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,!;<;,=; >) $%&%"? @AB C%>!; %) C%>;>;8 !"#$%&$''(-)**+""++(8 2D) "%>?;"%, &;&;"E>
&;*<;*%>?;"8 !> %,)8 ,+'+%-#%&(8 "%>?;"%, &;&;"E> &;*<;*%>?;" @AB $;%*= ;F
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= ! & ? H ? ; "
$%E>?H>% %"(!,;8 ./0
!"#$%&$''( hereln are courL sLenographers asslgned ln 8ranch vl of Lhe CourL of llrsL lnsLance of
Manlla. uurlng Lhe pendency of Clvll Case no. 2293 of sald courL, enLlLled lranclsco Syclp vs.
naLlonal CoconuL CorporaLlon, AsslsLanL CorporaLe Counsel lederlco Allkpala, counsel
for)*'*%+#%&, requesLed sald sLenographers for coples of Lhe LranscrlpL of Lhe sLenographlc
noLes Laken by Lhem durlng Lhe hearlng. !"#$%&$''( complled wlLh Lhe requesL by dellverlng Lo
Counsel Allkpala Lhe needed LranscrlpL conLalnlng 714 pages and LhereafLer submlLLed Lo hlm
Lhelr bllls for Lhe paymenL of Lhelr fees. 1he naLlonal CoconuL CorporaLlon pald Lhe amounL of
364 Lo Leopoldo 1. 8acanl and 130 Lo MaLeo A. MaLoLo for sald LranscrlpL aL Lhe raLe of 1 per
page.
upon lnspecLlng Lhe books of Lhls corporaLlon, Lhe AudlLor Ceneral dlsallowed Lhe paymenL of
Lhese fees and soughL Lhe recovery of Lhe amounLs pald. Cn !anuary 19, 1933, Lhe AudlLor
Ceneral requlred Lhe !"#$%&$''( Lo relmburse sald amounLs on Lhe sLrengLh of a clrcular of Lhe
ueparLmenL of !usLlce whereln Lhe oplnlon was expressed LhaL Lhe naLlonal CoconuL
CorporaLlon, belng a governmenL enLlLy, was exempL from Lhe paymenL of Lhe fees ln quesLlon.
Cn lebruary 6, 1934, Lhe AudlLor Ceneral lssued an order dlrecLlng Lhe Cashler of Lhe
ueparLmenL of !usLlce Lo deducL from Lhe salary of Leopoldo 1. 8acanl Lhe amounL of 23 every
payday and from Lhe salary of MaLeo A. MaLoLo Lhe amounL of 10 every payday beglnnlng
March 30, 1934. 1o prevenL deducLlon of Lhese fees from Lhelr salarles and secure a [udlclal
rullng LhaL Lhe naLlonal CoconuL CorporaLlon ls noL a governmenL enLlLy wlLhln Lhe purvlew of
secLlon 16, 8ule 130 of Lhe 8ules of CourL, Lhls acLlon was lnsLlLuLed ln Lhe CourL of llrsL lnsLance
of Manlla.
)*'*%+#%&( seL up as a defense LhaL Lhe naLlonal CoconuL CorporaLlon ls a governmenL enLlLy
wlLhln Lhe purvlew of secLlon 2 of Lhe 8evlsed AdmlnlsLraLlve Code of 1917 and, hence, lL ls
exempL from paylng Lhe sLenographers' fees under 8ule 130 of Lhe 8ules of CourL. AfLer Lrlal,
Lhe courL found for Lhe !"#$%&$''( declarlng (1) LhaL )*'*%+#%& naLlonal CoconuL CorporaLlon ls
noL a governmenL enLlLy wlLhln Lhe purvlew of secLlon 16, 8ule 130 of Lhe 8ules of CourL, chan roblesvlrLualawllbrary(2)
LhaL Lhe paymenLs already made by sald )*'*%+#%& Lo !"#$%&$''( hereln and recelved by Lhe laLLer
from Lhe former ln Lhe LoLal amounL of 714, for coples of Lhe sLenographlc LranscrlpLs ln
quesLlon, are valld, [usL and legal, chan roblesvlrLualawllbraryand (3) LhaL !"#$%&$''( are under no obllgaLlon whaLsoever
Lo make a refund of Lhese paymenLs already recelved by Lhem." 1hls ls an appeal from sald
declslon.
under secLlon 16, 8ule 130 of Lhe 8ules of CourL, Lhe CovernmenL of Lhe hlllpplnes ls exempL
from paylng Lhe legal fees provlded for Lhereln, and among Lhese fees are Lhose whlch
sLenographers may charge for Lhe LranscrlpL of noLes Laken by Lhem LhaL may be requesLed by
any lnLeresLed person (secLlon 8). 1he fees ln quesLlon are for Lhe LranscrlpL of noLes Laken
durlng Lhe hearlng of a case ln whlch Lhe naLlonal CoconuL CorporaLlon ls lnLeresLed, and Lhe
LranscrlpL was requesLed by lLs asslsLanL corporaLe counsel for Lhe use of sald corporaLlon.
Cn Lhe oLher hand, secLlon 2 of Lhe 8evlsed AdmlnlsLraLlve Code deflnes Lhe scope of Lhe Lerm
CovernmenL of Lhe 8epubllc of Lhe hlllpplnes" as follows:chanroblesvlrLuallawllbrary
'1he CovernmenL of Lhe hlllpplne lslands' ls a Lerm whlch refers Lo Lhe corporaLe
governmenLal enLlLy Lhrough whlch Lhe funcLlons of governmenL are exerclsed LhroughouL Lhe
hlllpplne lslands, lncludlng, save as Lhe conLrary appears from Lhe conLexL, Lhe varlous arms
Lhrough whlch pollLlcal auLhorlLy ls made effecLlve ln sald lslands, wheLher perLalnlng Lo Lhe
cenLral CovernmenL or Lo Lhe provlnclal or munlclpal branches or oLher form of local
governmenL."
1he quesLlon now Lo be deLermlned ls wheLher Lhe naLlonal CoconuL CorporaLlon may be
consldered as lncluded ln Lhe Lerm CovernmenL of Lhe 8epubllc of Lhe hlllpplnes" for Lhe
purposes of Lhe exempLlon of Lhe legal fees provlded for ln 8ule 130 of Lhe 8ules of CourL.
As may be noLed, Lhe Lerm CovernmenL of Lhe 8epubllc of Lhe hlllpplnes" refers Lo a
governmenL enLlLy Lhrough whlch Lhe funcLlons of governmenL are exerclsed, lncludlng Lhe
varlous arms Lhrough whlch pollLlcal auLhorlLy ls made effecLlve ln Lhe hlllpplnes, wheLher
perLalnlng Lo Lhe cenLral governmenL or Lo Lhe provlnclal or munlclpal branches or oLher form of
local governmenL. 1hls requlres a llLLle dlgresslon on Lhe naLure and funcLlons of our
governmenL as lnsLlLuLed ln our ConsLlLuLlon.
1o begln wlLh, we sLaLe LhaL Lhe Lerm CovernmenL" may be deflned as LhaL lnsLlLuLlon or
aggregaLe of lnsLlLuLlons by whlch an lndependenL socleLy makes and carrles ouL Lhose rules of
acLlon whlch are necessary Lo enable men Lo llve ln a soclal sLaLe, or whlch are lmposed upon
Lhe people formlng LhaL socleLy by Lhose who possess Lhe power or auLhorlLy of prescrlblng
Lhem" (u.S. vs. uorr, 2 hll., 332). 1hls lnsLlLuLlon, when referrlng Lo Lhe naLlonal governmenL,
has reference Lo whaL our ConsLlLuLlon has esLabllshed composed of Lhree greaL deparLmenLs,
Lhe leglslaLlve, execuLlve, and Lhe [udlclal, Lhrough whlch Lhe powers and funcLlons of
governmenL are exerclsed. 1hese funcLlons are Lwofold:chanroblesvlrLuallawllbrary consLlLuLe and mlnlsLranL. 1he
former are Lhose whlch consLlLuLe Lhe very bonds of socleLy and are compulsory ln naLure, chan
roblesvlrLualawllbraryLhe laLLer are Lhose LhaL are underLaken only by way of advanclng Lhe general lnLeresLs of
socleLy, and are merely opLlonal. resldenL Wllson enumeraLes Lhe consLlLuenL funcLlons as
follows:chanroblesvlrLuallawllbrary
'(1) 1he keeplng of order and provldlng for Lhe proLecLlon of persons and properLy from
vlolence and robbery.
'(2) 1he flxlng of Lhe legal relaLlons beLween man and wlfe and beLween parenLs and chlldren.
'(3) 1he regulaLlon of Lhe holdlng, Lransmlsslon, and lnLerchange of properLy, and Lhe
deLermlnaLlon of lLs llablllLles for debL or for crlme.
'(4) 1he deLermlnaLlon of conLracL rlghLs beLween lndlvlduals.
'(3) 1he deflnlLlon and punlshmenL of crlme.
'(6) 1he admlnlsLraLlon of [usLlce ln clvll cases.
'(7) 1he deLermlnaLlon of Lhe pollLlcal duLles, prlvlleges, and relaLlons of clLlzens.
'(8) ueallngs of Lhe sLaLe wlLh forelgn powers:chanroblesvlrLuallawllbrary Lhe preservaLlon of Lhe sLaLe from exLernal
danger or encroachmenL and Lhe advancemenL of lLs lnLernaLlonal lnLeresLs.' (Malcolm, 1he
CovernmenL of Lhe hlllpplne lslands, p. 19.)
1he mosL lmporLanL of Lhe mlnlsLranL funcLlons are:chanroblesvlrLuallawllbrary publlc works, publlc educaLlon, publlc
charlLy, healLh and safeLy regulaLlons, and regulaLlons of Lrade and lndusLry. 1he prlnclples deLer
mlnlng wheLher or noL a governmenL shall exerclse cerLaln of Lhese opLlonal funcLlons are:chanroblesvlrLuallawllbrary (1)
LhaL a governmenL should do for Lhe publlc welfare Lhose Lhlngs whlch prlvaLe caplLal would noL
naLurally underLake and (2) LhaL a governmenL should do Lhese Lhlngs whlch by lLs very naLure lL
ls beLLer equlpped Lo admlnlsLer for Lhe publlc welfare Lhan ls any prlvaLe lndlvldual or group of
lndlvlduals. (Malcolm, 1he CovernmenL of Lhe hlllpplne lslands, pp. 19-20.)
lrom Lhe above we may lnfer LhaL, sLrlcLly speaklng, Lhere are funcLlons whlch our governmenL
ls requlred Lo exerclse Lo promoLe lLs ob[ecLlves as expressed ln our ConsLlLuLlon and whlch are
exerclsed by lL as an aLLrlbuLe of soverelgnLy, and Lhose whlch lL may exerclse Lo promoLe
merely Lhe welfare, progress and prosperlLy of Lhe people. 1o Lhls laLLer class belongs Lhe
organlzaLlon of Lhose corporaLlons owned or conLrolled by Lhe governmenL Lo promoLe cerLaln
aspecLs of Lhe economlc llfe of our people such as Lhe naLlonal CoconuL CorporaLlon. 1hese are
whaL we call governmenL-owned or conLrolled corporaLlons whlch may Lake on Lhe form of a
prlvaLe enLerprlse or one organlzed wlLh powers and formal characLerlsLlcs of a prlvaLe
corporaLlons under Lhe CorporaLlon Law.
1he quesLlon LhaL now arlses ls:chanroblesvlrLuallawllbrary uoes Lhe facL LhaL Lhese corporaLlon perform cerLaln
funcLlons of governmenL make Lhem a parL of Lhe CovernmenL of Lhe hlllpplnes?
1he answer ls slmple:chanroblesvlrLuallawllbrary Lhey do noL acqulre LhaL sLaLus for Lhe slmple reason LhaL Lhey do noL
come under Lhe classlflcaLlon of munlclpal or publlc corporaLlon. 1ake for lnsLance Lhe naLlonal
CoconuL CorporaLlon. Whlle lL was organlzed wlLh Lhe purpose of ad[usLlng Lhe coconuL
lndusLry Lo a poslLlon lndependenL of Lrade preferences ln Lhe unlLed SLaLes" and of provldlng
laclllLles for Lhe beLLer curlng of copra producLs and Lhe proper uLlllzaLlon of coconuL by-
producLs", a funcLlon whlch our governmenL has chosen Lo exerclse Lo promoLe Lhe coconuL
lndusLry, however, lL was glven a corporaLe power separaLe and dlsLlncL from our governmenL,
for lL was made sub[ecL Lo Lhe provlslons of our CorporaLlon Law ln so far as lLs corporaLe
exlsLence and Lhe powers LhaL lL may exerclse are concerned (secLlons 2 and 4, CommonwealLh
AcL no. 318). lL may sue and be sued ln Lhe same manner as any oLher prlvaLe corporaLlons, and
ln Lhls sense lL ls an enLlLy dlfferenL from our governmenL. As Lhls CourL has apLly sald, 1he
mere facL LhaL Lhe CovernmenL happens Lo be a ma[orlLy sLockholder does noL make lL a publlc
corporaLlon" (naLlonal Coal Co. vs. CollecLor of lnLernal 8evenue, 46 hll., 386-387). 8y
becomlng a sLockholder ln Lhe naLlonal Coal Company, Lhe CovernmenL dlvesLed lLself of lLs
soverelgn characLer so far as respecLs Lhe LransacLlons of Lhe corporaLlon cralaw . unllke Lhe
CovernmenL, Lhe corporaLlon may be sued wlLhouL lLs consenL, and ls sub[ecL Lo LaxaLlon. ?eL
Lhe naLlonal Coal Company remalns an agency or lnsLrumenLallLy of governmenL." (CovernmenL
of Lhe hlllpplne lslands vs. Sprlnger, 30 hll., 288.)
1o recaplLulaLe, we may menLlon LhaL Lhe Lerm CovernmenL of Lhe 8epubllc of Lhe hlllpplnes"
used ln secLlon 2 of Lhe 8evlsed AdmlnlsLraLlve Code refers only Lo LhaL governmenL enLlLy
Lhrough whlch Lhe funcLlons of Lhe governmenL are exerclsed as an aLLrlbuLe of soverelgnLy, and
ln Lhls are lncluded Lhose arms Lhrough whlch pollLlcal auLhorlLy ls made effecLlve wheLher Lhey
be provlnclal, munlclpal or oLher form of local governmenL. 1hese are whaL we call munlclpal
corporaLlons. 1hey do noL lnclude governmenL enLlLles whlch are glven a corporaLe personallLy
separaLe and dlsLlncL from Lhe governmenL and whlch are governed by Lhe CorporaLlon Law.
1helr powers, duLles and llablllLles have Lo be deLermlned ln Lhe llghL of LhaL law and of Lhelr
corporaLe charLers. 1hey do noL Lherefore come wlLhln Lhe exempLlon clause prescrlbed ln
secLlon 16, 8ule 130 of our 8ules of CourL.
ubllc corporaLlons are Lhose formed or organlzed for Lhe governmenL of a porLlon of Lhe
SLaLe." (SecLlon 3, 8epubllc AcL no. 1439, CorporaLlon Law).
'1he generally accepLed deflnlLlon of a munlclpal corporaLlon would only lnclude organlzed
clLles and Lowns, and llke organlzaLlons, wlLh pollLlcal and leglslaLlve powers for Lhe local, clvll
governmenL and pollce regulaLlons of Lhe lnhablLanLs of Lhe parLlcular dlsLrlcL lncluded ln Lhe
boundarles of Lhe corporaLlon.' Peller vs. SLremmel, 32 Mo. 309, 312."
ln lLs more general sense Lhe phrase 'munlclpal corporaLlon' may lnclude boLh Lowns and
counLles, and oLher publlc corporaLlons creaLed by governmenL for pollLlcal purposes. ln lLs
more common and llmlLed slgnlflcaLlon, lL embraces only lncorporaLed vlllages, Lowns and clLles.
uunn vs. CourL of CounLy 8evenues, 83 Ala. 144, 146, 4 So. 661." (McCulllln, Munlclpal
CorporaLlons, 2nd ed., vol. 1, p. 383.)
We may, Lherefore, deflne a munlclpal corporaLlon ln lLs hlsLorlcal and sLrlcL sense Lo be Lhe
lncorporaLlon, by Lhe auLhorlLy of Lhe governmenL, of Lhe lnhablLanLs of a parLlcular place or
dlsLrlcL, and auLhorlzlng Lhem ln Lhelr corporaLe capaclLy Lo exerclse subordlnaLe speclfled
powers of leglslaLlon and regulaLlon wlLh respecL Lo Lhelr local and lnLernal concerns. 1hls power
of local governmenL ls Lhe dlsLlncLlve purpose and Lhe dlsLlngulshlng feaLure of a munlclpal
corporaLlon proper." (ulllon, Munlclpal CorporaLlons, 3Lh ed., vol. l, p. 39.)
lL ls Lrue LhaL under secLlon 8, 8ule 130, sLenographers may only charge as fees 0.30 for each
page of LranscrlpL of noL less Lhan 200 words before Lhe appeal ls Laken and 0.13 for each page
afLer Lhe flllng of Lhe appeal, buL ln Lhls case Lhe naLlonal CoconuL CorporaLlon has agreed and
ln facL has pald 1.00 per page for Lhe servlces rendered by Lhe !"#$%&$''( and has noL ralsed any
ob[ecLlon Lo Lhe amounL pald unLll lLs proprleLy was dlspuLed by Lhe AudlLor Ceneral. 1he
paymenL of Lhe fees ln quesLlon became Lherefore conLracLual and as such ls valld even lf lL goes
beyond Lhe llmlL prescrlbed ln secLlon 8, 8ule 130 of Lhe 8ules of CourL.
As regards Lhe quesLlon of procedure ralsed by ,--*""#%&(, sufflce lL Lo say LhaL Lhe same ls
lnsubsLanLlal, conslderlng LhaL Lhls case refers noL Lo a money clalm dlsapproved by Lhe AudlLor
Ceneral buL Lo an acLlon of prohlblLlon Lhe purpose of whlch ls Lo resLraln Lhe offlclals
concerned from deducLlng from !"#$%&$''(' salarles Lhe amounL pald Lo Lhem as sLenographers'
fees. 1hls case does noL come under secLlon 1, 8ule 43 of Lhe 8ules of CourL relaLlve Lo appeals
from a declslon of Lhe AudlLor Ceneral.
Wherefore, Lhe declslon appealed from ls afflrmed, wlLhouL pronouncemenL as Lo cosLs.
<@6@D8 1/./8 $3AIJ+A8 <@BKLL@8 C+AM34@N+68 ,@56@B+68 &+AO3POK+A8 *3N3D8 Q) $) ,)8 !AB3AOK@ @AB
F3LKR8 ../8 O+AOS6)


Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-21484 November 29, 1969
THE AGRICULTURAL CREDIT and COOPERATIVE FINANCING ADMINISTRATION
(ACCFA), petitioner,
vs.
ACCFA SUPERVISORS' ASSOCIATION, ACCFA WORKERS' ASSOCIATION, and THE
COURT OF INDUSTRIAL RELATIONS, respondents.
Deogracias E. Lerma and Esmeraldo U. Guloy for petitioner Agricultural Credit and
Cooperative Financing Administration.
Office of the Agrarian Counsel, Department of Justice for petitioner Agricultural Credit
Administration
J. C. Espinas and Associates for respendents Confederation of Unions in Government
Corporations Offices, et al. Mariano B. Tuason for respondent Court of Industrial Relations.
MAKALINTAL, J.:
These are two separate appeals by certiorari from the decision dated March 25, 1963 (G.R.
No. L-21484) and the order dated May 21, 1964 (G.R. No. L-23605) as affirmed by the
resolutions en banc, of the Court of Industrial Relations, in Cases Nos. 3450-ULP and 1327-
MC, respectively. The parties, except the Confederation of Unions in Government
Corporations and Offices (CUGCO), being practically the same and the principal issues
involved related, only one decision is now rendered in these two cases.
The Agricultural Credit and Cooperative Financing Administration (ACCFA) was a
government agency created under Republic Act No. 821, as amended. Its administrative
machinery was reorganized and its name changed to Agricultural Credit Administration
(ACA) under the Land Reform Code (Republic Act No. 3844). On the other hand, the ACCFA
Supervisors' Association (ASA) and the ACCFA Workers' Association (AWA), hereinafter
referred to as the Unions, are labor organizations composed of the supervisors and the rank-
and-file employees, respectively, in the ACCFA (now ACA).
G.R. No. L-21484
On September 4, 1961 a collective bargaining agreement, which was to be effective for a
period of one (1) year from July 1, 1961, was entered into by and between the Unions and
the ACCFA. A few months thereafter, the Unions started protesting against alleged violations
and non-implementation of said agreement. Finally, on October 25, 1962 the Unions
declared a strike, which was ended when the strikers voluntarily returned to work on
November 26, 1962.
On October 30, 1962 the Unions, together with its mother union, the Confederation of Unions
in Government Corporations and Offices (CUGCO), filed a complaint with the Court of
Industrial Relations against the ACCFA (Case No. 3450-ULP) for having allegedly committed
acts of unfair labor practice, namely: violation of the collective bargaining agreement in order
to discourage the members of the Unions in the exercise of their right to self-organization,
discrimination against said members in the matter of promotions, and refusal to bargain. The
ACCFA denied the charges and interposed as affirmative and special defenses lack of
jurisdiction of the CIR over the case, illegality of the bargaining contract, expiration of said
contract and lack of approval by the office of the President of the fringe benefits provided for
therein. Brushing aside the foregoing defenses, the CIR in its decision dated March 25, 1963
ordered the ACCFA:
1. To cease and desist from committing further acts tending to discourage the
members of complainant unions in the exercise of their right to self-organization;
2. To comply with and implement the provision of the collective bargaining contract
executed on September 4, 1961, including the payment of P30.00 a month living
allowance;
3. To bargain in good faith and expeditiously with the herein complainants.
The ACCFA moved to reconsider but was turned down in a resolution dated April 25, 1963 of
the CIR en banc. Thereupon it brought this appeal by certiorari.
The ACCFA raises the following issues in its petition, to wit:
1. Whether or not the respondent court has jurisdiction over this case, which in turn
depends on whether or not ACCFA exercised governmental or proprietary functions.
2. Whether or not the collective bargaining agreement between the petitioner and the
respondent union is valid; if valid, whether or not it has already lapsed; and if not,
whether or not its (sic) fringe benefits are already enforceable.
3. Whether or not there is a legal and/or factual basis for the finding of the
respondent court that the petitioner had committed acts of unfair labor practice.
4. Whether or not it is within the competence of the court to enforce the collective
bargaining agreement between the petitioner and the respondent unions, the same
having already expired.
G.R. No. L-23605
During the pendency of the above mentioned case (G.R. No. L-21484), specifically on
August 8, 1963, the President of the Philippines signed into law the Agricultural Land Reform
Code (Republic Act No. 3844), which among other things required the reorganization of the
administrative machinery of the Agricultural Credit and Cooperative Financing Administration
(ACCFA) and changed its name to Agricultural Credit Administration (ACA). On March 17,
1964 the ACCFA Supervisors' Association and the ACCFA Workers' Association filed a
petition for certification election with the Court of Industrial Relations (Case No. 1327-MC)
praying that they be certified as the exclusive bargaining agents for the supervisors and
rank-and-file employees, respectively, in the ACA. The trial Court in its order dated March
30, 1964 directed the Manager or Officer-in-Charge of the ACA to allow the posting of said
order "for the information of all employees and workers thereof," and to answer the petition.
In compliance therewith, the ACA, while admitting most of the allegations in the petition,
denied that the Unions represented the majority of the supervisors and rank-and-file workers,
respectively, in the ACA. It further alleged that the petition was premature, that the ACA was
not the proper party to be notified and to answer the petition, and that the employees and
supervisors could not lawfully become members of the Unions, nor be represented by them.
However, in a joint manifestation of the Unions dated May 7, 1964, with the conformity of the
ACA Administrator and of the Agrarian Counsel in his capacity as such and as counsel for
the National Land Reform Council, it was agreed "that the union petitioners in this case
represent the majority of the employees in their respective bargaining units" and that only the
legal issues raised would be submitted for the resolution of the trial Court.
Finding the remaining grounds for ACA's opposition to the petition to be without merit, the
trial Court in its order dated May 21, 1964 certified "the ACCFA Workers' Association and the
ACCFA Supervisors' Association as the sole and exclusive bargaining representatives of the
rank-and-file employees and supervisors, respectively, of the Agricultural Credit
Administration." Said order was affirmed by the CIR en banc in its resolution dated August
24, 1964.
On October 2, 1964 the ACA filed in this Court a petition for certiorari with urgent motion to
stay the CIR order of May 21, 1964. In a resolution dated October 6, 1964, this Court
dismissed the petition for "lack of adequate allegations," but the dismissal was later
reconsidered when the ACA complied with the formal requirement stated in said resolution.
As prayed for, this Court ordered the CIR to stay the execution of its order of May 21, 1964.
In this appeal, the ACA in effect challenges the jurisdiction of the CIR to entertain the petition
of the Unions for certification election on the ground that it (ACA) is engaged in governmental
functions. The Unions join the issue on this single point, contending that the ACA forms
proprietary functions.
Under Section 3 of the Agricultural Land Reform Code the ACA was established, among
other governmental agencies,
1
to extend credit and similar assistance to agriculture, in
pursuance of the policy enunciated in Section 2 as follows:
SEC. 2. Declaration of Policy. It is the policy of the State:
(1) To establish owner-cultivatorships and the economic family-size farm as the basis
of Philippine agriculture and, as a consequence, divert landlord capital in agriculture
to industrial development;
(2) To achieve a dignified existence for the small farmers free from pernicious
institutional restraints and practices;
(3) To create a truly viable social and economic structure in agriculture conducive to
greater productivity and higher farm incomes;
(4) To apply all labor laws equally and without discrimination to both industrial and
agricultural wage earners;
(5) To provide a more vigorous and systematic land resettlement program and public
land distribution; and
(6) To make the small farmers more independent, self-reliant and responsible
citizens, and a source of genuine strength in our democratic society.
The implementation of the policy thus enunciated, insofar as the role of the ACA therein is
concerned, is spelled out in Sections 110 to 118, inclusive, of the Land Reform Code.
Section 110 provides that "the administrative machinery of the ACCFA shall be reorganized
to enable it to align its activities with the requirements and objective of this Code and shall be
known as the Agricultural Credit Administration." Under Section 112 the sum of
P150,000,000 was appropriated out of national funds to finance the additional credit
functions of the ACA as a result of the land reform program laid down in the Code. Section
103 grants the ACA the privilege of rediscounting with the Central Bank, the Development
Bank of the Philippines and the Philippine National Bank. Section 105 directs the loaning
activities of the ACA "to stimulate the development of farmers' cooperatives," including those
"relating to the production and marketing of agricultural products and those formed to
manage and/or own, on a cooperative basis, services and facilities, such as irrigation and
transport systems, established to support production and/or marketing of agricultural
products." Section 106 deals with the extension by ACA of credit to small farmers in order to
stimulate agricultural production. Sections 107 to 112 lay down certain guidelines to be
followed in connection with the granting of loans, such as security, interest and supervision
of credit. Sections 113 to 118, inclusive, invest the ACA with certain rights and powers not
accorded to non-governmental entities, thus:
SEC. 113. Auditing of Operations. For the effective supervision of farmers'
cooperatives, the head of the Agricultural Credit Administration shall have the power
to audit their operations, records and books of account and to issue subpoena and
subpoena duces tecum to compel the attendance of witnesses and the production of
books, documents and records in the conduct of such audit or of any inquiry into their
affairs. Any person who, without lawful cause, fails to obey such subpoena or
subpoena duces tecum shall, upon application of the head of Agricultural Credit
Administration with the proper court, be liable to punishment for contempt in the
manner provided by law and if he is an officer of the Association, to suspension or
removal from office.
SEC. 114. Prosecution of officials. The Agricultural Credit Administration, through
the appropriate provincial or city fiscal, shall have the power to file and prosecute any
and all actions which it may have against any and all officials or employees of
farmers' cooperatives arising from misfeasance or malfeasance in office.
SEC. 115. Free Notarial Service. Any justice of the peace, in his capacity as
notary ex-officio, shall render service free of charge to any person applying for a loan
under this Code either in administering the oath or in the acknowledgment of
instruments relating to such loan.
SEC. 116. Free Registration of Deeds. Any register of deeds shall accept for
registration, free of charge any instrument relative to a loan made under this Code.
SEC. 117. Writing-off Unsecured and Outstanding Loans. Subject to the approval
of the President upon recommendation of the Auditor General, the Agricultural Credit
Administration may write-off from its books, unsecured and outstanding loans and
accounts receivable which may become uncollectible by reason of the death or
disappearance of the debtor, should there be no visible means of collecting the same
in the foreseeable future, or where the debtor has been verified to have no income or
property whatsoever with which to effect payment. In all cases, the writing-off shall
be after five years from the date the debtor defaults.
SEC. 118. Exemption from Duties, Taxes and Levies. The Agricultural Credit
Administration is hereby exempted from the payment of all duties, taxes, levies, and
fees, including docket and sheriff's fees, of whatever nature or kind, in the
performance of its functions and in the exercise of its powers hereunder.
The power to audit the operations of farmers' cooperatives and otherwise inquire into their
affairs, as given by Section 113, is in the nature of the visitorial power of the sovereign,
which only a government agency specially delegated to do so by the Congress may legally
exercise.
On March 19, 1964 Executive Order No. 75 was promulgated. It is entitled: "Rendering in
Full Force and Effect the Plan of Reorganization Proposed by the Special Committee on
Reorganization of Agencies for Land Reform for the Administrative Machinery of the
Agricultural Land Reform Code," and contains the following pertinent provisions:
Section 3. The Land Reform Project Administration
2
shall be considered a single
organization and the personnel complement of the member agencies including the
legal officers of the Office of the Agrarian Counsel which shall provide legal services
to the LRPA shall be regarded as one personnel pool from which the requirements of
the operations shall be drawn and subject only to the civil service laws, rules and
regulations, persons from one agency may be freely assigned to positions in another
agency within the LRPA when the interest of the service so demands.
Section 4. The Land Reform Project Administration shall be considered as one
organization with respect to the standardization of job descriptions position
classification and wage and salary structures to the end that positions involving the
same or equivalent qualifications and equal responsibilities and effort shall have the
same remuneration.
Section 5. The Civil Service laws, rules and regulations with respect to promotions,
particularly in the consideration of person next in rank, shall be made applicable to
the Land Reform Project Administration as a single agency so that qualified
individuals in one member agency must be considered in considering promotion to
higher positions in another member agency.
The implementation of the land reform program of the government according to Republic Act
No. 3844 is most certainly a governmental, not a proprietary, function; and for that purpose
Executive Order No. 75 has placed the ACA under the Land Reform Project Administration
together with the other member agencies, the personnel complement of all of which are
placed in one single pool and made available for assignment from one agency to another,
subject only to Civil Service laws, rules and regulations, position classification and wage
structures.
The appointing authority in respect of the officials and employees of the ACA is the President
of the Philippines, as stated in a 1st indorsement by his office to the Chairman of the
National Reform Council dated May 22, 1964, as follows:
Appointments of officials and employees of the National Land Reform Council and its
agencies may be made only by the President, pursuant to the provisions of Section
79(D) of the Revised Administrative Code. In accordance with the policy and
practice, such appointments should be prepared for the signature of the Executive
Secretary, "By Authority ofthe President".
3

When the Agricultural Reform Code was being considered by the Congress, the nature of the
ACA was the subject of the following exposition on the Senate floor:
Senator Tolentino: . . . . "The ACA is not going to be a profit making institution. It is
supposed to be a public service of the government to the lessees and farmer-owners
of the lands that may be bought after expropriation from owners. It is the government
here that is the lender. The government should not exact a higher interest than what
we are telling a private landowner now in his relation to his tenants if we give to their
farmers a higher rate of interest . . . ." (pp. 17 & 18, Senate Journal No. 16, July 3,
1963)
The reason is obvious, to pinpoint responsibility for many losses in the government, in order
to avoid irresponsible lending of government money to pinpoint responsibility for many
losses . . . .
Senator Manglapus: ". . . But assuming that hypothesis, that is the reason why we
are appropriating P150,000,000.00 for the Agricultural Credit Administration which
will go to intensified credit operations on the barrio level . . ." (p. 3, Senate Journal
No. 7).
That it is the reason why we are providing for the expansion of the ACCFA and the weeding
out of the cooperative activity of the ACCFA and turning this over to the Agricultural
Productivity Commission, so that the Agricultural Credit Administration will concentrate
entirely on the facilitation of credit on the barrio level with the massive support of 150 million
provided by the government. . . . (pp. 4 & 5 of Senate Journal No. 7, July 3, 1963)
. . . But by releasing them from this situation, we feel that we are putting them in a much
better condition than that in which they are found by providing them with a business-like way
of obtaining credit, not depending on a paternalistic system but one which is business-like
that is to say, a government office, which on the barrio level will provide them that credit
directly . . . . (p. 40, Senate Journal No. 7, July 3, 1963) (emphasis supplied).
The considerations set forth above militate quite strongly against the recognition of collective
bargaining powers in the respondent Unions within the context of Republic Act No. 875, and
hence against the grant of their basic petition for certification election as proper bargaining
units. The ACA is a government office or agency engaged in governmental, not proprietary
functions. These functions may not be strictly what President Wilson described as
"constituent" (as distinguished from "ministrant"),
4
such as those relating to the maintenance
of peace and the prevention of crime, those regulating property and property rights, those
relating to the administration of justice and the determination of political duties of citizens,
and those relating to national defense and foreign relations. Under this traditional
classification, such constituent functions are exercised by the State as attributes of
sovereignty, and not merely to promote the welfare, progress and prosperity of the people
these letter functions being ministrant he exercise of which is optional on the part of the
government.
The growing complexities of modern society, however, have rendered this traditional
classification of the functions of government quite unrealistic, not to say obsolete. The areas
which used to be left to private enterprise and initiative and which the government was called
upon to enter optionally, and only "because it was better equipped to administer for the
public welfare than is any private individual or group of individuals,"
5
continue to lose their
well-defined boundaries and to be absorbed within activities that the government must
undertake in its sovereign capacity if it is to meet the increasing social challenges of the
times. Here as almost everywhere else the tendency is undoubtedly towards a greater
socialization of economic forces. Here of course this development was envisioned, indeed
adopted as a national policy, by the Constitution itself in its declaration of principle
concerning the promotion of social justice.
It was in furtherance of such policy that the Land Reform Code was enacted and the various
agencies, the ACA among them, established to carry out its purposes. There can be no
dispute as to the fact that the land reform program contemplated in the said Code is beyond
the capabilities of any private enterprise to translate into reality. It is a purely governmental
function, no less than, say, the establishment and maintenance of public schools and public
hospitals. And when, aside from the governmental objectives of the ACA, geared as they are
to the implementation of the land reform program of the State, the law itself declares that the
ACA is a government office, with the formulation of policies, plans and programs vested no
longer in a Board of Governors, as in the case of the ACCFA, but in the National Land
Reform Council, itself a government instrumentality; and that its personnel are subject to
Civil Service laws and to rules of standardization with respect to positions and salaries, any
vestige of doubt as to the governmental character of its functions disappears.
In view of the foregoing premises, we hold that the respondent Unions are not entitled to the
certification election sought in the Court below. Such certification is admittedly for purposes
of bargaining in behalf of the employees with respect to terms and conditions of employment,
including the right to strike as a coercive economic weapon, as in fact the said unions did
strike in 1962 against the ACCFA (G.R. No. L-21824).
6
This is contrary to Section 11 of
Republic Act No. 875, which provides:
SEC. 11. Prohibition Against Strike in the Government The terms and conditions
of employment in the Government, including any political subdivision or
instrumentality thereof, are governed by law and it is declared to be the policy of this
Act that employees therein shall not strike for the purposes of securing changes or
modification in their terms and conditions of employment. Such employees may
belong to any labor organization which does not impose the obligation to strike or to
join in strike: Provided, However, that this section shall apply only to employees
employed in governmental functions of the Government including but not limited to
governmental corporations.
7

With the reorganization of the ACCFA and its conversion into the ACA under the Land
Reform Code and in view of our ruling as to the governmental character of the functions of
the ACA, the decision of the respondent Court dated March 25, 1963, and the resolution en
banc affirming it, in the unfair labor practice case filed by the ACCFA, which decision is the
subject of the present review in G. R. No. L-21484, has become moot and academic,
particularly insofar as the order to bargain collectively with the respondent Unions is
concerned.
What remains to be resolved is the question of fringe benefits provided for in the collective
bargaining contract of September 4, 1961. The position of the ACCFA in this regard is that
the said fringe benefits have not become enforceable because the condition that they should
first be approved by the Office of the President has not been complied with. The Unions, on
the other hand, contend that no such condition existed in the bargaining contract, and the
respondent Court upheld this contention in its decision.
It is to be listed that under Section 3, Article XIV, of the agreement, the same "shall not
become effective unless and until the same is duly ratified by the Board of Governors of the
Administration." Such approval was given even before the formal execution of the
agreement, by virtue of "Resolution No. 67, Regular Meeting No. 7, FY 1960-61, held on
August 17, 1961," but with the proviso that "the fringe benefits contained therein shall take
effect only if approved by the office of the President." The condition is, therefore, deemed to
be incorporated into the agreement by reference.
On October 23, 1962 the Office of the President, in a letter signed by the Executive
Secretary, expressed its approval of the bargaining contract "provided the salaries and
benefits therein fixed are not in conflict with applicable laws and regulations, are believed to
be reasonable considering the exigencies of the service and the welfare of the employees,
and are well within the financial ability of the particular corporation to bear."
On July 1, 1963 the ACCFA management and the Unions entered into an agreement for the
implementation of the decision of the respondent Court concerning the fringe benefits, thus:
In the meantime, only Cost of Living Adjustment, Longevity Pay, and Night
Differential Benefits accruing from July 1, 1961 to June 30, 1963 shall be paid to all
employees entitled thereto, in the following manner:
A) The sum of P180,000 shall be set aside for the payment of:
1) Night differential benefits for Security Guards.
2) Cost of Living Adjustment and Longevity Pay.
3) The unpaid balance due employees on Item A (1) and (2) this paragraph shall be
paid in monthly installments as finances permit but not beyond December 20, 1963.
3. All benefits accruing after July 1, 1963, shall be allowed to accumulate but payable
only after all benefits accruing up to June 30, 1963, as per CIR decision hereinabove
referred to shall have been settled in full; provided, however, that commencing July
1, 1963 and for a period of only two (2) months thereafter (during which period the
ACCFA and the Unions shall negotiate a new Collective Bargaining Agreement) the
provisions of the September 4, 1961 Collective Bargaining Agreement shall be
temporarily suspended, except as to Cost of Living Adjustment and "political" or non-
economic privileges and benefits thereunder.
On July 24, 1963 the ACCFA Board of Governors ratified the agreement thus entered into,
pursuant to the provision thereof requiring such ratification, but with the express qualification
that the same was "without prejudice to the pending appeal in the Supreme Court . . . in
Case No. 3450-ULP." The payment of the fringe benefits agreed upon, to our mind, shows
that the same were within the financial capability of the ACCFA then, and hence justifies the
conclusion that this particular condition imposed by the Office of the President in its approval
of the bargaining contract was satisfied.
We hold, therefore, that insofar as the fringe benefits already paid are concerned, there is no
reason to set aside the decision of the respondent Court, but that since the respondent
Unions have no right to the certification election sought by them nor, consequently, to
bargain collectively with the petitioner, no further fringe benefits may be demanded on the
basis of any collective bargaining agreement.
The decisions and orders appealed from are set aside and/or modified in accordance with
the foregoing pronouncements. No costs.
Concepcion, C.J., Reyes, J.B.L., Dizon, Sanchez, Castro, Teehankee and Barredo,
JJ., concur.
Zaldivar, J., concurs in the result.


Separate Opinions
FERNANDO, J., concurring:
The decision reached by this Court so ably given expression in the opinion of Justice
Makalintal, characterized with vigor, clarity and precision, represents what for me is a clear
tendency not to be necessarily bound by our previous pronouncements on what activities
partake of a nature that is governmental.
1
Of even greater significance, there is a definite
rejection of the "constituent-ministrant" criterion of governmental functions, followed in
Bacani v. National Coconut Corporation.
2
That indeed is cause for gratification. For me at
least, there is again full adherence to the basic philosophy of the Constitution as to the
extensive and vast power lodged in our government to cope with the social and economic
problems that even now sorely beset us. There is therefore full concurrence on my part to
the opinion of the Court, distinguished by its high quality of juristic craftsmanship. I feel
however that the matter is of such vital importance that a separate concurring opinion is not
inappropriate. It will also serve to give expression to my view, which is that of the Court
likewise, that our decision today does not pass upon the rights of labor employed in
instrumentalities of the state discharging governmental functions.
1. In the above Bacani decision, governmental functions are classified into constituent and
ministrant. "The former are those which constitute the very bonds of society and are
compulsory in nature; the latter are those that are undertaken only by way of advancing the
general interests of society, and are merely optional. President Wilson enumerates the
constituent functions as follows: '(1) The keeping of order and providing for the protection of
persons and property from violence and robbery. (2) The fixing of the legal relations between
man and wife and between parents and children. (3) The regulation of the holding,
transmission, and interchange of property, and the determination of its liabilities for debt or
for crime. (4) The determination of contract rights between individuals. (5) The definition and
punishment of crime. (6) The administration of justice in civil cases. (7) The determination of
the political duties, privileges, and relations of citizens. (8) Dealings of the state with foreign
powers: the preservation of the state from external danger or encroachment and the
advancement of its international interests.' "
3

The ministrant functions were then enumerated, followed by a statement of the basis that
would justify engaging in such activities. Thus: "The most important of the ministrant
functions are: public works, public education, public charity, health and safety regulations,
and regulations of trade and industry. The principles determining whether or not a
government shall exercise certain of these optional functions are: (1) that a government
should do for the public welfare those things which private capital would not naturally
undertake and (2) that a government should do these things which by its very nature it is
better equipped to administer for the public welfare than is any private individual or group of
individuals."
4

Reference is made in the Bacani decision to the first of the many publications of Justice
Malcolm on the Philippine government, which appeared in 1916,
5
adopting the formulation of
the then Professor, later President, Woodrow Wilson of the United States, in a textbook on
political science the first edition of which was published in 1898. The Wilson classification
reflected the primacy of the dominant laissez-faire concept carried into the sphere of
government.
A most spirited defense of such a view was given by former President Hadley of Yale in a
series of three lectures delivered at Oxford University in 1914. According to President
Hadley: "I shall begin with a proposition which may sound somewhat startling, but which I
believe to be literally true. The whole American political and social system is based on
industrial property right, far more completely than has ever been the case in any European
country. In every nation of Europe there has been a certain amount of traditional opposition
between the government and the industrial classes. In the United States no such tradition
exists. In the public law of European communities industrial freeholding is a comparatively
recent development. In the United States, on the contrary, industrial freeholding is the
foundation on which the whole social order has been established and built up."
6

The view is widely accepted that such a fundamental postulate did influence American court
decisions on constitutional law. As was explicitly stated by Justice Cardozo, speaking of that
era: "Laissez-faire was not only a counsel of caution which statesmen would do well to heed.
It was a categorical imperative which statesmen as well as judges, must obey."
7
For a long
time, legislation tending to reduce economic inequality foundered on the rock that was the
due process clause, enshrining as it did the liberty of contract. To cite only one instance, the
limitation of employment in bakeries to sixty hours a week and ten hours a day under a New
York statute was stricken down for being tainted with a due process objection in Lochner v.
New York.
8
It provoked one of the most vigorous dissents of Justice Holmes, who was
opposed to the view that the United States Constitution did embodylaissez-faire. Thus:
"General propositions do not decide concrete cases. The decision will depend on a judgment
or intuition more subtle than any articulate major premise. But I think that the proposition just
stated, if it is accepted, will carry us far toward the end. Every opinion tends to become a
law. I think that the word 'liberty,' in the 14th Amendment, is perverted when it is held to
prevent the natural outcome of a dominant opinion, unless it can be said that a rational and
fair man necessarily would admit that the statute proposed would infringe fundamental
principles as they have been understood by the traditions of our people and our law. It does
not need research to show that no such sweeping condemnation can be passed upon the
statute before us. A reasonable man might think it a proper measure on the score of health.
Men whom I certainly could not pronounce unreasonable would uphold it as a first
installment of a general regulation of the hours of work. Whether in the latter aspect it would
be open to the charge of inequality I think it unnecessary to discuss." It was not until 1908,
in Muller v. Oregon,
9
that the American Supreme Court held valid a ten-hour maximum for
women workers in laundries and not until 1917 in Bunting v. Oregon
10
that such a regulatory
ten-hour law applied to men and women passed the constitutional test.
Similarly, state legislation fixing minimum wages was deemed offensive to the due process
clause in a 1923 decision in Adkins v. Children's Hospital.
11
Only in 1937, in the leading case
of West Coast Hotel v. Parrish,
12
was the Adkins case overruled and a minimum wage law
New York statute upheld. The same unsympathetic attitude arising from the laissez-faire
concept was manifest in decisions during such period, there being the finely-spun
distinctions in the Wolff Packing Co. v. Court of Industrial Relations
13
decision, as to when
certain businesses could be classified as affected with public interest to justify state
regulation as to prices. After eleven years, in 1934, in Nebbia v. New York,
14
the air of
unreality was swept away by this explicit pronouncement from the United States Supreme
Court: "The phrase 'affected with a public interest' can, in the nature of things, mean no more
than that an industry, for adequate reason, is subject to control for the public good."
It is thus apparent that until the administration of President Roosevelt, the laissez-
faire principle resulted in the contraction of the sphere where governmental entry was
permissible. The object was to protect property even if thereby the needs of the general
public would be left unsatisfied. This was emphatically put forth in a work of former Attorney
General, later Justice, Jackson, citing an opinion of Judge Van Orsdel. Thus: "It should be
remembered that of the three fundamental principles which underlie government, and for
which government exists, the protection of life, liberty, and property, the chief of these is
property . . . ."
15
The above excerpt from Judge Van Orsdel forms part of his opinion
in Children's Hospital v. Adkins, when decided by the Circuit Court of Appeals.
16

Nonetheless, the social and economic forces at work in the United States to which the new
deal administration of President Roosevelt was most responsive did occasion, as of 1937,
greater receptivity by the American Supreme Court to a philosophy less rigid in its obeisance
to property rights. Earlier legislation deemed offensive to thelaissez-faire concept had met a
dismal fate. Their nullity during his first term could, more often than not, be expected.
17

As a matter of fact, even earlier, in 1935, Professor Coker of Yale, speaking as a historian,
could already discern a contrary drift. Even then he could assert that the range of
governmental activity in the United States had indeed expanded. According to him: "Thus
both liberals and conservatives approve wide and varied governmental intervention; the latter
condemning it, it is true, when the former propose it, but endorsing it, after it has become a
fixed part of the status quo, as so beneficial in its effects that no more of it is needed. Our
history for the last half-century shows that each important governmental intervention we have
adopted has been called socialistic or communistic by contemporary conservatives, and has
later been approved by equally conservative men who now accept it both for its proved
benefits and for the worthy traditions it has come to represent. Both liberal and conservative
supporters of our large-scale business under private ownership advocate or concede the
amounts and kinds of governmental limitation and aid which they regard as necessary to
make the system work efficiently and humanely. Sooner or later, they are willing to have
government intervene for the purpose of preventing the system from being too oppressive to
the masses of the people, protecting it from its self-destructive errors, and coming to its help
in other ways when it appears not to be able to take care of itself."
18

At any rate, by 1943, the United States was reconciled to laissez-faire having lost its
dominance. In the language of Justice Jackson in the leading case of West Virginia State
Board of Education v. Barnette:
19
"We must transplant these rights to a soil in which the
laissez-faire concept or principle of non-interference has withered at least as to economic
affairs, and social advancements are increasingly sought through closer integration of
society and through expanded and strengthened governmental controls."
2. The influence exerted by American constitutional doctrines unavoidable when the
Philippines was still under American rule notwithstanding, an influence that has not
altogether vanished even after independence, thelaissez-faire principle never found full
acceptance in this jurisdiction, even during the period of its full flowering in the United States.
Moreover, to erase any doubts, the Constitutional Convention saw to it that our fundamental
law embodies a policy of the responsibility thrust on government to cope with social and
economic problems and an earnest and sincere commitment to the promotion of the general
welfare through state action. It would thus follow that the force of any legal objection to
regulatory measures adversely affecting property rights or to statutes organizing public
corporations that may engage in competition with private enterprise has been blunted.
Unless there be a clear showing of any invasion of rights guaranteed by the Constitution,
their validity is a foregone conclusion. No fear need be entertained that thereby spheres
hitherto deemed outside government domain have been enchroached upon. With our explicit
disavowal of the "constituent-ministrant" test, the ghost of the laissez-faire concept no longer
stalks the juridical stage.
As early as 1919, in the leading case of Rubi V. Provincial Board of Mindoro,
20
Justice
Malcolm already had occasion to affirm: "The doctrines of laissez-faire and of unrestricted
freedom of the individual, as axioms of economic and political theory, are of the past. The
modern period has shown a widespread belief in the amplest possible demonstration of
governmental activity. The Courts unfortunately have sometimes seemed to trail after the
other two branches of the Government in this progressive march."
It was to be expected then that when he spoke for the Court in Government of the Philippine
Islands v. Springer,
21
a 1927 decision, he found nothing objectionable in the government
itself organizing and investing public funds in such corporations as the National Coal Co., the
Phil. National Bank, the National Petroleum Co., the National Development Co., the National
Cement Co. and the National Iron Co. There was not even a hint that thereby the laissez-
faire concept was not honored at all. It is true that Justice Malcolm concurred with the
majority in People v. Pomar,
22
a 1924 opinion, which held invalid under the due process
clause a provision providing for maternity leave with pay thirty days before and thirty days
after confinement. It could be that he had no other choice as the Philippines was then under
the United States, and only recently the year before, the above-cited case of Adkins v.
Children's Hospital,
23
in line with the laissez-faire principle, did hold that a statute providing
for minimum wages was constitutionally infirm on the same ground.
Our constitution which took effect in 1935, upon the inauguration of the Commonwealth of
the Philippines, erased whatever doubts there might be on that score. Its philosophy is
antithetical to the laissez-faire concept. Delegate, later President, Manuel Roxas, one of the
leading members of the Constitutional Convention, in answer precisely to an objection of
Delegate Jose Reyes of Sorsogon, who noted the "vast extensions in the sphere of
governmental functions" and the "almost unlimited power to interfere in the affairs of industry
and agriculture as well as to compete with existing business" as "reflections of the
fascination exerted by [the then] current tendencies" in other jurisdictions,
24
spoke thus: "My
answer is that this constitution has a definite and well defined philosophy, not only political
but social and economic. A constitution that in 1776 or in 1789 was sufficient in the United
States, considering the problems they had at that time, may not now be sufficient with the
growing and ever-widening complexities of social and economic problems and relations. If
the United States of America were to call a constitutional convention today to draft a
constitution for the United States, does any one doubt that in the provisions of that
constitution there will be found definite declarations of policy as to economic tendencies; that
there will be matters which are necessary in accordance with the experience of the American
people during these years when vast organizations of capital and trade have succeeded to a
certain degree to control the life and destiny of the American people? If in this constitution
the gentleman will find declarations of economic policy, they are there because they are
necessary to safeguard the interests and welfare of the Filipino people because we believe
that the days have come when in self-defense, a nation may provide in its constitution those
safeguards, the patrimony, the freedom to grow, the freedom to develop national aspirations
and national interests, not to be hampered by the artificial boundaries which a constitutional
provision automatically imposes."
25

Delegate Roxas continued further: "The government is the creature of the people and the
government exercises its powers and functions in accordance with the will and purposes of
the people. That is the first principle, the most important one underlying this document.
Second, the government established in this document is, in its form, in our opinion, the most
adapted to prevailing conditions, circumstances and the political outlook of the Filipino
people. Rizal said, 'Every people has the kind of government that they deserve.' That is just
another form of expressing the principle in politics enunciated by the French philosophers
when they said: 'Every people has the right to establish the form of government which they
believe is most conducive to their welfare and their liberty.' Why have we preferred the
government that is established in this draft? Because it is the government with which we are
familiar. It is the form of government fundamentally such as it exists today; because it is the
only kind of government that our people understand; it is the kind of government we have
found to be in consonance with our experience, with the necessary modification, capable of
permitting a fair play of social forces and allowing the people to conduct the affairs of that
government."
26

One of the most prominent delegates, a leading intellectual, former President Rafael Palma
of the University of the Philippines, stressed as a fundamental principle in the draft of the
Constitution the limitation on the right to property. He pointed out that the then prevailing
view allowed the accumulation of wealth in one family down to the last remote descendant,
resulting in a grave disequilibrium and bringing in its wake extreme misery side by side with
conspicuous luxury. He did invite attention to the few millionaires at one extreme with the
vast masses of Filipinos deprived of the necessities of life at the other. He asked the
Convention whether the Filipino people could long remain indifferent to such a deplorable
situation. For him to speak of a democracy under such circumstances would be nothing but
an illusion. He would thus emphasize the urgent need to remedy the grave social injustice
that had produced such widespread impoverishment, thus recognizing the vital role of
government in this sphere.
27

Another delegate, Tomas Confesor of Iloilo, was quite emphatic in his assertion for the need
of a social justice provision which is a departure from the laissez-faire principle. Thus: "Take
the case of the tenancy system in the Philippines. You have a tenant. There are hundreds of
thousands of tenants working day in and day out, cultivating the fields of their landlords. He
puts all his time, all his energy, the labor and the assistance of his wife and children, in
cultivating a piece of ground for his landlord but when the time comes for the partition of the
products of his toil what happens? If he produces 25 cavanes of rice, he gets only perhaps
five and the twenty goes to the landlord. Now can he go to court? Has he a chance to go to
court in order to secure his just share of the products of his toil? No. Under our present
regime of law, under our present regime of justice, you do not give that to the poor tenant.
Gentlemen, you go to the Cagayan Valley and see the condition under which those poor
farmers are being exploited day in and day out. Can they go to court under our present
regime of justice, of liberty, or democracy? The other day, workmen were shot by the police
just because they wanted to increase or they desired that their wages be increased from
thirty centavos a day to forty or fifty centavos. Is it necessary to spill human blood just to
secure an increase of ten centavos in the daily wages of an ordinary laborer? And yet under
our present regime of social justice, liberty and democracy, these things are happening;
these things, I say, are happening. Are those people getting any justice? No. They cannot
get justice now from our courts. For this reason, I say it is necessary that we insert 'social
justice' here and that social justice must be established by law. Proper legal provisions,
proper legal facilities must be provided in order that there be a regime not of justice alone,
because we have that now and we are seeing the oppression arising from such a regime.
Consequently, we must emphasize the term 'social justice'."
28

Delegate Ventenilla of Pangasinan reflected the attitude of the Convention as to why laissez-
faire was no longer acceptable. After speaking of times having changed, he proceeded:
"Since then new problems have arisen. The spiritual mission of government has descended
to the level of the material. Then its function was primarily to soothe the aching spirit. Now, it
appears, it must also appease hunger. Now that we may read history backwards, we know
for instance, that the old theory of 'laissez-faire' has degenerated into 'big business affairs'
which are gradually devouring the rights of the people the same rights intended to be
guarded and protected by the system of constitutional guaranties. Oh, if the Fathers were
now alive to see the changes that the centuries have wrought in our life! They might
contemplate the sad spectacle of organized exploitation greedily devouring the previous
rights of the individual. They might also behold the gradual disintegration of society, the fast
disappearance of the bourgeois the middle class, the backbone of the nation and the
consequent drifting of the classes toward the opposite extremes the very rich and the very
poor."
29

Shortly after the establishment of the Commonwealth, the then Justice Jose P. Laurel,
himself one of the foremost delegates of the Constitutional Convention, in a concurring
opinion, later quoted with approval in the leading case of Antamok Goldfields Mining Co. v.
Court of Industrial Relations,
30
decided in 1940, explained clearly the need for the repudiation
of the laissez-faire doctrine. Thus: "It should be observed at the outset that our Constitution
was adopted in the midst of surging unrest and dissatisfaction resulting from economic and
social distress which was threatening the stability of governments the world over. Alive to the
social and economic forces at work, the framers of our Constitution boldly met the problems
and difficulties which faced them and endeavored to crystallize, with more or less fidelity, the
political, social and economic propositions of their age, and this they did, with the
consciousness that the political and philosophical aphorism of their generation will, in the
language of a great jurist, 'be doubted by the next and perhaps entirely discarded by the
third.' . . . Embodying the spirit of the present epoch, general provisions were inserted in the
Constitution which are intended to bring about the needed social and economic equilibrium
between component elements of society through the application of what may be termed as
the justitia communis advocated by Grotius and Leibnits many years ago to be secured
through the counterbalancing of economic and social forces and opportunities which should
be regulated, if not controlled, by the State or placed, as it were, in custodia societatis. 'The
promotion of social justice to insure the well-being and economic security of all the people'
was thus inserted as vital principle in our Constitution. ... ."
31
In the course of such concurring
opinion and after noting the changes that have taken place stressing that the policy
of laissez-faire had indeed given way to the assumption by the government of the right to
intervene although qualified by the phrase "to some extent", he made clear that the doctrine
in People v. Pomar no longer retain, "its virtuality as a living principle."
32

3. It must be made clear that the objection to the "constituent-ministrant" classification of
governmental functions is not to its formulation as such. From the standpoint of law as logic,
it is not without merit. It has neatness and symmetry. There are hardly any loose ends. It has
the virtue of clarity. It may be said in its favor likewise that it reflects all-too-faithfully
the laissez-faire notion that government cannot extend its operation outside the maintenance
of peace and order, protection against external security, and the administration of justice,
with private rights, especially so in the case of property, being safeguarded and a hint that
the general welfare is not to be entirely ignored.
It must not be lost sight of though that logic and jural symmetry while undoubtedly desirable
are not the prime consideration. This is especially so in the field of public law. What was said
by Holmes, almost nine decades ago, carry greater conviction now. "The life of the law has
not been logic; it has been experience. The felt necessities of the time, the prevalent moral
and political theories, intuitions of public policy avowed or unconscious, even the prejudices
which judges share with their fellow-men, have had a good deal more to do than the
syllogism in determining the rules by which men should be governed."
33
Then too, there was
the warning of Geny cited by Cardozo that undue stress or logic may result in confining the
entire system of positive law, "within a limited number of logical categories, predetermined in
essence, immovable in basis, governed by inflexible dogmas," thus rendering it incapable of
responding to the ever varied and changing exigencies of life.
34,

It is cause enough for concern if the objection to the Bacani decision were to be premised on
the score alone that perhaps there was fidelity to the requirements of logic and jural
symmetry carried to excess. What appears to me much more deplorable is that it did fail to
recognize that there was a repudiation of the laissez-faire concept in the Constitution. As
was set forth in the preceding pages, the Constitution is distinguished precisely by a contrary
philosophy. The regime of liberty if provided for, with the realization that under the then
prevalent social and economic conditions, it may be attained only through a government with
its sphere of activity ranging far and wide, not excluding matters hitherto left to the operation
of free enterprise. As rightfully stressed in our decision today in line with what was earlier
expressed by Justice Laurel, the government that we have established has as a fundamental
principle the promotion of social justice.
35
The same jurist gave it a comprehensive and
enduring definition as the "promotion of the welfare of all the people, the adoption by the
government of measures calculated to insure economic stability of all the component
elements of society, through the maintenance of a proper economic and social equilibrium in
the interrelations of the members of the community, constitutionally, through the adoption of
measures legally justifiable, or extra-constitutionally, through the exercise of powers
underlying the existence of all governments in the time honored principle of salus populi
estsuprema lex."
36

There is thus from the same distinguished pen, this time writing for the Court, a reiteration of
the view of thelaissez-faire doctrine being repugnant to the fundamental law. It must be
added though that the reference to extra-constitutional measures being allowable must be
understood in the sense that there is no infringement of specific constitutional guarantees.
Otherwise, the judiciary will be hard put to sustain their validity if challenged in an
appropriate legal proceeding.
The regime of liberty contemplated in the Constitution with social justice as a fundamental
principle to reinforce the pledge in the preamble of promoting the general welfare reflects
traditional concepts of a democratic policy infused with an awareness of the vital and
pressing need for the government to assume a much more active and vigorous role in the
conduct of public affairs. The framers of our fundamental law were as one in their strongly-
held belief that thereby the grave and serious infirmity then confronting our body-politic, on
the whole still with us now, of great inequality of wealth and mass poverty, with the great bulk
of our people ill-clad, ill-housed, ill-fed, could be remedied. Nothing else than communal
effort, massive in extent and earnestly engaged in, would suffice.
To paraphrase Laski, with the necessary modification in line with such worthy constitutional
ends, we look upon the state as an organization to promote the happiness of individuals, its
authority as a power bound by subordination to that purpose, liberty while to be viewed
negatively as absence of restraint impressed with a positive aspect as well to assure
individual self-fulfillment in the attainment of which greater responsibility is thrust on
government; and rights as boundary marks defining areas outside its domain.
37
From which it
would follow as Laski so aptly stated that it is the individual's "happiness and not its well-
being [that is] the criterion by which its behavior [is] to be judged. His interests, and not its
power, set the limits to the authority it [is] entitled to exercise."
38
We have under such a test
enlarged its field of competence. 4. With the decision reached by us today, the government
is freed from the compulsion exerted by the Bacani doctrine of the "constituent-ministrant"
test as a criterion for the type of activity in which it may engage. Its constricting effect is
consigned to oblivion. No doubts or misgivings need assail us that governmental efforts to
promote the public weal, whether through regulatory legislation of vast scope and amplitude
or through the undertaking of business activities, would have to face a searching and
rigorous scrutiny. It is clear that their legitimacy cannot be challenged on the ground alone of
their being offensive to the implications of the laissez-faire concept. Unless there be a
repugnancy then to the limitations expressly set forth in the Constitution to protect individual
rights, the government enjoys a much wider latitude of action as to the means it chooses to
cope with grave social and economic problems that urgently press for solution. For me, at
least, that is to manifest deference to the philosophy of our fundamental law. Hence my full
concurrence, as announced at the outset.
5. The opinion of Justice Makalintal contains this footnote: "It must be stated, however, that
we do not here decide the question not at issue in this case of whether or not a labor
organization composed employees discharging governmental functions, which is allowed
under the legal provision just quoted, provided such organization does not impose the
obligation to strike or to join in strike, may petition for a certification election and compel the
employer to bargain collectively with it for purposes other than to secure changes or
conditions in the terms and conditions of employment."
With such an affirmation as to the scope of our decision there being no holding on the vexing
question of the effects on the rights of labor in view of the conclusion reached that the
function engaged in is governmental in character, I am in full agreement. The answer to such
a vital query must await another day.


Footnotes
1
Land Authority, Land Bank, Agricultural Productivity Commission; Office of the
Agrarian Counsel.
2
The Land Reform Project Administration is the organization through which the field
operations of member agencies (of which the ACA is one) shall be undertaken by
their respective personnel under a unified administration. (Section 2 of Article 1,
Executive Order No. 75)
3
Section 79 (D) of the Revised Administrative Code provides in part: "The
Department Head, upon the recommendation of the Chief of bureaus or office
concerned, shall appoint all subordinate officers and employees whose appointment
is not expressly vested by law in the President of the Philippines. . . . ."
4
Bacani vs. National Coconut Corporation, G.R. No. L-9657, Nov. 29, 1956, 53 O.G.
p. 2800.
5
Malcolm, The Government of the Philippines, pp. 19-20; Bacani vs. National
Coconut Corporation, supra.
6
It must be stated, however, that we do not here decide the question not at issue
in this case of whether or not a labor organization composed of employees
discharging governmental functions, which is allowed under the legal provision just
quoted provided such organization does not impose the obligation to strike or to join
in strike, may petition for a certification election and compel the employer to bargain
collectively with it for purposes other than to secure changes or modifications in the
terms and conditions of their employment. Withal, it may not be amiss to observe,
albeit obiter, that the right to organize thus allowed would be meaningless unless
there is a correlative right on the part of the organization to be recognized as the
proper representative of the employees and to bargain in their behalf in relation to
matters outside the limitations imposed by the statute, such as those provided for in
Section 28 (b) of Republic Act No. 2260, concerning complaints and grievances of
the employees.
7
Reenacted in Sec. 28 (c) of the Civil Service Act of 1959, R.A. No. 2260.


FERNANDO, J., CONCURRING:


Republic of the Philippines
SUPREME COURT
Manila
EN BANC

G.R. No. L-32052 July 25, 1975
PHILIPPINE VIRGINIA TOBACCO ADMINISTRATION, petitioner,
vs.
COURT OF INDUSTRIAL RELATIONS, REUEL ABRAHAM, MILAGROS ABUEG,
AVELINO ACOSTA, CAROLINA ACOSTA, MARTIN AGSALUD, JOSEFINA AGUINALDO,
GLORIA ALBANO, ANTONIO ALUNING, COSME ALVAREZ, ISABEL ALZATE, AURORA
APUSEN, TOMAS ARCANGEL, LOURDES ARJONELLO, MANUEL AROMIN, DIONISIO
ASISTIN, JOSE AURE, NICASIO AZNAR, EUGENIO AZURIN, CLARITA BACUGAN, PIO
BALAGOT, HEREDIO BALMACEDA, ESTHER BANAAG, JOVENCIO BARBERO,
MONICO BARBADILLO, HERNANDO BARROZO, FILIPINA BARROZO, REMEDIO
BARTOLOME, ANGELINA BASCOS, JOSE BATALLA, ALMARIO BAUTISTA, EUGENIO
BAUTISTA, JR., HERMALO BAUTISTA, JUANITO BAUTISTA, SEVERINO BARBANO,
CAPPIA BARGONIA, ESMERALDA BERNARDEZ, RUBEN BERNARDEZ, ALFREDO
BONGER, TOMAS BOQUIREN, ANGELINA BRAVO, VIRGINIA BRINGA, ALBERTO
BUNEO, SIMEON CABANAYAN, LUCRECIA CACATIAN, LEONIDES CADAY,
ANGELINA CADOTTE, IGNACIO CALAYCAY, PACIFICO CALUB, RUFINO CALUZA,
CALVIN CAMBA, ALFREDO CAMPOSENO, BAGUILITA CANTO, ALFREDO CARRERA,
PEDRO CASES, CRESCENTE CASIS, ERNESTO CASTANEDA, HERMINIO CASTILLO,
JOSE CASTRO, LEONOR CASTRO, MADEO CASTRO, MARIA PINZON CASTRO,
PABLO CATURA, RESTITUTO CESPADES, FLORA CHACON, EDMUNDO CORPUZ,
ESTHER CRUZ, CELIA CUARESMA, AQUILINO DACAYO, DIONISIA DASALLA,
SOCORRO DELFIN, ABELARDO DIAZ, ARTHUR DIAZ, CYNTHIA DIZON, MARCIA
DIZON, ISABELO DOMINGO, HONORATA DOZA, CAROLINA DUAD, JUSTINIANO
EPISTOLA, ROMEO ENCARNACION, PRIMITIVO ESCANO, ELSA ESPEJO, JUAN
ESPEJO, RIZALINA ESQUILLO, YSMAEL FARINAS, LORNA FAVIS, DAN FERNANDEZ,
JAIME FERNANDEZ, ALFREDO FERRER, MODESTO FERRER, JR., EUGENIO
FLANDEZ, GUILLERMO FLORENDO, ALFREDO FLORES, DOMINGA FLORES, ROMEO
FLORES, LIGAYA FONTANILLA, MELCHOR GASMEN, LEILA GASMENA, CONSUELO
GAROLAGA, ALFONSO GOROSPE, CESAR GOROSPE, RICARDO GOROSPE, JR.,
CARLITO GUZMAN, ERNESTO DE GUZMAN, THELMA DE GUZMAN, FELIX
HERNANDEZ, SOLIVEN HERNANDO, FRANCISCO HIDALGO, LEONILO INES, SIXTO
JAQUIES, TRINIDAD JAVIER, FERMIN LAGUA, GUALBERTO LAMBINO, ROMAN
LANTING, OSCAR LAZO, ROSARIO LAZO, JOSEFINA DE LARA, AMBROSIO LAZOL,
NALIE LIBATIQUE, LAMBERTO LLAMAS, ANTONIO LLANES, ROMULA LOPEZ,
ADRIANO LORENZANA, ANTONIO MACARAEG, ILDEFONSO MAGAT, CECILIO
MAGHANOY, ALFONSO MAGSANOC, AVELINA MALLARE, AUGUSTO MANALO,
DOMINADOR MANASAN, BENITO MANECLANG, JR., TIRSO MANGUMAY, EVELIA
MANZANO, HONORANTE MARIANO, DOMINGO MEDINA, MARTIN MENDOZA,
PERFECTO MILANA, EMILIO MILLAN, GREGORIO MONEGAS, CONSOLACION
NAVALTA, NOLI OCAMPO, VICENTE CLEGARIO, ELPIDIO PALMONES, ARACELI
PANGALANGAN, ISIDORO PANLASIGUI, JR., ARTEMIO PARIS, JR., FEDERICO
PAYUMO, JR., NELIA PAYUMO, BITUEN PAZ, FRANCISCO PENGSON, OSCAR
PERALTA, PROCORRO PERALTA, RAMON PERALTA, MINDA PICHAY, MAURO
PIMENTEL, PRUDENCIO PIMENTEL, LEOPOLDO PUNO, REYNALDO RABE,
ROLANDO REA, CONSTANTINO REA, CECILIA RICO, CECILIO RILLORAZA, AURORA
ROMAN, MERCEDES RUBIO, URSULA RUPISAN, OLIVIA SABADO, BERNARDO
SACRAMENTO, LUZ SALVADOR, JOSE SAMSON, JR., ROMULA DE LOS SANTOS,
ANTONIO SAYSON, JR., FLORANTE SERIL, MARIO SISON, RUDY SISON, PROCEDIO
TABIN, LUCENA TABISULA, HANNIBAL TAJANO, ENRIQUE TIANGCO, JR.,
JUSTINIANO TOBIAS, NYMIA TOLENTINO, CONSTANTE TOLENTINO, TEODORO
TOREBIO, FEDERICO TRINIDAD, JOVENCINTO TRINIDAD, LAZARO VALDEZ,
LUDRALINA VALDEZ, MAXIMINA VALDEZ, FRANCISCO VELASCO, JR., ROSITA
VELASCO, SEVERO VANTANILLA, VENANCIO VENTIGAN, FELICITAS VENUS,
NIEVES DE VERA, ELISEO VERSOZA, SILVESTRE VILA, GLORIA VILLAMOR,
ALEJANDRO VELLANUEVA, DAVID VILLANUEVA, CAROLINA VILLASENOR
ORLANDO VILLASTIQUE, MAJELLA VILORIN, ROSARIO VILORIA, MAY VIRATA,
FEDERICO VIRAY, MELBA YAMBAO, MARIO ZAMORA, AUTENOR ABUEG, SOTERO
ACEDO, HONRADO ALBERTO, FELIPE ALIDO, VICENTE ANCHUELO, LIBERTAD
APEROCHO, MARIANO BALBAGO, MARIO BALMACEDA, DAISY BICENIO, SYLVIA
BUSTAMANTE, RAYMUNDO GEMERINO, LAZARO CAPURAS, ROGELIO
CARUNGCONG, ZACARIAS CAYETANO, JR., LILY CHUA, ANDRES CRUZ, ARTURO
CRUZ, BIENVENIDO ESTEBAN, PABLO JARETA, MANUEL JOSE, NESTORIA
KINTANAR, CLEOPATRIA LAZEM. MELCHOR LAZO, JESUS LUNA, GASPAR
MARINAS, CESAR MAULSON, MANUEL MEDINA, JESUS PLURAD, LAKAMBINI
RAZON, GLORIA IBANEZ, JOSE SANTOS, ELEAZAR SQUI, JOSE TAMAYO, FELIPE
TENORIO, SILVINO UMALI, VICENTE ZARA, SATURNINO GARCIA, WILLIAM GARCIA,
NORMA GARINGARAO, ROSARIO ANTONIO, RUBEN BAUTISTA, QUIRINO PUESTO,
NELIA M. GOMERI, OSCAR R. LANUZA, AURORA M. LINDAYA, GREGORIO MOGSINO,
JACRM B. PAPA, GREGORIO R. RIEGO, TERESITA N. ROZUL, MAGTANGOL
SAMALA, PORFIRIO AGOCOLIS, LEONARDO MONTE, HERMELINO PATI, ALFREDO
PAYOYO, PURIFICACION ROJAS, ODANO TEANO, RICARDO SANTIAGO, and
MARCELO MANGAHAS, respondents.
Gov't. Corp. Counsel Leopoldo M. Abellera, Trial Attorneys Manuel M. Lazaro and Vicente
Constantine, Jr., for petitioner.
Renato B. Kare and Simeon C. Sato for private respondents.

FERNANDO, J.:
The principal issue that calls for resolution in this appeal by certiorari from an order of
respondent Court of Industrial Relations is one of constitutional significance. It is concerned
with the expanded role of government necessitated by the increased responsibility to provide
for the general welfare. More specifically, it deals with the question of whether petitioner, the
Philippine Virginia Tobacco Administration, discharges governmental and not proprietary
functions. The landmark opinion of the then Justice, row Chief Justice, Makalintal
in Agricultural Credit and Cooperative Financing Administration v. Confederation of Unions in
Government Corporations and offices, points the way to the right answer.
1
It interpreted the
then fundamental law as hostile to the view of a limited or negative state. It is antithetical to
the laissez faire concept. For as noted in an earlier decision, the welfare state concept "is not
alien to the philosophy of [the 1935] Constitution."
2
It is much more so under the present Charter,
which is impressed with an even more explicit recognition of social and economic rights.
3
There
is manifest, to recall Laski, "a definite increase in the profundity of the social conscience,"
resulting in "a state which seeks to realize more fully the common good of its members."
4
It does
not necessarily follow, however, just because petitioner is engaged in governmental rather than
proprietary functions, that the labor controversy was beyond the jurisdiction of the now defunct
respondent Court. Nor is the objection raised that petitioner does not come within the coverage of
the Eight-Hour Labor Law persuasive.
5
We cannot then grant the reversal sought. We affirm.
The facts are undisputed. On December 20, 1966, claimants, now private respondents, filed
with respondent Court a petition wherein they alleged their employment relationship, the
overtime services in excess of the regular eight hours a day rendered by them, and the
failure to pay them overtime compensation in accordance with Commonwealth Act No. 444.
Their prayer was for the differential between the amount actually paid to them and the
amount allegedly due them.
6
There was an answer filed by petitioner Philippine Virginia
Tobacco Administration denying the allegations and raising the special defenses of lack of a
cause of action and lack of jurisdiction.
7
The issues were thereafter joined, and the case set for
trial, with both parties presenting their evidence.
8
After the parties submitted the case for
decision, the then Presiding Judge Arsenio T. Martinez of respondent Court issued an order
sustaining the claims of private respondents for overtime services from December 23, 1963 up to
the date the decision was rendered on March 21, 1970, and directing petitioner to pay the same,
minus what it had already paid. 9 There was a motion for reconsideration, but respondent Court en banc denied the
same.
10
Hence this petition for certiorari.
Petitioner Philippine Virginia Tobacco Administration, as had been noted, would predicate its
plea for the reversal of the order complained of on the basic proposition that it is beyond the
jurisdiction of respondent Court as it is exercising governmental functions and that it is
exempt from the operation of Commonwealth Act No. 444.
11
While, to repeat, its submission
as to the governmental character of its operation is to be given credence, it is not a necessary
consequence that respondent Court is devoid of jurisdiction. Nor could the challenged order be
set aside on the additional argument that the Eight-Hour Labor Law is not applicable to it. So it
was, at the outset, made clear.
1. A reference to the enactments creating petitioner corporation suffices to demonstrate the
merit of petitioner's plea that it performs governmental and not proprietary functions. As
originally established by Republic Act No. 2265,
12
its purposes and objectives were set forth
thus: "(a) To promote the effective merchandising of Virginia tobacco in the domestic and foreign
markets so that those engaged in the industry will be placed on a basis of economic security; (b)
To establish and maintain balanced production and consumption of Virginia tobacco and its
manufactured products, and such marketing conditions as will insure and stabilize the price of a
level sufficient to cover the cost of production plus reasonable profit both in the local as well as in
the foreign market; (c) To create, establish, maintain, and operate processing, warehousing and
marketing facilities in suitable centers and supervise the selling and buying of Virginia tobacco so
that the farmers will enjoy reasonable prices that secure a fair return of their investments; (d) To
prescribe rules and regulations governing the grading, classifying, and inspecting of Virginia
tobacco; and (e) To improve the living and economic conditions of the people engaged in the
tobacco industry."
13
The amendatory statute, Republic Act No. 4155,
14
renders even more
evident its nature as a governmental agency. Its first section on the declaration of policy reads: "It
is declared to be the national policy, with respect to the local Virginia tobacco industry, to
encourage the production of local Virginia tobacco of the qualities needed and in quantities
marketable in both domestic and foreign markets, to establish this industry on an efficient and
economic basis, and, to create a climate conducive to local cigarette manufacture of the qualities
desired by the consuming public, blending imported and native Virginia leaf tobacco to improve
the quality of locally manufactured cigarettes."
15
The objectives are set forth thus: "To attain this
national policy the following objectives are hereby adopted: 1. Financing; 2. Marketing; 3. The
disposal of stocks of the Agricultural Credit Administration (ACA) and the Philippine Virginia
Tobacco Administration (PVTA) at the best obtainable prices and conditions in order that a
reinvigorated Virginia tobacco industry may be established on a sound basis; and 4. Improving
the quality of locally manufactured cigarettes through blending of imported and native Virginia leaf
tobacco; such importation with corresponding exportation at a ratio of one kilo of imported to four
kilos of exported Virginia tobacco, purchased by the importer-exporter from the Philippine Virginia
Tobacco Administration."
16

It is thus readily apparent from a cursory perusal of such statutory provisions why petitioner
can rightfully invoke the doctrine announced in the leading Agricultural Credit and
Cooperative Financing Administration decision
17
and why the objection of private respondents
with its overtones of the distinction between constituent and ministrant functions of governments
as set forth in Bacani v. National Coconut Corporation
18
if futile. The irrelevance of such a
distinction considering the needs of the times was clearly pointed out by the present Chief
Justice, who took note, speaking of the reconstituted Agricultural Credit Administration, that
functions of that sort "may not be strictly what President Wilson described as "constituent" (as
distinguished from "ministrant"),such as those relating to the maintenance of peace and the
prevention of crime, those regulating property and property rights, those relating to the
administration of justice and the determination of political duties of citizens, and those relating to
national defense and foreign relations. Under this traditional classification, such constituent
functions are exercised by the State as attributes of sovereignty, and not merely to promote the
welfare, progress and prosperity of the people these latter functions being ministrant, the
exercise of which is optional on the part of the government."
19
Nonetheless, as he explained so
persuasively: "The growing complexities of modern society, however, have rendered this
traditional classification of the functions of government quite unrealistic, not to say obsolete. The
areas which used to be left to private enterprise and initiative and which the government was
called upon to enter optionally, and only "because it was better equipped to administer for the
public welfare than is any private individual or group of individuals", continue to lose their well-
defined boundaries and to be absorbed within activities that the government must undertake in its
sovereign capacity if it is to meet the increasing social challenges of the times. Here as almost
everywhere else the tendency is undoubtedly towards a greater socialization of economic forces.
Here of course this development was envisioned, indeed adopted as a national policy, by the
Constitution itself in its declaration of principle concerning the promotion of social justice."
20
Thus
was laid to rest the doctrine in Bacani v. National Coconut Corporation,
21
based on the Wilsonian
classification of the tasks incumbent on government into constituent and ministrant in accordance
with the laissez faire principle. That concept, then dominant in economics, was carried into the
governmental sphere, as noted in a textbook on political science,
22
the first edition of which was
published in 1898, its author being the then Professor, later American President, Woodrow
Wilson. He took pains to emphasize that what was categorized by him as constituent functions
had its basis in a recognition of what was demanded by the "strictest [concept of] laissez faire, [as
they] are indeed the very bonds of society."
23
The other functions he would minimize as
ministrant or optional.
It is a matter of law that in the Philippines, the laissez faire principle hardly commanded the
authoritative position which at one time it held in the United States. As early as 1919, Justice
Malcolm in Rubi v. Provincial Board
24
could affirm: "The doctrines of laissez faire and of
unrestricted freedom of the individual, as axioms of economic and political theory, are of the past.
The modern period has shown a widespread belief in the amplest possible demonstration of
government activity."
25
The 1935 Constitution, as was indicated earlier, continued that approach.
As noted in Edu v. Ericta:
26
"What is more, to erase any doubts, the Constitutional Convention
saw to it that the concept of laissez-faire was rejected. It entrusted to our government the
responsibility of coping with social and economic problems with the commensurate power of
control over economic affairs. Thereby it could live up to its commitment to promote the general
welfare through state action."
27
Nor did the opinion in Edu stop there: "To repeat, our Constitution
which took effect in 1935 erased whatever doubts there might be on that score. Its philosophy is a
repudiation of laissez-faire. One of the leading members of the Constitutional Convention, Manuel
A. Roxas, later the first President of the Republic, made it clear when he disposed of the
objection of Delegate Jose Reyes of Sorsogon, who noted the "vast extensions in the sphere of
governmental functions" and the "almost unlimited power to interfere in the affairs of industry and
agriculture as well as to compete with existing business" as "reflections of the fascination exerted
by [the then] current tendencies' in other jurisdictions. He spoke thus: "My answer is that this
constitution has a definite and well defined philosophy, not only political but social and
economic.... If in this Constitution the gentlemen will find declarations of economic policy they are
there because they are necessary to safeguard the interest and welfare of the Filipino people
because we believe that the days have come when in self-defense, a nation may provide in its
constitution those safeguards, the patrimony, the freedom to grow, the freedom to develop
national aspirations and national interests, not to be hampered by the artificial boundaries which a
constitutional provision automatically imposes."
28

It would be then to reject what was so emphatically stressed in the Agricultural Credit
Administration decision about which the observation was earlier made that it reflected the
philosophy of the 1935 Constitution and is even more in consonance with the expanded role
of government accorded recognition in the present Charter if the plea of petitioner that it
discharges governmental function were not heeded. That path this Court is not prepared to
take. That would be to go backward, to retreat rather than to advance. Nothing can thus be
clearer than that there is no constitutional obstacle to a government pursuing lines of
endeavor, formerly reserved for private enterprise. This is one way, in the language of Laski,
by which through such activities, "the harsh contract which [does] obtain between the levels
of the rich and the poor" may be minimized.
29
It is a response to a trend noted by Justice
Laurel in Calalang v. Williams
30
for the humanization of laws and the promotion of the interest of
all component elements of society so that man's innate aspirations, in what was so felicitously
termed by the First Lady as "a compassionate society" be attained.
31

2. The success that attended the efforts of petitioner to be adjudged as performing
governmental rather than proprietary functions cannot militate against respondent Court
assuming jurisdiction over this labor dispute. So it was mentioned earlier. As far back
as Tabora v. Montelibano,
32
this Court, speaking through Justice Padilla, declared: The NARIC
was established by the Government to protect the people against excessive or unreasonable rise
in the price of cereals by unscrupulous dealers. With that main objective there is no reason why
its function should not be deemed governmental. The Government owes its very existence to that
aim and purpose to protect the people."
33
In a subsequent case, Naric Worker's Union v. Hon.
Alvendia,
34
decided four years later, this Court, relying on Philippine Association of Free Labor
Unions v. Tan,
35
which specified the cases within the exclusive jurisdiction of the Court of
Industrial Relations, included among which is one that involves hours of employment under the
Eight-Hour Labor Law, ruled that it is precisely respondent Court and not ordinary courts that
should pass upon that particular labor controversy. For Justice J. B. L. Reyes, the ponente, the
fact that there were judicial as well as administrative and executive pronouncements to the effect
that the Naric was performing governmental functions did not suffice to confer competence on the
then respondent Judge to issue a preliminary injunction and to entertain a complaint for damages,
which as pointed out by the labor union, was connected with an unfair labor practice. This is
emphasized by the dispositive portion of the decision: "Wherefore, the restraining orders
complained of, dated May 19, 1958 and May 27, 1958, are set aside, and the complaint is
ordered dismissed, without prejudice to the National Rice and Corn Corporation's seeking
whatever remedy it is entitled to in the Court of Industrial Relations."
36
Then, too, in a case
involving petitioner itself, Philippine Virginia Tobacco Administration,
37
where the point in dispute
was whether it was respondent Court or a court of first instance that is possessed of competence
in a declaratory relief petition for the interpretation of a collective bargaining agreement, one that
could readily be thought of as pertaining to the judiciary, the answer was that "unless the law
speaks clearly and unequivocally, the choice should fall on the Court of Industrial
Relations."
38
Reference to a number of decisions which recognized in the then respondent Court
the jurisdiction to determine labor controversies by government-owned or controlled corporations
lends to support to such an approach.
39
Nor could it be explained only on the assumption that
proprietary rather than governmental functions did call for such a conclusion. It is to be admitted
that such a view was not previously bereft of plausibility. With the aforecited Agricultural Credit
and Cooperative Financing Administration decision rendering obsolete the Bacani doctrine, it has,
to use a Wilsonian phrase, now lapsed into "innocuous desuetude."
40
Respondent Court clearly
was vested with jurisdiction.
3. The contention of petitioner that the Eight-Hour Labor Law
41
does not apply to it hardly
deserves any extended consideration. There is an air of casualness in the way such an argument
was advanced in its petition for review as well as in its brief. In both pleadings, it devoted less
than a full page to its discussion. There is much to be said for brevity, but not in this case. Such a
terse and summary treatment appears to be a reflection more of the inherent weakness of the
plea rather than the possession of an advocate's enviable talent for concision. It did cite Section 2
of the Act, but its very language leaves no doubt that "it shall apply to all persons employed in
any industry or occupation, whether public or private ... ."
42
Nor are private respondents included
among the employees who are thereby barred from enjoying the statutory benefits. It
cited Marcelo v. Philippine National Red Cross
43
and Boy Scouts of the Philippines v.
Araos.
44
Certainly, the activities to which the two above public corporations devote themselves
can easily be distinguished from that engaged in by petitioner. A reference to the pertinent
sections of both Republic Acts 2265 and 2155 on which it relies to obtain a ruling as to its
governmental character should render clear the differentiation that exists. If as a result of the
appealed order, financial burden would have to be borne by petitioner, it has only itself to blame.
It need not have required private respondents to render overtime service. It can hardly be
surmised that one of its chief problems is paucity of personnel. That would indeed be a cause for
astonishment. It would appear, therefore, that such an objection based on this ground certainly
cannot suffice for a reversal. To repeat, respondent Court must be sustained.
WHEREFORE, the appealed Order of March 21, 1970 and the Resolution of respondent
Court en banc of May 8, 1970 denying a motion for reconsideration are hereby affirmed. The
last sentence of the Order of March 21, 1970 reads as follows: "To find how much each of
them [private respondents] is entitled under this judgment, the Chief of the Examining
Division, or any of his authorized representative, is hereby directed to make a reexamination
of records, papers and documents in the possession of respondent PVTA pertinent and
proper under the premises and to submit his report of his findings to the Court for further
disposition thereof." Accordingly, as provided by the New Labor Code, this case is referred to
the National Labor Relations Commission for further proceedings conformably to law. No
costs.
Makalintal, C.J., Castro, Barredo, Antonio, Esguerra, Aquino, Concepcion Jr. and Martin, JJ.,
concur.
Makasiar, Muoz Palma, JJ., took no part.
Teehankee J., is on leave.


Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-18967 January 31, 1966
REPUBLIC OF THE PHILIPPINES, plaintiff-appellant,
vs.
GREGORIO RODRIGUEZ, defendant-appellee.
Office of the Solicitor General for the plaintiff and appellant.
C. Teehankee for the defendant and appellee.
BENGZON, C.J.:
This is an appeal from the order of the Court of First Instance of Negros Occidental
dismissing, on the ground of prescription, the plaintiff's complaint.
The material facts are as follows: On June 30, 1943, defendant Gregorio Rodriguez obtained
a loan of P172.00 from the Bank of Taiwan, Ltd. payable on June 30, 1944; and on
November 1, 1943, he obtained another loan of P150.00 from the same bank without
maturity date (hence payable on demand). These two loans are evidenced by two
promissory notes, the payment of which was secured by a chattel mortgage.
On January 21, 1946, the aforesaid two loans which remained unpaid became vested in the
United States of America, thru its Alien Property Custodian, pursuant to the United States
Trading with the Enemy Act, as amended, and under its Vesting Order No. P-4. On July 20,
1954, these unpaid accounts were together with other assets of said banks "transferred,
conveyed and assigned to the Government of the Philippines by virtue of the Transfer
Agreement executed on that date between the United States and the Philippine
governments.1wph1.t
On October 1, 1954 and November 17, 1958, the plaintiff Republic made written demands
upon defendant for payment. Upon his failure, plaintiff filed this complaint before the justice
of the peace court of La Carlota, Negros Occidental, in June, 1960, to recover the two sums
and attorney's fees and costs. A few days later, the defendant moved to dismiss on the
ground that plaintiff's cause of action had already prescribed; but said motion was denied.
However, after a hearing on the merits, said justice of the peace court rendered judgment
dismissing the complaint on the ground of prescription. Plaintiff then appealed to the Court of
First Instance of Negros Occidental. Therein the defendant again filed a motion to dismiss on
the ground of prescription; and that court, upholding the motion, dismissed the case. Hence
this appeal, directly to this Court because only questions of law are involved.
Has the action prescribed? We have recently held in Republic vs. Grijaldo, G.R. No. L-
20240, December 31, 1965, that these notes of the Bank of Taiwan, Ltd. are being enforced
by the Republic in its sovereign role, and that the statute of limitations does not run against it
(Government of P.I. vs. Monte de Piedad, 35 Phil. 738-751). But as this Republic became
the owner of the notes on July 20, 1954, the real question arises whether on that date, action
on the notes had already prescribed; because if they had, the Republic got nothing notes
that had already become unenforceable.
As stated, the first note matured on June 30, 1944; and the second became payable on
November 1, 1943. So at the time the Government of the Republic got ownership of the
credit (1954), more than ten years had already elapsed. The Civil Code and Act 190 fix ten
years as the prescriptive period for this kind of obligation and action.
At first glance, the period of prescription has lapsed. However, the Government argues that
from the period of 1943-1954, must be deducted the time when the Moratorium Law was in
force, because it tolled or suspended the running of the statute of limitations. The other side
replies that as the Moratorium did not bind the Republic of the Philippines or the Government
of the United States, the running of the prescriptive period was never interrupted, and
therefore, more than ten years having elapsed, the notes prescribed.
It will be recalled that the Moratorium Law was established by Executive Orders Nos. 25 and
32, dated November 18, 1944, and March 10, 1945, respectively. At that time, these credits
belonged to the Bank of Taiwan. The Moratorium Law bound it. Therefore, as to it, the
prescriptive period was tolled. As it was only on January 21, 1946, that it lost ownership to
the United States Government, more than one year must be deducted from the period from
November, 1943 to July, 1954; with the result that, for purposes of prescription, less than ten
years had elapsed when (in July, 1954) the Republic became the owner of the promissory
notes. It must be remembered that from that time (July, 1954), the prescriptive period
stopped to run against the Republic of the Philippine Islands.
Prescription does not run against the State (Art. 1108, New Civil Code).
It may be added in this connection that after Independence in July, 1946, the United States
Government became a foreign country, lost its sovereignty over these Islands, and therefore,
could not sue, by reason of the Moratorium Law, which lost its force only on May 18,
1953.
1
So the period between July, 1946 to May, 1953 (about 7 years) should be deducted in
computing the period of prescription. This is practically what we held in the Grijaldo
case, supra.
For the foregoing reasons, we are of the opinion, and so hold, that this action of the Republic
has not prescribed. The order is reversed and the record remanded for further proceedings.
So ordered.
Bautista Angelo, Concepcion, Reyes, J.B.L., Barrera, Dizon, Regala, Bengzon, J.P. and
Zaldivar, concur.
Makalintal and Sanchez, JJ., took no part.



Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-9959 December 13, 1916
THE GOVERNMENT OF THE PHILIPPINE ISLANDS, represented by the Treasurer of
the Philippine Islands,plaintiff-appellee,
vs.
EL MONTE DE PIEDAD Y CAJA DE AHORRAS DE MANILA, defendant-appellant.
William A. Kincaid and Thomas L. Hartigan for appellant.
Attorney-General Avancea for appellee.

TRENT, J.:
About $400,000, were subscribed and paid into the treasury of the Philippine Islands by the
inhabitants of the Spanish Dominions of the relief of those damaged by the earthquake which
took place in the Philippine Islands on June 3, 1863. Subsequent thereto and on October 6
of that year, a central relief board was appointed, by authority of the King of Spain, to
distribute the moneys thus voluntarily contributed. After a thorough investigation and
consideration, the relief board allotted $365,703.50 to the various sufferers named in its
resolution, dated September 22, 1866, and, by order of the Governor-General of the
Philippine Islands, a list of these allotments, together with the names of those entitled
thereto, was published in the Official Gazette of Manila dated April 7, 1870. There was later
distributed, inaccordance with the above-mentioned allotments, the sum of $30,299.65,
leaving a balance of S365,403.85 for distribution. Upon the petition of the governing body of
the Monte de Piedad, dated February 1, 1833, the Philippine Government, by order dated
the 1st of that month, directed its treasurer to turn over to the Monte de Piedad the sum of
$80,000 of the relief fund in installments of $20,000 each. These amounts were received on
the following dates: February 15, March 12, April 14, and June 2, 1883, and are still in the
possession of the Monte de Piedad. On account of various petitions of the persons, and
heirs of others to whom the above-mentioned allotments were made by the central relief
board for the payment of those amounts, the Philippine Islands to bring suit against
the Monte de Piedad a recover, "through the Attorney-General and in representation of the
Government of the Philippine Islands," the $80.000, together with interest, for the benefit of
those persons or their heirs appearing in the list of names published in the Official Gazette
instituted on May 3, 1912, by the Government of the Philippine Islands, represented by the
Insular Treasurer, and after due trial, judgment was entered in favor of the plaintiff for the
sum of $80,000 gold or its equivalent in Philippine currency, together with legal interest from
February 28, 1912, and the costs of the cause. The defendant appealed and makes the
following assignment of errors:
1. The court erred in not finding that the eighty thousand dollars ($80,000), give to
the Monte de Piedad y Caja de Ahorros, were so given as a donation subject to one
condition, to wit: the return of such sum of money to the Spanish Government of
these Islands, within eight days following the day when claimed, in case the Supreme
Government of Spain should not approve the action taken by the former government.
2. The court erred in not having decreed that this donation had been cleared; said
eighty thousand dollars ($80,000) being at present the exclusive property of the
appellant the Monte de Piedad y Caja de Ahorros.
3. That the court erred in stating that the Government of the Philippine Islands has
subrogated the Spanish Government in its rights, as regards an important sum of
money resulting from a national subscription opened by reason of the earthquake of
June 3, 1863, in these Island.
4. That the court erred in not declaring that Act Numbered 2109, passed by the
Philippine Legislature on January 30, 1912, is unconstitutional.
5. That the court erred in holding in its decision that there is no title for the
prescription of this suit brought by the Insular Government against the Monte de
Piedad y Caja de Ahorros for the reimbursement of the eighty thousand dollars
($80,000) given to it by the late Spanish Government of these Islands.
6. That the court erred in sentencing the Monte de Piedad y Caja de Ahorros to
reimburse the Philippine Government in the sum of eighty thousand dollars ($80,000)
gold coin, or the equivalent thereof in the present legal tender currency in circulation,
with legal interest thereon from February 28th, 1912, and the costs of this suit.
In the royal order of June 29, 1879, the Governor-General of the Philippine Islands was
directed to inform the home Government in what manner the indemnity might be paid to
which, by virtue of the resolutions of the relief board, the persons who suffered damage by
the earthquake might be entitled, in order to perform the sacred obligation which the
Government of Spain had assumed toward the donors.
The next pertinent document in order is the defendant's petition, dated February 1, 1883,
addressed to the Governor-General of the Philippine Islands, which reads:
Board of Directors of the Monte de Piedad of Manila Presidencia.
Excellency: The Board of Directors of the Monte de Piedad y Caja de Ahorros of
Manila informs your Excellency, First: That the funds which it has up to the present
been able to dispose of have been exhausted in loans on jewelry, and there only
remains the sum of one thousand and odd pesos, which will be expended between
to-day and day after tomorrow. Second: That, to maintain the credit of the
establishment, which would be greatly injured were its operations suspended, it is
necessary to procure money. Third: That your Excellency has proposed to His
Majesty's Government to apply to the funds of theMonte de Piedad a part of the
funds held in the treasury derived form the national subscription for the relief of the
distress caused by the earthquake of 1863. Fourth: That in the public treasury there
is held at the disposal of the central earthquake relief board over $1090,000 which
was deposited in the said treasury by order of your general Government, it having
been transferred thereto from the Spanish-Filipino Bank where it had been held. fifth:
That in the straightened circumstances of the moment, your Excellency can, to avert
impending disaster to the Monte de Piedad, order that, out of that sum of one
hundred thousand pesos held in the Treasury at the disposal of the central relief
board, there be transferred to the Monte de Piedadthe sum of $80,000, there to be
held under the same conditions as at present in the Treasury, to wit, at the disposal
of the Relief Board. Sixth: That should this transfer not be approved for any reason,
either because of the failure of His Majesty's Government to approve the proposal
made by your Excellency relative to the application to the needs of the Monte de
Piedad of a pat of the subscription intended to believe the distress caused by the
earthquake of 1863, or for any other reason, the board of directors of the Monte de
Piedad obligates itself to return any sums which it may have received on account of
the eighty thousand pesos, or the whole thereof, should it have received the same,
by securing a loan from whichever bank or banks may lend it the money at the
cheapest rate upon the security of pawned jewelry. This is an urgent measure to
save the Monte de Piedad in the present crisis and the board of directors trusts to
secure your Excellency's entire cooperation and that of the other officials who have
take part in the transaction.
The Governor-General's resolution on the foregoing petition is as follows:
GENERAL GOVERNMENT OF THE PHILIPPINES.
MANILA, February 1, 1883.
In view of the foregoing petition addressed to me by the board of directors of
the Monte de Piedad of this city, in which it is stated that the funds which the said
institution counted upon are nearly all invested in loans on jewelry and that the small
account remaining will scarcely suffice to cover the transactions of the next two days,
for which reason it entreats the general Government that, in pursuance of its
telegraphic advice to H. M. Government, the latter direct that there be turned over to
said Monte de Piedad $80,000 out of the funds in the public treasury obtained from
the national subscription for the relief of the distress caused by the earthquake of
1863, said board obligating itself to return this sum should H. M. Government, for any
reason, not approve the said proposal, and for this purpose it will procure funds by
means of loans raised on pawned jewelry; it stated further that if the aid so solicited
is not furnished, it will be compelled to suspend operations, which would seriously
injure the credit of so beneficient an institution; and in view of the report upon the
matter made by the Intendencia General de Hacienda; and considering the fact that
the public treasury has on hand a much greater sum from the source mentioned than
that solicited; and considering that this general Government has submitted for the
determination of H. M. Government that the balance which, after strictly applying the
proceeds obtained from the subscription referred to, may remain as a surplus should
be delivered to the Monte de Piedad, either as a donation, or as a loan upon the
security of the credit of the institution, believing that in so doing the wishes of the
donors would be faithfully interpreted inasmuch as those wishes were no other than
to relieve distress, an act of charity which is exercised in the highest degree by
the Monte de Piedad, for it liberates needy person from the pernicious effects of
usury; and
Considering that the lofty purposes that brought about the creation of the pious
institution referred to would be frustrated, and that the great and laudable work of its
establishment, and that the great and laudable and valuable if the aid it urgently
seeks is not granted, since the suspension of its operations would seriously and
regrettably damage the ever-growing credit of the Monte de Piedad; and
Considering that if such a thing would at any time cause deep distress in the public
mind, it might be said that at the present juncture it would assume the nature of a
disturbance of public order because of the extreme poverty of the poorer classes
resulting from the late calamities, and because it is the only institution which can
mitigate the effects of such poverty; and
Considering that no reasonable objection can be made to granting the request herein
contained, for the funds in question are sufficiently secured in the unlikely event that
H> M. Government does not approve the recommendation mentioned, this general
Government, in the exercise of the extraordinary powers conferred upon it and in
conformity with the report of the Intendencia de Hacienda, resolves as follows:
First. Authority is hereby given to deliver to the Monte de Piedad, out of the sum held
in the public treasury of these Islands obtained from the national subscription opened
by reason of the earthquakes of 1863, amounts up to the sum $80,000, as its needs
may require, in installments of $20,000.
Second. The board of directors of the Monte de Piedad is solemnly bound to return,
within eight days after demand, the sums it may have so received, if H. M.
Government does not approve this resolution.
Third. The Intendencia General de Hacienda shall forthwith, and in preference to all
other work, proceed to prepare the necessary papers so that with the least possible
delay the payment referred to may be made and the danger that menaces the Monte
de Piedad of having to suspend its operations may be averted.
H. M. Government shall be advised hereof.lawphi1.net
(Signed) P. DE RIVERA.
By the royal order of December 3, 1892, the Governor-General of the Philippine Islands was
ordered to "inform this ministerio what is the total sum available at the present time, taking
into consideration the sums delivered to the Monte de Piedad pursuant to the decree issued
by your general Government on February 1, 1883," and after the rights of the claimants,
whose names were published in the Official Gazette of Manila on April 7, 1870, and their
heirs had been established, as therein provided, as such persons "have an unquestionable
right to be paid the donations assigned to them therein, your general Government shall
convoke them all within a reasonable period and shall pay their shares to such as shall
identify themselves, without regard to their financial status," and finally "that when all the
proceedings and operations herein mentioned have been concluded and the Government
can consider itself free from all kinds of claims on the part of those interested in the
distribution of the funds deposited in the vaults of the Treasury, such action may be taken as
the circumstances shall require, after first consulting the relief board and your general
Government and taking account of what sums have been delivered to the Monte de
Piedad and those that were expended in 1888 to relieve public calamities," and "in order that
all the points in connection with the proceedings had as a result of the earthquake be clearly
understood, it is indispensable that the offices hereinbefore mentioned comply with the
provisions contained in paragraphs 2 and 3 of the royal order of June 25, 1879." On receipt
of this Finance order by the Governor-General, the Department of Finance was called upon
for a report in reference to the $80,000 turned over to the defendant, and that Department's
report to the Governor-General dated June 28, 1893, reads:
Intendencia General de Hacienda de Filipinas (General Treasury of the Philippines)
Excellency. By Royal Order No. 1044 of December 3, last, it is provided that
the persons who sustained losses by the earthquakes that occurred in your capital in
the year 1863 shall be paid the amounts allotted to them out of the sums sent from
Spain for this purpose, with observance of the rules specified in the said royal order,
one of them being that before making the payment to the interested parties the
assets shall be reduced to money. These assets, during the long period of time that
has elapsed since they were turned over to the Treasury of the Philippine Islands,
were used to cover the general needs of the appropriation, a part besides being
invested in the relief of charitable institutions and another part to meet pressing
needs occasioned by public calamities. On January 30, last, your Excellency was
please to order the fulfillment of that sovereign mandate and referred the same to
this Intendencia for its information and the purposes desired (that is, for compliance
with its directions and, as aforesaid, one of these being the liquidation, recovery, and
deposit with the Treasury of the sums paid out of that fund and which were expended
in a different way from that intended by the donors) and this Intendencia believed the
moment had arrived to claim from the board of directors of the Monte de Piedad y
Caja de Ahorros the sum of 80,000 pesos which, by decree of your general
Government of the date of February 1, 1883, was loaned to it out of the said funds,
the (Monte de Piedad) obligating itself to return the same within the period of eight
days if H. M. Government did not approve the delivery. On this Intendencia's
demanding from the Monte de Piedad the eighty thousand pesos, thus complying
with the provisions of the Royal Order, it was to be supposed that no objection to its
return would be made by the Monte de Piedad for, when it received the loan, it
formally engaged itself to return it; and, besides, it was indisputable that the moment
to do so had arrived, inasmuch as H. M. Government, in ordering that the assets of
the earthquake relief fund should he collected, makes express mention of the 80,000
pesos loaned to the Monte de Piedad, without doubt considering as sufficient the
period of ten years during which it has been using this large sum which lawfully
belongs to their persons. This Intendencia also supposed that the Monte de
Piedad no longer needed the amount of that loan, inasmuch as, far from investing it
in beneficient transactions, it had turned the whole amount into the voluntary deposit
funds bearing 5 per cent interests, the result of this operation being that the debtor
loaned to the creditor on interest what the former had gratuitously received. But
the Monte de Piedad, instead of fulfilling the promise it made on receiving the sum,
after repeated demands refused to return the money on the ground that only your
Excellency, and not the Intendencia (Treasury), is entitled to order the
reimbursement, taking no account of the fact that this Intendencia was acting in the
discharge of a sovereign command, the fulfillment of which your Excellency was
pleased to order; and on the further ground that the sum of 80,000 pesos which it
received from the fund intended for the earthquake victims was not received as a
loan, but as a donation, this in the opinion of this Intendencia, erroneously
interpreting both the last royal order which directed the apportionment of the amount
of the subscription raised in the year 1863 and the superior decree which granted the
loan, inasmuch as in this letter no donation is made to the Monte de Piedad of the
80,000 pesos, but simply a loan; besides, no donation whatever could be made of
funds derived from a private subscription raised for a specific purpose, which funds
are already distributed and the names of the beneficiaries have been published in
the Gaceta, there being lacking only the mere material act of the delivery, which has
been unduly delayed. In view of the unexpected reply made by the Monte de Piedad,
and believing it useless to insist further in the matter of the claim for the
aforementioned loan, or to argue in support thereof, this Intendencia believes the
intervention of your Excellency necessary in this matter, if the royal Order No. 1044
of December 3, last, is to be complied with, and for this purpose I beg your
Excellency kindly to order the Monte de Piedad to reimburse within the period of
eight days the 80,000 which it owes, and that you give this Intendencia power to
carry out the provisions of the said royal order. I must call to the attention of your
Excellency that the said pious establishment, during the last few days and after
demand was made upon it, has endorsed to the Spanish-Filipino Bank nearly the
whole of the sum which it had on deposit in the general deposit funds.
The record in the case under consideration fails to disclose any further definite action taken
by either the Philippine Government or the Spanish Government in regard to the $80,000
turned over to the Monte de Piedad.
In the defendant's general ledger the following entries appear: "Public Treasury: February
15, 1883, $20,000; March 12, 1883, $20,000; April 14, 1883, $20,000; June 2, 1883,
$20,000, total $80,000." The book entry for this total is as follows: "To the public Treasury
derived from the subscription for the earthquake of 1863, $80,000 received from general
Treasury as a returnable loan, and without interest." The account was carried in this manner
until January 1, 1899, when it was closed by transferring the amount to an account called
"Sagrada Mitra," which latter account was a loan of $15,000 made to the defendant by the
Archbishop of Manila, without interest, thereby placing the "Sagrada Mitra" account at
$95,000 instead of $15,000. The above-mentioned journal entry for January 1, 1899, reads:
"Sagrada Mitra and subscription, balance of these two account which on this date are united
in accordance with an order of the Exmo. Sr. Presidente of the Council transmitted verbally
to the Presidente Gerente of these institutions, $95,000."
On March 16, 1902, the Philippine government called upon the defendant for information
concerning the status of the $80,000 and received the following reply:
MANILA, March 31, 1902.
To the Attorney-General of the Department of Justice of the Philippine
Islands.
SIR: In reply to your courteous letter of the 16th inst., in which you request
information from this office as to when and for what purpose the Spanish
Government delivered to the Monte de Piedad eighty thousand pesos obtained from
the subscription opened in connection with the earthquake of 1863, as well as any
other information that might be useful for the report which your office is called upon
to furnish, I must state to your department that the books kept in these Pious
Institutions, and which have been consulted for the purpose, show that on the 15th of
February, 1883, they received as a reimbursable loan and without interest, twenty
thousand pesos, which they deposited with their own funds. On the same account
and on each of the dates of March 12, April 14 and June 2 of the said year, 1883,
they also received and turned into their funds a like sum of twenty thousand pesos,
making a total of eighty thousand pesos. (Signed) Emilio Moreta.
I hereby certify that the foregoing is a literal copy of that found in the letter book No. 2
of those Pious Institutions.
Manila, November 19, 1913
(Sgd.) EMILIO LAZCANOTEGUI,
Secretary
(Sgd.) O. K. EMILIO MORETA,
Managing Director.
The foregoing documentary evidence shows the nature of the transactions which took place
between the Government of Spain and the Philippine Government on the one side and
the Monte de Piedad on the other, concerning the $80,000. The Monte de Piedad, after
setting forth in its petition to the Governor-General its financial condition and its absolute
necessity for more working capital, asked that out of the sum of $100,000 held in the
Treasury of the Philippine Islands, at the disposal of the central relief board, there be
transferred to it the sum of $80,000 to be held under the same conditions, to wit, "at the
disposal of the relief board." The Monte de Piedad agreed that if the transfer of these funds
should not be approved by the Government of Spain, the same would be returned forthwith.
It did not ask that the $80,000 be given to it as a donation. The Governor-General, after
reciting the substance of the petition, stated that "this general Government has submitted for
the determination of H. M. Government that the balance which, after strictly applying the
proceeds obtained from the subscription referred to, may remain as a surplus, should be
delivered to the Monte de Piedad, either as a donation, or as a loan upon the security of the
credit of the institution," and "considering that no reasonable objection can be made to
granting the request herein contained," directed the transfer of the $80,000 to be made with
the understanding that "the Board of Directors of the Monte de Piedad is solemnly bound to
return, within eight days after demand, the sums it may have so received, if H. M.
Government does not approve this resolution." It will be noted that the first and only time the
word "donation" was used in connection with the $80,000 appears in this resolution of the
Governor-General. It may be inferred from the royal orders that the Madrid Government did
tacitly approve of the transfer of the $80,000 to the Monte de Piedad as a loan without
interest, but that Government certainly did not approve such transfer as a donation for the
reason that the Governor-General was directed by the royal order of December 3, 1892, to
inform the Madrid Government of the total available sum of the earthquake fund, "taking into
consideration the sums delivered to the Monte de Piedadpursuant to the decree issued by
your general Government on February 1, 1883." This language, nothing else appearing,
might admit of the interpretation that the Madrid Government did not intend that the
Governor-General of the Philippine Islands should include the $80,000 in the total available
sum, but when considered in connection with the report of the Department of Finance there
can be no doubt that it was so intended. That report refers expressly to the royal order of
December 3d, and sets forth in detail the action taken in order to secure the return of the
$80,000. The Department of Finance, acting under the orders of the Governor-General,
understood that the $80,000 was transferred to the Monte de Piedad well knew that it
received this sum as a loan interest." The amount was thus carried in its books until January,
1899, when it was transferred to the account of the "Sagrada Mitra" and was thereafter
known as the "Sagrada Mitra and subscription account." Furthermore, the Monte de
Piedad recognized and considered as late as March 31, 1902, that it received the $80,000
"as a returnable loan, and without interest." Therefore, there cannot be the slightest doubt
the fact that the Monte de Piedad received the $80,000 as a mere loan or deposit and not as
a donation. Consequently, the first alleged error is entirely without foundation.
Counsel for the defendant, in support of their third assignment of error, say in their principal
brief that:
The Spanish nation was professedly Roman Catholic and its King enjoyed the
distinction of being deputy ex officio of the Holy See and Apostolic Vicar-General of
the Indies, and as such it was his duty to protect all pious works and charitable
institutions in his kingdoms, especially those of the Indies; among the latter was
the Monte de Piedad of the Philippines, of which said King and his deputy the
Governor-General of the Philippines, as royal vice-patron, were, in a special and
peculiar manner, the protectors; the latter, as a result of the cession of the Philippine
Islands, Implicitly renounced this high office and tacitly returned it to the Holy See,
now represented by the Archbishop of Manila; the national subscription in question
was a kind of foundation or pious work, for a charitable purpose in these Islands; and
the entire subscription not being needed for its original purpose, the royal vice-
patron, with the consent of the King, gave the surplus thereof to an analogous
purpose; the fulfillment of all these things involved, in the majority, if not in all cases,
faithful compliance with the duty imposed upon him by the Holy See, when it
conferred upon him the royal patronage of the Indies, a thing that touched him very
closely in his conscience and religion; the cessionary Government though Christian,
was not Roman Catholic and prided itself on its policy of non-interference in religious
matters, and inveterately maintained a complete separation between the
ecclesiastical and civil powers.
In view of these circumstances it must be quite clear that, even without the express
provisions of the Treaty of Paris, which apparently expressly exclude such an idea, it
did not befit the honor of either of the contracting parties to subrogate to the
American Government in lieu of the Spanish Government anything respecting the
disposition of the funds delivered by the latter to the Monte de Piedad. The same
reasons that induced the Spanish Government to take over such things would result
in great inconvenience to the American Government in attempting to do so. The
question was such a delicate one, for the reason that it affected the conscience,
deeply religious, of the King of Spain, that it cannot be believed that it was ever his
intention to confide the exercise thereof to a Government like the American. (U.
S. vs. Arredondo, 6 Pet. [U. S.], 711.)
It is thus seen that the American Government did not subrogate the Spanish
Government or rather, the King of Spain, in this regard; and as the condition annexed
to the donation was lawful and possible of fulfillment at the time the contract was
made, but became impossible of fulfillment by the cession made by the Spanish
Government in these Islands, compliance therewith is excused and the contract has
been cleared thereof.
The contention of counsel, as thus stated, in untenable for two reason, (1) because such
contention is based upon the erroneous theory that the sum in question was a donation to
the Monte de Piedad and not a loan, and (2) because the charity founded by the donations
for the earthquake sufferers is not and never was intended to be an ecclesiastical pious
work. The first proposition has already been decided adversely to the defendant's contention.
As to the second, the record shows clearly that the fund was given by the donors for a
specific and definite purpose the relief of the earthquake sufferers and for no other
purpose. The money was turned over to the Spanish Government to be devoted to that
purpose. The Spanish Government remitted the money to the Philippine Government to be
distributed among the suffers. All officials, including the King of Spain and the Governor-
General of the Philippine Islands, who took part in the disposal of the fund, acted in their
purely civil, official capacity, and the fact that they might have belonged to a certain church
had nothing to do with their acts in this matter. The church, as such, had nothing to do with
the fund in any way whatever until the $80,000 reached the coffers of the Monte de
Piedad (an institution under the control of the church) as a loan or deposit. If the charity in
question had been founded as an ecclesiastical pious work, the King of Spain and the
Governor-General, in their capacities as vicar-general of the Indies and as royal vice-patron,
respectively, would have disposed of the fund as such and not in their civil capacities, and
such functions could not have been transferred to the present Philippine Government,
because the right to so act would have arisen out of the special agreement between the
Government of Spain and the Holy See, based on the union of the church and state which
was completely separated with the change of sovereignty.
And in their supplemental brief counsel say:
By the conceded facts the money in question is part of a charitable subscription. The
donors were persons in Spain, the trustee was the Spanish Government, the donees,
the cestuis que trustent, were certain persons in the Philippine Islands. The whole
matter is one of trusteeship. This is undisputed and indisputable. It follows that the
Spanish Government at no time was the owner of the fund. Not being the owner of
the fund it could not transfer the ownership. Whether or not it could transfer its
trusteeship it certainly never has expressly done so and the general terms of
property transfer in the Treaty of Paris are wholly insufficient for such a purpose even
could Spain have transferred its trusteeship without the consent of the donors and
even could the United States, as a Government, have accepted such a trust under
any power granted to it by the thirteen original States in the Constitution, which is
more than doubtful. It follows further that this Government is not a proper party to the
action. The only persons who could claim to be damaged by this payment to the
Monte, if it was unlawful, are the donors or the cestuis que trustent, and this
Government is neither.
If "the whole matter is one of trusteeship," and it being true that the Spanish Government
could not, as counsel say, transfer the ownership of the fund to the Monte de Piedad, the
question arises, who may sue to recover this loan? It needs no argument to show that the
Spanish or Philippine Government, as trustee, could maintain an action for this purpose had
there been no change of sovereignty and if the right of action has not prescribed. But those
governments were something more than mere common law trustees of the fund. In order to
determine their exact status with reference to this fund, it is necessary to examine the law in
force at the time there transactions took place, which are the law of June 20, 1894, the royal
decree of April 27. 1875, and the instructions promulgated on the latter date. These legal
provisions were applicable to the Philippine Islands (Benedicto vs. De la Rama, 3 Phil. Rep.,
34)
The funds collected as a result of the national subscription opened in Spain by royal order of
the Spanish Government and which were remitted to the Philippine Government to be
distributed among the earthquake sufferers by the Central Relief Board constituted, under
article 1 of the law of June 20, 1894, and article 2 of the instructions of April 27, 1875, a
special charity of a temporary nature as distinguished from a permanent public charitable
institution. As the Spanish Government initiated the creation of the fund and as the donors
turned their contributions over to that Government, it became the duty of the latter, under
article 7 of the instructions, to exercise supervision and control over the moneys thus
collected to the end that the will of the donors should be carried out. The relief board had no
power whatever to dispose of the funds confided to its charge for other purposes than to
distribute them among the sufferers, because paragraph 3 of article 11 of the instructions
conferred the power upon the secretary of the interior of Spain, and no other, to dispose of
the surplus funds, should there be any, by assigning them to some other charitable purpose
or institution. The secretary could not dispose of any of the funds in this manner so long as
they were necessary for the specific purpose for which they were contributed. The secretary
had the power, under the law above mentioned to appoint and totally or partially change the
personnel of the relief board and to authorize the board to defend the rights of the charity in
the courts. The authority of the board consisted only in carrying out the will of the donors as
directed by the Government whose duty it was to watch over the acts of the board and to see
that the funds were applied to the purposes for which they were contributed .The secretary of
the interior, as the representative of His Majesty's Government, exercised these powers and
duties through the Governor-General of the Philippine Islands. The Governments of Spain
and of the Philippine Islands in complying with their duties conferred upon them by law,
acted in their governmental capacities in attempting to carry out the intention of the
contributors. It will this be seen that those governments were something more, as we have
said, than mere trustees of the fund.
It is further contended that the obligation on the part of the Monte de Piedad to return the
$80,000 to the Government, even considering it a loan, was wiped out on the change of
sovereignty, or inn other words, the present Philippine Government cannot maintain this
action for that reason. This contention, if true, "must result from settled principles of rigid
law," as it cannot rest upon any title to the fund in the Monte de Piedad acquired prior to
such change. While the obligation to return the $80,000 to the Spanish Government was still
pending, war between the United States and Spain ensued. Under the Treaty of Paris of
December 10, 1898, the Archipelago, known as the Philippine Islands, was ceded to the
United States, the latter agreeing to pay Spain the sum of $20,000,000. Under the first
paragraph of the eighth article, Spain relinquished to the United States "all buildings,
wharves, barracks, forts, structures, public highways, and other immovable property which,
in conformity with law, belonged to the public domain, and as such belonged to the crown of
Spain." As the $80,000 were not included therein, it is said that the right to recover this
amount did not, therefore, pass to the present sovereign. This, in our opinion, does not follow
as a necessary consequence, as the right to recover does not rest upon the proposition that
the $80,000 must be "other immovable property" mentioned in article 8 of the treaty, but
upon contractual obligations incurred before the Philippine Islands were ceded to the United
States. We will not inquire what effect his cession had upon the law of June 20, 1849, the
royal decree of April 27, 1875, and the instructions promulgated on the latter date. In
Vilas vs. Manila (220 U. S., 345), the court said:
That there is a total abrogation of the former political relations of the inhabitants of
the ceded region is obvious. That all laws theretofore in force which are in conflict
with the political character, constitution, or institutions of the substituted sovereign,
lose their force, is also plain. (Alvarez y Sanchez vs. United States, 216 U. S., 167.)
But it is equally settled in the same public law that the great body of municipal law
which regulates private and domestic rights continues in force until abrogated or
changed by the new ruler.
If the above-mentioned legal provisions are in conflict with the political character, constitution
or institutions of the new sovereign, they became inoperative or lost their force upon the
cession of the Philippine Islands to the United States, but if they are among "that great body
of municipal law which regulates private and domestic rights," they continued in force and
are still in force unless they have been repealed by the present Government. That they fall
within the latter class is clear from their very nature and character. They are laws which are
not political in any sense of the word. They conferred upon the Spanish Government the right
and duty to supervise, regulate, and to some extent control charities and charitable
institutions. The present sovereign, in exempting "provident institutions, savings banks, etc.,"
all of which are in the nature of charitable institutions, from taxation, placed such institutions,
in so far as the investment in securities are concerned, under the general supervision of the
Insular Treasurer (paragraph 4 of section 111 of Act No. 1189; see also Act No. 701).
Furthermore, upon the cession of the Philippine Islands the prerogatives of he crown of
Spain devolved upon he United States. In Magill vs. Brown (16 Fed. Cas., 408), quoted with
approval in Mormon Charch vs. United States (136 U. S.,1, 57), the court said:
The Revolution devolved on the State all the transcendent power of Parliament, and
the prerogative of the crown, and gave their Acts the same force and effect.
In Fontain vs. Ravenel (17 Hw., 369, 384), Mr. Justice McLean, delivering the opinion of the
court in a charity case, said:
When this country achieved its independence, the prerogatives of the crown
devolved upon the people of the States. And this power still remains with them
except so fact as they have delegated a portion of it to the Federal Government. The
sovereign will is made known to us by legislative enactment. The State as a
sovereign, is the parens patriae.
Chancelor Kent says:
In this country, the legislature or government of the State, as parens patriae, has the
right to enforce all charities of public nature, by virtue of its general superintending
authority over the public interests, where no other person is entrusted with it. (4 Kent
Com., 508, note.)
The Supreme Court of the United States in Mormon Church vs. United States, supra, after
approving also the last quotations, said:
This prerogative of parens patriae is inherent in the supreme power of every State,
whether that power is lodged in a royal person or in the legislature, and has no
affinity to those arbitrary powers which are sometimes exerted by irresponsible
monarchs to the great detriment of the people and the destruction of their liberties.
On the contrary, it is a most beneficient functions, and often necessary to be
exercised in the interest of humanity, and for the prevention of injury to those who
cannot protect themselves.
The court in the same case, after quoting from Sohier vs. Mass. General Hospital (3 Cush.,
483, 497), wherein the latter court held that it is deemed indispensible that there should be a
power in the legislature to authorize the same of the estates of in facts, idiots, insane
persons, and persons not known, or not in being, who cannot act for themselves, said:
These remarks in reference to in facts, insane persons and person not known, or not
in being, apply to the beneficiaries of charities, who are often in capable of
vindicating their rights, and justly look for protection to the sovereign authority, acting
as parens patriae. They show that this beneficient functions has not ceased t exist
under the change of government from a monarchy to a republic; but that it now
resides in the legislative department, ready to be called into exercise whenever
required for the purposes of justice and right, and is a clearly capable of being
exercised in cases of charities as in any other cases whatever.
In People vs. Cogswell (113 Cal. 129, 130), it was urged that the plaintiff was not the real
party in interest; that the Attorney-General had no power to institute the action; and that there
must be an allegation and proof of a distinct right of the people as a whole, as distinguished
from the rights of individuals, before an action could be brought by the Attorney-General in
the name of the people. The court, in overruling these contentions, held that it was not only
the right but the duty of the Attorney-General to prosecute the action, which related to
charities, and approved the following quotation from Attorney-General vs. Compton (1
Younge & C. C., 417):
Where property affected by a trust for public purposes is in the hands of those who
hold it devoted to that trust, it is the privilege of the public that the crown should be
entitled to intervene by its officers for the purpose of asserting, on behalf on the
public generally, the public interest and the public right, which, probably, no individual
could be found effectually to assert, even if the interest were such as to allow it. (2
Knet's Commentaries, 10th ed., 359; Lewin on Trusts, sec. 732.)
It is further urged, as above indicated, that "the only persons who could claim to be damaged
by this payment to the Monte, if it was unlawful, are the donors or the cestuis que trustent,
and this Government is neither. Consequently, the plaintiff is not the proper party to bring the
action." The earthquake fund was the result or the accumulation of a great number of small
contributions. The names of the contributors do not appear in the record. Their whereabouts
are unknown. They parted with the title to their respective contributions. The beneficiaries,
consisting of the original sufferers and their heirs, could have been ascertained. They are
quite numerous also. And no doubt a large number of the original sufferers have died,
leaving various heirs. It would be impracticable for them to institute an action or actions
either individually or collectively to recover the $80,000. The only course that can be
satisfactorily pursued is for the Government to again assume control of the fund and devote
it to the object for which it was originally destined.
The impracticability of pursuing a different course, however, is not the true ground upon
which the right of the Government to maintain the action rests. The true ground is that the
money being given to a charity became, in a measure, public property, only applicable, it is
true, to the specific purposes to which it was intended to be devoted, but within those limits
consecrated to the public use, and became part of the public resources for promoting the
happiness and welfare of the Philippine Government. (Mormon Church vs. U. S., supra.) To
deny the Government's right to maintain this action would be contrary to sound public policy,
as tending to discourage the prompt exercise of similar acts of humanity and Christian
benevolence in like instances in the future.
As to the question raised in the fourth assignment of error relating to the constitutionality of
Act No. 2109, little need be said for the reason that we have just held that the present
Philippine Government is the proper party to the action. The Act is only a manifestation on
the part of the Philippine Government to exercise the power or right which it undoubtedly
had. The Act is not, as contended by counsel, in conflict with the fifth section of the Act of
Congress of July 1, 1902, because it does not take property without due process of law. In
fact, the defendant is not the owner of the $80,000, but holds it as a loan subject to the
disposal of the central relief board. Therefor, there can be nothing in the Act which
transcends the power of the Philippine Legislature.
In Vilas vs. Manila, supra, the plaintiff was a creditor of the city of Manila as it existed before
the cession of the Philippine Islands to the United States by the Treaty of Paris of December
10, 1898. The action was brought upon the theory that the city, under its present charter from
the Government of the Philippine Islands, was the same juristic person, and liable upon the
obligations of the old city. This court held that the present municipality is a totally different
corporate entity and in no way liable for the debts of the Spanish municipality. The Supreme
Court of the United States, in reversing this judgment and in holding the city liable for the old
debt, said:
The juristic identity of the corporation has been in no wise affected, and, in law, the
present city is, in every legal sense, the successor of the old. As such it is entitled to
the property and property rights of the predecessor corporation, and is, in law,
subject to all of its liabilities.
In support of the fifth assignment of error counsel for the defendant argue that as the Monte
de Piedad declined to return the $80,000 when ordered to do so by the Department of
Finance in June, 1893, the plaintiff's right of action had prescribed at the time this suit was
instituted on May 3, 1912, citing and relying upon article 1961, 1964 and 1969 of the Civil
Code. While on the other hand, the Attorney-General contends that the right of action had
not prescribed (a) because the defense of prescription cannot be set up against the
Philippine Government, (b) because the right of action to recover a deposit or trust funds
does not prescribe, and (c) even if the defense of prescription could be interposed against
the Government and if the action had, in fact, prescribed, the same was revived by Act No.
2109.
The material facts relating to this question are these: The Monte de Piedad received the
$80,000 in 1883 "to be held under the same conditions as at present in the treasury, to wit,
at the disposal of the relief board." In compliance with the provisions of the royal order of
December 3, 1892, the Department of Finance called upon the Monte de Piedad in June,
1893, to return the $80,000. The Monte declined to comply with this order upon the ground
that only the Governor-General of the Philippine Islands and not the Department of Finance
had the right to order the reimbursement. The amount was carried on the books of the Monte
as a returnable loan until January 1, 1899, when it was transferred to the account of the
"Sagrada Mitra." On March 31, 1902, the Monte, through its legal representative, stated in
writing that the amount in question was received as a reimbursable loan, without interest. Act
No. 2109 became effective January 30, 1912, and the action was instituted on May 3rd of
that year.
Counsel for the defendant treat the question of prescription as if the action was one between
individuals or corporations wherein the plaintiff is seeking to recover an ordinary loan. Upon
this theory June, 1893, cannot be taken as the date when the statute of limitations began to
run, for the reason that the defendant acknowledged in writing on March 31, 1902, that the
$80,000 were received as a loan, thereby in effect admitting that it still owed the amount.
(Section 50, Code of Civil Procedure.) But if counsels' theory is the correct one the action
may have prescribed on May 3, 1912, because more than ten full years had elapsed after
March 31, 1902. (Sections 38 and 43, Code of Civil Procedure.)
Is the Philippine Government bound by the statute of limitations? The Supreme Court of the
United States in U. S.vs. Nashville, Chattanooga & St. Louis Railway Co. (118 U. S., 120,
125), said:
It is settled beyond doubt or controversy upon the foundation of the great principle
of public policy, applicable to all governments alike, which forbids that the public
interests should be prejudiced by the negligence of the officers or agents to whose
care they are confided that the United States, asserting rights vested in it as a
sovereign government, is not bound by any statute of limitations, unless Congress
has clearly manifested its intention that it should be so bound. (Lindsey vs. Miller, 6
Pet. 666; U. S. vs.Knight, 14 Pet., 301; Gibson vs. Chouteau, 13 Wall., 92; U.
S. vs. Thompson, 98 U. S., 486; Fink vs. O'Neil, 106 U. S., 272, 281.)
In Gibson vs. Choteau, supra, the court said:
It is a matter of common knowledge that statutes of limitation do not run against the
State. That no laches can be imputed to the King, and that no time can bar his rights,
was the maxim of the common laws, and was founded on the principle of public
policy, that as he was occupied with the cares of government he ought not to suffer
from the negligence of his officer and servants. The principle is applicable to all
governments, which must necessarily act through numerous agents, and is essential
to a preservation of the interests and property of the public. It is upon this principle
that in this country the statutes of a State prescribing periods within which rights must
be prosecuted are not held to embrace the State itself, unless it is expressly
designated or the mischiefs to be remedied are of such a nature that it must
necessarily be included. As legislation of a State can only apply to persons and thing
over which the State has jurisdiction, the United States are also necessarily excluded
from the operation of such statutes.
In 25 Cyc., 1006, the rule, supported by numerous authorities, is stated as follows:
In the absence of express statutory provision to the contrary, statute of limitations do
not as a general rule run against the sovereign or government, whether state or
federal. But the rule is otherwise where the mischiefs to be remedied are of such a
nature that the state must necessarily be included, where the state goes into
business in concert or in competition with her citizens, or where a party seeks to
enforces his private rights by suit in the name of the state or government, so that the
latter is only a nominal party.
In the instant case the Philippine Government is not a mere nominal party because it, in
bringing and prosecuting this action, is exercising its sovereign functions or powers and is
seeking to carry out a trust developed upon it when the Philippine Islands were ceded to the
United States. The United States having in 1852, purchased as trustee for the Chickasaw
Indians under treaty with that tribe, certain bonds of the State of Tennessee, the right of
action of the Government on the coupons of such bonds could not be barred by the statute of
limitations of Tennessee, either while it held them in trust for the Indians, or since it became
the owner of such coupons. (U. S.vs. Nashville, etc., R. Co., supra.) So where lands are held
in trust by the state and the beneficiaries have no right to sue, a statute does not run against
the State's right of action for trespass on the trust lands. (Greene Tp. vs.Campbell, 16 Ohio
St., 11; see also Atty.-Gen. vs. Midland R. Co., 3 Ont., 511 [following Reg. vs. Williams, 39
U. C. Q. B., 397].)
These principles being based "upon the foundation of the great principle of public policy" are,
in the very nature of things, applicable to the Philippine Government.
Counsel in their argument in support of the sixth and last assignments of error do not
question the amount of the judgment nor do they question the correctness of the judgment in
so far as it allows interest, and directs its payment in gold coin or in the equivalent in
Philippine currency.
For the foregoing reasons the judgment appealed from is affirmed, with costs against the
appellant. So ordered.
Torres, Johnson and Araullo, JJ., concur.
Moreland, J., did not sign.


Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION

G.R. No. L-25843 July 25, 1974
MELCHORA CABANAS, plaintiff-appellee,
vs.
FRANCISCO PILAPIL, defendant-appellant.
Seno, Mendoza & Associates for plaintiff-appellee.
Emilio Benitez, Jr. for defendant-appellant.

FERNANDO, J.:p
The disputants in this appeal from a question of law from a lower court decision are the
mother and the uncle of a minor beneficiary of the proceeds of an insurance policy issued on
the life of her deceased father. The dispute centers as to who of them should be entitled to
act as trustee thereof. The lower court applying the appropriate Civil Code provisions
decided in favor of the mother, the plaintiff in this case. Defendant uncle appealed. As noted,
the lower court acted the way it did following the specific mandate of the law. In addition, it
must have taken into account the principle that in cases of this nature the welfare of the child
is the paramount consideration. It is not an unreasonable assumption that between a mother
and an uncle, the former is likely to lavish more care on and pay greater attention to her. This
is all the more likely considering that the child is with the mother. There are no circumstances
then that did militate against what conforms to the natural order of things, even if the
language of the law were not as clear. It is not to be lost sight of either that the judiciary
pursuant to its role as an agency of the State as parens patriae, with an even greater stress
on family unity under the present Constitution, did weigh in the balance the opposing claims
and did come to the conclusion that the welfare of the child called for the mother to be
entrusted with such responsibility. We have to affirm.
The appealed decision made clear: "There is no controversy as to the facts. "
1
The insured,
Florentino Pilapil had a child, Millian Pilapil, with a married woman, the plaintiff, Melchora
Cabanas. She was ten years old at the time the complaint was filed on October 10, 1964. The
defendant, Francisco Pilapil, is the brother of the deceased. The deceased insured himself and
instituted as beneficiary, his child, with his brother to act as trustee during her minority. Upon his
death, the proceeds were paid to him. Hence this complaint by the mother, with whom the child is
living, seeking the delivery of such sum. She filed the bond required by the Civil Code. Defendant
would justify his claim to the retention of the amount in question by invoking the terms of the
insurance policy.
2

After trial duly had, the lower court in a decision of May 10, 1965, rendered judgment
ordering the defendant to deliver the proceeds of the policy in question to plaintiff. Its main
reliance was on Articles 320 and 321 of the Civil Code. The former provides: "The father, or
in his absence the mother, is the legal administrator of the property pertaining to the child
under parental authority. If the property is worth more than two thousand pesos, the father or
mother shall give a bond subject to the approval of the Court of First Instance."
3
The latter
states: "The property which the unemancipated child has acquired or may acquire with his work
or industry, or by any lucrative title, belongs to the child in ownership, and in usufruct to the father
or mother under whom he is under parental authority and whose company he lives; ...
4

Conformity to such explicit codal norm is apparent in this portion of the appealed decision:
"The insurance proceeds belong to the beneficiary. The beneficiary is a minor under the
custody and parental authority of the plaintiff, her mother. The said minor lives with plaintiff or
lives in the company of the plaintiff. The said minor acquired this property by lucrative title.
Said property, therefore, belongs to the minor child in ownership, and in usufruct to the
plaintiff, her mother. Since under our law the usufructuary is entitled to possession, the
plaintiff is entitled to possession of the insurance proceeds. The trust, insofar as it is in
conflict with the above quoted provision of law, is pro tanto null and void. In order, however,
to protect the rights of the minor, Millian Pilapil, the plaintiff should file an additional bond in
the guardianship proceedings, Sp. Proc. No. 2418-R of this Court to raise her bond therein to
the total amount of P5,000.00."
5

It is very clear, therefore, considering the above, that unless the applicability of the two cited
Civil Code provisions can be disputed, the decision must stand. There is no ambiguity in the
language employed. The words are rather clear. Their meaning is unequivocal. Time and
time again, this Court has left no doubt that where codal or statutory norms are cast in
categorical language, the task before it is not one of interpretation but of application.
6
So it
must be in this case. So it was in the appealed decision.
1. It would take more than just two paragraphs as found in the brief for the defendant-
appellant
7
to blunt the force of legal commands that speak so plainly and so unqualifiedly. Even
if it were a question of policy, the conclusion will remain unaltered. What is paramount, as
mentioned at the outset, is the welfare of the child. It is in consonance with such primordial end
that Articles 320 and 321 have been worded. There is recognition in the law of the deep ties that
bind parent and child. In the event that there is less than full measure of concern for the offspring,
the protection is supplied by the bond required. With the added circumstance that the child stays
with the mother, not the uncle, without any evidence of lack of maternal care, the decision arrived
at can stand the test of the strictest scrutiny. It is further fortified by the assumption, both logical
and natural, that infidelity to the trust imposed by the deceased is much less in the case of a
mother than in the case of an uncle. Manresa, commenting on Article 159 of the Civil Code of
Spain, the source of Article 320 of the Civil Code, was of that view: Thus "El derecho y la
obligacion de administrar el Patrimonio de los hijos es una consecuencia natural y lgica de la
patria potestad y de la presuncin de que nadie cuidar de los bienes de acqullos con mas
cario y solicitude que los padres. En nuestro Derecho antiguo puede decirse que se hallaba
reconocida de una manera indirecta aquelia doctrina, y asi se desprende de la sentencia del
Tribunal Supremeo de 30 de diciembre de 1864, que se refiere a la ley 24, tit. XIII de la Partida 5.
De la propia suerte aceptan en general dicho principio los Codigos extranjeros, con las
limitaciones y requisitos de que trataremos mis adelante."
8

2. The appealed decision is supported by another cogent consideration. It is buttressed by its
adherence to the concept that the judiciary, as an agency of the State acting
as parens patriae, is called upon whenever a pending suit of litigation affects one who is a
minor to accord priority to his best interest. It may happen, as it did occur here, that family
relations may press their respective claims. It would be more in consonance not only with the
natural order of things but the tradition of the country for a parent to be preferred. it could
have been different if the conflict were between father and mother. Such is not the case at
all. It is a mother asserting priority. Certainly the judiciary as the instrumentality of the State
in its role of parens patriae, cannot remain insensible to the validity of her plea. In a recent
case,
9
there is this quotation from an opinion of the United States Supreme Court: "This
prerogative of parens patriae is inherent in the supreme power of every State, whether that power
is lodged in a royal person or in the legislature, and has no affinity to those arbitrary powers which
are sometimes exerted by irresponsible monarchs to the great detriment of the people and the
destruction of their liberties." What is more, there is this constitutional provision vitalizing this
concept. It reads: "The State shall strengthen the family as a basic social institution."
10
If, as the
Constitution so wisely dictates, it is the family as a unit that has to be strengthened, it does not
admit of doubt that even if a stronger case were presented for the uncle, still deference to a
constitutional mandate would have led the lower court to decide as it did.
WHEREFORE, the decision of May 10, 1965 is affirmed. Costs against defendant-appellant.
Zaldivar (Chairman), Antonio, Fernandez and Aquino, JJ., concur.
Barredo, J., took no part.


Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-5 September 17, 1945
CO KIM CHAM (alias CO KIM CHAM), petitioner,
vs.
EUSEBIO VALDEZ TAN KEH and ARSENIO P. DIZON, Judge of First Instance of
Manila, respondents.
1

Marcelino Lontok for petitioner.
P. A. Revilla for respondent Valdez Tan Keh.
Respondent Judge Dizon in his own behalf.
FERIA, J.:
This petition for mandamus in which petitioner prays that the respondent judge of the lower
court be ordered to continue the proceedings in civil case No. 3012 of said court, which were
initiated under the regime of the so-called Republic of the Philippines established during the
Japanese military occupation of these Islands.
The respondent judge refused to take cognizance of and continue the proceedings in said
case on the ground that the proclamation issued on October 23, 1944, by General Douglas
MacArthur had the effect of invalidating and nullifying all judicial proceedings and
judgements of the court of the Philippines under the Philippine Executive Commission and
the Republic of the Philippines established during the Japanese military occupation, and that,
furthermore, the lower courts have no jurisdiction to take cognizance of and continue judicial
proceedings pending in the courts of the defunct Republic of the Philippines in the absence
of an enabling law granting such authority. And the same respondent, in his answer and
memorandum filed in this Court, contends that the government established in the Philippines
during the Japanese occupation were no de facto governments.
On January 2, 1942, the Imperial Japanese Forces occupied the City of Manila, and on the
next day their Commander in Chief proclaimed "the Military Administration under law over
the districts occupied by the Army." In said proclamation, it was also provided that "so far as
the Military Administration permits, all the laws now in force in the Commonwealth, as well as
executive and judicial institutions, shall continue to be effective for the time being as in the
past," and "all public officials shall remain in their present posts and carry on faithfully their
duties as before."
A civil government or central administration organization under the name of "Philippine
Executive Commission was organized by Order No. 1 issued on January 23, 1942, by the
Commander in Chief of the Japanese Forces in the Philippines, and Jorge B. Vargas, who
was appointed Chairman thereof, was instructed to proceed to the immediate coordination of
the existing central administrative organs and judicial courts, based upon what had existed
therefore, with approval of the said Commander in Chief, who was to exercise jurisdiction
over judicial courts.
The Chairman of the Executive Commission, as head of the central administrative
organization, issued Executive Orders Nos. 1 and 4, dated January 30 and February 5,
1942, respectively, in which the Supreme Court, Court of Appeals, Courts of First Instance,
and the justices of the peace and municipal courts under the Commonwealth were continued
with the same jurisdiction, in conformity with the instructions given to the said Chairman of
the Executive Commission by the Commander in Chief of Japanese Forces in the Philippines
in the latter's Order No. 3 of February 20, 1942, concerning basic principles to be observed
by the Philippine Executive Commission in exercising legislative, executive and judicial
powers. Section 1 of said Order provided that "activities of the administration organs and
judicial courts in the Philippines shall be based upon the existing statutes, orders, ordinances
and customs. . . ."
On October 14, 1943, the so-called Republic of the Philippines was inaugurated, but no
substantial change was effected thereby in the organization and jurisdiction of the different
courts that functioned during the Philippine Executive Commission, and in the laws they
administered and enforced.
On October 23, 1944, a few days after the historic landing in Leyte, General Douglas
MacArthur issued a proclamation to the People of the Philippines which declared:
1. That the Government of the Commonwealth of the Philippines is, subject to the
supreme authority of the Government of the United States, the sole and only
government having legal and valid jurisdiction over the people in areas of the
Philippines free of enemy occupation and control;
2. That the laws now existing on the statute books of the Commonwealth of the
Philippines and the regulations promulgated pursuant thereto are in full force and
effect and legally binding upon the people in areas of the Philippines free of enemy
occupation and control; and
3. That all laws, regulations and processes of any other government in the
Philippines than that of the said Commonwealth are null and void and without legal
effect in areas of the Philippines free of enemy occupation and control.
On February 3, 1945, the City of Manila was partially liberated and on February 27, 1945,
General MacArthur, on behalf of the Government of the United States, solemnly declared
"the full powers and responsibilities under the Constitution restored to the Commonwealth
whose seat is here established as provided by law."
In the light of these facts and events of contemporary history, the principal questions to be
resolved in the present case may be reduced to the following:(1) Whether the judicial acts
and proceedings of the court existing in the Philippines under the Philippine Executive
Commission and the Republic of the Philippines were good and valid and remained so even
after the liberation or reoccupation of the Philippines by the United States and Filipino forces;
(2)Whether the proclamation issued on October 23, 1944, by General Douglas MacArthur,
Commander in Chief of the United States Army, in which he declared "that all laws,
regulations and processes of any of the government in the Philippines than that of the said
Commonwealth are null and void and without legal effect in areas of the Philippines free of
enemy occupation and control," has invalidated all judgements and judicial acts and
proceedings of the said courts; and (3) If the said judicial acts and proceedings have not
been invalidated by said proclamation, whether the present courts of the Commonwealth,
which were the same court existing prior to, and continued during, the Japanese military
occupation of the Philippines, may continue those proceedings pending in said courts at the
time the Philippines were reoccupied and liberated by the United States and Filipino forces,
and the Commonwealth of the Philippines were reestablished in the Islands.
We shall now proceed to consider the first question, that is, whether or not under the rules of
international law the judicial acts and proceedings of the courts established in the Philippines
under the Philippine Executive Commission and the Republic of the Philippines were good
and valid and remained good and valid even after the liberation or reoccupation of the
Philippines by the United States and Filipino forces.
1. It is a legal truism in political and international law that all acts and proceedings of the
legislative, executive, and judicial departments of a de facto government are good and valid.
The question to be determined is whether or not the governments established in these
Islands under the names of the Philippine Executive Commission and Republic of the
Philippines during the Japanese military occupation or regime were de facto governments. If
they were, the judicial acts and proceedings of those governments remain good and valid
even after the liberation or reoccupation of the Philippines by the American and Filipino
forces.
There are several kinds of de facto governments. The first, or government de facto in a
proper legal sense, is that government that gets possession and control of, or usurps, by
force or by the voice of the majority, the rightful legal governments and maintains itself
against the will of the latter, such as the government of England under the Commonwealth,
first by Parliament and later by Cromwell as Protector. The second is that which is
established and maintained by military forces who invade and occupy a territory of the
enemy in the course of war, and which is denominated a government of paramount force, as
the cases of Castine, in Maine, which was reduced to British possession in the war of 1812,
and Tampico, Mexico, occupied during the war with Mexico, by the troops of the United
States. And the third is that established as an independent government by the inhabitants of
a country who rise in insurrection against the parent state of such as the government of the
Southern Confederacy in revolt not concerned in the present case with the first kind, but only
with the second and third kinds of de factogovernments.
Speaking of government "de facto" of the second kind, the Supreme Court of the United
States, in the case of Thorington vs. Smith (8 Wall., 1), said: "But there is another description
of government, called also by publicists a government de facto, but which might, perhaps, be
more aptly denominated a government of paramount force. Its distinguishing characteristics
are (1), that its existence is maintained by active military power with the territories, and
against the rightful authority of an established and lawful government; and (2), that while it
exists it necessarily be obeyed in civil matters by private citizens who, by acts of obedience
rendered in submission to such force, do not become responsible, or wrongdoers, for those
acts, though not warranted by the laws of the rightful government. Actual governments of this
sort are established over districts differing greatly in extent and conditions. They are usually
administered directly by military authority, but they may be administered, also, civil authority,
supported more or less directly by military force. . . . One example of this sort of government
is found in the case of Castine, in Mine, reduced to British possession in the war of 1812 . . .
U. S. vs. Rice (4 Wheaton, 253). A like example is found in the case of Tampico, occupied
during the war with Mexico, by the troops of the United States . . . Fleming vs. Page (9
Howard, 614). These were cases of temporary possessions of territory by lawfull and regular
governments at war with the country of which the territory so possessed was part."
The powers and duties of de facto governments of this description are regulated in Section III
of the Hague Conventions of 1907, which is a revision of the provisions of the Hague
Conventions of 1899 on the same subject of said Section III provides "the authority of the
legislative power having actually passed into the hands of the occupant, the latter shall take
steps in his power to reestablish and insure, as far as possible, public order and safety, while
respecting, unless absolutely prevented, the laws in force in the country."
According to the precepts of the Hague Conventions, as the belligerent occupant has the
right and is burdened with the duty to insure public order and safety during his military
occupation, he possesses all the powers of a de facto government, and he can suspended
the old laws and promulgate new ones and make such changes in the old as he may see fit,
but he is enjoined to respect, unless absolutely prevented by the circumstances prevailing in
the occupied territory, the municipal laws in force in the country, that is, those laws which
enforce public order and regulate social and commercial life of the country. On the other
hand, laws of a political nature or affecting political relations, such as, among others, the
right of assembly, the right to bear arms, the freedom of the press, and the right to travel
freely in the territory occupied, are considered as suspended or in abeyance during the
military occupation. Although the local and civil administration of justice is suspended as a
matter of course as soon as a country is militarily occupied, it is not usual for the invader to
take the whole administration into his own hands. In practice, the local ordinary tribunals are
authorized to continue administering justice; and judges and other judicial officers are kept in
their posts if they accept the authority of the belligerent occupant or are required to continue
in their positions under the supervision of the military or civil authorities appointed, by the
Commander in Chief of the occupant. These principles and practice have the sanction of all
publicists who have considered the subject, and have been asserted by the Supreme Court
and applied by the President of the United States.
The doctrine upon this subject is thus summed up by Halleck, in his work on International
Law (Vol. 2, p. 444): "The right of one belligerent to occupy and govern the territory of the
enemy while in its military possession, is one of the incidents of war, and flows directly from
the right to conquer. We, therefore, do not look to the Constitution or political institutions of
the conqueror, for authority to establish a government for the territory of the enemy in his
possession, during its military occupation, nor for the rules by which the powers of such
government are regulated and limited. Such authority and such rules are derived directly
from the laws war, as established by the usage of the of the world, and confirmed by the
writings of publicists and decisions of courts in fine, from the law of nations. . . . The
municipal laws of a conquered territory, or the laws which regulate private rights, continue in
force during military occupation, excepts so far as they are suspended or changed by the
acts of conqueror. . . . He, nevertheless, has all the powers of a de facto government, and
can at his pleasure either change the existing laws or make new ones."
And applying the principles for the exercise of military authority in an occupied territory,
which were later embodied in the said Hague Conventions, President McKinley, in his
executive order to the Secretary of War of May 19,1898, relating to the occupation of the
Philippines by United States forces, said in part: "Though the powers of the military occupant
are absolute and supreme, and immediately operate upon the political condition of the
inhabitants, the municipal laws of the conquered territory, such as affect private rights of
person and property and provide for the punishment of crime, are considered as continuing
in force, so far as they are compatible with the new order of things, until they are suspended
or superseded by the occupying belligerent; and in practice they are not usually abrogated,
but are allowed to remain in force and to be administered by the ordinary tribunals,
substantially as they were before the occupation. This enlightened practice is, so far as
possible, to be adhered to on the present occasion. The judges and the other officials
connected with the administration of justice may, if they accept the authority of the United
States, continue to administer the ordinary law of the land as between man and man under
the supervision of the American Commander in Chief." (Richardson's Messages and Papers
of President, X, p. 209.)
As to "de facto" government of the third kind, the Supreme Court of the United States, in the
same case of Thorington vs. Smith, supra, recognized the government set up by the
Confederate States as a de factogovernment. In that case, it was held that "the central
government established for the insurgent States differed from the temporary governments at
Castine and Tampico in the circumstance that its authority did no originate in lawful acts of
regular war; but it was not, on the account, less actual or less supreme. And we think that it
must be classed among the governments of which these are examples. . . .
In the case of William vs. Bruffy (96 U. S. 176, 192), the Supreme Court of the United States,
discussing the validity of the acts of the Confederate States, said: "The same general form of
government, the same general laws for the administration of justice and protection of private
rights, which had existed in the States prior to the rebellion, remained during its continuance
and afterwards. As far as the Acts of the States do not impair or tend to impair the
supremacy of the national authority, or the just rights of citizens under the Constitution, they
are, in general, to be treated as valid and binding. As we said in Horn vs. Lockhart (17 Wall.,
570; 21 Law. ed., 657): "The existence of a state of insurrection and war did not loosen the
bonds of society, or do away with civil government or the regular administration of the laws.
Order was to be preserved, police regulations maintained, crime prosecuted, property
protected, contracts enforced, marriages celebrated, estates settled, and the transfer and
descent of property regulated, precisely as in the time of peace. No one, that we are aware
of, seriously questions the validity of judicial or legislative Acts in the insurrectionary States
touching these and kindered subjects, where they were not hostile in their purpose or mode
of enforcement to the authority of the National Government, and did not impair the rights of
citizens under the Constitution'. The same doctrine has been asserted in numerous other
cases."
And the same court, in the case of Baldy vs. Hunter (171 U. S., 388, 400), held: "That what
occured or was done in respect of such matters under the authority of the laws of these
local de facto governments should not be disregarded or held to be invalid merely because
those governments were organized in hostility to the Union established by the national
Constitution; this, because the existence of war between the United States and the
Confederate States did not relieve those who are within the insurrectionary lines from the
necessity of civil obedience, nor destroy the bonds of society nor do away with civil
government or the regular administration of the laws, and because transactions in the
ordinary course of civil society as organized within the enemy's territory although they may
have indirectly or remotely promoted the ends of the de facto or unlawful government
organized to effect a dissolution of the Union, were without blame 'except when proved to
have been entered intowith actual intent to further invasion or insurrection:'" and "That
judicial and legislative acts in the respective states composing the so-called Confederate
States should be respected by the courts if they were not hostile in their purpose or mode of
enforcement to the authority of the National Government, and did not impair the rights of
citizens under the Constitution."
In view of the foregoing, it is evident that the Philippine Executive Commission, which was
organized by Order No. 1, issued on January 23, 1942, by the Commander of the Japanese
forces, was a civil government established by the military forces of occupation and therefore
a de facto government of the second kind. It was not different from the government
established by the British in Castine, Maine, or by the United States in Tampico, Mexico. As
Halleck says, "The government established over an enemy's territory during the military
occupation may exercise all the powers given by the laws of war to the conqueror over the
conquered, and is subject to all restrictions which that code imposes. It is of little
consequence whether such government be called a military or civil government. Its character
is the same and the source of its authority the same. In either case it is a government
imposed by the laws of war, and so far it concerns the inhabitants of such territory or the rest
of the world, those laws alone determine the legality or illegality of its acts." (Vol. 2, p. 466.)
The fact that the Philippine Executive Commission was a civil and not a military government
and was run by Filipinos and not by Japanese nationals, is of no consequence. In 1806,
when Napoleon occupied the greater part of Prussia, he retained the existing administration
under the general direction of a french official (Langfrey History of Napoleon, 1, IV, 25); and,
in the same way, the Duke of Willington, on invading France, authorized the local authorities
to continue the exercise of their functions, apparently without appointing an English superior.
(Wellington Despatches, XI, 307.). The Germans, on the other hand, when they invaded
France in 1870, appointed their own officials, at least in Alsace and Lorraine, in every
department of administration and of every rank. (Calvo, pars. 2186-93; Hall, International
Law, 7th ed., p. 505, note 2.)
The so-called Republic of the Philippines, apparently established and organized as a
sovereign state independent from any other government by the Filipino people, was, in truth
and reality, a government established by the belligerent occupant or the Japanese forces of
occupation. It was of the same character as the Philippine Executive Commission, and the
ultimate source of its authority was the same the Japanese military authority and
government. As General MacArthur stated in his proclamation of October 23, 1944, a portion
of which has been already quoted, "under enemy duress, a so-called government styled as
the 'Republic of the Philippines' was established on October 14, 1943, based upon neither
the free expression of the people's will nor the sanction of the Government of the United
States." Japan had no legal power to grant independence to the Philippines or transfer the
sovereignty of the United States to, or recognize the latent sovereignty of, the Filipino
people, before its military occupation and possession of the Islands had matured into an
absolute and permanent dominion or sovereignty by a treaty of peace or other means
recognized in the law of nations. For it is a well-established doctrine in International Law,
recognized in Article 45 of the Hauge Conventions of 1907 (which prohibits compulsion of
the population of the occupied territory to swear allegiance to the hostile power), the
belligerent occupation, being essentially provisional, does not serve to transfer sovereignty
over the territory controlled although the de jure government is during the period of
occupancy deprived of the power to exercise its rights as such. (Thirty Hogshead of
Sugar vs. Boyle, 9 Cranch, 191; United States vs. Rice, 4 Wheat., 246; Fleming vs.Page, 9
Howard, 603; Downes vs. Bidwell, 182 U. S., 345.) The formation of the Republic of the
Philippines was a scheme contrived by Japan to delude the Filipino people into believing in
the apparent magnanimity of the Japanese gesture of transferring or turning over the rights
of government into the hands of Filipinos. It was established under the mistaken belief that
by doing so, Japan would secure the cooperation or at least the neutrality of the Filipino
people in her war against the United States and other allied nations.
Indeed, even if the Republic of the Philippines had been established by the free will of the
Filipino who, taking advantage of the withdrawal of the American forces from the Islands, and
the occupation thereof by the Japanese forces of invasion, had organized an independent
government under the name with the support and backing of Japan, such government would
have been considered as one established by the Filipinos in insurrection or rebellion against
the parent state or the Unite States. And as such, it would have been a de facto government
similar to that organized by the confederate states during the war of secession and
recognized as such by the by the Supreme Court of the United States in numerous cases,
notably those of Thorington vs. Smith, Williams vs.Bruffy, and Badly vs. Hunter, above
quoted; and similar to the short-lived government established by the Filipino insurgents in the
Island of Cebu during the Spanish-American war, recognized as a de facto government by
the Supreme Court of the United States in the case of McCleod vs. United States (299 U. S.,
416). According to the facts in the last-named case, the Spanish forces evacuated the Island
of Cebu on December 25, 1898, having first appointed a provisional government, and shortly
afterwards, the Filipinos, formerly in insurrection against Spain, took possession of the
Islands and established a republic, governing the Islands until possession thereof was
surrendered to the United States on February 22, 1898. And the said Supreme Court held in
that case that "such government was of the class of de facto governments described in I
Moore's International Law Digest, S 20, . . . 'called also by publicists a government de facto,
but which might, perhaps, be more aptly denominated a government of paramount force . . '."
That is to say, that the government of a country in possession of belligerent forces in
insurrection or rebellion against the parent state, rests upon the same principles as that of a
territory occupied by the hostile army of an enemy at regular war with the legitimate power.
The governments by the Philippine Executive Commission and the Republic of the
Philippines during the Japanese military occupation being de facto governments, it
necessarily follows that the judicial acts and proceedings of the courts of justice of those
governments, which are not of a political complexion, were good and valid, and, by virtue of
the well-known principle of postliminy (postliminium) in international law, remained good and
valid after the liberation or reoccupation of the Philippines by the American and Filipino
forces under the leadership of General Douglas MacArthur. According to that well-known
principle in international law, the fact that a territory which has been occupied by an enemy
comes again into the power of its legitimate government of sovereignty, "does not, except in
a very few cases, wipe out the effects of acts done by an invader, which for one reason or
another it is within his competence to do. Thus judicial acts done under his control, when
they are not of a political complexion, administrative acts so done, to the extent that they
take effect during the continuance of his control, and the various acts done during the same
time by private persons under the sanction of municipal law, remain good. Were it otherwise,
the whole social life of a community would be paralyzed by an invasion; and as between the
state and the individuals the evil would be scarcely less, it would be hard for example that
payment of taxes made under duress should be ignored, and it would be contrary to the
general interest that the sentences passed upon criminals should be annulled by the
disappearance of the intrusive government ." (Hall, International Law, 7th ed., p. 518.) And
when the occupation and the abandonment have been each an incident of the same war as
in the present case, postliminy applies, even though the occupant has acted as conqueror
and for the time substituted his own sovereignty as the Japanese intended to do apparently
in granting independence to the Philippines and establishing the so-called Republic of the
Philippines. (Taylor, International Law, p. 615.)
That not only judicial but also legislative acts of de facto governments, which are not of a
political complexion, are and remain valid after reoccupation of a territory occupied by a
belligerent occupant, is confirmed by the Proclamation issued by General Douglas
MacArthur on October 23, 1944, which declares null and void all laws, regulations and
processes of the governments established in the Philippines during the Japanese
occupation, for it would not have been necessary for said proclamation to abrogate them if
they were invalid ab initio.
2. The second question hinges upon the interpretation of the phrase "processes of any other
government" as used in the above-quoted proclamation of General Douglas MacArthur of
October 23, 1944 that is, whether it was the intention of the Commander in Chief of the
American Forces to annul and void thereby all judgments and judicial proceedings of the
courts established in the Philippines during the Japanese military occupation.
The phrase "processes of any other government" is broad and may refer not only to the
judicial processes, but also to administrative or legislative, as well as constitutional,
processes of the Republic of the Philippines or other governmental agencies established in
the Islands during the Japanese occupation. Taking into consideration the fact that, as above
indicated, according to the well-known principles of international law all judgements and
judicial proceedings, which are not of a political complexion, of the de facto governments
during the Japanese military occupation were good and valid before and remained so after
the occupied territory had come again into the power of the titular sovereign, it should be
presumed that it was not, and could not have been, the intention of General Douglas
MacArthur, in using the phrase "processes of any other government" in said proclamation, to
refer to judicial processes, in violation of said principles of international law. The only
reasonable construction of the said phrase is that it refers to governmental processes other
than judicial processes of court proceedings, for according to a well-known rule of statutory
construction, set forth in 25 R. C. L., p. 1028, "a statute ought never to be construed to
violate the law of nations if any other possible construction remains."
It is true that the commanding general of a belligerent army of occupation, as an agent of his
government, may not unlawfully suspend existing laws and promulgate new ones in the
occupied territory, if and when the exigencies of the military occupation demand such action.
But even assuming that, under the law of nations, the legislative power of a commander in
chief of military forces who liberates or reoccupies his own territory which has been occupied
by an enemy, during the military and before the restoration of the civil regime, is as broad as
that of the commander in chief of the military forces of invasion and occupation (although the
exigencies of military reoccupation are evidently less than those of occupation), it is to be
presumed that General Douglas MacArthur, who was acting as an agent or a representative
of the Government and the President of the United States, constitutional commander in chief
of the United States Army, did not intend to act against the principles of the law of nations
asserted by the Supreme Court of the United States from the early period of its existence,
applied by the Presidents of the United States, and later embodied in the Hague
Conventions of 1907, as above indicated. It is not to be presumed that General Douglas
MacArthur, who enjoined in the same proclamation of October 23, 1944, "upon the loyal
citizens of the Philippines full respect and obedience to the Constitution of the
Commonwealth of the Philippines," should not only reverse the international policy and
practice of his own government, but also disregard in the same breath the provisions of
section 3, Article II, of our Constitution, which provides that "The Philippines renounces war
as an instrument of national policy, and adopts the generally accepted principles of
international law as part of the law of the Nation."
Moreover, from a contrary construction great inconvenience and public hardship would
result, and great public interests would be endangered and sacrificed, for disputes or suits
already adjudged would have to be again settled accrued or vested rights nullified,
sentences passed on criminals set aside, and criminals might easily become immune for
evidence against them may have already disappeared or be no longer available, especially
now that almost all court records in the Philippines have been destroyed by fire as a
consequence of the war. And it is another well-established rule of statutory construction that
where great inconvenience will result from a particular construction, or great public interests
would be endangered or sacrificed, or great mischief done, such construction is to be
avoided, or the court ought to presume that such construction was not intended by the
makers of the law, unless required by clear and unequivocal words. (25 R. C. L., pp. 1025,
1027.)
The mere conception or thought of possibility that the titular sovereign or his representatives
who reoccupies a territory occupied by an enemy, may set aside or annul all the judicial acts
or proceedings of the tribunals which the belligerent occupant had the right and duty to
establish in order to insure public order and safety during military occupation, would be
sufficient to paralyze the social life of the country or occupied territory, for it would have to be
expected that litigants would not willingly submit their litigation to courts whose judgements
or decisions may afterwards be annulled, and criminals would not be deterred from
committing crimes or offenses in the expectancy that they may escaped the penalty if
judgments rendered against them may be afterwards set aside.
That the proclamation has not invalidated all the judgements and proceedings of the courts
of justice during the Japanese regime, is impliedly confirmed by Executive Order No. 37,
which has the force of law, issued by the President of the Philippines on March 10, 1945, by
virtue of the emergency legislative power vested in him by the Constitution and the laws of
the Commonwealth of the Philippines. Said Executive order abolished the Court of Appeals,
and provided "that all case which have heretofore been duly appealed to the Court of
Appeals shall be transmitted to the Supreme Court final decision." This provision impliedly
recognizes that the judgments and proceedings of the courts during the Japanese military
occupation have not been invalidated by the proclamation of General MacArthur of October
23, because the said Order does not say or refer to cases which have been duly appealed to
said court prior to the Japanese occupation, but to cases which had therefore, that is, up to
March 10, 1945, been duly appealed to the Court of Appeals; and it is to be presumed that
almost all, if not all, appealed cases pending in the Court of Appeals prior to the Japanese
military occupation of Manila on January 2, 1942, had been disposed of by the latter before
the restoration of the Commonwealth Government in 1945; while almost all, if not all,
appealed cases pending on March 10, 1945, in the Court of Appeals were from judgments
rendered by the Court of First Instance during the Japanese regime.
The respondent judge quotes a portion of Wheaton's International Law which say: "Moreover
when it is said that an occupier's acts are valid and under international law should not be
abrogated by the subsequent conqueror, it must be remembered that no crucial instances
exist to show that if his acts should be reversed, any international wrong would be
committed. What does happen is that most matters are allowed to stand by the restored
government, but the matter can hardly be put further than this." (Wheaton, International Law,
War, 7th English edition of 1944, p. 245.) And from this quotion the respondent judge "draws
the conclusion that whether the acts of the occupant should be considered valid or not, is a
question that is up to the restored government to decide; that there is no rule of international
law that denies to the restored government to decide; that there is no rule of international law
that denies to the restored government the right of exercise its discretion on the matter,
imposing upon it in its stead the obligation of recognizing and enforcing the acts of the
overthrown government."
There is doubt that the subsequent conqueror has the right to abrogate most of the acts of
the occupier, such as the laws, regulations and processes other than judicial of the
government established by the belligerent occupant. But in view of the fact that the
proclamation uses the words "processes of any other government" and not "judicial
processes" prisely, it is not necessary to determine whether or not General Douglas
MacArthur had power to annul and set aside all judgments and proceedings of the courts
during the Japanese occupation. The question to be determined is whether or not it was his
intention, as representative of the President of the United States, to avoid or nullify them. If
the proclamation had, expressly or by necessary implication, declared null and void the
judicial processes of any other government, it would be necessary for this court to decide in
the present case whether or not General Douglas MacArthur had authority to declare them
null and void. But the proclamation did not so provide, undoubtedly because the author
thereof was fully aware of the limitations of his powers as Commander in Chief of Military
Forces of liberation or subsequent conqueror.
Not only the Hague Regulations, but also the principles of international law, as they result
from the usages established between civilized nations, the laws of humanity and the
requirements of the public of conscience, constitute or from the law of nations. (Preamble of
the Hague Conventions; Westlake, International Law, 2d ed., Part II, p. 61.) Article 43,
section III, of the Hague Regulations or Conventions which we have already quoted in
discussing the first question, imposes upon the occupant the obligation to establish courts;
and Article 23 (h), section II, of the same Conventions, which prohibits the belligerent
occupant "to declare . . . suspended . . . in a Court of Law the rights and action of the
nationals of the hostile party," forbids him to make any declaration preventing the inhabitants
from using their courts to assert or enforce their civil rights. (Decision of the Court of Appeals
of England in the case of Porter vs. Fruedenburg, L.R. [1915], 1 K.B., 857.) If a belligerent
occupant is required to establish courts of justice in the territory occupied, and forbidden to
prevent the nationals thereof from asserting or enforcing therein their civil rights, by
necessary implication, the military commander of the forces of liberation or the restored
government is restrained from nullifying or setting aside the judgments rendered by said
courts in their litigation during the period of occupation. Otherwise, the purpose of these
precepts of the Hague Conventions would be thwarted, for to declare them null and void
would be tantamount to suspending in said courts the right and action of the nationals of the
territory during the military occupation thereof by the enemy. It goes without saying that a law
that enjoins a person to do something will not at the same time empower another to undo the
same. Although the question whether the President or commanding officer of the United
States Army has violated restraints imposed by the constitution and laws of his country is
obviously of a domestic nature, yet, in construing and applying limitations imposed on the
executive authority, the Supreme Court of the United States, in the case of
Ochoa, vs. Hernandez (230 U.S., 139), has declared that they "arise from general rules of
international law and from fundamental principles known wherever the American flag flies."
In the case of Raymond vs. Thomas (91 U.S., 712), a special order issued by the officer in
command of the forces of the United States in South Carolina after the end of the Civil War,
wholly annulling a decree rendered by a court of chancery in that state in a case within its
jurisdiction, was declared void, and not warranted by the acts approved respectively March
2, 1867 (14 Stat., 428), and July 19 of the same year (15 id., 14), which defined the powers
and duties of military officers in command of the several states then lately in rebellion. In the
course of its decision the court said; "We have looked carefully through the acts of March 2,
1867 and July 19, 1867. They give very large governmental powers to the military
commanders designated, within the States committed respectively to their jurisdiction; but we
have found nothing to warrant the order here in question. . . . The clearest language would
be necessary to satisfy us that Congress intended that the power given by these acts should
be so exercised. . . . It was an arbitrary stretch of authority, needful to no good end that can
be imagined. Whether Congress could have conferred the power to do such an act is a
question we are not called upon to consider. It is an unbending rule of law that the exercise
of military power, where the rights of the citizen are concerned, shall never be pushed
beyond what the exigency requires. (Mithell vs. Harmony, 13 How., 115; Warden vs. Bailey,
4 Taunt., 67; Fabrigas vs. Moysten, 1 Cowp., 161; s.c., 1 Smith's L.C., pt. 2, p. 934.) Viewing
the subject before us from the standpoint indicated, we hold that the order was void."
It is, therefore, evident that the proclamation of General MacArthur of October 23, 1944,
which declared that "all laws, regulations and processes of any other government in the
Philippines than that of the said Commonwealth are null and void without legal effect in areas
of the Philippines free of enemy occupation and control," has not invalidated the judicial acts
and proceedings, which are not a political complexion, of the courts of justice in the
Philippines that were continued by the Philippine Executive Commission and the Republic of
the Philippines during the Japanese military occupation, and that said judicial acts and
proceedings were good and valid before and now good and valid after the reoccupation of
liberation of the Philippines by the American and Filipino forces.
3. The third and last question is whether or not the courts of the Commonwealth, which are
the same as those existing prior to, and continued during, the Japanese military occupation
by the Philippine Executive Commission and by the so-called Republic of the Philippines,
have jurisdiction to continue now the proceedings in actions pending in said courts at the
time the Philippine Islands were reoccupied or liberated by the American and Filipino forces,
and the Commonwealth Government was restored.
Although in theory the authority the authority of the local civil and judicial administration is
suspended as a matter of course as soon as military occupation takes place, in practice the
invader does not usually take the administration of justice into his own hands, but continues
the ordinary courts or tribunals to administer the laws of the country which he is enjoined,
unless absolutely prevented, to respect. As stated in the above-quoted Executive Order of
President McKinley to the Secretary of War on May 19, 1898, "in practice, they (the
municipal laws) are not usually abrogated but are allowed to remain in force and to be
administered by the ordinary tribunals substantially as they were before the occupation. This
enlightened practice is, so far as possible, to be adhered to on the present occasion." And
Taylor in this connection says: "From a theoretical point of view it may be said that the
conqueror is armed with the right to substitute his arbitrary will for all preexisting forms of
government, legislative, executive and judicial. From the stand-point of actual practice such
arbitrary will is restrained by the provision of the law of nations which compels the conqueror
to continue local laws and institution so far as military necessity will permit." (Taylor,
International Public Law, p.596.) Undoubtedly, this practice has been adopted in order that
the ordinary pursuits and business of society may not be unnecessarily deranged, inasmuch
as belligerent occupation is essentially provisional, and the government established by the
occupant of transient character.
Following these practice and precepts of the law of nations, Commander in Chief of the
Japanese Forces proclaimed on January 3, 1942, when Manila was occupied, the military
administration under martial law over the territory occupied by the army, and ordered that "all
the laws now in force in the Commonwealth, as well as executive and judicial institutions,
shall continue to be affective for the time being as in the past," and "all public officials shall
remain in their present post and carry on faithfully their duties as before." When the
Philippine Executive Commission was organized by Order No. 1 of the Japanese
Commander in Chief, on January 23, 1942, the Chairman of the Executive Commission, by
Executive Orders Nos. 1 and 4 of January 30 and February 5, respectively, continued the
Supreme Court, Court of Appeals, Court of First Instance, and justices of the peace of
courts, with the same jurisdiction in conformity with the instructions given by the Commander
in Chief of the Imperial Japanese Army in Order No. 3 of February 20, 1942. And on October
14, 1943 when the so-called Republic of the Philippines was inaugurated, the same courts
were continued with no substantial change in organization and jurisdiction thereof.
If the proceedings pending in the different courts of the Islands prior to the Japanese military
occupation had been continued during the Japanese military administration, the Philippine
Executive Commission, and the so-called Republic of the Philippines, it stands to reason that
the same courts, which had become reestablished and conceived of as having in continued
existence upon the reoccupation and liberation of the Philippines by virtue of the principle of
postliminy (Hall, International Law, 7th ed., p. 516), may continue the proceedings in cases
then pending in said courts, without necessity of enacting a law conferring jurisdiction upon
them to continue said proceedings. As Taylor graphically points out in speaking of said
principles "a state or other governmental entity, upon the removal of a foreign military force,
resumes its old place with its right and duties substantially unimpaired. . . . Such political
resurrection is the result of a law analogous to that which enables elastic bodies to regain
their original shape upon removal of the external force, and subject to the same exception
in case of absolute crushing of the whole fibre and content." (Taylor, International Public
Law, p. 615.)
The argument advanced by the respondent judge in his resolution in support in his
conclusion that the Court of First Instance of Manila presided over by him "has no authority
to take cognizance of, and continue said proceedings (of this case) to final judgment until
and unless the Government of the Commonwealth of the Philippines . . . shall have provided
for the transfer of the jurisdiction of the courts of the now defunct Republic of the Philippines,
and the cases commenced and the left pending therein," is "that said courts were a
government alien to the Commonwealth Government. The laws they enforced were, true
enough, laws of the Commonwealth prior to Japanese occupation, but they had become the
laws and the courts had become the institutions of Japan by adoption (U.S. vs. Reiter.
27 F. Cases, No. 16146), as they became later on the laws and institutions of the Philippine
Executive Commission and the Republic of the Philippines."
The court in the said case of U.S. vs. Reiter did not and could not say that the laws and
institutions of the country occupied if continued by the conqueror or occupant, become the
laws and the courts, by adoption, of the sovereign nation that is militarily occupying the
territory. Because, as already shown, belligerent or military occupation is essentially
provisional and does not serve to transfer the sovereignty over the occupied territory to the
occupant. What the court said was that, if such laws and institutions are continued in use by
the occupant, they become his and derive their force from him, in the sense that he may
continue or set them aside. The laws and institution or courts so continued remain the laws
and institutions or courts of the occupied territory. The laws and the courts of the Philippines,
therefore, did not become, by being continued as required by the law of nations, laws and
courts of Japan. The provision of Article 45, section III, of the Hague Conventions of 1907
which prohibits any compulsion of the population of occupied territory to swear allegiance to
the hostile power, "extends to prohibit everything which would assert or imply a change
made by the invader in the legitimate sovereignty. This duty is neither to innovate in the
political life of the occupied districts, nor needlessly to break the continuity of their legal life.
Hence, so far as the courts of justice are allowed to continue administering the territorial
laws, they must be allowed to give their sentences in the name of the legitimate sovereign "
(Westlake, Int. Law, Part II, second ed., p. 102). According to Wheaton, however, the victor
need not allow the use of that of the legitimate government. When in 1870, the Germans in
France attempted to violate that rule by ordering, after the fall of the Emperor Napoleon, the
courts of Nancy to administer justice in the name of the "High German Powers occupying
Alsace and Lorraine," upon the ground that the exercise of their powers in the name of
French people and government was at least an implied recognition of the Republic, the
courts refused to obey and suspended their sitting. Germany originally ordered the use of the
name of "High German Powers occupying Alsace and Lorraine," but later offered to allow
use of the name of the Emperor or a compromise. (Wheaton, International Law, War, 7th
English ed. 1944, p. 244.)
Furthermore, it is a legal maxim, that excepting that of a political nature, "Law once
established continues until changed by the some competent legislative power. It is not
change merely by change of sovereignty." (Joseph H. Beale, Cases on Conflict of Laws, III,
Summary Section 9, citing Commonwealth vs. Chapman, 13 Met., 68.) As the same author
says, in his Treatise on the Conflict on Laws (Cambridge, 1916, Section 131): "There can no
break or interregnum in law. From the time the law comes into existence with the first-felt
corporateness of a primitive people it must last until the final disappearance of human
society. Once created, it persists until a change take place, and when changed it continues
in such changed condition until the next change, and so forever. Conquest or colonization is
impotent to bring law to an end; in spite of change of constitution, the law continues
unchanged until the new sovereign by legislative acts creates a change."
As courts are creatures of statutes and their existence defends upon that of the laws which
create and confer upon them their jurisdiction, it is evident that such laws, not being a
political nature, are not abrogated by a change of sovereignty, and continue in force "ex
proprio vigore" unless and until repealed by legislative acts. A proclamation that said laws
and courts are expressly continued is not necessary in order that they may continue in force.
Such proclamation, if made, is but a declaration of the intention of respecting and not
repealing those laws. Therefore, even assuming that Japan had legally acquired sovereignty
over these Islands, which she had afterwards transferred to the so-called Republic of the
Philippines, and that the laws and the courts of these Islands had become the courts of
Japan, as the said courts of the laws creating and conferring jurisdiction upon them have
continued in force until now, it necessarily follows that the same courts may continue
exercising the same jurisdiction over cases pending therein before the restoration of the
Commonwealth Government, unless and until they are abolished or the laws creating and
conferring jurisdiction upon them are repealed by the said government. As a consequence,
enabling laws or acts providing that proceedings pending in one court be continued by or
transferred to another court, are not required by the mere change of government or
sovereignty. They are necessary only in case the former courts are abolished or their
jurisdiction so change that they can no longer continue taking cognizance of the cases and
proceedings commenced therein, in order that the new courts or the courts having
jurisdiction over said cases may continue the proceedings. When the Spanish sovereignty in
the Philippine Islands ceased and the Islands came into the possession of the United States,
the "Audiencia" or Supreme Court was continued and did not cease to exist, and proceeded
to take cognizance of the actions pending therein upon the cessation of the Spanish
sovereignty until the said "Audiencia" or Supreme Court was abolished, and the Supreme
Court created in Chapter II of Act No. 136 was substituted in lieu thereof. And the Courts of
First Instance of the Islands during the Spanish regime continued taking cognizance of cases
pending therein upon the change of sovereignty, until section 65 of the same Act No. 136
abolished them and created in its Chapter IV the present Courts of First Instance in
substitution of the former. Similarly, no enabling acts were enacted during the Japanese
occupation, but a mere proclamation or order that the courts in the Island were continued.
On the other hand, during the American regime, when section 78 of Act No. 136 was
enacted abolishing the civil jurisdiction of the provost courts created by the military
government of occupation in the Philippines during the Spanish-American War of 1898, the
same section 78 provided for the transfer of all civil actions then pending in the provost
courts to the proper tribunals, that is, to the justices of the peace courts, Court of First
Instance, or Supreme Court having jurisdiction over them according to law. And later on,
when the criminal jurisdiction of provost courts in the City of Manila was abolished by section
3 of Act No. 186, the same section provided that criminal cases pending therein within the
jurisdiction of the municipal court created by Act No. 183 were transferred to the latter.
That the present courts as the same courts which had been functioning during the Japanese
regime and, therefore, can continue the proceedings in cases pending therein prior to the
restoration of the Commonwealth of the Philippines, is confirmed by Executive Order No. 37
which we have already quoted in support of our conclusion in connection with the second
question. Said Executive Order provides"(1) that the Court of Appeals created and
established under Commonwealth Act No. 3 as amended, be abolished, as it is hereby
abolished," and "(2) that all cases which have heretofore been duly appealed to the Court of
Appeals shall be transmitted to the Supreme Court for final decision. . . ." In so providing, the
said Order considers that the Court of Appeals abolished was the same that existed prior to,
and continued after, the restoration of the Commonwealth Government; for, as we have
stated in discussing the previous question, almost all, if not all, of the cases pending therein,
or which had theretofore (that is, up to March 10, 1945) been duly appealed to said court,
must have been cases coming from the Courts of First Instance during the so-called
Republic of the Philippines. If the Court of Appeals abolished by the said Executive Order
was not the same one which had been functioning during the Republic, but that which had
existed up to the time of the Japanese occupation, it would have provided that all the cases
which had, prior to and up to that occupation on January 2, 1942, been dully appealed to the
said Court of Appeals shall be transmitted to the Supreme Court for final decision.
It is, therefore, obvious that the present courts have jurisdiction to continue, to final judgment,
the proceedings in cases, not of political complexion, pending therein at the time of the
restoration of the Commonwealth Government.
Having arrived at the above conclusions, it follows that the Court of First Instance of Manila
has jurisdiction to continue to final judgment the proceedings in civil case No. 3012, which
involves civil rights of the parties under the laws of the Commonwealth Government, pending
in said court at the time of the restoration of the said Government; and that the respondent
judge of the court, having refused to act and continue him does a duty resulting from his
office as presiding judge of that court, mandamus is the speedy and adequate remedy in the
ordinary course of law, especially taking into consideration the fact that the question of
jurisdiction herein involved does affect not only this particular case, but many other cases
now pending in all the courts of these Islands.
In view of all the foregoing it is adjudged and decreed that a writ of mandamus issue,
directed to the respondent judge of the Court of First Instance of Manila, ordering him to take
cognizance of and continue to final judgment the proceedings in civil case No. 3012 of said
court. No pronouncement as to costs. So ordered.
Moran, C.J., Ozaeta, Paras, Jaranilla and Pablo, JJ., concur.


Separate Opinions
DE JOYA, J., concurring:
The principal question involved in this case is the validity of the proceedings held in civil case
No. 3012, in the Court of First Instance of the City of Manila, under the now defunct
Philippine Republic, during Japanese occupation; and the effect on said proceedings of the
proclamation of General Douglas MacArthur, dated October 23, 1944. The decision of this
question requires the application of principles of International Law, in connection with the
municipal law in force in this country, before and during Japanese occupation.
Questions of International Law must be decided as matters of general law
(Juntington vs. Attril, 146 U.S., 657; 13 Sup. Ct. 224; 36 Law. ed., 1123); and International
Law is no alien in this Tribunal, as, under the Constitution of the Commonwealth of the
Philippines, it is a part of the fundamental law of the land (Article II, section 3).
As International Law is an integral part of our laws, it must be ascertained and administered
by this Court, whenever questions of right depending upon it are presented for our
determination, sitting as an international as well as a domestic Tribunal
(Kansas vs. Colorado, 185 U.S., 146; 22 Sup. Ct. 552; 46 Law. Ed., 838).
Since International Law is a body of rules actually accepted by nations as regulating their
mutual relations, the proof of the existence of a given rule is to be found in the consent of
nations to abide by that rule; and this consent is evidenced chiefly by the usages and
customs of nations, and to ascertain what these usages and customs are, the universal
practice is to turn to the writings of publicists and to the decisions of the highest courts of the
different countries of the world (The Habana, 175 U.S., 677; 20 Sup. Cit., 290; 44 Law. ed.,
320).
But while usage is the older and original source of International Law, great international
treaties are a later source of increasing importance, such as The Hague Conventions of
1899 and 1907.
The Hague Conventions of 1899, respecting laws and customs of war on land, expressly
declares that:
ARTICLE XLII. Territory is considered occupied when it is actually placed under the
authority of the hostile army.
The occupation applies only to be territory where such authority is established, and in
a position to assert itself.
ARTICLE XLIII. The authority of the legitimate power having actually passed into the
hands of the occupant, the later shall take all steps in his power to reestablish and
insure, as far as possible, public order and safety, while respecting, unless absolutely
prevented, the laws in force in the country. (32 Stat. II, 1821.)
The above provisions of the Hague Convention have been adopted by the nations giving
adherence to them, among which is United States of America (32 Stat. II, 1821).
The commander in chief of the invading forces or military occupant may exercise
governmental authority, but only when in actual possession of the enemy's territory, and this
authority will be exercised upon principles of international Law (New Orleans vs. Steamship
Co, [1874], 20 Wall., 387; Kelly vs. Sanders [1878], 99 U.S., 441; MacLeod vs. U.S., 229
U.S. 416; 33 Sup. Ct., 955; 57 Law Ed., 1260; II Oppenheim of International Law, section
167).
There can be no question that the Philippines was under Japanese military occupation, from
January, 1942, up to the time of the reconquest by the armed forces of the United States of
the Island of Luzon, in February, 1945.
It will thus be readily seen that the civil laws of the invaded State continue in force, in so far
as they do not affect the hostile occupant unfavorably. The regular judicial Tribunals of the
occupied territory continue usual for the invader to take the whole administration into his own
hands, partly because it is easier to preserve order through the agency of the native officials,
and partly because it is easier to preserve order through the agency of the native officials,
and partly because the latter are more competent to administer the laws in force within the
territory and the military occupant generally keeps in their posts such of the judicial and
administrative officers as are willing to serve under him, subjecting them only to supervision
by the military authorities, or by superior civil authorities appointed by him.(Young vs. U.S.,
39; 24 Law, ed., 992; Coleman vs. Tennessee, 97 U.S., 509; 24 Law ed., 1118;
MacLeod vs. U.S., 229 U.S., 416; 33 Sup. Ct., 955; 57 Law. ed., 1260; Taylor on
International Law, sections 576. 578; Wilson on International Law; pp. 331-37; Hall on
International Law, 6th Edition [1909], pp. 464, 465, 475, 476; Lawrence on International Law,
7th ed., pp. 412, 413; Davis, Elements of International Law, 3rd ed., pp. 330-332 335;
Holland on International Law pp. 356, 357, 359; Westlake on International Law, 2d ed., pp.
121-23.)
It is, therefore, evident that the establishment of the government under the so-called
Philippine Republic, during Japanese occupation, respecting the laws in force in the country,
and permitting the local courts to function and administer such laws, as proclaimed in the
City of Manila, by the Commander in Chief of the Japanese Imperial Forces, on January 3,
1942, was in accordance with the rules and principles of International Law.
If the military occupant is thus in duly bound to establish in the territory under military
occupation governmental agencies for the preservation of peace and order and for the
proper administration of justice, in accordance with the laws in force within territory it must
necessarily follow that the judicial proceedings conducted before the courts established by
the military occupant must be considered legal and valid, even after said government
establish by the military occupant has been displaced by the legitimate government of the
territory.
Thus the judgments rendered by the Confederate Courts, during the American Civil War,
merely settling the rights of private parties actually within their jurisdiction, not tending to
defeat the legal rights of citizens of the United States, nor in furtherance of laws passed in
aid of the rebellion had been declared valid and binding (Cock vs.Oliver, 1 Woods, 437; Fed.
Cas., No. 3, 164; Coleman vs. Tennessee, 97 U. S., 509; 24 Law. ed., 118;
Williamsvs. Bruffy, 96 U. S., 176; Horn vs. Lockhart, 17 Wall., 570; Sprott vs. United States,
20 id., 459; Texas vs. White, 7id., 700; Ketchum vs. Buckley [1878], 99 U.S., 188); and the
judgment of a court of Georgia rendered in November, 1861, for the purchase money of
slaves was held valid judgment when entered, and enforceable in 1871(French vs. Tumlin,
10 Am. Law. Reg. [N.S.], 641; Fed. Case, No. 5104).
Said judgments rendered by the courts of the states constituting the Confederate States of
America were considered legal and valid and enforceable, even after the termination of the
American Civil War, because they had been rendered by the courts of a de
facto government. The Confederate States were a de facto government in the sense that its
citizens were bound to render the government obedience in civil matters, and did not
become responsible, as wrong-doers, for such acts of obedience (Thorington vs. Smith, 8
Wall. [U.S.], 9; 19 Law. ed., 361).
In the case of Ketchum vs. Buckley ([1878], 99 U.S., 188), the Court held "It is now settled
law in this court that during the late civil war the same general form of government, the same
general law for the administration of justice and the protection of private rights, which had
existed in the States prior to the rebellion, remained during its continuance and afterwards.
As far as the acts of the States did not impair or tend to impair the supremacy of the national
authority, or the just and legal rights of the citizens, under the Constitution, they are in
general to be treated as valid and binding." (William vs. Bruffy, 96 U.S., 176;
Horn vs. Lockhart, 17 Wall., 570; Sprott vs. United States, 20 id., 459; Texas vs. White, 7 id.,
700.)
The government established in the Philippines, during Japanese occupation, would seem to
fall under the following definition of de facto government given by the Supreme Court of the
United States:
But there is another description of government, called also by publicists, a
government de facto, but which might, perhaps, be more aptly denominateda
government of paramount force. Its distinguishing characteristics are (1) that its
existence is maintained by active military power within the territories, and against the
rightful authority of an established and lawful government; and (2) that while it exists
it must necessarily be obeyed in civil matters by private citizens who, by acts of
obedience rendered in submission to such force, do not become responsible, as
wrong doers, for those acts, though not warranted by the laws of the rightful
government. Actual government of this sort are established over districts differing
greatly in extent and conditions. They are usually administered directly by military
authority, but they may be administered, also, by civil authority, supported more or
less directly by military force. (Macleod vs. United States [1913] 229 U.S., 416.)
The government established in the Philippines, under the so-called Philippine Republic,
during Japanese occupation, was and should be considered as a de facto government; and
that the judicial proceedings conducted before the courts which had been established in this
country, during said Japanese occupation, are to be considered legal and valid and
enforceable, even after the liberation of this country by the American forces, as long as the
said judicial proceedings had been conducted, under the laws of the Commonwealth of the
Philippines.
The judicial proceedings involved in the case under consideration merely refer to the
settlement of property rights, under the provisions of the Civil Code, in force in this country
under the Commonwealth government, before and during Japanese occupation.
Now, petitioner contends that the judicial proceedings in question are null and void, under
the provisions of the proclamation issued by General Douglas MacArthur, dated October 23,
1944; as said proclamation "nullifies all the laws, regulations and processes of any other
government of the Philippines than that of the Commonwealth of the Philippines."
In other words, petitioner demands a literal interpretation of said proclamation issued by
General Douglas MacArthur, a contention which, in our opinion, is untenable, as it would
inevitably produce judicial chaos and uncertainties.
When an act is susceptible of two or more constructions, one of which will maintain and the
others destroy it, the courts will always adopt the former (U. S. vs. Coombs [1838], 12 Pet.,
72; 9 Law. ed., 1004; Board of Supervisors of Granada County vs. Brown [1884], 112 U.S.,
261; 28 Law. ed., 704; 5 Sup. Ct. Rep., 125; In re Guarina [1913], 24 Phil., 37;
Fuentes vs. Director of Prisons [1924], 46 Phil., 385). The judiciary, always alive to the
dictates of national welfare, can properly incline the scales of its decisions in favor of that
solution which will most effectively promote the public policy (Smith, Bell & Co.,
Ltd. vs. Natividad [1919], 40 Phil., 136). All laws should receive a sensible construction.
General terms should be so limited in their application as not lead to injustice, oppression or
an absurd consequence. It will always, therefore, be presumed that the legislature intended
exceptions to its language, which would avoid results of this character. The reason of the law
in such cases should prevail over its letter (U. S. vs. Kirby, 7 Wall. [U.S.], 482; 19 Law. ed.,
278; Church of Holy Trinity vs. U. S., 143 U. S. 461; 12 Sup. Ct., 511; 36 Law. ed., 226;
Jacobson vs. Massachussetts, 197 U. S., 39; 25 Sup. Ct., 358; 49 Law. ed., 643; 3 Ann.
Cas., 765; In re Allen, 2 Phil., 630). The duty of the court in construing a statute, which is
reasonably susceptible of two constructions to adopt that which saves is constitutionality,
includes the duty of avoiding a construction which raises grave and doubtful constitutional
questions, if it can be avoided (U. S. vs. Delaware & Hudson Co., U.S., 366; 29 Sup. Ct.,
527; 53 Law. ed., 836).
According to the rules and principles of International Law, and the legal doctrines cited
above, the judicial proceedings conducted before the courts of justice, established here
during Japanese military occupation, merely applying the municipal law of the territory, such
as the provisions of our Civil Code, which have no political or military significance, should be
considered legal, valid and binding.
It is to be presumed that General Douglas MacArthur is familiar with said rules and
principles, as International Law is an integral part of the fundamental law of the land, in
accordance with the provisions of the Constitution of the United States. And it is also to be
presumed that General MacArthur his acted, in accordance with said rules and principles of
International Law, which have been sanctioned by the Supreme Court of the United States,
as the nullification of all judicial proceedings conducted before our courts, during Japanese
occupation would lead to injustice and absurd results, and would be highly detrimental to the
public interests.
For the foregoing reasons, I concur in the majority opinion.


PERFECTO, J., dissenting:
Law must be obeyed. To keep the bonds of society, it must not be evaded. On its supremacy
depends the stability of states and nations. No government can prevail without it. The
preservation of the human race itself hinges in law.
Since time immemorial, man has relied on law as an essential means of attaining his
purposes, his objectives, his mission in life. More than twenty-two centuries before the
Christian Era, on orders of the Assyrian King Hammurabi, the first code was engrave in black
diorite with cunie form characters. Nine centuries later Emperor Hung Wu, in the cradle of
the most ancient civilization, compiled the Code of the Great Ming. The laws of Manu were
written in the verdic India. Moses received at Sinai the ten commandments. Draco, Lycurgus,
Solon made laws in Greece. Even ruthless Genghis Khan used laws to keep discipline
among the nomad hordes with which he conquered the greater part of the European and
Asiastic continents.
Animal and plants species must follow the mendelian heredity rules and other biological laws
to survive. Thanks to them, the chalk cliffs of the infusoria show the marvel of an animal so
tiny as to be imperceptible to the naked eye creating a whole mountain. Even the inorganic
world has to conform the law. Planets and stars follow the laws discovered by Kepler, known
as the law-maker of heavens. If, endowed with rebellious spirit, they should happen to
challenge the law of universal gravity, the immediate result would be cosmic chaos. The tiny
and twinkling points of light set above us on the velvet darkness of the night will cease to
inspire us with dreams of more beautiful and happier worlds.
Again we are called upon to do our duty. Here is a law that we must apply. Shall we shrink?
Shall we circumvent it ? Can we ignore it?
The laws enacted by the legislators shall be useless if courts are not ready to apply them. It
is actual application to real issues which gives laws the breath of life.
In the varied and confused market of human endeavor there are so many things that might
induce us to forget the elementals. There are so many events, so many problem, so many
preoccupations that are pushing among themselves to attract our attention, and we might
miss the nearest and most familiar things, like the man who went around his house to look
for a pencil perched on one of his ears.
THE OCTOBER PROCLAMATION
In October, 1944, the American Armed Forces of Liberation landed successfully in Leyte.
When victory in islands was accomplished, after the most amazing and spectacular war
operations, General of the Army Douglas MacArthur as a commander in Chief of the
American Army, decided to reestablish, in behalf of the United States, the Commonwealth
Government.
Then he was confronted with the question as to what policy to adopt in regards to the official
acts of the governments established in the Philippines by the Japanese regime. He might
have thought of recognizing the validity of some of said acts, but, certainly, there were acts
which he should declare null and void, whether against the policies of the American
Government, whether inconsistent with military strategy and operations, whether detrimental
to the interests of the American or Filipino peoples, whether for any other strong or valid
reasons.
But, which to recognize, and which not? He was not in a position to gather enough
information for a safe basis to distinguished and classify which acts must be nullified, and
which must validated. At the same time he had to take immediate action. More pressing
military matters were requiring his immediate attention. He followed the safe course: to nullify
all the legislative, executive, and judicial acts and processes under the Japanese regime.
After all, when the Commonwealth Government is already functioning, with proper
information, he will be in a position to declare by law, through its Congress, which acts and
processes must be revived and validated in the public interest.
So on October 23, 1944, the Commander in Chief issued the following proclamation:
GENERAL HEADQUARTERS
SOUTHWEST PACIFIC AREA
OFFICE OF THE COMMANDER IN CHIEF
PROCLAMATION
To the People of the Philippines:
WHEREAS, the military forces under my command have landed in the Philippines
soil as a prelude to the liberation of the entire territory of the Philippines; and
WHEREAS, the seat of the Government of the Commonwealth of the Philippines has
been re-established in the Philippines under President Sergio Osmea and the
members of his cabinet; and
WHEREAS, under enemy duress, a so-called government styled as the "Republic of
the Philippines" was established on October 14, 1943, based upon neither the free
expression of the people's will nor the sanction of the Government of the United
States, and is purporting to exercise Executive, Judicial and Legislative powers of
government over the people;
Now, therefore, I, Douglas MacArthur, General, United States Army, as Commander
in Chief of the military forces committed to the liberation of the Philippines, do hereby
proclaim and declare:
1. That the Government of the Commonwealth of the Philippines is, subject
to the supreme authority of the Government of the United States, the sole
and the only government having legal and valid jurisdiction over the people in
areas of the Philippines free of enemy occupation and control;
2. The laws now existing on the statute books of the Commonwealth of the
Philippines and the regulation promulgated pursuant thereto are in full force
and effect and legally binding upon the people in areas of the Philippines free
of enemy occupation and control; and
3. That all laws, regulations and processes of any other government in the
Philippines than that of the said Commonwealth are null and void and without
legal effect in areas of the Philippines free enemy occupation and control;
and
I do hereby announce my purpose progressively to restore and extend to the people
of the Philippines the sacred right of government by constitutional process under the
regularly constituted Commonwealth Government as rapidly as the several occupied
areas are liberated to the military situation will otherwise permit;
I do enjoin upon all loyal citizens of the Philippines full respect for and obedience to
the Constitution of the Commonwealth of the Philippines and the laws, regulations
and other acts of their duly constituted government whose seat is now firmly re-
established on Philippine soil.
October 23, 1944.
DOUGLAS MACARTHUR
General U. S. Army
Commander in Chief
IS THE OCTOBER PROCLAMATION LAW?
In times of war the Commander in Chief of an army is vested with extraordinary inherent
powers, as a natural result of the nature of the military operations aimed to achieve the
purposes of his country in the war, victory being paramount among them.
Said Commander in Chief may establish in the occupied or reoccupied territory, under his
control, a complete system of government; he may appoint officers and employees to
manage the affairs of said government; he may issue proclamations, instructions, orders, all
with the full force of laws enacted by a duly constituted legislature; he may set policies that
should be followed by the public administration organized by him; he may abolish the said
agencies. In fact, he is the supreme ruler and law-maker of the territory under his control,
with powers limited only by the receipts of the fundamental laws of his country.
California, or the port of San Francisco, had been conquered by the arms of the
United States as early as 1846. Shortly afterward the United States had military
possession of all upper California. Early in 1847 the President, as constitutional
commander in chief of the army and navy, authorized the military and naval
commander of our forces in California to exercise the belligerent rights of a
conqueror, and form a civil government for the conquered country, and to impose
duties on imports and tonnage as military contributions for the support of the
government, and of the army which has the conquest in possession. . . Cross of
Harrison, 16 Howard, 164, 189.)
In May, 1862, after the capture of New Orleans by the United States Army, General
Butler, then in command of the army at that place, issued a general order appointing
Major J. M. Bell, volunteer aide-de-camp, of the division staff, provost judge of the
city, and directed that he should be obeyed and respected accordingly. The same
order appointed Capt. J. H. French provost marshal of the city, the Capt. Stafford
deputy provost marshal. A few days after this order the Union Bank lent to the
plaintiffs the sum of $130,000, and subsequently, the loan not having been repaid,
brought suit before the provost judge to recover the debt. The defense was taken
that the judge had no jurisdiction over the civil cases, but judgement was given
against the borrowers, and they paid the money under protest. To recover it back is
the object of the present suit, and the contention of the plaintiffs is that the judgement
was illegal and void, because the Provost Court had no jurisdiction of the case. The
judgement of the District Court was against the plaintiffs, and this judgement was
affirmed by the Supreme Court of the State. To this affirmance error is now assigned.
The argument of the plaintiffs in error is that the establishment of the Provost Court,
the appointment of the judge, and his action as such in the case brought by the
Union Bank against them were invalid, because in violation of the Constitution of the
United States, which vests the judicial power of the General government in one
Supreme Court and in such inferior courts as Congress may from time to time ordain
and establish, and under this constitutional provision they were entitled to immunity
from liability imposed by the judgment of the Provost Court. Thus, it is claimed, a
Federal question is presented, and the highest court of the State having decided
against the immunity claimed, our jurisdiction is invoked.
Assuming that the case is thus brought within our right to review it, the controlling
question is whether the commanding general of the army which captured New
Orleans and held it in May 1862, had authority after the capture of the city to
establish a court and appoint a judge with power to try and adjudicate civil causes.
Did the Constitution of the United States prevent the creation of the civil courts in
captured districts during the war of the rebellion, and their creation by military
authority?
This cannot be said to be an open question. The subject came under the
consideration by this court in The Grapeshot, where it was decided that when, during
the late civil war, portions of the insurgent territory were occupied by the National
forces, it was within the constitutional authority of the President, as commander in
chief, to establish therein provisional courts for the hearing and determination of all
causes arising under the laws of the States or of the United States, and it was ruled
that a court instituted by President Lincoln for the State of Louisiana, with authority to
hear, try, and determine civil causes, was lawfully authorized to exercise such
jurisdiction. Its establishment by the military authority was held to be no violation of
the constitutional provision that "the judicial power of the United States shall be
vested in one Supreme Court and in such inferior courts as the Congress may form
time to time ordain and establish." That clause of the Constitution has no application
to the abnormal condition of conquered territory in the occupancy of the conquering,
army. It refers only to courts of United States, which military courts are not. As was
said in the opinion of the court, delivered by Chief Justice Chase, in The Grapeshot,
"It became the duty of the National government, wherever the insurgent power was
overthrown, and the territory which had been dominated by it was occupied by the
National forces, to provide, as far as possible, so long as the war continued, for the
security of the persons and property and for the administration of justice. The duty of
the National government in this respect was no other than that which devolves upon
a regular belligerent, occupying during war the territory of another belligerent. It was
a military duty, to be performed by the President, as Commander in Chief, and
instructed as such with the direction of the military force by which the occupation was
held."
Thus it has been determined that the power to establish by military authority courts
for the administration of civil as well as criminal justice in portions of the insurgent
States occupied by the National forces, is precisely the same as that which exists
when foreign territory has been conquered and is occupied by the conquerors. What
that power is has several times been considered. In Leitensdorfer &
Houghton vs. Webb, may be found a notable illustration. Upon the conquest of New
Mexico, in 1846, the commanding officer of the conquering army, in virtue of the
power of conquest and occupancy, and with the sanction and authority of the
President, ordained a provisional government for the country. The ordinance created
courts, with both civil and criminal jurisdiction. It did not undertake to change the
municipal laws of the territory, but it established a judicial system with a superior or
appellate court, and with circuit courts, the jurisdiction of which declared to embrace,
first, all criminal causes that should not otherwise provided for by law; and secondly,
original and exclusive cognizance of all civil cases not cognizable before the prefects
and alcades. But though these courts and this judicial system were established by
the military authority of the United States, without any legislation of Congress, this
court ruled that they were lawfully established. And there was no express order for
their establishment emanating from the President or the Commander in Chief. The
ordinance was the act of the General Kearney the commanding officer of the army
occupying the conquered territory.
In view of these decisions it is not to be questioned that the Constitution did not
prohibit the creation by the military authority of court for the trial of civil causes during
the civil war in conquered portions of the insurgent States. The establishment of such
courts is but the exercise of the ordinary rights of conquest. The plaintiffs in error,
therefore, had no constitutional immunity against subjection to the judgements of
such courts. They argue, however, that if this be conceded, still General Butler had
no authority to establish such a court; that the President alone, as a Commander in
Chief, had such authority. We do not concur in this view. General Butler was in
command of the conquering and the occupying army. He was commissioned to carry
on the war in Louisina. He was, therefore, invested with all the powers of making
war, so far as they were denied to him by the Commander in Chief, and among these
powers, as we have seen, was of establishing courts in conquered territory. It must
be presumed that he acted under the orders of his superior officer, the President,
and that his acts, in the prosecution of the war, were the acts of his commander in
chief. (Mechanics' etc. Bank vs. Union Bank, 89 U. S. [22 Wall.], 276-298.)
There is no question, therefore, that when General of the Army Douglas MacArthur issued on
October Proclamation, he did it in the legitimate exercise of his powers. He did it as the
official representative of the supreme authority of the United States of America.
Consequently, said proclamation is legal, valid, and binding.
Said proclamation has the full force of a law. In fact, of a paramount law. Having been issued
in the exercise of the American sovereignty, in case of conflict, it can even supersede, not
only the ordinary laws of the Commonwealth of the Philippines, but also our Constitution
itself while we remain under the American flag.
"PROCESS" IN THE OCTOBER PROCLAMATION
In the third section of the dispositive part of the October Proclamation, it is declared that all
laws, regulations and processes of any other government in the Philippines than that of the
Commonwealth, are null and void.
Does the word "processes" used in the proclamation include judicial processes?
In its broadest sense, process is synonymous with proceedings or procedures and embraces
all the steps and proceedings in a judicial cause from it commencement to its conclusion.
PROCESS. In Practice. The means of compelling a defendant to appear in court
after suing out the original writ, in civil, and after indictment, in criminal cases.
The method taken by law to compel a compliance with the original writ or command
as of the court.
A writ, warrant, subpoena, or other formal writing issued by authority law; also the
means of accomplishing an end, including judicial proceedings;
Gollobitch vs. Rainbow, 84 la., 567; 51 N. W., 48; the means or method pointed out
by a statute, or used to acquire jurisdiction of the defendants, whether by writ or
notice. Wilson vs. R. Co. (108 Mo., 588; 18 S. W., 286; 32 Am. St. Rep., 624). (3
Bouvier's Law Dictionary, p. 2731.)
A. Process generally. 1. Definition. As a legal term process is a generic word of
every comprehensive signification and many meanings. It is broadest sense it is
equivalent to, or synonymous with, "proceedings" or "procedure," and embraces all
the steps and proceedings in a cause from its commencement to its conclusion.
Sometimes the term is also broadly defined as the means whereby a court compels a
compliance with it demands. "Process" and "writ" or "writs" are synonymous in the
sense that every writ is a process, and in a narrow sense of the term "process" is
limited to judicial writs in an action, or at least to writs or writings issued from or out of
court, under the seal thereof, and returnable thereto; but it is not always necessary to
construe the term so strictly as to limit it to a writ issued by a court in the exercise of
its ordinary jurisdiction; the term is sometimes defined as a writ or other formal
writing issued by authority of law or by some court, body, or official having authority
to issue it; and it is frequently used to designate a means, by writ or otherwise , of
acquiring jurisdiction of defendant or his property, or of bringing defendant into, or
compelling him to appear in, court to answer.
As employed in the statutes the legal meaning of the word "process" varies
according to the context, subject matter, and spirit of the statute in which it occurs. In
some jurisdictions codes or statutes variously define "process" as signifying or
including: A writ or summons issued in the course of judicial proceedings; all writs,
warrants, summonses, and orders of courts of justice or judicial officers; or any writ,
declaration, summons, order, or subpoena whereby any action, suit or proceeding
shall be commenced, or which shall be issued in or upon any action, suit or
proceeding. (50 C. J., PP. 441, 442.)
The definition of "process" given by Lord Coke comprehends any lawful warrant,
authority, or proceeding by which a man may be arrested. He says: "Process of law
is two fold, namely, by the King's writ, or by proceeding and warrant, either in deed or
in law, without writ." (People vs. Nevins [N. Y.] Hill, 154, 169, 170; State vs. Shaw, 50
A., 869; 73 Vt., 149.)
Baron Comyn says that process, in a large acceptance, comprehends the whole
proceedings after the original and before judgement; but generally it imports the writs
which issue out of any court to bring the party to answer, or for doing execution, and
all process out of the King's court ought to be in the name of the King. It is called
"process" because it proceeds or goes upon former matter, either original or judicial.
Gilmer, vs. Bird 15 Fla., 410, 421. (34 Words and Phrases, permanent edition, 1940
edition, p. 147.)
In a broad sense the word "process" includes the means whereby a court compels
the appearance of the defendant before it, or a compliance with it demands, and any
every writ, rule order, notice, or decree, including any process of execution that may
issue in or upon any action, suit, or legal proceedings, and it is not restricted to
mesne process. In a narrow or restricted sense it is means those mandates of the
court intending to bring parties into court or to require them to answer proceedings
there pending. (Colquitt Nat. Bank vs. Poitivint, 83 S. E., 198, 199; 15 Ga. App., 329.
(34 Words and Phrases, permanent edition, 1940 edition, p. 148.)
A "process" is an instrument in an epistolary from running in the name of the
sovereign of a state and issued out of a court of justice, or by a judge thereof, at the
commencement of an action or at any time during its progress or incident thereto,
usually under seal of the court, duly attested and directed to some municipal officer
or to the party to be bound by it, commanding the commission of some act at or
within a specified time, or prohibiting the doing of some act. The cardinal requisites
are that the instrument issue from a court of justice, or a judge thereof; that it run in
the name of the sovereign of the state; that it be duly attested, but not necessarily by
the judge, though usually, but not always, under seal; and that it be directed to some
one commanding or prohibiting the commission of an act. Watson vs. Keystone
Ironworks Co., 74 P., 272, 273; 70 Kan., 43. (34 Words and Phrases, permanent
edition, 1940 edition, p. 148.)
Jacobs in his Law Dictionary says: "Process" has two qualifications: First, it is largely
taken for all proceedings in any action or prosecution, real or personal, civil or
criminal, from the beginning to the end; secondly, that is termed the "process" by
which a man is called into any temporal court, because the beginning or principal
part thereof, by which the rest is directed or taken. Strictly, it is a proceeding after the
original, before the judgement. A policy of fire insurance contained the condition that
if the property shall be sold or transferred, or any change takes place in title or
possession, whether by legal process or judicial decree or voluntary transfer or
convenience, then and in every such case the policy shall be void. The term "legal
process," as used in the policy, means what is known as a writ; and, as attachment
or execution on the writs are usually employed to effect a change of title to property,
they are or are amongst the processes contemplated by the policy. The words "legal
process" mean all the proceedings in an action or proceeding. They would
necessarily embrace the decree, which ordinarily includes the proceedings.
Perry vs. Lorillard Fire Ins. Co., N. Y., 6 Lans., 201, 204. See, also,
Tipton vs. Cordova, 1 N. M., 383, 385. (34 Words and Phrases, permanent edition,
1940 edition, p. 148.)
"Process" in a large acceptation, is nearly synonymous with "proceedings," and
means the entire proceedings in an action, from the beginning to the end. In a stricter
sense, it is applied to the several judicial writs issued in an action. Hanna vs. Russell,
12 Minn., 80, 86 (Gil., 43, 45). (34 Words and Phrases, permanent edition, 1940,
edition 149.)
The term "process" as commonly applied, intends that proceeding by which a party is
called into court, but it has more enlarged signification, and covers all the
proceedings in a court, from the beginning to the end of the suit; and, in this view, all
proceedings which may be had to bring testimony into court, whether viva voce or in
writing, may be considered the process of the court. Rich vs. Trimple, Vt., 2 Tyler,
349, 350. Id.
"Process" in its broadest sense comprehends all proceedings to the accomplishment
of an end, including judicial proceedings. Frequently its signification is limited to the
means of bringing a party in court. In the Constitution process which at the common
law would have run in the name of the king is intended. In the Code process issued
from a court is meant. McKenna vs. Cooper, 101 P., 662, 663; 79 Kan., 847, quoting
Hanna vs. Russel, 12 Minn., 80. (Gil., 43 ); Black Com. 279; Bou vs. Law. Dict. (34
Words and Phrases, permanent edition 1940 edition, p. 149.)
"Judicial process" includes the mandate of a court to its officers, and a means
whereby courts compel the appearance of parties, or compliance with its commands,
and includes a summons. Ex parte Hill, 51 So., 786, 787; 165 Ala., 365.
"Judicial process" comprehends all the acts of then court from the beginning of the
proceeding to its end, and in a narrower sense is the means of compelling a
defendant to appear in court after suing out the original writ in civil case and after the
indictment in criminal cases, and in every sense is the act of the court and includes
any means of acquiring jurisdiction and includes attachment, garnishment, or
execution, and also a writ. Blair vs. Maxbass Security Bank of Maxbass, 176 N. W.,
98, 199; 44 N. D. 12 (23 Words and Phrases, permanent edition 1940 edition, p.
328.)
There is no question that the word process, as used in the October Proclamation, includes all
judicial processes or proceedings.
The intention of the author of the proclamation of including judicial processes appears clearly
in the preamble of the document.
The second "Whereas," states that so-called government styled as the "Republic of the
Philippines," based upon neither the free expression of the people's will nor the sanction of
the Government of the United States, and is purporting to the exercise Executive, Judicial,
and Legislative powers of government over the people."
It is evident from the above-mentioned words that it was the purpose of General MacArthur
to declare null and void all acts of government under the Japanese regime, and he used, in
section 3 of he dispositive part, the word laws, as pertaining to the legislative branch, the
word regulations, as pertaining to the executive branch, and lastly, the word processes, as
pertaining to the judicial branch of the government which functioned under the Japanese
regime.
It is reasonable to assume that he might include in the word "process." besides those judicial
character, those of executive or administrative character. At any rate, judicial processes
cannot be excluded.
THE WORDS OF PROCLAMATION EXPRESS UNMISTAKABLY
THE INTENTION OF THE AUTHOR
The October Proclamation is written in such a way that it is impossible to make a mistake as
to the intention of its author.
Oliver Wendell Holmes, perhaps the wisest man who had ever sat in the Supreme Court of
the United States, the following:
When the words in their literal sense have a plain meaning, courts must be very
cautious in allowing their imagination to give them a different one. Guild vs. Walter,
182 Mass., 225, 226 (1902)
Upon questions of construction when arbitrary rule is involved, it is always more
important to consider the words and the circumstances than even strong analogies
decisions. The successive neglect of a series of small distinctions, in the effort to
follow precedent, is very liable to end in perverting instruments from their plain
meaning. In no other branch of the law (trusts) is so much discretion required in
dealing with authority. . . . There is a strong presumption in favor of giving them
words their natural meaning, and against reading them as if they said something
else, which they are not fitted to express. (Merrill vs. Preston, 135 Mass., 451, 455
(1883).
When the words of an instrument are free from ambiguity and doubt, and express plainly,
clearly and distinctly the sense of the framer, there is no occasion to resort to other means of
interpretation. It is not allowable to interpret what needs no interpretation.
Very strong expression have been used by the courts to emphasize the principle that they
are to derive their knowledge of the legislative intention from the words or language of the
statute itself which the legislature has used to express it. The language of a statute is its
most natural guide. We are not liberty to imagine an intent and bind the letter to the intent.
The Supreme Court of the United States said: "The primary and general rule of statutory
construction is that the intent of the law-maker is to be found in the language that he has
used. He is presumed to know the meaning of the words and the rules of grammar. The
courts have no function of legislation, and simply seek to ascertain the will of the legislator. It
is true that there are cases in which the letter of the statute is not deemed controlling, but the
cases are few and exceptional and only arise where there are cogent reasons for believing
that the letter does not fully and accurately disclose the intent. No mere ommission, no mere
failure to provide for contingencies, which it may seem wise should have specifically
provided for will justify any judicial addition to the language of the statute." (United
States vs. Goldenberg, 168 U. S., 95, 102, 103; 18 S. C. Rep., 3; 42 Law. ed., 394.)
That the Government of the Commonwealth of the Philippines shall be the sole and only
government in our country; that our laws are in full force and effect and legally binding; that
"all laws, regulations and processes of any other government are null and void and without
legal effect", are provisions clearly, distinctly, unmistakably expressed in the October
Proclamation, as to which there is no possibility of error, and there is absolutely no reason in
trying to find different meanings of the plain words employed in the document.
As we have already seen, the annulled processes are precisely judicial processes,
procedures and proceedings, including the one which is under our consideration.
THE OCTOBER PROCLAMATION ESTABLISHES A CLEAR POLICY
Although, as we have already stated, there is no possible mistakes as to the meaning of the
words employed in the October Proclamation, and the text of the document expresses, in
clear-cut sentences, the true purposes of its author, it might not be amiss to state here what
was the policy intended to be established by said proclamation.
It is a matter of judicial knowledge that in the global war just ended on September 2, 1945,
by the signatures on the document of unconditional surrender affixed by representatives of
the Japanese government, the belligerents on both sides resorted to what may call war
weapons of psychological character.
So Japan, since its military forces occupied Manila, had waged an intensive campaign
propaganda, intended to destroy the faith of the Filipino people in America, to wipe out all
manifestations of American or occidental civilization, to create interest in all things Japanese,
which the imperial officers tried to present as the acme of oriental culture, and to arouse
racial prejudice among orientals and occidentals, to induce the Filipinos to rally to the cause
of Japan, which she tried to make us believe is the cause of the inhabitants of all East Asia.
It is, then, natural that General MacArthur should take counter-measures to neutralize or
annul completely all vestiges of Japanese influence, specially those which might jeopardize
in any way his military operations and his means of achieving the main objective of the
campaign of the liberation, that is, to restore in our country constitutional processes and the
high ideals constitute the very essence of democracy.
It was necessary to free, not only our territory, but also our spiritual patrimony. It was
necessary, not only to restore to us the opportunity of enjoying the physical treasures which
a beneficent Providence accumulated on this bountiful land, the true paradise in the western
Pacific, but to restore the full play of our ideology, that wonderful admixture of sensible
principles of human conduct, bequeathed to us by our Malayan ancestors, the moral
principles of the Christianity assimilated by our people from teachers of Spain, and the
common-sense rules of the American democratic way of life.
It was necessary to free that ideology from any Japanese impurity.
Undoubtedly, the author of the proclamation thought that the laws, regulations, and
processes of all the branches of the governments established under the Japanese regime, if
allowed to continue and to have effect, might be a means of keeping and spreading in our
country the Japanese influence, with the same deadly effects as the mines planted by the
retreating enemy.
The government offices and agencies which functioned during the Japanese occupation
represented a sovereignty and ideology antagonistic to the sovereignty and ideology which
MacArthur's forces sought to restore in our country.
Under chapter I of the Japanese Constitution, it is declared that Japan shall reigned and
governed by a line Emperors unbroken for ages eternal (Article 1); that the Emperor is
sacred and inviolable (Article 3); that he is the head of the Empire, combining in himself the
rights of the sovereignty (Article 4); that he exercises the legislative power (Article 5); that he
gives sanction to laws, and orders to be promulgated and executed (Article 6);that he has the
supreme command of the Army and Navy (Article 11); that he declares war, makes peace,
and concludes treaties (Article 13).
There is no reason for allowing to remain any vestige of Japanese ideology, the ideology of a
people which as confessed in a book we have at our desk, written by a Japanese, insists in
doing many things precisely in a way opposite to that followed by the rest of the world.
It is the ideology of a people which insists in adopting the policy of self-delusion; that
believes that their Emperor is a direct descendant of gods and he himself is a god, and that
the typhoon which occured on August 14, 1281, which destroyed the fleet with which Kublai
Khan tried to invade Japan was the divine wind of Ise; that defies the heinous crime of the
ronin, the 47 assassins who, in order to avenge the death of their master Asano Naganori,
on February 3, 1703, entered stealthily into the house of Yoshinaka Kiro and killed him
treacherously.
It is an ideology which dignifies harakiri or sepukku, the most bloody and repugnant from
suicide, and on September 13, 1912, on the occasion of the funeral of Emperor Meiji,
induced General Maresuke Nogi and his wife to practice the abhorrent "junshi", and example
of which is offered to us in the following words of a historian:
When the Emperor's brother Yamato Hiko, died in 2 B. C., we are told that, following
the occasion, his attendants were assembled to from the hito-bashira (pillar-men) to
gird the grave. They were buried alive in circle up to the neck around the thomb and
"for several days they died not, but wept and wailed day night. At last they died not,
but wept and wailed day night. At last they did not rotted. Dogs and cows gathered
and ate them." (Gowen, an Outline of History of Japan, p. 50.)
The practice shows that the Japanese are the spiritual descendants of the Sumerians, the
ferocious inhabitants of Babylonia who, 3500 years B. C., appeared in history as the first
human beings to honor their patesis by killing and entombing with him his window, his
ministers, and notable men and women of his kingdom, selected by the priests to partake of
such abominable honor. (Broduer, The Pageant of Civilization, pp. 62-66.)
General MacArthur sought to annul completely the officials acts of the governments under
the Japanese occupation, because they were done at the shadow of the Japanese
dictatorship, the same which destroyed the independence of Korea, the "Empire of Morning
Frehsness"; they violated the territorial integrity of China, invaded Manchuria, and initiated
therein the deceitful system of puppet governments, by designating irresponsible Pu Yi as
Emperor of Manchukuo; they violated the trusteeship granted by the Treaty of Versailles by
usurping tha mandated islands in the Pacific; they initiated that they call China Incident,
without war declaration, and, therefore, in complete disregard of an elemental international
duty; they attacked Pearl Harbor treacherously, and committed a long series of the flagrant
violations of international law that have logically bestowed on Japan the title of the bandit
nation in the social world.
The conduct of the Japanese during the occupation shows a shocking an anchronism of a
modern world power which seems to be re-incarnation of one whose primitive social types of
pre-history, whose proper place must be found in an archeological collection. It represents a
backward jump in the evolution of ethical and juridical concepts, a reversion that, more than
a simple pathological state, represents a characteristics and well defined case of sociological
teratology.
Since they entered the threshold of our capital, the Japanese had announced that for every
one of them killed they would kill ten prominent Filipinos. They promised to respect our rights
by submitting us to the wholesale and indiscriminate slapping, tortures, and atrocious
massacres. Driving nails in the cranium, extraction of teeth and eyes, burnings of organs,
hangings, diabolical zonings, looting of properties, establishments of redlight districts,
machine gunning of women and children, interment of alive persons, they are just mere
preludes of the promised paradised that they called "Greater East Asia Co-Prosperity
Sphere".
They promised religious liberty by compelling all protestant sects to unite, against the
religious scruples and convictions of their members, in one group, and by profaning
convents, seminaries, churches, and other cult centers of the Catholics, utilizing them as
military barracks, munitions dumps, artillery base, deposits of bombs and gasoline, torture
chambers and zone, and by compelling the government officials and employees to face and
to bow in adoration before that caricature of divinity in the imperial palace of Tokyo.
The Japanese offered themselves to be our cultural mentors by depriving us of the use of
our schools and colleges, by destroying our books and other means of culture, by falsifying
the contents of school texts, by eliminating free press, the radio, all elemental principles of
civilized conduct, by establishing classes of rudimentary Japanese so as to reduce the
Filipinos to the mental level of the rude Japanese guards, and by disseminating all kinds of
historical, political, and cultural falsehoods.
Invoking our geographical propinquity and race affinity, they had the insolence of calling us
their brothers, without the prejuce of placing of us in the category of slaves, treating the most
prominent Filipinos in a much lower social and political category than that of the most
ignorant and brutal subject of the Emperor.
The civil liberties of the citizens were annulled. Witnesses and litigants were slapped and
tortured during investigations. In the prosecuting attorney's offices, no one was safe. When
the Japanese arrested a person, the lawyer who dared to intercede was also placed under
arrest. Even courts were not free from their dispotic members. There were judges who had to
trample laws and shock their conscience in order not to disgust a Nipponese.
The most noble of all professions, so much so that the universities of the world could not
conceive of higher honor that may be conferred than that of Doctor of Laws, became the
most despised. It was dangerous to practice the profession by which faith in the
effectiveness of law is maintained; citizens feel confident in the protection of their liberties,
honor, and dignity; the weak may face the powerful; the lowest citizen is not afraid of the
highest official; civil equality becomes reality; justice is admnistered with more efficiency; and
democracy becomes the best system of government and the best guaranty for the welfare
and happiness of the individual human being. In fact, the profession of law was annulled, and
the best lawyers for the unfortunate prisoners in Fort Santiago and other centers of torture
were the military police, concubines, procurers, and spies, the providers of war materials and
shameful pleasures, and the accomplices in fraudulent transactions, which were the
specialty of many naval and military Japanese officers.
The courts and Filipino government officials were completely helpless in the question of
protecting the constitutional liberties and fundamental rights of the citizens who happen to be
unfortunate enough to fall under the dragnet of the hated kempei. Even the highest
government officials were not safe from arrest and imprisonment in the dreaded military
dungeons, where torture or horrible death were always awaiting the defenseless victim of the
Japanese brutality.
May any one be surprised if General MacArthur decided to annul all the judicial processes?
The evident policy of the author of the October Proclamation can be seen if we take into
consideration the following provisions of the Japanese Constitution:
ART. 57. The Judicature shall be exercised by the Courts of Law according to law, in
the name of the Emperor.
ART. 61. No suit at law, which relates to rights alleged to have been infringed by the
illegal measures of the executive authority .. shall be taken cognizance of by a Court
of Law.
INTERNATIONAL LAW
Nobody dared challenge the validity of the October Proclamation.
Nobody dared challenge the authority of the military Commander in Chief who issued it.
Certainly not because of the awe aroused by the looming figure of General of the Army
Douglas MacArthur, the Allied Supreme Commander, the military hero, the greatest
American general, the Liberator of the Philippines, the conqueror of Japan, the gallant soldier
under whose authority the Emperor of the Japan, who is supposed to rule supreme for ages
as a descendant of gods, is receiving orders with the humility of a prisoner of war.
No challenge has been hurled against the proclamation or the authority of the author to issue
it, because everybody acknowledges the full legality of its issuance.
But because the proclamation will affect the interest and the rights of a group of individuals,
and to protect the same, a way is being sought to neutralize the effect of the proclamation.
The way found is to invoke international law. The big and resounding word is considered as
a shibboleth powerful enough to shield the affected persons from the annulling impact.
Even then, international law is not invoked to challenge the legality or authority of the
proclamation, but only to construe it in a convenient way so that judicial processes during the
Japanese occupation, through an exceptional effort of the imagination, might to segregated
from the processes mentioned in the proclamation.
An author said that the law of nations, the "jus gentiun", is not a fixed nor immutable science.
On the country, it is developing incessantly, it is perpetually changing in forms. In each turn it
advances or recedes, according to the vicissitudes of history, and following the monotonous
rythm of the ebb and rise of the tide of the sea.
Le driot des gens, en effet, n'est point une science fixe est immuable: bein au
contraire, il se developpe sans cesse, il change eternellement de formes; tour il
avance et il recule, selon less vicissitudes de histoire et suivan un rhythm monotone
qui est comme le flux et le reflux d'un mer. (M. Revon, De l'existence du driot
international sous la republique romain.)
Another author has this to say:
International law, if it is or can be a science at all, or can be, at most a regulative
science, dealing with the conduct of States, that is, human beings in a certain
capacity; and its principles and prescriptions are not, like those of science proper,
final and unchanging. The substance of science proper is already made for man; the
substance of international is actually made by man, and different ages make
differently." (Coleman Philippson, The International Law and Custom of Ancient
Greece of Rome, Vol. I, p. 50.)
"Law must be stable, and yet it cannot stand still." (Pound, Interpretations of Legal History.,
p. 1. ) Justice Cardozo adds: "Here is the great antimony confronting us at every turn. Rest
and motion, unrelieved and unchecked, are equally destructive. The law, like human kind, if
life is to continue, must find some path compromise." (The Growth of Law p. 2.) Law is just
one of the manifestations of human life, and "Life has relations not capable of division into
inflexible compartments. The moulds expand and shrink," (Glanzer vs.Shepard, 233 N.Y.,
236, 241.)
The characteristic plasticity of law is very noticeable, much more than in any other
department, in international law.
In a certain matters it is clear we have made substantial progress, but in other points,
he (M. Revon) maintains, we have retrograded; for example, in the middle ages the
oath was not always respected as faithfully as in ancient Rome; and nearer our own
times, in the seventeenth century, Grotius proclaims the unquestioned right of the
belligerents to massacre the women and the children of the enemy; and in our more
modern age the due declaration of war which Roman always conformed to has not
been invariably observed. (Coleman Philippson, The International Law and Custom
of Ancient Greece and Rome, Vol. I, p. 209.)
Now let us see if any principle of international law may effect the enforcement of the October
Proclamation.
In this study we should be cautioned not to allow ourselves to be deluded by generalities and
vagueness which are likely to lead us easily to error, in view of the absence of codification
and statutory provisions.
Our Constitution provides:
The Philippines renounces war as an instrument of national policy, and adopts the
generally accepted principles of international law as part of the law of the Nation.
(Sec. 3, Art. II.)
There being no codified principles of international law, or enactments of its rules, we cannot
rely on merely legal precepts.
With the exception of international conventions and treaties and, just recently, the Charter of
the United Nations, adopted in San Francisco Conference on June 26, 1945, we have to rely
on unsystemized judicial pronouncements and reasonings and on theories, theses, and
propositions that we may find in the works of authors and publicists.
Due to that characteristic pliability and imprecision of international law, the drafters of our
Constitution had to content themselves with "generally accepted principles."
We must insists, therefore, that the principles should be specific and unmistakably defined
and that there is definite and conclusive evidence to the effect that they generally accepted
among the civilized nations of the world and that they belong to the current era and no other
epochs of history.
The temptation of assuming the role of a legislator is greater in international law than in any
other department of law, since there are no parliaments, congresses, legislative assemblies
which can enact laws and specific statutes on the subject. It must be our concern to avoid
falling in so a great temptation, as its, dangers are incalculable. It would be like building
castles in the thin air, or trying to find an exit in the thick dark forest where we are
irretrievably lost. We must also be very careful in our logic. In so vast a field as international
law, the fanciful wandering of the imagination often impair the course of dialistics.
THE OCTOBER PROCLAMATION AND INTERNATIONAL LAW
Is there any principle of international law that may effect the October Proclamation?
We tried in vain to find out in the majority opinion anything as to the existence of any
principle of international law under which the authority of General MacArthur to issue the
proclamation can effectively be challenged.
No principle of international law has been, or could be invoked as a basis for denying the
author of the document legal authority to issue the same or any part thereof.
We awaited in vain for any one to dare deny General MacArthur the authority, under
international law, to declare null and void and without effect, not only the laws and
regulations of the governments under the Japanese regime, but all the processes of said
governments, including judicial processes.
If General MacArthur, as commander in Chief of the American Armed Forces of Liberation,
had authority, full and legal, to issue the proclamation, the inescapable result will be the
complete viodance and nullity of all judicial processes, procedures, and proceedings of all
courts under the Japanese regime.
But those who are sponsoring the cause of said judicial processes try to achieve their aim,
not by direct means, but by following a tortuous side-road.
They accept and recognize the full authority of the author of the proclamation to issue it and
all its parts, but they maintain that General MacArthur did not and could not have in mind the
idea of nullifying the judicial processes during the Japanese occupation, because that will be
in violation of the principles of international law.
If we follow the reasoning of the majority opinion we will have to reach the conlusion that the
world "processes" does not appear at all in the October Proclamation.
It is stated more than once, and reiterated with dogmatic emphasis, that under the principles
of international law the judicial processes under an army occupation cannot be invalidated.
But we waited in vain for the specific principle of international law, only one of those alluded
to, to be pointed out to us.
If the law exist, it can be pointed out. If the principle exists, it can stated specifically. The
word is being used very often in plural, principles, but we need only one to be convinced.
The imagined principles are so shrouded in a thick maze of strained analogies and
reasoning, that we confess our inability even to have a fleeting glimpse at them through their
thick and invulnerable wrappers.
At every turn international law, the blatant words, are haunting us with the deafening bray of
a trumpet, but after the transient sound has fled away, absorbed by the resiliency of the vast
atmosphere, the announced principles, which are the very soul of international law, would
disappear too with the lighting speed of a vanishing dream.
WEAKNESS OF THE MAJORITY POSITION
In the majority opinion three questions are propounded: first, whether judicial acts and
proceedings during the Japanese occupation are valid even after liberation; second whether
the October Proclamation had invalidated all judgement and judicial proceedings under the
Japanese regime; and third, whether the present courts of the Commonwealth may continue
the judicial proceedings pending at the time of liberation.
As regards the first question, it is stated that it is a legal tourism in political and international
law that all acts of ade facto government are good and valid, that the governments
established during the Japanese occupation. that is, the Philippine Executive Commission
and the Republic of the Philippines, were de facto governments, and that it necessarily
follows that the judicial acts and proceedings of the courts of those governments, "which are
not of a political complexion," were good and valid, and by virtue of the principle
of postliminium, remain good and valid after the liberation.
In the above reasoning we will see right away how the alleged legal truism in political and
international law, stated as a premise in a sweeping way, as an absolute rule, is immediately
qualified by the exception as to judicial acts and proceedings which are of a "political
complexion."
So it is the majority itself which destroys the validity of what it maintains as a legal truism in
political and international law, by stating from the beginning of the absolute proposition that
all acts and proceedings of the legislative, executive, and judicial departments of a de
facto governments are good and valid.
It is be noted that no authority, absolutely no authority, has been cited to support the
absolute and sweeping character of the majority proposition as stated in their opinion.
No authority could be cited, because the majority itself loses faith in the validity of such
absolute and sweeping proposition, by establishing an unexplained exception as regards the
judicial acts and proceedings of a "political complexion."
Besides, it is useless to try to find in the arguments of the majority anything that may
challenge the power, the authority of a de jure government to annul the official acts of a de
facto government, or the legal and indisputable authority of the restored legitimate
government to refuse to recognize the official acts, legislative, executive and judicial, of the
usurping government, once the same is ousted.
As to the second question, the majority argues that the judicial proceedings and judgments
of the de factogovernments under the Japanese regime being good and valid, "it should be
presumed that it was not, and could not have been, the intention of General Douglas
MacArthur to refer to judicial processes, when he used the last word in the October
Proclamation, and that it only refers to government processes other than judicial processes
or court proceedings."
The weakness and absolute ineffectiveness of the argument are self-evident.
It is maintained that when General MacArthur declared the processes of the governments
under the Japanese regime null and void, he could not refer to judicial processes, because
the same are valid and remained so under the legal truism announced by the majority to the
effect that, under political and international law, all official acts of a de facto government,
legislative, executive or judicial, are valid.
But we have seen already how the majority excepted from said legal truism the judicial
processes of "political complexion."
And now it is stated that in annulling the processes of the governments under Japanese
occupation, General MacArthur referred to "processes other than judicial processes."
That is, the legislative and executive processes.
But, did not the majority maintain that all acts and proceedings of legislative and executive
departments of a de facto governments are good and valid? Did it not maintain that they are
so as a "legal truism in political and international law?"
Now if the reasoning of the majority to the effect that General MacArthur could not refer to
judicial processes because they are good and valid in accordance with international law, why
should the same reasoning not apply to legislative and executive processes?
Why does the majority maintain that, notwithstanding the fact that, according that said legal
truism, legislative and executive official acts of de facto governments are good and valid,
General MacArthur referred to the latter in his annulling proclamation, but not to judicial
processes?
If the argument is good so as to exclude judicial processes from the effect of the October
Proclamation, we can see no logic in considering it bad with respect to legislative and
executive processes.
If the argument is bad with respect to legislative and executive processes, there is no logic in
holding that it is not good with respect to judicial processes.
Therefore, if the argument of the majority opinion is good, the inevitable conclusion is that
General MacArthur did not declare null and void any processes, at all, whether legislative
processes, executive processes, or judicial processes, and that the word "processes" used
by him in the October Proclamation is a mere surplusage or an ornamental literary appendix.
The absurdity of the conclusion unmasks the utter futility of the position of the majority, which
is but a mere legal pretense that cannot stand the least analysis or the test of logic.
A great legal luminary admonished that we must have courage to unmasks pretense if we
are to reach a peace that will abide beyond the fleeting hour.
It is admitted that the commanding general of a belligerent army of occupation as an agent of
his government, "may not unlawfully suspend existing laws and promulgate new ones in the
occupied territory if and when exigencies of the military occupation demand such action," but
it is doubted whether the commanding general of the army of the restored legitimate
government can exercise the same broad legislative powers.
We beg to disagree with a theory so unreasonable and subversive.
We cannot accept that the commanding general of an army of occupation, of a rebellious
army, of an invading army, or of a usurping army, should enjoy greater legal authority during
the illegal, and in the case of the Japanese, iniquitous and bestial occupation, than the
official representative of the legitimate government, once restored in the territory wrested
from the brutal invaders and aggressors. We cannot agree with such legal travesty.
Broad and unlimited powers are granted and recognized in the commanding general of an
army of invasion, but the shadow of the vanishing alleged principle of international law is
being brandished to gag, manacle, and make completely powerless the commander of an
army of liberation to wipe out the official acts of the government for usurpation, although said
acts might impair the military operation or neutralize the public policies of the restored
legitimate government.
We are not unmindful of the interest of the persons who might be adversely affected by the
annulment of the judicial processes of the governments under the Japanese regime, but we
cannot help smiling when we hear that chaos will reign or that the world will sink.
It is possible that some criminals will be let loose unpunished, but nobody has ever been
alarmed that the President, in the exercise of his constitutional powers of pardon and
amnesty, had in the past released many criminals from imprisonment. And let us not forget
that due to human limitations, in all countries, under all governments, in peace or in war,
there were, there are, and there will always be unpunished criminals, and that situation never
caused despair to any one.
We can conceive of inconveniences and hardships, but they are necessary contributions to
great and noble purposes. Untold sacrifices were always offered to attain high ideals and in
behalf of worthy causes.
We cannot refrain from feeling a paternal emotion for those who are trembling with all
sincerity because of the belief that the avoidance of judicial proceedings of the governments
under the Japanese regime "would paralyze the social life of the country." To allay such fear
we must remind them that the country that produced many great hereos and martyrs; that
contributed some of highest morals figures that humanity has ever produced in all history;
which inhabited by a race which was able to traverse in immemorial times the vast expanses
of the Indian Ocean and the Pacific with inadequate means of navigation, and to inhabit in
many islands so distantly located, from Madagascar to the eastern Pacific; which made
possible the wonderful resistance of Bataan and Corregidor, can not have a social life so frail
as to be easily paralyzed by the annulment of some judicial proceedings. The Japanese
vandalisms during the last three years of nightmares and bestial oppression, during the long
period of our national slavery, and the wholesale massacres and destructions in Manila and
many other cities and municipalities and populated areas, were not able to paralyze the
social life of our people. Let us not loss faith so easily in the inherent vitality of the social life
of the people and country of Rizal and Mabini.
It is insinuated that because of the thought that the representative of the restored sovereign
power may set aside all judicial processes of the army of occupation, in the case to courts of
a future invasions, litigants will not summit their cases to courts whose judgement may
afterwards be annulled, and criminals would not be deterred from committing offenses in the
expectancy that they may escape penalty upon liberation of the country. We hope that
Providence will never allow the Philippines to fall again under the arms of an invading army,
but if such misfortune will happen, let the October Proclamation serve as a notice to the
ruthless invaders that the official acts of the government of occupation will not merit any
recognition from the legitimate government, especially if they should not conduct themselves,
as exemplified by the Japanese, in accordance with the rules of action of a civilized state.
One conclusive evidence of the untenableness of the majority position is the fact that it had
to resort to Executive Order No. 37, issued on March 10, 1945, providing "that all cases that
have heretofore been appealed to the Court of Appeals shall be transmitted to the Supreme
Court for final decision." The far-fetched theory is advanced that this provision impliedly
recognizes the court processes during the Japanese military occupation, on the false
assumption that it refers to the Court of Appeals existing during the Japanese regime. It is
self-evident that the Executive Order could have referred only to the Commonwealth Court of
Appeals, which is the one declared abolished in said order. Certainly no one will entertain the
absurd idea that the President of the Philippines could have thought of abolishing the Court
of Appeals under the government during the Japanese occupation. Said Court of Appeals
disappeared with the ouster of the Japanese military administration from which it derived its
existence and powers. The Court of Appeals existing on March 10, 1945, at the time of the
issuance of Executive Order No. 37, was the Commonwealth Court of Appeals and it was the
only one that could be abolished.
Without discussing the correctness of principle stated the majority opinion quotes from
Wheaton the following: "Moreover when it is said that occupier's acts are valid and under
international law should not be abrogated by the subsequent conqueror, it must be
remembered that on crucial instances exist to show that if his acts should be reversed, any
international wrong would be committed. What does happen is that most matters are allowed
to stand by the stored government, but the matter can hardly be put further than this."
(Wheaton, International Law, War, 7th English edition of 1944, p. 245)
Then it says that there is no doubt that the subsequent conqueror has the right to abrogate
most of the acts of the occupier, such as the laws, regulations and processes other than the
judicial of the government established by the belligerent occupant.
It is evident that the statement just quoted is a complete diversion from the principle stated in
the in an unmistakable way by Wheaton, who says in definite terms that "it must be
remembered that no crucial instances exist to show that if his acts (the occupant's) should be
reversed, any international wrong would be committed."
It can be clearly seen that Wheaton does not make any distinction or point out any exception.
But in the majority opinion the principle is qualified, without stating any reason therefore, by
limiting the right of the restored government to annul "most of the acts of the occupier" and
"processes other than judicial."
The statement made by the respondent judge after quoting the above-mentioned principle,
as stated by Wheaton, to the effect that whether the acts of military occupant should be
considered valid or not, is a question that is up to the restored government to decide, and
that there is no rule of international law that denies to the restored government the right to
exercise its discretion on the matter, is quoted without discussion in the majority opinion.
As the statement is not disputed, wee are entitled to presume that it is concurred in and,
therefore, the qualifications made in the statement in the majority opinion seem to completely
groundless.
THE DUTIES IMPOSED ON OCCUPANT ARMY ARE NOT LIMITATIONS TO THE RIGHTS
OF THE LEGITIMATE GOVERNMENT
The majority opinion is accumulating authorities to show the many duties imposed by
international law on the military occupant of an invaded country.
And from said duties it is deduced that the legitimate government, once restored in his own
territory, is bound to respect all the official acts of the government established by the
usurping army, except judicial processes political complexion.
The reasoning calls for immediate opposition. It is absolutely contrary to all principles of
logic.
Between the duties imposed in the military occupant and the legal prerogatives of the
legitimate government there are no logical relationship or connection that might bind the
ones with the others.
The military occupants is duty bound to protect the civil rights of the inhabitants, but why
should the legitimate government necessarily validate the measures adopted by the said
occupant in the performance of this duty, if the legitimate government believes his duty to
annul them for weighty reasons?
The military occupant is duty bound to establish courts of justice. Why should the legitimate
government validate the acts of said courts, if it is convinced that said courts were absolutely
powerless, as was the case during the Japanese occupation, to stop the horrible abuses of
the military police, to give relief to the victims of zoning and Fort Santiago tortures, to protect
the fundamental human rights of the Filipinos life, property, and personal freedom?
The majority opinion recognizes in the military occupant the power to annul the official acts of
the ousted and supplanted legitimate government, a privilege which is inversely denied to the
last. This preference and predilection in favor of the military occupant, that is in favor of the
invader and usurper, and against the legitimate government, is simply disconcerting, if we
have to say the least.
PRESUMPTIONS AND SUPPOSITIONS AGAINST TRUTH AND FACTS
The invading military occupant is duty bound to establish and maintain courts of justice in the
invaded territory, for the protection of the inhabitants thereof. It is presumed that the restored
legitimate government will respect the acts of said courts of the army of occupation.
Therefore, it is a principle of international law that said acts are valid and should be
respected by the legitimate government. It is presumed that General MacArthur is
acquainted with such principle, discovered or revealed through presumptive operations, and
it is presumed that he had not the intention of declaring null and void the judicial processes
of the government during the Japanese regime. Therefore, his October Proclamation,
declaring null and void and without effect "all processes" of said governments, in fact, did not
annul the Japanese regime judicial processes.
So run the logic of the majority.
They don't mind the that General MacArthur speaks in the October Proclamation as follows:
NOW, THEREFORE, I, Douglas MacArthur, General, United States Army, as Commander-
in-Chief of the military forces committed to the liberation of the Philippines, do
hereby proclaim and declare:
xxx xxx xxx
3. That all laws, regulations and processes of any other government in the Philippines than
that of the said Commonwealth are null and void and without legal effect in areas of the
Philippines free of enemy occupation and control. (emphasis supplied.)
General MacArthur says categorically "all processes", but the majority insists on reading
differently, that, is: "NOT ALL processes." The majority presume, suppose, against the
unequivocal meaning of simple and well known words, that when General MacArthur said
"all processes", in fact, he said "not all processes", because it is necessary, by presumption,
by supposition, to exclude judicial processes.
If where General MacArthur says "all", the majority shall insist on reading "not all", it is
impossible to foresee the consequences of such so stubborn attitude, but it is possible to
understand how they reached the unacceptable possible conclusion which we cannot be
avoid opposing and exposing.
Are we to adopt and follow the policy of deciding cases submitted to our consideration, by
presumption and suppositions putting aside truths and facts? Are we to place in the
documents presented to us, such as the October Proclamation, different words than what are
written therein? Are we to read "not all", where it is written "all"?
We are afraid to such procedure is not precisely the most appropriate to keep public
confidence in the effectiveness of the administration of justice.
That is why we must insists that in the October Proclamation should be read what General
MacArthur has written in it, that is, that, besides laws and regulations, he declared and
proclaimed null and void "ALL PROCESSES", including naturally judicial processes, of the
governments under the Japanese regime.
THE COMMONWEALTH COURTS HAVE NO JURISDICTION TO CONTINUE JAPANESE
REGIME JUDICIAL PROCESSES
Now we come to the third and last question propounded in the majority opinion.
The jurisdiction of the Commonwealth tribunals is defined, prescribed, and apportioned by
legislative act.
It is provided so in our Constitution. (Section 2, Article VIII.)
The Commonwealth courts of justice are continuations of the courts established before the
inauguration of the Commonwealth and before the Constitution took effect on November 15,
1935. And their jurisdiction is the same as provided by existing laws at the time of
inauguration of the Commonwealth Government.
Act No. 136 of the Philippine Commission, known as the Organic Act of the courts of justice
of the Philippines, is the one that defines the jurisdiction of justice of the peace and municipal
courts, Courts of First Instance, and the Supreme Court. It is not necessary to mention here
the jurisdiction of the Court of Appeals, because the same has been abolished by Executive
Order No. 37.
No provision may be found in Act. No. 136, nor in any other law of the Philippines, conferring
on the Commonwealth tribunals jurisdiction to continue the judicial processes or proceedings
of tribunals belonging to other governments, such as the governments established during the
Japanese occupation.
The jurisdiction of our justice of the peace and municipal courts is provided in section 68,
chapter V, of Act No. 136. The original and appellate jurisdiction of the Courts of First
Instance is provided in the sections 56, 57, Chapter IV, of Act No. 136. The original and
appellate jurisdiction of the Supreme Court is provided in 17 and 18, Chapter II, of the same
Act. The provisions of the above-cited do not authorize, even implicitly, any of the decisions
and judgements of tribunals of the governments, nor to continue the processes or
proceedings of said tribunals.
NECESSITY OF ENABLING ACT UNDER THE LEGAL DOCTRINE PREVAILING IN THE
PHILIPPINES AND IN THE UNITED STATES
Taking aside the question as to whether the judicial processes of the government
established during the Japanese occupation should be considered valid or not, in order that
said processes could be continued and the Commonwealth tribunals could exercise proper
jurisdiction to continue them, under the well- established legal doctrine, prevailing not only in
the Philippines, but also in the proper enabling law.
Almost a half a century ago, in the instructions given by President McKinley on April 7, 1900,
for the guidance of the Philippine Commission, it was stated that, in all the forms of the
govenment and administrative provisions which they were authorized to prescribed, the
Commission should bear in mind that the government which they were establishing was
designed not for the satisfaction of the Americans or for the expression of their of their
theoretical views, but for the happiness, peace and prosperity of the people of the
Philippines, and the measures adopted should be made to conform to their customs, their
habits, and even their prejudices, to the fullest extent consistent with the accomplishment of
the indispensable requisites of just and effective government.
Notwithstanding the policy so outlined, it was not enough for the Philippine Commission to
create and establish the courts of justice provided in Act No. 136, in order that said tribunals
could take cognizance and continue the judicial proceedings of the tribunals existing in the
Philippines at the time the American occupation.
It needed specific enabling provisions in order that the new tribunals might continue the
processes pending in the tribunals established by the Spaniards, and which continued to
function until they were substituted by the courts created by the Philippine Commission.
So it was done in regards to the transfer of the cases pending before the Spanish Audiencia
to the newly created Supreme Court, in sections 38 and 39 of Act No. 136 quoted as follows:
SEC. 38. Disposition of causes, actions, proceedings, appeals, records, papers, and
so forth, pending in the existing Supreme Court and in the "Contencioso
Administravo." All records, books, papers, causes, actions, proceedings, and
appeals logged, deposited, or pending in the existing Audiencia or Supreme Court, or
pending by appeal before the Spanish tribunal called "Contencioso Administravo,"
are transferred to the Supreme Court above provided for which, has the same power
and jurisdiction over them as if they had been in the first instance lodged, filed, or
pending therein, or, in case of appeal, appealed thereto.
SEC. 39. Abolition of existing Supreme Court. The existing Audiencia or Supreme
Court is hereby abolished, and the Supreme Court provided by this Act is substituted
in place thereof.
Sections 64 and 65 of the same Act allowed the same procedure as regards the transfer of
cases and processes pending in the abolished Spanish Courts of First Instance to the
tribunals of the same name established by the Philippine Commission.
SEC. 64. Disposition of records, papers, causes, and appeals, now pending in the
existing Courts of First Instance. All records, books, papers, actions, proceedings,
and appeals lodged, deposited, or pending in the Court of First Instance as now
constituted of or any province are transferred to the Court of First Instance of such
province hereby established, which shall have the same power and jurisdiction over
them as if they had been primarily lodged, deposited, filed, or commenced therein, or
in case of appeal, appealed thereto.
SEC. 65. Abolition of existing Courts of First Instance. The existing Courts First
Instance are hereby abolished, and the Courts of First Instance provided by this Act
are substituted in place thereof.
The same procedure has been followed by the Philippine Commission eventhough the courts
of origin of the judicial processes to be transferred and continued belonged to the same
government and sovereignty of the courts which are empowered to continue said processes.
So section 78 of Act No. 136, after the repeal of all acts conferring upon American provost
courts in the Philippines jurisdiction over civil actions, expressly provided that said civil
actions shall be transferred to the newly created tribunals.
And it provided specifically that "the Supreme Court, Courts of the First Instance and courts
of the justice of the peace established by this Act (No. 136) are authorized to try and
determine the actions so transferred to them respectively from the provost courts, in the
same manner and with the same legal effect as though such actions had originally been
commenced in the courts created" by virtue of said Act.
MUNICIPAL COURTS UNDER ACT NO. 183
On July 30, 1901, the Philippine Commission enacted the Organic Act of the City of Manila,
No. 183.
Two municipal courts for the city were created by section 40 of said Act, one for the northern
side of Pasig River and the other for the southern side.
They were courts with criminal jurisdiction or identical cases under the jurisdiction of the
justices of the peace then existing in Manila. Although both courts were of the same
jurisdiction, in order that the criminal cases belonging to the justice of the peace courts may
be transferred to the municipal courts just created, and the proceedings may be continued by
the same, the Philippine Commission considered it necessary to pas the proper enabling act.
So on August 5, 1901, it enacted Act No. 186, section 2 of which provides that all criminal
cases and proceedings pending in the justices of the peace of Manila are transferred to the
municipal courts, which are conferred the jurisdiction to continue said cases and
proceedings.
THE CABANTAG CASE
On August 1, 1901, Narciso Cabantag was convicted of murder by a military commission.
(Cabantag vs. Wolfe, 6 Phil., 273.) The decision was confirmed on December 10, 1901, and
his execution by hanging was set for January 12,1902. .
On December 26, 1901, he fled, but surrendered to the authorities on July 18, 1902. The
Civil Governor on December 2, 1903, commuted the death penalty to 20 years
imprisonment. The commutation was approved by the Secretary of War, following
instructions of the President.
Cabantag filed later a writ of habeas corpus on the theory that, with the abolition of the
military commission which convicted him, there was no existing tribunal which could order
the execution of the penalty of imprisonment.
The Supreme Court denied the writ, but stated that, if the petitioner had filed the writ before
the enactment of Act No. 865, the question presented to the Supreme Court would have
been different.
Act No. 865, enacted on September 3, 1903, is enabling law, wherein it is provided that
decisions rendered by the provost courts and military commission shall be ordered executed
by the Courts of First Instance in accordance with the procedure outlined in said Act.
It is evident from the foregoing that this Supreme Court has accepted and confirmed the
doctrine of the necessity of an enabling act in order that our Courts of First Instance could
exercise jurisdiction to execute the decision of the abolished provost courts and military
commission.
It is evident that the doctrine is applicable, with more force, to the judicial processes coming
from governments deriving their authority from a foreign enemy state.
THE DOCTRINE IN THE UNITED STATES
It is also evident that the Congress of the United States, by enacting the Bill of the
Philippines on July 1, 1902, confirmed also the same doctrine.
In effect, in section 9 of said Act, the Congress approved what the Philippine Commission did
as to the jurisdiction of the courts established and transfer of cases and judicial processes,
as provided in Acts Nos. 136, 186, and 865.
The same doctrine was adopted by the United States government as part of its international
policy, as could be seen in Article XII of the Treaty concluded with Spain on December 10,
1898, in Paris.
Even in 1866 the Congress of the United States followed the same doctrine.
The suit, shown by the record, was originally instituted in the District Court of the
United States for the District of Louisiana, where a decree was rendered for the
libellant. From the decree an appeal was taken to the Circuit Court, where the case
was pending, when in 1861, the proceedings of the court were interrupted by the civil
war. Louisiana had become involved in the rebellion, and the courts and officers of
the United States were excluded from its limits. In 1862, however, the National
authority had been partially reestablished in the State, though still liable to the
overthrown by the vicissitudes of war. The troops of the Union occupied New
Orleans, and held military possession of the city and such other portions of the State
as had submitted to the General Government. The nature of this occupation and
possession was fully explained in the case of The Vinice.
Whilst it continued, on the 20th of October, 1862, President Lincoln, by proclamation,
instituted a Provisional Court of the State of Louisiana, with authority, among other
powers, to hear, try, and determine all causes in admiralty. Subsequently, by consent
of parties, this cause was transferred into the Provisional Court thus, constituted, and
was heard, and a decree was again rendered in favor of the libellants. Upon the
restoration of civil authority in the State, the Provincial Court, limited in duration,
according to the terms of the proclamation, by the event, ceased to exist.
On the 28th of July, 1866, Congress enacted that all suits, causes and proceedings
in the Provisional Court, proper for the jurisdiction of the Circuit Court of the United
States for the Eastern District of Louisiana, should be transferred to that court, and
heard, and determined therein; and that all judgements, orders, and decrees of the
Provisional Court in causes transferred to the Circuit Court should at once become
the orders, judgements, and decrees of that court, and might be enforced, pleaded,
and proved accordingly.
It is questioned upon these facts whether the establishment by the President of a
Provisional Court was warranted by the Constitution.
xxx xxx xxx
We have no doubt that the Provisional Court of Louisiana was properly established
by the President in the exercise of this constitutional authority during war; or that
Congress had power, upon the close of the war, and the dissolution of the
Provisional Court, to provide for the transfer of cases pending in that court, and of its
judgement and decrees, to the proper courts of the United States. (U. S. Reports,
Wallace, Vol. 9, The Grapeshot, 131-133.)
JUDGEMENTS OF THE REBEL COURTS IN LOUISIANA WERE VALIDATED BY
CONSTITUTIONAL PROVISION
During the civil war in 1861, the prevailing rebel forces established their own government in
Louisiana.
When the rebel forces were overpowered by the Union Forces and the de facto government
was replaced by the de jure government, to give effect to the judgments and other judicial
acts of the rebel government, from January 26, 1861, up to the date of the adoption of the
State Constitution, a provision to said effect was inserted in said document.
Section 149 of the Louisiana Constitution reads as follows:
All the rights, actions, prosecutions, claims, contracts, and all laws in force at the
time of the adoption of this Constitution, and not inconsistent therewith, shall
continue as if it had not been adopted; all judgments and judicial sales, marriages,
and executed contracts made in good faith and in accordance with existing laws in
this State rendered, made, or entered into, between the 26th day of January, 1861,
and the date when this constitution shall be adopted, are hereby declared to be valid,
etc. (U. S. Report, Wallace, Vol. 22, Mechanics' etc. Bank vs. Union Bank, 281.)
EVEN AMONG SISTERS STATES OF THE UNITED STATES JUDGEMENTS ARE
NOT EXECUTORY
The member states of the United States of America belong to the same nation, to the
country, and are under the same sovereignty.
But judgements rendered in one state are not executory in other states.
To give them effect in other states it is necessary to initiate an original judicial proceedings,
and therein the defendants in the domestic suit may plead bar the sister state
judgement puis darrien continuance. (Wharton, on the Conflict of Laws, Vol. II, p. 1411.)
Under the Constitution of the United States, when a judgement of one state in the
Union is offered in a court of a sister state as the basis of a suit nil debet cannot be
pleaded. The only proper plea is nul tielrecord. (Id., p. 1413.).
It is competent for the defendant, however, to an action on a judgement of a sister
state, as to an action on a foreign judgement, to set up as a defense, want of
jurisdiction of the court rendering the judgement; and, as indicating such want of
jurisdiction, to aver by plea that the defendant was not an inhabitant of the state
rendering the judgement, and had not been served with process, and did not enter
his appearance; or that the attorney was without authority to appear. (Id., pp. 1414-
1415.)
The inevitable consequence is that the courts of the Commonwealth of the Philippines, in the
absence of an enabling act or of an express legislative grant, have no jurisdiction to take
cognizance and continue the judicial processes, procedures, and proceedings of the
tribunals which were created by the Japanese Military Administration and functioned under
the Vargas Philippine Executive Commission of the Laurel Republic of the Philippines,
deriving their authority from the Emperor, the absolute ruler of Japan, the invading enemy,
and not from the Filipino people in whom, according to the Constitution, sovereignty resides,
and from whom all powers of government emanate.
The position of Honorable Asenio P. Dizon, the respondent judge of the Court of the First
Instance of Manila in declaring himself without jurisdiction nor authority to continue the
proceedings which provoked the present controversy, being a judicial process of a Japanese
sponsored government, is absolutely correct, under the legal doctrines established by the
United States and the Philippine Government, and consistently, invariably, and without
exception, followed by the same.
If we accept, for the sake of argument, the false hypothesis that the Commonwealth tribunals
have jurisdiction to continue the judicial processes left pending by the courts of the
governments established under the Japanese regime, the courts which disappeared and,
automatically, ceased to function with the ouster of the enemy, the position of the Judge
Dizon, in declining to continue the case, is still unassailable, because, for all legal purposes,
it is the same as if the judicial processes in said case were not taken at all, as inevitable
result of the sweeping and absolute annulment declared by the General MacArthur in the
October Proclamation.
In said proclamation it is declared in unmistakable and definite terms that "ALL
PROCESSES" of the Japanese sponsored governments "ARE NULL AND VOID AND
WITHOUT LEGAL EFFECT", and they shall remain so until the Commonwealth, through its
legislative power, decides otherwise in a proper validating act.
The fact that the Japanese invaders, under international law, were in duty bound to establish
courts of justice during the occupation, although they made them completely powerless to
safeguard the constitutional rights of the citizens, and mere figureheads as regards the
fundamental liberties of the helpless men, women and children of our people, so much so
that said courts could not offer even the semblance of protection when the life, the liberty, the
honor and dignity of our individual citizens were wantonly trampled by any Japanese, military
or civilian, does not change the situation. "ALL PROCESSES" of said court are declared
"NULL AND VOID AND WITHOUT LEGAL EFFECT" in the October proclamation, and we do
not have any other alternative but to accept the law, as said proclamation has the full force of
a law.
The fact that in the past, the legitimate governments, once restored in their own territory,
condescended in many cases to recognize and to give effect to judgments rendered by
courts under the governments set up by an invading military occupant or by a rebel army,
does not elevate such condescension to the category of a principle, when Wheaton declares
that no international wrong is done if the acts of the invader are reversed.
Many irrelevant authorities were cited to us as to the duties imposed by the international law
on military occupants, but no authority has been cited to the effect that the representative of
the restored legitimate government is a bound to recognize and accept as valid the acts and
processes of said occupants. On the contrary, Wheaton says that if the occupant's acts are
reversed "no international wrong would be committed."
Following the authority of Wheaton, undisputed by the majority, General MacArthur thought,
as the wisest course, of declaring "NULL AND VOID AND WITHOUT EFFECT," by official
proclamation, "ALL PROCESSES" under the Japanese regime, that is legislative, executive
and judicial processes, which fall under the absolute adjective "ALL".
That declaration is a law. It is a law that everybody bound to accept and respect, as all laws
must be accepted and respected. It is a law that the tribunals are duty bound to give effect
and apply.
We are not unmindful of the adverse consequences to some individuals of the annullment of
all the judicial processes under the Japanese regime, as provided in the October
Proclamation, but the tribunals are not guardians of the legislative authorities, either an army
commander in chief, during war, or a normal legislature, in peace time. The tribunals are not
called upon to guide the legislative authorities to the wisdom of the laws to be enacted. That
is the legislative responsibility. Our duty and our responsibility is to see to it that the law,
once enacted, be applied and complied with.
No matter the consequences, no matter who might be adversely affected, a judge must have
the firm resolve and the courage to do his duty, as, in the present case, Judge Dizon did,
without fear nor favor. We cannot see any reason why we should not uphold him in his stand
in upholding the law.
It is our official duty, national and international duty. Yes. Because this Supreme Court is
sitting, not only as a national court, but as an international court, as is correctly stated in the
concurring opinion of Justice De Joya, and we should feel the full weight of the
corresponding responsibility, as the American courts with admiralty jurisdiction and the Prize
Courts of England did feel. In fact, it is in the judiciary where, more than in any point of view
is more pressing, more imperative, more unavoidable. Justice has no country. It is of all
countries. The horizon of justice cannot be limited by the scene where our tribunals are
functioning and moving. That horizon is boundless. That is why in our constitution the bill of
rights has been written not for Filipinos, but for all persons. They are rights that belong to
men, not as Filipinos, Americans, Russians, Chinese or Malayan, but as a members of
humanity. The international character of our duty to administer justice has become more
specific by the membership of our country in the United Nations. And let us not forget, as an
elemental thing, that our primary duty is to uphold and apply the law, as it is; that we must
not replace the words of the law with what we might be inclined to surmise; that what is
clearly and definitely provided should not be substituted with conjectures and suppositions;
that we should not try to deduce a contrary intention to that which is unequivocally stated in
the law; that we should not hold valid what is conclusively declared null and void.
The October Proclamation declared "ALL PROCESSES" under the Japanese regime "AND
VOID WITHOUT EFFECT", so they must stand. There is no possible way of evasion. "ALL
PROCESSES", in view of the meaning of the absolute adjective "ALL", include "JUDICIAL
PROCESSES". Allegatio contra factum non est admittenda.


CONCLUSION
For all the foregoing reasons we conclude:
1. That General MacArthur had full legal authority to issue the October Proclamation, and
that no principle of the international law is violated by said proclamation, no international
wrong being committed by the reversal by the legitimate government of the acts of the
military invader.
2. That said proclamation was issued in full conformity with the official policies to which the
United States and Philippine Governments were committed, and the annulment of all the
facts of the governments under the Japanese regime, legislative, executive, and judicial, is
legal, and justified by the wrongs committed by the Japanese.
3. That when General MacArthur proclaimed and declared in the October Proclamation "That
all laws, regulations and processes" of the Japanese sponsored governments, during enemy
occupation, "are null and void and without effect", he meant exactly what he said.
4. That where General MacArthur said "all processes" we must read and understand
precisely and exactly "all processes", and not "some processes". "All" and "some" have
incompatible meanings and are not interchangeable.
5. That the word "processes" includes judicial procedures, proceedings, processes, and
cases. Therefore, "all processes" must include "all judicial processes.".
6. That we have no right to attribute General MacArthur an intention different from what he
has plainly, clearly, unmistakably expressed in unambiguous words with familiar meaning
generally understood by the common man.
7. That the judicial proceedings here in question are included among those adversely
affected by the October Proclamation.
8. That the Commonwealth tribunals have no jurisdiction to take cognizance of nor to
continue the judicial proceedings under the Japanese regime.
9. That to exercise said jurisdiction an enabling act of the Congress is necessary.
10. That respondent Judge Dizon did not commit the error complained of in the petition, and
that the petition has no merits at all.
We refuse to follow the course of action taken by the majority in the present case. It is a
course based on a mistaken conception of the principles of international law and their
interpretation and application, and on a pinchbeck. It is a course based on misconstruction or
misunderstanding of the October Proclamation, in utter disregard of the most elemental
principles of legal here meneutics. It is a course that leads to nowhere, except to the brink of
disaster, because it is following the dangerous path of ignoring or disobeying the law.
Let us not allow ourselves to be deceived. The issue confronting us is not of passing
importance. It is an issue of awesome magnitude and transcendency. It goes to and reaches
the very bottom. It is simple. Lacking in complexities. But it may shake the very foundation of
society, the cornerstone of the state, the primary pillar of the nation. It may dry the very
foundation of social life, the source of vitalizing sap that nurtures the body politic. The issue
is between the validity of one or more Japanese regime processes and the sanctity of the
law.
That is the question, reduced to its ultimate terms. it is a simple dilemma that is facing us. It
is the alpha and the omega of the whole issue. Either the processes, or the law. We have to
select between two, which to uphold. It is a dilemma that does not admit of middle terms, or
of middle ways where we can loiter with happy unconcern . We are in the cross road: which
way shall we follow? The processes and the law are placed in the opposite ends of the
balance. Shall we inclined the balance of justice to uphold the processes and defeat law, or
vice versa?
We feel jittery because some judicial processes might be rescinded or annulled, but we do
not tremble with sincere alarm at the thought of putting the law under the axe, of sentencing
law to be executed by the guillotine. We feel uneasy, fancying chaos and paralyzation of
social life, because some litigants in cases during the Japanese regime will be affected in
their private interests, with the annulment of some judicial processes, but we adopt an
attitude of complete nonchalance in throwing law overboard. This baffling attitude is a judicial
puzzle that nobody will understand. So it is better that we should shift to a more
understandable way, that which is conformable to the standard that the world expects in
judicial action.
No amount of arguments and lucubration's, no amount of speculative gymnastics, no amount
of juggling of immaterial principles of international law, no amount of presumptions and
suppositions, surmises and conjectures, no amount of dexterity in juridical exegesis can
divert our attention from the real, simple, looming, hypostasis of the issue before us: Law. It
is Law with all its majestic grandeur which we are defying and intending to overthrow from
the sacred pedestal where the ages had placed her as a goddess, to be enshrined, obeyed,
and venerated by men, forever. Let us not dare to lay our profaning hands on her vestal
virginity, lest the oracle should fling at us the thunder of his prophetic anathema.
We cannot therefore vote except for the denial of the petition.


HILADO, J., dissenting:
I dissent from the opinion of the majority and, pursuant to the Constitution, proceed to state
the reason for my dissent.
The proceeding involved in the case at bar were commenced by a complaint filed by the
instant petitioner, as plaintiff, on November 18, 1944, in civil case No. 3012 of the so-called
Court of First Instance of Manila, the complaint bearing this heading and title: "The Republic
of the Philippines In the Court of First Instance of Manila" (Annex X of Exhibit A of petition
for mandamus). The farthest that said proceedings had gone before the record was burned
or destroyed during the battle for Manila, was the filing by counsel for plaintiff therein of their
opposition to a motion for dismissal filed by opposing counsel.
It is, therefore, plain that the case had not been heard on the merits when the record was
burned or destroyed.
The respondent judge, in his order dated June 6, 1945, disposing of the petition dated May
25, 1945 filed by petitioner, as a plaintiff in said case, and of the petition filed by respondent
Eusebio Valdez Tan Keh, as defendant therein, on May 31, 19045, held: " first, that by virtue
of the proclamation of General MacArthur quoted above, all laws, regulations and processes
of any other government in the Philippines than that of the Commonwealth became null and
void and without legal effect in Manila on February 3, 1945 or, at the lates, on February 27 of
the same year; second that the proceedings and processes had in the present case having
been before a court of the Republic of the Philippines and in accordance with the laws and
regulations of said Republic, the same are now void and without legal effect; third, that this
Court as one of the different courts of general jurisdiction of the Commonwealth of the
Philippines, has no authority to take cognizance of and continue said proceedings to final
judgement, until and unless the Government of the Commonwealth of the Philippines, in the
manner and form provided by law, shall have provided for the transfer of the jurisdiction of
the courts of the now defunct Republic of the Philippines, and the causes commenced and
left pending therein, to the courts created and organized by virtue of the provisions of Act No.
4007, as revived by Executive Order No. 36, or for the validation of all proceedings had in
said courts."
Petitioner prays that this Court declare that the respondent judge should not have ordered
the suspension of the proceedings in civil case No. 3012 and should continue and dispose of
all the incidents in said case till its complete termination. In my opinion, the petition should
denied.
In stating the reasons for this dissent, we may divide the arguments under the following
propositions:
1. The proceedings in said civil case No. 3012 are null and void under General of the Army
MacArthur's proclamation of October 23, 1944 (41 Off. Gaz., 147, 148);
2. (a) The government styled as, first, the "Philippine Executive Commission "and later as the
Republic of the Philippines", established here by the Commander in Chief of the Imperial
Japanese Forces or by his order was not a de-facto government the so-called Court of
First Instance of Manila was not a de facto court, and the judge who presided it was not a de
facto judge; (b) the rules of International Law regarding the establishment of ade
facto Government in territory belonging to a belligerent but occupied or controlled by an
opposing belligerent are inapplicable to the governments thus established here by Japan;
3. The courts of those governments were entirely different from our Commonwealth courts
before and after the Japanese occupation;
4. The question boils down to whether the Commonwealth Government, as now restored, is
to be bound by the acts of either or both of those Japanese-sponsored governments;
5. Even consideration of policy of practical convenience militate against petitioner's
contention.
I
The proceedings in said civil case No. 3012 are null and void under General of the
Army MacArthur's proclamation of October 23, 1944 (41 Off. Gaz., 147, 148).
In this proclamation, after reciting certain now historic facts, among which was that the so-
called government styled as the "Republic of the Philippines" was established on October 14,
1943 "under enemy duress, . . . based upon neither the free expression of the people's will
nor the sanction of the Government of the United States," the great Commander-in-Chief
proclaimed and declared:
xxx xxx xxx
3. That all laws, regulations and processes of any other government in the
Philippines than that of the said Commonwealth are null and void and without legal
effect in areas of the Philippines free of enemy occupation and control; and
xxx xxx xxx
I do enjoin upon all loyal citizens of the Philippines full respect for and obedience to
the Constitution of the Commonwealth of the Philippines and the laws, regulations
and other acts of their duly constituted government whose seat is now firmly re-
established on Philippine soil.
The evident meaning and effect of the 3rd paragraph above quoted is, I think, that as the
different areas of the Philippines were progressively liberated, the declaration of nullity
therein contained shall attach to the laws, regulations and processes thus condemned in so
far as said areas were concerned. Mark that the proclamation did not provide that such laws,
regulations and processes shall be or are annulled, but that they are null and void.
Annulment implies some degree of the effectiveness in the act annulled previous to the
annulment, but a declaration of nullity denotes that the act is null and void ab initio the
nullity precedes the declaration. The proclamation speaks in the present tense, not in the
future. If so, the fact that the declaration of nullity as to the condemned laws, regulations, and
processes in areas not yet free from enemy occupation and control upon the date of the
proclamation, would attach thereto at a later date, is no argument for giving them validity or
effectiveness in the interregnum. By the very terms of the proclamation itself, that nullity had
to date back from the inception of such laws, regulations and processes; and to dispel any
shadow of doubt which may still remain, we need only consider the concluding paragraph of
the proclamation wherein the Commander in Chief of the army liberation solemnly enjoined
upon all loyal citizens of the Philippines full respect for and obedience to the Constitution of
the Commonwealth of the Philippines and the laws, regulations and other acts of their duly
constituted government. This is all-inclusive it comprises not only the loyal citizens in the
liberated areas but also those in areas still under enemy occupation and control. It will be
noticed that the complaint in said civil case No. 3012 was filed twenty-six days after the
above-quoted proclamations of General of the Army MacArthur. If the parties to said case
were to consider the proceedings therein up to the date of the liberation of Manila valid and
binding, they would hardly be complying with the severe injunction to render full respect for
and obedience to our Constitution and the laws, regulations and other acts of our duly
constituted government from October 23, 1944, onwards. Indeed, to my mind, in choosing
between these two courses of action, they would be dangerously standing on the dividing
line between loyalty and disloyalty to this country and its government.
The proceeding in question, having been had before the liberation of Manila, were
unquestionably "processes" of the Japanese-sponsored government in the Philippines within
the meaning of the aforesaid proclamation of General of the Army MacArthur and,
consequently, fall within the condemnation of the proclamation. Being processes of a branch
of a government which had been established in the hostility to the Commonwealth
Government, as well as the United States Government, they could not very well be
considered by the parties to be valid and binding, at least after October 23, 1944, without
said parties incurring in disobedience and contempt of the proclamation which enjoins them
to render full respect for the obedience to our Constitution and the laws, regulations and
other acts of our duly constituted government. Nine days after the inauguration of the so-
called "Republic of the Philippines," President Franklin Delano Roosevelt of the United
States declared in one of his most memorable pronouncements about the activities of the
enemy in the Philippines, as follows:
One of the fourtheenth of this month, a puppet government was set up in the
Philippine Island with Jose P. Laurel, formerly a justice of the Philippine Supreme
Court, as "president." Jorge Vargas, formerly as a member of the Commonwealth
Cabinet, and Benigno Aquino, also formerly a member of that cabinet, were closely
associated with Laurel in this movement. The first act of the new puppet regime was
to sign a military alliance with Japan. The second act was a hyphocritical appeal for
American sympathy which was made in fraud and deceit, and was designed to
confuse and mislead the Filipino people.
I wish to make it clear that neither the former collaborationist "Philippine Executive
Commission" nor the present "Philippine Republic " has the recognition or sympathy
of the Government of the United States. . . .
Our symphaty goes out to those who remain loyal to the United States and the
Commonwealth that great majority of the Filipino people who have not been
deceived by the promises of the enemy.
October 23, 1943.
FRANKLIN DELANO ROOSEVELT
President of the United States
(Form U.S. Naval War College International Law Documents, 1943, pp. 93, 94.).
It is a fact of contemporary history that while President Manuel L. Quezon of the Philippines
was in Washington, D.C., with his exiled government, he also repeatedly condemned both
the "Philippine Executive Commission" and the "Philippine Republic," as they had been
established by or under orders of the Commander in Chief of the Imperial Japanese Forces.
With these two heads of the Governments of the United States and the Commonwealth of
the Philippines condemning the "puppet regime" from its very inception, it is beyond my
comprehension to see how the proceedings in question could be considered valid and
binding without adopting an attitude incompatible with theirs. As President Roosevelt said in
his above quoted message, "Our symphaty goes out to those remain loyal to the United
States and the Commonwealth that great majority of the Filipino people who have not
been deceived by the promises of the enemy.
The most that I can concede is that while the Japanese Army of occupation was in control in
the Islands and their paramount military strength gave those of our people who were within
their reach no other alternative, these had to obey their orders and decrees, but the only
reason for such obedience would be that paramount military strength and not any intrinsic
legal validity in the enemy's orders and decrees. And once that paramount military strength
disappeared, the reason for the obedience vanished, and obedience should likewise cease.
As was stated by the Supreme Court of the United States in the case of Williams vs. Bruffy
(96 U.S., 176; 24 Law. ed., 719), "In the face of an overwhelming force, obedience in such
matters may often be a necessity and, in the interest of order, a duty. No concession is thus
made to the rightfulness of the authority exercised." (Emphasis ours.) The court there refers
to its own former decision in Thorington vs. Smith, and makes it clear that the doctrine in the
Thorington case, so far as the effects of the acts of the provisional government maintained
by the British in Casetine, from September, 1814 to the Treaty of Peace in 1815, and the
consideration of Tampico as United States territory, were concerned, was limited to the
period during which the British, in the first case, retained possession of Castine, and the
United States, in the second, retained possession of Tampico. In referring to the Confederate
Government during the Civil War, as mentioned in the Thorington case, the court again says
in effect that the actual supremacy of the Confederate Government over a portion of the
territory of the Union was the only reason for holding that its inhabitants could not but obey
its authority. But the court was careful to limit this to the time when that actual supremacy
existed, when it said: . . . individual resistance to its authority then would have been futile
and, therefore, unjustifiable." (Emphasis ours.)
Because of its pertinence, we beg leave to quote the following paragraph from that leading
decision:
There is nothing in the language used in Thorington vs. Smith (supra), which conflicts
with these views. In that case, the Confederate Government is characterized as one
of paramount force, and classed among the governments of which the one
maintained by great Britain in Castine, from September 1814, to the Treaty of Peace
in 1815, and the one maintained by the United States in Tampico, during our War
with Mexico, are examples. Whilst the British retained possession of Castine, the
inhabitants were held to be subject to such laws as the British Government chose to
recognize and impose. Whilst the United Statesretained possession of Tampico, it
was held that it must regarded and respected as their territory. The Confederate
Government, the court observed, differed from these temporary governments in the
circumstance that its authority did not justifying acts of hostility to the United States,
"Made obedience to its authority in civil and local matters not only a necessity, but a
duty." All that was meant by this language was, that as the actual supremancy of the
Confederate Government existed over certain territory, individual resistance to its
authority then would have been futile and, therefore, unjustifiable. In the face of an
overwhelming force, obedience in such matters may often be a necessity and, in the
interest of order, a duty. No concession is thus made to the rightfulness of the
authority exercised. (Williams vs. Bruffy, 24 Law ed., 719; emphasis ours.)
The majority opinion, in considering valid the proceedings in question, invokes the rule that
when a belligerent army occupies a territory belonging to the enemy, the former through its
Commander in Chief, has the power to establish thereon what the decisions and treaties
have variously denominated provisional or military government, and the majority holds that
the Japanese-sponsored government in the Philippines was such a government. Without
prejudice to later discussing the effects which the renunciation of war as an instrument of
national policy contained in our Commonwealth Constitution, as well as in the Briand-Kellog
Pact, must have produced in this rule in so far as the Philippines is concerned, let us set
forth some considerations apropos of this conclusion of the majority. If the power to establish
here such a provisional government is recognized in the Commander in Chief of the invasion
army, why should we not recognize at least an equal power in the Commander in Chief of
the liberation army to overthrow that government will all of its acts, at least of those of an
executory nature upon the time of liberation? Considering the theory maintained by the
majority, it would seem that they would recognize in the Japanese Commander in Chief the
power to overthrow the Commonwealth Government, and all of its acts and institutions if he
had choosen to. Why should at least an equal power be denied the Commander in Chief of
the United States Army to overthrow the substitute government thus erected by the enemy
with all of its acts and institutions which are still not beyond retrieve? Hereafter we shall have
occasion to discuss the aspects of this question from the point of view of policy or the
practical convenience of the inhabitants. If the Japanese Commander in Chief represented
sovereignty of Japan, the American Commander in Chief represented the sovereignty of the
United States, as well as the Government of the Commonwealth. If Japan had won this war,
her paramount military supremacy would have continued to be exerted upon the Filipino
people, and out of sheer physical compulsion this country would have had to bow to the
continuance of the puppet regime that she had set up here for an indefinite time. In such a
case, we admit that, not because the acts of that government would then have intrinsically
been legal and valid, but simply because of the paramount military force to which our people
would then have continued to be subjected, they would have had to recognize as binding
and obligatory the acts of the different departments of that government. But fortunately for
the Filipinos and for the entire civilized world, Japan was defeated. And I now ask: Now that
Japan has been defeated, why should the Filipinos be still bound to respect or recognize
validity in the acts of the Japanese-sponsored government which has been so severely
condemned by both the heads of the United States and our Commonwealth Government
throughout the duration of the war? If we were to draw a parallel between that government
and that which was established by the Confederate States during the American Civil War, we
will find that both met with ultimate failure. And, in my opinion, the conclusion to be drawn
should be the same in both cases.
As held by the United States Supreme Court in Williams vs. Bruffy (supra), referring to the
Confederate Government, its failure carried with it the dissipation of its pretentions and the
breaking down in pieces of the whole fabric of its government. The Court said among other
things:
The immense power exercised by the government of the Confederate States for
nearly four years, the territory over which it extended, the vast resources it wielded,
and the millions who acknowledged its authority, present an imposing spectacle well
fitted to mislead the mind in considering the legal character of that organization. It
claimed to represent an independent nation and to posses sovereign powers; as
such to displace to jurisdiction and authority of the United States from nearly half of
their territory and, instead of their laws, to substitute and enforce those of its own
enactment. Its pretentions being resisted, they were submitted to the arbitrament of
war. In that contest the Confederacy failed; and in its failure its pretentions were
dissipated, its armies scattered, and the whole fabric of its government broken in
pieces. (24 Law, ed., 719; emphasis ours.)
By analogy, if the Japanese invasion and occupation of the Philippines had been lawful
which, however, is not the case and if Japan had succeeded in permanently maintaining
the government that she established in the Philippines, which would have been the case had
victory been hers, there would be more reason for holding the acts of that government valid,
but because Japan has lost the war and, therefore, failed in giving permanence to that
government, the contrary conclusion should legitimately follow.
The validity of legislation exercised by either contestant "depends not upon the existence of
hostilities but upon the ultimate success of the party which it is adopted" (emphasis ours).
And, referring to the overthrow of the of the Confederacy, the Court, said, "when its military
forces were overthrown, it utterly perished, and with it all its enactments" (emphasis ours)
The majority cite on page 9-10 of their opinion a passage from the same case of
Williams vs. Bruffy, supra, which is a mere obiter dictum. The majority opinion says that in
this passage the Court was "discussing the validity of the acts of the Confederate States." In
the first place, an examination of the decision will reveal that the controversy dealt with an
act of the Confederate Government, not of the Confederate States individually; and in the
second place, the quoted passage refers to something which was not in issue in the case,
namely, the acts of the individual States composing the Confederacy. But even this passage
clearly places the case at bar apart from the Court's pronouncement therein. The quoted
passage commences by stating that "The same general form of government the same
general laws for the administration of justice and the protection of private rights, which has
existed in the States prior to the rebellion, remanded during (its) continuance and afterwards.
"In the case at bar, the same general form of the Commonwealth Government did not
continue under the Japanese, for the simple reason that one of the first acts of the invaders
was to overthrow the Commonwealth Constitution and, therefore, the constitutional
government which existed thereunder, as an effect of the following acts and decrees of the
Commander in Chief of the Imperial Japanese Forces:
1. Order No. 3, dated February 20, 1942 of the Commander in Chief of the Imperial
Japanese Forces to the Chairman of the Philippine Executive Commission directed that, in
the exercise of legislative, executive and judicial powers in the Philippines, the "activities" of
the "administrative organs and judicial courts in the Philippines shall be based upon the
existing status, order, ordinances and the Commonwealth Constitution (1 Official Journal of
the Japanese Military Administration, page 34). Under the frame of government existing in
this Commonwealth upon the date of the Japanese invasion, the Constitution was the very
fountain-head of the validity and effects of all the "status, orders, and ordinances" mentioned
by the Japanese Commander in Chief, and in overthrowing the Constitution he, in effect,
overthrew all of them.
2. Instruction No. 6 of the Japanese Military Administration (Vol. 1, usages 36 et seq., Official
Gazette, edited at the Office of the Executive Commission) gave the "Detailed Instruction
Based on Guiding Principle of the Administration," and among other things required "The
entire personnel shall be required to pledge their loyalty to the Imperial Japanese Forces. . .
." (This, of course, was repugnant to the frame of government existing here under the
Commonwealth Constitution upon the date of invasion.)
3. Proclamation dated January 3, 19452 of the Japanese Commander in Chief provided in
paragraph 3 that "The Authorities and the People of the Commonwealth should sever their
relations with the U.S. o . . ." (This is, likewise, repugnant to the Commonwealth Constitution
and the to the Government of that Commonwealth Constitution and to the Government of
that Commonwealth which was expressly made subject to the supreme sovereignty of the
United States until complete independence is granted, not by the mere will of the United
States, but by virtue of an agreement between that Government and ours, under the
Tydings-McDuffie Act.)
The individual States of the Confederate and their governments existed prior to the Civil War
and had received the sanction and recognition of the Union Government, for which the
Federal Supreme Court was speaking in the Williams-Bruffy case; while the Japanese-
sponsored governments of the "Philippine Executive Commission" and the Republic of the
Philippines" neither existed here before the war nor had received the recognition or sanction
of either the United States or the Commonwealth Government nay, they had received the
most vigorous condemnation of both.
The Court further says in Williams vs. Bruffy (supra):
No case has been cited in argument, and we think unsuccesfully attempting to
establish a separate revolutionary government have been sustained as a matter of
legal right. As justly observed by the late Chief Justice in the case of
Shortridge vs. Macon, I Abb. U.S., 58, decided at the circuit, and, in all material
respects like the one at bar, "Those who engage in rebellion must consider the
consequences. If theysucceed, rebellion becomes revolution, and the new
government will justify is founders. If they fail, all their acts hostile to the rightful
government are violations of law, and originate no rights which can be recognized by
the courts of the nation whose authority and existence have been alike assailed.
S.C., Chase, Dec., 136. (Williams vs. Bruffy, 96 U.S., 176; 24 Law. ed., 716, 718.)
(Emphasis ours.)
I am of opinion that the principles thus enunciated for the case of an unsuccessful rebellion
should be applied with greater force to the case of a belligerent who loss the war. And since
the founding of the Japanese-sponsored government in the Philippines was designed to
supplant and did actually supplant the rightful government and since all its acts could not but
a hostile to the latter (however blameless the officials who acted under enemy duress might
be), and since Japan failed, all said acts, particularly those of the Japanese-sponsored court
in said civil case No. 3012, "are violations of law, and originate no rights which can be
recognized by the courts of the nation whose authority and existence have been alike
assailed", quoting the language of the court in Shortridgevs. Macon, cited by Mr. Justice
Field in Williams vs. Bruffy, supra (24 Law. ed., 718).
II
(a) The government styled as, first, the "Philippine Executive Commission" and later
as the Republic of the Philippines", established here by the Commander in Chief of
the Imperial Japanese Forces or by the his order was not a de facto government--the
so-called Court of First Instance of Manila was not a de factocourt and the who
presided it was not a de facto judge;
(b) The rules of International Law regarding the establishment of a de
facto government in territory belonging to a belligerent but occupied or controlled by
an opposing belligerent are inapplicable to the governments thus established here by
Japan.
Under the doctrine of Williams vs. Bruffy, supra, and the pertinent cases therein cited, the
short-lived provisional government thus established by the Japanese in the Philippines
should be classified, at best, as a government of paramount force. But this is not all. The
Constitution of this Commonwealth which has been expressly approved by the United States
Government, in Article II, section 3, under the heading "Declaration of Principles", renounces
war as an instrument of national policy. This renunciation of war as an instruments of
national policy follows an equal renunciation in the Briand-Kellog Pact. The rules of
International Law , cited in support of the power or right of a belligerent army of occupation to
set up a provisional government on occupied enemy territory, were evolved prior to the first
World War, but the horrors and devastations of that war convinced, at least the governments
of the United States and France, that they should thereafter renounce war as an instrument
of national policy, and they consequently subscribed the Briand-Kellog Pact. Those horrors
and devastations were increased a hundred fold, if not more, in this second World War, but
even before this war occurred, our own people, through our Constitutional delegates, who
framed the Commonwealth Constitution also adopted the same doctrine, and embodied an
express renunciation of war as an instrument of national policy in the instrument that they
drafted. It is true that in section 3, Article II, above-cited, our Constitution adopts the
generally accepted principles of International Law as a part of the law of the Nation. But, of
course, this adoption is exclusive of those principles of International Law which might involve
recognition of war as an instrument of national policy. It is plain that on the side of the Allies,
the present war is purely defensive. When Japan started said war, treacherously and without
previous declaration, and attacked Pearl Harbor and the Philippines on those two fateful
days of December 7 and 8, 1941, she employed war as an instrument of the national policy.
Under the Briand-Kellog Pact and our Commonwealth Constitution, the United States and
the Commonwealth Government could not possibly have recognized in Japan any right, as
against them, to employ that war as an instrument of her national policy, and, consequently,
they could not have recognized in Japan power to set up in the Philippines the puppet
government that she later set up, because such power would be a mere incident or
consequence of the war itself. The authorities agree that such a power, under the cited rules,
is said to a right derived from war. (67 C.J., p. 421, sec. 171.) There can be no question that
the United States and the Commonwealth Governments were free to refuse to be bound by
those rules when they made their respective renunciations above referred to. Indeed, all the
United Nations have exercised this free right in their Charter recently signed at San
Francisco.
As necessary consequence of this, those rules of International Law were no longer
applicable to the Philippines and to the United States at the time of the Japanese invasion as
a corollary, it follows that we have no legal foundation on which to base the proposition that
the acts of that Japanese-sponsored government in the Philippines were valid and binding.
Moreover, I am of opinion, that although at the time of the Japanese invasion and up to the
present, the United States retains over the Philippines, a certain measure of sovereignty, it is
only for certain specified purposes enumerated in the Tydings-McDufie Act of the
Commonwealth Constitution. (Ordinance appended to the Constitution.) And
our territory was at the time of the Japanese invasion not a territory of the United States,
within the meaning of the laws of war governing war-like operations on enemy territory. Our
territory is significantly called "The National Territory" in Article I of our Constitution and this
bears the stamps of express approval of the United States Government. The Philippines has
been recognized and admitted as a member of the United Nations. We, therefore, had our
own national and territorial identity previous to that invasion. Our nation was not at war with
the Filipinos. And line with this, the Japanese army, in time, released Filipino war prisoners
captured in Bataan. Lt. Gen. Maeda, Chief of Staff, Imperial Japanese Forces, in his speech
of January 2, 1942, said:
. . . we had not the slighest intensions to make your people our enemy; rather we
considered them as our friends who will join us has hand-in-hand in the
establishment of an orderly Greater East Asia. . . ., (Official Gazette, edited at the
Office of the Executive Commission, Vol. I, p. 55.)
If the Philippines was a neutral territory when invaded by the Japanese, the following
principles from Lawrence, International Law (7th ed.), p. 603, are pertinent:
The Duties of Belligerent States Towards Neutral States. . . . To refrain from
carrying on hostilities within neutral territory. We have already seen that, though
this obligation was recognized in theory during the infancy of International law, it was
often very imperfectly observed in practice. But in modern times it has been strickly
enforced, and any State which knowingly ordered warlike operations to be carried on
in neutral territory . . . would bring down upon itself the reprobation of civilized
mankind. Hostilities may be carried on in the territory of either belligerent, on the high
seas, and in territory belonging to no one. Neutral land and neutral territorial waters
are sacred. No acts of warfare may lawfully take place within them. . . . (Emphasis
ours.)
In all the cases and authorities supporting the power or right to set up a provisional
government, the belligerent had the right to invade or occupy the territory in the first instance.
Such was not the case with the Philippines. President Roosevelt, in his message to the
Filipino people, soon after the landing of American Forces in Leyte, on October 20, 1944,
characterized Japan's invasion and occupation of the Philippines as "the barbarous,
unprovoked and treacherous attack upon the Philippines," and he announced the American
people's "firm determination to punish the guilty." (41 Off. Gaz., 149.) (Emphasis ours.) The
illustrious leader of the United Nations could not have in more unmistakable terms the utter
illegality of that invasion and occupation. If the establishment of a provinsional government in
occupied territory by a belligerent is "a mere application or extension of the force by which
the invasion or occupation was effected" (67 C.J., p. 421, sec 171), the illegality of the
invasion, would necessarily permeate the government, which was its mere application or
extention.
The fact that shortly before December 8, 1941, the date of the "barbarous, unprovoked and
treacherous attack," the meager and almost untrained forces of the Philippine Army had
been inducted into the American Army, did not change the neutral status of the Philippines.
That military measure had been adopted for purely defensive purposes. Nothing could be
farther from the minds of the government and military leaders of the United States and the
Philippines in adopting it than to embark upon any aggressive or warlike enterprise against
any other nation. It is an old and honored rule dating as far back as the 18th century that
even solemn promises of assistance made before the war by a neutral to a nation which later
becomes a belligerent, would not change the status of the neutral even if such promises
were carried out, so long as they were made for purely defensive purposes. In the words of
Vattel "when a sovereign furnishes the succor due in virtue of a former defensive alliance, he
does not associate himself in the war. Therefore he may fulfill his engagements and yet
preserve an exact neutrality." (Lawrence, Principles of International Law [7th ed.], pp. 585,
586.)
If the Filipinos had, from contemptible cowardice and fear, allowed their shores to be
invaded, and their territory occupied by the Japanese without resistance, such invasion
occupation would undoubtedly have been considered in violation of International Law.
Should the Filipinos be punished for having had the patriotism, bravery, and heroism to fight
in defense of the sacredness of their land, the sanctity of their homes, and the honor and
dignity of their government by giving validity, in whatever limited measure, to the lawless acts
of the ruthless enemy who thus overran their country, and robbed them of the tranquility and
happiness of their daily lives? And yet, to my mind, to give any measure of validity or binding
effect to the proceedings of the Japanese-sponsored Court of First Instance of Manila,
involved herein, would be to give that much validity or effect to the acts of those same
invaders. To equalize the consequences of a lawful and a wrongful invasion of occupation,
would be to equalize right and wrong, uphold the creed that might makes right, and adopt
"the law of the jungle."
If said Japanese-sponsored government was not a de facto government, it would seem
clearly to follow that its "Court of First Instance of Manila" was not a de facto court. But it
should additionally be stated that for it be a de facto court, its judge had to be a de
facto judge, which he could not be, as presently demonstrated.
As said by President Osmea, in replying to the speech of General of the Army MacArthur
when the latter turned over to him the full powers and responsibilities of the Commonwealth
Government, on February 27, 1945:
xxx xxx xxx
The time has come when the world should know that when our forces surrendered in
Bataan and Corregidor, resistance to the enemy was taken up by the people itself
resistance which was inarticulate and disorganized in its inception but which grew
from the day to day and from island until it broke out into an open warfare against the
enemy.
The fight against the enemy was truly a people's war because it counted with the
wholehearted support of the masses. From the humble peasant to the barrio school
teacher, from the volunteer guard to the women's auxilliary service units, from the
loyal local official to the barrio folk each and every one of those contributed his
share in the great crusade for liberation.
The guerrillas knew that without the support of the civilian population, they could not
survive. Whole town and villages dared enemy reprisal to oppose the hated invader
openly or give assistance to the underground movement. . . . (41 Off. Gaz., 88, 89.)
Under these facts, taken together with the General of the Army MacArthur's accurate
statement that the "Republic of the Philippines" had been established under enemy duress, it
must be presumed to say the least that the judge who presided over the proceedings in
question during the Japanese occupation, firstly, accepted his appointment under duress;
and secondly, acted by virtue of that appointment under the same duress. In such
circumstances he could not have acted in the bona fide belief that the new "courts" created
by or under the orders of the Japanese Military Commander in chief had been legally
created--among them the "Court of first Instance of Manila," that the Chairman of the
"Philippine Executive Commission" or the President of the "Republic of the Philippines",
whoever appointed him, and conferred upon him a valid title to his office and a legitimate
jurisdiction to act as such judge. Good faith is essential for the existence of a de facto judge
(Tayko vs. Capistrano, 53 Phil., 866, 872). The very idea of enemy duress would necessarily
imply that but for the duress exerted upon him by the enemy he would have refused to
accept the appointment and to act thereunder. And why? Because he must be presumed to
know that the office to which he was thus appointed had been created by the enemy in open
defiance of the Commonwealth Constitution and the laws and regulation promulgated by our
Commonwealth Government, and that his acceptance of said office and his acting therein, if
willfully done, would have been no less than an open hostility to the very sovereignty of the
United Sates and to the Commonwealth Government, and a renunciation of his allegiance to
both. There is no middle ground here. Either the judge acted purely under duress, in which
case his acts would be null and void; or maliciously in defiance of said governments, in which
case his acts would be null and void for more serious reasons.
The courts created here by the Japanese government had to look for the source of their
supposed authority to the orders of the Japanese Military Commander in chief and the so-
called Constitution of the "Republic of the Philippines," which had been adopted in a manner
which would shock the conscience of democratic peoples, and which was designed to
supplant the Constitution which had been duly adopted by the Filipino people in a
Constitutional Convention of their duly elected Constitutional Delegates. And it was decreed
that the Commander in chief of the Imperial Japanese Forces "shall exercise jurisdiction over
judicial courts." (Vol. 1, p. 7, Official Journal of the Japanese Military Administration, cited on
pp. 2, 3, of the order of the respondent judge complained of and marked Exhibit H of the
petition for mandamus.) How can our present courts legitimately recognize any efficacy in
the proceedings of such an exotic judicial system, wherein the Commander in Chief of the
Imperial Japanese Forces possessed the highest judicial jurisdiction?
III
The courts of those governments were entirely different from our Commonwealth
courts before and after the Japanese occupation.
Executive Order No. 36 of the President of the Philippines, dated March 10, 1945, in its very
first paragraph, states the prime concern of the government "to re-establish the courts as fast
as provinces are liberated from the Japanese occupation." If the courts under the Japanese-
sponsored government of the "Republic of the Philippines" were the same Commonwealth
courts that existed here under the Constitution at the time of the Japanese invasion,
President Osmea would not be speaking of re-establishing those courts in his aforesaid
Executive Order. For soothe, how could those courts under the "Republic of the Philippines"
be the courts of the Commonwealth of the Philippines when they were not functioning under
the Constitution of the Commonwealth and the laws enacted in pursuance of said
Constitution? The jurisdiction of the Commonwealth courts was defined and conferred under
the Commonwealth Constitution and the pertinent legislation enacted thereunder, that of the
Japanese-sponsored courts was defined and conferred by the orders and decrees of the
Japanese Commander in Chief, and, perhaps, the decrees of the "Philippine Executive
Commission" and the laws of the so-called Legislature under the Republic, which was not
composed of the elected representatives of the people. The Justices and Judges of the
Commonwealth courts had to be appointed by the President of the Commonwealth with
confirmation by the Commission on Appointments, pursuant to the Commonwealth
Constitution. The Chief Justice of the Supreme Court, under the "Philippine Executive
Commission" was appointed by the Commander in Chief of the Imperial Japanese Forces,
and the Associate Justices of the Supreme Court, the Presiding Justice and Associate
Justices of the Court of Appeals, the Judges of first Instance and of all inferior courts were
appointed by the Chairman of the Executive Commission, at first, and later, by the President
of the Republic, of course, without confirmation by the Commission on Appointments under
the Commonwealth Constitution. The Chief Justice and Associate Justices of the Supreme
Court, the President and Associate Justices of the Court of Appeals, and the Judges of First
Instance and of all inferior courts in the Commonwealth judicial system, had to swear to
support and defend the Commonwealth Constitution, while this was impossible under the
Japanese-sponsored government. In the Commonwealth judicial system, if a Justice or
Judge should die or incapacitated to continue in the discharge of his official duties, his
successor was appointed by the Commonwealth President with confirmation by the
Commission on Appointments, and said successor had to swear to support and defend the
Commonwealth Constitution; in the exotic judicial system implanted here by the Japanese, if
a Justice or Judge should die or incapacitated, his successor would be appointed by the
Japanese Commander in Chief, if the dead or incapacitated incumbent should be the Chief
Justice of the Supreme Court, or otherwise, by the Chairman of the "Executive Commission"
or the President of the "Republic", of course without confirmation by the Commission on
Appointments of the Commonwealth Congress, and, of course, without the successor
swearing to support and defend the Commonwealth Constitution.
If, as we believe having conclusively shown, the Japanese-sponsored courts were not the
same Commonwealth courts, the conclusion is unavoidable that any jurisdiction possessed
by the former and any cases left pending therein, were not and could not be automatically
transfered to the Commonwealth courts which we re-established under Executive Order No.
36. For the purpose, a special legislation was necessary.
Executive Order No. 37, in my humble opinion, does not, as held by the majority, imply that
the President recognized as valid the proceedings in all cases appealed to the Court of
Appeals. Section 2 of that order simply provides that all cases which have
been duly appealed to the Court of Appeals shall be transmitted to the Supreme Court for
final decision. The adverb "duly" would indicate that the President foresaw the possibility of
appeals not having been duly taken. All cases appealed to the Court of Appeals before the
war and the otherwise duly appealed, would come under the phrase "duly appealed" in this
section of the Executive Order. But considering the determined and firm attitude of the
Commonwealth Government towards those Japanese-sponsored governments since the
beginning, it would seem inconceivable that the President Osmea, in section 2 of Executive
Order No. 37, intended to include therein appeals taken to the Japanese-sponsored Court of
Appeals, or from the Japanese-sponsored inferior courts. It should be remembered that in
the Executive Order immediately preceeding and issued on the same date, the President
speaks of re-establishing the courts as fast as provinces were liberated from the Japanese
occupation.
IV
The question boils down to whether the Commonwealth Government, as now
restored, is to be bound by the acts of either or both of those Japanese-sponsored
governments.
In the last analysis, in deciding the question of validity or nullity of the proceedings involved
herein, we are confronted with the necessity to decide whether the Court of first Instance of
Manila and this Supreme Court, as re-established under the Commonwealth Constitution,
and the entire Commonwealth Government, are to be bound by the acts of the said
Japanese-sponsored court and government. To propound this question is, to my mind, to
answer it most decidedly in the negative, not only upon the ground of the legal principles but
also for the reasons of national dignity and international decency. To answer the question in
the affirmative would be nothing short for legalizing the Japanese invasion and occupation of
the Philippines. Indeed, it would be virtual submission to the dictation of an invader our
people's just hatred of whom gave rise to the epic Philippine resistance movement, which
has won the admiration of the entire civilized world.
V
Even considerations of policy or practical convenience militate against petitioner's
contention.
In this connection, the respondent judge, in his order of June 6, 1945, complained of, has the
following to say:
It is contended, however, that the judicial system implanted by the Philippine
Executive Commission and the Republic was the same as that of the Commonwealth
prior to Japanese occupation; that the laws administered and enforced by said courts
during the existence of said regime were the same laws on the statute books of
Commonwealth before Japanese occupation, and that even the judges who presided
them were, in many instances, the same persons who held the position prior to the
Japanese occupation. All this may be true, but other facts are just as stubborn and
pitiless. One of them is that said courts were of a government alien to the
Commonwealth Government. The laws they enforced were, true enough, laws of the
Commonwealth prior to Japanese occupation, but they had become the laws and
the Courts had become the institutions-of Japan by adoption (U.S. vs. Reiter, 27 F.
Case No. 16,146), as they became later on the laws and institution of the Philippine
Executive Commission and the Republic of the Philippines. No amount of argument
or legal fiction can obliterate this fact.
Besides, I am of the opinion that the validity of the acts of the courts in the "judicial system
implanted by the Philippine Executive Commission and the Republic "would not depend
upon the laws that they "administered and enforced", but upon the authority by virtue of
which they acted. If the members of this Court were to decide the instant case in strict
accordance with the Constitution and the laws of the Commonwealth but not by the authority
that they possess in their official capacity as the Supreme Court of the Philippines, but
merely as lawyers, their decision would surely be null and void. And yet, I am firmly of
opinion that whoever was the "judge" of the Japanese sponsored Court of First Instance of
Manila who presided over the said court when the proceedings and processes in the dispute
were had, in acting by virtue of the supposed authority which he was supposed to have
received from that government, did so with no more legal power than if he had acted as a
mere lawyer applying the same laws to the case. If duplication of work or effort, or even if
confussion, should be alleged to possibly arise from a declaration of nullity or judicial
proceedings had before those Japanese-sponsored courts, it should suffice to answer that
the party so complaining in voluntarily resorting to such courts should be prepared to assume
the consequences of his voluntary act. On the other hand, his convenience should not be
allowed to visit upon the majority of the inhabitants of this country, the dire consequences of
a sweeping and wholesale validation of judicial proceedings in those courts. Let us set forth
a few considerations apropos of this assertion. It is a fact of general knowledge that during
the Japanese occupation of the Philippines, the overwhelming majority of our people and
other resident inhabitants were literally afraid to go any place where there were Japanese
sentries, soldiers or even civilians, and that these sentries were posted at the entrance into
cities and towns and at government offices; that the feared Japanese "M. P.'s" or
Kempeitai's" were a constant terror to them; and lastly, that the greater number who lived or
had evacuated to places for from the Japanese, were found precisely in the cities and towns
where the courts were located; and as a consequence, the great majority of the people were
very strongly adverse to traveling any considerable distance from their homes and were, one
might say, in constant hiding. Add to these circumstances, the fact of the practical absence
of transportation facilities and the no less important fact of the economic structure having
been so dislocated as to have impoverished the many in exchange for the enrichment of the
few and we shall have a fair picture of the practical difficulties which the ordinary litigant
would in those days have encountered in defending his rights against anyone of the favored
few who would bring him to court. It should be easy to realize how hard it was for instances,
to procure the attendance of witnesses, principally because of the fact that most of them
were in hiding or, at least, afraid to enter the cities and towns, and also because of then
generally difficult and abnormal conditions prevailing. Under such conditions, cases or denial
of a party's day in court expected. Such denial might arise from many a cause. It might be
party's fear to appear before the court because in doing so, he would have had to get near
the feared Japanese. It might be because he did not recognize any legal authority in that
court, or it might be his down-right repugnance of the hated enemy. And I dare say that
among such people would be found more than seventeen million Filipinos. These are but a
few of countless cause. So that if some form of validation of such judicial proceedings were
to be attempted, all necessary safeguards should be provided to avoid that in any particular
case the validation should violate any litigant's constitutional right to his day in court, within
the full meaning of the phrase, or any other constitutional or statutory right of his. More
people, I am afraid, would be prejudiced than would be benefited by a wholesale validation of
said proceedings.
Much concern has been shown for the possible confusion which might result from a decision
declaring null and void the acts processes of the Japanese-sponsored governments in the
Philippines. I think, this aspect of the question has been unduly stressed. The situation is not
without remedy, but the remedy lies with the legislature and not with the courts. As the courts
cannot create a new or special jurisdiction for themselves, which is a legislative function, and
as the situation demands such new or special jurisdiction, let the legislature act in the
premises. For instance, the Congress may enact a law conferring a special jurisdiction upon
the courts of its selection, whereby said courts may, after hearing all the parties interested,
and taking all the necessary safeguards, so that, a party's day in court or other constitutional
or statutory right under the Commonwealth Government should not be prejudiced by any of
said acts, processes or proceedings, particullarly, those in Japanese-sponsored courts, and
subject to such other conditions as the special law may provide, validate the corresponding
acts, processes or proceedings. This, to my mind, would be more conducive to a maximum
of benefit and a minimum of prejudice to the inhabitants of this country, rather than the
procedure favored by the majority.
Finally, let us not equalize the conditions then prevailing in Manila to that prevailing in the
provinces, where the greater number of the people where then living outside the towns, in
the farms and the hills. These people constitute the great majority of the eighteen million
Filipinos. To them the semblance of an administration of justice which Japanese allowed,
was practically unknown. But they constituted the majority of loyal citizens to whom
President Roosevelt's message of October 23, 1943 refers. They the majority of our
people had an unshaken faith in the arrival of American aid here and the final triumph of
the Allied cause. They were willing to wait for the restoration of their rightful government, with
its courts and other institutions, for the settlement of their differences. May in their common
hardship and sufferings under yoke of foreign oppression, they had not much time to think of
such differences, if they did not utterly forget them. Their undoubted hatred of the invader
was enough to keep them away from the judicial system that said invader allowed to have.
Those who voluntarily went to the courts in those tragic days belong to the small minority.
As to the public order why! any public order which then existed was not due to the courts
or other departments of the puppet government. It was maintained at the point of the bayonet
by the Japanese army, and in their own unique fashion.


Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-49 November 12, 1945
WILLIAM F. PERALTA, petitioner,
vs.
THE DIRECTOR OF PRISONS, respondent.
William F. Peralta in his own behalf.
Office of the Solicitor General Taada for respondent.
City Fiscal Mabanag as amicus curiae.
FERIA, J.:
Petitioner-defendant, a member of the Metropolitan Constabulary of Manila charged with the
supervision and control of the production, procurement and distribution of goods and other
necessaries as defined in section 1 of Act No. 9 of the National Assembly of the so-called
Republic of the Philippines, was prosecuted for the crime of robbery as defined and
penalized by section 2 (a) of Act No. 65 of the same Assembly. He was found guilty and
sentenced to life imprisonment, which he commenced to serve on August 21, 1944, by the
Court of Special and Exclusive Criminal Jurisdiction, created in section 1 of Ordinance No. 7
promulgated by the President of the so-called Republic of the Philippines, pursuant to the
authority conferred upon him by the Constitution and laws of the said Republic. And the
procedure followed in the trial was the summary one established in Chapter II of Executive
Order No. 157 of the Chairman of the Executive Commission, made applicable to the trial
violations of said Act No. 65 by section 9 thereof and section 5 of said Ordinance No. 7.
The petition for habeas corpus is based on the ground that the Court of Special and
Executive Criminal Jurisdiction created by Ordinance No. 7 "was a political instrumentality of
the military forces of the Japanese Imperial Army, the aims and purposes of which are
repugnant to those aims and political purposes of the Commonwealth of the Philippines, as
well as those of the United States of America, and therefore, null and void ab initio," that the
provisions of said Ordinance No. 7 are violative of the fundamental laws of the
Commonwealth of the Philippines and "the petitioner has been deprived of his constitutional
rights"; that the petitioner herein is being punished by a law created to serve the political
purpose of the Japanese Imperial Army in the Philippines, and "that the penalties provided
for are much (more) severe than the penalties provided for in the Revised Penal Code."
The Solicitor General, in his answer in behalf of the respondent, states that, in his own
opinion, for the reasons expressed in his brief in the case of People of the Philippines,
plaintiff-appellant, vs. Benedicto Jose y Santos, defendant-appellee, G. R. No. L-22 (p.
612, post), the acts and proceedings taken and had before the said Court of Special and
Exclusive Criminal Jurisdiction which resulted in the conviction and imprisonment of the
herein petitioner, should now be denied force and efficacy, and therefore the petition
for habeas corpus should be granted. The reasons advanced by the Solicitor General in said
brief and in his reply memorandum in support of his contention are, that the Court of Special
and Exclusive Criminal Jurisdiction created, and the summary procedure prescribed therefor,
by said Ordinance No. 7 in connection with Executive Order No. 157 of the Chairman of the
Executive Commission are tinged with political complexion; that the procedure prescribed in
Ordinance No. 7 does not afford a fair trial, violates the Constitution of the Commonwealth,
and impairs the Constitutional rights of accused persons under their legitimate Constitution.
And he cites, in support of this last proposition, the decisions of the Supreme Court of the
United States in the cases of Texas vs. White (7 Wall., 700, 743); Horn vs. Lockart (17 Wall.,
570, 581); United States vs. Home Insurance Co. (22 Wall., 99, 104); Sprott vs.United States
(20 Wall., 459).
The City Fiscal of Manila appeared before this Court as amicus curiae. In his memorandum
he submits that the petition for habeas corpus be denied on the following grounds: That the
Court of Special and Exclusive Criminal Jurisdiction and the Acts, Ordinances and Executive
Orders, creating it are not of a political complexion, for said Court was created, and the
crimes and offenses placed under its jurisdiction were penalized heavily, in response to an
urgent necessity, according to the preamble of Ordinance No. 7; that the right to appeal in a
criminal case is not a constitutional right; and that the summary procedure established in
said Ordinance No. 7 is not violative of the provision of Article III, section 1 (18) of the
Constitution of the Commonwealth, to the effect that no person shall be compelled to be a
witness against himself, nor of the provision of section 1 (1) of the same Article that no
person shall be deprived of life, liberty, or property without due process of law.
The features of the summary procedure adopted by Ordinance No. 7, assailed by the
petitioner and the Solicitor General as impairing the constitutional rights of an accused are:
that court may interrogate the accused and witnesses before trial in order to clarify the points
in dispute; that the refusal of the accused to answer the questions may be considered
unfavorable to him; that if from the facts admitted at the preliminary interrogatory it appears
that the defendant is guilty, he may be immediately convicted; and that the sentence of the
sentence of the court is not appealable, except in case of death penalty which cannot be
executed unless and until reviewed and affirmed by a special division of the Supreme Court
composed of three Justices.
Before proceeding further, and in order to determine the law applicable to the questions
involved in the present case, it is necessary to bear in mind the nature and status of the
government established in these Islands by the Japanese forces of occupation under the
designation of Republic of the Philippines.
In the case of Co Kim Cham vs. Valdez Tan Keh and Dizon (G. R. No. L-5, pp. 113,
127, ante), recently decided, this Court, speaking through the Justice who pens this decision,
held:
In view of the foregoing, it is evident that the Philippines Executive Commission,
which was organized by Order No. 1, issued on January 23, 1942, by the
Commander of the Japanese forces, was a civil government established by the
military forces of occupation and therefore a de facto government of the second kind.
It was not different from the government established by the British in Castine, Maine,
or by the United States in Tanpico, Mexico. As Halleck says, "the government
established over an enemy's territory during the military occupation may exercise all
the powers given by the laws of war to the conqueror over the conquered, and is
subject to all restrictions which that code imposes. It is of little consequence whether
such government be called a military or civil government. Its character is the same
and the source of its authority the same. In either case it is a government imposed by
the laws of war and so far as it concerns the inhabitants of such territory or the rest of
the world those laws alone determine the legality or illegality of its acts." (vol. 2 p.
466.) The fact that the Philippine Executive Commission was a civil and not a military
government and was run by Filipinos and not by Japanese nationals is of no
consequence.
And speaking of the so-called Republic of the Philippines in the same decision, this Court
said:
The so-called Republic of the Philippines, apparently established and organized as a
sovereign state independent from any other government by the Filipino people, was,
in truth and reality, a government established by the belligerent occupant or the
Japanese forces of occupation. It was of the same character as the Philippine
Executive Commission, and the ultimate source of its authority was the same the
Japanese military authority and government. As General MacArthur stated in his
proclamation of October 23, 1944, a portion of which has been already quoted,
"under enemy duress, a so-called government styled as the 'Republic of the
Philippines' was established on October 14, 1943, based upon neither the free
expression of the peoples" will nor the sanction of the Government of the United
States.' Japan had no legal power to grant independence to the Philippines or
transfer the sovereignty of the United States to, or recognize the latent sovereignty of
the Filipino people, before its military occupation and possession of the Islands had
matured into an absolute and permanent dominion or sovereignty by a treaty of
peace or other means recognized in the law of nations.
As the so-called Republic of the Philippines was a de facto government of the second kind
(of paramount force), as the government established in Castine, Maine, during its occupation
by the British forces and as that of Tampico, Mexico, occupied during the war with that the
country by the United State Army, the question involved in the present case cannot be
decided in the light of the Constitution of the Commonwealth Government; because the
belligerent occupant was totally independent of the constitution of the occupied territory in
carrying out the administration over said territory; and the doctrine laid down by the Supreme
Court of the United States in the cases involving the validity of judicial and legislative acts of
the Confederate States, considered as de factogovernments of the third kind, does not apply
to the acts of the so-called Republic of the Philippines which is a de facto government of
paramount force. The Constitution of the so-called Republic of the Philippines can neither be
applied, since the validity of an act of a belligerent occupant cannot be tested in the light of
another act of the same occupant, whose criminal jurisdiction is drawn entirely from the law
martial as defined in the usages of nations.
In the case of United States vs. Rice (4 Wheaton, 246), the Supreme Court of the United
States held that, by the military occupation of Castine, Maine, the sovereignty of the United
States in the territory was, of course, suspended, and the laws of the United States could no
longer be rightfully enforced there or be obligatory upon the inhabitants who remained and
submitted to the belligerent occupant. By the surrender the inhabitants passed under a
temporary allegiance to the British government, and were bound by such laws, and such
only, as it chose to recognize and impose. And Oppenheim, in his Treatise on International
Law, says that, in carrying out the administration over the occupied territory and its
inhabitants, "the (belligerent) occupant is totally independent of the constitution and the laws
of the territory, since occupation is an aim of warfare, and the maintenance and safety of his
forces, and the purpose of war, stand in the foreground of his interest and must be promoted
under all circumstances or conditions. (Vol. II, Sixth Edition, Revised, 1944, p. 342.)
The doctrine laid down in the decisions of the Supreme Court of the United States (in the
cases of Texas vs.White, 7 Wall., 700; Horn vs. Lockart, 17 Wall., 570; Williams vs. Bruffy,
96 U. S., 176 United States vs. Home Insurance Co., 20 Wall., 249; Sprott vs. United States,
20 Wall., 459, and others) that the judicial and legislative acts of the Confederate States
which impaired the rights of the citizens under the Constitution of the United States or of the
States, or were in conflict with those constitutions, were null and void, is not applicable to the
present case. Because that doctrine rests on the propositions that "the concession (of
belligerency) made to the Confederate Government . . . sanctioned no hostile legislation . . .
and it impaired in no respect the rights of loyal and citizens as they existed at the
commencement of hostilities" (Williams vs. Bruffy, supra);that the Union is perpetual and
indissoluble, and the obligation of allegiance to the to the estate and obedience to her laws
and the estate constitution, subject to the Constitution of the United States, remained
unimpaired during the War of Secession (Texas vs. White, supra) and that the Confederate
States "in most, if not in all instances, merely transferred the existing state organizations to
the support of a new and different national head. the same constitution, the same laws for
the protection of the property and personal rights remained and were administered by the
same officers." (Sprott vs. United States, supra). In fine, because in the case of the
Confederate States, the constitution of each state and that of the United States or the Union
continued in force in those states during the War of Secession; while the Constitution of the
Commonwealth Government was suspended during the occupation of the Philippines by the
Japanese forces of the belligerent occupant at regular war with the United States.
The question which we have to resolve in the present case in the light of the law of nations
are, first, the validity of the creation of the Court of Special and Exclusive Criminal
Jurisdiction, and of the summary procedure adopted for that court; secondly, the validity of
the sentence which imprisonment during the Japanese military occupation; and thirdly, if they
were then valid, the effect on said punitive sentence of the reoccupation of the Philippines
and the restoration therein of the Commonwealth Government.
(1) As to the validity of the creation of the Court of Special and Exclusive Criminal
Jurisdiction by Ordinance No. 7, the only factor to be considered is the authority of the
legislative power which promulgated said law or ordinance. It is well established in
International Law that "The criminal jurisdiction established by the invader in the occupied
territory finds its source neither in the laws of the conquering or conquered state, it is
drawn entirely form the law martial as defined in the usages of nations. The authority thus
derived can be asserted either through special tribunals, whose authority and procedure is
defined in the military code of the conquering state, or through the ordinary courts and
authorities of the occupied district." (Taylor, International Public Law, p. 598.) The so-called
Republic of the Philippines, being a governmental instrumentality of the belligerent occupant,
had therefore the power or was competent to create the Court of Special and Exclusive
Criminal Jurisdiction. No question may arise as to whether or not a court is of political
complexion, for it is mere a governmental agency charged with the duty of applying the law
to cases falling within its jurisdiction. Its judgments and sentences may be of political
complexion, or not depending upon the nature or character of the law so applied. There is no
room for doubt, therefore, as to the validity of the creation of the court in question.
With respect to the Summary procedure adopted by Ordinance No. 7, and followed in the
trial of the case which resulted in the conviction of the herein petitioner, there is also no
question as to the power or competence of the belligerent occupant to promulgate the law
providing for such procedure. For "the invader deals freely with the relations of the
inhabitants of the occupied territory towards himself . . . for his security also, he declares
certain acts, not forbidden by the ordinary laws of the country, to be punishable; and he so
far suspends the laws which guard personal liberty as is required for the summary
punishment of any one doing such acts." (Hall's International Law, seventh ed., p. 5000). A
belligerent "occupant may where necessary, set up military courts instead of the ordinary
courts; and in case, and in so far as, he admits the administration of justice by the ordinary
courts, he may nevertheless, so far as is necessary for military purposes, or for the
maintenance of public order and safety temporarily alter the laws, especially the Criminal
Law, on the basis of which justice is administered as well as the laws regarding procedure."
(Oppenheim's International Law, Vol. II, sixth edition, 1944, p.349.)
No objection can be set up to the legality of its provisions in the light of the precepts of our
Commonwealth Constitution relating to the rights of accused under that Constitution,
because the latter was not in force during the period of the Japanese military occupation, as
we have already stated. Nor may said Constitution be applied upon its revival at the time of
the re-occupation of the Philippines by virtue of the principle of postliminium because "a
constitution should operate prospectively only, unless the words employed show a clear
intention that it should have a retrospective effect" (Cooley's Constitutional Limitations,
seventh edition, page 97, and cases quoted and cited in the footnote), especially as regards
laws of procedure applied to cases already terminated completely.
The only restrictions or limitations imposed upon the power of a belligerent occupant to alter
the laws or promulgate new ones, especially the criminal law as well as the laws regarding
procedure, so far as it is necessary for military purposes, that is, for his control of the territory
and the safety and protection of his army, are those imposed by the Hague Regulations, the
usages established by civilized nations, the laws of humanity and the requirements of public
conscience. It is obvious that the summary procedure under consideration does not violate
those precepts. It cannot be considered as violating the laws of humanity and public
conscience, for it is less objectionable, even from the point of view of those who are used to
the accusatory system of criminal procedure than the procedural laws based on the semi-
inquisitorial or mixed system prevailing in France and other countries in continental Europe.
(2) The validity of the sentence rendered by the Court of Special and Exclusive Criminal
Jurisdiction which imposes life imprisonment upon the herein petitioner, depends upon the
competence or power of the belligerent occupant to promulgate Act No. 65 which punishes
the crime of which said petitioner was convicted.
Westlake says that Article XLIII, Section III, of the Hague Conventions of 1907 "indicates that
the laws to be enforced by the occupant consist of, first, the territorial law in general, as that
which stands to the public order and social and commercial life of the district in a relation of
mutual adaptation, so that any needless displacement of it would defeat the object which the
invader is enjoined to have in view, and secondly, such variations of the territorial law as may
be required by real necessity and are not expressly prohibited by any of the rules which will
come before us. Such variations will naturally be greatest in what concerns the relation of the
communities and individuals within the district to the invading army and its followers, it being
necessary for the protection of the latter, and for the unhindered prosecution of the war by
them, that acts committed to their detriment shall not only lose what justification the territorial
law might give them as committed against enemies, but shall be repressed more severely
than the territorial law would repress acts committed against fellow subjects. Indeed the
entire relation between the invaders and the invaded, so far as it may fall within the criminal
department whether by the intrinsic nature of the acts done or in consequence of the
regulations made by the invaders, may be considered as taken out of the territorial law and
referred to what is called martial law." (Westlake, International Law, Part II, War, p. 96.)
According to Hyde (International Law, Vol. II, p. 386), the term "martial law," in so far as it is
used to describe any fact in relation to belligerent occupation, does not refer to a particular
code or system of law, or to a special agency entrusted with its administration. The term
merely signifies that the body of law actually applied, having the sanction of military authority,
is essentially martial. All law, by whomsoever administered, in an occupied district martial
law; and it is none the less so when applied by civil courts in matters devoid of special
interest to the occupant. The words "martial law" are doubtless suggestive of the power of
the occupant to share the law as he sees fit; that is, to determine what shall be deemed
lawful or unlawful acts, to establish tests for ascertaining the guilt of offenders, to fix
penalties, and generally to administer justice through such agencies as the found expedient.
And the United States Rules of Land Warfare provide that the belligerent occupant may
promulgate such new laws and regulations as military necessity demands, and in this class
will be included those laws which come into being as a result of military rule; that is, those
which establish new crimes and offenses incident to a state of war and are necessary for the
control of the country and the protection of the army, for the principal object of the occupant
is to provide for the security of the invading army and to contribute to its support and
efficiency and the success of its operations. (Pub. 1940, pp. 76, 77.)
From the above it appears clear that it was within the power and competence of the
belligerent occupant to promulgate, through the National Assembly of the so-called Republic
of the Philippines, Act No. 65 of the said Assembly, which penalizes the crimes of robbery
and other offenses by imprisonment ranging from the maximum period of the imprisonment
prescribed by the laws and ordinances promulgated by the President of the so-called
Republic as minimum, to life imprisonment or death as maximum. Although these crimes are
defined in the Revised Penal Code, they were altered and penalized by said Act No. 65 with
different and heavier penalties, as new crimes and offenses demanded by military necessity,
incident to a state of war, and necessary for the control of the country by the belligerent
occupant, the protection and safety of the army of occupation, its support and efficiency, and
the success of its operations.
They are not the same ordinary offenses penalized by the Revised Penal Code. The
criminal acts penalized by said Act No. 65 are those committed by persons charged or
connected with the supervision and control of the production, procurement and distribution of
foods and other necessaries; and the penalties imposed upon the violators are different from
and much heavier than those provided by the Revised Penal Code for the same ordinary
crimes. The acts penalized by said Act were taken out of the territorial law or Revised Penal
Code, and referred to what is called martial law by international jurists, defined above by
Hyde, in order, not only to prevent food and other necessaries from reaching the "guerrillas"
which were harassing the belligerent occupant from every nook and corner of the country,
but also to preserve the food supply and other necessaries in order that, in case of necessity,
the Imperial Japanese forces could easily requisition them, as they did, and as they had the
right to do in accordance with the law of nations for their maintenance and subsistence (Art.
LII, Sec. III, Hague Conventions of 1907). Especially taking into consideration the fact, of
which this court may take judicial notice, that the Imperial Japanese Army had depended
mostly for their supply upon the produce of this country.
The crimes penalized by Act No. 65 as well as the crimes against national security and
the law of nations, to wit: treason, espionage, inciting war, violation of neutrality,
correspondence with hostile country, flight to enemy's country, piracy; and the crimes against
public order, such as rebellion, sedition and disloyalty, illegal possession of firearms and
other, penalized by Ordinance No. 7 and placed under jurisdiction of the Court of Special and
Exclusive Criminal Jurisdiction are all of a political complexion, because the acts
constituting those offenses were punished, as are all political offenses, for public rather than
private reasons, and were acts in aid or favor of the enemy and against the welfare, safety
and security of the belligerent occupant. While it is true that these offenses, when committed
against the Commonwealth or United States Government, are defined and also penalized by
the territorial law Revised Penal Code, they became inapplicable as crimes against the
occupier upon the occupation of the Islands by the Japanese forces. And they had to be
taken out of the territorial law and made punishable by said Ordinance No. 7, for they were
not penalized before under the Revised Penal Code when committed against the belligerent
occupant or the government established by him in these Island. They are also considered by
some writers as war crimes in a broad sense. In this connection Wheaton observes the
following:
"Of 'war crimes' the number is naturally indefinite, depending as they do on the acts from
time to time ordered to be done or forbidden to be done in the martial law proclamation or
regulations of the invading or occupying commander. Thus, in the Anglo-Boer war, the British
military authorities proclaimed the following to be offenses against their martial law; Being
in possession of arms, ammunition, etc.; traveling without a permit; sending prohibited
goods; holding meetings other than those allowed; using seditious language; spreading
alarmist reports; overcharging for goods; wearing uniforms without due authority; going out of
doors between certain hours; injuring military animals or stores; being in possession, without
a permit, of horses, vehicles, cycles, etc.; hindering those in execution of military orders;
trespassing on defense works. Such offenses, together with several others, were specified in
the Japanese regulations made in the Russo-Japanese war." (Wheaton's International Law,
War, seventh edition, 1944, p. 242.)
It is, therefore, evident that the sentence rendered by the Court of Special and Exclusive
Criminal Jurisdiction against the petitioner, imposing upon him the penalty of life
imprisonment, was good and valid, since it was within the admitted power or competence of
the belligerent occupant to promulgate the law penalizing the crime of which petitioner was
convicted.
(3) The last question is the legal effect of the reoccupation of the Philippines and restoration
of the Commonwealth Government; that is whether or not, by the principle of postliminy, the
punitive sentence which petitioner is now serving fell through or ceased to be valid from that
time.
In order to resolve this last question, it is not necessary to enter into an elaborate discussion
on the matter. It is sufficient to quote the opinion on the subject of several international jurists
and our recent decision in the case ofCo Kim Cham vs. Valdez Tan Keh and Dizon, supra.
Hall, commenting on the effect of the principle of postliminy upon sentences of the tribunals
continued or created by the belligerent occupant, opines "that judicial acts done under this
control, when they are not of a political complexion, administrative acts so done, to the extent
that they take effect during the continuance of his control, and the various acts done during
the same time by private persons under the sanction of municipal law, remain good. . . .
Political acts on the other hand fall through as of course, whether they introduce any positive
change into the organization of the country, or whether they only suspend the working of that
already in existence. The execution also of punitive sentences ceases as of course when
they have had reference to acts not criminal by the municipal law of the state, such for
example as acts directed against the security or control of the invader." (Hall's International
Law, seventh edition, p. 518.)
Westlake, speaking of the duration of the validity of punitive sentences for offenses such as
the one in question, which is within the admitted power or competence of the belligerent
occupant to punish, says that: "To the extent to which the legal power of the occupant is
admitted he can make law for the duration of his occupation. Like any other legislator he is
morally subject to the duty of giving sufficient notice of his enactments or regulations, not
indeed so as to be debarred from carrying out his will without notice, when required by
military necessity and so far as practically carrying out his will can be distinguished from
punishment, but always remembering that to punish for breach of a regulation a person who
was justifiably ignorant of it would be outrageous. But the law made by the occupant within
his admitted power, whether morally justifiable or not, will bind any member of the occupied
population as against any other member of it, and will bind as between them all and their
national government, so far as it produces an effect during the occupation. When the
occupation comes to an end the authority of the national government is restored, either by
the progress of operations during the war or by the conclusion of a peace, no redress can be
had for what has been actually carried out but nothing further can follow from the occupant's
legislation. A prisoner detained under it must be released, and no civil right conferred by it
can be further enforced. The enemy's law depends on him for enforcement as well as for
enactment. The invaded state is not subject to the indignity of being obliged to execute his
commands. (Westlake, International Law, Part II, War, pp. 97, 98.)
And Wheaton, who, as above stated, considers as war crimes such offenses as those
penalized in Ordinance No. 7 and Act No. 65, says: "In general, the cast of the occupant
possess legal validity, and under international law should not be abrogated by the
subsequent government. But this rule does not necessarily apply to acts that exceed the
occupant's power (e.g., alienation of the domains of the State or the sovereign), to sentences
for 'war treason' and 'war crimes,' to acts of a political character, and to those that beyond
the period of occupation. When occupation ceases, no reparation is legally due for what has
already been carried out." (Wheaton's International Law, supra, p. 245.)
We have already held in our recent decision in the case of Co Kim Cham vs. Valdez Tan Keh
and Dizon, supra, that all judgments of political complexion of the courts during the Japanese
regime, ceased to be valid upon the reoccupation of the islands by virtue of the principle or
right of postliminium. Applying that doctrine to the present case, the sentence which
convicted the petitioner of a crime of a political complexion must be considered as having
ceased to be valid ipso facto upon the reoccupation or liberation of the Philippines by
General Douglas MacArthur.
It may not be amiss to say in this connection that it is not necessary and proper to invoke the
proclamation of General Douglas MacArthur declaring null and void all laws, among them Act
No. 65, of the so-called Republic of the Philippines under which petitioner was convicted, in
order to give retroactive effect to the nullification of said penal act and invalidate sentence
rendered against petitioner under said law, a sentence which, before the proclamation, had
already become null and of no effect.
We therefore hold that the punitive sentence under consideration, although good and valid
during the military occupation of the Philippines by the Japanese forces, ceased to be good
and valid ipso facto upon the reoccupation of these Island and the restoration therein of the
Commonwealth Government.
In view of all the foregoing, the writ of habeas corpus prayed for is hereby granted and it is
ordered that the petitioner be released forthwith, without pronouncement as to costs. So
ordered.
Jaranilla, Pablo and Bengzon, JJ., concur.
Moran, C.J., concurs in the result.


Separate Opinions
OZAETA, J., concurring:
Amidst the forest of opinions that have cropped up in this case it would seem unnecessary to
plant an additional tree. To justify our effort lest we seem intent to bring coal to Newcastle
we ought to state that the following opinion had been prepared before the others were
tendered. It has been impossible for the Court to reconcile and consolidate the divergent
views of its members although they arrive at practically the same result.
Accused of robbery in the Court of Special and Exclusive Criminal Jurisdiction of Manila, the
petitioner was found guilty and sentenced to life imprisonment. He commenced to serve the
sentence on August 21, 1944. He now petitions this Court for the writ of habeas corpus,
alleging that Ordinance No. 7, by which the Court of Special and Exclusive Criminal
Jurisdiction was created and which was promulgated on March 8, 1944, by the President of
the "Republic of the Philippines," was null and void ab initio. The Solicitor General,
answering the petition on behalf of the respondent Director of Prisons, expressed the opinion
that "the acts and proceedings taken and before the said Court of Special and Exclusive
Criminal Jurisdiction which resulted in the conviction and imprisonment of the herein prisoner
should now be denied force and efficacy," and recommended "that the writ of habeas
corpusprayed for be granted and that the City Fiscal be instructed to prepare and file the
corresponding information for robbery against the petitioner herein in the Court of First
Instance of Manila."
The case was argued before us on September 21 and 22, 1945, by the First Assistant
Solicitor General on behalf of the respondent and the City Fiscal as amicus curiae the
former impugning and the latter sustaining the validity of said Ordinance No. 7. Section 1 of
the ordinance in question reads as follows:
SECTION 1. There is hereby created in every province and city throughout the
Philippines one or more courts of special criminal jurisdiction as the President of the
Republic of the Philippines may determine upon recommendation of the Minister of
Justice, which courts shall have exclusive jurisdiction to try and determine crimes
and offenses penalized by Act No. 65 entitled "An Act imposing heavier penalties for
crimes involving robbery, bribery, falsification, frauds, illegal exactions and
transactions, malversation of public funds and infidelity as defined in the Revised
Penal Code and violations of food control laws, when committed by public officers
and employees, and for similar offenses when committed by private individuals or
entities, and providing for a summary procedure for the trial of such offenders."
Section 2 confers upon the court mentioned in section 1 exclusive jurisdiction also to try the
following crimes as defined in the Revised Penal Code: crimes against national security and
the law of nations, crimes against public order, brigandage, arson and other crimes involving
destruction, illegal detention committed by private individuals and kidnapping of minors; and
illegal possession of firearms, as defined in an executive order. Section 3 provides for the
appointment of one judge of first instance to preside over the court above mentioned and of
a special prosecutor in each special court. Section 4 authorizes the court to impose a longer
term of imprisonment than that fixed by law, or imprisonment for life or death where not
already fixed by law, for the crimes and offenses mentioned in section 2. The remaining
sections read as follows:
SEC. 5. The trial of the cases arising sections 1 and 2 hereof shall be started within
two days after the filing of the corresponding information, shall be summary in
procedure, and shall aim at their expeditious and prompt disposition. Technicalities
shall be avoided and all measures calculated to serve this end shall be taken by the
trial judge. Said cases shall be decided within four days after the same are submitted
for decision. The summary procedure provided in Act No. 65 insofar as not
inconsistent with the provisions of this Ordinance, shall govern the trial of the cases
enumerated in said sections 1 and 2 hereof.
SEC. 6. The decisions of the special courts herein created shall be final except
where the penalty imposed is death, in which case the records of the particular case
shall be elevated en consulta to a special division of the Supreme Court composed of
the three members to be designated by the President of the Republic of the
Philippines. The clerk of each special court, upon the promulgation of a decision
imposing the death penalty, shall immediately forward the records of the case to the
special division of the Supreme Court herein created, which shall decide the case
within fifteen days from the receipt of the records thereof.
SEC. 7. The interest of public safety so requiring it, the privileges of the writ
of habeas corpus are hereby suspended with respect to persons accused of, or
under investigations for, any of the crimes and offenses enumerated in sections 1
and 2 hereof.
SEC. 8. All laws, rules or orders, or parts thereof, inconsistent with the provisions
hereof, are hereby repealed or modified accordingly.
SEC. 9. This Ordinance shall take effect immediately upon its promulgation.
The summary procedure provided in Act No. 65 of the "Republic," as referred to in section 5
above quoted, is in turn that established by Chapter II of Executive Order No. 157 of the
Chairman of the Philippine Executive Commission, dated May 18, 1943. Under said
procedure (section 17) "search warrants may be issued by the court or by any prosecuting
officer, authorizing peace officers to search for and seize any articles or objects described in
the warrant, including those which may be regarded as evidence of an offense under this
Order even if such articles or objects are not included among those described in section 2,
Rule 122, of the Rules of Court." Section 18 reads as follows:
SEC. 18. The accused or his representative may be examined by the court, and with
the permission of the court, by the fiscal or other prosecuting officer as to any
matters favorable or unfavorable to him or his principal; and either may apply to the
judge for the examination of the co-accused or the representative of the latter in
matters related to the defense of the accused. Statements made by the accused, his
co-accused, or the representative of the accused or a person acting in a similar
capacity, irrespective of the circumstances under which they were made, shall be
admissible in evidence if material to the issue.
Section 21 provides for the summary trial in the following manner:
Such trials shall be conducted according to the following rules:
(a) After arraignment and plea, the court shall immediately cause to be explained to
the accused the facts constituting the offenses with which he is charged, and the
judge shall interrogate the accused and the witnesses as to the facts and
circumstances of the case in order to clarify the points in dispute and those which are
admitted.
(b) Refusal of the accused to answer any questions made or allowed by the court
may be considered unfavorable to him.
(c) Except for justifiable reasons, the accused shall not be allowed to plead and
assert defenses that are inconsistent with each other.
(d) If from the facts admitted at the preliminary interrogation, it should appear that the
accused is guilty of the crime charged in the information, or in any other information,
or in any other information, or in any other information subsequently filed by the
prosecuting officer, a sentence of conviction may be immediately rendered against
the accused. Otherwise, the judge shall dictate an order distinctly specifying the facts
admitted by the accused and those which are in dispute, and the trial shall be limited
to the latter, unless the judge, for special reasons, otherwise directs.
(e) Unjustified absence of an accused who has been released on bail, or of his
representative shall not be a ground for interrupting the proceedings or attacking the
validity of the judgment.
The provisions of Rules 115 to 117 of the Rules of Court shall be suppletory to the
foregoing insofar as they are not in conflict therewith.
The records shows that during their existence the courts of special and exclusive criminal
jurisdiction created by the ordinance in question convicted and sentenced a total of 94
individuals, 55 of whom had been prosecuted for illegal possession of firearms and 15 for
robbery; and that of the 94 convicts only 3, including the herein petitioner, remain in
confinement, 21 having escaped, 37 having been released, and 33 having died.
In synthesis, the argument of the Solicitor General is as follows: Acts of the military occupant
which exceed his power tested by the criterion set forth in article 43 of the Hague
Regulations, are null and without effect as against the legitimate government. (Wheaton's
International Law, 7th ed., p. 245.) Acts in furtherance or support of rebellion against the
United States, or intended to defeat the just rights of citizens, and other Acts of like nature,
must, in general, be regarded as invalid and void. (Texas vs. White, 74 U. S., 733; 19 Law.
ed., 240.) Judicial or legislative acts in the insurrectionary states were valid where they were
not hostile in their purpose or mode of enforcement to the authority of the national
government, and did not impair the rights of citizens under the Constitution.
(Horn vs. Lockhart, 17 Wall., 570-581; 21 Law. ed., 660.) All the enactment of the de
factolegislatures in the insurrectionary states during the war, which were not hostile to the
Union or to the authority of the General Government and which were not in conflict with the
Constitution of the United States, or of the states, have the same validity as if they had been
enactments of legitimate legislatures. (United States vs. The Home Insurance Co., 22 Wall.,
99-104; 22 Law. ed., 818.) Tested by these principles of international law, Ordinance No. 7
must be declared void (1) because it favored the forces of occupation and the civilian
Japanese inasmuch as it provided an excessively heavy penalty for the summary trial of
possession of firearms and violations of food control regulations and (2) because it impaired
the rights of citizens under the Constitution inasmuch as the procedure therein prescribed
withdrew the privilege of the accused against self-incrimination and his right to appeal to the
Supreme Court even where the penalty imposed was life imprisonment or death.
In substance, the City Fiscal argues that the heavier penalty for the illegal possession of
firearms than that fixed by the Administrative Code was not directed toward the suppression
of underground activities against the Japanese army, and the rigid enforcement of the food
control measures was not intended to insure the procurement of supplies by said army,
because in any event the Japanese military occupant freely exercised the power to go after
and punish his enemies directly without recurring to the agencies of the "Republic," for there
were even cases where the offenders were already in the hands of the police or courts of the
"Republic" but they were unceremoniously taken from said agencies by the Japanese
military police and punished or liquidated by it at Fort Santiago or elsewhere; and as regards
food control, the Japanese forces did not have any need of the measures or agencies
established by the "Republic" because the Japanese forces themselves commandeered
what they needed or sent out their own agents to purchase it for them at prices even much
higher than those fixed by the "Republic"; that the procedure prescribed afforded a fair trial
and did not violate any fundamental rights; that the military occupant was not in duty bound
to respect the constitution and the laws of the occupied territory; that he could abrogate all of
them and promulgate new ones if he so chose; that the cases cited by the Solicitor General
are not applicable because they deal with the validity of acts and processes of the
governments of the rebel states during the Civil War and are based upon the indissolubility of
the Union; that the validity or nullity of the ordinance in question should be judged in the light
of the provisions of the Constitution and the laws of the "Republic" and of generally accepted
principles of international law; that even assuming that it should be judged by the standard or
the Constitution of the Commonwealth, the ordinance satisfies all the requirements of said
Constitution; that the right to appeal in a criminal case is not a constitutional but a purely
statutory right which may be granted or withheld at the pleasure of the state; and, finally, that
the supposed invalidity of the sentence imposed against the petitioner cannot be raised
by habeas corpus.
There is no question that in virtue of that of the proclamation of General MacArthur of
October 23, 1944 (41 Off. Gaz., 147, 148), Ordinance No. 7 is no longer of any force and
effect since the restoration of the Government of the Common wealth of the Philippines. The
question before us is whether said ordinance ever acquired any force and effect or was null
and void ab initio.
Invoking decisions of the Supreme Court of the United States in cases involving the validity
of Acts of the Confederacy and of a rebel state as a de facto government during the Civil
War, the Solicitor General maintains that the ordinance in question was null and void
because it impaired the rights of citizens under the Constitution and because it was hostile in
its purpose to the United States and the Commonwealth of the Philippines.
The decisions invoked would be applicable if the so-called Republic of the Philippines should
be considered as a government established by the Filipino people in rebellion against the
Commonwealth and the Sovereignty of the United States. The decisions of the Supreme
Court of the United States declaring invalid Acts of a rebel state or of the Confederacy which
were in furtherance or support of rebellion against the United States or which impaired the
rights of citizens under the Constitution, rest on the proposition that the Union is perpetual
and indissoluble and that the obligations of allegiance to the state, and obedience to her
laws, subject to the Constitution of the United States, remained unimpaired during the War of
Secession. (See Texas vs. White, 74 U.S., 700; 19 Law. ed., 227, 237; William vs. Bruffy, 96
U.S., 176; 24 Law. ed. 716.) Obviously, that proposition does not hold true with respect to
a de facto government established by the enemy in an invaded and occupied territory in the
course of a war between two independent nations. Such territory is possessed temporarily so
possessed temporarily by lawful government at war with the country of which the territory so
possessed is a part, and during that possession the obligations of the inhabitants to their
country are suspended, although not abrogated (United States vs. Rice, 4 Wheat., 253;
Fleming vs. Page 9 How., 614; Baldy vs. Hunter, 171 U.S., 388; 43 Law. ed., 208, 210.) In
the case of Williams vs. Bruffy, supra, the court, speaking though Mr. Justice Field,
observed: "The rule stated by Vattel, that the justice of the cause between two enemies
being by law of nations reputed to be equal, whatsoever is permitted to the one in virtue of
war is also permitted to the other, applies only to cases of regular war between independent
nations. It has no application to the case of a war between an established government and
insurgents seeking to withdraw themselves from its jurisdiction or to overthrow its authority.
The court further stated that the concession of belligerent rights made to the Confederate
Government sanctioned no hostile legislation and impaired in no respect the rights loyal
citizens as they had existed at the commencement of hostilities.
On the other hand, in a war between independent nations "the rights of the occupant as a
law-giver have broad scope." He many "suspend the existing laws and promulgate new ones
when the exigencies of the military service demand such action. According to the Rules of
Land Warfare he will naturally alter or suspend all laws of a political nature as well as a
political privileges, and laws which affect the welfare and safety of his command." (Hyde on
International Law, vol. 2, p. 367.) It will be seen then that in a war between independent
nation the army of occupation has the right to enact laws and take measures hostile to its
enemy, for its purpose was to harass and subdue the latter; and it is not bound to respect or
preserve the rights of the citizens of the occupied territory under their Constitution.
Let us now look into the nature and status of the government styled "Republic of the
Philippines "in order to determined the criterion by which the validity of its enactments should
be tested. In the recent case of Co Kim Cham vs. Valdez Tan Keh Dizon (G.R. No. L-5, p.
113, ante), this Court speaking through Justice Feria, had occasion to comment upon the
nature of said government in the following words:
The so-called Republic of the Philippines, apparently established and organized as a
sovereign state independent from any other government by the Filipino people, was,
in truth and reality, a government established by the belligerent occupant or the
Japanese forces of occupation. It was of the same character as the Philippines
Executive Commission, and the ultimate source of its authority was the same the
Japanese military authority and government. As General McArthur stated in his
proclamation of October 23, 1944, a portion of which had been already quoted,
"under enemy duress a was established on October 14, 1943, base upon neither the
free expression of the peoples" will nor the sanction of the Government of the United
States.' Japan had no legal power to grant independence to the Philippines or
transfer the sovereignty of the United State to, or recognize the latent sovereignty of,
the Filipino people, before its military occupation and possession of the Islands had
matured into an absolute and permanent dominion or sovereignty by a treaty of
peace or other means recognized in the law of nations. For it is a well-established
doctrine in internal law, recognized in the law, recognized in Article 45 of the Hague
Conventions of 1907 (which prohibits compulsion of the population of the occupied
territory to swear allegiance to the hostile power), that belligerent occupation, being
essentially provisional, does not severe to transfer sovereignty over the territory
controlled although the de jure government is during the period of occupancy
deprived of the power to exercise its rights as such. (Thirty Hogshead of
Sugar vs. Boyle, 9 Cranch, 191; United Statesvs. Rice, 4 Wheat., 246;
Fleming vs. Page, 9 Howard, 603; Downes vs. Bidwell, 182 U.S., 345.) The formation
of the Republic of the Philippines was a scheme contrived by Japan to delude of the
Filipino people into believing in the apparent magnanimity of the Japanese gesture of
transferring or turning over the rights of governments into the hands of Filipinos. It
was established under the mistaken belief that, by doing so, Japan would secure the
cooperation or at least the neutrality of the Filipino people in her war against the
United States and other allied nations.
We reaffirmed those statements. To show further the fictitious character of much-
propagandized "independence" which Japan purported to grant to the Philippines through
the establishment of the "Republic", we may add that, as matter of contemporary history and
of common knowledge, in practice the Japanese military authorities in the Philippines never
treated the "Republic of the Philippines" as an independent government after its
inauguration. They continued to impose their will on its executive officials when their interests
so required. The Japanese military police arrested and punished various high officials of said
government, including the First Assistant Solicitor General, and paid no attention to the
protests and representations made on their behalf by the President of the "Republic." As a
climax of their continual impositions, in December 1944 the Japanese military authorities
placed the President and the members of his Cabinet under the "protective" custody of the
military police, and on the 22nd of the month forced them to leave the seat of the
government in Manila and hide with them in the mountains. The only measure they did not
succeed in imposing upon the "Republic" was the conscription of the Filipino youth into an
army to fight with the Japanese against the United States. So, while in theory and for the
purpose of propaganda Japan professed to be a benefactor and liberator of the Filipinos,
hoping thereby to secure their willing cooperation in her war efforts, in practice she continued
to enslave and oppress the Filipinos, as she saw that the latter remained loyal to the United
States. She found that the Filipinos merely feigned cooperation as their only means of self-
preservation and that those who could stay beyond the reach of her army of occupation
manifested their hospitality by harassing and attacking that army. Thus Japan continued to
oppress and tyrannize the Filipinos notwithstanding the former's grant of "independence" to
the latter. It would therefore be preposterous to declare that the "Republic of the Philippines"
was a government established by the Filipino people in rebellion against the Commonwealth
and the sovereignty of the United States.
The said government being a mere instrumentality of the Commander in Chief of the
Japanese army as military occupant, the ordinance question promulgated by the President of
the "Republic" must be deemed as an act emanating from the power or authority of said
occupant. The question, therefore, is whether or not it was within the competence of the
military occupant to pass such a law.
Article 43 of the Hague Regulations provides as follows:
ART. 43. The authority of the legitimate power having actually passed into the hands
of the occupant, the latter shall take all steps in his power to reestablish and insure,
as far as possible, public order and safety, while respecting, unless absolutely
prevented, the laws in force in the country.
Commenting upon this article, Hyde in his work on International Law, volume 2, pages 366,
367, 368, says:
In consequence of his acquisition of the power to control the territory concerned, the
occupant enjoys the right and is burdened with the duty to take all the measures
within his power to restore and insure public order and safety. In so doing he is given
great freedom may be partly due to circumstance that the occupant is obliged to
consider as a principal object the security, support, efficiency and success of his own
force in a hostile land inhabited by nationals of the enemy. . . .
xxx xxx xxx
The right to legislate is not deemed to be unlimited. According to the Hague
Regulations of 1907, the occupant is called upon to respect, "unless absolutely
prevented, the laws in force the ordinary civil and criminal laws which do not conflict
with security of his army or its support, efficiency, and success."
In the exercise of his powers the commander must be guided by his judgment and his
experience and a high sense of justice. (President McKinley, Order to the Secretary of War,
July 18, 1898, on the occupation of Santiago de Cuba by the American forces, Moore, Dig.
VII, p. 261.)
Acts of the military occupant which exceed his power tested by the criterion set forth in article
43 of the Hague Regulations, are null and without effect as against the legitimate
government. (Wheaton's International Law, 7th ed. [1944], p. 245.)
Hall in his Treatise on Internal Law, (7th edition), discussing the extent of the right of a
military occupant, states:
If occupation is merely a phase in military operations, and implies no change in the
legal position of the invader with respect to the occupied territory and its inhabitants,
the rights which he possesses over them are those which in the special
circumstances represent his general right to do whatever acts are necessary for the
prosecution of his war; in other words he has the right of exercising such control, and
such control only, within the occupied territory as is required for his safety and the
success of his operations. . . . On occupying a country an invader at once invest
himself with absolute authority; and the fact of occupation draws with it as of course
the substitution of his will for previously existing law whenever such substitution is
reasonably needed, and also the replacement of the actual civil judicial
administration by the military jurisdiction. In its exercise however this ultimate
authority is governed by the condition that the invader, having only a right to such
control as is necessary for his safety and the success of his operations, must use his
power within the limits defined by the fundamental notion of occupation, and with due
reference to its transient character. He is therefore forbidden as a general rule to
vary or suspend laws affecting property and private personal relations, or which
regulate the moral order of the community. . . . (Pages 498, 499.)
We deduce from the authorities that the power of the occupant is broad and absolute in
matters affecting his safety. But in affairs which do not affect the security, efficacy, and
success of his military operations, his power is qualified by the transient character of his
administration. He is forbidden "to vary or suspend laws affecting property and private
personal relations, or which regulate the moral order of the community." Unless absolutely
prevented, he is bound to laws, and civil and criminal, in force in the country.
Tested by this criterion, was it within the power or competence of the Commander in Chief of
the Japanese army of occupation of the Philippines to promulgate Ordinance No. 7? In so far
as said ordinance created new court of special criminal jurisdiction we think his power to
promulgate and enforce it during the occupation cannot be seriously disputed; but in so far
as that ordinance varied radically our law of criminal procedure and deprived the accused of
certain rights which our people have always treasured and considered inviolate, we are of
the that it transcended his power or competence. We base this opinion upon the following
considerations:
1. The occupant was not absolutely prevented from respecting our law of criminal procedure
and the Court of Special and Exclusive Criminal jurisdiction. The application or
nonapplication of said law did not affect the security, efficacy, and success of his military
operations. The crimes over which the said court was vested with jurisdiction were mostly
crimes against property penalized in our Revised Penal Code, which crimes did not affect the
army of occupation. As to the illegal possession of firearms the City Fiscal himself, who the
validity of the ordinance, informs us that the occupant did not avail himself of said court but
punished his enemies direct without recurring to the agencies of the "Republic"; and he
further informs us that "as regards food control, the Japanese forces did not have any need
of the measures or agencies established by "Republic", nor did they make use of them.
2. The summary procedure prescribed in Ordinance No. 7 was inquisitorial, repugnant to the
humanitarian method of administering criminal justice adopted by all progressive,
democratic, and freedom-loving countries of the world, and, therefore, devoid of that high
sense of justice by which the military occupant must be guided in the exercise of his powers.
This concept is, we think, borne out by an examination of the following features of said
procedure:
(a) Under the rule of procedure embodied in said ordinance any prosecuting officer may, on
his own volition and even without probable cause, issue a search warrant for the seizure of
documents and articles which may be regarded as evidence of an offense in violation of
section 2, Rule 122 of the Bill of Rights contained in the Constitution of the Commonwealth,
which guarantees "the right of the people to be secure in their persons, houses, papers, and
effects against unreasonable searches and seizures," and prohibits the issuance of warrants
except upon probable cause to be determined by the judge after examination under oath or
affirmation of the complainant and the witnesses he may produce.
(b) The trial must be commenced within two days after the filing of the information in
violation of section 7, Rule 114, which give the accused at least two days after the plea of not
guilty within which to prepare fort trial.
(c) The presumption of innocence in favor of the accused in all criminal prosecutions until the
contrary is proved, which is likewise guaranteed by the Bill of Rights, is violated in that, after
the arraignment and before the presentation of any proof for the prosecution, the accused is
interrogated by the judge as to the facts and circumstances of the case, and if from the facts
obtained by such interrogation it should appear (to the judge) that accused is guilty a
sentence of conviction may be immediately rendered against him, thereby also depriving him
of his right to meet the witnesses face to face and of his privilege against self-incrimination.
The City Fiscal justifies this feature of the procedure by giving the following hypothetical
case: "In the house of Juan and under his bed a policeman finds a revolver. Juan is arrested
and an information for illegal possession of firearms is filed against him by the fiscal. He is
brought before the judge of the corresponding special court for the preliminary interrogatory.
He is asked whether or not he admits that the revolver was found in his house. He answers
in the affirmative but says that he is not the owner of the revolver and he does not know how
it placed there. Asked whether he knows of anybody who could have placed the revolver
under his bed, he answers that it might have been place there by a guest who slept on his
bed the night previous to its discovery by the polices. He is asked to give the name of the
guest reffered to and his address, but he refuses to answers. Asked if he has other
witnesses to support his claim, he answer that he has none. As may be seen, the evidence
of guilt is complete, and there being no further evidence to be presented that may change
the result the accused may be then and there sentenced by the court. In this case, the
conviction of the accused is reasonable and fair, for his refusal to reveal the identity of his
alleged guest may due, either to the fact that there was no such guest, or that the cause for
concealing his identity is worth suffering for. Volente non fit injuria."
But to us that hypothetical case is a good illustration of the injustice of such procedure. There
the accused was convicted not because the prosecution had proved his guilt but because he
was unable to prove his innocence. His inability to prove who the owner of the revolver was,
did not to our mind prove him guilt, beyond reasonable doubt, under the circumstances. He
was accused of illegal possession of firearm, an offense punishable under the ordinance in
question with imprisonment for six to twelve years. He pleaded not guilty, for according to
him the revolver was not his and he did not know how it got into his house. He had no time to
investigate and try to find out whether the policeman himself or some the other person who
wished to do him harm had planted it there, sooner was the revolver seized than he was
brought before the court and interrogated about it when he was naturally dazed and in a
state of alarm. If the law of criminal procedure had been followed, he would have had ample
time to reflect and endeavor to unravel the mystery. He could have consulted a lawyer, and
he would have been entitled to at least two days after the information was read to him to
investigate the facts and prepare for the trial. At the trial he would not have been required to
answer to any proof in his defense until the prosecution had presented its witness, principally
the policeman. His lawyer could have cross-examined the policeman and found out from him
whether he had any grudge against the accused and how he happened to search the latter's
house. From the testimony of the policeman the accused might have been enlightened as to
how and by whom the revolver was place in his house. Suppose that the policeman should
say that his informant as to the presence of the revolver under the bed of the accused was a
houseboy of the latter, and suppose that houseboy was really the one who planted the
revolver because of some grievance he had against his master but that the latter had not
suspected before that his houseboy had any revolver. In view of the revelation of the
policeman he would had been able to investigate and ascertain that fact. In that he way he
could have satisfactory explained how and by whom the revolver was placed under his bed.
But under the procedure in question as outlined by the City Fiscal, the accused was of
course utterly unable to do that and was consequently doomed to at least six years'
imprisonment for a crime he had not committed.
(d) Section 6 of the Ordinance in question provided: "The decisions of the special courts
herein created shall be final except where the penalty imposed is death, in which case the
records of the particular case shall be elevateden consulta to a special division of the
Supreme Court composed of three members to be designated by the President of the
Republic of the Philippines." Under our law of criminal procedure, which the military occupant
was bound to respect unless absolutely prevented, all persons accused of any offense have
the right to appeal to the Court Appeals or to the Supreme Court. It is true that as rule that
right is statutory and may be withdrawn by the legislature except in certain cases where the
right to appeal is provided in the Constitution itself, as in the cases involving life
imprisonment and death penalty; but the question here is not whether the legislative
department of the legitimate government has the power to abrogate that right but whether it
was within the competence of the military occupant to do so.
(e) In the instant case the penalty imposed upon accused by the special court, after a
summary trial was life imprisonment, and he was denied the right to have that sentence
reviewed by the Supreme Court, altho under sub-section 4, section 2, Article VIII of the
Constitution of the Commonwealth, he could not have been deprived by law of that right.
( f ) Section 7 of the Ordinance suspended the privilege of the writ of habeas corpus with
respect to persons accused of or under investigation for any of the crimes and offenses
enumerated in sections 1 and 2. The Constitution of the Commonwealth prohibit the
suspension of that privilege except in cases of invasion, insurrection, or rebellion when the
public safety requires it. The suspension by the ordinance was not motivated by any one of
these cases but by the necessity for waging a campaign against certain classes of crime;
martial law was not declared; and the suspension of habeas corpus did not apply to all
persons living in the specified territory (as should have been done if the public safety
required such suspension) but only to those accused of or investigated for certain specified
crimes or offenses. The result of such partial suspension was that persons accused of or
under investigation for any of the offenses specified in section 1 and 2 could be held in
detention indefinitely, whereas person accused of or under investigation for crimes other
than those specified, such for example as theft, physical injuries, homicide, murder, and
parricide, had the right to demand their release byhabeas corpus after the lapse of six hours.
The same discrimination holds true with reference to the other features already noted above,
namely, unreasonable searches and seizures, summary trial, denial of the presumption
innocence, self-incrimination, and denial of the right to appeal. Such discrimination was
unwarranted and unjust and was contrary to the concept of justice prevailing in all
democratic countries, where every person is entitled to the equal protection of the laws.
3. It is apparent from the foregoing examination of the main features of the ordinance that
while the methods thus adopted may not be unusual under totalitarian governments like
those of the aggressor nations in the recent global war, they are strange and repugnant to
the people of the democratic countries which united together to defeat said aggressors and
"to reaffirm faith in fundamental human person, in the equal rights of men and women and of
nations large and small, . . . and to promote social progress and better standards of life in
larger freedom." (Preamble Charter for Peace adopted by the United Nations at San
Francisco, California, June 26, 1945.) The recent global war was a clash between two
antagonistic ways of life, between facism and democracy. It would be strange indeed if his
Court, which functions under a democratic government that fought with the other democratic
nations in that war, should sanction or approve the way of life, against which that war was
fought and won the cost of million of lives and untold sacrifices.
4. The case involves the interpretation not of constitution but of international law, which "is
based on usage and opinion"; and "he who in such a case bases his reasoning on high
considerations of morality may succeed in resolving the doubt in accordance with humanity
and justice." (Principles of International Lawrence, 7th ed., pp. 12, 13.) We think the
contentions for the petitioner against the validity of the ordinance in question are in accord
with humanity and justice.
Before concluding this opinion we deem it pertinent to comment on the remark of the City
Fiscal that, as stated in its preamble, the ordinance in question was promulgated in response
to "an urgent necessity for waging an immediately and relentless campaign against certain
classes and expediting the trail and determination thereof in order to hasten the re-
establishment of peace and other throughout the country and promote a feeling of security
among the people conducive to the earlier return of normalcy in our national life." We
concede that the objective of the author of the ordinance was commendable, but we think
and in this we are supported by the actual result it was unattainable thru the means and
methods prescribed in said ordinance. Peace and order and normalcy could not be restored
unless the root cause of their disturbance were eliminated first. That cause was the presence
in the country of the Japanese army, which wrecked our political, social, and economic
structures, destroyed our means of communication, robbed the people of their food, clothing,
and medicine and other necessities of life, ejected them from their own homes, punished and
tortured innocent men and women, and other wise made life unbearable. The relative
rampancy of the crimes mentioned in said ordinance was but the effect of that cause. The
cornering and hoarding of foodstuffs would not for the scarcity produced by the Japanese
army and the disruption of our commerce and industries on account of the invasion. The
possession of firearms was rendered desirable to many person to defend themselves against
or attack the invader. Robberies and other crimes against property increased as a resulted of
hunger and privation to which the people were subjected by the rapacity of the Japanese. It
was a delusion to expect peace and normalcy to return without eliminating the cause of their
disturbance or destruction of the Japanese army in the Philippines an objective to which
the ordinance was not addressed. So, even from the point of view of the Filipino people and
not of the Japanese army of occupation, the ordinance in question results untenable.
Having reached the conclusion that the enactment of the procedure embodied in said
ordinance for the special court therein created was beyond the competence of the occupant,
inasmuch as that procedure was inseparable from the first part of the ordinance which
creates the special court and prescribes the jurisdiction thereof, we are constrained to
declare the whole ordinance null and void ab initio. Consequently the proceedings in said
court which resulted in the conviction and sentence of the petitioner are also void.


PARAS, J., concurring in the result:
Charged with robbery, the petitioner herein was found guilty and sentence to suffer life
imprisonment. He commenced to serve the term on August 21, 1944. Inasmuch as he was a
member of the Metropolitan Constabulary, the basis of the information was Act No. 65,
passed during the Japanese sponsored Republic of the Philippines and amending certain
articles of the Revised Penal Code. The trial was held by the then existing Court of Special
and Exclusive Criminal Jurisdiction which was authorized to conduct proceedings in a special
manner. Ordinance No. 7 of the "Republic.")
After General of the Army Douglas McArthur had issued the Proclamation dated October 23,
1944, the Act under which the petitioner was charged and convicted stands nullified, and the
original provisions of the Revised Penal Code restored. By virtue of article 22 of the said
Code, "Penal laws shall have a retroactive effect in so far as they favor the person guilty of a
felony, who is not a habitual criminal, as this term is defined in rule 5 of article 62 of this
Code, although at the time of the publication of such laws a final sentence has been
pronounced and the convict is serving the same."
In the absence of other details, it may here be assumed that the offense committed is that
defined in article 294, paragraph 5, which provides as follows:
Any person guilty of robbery with the use of violence against or intimidation of any
person shall suffer:
The penalty of prision correccional to prision mayor in its medium period in other
cases.
In accordance with the provisions of the Indeterminate Sentence Law (Acts Nos. 4103 and
4225 ), the maximum penalty that can be imposed is six months of arresto mayor.
This Court has already dismissed cases wherein the defendants were charge with the
violation of law in force at the time of the commission and trial of the crime, after said laws
have been repealed by subsequent legislation, People vs. Moran (Phil., 44 387); People vs.
Tamayo (61 Phil., 226 ), and also repeatedly released on writs ofhabeas corpus
prisoners who, were given the benefit of subsequent legislation either repealing statute under
which they had been convicted or modifying the same by imposing lesser
penalties, Escalante vs. Santos (56 Phil., 483); Directo vs. Director of Prisons (56 Phil., 692).
Prisoners who behave well are almost always liberated upon the expiration of the minimum
penalty fixed in the judgments of conviction or within a reasonable time thereafter. In the
present case, there being no information that the double the period of the minimum penalty
that could be imposed upon him, he should be released. As this is the effect of the decision
of the majority, I concur in the result.


DE, JOYA, J., concurring:
The principal question involved in this case is the validity of the judicial proceeding held in
criminal case No. 66 of the Court of Special and Exclusive Criminal Jurisdiction, established
in the City of Manila, during Japanese occupation, under the authority of Ordinance No. 7,
issued by the President of the so-called Philippine Republic, and the effect on said
proceeding of the proclamation of General Douglas McArthur, dated October 23, 1944.
In said criminal case, herein petitioner was accused of the crime of robbery and sentenced to
life imprisonment, on August 21, 1944.
There can be doubt that the government established in this country by the Commander in
Chief of the Japanese Imperial Forces, under the name of the Philippine Executive
Commission, was a de facto government, as already held by this Court in civil case G.R. No.
L-5 entitled Co Kim Cham vs. Valdez Tan Keh and Dizon, decided on September 17, 1945
(p. 133, ante). Said government possessed all the characteristics of a de facto government
as defined by the Supreme Court of the United States, in the following language:
But there is another description of government, called also by publicists a
government de facto, but which might, perhaps, be more aptly denominated
a government of paramount force. Its distinguishing characteristics are (1), that its
existence is maintained by active military power within the territories, and against the
rightful authority of an established and lawful government; and (2), that while it exist it
must necessarily be obeyed in civil matters by private citizens who, by acts of
obedience rendered in submission to such force, do not become responsible, as
wrongdoers, for those acts, though not warranted by the laws of the rightful
government. Actual governments of this sort are established over districts differing
greatly in extent and conditions. They are usually administered directly by military
authority, but they may be administrated, also, by civil authority, supported more or
less directly by military force. (MacLeod vs. United States [1913,] 229 U. S., 416.)
Under a de facto government, the courts of the country, under military occupation, should be
kept open, and whenever practicable, the subordinate officers of the local administration
should be allowed to continue in their functions, supported by the military force of the
invader, because the responsibility of maintaining peace and public order, and of punishing
crime, falls directly upon the commander in chief of the occupying forces. And in the
performance of this duty, he may proclaim martial law (Davis, Elements of International Law
[3d.], pp. 330-332).
In occupied territory, the conquering power has a right to displace the pre-existing authority,
and to assume to such extent as it may deem proper the exercise by itself of all the powers
and functions of government. It may appoint all the necessary officers and clothe them with
designated powers, according to its pleasure. It may prescribe the revenues to be paid, and
apply them to its own use or otherwise. It may do anything necessary to strengthen itself and
weaken the enemy. There is no limit to the powers that may be exerted in such cases, save
those which are found in the laws and customs and usages of war (Cross vs. Harrison, 16
How., 164 ; Leitensdorfer vs. Webb, 20 Id., 176; The Grapeshot, 9 Wall.[ U.S.], 129; New
Orleans vs. Steamship Co., [1874], 20 Wall., [ U.S.], 287.
It is generally the better course for the inhabitants of the territory, under military occupation,
that they should continue to carry on the ordinary administration under the invader; but the
latter has no right to force them to do so. If they decline, his only rights, and it is also his
duty, is to replace them by appointees of his own, so far as necessary for maintaining order
and the continuance of the daily life of the territory: other purposes, as these of the superior
judicial offices, can bide their time (Westlake, International Law, Part II, War, 2d ed., pp. 121-
123).
Though the fact of occupation imposes no duties upon the inhabitants of the occupied
territory, the invader himself is not left equally free. As it is a consequence of his acts that the
regular government of the country is suspended, he is bound to take whatever means are
required for the security of public order; and as his presence, so long as it is based upon
occupation, is confessedly temporary, and his rights of control spring only from the necessity
of the case, he is also bound to alter or override the existing laws as little as possible (Hall,
International Law, 6th ed., 476).
The government established here under the Philippine Executive Commission was more in
consonance with the general practice among civilized nations, in establishing governments
for the maintenance of peace and order and the administration of justice, in territories of the
enemy under military occupation; because said government was of a temporary character.
The government subsequently established under the so-called Philippine Republic, with a
new constitution, was also of the nature of a de facto government, in accordance with
International Law, as it was established under the authority of the military occupant and
supported by the armed forces of the latter. But it was somewhat different from that
established under the Philippine Executive Commission, because the former apparently, at
least, had the semblance of permanency, which however, is unusual in the practices among
civilized nations, under similar circumstances.
Under military occupation, the original national character of the soil and of the inhabitants of
the territory remains unaltered; and although the invader is invested with quasisovereignity,
which give him a claim as of right to the obedience of the conquered population,
nevertheless, its exercise is limited by the qualification which has gradually become
established, that he must not, as a general rule, modify the permanent institutions of the
country (Hall, International Law, 6th ed., p. 460).
The Convention Concerning the Laws and Customs of War on Land, adopted at The Hague
in 1899, lays down (Arts. 42, 43) definite rules concerning military authority over the territory
of a hostile state. In addition to codifying the accepted law, it provides that the occupant must
respect, unless absolutely prevented, the laws in force in the country.
It will thus be readily seen that the municipal law of the invaded state continues in force, in so
far as it does not affect the hostile occupant unfavorably. The regular courts of the occupied
territory continue to act in cases not affecting the military occupation; and it is not customary
for the invader to take the whole administration into his own hands, as it is easier to preserve
order through the agency of the native officials, and also because the latter are more
competent to administer the laws of the territory; and the military occupant, therefore,
generally keeps in their posts such of the judicial officers as are willing to serve under him,
subjecting them only to supervision by the military authorities, or by superior civil authorities
appointed by him (Young vs. United States, 97 U. S., 39; 24 Law. ed., 992;
Coleman vs. Tennessee, 97 U. S., 509; 24 Law. ed., 1118; MacLeod vs. United States, 229
U. S., 416; 33 Sup. Ct., 955; 57; Law. ed., 1260; Taylor, International Law, secs. 576, 578;
Wilson, International Law, pp. 331-337; Hall, International Law, 6th ed. (1909), pp. 464,
465,475,476; Lawrence, International Law, 7th ed., pp. 421-413; Davis, Elements of
International Law, 3rd ed., pp. 330-332, 335; Holland, International Law, pp. 356-57, 359;
Westlake, International Law, Part II, War 2d ed., pp. 121-123).
The judicial proceedings conducted, under the municipal law of the territory, before the court
established by the military occupant are general considered legal and valid, even after the
government established by the invader had been displaced by the legitimate government of
said territory.
Thus the judgment rendered by the Confederate courts, during the Civil War, merely settling
the rights of private parties actually within their jurisdiction, not tending to defeat the legal
rights of citizens of the United States, nor in furtherance of laws passed in aid of the
rebellion, had been declared legal, valid and binding (Coleman vs.Tennessee, 97 U. S 509.,
24 Law. ed., 1118; Williams vs. Bruffy, 96 U. S., 176; Horn vs. Lockhart, 17 Wall., 570; 21
Law. ed., 660; Sprott vs. United States, 20 Wall., 249; 22 Law. ed., 371)
When the military forces of the Confederate states were destroyed, their government
perished, and with it all its enactments. But the legislative acts of the several States forming
the Confederacy stood on a different ground, and so far as they did not impair or tend to
impair the supremacy of the national authority, or the just rights of citizens under the Federal
constitution, they were considered as legal, valid and binding (Williams vs. Bruffy, 96 U. S.,
177; 24 Law. ed., 716; Ford vs. Surget, 97 U. S., 594; 24 Law. ed., 1018; United
States vs. Ins. Co., 22 Wall. [ U. S.], 99; 22 Law. ed., 816; Ketchum vs. Buckley [1878], 99 U.
S.,188; Johnson vs. Atlantic G. & W. I. Transit Co., 156 U. S., 618; 15 Sup. Ct., 520).
In the later case, the Supreme Court of the United States reaffirmed that the judicial and
legislative acts of the rebellious States, as de facto governments, should be respected by the
courts, if they were not hostile in their purpose or mode of enforcement to the authority of the
national government, and did not impair the rights of citizens under the Federal Constitution.
(Baldy vs. Hunter, 171 U. S., 388; 18 Sup. Ct., 890; Law. ed., 208.)
Under the proclamation of General Douglas MacArthur, dated October 23, 1944, declaring
null and void all laws, regulations and processes issued and promulgated by the Philippine
Executive Commission and the Philippine Republic, during Japanese occupation, said
Ordinance No. 7 promulgated on March 8, 1944, creating the Court of Special and Exclusive
Criminal Jurisdiction, ostensibly for the speedy reestablishment of peace and order, and
Executive Commission, prescribing summary rules of procedure, and other allied laws, such
as Act No. 65 of the puppet republic, prescribing heavier penalties, became null and void,
once the Japanese armies in the Philippines had been defeated, as with them the de
facto governments, successively established under them, perished, and with them all their
enactments and processes of a hostile character.
But there are other considerations equally important why judicial proceedings held and
conducted before the courts established by said de facto governments, under laws
promulgated by them, should be declared null and void, without violating, in the least, settled
principles, judicial precedents or public policy.
Said Ordinance No. 7 adopted as integral parts thereof said Executive Order No. 157, as
well as said Act No. 65 of the National Assembly of the puppet republic, prescribing
exceptionally heavy penalties for the crimes enumerated therein.
The principal crimes mentioned in said Ordinance No. 7 and Act No. 65 of the puppet
republic and the other allied laws are illegal possession of firearms, robbery, violations of
food-control laws, falsification malversation and bribery; and it was under said laws that
herein petitioner was prosecuted and sentenced to life imprisonment for the crime robbery.
The penalty of life imprisonment or death for robbery was aimed principally at the
underground forces resolute and determined to seize and remove stores of food provisions,
whenever possible, to prevent them from falling into the hands of the enemy.
The penalty of twelve years' imprisonment for illegal possession of firearms was directed
mainly against those underground forces, that had been receiving arms from the forces of
liberation across the seas.
Violation of food-control laws were included and used as a pretext and justification for the
seizure and confiscation of food provisions so badly needed by the invader.
And the inclusion under said Ordinance No. 7 of the crime of bribery and other was used as
a cloak to conceal its venom and make said law look innocent.
By the imposition of excessive penalties , by the denial of the remedy of habeas corpus, by
compelling the accused to testify against themselves, and by denying them the right of
appeal to the highest court of the land, except where the death penalty was imposed, and by
its summary procedure, said Ordinance No. 7 and the other allied laws impaired and
defeated the just and legal rights of Filipino citizens under the Commonwealth Constitution,
and the supremacy of the authority of the legitimate Government. Under said laws, the
persons accused were deprived of liberty without due process of law.
In the language of this Court, "the phrase 'due process of law' used in the Philippine Bill
should receive a comprehensive interpretation, and no procedure should be treated as
unconstitutional which makes due provision for the trial of alleged criminal before a court of
competent jurisdiction, for bringing the accused into court and notifying him of the cause he
is required to meet, for giving him an opportunity to be heard, for the deliberation and
judgement of the court, and for an appeal from such judgement to the highest tribunal"
(United States vs.Kennedy, 18 Phil., 122).
In their conception, in their purpose and mode of enforcement and execution said laws were
hostile to the authority of the Commonwealth Government and that of the United States of
America; as they had been promulgated in furtherance of the war aims of the enemy, and
they are, therefore, of political character and complexion.
Those repressive laws were aimed at the men and women who had kept the faith, and
whose heroes and martyrs now lie in graves still unknown and whose names remain unsung;
but whose heroic efforts and sacrifices have made immortal the legends of Filipino
resistance, and made possible our participation in the councils of free and liberty-loving
peoples and nations.
Said laws are contrary to the principles of Democracy, championed by North America, whose
gigantic efforts and heroic sacrifices have vindicated human rights, human dignity and
human freedom, and consecrated them anew all over the earth with the generous blood of
her children. They violate the fundamental principles of Justice for which civilized Mankind
stands, under the benign leadership of Totalitarianism and given all the nations of the earth a
new birth as well as a new character of freedom, to enable each and everyone to live a
nobler and more worthy life and realize the justice and prosperity of the future.
For the foregoing reasons, I concur in the dispositive part of the opinion prepared by Mr.
Justice Feria.


PERFECTO, J., concurring:
On October 21, 1944, petitioner William F. Peralta began to serve, in the Muntinglupa Prison
Camp, a sentence of life imprisonment imposed by the Court of Special and Exclusive
Criminal Jurisdiction, created by Ordinance No. 7 issued by President Laurel of the Republic
of the Philippines under the Japanese regime, and now seeks a writ ofhabeas corpus in
order that his liberty may be restored to him, contending that said Ordinance No. 7 was null
and void ab initio because it was of a political complexion and its provisions are violative of
the fundamental laws of the Commonwealth of the Philippines.
Petitioner alleges that sometime in the month of September, 1943, he joined the
Constabulary forces as a private, against his will, and before joining it, he was for several
times arrested and maltreated as a guerrilla member, he being then a minor only 17 years
old, and that he was prosecuted, not because he committed any crime, but because he
joined the guerrilla organization, deserted the Constabulary forces, and followed political and
military activities in open allegiance to the Commonwealth Government and the United
States of America.
The Solicitor General, appearing in behalf of respondent Director of Prisons, answered the
petition agreeing that the acts and proceedings taken and had before said Court of Special
and Exclusive Criminal Jurisdiction should be denied force and efficacy, and therefore,
recommended that the writ prayed for be granted.
At the hearing held on September 21, and 22, 1945, there appeared to argue the First
Assistant Solicitor General, impugning the validity of said Ordinance No. 7, and the City
Fiscal of Manila, as amicus curiae, who sustained the validity if the said Ordinance and the
proceeding by virtue of which petitioner was sentenced to life imprisonment.
I. ORDINANCE NO. 7 AND PROCESSES UNDER IT NULLIFIED BY THE
OCTOBER PROCLAMATION OF GENERAL MACARTHUR
On October 23, 1944, General of the Army Douglas MacArthur, Commander in Chief of the
Philippine-American Forces, which fought in Bataan and later liberated the whole Philippines,
as an aftermath of the liberation, issued a proclamation declaring:
1. That the Government of the Commonwealth of the Philippines is, subject to the
supreme authority of the Government of the United States, the sole and only
government having legal and valid jurisdiction over the people in areas of the
Philippines free of enemy occupation and control;
2. That the laws now existing on the statute books of the Commonwealth of the
Philippines and the regulations promulgated pursuant thereto are in full force and
effect and legally binding upon the people in areas of the Philippines free of enemy
occupation and control; and
3. That all laws, regulations and processes of any other government in the
Philippines than that of the said Commonwealth are null and void and without legal
effect in areas of the Philippines free of enemy occupation and control.
It appears that Ordinance No. 7 in question has been issued under the Japanese regime and
that the judicial process under which petitioner has been sentenced to life imprisonment,
having been held in a court not belonging to the Commonwealth of the Philippines but
organized and established under the authority of the enemy, became null and void and
without effect since October 23, 1944, by virtue of the above-quoted October Proclamation of
General MacArthur.
We have explained at length our position as to the effects of said October Proclamation in
our dissenting opinion in the case of Co Kim Cham vs. Valdez Tan Keh and Dizon (G. R. No.
L-5, 153, ante), and we deem it unnecessary to repeat what we stated in said opinion.
It is fortunate that all the members of the Supreme Court arrived at a unanimous conclusion
as to the absolute nullity of the process under which petitioner is now being held in prison.
The shocking character of the provisions of Ordinance No. 7 and the processes held under it
show once more how General MacArthur was absolutely right and justified in issuing the
October Proclamation.
There are indications that more processes held under the Japanese regime will come to our
knowledge, revealing strong grounds for their annulment, justifying, like the process here in
question, the wisdom of the decision of General MacArthur in nullifying in a sweeping
manner all judicial processes held during enemy occupation.
The October Proclamation is, in keeping with the following official statement of the President
of the United States:
On the fourteenth of this month, a puppet government was set up in the Philippine
Islands with Jose P. Laurel, formerly a justice of the Philippine Supreme Court as
president. Jorge Vargas, formerly a member of the Philippine Commonwealth
Cabinet and Benigno Aquino, also formerly a member of that cabinet, were closely
associated with Laurel in this movement. The first act of the new puppet regime was
to sign a military alliance with Japan. The second act was a hypocritical appeal for
American sympathy which was made in fraud and deceit, and was designed to
confuse and mislead the Filipino people.
I wish to make it clear that neither the former collaborationist "Philippine Executive
Commission" nor the present Philippine Republic has the recognition or sympathy of
the Government of the United States. . . .
Our sympathy goes out to those who remain loyal to the United States and the
Commonwealth that great majority of the Filipino people who have not been
deceived by the promises of the enemy. . . .
October 23, 1943
FRANKLIN DELANO ROOSEVELT
President of the United States
(From U. S. Naval War College, International Law Documents, 1943, pp. 93, 94.)
Putting aside the October Proclamation, by a mere perusal of the ordinance in question, we
will see immediately how such law and the processes held under it are incompatible with the
fundamental principles and essential safeguards in criminal procedure, universally
recognized in civilized modern nations and how such ordinance and processes can only be
justified by a retrogressive and reactionary mentality developed under the social, cultural,
and political atmosphere of the era of darkness.
II. VIOLATION OF THE CONSTITUTIONAL GUARANTEE AGAINST
UNREASONABLE SEARCHES AND SEIZURES
Section 5 of Ordinance No. 7 provides that cases arising under it shall follow the summary
procedure provided in Act No. 65 of the Laurel Philippine Republic, which, in turn, is the
same as that established by Chapter II of Executive Order No. 157 of the Chairman of the
Vargas Philippine Executive Commission, dated May 18, 1943.
Under said procedure, "search warrants may be issued by the court or by any prosecuting
officer, authorizing peace officers to search for and seize any articles or objects described in
the warrant, including those which may be regarded as evidence of an offense under this
order even if such articles or objects are not included among those described in section 2,
Rule 122, of the Rules of Court." This provision is repugnant to the Filipino sense of right in
the matter of warrants of search and seizure, sense of right which has been clearly and
definitely stereotyped in the following words of our fundamental law:
The right of the people to be secure in their persons, houses, papers, and effects
against unreasonable searches and seizure shall not be violated, and no warrants
shall issue but upon probable cause, to be determined by the judge after examination
under oath or affirmation of the complaint and witnesses he may produce, and
particularly describing the place to be searched, and the persons or things to be
seized. (Art. III, sec. 1, No. 3, Constitution of the Philippines.)
This constitutional provision is violated by the summary, unreasonable, and arbitrary
procedure provided under the authority of the ordinance in question:
(1) By authorizing "any prosecuting officer" to issue search warrants, when under our
Constitution such search warrants should be issued only by a judge;
(2) By trespassing the limits established by section 2, Rule 122, of the Rules of Court,
considered as a necessary element to make the warrant reasonable;
(3) By authorizing the search and seizure of articles or objects not described in warrant,
which is the real meaning of the words "including those which may be regarded as evidence
of an offense under this Ordinance."
III. DISCRIMINATORY AND INIQUITOUS SUSPENSION OF THE WRIT
OF HABEAS CORPUS
Section 7 of Ordinance No. 7 in question provides that "the privileges of the writ habeas
corpus are hereby suspended with respect to persons accused of, or under investigation for,
any of the crimes and offenses enumerated in sections 1 and 2 hereof."
This provision is also violative of one of the fundamental guarantees established in the
Constitution of the Philippines, which provides that the writ of habeas corpus may be
suspended only in case of "invasion, insurrection, or rebellion" and only "when the public
safety requires it."
The privilege of the writ of habeas corpus shall not be suspended except in cases of
invasion, insurrection, or rebellion, when the public safety requires it, in any of which
events the same may be suspended wherever during such period the necessity for
such suspension shall exist. (Art. III, sec. 1, No. 14, Constitution of the Philippines.)
Again, it is evident that the ordinance in question is repugnant to the deep sense of right of
our people. It is so, not only because it suspends the privilege of the writ of habeas corpus,
without the circumstances which can only justify said suspension, but because it flagrantly
violates the fundamental principle of equality before the law, by depriving the accused, in
cases falling under the ordinance in question, of the privilege of the writ of habeas corpus,
which is not denied to the accused in all other cases:
No person shall be deprived of life, liberty, or property without due process of law,
nor shall any person be denied the equal protection of the laws. (Art. III, sec. 1, No.
1, Constitution of the Philippines.)
IV. VIOLATION OF THE CONSTITUTIONAL GUARANTEE AGAINST SELF-
INCRIMINATION
Under section 18 of Executive Order No. 157, above mentioned, "the accused or his
representative may be examined by the court, and with the permission of the court, by the
fiscal or other prosecuting officer as to any matters favorable or unfavorable to him of his
principal." (Emphasis ours.)
It is also provided that "statements made by the accused, his co-accused, or
the representative of the accused or a person acting in a similar capacity, irrespective of the
circumstances under which they were made shall be admissible in evidence if material to the
issue." (Emphasis ours.)
Under section 21 of Executive Order No. 157, after arraignment and plea, "the judge shall
interrogate the accused . . . as to facts and circumstances of the case in order to clarify the
points in dispute and those which are admitted." In the same section it is also provided that
"refusal of the accused to answer any questions made or allowed by the court may be
considered unfavorable to him." (Emphasis ours.)
Under the same section the absence of an accused or of his representative "shall not be a
ground for interrupting the proceedings or attacking the validity of the judgment."
From the foregoing, it appears:
(1) That the accused may be examined by the court or any prosecuting officer as to any
matters favorable or unfavorable to him;
(2) That the refusal of the accused to answer may be considered unfavorable to him;
(3) That statements made by the accused, "irrespective of the circumstances under which
they were made" (that is, even under third degree procedure, or exacted through brutal
kempei tortures), shall be admissible in evidence;
(4) That not only the accused, but "his representative" (his lawyer, whose personal security
was jeopardized under the Japanese regime), may be examined by the court or by the fiscal
or other prosecuting officer, as if said representative or attorney is facing the same criminal
prosecution instituted against his client;
(5) That the statement made by said representative or attorney, although exacted under
duress, intimidation, or torture, shall be admissible in evidence;
(6) That statements made by any person acting in a similar capacity as a representative of
the accused which may be a relative or a friend or, even an impostor who might pose as a
representative to assure the doom of the accused, "irrespective of the circumstances under
which they were made (that is, even if made in the absence of the accused, or in the same
circumstances under which masked spies decreed the death of innocent citizens pointed by
them during zoning concentrations), shall be admissible in evidence;
(7) That trial shall proceed in the absence of the accused;
(8) That trial shall proceed in the absence of his attorney or other representative.
It is evident that the procedure established violates the following provisions of our
fundamental code:
In all criminal prosecutions the accused shall be presumed to be innocent until the
contrary is proved, and shall enjoy the right to be heard by himself and counsel, to be
informed of the nature and cause of the accusation against him, to have a speedy
and public trial, to meet the witnesses face to face, and to have compulsory process
to secure the attendance of witnesses in his behalf. (Art. III, sec. 1, No. 17,
Constitution of the Philippines.)
No person shall be compelled to be a witness against himself. (Art. III, sec. 1, No.
18, Idem.)
The procedure is so revolving, so nauseating, and so opposed to human nature, that it takes
a real courage to keep our equanimity while we are compelled to analyze it.
It is beyond our comprehension how a man, endowed with reason, could devise such an
execrable system of judicial procedure, which is but a shameless mockery of the
administration of justice.
We must be very careful to retain zealously the constitutional guarantee against self-
incrimination. We must not forget that that constitutional guarantee was acquired as a result
of protest against all inquisitorial and third degree procedures. We must not forget how, not
very long ago, in the thirteen colonies of America, alleged witches were burned at the stake,
as a means of compelling them to confess their fantastic compacts with the devil. We must
not forget how an institution created in the twelfth century was the cause of so much tortures
and sufferings, and that the terroristic menace of its rakes was abolished in Spain, and
therefore in Philippines, only in 1834.
We must not forget that during normal times, under the twentieth century lights, just before
the last global war started, in the United States of America and in the Philippines,
denunciations of third degree procedures employed by agents the law were often heard. This
very Supreme Court, not only once, had to deal with cases where such tactics were
conclusively proved. Even today, among criminal cases we have under consideration, there
is evidence of confessions exacted through cruel and brutal means.
No matter what merits can be found, from the theoretical point of view, in the arguments of
those who are championing the suppression of the constitutional guarantee against self-
incrimination, the undeniable reality of human experience shows conclusively the absolute
need of such guarantee if justice must be served. Even with the existence of such guarantee,
there are officers of the law who cannot resist temptation of using their power to compel,
through third degree methods, innocent or guilty persons to admit involuntarily real or
imaginary offenses. Let us allow changes tending to nullify the protection against self-
incrimination, and no man, however innocent he may be, shall be secure in his person, in his
liberty, in his honor, in his life.
V. THE FUNDAMENTAL RIGHT OF APPEAL TRAMPLED UPON
In section 6 of Ordinance No. 7, it is provided that "the decision of the special courts herein
created shall be final except where the penalty imposed is death, in which case the records
of the particular case shall be elevated en consulta to a special division of the Supreme
Court composed of three members to be designated by the President of the Republic of the
Philippines."
This provision is a clear violation of the fundamental right of appeal, constitutionally
guaranteed to all accused in the Philippines. Under the Constitution of the Philippines, all
accused are entitled to appeal to the Supreme Court:
(1) In all cases in which the constitutionality or validity of any treaty, law, ordinance, or
executive order or regulations is in question. (Art. VIII, sec. 2, No. 1, Constitution of the
Philippines.)
(2) In all cases involving the legality of any tax, impost, assessment, or toll, or any penalty
imposed in relation thereto. (Art. VIII, sec 2, No. 2, Idem.)
(3) In all cases in which the jurisdiction of any trial court is in issue. (Art. VIII, sec. 2, No.
3, Idem.)
(4) In all criminal cases in which the penalty imposed is death or life imprisonment. (Art. VIII,
sec. 2, No. 4, Idem.)
(5) In all cases in which an error or question of law is involved. (Art. VIII, sec. 2, No. 5, Idem.)
Before the adoption of the Constitution of the Philippines, it was the prevailing theory in
judicial decisions that the right of appeal is not a fundamental one, but it is a mere privilege
or mere statutory grant.
The drafters of our Constitution, taught by the unerring lessons of human experience, came
to the conclusion that mistake is one of the most irretrievable human weaknesses.
The drafters of our Constitution, therefore, considered it necessary to establish constitutional
guarantees to reduce to its minimum the effects of such innate human weakness by
providing that the appeal to the highest tribunal of the land may be enjoyed by any accused,
who, under the specific provisions of the Constitution, believed himself to be the victim of a
wrong in any inferior court.
The fact that the provisions of section 2, of Article VIII, of the Constitution, instead of stating
that the accused shall not be denied of the right of appeal in the cases mentioned therein,
provide that the Supreme Court may not be deprived of its jurisdiction to review, revise,
reverse, modify, or affirm on appeal, certiorari, or writ of error as the law or the rules of court
may provide, final judgments and decrees of inferior courts, in the specified cases, does not
impair nor diminish the fundamental character of the right of appeal of the accused to the
Supreme Court.
The provisions of section 2, of Article VIII, of the Constitution, have been enacted by our
Constitutional Convention, not for the benefit and well-being of the people.
In fact, the Supreme Court is just one of the instrumentalities created by the Constitution in
the service of the people. The Supreme Court is not an entity or institution whose rights and
privileges must be constitutionally guaranteed. It is only a means. It is one of the means
considered necessary by our Constitution to better serve the supreme interest of the people.
As a matter of fact, the Supreme Court of the United States itself declared that the
elimination of said tribunal is not incompatible with the existence of a government of laws. In
a case of denaturalization wherein the Government of the United States sought to deprive a
person of his American citizenship, on the ground that the 1928 platform of the Communist
Party of the United States, to which the respondent belonged, advocated the abolition of the
supreme Court, of the Senate and the veto power of the President, and replacement of
congressional districts with "councils of workers" in which legislative and executive powers
would be united, the Federal Supreme Court declared:
These would indeed be significant changes in our governmental structure
changes which it is safe to say are not desired by the majority of the people in this
country but whatever our personal views, as judges we cannot say that person
who advocates their adoption through peaceful and constitutional means is not in fact
attached to the Constitution those institutions are not enumerated as necessary in
the government's test of "general political philosophy", and it is conceivable that
"orderly liberty" could be maintained without them. The Senate has not gone free of
criticism and one object of the Seventeenth Amendment was to make it more
responsive to the popular will. The unicameral legislature is not unknown in the
country. It is that this Court has played a large in the unfolding of the constitutional
plan (sometimes too so in the opinion of some observers), but we be arrogant indeed
if we presume that a government of laws, with protection for minority groups would
be impossible without it. Like other agencies of government, this Court at various
lines its existence has not escaped the shafts of critics whose sincerity and
attachment to the Constitution is beyond question critics who have accused it of
assuming functions of judicial review not intended to be conferred upon it, or of
abusing those function to thwart the popular will, and who advocated various
remedies taking a wide range. (Schneiderman vs. United States of America, June 21,
1943.)
VI. ABRIDGMENT OF THE CONSTITUTIONAL GUARANTEE OF EQUAL
PROTECTION OF THE LAWS
The constitutional guarantee of equal protection of the laws is evidently abridged in the
summary procedure in criminal cases under Ordinance No. 7:
(1) By the fact that the accused therein are victims of search warrants specially provided for
them, where the guarantees against unreasonableness in search warrants issued against
other accused are specially eliminated.
(2) By depriving the accused, under the Ordinance No. 7, the privilege of the writ of habeas
corpus enjoyed by the accused in other cases.
(3) By depriving the accused, under Ordinance No. 7 of the fundamental right of appeal in all
cases, except when sentenced of death is imposed.
(4) By discriminating against the accused, under Ordinance No. 7, where the right of appeal
is retained for them, that is, in cases where the sentenced imposed is death, by entrusting
the power to revised said sentence to small minority of the Supreme Court, under the
Japanese regime, and a minority of three justices to be specially called out by the President
of the Laurel Philippine Republic, undoubtedly with the evident purpose of the confirmation of
the conviction of the accused, and to make the appeal en consulta just an empty gesture to
make the situation of the accused more pitiful by lengthening is days of agony.
(5) By placing the accused, in the case in question, under the sword of Damocles of an
unfavorable presumptions, should he refuse to answer any question that the court or any
prosecuting officer might propound to him.
Under our constitution, no one shall be deprived of the "equal protection of the laws". (Art. III,
sec. 1, No. 1, Constitution of the Philippines.)
VII. THE PRESUMPTION OF INNOCENCE OF THE ACCUSED IN ALL CRIMINAL
PROSECUTIONS VIOLATED
Since the American flag began to fly over our soil, the fundamental guarantee that in all
criminal prosecution the accused shall be presumed innocent until the contrary is proved
beyond all reasonable doubt, has been implanted in our country to remain forever.
That guarantee was consecrated in our Constitution:
In all criminal prosecution the accused shall be presumed to be innocent until the
contrary is proved, and shall enjoy the right to be heard by himself and counsel, to be
informed of the nature and cause of the accusation against him, to have a speedy
and a public trial, to meet the witnesses face to face, and to have compulsory
process to secure the attendance of witnesses in his behalf. (Art. III, sec. 1, No. 17,
Constitution of the Philippines.)
This guarantee is undoubtedly violated when, in the summary procedure established by
Ordinance No. 7, it is provided that the refusal of the accused to answer any question,
propounded by the court or any officer, "may raise unfavorable presumption against him."
If we have to keep democracy in our country, we must be vigilant in upholding the
constitutional principle that all persons shall be presumed to be innocent until the contrary is
proved beyond all reasonable doubt.
This principle is the opposite of that prevailing under autocracies, or under facist or
totalitarian regimes. During the Japanese occupation all persons who might fall under the
suspicion of any Japanese or their spies and lackeys, were presumed to be guilty of any
imaginary crime until they were able to convince their victimizers of the contrary, beyond any
reasonable doubt. Even then, they were submitted to preventive tortures and long months of
imprisonment, just in case they might think later of committing any offense against the
Japanese or their collaborators.
VIII. ORDINANCE NO. 7 VIOLATED THE HAGUE CONVENTION OF 1899
In the convention concerning the laws and customs of war on land, adopted by the Hague in
1899, it is provided that the military occupant must respect the laws in force in the occupied
country, unless absolutely prevented. (Arts. 42 and 43.)
The provision of the Convention has been flagrantly violated when, under the enemy
occupation the Laurel Philippine Republic enacted Ordinance No. 7 which suspended our
laws, including the fundamental one, by substantially subverting the judicial procedures in
the special criminal cases instituted under said ordinance.
For this reason, said ordinance, being violative of international law, was null and void ab
initio.
Under international law, under the most elemental principles of law, the legitimate
government, once restored to its own territory, after expelling the enemy invader, enjoys the
absolute freedom of not recognizing or of nullifying any and all acts of the invader, including
those internationally legal ones. The situation is exactly the same as that of the owner of the
house who can do anything in it that pleases him, after expelling the bandit who was able to
usurp its possession for a while.
General McArthur exercised correctly that power by the sweeping nullification decreed in his
October Proclamation.
But even without the October Proclamation, the judicial process maybe it is better to say
injudicial process which resulted in the imprisonment of petitioner, must be shorn of all
effects because it had taken place under the authority of an ordinance which was null and
void ab initio.
IX. THE DECISION CONVICTING THE PETITIONER HAVING BEEN RENDERED
UNDER FOREIGN AUTHORITY IS UNENFORCEABLE
The decision by which petitioner William F. Peralta was convicted and is being confined for
life having been rendered by a tribunal created, functioning, and acting under the authority of
a foreign State, the Emperor of the Imperial Government of Japan, is unenforceable.
It has, therefore, the nature of a foreign decision or judgment. For that reason, it is
unenforceable within the Philippines or under the Commonwealth, as we have shown in our
opinion in the case of Co Kim Cham vs. Valdez Tan Keh and Dizon (G.R. No. 5, p.
153, ante)
Said decision, having been rendered under Ordinance No. 7, which was null and void ab
initio, carries the same vice as the ordinance under which it was rendered.
But even admitting arguendo that said decision is valid, because it is so under international
law, and is not included in the nullification decreed by General Douglas MacArthur, still it
cannot be enforced, being a foreign decision. A foreign decision can only be enforced
through the institution of an action before our tribunals. Even decisions of a court of the
United States or of any of its States or territories can be enforced in the Philippines only by
the institution of an action or special proceeding before our own courts. This theory is
confirmed by sections 47 and 48, Rule 39, of the Rules of Court, which read:
SEC. 47. Effect of record of a court of the United States. The effect of a judicial
record of a court of the United States or of a court of one of the States or territories of
the United States, is the same in the Philippines as in the United States, or in the
States or territory where it was made, except that it can only be enforced here by an
action or special proceeding, and except, also, that the authority of a guardian, or
executor, or administrator does not extend beyond the jurisdiction of the Government
under which he was invested with his authority.
SEC. 48. Effect of foreign judgments. The effect of a judgement of a tribunal of a
foreign country, having jurisdiction to pronounce the judgement, is as follows:
(a) In case of a judgement against a specific thing, the judgment is conclusive upon
the title to the thing;
(b) In case of a judgement against a person, the judgement is presumptive evidence
of a right as between the parties and their successors in interest by a subsequent
title; but the judgement may be repelled by evidence of a want of jurisdiction, want of
notice to the party, collusion, fraud, or clear mistake of law or fact.
X. THE STUNNING FACTS REVEALED IN THE REPORT OF THE DIRECTOR OF
PRISONS.
At the hearing of this case, respondent Director of Prisons was required to submit statistical
data concerning the number of prisoners and the various crimes for which they were
convicted by the Court of Special and Exclusive Criminal Jurisdiction.
In submitting said statistical data, the Solicitor General, as counsel for respondent, calls our
attention to the fact that, out of the 92 prisoners committed by said courts to the Bureau of
Prisons for confinement, fifty-five (55), that is more than one-half, were convicted of illegal
possession of firearms, and that only 3 are now actually in confinement serving sentences,
among them the petitioner in this proceeding, thus dissipating the unfounded fear entertained
by the City Fiscal of Manila, to the effect that a pronouncement by this Supreme Tribunal that
the sentences of the courts in question are null and void, will signify the release of hundreds
of criminals, whose liberty and mixing with society will endanger public peace and order.
Of the other two remaining prisoners serving sentence, one has been committed for evasion
of service of sentence, and the other for illegal possession of firearms.
Of the 55 prisoners convicted for illegal possession of firearms, 25 died, 23 were released,
and 6 escaped, and this is the reason why only one remains in confinement.
It is striking that so many prisoners died, 25 of those convicted for illegal possession of
firearms, that is, almost 50% of them, 33 of the total of 94 prisoners committed, or more than
one-third of them. This unusual and shocking percentage of mortality is worth inquiring into
and, certainly, cannot be counted very favorably to judicial proceedings which eventually
lead to such wholesale death, if not outright massacre.
The fact that a big number of the prisoners, 21 of them, were able to escape, was not
explained to us. Is it reasonable to surmise, from the ruthless cruelty of the proceedings and
of the penalties imposed, which exacted from the mouth of the First Assistant Solicitor
General, who appeared to argue the case in behalf of the respondent, the adjective
"ferocious", that the wardens themselves, moved by pity, directly or indirectly helped the
escape?
More than one-third of the prisoners committed by the said courts in confinement to the
Bureau of Prisons, that is, 33 of them died. May we ask if they died because they were
executed? Of those who died, one was convicted of profiteering in rice, one of robbery, one
of kidnapping of minor, one of violation of certain sections of Act No. 66, four of crimes
against public order, and 25 of possession of firearms. If all of them were executed by virtue
of sentences rendered by the courts in question, that fact does not speak very highly of their
proceedings. If the accused died by natural death, there must be something physically or
morally fatal in said proceedings.
If a tree must be judged by the fruits it bears, how shall we judge proceedings so deadly, so
fatal, so wantonly inhuman as the proceedings had in the special courts in question?
The City Fiscal of Manila exerted great efforts to show that the fact that in the proceedings in
question "the refusal of the accused to answer any question made or allowed by the court
may be considered unfavorable to him," does not violate the constitutional guarantee against
self-incrimination. He even goes to the extent of maintaining the theory that such
constitutional guarantee is not essential for the protection of the substantial rights of an
accused.
His argument centered on the alleged freedom of the accused to refuse to answer any
question made or allowed by the court, alleging that, if the accused chooses to refuse to
answer, the court cannot compel him to answer under menace of punishment for contempt
or through any other coercive or minatory measures.
The City Fiscal seems to labor under the belief that the fact that the silence of the accused
"may be considered unfavorable to him", is of no consequence at all.
Such belief can logically be entertained alone by ignoring completely the lessons of
experience in human conduct.
If the refusal to answer can be considered unfavorably to the accused, is not that the same
as placing him on the hard predicament of choosing between testifying self-incriminating and
risking the fatal effects of a legal presumption of guilt? Is not that the same as placing him
between the two steel cages of a dilemma: self-incrimination or presumption of guilt? Is not
that the same as placing him between Scylla and Charybdis, between a dagger and a wall?
Either way, he will always find himself under the inexorable sword of Damocles of sure
punishment, whether he testifies or refuses to testify. It is not impossible to open a debate
upon the abstract question whether the constitutional guarantee against self-incrimination
should not remain. But the value of such a moot question, for purposes of this case, is nil.
The constitutional guarantee had to be adopted as a protest against inquisitorial method of
the past, when accused and suspects were submitted to the most brutal torture to compel
them to confess real or imaginary crimes. That past is not far away. It seems that we are still
smelling the stench of human flesh burned in the stakes, where suspected witches suffered
iniquitous death.
There is no doubt that the procedure in question shows the purpose of pandering to the most
flagitious doctrines in criminal proceedings. The transgressions of the bill of rights in all its
phases cannot be hidden even to a chela in constitutional law. It is the very negation of the
administration of justice. Such procedure has absolutely no place in the framework of our
juridical system. We will feel mere whifflers in our professed convictions, principles, and
creed, if we should permit ourselves to fall into the weakness of abetting it even for a
moment, which could only happen once the flambeau of reason has ceased completely to
burn. No one but the truckling lackeys of the arrogant enemy could have the servility of
applauding the implantation of the criminal procedure in question.
All arguments and dissertations are useless to conceal the real fact. Behind and under said
criminal process stealthily crawls and trundles the Nippon psychosis, like a cobra with fangs
overflowing with venom. To ferret it out from the hole where it lurks, waiting for its victims,
and crush its head with one hammer blow, is an imperative measure of national self-defense.
XI. THE PETITIONER IS ENTITLED, AS A MATTER OF ABSOLUTE RIGHT, TO
IMMEDIATE RELEASE
After showing the absolute nullity of the judicial process under which petitioner has been
convicted to suffer the penalty of life imprisonment, the inevitable consequence is that he is
entitled, as a matter of absolute right, to be immediately released, so that he can once again
enjoy a life of freedom, which is the natural boon to law-abiding residents of our country, and
of which he was unjustly deprived through means most abhorrent to human conscience.
We must not hesitate for one moment to do our duty in this case. The sooner we comply with
it, the better. The process and judgement under which petitioner has been convicted and is
now undergoing an unjust imprisonment, is one of the hateful vestiges left in our country by
the moral savagery of a people spiritually perverted and debased. The seriousness of this
matter cannot be viewed with insouciance. We must not lose time to wipe out such vestiges
if we must protect ourselves against their poisonous effects in our political, social, and
cultural patrimony.
We must erase those vestiges if we want to keep immune from all germs of decay the
democratic institutions which are the pride of our people and country, under which we are
enjoying the blessings of freedom and with which we hope to assure the well-being and
happiness of the unending generations who will succeed us in the enjoyment of the
treasures accumulated by a bountiful nature in this Pearl of the Orient.
If we allow such vestiges to remain we are afraid that some historian may write about
Philippine democracy, Philippine race, and Philippine culture, what, on ancient art, Hegel
said in the "Phenomenology of the Spirit", according to Kohler, the greatest work of genius
that the nineteenth century has produced:
The statues set up are corpses in stone, whence the animating soul has flown; while
the hymns of praise are words from which all belief has gone. The tables of the gods
are bereft of spiritual food and drink, and from his games and festivals, man no more
receives the joyful sense of his unity with the Divine Being. The works of the muse
lack the force and energy of the Spirit which derived the certainty and assurance of
itself just from the crushing ruin of goods and men. They are themselves now just
what they are for us beautiful fruit broken off the tree, a kindly fate has passed on
those works to us, as a maiden might offer such fruit off tree. It is not their actual life
as they exist, that is given us, not the tree that bore them, not the earth and the
elements, which constituted their substance, nor the climate that determined their
constitutive character, nor the change of seasons which controlled the process of
their growth. So, too, it is not their living world that fate preserves and gives us with
those works of ancient art, not the spring and summer of that ethical life in which they
bloomed and ripened, but the veiled remembrance alone of this reality.
Our sense of national self-preservation compels us, as an imperative duty, not only to restore
immediately the petitioner to his personal liberty, but, all possible means, to obliterate even
the memory of the inquisitorial summary procedure depicted in the present case.
Such procedure exhibits either inversion, retroversion, subversion, or perversion of elemental
human concepts. It ignores completely and debases the high purposes of a judicial
procedure. It represents a hylistic ideology which proclaims the supremacy of the state force
over fundamental human rights. We must never allow the neck of our people to be haltered
by the lethal string of that ideology. It is a virus that must be eliminated before it produces the
logical disaster. Such ideology is a cancerous excrescence that must be sheared, completely
extirpated, from the live tissues of our body politic, if the same must be saved.
We cannot understand how any one can justify the summary process in question under the
principles embodied in our Constitution. To profess attachment to those principles and, at the
same time, to accept and justify such kind of criminal miscarriage of justice, is just sheer
hypocrisy. It is a repetition of what Seneca did when, after preaching moral virtues, justified
without any compunction the act of Nero, the sanguinary Roman Emperor, of murdering in
cold blood his own mother. It is reproducing the crooked mentality of Torquemada, who,
upon the pretext of combating and persecuting heresy to save souls from hell, conceived the
diabolical idea of condemning their victims to an advanced version of hell in this life, and
among those who suffered under the same spirit of intolerance and bigotry which was its
very essence are counted some of the greatest human characters, such as Galileo,
Giordano Bruno, and Girolamo Savonarola. That procedure might find justification in the
thick heads of the Avars, Huns, Vandals, and Teutons, or in the stratified mentality of
Japanese cullions, but not in a healthy mind of a cultured person of modern times. To allow
any vestige any vestige of such procedure to remain is tantamount to reviving the situation
during which our citizens endured sleepless nights in constant fear of the hobnail terror
stalking in the darkness, when their personal security and their life were hanging by the thin
of chance.
We wish a way could be found to free completely our people of the sense of shame, which
they cannot help feeling, engendered by members of our race who justified such abhorrent
summary procedure and allowed themselves to become a party to the execution of a
scheme only acceptable to the undeveloped mentalities of the dark ages. It is a shame that
makes our blood boil when we think that countrymen of Father Gomez, of Rizal, of Mabini,
could accept procedures representing the brutal ideology which is the very opposite of the
humane, lofty, and dignified ideology that placed said heroes and martyrs among the purest
and noblest specimens that humanity produced in all countries, in all time, for all ones and
light years to come.
It is with joy and pride that we agree with all our brethren in unanimously granting petitioner
the redress he seeks in his petition.


HILADO, J., concurring:
I concur in the result, as well as in the reasons stated in the majority opinion not inconsistent
with the views expressed in my dissenting opinion in G. R. No. L-5, Co Kim Cham vs. Valdez
Tan Keh and Dizon (p. 199, ante).
However, I would additionally base my conclusion upon broader grounds.
Firstly, I reiterate here by reference the arguments advanced in said dissenting opinion in
additional support of the conclusion that the writ of mandamus herein sought should be
granted. Secondly, the importance and transcendence of the legal principles involved justify
further elaboration.
From the allegations of the petition herein, it can be deduced that the petitioner William F.
Peralta was a "guerrillero" when he was arrested, tried and convicted; and that he had never
voluntarily submitted to the Japanese forces in his civil capacity.
No attempt is made in the Solicitor General's answer to controvert the facts alleged in the
petition from which the foregoing deduction flows, and from the record nothing appears
which may tend to gainsay them. Even when he was forced temporarily to join the
Constabulary, which had been organized under orders of the Japanese Army in the
Philippines, he did so against his will.
Even granting for the sake of argument, and laying aside for the moment the reasons to the
contrary set forth in my aforesaid dissenting opinion, that the rules of International Law
regarding the power of a belligerent army of occupation to establish a provisional
government in an occupied enemy territory, are still binding upon the United States and the
Commonwealth of the Philippines, yet such rules would not be any avail to bind the herein
petitioner by the laws, regulations, process and other acts of the so-called "Republic of the
Philippines", under and by virtue of which said petitioner has been convicted to life
imprisonment by the Court of Special and Exclusive Criminal Jurisdiction of Manila in
Criminal Case No. 66 thereof.
If we analyze the different adjudications and treatises which have been cited in support of the
validity or binding force of the acts of such provisional governments, which have been
variously called de facto governments, or governments of paramount force, with a view to
finding the real ground and philosophical justification for the doctrine therein announced, we
will see that reason and that justification are made to consist in the submission of the
inhabitants upon whom the said acts have been held to be of obligatory or binding force, to
the army of occupation. Thus, to cite just a few typical examples, we quote the following
excerpts from three leading cases decided by the Supreme Court of the United States:
Excerpts from Thorington vs. Smith (8 Wall. [U. S.], 1; 19 Law. ed., 361)
That while it (government of paramount force) exists, it must necessarily be obeyed
in civil matters by private citizens who, by acts of obedience, rendered
in submission to such force, do not become responsible, as wrong-doers, for those
acts, though not warranted by the laws of the rightful government (p. 363; Emphasis
ours).
The authority of the United States over the territory was suspended, and the laws of
the United States could no longer be rightfully enforced there, or be obligatory upon
the inhabitants who remained and submitted to the conqueror. (P. 364; Emphasis
ours.).
Excerpts from Fleming vs. Page (9 Howard. [U. S.], 603; 13 Law. ed., 276):
While it (Tampico) was occupied by our troops, they were in an enemy's country, and
not in their own; the inhabitants were still foreigners and enemies, and owed to the
United States nothing more than thesubmission and obedience, sometimes called
temporary allegiance, which is due from a conquered enemy, when he surrenders to
a force which he is unable to resist. (P. 281; Emphasis ours.)
Excerpts from United States vs. Rice (4 Wheat. [U. S.], 246; 4 Law. ed., 562):
The sovereignty of the United States over the territory was, of course, suspended,
and the laws of the United States could no longer be rightfully enforced there, or be
obligatory upon the inhabitants whoremained and submitted to the conquerors. (P.
564; Emphasis ours.)
It results from the above-quoted pronouncements of the Supreme Court of the United States
that the laws, regulations, processes and other acts of the government that the occupying
belligerent establishes are made binding only and precisely upon those inhabitants from
whom obedience could be effectively exacted, namely, those who remain within the effective
reach of the occupying forces and submit to them. This is plain common sense. Those who
conceived and developed the doctrine could not logically have thought of the army of
occupation setting upon a civil government for those who still continued resistance. As to
them, further military operations would be necessary to reduce them to submission, before
one could think of civilly governing them.
In the Philippines, during the occupation by the Japanese of Manila and certain other
portions of the Archipelago, the overwhelming majority of the people never submitted to the
Japanese invaders, and never recognized any legality in the invasion of their country, and to
the very date of liberation refused to accept the alleged protection or benefits of the puppet
governments of the "Philippine Executive Commission" and the "Republic of the Philippines."
The majority of our people lived in the provinces, in the farms, hills and other places beyond
the effective reach of the Japanese military garrisons. Only a small minority submitted to the
invaders for various reasons, such as their having been caught in Manila or other parts of the
Island occupying government positions, or residing therein without adequate facilities for
escaping from or evading said invaders, reasons of ill health, disabling them from living the
hard life of the mountains, hills, or country places, and the like.
To have bound those of our people who constituted the great majority who never submitted
to the Japanese oppressors, by the laws, regulations, processes and other acts of those two
puppet governments, would not only have been utterly unjust and downright illegal, but
would have placed them in the absurd and impossible condition of being simultaneously
submitted to two mutually hostile governments, with their respective constitutional and
legislative enactments and institutions on the one hand bound to continue owing
allegiance to the United States and the Commonwealth Government, and, on the other, to
owe allegiance, if only temporary, to Japan. Among them we find the petitioner William F.
Peralta. The surrender of the Fil-American forces in Bataan and Corregidor did not matter so
far as this was concerned. Much less did that surrender obligate all the civil population to
submit to the Japanese, and obey all their future dictations. If it did, President Roosevelt and
President Osmea would not have so heartily commended the Philippine resistance
movement and so enthusiastically extolled the firm stand of those who participated therein, in
the former's message of October 23, 1943, and in the latter's speech of February 27, 1945,
cited in the writer's above mentioned dissenting opinion. If these historic utterances should
seem incompatible with any provision of the Hague Convention, we should understand from
them that both Presidents must have considered such provision as no longer applicable to,
or binding upon, the United States and the Philippines. Who knows but that their attitude was
based upon the renunciation of war as an instrument of national policy by their respective
peoples, which renunciation necessarily includes all the "rights" or "powers" which may be
claimed to be delivered from war so employed? Or else, upon the ground that such
provisions does not support the wrongful acts of Japan in the Philippines?
Another reason advanced to justify the creation of a provisional civil government, with its
courts and other departments, in occupied enemy territory, is the alleged convenience of the
civil population. It can immediately be asserted in reply that the convenience of the above-
mentioned overwhelming majority of our people, far from requiring the establishment of such
government, was in the very nature of things positively opposed thereto. They not only did
not need the supposed benefits of such a government, but they actually reputed them as
inimical to the larger interest of the very ideology and cause for which they were continuing
their resistance to those who would extend here the brutal power and pernicious influence of
the now exploded "Greater East Asia Co-Prosperity Sphere." They suffered, yes, and
suffered much but they placed that ideology and that cause high above their private
comfort. Let us not penalize them for it. If this government is democratic, and when it comes
to a question of convenience, whose will and whose convenience should prevail, that of the
majority or that of the minority? Are we going to force those free citizens of this free country
to accept the alleged benefits and assume the burdens of a government they have never
consented to own?
I am furthermore, of opinion that there is another important consideration which argues
against the recognition of the said government as a de facto government or government of
paramount force during the Japanese occupation of the Philippine Islands. Japan, in starting
and prosecuting this war against the United States and her allies by breaking the most vital
rules of civilized warfare as prescribed by International Law, must be deemed to have
forfeited the right to invoke that law in so far as specific provisions thereof would favor her or
her acts. Japan in treacherously attacking Pearl Harbor and the Philippines, successively on
December 7 and 8, 1941, violated the rule providing for the necessity of declaring war as
established at the Hague Conference of 1907 (Lawrence, Principles of International Law, 7th
ed., pp. 321-322, 325); she has infringed the rule requiring that war prisoners be cared for
and treated with humanity (Ibid, p. 377); the rule imposing the obligation to properly tend the
sick and wounded (Ibid, 384), the rule interdicting bombing of open and defenseless cities
(Ibid, 522, 523) when she bombed Manila after it had been declared an open city and all its
military defenses had been removed; the rule exempting noncombatants from personal injury
(Ibid, 397) her violations of one or the other of which were matters of daily occurrence,
one might say, during her three and a half years of tyranny and oppression in this country,
and were climaxed by the ignominious and indescribable atrocities of the mass massacre of
innocent civilians during the battle for Manila. In the interpretation of doubtful provisions of
International Law, Doctor Lawrence, in his work cited above, has the following to say:
. . . If a point of Municipal Law is doubtful, men resort to supreme court for a decision,
or to a supreme legislature for an interpreting statute; but if a point of International
Law is doubtful, they can resort only to general reasoning for a convincing argument,
unless, indeed, they settle the question by blows. And International Law in many of
its details is peculiarly liable to disputes and doubts, because it is based on usage
and opinion. He who in such a case bases his reasoning on high considerations of
morality may succeed in resolving the doubt in accordance with humanity and justice.
(Pp. 12, 13.).
It would seem that to deny Japan benefits, because she has refused to carry the burdens of
the law, is to base our reasoning "on high considerations of morality", and to resolve any
doubt, there be, as to the point in question, "in accordance with humanity and justice." In
other words (even if we applied said rules to the instant case), Japan, under the
circumstances of this case, could not be heard to say that the government which she
established here was a de facto government, or a government of paramount force, as in the
cases where such a government was deemed to exist.
In additional to what has been said above, let us see if the Japanese-sponsored "Republic of
the Philippines" did not introduces such fundamental and drastic changes in the political
organization of this country, as it existed upon the date of the Japanese invasion, as to vitiate
with invalidity the acts of all its department, executive, judicial, and legislative. To begin with,
the Commonwealth Constitution was completely overthrown. It was replaced by the so-called
constitution of the "Republic." A casual comparison of these two instruments cannot fail to
reveal a most revolutionary transformation of the political organization of the country. While
under the Commonwealth Constitution the retention of American sovereignty over the
Philippines is expressly recognized, for the purposes specified in the ordinance appended
thereto, in the very preamble of the constitution of the "Republic" the independence " of the
Philippines is proclaim. While under the Commonwealth Constitution the President and Vice-
President are elected "by direct vote of the people "Art. VII, sec. 2), under the constitution of
the "Republic" the President (no Vice-President is provided for) was elected "by majority of
all the members of the Assembly" (Art. II, sec. 2). While under Commonwealth Constitution
the legislative power is vested in a bicameral Congress with a Senate and a House of
Representatives (Art. VI, sec. 1), under the constitution of the "Republic" that power was
vested in a unicameral National Assembly (Art. III, sec. 1). While under the Commonwealth
Constitution the Senators are chosen at large by the qualified electors of the Philippines (Art.
VI, sec. 2) and the Representatives by the qualified electors in the respective districts (Art.
VI, sec. 2) and the Representative by the qualified electors in the respective districts (Art. VI,
5), under the constitution of the "Republic" the National Assembly was composed of the
provincial governors and city mayors as members ex-oficio, and of delegate elected every
three years, one from each and every province and chartered city (Art. III, sec. 2), While
under the Commonwealth Constitution, respecting the Judicial Department, the members of
Supreme Court and all judges of inferior courts are appointed by the President with the
consent of the Commission on Appointments of the Congress (Art. VII, sec.), under the
constitution of the "Republic" the members of the Supreme Court were appointed by the
President with the advice of the Cabinet, and all judges of interior courts, by the President
with the advice of the Supreme Court (Art. IV, sec. 4).
These changes and innovations can be multiplied many times, but the foregoing will suffice
for our purpose.
It has been said constantly in this discussion that political acts, or acts of a political
complexion of a de factogovernment of paramount force, are the only ones vitiated with
nullity. Of course, I disagree with those who so hold. But even by this test the "Republic"
or, which is the same, the Imperial Japanese Forces which gave it birth in thus introducing
such positive changes in the organization of this country or suspending the working of that
already in existence, executed a political act so fundamental and basic in nature and
operation that all subsequent acts of the new government which of course had to be based
thereon, inevitably had to be contaminated by the same vitiating defect.
Thus judicial acts done under his control, when they are not of a political complexion,
administrative acts so done, to the extent that they take effect during the continuance
of his control, and various acts done during the same time by private persons under
the sanction of municipal law, remain good.. Political acts on the other hand fall
through as of course, whether they introduce any positive change into the
organization of the country, or whether they only suspend the working of that already
in existence. . . . (Hall, International Law, 6th ed., p. 483; Emphasis ours.)
Finally, upon closed scrutiny, we will find that all of the de facto governments or governments
of paramount force which have been cited in all this discussion were at the same time bona
fide governments. The British established such a government in Castine, and ran it is a
purely British organization. The Americans established another such government in
Tampico, and ran it as an American organization. The Confederate States established a like
government in the seceding States, and ran it as the Government of the Confederacy. They
were all frank, sincere, and honest in their deeds as well as in their words. But what
happened in this country during the Japanese occupation? When the "Republic of the
Philippines" was established on October 14, 1943, under duress exerted by the Japanese
Army, did the Japanese openly, frankly, and sincerely say that government was being
established under their orders and was to be run subject to their direction and control? Far
from it! They employed all the means they could conceive to deceive the Filipino people and
the outside world that they had given the Filipinos their independence, and that "Republic"
thereunder. But behind the curtain, from beginning to end, there was the Imperial Japanese
Army giving orders and instructions and otherwise directing and controlling the activities of
what really was their creature for the furtherance of their war aims. I cannot believe that
those who conceived and developed the doctrine of de facto government or government of
paramount force, ever intended to include therein such a counterfeit organization as the
Japanese contrived here an organization which, like its counterparts in Manchukuo,
Nanking, Burma, and Vichy, has been appropriately called "puppet" by the civilized
government of the world.


BRIONES, M., concurrente:
El mandamiento de habeas corpus que se solicita debe concederse.
La proclama del General McArthur de 23 de Octubre de 1944, lanzada cuatro dias despues
de su desembarco en Leyte con las fuerzas libertadoras, reza en parte lo siguiente:
3. Que todas las leyes, regulaciones y procesos de cualquier otro gobierno en
Filipinas que no fuera el del Commonwealth son nulos e invalidos y carecen de
efecto legal en areas de Filipinas liberadas de la ocupacion y control del enemigo.
Recientemente se ha discutido mucho en esta jurisdiccion sobre si la anulacion de que trata
dicha proclama puede referirse tambien a actuaciones judiciales ( judicial processes). En el
asunto de Co Kim Cham contra Valdez Tan Keh y Dizon, R.G. No. L-5 (pag, 133, ante), he
opinado afirmativamente, esto es, que el alcance de esa proclama puede extenderse a
veces a ciertos actos o procesos judiciales. Reafirmo ahora mi opinion y con mayor vigor y
enfasis si cabe. Porque, a mi juicio, la sentencia de reclusion perpetua impuesta al
recurrente bajo la ocupacion militar japonesa es de aquellos actos judiciales del passado
regimen que por su naturaleza y circunstancias reclaman una decidida y pronta accion de
parte nuestra en el sentido de anularla y dejarla sin efecto. Mis razones se exponen a
continuacion.
Parece innegable que la ley procesal bajo la cual fue enjuiciado y convicto el recurrente
durante la ocupacion japonesa era absolutamente incompatible con las salvaguardias y
garantias de un proceso justo, imparcial y ordenado que la constitucion y legislacion
procesal del Commonwealth de Filipinas otorgan a todo acusado en una causa criminal. Hay
en dicha ley ciertos aspectos decididamente repulsivos para una conciencia disciplinada en
las normas y pricipios de una democracia constitucional.
Bajo nuestro sistema procesal el acusado tiene derecho a que no se le ponga en situacion
de acriminarse. Tiene a derecho a callarse sin que esto pueda astribuirsele cargo
inculpatorio alguno. Este es un derecho fundamental, garantido por la constitucion.
Empero bajo el sistema procesal que se discute, "la negativa del acusado a constestar
cualqueira pregunta formulada por el tribunal o permitida por el mismo, puede ser
considerada en contra de dicho acusado." (Seccion 21, Orden Ejecutiva No. 157.) Bajo este
mismo sistema el caracter sumarisimo del proceso llega a tal extremo que "una sentencia
condenatoria puede dictarse inmediatemente contra el acusado siempre que los hechos
discubiertos en el interrogatorio preliminar demuestren que el acusado es culpable."
Bajo el sistema procesal del Commonwealth, cualquier acusado convicto ante el Juzgado de
Primera Instancia tiene el derecho de apelar de la sentencia para ante el Tribunal superior
de revision; y en los casos de condena areclusion perpetua o a muerte, el Tribunal Supremo
es el llamado a revisar la causa, siendo compulsoria la revision en el caso de condena a
muerte. Esta jurisdiccion del Tribunal Supremo en los casos de condena areclusion
perpetua y a muerte no se halla estatuida simplemente por una ley ordinaria, sino que esta
proveida en la misma constitucion del Commonwealth. Asi que el derecho del condenado
a reclusion perpetua o a muerte para que se revise su cuasa por el Tribunal Supremo es
constitucional y, por ende, no puede ser abolido por un simple fiat legislativo.
En cambio, bajo el sistema procesal en controversia las sentencias de los tribunales o
sumarias eran de caracter final, excepto cuando la pena impuesta fuera la de muerte, en
cuyo caso los autos se elevaban en consulta a una division especial del Tribunal Supremo
compuesta de tres miembros (Ordenanza No. 7 de la llamada Republica de Filipinas por la
que se crearon las tribunales especiales o sumarios). De modo que en esta ordenanza no
solo se suprimia de una plumada el derecho de apelar reconocido y establecido por la
legislacion procesal del Commonwealth aun en los casos de delitos y penas ordinarios, sino
que inclusive quedaba abolido el derecho de apelar otorgado por la constitucion del
Commonwealth al acusado condenado a reclusion perpetua. Por este motivo el recurrente, a
quien se le habia impuesto esta pena por el alergado delito de robo, no pudo apelar de al
sentencia para ante el Tribunal Supremo.
La cuestion que ahora tenemos que determinar y resolver es si debemos reconocer validez
y eficacia en la sentencia por la cual el recurrente se halla extinguiendo su condena de
reclusion perpetua, o debemos anularla ahora que esta en nuestras manos el poder hacerlo,
restablecida como esta enteramente la normalidad juridica y constitucional en nuestro pais.
En favor de la validez de dicha sentencia se arguye que fue dictada por un tribunal creado
por un gobierno de jure; que aun admitiendo el caracter inquisitorial, anti democratico de la
ley procesal bajo la cual fue enjuiciado el acusado, el gobierno de facto era dueo de
establecer los procedimientos legales que quisiera; y que, segun las reglas y doctrinas
conocidas de derecho international, las sentencias por "crimenes de guerra" o delitos
politicos" generalmente validas aun despues de restablecido el gobierno de jure. Se alega
que en estos casos el derecho no tiene mas remedio que ceder a la fuerza, aceptando la
realidad de los hechos consumados.
Se admite, sin embargo, que la regla tiene sus excepciones. Una de allas esque "los actos
del ocupante militar que rebasen su poder a tenor del criterio establecido en el articulo 43 de
las Regulaciones de La Haya, son nulos y sin efecto con relacion al gobierno legitimo."
(Wheaton's International Law, 7th ed. [1944], p. 245.) Segun esto, las sentencias por
"crimenes de guerra" o "delitos politicos" cometidos durante la ocupacion son, por razones
pecfetamente comprensibles, nulas e invalidas al restablecerse la soberania legitima.
Tambien quedan comprendidos bajo esta excepcion los denominados actos de caracter o
complexion politica.
Otra limitacion a los poderes de un gobierno de ocupacion militar es que elejercicio de tales
poderes debe extenderse tan solo hasta donde fuese necesario para su seguridad y el exito
de sus operaciones, teniendo particularmente en cuental el caracter transeunte de su
occupacion. Como regla general, al invasor se le prohibe alterar o suspender las leyes
referentes a la propiedad y a las relaciones personales privadas, o las leyes que regulan el
orden moral de la comunidad. (Hall, Treatise on International Law, 7th ed., 498,499). Lo que
se hace fuera de estas limitaciones es en exceso de su competencia y es generalmente nulo
al rstaurarse la soberania legitima.
Otra excepcion es la que se refiere a los actos de un gobierno de facto resultante de una
insurreccion, rebelion, revolucion o guerra civil. A esteefecto se ha declarado, peo ejemplo.
que los actos en fomento o apoyo de unarebelion contra los Estados Unidos, o encaminados
a anular los justos derechos de los ciudadanos, y otros actos de igual indole, deben ser
considerados, por lo general, invalidos y nulos (Texas vs. White, 74 U. S.,733; 19 Law, ed.,
240). En otro caso se ha declaro la validez de ciertos actos judiciales o legislativos en
estados insurreccionados, siempre que su proposito o modo de operacion no fuerte hostil a
la autoridad del gobierno nacional, o no conculcaren derechos de los ciudadanos bajo la
Constitucion. Horn vs. Lockhart, 17 Well, 570-581; 2 Law. ed., 660.)
Visto el caso que nos ocupa a la luz de estas doctrinas, cual de ellas debemos adoptar
para determinar si es o no valida la sentencia por la la cual el recurrente sufre ahora pena
de reclusion perpetua y pide ser liberado mediante peticion de habeas corpus?
Se aservera que no procede aplicar al presente caso la doctrina establecida en la
jurisprudencia americana sobre gobiernos de facto resultantes de una insureccion,
revolucion o guerra civil porque evidentemente la llamada Republica de Filipinas instaurada
durante la ocupacion militar japonesa no tenia este caracter, sino que era mas bien un
gobierno establecido mediantefuerza y coaccion por los mismos invasores para promover
ciertos designios politicos relacionados con sus fines de guerra. En otras palabras, era el
mismo gobierno militar de ocupacion con fachada filipina arreglada y arbitrada
coercitivamente.
Mientras estoy conforme con una parte de la asercion, esto es, que la aludida republica no
tenia caracter insurreccional ni revolucionario, en disfrute de plena autonomia, sino que era
simple producto de la coaccion y estaba mediatizada continuamente por el invasor, difiero
de la otra parte, aquella que declara inaplicable la conocida doctrina americana mencionada
arriba sobre gobiernos de facto establecidos en el curso de una insurreccion, revolucion o
guerra civil. Y la razon es sencilla. Si a un gobierno de factode este ultimo tipo gobierno
establecido, despues de todo, por compatriotas,por conciudadanos se le coarta con la
restriccion de que sus actos legislativos o judiciales, en tanto son validos, al restaurarse el
regimende jure, en cuanto no conculcaren los derechos justos de los ciudadanos, a los
derechos garantidos por la constitucion, parece que no existe ninguna razon por que no se
ha de aplicar la misma restriccion al gobierno de facto establecido como incidente de una
guerra entre dos naciones independientes y enemigas. En realidad, la razon de nulidad es
mucho mas poderosa y fuertecuando, en su caso como el de Filipinas, el enemigo invasor
incio la agresion de una manera inicua y traicionera y la ejecuto luego con vesania y
sadismo que llegaron a extremos inconcebibles de barbarie. En este caso la conculcacion
de los justos derechos de los ciudadanos, o de los derechos garantidos por la constitucion
cobra proporciones de mucha mayor gravedad porque viene a ser tan solo parte de un vasto
plan de rapia, devastacion y atrocidades de todo genero cometidas contra la humanidad y
contra las leyes y usos de la guerra entre naciones civilizadas. El invasor, en este caso, es
como el foragido que se coloca fuera de toda ley. Por tanto, no hay absolutamente ninguna
razon para no aplicarle una restriccion que se estimabuena para el insurrecto o
revolucionario.
La ventaja de extender hasta cierto punto la doctrina sobre gobiernos de facto resultantes de
una insurreccion, rebelion o guerra civil a gobiernos de facto establecidos como incidente en
el curso de una guerra entre dos naciones independeientes enemigas es que, frente a casos
de conculcacion de los justos derechos de los ciudadanos, o de los garantidos por
laconstitucion para los efectos de declararlos validos o nulos al restablecerse el gobierno de
jure, ya no se hace preciso examinar si los actos conculcatorios fueron motivados por
razones o exigencias de las seguridad y exito de las operaciones del ocupante militar, sino
que la piedra de toque de la validez o nulidad viene a ser tan solo el acto positivo mismo de
la conculcacion.
Esta forma de racioncinio no solo no es heterodoxa a la luz de los pincipiosestablecidos de
derecho internacional, sino parece ser una logica inferenciade los mismos. Ya hemos visto
que al ocupante militar en el curso de unaguerra internacional se le prohibe, como regla
general, alterar o suspenderlas leyes referentes a la propiedad y a las relaciones personales
privadas, olas leyes que regulan el orden moral de la comunidad. (Hall, Treatise on
International Law, supra.) Ahora cabe preguntar: Son los justos derechos de los
ciudadanos, o los fundamentales garantidos por la constitucion inferiores en categoria a la
propiedad, o las relaciones personales privadas, o al ordenmoral de la comunidad? No son
en cierto sentido hasta superiores? Por tanto,a nadie debe chocar que la prohibicion se
extienda a estas materias. Es unainclusion y perfectamente natural, mas que justificada por
los avances y conquistas del moderno derecho internacional. Notese que en las fraguas de
esta ultima guerra se han forjado unas modalidades juridicas harto originalesque denotan el
esfuerzo supremo y gigante dela humanidad por superar la barbarie y por dar al traste con
las formulas arcaicas, reaccionarias. Para citar solamente algunos ejemplos los mas
destados, tenemos el enjuiciamento de los llamados criminales de la guerra, y la
responsabilidad que se exige a los jefes militares por las atricidades cometidas por las
tropas bajo su mando.
Mi conclusion, por tanto, es que desde cualquier angulo que se mire la sentencia impuesta
al recurrente por el tribunal sumario de la llamada republica de Filipinas debe ser declarada
nula, acotando las palabras delProcurador General, "no solo por razones fundadas en
principios de derecho internacional, sino tambien por la mas apremiante y poderosa de las
razones,la de preservar y salvaguardar a nuestros ciudadanos de los actos del enemigo."
Dar validez a esa sentencia ahora, en plena atmosfera de libertad que respiran a pulmon
lleno de resto de nuestros conciudadanos menos el recurrente y otras que corrieron su
suerte durante la ocupacion japonesa,equivaldria tanto como prolongar el regimen de
opresion bajo el cual se tramito y se dicto la referida sentencia. Es mas, equivaldria a
sancionar laideologia totalitaria, despotica, medieval contra la cual nuestro pueblo lucho tan
heroicamente jugandose todo; vida libertad y bienes materiales.
Ciertamente no nos hemos librado de la opresion para llegar a tan irrisorioresultado.
Concedase el remedio pedido.


Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-6 November 29, 1945
ANICETO ALCANTARA, petitioner,
vs.
DIRECTOR OF PRISONS, respondent.
Buenaventura B. Martinez for petitioner.
Office of the Solicitor General Taada for respondent.
FERIA, J.:
This is a petition for the issuance of a writ of habeas corpus and for the release of the
petitioner on the ground that the latter is unlawfully imprisoned and restrained of his liberty by
the respondent Director of Prison in the provincial jail at Vigan, Ilocos Sur.
Petitioner was convicted by the Court First Instance of Ilocos Sur (Criminal case No. 23) of
the crime of illegal discharge of firearms with less serious physical injuries. Upon appeal, the
Court of Appeals of Northern Luzon at Baguio modified said sentence (CA- G.R. No.
790)and sentence the petitioner to an indeterminate penalty of from four months four months
and twenty-one days of arresto mayor to three years, nine months and three days ofprison
correccional. The sentence as modified became final on September 12, 1944, and June 23,
1945, petitioner commenced serving his sentence.
Petitioner now questions the validity of the decision of the Court of Appeals of Northern
Luzon, on the sole ground that said court was only a creation of the so-called Republic of the
Philippines during the Japanese military occupation of the Islands; that the Court of Appeals
was not authorized by Commonwealth Act No. 3 to hold sessions in Baguio, and that only
the two Justices constituted the majority which promulgated the decision in question. The
petitioner does not question the validity of said decision on the strength of the Proclamation
of General Douglas McArthur of October 23, 1944, which according to our decision in the
case of Co Kim Cham vs. Valdez Tan Keh and Dizon, G.R. No. L-5 (p. 113, ante), does not
refer to judicial processes.
In the said case of Co Kim Cham vs. Valdez Tan Keh and Dizon, this Court ruled that the so-
called Republic of the Philippines and the Philippine Executive Commission established in
the Philippines during the Japanese regime were governments de facto organized by the
belligerent occupant by the judicial acts thereof were good and valid and remained good and
valid after the restoration of the Commonwealth Government, except those a political
complexion. In that the same case this Court held that the Court of Appeals which was
continued throughout the Japanese occupation, was the same Court of Appeals existed prior
to the Japanese occupation and was lately abolished by Executive Order No. 37. The
division of the Court of Appeals into several District Court of Appeals, and the reduction of
the number of Justices sitting in each division, the regime of the so-called Republic effected
no substantial change in its nature and jurisdiction.
Even assuming that the Court of Appeals of Northern Luzon was a new court created by the
belligerent occupant or the de facto governments established by him, the judgments of such
court, like those of the court which were continued during the Japanese occupation, were
good and valid and remain good and valid, and therefore enforceable now after the liberation
or occupation of the Philippines, provided that such judgments do not have a political
complexion, as this court held in its decision in the abovementioned case of Co Kim Cham
vs. Valdez Tan Keh and Dizon supra, in accordance with the authorities therein cited.
Obviously, the sentence which petitioner is now serving has no political complexion. He was
charged with and convicted of an offense punishable under the municipal law of the
Commonwealth, the Revised Penal Code. Therefore, the sentence of the Court of First
Instance of Ilocos Sur, as modified by the Court of Appeals of Northern Luzon, is valid and
enforceable.
A punitive or penal sentence is said to of a political complexion when it penalizes either a
new act not defined in the municipal laws, or acts already penalized by the latter as a crime
against the legitimate government, but taken out of the territorial law and penalized as a new
offenses committed against belligerent occupant, incident to a state of a war and necessary
for the control of the occupied territory and the protection of the army of the occupier. They
are acts penalized for public rather than private reasons, acts which tend, directly or
indirectly, to aid or favor the enemy and are directed against the welfare, safety and security,
of the belligerent occupant. As example, the crimes against national security , such as
treason, espionage, etc., and against public order, such as rebellion, sedition, etc., were
crimes against the Commonwealth or United States Government under the Revised Penal
Code, which were made crimes against the belligerent occupant.
In view of the foregoing, the petitioner for the writ of habeas corpus is denied.
Moran, C.J., Ozaeta, Paras, Jaranilla, Pablo and Bengzon, JJ., concur.


Separate Opinions
DE JOYA, J., concurring:
The principal question involved in this habeas corpus case is the validity of the judicial
proceedings held, during the Japanese occupation, in the Court First Instance of Ilocos Sur,
in which herein petitioner was accused of frustrated murder, and in the Court of Appeals of
Northern Luzon, in which, on appeal, said petitioner was found guilty of illegal discharge of
firearms with less serious physical injuries, and sentenced to a term of imprisonment ranging
from four moths and twenty-one days of arresto mayor to three years, and nine months and
three days ofprison correccional; and the effect on said proceedings of the proclamation of
General Douglas McArthur, dated October 24 1944. The decision of this questions requires
the application of principles of International Law, in connection with the municipal law of this
country.
Under the Constitution Commonwealth of the Philippines, International Law is part of the
Fundamental law of the land (Article II, sec. 3). As International Law is an integral part of our
law, it must be ascertained and administered by this Court, whenever question of right
depending upon it are presented for our determination (Kansas vs.Colorado, 185 U.S. 146;
22 Sup. Ct., 552; 46 Law. ed., 838).
Since International Law is a body of rules accepted by nations as regulating their mutual
relations, the proof of their existence is to be found in the consent of the nations to abide by
them; and this consent is evidenced chiefly by the usages and customs of nation, as found in
the writings of publicist and in the decisions of the highest courts of the different countries of
the world (The Habana, 175 U. S., 677; 20 Sup. Ct., 290; 44 Law. ed., 320.).
But while usages and customs are the older original source of International Law, great
international treaties are a latter source of increasing importance, such as The Hogue
Conventions of 1899 and 1907.
The Hague Conventions of 1899, respecting laws and customs of war on land, expressly
declare that:
ARTICLE XLII. Territory is considered occupied when it is actually placed under the
authority of the hostile army.
The occupation applies only to the territory where such authority is established, and
in a position to assert itself.
ART. XLII. The authority of the legitimate power having actually passed into the
hands of the occupant, the latter shall take all steps in his power to reestablish and
insure, as far as possible, public order and safety, while respecting, unless absolutely
prevented, the laws in force in the country. (32 Stat., II, 1821.).
The above provisions of the Hague Conventions have been adopted by the nations giving
adherence to them, among which is the United States of America (32 Stat., II, 1821).
The commander in chief of the invading forces or military occupant may exercise
governmental authority, but only when in actual possession of the enemy's territory, and this
authority will be exercised upon principles of International Law (New Orleans vs. Steamship
Co. [1874], 20 Wall., 387; Kelly vs. Sanders [1878], 99 U.S., 441; MacLeod vs. United States
229 U.S. 416; 33 Sup Ct., 955; 57 Law. ed., 1260; II Oppenheim on International Law, sec.
167).
It will thus be readily seen that the civil laws of the invaded state continue in force, in so far
as they do not affect the hostile occupant unfavorably. The regular judicial tribunals of the
occupied territory continue to act in cases not affecting the military occupation, and is not
usual for the invader to take the whole administration into his own hands, because it is easier
to preserve order through the agency of the native officials, and also because the latter are
more competent to administer the laws of the territory; and the military occupant generally
keeps in their posts such of the judicial and administrative officers as are willing to serve
under him, subjecting them only to supervision by the military authorities, or by superior civil
authorities appointed by him (Young vs. United States, 97 U.S. 39; 24 Law. ed 992;
Coleman vs. Tennessee, 97 U.S. 509; 24 Law ed., 1118; MacLeod vs. United States, 229
U.S. 416; 33 Sup Ct., 955; 57 Law. ed., 1260 Taylor, International Law, secs. 576, 578;
Wilson, International Law, pp. 331-337; Hall, International Law, 6th ed. [1909], pp. 464, 465,
475, 476; Lawrence, International Law, 7th ed., 412, 413; Davis, Elements of International
Law, 3d ed., pp. 330-332, 335; Holland, International Law, pp. 356, 357, 359; Westlake,
International Law, Part II, 2d ed., pp. 121-123).
In 1811, during the occupation of Catalonia, Spain, by the French army, a Frenchman,
accused of the murder of a Catalan in that province, was tried and convicted by the assize
Court of the Department of the Pyrenees Orientales, France. Upon appeal to the French
Court of Cassation, the conviction was quashed, on the ground that the courts of the territory
within which the crime had been committed had exclusive jurisdiction to try the case and that
"the occupation of Catalonia by French troops and its government by the French authorities
had not communicated to its inhabitants the character of French citizens, nor to their territory
the character of French territory, and that such character could only be acquired by a solemn
act of incorporation which had not been gone through." (Hall, International Law, 6th ed., p.
461.)
It is, therefore, evident that the establishment of the government under the name of the
Philippine Executive Commission, or the so-called Philippine Republic, afterwards, during
Japanese occupation, respecting the laws in force in the country, and permitting our courts to
function and administer said laws, as proclaim in the City of Manila, by the commander in
chief of the Japanese Imperial Forces, on January 3, 1942, was in accordance with the rules
and principles of International Law.
If the military occupant is thus in duty bound to establish in the territory under military
occupation governmental agencies for the preservation of peace and order and for the
proper administration of justice, in accordance with the local laws, it must necessarily follow
that the judicial proceeding conducted before the courts established by the military occupant
must be considered legal and valid, even after said government established by the military
occupant had been displaced by the legitimate government of the territory.
Thus the judgments rendered by the Confederate Courts, during the American Civil War,
merely setting the rights of private parties actually within their jurisdiction, not only tending to
defeat the legal rights of citizens of the United States, nor in furtherance of laws passed in
aid of the rebellion, had been declared valid and binding (Cook vs.Oliver, 1 Woods, 437;
Fed. Cas., No. 3, 164; Coleman vs. Tennessee, 97 U.S., 509;24 Law. ed., 1118;
Williamsvs. Bruffy, 96 U.S. 176; Horn vs. Lockhart, 17 Wall., 570; Sprott vs. United States,
20 Wall., 459; Texas vs. White, 7 Wall., 700; Ketchum vs. Buckley [1878], 99 U.S., 188); and
the judgment of a court of Georgia rendered in November, 1861, for the purchase money
slaves was held valid judgment when entered, and enforceable in 1871 (French vs. Tumllin,
10 Am. Law. Reg. [N.S.], 641; Fed. Case, No. 5104).
The judgments by the courts of the states constituting the Confederate States of the America
were considered legal and valid and enforceable, even after the termination of the American
Civil War, because they had been rendered by the courts of a de facto government. The
Confederate States were a de facto government, in the sense that its citizens were bound to
render the government obedience in civil matters, and did not become responsible, as
wrong-doers, for such act of obedience (Thorington vs. Smith, 8 Wall. [U.S.] 9; 19 Law ed.,
361).
In the more recent case of Ketchum vs. Buckley ([1878], 99 U.S., 188), the Supreme Court of
the United States held-- "It is now settled law in this court that during the late civil war the
same general law for the administration of justice and the protection of private rights, which
had existed in the States prior to the rebellion, remained during its continuance and
afterwards. As far as the acts of the States did not impair or tend to impair the supremacy of
the national authority, or the just rights of the citizens, under the Constitution, they are in
general to be treated as valid and binding." (Williams vs. Bruffy, 96 U.S., 176;
Horn vs. Lockhart, 17 Wall., 570; Sprott vs. United States, 20 Wall., 459; Texas vs. White 7
Wall., 700.)
The government established in the Philippines, during Japanese occupation, would seem to
fall under the following definition of de facto government given by the Supreme Court of the
United States:
But there is another description of government de facto, called also by publicists a
government de facto, but which might, perhaps, he more aptly denominated a
government of paramount force. Its distinguishing characteristics (1) that its
existence is maintained by active military power within the territories, and against the
rightful authority of an established and lawful government; and (2) that while it exists
it must necessarily be obeyed in civil matters by private citizens who by acts of
obedience rendered in submission to such force, do not become responsible, as
wrongdoers, for those acts though not warranted by the laws of the rightful
government. Actual governments of this sort are established over districts differing
greatly in extent and conditions. They are usually administered directly by military
authority, but they may be administered, also, by civil authority, supported more or
less directly by military force. (MacLeod vs. United States [1913], 229 U.S., 416.)
The government established in the Philippines, under the Philippine Executive Commission
or under the so-called Philippine Republic, during Japanese occupation, was and should,
therefor, be considered as a de factogovernment; and that the judicial proceedings
conducted before the courts has been established in this country, during said Japanese
occupation, and are should be considered as legal and valid enforceable, even after the
liberation of this country by the American forces, as a long a said judicial proceedings had
been conducted, in accordance with the law of the Commonwealth of the Philippines.
The judicial proceedings involved in the case under consideration merely refer to the
prosecution of the petitioner in this case, for the crime of frustrated murder, which was
reduced to illegal discharge of firearms with less serious physical injuries, under the
provisions of the Revised Penal Code, in force in this country under the Commonwealth
government, before and during Japanese occupation.
Now, petitioner contends that the judicial proceedings in question are null and void, and that
the accused should be immediately released from the custody, under the provisions of the
proclamation issued by General Douglas McArthur dated October 23, 1944; as said
proclamation nullifies all the laws, regulations and processes of any other government in the
Philippines than that of the Commonwealth of the Philippines.
In other words petition demands a literal interpretation of said proclamation issued by the
General Douglas McArthur, a contention which, in our opinion, is untenable, as it would
inevitably produce judicial chaos and uncertainties. When an act is susceptible of two or
more constructions, one of which will maintain and the others destroy it, the Courts will
always adopt the former (United States vs. Coombs [1838]], 12 Pet., 72; 9 Law. ed., 1004;
Board of Supervisors of Grenada County vs. Brown [1884], 112 U.S., 261; 28 Law. ed., 704;
5 Sup. Ct. Rep., 125; In re Guaria [1913], 24 Phil., 37; Fuentes vs. Director of Prisons
[1924], 46 Phil., 22; Yu Cong Eng vs.Trinidad [1925], 47 Phil., 385). The judiciary, always
alive to the dictates of national welfare, can properly incline the scales of its decisions in
favor of that solution which will most effectively promote the public policy (Smith, Bell & Co.,
Ltd. vs. Natividad [1919], 40 Phil., 136). All laws should receive a sensible construction as
not to lead it injustice, oppression or an absurd consequence. It will always, therefore, be
presumed that the legislature intended exception to its language, which would avoid results
of this character. The reason of the law in such cases should prevail over its letter (United
States vs. Kirby, 7 Wall [U.S.], 482; 19 Law. ed, 278; Church of Holy Trinity vs. United
States, 143 U.S., 461; 12 Sup. Ct., 511; 36 Law. ed., 226; Jacobson vs. Massachussetts,
197 U.S., 39; 25 Sup. Ct., 358; 49 Law. ed., 643; 3 Ann. Cas., 765; In re Allen, 2 Phil., 630).
The duty of the court in construing a statute, which is reasonably susceptible of two
constructions to adopt that which saves its constitutionality, includes the duty of a avoiding a
construction which raises grave and doubtful constitutional questions, if it can be avoided
(United States vs. Delaware & Hudson Co., 213 U.S., 366; 29 Sup. Ct. 527; 53 Law. ed.,
836).
According to the rules and principles of International Law, and the legal doctrines cited
above, the judicial proceedings conducted before the court of the justice, established here
during Japanese military occupation, merely applying the provisions of the municipal law of
the territory, as the provisions of the Revised Penal Code in the instant case which have no
political or military significance, are and should be considered legal, valid and binding. It is to
be presumed that General Douglas McArthur knows said rules and principles of International
Law, as International Law is an integral part of the fundamental law of the land, in
accordance with the provisions of the Constitution of the United States. And it is also to be
presumed that General Douglas McArthur has acted, in accordance with said principles of
International Law, which have been sanction by the Supreme Court of the United States, as
the nullification of all judicial proceedings conducted before our courts, during the Japanese
occupation would be highly detrimental to public interests.
For the forgoing reasons, I concur in the majority opinion, and the petition for habeas
corpus filed in this case should, therefore, be denied.


PERFECTO, J., dissenting:
Following our opinions in this cases of Co Kim Cham vs. Valdez Tan Keh and Dizon (p.
153, ante), and Peralta vs. Director of Prisons (p. 334, ante), G.R. No. L-5 and G.R. No. L-49
respectively, the proceedings attacked by petitioner belong to the judicial processes declared
null and void in the proclamation issued by General McArthur on October 23, 1944, and
therefore, we vote the granting of the writ of habeas corpus prayed for.


HILADO, J., dissenting:
Upon the grounds stated my main dissenting opinion, in G.R. No. L-5 Co Kim Cham vs.
Valdez Tan Keh and Dizon (p. 199, ante), and in my concurring opinion in G.R. No. L-
49, Peralta vs. Director of Prisons (p. 355, ante), I dissent from the opinion of the majority
herein. The writ of habeas corpus sought by petitioner should be granted because the nullity
of the judgment and proceedings under which he has been imprisoned and restrained of his
liberty. As stated in the majority opinion, the sentence against him became final on
September 122, 1944, and had been pronounced by the Japanese-sponsored Court of
Appeals of Northern Luzon upon appeal from a judgment of conviction by the Japanese
sponsored Court of First Instance of Ilocos Sur.