Filed with this Court are two Petitions wherein the fundamental question is whether or not a military tribunal has the jurisdiction to try civilians while the civil courts are open and functioning.  The two Petitions have been consolidated inasmuch as the issues raised therein are interrelated.

On December 24, 1979, the herein petitioners Eduardo B. Olaguer, Othoniel V. Jimenez, Ester Misa-Jimenez, Carlos Lazaro, Reynaldo Maclang, Magdalena De Los Santos-Maclang, Teodorico N. Diesmos, Rene J. Marciano, Danilo R. De Ocampo and Victoriano C. Amado were arrested by the military authorities.  They were all initially detained at Camp Crame in Quezon City.  They were subsequently transferred to the detention center at Camp Bagong Diwa in Bicutan except for petitioner Olaguer who remained in detention at Camp Crame.  Petitioner Mac Aceron voluntarily surrendered to the authorities sometime in June, 1980 and was, thereafter, also incarcerated at Camp Bagong Diwa.  All of the petitioners are civilians.

On May 30, 1980, the petitioners were charged for subversion^[1] upon the recommendation of the respondent Judge Advocate General and the approval of the respondent Minister of National Defense.^[2] The case was designated as Criminal Case No. MC-34-1.

On June 13, 1980, the respondent Chief of Staff of the Armed Forces of the Philippines^[3] created the respondent Military Commission No. 34 to try the criminal case filed against the petitioners.^[4] On July 30, 1980, an amended charge sheet was filed for seven (7) offenses, namely:  (1) unlawful possession of explosives and incendiary devices; (2) conspiracy to assassinate President and Mrs. Marcos; (3) conspiracy to assassinate cabinet members Juan Ponce Enrile, Francisco Tatad and Vicente Paterno; (4) conspiracy to assassinate Messrs. Arturo Tangco, Jose Roño and Onofre Corpus; (5) arson of nine buildings; (6) attempted murder of Messrs. Leonardo Perez, Teodoro Valencia and Generals Romeo Espino and Fabian Ver; and (7) conspiracy and proposal to commit rebellion, and inciting to rebellion.^[5] Some­time thereafter, trial ensued.

In the course of the proceedings, particularly on August 19, 1980, the petitioners went to this Court and filed the instant Petition for prohibition and habeas corpus.^[6] They sought to enjoin the respondent Military Commission No. 34 from proceeding with the trial of their case.  They likewise sought their release from detention by way of a writ of habeas corpus.  The thrust of their arguments is that military commissions have no jurisdic­tion to try civilians for offenses alleged to have been committed during the period of martial law.  They also maintain that the proceedings before the respondent Military Commission No. 34 are in gross violation of their constitutional right to due process of law.

On September 23, 1980, the respondents filed their Answer to the Petition.^[7] On November 20, 1980, the petitioners submitted their Reply to the Answer.^[8] In a Motion filed with this Court on July 25, 1981, petitioner Olaguer requested that the Petition be considered withdrawn as far as he is concerned.^[9] In the Resolution of this Court dated July 30, 1981, the said prayer was granted.^[10] On August 31, 1984, the respondents filed a Rejoinder to the Reply submitted by the petitioners.^[11]

On December 4, 1984, pending the resolution of the Petition, the respondent Military Commission No. 34 passed sentence convicting the petitioners and imposed upon them the penalty of death by electrocution.  Thus, on February 14, 1985, petitioners Olaguer, Maclang and Othoniel and Ester Jimenez went to this Court and filed the other instant Petition, this time for habeas corpus, certiorari, prohibition and mandamus.  They also sought the issuance of a writ of preliminary injunction.^[12] The respondents named in the Petition are the Chief of Staff of the Armed Forces of the Philippines, Military Commission No. 34, the Judge Advocate General, the Minister of National Defense and the Director of the Bureau of Prisons.

In sum, the second Petition seeks to enjoin the said respondents from taking any further action on the case against the petitioners, and from implementing the judgment of conviction rendered by the respondent Military Commis­sion No. 34 for the reason that the same is null and void.  The petitioners also seek the return of all property taken from them by the respondents concerned.  Their other arguments in the earlier Petition are stressed anew.

On August 9, 1985, the respondents filed their Answer to the Petition.^[13] On September 12, 1985, this Court issued a temporary restraining order enjoining the respondents from executing the Decision of the respondent Military Commission No. 34.^[14] On February 18, 1986 the petitioners submitted an extensive Brief.^[15] Thereafter, and in due time, the cases were submitted for decision.

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

(1)  On January 17, 1981, President Ferdinand E. Marcos issued Proclamation No. 2045 officially lifting martial law in the Philippines.  The same Proclamation revoked General Order No. 8 (creating military tribunals) and directed that "the military tribunals created pursuant thereto are hereby dissolved upon final determination of cases pending therein which may not be transferred to the civil courts without irreparable pre­judice to the state in view of the rules on double jeopardy, or other circumstances which render prosecution of the cases difficult, if not impossible." ; and

(2)  Petitioner Ester Misa-Jimenez was granted provisional liberty in January, 1981.  On the other hand, petitioners Eduardo Olaguer and Othoniel Jimenez obtained provisional liberty on January 23, 1986.^[16] The rest of the petitioners have been released sometime before or after President Corazon C. Aquino assumed office in February, 1986.

The sole issue in habeas corpus proceedings is deten­tion.^[17] When the release of the persons in whose behalf the application for a writ of habeas corpus was filed is effected, the Petition for the issuance of the writ becomes moot and academic.^[18] Inasmuch as the herein petitioners hav been released from their confinement in military detention centers, the instant Petitions for the issuance of a writ of habeas corpus should be dismissed for having become moot and academic.

We come now to the other matters raised in the two Petitions.  The main issue raised by the petitioners is whether or not military commissions or tribunals have the jurisdiction to try civilians for offenses allegedly committed during martial law when civil courts are open and functioning.

The petitioners maintain that military commissions or tribunals do not have such jurisdiction and that the proceedings before the respondent Military Commission No. 34 are in gross violation of their constitutional right to due process of law.  The respondents, however, contend otherwise.

The issue on the jurisdiction of military commissions or tribunals to try civilians for offenses allegedly committed before, and more particularly during a period of martial law, as well as the other issues raised by the petitioners, have been ruled upon by a divided Supreme Court in Aquino, Jr. v. Military Commission No. 2.^[19] The pertinent portions of the main opinion of the Court are as follows -?

"We hold that the respondent Military Commission No. 2 has been lawfully consti­tuted and validly vested with jurisdiction to hear the cases against civilians, includ­ing the petitioner.

"1.  The Court has previously declared that the proclamation of Martial Law xxx on September 21, 1972, xxx is valid and constitutional and that its continuance is justified by the danger posed to the public safety.^[20]

"2.  To preserve the safety of the nation in times of national peril, the President of the Philippines necessarily possesses broad authority compatible with the imperative requirements of the emergency.  On the basis of this, he has authorized in General Order No. 8 xxx the Chief of Staff, Armed Forces of the Philippines, to create military tribunals to try and decide cases 'of military personnel and such other cases as may be referred to them.' In General Order No. 12 xxx, the military tribunals were vested with jurisdiction 'exclusive of the civil courts', among others, over crimes against public order, violations of the Anti-Subversion Act, violations of the laws on firearms, and other crimes which, in the face of the emergency, are directly related to the quelling of the rebellion and preserva­tion of the safety and security of the Republic.  xxx.  These measures he had the authority to promulgate, since this Court recognized that the incumbent President (President Marcos), under paragraphs 1 and 2 of Section 3 of Article XVII of the new (1973) Consti­tution, had the authority to 'promulgate proclamations, orders and decrees during the period of martial law essential to the security and preservation of the Republic, to the defense of the political and social liberties of the people and to the institution of reforms to prevent the resurgence of the rebellion or insurrection or secession or the threat thereof xxx'.^[21] xxx.

"3.  Petitioner nevertheless insists that he being a civilian, his trial by military commission deprives him of his right to due process, since in his view the due process guaranteed by the Constitution to persons accused of 'ordinary' crimes means judicial process.  This argument ignores the reality of the rebellion and the exis­tence of martial law.  It is, of course, essential that in a martial law situation, the martial law administra­tor must have ample and sufficient means to quell the rebellion and restore civil order.  Prompt and effective trial and punishment of offenders have been considered as necessary in a state of martial law, as a mere power of detention may be wholly inadequate for the exi­gency.^[22] 'xxx martial law xxx creates an exception to the general rule of exclusive subjection to the civil jurisdiction, and renders offenses against the laws of war, as well as those of a civil character, triable, xxx by military tribunals.'^[23] 'Public danger warrants the substitution of executive process for judicial process.'^[24] xxx.  'The immunity of civilians from military jurisdiction must, however, give way in areas governed by martial law.  When it is absolutely imperative for public safety, legal processes can be super­seded and military tribunals authorized to exercise the jurisdiction normally vested in courts.'^[25] xxx."

"xxx.

"5.  xxx.  The guarantee of due process is not a guarantee of any parti­cular form of tribunal in criminal cases.  A military tribunal of competent juris­diction, accusation in due form, notice and opportunity to defend and trial before an impartial tribunal, adequately meet the due process requirement.  Due process of law does not necessarily mean a judicial proceeding in the regular courts.^[26] xxx."

This ruling has been affirmed, although not unani­mously, in at least six other cases, to wit:  Gumaua v. Espino,^[27] Buscayno v. Enrile,^[28] Sison v. Enrile,^[29] Luneta v. Special Military Commission No. 1,^[30] Ocampo v. Military Commission No. 25,^[31] and Buscaynov. Military Commission Nos. 1, 2, 6 and 25.^[32]

These rulings notwithstanding, the petitioners anchor their argument on their prayer that the ruling in Aquino, Jr. be appraised anew and abandoned or modified accordingly.  After a thorough deliberation on the matter, We find cogent basis for re-examining the same.

Some recent pronouncements of this Court could be considered as attempts to either abandon or modify the ruling in Aquino, Jr.

In De Guzman v. Hon. Leopando, et al.,^[33] an officer of the Armed Forces of the Philippines and several other persons were charged with Serious Illegal Detention before the Court of First Instance of Maguindanao sometime in October, 1982.  The military officer sought to effect the transfer of the case against him to the General Court Martial for trial pursuant to the provisions of Presidential Decree No. 1850.  The trial court disallowed such transfer for the reason that the said Decree is unconstitutional inasmuch as it violates the due process and equal protection clauses of the Constitution, as well as the constitutional provisions on social justice, the speedy disposition of cases, the republican form of government, the integrity and independence of the judiciary, and the supremacy of civilian authority over the military.

When the matter was elevated to this Court by way of a Petition for certiorari, prohibition and mandamus, the Court decided that a ruling on the constitutional issues raised was not necessary.  With the view that practical and procedural difficulties will result from the transfer sought, this Court resolved to dismiss the Petition for lack of merit.

In Animas v. The Minister of National Defense,^[34] a military officer and several civilians were charged with murder alleged to have been committed sometime in November, 1971.  All of the said accused were recommended for prosecution before a military tribunal.  In the course of the proceedings, the said accused went to this Court on a Petition for certiorari and challenged the jurisdiction of the military tribunal over their case.  The petitioners contended that General Order No. 59 upon which the juris­diction of the military tribunal is anchored refers only to the crime of illegal possession of firearms and explosives in relation to other crimes committed with a political complexion.  They stressed that the alleged murder was devoid of any political complexion.

This Court, speaking through Mr. Justice Hugo E. Gutierrez, Jr., ordered the transfer of the criminal proceedings to the civil courts after noting that with martial law having been lifted in the country in 1981, all cases pending before the military tribunals should, as a general rule, be transferred to the civil courts.  The Court was also of the view that the crime alleged to have been committed did not have any political complexion.  We quote the pertinent portions of the Decision of the Court, to wit --

"Inspite or because of the ambiguous nature of xxx civilian takeover of jurisdiction was con­cerned and notwithstanding the shilly-shallying and vacillation charac­teristic of its implementation, this Court relied on the enunciated policy of normalization in upholding the primacy of civil courts.  This policy meant that as many cases as possible involving civilians being tried by military tribunals as could be transferred to civil courts should be turned over immediately.  In case of doubt, the presumption was in favor of civil courts always trying civilian accused.

"xxx.

"The crime for which the petitioners were charged was committed xxx long before the proclamation of martial law.  xxx.  Now that it is already late 1986, and martial law is a thing of the past, hopefully never more to return, there is no more reason why a murder committed in 1971 should still be retained, at this time, by a military tribunal.  xxx."

We agree with the dissenting views of then Justice, now Chief Justice Claudio Teehankee^[35] and Madame Justice Cecilia Muñoz-Palma^[36] in Aquino, Jr. in so far as they hold that military commissions or tribunals have no jurisdiction to try civilians for alleged offenses when the civil courts are open and functioning.

Due process of law demands that in all criminal prosecutions (where the accused stands to lose either his life or his liberty), the accused shall be entitled to, among others, a trial.^[37] The trial contemplated by the due process clause of the Constitution, in relation to the Charter as a whole, is a trial by judicial process, not by executive or military process.  Military commissions or tribunals, by whatever name they are called, are not courts within the Philippine judicial system.  As explained by Justice Teehankee in his separate dissenting opinion --

"xxx Civilians like (the) petitioner placed on trial for civil offenses under general law are enti­tled to trial by judicial process, not by executive or military process.

"Judicial power is vested by the Constitution exclusively in the Supreme Court and in such inferior courts as are duly established by law.  Judicial power exists only in the courts, which have 'exclusive power to hear and determine those matters which affect the life or liberty or property of a citizen.'^[38]

"Since we are not enemy-occupied territory nor are we under a military government and even on the premise that martial law continues in force, the military tribunals cannot try and exercise jurisdiction over civilians for civil offenses committed by them which are properly cognizable by the civil courts that have remained open and have been regularly functioning.^[39] xxx.

"And in Toth v. Quarles,^[40] the U.S. Supreme Court further stressed that 'the assertion of military authority over civilians cannot rest on the President's power as Commander-­in-Chief or on any theory of martial law.'

"xxx.

"The U.S. Supreme Court aptly pointed out xxx, in ruling that dis­charged army veterans (estimated to number more than 22.5 million) could not be rendered 'helpless before some latter-day revival of old military charges' and subjected to military trials for offenses committed while they were in the military service prior to their discharge, that 'the presiding officer at a court martial is not a judge whose objectivity and independence are protected by tenure and undiminished salary and nurtured by the judicial tradition, but is a military law officer.  Substantially different rules of evidence and pro­cedure apply in military trials.  Apart from these differences, the suggestion of the possibility of influence on the actions of the court-martial by the officer who convenes it, selects its members and the counsel on both sides, and who usually has direct command authority over its members is a pervasive one in military law, despite strenuous efforts to eliminate the danger.'

"The late Justice Black xxx added that '(A) Court-Martial is not yet an independent instrument of justice but remains to a significant degree a specialized part of the over-all mechanism by which military discipline is preserved,' and that exservicemen should be given 'the benefits of a civilian court trial when they are actually civilians xxx.  Free countries of the world have tried to restrict military tribunals to the narrowest jurisdiction deemed absolutely essential to maintaining discipline among troops in active service.' "

Moreover, military tribunals pertain to the Executive Department of the Government and are simply instrumental­ities of the executive power, provided by the legislature for the President as Commander-in-Chief to aid him in properly commanding the army and navy and enforcing dis­cipline therein, and utilized under his orders or those of his authorized military representatives.^[41] Following the principle of separation of powers underlying the existing constitutional organization of the Government of the Philippines, the power and the duty of interpreting the laws (as when an individual should be considered to have violated the law) is primarily a function of the judiciary.^[42] It is not, and it cannot be the function of the Executive Department, through the military authorities.  And as long as the civil courts in the land remain open and are regularly functioning, as they do so today and as they did during the period of martial law in the country, military tribunals cannot try and exercise jurisdiction over civilians for offenses committed by them and which are properly cognizable by the civil courts.^[43] To have it otherwise would be a violation of the constitutional right to due process of the civilian concerned.

In addition to this pronouncement, We take note of the observation made by the Solicitor General to the effect that the death penalty imposed upon the petitioners by the respondent Military Commission No. 34 appears to have been rendered too hastily to the prejudice of the peti­tioners, and in complete disregard of their constitutional right to adduce evidence on their behalf.  We quote the pertinent portions of the Manifestation submitted by the Solicitor General, to wit -

"Prior to the session of December 4, 1984, when the respondent Commission rendered its sentence, petitioners have requested the prosecution to provide them with copies of the complete record of trial, including the evidences pres­ented against them, but the prosecution dillydallied and failed to provide them with the documents requested.  According to petitioners, they needed the documents to adequately prepare for their defense.

"But a few days before December 4, 1984 the prosecution suddenly furnished them with certain transcripts of the proceedings which were not complete.  Petitioner Othoniel Jimenez was scheduled to start with the presentation of his evidence on said date and he requested that his first witness be served with subpoena.  The other petitioners, as agreed upon, were to present their evidence after the first one, Othoniel Jimenez, has finished presenting his evidence.  But on that fateful day, December 4, 1984, the witness requested to be served with subpoena was not around, because as shown by the records, he was not even served with the requested subpoena.  But in spite of that, respondent Military Commission proceeded to ask each one of the petitioners if they are ready to present their evidence.  Despite their explanation that Othoniel Jimenez cannot proceed because the prosecution, which performs the duties and functions of clerk of court, failed to subpoena his witness, and that the other petitioners were not ready because it was not yet their turn to do so, the Commission abruptly decided that petitioners are deemed to have waived the presentation of evidence in their behalf, and considered the case submitted for resolution.

"After a recess of only twenty-five (25) minutes, the session was resumed and the Commission rendered its sentence finding petitioners guilty of all the charges against them and imposing upon them the penalty of death by electrocu­tion."^[44]

Thus, even assuming arguendo that the respondent Military Commission No. 34 does have the jurisdiction to try the petitioners, the Commission should be deemed ousted of its jurisdiction when, as observed by the Solicitor General, the said tribunal acted in disregard of the constitutional rights of the accused.  Indeed, it is well­-settled that once a deprivation of a constitutional right is shown to exist, the tribunal that rendered the judg­ment in question is deemed ousted of jurisdiction.^[45]

Moreover, We find that Proclamation No. 2045 (dated January 17, 1981) officially lifting martial law in the Philippines and abolishing all military tribunals created pursuant to the national emergency effectively divests the respondent Military Commission No. 34 (and all military tribunals for that matter) of its supposed authority to try civilians, including the herein petitioners.

The main opinion in Aquino, Jr. is premised on the theory that military tribunals have the jurisdiction to try civilians as long as the period of national emergency (brought about by public disorder and similar causes) lasts.  Undoubtedly, Proclamation No. 2045 is an acknowledgment on the part of the Executive Department of the Government that the national emergency no longer exists.  Thereafter, following the theory relied upon in the main opinion, all military tribunals should henceforth be considered functus officio in their relationship with civilians.

By virtue of the proclamation itself, all cases against civilians pending therein should eventually be transferred to the civil courts for proper disposition.  The principle of double jeopardy would not be an obstacle to such transfer because an indispensable element of double jeopardy is that the first tribunal which tried the case must be of competent jurisdiction.^[46] As dis­cussed earlier, the military tribunals are devoid of the required jurisdiction.

We take this opportunity to reiterate that as long as the civil courts in the land are open and functioning, military tribunals cannot try and exercise jurisdiction over civilians for offenses committed by them.  Whether or not martial law has been proclaimed throughout the country or over a part thereof is of no moment.  The imprimatur for this observation is found in Section 18, Article VII of the 1987 Constitution, to wit -?

"A state of martial law does not suspend the operation of the Constitution, nor supplant the functioning of the civil courts or legislative assemblies, nor authorize the conferment of jurisdiction on military courts and agencies over civilians where civil courts are able to function, nor automatically suspend the privilege of the writ." (Emphasis supplied.)

This provision in the fundamental law is just one of the many steps taken by the Filipino people towards the restoration of the vital role of the judiciary in a free country -- that of the guardian of the Constitution and the dispenser of justice without fear or favor.

No longer should military tribunals or commissions exercise jurisdiction over civilians for offenses allegedly committed by them when the civil courts are open and functioning.  No longer may the exclusive judicial power of the civil courts, beginning with the Supreme Court down to the lower courts^[47] be appropriated by any military body or tribunal, or even diluted under the guise of a state of martial law, national security and other similar labels.

At this juncture, We find it appropriate to quote a few paragraphs from the ponencia of Mr. Justice Gutierrez in Animas v. The Minister of National Defense,^[48] viz --

"The jurisdiction given to military tribunals over common crimes and civilian(s) accused at a time when all civil courts were fully operational and freely functioning constitutes one of the saddest chapters in the history of the Philippine judiciary.

"The downgrading of judicial prestige caused by the glorification of military tribunals, the instability and insecurity felt by many members of the judiciary due to various causes both real and imagined, and the many judicial problems spawned by extended authoritarian rule which effectively eroded judicial independence and self-respect will require plenty of time and determined efforts to cure.

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

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

"I only wish to add that the great significance of our judgment in this case is that we reestablish and reinstate the fundamental principle based on civilian supremacy over the military as urged in vain in my dissent in the case of Benigno S. Aquino, Jr. vs. Military Commission No. 2, et al. that 'Civilians placed on trial for offenses under general law are entitled to trial by judicial process, not by executive or military process.  Judicial power is vested by the Constitution exclusively in the Supreme Court and in such inferior courts as are duly established by law.  Military commissions, or tribunals, are not courts and do not form part of the judicial system.  Since we are not enemy-occupied territory nor are we under a military government and even on the premise that martial law continues in force, the military tribunals cannot try and exercise jurisdiction over civilians for civil offenses committed by them which are properly cognizable by the civil courts that have remained open and have been regularly functioning.'

"xxx.

"The terrible consequences of subjecting civilians to trial by military process is best exemplified in the sham military trial of the mar­tyred former Senator Benigno S. Aquino, Jr., whereby he was deprived (1) by the summary ex parte investigation by the chief prosecution staff of the JAGO, of his right to be informed of the charges against him and of his right to counsel as expressly recognized by Section 20 of the Bill of Rights of the 1973 Constitution; (2) of his vested statutory right to a preliminary investigation of the subversion charges against him before the proper court of first instance as required under Section 5 of the Anti-Subversion Act, R.A. 1700 and of the other charges against him before the proper civilian officials and to confront and cross-examine the witnes­ses against him under R.A. 5180; (3) of the right to be tried by judicial process, by the regular independent courts of justice, with all the specific constitution­al, statutory and procedural safeguards embodied in the judicial process and presided over not by military officers; and (4) of the right to appeal to the regular appellate courts and to judicial review by this Court in the event of conviction and imposition of a sentence of death or life imprisonment which the charges carry and wherein a qualified majority of ten (10) votes for affirmance of the death penalty is required.  In fine, he was denied due process of law as guaranteed under the Bill of Rights which further ordains that 'No person shall be held to answer for a criminal offense without due process of law.' Worse, his trial by a military tribunal created by the then President and composed of the said President's own military subordinates without tenure and of non?lawyers (except the law member) and of whose decision the President is the final reviewing authority as Commander-in-Chief of the Armed Forces deprived him of a basic constitutional right to be heard by a fair and impartial tribunal, consider­ing that the said President had publicly declared the evidence against petitioner 'not only strong (but) overwhelming' and thereby prejudged and predetermined his guilt, and none of his military subordinates could be expected to go against their Com­mander-in-Chief's declaration.

"Hopefully, all these aberrations now belong to the dead and nightmarish past, when time-tested doctrines, to borrow a phrase from the then Chief Justice, 'shrivelled in the effulgence of the overpowering rays of martial rule.' "^[49]

As stated earlier, We have been asked to re-examine a previous ruling of the Court with a view towards aban­doning or modifying the same.  We do so now but not without careful reflection and deliberation on Our part.  Certainly, the rule of stare decisis is entitled to respect because stability in jurisprudence is desirable.  Nonetheless, reverence for precedent, simply as precedent, cannot prevail when constitutionalism and the public interest demand otherwise.  Thus, a doctrine which should be abandoned or modified should be abandoned or modified accordingly.  After all, more important than anything else is that this Court should be right.^[50]

Accordingly, it is Our considered opinion, and We so hold, that a military commission or tribunal cannot try and exercise jurisdiction, even during the period of martial law, over civilians for offenses allegedly committed by them as long as the civil courts are open and functioning, and that any judgment rendered by such body relating to a civilian is null and void for lack of jurisdiction on the part of the military tribunal con­cerned.^[51] For the same reasons, Our pronouncement in Aquino, Jr. v. Military Commission No. 2^[52] and all decided cases affirming the same, in so far as they are inconsistent with this pronouncement, should be deemed abandoned.

WHEREFORE, in view of the foregoing, the Petitions for habeas corpus are DISMISSED for having become moot and academic.  The Petitions for certiorari and prohibition are hereby GRANTED.  The creation of the respondent Military Commission No. 34 to try civilians like the petitioners is hereby declared unconstitutional and all its proceedings are deemed null and void.  The temporary restraining order issued against the respondents enjoining them from executing the Decision of the respondent Military Commission No. 34 is hereby made permanent and the said respondents are permanently prohibited from further pursuing Criminal Case No. MC-34-1 against the petitioners.  The sentence rendered by the respondent Military Commission No. 34 imposing the death penalty on the petitioners is hereby vacated for being null and void, and all the items or properties taken from the petitioners in relation to the said criminal case should be returned to them immediately.  No pronouncement as to costs.

SO ORDERED.

Yap, Fernan, Narvasa, Melencio-Herrera, Gutierrez, Jr., Cruz, Paras, Feliciano, Bidin, Sarmiento, and Cortes, JJ., concur.
Teehankee, C.J., separate concurring opinion.
Padilla, J., no part; counsel for petitioner, O. Jimenez is my brother.

---

^[1] For violation of Presidential Decree No. 885 (The Revised Anti-Subversion Law), as amended by Batas Pambansa Blg. 31.

^[2] At that time, the Judge Advocate General was General Hamilton Dimaya while the Minister of National Defense was Juan Ponce Enrile.

^[3] At the time Military Commission No. 34 was created, General Romeo Espino was the Chief of Staff of the Armed Forces of the Philippines.

^[4] Military Commission No. 34 is composed of Brigadier General Emilio P. Melendres as President, Colonel Marciano I. Bacalla as Law Member, and Colonels Roberto F. Ang, Higino E. Dacanay, Norberto Furagganan, Mayo Domingo and Soliman Gutierrez as Members; Page 95, Rollo.

^[5] Page 19, Rollo.

^[6] G.R. No. 54558, pages 2 to 44, Rollo.

^[7] The respondents were represented by the Office of the Solicitor General.

^[8] Pages 255 to 268, Rollo.

^[9] Pages 287 to 291, Rollo.

^[10] Page 296, Rollo.

^[11] Pages 333 to 352, Rollo.

^[12] G.R. No. 69882, pages 2 to 64, Rollo.

^[13] Pages 243 to 267, Rollo.

^[14] Page 346, Rollo.

^[15] Pages 299 to 415, Rollo.

^[16] Page 308, Rollo, Vol. II, G.R. No. 69882.

^[17] Herrera v. Enrile, L-40181, 62 SCRA 547 (1975).

^[18] Cagaya v. Tangonan, L-40970, 66 SCRA 216, 219 (1975).

^[19] 63 SCRA 546 (1975).  Mr. Justice Felix Q. Antonio wrote the main opinion.  The Decision of the Court was not unanimous inasmuch as some Justices had dissenting views.

^[20] Citing Benigno S. Aquino, Jr., et al. v. Juan Ponce Enrile, L-35546, 59 SCRA 183 (1974), and companion cases.

^[21] Citing Benigno S. Aquino, Jr., et al. v. Commis­sion on Elections, L-40004, 62 SCRA 275 (1975).

^[22] Citing Fairman, The Law of Martial Rule, 1943 Ed., p. 262.

^[23] Citing Winthrop, Military Law and Precedents, Vols. 1 and 2, p. 830.

^[24] Citing Moyer v. Peabody, 212 U.S. 78.

^[25] Citing Schwartz, Constitutional Law, p. 160.

^[26] Citing Simon v. Craft, 182 U.S. 427 (1901) and Ballard v. Hunter, 204 U.S. 241 (1907).

^[27] 96 SCRA 402, February 29, 1980.

^[28] 102 SCRA 7, January 15, 1981.

^[29] 102 SCRA 33, January 15, 1981.

^[30] 102 SCRA 56, January 16, 1981.

^[31] 109 SCRA 22, November 6, 1981.

^[32] 109 SCRA 273, November 19, 1981.

^[33] G.R. No. 62798, December 22, 1983 and March 13, 1984; cited in Rodolfo Animas v. The Minister of National Defense, G.R. No. 51747, December 29, 1986.  See also Sardinia-Linco v. Pineda (104 SCRA 757) where this Court did not implement the Executive Order to transfer the criminal case from the civil court to the Sandiganbayan, and Evangelista v. Judge Luis Peña, et al. (G.R. No. 62640, July 22, 1983) where a Petition of a member of the Philippine Constabulary seeking the transfer of the case to a military tribunal was dismissed for lack of merit.

^[34] G.R. No. 51747, December 29, 1986.

^[35] 63 SCRA 611 to 648.

^[36] 63 SCRA 665 to 666.

^[37] In re Oliver, 333 U.S. 257 (1948); Sections 1 and 14 (2), Article III, 1987 Constitution. There appears to be no substantial change from the corresponding provi­sions of the 1973 Constitution.

^[38] Citing Lopez v. Roxas, 17 SCRA 756 (1966) and Scoty's Department Store v. Micaller, 99 Phil. 762 (1956).

^[39] Citing Ex-parte Milligan, 4 Wallace (U.S.) 127, 18 L. Ed. 297.

^[40] 350 U.S. 5, 14 (1955).

^[41] Ruffy v. Chief of Staff, 75 Phil. 875 (1946).

^[42] Koppel (Phil.), Inc. v. Yatco, 77 Phil. 496, 515 (1946).

^[43] Ex-parte Milligan, supra.

^[44] Manifestation dated February 11, 1987.

^[45] Gumabon v. Director of the Bureau of Prisons, 37 SCRA 420, 427 (1971), reiterated in Dacuyan v. Ramos, 85 SCRA 487, 491 (1978).

^[46] People v. Ylagan, 58 Phil. 851 (1933).

^[47] Section 1, Article VIII, 1987 Constitution.

^[48] Supra.

^[49] Citations omitted.

^[50] Phil. Trust Company and Smith, Bell & Co. v. Mitchell, 59 Phil. 30, 36 (1933), cited with approval in Koppel (Phil.), Inc. v. Yatco, supra, at 515.

^[51] People v. Navarro, 63 SCRA 264, 274 (1975).

^[52] L-37364, 63 SCRA 546.

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