chief of Constabulary ruled that he could not act on such complaint until the records of the trial were forwarded to him for review.  With such a ruling, and with the denial of two other motions by petitioner upon the court-martial being convened anew on February 21, 1963, one to invalidate his arraignment on December 17, 1962, and the other to quash the complaint based on the denial of due process and lack of jurisdiction, the present petition for certiorari and prohibition was filed with the lower court.^[2]

As above noted, the lower court dismissed the petition due to its belief that, petitioner having been convicted in the meanwhile, there being no restraining order, the matter had become moot and academic.  As was set forth earlier, we differ, the alleged lack of jurisdiction being too serious a matter to be thus summarily ignored.

The firm insistence on the part of petitioner that the general court-martial lacks jurisdiction on due process grounds, cannot escape notice.  The basic objection was the absence of a special order "designating respondents to compose a general court-martial to convene and try the case of petitioner; * * *".  It was expressly stipulated that the respondents were convened to try the case of a certain Capt. Egmidio Jose and not that filed against petitioner.  As a matter of fact, the opening paragraph of the stipulation of facts made clear that he was arraigned on December 17, 1962 by respondents as a general court-martial appointed precisely to try the above Capt. Jose solely "for the purpose of avoiding prescription pursuant to Article of War 38 of one of the offenses with which the accused is charged * * *".

Is such a departure from what the law and regulations^[3] prescribe offensive to the due process clause?  If it were, then petitioner should be sustained in his plea for a writ of certiorari and prohibition, as clearly the denial of the constitutional right would oust respondents of jurisdiction, even on the assumption that they were vested with it originally.  Our decisions to that effect are impressive for their unanimity.

In Harden v. The Director of Prisons,^[4] Justice Tuason, speaking for the Court, explicitly announced that "deprivation of any fundamental or constitutional rights" justify a proceeding for habeas corpus on the ground of lack of jurisdiction.  Abriol v. Homeres^[5] is even more categorical.  In that case, the action of a lower court, denying the accused the opportunity to present proof for his defense, his motion for dismissal failing, was held by this Court as a deprivation of his right to due process.  As was made clear by the opinion of Justice Ozaeta:  "No court of justice under our system of government has the power to deprive him of that right.  If the accused does not waive his right to be heard but on the contrary as in the instant case invokes the right, and the court denies it to him, that court no longer has jurisdiction to proceed; it has no power to sentence the accused without hearing him in his defense; and the sentence thus pronounced is void and may be collaterally attacked in a habeas corpus proceeding."^[6]

A recent decision rendered barely a month ago, in Chavez v. Court of Appeals,^[7] is even more in point.  Here, again, habeas corpus was relied upon by petitioner whose constitutional rights were not respected, but, in addition, the special civil actions of certiorari and mandamus were likewise availed of, in view of such consequent lack of jurisdiction.  The stress though in the opinion of Justice Sanchez, was on habeas corpus.  Thus:  "The course which petitioner takes is correct.  Habeas corpus is a high prerogative writ.  It is traditionally considered as an exceptional remedy to release a person whose liberty is illegally restrained such as when the accused's constitutional rights are disregarded.  Such defect results in the absence or loss of jurisdiction and therefore invali­dates the trial and the consequent conviction of the accused whose fundamental right was violated.  That void judgment of conviction may be challenged by collateral attack, which precisely is the function of habeas corpus.  This writ may issue even if another remedy which is less effective may be availed of by the defendant."

The due process concept rightfully referred to as "a vital and living force in our jurisprudence" calls for respect and deference, otherwise the governmental action taken suffers from a fatal infirmity.  As was so aptly expressed by the then Justice, now Chief Justice, Concepcion:  "* * * acts of Congress, as well as those of the Executive, can deny due process only under pain of nullity, and judicial proceedings suffering from the same flaw are subject to the same sanction, any statutory provision to the contrary notwithstanding.^[8]

The crucial question, then, is whether such failure to comply with the dictates of the applicable law insofar as convening a valid court martial is concerned, amounts to a denial of due process.  We hold that it does.  There is such a denial not only under the broad standard which delimits the scope and reach of the due process requirement, but also under one of the specific elements of procedural due process.

It is to be admitted that there is no controlling and precise definition of due process which, at the most furnishes a standard to which governmental action should conform in order to impress with the stamp of validity any deprivation of life, liberty or property.  A recent decision of this Court, in Ermita-Malate Hotel v. Mayor of Manila,^[9] treated the matter thus:  "It is responsiveness to the supremacy of reason, obedience to the dictates of justice.  Negative­ly put, arbitrariness is ruled out and unfairness avoided.  To satisfy the due process requirement, official action, to paraphrase Cardoso, must not outrun the bounds of reason and result in sheer oppression.  Due process is thus hostile to any official action marred by lack of reasonableness.  Correctly has it been identified as freedom from arbitrariness.  It is the embodiment of the sporting idea of fair play.  It exacts fealty 'to those strivings for justice and judges the act of officialdom of whatever branch 'in the light of reason drawn from considerations of fairness that reflect [democratic] traditions of legal and political thought.'"

Nor is such a reliance on the broad reach of due process the sole ground on which the lack of jurisdiction of the court-martial convened in this case could be predicated.  Recently, stress was laid anew by us on the first requirement of procedural due process, namely, the existence of the court or tribunal clothed with judicial, or quasi-judicial, power to hear and determine the matter before it.^[10] This is a requirement that goes back to Banco Español-Filipino v. Palanca; a decision rendered half a century ago.^[11]

There is the express admission in the statement of facts that respondents, as a court-martial, were not convened to try petitioner but someone else, the action taken against petitioner being induced solely by a desire to avoid the effects of prescription; it would follow then that the absence of a competent court or tribunal is most marked and undeniable.  Such a denial of due process is therefore fatal to its assumed authority to try petitioner.  The writ of certiorari and prohibition should have been granted and the lower court, to repeat, ought not to have dismissed his petition summarily.

The significance of such an insistence on a faithful compliance with the regular procedure of convening court-martials in accordance with law cannot be over-emphasized.  As was pointed out by Justice Tuason in Ruffy v. The Chief of Staff, Philippine Army:^[12] "Courts-martial are agencies of executive character, and one of the authorities 'for the ordering of courts-martial has been held, to be attached to the constitutional functions of the President as Commander in Chief, in­dependently of legislation.' (Winthrop's Military Law and Precedents, 2d Edition, p. 49.) Unlike courts of law, they are not a portion of the judiciary." Further on, his opinion continues:  "'Not belonging to the judicial branch of the government, it follows that courts-martial must pertain to the executive department; and they are in fact simply instrumentalities of the executive power, provided by Congress 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.'"^[13]

It is even more indispensable, therefore, that such quasi-judicial agencies, clothed with the solemn responsibility of depriving members of the Armed Forces of their liberties, even of their lives, as a matter of fact, should be held all the more strictly bound to manifest fidelity to the fundamental concept of fairness and the avoidance of arbitrariness for which due process stands as a living vital principle.  If it were otherwise, then, abuses, even if not intended, might creep in, and the safeguards so carefully thrown about the freedom of an individual, ignored or disregarded.  Against such an eventuality, the vigilance of the judiciary furnishes a shield.  That is one of its grave responsibilities.  Such a trust must be lived up to; such a task cannot be left undone.

WHEREFORE, the order of respondent Court of September 16, 1963, dismissing the petition for certiorari and prohibition, is reversed, and the writ of certiorari and prohibition granted, annul­ling the proceedings as well as the decision rendered by respondents as a court-martial and perpetually restraining them from taking any further action on the matter.  Without pronouncement as to costs.

Concepcion, C.J., Reyes, J.B.L., Makalintal, Sanchez, Angeles, and Capistrano, JJ., concur.
Castro, J., concurs in a separate opinion.
Dizon and Zaldivar, JJ., on official leave.

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^[1] Stipulation of Facts, paragraphs 1 to 7.

^[2] Ibid, paragraphs 8 to 13.

^[3] Cf. Arts. 8 and 12, Com. Act No. 408 (1938)

^[4] 81 Phil. 741 (1948).

^[5] 84 Phil. 525 (1949).

^[6] Ibid, p. 534.

^[7] L-29169, August 19, 1968.

^[8] Cuaycong v. Sengbengco, L-11837, November 29, 1960.

^[9] L-24693, July 31, 1967.

^[10] Macabingkil v. Yatco, L-23174, September 18, 1967.

^[11] 37 Phil. 921 (1918).  Cf. Roxas v. Papa, L-13459, April 29, 1960.

^[12] 75 Phil. 875, 884 (1946).

^[13] Ibid, p. 884.

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