77 PHIL 856

Laurel vs. Misa

77 Phil. 856
FACTS: The accused was charged with treason. During the
Japanese occupation, the accused adhered to the enemy by giving
the latter aid and comfort. He claims that he cannot be tried for
treason since his allegiance to the Philippines was suspended at that
time. Also, he claims that he cannot be tried under a change of
sovereignty over the country since his acts were against the
Commonwealth which was replaced already by the Republic.
HELD: The accused was found guilty. A citizen owes absolute and
permanent allegiance to his government or sovereign. No transfer of
sovereignty was made; hence, it is presumed that the Philippine
government still had the power. Moreover, sovereignty cannot be
suspended; it is either subsisting or eliminated and replaced.
Sovereignty per se wasnt suspended; rather, it was the exercise of
sovereignty that was suspended. Thus, there is no suspended
allegiance. Regarding the change of government, there is no such
change since the sovereign the Filipino people is still the same.
What happened was a mere change of name of government, from
Commonwealth to the Republic of the Philippines.
FULL CASE:
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-409

January 30, 1947

ANASTACIO LAUREL, petitioner,

vs.
ERIBERTO MISA, respondent.
Claro M. Recto and Querube C. Makalintal for petitioner.
First Assistant Solicitor General Reyes and Solicitor Hernandez, Jr.,
for respondent.
RESOLUTION
In G.R. No. L-409, Anastacio Laurel vs. Eriberto Misa, etc., the
Court, acting on the petition for habeas corpusfiled by
Anastacio Laurel and based on a theory that a Filipino citizen
who adhered to the enemy giving the latter aid and comfort
during the Japanese occupation cannot be prosecuted for the
crime of treason defined and penalized by article 114 of the
Revised Penal Code, for the reason (1) that the sovereignty of
the legitimate government in the Philippines and, consequently,
the correlative allegiance of Filipino citizens thereto was then
suspended; and (2) that there was a change of sovereignty
over these Islands upon the proclamation of the Philippine
Republic:
(1) Considering that a citizen or subject owes, not a qualified
and temporary, but an absolute and permanent allegiance,
which consists in the obligation of fidelity and obedience to his
government or sovereign; and that this absolute and permanent
allegiance should not be confused with the qualified and
temporary allegiance which a foreigner owes to the government
or sovereign of the territory wherein he resides, so long as he
remains there, in return for the protection he receives, and
which consists in the obedience to the laws of the government
or sovereign. (Carlisle vs. Unite States, 21 Law. ed., 429;
Secretary of State Webster Report to the President of the
United States in the case of Thraser, 6 Web. Works, 526);
Considering that the absolute and permanent allegiance of the
inhabitants of a territory occupied by the enemy of their
legitimate government or sovereign is not abrogated or severed
by the enemy occupation, because the sovereignty of the

government or sovereign de jure is not transferred thereby to

the occupier, as we have held in the cases of Co Kim Cham vs.
Valdez Tan Keh and Dizon (75 Phil., 113) and of Peralta vs.
Director of Prisons (75 Phil., 285), and if it is not transferred to
the occupant it must necessarily remain vested in the legitimate
government; that the sovereignty vested in the titular
government (which is the supreme power which governs a body
politic or society which constitute the state) must be
distinguished from the exercise of the rights inherent thereto,
and may be destroyed, or severed and transferred to another,
but it cannot be suspended because the existence of
sovereignty cannot be suspended without putting it out of
existence or divesting the possessor thereof at least during the
so-called period of suspension; that what may be suspended is
the exercise of the rights of sovereignty with the control and
government of the territory occupied by the enemy passes
temporarily to the occupant; that the subsistence of the
sovereignty of the legitimate government in a territory occupied
by the military forces of the enemy during the war, "although the
former is in fact prevented from exercising the supremacy over
them" is one of the "rules of international law of our times"; (II
Oppenheim, 6th Lauterpacht ed., 1944, p. 482), recognized, by
necessary implication, in articles 23, 44, 45, and 52 of Hague
Regulation; and that, as a corollary of the conclusion that the
sovereignty itself is not suspended and subsists during the
enemy occupation, the allegiance of the inhabitants to their
legitimate government or sovereign subsists, and therefore
there is no such thing as suspended allegiance, the basic
theory on which the whole fabric of the petitioner's contention
rests;
Considering that the conclusion that the sovereignty of the
United State was suspended in Castine, set forth in the
decision in the case of United States vs. Rice, 4 Wheaton, 246,
253, decided in 1819, and quoted in our decision in the cases
of Co Kim Cham vs. Valdez Tan Keh and Dizon and Peralta vs.
Director of Prisons, supra, in connection with the question, not
of sovereignty, but of the existence of a government de
factotherein and its power to promulgate rules and laws in the
occupied territory, must have been based, either on the theory

adopted subsequently in the Hague Convention of 1907, that

the military occupation of an enemy territory does not transfer
the sovereignty to the occupant; that, in the first case, the word
"sovereignty" used therein should be construed to mean the
exercise of the rights of sovereignty, because as this remains
vested in the legitimate government and is not transferred to
the occupier, it cannot be suspended without putting it out of
existence or divesting said government thereof; and that in the
second case, that is, if the said conclusion or doctrine refers to
the suspension of the sovereignty itself, it has become obsolete
after the adoption of the Hague Regulations in 1907, and
therefore it can not be applied to the present case;
Considering that even adopting the words "temporarily
allegiance," repudiated by Oppenheim and other publicists, as
descriptive of the relations borne by the inhabitants of the
territory occupied by the enemy toward the military government
established over them, such allegiance may, at most, be
considered similar to the temporary allegiance which a
foreigner owes to the government or sovereign of the territory
wherein he resides in return for the protection he receives as
above described, and does not do away with the absolute and
permanent allegiance which the citizen residing in a foreign
country owes to his own government or sovereign; that just as a
citizen or subject of a government or sovereign may be
prosecuted for and convicted of treason committed in a foreign
country, in the same way an inhabitant of a territory occupied by
the military forces of the enemy may commit treason against his
own legitimate government or sovereign if he adheres to the
enemies of the latter by giving them aid and comfort; and that if
the allegiance of a citizen or subject to his government or
sovereign is nothing more than obedience to its laws in return
for the protection he receives, it would necessarily follow that a
citizen who resides in a foreign country or state would, on one
hand, ipso factoacquire the citizenship thereof since he has
enforce public order and regulate the social and commercial
life, in return for the protection he receives, and would, on the
other hand, lose his original citizenship, because he would not
be bound to obey most of the laws of his own government or

sovereign, and would not receive, while in a foreign country, the

protection he is entitled to in his own;
Considering that, as a corollary of the suspension of the
exercise of the rights of sovereignty by the legitimate
government in the territory occupied by the enemy military
forces, because the authority of the legitimate power to govern
has passed into the hands of the occupant (Article 43, Hague
Regulations), the political laws which prescribe the reciprocal
rights, duties and obligation of government and citizens, are
suspended or in abeyance during military occupation (Co Kim
cham vs. Valdez Tan Keh and dizon, supra), for the only reason
that as they exclusively bear relation to the ousted legitimate
government, they are inoperative or not applicable to the
government established by the occupant; that the crimes
against national security, such as treason and espionage;
inciting to war, correspondence with hostile country, flight to
enemy's country, as well as those against public order, such as
rebellion, sedition, and disloyalty, illegal possession of firearms,
which are of political complexion because they bear relation to,
and are penalized by our Revised Penal Code as crimes
against the legitimate government, are also suspended or
become inapplicable as against the occupant, because they
can not be committed against the latter (Peralta vs. Director of
Prisons, supra); and that, while the offenses against public
order to be preserved by the legitimate government were
inapplicable as offenses against the invader for the reason
above stated, unless adopted by him, were also inoperative as
against the ousted government for the latter was not
responsible for the preservation of the public order in the
occupied territory, yet article 114 of the said Revised Penal
Code, was applicable to treason committed against the national
security of the legitimate government, because the inhabitants
of the occupied territory were still bound by their allegiance to
the latter during the enemy occupation;
Considering that, although the military occupant is enjoined to
respect or continue in force, unless absolutely prevented by the
circumstances, those laws that enforce public order and
regulate the social and commercial life of the country, he has,

nevertheless, all the powers of de facto government and may,

at his pleasure, either change the existing laws or make new
ones when the exigencies of the military service demand such
action, that is, when it is necessary for the occupier to do so for
the control of the country and the protection of his army, subject
to the restrictions or limitations imposed by the Hague
Regulations, the usages established by civilized nations, the
laws of humanity and the requirements of public conscience
(Peralta vs.Director of Prisons, supra; 1940 United States Rules
of Land Warfare 76, 77); and that, consequently, all acts of the
military occupant dictated within these limitations are obligatory
upon the inhabitants of the territory, who are bound to obey
them, and the laws of the legitimate government which have not
been adopted, as well and those which, though continued in
force, are in conflict with such laws and orders of the occupier,
shall be considered as suspended or not in force and binding
upon said inhabitants;
Considering that, since the preservation of the allegiance or the
obligation of fidelity and obedience of a citizen or subject to his
government or sovereign does not demand from him a positive
action, but only passive attitude or forbearance from adhering
to the enemy by giving the latter aid and comfort, the occupant
has no power, as a corollary of the preceding consideration, to
repeal or suspend the operation of the law of treason, essential
for the preservation of the allegiance owed by the inhabitants to
their legitimate government, or compel them to adhere and give
aid and comfort to him; because it is evident that such action is
not demanded by the exigencies of the military service or not
necessary for the control of the inhabitants and the safety and
protection of his army, and because it is tantamount to
practically transfer temporarily to the occupant their allegiance
to the titular government or sovereign; and that, therefore, if an
inhabitant of the occupied territory were compelled illegally by
the military occupant, through force, threat or intimidation, to
give him aid and comfort, the former may lawfully resist and die
if necessary as a hero, or submit thereto without becoming a
traitor;

Considering that adoption of the petitioner's theory of

suspended allegiance would lead to disastrous consequences
for small and weak nations or states, and would be repugnant
to the laws of humanity and requirements of public conscience,
for it would allow invaders to legally recruit or enlist the Quisling
inhabitants of the occupied territory to fight against their own
government without the latter incurring the risk of being
prosecuted for treason, and even compel those who are not aid
them in their military operation against the resisting enemy
forces in order to completely subdue and conquer the whole
nation, and thus deprive them all of their own independence or
sovereignty such theory would sanction the action of
invaders in forcing the people of a free and sovereign country to
be a party in the nefarious task of depriving themselves of their
own freedom and independence and repressing the exercise by
them of their own sovereignty; in other words, to commit a
political suicide;
(2) Considering that the crime of treason against the
government of the Philippines defined and penalized in article
114 of the Penal Code, though originally intended to be a crime
against said government as then organized by authority of the
sovereign people of the United States, exercised through their
authorized representative, the Congress and the President of
the United States, was made, upon the establishment of the
Commonwealth Government in 1935, a crime against the
Government of the Philippines established by authority of the
people of the Philippines, in whom the sovereignty resides
according to section 1, Article II, of the Constitution of the
Philippines, by virtue of the provision of section 2, Article XVI
thereof, which provides that "All laws of the Philippine Islands . .
. shall remain operative, unless inconsistent with this
Constitution . . . and all references in such laws to the
Government or officials of the Philippine Islands, shall be
construed, in so far as applicable, to refer to the Government
and corresponding officials under this constitution;
Considering that the Commonwealth of the Philippines was a
sovereign government, though not absolute but subject to
certain limitations imposed in the Independence Act and

incorporated as Ordinance appended to our Constitution, was

recognized not only by the Legislative Department or Congress
of the United States in approving the Independence Law above
quoted and the Constitution of the Philippines, which contains
the declaration that "Sovereignty resides in the people and all
government authority emanates from them" (section 1, Article
II), but also by the Executive Department of the United States;
that the late President Roosevelt in one of his messages to
Congress said, among others, "As I stated on August 12, 1943,
the United States in practice regards the Philippines as having
now the status as a government of other independent nations
in fact all the attributes of complete and respected
nationhood" (Congressional Record, Vol. 29, part 6, page
8173); and that it is a principle upheld by the Supreme Court of
the United States in many cases, among them in the case of
Jones vs. United States (137 U.S., 202; 34 Law. ed., 691, 696)
that the question of sovereignty is "a purely political question,
the determination of which by the legislative and executive
departments of any government conclusively binds the judges,
as well as all other officers, citizens and subjects of the country.
Considering that section I (1) of the Ordinance appended to the
Constitution which provides that pending the final and complete
withdrawal of the sovereignty of the United States "All citizens
of the Philippines shall owe allegiance to the United States",
was one of the few limitations of the sovereignty of the Filipino
people retained by the United States, but these limitations do
not away or are not inconsistent with said sovereignty, in the
same way that the people of each State of the Union preserves
its own sovereignty although limited by that of the United States
conferred upon the latter by the States; that just as to reason
may be committed against the Federal as well as against the
State Government, in the same way treason may have been
committed during the Japanese occupation against the
sovereignty of the United States as well as against the
sovereignty of the Philippine Commonwealth; and that the
change of our form of government from Commonwealth to
Republic does not affect the prosecution of those charged with
the crime of treason committed during the Commonwealth,
because it is an offense against the same government and the

same sovereign people, for Article XVIII of our Constitution

provides that "The government established by this constitution
shall be known as the Commonwealth of the Philippines. Upon
the final and complete withdrawal of the sovereignty of the
United States and the proclamation of Philippine independence,
the Commonwealth of the Philippines shall thenceforth be
known as the Republic of the Philippines";
This Court resolves, without prejudice to write later on a more
extended opinion, to deny the petitioner's petition, as it is
hereby denied, for the reasons above set forth and for others to
be stated in the said opinion, without prejudice to concurring
opinion therein, if any. Messrs. Justices Paras and Hontiveros
dissent in a separate opinion. Mr. justice Perfecto concurs in a
separate opinion.

Separate Opinions
PERFECTO, J., concurring:
Treason is a war crime. It is not an all-time offense. It cannot be
committed in peace time. While there is peace, there are no traitors.
Treason may be incubated when peace reigns. Treasonable acts may
actually be perpetrated during peace, but there are no traitors until
war has started.
As treason is basically a war crime, it is punished by the state as a
measure of self-defense and self-preservation. The law of treason is
an emergency measure. It remains dormant until the emergency
arises. But as soon as war starts, it is relentlessly put into effect. Any
lukewarm attitude in its enforcement will only be consistent with
nationalharakiri. All war efforts would be of no avail if they should be
allowed to be sabotaged by fifth columnists, by citizens who have
sold their country out to the enemy, or any other kind of traitors, and
this would certainly be the case if he law cannot be enforced under
the theory of suspension.

Petitioner's thesis that allegiance to our government was suspended

during enemy occupation is advanced in support of the proposition
that, since allegiance is identical with obedience to law, during the
enemy occupation, the laws of the Commonwealth were suspended.
Article 114 of the Revised Penal Code, the law punishing treason,
under the theory, was one of the laws obedience to which was also
suspended.
Allegiance has been defined as the obligation for fidelity and
obedience which the individual owes to his government or his
sovereign in return for the protection which he receives.
"Allegiance", as the return is generally used, means fealty or
fidelity to the government of which the person is either a citizen
or subject. Murray vs. The Charming Betsy, 6 U.S. (2 Cranch),
64, 120; 2 Law. ed., 208.
"Allegiance" was said by Mr. Justice Story to be "nothing more
than the tie or duty of obedience of a subject to the sovereign,
under whose protection he is." United States vs. Wong Kim Ark,
18 S. Ct., 461; 169 U.S., 649; 42 Law. ed., 890.
Allegiance is that duty which is due from every citizen to the
state, a political duty binding on him who enjoys the protection
of the Commonwealth, to render service and fealty to the
federal government. It is that duty which is reciprocal to the
right of protection, arising from the political relations between
the government and the citizen. Wallace vs. Harmstad, 44 Pa.
(8 Wright), 492, 501.
By "allegiance" is meant the obligation to fidelity and obedience
which the individual owes to the government under which he
lives, or to his sovereign, in return for the protection which he
receives. It may be an absolute and permanent obligation, or it
may be a qualified and temporary one. A citizen or subject owes
an absolute and permanent allegiance to his government or
sovereign, or at least until, by some open and distinct act, he
renounces it and becomes a citizen or subject of another
government or sovereign, and an alien while domiciled in a
country owes it a temporary allegiance, which is continuous

during his residence. Carlisle vs.United States, 83 U.S. (16

Wall.), 147, 154; 21 Law ed., 426.
"Allegiance," as defined by Blackstone, "is the tie or ligament
which binds the subject to the King, in return for that protection
which the King affords the subject. Allegiance, both expressed
and implied, is of two sorts, the one natural, the other local, the
former being perpetual, the latter temporary. Natural allegiance
is such as is due from all men born within the King's dominions
immediately upon their birth, for immediately upon their birth
they are under the King's protection. Natural allegiance is
perpetual, and for this reason, evidently founded on the nature
of government. Allegiance is a debt due from the subject upon
an implied contract with the prince that so long as the one
affords protection the other will demean himself faithfully.
Natural-born subjects have a great variety of rights which they
acquire by being born within the King's liegance, which can
never be forfeited but by their own misbehaviour; but the rights
of aliens are much more circumscribed, being acquired only by
residence, and lost whenever they remove. If an alien could
acquire a permanent property in lands, he must owe an
allegiance equally permanent to the King, which would probably
be inconsistent with that which he owes his natural liege lord;
besides, that thereby the nation might, in time, be subject to
foreign influence and feel many other inconveniences." Indians
within the state are not aliens, but citizens owing allegiance to
the government of a state, for they receive protection from the
government and are subject to its laws. They are born in
allegiance to the government of the state. Jackson vs. Goodell,
20 Johns., 188, 911. (3 Words and Phrases, Permanent ed.,
226-227.)
Allegiance. Fealty or fidelity to the government of which the
person is either a citizen or subject; the duty which is due from
every citizen to the state; a political duty, binding on him who
enjoys the protection of the commonwealth, to render service
and fealty to the federal government; the obligation of fidelity
and obedience which the individual owes to the government or
to the sovereign under which he lives in return for the protection
he receives; that duty is reciprocal to the right of protection he

receives; that duty which is reciprocal to the right of protection,

arising from the political relations between the government and
the citizen.
Classification. Allegiance is of four kinds, namely: (1) Natural
allegiance that which arises by nature and birth; (2) acquired
allegiance that arising through some circumstance or act
other than birth, namely, by denization or naturalization; (3)
local allegiance-- that arising from residence simply within the
country, for however short a time; and (4) legal allegiance
that arising from oath, taken usually at the town or leet, for, by
the common law, the oath of allegiance might be tendered to
every one upon attaining the age of twelve years. (3 C.J.S.,
p.885.)
Allegiance. the obligation of fidelity and obedience which the
individual owes to the government under which he lives, or to
his sovereign in return for the protection he receives. 15 R.C.L.,
140. (Ballentine Law Dictionary, p. 68.).
"Allegiance," as its etymology indicates, is the name for the tie
which binds the citizen to his state the obligation of
obedience and support which he owes to it. The state is the
political person to whom this liege fealty is due. Its substance is
the aggregate of persons owing this allegiance. The machinery
through which it operates is its government. The persons who
operate this machinery constitute its magistracy. The rules of
conduct which the state utters or enforces are its law, and
manifest its will. This will, viewed as legally supreme, is its
sovereignty. (W.W. Willoughby, Citizenship and Allegiance in
Constitutional and International Law, 1 American Journal of
International Law, p. 915.).
The obligations flowing from the relation of a state and its
nationals are reciprocal in character. This principle had been
aptly stated by the Supreme Court of the United States in its
opinion in the case of Luria vs. United States:
Citizenship is membership in a political society and implies a
duty of allegiance on the part of the member and a duty

protection on the part of the society. These are reciprocal

obligations, one being a compensation for the other. (3
Hackworth, Digest of International Law, 1942 ed., p.6.)
Allegiance. The tie which binds the citizen to the
government, in return for the protection which the government
affords him. The duty which the subject owes to the sovereign,
correlative with the protection received.
It is a comparatively modern corruption of ligeance (ligeantia),
which is derived from liege (ligius), meaning absolute or
unqualified. It signified originally liege fealty, i. e., absolute and
qualified fealty. 18 L. Q. Rev., 47.
xxx

xxx

xxx

Allegiance may be an absolute and permanent obligation, or it

may be a qualified and temporary one; the citizen or subject
owes the former to his government or sovereign, until by some
act he distinctly renounces it, whilst the alien domiciled in the
country owes a temporary and local allegiance continuing
during such residence. (Carlisle vs. United States, 16 Wall.
[U.S.], 154; 21 Law. ed., 426. (1 Bouvier's Law Dictionary, p.
179.).
The above quotations express ideas that do not fit exactly into the
Philippine pattern in view of the revolutionary insertion in our
Constitution of the fundamental principle that "sovereignty resides in
the people and all government authority emanates from them."
(Section 1, Article II.) The authorities above quoted, judges and
juridical publicists define allegiance with the idea that sovereignty
resides somewhere else, on symbols or subjects other than the
people themselves. Although it is possible that they had already
discovered that the people and only the people are the true
sovereign, their minds were not yet free from the shackles of the
tradition that the powers of sovereignty have been exercised by
princes and monarchs, by sultans and emperors, by absolute and
tyrannical rules whose ideology was best expressed in the famous
words of one of the kings of France: "L'etat c'est moi," or such other
persons or group of persons posing as the government, as an entity

different and in opposition to the people themselves. Although

democracy has been known ever since old Greece, and modern
democracies in the people, nowhere is such principle more
imperative than in the pronouncement embodied in the fundamental
law of our people.
To those who think that sovereignty is an attribute of government, and
not of the people, there may be some plausibility in the proposition
that sovereignty was suspended during the enemy occupation, with
the consequence that allegiance must also have been suspended,
because our government stopped to function in the country. But the
idea cannot have any place under our Constitution. If sovereignty is
an essential attribute of our people, according to the basic philosophy
of Philippine democracy, it could not have been suspended during the
enemy occupation. Sovereignty is the very life of our people, and
there is no such thing as "suspended life." There is no possible
middle situation between life and death. Sovereignty is the very
essence of the personality and existence of our people. Can anyone
imagine the possibility of "suspended personality" or "suspended
existence" of a people? In no time during enemy occupation have the
Filipino people ceased to be what they are.
The idea of suspended sovereignty or suspended allegiance is
incompatible with our Constitution.
There is similarity in characteristics between allegiance to the
sovereign and a wife's loyalty to her husband. Because some
external and insurmountable force precludes the husband from
exercising his marital powers, functions, and duties and the wife is
thereby deprived of the benefits of his protection, may the wife invoke
the theory of suspended loyalty and may she freely share her bed
with the assailant of their home? After giving aid and comfort to the
assailant and allowing him to enjoy her charms during the former's
stay in the invaded home, may the wife allege as defense for her
adultery the principle of suspended conjugal fidelity?
Petitioner's thesis on change of sovereignty at the advent of
independence on July 4, 1946, is unacceptable. We have already
decided in Brodett vs. De la Rosa and Vda. de Escaler (p. 752, ante)
that the Constitution of the Republic is the same as that of the

Commonwealth. The advent of independence had the effect of

changing the name of our Government and the withdrawal by the
United States of her power to exercise functions of sovereignty in the
Philippines. Such facts did not change the sovereignty of the Filipino
people. That sovereignty, following our constitutional philosophy, has
existed ever since our people began to exist. It has been recognized
by the United States of America, at least since 1935, when President
Roosevelt approved our Constitution. By such act, President
Roosevelt, as spokesman of the American people, accepted and
recognized the principle that sovereignty resides in the people that is,
that Philippine sovereignty resides in the Filipino people.
The same sovereignty had been internationally recognized long
before the proclamation of independence on July 4, 1946. Since the
early part of the Pacific war, President Quezon had been sitting as
representative of a sovereign people in the Allied War Council, and in
June, 1945, the same Filipino people took part outstanding and
brilliant, it may be added in the drafting and adoption of the charter
of the United Nations, the unmistakable forerunner of the future
democratic federal constitution of the world government envisioned
by all those who adhere to the principle of unity of all mankind, the
early realization of which is anxiously desired by all who want to be
spared the sufferings, misery and disaster of another war.
Under our Constitution, the power to suspend laws is of legislative
nature and is lodged in Congress. Sometimes it is delegated to the
Chief Executive, such as the power granted by the Election Code to
the President to suspend the election in certain districts and areas for
strong reasons, such as when there is rebellion, or a public calamity,
but it has never been exercised by tribunals. The Supreme Court has
the power to declare null and void all laws violative of the
Constitution, but it has no power, authority, or jurisdiction to suspend
or declare suspended any valid law, such as the one on treason
which petitioner wants to be included among the laws of the
Commonwealth which, by his theory of suspended allegiance and
suspended sovereignty, he claims have been suspended during the
Japanese occupation.
Suppose President Quezon and his government, instead of going
from Corregidor to Australia, and later to Washington, had fled to the

mountains of Luzon, and a group of Filipino renegades should have

killed them to serve the interests of the Japanese imperial forces. By
petitioner's theory, those renegades cannot be prosecuted for treason
or for rebellion or sedition, as the laws punishing them were
suspended. Such absurd result betrays the untenability of the theory.
"The defense of the State is a prime duty of Government, and in the
fulfillment of that duty all citizens may be required by law to render
personal, military or civil service." Thus, section 2 of Article II of the
Constitution provides: That duty of defense becomes more imperative
in time of war and when the country is invaded by an aggressor
nation. How can it be fulfilled if the allegiance of the citizens to the
sovereign people is suspended during enemy occupation? The
framers of the Constitution surely did not entertain even for the
moment the absurdity that when the allegiance of the citizens to the
sovereign people is more needed in the defense of the survival of the
state, the same should be suspended, and that upon such
suspension those who may be required to render personal, military or
civil service may claim exemption from the indispensable duty of
serving their country in distress.
Petitioner advances the theory that protection in the consideration of
allegiance. He argues that the Commonwealth Government having
been incapacitated during enemy occupation to protect the citizens,
the latter were relieved of their allegiance to said government. The
proposition is untenable. Allegiance to the sovereign is an
indispensable bond for the existence of society. If that bond is
dissolved, society has to disintegrate. Whether or not the existence of
the latter is the result of the social compact mentioned by Roseau,
there can be no question that organized society would be dissolved if
it is not united by the cohesive power of the citizen's allegiance. Of
course, the citizens are entitled to the protection of their government,
but whether or not that government fulfills that duty, is immaterial to
the need of maintaning the loyalty and fidelity of allegiance, in the
same way that the physical forces of attraction should be kept
unhampered if the life of an individual should continue, irrespective of
the ability or inability of his mind to choose the most effective
measures of personal protection.

After declaring that all legislative, executive, and judicial processes

had during and under the Japanese regime, whether executed by the
Japanese themselves or by Filipino officers of the puppet government
they had set up, are null and void, as we have done in our opinions
in Co Kim Cham vs. Valdez Tan Keh and Dizon (75 Phil., 113),
inPeralta vs. Director of Prison (75, Phil., 285), and in several other
cases where the same question has been mentioned, we cannot
consistently accept petitioner's theory.
If all laws or legislative acts of the enemy during the occupation were
null and void, and as we cannot imagine the existence of organized
society, such as the one constituted by the Filipino people, without
laws of the Commonwealth were the ones in effect during the
occupation and the only ones that could claim obedience from our
citizens.
Petitioner would want us to accept the thesis that during the
occupation we owed allegiance to the enemy. To give way to that
paradoxical and disconcerting allegiance, it is suggested that we
accept that our allegiance to our legitimate government was
suspended. Petitioner's proposition has to fall by its own weight,
because of its glaring absurdities. Allegiance, like its synonyms,
loyalty and fidelity, is based on feelings of attraction, love, sympathy,
admiration, respect, veneration, gratitude, amity, understanding,
friendliness. These are the feelings or some of the feelings that bind
us to our own people, and are the natural roots of the duty of
allegiance we owe them. The enemy only provokes repelling and
repulsive feelings hate, anger, vexation, chagrin, mortification,
resentment, contempt, spitefulness. The natural incompatibility of
political, social and ethical ideologies between our people and the
Japanese, making impossible the existence of any feeling of
attraction between them, aside from the initial fact that the Japanese
invaded our country as our enemy, was aggravated by the morbid
complexities of haughtiness, braggadocio and beastly brutality of the
Nippon soldiers and officers in their dealings with even the most
inoffensive of our citizens.
Giving bread to our enemy, and, after slapping one side of our face,
offer him the other to be further slapped, may appear to be divinely
charitable, but to make them a reality, it is necessary to change

human nature. Political actions, legal rules and judicial decisions deal
with human relations, taking man as he is, not as he should be. To
love the enemy is not natural. As long as human pyschology remains
as it is, the enemy shall always be hated. Is it possible to conceive an
allegiance based on hatred?
The Japanese, having waged against us an illegal war condemned by
prevailing principles of international law, could not have established in
our country any government that can be legally recognized as de
facto. They came as bandits and ruffians, and it is inconceivable that
banditry and ruffianism can claim any duty of allegiance even a
temporary one from a decent people.
One of the implications of petitioner's theory, as intimated
somewhere, is that the citizens, in case of invasion, are free to do
anything not forbidden by the Hague Conventions. Anybody will
notice immediately that the result will be the doom of small nations
and peoples, by whetting the covetousness of strong powers prone
on imperialistic practices. In the imminence of invasion, weak-hearted
soldiers of the smaller nations will readily throw away their arms to
rally behind the paladium of the invaders.
Two of the three great departments of our Government have already
rejected petitioner's theory since September 25, 1945, the day when
Commonwealth Act No. 682 took effect. By said act, creating the
People's Court to try and decide all cases of crime against national
security "committed between December 8, 1941 and September 2,
1945," (section 2), the legislative and executive departments have
jointly declared that during the period above mentioned, including the
time of Japanese occupation, all laws punishing crimes against
national security, including article 114 of the Revised Penal Code,
punishing treason, had remained in full effect and should be
enforced.
That no one raised a voice in protest against the enactment of said
act and that no one, at the time the act was being considered by the
Senate and the House of Representatives, ever dared to expose the
uselessness of creating a People's Court to try crime which, as
claimed by petitioner, could not have been committed as the laws
punishing them have been suspended, is a historical fact of which the

Supreme Court may take judicial notice. This fact shows universal
and unanimous agreement of our people that the laws of the
Commonwealth were not suspended and that the theory of
suspended allegiance is just an afterthought provoked by a desperate
effort to help quash the pending treason cases at any cost.
Among the arguments adduced in favor of petitioner's theory is that it
is based on generally accepted principles of international law,
although this argument becomes futile by petitioner's admission that
the theory is advantageous to strong powers but harmful to small and
weak nations, thus hinting that the latter cannot accept it by heart.
Suppose we accept at face value the premise that the theories, urged
by petitioner, of suspended allegiance and suspended sovereignty
are based on generally accepted principles of international law. As
the latter forms part of our laws by virtue of the provisions of section 3
of Article II of the Constitution, it seems that there is no alternative but
to accept the theory. But the theory has the effect of suspending the
laws, especially those political in nature. There is no law more
political in nature than the Constitution of the Philippines. The result is
an inverted reproduction of the Greek myth of Saturn devouring his
own children. Here, under petitioner's theory, the offspring devours its
parent.
Can we conceive of an instance in which the Constitution was
suspended even for a moment?
There is conclusive evidence that the legislature, as policydetermining agency of government, even since the Pacific war started
on December 7, 1941, intimated that it would not accept the idea that
our laws should be suspended during enemy occupation. It must be
remembered that in the middle of December, 1941, when Manila and
other parts of the archipelago were under constant bombing by
Japanese aircraft and enemy forces had already set foot somewhere
in the Philippines, the Second National Assembly passed
Commonwealth Act No. 671, which came into effect on December 16,
1941. When we approved said act, we started from the premise that
all our laws shall continue in effect during the emergency, and in said
act we even went to the extent of authorizing the President "to
continue in force laws and appropriations which would lapse or
otherwise become inoperative," (section 2, [d]), and also to

"promulgate such rules and regulations as he may deem necessary

to carry out the national policy," (section 2), that "the existence of war
between the United States and other countries of Europe and Asia,
which involves the Philippines, makes it necessary to invest the
President with extraordinary powers in order to meet the resulting
emergency." (Section 1.) To give emphasis to the intimation, we
provided that the rules and regulations provided "shall be in force and
effect until the Congress of the Philippines shall otherwise provide,"
foreseeing the possibility that Congress may not meet as scheduled
as a result of the emergency, including invasion and occupation by
the enemy. Everybody was then convinced that we did not have
available the necessary means of repelling effectivity the enemy
invasion.
Maybe it is not out of place to consider that the acceptance of
petitioner's theory of suspended allegiance will cause a great injustice
to those who, although innocent, are now under indictment for
treason and other crimes involving disloyalty to their country, because
their cases will be dismissed without the opportunity for them to
revindicate themselves. Having been acquitted upon a mere legal
technicality which appears to us to be wrong, history will
indiscriminality classify them with the other accused who were really
traitors to their country. Our conscience revolts against the idea of
allowing the innocent ones to go down in the memory of future
generations with the infamous stigma of having betrayed their own
people. They should not be deprived of the opportunity to show
through the due process of law that they are free from all blame and
that, if they were really patriots, they acted as such during the critical
period of test.

HILADO, J., concurring:

I concur in the result reached in the majority opinion to the effect that
during the so-called Japanese occupation of the Philippines (which
was nothing more than the occupation of Manila and certain other
specific regions of the Islands which constituted the minor area of the
Archipelago) the allegiance of the citizens of this country to their

legitimate government and to the United States was not suspended,

as well as the ruling that during the same period there was no change
of sovereignty here; but my reasons are different and I proceed to set
them forth:
I. SUSPENDED ALLEGIANCE.
(a) Before the horror and atrocities of World War I, which were
multiplied more than a hundred-fold in World War II, the nations had
evolved certain rules and principles which came to be known as
International Law, governing their conduct with each other and toward
their respective citizens and inhabitants, in the armed forces or
civilian life, in time of peace or in time of war. During the ages which
preceded that first world conflict the civilized governments had no
realization of the potential excesses of which "men's inhumanity to
man" could be capable. Up to that time war was, at least under
certain conditions, considered as sufficiently justified, and the nations
had not on that account, proscribed nor renounced it as an instrument
of national policy, or as a means of settling international disputes. It is
not for us now to dwell upon the reasons accounting for this historical
fact. Suffice it to recognize its existence in history.
But when in World War I civilized humanity saw that war could be, as
it actually was, employed for entirely different reasons and from
entirely different motives, compared to previous wars, and the
instruments and methods of warfare had been so materially changed
as not only to involve the contending armed forces on well defined
battlefields or areas, on land, in the sea, and in the air, but to spread
death and destruction to the innocent civilian populations and to their
properties, not only in the countries engaged in the conflict but also in
neutral ones, no less than 61 civilized nations and governments,
among them Japan, had to formulate and solemnly subscribe to the
now famous Briand-Kellogg Pact in the year 1928. As said by Justice
Jackson of the United States Supreme Court, as chief counsel for the
United States in the prosecution of "Axis war criminals," in his report
to President Truman of June 7, 1945:
International law is not capable of development by legislation,
for there is no continuously sitting international legislature.
Innovations and revisions in international law are brought about

by the action of governments designed to meet a change

circumstances. It grows, as did the common law, through
decisions reached from time to time in adopting settled
principles to new situations.
xxx

xxx

xxx

After the shock to civilization of the war of 1914-1918, however,

a marked reversion to the earlier and sounder doctrines of
international law took place. By the time the Nazis came to
power it was thoroughly established that launching an
aggressive war or the institution of war by treachery was illegal
and that the defense of legitimate warfare was no longer
available to those who engaged in such an enterprise. It is high
time that we act on the juridical principle that aggressive warmaking is illegal and criminal.
The re-establishment of the principle of justifiable war is
traceable in many steps. One of the most significant is the
Briand-Kellogg Pact of 1928 by which Germany, Italy,
and Japan, in common with the United States and practically all
the nations of the world, renounced war as an instrument of
national policy, bound themselves to seek the settlement of
disputes only by pacific means, and condemned recourse to
war for the solution of international controversies.
Unless this Pact altered the legal status of wars of aggression,
it has no meaning at all and comes close to being an act of
deception. In 1932 Mr. Henry L. Stimson, as United States
Secretary of State, gave voice to the American concept of its
effect. He said, "war between nations was renounced by the
signatories of the Briand-Kellogg Treaty. This means that it has
become illegal throughout practically the entire world. It is no
longer to be the source and subject of rights. It is no longer to
be the principle around which the duties, the conduct, and the
rights of nations revolve. It is an illegal thing. . . . By that very
act we have made obsolete many legal precedents and have
given the legal profession the task of re-examining many of its
Codes and treaties.

This Pact constitutes only one reversal of the viewpoint that all
war is legal and has brought international law into harmony with
the common sense of mankind that unjustifiable war is a
crime.
Without attempting an exhaustive catalogue, we may mention
the Geneva Protocol of 1924 for the Pacific Settlement of
International Disputes, signed by the representatives of fortyeight governments, which declared that "a war of aggression
constitutes .. an International crime. . . .
The Eight Assembly of the League of Nations in 1927, on
unanimous resolution of the representatives of forty-eight
member-nations, including Germany, declared that a war of
aggression constitutes an international crime. At the Sixth PanAmerican Conference of 1928, the twenty-one American
Republics unanimously adopted a resolution stating that "war of
aggression constitutes an international crime against the
human species."
xxx

xxx

xxx

We therefore propose to change that a war of aggression is

a crime, and that modern international law has abolished the
defense that those who incite or wage it are engaged in
legitimate business. Thus may the forces of the law be
mobilized on the side of peace. ("U.S.A. An American
Review," published by the United States Office of War
Information, Vol. 2, No. 10; emphasis supplied.).
When Justice Jackson speaks of "a marked reversion to the earlier
and sounder doctrines of international law" and "the re-establishment
of the principle of justifiable war," he has in mind no other than "the
doctrine taught by Grotius, the father of international law, that there is
a distinction between the just and the unjust war the war of
defense and the war of aggression" to which he alludes in an earlier
paragraph of the same report.
In the paragraph of said report immediately preceding the one last
above mentioned Justice Jackson says that "international law as
taught in the 19th and the early part of the 20th century generally

declared that war-making was not illegal and no crime at law." But, as
he says in one of the paragraphs hereinabove quoted from that
report, the Briand-Kellogg Pact constitutes a reversal of the viewpoint that all war is legal and has brought international law into
harmony with the common sense of mankind that unjustifiable war
is a crime. Then he mentions as other reversals of the same
viewpoint, the Geneva Protocol of 1924 for the Pacific Settlement of
International Disputes, declaring that a war of aggression constitutes
an international crime; the 8th assembly of the League of Nations in
1927, declaring that a war of aggression constitutes an international
crime; and the 6th Pan-American conference of 1928, which
unanimously adopted a resolution stating that war of aggression
constitutes an international crime against the human species: which
enumeration, he says, is not an attempt at an exhaustive catalogue.
It is not disputed that the war started by Japan in the Pacific, first,
against the United States, and later, in rapid succession, against
other allied nations, was a war of aggression and utterly unjustifiable.
More aggressive still, and more unjustifiable, as admitted on all sides,
was its attack against the Philippines and its consequent invasion and
occupation of certain areas thereof.
Some of the rules and principles of international law which have been
cited for petitioner herein in support of his theory of suspended
allegiance, have been evolved and accepted during those periods of
the history of nations when all war was considered legal, as stated by
Justice Jackson, and the others have reference to military occupation
in the course of really justifiable war.
Japan in subscribing the Briand-Kellogg Pact thirteen years before
she started the aggressive war which threw the entire Pacific area
into a seething cauldron from the last month of 1941 of the first week
of September, 1945, expressly agreed to outlaw, proscribe and
renounce war as an instrument of national policy, and bound herself
to seek the settlement of her disputes with other nations only by
pacific means. Thus she expressly gave her consent to that
modification of the then existing rules and principles of international
law governing the matter. With the modification, all the signatories to
the pact necessarily accepted and bound themselves to abide by all
its implications, among them the outlawing, prescription and

renunciation of military occupation of another nation's territory in the

course of a war thus outlawed, proscribed and renounced. This is
only one way of saving that the rules and principles of international
law therefore existing on the subject of military occupation were
automatically abrogated and rendered ineffective in all future cases of
war coming under the ban and condemnation of the pact.
If an unjustifiable war is a crime; if a war of aggression constitutes an
international crime; if such a war is an international crime against the
human species: a nation which occupies a foreign territory in the
course of such a war cannot possibly, under any principle of natural
or positive law, acquire or posses any legitimate power or right
growing out or incident to such occupation. Concretely, Japan in
criminally invading the Philippines and occupying certain portions of
its territory during the Pacific war, could not have nor exercise, in the
legal sense and only this sense should we speak here with
respect to this country and its citizens, any more than could a burglar
breaking through a man's house pretends to have or to exercise any
legal power or right within that house with respect either to the person
of the owner or to his property. To recognize in the first instance any
legal power or right on the part of the invader, and in the second any
legal power or right on the part of the burglar, the same as in case of
a military occupant in the course of a justifiable war, would be nothing
short of legalizing the crime itself. It would be the most monstrous
and unpardonable contradiction to prosecute, condemn and hang the
appropriately called war criminals of Germany, Italy, and Japan, and
at the same time recognize any lawfulness in their occupation
invaded. And let it not be forgotten that the Philippines is a member of
the United Nations who have instituted and conducted the so-called
war crimes trials. Neither should we lose sight of the further fact that
this government has a representative in the international commission
currently trying the Japanese war criminals in Tokyo. These facts
leave no room for doubt that this government is in entire accord with
the other United Nations in considering the Pacific war started by
Japan as a crime. Not only this, but this country had six years before
the outbreak of the Pacific war already renounced war as an
instrument of national policy (Constitution, Article II, section 2), thus in
consequence adopting the doctrine of the Briand-Kellogg Pact.

Consequently, it is submitted that it would be absolutely wrong and

improper for this Court to apply to the occupation by Japan of certain
areas of the Philippines during that war the rules and principles of
international law which might be applicable to a military occupation
occurring in the course of a justifiable war. How can this Court
recognize any lawfulness or validity in that occupation when our own
government has sent a representative to said international
commission in Tokyo trying the Japanese "war criminals" precisely for
the "crimes against humanity and peace" committed by them during
World War II of which said occupation was but part and parcel? In
such circumstances how could such occupation produce no less an
effect than the suspension of the allegiance of our people to their
country and government?
(b) But even in the hypothesis and not more than a mere
hypothesis that when Japan occupied the City of Manila and
certain other areas of the Philippines she was engaged in a justifiable
war, still the theory of suspended allegiance would not hold good. The
continuance of the allegiance owed to a notion by its citizens is one of
those high privileges of citizenship which the law of nations denies to
the occupant the power to interfere with.
. . . His (of occupant) rights are not, however, commensurate
with his power. He is thus forbidden to take certain measures
which he may be able to apply, and that irrespective of their
efficacy. The restrictions imposed upon him are in theory
designed to protect the individual in the enjoyment of some
highly important privileges. These concern his allegiance to the
de jure sovereign, his family honor and domestic relations,
religious convictions, personal service, and connection with or
residence in the occupied territory.
The Hague Regulations declare that the occupant is forbidden
to compel the inhabitants to swear allegiance to the hostile
power. . . . (III Hyde, International Law, 2d revised ed., pp.
1898-1899.)
. . . Nor may he (occupant) compel them (inhabitants) to take
an oath of allegiance. Since the authority of the occupant is not

sovereignty, the inhabitants owe no temporary allegiance to

him. . . . (II Oppenheim, International Law, pp. 341-344.)
The occupant's lack of the authority to exact an oath of allegiance
from the inhabitants of the occupied territory is but a corollary of the
continuance of their allegiance to their own lawful sovereign. This
allegiance does not consist merely in obedience to the laws of the
lawful sovereign, but more essentially consists in loyalty or fealty to
him. In the same volume and pages of Oppenheim's work above
cited, after the passage to the effect that the inhabitants of the
occupied territory owe no temporary allegiance to the occupant it is
said that "On the other hand, he may compel them to take an oath
sometimes called an 'oath of neutrality' . . . willingly to submit to his
'legitimate commands.' Since, naturally, such "legitimate commands"
include the occupant's laws, it follows that said occupant, where the
rule is applicable, has the right to compel the inhabitants to take an
oath of obedience to his laws; and since according to the same rule,
he cannot exact from the inhabitants an oath of obedience to his
laws; and since, according to the same rule, he cannot exact from the
inhabitants an oath of allegiance, it follows that obedience to his laws,
which he can exact from them, does not constitute allegiance.
(c) The theory of suspended allegiance is unpatriotic to the last
degree. To say that when the one's country is unable to afford him in
its protection, he ceases to be bound to it by the sacred ties of
allegiance, is to advocate the doctrine that precisely when his country
is in such distress, and therefore most needs his loyalty, he is
absolved from the loyalty. Love of country should be something
permanent and lasting, ending only in death; loyalty should be its
worth offspring. The outward manifestation of one or the other may
for a time be prevented or thwarted by the irresistible action of the
occupant; but this should not in the least extinguish nor obliterate the
invisible feelings, and promptings of the spirit. And beyond the
unavoidable consequences of the enemy's irresistible pressure, those
invisible feelings and promptings of the spirit of the people should
never allow them to act, to speak, nor even to think a whit contrary to
their love and loyalty to the Fatherland. For them, indicted, to face
their country and say to it that, because when it was overrun and
vanquished by the barbarous invader and, in consequence was
disabled from affording them protection, they were released from their

sacred obligation of allegiance and loyalty, and could therefore freely

adhere to its enemy, giving him aid and comfort, incurring no criminal
responsibility therefor, would only tend to aggravate their crime.
II. CHANGE OF SOVEREIGNTY
Article II, section 1, of the Constitution provides that "Sovereignty
resides in the people and all government authority emanates from
them." The Filipino people are the self-same people before and after
Philippine Independence, proclaimed on July 4, 1946. During the life
of the Commonwealth sovereignty resided in them under the
Constitution; after the proclamation of independence that sovereignty
remained with them under the very same fundamental law. Article
XVIII of the said Constitution stipulates that the government
established thereby shall be known as the Commonwealth of the
Philippines; and that upon the final and complete withdrawal of the
sovereignty of the United States and the proclamation of Philippine
independence, "The Commonwealth of the Philippines shall
thenceforth be known as the Republic of the Philippines." Under this
provision the Government of the Philippines immediately prior to
independence was essentially to be the identical government
thereafter only the name of that government was to be changed.
Both before and after the adoption of the Philippine Constitution the
people of the Philippines were and are always the plaintiff in all
criminal prosecutions, the case being entitled: "The People of the
Philippines vs. (the defendant or defendants)." This was already true
in prosecutions under the Revised Penal Code containing the law of
treason. "The Government of the Philippines" spoken of in article 114
of said Code merely represents the people of the Philippines. Said
code was continued, along with the other laws, by Article XVI, section
2, of the Constitution which constitutional provision further directs that
"all references in such laws to the Government or officials of the
Philippine Islands shall be construed, in so far as applicable, to refer
to the Government and corresponding officials under this
Constitution" of course, meaning the Commonwealth of the
Philippines before, and the Republic of the Philippines after,
independence (Article XVIII). Under both governments sovereignty
resided and resides in the people (Article II, section 1). Said
sovereignty was never transferred from that people they are the

same people who preserve it to this day. There has never been any
change in its respect.
If one committed treason againsts the People of the Philippines
before July 4, 1946, he continues to be criminally liable for the crime
to the same people now. And if, following the literal wording of the
Revised Penal Code, as continued by the Constitution, that accused
owed allegiance upon the commission of the crime to the
"Government of the Philippines," in the textual words of the
Constitution (Article XVI, section 2, and XVIII) that was the same
government which after independence became known as the
"Republic of the Philippines." The most that can be said is that the
sovereignty of the people became complete and absolute after
independence that they became, politically, fully of age, to use a
metaphor. But if the responsibility for a crime against a minor is not
extinguished by the mere fact of his becoming of age, why should the
responsibility for the crime of treason committed against the Filipino
people when they were not fully politically independent be
extinguished after they acquire this status? The offended party
continues to be the same only his status has changed.

PARAS, J., dissenting:

During the long period of Japanese occupation, all the political laws
of the Philippines were suspended. This is full harmony with the
generally accepted principles of the international law adopted by our
Constitution(Article II, section 3) as a part of the law of the Nation.
Accordingly, we have on more than one occasion already stated that
"laws of a political nature or affecting political relations, . . . are
considered as suspended or in abeyance during the military
occupation" (Co Kim Cham vs. Valdez Tan Keh and Dizon, 75 Phil.,
113, 124), and that the rule "that laws of political nature or affecting
political relations are considered suspended or in abeyance during
the military occupation, is intended for the governing of the civil
inhabitants of the occupied territory." (Ruffy vs. Chief of Staff,
Philippine Army, 75, Phil., 875, 881.)

The principle is recognized by the United States of America, which

admits that the occupant will naturally suspends all laws of a political
nature and all laws which affect the welfare and safety of his
command, such action to be made known to the inhabitants.(United
States Rules of Land Welfare, 1940, Article 287.) As allegiance to the
United States is an essential element in the crime of treason under
article 114 of the Revised Penal Code, and in view of its position in
our political structure prior to the independence of the Philippines, the
rule as interpreted and practiced in the United States necessarily has
a binding force and effect in the Philippines, to the exclusion of any
other construction followed elsewhere, such as may be inferred,
rightly or wrongly, from the isolated cases 1 brought to our attention,
which, moreover, have entirely different factual bases.
Corresponding notice was given by the Japanese occupying army,
first, in the proclamation of its Commander in chief of January 2,
1942, to the effect that as a "result of the Japanese Military
operations, the sovereignty of the United States of America over the
Philippines has completely disappeared and the Army hereby
proclaims the Military Administration under martial law over the
district occupied by the Army;" secondly, in Order No. 3 of the said
Commander in Chief of February 20, 1942, providing that "activities
of the administrative organs and judicial courts in the Philippines shall
be based upon the existing statutes, orders, ordinances and customs
until further orders provided that they are not inconsistent with the
present circumstances under the Japanese Military Administration;"
and, thirdly, in the explanation to Order No. 3 reminding that "all laws
and regulations of the Philippines has been suspended since
Japanese occupation," and excepting the application of "laws and
regulations which are not proper act under the present situation of the
Japanese Military Administration," especially those "provided with
some political purposes."
The suspension of the political law during enemy occupation is
logical, wise and humane. The latter phase outweighs all other
aspects of the principle aimed more or less at promoting the
necessarily selfish motives and purposes of a military occupant. It
thus consoling to note that the powers instrumental in the
crystallization of the Hague Conventions of 1907 did not forget to
declare that they were "animated by the desire to serve . . . the

interest of the humanity and the over progressive needs of

civilization," and that "in case not included in the Regulations adopted
by them, the inhabitants and the belligerents remain under the
protection and the rule of the principles of international law, as they
result from the usages established among civilized peoples, from the
laws of humanity, and the dictates of the public conscience." These
saving statements come to the aid of the inhabitants in the occupied
territory in a situation wherein, even before the belligerent occupant
"takes a further step and by appropriate affirmative action undertakes
to acquire the right of sovereignty for himself, . . . the occupant is
likely to regard to himself as clothed with freedom to endeavor to
impregnate the people who inhabit the area concerned with his own
political ideology, and to make that endeavor successful by various
forms of pressure exerted upon enemy officials who are permitted to
retain the exercise of normal governmental functions." (Hyde,
International Law, Vol. III, Second Revised Edition, 1945, p. 1879.)
The inhabitants of the occupied territory should necessarily be bound
to the sole authority of the invading power, whose interest and
requirements are naturally in conflict with those of the displaced
government, if it is legitimate for the military occupant to demand and
enforce from the inhabitants such obedience as may be necessary for
the security of his forces, for the maintenance of law and order, and
for the proper administration of the country (United States Rules of
Land Warfare, 1940, article 297), and to demand all kinds of services
"of such a nature as not to involve the population in the obligation of
taking part in military operations against their own country" (Hague
Regulations, article 52);and if, as we have in effect said, by the
surrender the inhabitants pass under a temporary allegiance to the
government of the occupant and are bound by such laws, and such
only, as it chooses to recognize and impose, and 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." (Peraltavs. Director of Prisons, 75 Phil.,
285, 295), citing United States vs. Rice, 4 Wheaton, 246, and quoting
Oppenheim, International Law, Vol. II. Sixth Edition, Revised, 1944,p.
432.)

He would be a bigot who cannot or would refuse to see the cruel

result if the people in an occupied territory were required to obey two
antagonistic and opposite powers. To emphasize our point, we would
adopt the argument, in a reverse order, of Mr. Justice Hilado
in Peralta vs. Director of Prisons (75 Phil., 285, 358), contained in the
following passage:
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.
The only sensible purpose of the treason law which is of political
complexion and taken out of the territorial law and penalized as a
new offense committed against the belligerent occupant, incident to a
state of war and necessary for the control of the occupant
(Alcantara vs. Director of Prisons, 75 Phil., 494), must be the
preservation of the nation, certainly not its destruction or
extermination. And yet the latter is unwittingly wished by those who
are fond of the theory that what is suspended is merely the exercise
of sovereignty by the de juregovernment or the latter's authority to
impose penal sanctions or that, otherwise stated, the suspension
refers only to the military occupant. If this were to be the only effect,
the rule would be a meaningless and superfluous optical illusion,
since it is obvious that the fleeing or displaced government cannot,
even if it should want, physically assert its authority in a territory
actually beyond its reach, and that the occupant, on the other hand,
will not take the absurd step of prosecuting and punishing the
inhabitants for adhering to and aiding it. If we were to believe the
opponents of the rule in question, we have to accept the absurd
proposition that the guerrillas can all be prosecuted with illegal
possession of firearms. It should be borne in the mind that "the
possession by the belligerent occupant of the right to control,

maintain or modify the laws that are to obtain within the occupied
area is an exclusive one. The territorial sovereign driven therefrom,
can not compete with it on an even plane. Thus, if the latter attempt
interference, its action is a mere manifestation of belligerent effort to
weaken the enemy. It has no bearing upon the legal quality of what
the occupant exacts, while it retains control. Thus, if the absent
territorial sovereign, through some quasi-legislative decree, forbids its
nationals to comply with what the occupant has ordained obedience
to such command within the occupied territory would not safeguard
the individual from the prosecution by the occupant." (Hyde,
International Law, Vol. III, Second Revised Edition, 1945, p. 1886.)
As long as we have not outlawed the right of the belligerent occupant
to prosecute and punish the inhabitants for "war treason" or "war
crimes," as an incident of the state of war and necessity for the
control of the occupied territory and the protection of the army of the
occupant, against which prosecution and punishment such
inhabitants cannot obviously be protected by their native sovereign, it
is hard to understand how we can justly rule that they may at the
same time be prosecuted and punished for an act penalized by the
Revised Penal Code, but already taken out of the territorial law and
penalized as a new offense committed against the belligerent
occupant.
In Peralta vs. Director of Prisons, 75 Phil., 285, 296), we held that
"the Constitution of the Commonwealth Government was suspended
during the occupation of the Philippines by the Japanese forces or
the belligerent occupant at regular war with the United States," and
the meaning of the term "suspended" is very plainly expressed in the
following passage (page 298):
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 the 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 reoccupation of the Philippines by the virtue of the priciple 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 a case
quoted and cited in the foot-note), especially as regards laws of
procedure applied to cases already terminated completely.
In much the same way, we should hold that no treason could have
been committed during the Japanese military occupation against the
United States or the Commonwealth Government, because article
114 of the Revised Penal Code was not then in force. Nor may this
penal provision be applied upon its revival at the time of the
reoccupation of the Philippines by virtue of the principle
of postliminium, because of the constitutional inhibition against
any ex post facto law and because, under article 22 of the Revised
Penal Code, criminal laws shall have a retroactive effect only in so far
as they favor the accused. Why did we refuse to enforce the
Constitution, more essential to sovereignty than article 114 of the
Revised Penal Code in the aforesaid of Peralta vs. Director of
Prisons if, as alleged by the majority, the suspension was good only
as to the military occupant?
The decision in the United States vs. Rice (4 Wheaton, 246),
conclusively supports our position. As analyzed and described in
United States vs. Reiter (27 Fed. Cas., 773), that case "was decided
by the Supreme Court of the United States the court of highest
human authority on that subject and as the decision was against
the United States, and in favor of the authority of Great Britain, its
enemy in the war, and was made shortly after the occurrence of the
war out of which it grew; and while no department of this Government
was inclined to magnify the rights of Great Britain or disparage those
of its own government, there can be no suspicion of bias in the mind
of the court in favor of the conclusion at which it arrived, and no doubt
that the law seemed to the court to warrant and demand such a
decision. That case grew out of the war of 1812, between the United
States and Great Britain. It appeared that in September, 1814, the
British forces had taken the port of Castine, in the State of Maine, and
held it in military occupation; and that while it was so held, foreign
goods, by the laws of the United States subject to duty, had been
introduced into that port without paying duties to the United States. At
the close of the war the place by treaty restored to the United States,
and after that was done Government of the United States sought to

recover from the persons so introducing the goods there while in

possession of the British, the duties to which by the laws of the
United States, they would have been liable. The claim of the United
States was that its laws were properly in force there, although the
place was at the time held by the British forces in hostility to the
United States, and the laws, therefore, could not at the time be
enforced there; and that a court of the United States (the power of
that government there having since been restored) was bound so to
decide. But this illusion of the prosecuting officer there was dispelled
by the court in the most summary manner. Mr. Justice Story, that
great luminary of the American bench, being the organ of the court in
delivering its opinion, said: 'The single question is whether goods
imported into Castine during its occupation by the enemy are liable to
the duties imposed by the revenue laws upon goods imported into the
United States.. We are all of opinion that the claim for duties cannot
be sustained. . . . 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 who remained and submitted to the conquerors. By the
surrender the inhabitants passed under a temporary allegiance of the
British Government, and were bound by such laws, and such only, as
it chose to recognize and impose. From the nature of the case no
other laws could be obligatory upon them. . . . Castine was therefore,
during this period, as far as respected our revenue laws, to be
deemed a foreign port, and goods imported into it by the inhabitants
were subjects to such duties only as the British Government chose to
require. Such goods were in no correct sense imported into the
Unites States.' The court then proceeded to say, that the case is the
same as if the port of Castine had been foreign territory, ceded by
treaty to the United States, and the goods had been imported there
previous to its cession. In this case they say there would be no
pretense to say that American duties could be demanded; and upon
principles of public or municipal law, the cases are not
distinguishable. They add at the conclusion of the opinion: 'The
authorities cited at the bar would, if there were any doubt, be decisive
of the question. But we think it too clear to require any aid from
authority.' Does this case leave room for a doubt whether a country
held as this was in armed belligerents occupation, is to be governed
by him who holds it, and by him alone? Does it not so decide in terms
as plain as can be stated? It is asserted by the Supreme Court of the

United States with entire unanimity, the great and venerated Marshall
presiding, and the erudite and accomplished Story delivering the
opinion of the court, that such is the law, and it is so adjudged in this
case. Nay, more: it is even adjudged that no other laws could be
obligatory; that such country, so held, is for the purpose of the
application of the law off its former government to be deemed foreign
territory, and that goods imported there (and by parity of reasoning
other acts done there) are in no correct sense done within the
territory of its former sovereign, the United States."
But it is alleged by the majority that the sovereignty spoken of in the
decision of the United States vs. Rice should be construed to refer to
the exercise of sovereignty, and that, if sovereignty itself was meant,
the doctrine has become obsolete after the adoption of the Hague
Regulations in 1907. In answer, we may state that sovereignty can
have any important significance only when it may be exercised; and,
to our way of thinking, it is immaterial whether the thing held in
abeyance is the sovereignty itself or its exercise, because the point
cannot nullify, vary, or otherwise vitiate the plain meaning of the
doctrinal words "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 conquerors." We cannot accept the
theory of the majority, without in effect violating the rule of
international law, hereinabove adverted to, that the possession by the
belligerent occupant of the right to control, maintain or modify the
laws that are to obtain within the occupied area is an exclusive one,
and that the territorial sovereign driven therefrom cannot compete
with it on an even plane. Neither may the doctrine in the United
States vs. Rice be said to have become obsolete, without repudiating
the actual rule prescribed and followed by the United States, allowing
the military occupant to suspend all laws of a political nature and
even require public officials and inhabitants to take an oath of fidelity
(United States Rules of Land Warfare, 1940, article 309). In fact, it is
a recognized doctrine of American Constitutional Law that mere
conquest or military occupation of a territory of another State does
not operate to annex such territory to occupying State, but that the
inhabitants of the occupied district, no longer receiving the protection
of their native State, for the time being owe no allegiance to it, and,
being under the control and protection of the victorious power, owe to

that power fealty and obedience. (Willoughby, The Fundamental

Concepts of Public Law [1931], p.364.)
The majority have resorted to distinctions, more apparent than real, if
not immaterial, in trying to argue that the law of treason was
obligatory on the Filipinos during the Japanese occupation. Thus it is
insisted that a citizen or subject owes not a qualified and temporary,
but an absolute and permanent allegiance, and that "temporary
allegiance" to the military occupant may be likened to the temporary
allegiance which a foreigner owes to the government or sovereign to
the territory wherein he resides in return for the protection he receives
therefrom. The comparison is most unfortunate. Said foreigner is in
the territory of a power not hostile to or in actual war with his own
government; he is in the territory of a power which has not
suspended, under the rules of international law, the laws of political
nature of his own government; and the protections received by him
from that friendly or neutral power is real, not the kind of protection
which the inhabitants of an occupied territory can expect from a
belligerent army. "It is but reasonable that States, when they concede
to other States the right to exercise jurisdiction over such of their own
nationals as are within the territorial limits of such other States,
should insist that States should provide system of law and of courts,
and in actual practice, so administer them, as to furnish substantial
legal justice to alien residents. This does not mean that a State must
or should extend to aliens within its borders all the civil, or much less,
all the political rights or privileges which it grants to its own citizens;
but it does mean that aliens must or should be given adequate
opportunity to have such legal rights as are granted to them by the
local law impartially and judicially determined, and, when thus
determined, protected." (Willoughby, The Fundamental Concepts of
Public Law [1931], p. 360.)
When it is therefore said that a citizen of a sovereign may be
prosecuted for and convicted of treason committed in a foreign
country or, in the language of article 114 of the Revised Penal Code,
"elsewhere," a territory other than one under belligerent occupation
must have been contemplated. This would make sense, because
treason is a crime "the direct or indirect purpose of which is the
delivery, in whole or in part, of the country to a foreign power, or to
pave the way for the enemy to obtain dominion over the national

territory" (Albert, The Revised Penal Code, citing 3 Groizard, 14);

and, very evidently, a territory already under occupation can no
longer be "delivered."
The majority likewise argue that the theory of suspended sovereignty
or allegiance will enable the military occupant to legally recruit the
inhabitants to fight against their own government, without said
inhabitants being liable for treason. This argument is not correct,
because the suspension does not exempt the occupant from
complying with the Hague Regulations (article 52) that allows it to
demand all kinds of services provided that they do not involve the
population "in the obligation of taking part military operations against
their own country." Neither does the suspension prevent the
inhabitants from assuming a passive attitude, much less from dying
and becoming heroes if compelled by the occupant to fight against
their own country. Any imperfection in the present state of
international law should be corrected by such world agency as the
United Nations organizations.
It is of common knowledge that even with the alleged cooperation
imputed to the collaborators, an alarming number of Filipinos were
killed or otherwise tortured by the ruthless, or we may say savage,
Japanese Army. Which leads to the conclusion that if the Filipinos did
not obey the Japanese commands and feign cooperation, there
would not be any Filipino nation that could have been liberated.
Assuming that the entire population could go to and live in the
mountains, or otherwise fight as guerrillas after the formal
surrender of our and the American regular fighting forces, they
would have faced certain annihilation by the Japanese, considering
that the latter's military strength at the time and the long period during
which they were left military unmolested by America. In this
connection, we hate to make reference to the atomic bomb as a
possible means of destruction.
If a substantial number of guerrillas were able to survive and
ultimately help in the liberation of the Philippines, it was because the
feigned cooperation of their countrymen enabled them to get food
and other aid necessary in the resistance movement. If they were
able to survive, it was because they could camouflage themselves in
the midst of the civilian population in cities and towns. It is easy to

argue now that the people could have merely followed their ordinary
pursuits of life or otherwise be indifferent to the occupant. The
fundamental defect of this line of thought is that the Japanese
assumed to be so stupid and dumb as not to notice any such attitude.
During belligerent occupation, "the outstanding fact to be reckoned
with is the sharp opposition between the inhabitants of the occupied
areas and the hostile military force exercising control over them. At
heart they remain at war with each other. Fear for their own safety
may not serve to deter the inhabitants from taking advantage of
opportunities to interfere with the safety and success of the occupant,
and in so doing they may arouse its passions and cause to take
vengeance in cruel fashion. Again, even when it is untainted by such
conduct, the occupant as a means of attaining ultimate success in its
major conflict may, under plea of military necessity, and regardless of
conventional or customary prohibitions, proceed to utilize the
inhabitants within its grip as a convenient means of military
achievement." (Hyde, International Law, Vol. III, Second Revised
Edition [1945], p. 1912.) It should be stressed that the Japanese
occupation was not a matter of a few months; it extended over a little
more than three years. Said occupation was a fact, in spite of the
"presence of guerrilla bands in barrios and mountains, and even in
towns of the Philippines whenever these towns were left by Japanese
garrisons or by the detachments of troops sent on patrol to those
places." (Co Kim Cham vs. Valdez Tan Keh and Dizon, 75 Phil., 371,
373.) The law of nations accepts belligerent occupation as a fact to
be reckoned with, regardless of the merits of the occupant's cause.
(Hyde, International Law, Second Revised Edition [1945], Vol. III, p.
1879.)
Those who contend or fear that the doctrine herein adhere to will lead
to an over-production of traitors, have a wrong and low conception of
the psychology and patriotism of their countrymen. Patriots are such
after their birth in the first place, and no amount of laws or judicial
decisions can make or unmake them. On the other hand, the Filipinos
are not so base as to be insensitive to the thought that the real traitor
is cursed everywhere and in all ages. Our patriots who fought and
died during the last war, and the brave guerrillas who have survived,
were undoubtedly motivated by their inborn love of country, and not
by such a thing as the treason law. The Filipino people as a whole,
passively opposed the Japanese regime, not out of fear of a treason

statute but because they preferred and will prefer the democratic and
civilized way of life and American altruism to Japanese barbaric and
totalitarian designs. Of course, there are those who might at heart
have been pro-Japanese; but they met and will unavoidably meet the
necessary consequences. The regular soldiers faced the risks of
warfare; the spies and informers subjected themselves to the perils of
military operations, likely received summary liquidation or
punishments from the guerrillas and the parties injured by their acts,
and may be prosecuted as war spies by the military authorities of the
returning sovereign; those who committed other common crimes,
directly or through the Japanese army, may be prosecuted under the
municipal law, and under this group even the spies and informers,
Makapili or otherwise, are included, for they can be made answerable
for any act offensive to person or property; the buy-and-sell
opportunists have the war profits tax to reckon with. We cannot close
our eyes to the conspicuous fact that, in the majority of cases, those
responsible for the death of, or injury to, any Filipino or American at
the hands of the Japanese, were prompted more by personal motives
than by a desire to levy war against the United States or to adhere to
the occupant. The alleged spies and informers found in the Japanese
occupation the royal road to vengeance against personal or political
enemies. The recent amnesty granted to the guerrillas for acts,
otherwise criminal, committed in the furtherance of their resistance
movement has in a way legalized the penal sanctions imposed by
them upon the real traitors.
It is only from a realistic, practical and common-sense point of view,
and by remembering that the obedience and cooperation of the
Filipinos were effected while the Japanese were in complete control
and occupation of the Philippines, when their mere physical presence
implied force and pressure and not after the American forces of
liberation had restored the Philippine Government that we will
come to realize that, apart from any rule of international law, it was
necessary to release the Filipinos temporarily from the old political tie
in the sense indicated herein. Otherwise, one is prone to dismiss the
reason for such cooperation and obedience. If there were those who
did not in any wise cooperate or obey, they can be counted by the
fingers, and let their names adorn the pages of Philippine history.
Essentially, however, everybody who took advantage, to any extent
and degree, of the peace and order prevailing during the occupation,

for the safety and survival of himself and his family, gave aid and
comfort to the enemy.
Our great liberator himself, General Douglas MacArthur, had
considered the laws of the Philippines ineffective during the
occupation, and restored to their full vigor and force only after the
liberation. Thus, in his proclamation of October 23, 1944, he ordained
that "the laws now existing on the statute books of the
Commonwealth of the Philippines . . . are in full force and effect and
legally binding upon the people in areas of the Philippines free of
enemy occupation and control," and that "all laws . . . 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." Repeating what
we have said in Co Kim Cham vs. Valdez Tan Keh and Dizon (75
Phil., 113, 133), "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 President of the United States, and later embodied in
the Hague Conventions of 1907."
The prohibition in the Hague Conventions (Article 45) against "any
pressure on the population to take oath to the hostile power," was
inserted for the moral protection and benefit of the inhabitants, and
does not necessarily carry the implication that the latter continue to
be bound to the political laws of the displaced government. The
United States, a signatory to the Hague Conventions, has made the
point clear, by admitting that the military occupant can suspend all the
laws of a political nature and even require public officials and the
inhabitants to take an oath of fidelity (United States Rules of Land
Warfare, 1940, article 309), and as already stated, it is a doctrine of
American Constitutional Law that the inhabitants, no longer receiving
the protection of their native state, for the time being owe no
allegiance to it, and, being under the control and protection of the
victorious power, owe to that power fealty and obedience. Indeed,
what is prohibited is the application of force by the occupant, from
which it is fair to deduce that the Conventions do not altogether

outlaw voluntary submission by the population. The only strong

reason for this is undoubtedly the desire of the authors of the
Conventions to give as much freedom and allowance to the
inhabitants as are necessary for their survival. This is wise and
humane, because the people should be in a better position to know
what will save them during the military occupation than any exile
government.
"Before he was appointed prosecutor, Justice Jackson made a
speech in which he warned against the use of judicial process for non
judicial ends, and attacked cynics who "see no reason why courts,
just like other agencies, should not be policy weapons. If we want to
shoot Germans as a matter of policy, let it be done as such, said he,
but don't hide the deed behind a court. If you are determined to
execute a man in any case there is no occasion for a trial; the word
yields no respect for courts that are merely organized to convict."
Mussoloni may have got his just desserts, but nobody supposes he
got a fair trial. . . . Let us bear that in mind as we go about punishing
criminals. There are enough laws on the books to convict guilty Nazis
without risking the prestige of our legal system. It is far, far better that
some guilty men escape than that the idea of law be endangered. In
the long run the idea of law is our best defense against Nazism in all
its forms." These passages were taken from the editorial appearing in
the Life, May 28, 1945, page 34, and convey ideas worthy of some
reflection.
If the Filipinos in fact committed any errors in feigning cooperation
and obedience during the Japanese military occupation, they were at
most borrowing the famous and significant words of President
Roxas errors of the mind and not of the heart. We advisedly said
"feigning" not as an admission of the fallacy of the theory of
suspended allegiance or sovereignty, but as an affirmation that the
Filipinos, contrary to their outward attitude, had always remained
loyal by feeling and conscience to their country.
Assuming that article 114 of the Revised Penal Code was in force
during the Japanese military occupation, the present Republic of the
Philippines has no right to prosecute treason committed against the
former sovereignty existing during the Commonwealth Government
which was none other than the sovereignty of the United States. This

court has already held that, upon a change of sovereignty, the

provisions of the Penal Code having to do with such subjects as
treason, rebellion and sedition are no longer in force
(People vs. Perfecto, 43 Phil., 887). It is true that, as contended by
the majority, section 1 of Article II of the Constitution of the Philippines
provides that "sovereignty resides in the people," but this did not
make the Commonwealth Government or the Filipino people
sovereign, because said declaration of principle, prior to the
independence of the Philippines, was subervient to and controlled by
the Ordinance appended to the Constitution under which, in addition
to its many provisions essentially destructive of the concept of
sovereignty, it is expressly made clear that the sovereignty of the
United States over the Philippines had not then been withdrawn. The
framers of the Constitution had to make said declaration of principle
because the document was ultimately intended for the independent
Philippines. Otherwise, the Preamble should not have announced
that one of the purposes of the Constitution is to secure to the Filipino
people and their posterity the "blessings of independence." No one,
we suppose, will dare allege that the Philippines was an independent
country under the Commonwealth Government.
The Commonwealth Government might have been more autonomous
than that existing under the Jones Law, but its non-sovereign status
nevertheless remained unaltered; and what was enjoyed was the
exercise of sovereignty over the Philippines continued to be
complete.
The exercise of Sovereignty May be Delegated. It has
already been seen that the exercise of sovereignty is conceived
of as delegated by a State to the various organs which,
collectively, constitute the Government. For practical political
reasons which can be easily appreciated, it is desirable that the
public policies of a State should be formulated and executed by
governmental agencies of its own creation and which are not
subject to the control of other States. There is, however, nothing
in a nature of sovereignty or of State life which prevents one
State from entrusting the exercise of certain powers to the
governmental agencies of another State. Theoretically, indeed,
a sovereign State may go to any extent in the delegation of the
exercise of its power to the governmental agencies of other

States, those governmental agencies thus becoming quoad hoc

parts of the governmental machinery of the State whose
sovereignty is exercised. At the same time these agencies do
not cease to be Instrumentalities for the expression of the will of
the State by which they were originally created.
By this allegation the agent State is authorized to express the
will of the delegating State, and the legal hypothesis is that this
State possesses the legal competence again to draw to itself
the exercise, through organs of its own creation, of the powers
it has granted. Thus, States may concede to colonies almost
complete autonomy of government and reserve to themselves a
right of control of so slight and so negative a character as to
make its exercise a rare and improbable occurence; yet, so
long as such right of control is recognized to exist, and the
autonomy of the colonies is conceded to be founded upon a
grant and the continuing consent of the mother countries the
sovereignty of those mother countries over them is complete
and they are to be considered as possessing only
administrative autonomy and not political independence. Again,
as will be more fully discussed in a later chapter, in the socalled Confederate or Composite State, the cooperating States
may yield to the central Government the exercise of almost all
of their powers of Government and yet retain their several
sovereignties. Or, on the other hand, a State may, without
parting with its sovereignty of lessening its territorial application,
yield to the governing organs of particular areas such an
amplitude of powers as to create of them bodies-politic
endowed with almost all of the characteristics of independent
States. In all States, indeed, when of any considerable size,
efficiency of administration demands that certain autonomous
powers of local self-government be granted to particular
districts. (Willoughby, The Fundamental Concepts of Public Law
[1931], pp. 74, 75.).
The majority have drawn an analogy between the Commonwealth
Government and the States of the American Union which, it is
alleged, preserve their own sovereignty although limited by the United
States. This is not true for it has been authoritatively stated that the
Constituent States have no sovereignty of their own, that such

autonomous powers as they now possess are had and exercised by

the express will or by the constitutional forbearance of the national
sovereignty, and that the sovereignty of the United States and the
non-sovereign status of the individual States is no longer contested.
It is therefore plain that the constituent States have no
sovereignty of their own, and that such autonomous powers as
they now possess are had and exercised by the express will or
by the constitutional forbearance of the national sovereignty.
The Supreme Court of the United States has held that, even
when selecting members for the national legislature, or electing
the President, or ratifying proposed amendments to the federal
constitution, the States act, ad hoc, as agents of the National
Government. (Willoughby, the Fundamental Concepts of Public
Law [1931], p.250.)
This is the situation at the present time. The sovereignty of the
United States and the non-sovereign status of the individual
States is no longer contested. (Willoughby, The Fundamental
Concepts of Public Law [1931], pp. 251, 252.)
Article XVIII of the Constitution provides that "The government
established by this Constitution shall be known as the
Commonwealth of the Philippines. Upon the final and complete
withdrawal of the sovereignty of the United States and the
proclamation of Philippine independence, the Commonwealth of the
Philippines shall thenceforth be known as the Republic of the
Philippines." From this, the deduction is made that the Government
under the Republic of the Philippines and under the Commonwealth
is the same. We cannot agree. While the Commonwealth
Government possessed administrative autonomy and exercised the
sovereignty delegated by the United States and did not cease to be
an instrumentality of the latter (Willoughby, The Fundamental
Concepts of Public Law [1931], pp. 74, 75), the Republic of the
Philippines is an independent State not receiving its power or
sovereignty from the United States. Treason committed against the
United States or against its instrumentality, the Commonwealth
Government, which exercised, but did not possess, sovereignty (id.,
p. 49), is therefore not treason against the sovereign and

independent Republic of the Philippines. Article XVIII was inserted in

order, merely, to make the Constitution applicable to the Republic.
Reliance is also placed on section 2 of the Constitution which
provides that all laws of the Philippines Islands shall remain
operative, unless inconsistent therewith, until amended, altered,
modified or repealed by the Congress of the Philippines, and on
section 3 which is to the effect that all cases pending in courts shall
be heard, tried, and determined under the laws then in force, thereby
insinuating that these constitutional provisions authorize the Republic
of the Philippines to enforce article 114 of the Revised Penal Code.
The error is obvious. The latter article can remain operative under the
present regime if it is not inconsistent with the Constitution. The fact
remains, however, that said penal provision is fundamentally
incompatible with the Constitution, in that those liable for treason
thereunder should owe allegiance to the United States or the
government of the Philippines, the latter being, as we have already
pointed out, a mere instrumentality of the former, whereas under the
Constitution of the present Republic, the citizens of the Philippines do
not and are not required to owe allegiance to the United States. To
contend that article 114 must be deemed to have been modified in
the sense that allegiance to the United States is deleted, and, as thus
modified, should be applied to prior acts, would be to sanction the
enactment and application of an ex post facto law.
In reply to the contention of the respondent that the Supreme Court of
the United States has held in the case of Bradford vs. Chase National
Bank (24 Fed. Supp., 38), that the Philippines had a sovereign status,
though with restrictions, it is sufficient to state that said case must be
taken in the light of a subsequent decision of the same court in
Cincinnati Soap Co. vs. United States (301 U.S., 308), rendered in
May, 1937, wherein it was affirmed that the sovereignty of the United
States over the Philippines had not been withdrawn, with the result
that the earlier case only be interpreted to refer to the exercise of
sovereignty by the Philippines as delegated by the mother country,
the United States.
No conclusiveness may be conceded to the statement of President
Roosevelt on August 12, 1943, that "the United States in practice
regards the Philippines as having now the status as a government of

other independent nations--in fact all the attributes of complete and

respected nationhood," since said statement was not meant as
having accelerated the date, much less as a formal proclamation of,
the Philippine Independence as contemplated in the TydingsMcDuffie Law, it appearing that (1) no less also than the President of
the United States had to issue the proclamation of July 4, 1946,
withdrawing the sovereignty of the United States and recognizing
Philippine Independence; (2) it was General MacArthur, and not
President Osmea who was with him, that proclaimed on October 23,
1944, the restoration of the Commonwealth Government; (3) the
Philippines was not given official participation in the signing of the
Japanese surrender; (4) the United States Congress, and not the
Commonwealth Government, extended the tenure of office of the
President and Vice-President of the Philippines.
The suggestion that as treason may be committed against the
Federal as well as against the State Government, in the same way
treason may have been committed against the sovereignty of the
United States as well as against the sovereignty of the Philippine
Commonwealth, is immaterial because, as we have already
explained, treason against either is not and cannot be treason against
the new and different sovereignty of the Republic of the Philippines.
SC:

EN BANC
G.R. No. L-200 March 28, 1946
ANASTACIO LAUREL, Petitioner, vs. ERIBERTO MISA, as Director
of Prisons,Respondent.

Sulpicio V. Cea for petitioner.

First Assistant Solicitor General Reyes and Solicitor Hernandez, Jr.
for respondent.
Arturo A. Alafriz as amicus curiae.
BENGZON, J.:
Anastacio Laurel demands his release form Bilibid Prison, mainly
asserting that Commonwealth Act No. 682, creating the People's
Court, specially section 19, under which he is detained as a political
prisoner, is unconstitutional and void. The Solicitor General, meeting
the issue, sustains the validity of the whole
law.chanroblesvirtualawlibrary chanrobles virtual law library
According to the pleadings, the petitioner, a Filipino citizen, was
arrested in Camarines Sur in May, 1945, by the United States Army,
and was interned, under a commitment order "for his active
collaboration with the Japanese during the Japanese occupation," but
in September, 1945, he was turned over to the Commonwealth
Government, and since then has been under the custody of the
respondent Director of Prisons.chanroblesvirtualawlibrary chanrobles
virtual law library
The legality of the prisoner's arrest and detention by the military
authorities of the United States is now beyond question. 1 His present
incarceration, which is merely continuation of his previous
apprehension, has lasted "more than six hours" counted from his
delivery to the respondent; but section 19 of Commonwealth Act No.
682 provides in part as follows:
Upon delivery by the Commander-in-Chief of the Armed Forces of the
United States in the Philippines of the persons detained by him as
political prisoners, to the Commonwealth Government, the Office of
Special Prosecutors shall receive all records, documents, exhibits,
and such other things as the Government of the United States may
have turned over in connection with and/or affecting said political
prisoners, examine the aforesaid records, documents, exhibits, etc.,
and take, as speedily as possible, such action as maybe
proper: Provided, however, . . .. And, provided, further, That, in the
interest of public security, the provisions of article one hundred

twenty-five of the Revised Penal Code, as amended, shall be

deemed, as they are hereby, suspended, insofar as the aforesaid
political prisoners are concerned, until the filing of the corresponding
information with the People's Court, but the period of suspension
shall not be more than six (6) months from the formal delivery of said
political prisoners by the Commander-in-Chief of the Armed Forces of
the United States in the Philippines to the Commonwealth
Government.
In view of the provision, and the statement of the Solicitor General
that even on the date the petition was presented his office had, ready
for filing, an information charging herein petitioner with treason, we
fail to see how petitioner's release may now be
decreed.chanroblesvirtualawlibrary chanrobles virtual law library
However, he contends that the aforesaid section violates our
Constitution, because it is (a) discriminatory in nature; (b) unlawful
delegation of legislative powers; and (c) retroactive in
operation.chanroblesvirtualawlibrary chanrobles virtual law library
(a) It is first argued that the suspension is not general in application, it
being made operative only to "the political prisoners concerned," that
other citizens are not denied the six-hour limitation in article 125 of
the Revised Penal Code, that such discrimination is unexcusable and
amounts to denial of the equal protection of the
laws.chanroblesvirtualawlibrary chanrobles virtual law library
It is accepted doctrine in constitutional law that the "equal protection"
clause does not prevent the Legislature from establishing classes of
individuals or objects upon which different rules shall operate - so
long as the classification is not unreasonable. 2 Instances of valid
classification are numerous. The point to be determined then, is
whether the differentiation in the case of the political prisoner is
unreasonable or arbitrary.chanroblesvirtualawlibrary chanrobles
virtual law library
One of the proclamations issued by General MacArthur upon his
arrival in Leyte (December 29, 1944) referred to those Filipino
citizens who had voluntarily given aid, comfort and sustenance to the
Japanese. It announced his purpose to to hold them in restraint for

the duration of the war, "whereafter they shall be turned over to the
Philippine Government for its judgment upon their respective cases."
When active hostilities with Japan terminated, General MacArthur
ordered the delivery of the Commonwealth of all the prisoners
theretofore taken under his said proclamation. There was 6,000 in
round numbers. The problem problem was momentous and urgent.
Criminal informations against all, or a majority, or even a substantial
number of them could not be properly filed in the six-hour period.
They could not obviously be turned loose, considering the conditions
of peace and order, and the safety of the prisoners themselves. So
the President, by virtue of his emergency powers, promulgated
Executive Order No. 65 suspending article 125 of the Revised Penal
Code, for not more than thirty days, with regard to said detainees or
internees, having found such suspension necessary to "enable the
Government to fulfill its responsibilities and to adopt temporary
measures in relation with their custody and the investigation,
prosecution and disposal of their respective cases." The Order added
that it shall be in force and effect until the Congress shall provide
otherwise. Congress later approved Commonwealth Act. No. 682,
establishing the People's Court and the Office of Special Prosecutors
for the prosecution and trial of crimes against national security
committed during the second World War. It found the thirty-day period
too short compared with the facilities available to the prosecution, and
set the limit at six months.chanroblesvirtualawlibrarychanrobles
virtual law library
Considering the circumstances, we are not prepared to hold the
extension of the period for the political detainees was unreasonable.
The Legislature chose to give the prosecutor's office sufficient time to
investigate and to file the proper charge - or to discharge those whom
it may find innocent. If time had not been granted, the prosecutor
would perhaps have been forced to indict all the detainees
indiscriminately; reserving, of course, its right subsequently to request
the liberation of those it may think not guilty. But such wholesale
indictment was obviously neither practical nor desirable. We will allow
that there may be some dispute as to the wisdom or adequacy of the
extension. Yet the point is primarily for the Legislature to decide. The
only issue is the power to promulgate special rules for the custody
and investigation of active collaborationists, and so long as reasons

exist in support of the legislative action courts should be careful not to

deny it.chanroblesvirtualawlibrary chanrobles virtual law library
In this connection, it must be stated there can really be no substantial
ground to assail the six-month extension, in view of the provisions
authorizing the release under bail. Article 125 of the Revised Penal
Code was intended to prevent any abuse resulting from confining a
person without informing him of his offense and without permitting
him to go on bail. Commonwealth Act No. 682 gives no occasion to
such abuse. The political prisoners know, or ought to know, they are
being kept for crimes against national security. And they are generally
permitted to furnish bail bonds.chanroblesvirtualawlibrary chanrobles
virtual law library
(b) There is hardly any merit to the argument that as "the duration of
the suspension of article 125 is placed in the hands of the Special
Prosecutor's Office," the section constitutes an invalid delegation of
legislative powers; for as explained by the Solicitor-General, the
result - some informations filed before, others afterwards - is merely
the "consequence of the fact that six thousand informations could not
be filed simultaneously, and that some one had to be first or some
one else, necessarily the last." The law, in effect, permitted the
Solicitor-General to file the informations within six months. And
statutes permitting officers to perform their duties within certain
periods of time may not surely be declared invalid delegations of
legislative power.chanroblesvirtualawlibrary chanrobles virtual law
library
(c) Nor is the position correct that section 19 is retroactive in its
operation. It refers to detention after its passage - not before.
Incidentally, there is no constitutional objection to retroactive statutes
where they relate, to remedies or procedure. 3 chanrobles virtual law
library
The argument is advanced that when he was arrested, (May, 1945),
article 125 of the Revised Penal Code was in force, and petitioner
could have asked for release after six hours and, therefore,
Commonwealth Act No. 682 that takes away that right is ex post
facto, retroactive and fundamentally objectionable. The premises are
incorrect. In May, 1945, he could not have asked for release after six

hours. In other words, he would not have been discharged from the
custody. (Raquiza vs. Branford, supra.) Article 125 of the Revised
Penal Code was in force, it is true; but not as to him. The laws of the
Commonwealth were revived in Camarines Sur by operation of
General MacArthur's proclamation of October 23, 1944, upon its
liberation from enemy control; but subject to his reservation to hold
active collaborationists in restraint "for the duration of the war." So,
persons apprehended under that directive, for treasonable
collaboration, could not necessarily invoke the benefits of article 125
of the Revised Penal Code.chanroblesvirtualawlibrary chanrobles
virtual law library
Undoubtedly the Legislature could validly repeal section 125 of the
Revised Penal Code. Had it done so, herein petitioner would have no
ground to protest on constitutional principles, as he could claim no
vested right to the continued enforcement of said section. 4 Therefore,
a fortiori he may not complain, if, instead of repealing that section, our
lawmaking body merely suspended its operation for a definite period
of time. Should he counter that such repeal or suspension must be
general to be valid, he will be referred to the preceding considerations
regarding classification and the equal protection of the
laws.chanroblesvirtualawlibrary chanrobles virtual law library
Wherefore, we perceive no irreconcilable conflict between the
Constitution and the challenged portions of section 19 of
Commonwealth Act No. 682.chanroblesvirtualawlibrary chanrobles
virtual law library
The other features of the People's Court Act which are the subject of
denunciation by petitioner do not, in our opinion, require specific
elucidation at this time, because he has not as yet been held into that
court, and the issues appear to have no important or necessary
connection with his current deprivation of liberty. 5 chanrobles virtual
law library
The petition for the writ of habeas corpus will be denied. With
costs.chanroblesvirtualawlibrary chanrobles virtual law library
Moran, C.J., Jaranilla, Feria, De Joya, Pablo, Hilado, and Briones,
JJ., concur.

Separate Opinionschanrobles virtual law library

OZAETA, J., with whom Paras, J., concurring in the
result:chanrobles virtual law library
I concur with the majority in upholding the constitutionality of section
19 of the People's Court Act. In the view I held in the Raquiza case
the detention of the petitioner by the military authorities was illegal for
lack of due process. But the same thing cannot be said as to his
present detention by the respondent Director of Prisons, especially
now that an information for treason has been filed against him.

PERFECTO, J., dissenting:chanrobles virtual law library

On or about May 6, 1945, petitioner was arrested by the C.I.C.,
United States Army, Camarines Sur. On September 6, 1945 he was
turned over to the Commonwealth Government by the United States
Army and since that date he remained in prison under the personal
custody of the respondent Director of Prisons, and now he comes
before us complaining that his arrest and detention are illegal and in
violation of many of his constitutional rights, in that: "(a) He was
arrested and detained without a lawful warrant of arrest.
(See Constitution, Article III, section 3.) (b) No information or charge
has been lodged against him, informing him of the nature and cause
of his arrest. (See Constitution, Article III, section 17.) (c) He was not
given an opportunity to confront the witnesses who caused his arrest
and detention. (See Constitution, Article III, section 17.) (d) He was
not accorded the benefit of compulsory process to secure the
attendance of witnesses in his behalf. (See Constitution, Article III,
section 17.) (e) He was and is being denied the right to a prompt,
speedy and public trial. (See Constitution, Article III, section 17.) (f)
His arrest and detention was and is without due process of law.
(See Constitution, Article III, section 15.) (g) He was not accorded the
equal protection of the laws. (See Constitution, Article III, section 1.)
(h) He was subjected to cruel and unusual punishment.

(SeeConstitution, Article III, section 19.) (i) He was committed to

prison and detained by the respondent under a bill of attainder.
(See Constitution, Article III, section 11.)"chanrobles virtual law library
Petitioner also maintains that the People's Court Act No. 682, under
which the respondent herein purports to act, violates not only the
spirit but also the letter of the fundamental law in many ways, in that:
"(a) It constitutes an assault upon the independence of the judiciary.
(See Tydings-McDuffie Law, section 2, par. [a].) (b) It deprives the
accused of certain rights already acquired at the time of its passage,
and therefore is ex-post facto in nature (See Constitution, Article III,
section 11.) (c) It partakes of the nature of a bill of attainder.
(See Constitution, Article III, section 11.) (d) It denies the equal
protection of the laws. (See Constitution, Article III, section 1.) (e) It
provides for cruel and unusual punishment. (See Constitution, Article
III, section 19.) (f) It deprives the citizen of his day in court.
(See Constitution, Article III, section 21.) (g) It constitutes an unlawful
delegation of legislative and executive functions. (See TydingsMcDuffie Law, section 2, par. [a].) (h) It covers more than one subject
matter. (See Constitution, Article IV, section 12, par. 1.) (i) It
authorizes the charging and multifarious crimes in one complaint or
information thereby making it impossible to be informed to the real
nature and cause of the accusation against the accused.
(See Constitution, Article III, section 17.) (j) It denies the constitutional
right of a person to bail before conviction. (See Constitution, Article
III, section 16.)"chanrobles virtual law library
Consequently, petitioner prays that Commonwealth Act No. 682 be
declared unconstitutional and null and void, that his detention,
irrespective of the validity of said act, be declared illegal and in
violation of many of his constitutional rights, and that an order be
issued for his complete and absolute
release.chanroblesvirtualawlibrary chanrobles virtual law library
Respondent answered that, pursuant to the authority of the
proclamation issued by the Commander in Chief of the American
Armed Forces, Southwest Pacific Area, General Douglas MacArthur,
dated December 29, 1944, petitioner was arrested and thereafter
detained on May 10, 1945, under a security commitment order,
issued by the commanding officer of 904th Counter Intelligence

Corps Detachment, United States Army, upon the charge of "active

collaboration with the Japanese during the Japanese occupation";
that his subsequent detention as a political prisoner, upon the transfer
of his person to the Commonwealth Government by the United States
Army, pursuant to the terms of the proclamation issued by General
Douglas MacArthur on December 29, 1944, of Executive Order No.
65, issued by the President of the Philippines on September 3, 1945,
and pursuant to the provisions of Commonwealth Act No. 682,
approved on September 25, 1945, was a mere logical sequence of
his previous commitment and hence equally valid and
legal.chanroblesvirtualawlibrary chanrobles virtual law library
Respondent alleges also that petitioner has not as yet availed of the
benefits of section 19 of Commonwealth Act No. 682, which confers
upon political prisoners the privilege of securing their release on bail
upon proper application therefor with the People's Court; that
Commonwealth Act No. 682 does not trench upon, nor contravene
any of the provisions of the Constitution; that it is not ex post facto in
nature in that it suspends, in the interests of national security, the
provision of article 125 of the Revised Penal Code for a period of not
more than six months, which is fully justified by the practical
necessities of the situation, considering the circumstances that there
are more than 6,000 political prisoners charged with the grave crime
of treason and other offenses against national security; that said law
does not materially impair the substantial rights of the accused to
have the question of his guilt determined according to the substantive
law existing at the time of the commission of the offense, that it is not
a bill of attainder, since it does not inflict punishment without a judicial
trial; that it neither deprives the citizen of his day in court, nor it
provides for cruel and unusual punishment; that it applies equally and
uniformly to all persons similarly situated; that it complies with the
constitutional requisites of due process of law as applied in criminal
procedure; that it does not contravene the constitutional requirement
that the accused must be informed of the nature of the accusation
against him; that instead of suppressing or denying the constitutional
right of an accused to bail before conviction, said act recognizes and
concedes to all accused in section 19 the right to bail, except those
charged with capital offenses when evidence of guilt is strong; that
the information against the petitioner, charging him with treason upon
ten counts was ready for filing in the People's Court even on the date

the petition in this proceeding was presented; and that in due

deference to this Supreme Court, the filing of the said information has
been held in abeyance pending the final disposition of this habeas
corpus proceeding.chanroblesvirtualawlibrary chanrobles virtual law
library
For purposes of this discussion, the discrepancy between petitioner
and respondent as to the correct date when petitioner was arrested,
May 6 or May 10, cannot affect the merits of the
case.chanroblesvirtualawlibrary chanrobles virtual law library
Without a lawful warrant of arrest. - Whether the arrest took place on
May 6, 1945, as alleged by petitioner or on May 10, as alleged by
respondent, there is absolutely no question that petitioner was
arrested without lawful warrant of
arrest.chanroblesvirtualawlibrary chanrobles virtual law library
Section 1:3 of Article III of the Constitution provides that "no warrants
shall issue but upon probable cause, to be determined by the judge
after examination under oath or affirmation of the complaint and the
witnesses he may produce, and particularly describing the place to be
searched, and the persons or things to be seized." This provision,
considered in connection with the provision of section 1:1 of article III
of the Constitution and section 1:15 of the same article that no person
shall be deprived of liberty or be held to answer for a criminal offense
without due process of law, implies necessarily that one of the
essential requisites for depriving a person of his liberty, when he is
accused of an offense, is the existence of a warrant of arrest issued
in accordance with the provisions of the
Constitution.chanroblesvirtualawlibrary chanrobles virtual law library
We are of opinion that the arrest of petitioner was executed in flagrant
violation of the above-mentioned constitutional
provisions.chanroblesvirtualawlibrary chanrobles virtual law library
No information as to any charge. - The Constitution provides that one
of the fundamental rights of an accused is "to be informed of the
nature and cause of the accusation against him." (Section 1:17,
Article III of the Constitution.)chanrobles virtual law library

This constitutional guarantee appears equally to have been violated

in petitioner's case.chanroblesvirtualawlibrarychanrobles virtual law
library
Respondent's allegation that petitioner is detained because of his
active collaboration with the Japanese during the Japanese
occupation does not inform petitioner of the nature and cause of the
accusation against him, it appearing that there is no such offense
described in any law applicable to petitioner as "active collaboration
with the Japanese during the Japanese regime."chanrobles virtual
law library
Meeting witnesses face to face. - Petitioner complains that he was
not given an opportunity to confront his witnesses who caused his
arrest detention.chanroblesvirtualawlibrary chanrobles virtual law
library
The complaint is equally well-taken. There is nothing in the record to
show that before, during, or at any time after his arrest, petitioner has
ever been accorded the opportunity of meeting the witnesses "face to
face" as provided in section 1:17 of Article III of the
Constitution.chanroblesvirtualawlibrary chanrobles virtual law library
Attendance of witnesses in his behalf. - Petitioner complains he was
not accorded of the benefit of compulsory process to secure the
attendance of the witnesses in his behalf as provided in section 1:17
of Article III of the Constitution. This allegation has not been
disputed.chanroblesvirtualawlibrary chanrobles virtual law library
We have, therefore, here another flagrant violation of a constitutional
right of petitioner.chanroblesvirtualawlibrarychanrobles virtual law
library
Speedy and public trial. - Petitioner invokes also his constitutional
right to "have a speedy and public trial" as provided in section 1:17 of
Article III of the Constitution.chanroblesvirtualawlibrary chanrobles
virtual law library
There is absolutely no question that this constitutional right of
petitioner has been equally
violated.chanroblesvirtualawlibrary chanrobles virtual law library

Equal protection of the laws. - Petitioner complains that he was not

accorded equal protection of the laws as provided in section 1:1 of
Article III of the Constitution.chanroblesvirtualawlibrary chanrobles
virtual law library
Petitioner's allegation is equally well-founded, there being no
question as to the fact that he was and he is being deprived of
several of his fundamental rights under the Constitution without any
legal process.chanroblesvirtualawlibrary chanrobles virtual law library
Cruel and unusual punishment. - Petitioner complains that he was
subjected to cruel and unusual punishment in violation of section 1:19
of Article III of the Constitution.chanroblesvirtualawlibrary chanrobles
virtual law library
There is no question that petitioner is being deprived of his liberty
without any information or complaint charging him of any specified
offense under the laws of the
land.chanroblesvirtualawlibrary chanrobles virtual law library
So it appears that he is being, in effect, subjected to the punishment
of deprivation of liberty for almost one year, without any definite
information as to when will it end. This means that he is being
subjected to imprisonment for an indefinite term. It is certainly a cruel
and unusual punishment, not only because it is not authorized by any
law of the land, but because it is meted out to petitioner for no
specific offense at all. The violation of section 1:19 of Article III of the
Constitution is indispensable.chanroblesvirtualawlibrary chanrobles
virtual law library
Petitioner complains that those responsible for his detention appear
to have never heard of such trifles as those contained in the Bill of
Rights and even if they did, they contend that the Constitution was
never meant for the "untouchables" known in the contemporary
Philippine history as a "collaborators," and that no one can imagine a
more glaring case for the granting of a writ of habeas corpus than that
of the petitioner, it appearing that the circumstances of his arrest are
self-demonstrative of the most scandalous violation of the Bill of
Rights ever perpetrated under the American
flag.chanroblesvirtualawlibrary chanrobles virtual law library

Petitioner, as has been shown, appears well supported in his

complaint.chanroblesvirtualawlibrary chanrobles virtual law library
Now, as one of the questions raised in this case, let us determine the
validity of that portion of section 19 of Commonwealth Act No. 682, an
act creating the People's Court, which provides as follows:
. . . And, provided, further, That, in the interest of public security, the
provisions of article one hundred twenty-five of the Revised Penal
Code, as amended, shall be deemed, as they are hereby, suspended,
insofar as the aforesaid political prisoners are concerned, until the
filing of the corresponding information with the People's Court, but the
period of suspension shall not be more than six (6) months from the
formal delivery of said political prisoners by the Commander-in-Chief
of the Armed Forces of the United States in the Philippines to the
Commonwealth Government.
The provision of the Revised Penal Code which has been virtually
suspended by this law is:
ART. 125. Delay in the delivery of detained persons to the proper
judicial authorities. - The penalties provided in the next preceding
article shall be imposed upon the public officer or employee who shall
detain any person for some legal ground and shall fail to deliver such
person to the proper judicial authorities within the period of six hours.
(As amended by Act No. 3940.)
The pertinent provisions of our fundamental law which limit the
powers of the legislative branch of our government in the enactment
of laws are as follows:
ART. III. - BILL OF RIGHTS
SECTION 1. (1) 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.
xxx

xxx

x x xchanrobles virtual law library

(15) No person shall be held to answer for a criminal offense without

due process of law.

xxx

xxx

x x xchanrobles virtual law library

(17) 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.chanroblesvirtualawlibrary chanrobles virtual law library
Development of the Doctrine of Due Process of Law.
Though the words "due process of law" have not a long history, the
doctrine implied by them has a history in Anglo-American law which
extends for more than seven hundred years - back, indeed, to the
signing of Magna Charta. And yet, notwithstanding this long period
during which countless opportunities have presented themselves for
its application and judicial definition, the doctrine has not yet received
a statement in such a form that its specific applications can, in all
cases, be determined. This failure has been due, not to any lack of
judicial effort or acumen, but to the very nature of the doctrine which,
asserting a fundamental principle of justice rather than a specific rule
of law, is not susceptible of more than general statement. The result
is, that the meaning of the phrase has to be sought in the history of its
specific applications, and, as the variety of these possible
applications is infinite, it will probably never be possible to say that
the full content of that meaning has been determined. In
Twining vs.New Jersey (211 U.S., 78), we find the court saying: "Few
phrases in the law are so elusive of exact apprehension as this. This
court has always declined to give a comprehensive definition of it,
and has preferred that its full meaning should be gradually
ascertained by the process of inclusion and exclusion in the course of
the decisions of cases as they arise." So also in Davidson vs. New
Orleans (96 U.S., 97), the court said: "to define what it is for a state to
deprive a person of life, liberty or property without due process of law,
in terms which would cover every exercise of power thus forbidden to
the state, and exclude those which are not, no more useful
construction could be furnished by this or any other court to any part
of the fundamental law." And, later in the same opinion: "There is
wisdom in the ascertaining of the intent and application of such an

important phrase in the Federal Constitution by the gradual process

of judicial inclusion and exclusion as the cases presented for decision
shall require, with the reasoning on which such discussions may be
founded."chanrobles virtual law library
In Holden vs. Hardy (169 U.S., 366) the court said: "This court has
never attempted to define with precision the words "due process of
law." It is sufficient to say that there are certain immutable principles
of justice which inhere in the very idea of free government which no
member of the Union may disregard."chanrobles virtual law library
It would appear, then, that a complete knowledge of the meaning of
the doctrine of due process of law in American constitutional
jurisprudence can be obtained only by a study of every case in which
its application has been
sought. . . .chanroblesvirtualawlibrary chanrobles virtual law library
Per Legem Terrae.
The historical antecedents of the phrase "due process of law" may be
clearly traced back to the expression per legem terrae as it occurs in
the Charter wrung by the Barons from King John. The 39th chapter of
that document provides that "no freeman shall be taken, or
imprisoned, or disseized, or outlawed, or exiled, or in any way
destroyed; nor shall we go upon him nor send upon him, but by the
lawful judgment of his peers or by the law of the land" (per legem
terrae). In the later re-issues and reaffirmations of this charter by
Henry III, in 1216, 1217 and 1225, this provision was repeated, with,
however, in the issues of 1217 and 1225, the addition of the words
after disseized, "of his freehold, or liberties, or free customs," (de
libera tenemento suo vel libertatibus, vel liberis consuetudinibus
suis).chanroblesvirtualawlibrary chanrobles virtual law library
The words of Magna Charta, per legem terrae, probably had at this
time the technical meaning that no civil or criminal plea should be
decided against a freeman until he had been given the opportunity to
furnish the customary "proof" which the law, as it then stood,
recognized and permitted him to offer. This proof might be by battle,
or ordeal, or by compurgation. Whatever form it might assume it was
technically known as a law (lex), that is, as a test according to which

the defendant's claim was to be upheld or denied.

(McKechnie, Magna Charta, 102, 441, 442; Thayer, Evidence, 200;
Bigelow, History of Procedure,155. Thayer and Bigelow are cited by
McKechnie.)chanrobles virtual law library
In the various petitions of the Parliament in the Fourteenth Century
against the arbitrary acts of the King's Council, the guaranty of the
law of the land was appealed to, and these petitions, when assented
to by the King, became, of course, statutes of the realm. Thus, in
1331, in Stat. 5 Edw. III, C. 9, it was declared that "no man from
henceforth shall be attacked by any accusation, nor forejudged of life
or limb, nor his lands, tenements, goods nor chattels seized into the
King's hands against the form of the Great Charter and the law of the
land." So again, in 1351, in Stat. 25, Edw. III, C. 4, it was declared
that "from henceforth none shall be taken by petition or suggestion
made to our lord the King or his Council, unless it be by presentment
or indictment of his good and lawful people of the same
neighborhood, where such deeds be done, in due manner, or by
process made by writ original at the common law, nor that none be
ousted of his franchises, nor of his household, unless he be fully
brought in to answer and forejudged of the same by the courts of the
law." Still again, in 1355, in Stat. 28, Edw. III, C. 3, there was a
substantially similar provision, and there, for what would appear to be
the first time, we have the modern phrase employed. "No man," it
was declared, "of what state or condition so ever he be, shall be put
out of his lands, or tenements, nor taken, nor imprisoned, nor
indicted, nor put to death, without he be brought in to answer by due
process of law." (Par due process de lei.) (Cf. McGehee, Due
Process of Law, Chap. I.) chanrobles virtual law library
It is thus apparent that in these petitions and statutes of Edward III,
the phrases "due process of law" and "the law of the land" had come
to be synonymous, both indicating, as the substance of the petitions
shows, that the guaranty insisted upon was that persons should not
be imprisoned except upon due indictment, or without an opportunity
on their parts to test the legality of their arrest and detention, and that
their property should not be taken except in proceedings conducted in
due form in which fair opportunity was offered to the one claiming
ownership or right to possession to appear and show cause, if any,

why the seizure should not be

made.chanroblesvirtualawlibrary chanrobles virtual law library
The Petition of Right of 1628, approved by Charles I, recited various
arbitrary acts complained of, and appealed to "the laws and
franchises of the realm." Coke, in his Second Institute, defined the
phrase per legem terrae as meaning "the common law, statute law or
custom of England," and then declared: "For the true sense and
exposition of these words, see the Statute 37, Edw. III, C. 8, where
the words "by the law of the land" are rendered "without due process
of law", for there it is said, though it be contained in the Great
Charter, that no man be taken, imprisoned, or put out of his freehold
without due process of law; that is by indictment or presentment of
good and lawful men where such deeds be done or by writ original of
the common law.chanroblesvirtualawlibrary chanrobles virtual law
library
It was in this sense as employed in the statutes of Edward III and by
Coke, and as relating solely to matters of procedure, that the phrase
due process of law was introduced into, American law. (3 Willoughby
on the Constitution of the United States, 2d ed., sections 1113, 1114,
pp. 1685, 1688,)chanrobles virtual law library
English and American Use of the Phrase "Due Process of Law"
Contrasted.
Coming now to American practice we find that the exact phrase "due
process of law" was not employed in any of the eleven State
constitutions adopted prior to the Federal Constitution, but that it early
found expression in substance, if not in very words, in those
instruments. The very words do, however, appear in the Declaration
of Rights of the State of New York, adopted in 1777, and in one of the
amendments proposed by that State to the Federal Constitution as
drafted by the convention of 1787. The first appearance of the
express provision in an American instrument of government is in the
Fifth Article of Amendment to the Constitution of the United States,
adopted in 1791. That amendment provides,inter alia, that "nor shall
any person . . . be deprived of life, liberty or property, without due
process of law." The Federal imposition of this requirement upon the

States did not come until 1868 when the Fourteenth Amendment was
ratified.chanroblesvirtualawlibrarychanrobles virtual law library
It is a very remarkable fact that not until our written Constitution was
more than half a century old did the phrase receive an interpretation
and application which approximates that which it has today, and not,
indeed, until a hundred years had passed away was resort had to it
as the usual device of those disapproving of the acts of their
legislatures. This, however, is no doubt in a measure explainable by
the fact that not until the increased complexity of social and industrial
life had led, upon the one hand, to the use by the State and Federal
Governments of administrative process more or less summary in
character and, upon the other hand, to a marked increase in the
regulative control of law over private acts and the use of public
property, did there appear the necessity for the appeal to this
limitation by those who conceived themselves injured by the exercise
of such administrative powers or by the enforcement of these
legislative regulations.chanroblesvirtualawlibrary chanrobles virtual
law library
In two most important respects the application in America of the
requirement of due process of law has differed from that which it had
received in England prior to 1776, and which, indeed, it still receives
in that country. These are: (1) that, in the United States, it operates as
a limitation upon the legislative as well as upon the executive branch
of the government, and (2) that it relates to substantive as well as to
procedural rights. This second application is, however, one which, as
we shall see, was not at first
developed.chanroblesvirtualawlibrary chanrobles virtual law library
Before the requirement could be recognized as one upon the
legislature there had first to be established the doctrine that the
courts, when called upon to apply the enactments of the lawmaking
branch of the government of which they themselves constitute the
judiciary, may declare the invalidity of enactments which, in their
judgment, conflict with the provisions of the written Constitution. This
doctrine, as is well known, was not accepted without protest, but may
be said to have received final and decisive sanction as a fundamental
principle of American constitutional jurisprudence in the great opinion

of Marshall, rendered in 1803, in the case of Marbury vs. Madison (1

Cr., 137).chanroblesvirtualawlibrary chanrobles virtual law library
That, as contrasted with English practice, the requirement of due
process of law was a limitation upon the legislative power, so far, at
least, as to render void an enactment authorizing a taking of life,
liberty or property by an arbitrary or otherwise defective procedure,
seems early to have been held, the argument being founded upon the
obvious fact that, as contrasted with the English constitutional
documents, American written instruments of government and their
accompanying Bills of Rights have for their primary aim the
delimitation of the powers of all the departments of government, - of
the legislative as well as the executive and judicial. (3 Willoughby, 2d
ed., section 1115, pp. 1689, 1690.)chanrobles virtual law library
The possibility, under a popular form of government, of oppression in
the form of laws enacted by their own representatives, does not
appear to have been keenly felt by the people. So far, however, as it
was apprehended, the early view seems to have been that the
restraints of natural law would be operative, according to the doctrine
that the law-making branch of every government is inherently without
the power arbitrarily and oppressively to invade the sphere of private
rights of persons and property. This natural law doctrine, though it
can never be said to have gained a definite establishment, even for a
time, nevertheless received frequent obiter assertion, and its
influence was for a long time seen in discussions of our higher courts.
Thus, for example, in 1875, in Loan Associationvs. Topeka the court
said: "It must be conceded that there are such rights in every free
government beyond the control of the state, - a government which
recognized no such rights, which held the lives, the liberty and the
property of its citizens subject at all times to the absolute disposition
and unlimited control of even the most democratic depository of
power is, after all, but a despotism .. The theory of our governments,
state and municipal, is opposed to the deposit of unlimited power
anywhere. The executive, the legislative and the judicial branches of
these governments are all of limited and defined powers. There are
limitations on such power which grow out of the essential nature of all
free governments - implied reservations of individual rights, without
which the social compact could not exist, and which are respected by
all governments entitled to the name. No court, for instance, would

hesitate to declare void a statute which enacted that A And B who

were husband and wife to each other should be no longer, but that A
should thereafter be the husband of C, and B the wife of D, or which
should enact that the homestead now owned by A should henceforth
be the property of B." 3 Willoughby, United States Constitutional Law,
section 1116, pp. 1692, 1693.)chanrobles virtual law library
There are certain general principles, well settled, however, which
narrow the field of discussion, and may serve as helps to correct
conclusions. These principles grow out of the proposition universally
accepted by American courts on the authority of Coke, that the words
"due process of law" are equivalent in meaning to the words "law of
the land," contained in that chapter of Magna Charta which provides
that "no freeman shall be taken, or imprisoned, disseized, or
outlawed, or exiled, or any wise destroyed; nor shall we go upon him,
nor send upon him, but by lawful judgment of his peers, or by the law
of the land."chanrobles virtual law library
In Hagar vs. Reclamation Dist. it was said: "It is sufficient to say that
by due process of law is meant one which, following the forms of law,
is appropriate to the case and just to the parties to be affected. It
must be pursued in the ordinary mode prescribed by the law, it must
be adapted to the end to be attained, and whenever it is necessary
for the protection of the parties, it must give them an opportunity to be
heard respecting the justness of the judgment sought. The clause,
therefore, means that there can be no proceeding against life, liberty,
or property which may result in deprivation of either, without the
observance of those general rules established in our system of
jurisprudence for the security of private rights."chanrobles virtual law
library
"By the law of the land," said Webster in a much quoted paragraph,
"is most clearly intended the general law which hears before it
condemns; which proceeds upon inquiry and renders judgment only
after trial. The meaning is that every citizen shall hold his life, liberty
and property and immunities under the protection of general rules
which govern society. Everything which may pass under the form of
an enactment is not law of the land." (3 Willoughby, 2d ed., pp. 1708,
1709.)chanrobles virtual law library

The fact that the requirement as to due process includes, to a very

considerable extent at least, the guarantee of equal protection of the
laws, is especially shown in the opinion of the court in
Smyth vs. Ames where it is said: "The equal protection of the laws,
which by the Fourteenth Amendment no State can deny to the
individual, forbids legislation, in whatever form it may be enacted, by
which the property of an individual is, without compensation, wrested
from him for the benefit of another, or of the public."chanrobles virtual
law library
The possible distinction between the two prohibitions we find touched
upon by Chief Justice Taft in his opinion in Truax vs. Corrigan. He
there said: "It may be that they (the two prohibitions) overlap, that a
violation of one may involve at times the violation of the other, but the
spheres of the protection they offer are not conterminous. . . . The
due process clause . . . of course tends to secure equality of law in
the sense that it makes a required minimum of protection for
everyone's right of life, liberty, and property, which the Congress of
the legislature may not withhold. Our whole system of law is
predicated on the general fundamental principle of equality of
application of the law. . . . But the farmers and adopters of this
(Fourteenth) Amendment were not content to depend on a mere
minimum secured by the due process clause, or upon the spirit of
equality which might not be insisted on by local public opinion. They
therefore embodied that spirit in a specific guaranty. The guaranty
was aimed at undue favor and individual or class privilege, on the one
hand, and at hostile discrimination or the oppression of inequality, on
the other. It sought an equality of treatment of all persons, even
though all enjoyed the protection of due process." Thus, in the instant
case, the Chief Justice pointed out that the State statute under
examination which prohibited interference by injunctions in disputes
between employers and employees concerning terms or conditions of
employment resulted in the recognition of one set of actions against
ordinary tort feasors and another set against tort feasors in labor
disputes. The contention that no one has a vested right to injunctive
relief, he said, did not meet the objection that the granting of
equitable relief to one man or set of men, and denying it to others
under like circumstances and in the same jurisdiction was a denial of
the equal protection of the laws.chanroblesvirtualawlibrary chanrobles
virtual law library

In Hayes vs. Missouri the court said of the Fourteenth Amendment

that it "does not prohibit legislation which is limited either in the
objects to which it is directed or by the territory within which it is to
operate. It merely requires that all persons subject to such legislation
shall be treated alike, under like circumstances and conditions both in
the privileges conferred and in the liabilities imposed." Having quoted
this statement, Chief Justice Taft in Truax vs. Corrigan added:
"Indeed, protection is not protection unless it does so. Immunity
granted to a class, however limited, having the effect to deprive
another class, however limited, of a personal or property right, is just
clearly a denial of equal protection of the laws to the latter class as if
the immunity were in favor of, or the deprivation of right permitted
worked against, a larger class."chanrobles virtual law library
From what has been said it is clear that, in many cases, laws which
have been held invalid as denying due process of law might also
have been so held as denying equal protection of the laws, or vice
versa, and that, in fact, in not a few cases the courts have referred to
both prohibitions leaving it uncertain which prohibition was deemed
the most pertinent and potent in the premises. "One of the best
general statements of the scope and intent of the provision for the
equal protection of the laws is that given by Justice Field in his
opinion in Barbiervs. Connolly, in which, speaking for the court, he
said:chanrobles virtual law library
"The Fourteenth Amendment in declaring that no State "shall deprive
any person of life, liberty or property without due process of law, nor
deny to any person within its jurisdiction the equal protection of the
laws," undoubtedly intended, not only that there should be no
arbitrary deprivation of life or liberty or arbitrary spoliation of property
but that equal protection and security should be given to all under like
circumstances in the enjoyment of their personal and civil rights; that
all persons should be equally entitled to pursue their happiness and
acquire and enjoy property; that they should have like access to the
courts of the country for the protection of their persons and property,
the prevention and redress of wrongs, and the enforcement of
contracts; that no impediment should be interposed to the pursuits by
anyone except as applied to the same pursuits by others under like
circumstances; that no greater burdens should be laid upon one than
are laid upon others in the same calling and condition, and that in the

administration of criminal justice no different or higher punishment

should be imposed upon one that such as is prescribed to all for like
offenses." (3 Willoughby 2d ed., pp. 1928, 1930.)chanrobles virtual
law library
The legislature may suspend the operation of the general laws of the
State, but when it does so the suspension must be general, and
cannot be made for individual cases or for particular localities.
Privileges may be granted to particular individuals when by so doing
the rights of others are not interferred with; disabilities may be
removed; the legislature as parens patriae, when not forbidden, may
grant authority to the guardians or trustees of incompetent persons to
exercise a statutory control over their states for their assistance,
comfort, or support, or for the discharge of legal or equitable liens
upon their property; but every one has a right to demand that he be
governed by general rules, and a special statute which, without his
consent, singles his case out as one to be regulated by a different law
from that which is applied in all similar cases, would not be legitimate
legislation, but would be such an arbitrary mandate as is not within
the province of free governments. Those make the laws "are to
govern by promulgated, established laws, not to be varied in
particular cases, but to have one rule for rich and poor, for the favorite
at court and the countryman at plough." This is a maxim in
constitutional law, and by it we may test the authority and binding
force of legislative enactments. (Cooley's Constitutional Limitations,
7th ed., pp. 558, 559.)chanrobles virtual law library
Equality of rights, privileges, and capacities unquestionably should be
the aim of the law; and if special privileges are granted, or special
burdens or restrictions imposed in any case, it must be presumed that
the legislature designed to depart as little as possible from this
fundamental maxim of
government.chanroblesvirtualawlibrary chanrobles virtual law library
The State, it is to be presumed, has no favors to bestow, and designs
to inflict no arbitrary deprivation of rights. Special privileges are
always obnoxious, and discriminations against persons or classes are
still more so; and, as a rule of construction, it is to be presumed they
were probably not contemplated or designed. (Cooley's Constitutional
Limitations, 7th ed., pp. 562, 563.)chanrobles virtual law library

It is usual for state constitutions and statutes to provide for the

accused a speedy and public trial. By a speedy trial is meant one that
can be had as soon after indictment as the prosecution can with
reasonable diligence prepare for, regard being had to the terms of
court; a trial conducted according to fixed rules, regulations, and
proceedings of law, free from vexatious, capricious, and oppressive
delays. The term "speedy" as thus used, being a word of
indeterminate meaning, permits legislative definition to some extent;
and the authorities uniformly hold that such statutes are enacted for
the purpose of enforcing the constitutional right, and that they
constitute a legislative construction or definition of the constitutional
provision, and must be construed fairly to the accomplishment of that
end. Any act of the legislature which infringes the constitutional
provision is necessarily nugatory. (16 C. J., pp. 439, 440.)chanrobles
virtual law library
"The purpose of the statute (1) is to prevent continued incarceration
without opportunity to the accused, within a reasonable time, to meet
the proofs upon which the charge is based." (State vs. Miller, 72
Wash., 154, 159, 163; 129 P., 1140.) (2) "The constitutional privilege
of a speedy trial was intended to prevent an arbitrary, indefinite
imprisonment, without any opportunity to the accused to face his
accusers in a public trial. It was never intended as furnishing a
technical means for escaping trial." (State vs. Miller, supra.) (3) "The
sole object and purpose of all the laws from first to last, was to ensure
the speedy trial to the accused, and to guard against the a protracted
imprisonment or harrassment by a criminal prosecution, an object but
little if any less interesting to the public than to him."
(Com. vs. Adcock, 8 Grat. [49 Va.], 661, 680.) (Quote
Denham vs.Robinson, 72 W. Va. 243, 255; 77 S. E., 970; 45 L.R.A.,
N.S., 1123; Ann. Cas. 1915D, 997.) (See also Ex parte Santee (2 Va.
Cas. [4 Va.], 363, 365) (where the court said: that whilst it has an eye
to the solemn duty of protecting the public against the wrongs of
those who are regardless of their obligations to society, and to the
delays which the Commonwealth may unavoidably encounter in
prosecuting breaches of these obligations, it is studious to shield the
accused from consequences of the laches of those to whom the duty
of conducting the prosecution may have been assigned. The public
has rights as well as the accused, and one of the first of these is, that
of redressing, or punishing their wrongs. It would not seem

reasonable that this right, so necessary for the preservation of

society, should be forfeited without its
default).chanroblesvirtualawlibrary chanrobles virtual law library
"This provision of our constitutions must receive a reasonable
interpretation. It can not be held to mean that in all the possible
vicissitudes of human affairs, a person who is accused of a crime
shall have a speedy and public trial in due form of law, because there
may be times when the civil administration will be suspended by the
force of uncontrollable circumstances. This constitutional provision
was adopted upon general considerations growing out of the
experience of past times, and was intended to prevent the
government from oppressing the citizen by holding criminal
prosecutions suspended over him for an indefinite time; and it was
also intended to prevent delays in the customary administration of
justice, by imposing upon the judicial tribunals an obligation to
proceed with reasonable dispatch in the trial of criminal accusations."
(Ex parteTurman, 26 Tex., 708, 710; 84 Am. D., 598.). (16 C.J., 440,
footnote.)chanrobles virtual law library
In any criminal case, the person accused may not be deprived of life,
liberty, or property except by due process of law, even though he is
guilty. The law by which the question of due process is determined is
the law of the jurisdiction where the offense was committed and the
trial is had.chanroblesvirtualawlibrary chanrobles virtual law library
Due process of law in a criminal case requires a law creating or
defining the offense, a court of competent jurisdiction, accusation in
due form, notice and opportunity to defend, trial before an impartial
judge or judge and jury according to established criminal procedure,
and a right to be discharged unless found
guilty. . . .chanroblesvirtualawlibrary chanrobles virtual law library
While the freedom of the state and federal governments to control
and regulate the procedure of their courts for the prosecution of
criminal offenses is limited by the requirement of the process of law,
and the procedure must not work a denial of fundamental rights of
accused included within the conception of due process, no particular
form or method of procedure in criminal cases is required by the
guaranty of due process so long accused as accused has due and

sufficient notice of the charge or accusation and an adequate

opportunity to be heard in defense. (16 C.J.S., pp. 11711173.)chanrobles virtual law library
An emergency existing does not increase constitutional power or
diminish constitutional restrictions; hence while emergency legislation
may temporarily limit available remedies, it does not contemplate the
permanent denial of due process. (16 C.J. S., p. 1157.)chanrobles
virtual law library
Although a law is fair on its face and impartial in appearance, yet, if it
is applied and administered with an evil eye and unequal hand, so as
to make unjust and illegal discrimination, it is within the prohibition of
the Federal Constitution. (Chy Lung vs. Freeman, 92 U.S., 275; 23
Law, ed., 550.)chanrobles virtual law library
The action of a state through its officers charged with the
administration of a law fair in appearance may be of such a character
as to constitute a denial of the equal protection of the laws.
(Bailey vs. Alabama, 219 U.S., 219; 31 Sup. Ct. Rep., 145; 55 Law.
ed., 191.)chanrobles virtual law library
The clause "due process of law" means that there can be no
proceeding against life, liberty or property which may result in the
deprivation of either, without the observance of those general rules
established in our system of jurisprudence for the security of private
rights. (Turpin vs. Lemon, 187 U.S., 51; 23 Sup. Ct. Rep., 20; 47 Law.
ed., 70.)
CRIMINAL ACCUSATIONS
Perhaps the most important of the protections to personal liberty
consist in the mode of trial which is secured to every person accused
of crime. At the common law, accusations of felony were made in the
form of an indictment by a grand jury; and this process is still retained
in many of the States, while others have substituted in its stead an
information filed by the prosecuting officer of the State or country. The
mode of investigating the facts, however, is the same in all; and this
through a trial by jury, surrounded by certain safeguards which are a
well understood part of the system, and which the government cannot
dispense with.chanroblesvirtualawlibrary chanrobles virtual law library

First, we may mention that the humanity of our law always presumes
an accused party innocent until he is proved to be guilty. This is a
presumption which attends all the proceedings against him, from their
initiation until they result in a verdict, which either finds the party guilty
or converts the presumption of innocence into an adjudged
fact.chanroblesvirtualawlibrary chanrobles virtual law library
If there were any mode short of confinement which would, with
reasonable certainty, insure the attendance of the accused to answer
the accusation, it would not be justifiable to inflict upon him that
indignity, when the effect is to subject him, in a greater or less
degree, to the punishment of a guilty person, while as yet it is not
determined that he has committed any crime. If the punishment on
conviction cannot exceed in severity the forfeiture of a large sum of
money, then it is reasonable to suppose that such a sum of money, or
an agreement by responsible parties to pay it to the government in
case the accused should fail to appear, would be sufficient security
for his attendance; and therefore, at the common law, it was
customary to take security of this character in all cases of
misdemeanor; one or more friends of the accused undertaking for his
appearance for trial, and agreeing that a certain sum of money should
be levied of their goods and chattels, lands and tenements, if he
made default. . . . The presumption of innocence is an absolute
protection against conviction and punishment, except either, first on
confession in open court; or, second, on proof which places the guilt
beyond any reasonable doubt. Formerly, if a prisoner arraigned for
felony stood mute wilfully, and refused to plead, a terrible mode was
resorted to for the purpose of compelling him to do so; and this might
even end in his death; but a more merciful proceeding is now
substituted; the court entering a plea of not guilty for a party who, for
any reason, fails to plead for
himself.chanroblesvirtualawlibrary chanrobles virtual law library
Again, it is required that the trial be speedy; and here also the
injunction is addressed to the sense of justice and sound judgment of
the court. In this country, where officers are specially appointed or
elected to represent the people in these prosecutions, their position
gives them an immense power for oppression; and it is so to be
feared they do not always sufficiently appreciate the responsibility,
and wield the power with due regard to the legal rights and privileges

of the accused. When a person charged with crime is willing to

proceed at once to trial, no delay on the part of the prosecution is
reasonable, except only that which is necessary for proper
preparation and to secure the attendance of witnesses. Very much,
however, must be left to the judgment of the prosecuting officer in
these cases; and the court would not compel the government to
proceed to trial at the first term after indictment found or information
filed, if the officer who represents it should state, under the
responsibility of his official oath, that he was not and could not be
ready at that time. But further delay would not generally be allowed
without a more specific showing of the causes which prevent the
State proceeding to trial, including the names of the witnesses, the
steps taken to procure them, and the facts expected to be proved by
them, in order that the court might judge of the reasonableness of the
application, and that the prisoner, might, if he saw fit to take that
course, secure an immediate trial by admitting that the witnesses, if
present, would testify to the facts which the prosecution have claimed
could be proven by them. (Cooley's Constitutional Limitations, 7th
ed., pp. 436-441.)chanrobles virtual law library
Section 19 of our Bill of Rights provides that "no citizen of this state
shall be deprived of life, liberty, property, privileges or immunities, or
in any manner disfranchised, except by the due course of the law of
the land."chanrobles virtual law library
"Law of the land" is interpreted to mean a general public law,
operating equally upon every member of the community. (Re Jilz, 3
Mo. App., 246.)chanrobles virtual law library
"No state shall . . . deny to any person within its jurisdiction the equal
protection of the laws;" "nor shall any state deprive any person of life,
liberty, or property without due process of law." . . . U.S. Constitution,
section 1, article 14.chanroblesvirtualawlibrary chanrobles virtual law
library
Due process of law under the 14th Amendment and the equal
protection of the law are secured if the law operates on all alike and
does not subject the individual to the arbitrary exercise of the powers
of government. (Duncan vs.Missouri, 152 U.S., 382; 38 Law. ed. 487;

14 Sup. Ct. Rep., 570; Hurtado vs.California, 110 U.S., 535; 28 Law.
ed., 232; 4 Sup. Ct. Rep., 111, 292.)chanrobles virtual law library
Do laws operate equally upon the citizens of the Commonwealth of
Texas which will imprison under like verdicts one man for a month
and another for six months? Manifestly
not.chanroblesvirtualawlibrary chanrobles virtual law library
Section 3 of the Bill of Rights to the State Constitution provides: "All
freemen, when they form a social compact, have equal
rights."chanrobles virtual law library
A law which makes different punishments follow the same identical
criminal acts in the different political subdivisions of Texas violates
both our state and Federal Constitutions. It fails to accord equal rights
and equal protection of the law, and a conviction under it is not in due
course of the "law of the land." Re Jilz (3 Mo. App., 246); Re H.F.
Millon (16 Idaho, 737; 22 L.R.A. [N.S.], 1123; 102 Pac., 374), and
Jackson vs. State (55 Tex. Crim. Rep., 557; 117 S.W., 818), are cited
in support of our view in their
reasoning.chanroblesvirtualawlibrary chanrobles virtual law library
We think the principles announced in the case of Ex parte Jones (106
Tex. Crim. Rep., 185; 290 S.W., 177), apply in some degree to the
instant case. It was there held that article 793, Code Crim. Proc.,
superseded and controlled an ordinance of the city of Dallas which
allowed only 50 cents per day to be credited upon the fine of a
convict for labor performed. Provisions similar to those quoted in our
state constitution have been a part of Anglo-Saxon jurisprudence
since there was wrung from the unwilling hands of King John at
Runnymede in 1215 the Magna Charta, which itself provides that a
freeman shall not be passed upon or condemned but "by the lawful
judgment of his peers and the law of the land." "Law of the land" has
the same legal meaning as "due process of law," and one of its
accepted meanings is that quoted above. Re Jilz, 3 Mo. App., 243; 3
Words & Phrases, pp. 2227-2232. (Ex parte Sizemore, 59 A.L.R.,
Annotated, pp. 430, 432.)chanrobles virtual law library
And in Re Jilz ([1877]), 3 Mo. App., 243), an act of the legislature of
Missouri, which, by limiting the power of a court established in a

certain county to assess punishments, varied the penalties for crimes

committed therein from those fixed by the general law for the whole
state, was held to be unconstitutional in so far as it had that effect,
the court saying: "A law which should prescribe death as the
punishment of murder in one county, and imprisonment as the
penalty for the same crime in other parts of the state, would be void,
because not operating equally upon all inhabitants of the state. The
general law applicable to the state prescribes, as the punishment for
the offense for which the petitioner was convicted, imprisonment in
the county jail not exceeding one year, or fine not exceeding $500, or
both such fine imprisonment. . . . A law prescribing a different
punishment from this in St. Louis county is clearly unconstitutional. It
follows that so much of the act referred to, establishing the court of
criminal correction, as limits the punishment for this misdemeanor in
St. Louis county to imprisonment for six months, is void."chanrobles
virtual law library
So, in State vs. Buchardt (Mo.) supra, where the same legislative act
was in question, the court says: "Under our Constitution, it is not
permissible to punish the same offense or violation of some public or
general law by one species of punishment in one locality, and by a
different or more heavy punishment in other localities in the state. A
law inflicting such different penalties for the perpetration of any given
crime cannot bear the test of judicial examination."chanrobles virtual
law library
And, in State vs. Gregori ([1928], - Mo - , 2 S.W. [2d], 747), an act of
the legislature which made children seventeen years of age in
counties of 50,000 population or more subject to the juvenile court
act, while in counties of less than 50,000 population children
seventeen years of age were not subject to the juvenile court act, but
were subject to full criminal responsibility, was held unconstitutional
as denying equal protection of the laws; the court stating that it was
the general doctrine that the law relative to those who might be
charged with and convicted of crime, as well as to the punishment to
be inflicted therefor, should operate equally upon every citizen or
inhabitant of the state.chanroblesvirtualawlibrary chanrobles virtual
law library

And, in State vs. Fowler ([1927], 193 N.C., 290; 136 S.E., 709), an
act of the North Carolina legislature, applicable to five counties of the
state only, which imposed as punishment for a specified offense a
fine only, while a statute applicable to the whole state imposed a fine
or imprisonment, was held to be unconstitutional under both the
Federal and State Constitutions as a denial of the equal protection of
the laws. The court says: "But the statute under consideration cannot
be sustained on the ground that it was enacted in the exercise of the
police power. The question is whether it shall supersede "the law of
land" - the general public law which was designed to operate without
exception or partiality throughout the state. It is needful to remember
that indictment was drafted under the general law, and that the
decisive question is whether offenders in the five counties referred to
may lawfully be exempted from the punishment prescribed by the
general law; whether they shall be subject only to a fine when the
offenders in ninety-five other counties may be punished by
imprisonment. In our judgment this part of section 2 is neither equal
protection of the laws nor the protection of equal laws. . . . It is the
grant of a special exemption from punishment or an exclusive or
separate privilege which is forbidden by the cited provision. . . . The
principle of uniformity in the operation of a general law extends to the
punishment, and denounces as arbitrary and unreasonable the
imposition in one county of any kind of punishment which is different
from that which is prescribed under the general law to all who may be
guilty of the same offense. It follows that the provision limiting the
punishment for the first offense to a fine must be regarded as an
arbitrary class distinction which cannot be sustained because
forbidden by the fundamental law, and the judgment which was
pronounced by authority of the general law must be upheld.
(Annotation, 59 A.L.R., Annotated, p. 434.)chanrobles virtual law
library
Bills of attainder were prohibited to be passed, either by the Congress
or by the legislatures of the several States. Attainder, in a strict sense,
means an extinction of civil and political rights and capacities; and at
the common law it followed, as of course, on conviction and sentence
to death for treason; and, in greater or less degree, on conviction and
sentence for the different classes of
felony.chanroblesvirtualawlibrary chanrobles virtual law library

A bill of attainder was legislative conviction for alleged crime, with

judgment of death. Such convictions have not been uncommon under
other governments, and the power to pass these bills has been
exercised by the Parliament of England at some periods in its history,
under the most oppressive and unjustifiable circumstances, greatly
aggravated by an arbitrary course of procedure, which had few of the
incidents of a judicial investigation into alleged crime. For some time
before the American Revolution, however, no one had attempted to
defend it as a legitimate exercise of power; and if it would be
unjustifiable anywhere, there were many reasons why it would be
specially obnoxious under a free government, and why consequently
its prohibition, under the existing circumstances of our country, would
be a matter of more than ordinary importance. Every one must
concede that a legislative body, from its numbers and organization,
and from the very intimate dependence of its members upon the
people, which renders them liable to be peculiarly susceptible to
popular clamor, it not properly constituted to try with coolness,
caution, and impartiality a criminal charge, especially in those cases
in which the popular feeling is strongly excited - the very class of
cases most likely to be prosecuted by this mode. And although it
would be conceded that, if such bills were allowable, they should
properly be presented only for offenses against the general laws of
the land, and be proceeded with on the same full opportunity for
investigation and defense which is afforded in the courts of the
common law, yet it was remembered that in practice they were often
resorted to because an obnoxious person was not subject to
punishment under the general law, or because, in proceeding against
him this mode, some rule of the common law requiring a particular
species of degree of evidence might be evaded, and a conviction
secured on proofs that a jury would not be suffered to accept as
overcoming the legal presumption of innocence. Whether the
accused should necessarily be served with process; what the degree
or species of evidence should be required; whether the rules of law
should be followed, either in determining what constituted a crime, or
in dealing with the accused after conviction - were all questions which
would necessarily address themselves to the legislative discretion
and sense of justice; and the very qualities which are essential in a
court to protect individuals on trial before them against popular
clamor, or the hate of those in powers, were precisely those which
were likely to prove weak or wanting in the legislative body at such a

time. And what could be more obnoxious in a free government than

the exercise of such a power by a popular body, controlled by a mere
majority, fresh from the contests of exciting elections, and quite too
apt, under the most favorable circumstances, to suspect the motives
of their adversaries, and to resort to measures of doubtful propriety to
secure party ends?chanrobles virtual law library
Nor were legislative punishments of this severe character the only
ones known to parliamentary history; there were others of a milder
form, which were only less obnoxious in that the consequences were
less terrible. These legislative convictions which imposed
punishments less than that of death were called bills of pains and
penalties, as distinguished from bills of attainder; but the
constitutional provisions we have referred to were undoubtedly aimed
at any and every species of legislative punishment for criminal or
supposed criminal offenses; and the term "bill of attainder" is used in
a generic sense, which would include bills of pains and penalties
also.chanroblesvirtualawlibrary chanrobles virtual law library
The thoughtful reader will not fail to discover, in the acts of the
American States during the Revolutionary period, sufficient reason for
this constitutional provision, even if the still more monitory history of
the English attainders had not been so freshly remembered. Some of
these acts provided for the forfeiture of the estates, within the
Commonwealth, of those British subjects who had withdrawn from the
jurisdiction because not satisfied that grievances existed sufficiently
serious to justify the last resort of an oppressed people, or because of
other reasons not satisfactory to the existing authorities; and the only
investigation provided for was an inquiry into the desertion. Others
mentioned particular persons by name, adjudged them guilty of
adhering to the enemies of the State, and proceeded to inflict
punishment upon them so far as the presence of property within the
Commonwealth would enable the government to do so. These were
the resorts of a time of extreme peril, and if possible to justify them in
a period of revolution, when everything was staked on success, and
when the public safety would not permit too much weight to scruples
concerning the private rights of those who were not aiding the popular
cause, the power to repeat such acts under any conceivable
circumstances in which the country could be placed again was felt to
be too dangerous to be felt in the legislative hands. So far as

proceedings had been completed under those acts before the treaty
of 1783, by the actual transfer of property, they remained valid and
effectual afterwards; but so far as they were then incomplete, they
were put an end to by that
treaty.chanroblesvirtualawlibrary chanrobles virtual law library
The conviction of the propriety of this constitutional provision has
been so universal, that it has never been questioned, either in
legislative bodies or elsewhere. Nevertheless, cases have recently
arisen, growing out of the attempt to break up and destroy the
government of the United States, in which the Supreme Court of the
United States has adjudged certain actions of Congress to be in
violation of this provision and consequently void. The action referred
to was designed to exclude from practice in the United States courts
all persons who had taken up arms against the government during
the recent rebellion, or who had voluntarily given aid and
encouragement to its enemies; and the mode adopted to effect the
exclusion was to require of all persons, before they should be
admitted to the bar or allowed to practice, an oath negativing any
such disloyal action. This decision was not at first universally
accepted as sound; and the Supreme Courts of West Virginia and of
the District of Columbia declined to follow it, insisting that permission
to practice in the courts is not a right, but a privilege, and that the
withholding it for any reason of State policy or personal unfitness
could not be regarded as the infliction of criminal
punishment.chanroblesvirtualawlibrary chanrobles virtual law library
The Supreme Court of the United States has also, upon the same
reasoning, held a clause in the Constitution of Missouri, which,
among other things, excluded all priests and clergymen from
practising or teaching unless they should first take a similar oath of
loyalty, to be void, overruling in so doing a decision of the Supreme
Court of that State. (Cooley's Constitutional Limitations, 7th ed., pp.
368-372.)
The legal problem confronting us is characterized by the fact that we
have to avoid the misleading effect resulting from the difference
between the text and letter of the law and their grammatical sense
and effect on one side, and as it is interpreted and applied in actual
practice.chanroblesvirtualawlibrary chanrobles virtual law library

Apparently, there is nothing so harmless as the provision of section

19 of Act No. 682, suspending for a period of not more than six
months the provision of article 125 of the Revised Penal Code as
amended.chanroblesvirtualawlibrary chanrobles virtual law library
Article 125 of the Revised Penal Code punishes the public officer or
employee who "shall detain any person for some legal ground and
shall fail to deliver such person to the proper judicial authorities within
the period of six hours."chanrobles virtual law library
Said article has nothing to show that it bears constitutional sanction. It
is only a part of the penal laws which are within the full jurisdiction of
the legislative power to enact or not to enact. The Philippine
Legislature which enacted the Revised Penal Code could have failed
to do so without, by that very fact, violating any provision of the
Constitution. The succeeding legislative bodies - the unicameral
National Assembly and the Congress - may, without question, repeal
or suspend article 125 of the Revised Penal Code, as any other
article of the same, or even the whole
code.chanroblesvirtualawlibrary chanrobles virtual law library
Therefore, as an abstract proposition, as a matter of legal technicality,
we believe that there is absolutely no ground for disputing the power
of the legislative body to suspend or even repeal article 125 of the
Revised Penal Code.chanroblesvirtualawlibrary chanrobles virtual law
library
But the provision is vitiated:chanrobles virtual law library
(1) By the fact that it is a class legislation, excluding the political
prisoners concerned from the same benefits and protection afforded
all other persons by article 125.chanroblesvirtualawlibrary chanrobles
virtual law library
(2) By the fact that it is interpreted and applied, not only in a negative
sense as a deterrent against public officials or employees bent on
encroaching and trampling upon the personal freedom of any person,
but as a positive authority to said officers and employees to deprive
and continue depriving the political prisoners concerned of their
personal liberty, without due or any legal process of law provided the
deprivation of liberty did not exceed six months, but without reckoning

the previous many months of illegal detention they had already

suffered before their formal transfer to the Commonwealth
Government.chanroblesvirtualawlibrary chanrobles virtual law library
For these two radical and incurable defects, section 19 of Act No. 682
runs counter to the Constitution when it prohibits that no person shall
be deprived of his liberty without due process of law nor shall any
person be denied the equal protection of the laws. (Article III, section
1 [1], Constitution of the Philippines.)chanrobles virtual law library
No one can, with candor and fairness, deny the discriminatory
character of the provision. If all discriminations are abhorrent under
any regime of law and justice, imperatively more in a democracy such
as ours, tribunals must be recreant to their duties if they fail to deny
validity to such an odious legal measure, conceived, adopted, and
unhappily enacted by the legislative power in one of its blundering
moods in utter defiance of the fundamental law of the
land.chanroblesvirtualawlibrary chanrobles virtual law library
Petitioner points out that in the provision there is an unconstitutional
delegation of legislative powers, because the power to suspend the
provision of article 125 of the Revised Penal Code within the
maximum period of six months, in fact, is transferred to the Special
Prosecutors' Office, which may shorten or lengthen said suspension
by filing the corresponding criminal information at any time it may
deem convenient.chanroblesvirtualawlibrary chanrobles virtual law
library
The Special Prosecutors' Office may not suspend altogether article
125 of the Revised Penal Code by filing immediately the information.
It may suspend it for 10 days, by filing the information within that time.
It may suspend it for one month, two months, or three months, by
filing the information within the desired time. It may suspend it for a
maximum period of six months just by mere inaction, by not filing any
information at all. The result is, in fact, to place in the hands of the
Special Prosecutors' Office the power to suspend article 125 for any
length of time within the maximum period of six months. And what is
worst is that the suspension that the Special Prosecutors' Office may
decree is individualized, and not of general effect to all the political
prisoners concerned, thus making the Special Prosecutors' Office a

kind of dictatorship which may dispense its favors and disfavors to

individual prisoners under no other test than its convenience and
whims.chanroblesvirtualawlibrary chanrobles virtual law library
Evidently, petitioner's complaint is well-taken, giving additional ground
for the nullity of the provision in question, the legislative power having
been reserved by the Constitution exclusively to
Congress.chanroblesvirtualawlibrary chanrobles virtual law library
Lastly, the provision in question appears to legalize the many months
of illegal detention already endured by the political prisoners
concerned. The legislative power can not legalize illegal detention,
much more if that illegal detention has been perpetrated in utter
violation of the Bill of Rights of the
Constitution.chanroblesvirtualawlibrary chanrobles virtual law library
Petitioner assails the validity of the whole Act No. 682, aside from
what has been already said about section 19 thereof, upon the
following grounds:chanrobles virtual law library
(1) Because it is an ex post facto law, violating section 1 (11), Article
III, of the Constitution, petitioner having been deprived of his acquired
right to be freed, under penalty to his detainers, within six hours after
his detention under article 125 of the Revised Penal
Code.chanroblesvirtualawlibrary chanrobles virtual law library
(2) Because section 2 set up a legal trap by which a person, accused
in the information of an offense, may be convicted and sentenced for
a different one, thus violating his constitutional right "to be informed of
the nature and cause of the accusation against him." (Section 1 [17],
Article III, Constitution of the Philippines.)chanrobles virtual law library
(3) Because it creates a special court to try cases arising years
before its creation, transferring a jurisdiction belonging to courts of
first instance to the People's Court, a blunder identical in nature and
viciousness to the former practice of shuffling judges of first instance,
the judicial rigodon resorted to before to suit certain purposes of the
government and which was stopped by Judge Borromeo's
courageous defense of the independence of the judiciary, in a leading
case before the Supreme Court which made
history.chanroblesvirtualawlibrary chanrobles virtual law library

(4) Because the creation of the People's Court is a judicial

gerrymandering.chanroblesvirtualawlibrary chanrobles virtual law
library
(5) Because the name "People's Court" suggests a political entity, a
popular dispenser of political justice, in contrast with the stable,
impartial, cultured nature of a judiciary, detached from momentary
interests and influences.chanroblesvirtualawlibrary chanrobles virtual
law library
(6) Because the self-extinguishing character of the People's Court
makes it an agency for special mission, more an agency of the
legislature than that of the administration of
justice.chanroblesvirtualawlibrary chanrobles virtual law library
(7) Because it disqualifies members of the judiciary who served under
the Japanese regime.chanroblesvirtualawlibrary chanrobles virtual
law library
We cannot but recognize that strength of the objections, specially
objections (1), (2) and (7).chanroblesvirtualawlibrary chanrobles
virtual law library
But we are not ready to support petitioner's contention that the whole
act should be declared null and void, considering that the
unconstitutional provisions thereof may be segregated and the
remaining portions of the text may stand on their own
feet.chanroblesvirtualawlibrary chanrobles virtual law library
Objection (1) adds only another ground to show the
unconstitutionality of the provision of section 19, suspending article
125 of the Revised Penal Code; and objection (2) only affects the
corresponding provision of section 2 of the act. Objection (7), upon
which we have already expressed our opinion in the case of De la
Rama vs. Misa (42 off. Gaz., 1544), only affects the provision
concerning the disqualification of certain justices of the Supreme
Court.chanroblesvirtualawlibrary chanrobles virtual law library
Regarding objections (3), (4), (5), and (6), although they are
meritorious, we believe that they are offset by the collegiate character
of the newly created court. We are inclined to believe that the main

purpose in creating the the People's Court was precisely to afford

those who will be charged and tried before it a special safeguard, in
the fact that more than one judge will have to hear and try a case, to
counterbalance the prevailing prejudice in the community against the
persons who are accused for having allegedly collaborated with the
enemy. For this reason, we are of opinion that the act creating the
People's Court must not be
invalidated.chanroblesvirtualawlibrary chanrobles virtual law library
But it is our hope that its creation will not set a precedent that will
sanction a wrong principle. Generally speaking, the creation of
temporary tribunals to administer justice in specifically predetermined existing cases is contrary to the nature and character of
judicial functions and the purposes of the administration of justice,
which must be characterized by the independence of judicial officers,
independence that cannot be secured without guaranteeing the
stability of tenure of office.chanroblesvirtualawlibrary chanrobles
virtual law library
Judges are not supposed to decide on what may appear right or
wrong in the evanescent moment when the voice of passion grows
louder in the market of human activities. They must not make
decisions in the spur of news that make screaming headlines and
arouse the uncontrollable emotions of political leaders of the
populace. They must decide between right and wrong by the criterion
of universal conscience, by the judgment, not only of the fleeting
instance of evolving history, but the unending caravans of
generations to come.chanroblesvirtualawlibrarychanrobles virtual law
library
The inherent justice of their decisions must continue being sensed as
the treasured human heritage long long after they had rendered their
inescapable tribute to death, like the aroma which continues enriching
and sweetening the air long after the flowers have been crushed in
the chemist's retorts to give way to their perfumed essence, like the
beauty of the temples and palaces of Palmyra which continues
charming our memory millenniums after they have become lust dusty
ruins, like the heavenly melodies which continue lingering in our ears
long after we have heard those musical gems, such as the
masterpieces of Bach and the symphonies of Beethoven, like light

emitted by stars which ceased to exist centuries ago still traveling in

the immensity of space to attract our admiration and arouse dreams
of immortality.chanroblesvirtualawlibrary chanrobles virtual law library
In order that judges could render judgments of lasting value which
would embody the wisdom of the ages and the moral sense of all
time, it is necessary that they should preside over tribunals which
must be looked upon as permanent institutions of justice, not
temporary makeshifts, more appropriate to serve ephemeral
purposes than to be the inviolable temples of an eternal goddess.
And the judges themselves, to acquire the olympic serenity, the
awesome and noble austerity, the hieratic aloofness, the majestic
equanimity proper of their great mission, there being none greater
that can be entrusted to a person as the image of God, must feel, by
the permanency, stability, and security of their tenure of office, that
they owe an undivided loyalty, not to any transient idols or to any
momentary masters, no matter how powerful they are, but to the
inseparable twin divinities of truth and
justice.chanroblesvirtualawlibrary chanrobles virtual law library
Judge Robert N. Wilkin said that the special function of a judicial
officer is to determine what is right and what is wrong, not only for the
clamorous present, but for silent generations yet come. From him we
quote these illuminating paragraphs:
The guiding force in social evolution is not to be found in the arbitrary
will of groups, nor in a common purpose. It is to be found in the law of
our nature, that imminent or inherent law founded on the
characteristics of human kind. "A law instilled and not imposed," as
Cicero said, "a law in which we are fashioned, not instructed." It is not
created by proclamation or legislative fiat. It is discovered by patient
research and spiritual insight.chanroblesvirtualawlibrary chanrobles
virtual law library
The true judge must have something of the vision of a prophet. He
must be able to see the trends of his time extended, so that principles
which he announces may be adjusted to conditions yet to come. The
observation of Graham Wallas that a great judge needs a touch of the
qualities that make a poet has been quoted with approval by
Professor Chafee, Justice Cardozo, and others. Poets, as has been

stated, bear the same relation to society as the antennae of an insect

to its body; they are "feelers" of the body politic. Their sensibilities are
more acute, more advanced than those of their contemporaries, and
what they feel and express today their fellows will feel and
understand tomorrow. Poets, prophets, judges - they are Gods elect;
we cannot elect them.chanroblesvirtualawlibrary chanrobles virtual
law library
The great judge cannot be a child of his ages. If his judgments are to
be great they must be timeless, or at least timed to the future. The
spirit of the law should enable him to transcend the spirit of his times
and he should be able to speak sub specie aeternitatis. What a
desecration of the office to choose its incumbent by any system
which forces him to temporize!chanrobles virtual law library
Judges in early times were priests, or more accurately stated, the
priests performed the functions of judges. There is still much about
the judicial office that is priestly. This has ever seemed quite natural
to those who took seriously their first legal learning from Blackstone,
who stated at the outset that all human laws depend upon divine law.
While for a time that teaching seemed out of fashion, the more recent
trend is to acknowledge again our subjection to a law of nature, a law
divine. Be that as it may, it will not disputed that a proper performance
of judicial duties requires a devotion quite similar to the consecration
of the priest. Judges, like the clergy, should be kept unspotted from
the world. Any personal interest, selfish concern, or party
consciousness, corrupts not only the judge but the judicial function.
Any want of honest detachment in the judge undermines public faith
in judicial administration. As has frequently been stated, it is quite as
important to the public that judges should be free from the
appearance of evil as that they should be free from actual evil. The
prevalent disrespect for law is prompted not so much by corruption in
the courts, as by that system of choosing judges which makes every
judge suspect.chanroblesvirtualawlibrary chanrobles virtual law
library
The taking of judicial office should be much like the taking of holy
orders - one should not do so who is unwilling to suffer a kind of civil
death. The only way in which one can be worthy of the office is by
submerging self in the performance of the duties of the office. A judge

should be only the voice of the law. As Cicero said, "While the law is
voiceless magistrate, the magistrate is law made vocal." It is arrogant
presumption for a judge to pose as anything more, and gross
indiscretion for him to assert his own voice. The only way in which he
can avoid violation of the injunction, "Judge not, that ye be not
judged," is by pronouncing, not his personal will, but the judgment of
the law. How otherwise could a judge impose a death sentence and
live in peace? If the judgment is his own, the blood of the condemned
is upon him. If his judgment is at the behest of popular clamor he has
given sanction to lynching. But if his judgment is the pronouncement
of the law, the judicial function is fulfilled and his conscience is clear.
The judicial robe should submerge personality and make its bearer,
like a priest in vestment, an impersonal part of a divine function. (The
Judicial Function and the Need of Professional Section of Judges by
Robert N. Wilkin, Journal of the American Judicature Society, Vol. 29,
No. 4, Dec., 1945.)
The facts of current experience showed the imperative need of an
intellectual overhauling as part of the work of post-war rehabilitation
in all orders of our national life. Many elemental tenets and ideals
need be restated, if not rediscovered. The worries and psychological
shocks caused by the Japanese initial victories and brutal
oppressions concomitant with their occupation of our country, had the
effect of warping the mentality and sense of moral values of not a
negligible number of persons. There are men whose intellectual
outlook and views of freedom and fundamental human rights,
tethered by defective development of ideology, are not only
outmoded, but absolutely incompatible with the trends of the
progress, whose brains appear not to be completely freed from the
embryonic amnion and are in need of allantoic nutrition, who would
rather wield the bludgeon of jungle arbitrariness and make a coffle of
serfs of free people, than abide by the constitutional precepts and the
noble doctrines of the UNO Charter, whose juridical ideas, rather than
in the forum of modern democracy, have their proper place among
the fossils of apteryx, megatheria, and dinosaurs' museum and,
notwithstanding, are being haled in apparently responsible sectors of
the press as heroes of progressiveness. Such nonsense and
intellectual travesty are inconceivable except in a topsy-turvy world
which has adopted the thyrsus as the choicest emblem of human
happiness, where the frenzied mental processes have been inverted

as if in the Corinthian order, the frieze, cornice, and architrave are

place at the foot of the column and above it the
stylobate.chanroblesvirtualawlibrary chanrobles virtual law library
Among the basic concepts that must be included in the wholesale
intellectual overhauling which we need undergo, if we have to follow
the mental, social, legal, and moral thread which was cut at the
impact of the disastrous invasion of our soil, is the one we have on
personal liberty, upon which the traditional democratic principles we
had been accepting and following before the enemy occupation, as
part of the nature of our social and political institutions, appear to
have been forgotten, the present case being one of a series of
instances evidencing it, as can be seen in our opinions in
Raquiza vs. Bradford (75 Phil., 50); Reyes vs. Crisologo (75 Phil.,
225); Duran vs. Abad Santos (75 Phil., 410); Herras Teehankee vs.
Rovira (75 Phil., 634); Herras Teehankee vs. Director of Prisons p.
756, post; Taada vs. Quirino (42 Off. Gaz., 394), the
pronouncements in which we are reiterating
here.chanroblesvirtualawlibrary chanrobles virtual law library
The moral hiatus in our national life is over, and in this hour of
resumption of democratic processes, there is an imperative need, as
one of the cornerstones of our national structure, to redefine and
reaffirmed our pre-war concept of human
freedom.chanroblesvirtualawlibrary chanrobles virtual law library
The petitioner is entitled to be immediately set free, and we vote for
restoring him to his personal freedom of which he was deprived
without any legal process.

2.) People VS Agoncillo

EN BANC
[G.R. No. 138983. May 23, 2001]
PEOPLE OF THE PHILIPPINES plaintiff-appellee, vs. GENER B.
AGONCILLO, accused-appellant.
DECISION
GONZAGA-REYES, J.:
This is an automatic review of the Decision [1] dated April 27, 1999
of the Regional Trial Court of Kalibo, Aklan, Branch 2 in Criminal
Case No. 5006 finding the accused, Gener B. Agoncillo guilty beyond

reasonable doubt of the crime of rape committed with the use of a

deadly weapon.
On August 28, 1997, Rosalyn Salvador y Patricio assisted by her
mother, Artily P. Salvador filed a complaint [2] for rape against the
accused. The complaint alleged:
That on or about the 2nd day of July, 1997, in the evening, in
Barangay Napti, Municipality of Batan, Province of Aklan, Republic of
the Philippines, and within the jurisdiction of this Honorable Court, the
above-named accused, with lewd designs and by means of force and
intimidation, did then and there willfully, unlawfully and feloniously
with use of a scythe, has carnal knowledge with the said ROSALYN
P. SALVADOR, a minor of fourteen (14) years of age, against her will
and without her consent.
On September 21, 1998, the accused was arraigned and with the
assistance of counsel entered a plea of not guilty.[3] Thereafter, trial
ensued.
The trial court summarized the evidence presented by the
prosecution and the defense as follows:
EVIDENCE FOR THE PROSECUTION
The following are the witnesses presented by the prosecution and the
substance of their testimonies:
1) Dr. Lendelino B. Meez, 52 years old, married, physician and a
resident of Villa Emilia Subdivision, Estancia, Kalibo, Aklan, testified:
That he is one of the physicians of Aklan Provincial Hospital; that on
July 3, 1997, the victim was in the said hospital for a medico-legal
examination in connection with her complaint that she was raped; that
as per his examination on the victim, the latter suffered slight
hymenal laceration at 6:00 oclock position; that he also found
Endurated area around the vagina (reddening); that the hymenal
laceration was caused by a male sex organ (TSN Anino, 12/10/98;
Exh. B).

2) PO2 Jose Patron, 32 years old, married, PNP Member and a

resident of Barangay Angas, Batan, Aklan, testified:
That he is a police office officer assigned at Batan, Aklan; that on July
5, 1997, at around 8:30 A.M., the victim and her mother went to the
police station and reported to him that the victim was raped; that it
was the victim herself who told him that it was the accused who
sexually assaulted her; that he entered the said report in the police
blotter; that he thereafter referred the case to the Womens Desk,
PNP, New Washington, aklan (TSN Anino, 12/10/98; Exh. O).
3) Rosalyn P. Salvador, 15 years old, single, student and a resident of
Barangay Napti, Batan, Aklan, testified:
That she is the victim in this case; that she is 14 years old at the time
of rape, having (sic) born on August 22, 1982; that in the evening of
July 2, 1997, her father and mother went to the river to catch fish; that
her only companions in their house during that night were her three
(3) younger brothers, namely: Julie (8 years old), Cris (10 years old)
and Victor (13 years old); that they went to bed at around 8:00 P.M.;
that at around 11:00 P.M., she roused to look at their wall clock if it is
already time to prepare their breakfast; that suddenly, somebody
covered her mouth and told her not to shout or else, he will cut off her
head; that the said person was armed with a scythe; that she was
then dragged to the banana plantation where she was ordered to lie
on the ground and not to shout under threat that if she will not obey,
he will sickle her neck; that the said person then started to kiss her;
that because of the frequent flashes of light in the sky (caused by
lightning), she was able to recognize that person as the herein
accused; that she knows the accused since the latter was always
passing near their house; that the accused kissed her lips and
vagina; that he spread her legs, placed himself on top of her and tried
to insert his penis into her vagina; that because the accused found it
difficult to insert his penis into her vagina, he instead inserted his
finger until such time that he was able to insert his penis; that the
accused then pushed and pulled his penis in her vagina; that it was
painful; that after several minutes, the accused stood up and wiped
his sweat; that thereafter, she was accompanied by the accused up to
the bamboo plantation and warned her that he will kill them all if she

will tell her parents on what happened to her (TSN Anino, 1/11/99;
1/13/99; TSN Gumban, 1/12/99; Exh. A and I).
4) Artily Salvador, 45 years old, married, and a resident of Barangay
Napti, Batan, Aklan, testified:
That she is the mother of the victim; that in the evening of July 2,
1997, she and her husband went fishing at the swamp; that they left
their house at around 5:30 P.M. and stayed at the swamp the whole
night; that they were able to return home at around 6:00 A.M. the
following day, July 3, 1997; that when they reached their house, she
saw the victim by the door who was about to cry; that when they went
inside the house, the victim cried and told her that she was raped by
the accused; that upon hearing that news, she dumped her thermo
chest and proceeded to the house of the accused; that she saw the
accused feeding his pigs; that she asked the accused where he was
on the night of July 2, 1997; that the accused replied that he was in
the house of a certain Delia watching T.V. show; that she then went to
the house of Delia and tried to verify the allegation of the accused;
that Delia informed her that the accused was indeed in their house on
that night up to 10:30 P.M.; that on her way home, she again met the
accused on the road; that when the accused asked her why she was
looking for him, she did not tell him the reason and merely said:
Nothing; that the accused told her to file a case against him if she so
desires; that she then went to the house of the Barangay Captain and
reported what the accused did to her daughter; that thereafter, they
reported the matter to the Batan Police Station; that the police officer
of Batan advised her to go to New Washington, Aklan to report this to
Policewoman Isada; that Policewoman Isada brought them to the
Provincial Hospital and had the victim medically examined; that on
August 23, 1997 at around 6:00 P.M., the father and two uncles of the
accused went to their house to talk of settling the case against the
accused; that the said trio wanted that the accused and the victim be
married to each other; that when she refused, the said persons went
home (TSN Anino, 1/13/99; TSN Gumban, 1/14/99).
Recalled as a rebuttal witness, Artily Salvador testified that it is not
true that the father of defense witness Rene dela Cruz was already
dead at the time of the subject rape as the said person died in June
1998; that the accused used to sport long hair; that the testimony of

defense witness Pepito Torres to the effect that she was looking for a
person with long hair and mustache is not true because what she
asked from the said witness was the whereabouts of the accused;
that it is not true that their banca and fishing net were destroyed (TSN
Gumban, 3/15/99, Rebuttal).
5) Delia Rosales, 57 years old, married, Municipal civil Registrar of
Batan, Aklan and a resident of Ambulong, Batan, Aklan, testified:
That she is the Civil Registrar of Batan, Aklan; that she issued the
certified true copy of the birth certificate of the victim (Exh. D, TSN
Gumban, 1/14/99).
Ms. Rosales further testified that she also issued the certificate of
death of one Remegio dela Cruz, who died on June 26, 1998 (Exh. E;
TSN Gumban, 3/15/99, Rebuttal).
EVIDENCE FOR THE DEFENSE
The following are the witnesses presented by the defense and the
substance of their testimonies:
1) Rene dela Cruz, 36 years old, single, farmer and a resident of
Barangay Napti, Batan, Aklan, testified:
That on July 2, 1997, his younger brother Roque arrived in his house
together with his friend Regie and the accused at around 10:30 P.M.;
that they came from the house of a certain Delia Torres where they
watched T.V. shows; that the said persons slept in his house; that
when he woke up to urinate at around 12:30 A.M., the accused was
still sleeping in bed; that when he got up from bed at 4:00 A.M., the
accused was still sleeping; that the accused woke up at 5:00 A.M. of
July 3, 1997; that the accused was always sleeping in his house; that
his brother Regie is no longer residing in his house because he went
to Manila in June 1996 (TSN Anino, 2/24/99).
2) Pepito Torres, 57 years old, fisherman, and a resident of Barangay
Napti, Batan, Aklan, testified:
That in the evening of July 2, 1997, there were many people in their
house watching television shows; that the accused was one of them;

that the accused together with Rochie and Regie left their place at
around 10:00 P.M.; that the following morning, July 3, 1997, the
mother of the victim asked him and his wife Delia Torres who were
those who watched television in their house on July 2, 1997; that the
said mother of the victim also asked him if there was a person with a
beard and sporting long, curly hair who watched television; that he
replied in the negative; that the accused at that time was sporting a
short hair and had a clean face (TSN - Gumban, 2/25/99).
3) Jesus Penalba, 39 years old, married, tricycle driver and resident
of Napti, Batan, Aklan, testified:
That he is a neighbor of defense witness Rene dela Cruz; that on July
2, 1997 at around 10:30 P.M., he was awakened by the noise created
by the accused and his two companions, Rochie and Regie; that he
saw them when he went down to his kitchen and peeped through its
bamboo slats; that the weather was bad at that time; that the
following morning, July 3, 1997, he plied his route as a tricycle driver;
that when he returned home at around 9:00 A.M., his wife told him
that the mother of the victim asked her what time did he go home the
night before, July 2, 1997 (TSN Gumban, 2/23/99).
4) Rael Trinidad, 43 years old, married, Barangay Kagawad and a
resident of Napti, Batan, Aklan, testified:
That he is a member of the Barangay Council of Napti, Batan, Aklan;
that the accused is his distant relative; that on July 3, 1997 at around
7:00 A.M., he met the father of the victim by the road; that the father
of the victim brought him to the banana plantation where the victim
was raped; that the said place is around 30 meters away from the
house of the victim; that the said place is dark because it is full of
banana plants and the banana leaves are dense; that the father of
the victim informed him tha the perpetrator has curly hair and
bearded; that he was also informed they were suspecting Roque and
Regie because the said duo frequently hunt birds in that place (TSN
Anino, 2/26/99).
5) Gener Agoncillo, 40 years old, single, farmer and resident of Napti,
Batan, Aklan, Testified:

That he is the accused in this case; that he knows the victim and the
latters parents for a long time already; that the parents of the victim
have a hostile feeling to him as they suspected that he was the one
who punched a hole in their fishing boat and slashed their fishing net;
that on July 2, 1997 at around 8:00 P.M., he was in the house of
defense witness Pepito Torres; that he, together with his two friends,
Roque and Regie, left that place at past 10:00 P.M.; that before they
left, they requested for a torch from Pepito Torres because the night
was very dark; that they spent the night in the house of Roque dela
Cruz; that they slept at around 11:00 P.M.; that he woke up at around
5:00 A.M. of July 3, 1997; that thereafter, he went home and fed his
pigs; that while he was feeding his pigs, the mother of the victim
arrived and asked him where he was on the night of July 2, 1997; that
after answering her that he slept in the house of Rene dela Cruz, he
asked her why she was asking him where he was at that time; that
she answered: Basta (I just want to know), and then she left; that
later on, he again met her and he asked her again what her problem
was; that when she did not answer, he told her that if she has any
complaint, she should just file it; that one of the police officers who
was present when he was first invited to the Batan Police Station is
the husband of the Barangay Captain of Napti, Batan, Aklan; that the
said Barangay Captain is the principal sponsor in the wedding of the
parents of the victim; that he has a misunderstanding with the family
of the said Barangay Captain because he transferred to another
camp during the barangay election; that it is not true that he
frequently passes along the road near the victims house; that his
present hairstyle and mustache are the same as those before July 2,
1997; that he did not authorize his father and two uncles to negotiate
with the family of the victim for the settlement of this case; that when
he asked his father and two uncles if it is true that they went to the
place of the victim to settle this case, they denied the same; that he
knows that the parents of the victim are out fishing every night; that
he is still single despite of his age; that he is not courting any girl
anymore because he was in despair when the parents of his former
girlfriend and supposed bride objected to their marriage in 1982 (TSN
Gumban, 3/1/99; TSN, Anino, 3/4/99).[4]
On April 27, 1999 the trial court rendered a decision finding the
accused guilty beyond reasonable doubt of the crime of rape; the
dispositive portion of the decision reads:

WHEREFORE, the Court finds the accused GENER AGONCILLO Y

BONSUELO, GUILTY beyond reasonable doubt of RAPE and hereby
imposes upon him the supreme penalty of DEATH.
Further, the Court hereby orders the said accused to pay to the victim
Rosalyn P. Salvador the amount of P75,000.00 as indemnity for the
said offended party.
With COSTS against the accused.
SO ORDERED.[5]
In view of the imposition of the death penalty, the case is now
before this Court on automatic review.
In his brief, the accused-appellant assigns the following errors
committed by the trial court:
I
THE COURT A QUO ERRED IN GIVING CREDENCE TO THE
INCREDIBLE TESTIMONY OF THE COMPLAINANT AND IN
DISREGARDING THE EVIDENCE FOR THE DEFENSE.
II
THE COURT A QUO ERRED IN FINDING THE ACCUSED
GUILTY BEYOND REASONABLE DOUBT.[6]
In support of his appeal, accused-appellant argues that the
prosecution failed to establish the identity of Rosalyns assailant
beyond reasonable doubt considering that her identification of him
failed to pass the rigid test of positive identification. Accusedappellant points out the fact that it was very dark on the night Rosalyn
was raped and that the illumination produced by the flashes of
lightning rendered it difficult for her to see and identify her
assailant. Accused-appellant also argues that his defense of alibi
whereby he claims that he was sleeping in the house of Rogelio De
La Cruz from 11:00 p.m. until 5:00 a.m. of July 2, 1997 proves that it
was physically impossible for him to have been at the place of the
commission of the crime. Moreover, accused-appellant contends that

Rosalyns testimony is tainted with numerous inconsistencies which

cast serious doubt on the veracity of her assertions. Rosalyn
underwent a medical examination the results of which were placed in
a medico-legal report yet the injuries which she claimed to have
sustained by reason of the assault, i.e. contusions and hematoma on
her lips and neck, were not described therein. Accused-appellant also
maintains that the acts of the victim, her mother as well as her other
siblings runs counter to human nature and experience. In her
testimony, Rosalyns mother, Artily stated that Rosalyn told her that
accused-appellant raped her on the morning following the alleged
rape; that upon discovery thereof, she immediately looked for
accused-appellant to verify his whereabouts on the night of the rape;
and that she remained calm even as she confronted accusedappellant regarding the same. It is accused-appellants contention that
had Artily believed that accused-appellant indeed raped Rosalyn, her
natural reaction would have been to become hysterical and she
would not have remained calm. Furthermore, at the time of the
incident, Rosalyns siblings, who were with her in the house, did not
take any steps to protect or help her, thus belying the commission of
the crime imputed to him. Even assuming for the sake of argument
that the prosecution has proved accused-appellants guilt beyond
reasonable doubt, he contends that the lower court erred in
appreciating the aggravating circumstances of dwelling, nighttime and
uninhabited place despite the fact that the prosecution failed to
present any evidence to prove the same. It is also his position that
the lower court erred in convicting him of rape with the use of a
scythe in order to justify the imposition of the death penalty despite
the fact that the prosecution did not present the scythe in court to
support such allegation. Finally, accused-appellant claims that the
lower court was partial and biased and in fact pre-judged the case
against him and that the lower court assumed facts not proved during
trial all to the detriment of accused-appellant.
The arguments presented by accused-appellant do not persuade
us. An examination of all the evidence presented before the trial court
leads us to no other conclusion than that Rosalyn was indeed raped
by accused-appellant.
Accused-appellants main defense consisting of denial and alibi is
not tenable. The defense of alibi is the weakest of all defenses for it is

easy to contrive and difficult to prove. [7] Moreover, these defenses are
overcome by a witness positive identification of him as the perpetrator
of the crime.[8]
In the present case, Rosalyn categorically identified accusedappellant as her assailant and narrated vividly the sexual assault
committed against her. Rosalyn also established that although it was
dark, the light emitted from the constant flashes of lightning that
evening sufficiently illuminated the face of accused-appellant to
enable her to recognize him, thus:
DIRECT EXAMINATION BY PROSECUTOR OFIALDA:
Q: Miss Witness, do you remember where were you on July 2,
1997 in the evening, around 11:00 oclock?
A: Yes, sir.
Q: Where were you then?
A: I was at home.
Q: And where is this house of yours located?
A: At Napti, Batan, Aklan.
Q: What municipality?
A: Batan.
Q: What province?
A: Aklan.
Q: You said you were in your house at that time and date, what
were you doing then?
A: I was intending to see the watch but I was surprised that
somebody covered my mouth.
Q: Why were you intending to see the watch what, was your
purpose?

A: Because if it is already at dawn time, I have to prepare

breakfast.
Q: You said someone covered your mouth; what happened after
someone covered you mouth?
A: The person covered my mouth told me not to shout or else, he
will cut-off my head.
Q: You said he would cut-off your head, why, do you have other
companions at that time?
A: Yes, sir.
Q: Who were your companions?
A: Cris, Julie and Victor.
Q: How are these Cris, Victor and Julie related to you?
A: They are my brothers.
Q: After the person uttered he would behead you what did he do
after that?
A: He brought me to the sala and he kicked that aluminum used in
setting fire.
COURT: (To witness)
Q: He said that your head will be cut-off if you make any movement
or shout, was he armed at that time?
A: Yes, Your Honor.
Q: What was his arm?
A: A scythe.
COURT:
Continue fiscal.

PROS. OFIALDA:
Q: What is the size of that scythe?
A: (Witness demonstrated a length of 12)
Q: What hand was holding the scythe, left or right?
A: Left hand.
Q: And after he brought you, you said at the sala which he kicked
the aluminum with fire, what did he do?
A: He ordered me to remove my panties and asked me what will I
prefer to be killed or to live.
Q: And after he ordered you to remove your panties, did you
remove the same?
A: Not yet.
Q: And what did this person do after that?
A: He said that he will kill us.
Q: What else did he do after that?
A: He brought me to the banana plantation.
Q: Was he holding you when he brought you to the banana
plantation?
ATTY. GEPTY:
Leading, Your Honor.
COURT:
Reform the question.
PROS. OFIALDA:

Q: Were you able to reach the banana plantation?

A: Yes, sir.
Q: On the way to the banana plantation what did he do?
A: He was holding me at my neck.
Q: What hand was holding your neck?
A: Right hand.
Q: And after you reach the banana plantation what did this person
do to you?
A: He tried to let me lie down and kissed me.
Q: You said earlier that he ordered you to remove your panties and
you said at that stage you did not yet remove your panties. At
what stage did you remove you panties?
A: I removed it when he said if I will not obey him, he will kill us all.
Q: Where did you remove your panties, at your house or..
ATTY. GEPTY:
Leading, Your Honor.
COURT:
Reform you question.
PROS. OFIALDA:
Q: So, after he ordered you to remove your panties and if you will
not remove he will kill you, did you remove your panties?
A: Yes, sir.
Q: You said after you reached the banana plantation he kissed you,
what else did he do aside from kissing you?

A: He tried to insert his hand in my vagina and after that he

inserted his penis.
ATTY. GEPTY:
We object to the interpretation, Your Honor, it is not the hand.
A: He tried to insert his finger in my vagina and after that he
inserted his penis.
COURT:
He could not insert his hand. Even if she is a prostitute, no matter
how big is the vagina. Alright, proceed.
PROS. OFIALDA:
Q: You said he inserted his penis after inserting his finger, was his
finger penetrated your vagina?
ATTY. GEPTY:
Leading, Your Honor.
COURT:
Reform the question.
PROS. OFIALDA:
Q: What else did that person do after he inserted his finger?
COURT:
She already answered that he inserted his penis. And after
inserting his penis, what else did he do? How long did he insert
the penis inside your vagina?
A: For a long time.
Q: How many minutes?

A: Around fifteen (15) minutes.

Q: When he inserted his penis what did he do after inserting?
A: He continued kissing and inserting his finger in my vagina.
Q: What movements did he do when his penis was inserted?
A: He stood up and wiped his perspiration.
Q: Do you understand the question? Do not be ashamed, tell the
truth. It would be the basis for the acquittal or the conviction of
the accused. Tell the truth. After inserting his penis he then
stood up? Is that true or not?
(Witness at this stage is crying).
xxx xxx xxx
PROS. OFIALDA:
Q: Were you able to recognize that person?
A: Yes, sir.
Q: How did you recognize him?
A: Because there was lightning and it was somewhat bright
because of the lightning.
Q: and who was that person you said you recognized later?
COURT:
Tell the name.
A: Gener Agoncillo. (Witness pointed to a person seated on the
bench)
ATTY. GEPTY:

We would like to manifest, Your Honor, that when she pointed the
accused, the accused is seated alone on the bench designated
for the accused.
PROS. OFIALDA:
We would like to manifest, Your Honor, that the victim cried pointing
to the accused.
(To witness)
Will you please step down from the witness stand and point to the
Court?
COURT:
Tap his shoulder.
(Witness pointed to a person who when asked his name answered,
Gener Agoncillo). [9]
Accused-appellant attempts to discredit Rosalyns identification of
him by claiming that it was highly improbable for her to have seen his
face considering the circumstances surrounding her abduction. We
are however convinced that the trial court did not err in upholding the
credibility of Rosalyn and her positive identification of the accusedappellant.
First, Rosalyn was familiar with accused-appellant since he
frequently passed the road fronting her house. [10] Accused-appellants
claim that he never passed the feeder road fronting Rosalyns house
is belied by his own testimony, thus:
PROS. OFIALDA:
Q: Every time that you finish viewing television episode in the
house of Pepito Torres, you always go home in the house of
Rene dela Cruz, is that correct?
A: Yes, Sir.

Q: According to you the house of Rene is 200 meters away from

the house of Pepito?
A: Yes, Sir.
Q: And your house from the house of Pepito is also 200 meters?
A: More than that distance.
Q: More than 300 meters?
A: Less than that.
Q: For how long have you been watching television in the house of
Pepito Torres?
A: For a long time already.
Q: You are always passing the same path to the house of Pepito
Torres and the house of Rene dela Cruz?
A: Yes, Sir.
Q: And this is not a rice paddy?
A: No, it is a feeder road.
Q: The way from the house of Pepito Torres to the house of Rene
is a feeder Road?
A: Yes, Sir.
Q: So you are very much familiar with the road or the path?
A: Yes, Sir.
COURT
Q: From your house to the house of Pepito, do you have to pass
the house of the victim?
A: Yes, Your Honor.[11]

Second, Rosalyn had ample opportunity to ascertain the identity

of accused-appellant considering the length of time she spent with
him from the time she was abducted from her home at 11:00 p.m. and
brought to the plantation until the time she returned home at 2:00
a.m.. Moreover, we agree with Rosalyn that the light emitted from the
constant flashes of lightning enabled her to see accused-appellants
face. Her proximity to accused-appellant during the assault leaves no
doubt as to the correctness of her identification for a man and woman
cannot be physically closer to each other than during the sexual act.
[12]

Accused-appellants claim that Rosalyns parents have hostile

feelings against him for allegedly suspecting him of punching a hole
in their fishing boat and slashing their fishing net and for this reason
are falsely accusing him of having raped Rosalyn is not worthy of
belief. It has been held that no mother, or parent as in the present
case, would stoop so low as to subject their own daughter to the
hardships and shame concomitant to a prosecution for rape just to
assuage their own hurt feelings. A parent would not sacrifice their
daughters honor to satisfy a grudge, knowing fully well that such an
experience would certainly damage their daughters psyche and mar
her for life. Neither would they subject their daughter to a public trial
with its accompanying stigma on her as a victim of rape, if said
charge is not true.[13] Accused-appellant has failed to convincingly
establish that in accusing him of rape, Rosalyn or her parents were
moved by reasons other than obtaining justice.
We reject the claim that the reaction of Rosalyns mother, Artily,
after learning that Rosalyn was raped, was not consistent with human
nature. We do not find it unnatural or illogical for the victims mother to
confront her daughters assailant to ascertain whether or not he
indeed raped her. The fact that Artily appeared calm when she
confronted him does not detract from her credibility. From the
records, it appears that Artily was gathering information from possible
witnesses and was being careful before she made any accusations
against accused-appellant. People react differently to different
situations and in the present case, the conduct of the victims mother
at that time would not detract from the veracity of the charges against
accused-appellant.

Time and again this Court has ruled that the findings of the trial
court on the credibility of witnesses and their testimonies are
accorded great respect unless the court a quooverlooked substantial
facts and circumstances, which if considered, would materially affect
the result of the case.[14] After a careful review of Rosalyns testimony,
we find no cogent and legal basis to disturb the trial courts finding
upholding her credibility and disregarding the testimonies of the
defense witnesses, considering that she remained steadfast in her
narration and unfaltering in her testimony regarding the unfortunate
incident. The evaluation or assessment made by the trial court
acquires greater significance in rape cases because from the nature
of the offense the only evidence that can oftentimes be offered to
establish the guilt of the accused is the complainants testimony. [15] By
its very nature, rape is committed with the least possibility of being
seen by the public.[16]
Moreover, there was no allegation, much less proof, that Rosalyn
was motivated to falsely implicate him in the commission of such a
heinous crime, and the absence of convincing evidence showing any
improper motive on the part of the principal witnesses for the
prosecution strongly tends to sustain the conclusion that no such
improper motive exists, and that their testimonies are worthy of full
faith and credit.[17]
Although the medico-legal report[18] does not state that Rosalyn
sustained contusions and a hematoma on her lips and neck, the
omission is not fatal. It is well-established that the medical certificate
is merely corroborative in character and is not an indispensable
element in rape.[19] More importantly, the contradiction existing
between her testimony and the medico-legal report only pertains to
the existence of the injuries she claims to have sustained on her lips
and neck. There is no conflict between the said report and her claim
that she was raped since the report as testified to by Dr. Landolino
Meez confirms the sexual assault.
Finally, accused-appellants allegation that the trial court was
biased and pre-judged him is not substantiated by a reading of the
records. The fact that the trial judge asked questions during the
course of the trial does not necessarily make him biased especially
when it appears that the questions he propounded were clarificatory

in nature and obviously aimed at elucidating the testimony of

Rosalyn.[20] The argument thrown in by accused-appellant that the
trial court considered his alleged flight as an indication of his guilt
despite the absence of proof of the same does not help his
case. While we agree that it is the obligation of the prosecution to
clearly establish that he in fact fled, the absence of such an
incriminatory circumstance is not sufficient to exculpate him and
overturn the positive evidence against him.
The trial court properly convicted accused-appellant of the crime
of rape with the use of a deadly weapon, which is the crime charged
in the information. Rosalyn established that when she was raped,
accused-appellant brandished a scythe and threatened her with
it. Although the scythe was not presented in court, the production of a
weapon used in the commission of the crime is not a condition sine
qua non for the discharge of the burden of proof beyond reasonable
doubt for the same may not have been recovered at all from the
assailant.[21]
We however are constrained to agree with accused-appellant that
the trial court erred in appreciating the aggravating circumstances of
dwelling, nighttime, and uninhabited place in order to justify the
imposition of the death penalty.
Dwelling is considered as an aggravating circumstance primarily
because of the sanctity of privacy the law accords to the human
abode.[22] However, in the present case, Rosalyn was not raped
therein. Although she was abducted therefrom, accused-appellant
was not charged with forcible abduction with rape but only with
rape. Considering that she was not raped in her home, dwelling
cannot be appreciated.
The trial court also erred in appreciating the aggravating
circumstance of nighttime and uninhabited place. For nocturnity to
properly attend the commission of a crime, it must be shown that it
facilitated the commission of the offense and that it was purposely
sought by the offender. The fact that the offense was committed at
night will not suffice to sustain nocturnidad.[23] In the present case,
there was no evidence to prove that accused-appellant purposely
sought the cover of night when he raped Rosalyn. In the same vein,

the aggravating circumstance of uninhabited place cannot also be

appreciated in the absence of proof that solitude was purposely
sought or taken advantage of to facilitate the commission of the
crime.[24] The term uninhabited place does not refer to the distance of
the nearest house to the locus criminis for the more important
consideration is whether the place of commission affords a
reasonable possibility for the victim to receive some help. [25] The
evidence on record before us fails to provide any basis to conclude
that the specific circumstances surrounding the scene of the rape
were such that its state of being uninhabited prevented any
reasonable possibility that the victim could have possibly solicited
assistance to fend off her attacker.
The crime of rape is punished under Article 335 of the Revised
Penal Code, viz:
ART. 335. When and how rape is committed.- Rape is committed by
having carnal knowledge of a woman under any of the following
circumstances:
1. By using force or intimidation;
2. When the woman is deprived of reason or otherwise
unconscious; and
3. When the woman is under twelve years of age or is
demented.
The crime of rape shall be punished by reclusion perpetua.
Whenever the crime of rape is committed with the use of a
deadly weapon or by two or more persons, the penalty shall be
reclusion perpetua to death. (Emphasis supplied)
Since the crime was committed with the use of a deadly
weapon, i.e. a scythe, it is punishable with reclusion perpetua to
death. In the absence of any mitigating or aggravating circumstances,
the penalty that should thus be imposed is reclusion perpetua.
[26]
Accused-appellant is also hereby ordered to indemnify the victim
with the amounts of P50,000.00 as compensatory damages
and P50,000.00 as moral damages.[27]

WHEREFORE, the appealed decision of the Regional Trial Court

finding the accused GENER B. AGONCILLO guilty beyond
reasonable doubt of the crime of rape in Criminal Case No. 5006
is AFFIRMED. However, the
penalty
imposed
is MODIFIED to reclusion perpetua, and he is further ordered to pay
the victim, Rosalyn Salvador, the amounts of P50,000.00 as
compensatory damages and P50,000.00 as moral damages.
No pronouncement as to costs.
SO ORDERED.
Davide, Jr., C.J., Puno, Vitug, Mendoza,
Quisumbing,
Pardo,
Buena,
Ynares-Santiago,
Jr., and Sandoval-Gutierrez, JJ., concur.

Panganiban,
De
Leon,

Bellosillo, Melo, and Kapunan JJ., on leave.

OTHER:
G.R. No. L-985

January 23, 1948

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
DIONISIO AGONCILLO, defendant-appellant.
Macario Nicolas for appellant.
Assistant Solicitor General Ruperto Kapunan, Jr., and Solicitor
Federico V. Sian for appellee.

PARAS, J.:
This is an appeal from the judgment of the People's Court finding the
appellant, Dionisio Agoncillo, guilty of treason and sentencing him to
suffer fifteen years of reclusion temporal and to pay a fine of two
thousand pesos and the costs.
According to the information, from February, 1944, to March, 1945, in
Cebu City and its environs, the appellant (1) "did consistently and
continuously traffic in war materials and sold them to the enemy," and
(2) "did join and serve the enemy as informer, agent, and spy." The
People's Court held that the second count was not proven, and the
appealed judgment of conviction is predicated solely on the first
count.
Under the theory of the prosecution, appellant's adherence to the
enemy is inferable from the following alleged facts: (a) In the
afternoon of September 20, 1944, while the appellant was taking a
bath in the house of his neighbor Rufina Cepeda, the latter's cousin
(Olimpio Do), who knew how to read Chinese, examined appellant's
clothes and found therein appellant's identification card written in
Japanese and Chinese characters tending to show that the appellant
was a Japanese undercover. (b) In January 1945, after a trip to
Bohol, Rufina Cepeda told the appellant that there were guerrillas in
Bohol and that Japanese notes were no longer accepted in said
place. In the evening of the next day, Rufina Cepeda was arrested by
the Japanese and their undercovers and asked about things she saw
in Bohol. Rufina was detained for three days. After her release, the
appellant came to her house and got some chickens for the
consumption of the Japanese who arrested her. A Japanese also
used to sleep once in a while in appellant's house.
Upon the other hand, appellant's alleged overt acts of giving aid and
comfort to the enemy are summarized in the brief for Government as
follows: In the middle of April, 1944, the appellant sold about 300 kilos
of alum crystals, at three pesos a kilo, to the Keribo, a construction
company operated by the Japanese Army. Two or three weeks
thereafter, he sold to the same entity some 100 pieces of water pipes,
the price of which was not known. About the third week of December,
1944, the appellant was seen on Jones Avenue helping push a

handcart full of truck and auto tires, batteries and spare parts into the
intermediate and high school premises then used by the Japanese
Army as a motor pool.
Regardless of the writer's view on suspension of political laws and
change of sovereignty as heretofore expressed, the Court is of the
opinion that the overt acts imputed to the appellant have not been
duly proven. With respect to the sale of 300 kilos of alum crystals, the
testimony of the prosecution witness Lorenzo Barria to the effect that
the price was P3 a kilo, is not corroborated by any other witness. With
respect to the alleged sale of 100 pieces of water pipes, counsel for
the appellee admits that the price thereof was not known. An
essential part of the overt act charged in the information was
therefore lacking. No pretense was made that the appellant donated
the articles in question. The alleged delivery of truck and auto tires,
batteries and spare parts can be disregarded. The only detail that
may at most be considered established by the prosecution refers to
the fact that the appellant helped in pushing a handcart loaded with
such articles, and the evidence is even uncertain in one respect,
namely that the cart was brought either to the intermediate school
premises or the high school building. Indeed it was acknowledged by
the lower court that the witnesses for the Government did not know
how the appellant disposed of the articles loaded in the cart.
Even supposing, however, that the appellant had really sold for a
definite price alum crystals and water pipes, the same did not per
se constitute treason. As said articles or materials were not
exclusively for war purposes, their sale did not necessarily carry an
intention on the part of the vendor to adhere to the enemy. The theory
of the prosecution is that the sale was treasonable in view of the
other proven acts showing appellant's adherence to the enemy. It
appears, however, that the alleged acts of adherence performed by
the appellant took place after the overt act in question. It is not
unlikely that at the time the appellant made the sale, his motive was
purely personal gain, uninfluenced by any benefit inuring to the
enemy. Where two probabilities arise from the evidence, the one
compatible with the presumption of innocence will be adopted.
(People vs. Agpangan, G.R. No. L-778, October 10, 1947.)

Wherefore, the appealed judgment is reversed and the appellant

acquitted with costs de oficio. So ordered.

3.) People VS Godinez

Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-895

December 31, 1947

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
JOSE LUIS GODINEZ, defendant-appellant.

Cardenas and Casal for appellant.

Assistant Solicitor General Manuel P. Barcelona and Acting Solicitor
Pedro Ocampo for appellee.

BENGZON, J.:
Prosecuted and tried for treason, the accused-appellant Jose Luis
Godinez was found guilty by the Fifth Division of the People's Court,
Judge F.V. Borromeo dissenting.
He was a shipmaster in the Philippines coastwise trade before the
Pacific War. After the Japanese invasion, from May, 1942 to June,
1943, he rendered services to the Japanese Navy, as pilot in the Port
of Cebu, bringing their ships into harbor and otherwise performing
work connected with navigation. He was paid monthly salaries. After
a period of rest due to ill health, he was again engaged by the
Japanese Army to do the same chores from May, 1943 to October,
1944, at varying rates of compensation.
The prosecution's case rests on such acts of cooperation interpreted
in the light of incidents, hereafter mentioned which, it is argued,
demonstrate treasonable adherence to the enemy, making defendant
guilty as charged.
In his defense the accused swore that he had to serve the Japanese
because he was required by them to do so, that he could not give any
valid excuses, that if he made any false statements he would be
caught, and killed; and that even if he could escape, the many
members of his immediate family would be left to their ruthless ill-will.
The majority of the trial judges discounted this explanation saying, in
effect, that the danger to the accused was not imminent, because
other merchant marine officers, like Captain Obosa and Joaquin Alex
succeeded in evading service to the Japanese and were not
molested. It was not demonstrated, however, that these seamen were
surrounded by the same circumstances of herein indictee, as to
family members, means of evasion, personal relations or conditions,
etc., all of which necessarily affected any decision to serve or not to
serve. To clinch its case the prosecution should have attested that

appellant had a valid excuse or that he could eluded the wrath of the
masters. Furthermore, the mere fact that some Filipinos were brave
enough to refuse and were lucky enough to be let alone is no
conclusive reason to hold that in truth there was no danger in denying
the conqueror's demands. There were persons put to death or
maltreated for so refusing, and that was known at the time, as
admitted on the stand by the people's witness Francisco Garcia.
Again, it may be that such marine officers were not pressed by the
Japanese precisely because the herein accused and others (Eduardo
Gonzales, Marcelo Ayesa) had consented to render pilotage service.
Those who refused to cooperate, in the fact of danger, were patriotic
citizens; but it does not follow that the faintheart, who gave in, were
traitors. On this subject the statement of President Osmea in
November 1944, may be quoted:
. . . Not all public officials could take to the hills to carry on the
heroic struggle. Some had to remain in their posts to maintain a
semblance of government, to protect the population from the
oppressor to the extent possible by human ingenuity and to
comfort the people in their misery. Had their services not been
available, the Japanese would either have themselves
governed directly and completely or utilized unscrupulous
Filipino followers capable of any treason to their people. The
result would have been calamitous and the injuries inflicted to
our body politic beyond cure.
The problem under consideration must be solved with justice
and dignity. Every case should examined impartially and
decided on it own merits. Persons holding public office during
enemy occupation, for the most part, fall within three
categories; those prompted by a desire to protect the people,
those actuated by fear of enemy reprisals, and those motivated
by disloyalty to our government and cause. The motives which
caused the retention of the office and conduct while in office,
rather than the sole fact of its occupation, will be the criteria
upon which such persons will be judged. (Official Gazette, Vol.
41, No. 1, p. 102.)
It is now undisputed that the mere governmental work under the
Japanese

regime and pilotage service may be considered in the same

light 1 does not constitute per se indictable disloyalty.
It is contended, however, that appellant's help to the
Japanese together with criminal intention to betray render him guilty
of treason. Proof of this traitorous intent is made to consist of five
circumstances described in the brief of the Solicitor General as
follows:
(1) During the year 1943, accused often went to the coffee shop
of S. P. Banis and during the discussion between Banis and
appellant, the latter always showed his pro-Japanese
sentiments. On one occasion, during November, 1943, Banis
told him about the expected arrival of the Americans, and the
appellant exclaimed that Banis was crazy in believing that the
Americans were coming back to the Philippines, because
according to the appellant, the American forces would never
back to these Islands (testimony of S. P. Banis, p. 10, t.s.n.,
Lopez).
(2) Sometime in July, 1942, Capt. Canuto Obosa was in Cebu
City for a few days. He saw the appellant inside his own
automobile which carried a Japanese flag and on his left arm,
appellant was wearing a band with Japanese characters
(testimony of Capt. Canuto Obosa, pp. 1-2, t.s.n., Lopez).
(3) When the Japanese landed in Cebu City on April 11, 1942,
the accused with two other persons went up a Japanese ship
anchored alongside the Pier, presented his respects to the
Japanese officer in charge of the boat, handed to him a revolver
which was examined by said Japanese officer. The appellant
showed how the firearm worked by firing the pistol (testimony of
Antonio Yee, pp. 14-15, t.s.n., Lopez).
(4) From April 1942 to October, 1944, the appellant had a
Japanese flag placed on the door of his house situated at D.
Jakosalem Street, Cebu City about a foot wide and about two
feet long and on the left side of the door was a piece of board
with Japanese Characters written on it (testimony of Antonio
Yee, p. 15, t.s.n., Lopez.)

(5) During the middle of September, 1944, when American

planes were dropping bombs in Cebu City, the appellant who
was in the lawn of his house said, more or less, the following:
"Those sons of the bitches of Americans (referring to the
American aviators) are the gangsters of the United States; they
are drunk, they will go down". (Testimony of William del Villar, p.
7, t.s.n., Dizon.)
I. On the first point, the accused denied having stated the Americans
could never come back, admitting, however, having expressed the
belief that it was not easy for them to return, in view of the successive
victories of the Imperial hordes at that time. Even if appellant had
uttered the words attributed to him, it is doubtful whether they
exhibited adherence to the foe, unless it is shown that he wanted, or
rejoiced in the inability to return of the American forces. But it is hard
to believe appellant wished the defeat of our allies, because he had
two sons in the guerrilla forces. And if he ever made the remark, it
was probably as one of those arm-chair strategists dishing out war
opinions on the basis of doctored news fed by the propaganda
machine to the local newspapers and broadcasting stations. The man
was sadly in error; he underestimated the publicity corps of the
Japanese Army; but should he be jailed for it?
II. The second point has no merit. Although there was proof about a
Nippon flag fluttering on the automobile the appellant rode, no
evidence was adduced that the car belonged to him.
III. On the third point the appellant swore that when the Japanese
arrived in Cebu, they arrested him, and when they found, after
investigation, that he was a marine officer they ordered him to report
the next day to the Port Surveyor, bringing any firearms he had in his
possession; that he did as directed and surrendered his pistol. His
version is entirely credible. Those who were in Manila during the first
days of January, 1942, remember identical directives of the Military
Commander. And if surrender of the firearm meant treasonable
collaboration, thousands of Manila residents would be traitors too.
IV. About the display of the Rising Sun. The witness of the
prosecution had to admit that after the fall of Cebu City the Japanese

issued orders requiring every resident to hoist a Japanese flag in their

houses and that refusal to obey meant death. Naturally, compliance
with this decree should not be chalked against appellant, a resident
therein.
V. The accused denied having made the insulting statements imputed
to him by William de Villar against American aviators that raided
Cebu, and proved that said witness bore a grudge against him that
probably colored the testimony. Anyway, his counsel, pleading in
extenuation, submitted some endorsable comments upholding the
proposition of one undergoing the nerve-racking experience of aerial
bombardments, for caustic remarks spoken in private motivated by
his apprehension for the safety of his family and his own.lawphil.net
After considering all matters, the Court reaches the conclusion that
defendant's disloyal heart or treacherous mind has not been
established beyond reasonable doubt. He is absolved, with costs de
oficio.
Moran, C.J., Paras, Pablo, Perfecto, Hilado, Padilla, and Tuason, JJ.,
concur.
MORAN, C.J.:
I certify that Mr. Justice Feria and Mr. Justice Briones voted to
absolve appellant.
OTHER:

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SUBSCRIBE
People v. Godinez (1992)
Annotate this Case
[No. D011281. Fourth Dist., Div. One. Jan 7, 1992.]
THE PEOPLE, Plaintiff and Respondent, v. ROBERTO GODINEZ,
Defendant and Appellant.

[Opinion certified for partial publication. fn. 1 ]

(Superior Court of San Diego County, No. CR93197, William J.
Howatt, Jr., Judge.)
(Opinion by Froehlich, J., with Work, Acting P. J., and Nares, J.,
concurring.)
COUNSEL
Christine Vento, under appointment by the Court of Appeal, for
Defendant and Appellant.
Daniel E. Lungren, Attorney General, George Williamson, Chief
Assistant Attorney General, Harley D. Mayfield, Assistant Attorney
General, Keith I. Motley and Patti W. Ranger, Deputy Attorneys
General, for Plaintiff and Respondent.
OPINION
FROEHLICH, J.
By an information, Roberto Godinez (Godinez) was charged with the
murder of Antonio Servin Segura (the victim). It was [2 Cal. App. 4th
495] further alleged Godinez personally used a knife in committing
the murder, in violation of Penal Code section 12022, subdivision (b).
A jury convicted Godinez of voluntary manslaughter, but found untrue
the allegation he personally used a knife. Godinez was sentenced to
the midterm of six years.
Godinez raises several contentions on appeal. First, he claims the
trial court prejudicially erred in its instruction to the jury explaining that
homicide is a reasonable, natural and expected consequence of a
gang attack. Second, he argues there was insufficient evidence
indicating the homicide was a reasonable and natural consequence
of the gang attack in which he participated. Third, he claims the trial
court erred in ruling that his admissions to police were voluntary.

Finally, he claims his counsel was ineffective for having introduced

the tape-recorded admissions into evidence.
Our independent review of the admissions leads us to conclude they
were voluntary. However, we find, from a review of the entirety of the
evidence, that although there was sufficient evidence from which a
jury could have concluded the homicide here was a natural and
reasonable consequence of the gang assault on the victim, there was
also a reasonable possibility the jury could have reached the opposite
conclusion. We therefore conclude the trial court's instruction was
prejudicially erroneous, and accordingly must reverse. fn. 2
I. Factual Background
A. The Prosecution's Case
Cesar Ibanez, Manuel Sandoval and the victim were members of a
gang known as the Old Town National City Insane Boys (O.T.N.C.).
As they were heading home on the evening of January 29, 1988,
Ibanez, accompanied by Sandoval and the victim, drove into a gas
station located in an area of San Diego known as "Shelltown"-an area
"claimed" by a rival gang known as the "Shelltown Gamma Boys"
(Shelltown).
Although the O.T.N.C. and Shelltown gangs were enemies, and fights
occurred when one gang was found on another gang's turf, Ibanez
and Sandoval did not go into the gas station looking for a fight.
Ibanez had purchased gas from the same station on several prior
occasions and had never seen any members of the Shelltown gang
around the station. He would not have stopped there had he seen
Shelltown gang members at the station.
Both Ibanez, who was walking with an intent to pay for gas, and
Sandoval, who remained in the car, saw a male (whom Sandoval
identified as [2 Cal. App. 4th 496] Godinez) dressed in a jacket
bearing the Shelltown colors standing by some air pumps and
"throwing hand signs" (giving hand signals). Standing next to Godinez

was another Shelltown gang member. Both Ibanez and Sandoval

recognized the signs as indicating Godinez's membership in the
Shelltown gang and, because they were on Shelltown turf, interpreted
the signs as a challenge to fight. Realizing that trouble was imminent,
and suspecting there were other Shelltown gang members nearby
ready to help Godinez if trouble occurred, Ibanez abandoned the idea
of getting gas, returned to his car and began driving away.
As Ibanez drove away, Godinez, who was still "throwing hand signs,"
ran after the car. The victim, who was inside the car, yelled out
"Insane Boys Gang O.T.N.C." and also gave his own hand signs,
indicating he accepted the challenge to fight. Ibanez had to slow
down for a red light at a nearby intersection. As he slowed down, the
victim and Sandoval jumped from the car and ran toward Godinez
and the other Shelltown member. Knowing a fight would ensue,
Sandoval accompanied the victim to back him up.
As the victim and Sandoval moved toward Godinez and his
associate, approximately five more members of Godinez's gang
came running to join the fray. Although Sandoval had initially intended
to fight, when he saw they were outnumbered he yelled at the victim
to run, and Sandoval retreated to Ibanez's car. By the time the victim
realized he was outnumbered and tried to retreat, it was too late-he
had been surrounded by Shelltown gang members. Sandoval claimed
Godinez started the fight by punching the victim in the face, causing
him to fall to the ground. The people surrounding the victim began
kicking and punching him as he lay facedown on the ground.
Although none of the four eyewitnesses saw any knives being used,
one eyewitness testified the motions of two of the Shelltown gang
members were consistent with use of a knife.
Sandoval retreated to the car to search for a weapon to equalize the
mismatched fight. The sound of an approaching siren, however,
caused the Shelltown gang members surrounding the victim to retreat
and climb into a van. One member of the retreating force (identified
by Sandoval as Godinez) returned to administer another kick to the

victim, who was still lying on the ground. Another witness stated,
however, the returning member also made stabbing motions on the
prostrate victim, although the witness did not see a knife. That gang
member then returned to the van.
Sandoval had returned to the car and steered it toward other
Shelltown gang members in an attempt to hit them and to stop the
van from fleeing. As Sandoval drove up, Godinez threw a bottle at the
car, smiling and laughing [2 Cal. App. 4th 497] at Sandoval. Godinez
and the rest of his group then successfully boarded the van and fled
the scene.
Ibanez and Sandoval then tried to help the victim into the car. At that
point they realized the victim was bleeding from stab wounds. Before
they could transport the victim anywhere, police arrived and took
over, with paramedics then arriving to transport the victim to the
hospital. The victim was pronounced dead at the hospital.
Godinez was arrested the following morning and, after waiving his
Miranda rights, interrogated concerning the crime.
B. The Prosecution's Experts
Medical testimony revealed that in addition to the multiple injuries
suffered from punches and kicks, the victim suffered seven stab
wounds. Any one of the three stab wounds, involving injury to the
lungs, heart and spleen, could have been fatal. Death was attributed
to massive loss of blood from the multiple stab wounds.
Detective Aguirre, the prosecution's gang expert, testified about the
gang subculture, including the various indicia of gang membership,
such as tattoos, clothing, association with gang members, and
outright "claims" of gang membership. He also discussed the use of
hand signs and words in communicating membership and challenges,
as well as the territorial aspects of gangs.

Aguirre testified that not all gangs are rivals of all other gangs, but
when two members of rival gangs meet there usually is a violent
confrontation, especially if one gang is in another's territory and is
outnumbered. He indicated there is a rivalry between the Shelltown
and the O.T.N.C. gangs, which has resulted in violent confrontations
in the past.
When a challenge is issued, the challenged gang must accept it or
lose face. Aguirre indicated that when a rival gang drives by and
shouts a challenge, the "usual" result is a shooting, fight or some
other act of violence. However, he did not specifically testify deaths
are a usual, or even frequent, result of such challenges, nor did he
present statistical evidence concerning the frequency with which
gang fights resulted in deaths.
Aguirre testified gangs also have a social (not just antisocial) aspect,
and that not all persons who "claim" gang membership are in fact
hard-core members but may instead be peripheral members who only
associate with [2 Cal. App. 4th 498] the gang for its social aspects.
However, social participants could nevertheless find themselves in
the middle of a fight. He also indicated that Shelltown gang members
have expressed a desire to resolve differences with other gangs and
lead a hassle-free life, but noted that even those who profess such
attitude still find themselves in violent, sometimes brutal,
confrontations.
C. Defense Evidence
The defense's case revolved principally around Godinez's claim that
he was not the actual "stabber," and that he was only marginally
involved in the fight with the victim. Godinez testified he had been a
member of Shelltown, the rival to the O.T.N.C. gang, and that his
gang was active in many social functions, such as parties, dances
and football games. He also indicated his gang did not rival all other
gangs but generally tried to make peace with them. Although Godinez
was aware of the rivalry between the Shelltown and O.T.N.C. gangs,

he had never been involved in or seen any fights between the two
groups, nor had he ever been involved in any other gang fights.
Godinez also testified that "throwing signs" does not always mean a
challenge to fight, explaining that such gang signs can be a form of
greeting and recognition.
On the night of the incident, Godinez was with four Shelltown gang
members and four girls. They were in a van getting gas at the station
where the incident occurred. Godinez was standing outside the van
when Ibanez drove up in his car. When Godinez next noticed the car,
someone was walking toward it. Godinez then saw someone stick his
head out the window and wave, but did not interpret the gesture as a
gang sign. Godinez responded with the Shelltown sign, only to
identify himself, not to represent a challenge.
After the car pulled away, Godinez saw the victim emerge from the
car. The victim then began arguing with Godinez about gangs. He
walked quickly toward Godinez, carrying something in his hand, as if
wanting to fight. The victim was also throwing signs as if to challenge
a fight. He swung at Godinez, cutting Godinez's hand. Godinez then
took several steps backward and dropped to the ground to nurse his
wound. When Godinez looked up, he saw several Shelltown gang
members pursuing the victim. The group caught the victim, pushed
him to the ground and began hitting and kicking him. Godinez moved
toward the group to join the fray. He never reached the group,
however, because the gang ran away when police approached.
Godinez testified he neither had an intention of getting into a fight that
night nor of getting into a fight with the victim until after the victim
attacked [2 Cal. App. 4th 499] him. Godinez claimed he did not have
a knife, did not know his fellow gang members had knives, and did
not know the victim had been stabbed. He also claimed he did not
kick, punch or stab the victim, and he was the only Shelltown gang
member who did not participate in the attack.
II. The Verdict and Sentence

The jury acquitted Godinez of first and second degree homicide, but
found him guilty of the lesser included offense of voluntary
manslaughter. It also found untrue the allegation that Godinez
personally used a knife during the attack. Godinez's motions to
reduce the offense and for a new trial were denied. He was
sentenced to the midterm of six years.
III. There Was Substantial Evidence to Support a Jury Finding That
the Homicide Was a Natural and Reasonable Consequence of the
Gang Attack
[1a] We evaluate the evidence based on aider and abettor principles,
because it appears Godinez was convicted as an aider and abettor,
rather than as the actual perpetrator of the stabbing which caused the
death. fn. 3 [2] The parties agree the liability of an aider and abettor is
not limited to the target crime which he knowingly and intentionally
aids and encourages, but can include crimes committed by the
perpetrator which are natural and reasonable consequences of the
criminal course of conduct the aider and abettor knowingly aids and
encourages. (People v. Jones (1989) 207 Cal. App. 3d 1090, 10951096 [255 Cal. Rptr. 464].) It is now settled that it is a question of fact
whether the charged offense was a natural and reasonable
consequence of the target offense knowingly encouraged, and the
jury should be instructed of its responsibility to determine this factual
issue. (People v. Hammond (1986) 181 Cal. App. 3d 463, 469 [226
Cal. Rptr. 475].)
[1b] Godinez argues there was no substantial evidence the homicide
was a natural and reasonable consequence of the gang attack upon
the victim because (1) the prosecution's expert did not specifically
state that homicides occurred during gang attacks; (2) no witness
saw any knives; (3) Godinez denied participating in the attack; and
(4) he denied knowing his fellow members had knives.
However, the record as a whole provided substantial evidence from
which a reasonable jury could have found the homicide was a natural

consequence [2 Cal. App. 4th 500] of the gang attack which Godinez
aided and encouraged. There was ample evidence, and inferences
drawable therefrom, upon which to conclude that Godinez's denial of
participation in the attack and denial of knowledge of knives lacked
credibility. One witness identified him as a participant in, and indeed
as the instigator of, the attack. There was little doubt the attackers in
fact used at least one (if not more than one) knife, given the seven
stab wounds suffered by the victim. Godinez admitted having
associated with the gang members for several years, and further
admitted riding around in a van with the attackers for several hours
before the assault, permitting an inference he was aware they
possessed knives that night. The jury could also have rejected the
credibility of Godinez's denial of knowledge of knives simply based
upon Godinez's own admissions that he lied under certain
circumstances. fn. 4
Moreover, although the police expert did not specifically link
"homicides" with gang confrontations, he did state that he had seen
rival gangs issue "drive-by" challenges, and the usual result was a
shooting, fight or other violent act. Indeed, when a "drive-by"
challenge is shouted by a rival, people dive for cover fearing a
shooting will occur. He testified that anytime rivals meet, a violent
confrontation is strongly possible, especially if one gang is in the
rival's territory and outnumbered. When there is a gang confrontation,
he stated, it is violent and can be "very brutal." Based on this
testimony and the common knowledge that an unfortunate reality of
modern times is that gang confrontations all too often result in death
(which jurors are entitled to consider), there was ample evidence from
which a jury could have found the homicide was a natural
consequence of the gang attack Godinez aided and encouraged.
IV. The Trial Court Prejudicially Erred in Instructing the Jury That
Homicide Is a Natural and Reasonable Consequence of a Gang
Attack

[3a] Even though a jury could have found the homicide a natural
consequence of the gang attack, Godinez argues reversal is required
because the jury was effectively instructed that it must find the
homicide to be such a natural consequence. The aider and abettor
instruction, to which Godinez objected, stated:
"The persons concerned in a commission of a crime who are
regarded by law as principals in the crime thus committed and equally
guilty thereof [2 Cal. App. 4th 501] include, one, those who directly
and actively commit the act, executing the crime, or [] [t]wo, those
who aid and abet the commission of the crime.
"One who aids and abets is not only guilty of the particular crime that
to his knowledge his confederates are contemplating committing, but
he is also liable for the natural and probable consequences of any act
that he knowingly and intentionally aided or encouraged. It is for you,
the jury, to determine whether the defendant is guilty of the crime
allegedly committed-excuse me-allegedly contemplated and, if so,
whether the crime charged was a natural and probable consequence
of the criminal act knowingly and intentionally encouraged.
"Homicide is a reasonable and natural consequence to be expected
in a gang attack, though it is not necessary to show that one was
aware that any of his co-assailants possessed deadly weapons."
(Italics added.)
[4] (See fn. 5.) The italicized portion, Godinez claims, is erroneous
under any one of several theories: (1) It was tantamount to a directed
verdict; (2) It created an impermissible mandatory presumption; or (3)
It deprived the jury of its factfinding role by removing an issue from its
consideration, i.e., by presuming homicide is a natural consequence
of gang attacks. fn. 5
A. The Instruction Was Erroneous
[3b] "The critical element which must be found to establish vicarious
[i.e., aider and abettor] liability for an unplanned offense is that the

[unplanned] offense was in fact a natural and probable consequence

of the [2 Cal. App. 4th 502] targeted offense" (People v. Jones,
supra, 207 Cal.App.3d at p. 1096), and this determination is a factual
one for the jury (People v. Hammond, supra, 181 Cal.App.3d at p.
469). The instant instruction usurped the factfinding role of the jury by
explaining that homicides are in fact reasonable and natural
consequences of gang attacks, rather than leaving to the jury the
question of whether the homicide here was a natural and reasonable
consequence of the gang attack Godinez aided and abetted.
Instructions have been deemed erroneous which deprive a defendant
of the right to have the jury determine the relevant factual issues.
(People v. Hedgecock (1990)51 Cal. 3d 395, 407- 409 [272 Cal. Rptr.
803, 795 P.2d 1260]; People v. Figueroa (1986) 41 Cal. 3d 714, 724
[224 Cal. Rptr. 719, 715 P.2d 680].)
Numerous courts have declared erroneous a variety of instructions
which, like the instant one, have deprived the jury of its factfinding
role by declaring that certain factual questions have been
established. In People v. Nava (1989)207 Cal. App. 3d 1490, 1498
[255 Cal. Rptr. 903], and again in People v. Beltran (1989) 210 Cal.
App. 3d 1295, 1303 [258 Cal. Rptr. 884], the courts concluded it was
improper to instruct a jury that a bone fracture constitutes a
substantial and significant injury within the meaning of a sentencing
enhancement, because such factual question must be left to the jury.
The court in People v. Jarrell (1987) 196 Cal. App. 3d 604, 607 [242
Cal. Rptr. 219] and in People v. Hutchins (1988) 199 Cal. App. 3d
1219, 1221- 1222 [245 Cal. Rptr. 541] concluded it was improper to
instruct the jury that if it found the defendant guilty, it must fix the
degree of the crime as first degree. In each of these cases the court
concluded that, no matter how strong the evidence, it is error for the
court to deprive the defendant of the right to a jury determination of
relevant factual issues.
The People contend it was not improper for the court to give this
instruction, arguing that our Supreme Court's holding in People v.
Brown (1988) 46 Cal. 3d 432 [250 Cal. Rptr. 604, 758 P.2d 1135]

demonstrates that instructions on a "point not open to dispute" do not

improperly deprive the jury of its factfinding function. However, the
Brown court approved an instruction which merely explained a point
of law: that as a matter of law members of a certain police
department were "peace officers" within the meaning and scope of a
statutory enhancement. (Id. at pp. 443-444 and fn. 6.) While statutory
interpretation may present a question of law not open to dispute, we
cannot agree that a court may conclude as a matter of law that
homicide is always a foreseeable consequence of any gang attack.
fn. 6
Because the instruction was erroneous, we must evaluate whether
the error was prejudicial. [2 Cal. App. 4th 503]
B. The Error Is Not Harmless Beyond a Reasonable Doubt
Godinez insists that per se reversal is required because the error
deprived him of his right to a jury trial, rendering the trial
"fundamentally unfair" within the meaning of Rose v. Clark (1986) 478
U.S. 570, 577 [92 L. Ed. 2d 460, 470, 106 S. Ct. 3101]. He
alternatively argues that, at a minimum, the error must be tested
under the "harmless beyond a reasonable doubt" standard articulated
in Chapman v. California (1967) 386 U.S. 18, 21 [17 L. Ed. 2d 705,
708-709, 87 S. Ct. 824, 24 A.L.R.3d 1065]. Such standard, the
People insist, must be applied if error is found.
[5] There appears to be some uncertainty over which standard is
applicable to instructions, such as the subject instruction, which are
viewable either as creating a presumption or as partially directing a
verdict on an issue the People must prove. (See People v. Nava,
supra, 207 Cal.App.3d at p. 1498, fn. 3.) "Generally, when a trial court
instructs the jury that an element of the offense charged is
conclusively presumed, the effect of the error appears to be
measured by the 'harmless beyond a reasonable doubt' standard set
forth in [Chapman] .... But when the error renders the trial
'fundamentally unfair,' the error is reversible per se." (People v.

Hedgecock, supra, 51 Cal. 3d 395, 410.) We are not required to

decide definitively which standard is applicable, because, even under
Chapman, we are not convinced beyond a reasonable doubt the error
was harmless.
To determine whether an error is harmless under Chapman, we must
decide whether there is a reasonable possibility the error might have
contributed to the conviction. (People v. Powell (1967) 67 Cal. 2d 32,
56-57 [59 Cal. Rptr. 817, 429 P.2d 137].) Even though, as we
concluded above, a jury could have found the homicide was a
reasonable and natural consequence of the gang attack, if a
reasonable jury could have reached a contrary conclusion, the error
is prejudicial under Chapman. (People v. Nava, supra, 207
Cal.App.3d at p. 1499.)
[3c] On the facts of this case it is reasonably possible a jury might
have concluded the victim's death was not a reasonable and natural
consequence [2 Cal. App. 4th 504] of the attack Godinez aided and
abetted. There was no evidence (statistical or otherwise) regarding
the probabilities or frequencies of chance encounters between gangs
resulting in fights causing death. The prosecution's expert did not
testify that homicide is a natural consequence of a gang attack.
Although he testified some encounters do result in brutal fights, he
did not testify such fights always, frequently, or even occasionally
result in the death of a participant.
Moreover, the evidence suggested this was a chance encounter
rather than a planned ambush, permitting an inference the
participants' objectives during the fight were originally limited to
administering merely a mild beating to establish turf dominance, and
the escalation was not a reasonably foreseeable consequence of the
initial fight. Godinez testified he did not know his associates were
carrying knives. If the jury credited this testimony, fn. 7 it could have
concluded the fatal stab wounds were not a reasonably foreseeable
consequence of the fight he knowingly encouraged-a fight between
unarmed combatants. Indeed, despite his membership for several

years in the Shelltown gang, he testified he had never been involved

in or seen any fights between Shelltown and O.T.N.C. or any other
gangs, permitting an inference that homicide was not reasonably
foreseeable.
The harmful effect of the instruction was magnified by the
prosecution's closing argument. The prosecution made no effort to
convince the jury this homicide was in fact a reasonable and natural
consequence of the "target offense"-the gang attack on the victims.
To the contrary, on several occasions it seized upon the instruction to
stress that the law declares homicide to be a foreseeable
consequence of a gang attack, and the only required showing was
Godinez's participation in a gang attack on the victim. fn. 8
Finally, we note this was not an open-and-shut case: The jury
deliberated for several days, during which time it requested rereading
of certain testimony and a chance to view certain exhibits. It is
significant, moreover, that [2 Cal. App. 4th 505] the jury acquitted
Godinez of personally using a knife, and during its deliberations
asked the court to reread instructions and answer questions
concerning the extent of aider and abettor liability. The inference is
compelling that appellant was convicted upon a finding of aider and
abettor status.
Under these circumstances we cannot conclude that removing from
the jury's purview the factual question of whether the homicide was a
natural and reasonable consequence of a gang attack was harmless
beyond a reasonable doubt. Accordingly, we must reverse.
V. The Confession Was Properly Admitted as a Voluntary Confession
fn. ***
VI. Conclusion
We conclude the admissions were not coerced and there was
sufficient evidence from which a jury could have found, as a factual
matter, the homicide was a natural and reasonable consequence of

the gang attack. However, because the jury could also have reached
the contrary conclusion, but the instruction erroneously removed this
factual issue from its purview, reversal is required.
Disposition
The judgment is reversed.
Work, Acting P. J., and Nares, J., concurred.
FN 1. Pursuant to California Rules of Court, rule 976.1, this opinion is
certified for publication with the exception of part V.
FN 2. In light of our disposition, it is unnecessary to reach the
"ineffective assistance of counsel" argument.
FN 3. At trial the People's lead argument was that appellant was
guilty as an aider and abettor. On appeal the People do not seriously
argue that the jury convicted appellant as the perpetrator. Moreover,
the jury's verdict shows it was unconvinced appellant actually
stabbed the victim, since it found untrue the "personal use of a knife"
allegation.
FN 4. When Godinez was originally questioned by police, he claimed
he was in Tijuana on the night of the incident. His story later evolved
into having been at the site of the incident, alone, and having cut his
hand several days earlier while climbing over a fence. It then evolved
into admitting the victim had come at him and cut him with the knife
but the people who came to his aid were not from the group with
whom he had been riding. At trial he admitted telling the police
several stories, none of which was the story he related in court.
FN 5. Godinez also attacks the last clause of the instruction by
arguing that, as a matter of law, aiders and abettors cannot be liable
for homicides unless there is proof they knew their confederates
possessed a weapon. He relies on People v. Butts (1965) 236 Cal.
App. 2d 817 [46 Cal. Rptr. 362] for this proposition. Our review of

Butts reveals it is at best unsupported by any law, and at worst

inconsistent with subsequent authority. Regarding the former defect,
Butts reached its conclusion after citing People v. Cayer (1951) 102
Cal. App. 2d 643 [228 P.2d 70], ignoring the fact that Cayer's holding
was precisely the opposite: it upheld aider and abettor liability for a
homicide in which the actual perpetrator killed the victim without use
of a weapon. (Id. at p. 651.) Regarding the latter defect, Butts stated
aider and abettor liability for a homicide required the defendant to
advise and encourage actual use of, or to share the perpetrator's
intent to use, the knife, or to have had advance knowledge of the
intended use of the knife. (236 Cal.App.2d at p. 836.) That is not the
mens rea of an aider and abettor: The only requirement is that
defendant share the intent to facilitate the target criminal act and that
the crime committed be a foreseeable consequence of the target act.
(People v. Croy (1985) 41 Cal. 3d 1, 12, fn. 5 [221 Cal. Rptr. 592, 710
P.2d 392].)
We conclude that, although evidence indicating whether the
defendant did or did not know a weapon was present provides grist
for argument to the jury on the issue of foreseeability of a homicide, it
is not a necessary prerequisite. (See also People v. Le Grant
(1946) 76 Cal. App. 2d 148, 152-154 [172 P.2d 554] [where death is
reasonable and natural consequence of assault with fists, aider and
abettor liability for involuntary manslaughter upheld despite no use of
deadly weapon].)
FN 6. The People insist that People v. Montano (1979) 96 Cal. App.
3d 221 [158 Cal. Rptr. 47] and the findings of the Legislature in Penal
Code section 186.21 show that homicide is as a matter of law a
foreseeable consequence of a gang attack. Neither authority stands
for that proposition. In Montano the issue was whether the trier of fact
was justified in finding, as a matter of fact, the homicide was a natural
consequence of a gang attack; the court concluded the facts of the
case, including the frequency with which such attacks result in
homicide, justified the factual determination. (Id. at p. 227.)
Legislative "findings" do not support the People's position. The cited

section only finds that numerous gangs exist and the number of
gang-related murders is increasing. However, the murders are not
categorized as to what percentage involves ambushes, drive-by
shootings or retaliatory shootings versus what percentage involves
deaths from gang fights during chance encounters, nor is there a
determination that murder as a matter of law is a foreseeable
consequence of gang fights.
FN 7. Although we have previously explained why the jury could have
discredited Godinez's testimony (see People v. Nava, supra, 207
Cal.App.3d at pp. 1498-1499, fn. 3), a jury could also have accepted
his explanation for his prior falsehoods and viewed him as currently
telling the truth.
FN 8. The pernicious impact of the presumption created by the
instruction surfaced again during the prosecution's rebuttal. During
the defense's closing argument counsel argued that aider and abettor
liability should not result here, anymore than in the analogous case
where a husband or wife gets into a heated argument with a victim
and the other spouse comes to the defense and ends up stabbing the
victim. The prosecution, arguing this analogy was irrelevant, stated:
"The law doesn't say that there is a reasonable and natural
consequence of homicide when a husband and wife get in a fight with
somebody .... [] What the law says is that homicide is a reasonable
and natural consequence to be expected from a gang attack, and that
is what this is, a gang attack."

OTHER :
People v. Godinez (1993)
Annotate this Case
[No. B067906. Second Dist., Div. Four. Aug 17, 1993.]
THE PEOPLE, Plaintiff and Respondent, v. JOSE GODINEZ,
Defendant and Appellant.

[Opinion certified for partial publication. fn. * ]

(Superior Court of Los Angeles County, No. KA008516, Robert M.
Martinez, Judge.)
(Opinion by Epstein, Acting P. J., with Vogel (C. S.), J. and Rappe, J.,
fn. concurring.)
COUNSEL
Charlotte E. Costan, under appointment by the Court of Appeal, for
Defendant and Appellant.
Daniel E. Lungren, Attorney General, George Williamson, Chief
Assistant Attorney General, Carol Wendelin Pollack, Assistant
Attorney General, William T. Harter and Patrick T. Brooks, Deputy
Attorneys General, for Plaintiff and Respondent.
OPINION
EPSTEIN, Acting P. J.
Jose Godinez appeals from judgment entered after a jury found him
guilty of attempted murder and conspiracy to commit murder, and
found to be true allegations that he personally used a firearm and that
the crimes were committed for the benefit of, at the direction of, and
in association with, a criminal street gang, under Penal Code section
186.22, subdivision (b)(2). fn. 1
In the published portion of this opinion, we conclude that a jury need
not be unanimous on a particular overt act for purposes of
conspiracy. We also hold that a defendant's sentence cannot be
enhanced on the basis of acts committed by others months and years
after his crime had been completed. For this reason, a "pattern of
criminal gang activity" within the meaning of section 186.22 cannot be
established by use of predicate crimes which occur after the crime for
which the defendant is being tried. Because the predicate crimes
submitted to establish the pattern in this case all occurred after the

charged crimes, the criminal street gang enhancement cannot be

upheld.
Appellant also challenges the sufficiency of the evidence to support
the conviction, claiming that accomplice testimony was
uncorroborated, and that the extrajudicial statements of an
eyewitness, not confirmed at trial, cannot support the conviction. He
claims error in the court's refusal to instruct the jury that another
individual was an accomplice as a matter of law. In the unpublished
portion of the opinion, we find sufficient adequately corroborated
evidence to support the conviction, and conclude that there was no
instructional error.
Factual and Procedural Summary
At about 2 p.m. on January 19, 1989, Richard Lopez was working on
the driveway outside his house on Glenhope Street in Valinda. With
him were [17 Cal. App. 4th 1366] four friends, his three-year-old
brother, and the family dog. A red Toyota Four-Runner truck drove by.
Some of the persons in the truck threw a "P" sign, representing the
Puente gang. Someone in Lopez's group threw a "V" sign, for Valinda
Flats. The truck made a U-turn and drove back past the house. The
right front passenger fired three shots near where Lopez and the
others were standing. The dog was shot dead and the garage had
two new bullet holes in it.
The red truck drove off. At about 4 p.m. on the same afternoon, Los
Angeles County deputy sheriffs were driving northbound on Bannon
Avenue toward the red Toyota truck. As they approached the truck, it
sped backwards and collided with a stop sign. The deputies arrested
Miguel Plascencia and Lydia Carlin, who were in the truck. Another
person fled and was not caught at that time. No gun was found in the
truck.
Plascencia and Carlin each gave statements to the police, and
identified appellant as the right front passenger and the shooter.
Appellant was arrested and charged by information with one count of

attempted willful, deliberate, premeditated murder, with allegations

that the offense was committed for the benefit of, at the direction of,
and in association with a criminal street gang ( 186.22, subd. (b))
and that appellant personally used a firearm in the commission of the
offense, and one count of conspiracy to commit murder. A jury found
him guilty as charged, and found the special allegations to be true.
Appellant was sentenced to life in prison for the attempted murder,
with a five-year enhancement for the gun use. Applying the criminal
street gang enhancement, the court ruled that appellant was ineligible
for parole for a minimum of 15 years. Sentence on the conspiracy
count was stayed pursuant to section 654.
Discussion
I, II fn. ***
III. Finding of Overt Act
[1] Appellant claims his conspiracy conviction should be reversed
because the trial court refused to instruct the jurors that they must
unanimously agree on at least one overt act. [17 Cal. App. 4th 1367]
This same question was considered in People v. Jones (1986) 180
Cal. App. 3d 509 [225 Cal. Rptr. 697]. In that case the court analyzed
the crime of conspiracy, concluding that it is the agreement itself
which constitutes a punishable conspiracy; the overt act is part of the
theory of the case, not an element of the offense. "Inasmuch as the
overt act, though required to establish the existence of a conspiracy,
is not an actual element of the crime, it follows that the jury only need
be unanimous in finding an overt act was done in furtherance of the
conspiracy, not in finding a particular overt act was done." (Id. at p.
516, original italics.)
While a contrary view has emerged in other decisions (see, e.g.,
People v. Ramirez (1987) 189 Cal. App. 3d 603, 611-613 [233 Cal.
Rptr. 645]; People v. Brown (1991) 226 Cal. App. 3d 1361, 1369 [277
Cal.Rptr. 309]), Jones has been followed in People v. Cribas

(1991) 231 Cal. App. 3d 596, 611-612 [282 Cal. Rptr. 538], and, more
recently, in People v. Von Villas (1992) 11 Cal. App. 4th 175, 233-235
[15 Cal. Rptr. 2d 112]. We agree with the reasoning of Jones, Cribas
and Von Villas, and find no error in the court's refusal to give a
unanimity instruction regarding the overt act necessary for a
conspiracy.
We also agree with respondent that, even if unanimity were required,
by finding appellant guilty of attempted murder, as charged in the
information, and guilty of conspiracy, the jurors must have been
unanimous at least as to the commission of overt act No. 6. The
information charged that on January 19, 1989, appellant attempted to
murder Raul Almeria, Richard Lopez, Victor Alatorre and Anthony
Villasenor. Overt act No. 6 was that on January 19, 1989, appellant
and other unnamed conspirators attempted to kill these same named
individuals.
IV. Criminal Street Gang Enhancement
[2a] Appellant claims the section 186.22 sentence enhancement must
be stricken because there was no evidence that members of the
Puente gang had engaged in gang-related offenses within three
years prior to the charged offense.
Section 186.22 is part of the California Street Terrorism Enforcement
and Prevention Act enacted in 1988. ( 186.20.) The intent of the act
is "to seek the eradication of criminal activity by street gangs by
focusing upon patterns of criminal gang activity and upon the
organized nature of street gangs, which together, are the chief source
of terror created by street gangs." ( 186.21.) [17 Cal. App. 4th
1368]
Appellant's sentence was enhanced under section 186.22,
subdivision (b), as in effect at the time, fn. 2 which provided: "Any
person who is convicted of a felony or a misdemeanor which is
committed for the benefit of, at the direction of, or in association with
any criminal street gang, with the specific intent to promote, further, or

assist in any criminal conduct by gang members, shall be punished in

the following manner: ... [] (3) Any person who violates this
subdivision in the commission of a felony punishable by imprisonment
in the state prison for life, shall not be paroled until a minimum of 15
calendar years have been served." (Now subd. (b)(2).)
Subdivision (d) (now subd. (f)) of section 186.22 defines a "criminal
street gang" as "any ongoing organization, association, or group of
three or more persons, whether formal or informal, having as one of
its primary activities the commission of one or more of the criminal
acts enumerated in paragraphs (1) to (7), inclusive, of subdivision (c),
which has a common name or common identifying sign or symbol,
whose members individually or collectively engage in or have
engaged in a pattern of criminal gang activity."
Subdivision (c) (now subd. (e)) of section 186.22 defines "pattern of
criminal gang activity" as "the commission, attempted commission, or
solicitation of two or more of the following offenses, provided at least
one of those offenses occurred after the effective date of this chapter
and the last of those offenses occurred within three years after a prior
offense, and the offenses are committed on separate occasions, or
by two or more persons: ..." Subdivisions (1) through (7) fn. 3
enumerate the specific crimes which support a finding of criminal
gang activity.
The statute contains two timing requirements for the offenses used to
establish a "pattern of gang activity": the last crime must have
occurred within three years of a prior crime, and at least one of the
offenses must have occurred after the effective date of the statute.
The statute does not specify whether either or both of the offenses
relied on for the enhancement can occur after the crime for which the
defendant is being tried. While no case has decided this question,
two cases appear to assume that the predicate crimes for the
enhancement must precede the charged offense.

In People v. Gamez (1991) 235 Cal. App. 3d 957, 965 [286 Cal. Rptr.
894], the court described the evidence required to establish the street
gang enhancement: "Section 186.22 requires evidence of a gang's
past criminal [17 Cal. App. 4th 1369] conduct and ongoing criminal
nature." (Italics added.) The court refused to inject the requirement of
knowledge of the predicate offenses into subdivision (b) of the
statute, finding that "the conduct proscribed by the statute is
ascertainable to a reasonable degree of certainty and involves
felonious conduct undertaken with a specific, criminal intent. In short,
an individual who violates subdivision (b) does so at the peril that the
history of his gang will reveal the predicate offenses." (Id. at p. 976,
italics added.)
A similar assumption appears in In re Lincoln J. (1990) 223 Cal. App.
3d 322 [272 Cal. Rptr. 852], where one of the predicate offenses was
the charged offense. In reversing the enhancement, the court
explained: "No evidence was presented to show that members of the
BTR gang had engaged in any of the eight enumerated offenses
within three years previous to the charged offense." (Id. at p. 328,
italics added.) fn. 4
This reading of the statute comports with constitutional standards of
due process. [3] "[A] statute must be sufficiently definite to provide
adequate notice of the conduct proscribed. '[A] statute which either
forbids or requires the doing of an act in terms so vague that men of
common intelligence must necessarily guess at its meaning and differ
as to its application, violates the first essential of due process of law.
[Citations.]' .... ' "[B]ecause we assume that man is free to steer
between lawful and unlawful conduct, we insist that laws give the
person of ordinary intelligence a reasonable opportunity to know what
is prohibited, so that he may act accordingly. Vague laws may trap
the innocent by not providing fair warning." ' [Citations.]" (People v.
Superior Court (Caswell) (1988)46 Cal. 3d 381, 389-390 [250 Cal.
Rptr. 515, 758 P.2d 1046]; Grayned v. City of Rockford (1971) 408
U.S. 104, 108 [33 L. Ed. 2d 222, 227-228, 92 S. Ct. 2294].)

[2b] Use of acts occurring after a defendant's commission of charged

offenses to establish the existence of a "pattern of criminal gang
activity" within the meaning of section 186.22, subdivision (c)
deprives the defendant of notice, in advance of his conduct, that his
acts will fall within the proscription of section 186.22. Due process
entitles a defendant to notice, before he acts, of the criminality and
consequences of his conduct. (See United States v. Boffa (D.Del.
1980) 513 F. Supp. 444, 461 [In examining a statute to determine
whether it is vague, as applied, "[t]he relevant inquiry is whether the
statute is so vague that a person could not reasonably understand
that the contemplated conduct, as charged in the Indictment, would
be proscribed by the statute."].) [17 Cal. App. 4th 1370]
We recognize that it is not likely that a defendant will consult the
Penal Code before acting. Nevertheless, due process entitles
defendant to fair warning that his contemplated conduct is within the
proscription of a particular statute. (See People v. Davis (1993) 15
Cal. App. 4th 690, 705-707 [19 Cal. Rptr. 2d 96]; In re Baert
(1988) 205 Cal. App. 3d 514, 522 [252 Cal. Rptr. 418].)
[4] "Where a provision is of doubtful validity we must, if possible,
impose on it a construction which eliminates doubts as to its
constitutionality." (People v. Green (1991) 227 Cal. App. 3d 692, 704
[278 Cal. Rptr. 140].) [2c] Section 186.22 has withstood other
challenges to its constitutionality through narrow construction. (See In
re Alberto R. (1991) 235 Cal. App. 3d 1309, 1321 [1 Cal. Rptr. 2d
348]; In re Nathaniel C. (1991) 228 Cal. App. 3d 990, 1000-1004 [279
Cal. Rptr. 236]; In re Leland D. (1990) 223 Cal. App. 3d 251, 258 [272
Cal. Rptr. 709].) We follow that lead, construing its requirements for
establishing a "pattern of criminal gang activity" as excluding offenses
occurring after the charged offenses for which a defendant is on trial.
In this case, the offenses relied upon by the prosecution to establish
a "pattern of criminal gang activity" within the meaning of section
186.22 all occurred after the January 19, 1989, offenses with which
appellant was charged. Since these offenses may not be used to

prove such pattern for purposes of enhancing a crime that was

committed before they occurred, the true finding on the allegations
under section 186.22, subdivision (b) must be stricken.
In light of this conclusion, we need not address appellant's other
assertions of error with regard to the section 186.22 enhancement.
Disposition
The judgment is modified by striking the section 186.22, subdivision
(b) enhancement; in all other respects, the judgment is affirmed.
Vogel (C. S.), J., and Rappe, J., fn. * concurred.
Respondent's petition for review by the Supreme Court was denied
November 10, 1993.
FN *. Pursuant to California Rules of Court, rules 976(b) and 976.1,
this opinion is certified for publication with the exception of parts I and
II of Discussion.
FN . Judge of the Los Angeles Superior Court sitting under
assignment by the Chairperson of the Judicial Council.
FN 1. All statutory references are to the Penal Code.
FN *. See footnote, ante, page 1363.
FN 2. References to section 186.22 are to the version of the statute in
effect on January 19, 1989, the date of the charged offenses. The
statute has since been amended, and the new designations of
subdivisions are contained in parentheses.
FN 3. At the time of trial, section 186.22 had been amended to
include an eighth criminal act, grand theft of a vehicle, as establishing
a pattern of criminal gang activity. Effective January 1, 1993, vehicle
theft is no longer included as a designated crime.

FN 4. See also In re Jose T. (1991) 230 Cal. App. 3d 1455, 1462 [282
Cal. Rptr. 75], holding that the charged offense can constitute one of
the predicate offenses for purposes of a section 186.22
enhancement.
FN *. Judge of the Los Angeles Superior Court sitting under
assignment by the Chairperson of the Judicial Council.

4.) People VS Alvero

EN BANC
[G.R. Nos. 134536-38. April 5, 2000]
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs. ELISEO ALVERO y LOREO @ "Siyok," accusedappellant.
DECISION
PER CURIAM:
For automatic review[1] by this Court is the judgment of 13 April
1998,[2] of the Regional Trial Court, Branch 10, of Abuyog,
Leyte, in Criminal Cases Nos. 1631, 1632 and 1633, finding
accused appellant Eliseo Alvero y Loreo @ "Siyok" (hereafter

ELISEO) guilty of the crime of rape in each case committed

against his own daughter, and imposing upon him the extreme
penalty of death in each case.
ELISEO was charged with the rape of Loregin Cabahug
(hereafter LOREGIN), his 15-year old daughter under three
separate informations in Criminal Cases Nos. 1631, 1632 and
1633. The accusatory portion of the Information in Criminal
Case No. 1631 reads as follows:
That sometime in the month of April 1996, in the
Municipality of Abuyog, Province of Leyte, Philippines,
and within the jurisdiction of this Honorable Court, the
above-named accused, with lewd designs and by means
of force, violence and intimidation, did, then and there,
willfully, unlawfully and feloniously have carnal knowledge
of one LOREGIN ALVERO Y CABAHUG, his 15-year old
daughter, against her will and without her consent.
ACTS CONTRARY TO LAW.[3]
The Informations in Criminal Cases Nos. 1632 and 1633 are
similarly worded, except as to the dates of the commission of
the crime, which are "sometime in the month of May 1996," and
"sometime in the month of June 1996," respectively.[4]
Upon his arraignment on 2 December 1996, ELISEO, with the
assistance of counsel de oficio, entered a plea of not guilty in
each of the three cases.[5]Thereafter, joint trial ensued.
The prosecution presented the following witnesses: the victim,
LOREGIN; the examining physician, Dr. Roy Marie A. Margallo;
and the victim's mother, Lourdes Cabahug Alvero. LOREGIN
also testified as rebuttal witness. The trial court summarized the
evidence for the prosecution as follows:
In the middle part of January 1996, Loregin Alvero y
Cabahug, together with her mother, father, brothers and
sisters, were in their house in Bgy. Sta. Elena, Purok 4,
Bayugan I, Agusan del Sur. They were then sleeping
when her father fondled her breasts. She issued an

admonition to her father, after which she transferred to

another place in the house to sleep. From January to
March of 1996, her mother saw her father molesting her,
who then reported this incident of molesting to the
barangay officials. A confrontation before the office of the
barangay officials took place, during which her father
signed on a piece of paper promising not to molest her
again, otherwise a case before the Court will be filed
against him. For quite sometime, her father did not molest
her.
On April 4 of the same year, her father wanted her to
accompany him to Bgy. Cumpaitan to harvest palay. She
did not want to go with him, however, her mother
prevailed upon her, so Loregin went with her father. While
on her way, riding on a big bicycle, her father told her that
they will go to the place of her cousin, only to find that she
was being led to a banana plantation, and when already
at the area, her father drew his pisaw (small knife), pulled
and dragged her, then delivered a fistic blow on her
abdominal area. Immediately, her father took off her
panty, unbuttoned his pants, placed himself on top of her
and inserted his penis into her vagina, causing her much
pain. After the consummation of the sexual assault, her
father warned her not to report this matter to her mother,
otherwise Loregin will be killed by him. Thereafter, her
father told her that they are going home and was made to
backride on his bicycle. Along the way, her father told her
that they will first go to Bgy. Sta. Irene to buy rice. Her
father instead of cycling in the direction towards home,
changed his mind and cycled straight ahead and when he
became tired, they boarded a bus bound for Surigao. The
bicycle was loaded on the bus. In Surigao, they boarded a
ferry boat bound for Liloan, arriving in Liloan at nighttime,
hence they passed the night at the ferry terminal in Liloan.
When morning came, they boarded a vehicle for Maasin.
From Maasin, they took the Bachelor bus bound for
Baybay, then proceeded to Abuyog. Upon arriving in
Abuyog, they slept in the house of auntie Zabeth in Bgy.
Combis. The husband of Zabeth is a brother of her father.

While they were living in the house of Zabeth for a period

of about three weeks, her father would order her to sleep
beside him and not beside Zabeth. During this period of
three weeks, whenever her father leaves to cut banana
stalks, he would bring her along. After cutting a few, he
would prod her for a sexual intercourse and on being
refused, he would box her on the abdomen and threaten
her with a bolo. When already fallen, her father would
then remove her panty and take off his pants, insert his
penis into her vagina, causing her to suffer pain. After
sexually assaulting her, her father would resume cutting
banana stalks. These sexual assaults happened in April
of 1996.
From the house of Zabeth, they transferred to the house
of Lando. The father of Lando and the father of herein
accused are brothers. They lived only for a short period of
time with Lando, as they transferred to the house of
Elena, her grandmother. While living with her
grandmother in the month of May, her father would bring
her along to the mountain to gather firewood and when
already in the mountain, her father would again rape her.
In the month of June, Loregin and her father transferred
to the house which her father had built near the house of
her lola. Sometimes her great grandmother Bayi, would
visit them. In the new house, her father Eliseo raped her
several times which series of rape would happen in the
early morning.
Complaining witness Loregin, additionally testified that
after she filed this complaint for rape against her father,
Eliseo wrote her twice, asking for her help so that he can
be released from jail which will enable him to go home to
Butuan and will not molest her again. The first letter was
handcarried to her by an old man, the second by a child,
both individuals, she does not personally know. In both
letters, her father asked that he be forgiven.

The prosecution requested that these letters be marked

as its Exhibit "D" and series, reserving the presentation of
the English translation.
On cross examination, complaining witness declared that
their house in Bgy. Sta. Irene, Purok 4, consists only of a
single space with no room. Her parents have seven
children. Loregin has a twin sister named Lyn/Laine, who
is smaller than she is. She and her twin sister sleep side
by side with each other. Their father and mother likewise
sleep side by side, by the wall. The fondling of her breasts
by her father started on the month of January up till mid
March, which her father usually does between the hours
of 10:00 to 11:00 o'clock in the evening. During these
times, her father would move away her twin sister. She
did not tell her mother about these fondling incidents
because she was warned by her father not to tell,
otherwise, he will kill her (Loregin). Neither did she tell her
twin sister as she might tell her mother, so their father will
learn about it and might kill Loregin. One evening in the
month of March, their mother saw accused father fondling
Loregin's breasts. Their mother confronted herein
accused.
On later questions on cross, complaining witness
reaffirmed her testimony on direct starting from the time
when her mother prevailed on her to go with her father
supposedly to harvest palay in. Bgy. Cumpaitan, and the
rape committed on her at the banana plantation in Bgy.
Cumpaitan. The nearest house to the banana plantation
where she was raped was but four hundred (400) meters
away. That after raping her, her father told her that they
will go home; that instead of going home, her father
cycled with her riding behind, to Bayugan, then boarded a
jeepney for Butuan. The bicycle was loaded on the
jeepney. They stayed overnight at the ferry terminal in
Liloan. She restated her testimony on direct appertaining
the route they took from Liloan up till the time they
reached the house of her father's cousin in Abuyog and
their living for sometime with her auntie Zabeth. She did

not tell her auntie Zabeth, her uncle, her grandmother or

any of her relative about the sexual abuse committed on
her by her father because of the warning of her father not
to tell anyone, otherwise Loregin will be killed by him.
Zabeth's husband, who is a brother of Eliseo was then in
Manila, hence Zabeth was living only with her children,
the eldest of which was only Grade II. While in Combis,
her father was hired to work on ricefields several times,
but would bring herein complaining witness with him.
Complaining witness was able to befriend a household
help of Pedro Bucton, from whom Loregin inquired
whether she knows someone who is in need of a
household help. This friendly household help told Loregin
that she can come with her. Thus, one time she requested
her father to buy carabao meat for their viand. This gave
her opportunity to escape, by riding on a motorcycle,
while her friend rode on a jeepney. This was on July 19.
After the lapse of about three days, her father came
looking for her, however, he was not able to detect her
presence in the house of Bucton. It was only after about
two weeks that her father was finally able to locate her. In
the meantime, she already revealed to Pedro Bucton
about the sexual abuse committed on her by her own
father. The reason why she revealed to Pedro Bucton
instead of to any of her relatives, this sexual abuse on
her, was because Pedro Bucton did not know her father
and would then not be able to tell her father about what
she would disclose.
After she revealed to Pedro Bucton of the series of rape
committed on her by her own father, she was subjected to
medical examination at the Abuyog District Hospital.
Complaining witness firmly stated that the two letters sent
to her by her father are in the penmanship of her father,
as she knows very well the penmanship of her father.[6]

The defense is based solely on the testimony of ELISEO. He

interposed the defense of denial. His version of the facts as
summarized in the Appellants Brief is as follows:
Accused Eliseo Alvero y Loreo testified that because of
the incident that happened in their house on April 24,
1996, he left said house and arrived at Abuyog, Leyte on
April 29, 1996, alone.
On April 24, 1996, he came home from the mountain. He
overheard his wife talking with a man inside their room
which was then closed. When his wife opened the door,
he drew his bolo. His wife embraced him. The man whom
he named Albino Butingana whom his wife was
conversing with inside the room, jumped out of the
window. Said man was only wearing a brief. His wife
asked for his forgiveness. He left their house, passed the
night in the house of his sister Anatacia Mendoza. The
following day, he packed his things, left for the mountain
to mortgage his pigs, proceeds of which he used as fare
in going to Abuyog. He helped his uncle Alipio in farming
and then worked on his own coconut land situated at
Brgy. Combic. On May 25, 1996, his nephew Jimmy
Alvero came to the farm of his uncle, informing him that
his daughter Lorigin [sic] arrived. His daughter told him
that his wife send to his place. His daughter stayed at the
house of his sister-in-law Elizabeth (Zabeth) Alvero, which
is half kilometer away from where he stayed. On June 6,
1996, her daughter came to see him, and told him that
she wanted to work as house helper in Abuyog. His
daughter was then accompanied by Nora Alvero. She
later learned that his daughter was Noras replacement as
household helper of Odo Butcon. On July 10, 1996, he
went to the house of Odo Butcon to ask money from
Lorigin to be spent for the processing of copra at Brgy.
Combis. He did not see his daughter, instead her
employer. Bucton told him that his daughter was not
around. On July 22, 1996, after delivering his copra to a
store at Tab-oc, Abuyog, Leyte, he saw his daughter in
the house of her employer. He alighted from the pedicab.

While he was talking with his daughter, Odo Bucton

arrived and pulled his daughter inside the house. Said
Bucton drew his .38 caliber pistol, prompting him to leave
the house and went back to Tab-oc, Abuyog. While sitting
at Tab-oc, a policemen accompanied by Odo Bucton
arrived, thereafter brought him to the municipal building
and placed him inside the prison cell. Odo Bucton
harbored ill-feelings towards him, because of boundary
dispute.
He also testified that the testimony of Lorigin [sic] about
the fondling of her breast, sexual assault in banana
plantation, in the mountain and in the hut he built near the
house of his grandmother were all lies. He also denied
sending his daughter-victim letters which were written in
his penmanship inasmuch as all he knew was to sign his
name.[7]
The trial court gave full faith and credit to the testimony of
LOREGIN which "was given in a clear manner without any
indication that the same was motivated by any ill feeling";
moreover her testimony was buttressed by the corroborative
testimony of her mother, and by the findings in the medical
report. It declared as baseless ELISEO's defense that the rape
charge was fabricated by LOREGIN's mother for "it is
inconceivable that a mother would draw her young daughter
into a rape scam with all its attendant scandal and humiliation
just because of a supposed feud. No mother in her right mind
could possibly wish to stamp her child falsely with the stigma
that follows heinous crime that is rape."
Accordingly, in its Judgment of 13 April 1998,[8] the trial court
decreed as follows:
WHEREFORE, in view of the foregoing considerations,
this Court finds the accused ELISEO ALVERO Y LOREO
GUILTY BEYOND reasonable doubt of the crime of RAPE
in Criminal Case No. 1631, committed in the month of
April 1996; hereby imposing upon him the penalty of
DEATH.

In Criminal Case No. 1632 committed in the month of May

1996, this Court finds the accused ELISEO ALVERO Y
LOREO GUILTY beyond reasonable doubt of the crime of
RAPE; hereby imposing upon him the penalty of DEATH;
and
In Criminal Case No 1633, committed in the month of
June 1996, this Court finds the accused ELISEO ALVERO
Y LOREO GUILTY beyond reasonable doubt of the crime
of RAPE; hereby imposing upon him the penalty of
DEATH.
The accused shall indemnify the victim Loregin Alvero Y
Cabahug, the amount of Fifty Thousand (P50,000.00)
Pesos in moral damages; and to pay the Costs.
SO ORDERED.[9]
The death penalty having been imposed on ELISEO, the
records of the case were elevated to this Court for automatic
review. In his Appellant's Brief, ELISEO interposes the following
assignment of errors:
I
THE TRIAL COURT ERRED IN CONVICTING THE
ACCUSED-APPELLANT FOR THREE (3) COUNTS OF
RAPE DESPITE INSUFFICIENCY OF THE
INFORMATIONS TO STATE THE PRECISE DATES OF
THE COMMISSION OF THE OFFENSE.
II
THE TRIAL COURT ERRED IN GIVING CREDENCE TO
THE PATENTLY FABRICATED RAPE TALE OF THE
COMPLAINANT AND HER MOTHER DESPITE CLEAR
AND CONVINCING TESTIMONY OF THE ACCUSEDAPPELLANT THAT HE COMMITTED NO RAPE
AGAINST COMPLAINANT IN THE MONTHS OF APRIL,
MAY, JUNE 1996.

In the Appellee's Brief, the Office of the Solicitor General

recommends affirmance in toto of the appealed decision.
We cannot sustain ELISEO's contention that the informations
are fatally defective for failing to state the exact date and time
of the commission of rape. The allegation of the exact time and
date of the commission of the crime are not important in a
prosecution for rape.[10] This is because the precise time of the
commission of the crime is not an essential element of
rape[11] and it has no substantial bearing on its commission.
[12]
Rule 110, Section 11 of the Rules of Court provides that it is
not necessary to state in the complaint or information the
precise time at which the offense was committed except when
time is a material ingredient of the offense, but the act may be
alleged to have been committed at any time as near to the
actual date at which the offense was committed as the
information or complaint will permit. It is equally settled that a
variance of a few months between the time set out in the
indictment and that established by the evidence during trial has
been held not to constitute an error so serious as to warrant
reversal of a conviction solely on that score.[13]
On the issue of credibility, it is settled that findings of the trial
court on the credibility of witnesses are entitled to great weight
on appeal unless cogent reasons are presented necessitating a
reexamination, if not the disturbance of the same; the reason
being the former is in a better and unique position of hearing
firsthand the witnesses and observing their deportment,
conduct and attitude.[14]
We have carefully gone through the records of this case and we
see no reason to depart from the findings and conclusions of
the court below, especially on the credibility of witnesses. The
testimony of LOREGIN is worthy of belief. As the trial court
correctly observed, her testimony is candid, categorical and
positive. She was consistent and straightforward in her
declarations that her father ELISEO raped her repeatedly.
During the direct examination, LOREGIN was able to give a
thorough account of her father's sexual assaults, viz:

Q....On the 4th day of April, where were you?

A....In our house.
Q....Do you recall what happened that first week of April?
A....Yes, sir.
Q....What was that incident about?
A....My father told me that we will harvest palay at Bgy.
Gumpaitan. I do not want to go but my mother told me to
go with him, so I obeyed.
Q....Did you in fact go with your father to Bgy.
Gumpaitan?
A....Yes, sir.
Q....Did you harvest palay?
A....It did not push through.
Q....Why?
A....It happened this way. While we were boarding the big
bicycle just like the one used in the pedicab according to
him we were going to the place of his cousin so I followed
him only to find out that we were going to the banana
plantation.
Q....What happened there?
A....When we arrived there, he told me to accompany him
there for a conversation.
Q....What happened next?
A....While we were having a conversation he drew his
pisao.
Q....What did he do next, if any?

A....He dragged and pulled me to the banana plantation.

Q....What did he do after he pulled you to the banana
plantation?
A....While holding the pisao with his other hand, he boxed
me on my abdomen.
Q....What happened next?
A.... I was weakened.
Q....What happened next?
A....He immediately took off my panty.
Q....What did he do next?
A....He unbuttoned his pants.
Q....Then, what did he do, if any?
A....He laid on top of me.
Q....Then what happened?
A....I was about to shout but since it was very far apart I
decided not to.
Q....What is it that you did not like to be done to you by
your father?
A....When he put his penis on my sexual organ.
Q....What was your feeling if any once he inserted his
organ to your vagina?
A....It was painful.
Q....What happened next after he placed his sexual organ
to your vagina?

A....It was consummated.

Q....Thereafter what did you do?
A....He put back my panty.
Q....Thereafter, what happened?
A....As I was lying then, I stood up and he told me that if
ever I will report or tell my mother he will kill me.
Q....Thereafter what did both of you do?
xxx
A....We were about to go home but instead he proceeded
to buy rice and changed his mind and went directly
ahead. He said that we will always be together. When he
was tired driving, we together with the bicycle boarded a
bus for Surigao.
Q....What else did you do?
A....We boarded a ferry boat proceeding to Liloan. Since it
was night at Liloan.
Q....While sleeping at Liloan, what did the both of you do?
A....In the morning, we boarded a vehicle to Maasin.
Q....From Maasin, where did you go?
A....From Maasin we took a Bachelor Bus for Baybay.
Q....And then?
A....We proceeded to Abuyog.
Q....When you arrived to Abuyog, what did you do?
A....We went to certain Felix Yungco at Bgy. Victory,
Abuyog, Leyte, his cousin.

Q....How long have you been there?

A....We spent the night at their house.
Q....After you spend the night in their house where did
you go?
A....We proceeded to Bgy. Kumbis.
Q....Where did you go?
A....To the house of Auntie Zabeth.
Q....How is your father related to Auntie Zabeth?
A....The husband of Auntie Zabeth is the brother of my
father.
Q....For how long have you stayed there?
A....Perhaps three weeks.
Q....And on that three weeks, did you recall any untoward
incident that happened?
A....Yes, sir.
Q....What was that incident about?
A....In the house of Auntie Zabeth he would not like that I
will stay beside Auntie Zabeth. He would order me to stay
beside him always.
Q....What other incident could you recall?
A....Whenever they would harvest banana stalks, he
would bring me with him also.
Q....Where is that area?
A....Far from the house of Auntie Zabeth.

Q....Could you describe that area?

A....The place is a banana plantation with coconuts and
other plants and there is no house.
Q....Upon reaching that area, what would your father do if
any?
A....He would harvest banana stalks.
Q....Thereafter?
A....After a few harvested banana stalks he would request
me to have sex intercourse with him but I refused.
Q....When you refuse, what did your father do?
A....He boxed me on my abdomen and he got his bolo.
Q....What did he do next?
A....He held my hand as I was lying and took off my panty.
Q....After taking off your panty what he did he do?
A....He took off his short pants.
Q....And then?
A....He placed his penis on my sex organ.
Q....What would you feel if any once he inserted his penis
to your vagina?
A....It was painful.
Q....What happened next?
A....I started to shout but there are no people around.
Q....And what happened next?

A....I stood up and put on back my pants.

Q....What would you do both after that?
A....He would continue to cut the banana stalks.
Q....Could you recall the period this incident took place?
A....In the month of April.
Q....You mean this happened only once in April 1996.
A....No, sir during the first week at Auntie Zabeth's place
when we arrived.
xxx
Q ....Since you said that you lived at the house of your
Auntie Zabeth for three weeks, where did you go after
three weeks?
A ....We transferred to the place of Mano Lando.
Q....How is he related to your father?
A....His father and the father of Mano Lando are brothers.
Q....For how long have you stayed at the house of Mano
Lando?
A....Not long.
Q....Why? Where did you go?
A....We transferred to the place of my grandmother.
Q....Whats her name?
A....Leona but I do not know her surname.
Q....While there at the place of your grandmother do you
recall of any untoward incident that happened?

A....There was.
Q....What was it?
A....He would bring me to the mountain to gather firewood
and then would rape me again.
Q....Where is that mountain? How far is that mountain to
the place of Mano Lando and your grandmother?
A....Not too far but it is a mountain.
Q....And can you recall when did you stay at the house of
Mano Lando or your grandmother?
A....In May.
Q....Why? In June where did you go?
A....My father constructed a house near the house of my
Lola so we transferred there.
Q....Who lived in the house your father had constructed
A....The two of us. Sometime Bayi would go there.
Q....Who is Bayi?
A....Our great grandmother.
Q....And while there living at your new house with your
father do you recall of any untoward incident that
happened?
A....There was.
Q....What was it?
A....When Bayi is not around he would rape me.
Q....At what time would this rape incident would occur?

A....At early morning.

Q....How many times did this alleged raping incident
occurred?
A....For several times.[15]
It is doctrinally settled that a rape victim who testifies in a
categorical, straightforward, spontaneous and frank manner,
and remains consistent is a credible witness[16] and her
testimony must be given full faith and credit. [17] Such credibility
is definitely enhanced when the accusing words, as in the
present case, are directed against a close relative, especially
the father. A rape victim's testimony against her father is entitled
to greater weight, since ordinarily and customarily, Filipino
children revere and respect for elders. This is too deeply
ingrained in Filipino children and families and is even
recognized by law.[18] It is thus unthinkable, if not completely
preposterous, that a daughter would audaciously concoct a
story of rape against her father in wanton disregard of the
unspeakable trauma and social stigma it may generate on her
and the entire family.[19] A teen-age unmarried lass does not
ordinarily file a rape complaint against anybody, much less her
own father, if it is not true.[20]
Not even the failure of LOREGIN to immediately report the rape
incidents would diminish her credibility nor undermine the
charges of rape. The delay can very well be attributed to the
fear instilled in LOREGIN by the continuing threats and
intimidation by her father who exercised moral ascendancy over
her. The silence of a victim of rape or her failure to disclose her
misfortune without loss of time to the authorities does not prove
that the charges are baseless and fabricated. The victim would
rather bear the ignominy and pain in private than reveal her
shame to the world or risk the rapist's making good the threat to
hurt her.[21]
The imputation by ELISEO of ill motive on the part of his wife
hardly merits consideration. We find it difficult to accept
ELISEO's claim that his wife concocted the charges of rape

because he caught her having an affair with another man. It is

unnatural for a parent, more so a mother to use her offspring as
an engine of malice especially if it will subject her child to the
humiliation, disgrace and even stigma attendant to a
prosecution for rape, if she were not motivated solely by the
desire to incarcerate the person responsible for her child's
defilement or if the same is not true.[22] And no mother in her
right mind will sacrifice her daughter's honor to give vent to a
grudge knowing that such an experience would damage her
daughter's psyche and tar her for life.[23] Moreover, it is
unbelievable that a daughter would agree to charge her own
father with rape, exposing herself to the ordeal and
embarrassment of a public trial, and subject her private parts to
examination, just to keep a mantle over her mother's liaison
with another man or to please her employer.[24] It would take a
most senseless kind of depravity for a young daughter to
concoct a story which could put her own father to suffer death.
[25]
A daughter, especially one of tender age, would not accuse
her father of this heinous crime had she really not been
aggrieved.[26]
With more reason that we cannot accept the claim of ELISEO
that her daughter LOREGIN was manipulated by her employer
in to filing the present case in retaliation for asserting claims of
ownership over portions of the adjacent coconut land owned by
the said employer. Such imputation not only remains
unsubstantiated but is also incredible, contrary to reason and
too unnatural to merit faith and credit.
More importantly, the medico legal evidence supported the fact
of repeated carnal knowledge. LOREGIN is already in a nonvirgin state. "There are hymenal tags around the vaginal orifice
and there was less resistance in the vaginal canal which
indicated that she has been violated for several times. Her
healed lacerations are more than one month old which more or
less coincided with the alleged dates of commission of the
offense.[27]
In addition, ELISEO sent LOREGIN two letters in which he
implored her forgiveness. ELISEO was not able to refute the

authenticity of the same. A comparison between the signatures

in the letters and ELISEO's signature on the subpoena will
readily show that they were written by one and the same
person. In criminal cases, except those involving
quasi~offenses or those allowed by law to be settled through
mutual concessions, an offer of compromise by the accused
may be received in evidence as an implied admission of guilt.
Evidently, no one would ask for forgiveness unless he had
committed some wrong and a plea for forgiveness may be
considered as analogous to an attempt to compromise. Thus
the letters of ELISEO containing an appeal for condonation of
his acts cannot but be construed as an implied admission of his
guilt.[28]
In contrast to the explicit declarations of the prosecution
witnesses on ELISEO'S lechery, the defense relied solely on
bare denial. As between a categorical testimony that rings of
truth on one hand, and a bare denial on the other, the former is
generally held to prevail. A mere denial, like alibi, is inherently a
weak defense and constitutes self~serving negative evidence
which cannot be accorded greater evidentiary weight than the
declaration of credible witnesses who testify on affirmative
matters. As against the positive identification and credible
testimony by the private complainant, mere denials of the
accused cannot prevail to overcome conviction by the trial
court.[29]
The records disclosed however that ELISEO actually committed
more than three acts of rape. However, considering that
ELISEO was charged with only three counts of rape, we can
only affirm the trial court's judgment of conviction and its
imposition of the death penalty for each of the three counts of
rape alleged and proved. Under Article 335 of the Revised
Penal Code, as amended by R.A. 7659, the presence of the
special qualifying circumstance of minority of the victim and the
relationship of the offender with the offended party justifies the
imposition of the supreme penalty of death. In the instant case,
these two circumstances were specifically alleged in the
complaint and were duly proved at the trial.

Four Justices of the Court have continued to maintain the

unconstitutionality of Republic Act No. 7659 insofar as it
prescribes the death penalty; nevertheless, they submit to the
ruling of the majority to the effect that the law is constitutional
and that the death penalty can be lawfully imposed in the case
at bar.
On the civil liability of ELISEO, we note that the trial court
merely ordered the payment of moral damages in the sum of
P50,000 but did not award civil indemnity which is mandatory
upon the finding of the fact of rape. Thus, consistent with the
current case law,[30] ELISEO should be ordered to pay
LOREGIN the amount of P75,000 in each of the three counts of
rape. In addition, exemplary damages must also be awarded in
the hope of deterring fathers with perverse tendencies and
aberrant sexual behaviors from sexually abusing their
daughters.[31]
WHEREFORE, the judgment of the Regional Trial Court of
Abuyog, Leyte, Branch 10, in Criminal Cases Nos. 1631, 1632
and 1633 finding accused-appellant ELISEO ALVERO y
LOREO guilty beyond reasonable doubt of three counts of rape
and sentencing him to suffer the death penalty in each of the
three cases is hereby AFFIRMED, with the MODIFICATION that
in addition to the award of moral damages of P50,000, he is
hereby ORDERED in each case to pay P75,000 as civil
indemnity and P25,000 as exemplary damages.
In accordance with Article 83 of the Revised Penal Code, as
amended by Section 25 of Republic Act No. 7659, upon finality
of this decision, let certified true copies thereof, as well as the
records of this case be forwarded without delay to the Office of
the President for possible exercise of the clemency or
pardoning power.
SO ORDERED.
Davide, Jr., C.J., Bellosillo, Melo, Puno, Vitug, Kapunan,
Mendoza, Panganiban, Quisumbing, Purisima, Pardo, Buena,

Gonzaga-Reyes, Ynares-Santiago, and De Leon, Jr.,

JJ., concur.

DIGEST:
FACTS:
The petitioner has been accused of treason; that at the hearing on his
petition for bail, the prosecution presented, as part of its evidence,
certain documents which had been allegedly seized by soldiers of the
United States Army, accompanied by Filipino Guerrillas in the
petitioners house. The Petitioner further contends that the seized
documents should be returned as it obtained by means of force and
intimidation or through coercion, those are not his personal papers
but part of the files of the New Leaders Association, which was
proven to be an organization created for the purpose of collaborating
with the enemy. Lastly, the presentation of the seized documents in
the trial is tantamount to compelling him to testify against himself, in
violation of his constitutional rights.

ISSUES:
1. Whether or not the seized documents are legal?
2. Whether or not the documents seized should be admitted as
evidence in the trial court?

HELD.
No. The petition for Certiorari with Injunction is absolutely no merit.

RATIONALE:

The right of the officer and men of the United States Army to arrest
the petitioner as a collaborationist suspect, and to seize his personal
papers is unquestionable. Also, proclamation of General Douglas
McArthur, as Commander in Chief of the United States of Army,
declaring his purpose to remove certain citizens of the Philippines,
who had voluntarily given aid and comfort to the enemy, in violation of
the allegiance.

EXCEPTION:
Important exception to the necessity for a Search Warrant is the right
of search and seizure as an incident to a lawful arrest. A lawful arrest
may be made either while a crime is being committed or after its
commission. The right to search includes in both instances that of
searching the person of him who is arrested, in order to find and
seize things arrested with the crime as its fruits as the means by
which it was committed.

The Petitioner consented to the presentation of the seized

documents, as part of the evidence for the prosecution, at the hearing
in his petition for bail and at the trial of the case on the merits, without
having insisted that the question of the alleged illegality of the search
and seizure of said papers and documents should first have been
directly litigated and established by a motion.

COMPULSORY SELF-INCRIMINATION
Not violated by the use of evidence of articles obtained by an
unconstitutional search and seizure. Thus, the petitioner is estopped
from questioning their admission.

PURPOSE: (Adam vs New York)

The purpose of the constitutional provisions against unlawful

searched and seizures is to prevent violations of private security in
person and property, and unlawful invasions of the sanctity of the
home, by officers of the law acting under legislative and judicial
sanction, and to give remedy against such usurpations when
attempted.

5.) People VS. Rodriguez

Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-1494

August 3, 1949

ALLISON J. GIBBS, as executor of the will of A. D. Gibbs,

deceased, ALLISON J. GIBBS and FINLEY J. GIBBS, plaintiffsappellees,
vs.
EULOGIO RODRIGUEZ, SR., LUZON SURETY CO., INC.,
PHILIPPINE NATIONAL BANK and MARIANO VILLANUEVA, as
Register of Deeds, defendants-appellants.
Ramon Diokno and Jose W. Diokno for appellants.
Gibbs, Gibbs, Chuidian and Quasha for appellees.
FERIA, J.:
On August 22, 1945, plaintiff filed a complaint alleging, among others,
the following:
(4) That on April 18, 1941, pursuant to a preliminary
"Agreement of Purchase, Sale and Mortgage," dated April 11,
1940, Allison J. Gibbs, acting for himself and as attorney-in-fact
for Allison D. Gibbs and Finley J. Gibbs, sold by a document

entitled "Deed and Mortgage" said two parcels of land and the
improvement thereon to Raymundo F. Navarro and R. F.
Navarro and Co., for the sum of One hundred twenty-five
thousand dollars ($125,000), United States currency, of which
Twelve thousand five hundred dollars ($12,500), United States
currency, was paid in cash; that Raymundo F. Navarro and R. F.
Navarro and Co., in the said "Deed and Mortgage" mortgaged
the said two parcels of land in favor of Allison D. Gibbs and
Finley J. Gibbs, to secure the payment of a balance of the sale
price which they agreed to pay to the said mortgages in annual
installments, plus 5 per cent interest on the deferred
payments. . . . .
(5) That the first installment of $16,875, United States currency,
due on April 11, 1941, was paid to the said mortgages, but none
of the other installments totalling $126,562.50, United States
currency, have been paid and are now due and owing.
(6) That on August 12, 1941, R. F. Navarro, for himself and in
his capacity as president of R. F. Navarro and Co., by
document entitled "Deed of Sale with Assumption of Mortgage,"
sold said property for the sum of forty-thousand pesos
(P40,000), Philippine currency, to Eulogio Rodriguez, Sr., who
in said document assumed and agree to be bound by the
obligation of the mortgage existing thereon in favor of the
mortgages, Allison D. Gibbs, Allison J. Gibbs and Finley J.
Gibbs, and all the covenants, agreements, stipulations and
conditions relating thereto, as recited in said "Deed and
Mortgage" Exhibit "A", to which sale and assumption of
mortgage the said mortgages gave their express
conformity; . . . .
(7) That on December 16, 1941, Eulogio Rodriguez, Sr., with
the consent of the said mortgages and by a document entitled
"Deed of assignment with Assumption of Mortgage" assigned
his rights, title and interest in and to the said property to the
defendant Luzon Surety Co., Inc., for the sum of Forty-two
thousand five hundred fifty-six and 21/100 (P42,556.21) pesos,
together with his obligations under the "Deed of Sale with the
Assumption of Mortgage," Exhibit B, which were duly assumed

by the Luzon Surety Co., Inc., with the express stipulation,

however, that Eulogio Rodriguez, Sr., was not relieved of the
said obligations and that he, together with the Luzon Surety
Co., Inc., were jointly and severally liable to the said mortgages
for the obligations under the said mortgage, . . . .
(9) That during the Japanese occupation, to writ, in or about
July, 1943, the defendant Eulogio Rodriguez, Sr., and the Luzon
Surety Co., Inc., without paying any sum to the said mortgages,
and without the latter's knowledge or consent, unlawfully
secured from the Japanese Military Administration and from the
Mariano Villanueva, who was then purporting to act as Register
of Deeds of the City of Manila under the Philippine Republic, a
purported cancellation of the mortgage Exhibit A, which
purported cancellation was on July 30, 1943, unlawfully
annotated on the back of said transfer certificate of title No,
63345 as document No. 709-710/63345, but not on the
mortgagee's copy, and without the prior cancellation or
surrender of said mortgagee's copy of transfer certificate of title
No. 63345. (Record on appeal of the defendants, pp. 4-7.)
The defendants admitted in their amended answer the facts alleged
in the above quoted paragraphs 4, 6, 7 of the complaint, and in
connection with paragraphs 5 and 9 the defendants alleged that,
during the Japanese occupation, the Department of Enemy Property
established by the Japanese Military Administration in the City of
Manila required the defendants to pay to said department the debt
due from them to the plaintiffs, who were considered as enemy
nationals. In view of the fact that one of the plaintiffs, Allison J. Gibbs,
to whom the defendant Luzon Surety Co., communicated the said
demand, answered that they could not do anything to avoid its
compliance, the defendants had to obtain from the Philippine National
Bank a loan of P120,000 they needed to pay, and in fact had paid, to
the Department of Enemy Property the sum of P202,500 which they
owed then to the plaintiffs. The Director of the Department of Enemy
Property of the Japanese Military Administration had issued a receipt
and a deed of cancellation of the mortgage credit of the plaintiffs, and
the register of deeds on July 30, 1943, cancelled the mortgage
annotated on the back of the transfer certificate title of the property
mortgaged.

On September 25, the plaintiff filed a motion to strike the defense set
up in the defendant's answer to the effect that they had paid their
obligation to the plaintiff to the Department of Enemy Property of the
Japanese Military Administration, on the ground that the latter had no
authority to demand and accept such payment.
Before the date set for hearing of the motion to strike the defendant's
defense on September 29, 1945, the defendant had filed on
September 26, 1945, a motion for summary judgment under section
2, Rule 36, attaching to the motion in support thereof an affidavit of
the attorney for the Luzon Surety Inc., Atty. Arturo Tolentino, to the
effect that on July 21, 1943, when the department of Enemy Property,
Japanese Military Administration, ordered the Luzon Surety Co., to
pay to said Department the defendant's mortgage debt of P202,500
to the plaintiffs, he went to see the plaintiff Allison J. Gibbs at the
compound of the Holy Ghost College and asked him his advise "as to
what action the company should take on the matter, and Attorney
Gibbs told him that he cannot do anything and that he stated further
that in that event the credit will be considered as a war damage."
Attached to the motion for summary judgment was also an affidavit of
defendant Eulogio Rodriguez which stated that, in view of the
demand of payment made by the Department of Enemy Property,
Japanese Military Administration, the defendants had to secure a loan
of P120,000 from the Philippines National Bank and pay to said
department on July 31, 1943, the sum of P202,500 due from them to
the plaintiffs.
The motion to strike as well as the motion for summary judgment was
not acted on by the court until the date set for trial of the case on the
merits when both parties, without presenting any evidence, filed their
respective memoranda and submitted the case to the lower court for
decision.
The plaintiffs did not serve any disposing affidavit under section 3,
Rule 36, to contradict the affidavit of Eulogio Rodriguez to the effect
that payment of the mortgage debt in question was made to the
Japanese Military Administration, attached to and in support of the
motion for summary judgment for the defendants, and they admit, in
paragraph 9 of their complaint, that the defendant register of deeds
the purported cancellation of the mortgage Exhibit A and,

consequently, the payment of the mortgage debt by necessary

implication. These facts belie the assertion of the appellees that there
is no basis for the lower court's assumption that such payment was
made, and therefore the lower court was right in stating in its decision
the following:
Sin estar resueltas las citadas peticion de descarte y de
sentencia summaria, las partes, en inteligencia con el Juzgado
y a fin de terminarse definitivamente con el asunto en esta
instancia, tuvieron a bien que al mismo fuese sometido, en su
fondo, previa practica de sus respectivas pruebas. Se senalo la
causa para su vista en el fondo pero en el dia senalado los
demandantes se limitaron a presentar los Exhibit A, B y C,
unidos a la demanda, los cuales fueron admitidos sin
oposicion, y los demandados sometieron el asunto para su fallo
sin practicar prueba alguna. De modo que el asunto fue
practicament sometido a una sentencia de acuerdo con los
escritos de alegaciones unicamente. (Record on Appeal of the
defendants, p.78.)
El punto principal y decisivo planteado por las alegaciones de
las partes es el de si, es o no, legal y valido el pago hecho por
los demandados al custodio Japones. . . .
Trantadose aqui de un credito privado de que se ha incautado
el beligerente ocupante japones durante la pasada guerra, este
caso tiene similaridad al de "Hongkong and Shanghai Banking
Corporation contra Luis Perez Samanillo, Inc., et al., causa civil
No. 71009" de este Juzgado. En esta ultima causa se ha
discutado extensamente la legalidad o ilegalidad de los actos
del invasor al incautarse de un credito y disponer de ello. En la
decision de dicha causa, este Juzgado hizo las
consideraciones y conclusiones que a continuacion se acotan y
se hacen parte de esta decision por ser perfectamente
aplicables al punto que se discute:
The lower court declared invalid the payment made by the
defendants to the Bureau of Enemy Property, and null and void the
cancellation of the mortgage by the register of deeds, and sentenced
the defendant to pay to the plaintiff, as soon as the moratorium is

lifted, the balance due from the former to the latter, and the
defendants appealed from said judgment to this Court.
The lower court was correct in holding that the question raised in the
present case is similar to that involved in the case of Hongkong and
Shanghai Banking Corporation vs. Luis Perez Samanillo, Inc., et al.,
(82 Phil., p. 851, and in making the reasons and conclusions set forth
in support of its decision therein as grounds for its decision in the
present case. In Samanillo case, the debt due from the defendant to
the plaintiff was paid, by order of the Japanese Military
Administration, to the Bank of Taiwan as Liquidator of local enemy
banks and Bureau of Enemy Property of the enemy bank's
properties. In the present case the defendants, by order of the
Japanese Military Administration, paid to the Bank of Taiwan as
Bureau of Enemy Property the debt due from the defendants to the
plaintiffs. The question involved in said Samanillo case was whether
or not the collection of Samanillo's debt to the Hongkong and
Shanghai Banking Corporation by the Bureau of Enemy Property of
the Japanese Military Administration, was a confiscation of the
plaintiffs' credit. And the question involved in the instant case is
whether or not the collection by the Department of Enemy Property,
Japanese Military Administration, of the mortgage debt due from the
defendants to the plaintiffs was a confiscation of the latter's credit.
This Court reversed the decision of the lower court in the case
of Hongkong and Shanghai Baking Corporation vs. Luis Perez
Samanillo, Inc., et al., on the strength of the ruling of this Court in the
case of Haw Pia vs. China Banking Corporation, (80 Phil 604), in
which the facts and law involved were similar to those in Haw Pia. In
this last case we held that the collection by the Bank of Taiwan of the
China Banking Corporation's credit from the latter's debtor by order of
the Japanese Military Administration, was not a confiscation but a
sequestration of the enemy private personal property, and threrefore
the payment by the plaintiff Haw Pia to the Bank of Taiwan was valid
and released plaintiff's obligation to the defendant bank. Therefore,
we have to reverse also the decision of the lower court in the present
case.
The plaintiffs contention that the debt of the defendants in the present
case was payable in dollars or its equivalent in Philippine peso at the

option of the plaintiffs is immaterial, because both the Philippine

pesos and American dollars at the rate of one dollar for two pesos
were then legal tender in the Philippines according to section 1612 of
the Revised Administration Code, and for that reason the lower court
sentenced the defendants to pay the plaintiffs in dollar or its
equivalent in Philippine pesos. Besides we have held in the case of
Haw Pia the following:
But be that it may, whatever might have been the intrinsic or
extrinsic worth of the Japanese war notes which the Bank of
Taiwan has received as full satisfaction of the obligations of the
appellee's debtors to it, is of no consequence in the present
case. As we have already stated, the Japanese war-notes were
issued as legal tender at par with the Philippine peso, and
guaranteed by Japanese Government "which takes full
responsibility for their usage having the correct amount to back
them up (Proclamation of January 3, 1942). Now that the
outcome of the war has turned against Japan, the enemy banks
have the right to demand from Japan, through their States or
Government, payments or compensation in Philippine pesos or
U. S. dollars at the case may be, for the loss or damage
inflicted on the property by the emergency war measures taken
by the enemy. If Japan had won the war or were the victor, the
property or money of said banks sequestrated or impounded by
her might be retained by Japan and credited to the respective
State of which the owners of said banks were nationals, as a
payment on account of the sums payable by them as indemnity
under the treaties, and the said owners were to look for
compensation in Philippine pesos or U. S. dollars to their
respective States. (Treaty of Versailles and other peace treaties
entered at the close of the first World War; VI Hackworth Digest
of International Law, p.232.) And if they cannot get any or
sufficient compensation either from the enemy or from their
States, because of their insolvency or impossibility to pay, they
have naturally to suffer, as everybody else, the losses incident
to all wars.
In view of the foregoing, the decision appealed from is reversed and
the plaintiffs' action is dismissed.

Moran, C.J., Paras, Bengzon, Montemayor and Reyes, JJ., concur.

Separate Opinions
PERFECTO, J., concurring:
Except the pronouncement about legal tender, upon which we wish
not to commit ourselves, we concur in the above opinion.

TUASON, J., dissenting:

I dissent on the same general principles and reasons stated in Mr.
Justice Hilado's dissenting opinion in Haw Pia vs. China Banking
Corporation, G. R. No. L-554, and in my dissenting opinion
in Philippine Trust Company vs. Araneta, G. R. No. L-2734.
RESOLUTION

December 21, 1950

FERIA, J.:
This is a motion for reconsideration of the decision of this Court in the
present case filed by the plaintiffs on the grounds (I) that "even if it is
assumed that the Japanese had authority to demand payment of
plaintiffs' U. S. dollar credit in Japanese military pesos, the payments
allegedly made by the defendants to the Japanese should be credited
against the amount owed to plaintiffs only at the express mortgage
rate, namely, at the cost in Japanese military pesos (or at the fair rate
of exchange) of the U. S. dollar demand draft on New York called for
in the mortgage; this would leave a balance due plaintiffs after such
application of not less than $40,024.07"; and (II) that the decision of
this Court in the Haw Pia case on the strength of which the present

case has been decide, is erroneous, and in support of the petitioners'

contention our attention is invited to an article appearing in the June
1949 issue of the Philippine Law Journal written by Professor Charles
Cheney Hyde, author of "International Law as chiefly interpreted and
applied by the United States."
I
As to the first ground, suffice if to say that if the Japanese military
occupant had power to sequestrate and, in fact, sequestrated the
plaintiffs' credit, it had subrogated into the rights or stood in the shoes
of the plaintiffs as creditor and, therefore, had the right to demand
and accept, through Japanese Enemy Property Custodian, the
payment of all the defendants' debts to the plaintiffs in Japanese
military notes without of course compelling the defendants to pay
interest not yet then due, and completely release thereby said
obligation, without prejudice to the plaintiffs' right to demand, through
their government from the Japanese after the war, the reimbursement
of the full value of their sequestrated credit. We have held in the
decision that "whatever might have been the intrinsic or extrinsic
value of the Japanese war-notes which the Bank of Taiwan has
received as full satisfaction of the obligation of the appellee's debtors
to it, is of no consequence in the present case. As we have already
stated, the Japanese war-notes were issued as legal tender at par
with the Philippine peso, and guaranteed by Japanese Government
which "takes full responsibility for their usage having the correct
amount to back them up" (Proclamation of Jan. 3, 1942). Now that
the outcome of the war has turned against Japan, the enemy banks
have the right to demand from Japan, through their States of
Government, payments or compensation in Philippine peso or U. S.
dollars as the case may be, for the loss or damage inflicted on the
property by the emergency war measure taken by the enemy."
Furthermore, when the Court of First Instance of Manila rendered
judgment sentencing the defendants in the present case to pay their
debt to the plaintiffs, after the moratorium has been lifted, in American
dollars or its equivalent in Philippine pesos which, according to said
Section 1612 of the Revised Administration Code, was at the rate of
two Philippine pesos to one American dollar, the plaintiffs did not
appeal from the said part of the judgment nor assail it as erroneous in

their briefs, and therefore plaintiffs can not now raise that question for
the first time in their motion for reconsideration.
The decision of this Court in the Legarda case did not hold that the
defendant Burke had the right to refuse the payment by the debtor of
his debt in British currency in Japanese war notes. This Supreme
Court returned the case to the lower court for further proceeding and
the writer of the opinion of the court in said case only said that "still it
isserious question whether the defendant Burke who was a special
creditor having the right to insist upon his option to receive Japanese
money specially at par." Moreover in the Legarda case the action was
instituted by the debtor against his creditor to compel the latter to
accept the payment in Japanese military notes, while in the present
the payment of the debtors' debt to their creditors was demanded and
accepted by the Japanese military Occupant in the exercise of its
power to sequestrate the property of said creditors who were enemy
citizens, without prejudice to the right of the latter to demand from the
Japanese Government full compensation for the seizure through
State Department channels at the peace table. (United States v. SS.
White Dental Manufacturing Co., 247 U. S. 398, 402 (1927).
II
With respect to the article of Professor Charles Cheney Hyde on the
decision of this Court in the case of Haw Pia vs. China Banking
Corporation,1 G. R. No. L-554, promulgated on April 9, 1948, it may
not be amiss to state, by way of preamble before proceeding, that
according to Article 38 of the Statues of the International Court of
Justice, the Court shall, subject to certain limitations, apply judicial
decisions as a subsidiary means for the determination of rule of
International Law. Although courts are not organs of the State for
expressing in a binding manner its views on foreign affairs, they are
nevertheless organs of the State giving, as a rule, impartial
expression to what is believed to be International Law. For this
reason, judgments of municipal tribunals are of considerable practical
importance for determining what is the right rule of International Law.
This is now being increasingly recognizes, and periodical unofficial
collections of decisions of both international and municipal courts are
being published. In pleadings before international tribunals litigants
still fortify their arguments by reference to writings of international

jurists, but with the growth of international judicial activity and of the
practice of States evidenced by widely accessible records and
reports, it is natural that reliance on the authority of writers as
evidence of International Law should tend to diminish. For it is as
evidence of the law and not as a law-creating factor that the
usefulness of teaching of writers has been occasionally admitted in
judicial pronouncements. But inasmuch as a source of law is
conceived as a factor influencing the judge in rendering its decision,
the work of writers may continue to play a part in proportion to its
intrinsic scientific value, its impartiality and its determination to
scrutinize critically the practice of State by reference to legal principle.
(International Law by Oppenhiem, Vol. I, pp. 29-32).
It does not seem, therefore proper for an attorney or jurist, in trying to
protect or defend the interest of parties affected adversely by a
decision rendered by the Supreme Court of a Sovereign Foreign
Power, to assail it with arguments premised on facts different from
those found by their court on which the decision is based and dub
that decision as one in violation of International Law. A decision of the
Supreme Court of the small Republic of the United States of America.
The article of Professor Hyde in which the author, commenting on the
decision in the Haw Pia case, says that it "will do the utmost harm to
American Interest" *, does not deserve the same weight as his
opinions set forth in his work "International Law chiefly as interpreted
and applied by the United States." Because the article was written
and published more than one year after our decision, not by an
impartial jurist and ante litem motam, but by an attorney who tries to
defend American interests in the Philippines after an action was
instituted in the Supreme Court of the State of New York by the
Compania Tabacalera, a corporation owned mostly by Spaniards and
doing business in these Islands, against the National City Bank of
New York, an action based on the decision of this Supreme Court of
the Philippines in the said Haw Pia case.
For clarity's sake, we shall discuss separately the arguments and
conclusions advanced by Mr. Hyde in support of his contention that
our decision in the Haw Pia case is a violation of a International Law:
(1) first, on the validity of the payment made in war notes to the Bank
of Taiwan by Haw Pia of his pre-war debt to the China Bank; (2)
secondly, on the alleged failure of the Bank of Taiwan, liquidator of

the China Banking Corporation, to properly and adequately perform

its function as such; (3) and thirdly, on the so-called failure of the
Philippine Republic to heed certain contractual undertaking in the
Inter-Allied Declaration of January 5, 1943, in London, to which the
late President Quezon adhered in behalf of the Commonwealth of the
Philippines. We shall copy the pertinent parts of the article dealing
with each of those subjects, and then refute Mr. Hyde's contentions
by transcribing the corresponding portion of our decision in said Haw
Pia case plus some additional comments.
(1) As to the first, Professor Hyde has evidently missed the point with
respect to the main issue decided in the Haw Pia case in the article in
question, and consequently his conclusions are incorrect from the
beginning to the end for they are based on wrong premises. At the
beginning he says, among others, the following:
The decision of the Supreme Court of the Philippines Republic
in the Haw Pia case constitutes internationally illegal conduct
upon the part of the Philippine Government which is productive
of a solid claim for compensation in behalf of alien nationals or
creditors who suffered loss as a direct consequence of such
decision. The Japanese decrees which permitted Haw Pia, a
local debtor, fully to satisfy her pre-war peso indebtedness to
the local office of a foreign creditor bank of payment in a greatly
depreciated Japanese military currency were in violation of
International Law. They permitted the debtor to satisfy her debt
in a currency not contemplated by the parties and of little or no
value at the time of payment. By such payments a mortgage of
property given to secure such debt was satisfied of record. The
recognition by the Supreme Court of the Philippines of the
Japanese decrees which resulted in this harm-producing act it
is also a violation of International Law by such court.
This decision will do the utmost harm to American interest in the
Philippines unless remedied by Philippine legislation or some
kindred process.
In the Haw Pia case there has been confusion of thought
manifested in variuos quarters due in part to failure to observe
all the relevant facts in the case, to failure also to observe the

character of the practice that has grown up in relation to the

privileges, of a belligerent occupant especially in relation to
uses of legal tender, and to failure to observe the nature of
certain acts on the part of the Japanese agency or so-called
liquidator in the present case, and finally, to observe the failure
of the Philippine Republic to heed certain contractual
undertakings which it has accepted.
xxx

xxx

xxx

In a word, various aspects of the case have been dealt with by

the courts and commentators in a fantastic way that might be
called old-fashioned, because of failure to seek light on what
state practices ordained, and because ignorance thereof served
to bolster up conclusions that could not have been reached if
faithful and penetrating studies of that practice had been made.
Again, loose treatment of some secondary materials has
pointed to neglectful and superficial work. Thus, for example,
the views of this writer have more than once been quoted or
cited as indicating the rights of a belligerent occupant as such
when those views had reference to a different matter, and
notably to what a belligerent State might do with respect to
alien enemy property found within its own domain. Much more
important, "no question has been raised as to the value of the
money paid.
xxx

xxx

xxx

We now come to the question whether a belligerent occupant

has the right through such uses of a depressed currency, by
making it legal tender and continuing it as such, to oblige a
creditor to accept in payment of a debt something that was a
the time of payment practically or almost worthless. As has
been suggested above, there is no evidence manifested by any
practices that have been seen which indicates that occupying
powers (other than Japan) to have sought by causing a
depressed currency to be legal tender, to oblige a creditor to
accept in payment of a debt something that was of little value.
The scope of the occupant's rights depends upon the degree of
harm wrought to the creditor by the occupant's decrees.

In a word, the practice which has developed shows a significant

and complete abstention from such conduct on the part of
occupants and also vigorous and successful restrictions from
foreign offended States when it was attempted. In general the
abstention and the correction of abuses may be regarded as
establishing a general rule of International Law forbidding the
occupant to make it possible for the debtor to rob his creditos
by the satisfaction of a debt through a greatly depreciated and
practically worthless currency. Indeed what has taken place
amounts to an impressive practice reflecting the creation or
acknowledgment of a prohibitive rule of International Law. The
general tenor of the Hague Regulations of 1907 is in complete
harmony with this limitation of the right of the occupant as thus
set forth. Or, to express it differently, those Regulations call for
the limitation. . . . (Philippine Law Journal, Vol. XXIV, June,
1949, pp. 141, 142, 144-145).
Professor Hyde has missed the point, because the question involved
and decided in the Haw Pia case was not the validity of the Japanese
decrees permitting a local debtor to satisfy fully his pre-war peso
indebtedness to the local office of a foreign creditor bank by payment
in a greatly depreciated military currency, but the power of the
Japanese Military Administration to order validly the liquidation of
winding up of the defendant China Banking Corporation, considered
as a hostile bank, by the Bank of Taiwan appointed as the liquidator
and authorized to demand and accept the payment by the debtors of
the defendant bank in order to sequestrate the latter's assets. And the
ruling in the Haw Pia case has been applied to the present case, as
well as to the cases of Hongkong and Shanghai Banking Corporation
vs. Luis Perez Samanillo,2 G. R. No. L-1729, because in these three
cases the Japanese Military Administration required the debtors to
pay to the Bank of Taiwan, as depositary of the Bureau of Enemy
Property Custody or Alien Property Custodian, their debts to their
creditors who were alien enemies, in order to sequestrate, not
confiscate, the properties of the enemy aliens during the war,
sequestration permitted and not prohibited by International Law or the
Hague Regulations.
In order decisions in the Haw Pia case we held, among others, the
following:

The appellant's assignment of error may be reduced to two, to

wit: First, whether or not the Japanese Military Administration
had authority to order the liquidation or winding up to the
business of defendant-appellee China Banking Corporation,
and to appoint the Bank of Taiwan liquidator authorized as such
to accept the payment by the plaintiff-appellant's debt to said
defendant-appellee, and second, whether or not such payment
by the plaintiff-appellant has extinguished her obligation to said
defendant-appellee.
As to the first question, we are of the considered opinion, and
therefore hold, that the Japanese military authorities had power,
under the international law, to order the liquidation of the China
Banking Corporation and to appoint and authorize the Bank of
Taiwan as liquidator to accept the payment in question,
because such liquidation is not a confiscation of the properties
of the bank appellee, but a mere sequestration of its assets
which required the liquidation or winding up to the business of
said bank. All the arguments to the contrary in support of the
decision appealed from are predicated upon the affairs of the
China Banking Corporation in order to determinate its liabilities
and not assets to be sequestrated or controlled was an act of
confiscation or appropriation of private property contrary to
article 46, section III of the Hague Regulations of 1907.
xxx

xxx

xxx

Before the Hague Convention, it was the usage or practice to

allow or permit the confiscation or appropriation by the
belligerent occupant not only of public but also of private
property of the enemy in a territory occupied by the belligerent
hostile army; and as such usage or practice was allowed,
a fortiori, any other act short of confiscation was necessarily
permitted. Section III of the Hague Regulations only prohibits
the confiscation of and privilege property by order of the Military
authorities (art. 46), and pillage or stealing and thievery thereof
by individuals (art. 47); and as regards public property, article
53 provides that cash funds, and property liable to requisition
and all other movable property belonging to the State
susceptible of military use or operation, may be confiscated or

taken possession of as a booty and utilized for the benefit of the

invader's government (II Openheim, 8th ed., sections 137; 320
and 321, War Department; Base Field Manual, Rules of Land
Warfare FM 27-10). The belligerents in their efforts to control
enemy property within their jurisdiction or in territories occupied
by their armed forces in order to avoid their use in aid of the
enemy and to increase their own resources, after the Hague
Convention and especially during the first World War, had to
resort to such measures of prevention which do not to a start
confiscation, as freezing, blocking, placing under custody and
sequestrating the enemy private property. Such acts are
recognized as not repugnant to the provisions of article 46 or
any other articles of the Hague Regulations by well known
writers on International Law, and are authorized in the Army
and Navy Manual of Military Government and Civil Affairs not
only of the United States, but also in similar manuals of Army
and Navy of other civilized countries.
Hyde in his International Law as chiefly interpreted and applied
by the United States, Vol. 3, 6th ed., p. 1727, has the following
to say:
In examining the efforts of a belligerent to control in
various ways property with its domain that has such a
connection with nationals of the enemy that it may be
fairly regarded as enemy property, it is important to
inquire whether the attempt is made to appropriate
property without compensation, diversing him not only of
title, but also of any right or interest in what is taken,
without prospect of reimbursement, or whether those
efforts constitute an assumption of control which,
regardless of any transfer of title, is not designed to
produce such a deprivation. The character of the
belligerent acts in the two situations is not identical. To
refer to both as confiscatory is not productive of clearness
of thought, unless a loose and abroad signification be
attached to the term "confiscation." The point to be noted
is that a belligerent may in fact deprive an alien enemy
owner of property by process that are not essentially
confiscatory, even though the taking and retention may

cause him severe loss and hardship. Recourse to such

non-confiscatory retentions or deprivations has marked
the conduct of belligerents since the beginning of the
World War in 1914. They may perhaps be appropriately
reffered to as a sequestration. . . . .
A belligerent may fairly endeavor to prevent enemy
property of any kind within its territory (or elsewhere
within its reach) from being so employed as to afford
direct military aid to its foe. Measures of prevention may,
in a particular case, assume a confiscatory aspect. In
such a situation the question may arise whether those
measures are, nevertheless, excusable. It is believed that
they may be, and that they are not invariably unlawful
despite the absence of efforts to compensate the owners.
(Emphasis ours)
And Oppenheim in his International Law, Vol. 2, 6th ed., by
Lauterpacht, says:
But this desire to eliminate the financial and commercial
influence of the enemy, and other motives, presently led in most
States to exceptional war measures against the businesses and
property of enemies, which, though not confiscation, inflicted
great loss and injury. Sometimes these measure stopped short
of divesting the enemy ownership of the property; but in other
cases the businesses or property were liquidated, and were
represented at the close of hostilities by nothing else that the
proceeds of their realization, often enough out of all proportion
to their value. In the Trading with the Enemy Act, 1939,
provisions was made for the appointment of custodians of
enemy property in order to prevent the payment of money to
enemies and to preserve enemy property in contemplation of
arrangements to be made at the conclusion of peace.
xxx

xxx

xxx

Ernest K. Feilchenfeld in his "The International Economic Law

of Belligerent Occupation (1942)" supports the foregoing
conclusion of Hyde, when he says that "According to article 46

of the Hague Regulations, private property must be respected

and cannot be confiscated. This rule affords protection against
the laws of property, through outright confiscation, but not
against losses under lawful requisition, contribution, seizure,
fines, taxes, and expropriation" (Par. 208, p. 51). And later on
he adds "A complete nationalization of a corporation for the
benefit of the occupant could not be anything but a permanent
measure involving final effects beyond the duration of the
occupation. There is no military need for it because the same
practical results can be achieved by temporary sequestion,
(par. 385, p. 107).
Martin Domke * in his Trading with the Enemy in World War II,
pp. 4 and 5, speaking of Warfare on Economic and military
fronts, says that "Freezing Control is but one phase of the
present war effort; it is but one weapon on the total war which is
now being on both economic and military fronts. Coupled with
Freezing Control as a part of this nation's program of economic
warfare are to be found export control, the promulgation of a
Black List, censorship, seizure of enemy-owned property, and
financial and lend-lease aid to allied and friendly nations. . . .
xxx

xxx

xxx

The sequetration or liquidation of enemy banks in occupied territories

is authorized expressly by the United States Army and Navy Manual
of Military Government and Civil Affairs F. M. 2710 OPNAV 50-E-3,
which, mandatory and controlling upon the theatre commanders of
the U. S. forces in said territories, provides in its paragraph 12 the
following:
Functions of Civil Affairs Officers. In the occupation of
such territories for a considerable period of time, the civil
affairs officers will in most cases be concerned with the
following and other activities;
1. Money and Banking. Closing, if necessary and
guarding of banks, bank funds, safe deposit boxes,
securities and records; providing interim banking and

credit needs; liquidation; reorganization, and reopening of

banks at appropriate times; . . . .
The Civil Affairs Officers are concerned, that is, entrusted with
the performance of the functions enumerated above, when so
directed by the Chief Commander of the occupant military
forces.
Not only the United States Army and Navy Manual of Military
Government and Civil Affairs but similar manuals of other
countries authorize the liquidation of impounding of the assets
of enemy banks or the freezing, blocking and impounding of
enemy properties in the occupied hostile territories without
violating article 46 or other article of the Hague Regulations.
They do not amount to an outright confiscation of private
property, and we put into effect by the Allied Army in the
occupied hostile territories in Europe.
On the other hand, the provisions of the Trading with the
Enemy Acts enacted by the United States and almost all the
principal nations since the first World War, including England,
Germany, France, and other European countries, as well as
Japan, confirms that the assets of enemy corporations,
especially banks incorporated under the laws of the country at
war with the occupant and doing business in the occupied
territory, may be legally sequestrated, and the business thereof
wound up or liquidated. Such sequestration or seizures of
properties is not an act for the confiscation of enemy property,
but for the conservation of it, subject to further disposition by
treaty between the belligerents at the end of the war. Section 12
of the Trading with the Enemy Act of the United States provides
that "after the end of the way any claim of enemy or ally of an
enemy to any money or other property received and held by the
Alien Custodian or deposited in the United States Treasury,
shall be settled as Congress shall direct."
The purpose of such sequestration is well expounded in the
Annual Report of the Office of the Alien Custodian for a period
from March 11, 1943, to June 30, 1943. "In the absence of
effective measures of control, enemy-owned property can be

used to further the interest of the enemy and to impede our own
war effect. All enemy-controlled assets can be used to finance
propaganda, espionage, and sabotage in this country or in
countries friendly to our cause. They can be used to acquire
stocks of strategic materials and supplies ... was to the enemy,
they will be diverted from our own war efforts. (Haw Pia vs.
China Banking Corporation, L-554, pp. 3-10, 12-13, Original
Decision.)
As we have already said, from the decision above qouted it appears
that the "question whether a belligerent occupant has the right
through such uses of a depressed currency, by making it legal tender
and continuing it as such to oblige a creditor to accept in payment of
a debt something that was at the time of payment practically or
almost worthless," which Professor Hyde discusses at length in his
article, has no bearing on the question involved and decided in the
Haw Pia case and, therefore, Professor Hyde's criticism are
predicated upon a wrong premise.
However, although the question of legal tender was only incidental to
the issue in the Haw Pia case, we have shown in our decision that
the power of a military occupant to issue military currency is based,
not only on the military occupant's general power to maintain law and
order recognized in article 43 of the Hague Regulations, but also on
military necessity; and said power was exercised during the last
World War not only by Germany who used in most occupied areas
the Reichskroditkassa mark, a paper currency printed in Germany
and denominated in German monetary units, but also by the Aliens in
the occupied territory of Sicily, Germany and Austria. The Combined
Directives of the Combined Chiefs of Staffs of the Supreme Allied
Commander issued on June 24, 1943, April 28, 1944, and June 27,
1947, declared respectively as legal tender the yellow seal dollars
currency and the British military notes (BMN) in Sicily, the Allied
military mark and the yellow seal dollars in Germany, and the Allied
military shillings in Austria. When the Japanese Military occupant
issued the Proclamation of January 3, 1942, which declared the
Japanese military notes of small denominations up to ten pesos as
legal tender at par with the Philippine peso, the purchasing power of
said notes was then the same as that of the Philippine peso. If the
Japanese war notes became depressed and valueless, it was

because the war was prolonged and lost by the Japanese contrary to
their expectation of winning the war in a short time, and not because
they issued purposely a depressed and valueless currency as legal
tender. If their expectation had been realized no question as to the
validity of the Japanese military notes as legal tender would have
come up.
There was no Japanese order or decree or any particular case in
which the Japanese military occupant or agents had actually
compelled all creditors to accept in payment of pre-war debts
depressed currency or Japanese war notes; as a matter of fact
several cases are still pending in our courts in which debtors of prewar debts had to file civil actions to compel their creditors to accept
Japanese war notes deposited by them in court in payment of prewar obligations which became due and payable during the
occupation. What the Japanese military occupant did in the Haw Pia
case was to issue Administrative Ordinance No. 1, dated July 31,
1942, ordering the liquidation of the seven banks of hostile countries,
among them the defendant China Banking Corporation, appointing
the Bank of Taiwan, Ltd. as liquidator of said banks and demanding
the payments of all loans, advances and other receivables of the
banks which were thereby declared due and payable to
notwithstanding the terms and conditions of the contract, in order to
sequestrate the latter's assets during the war; and in the present case
the Japanese Military Administration ordered the debtors to pay to the
Japanese Enemy Property Custodian or Bank of Taiwan their debts
due to their creditors who were enemy aliens or corporations, in order
to sequestrate the money so paid. Of course the medium of payment,
being a currency declared legal tender by the same Japanese military
occupant, had to be accepted by the Bank of Taiwan to refuse to
accept them; for even if they were valueless the enemy creditors
would not legally suffer the war to pay said creditors full
compensation for such sequestration through their respective
governments at the conference table, regardless of the intrinsic or
extrinsic value of the money accepted by them.
As we have stated in this connection in our decision "But be that as it
may, whatever might have been the intrinsic or extrinsic value of the
Japanese war-notes which the Bank of Taiwan has received as full
satisfaction of the obligation of the appellee's debtors to it, is of no

consequence in the present case." As we have already stated, the

Japanese war-notes were issued as legal tender at par with the
Philippine peso, and guaranteed by Japanese Government "which
takes full responsibility for their usage having the correct amount to
back them up (Proclamation of Jan. 3, 1942). Now that the outcome
of the war has turned against Japan, through their States or
Government, payments or compensation in Philippine peso or U. S.
dollars as the case may be, for the loss or damage inflicted on the
property by the emergency war measure taken by the enemy. If
Japan had won the war or were the victor, the property or money of
said banks sequestrated or impounded by her might be retained by
Japan and credited to the respective State of which the owners of
said banks were nationals, as a payment on account of the sums
payable by them as indemnity under the treaties, and the said owners
were to look for compensation to their respective States (VI
Backworth Digest of International Law, p. 232; 2 Oppenheim, 6th ed.
by Lauterpacht, page 263).
We have quoted once the view of Professor Hyde on the assumption
that Professor Hyde would not give the words "domain or territory,"
wherein private property of enemy nationals may be sequestrated
under the Trading with the Enemy Act, an interpretation he seems to
give now in his article, different from that of the other writers and
authorities we have also quoted and specially of the Executive
Department of the United States Government which we shall
hereinafter quote, in order to show that if the United States as well as
the other Allied countries applied and enforced during the last world
war their Trading with the Enemy Act in any territory occupied by their
armed forces, as we have shown in our decision, Japan had also the
right to do the same in the Philippines by virtue of the international
law principle that "what is permitted to one belligerent is also allowed
to the other."
An agency of the Executive Branch of the United States
Government, i.e., the Alien Property Custodian, in March, 1944
recognized the validity of the liquidation by the Japanese military
authorities of branches of the National City Bank of New York situated
in Japan, Korea and in territory occupied by the Japanese military
forces, namely Tokyo, Dairen and Harbin. The Custodian expressly
held that payments made by debtors of said branch banks to the

Japanese liquidator, namely, the Yokohama Specie Bank, appointed

under the Japanese Enemy Assets Control Law (December 22,
1941), constituted valid payment of such debts to the branch banks.
The authority for the appointment of the Yokohama Specie Bank,
Limited, as such liquidator was identical with that for the appointment
of the Bank of Taiwan as liquidator of China Banking Corporation
plaintiff in the Haw Pia case.
This determination was made in the proceedings for the liquidation of
the New York Branch of the Yokohama Specie Bank conducted by the
Superintendent of Banks of the State of New York under the
supervision of the United States Alien Property Custodian, and was
based upon an opinion of the General Counsel to the Alien Property
Custodian, dated March 14, 1944, in which the said General Counsel
held in part as follows:
There is in fact reason to believe that National City Bank has no
cause of action against anyone. Article III of the Enemy Assets
Control Law of Japan (December 22, 1941) provides:
When a person liable for a debt to an enemy country, an enemy
national, or others designated by the Order, performs to a
person designated by the Government, the payment of money
or the delivery of articles which are the object of the debt it
shall have discharged that obligation.
By order of February 10, 1942, made pursuant to the Enemy Assets
Control Law (December 22, 1941), Yokohama Specie Bank was
entrusted by the Japanese government with the liquidation of
National City Bank's branches in Japan and occupied territory,
subject to no presently relevant exceptions. Upon appointment,
Yokohama Specie Bank commenced the liquidation thereof.
Information obtained from an officer of the Department of State,
recently repatriated from Japan, indicates that liquidation of National
City Bank, Japan, has proceeded in accordance with the law quoted
above. It is a fair assumption that Yokohama Specie Bank, engaged
in liquidating these branches in its capacity as administrator, collected
from itself in its capacity as a commercial bank the moneys owing to
National City Bank's foreign branches, and consequently that the
Yokohama Specie Bank branches were, in accordance with term of

Article III, supra, discharged of those obligations. The deposits of

National City branches in the Far Eastern branches of Yokohama
Specie Bank are outside the jurisdiction of the United States, and the
only liability that Yokohama Specie Bank incurred by its failure to pay
was that which the Japanese law might impose. Deutsche Bank
Filiale Nurnberg v. Humphrey, 272 U. S. 517, 520 (1926). By that law,
payment of the deposits to the governmental administrator satisfied
the debt owed by the depository. If the obligation was discharged by
Japanese law, no right remains to be recognized in this country,
except such as may be urged through State Department channels at
the peace table. See United States v. S. S. by Mr. Justice Holmes in
an analogous case:
. . . in any view of all that had happened the only obligations of
the Wiener Bank-Verein, were those imposed by the law of
Austria-Hungary, and that if that law discharged the debt, the
debt was discharged everywhere. Zimmerman v. Sutherland,
274 U. S. 253, 256 (1927).
The opinion proceeds to state that the sequestration in question was
effected pursuant to valid and binding orders of the Japanese
government and that recognition is given by the courts of the United
States to the power of a belligerent to thus sequester property even
when that power is exercised adversely to United States
nationals.United States v. White Dental Mfg. Co., 274 U. S. 398. The
sequestration was held not to create any right in the National City
Bank except as may arise from subsequent treaties. As was said by
Mr. Justice Stone:
The sequestration of enemy property was within the rights of
the German Government as a belligerent power and when
effected left the corporation without right to demand its releases
or compensation for its seizure, at least until the declaration of
peace . . . . United States v. S. S. White Dental Mfg. Co., U. S.
398, 402 (1927)
(2) Prof. Hyde discussing the second point says:
In the present case the Bank of Taiwan is constantly referred to
as the "Liquidator" of the China Banking Corporation. This leads

to the question whether it properly or adequately performed its

function as liquidator. The liquidation of a corporation is
synonymous with the winding up of the affairs of the
corporation. There is no proper or complete liquidation in which
debts to creditors are not settled and paid as well as assets
reduced to a liquid state. In the present case, only about ten per
cent of the deposits of foreign banks were allowed to be
withdrawn.
The conduct of the liquidator in the present case had also
another significance. Its retention of money representing debts
due by foreign banks to depositors served in fact to be a
convenient means of preserving them so that they would be
subjected to the Japanese Government might later apply. Thus
here was a process whereby the occupant held within its grip
something which later by a method akin to consfiscation it could
ruin the value of, contrary to the injunctions of The Hague
Regulations. Looked at in this way, the conduct of the liquidator
as an agency of the Japanese Government together with the
later action of that Government united jointly to facilitate and
also effectuate the commission of an international wrong. That
wrong was of a type which Articles 43 and 46 of the Hague
Regulations of 1907 appeared to forbid.
A third conclusion is to be drawn from the same fact. There
would be a discrimination against non-Filipinos not permissible
pursuant to international law. Filipinos, axis nationals and
neutrals were able to utilize the payments received by them at a
time when they had value. The foreign bank on the other hand
could not pay more than ten per cent of their deposits and
remained indebted to their depositors in full.
xxx

xxx

xxx

The refusal of the liquidator, the Bank of Taiwan, twice to

release the mortgage in the Haw Pia case stands out as a
significant fact. Of course, it is possible that the liquidator
received payment of 4,563.78 pesos made by the debtor in
August 1944 merely for what it was worth. It may have been
known to the liquidator at the time that Japanese military pesos

of larger denominations that ten peso notes had not been made
legal tender, or it may have doubted whether they had been
tender. Hence the liquidator may have felt obliged, in case
payment were made in such larger Japanese notes, not to
regard them as adequate for the settlement of the debt. Or, the
liquidator may have been influenced by the vastness and
improprietry of the Japanese acts of inflation which if allowed to
enable the debtor to pay her debts therewith, would have
amounted to sheer robbery of the creditor, both violative of
precedent and hurtful to the prestige of the Japanese
Government. In a word, there are numerous reasons any one of
which might have served to put the liquidator on its guard, and
to cause it not leave the matter to its own later decision. Be that
as it may, it is a reasonable assumption that shrewd debtors ran
to the windows of the Bank of Taiwan in the attempt to take
advantage of the decrease of the value of the occupation
currency, one peso of the Philippines being then equivalent to
at least fifteen pesos of the military notes.
The liquidation ordered by the Japanese Administrative Ordinance
No. 11 of July 31, 1942, was not a complete liquidation of all the
affairs of the local banks controlled by enemy nationals, but only a
liquidation of all the credits of said banks in order to liquidate and
sequestrate them. Said Ordinance only provided that "2. The Bank of
Taiwan Ltd. has been appointed liquidator of the above banks. 3. All
loans, advances and other receivables of the banks are hereby
declared due and payable notwithstanding the terms and conditions
of the contract. Debtors are given from today until September 30,
1942, to pay the principal and interest of their obligations. All
payments made thereafter shall be charged additional interest at 3
per cent per annum, except only in special case where they may be
waived." For that reason the creditors or depositors of the banks were
allowed to withdraw restricted amounts only from their deposits as a
protective measure to prevent runs on banks owned or controlled by
the enemy nationals, which would result from mass withdrawals. And
it is incorrect or contrary to facts to say, as Professor Hyde avers, that
"only about ten per cent of the deposits of foreigners were allowed to
withdrawn". For what we have found in our decision in the Haw Pia
case is the following:

That the liquidation or winding up of the business of the China

Banking Corporation and other enemy banks did not constitute
a confiscation or appropriation of their properties of the debts
due them from their debtors, but a mere sequestration of their
assets during the duration of the war for the purposes already
stated, is evidenced conclusively by the following
uncontroverted facts set forth in the briefs of both parties
and amici curiae:
(1) Out of the sum of about P34,000,000 collected from the
debtors by the liquidator Bank of Taiwan, the latter paid out to
the depositors or creditors of the same Bank about P9,000,000;
and it is common sense that this last amount of about
P34,000,000 had it been the intention of the Japanese Military
Administration to confiscate this amount collected by the Bank
of Taiwan.
xxx

xxx

xxx

As the enemy banks were closed and had not received deposits in
Japanese Military notes during the occupation, they did not run the
risk, as the other banks did, of being responsible for such deposits in
genuine Philippine currency had not the Philippine Government
declared after liberation such deposits to be of no value. The
retention by the liquidator "of money representing debts due by
foreign banks to depositors" did not, as Professor Hyde affirms,
"serve in fact to be a convenient means of preserving them so that
they would be subjected to the dangers of inflation and deterioration
of currency which the Japanese Government might later apply." As all
the payments made to the Bank of Taiwan in Japanese war notes of
the credits of the enemy Banks, except about twenty-seven, not ten,
percent paid by the liquidator to the Banks' depositors, had been
sequestrated, said Bank could not have been subjected to the
dangers of inflation or deterioration of currency; because, we have
already stated above, the Japanese Government assumed the
responsibility and is responsible for the payment, in terms of
Philippine pesos or U. S. dollars, of the foreign Bank's credits they
have collected and sequestrated, and the Banks may demand the
payment thereof through their respective Governments at the Peace
Conference.

Although it is obviously immaterial whatever may have been the

opinion of the legislator on the validity or adequacy of the currency
paid by Haw Pia for the settlement of his debt, there is nothing in the
record to show that the Bank of Taiwan refused or declined twice to
release the mortgage in the Haw Pia case, as Professor Hyde
affirms. What appeared in the record was that Haw Pia alleged in his
complaint filed in August, 1945, that the defendants, referring to the
China Banking Corporation because the Bank of Taiwan was only a
nominal defendant and in 1945 was no longer doing business in the
Philippines, refused and neglected to execute the deed of
cancellation of mortgage of the property, and for that reason Haw Pia
had filed that action against the China Banking Corporation. It is a
fact, of which we have judicial notice, that the Bank of Taiwan had
executed deeds of cancellation of mortgages for all payments
received by it in payment of the Banks' and the enemy nationals'
mortgage credits, and the plaintiffs in the present case of Gibbs v.
Rodriguez and in the case of Hongkong Shanghai Banking
Corporation v. Perez Samanillo, precisely demanded in their action
the annulment of the deed of cancellation of the defendants'
mortgages executed by the Bank of Taiwan.
(3) And, with respect to the so-called failure of the Philippine Republic
to heed certain contractual undertaking in the Inter-Allied Declaration
of January 5, 1943, Professor Hyde says in his article the following:
We now come to an important contractual undertakings by the
Philippine Republic. The Government of the Philippines
undertook to invalidate all Japanese dealings by which property
in which nationals of United Nations were interested was hurt
by taking is seen in the "Inter-Allied Declaration Against Acts of
Dispossesion Committed in Territories under Enemy
Occupation or Control (with covering Statement by His
Majesty's Government in the United Kingdom and Explanatory
Memorandum issued by the Parties to the Declaration)",
London, January 5, 1943, to which the Government of the
Commonwealth of the Philippines adhered on January 19,
1943.
xxx

xxx

xxx

It is not here contended that the Allied Nations contemplated on

January 5, 1943 the consideration of payments made to Banks
in the currency of the occupied European countries as invalid.
The inflation in these countries had not progressed to a degree
that such thoughts came to the minds of the signatories. It is
here contended, however, that property is "dispossessed" within
the meaning of the Inter-Allied Declaration where the degree of
inflation is as great as that indicated in the figure in the table
above given on page 155 of this document.
If this be a correct statement, the government participating in
the agreement of January 5, 1943, found themselves legally
obliged to reach a determination that debtors were not relieved
from liability by payments of debts to occupation authorities,
when through a larger inflation such payment would amount to
practical robbery of the creditor for the benefit of the debtor.
xxx

xxx

xxx

The Inter-Allied Declaration of January 5, 1943, in the light of

the official interpretation given to it, has a direct bearing upon
the obligation assumed by the Philippine Republic in the Haw
Pia case. It is evidence of definite undertaking by the Republic
to undo the consequence of acts mutually regarded as
wrongful, and manifested in the inflationary conduct of Japan
that was contemptuous of the rights of Alien creditors growing
out of debts due them by Philippine debtors. Of direct
consequence of the agreement was the obligation on the part of
the Republic by some appropriate process to permit no local
agency, judicial or other, to give effect to the Japanese decrees.
. . . Thus, when the Supreme Court, through ignorance of what
had taken place, or for any other reason, regarded as
enforceable or valid the Japanese edicts, it made itself the
means by which its own country violated an international
obligation laid down by contract. . . . .
As we have already said, we have not determined in the Haw Pia
case, contrary to Professor Hyde's erroneous assumption, that
debtors were relieved from liability by payments in a greatly
depreciated currency or Japanese war notes to the occupation

authorities of the pre-war debts they owed to their creditors (national,

neutral or enemy aliens).
What we have declared is that the Military Occupant had power to
order the liquidation of the hostile banks, appoint the Bank of Taiwan
as liquidator and sequestrate their assets, and that, therefore, the
payment made by Haw Pia to the Bank of Taiwan of his pre-war debt
to the China Banking Corporation was valid and extinguished his
obligation to the latter; and for that reason this Court did not deem it
necessary to discuss and pass upon the effect on said case of the
adherence by the late President Quezon in behalf of the
Commonwealth of the Philippines to the United Nations Declaration
of January 5, 1943, in London. Because in said declaration the United
Nations "stated their intention to do their utmost to defeat the
methods of dispossession practiced by the Governments with which
they are at war against the countries and people who have so
wantonly assaulted and despoiled", and "reserved all their rights to
declare invalid, but did not actually invalidate, any transfers of, or
dealing with, property, rights and interest of any description
whatsoever" in the occupied territories which have taken "the form of
open looting or plunder"; and we have held that the acts of the
Japanese occupant involved in the Haw Pia case did not constitute a
confiscation but a mere sequestration of private granted such
occupant under International Law.
Besides, as the governments which were parties to that
agreement did not bind themselves, but only reserved alltheir rights,
to invalidate such acts, the Government of the Philippines did not
exercise that reserve right* to declare invalid the payments made to
the Bank of Taiwan by debtors of their debts to the enemy banks or
nationals. On the contrary it enacted in 1945 Commonwealth Act No.
727 which provided that "payment on demand or tendered and
accepted during the period of the Japanese invasion on obligation
incurred or contracted prior to such period shall be considered valid."
Although said Act was vetoed by President Truman on the
assumption that it was a currency statue and required his approval, it
is obvious, without necessity of discussing whether or not said Act
727 was really a currency measure, that it was a declaration of the
policy of the Legislative and Executive Departments of the
Government.

Wherefore, we find both the first ground as well as the second ground
of the motion for reconsideration based on Professor Charles Cheney
Hyde's contentions submitted by the petitioners without merit, and
deny said motion for reconsideration.
Moran, C.J., Paras, Pablo, Bengzon, Montemayor, A. Reyes, and
Bautista Angelo, JJ., concur.

TUASON, J., dissenting:

I dissent from the majority opinion on the grounds stated in Mr.
Justice Hilado's dissenting opinion, in which I joined, in Haw Pia v.
China Banking Corporation, 45 Official Gazette Supp. No. 9, 229, and
in my dissents in other allied case.

Footnotes
1

80 Phil., 604.

Justice is a blind Goddess who administers the law regardless

of the parties' station in life, color or race. The writer of the
decision in the Haw Pia case was, before his appointment to
the Supreme Court, a retained attorney for about twenty years
of the China Banking Corporation against which the decision
was rendered in favor of Haw Pia, a Chinaman.
2

82 Phil., 851, unreported.

Mr. Martin Domke, a well-known authority on the matter, who

was furnished with a copy of our decision in the Haw Pia case
by a prominent attorney of Manila, in his letter to the latter of
July 14, 1948, says among others: "Finally, the judgment of the
Supreme Court of April 9th is of very high importance indeed. I
believe the majority decision is right."

The "Evening News," a daily newspaper, in its issue of May

25, 1948, published a news item by Mr. Jose F. Zaide a
member of Evening News Staff and not denied by the proper
authorities, which reads as follows: "British Minister Harry
Linton Foulds in a diplomatic note to the foreign office early this
months brought to the attention of the Philippine Government
an ordinance approved by the Hongkong Government
invalidating settlement of pre-war debts made during the
occupation," but in view of our decision in the Haw Pia case
promulgated on April 9, 1948, "the British envoy sought
Philippine opinion in the possibility of reconciling the divergent
legal view. The British inquiry was believed motivated by the
desire to protest extensive British Banking interests in the
Philippines, principally banking institutes. The foreign office in
an answer transmitted to the British legation was reported to
have stood pat on the ruling of this Supreme Court laid down in
the Haw Pia case validating payment during the occupation."

6.) Haw Pia VS China Banking Corporation

HAW PIA v CHINA BANKING CORPORATION
FACTS
Haw Pia had previously contracted a loan from China Banking
Corporation in the
amount of P5,103.35, which, according to Haw Pia, had been
completely paid,
on different occasions from 1942 to 1944 through Bank of Taiwan,
Ltd., which

was appointed by the Japanese Military authorities as liquidator of

China
Banking Corp. With this, Haw Pia instituted an action against China
Banking
Corp. to compel the bank to execute a deed of cancellation of
mortgage on the
property used as security for the loan and to deliver its title.
However, upon service of summons, China Banking Corp. demanded
from Haw
Pia for the payment of the sum of its indebtedness with interests,
which also
constituted its counter claim in its answer.
RTC rendered a decision in favor of China Banking Corp. on the
basis that there
was no evidence to show that Bank of Taiwan was authorized by
China Banking
Corp. to accept Haw Pia's payment and that Bank of Taiwan, as an
agency of
the Japanese invading army, was not authorized under the
international law to
liquidate the business of China Banking Corp. As such, Haw Pia's
payment to
Bank of Taiwan has not extinguished his indebtedness to China
Banking Corp.
ISSUE
Whether the Japanese Military Administration had authority to order
the
liquidation of the business of China Banking Corp. and to appoint
Bank of
Taiwan as liquidator authorized as such to accept payment
HELD
YES. Under international law, the Japanese Military authorities had
power to
order the liquidation of China Banking Corp. and to appoint and
authorize Bank
of Taiwan as liquidator to accept the payment in question, because
such
liquidation is not confiscation of the properties of China Banking
Corp., but a
mere sequestration of its assets which required its liquidation.

The sequestration or liquidation of enemy banks in occupied

territories is
authorized expressly, not only by the US Army and Naval Manual of
Military
Government and Civil Affairs, but also similar manuals of other
countries,
without violating Art. 46 or other articles of the Hague Regulations.
They do not
amount to an outright confiscation of private property.
The purpose of such sequestration, as expounded in the Annual
Report of the
Office of the Alien Custodian, is that enemy-owned property can be
used to
further the interest of the enemy and to impede their war efforts. All
enemycontrolled
assets can be used to finance propaganda, espionage, and sabotage
in these countries or in countries friendly to their cause.
It is presumed that Japan, in sequestering and liquidating China
Banking Corp.,
must have acted in accordance, either with her own Manual of the
Army and
Navy and Civil Affairs OR with her Trading with the Enemy Act, and
even if not,
it being permitted to the Allied Nations, specially the US and England,
to
sequestrate, impound, and block enemy properties found within their
own
FULL CASE:
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-554

April 9, 1948

HAW PIA, plaintiff-appellant,

vs.
THE CHINA BANKING CORPORATION, defendant-appellee.
Fidel J. Silva for appellant.
Ross, Selph, Carrascoso and Janda for appellee.
DeWitt, Perkins, and Ponce Enrile; Gibbs, Gibbs, Chuidian and
Quasha; Ramon Diokno and Jose W. Diokno; Claro M. Recto and
Allan A. O'Gorman, as amici curiae.
FERIA, J.:
Plaintiff-appellant instituted this action in the Court of First Instance of
Manila against the defendant-appellee, China Banking Corporation,
to compel the latter to execute a deed of cancellation of the mortgage
on the property described in the complaint, and to deliver to the said
plaintiff the Transfer Certificate of Title No. 47634 of the Register of
Deeds of Manila, with the mortgage annotated therein already
cancelled, as well as to pay the plaintiff the sum of P1,000.00 for
damages as attorney's fees and to pay the costs of the suit. The
cause of action is that the plaintiff's indebtedness to the China
Banking Corporation in the sum of P5,103.35 by way of overdraft in
current account payable on demand together with its interests, has
been completely paid, on different occasions, from October 7, 1942,
to August 29, 1944, to the defendant Bank China Banking
Corporation through the defendant Bank of Taiwan, Ltd., that was
appointed by the Japanese Military authorities as liquidator of the
China Banking Corporation.
Upon having been served with summons the defendant-appellee
China Banking Corporation made a demand from the plaintiffappellant for the payment of the sum of P5,103.35 with interests
representing the debt of the said appellant, and in the answer it set
up a counter claim against the plaintiff-appellant demanding the
payment, within 90 days from the latter to the former by way of
overdraft together with its interests at the rate of 9 additional sum of
P1,500 as attorney's fees and the costs of the suits.
After the hearing of the case, the trial court rendered a decision
holding that, as there was no evidence presented to show that the

defendant China Banking Corporation had authorized the Bank of

Taiwan, Ltd., to accept the payment of the plaintiff's debt to the said
defendant, and said Bank of Taiwan, as an agency of the Japanese
invading army, was not authorized under the international law to
liquidate the business of the China Banking Corporation, the payment
has not extinguished the indebtedness of the plaintiff to the said
defendant under article 1162 of the Civil Code. The court absolved
the defendant China Banking Corporation from the complaint of the
plaintiff, and sentenced the latter to pay the former the sum of
P5,103.35 with interests within the period of 90 days from and after
the above mentioned Executive Order No. 32 had been repealed or
set aside, and ordered that, if the plaintiff failed to pay it within the
said period, the property mortgaged shall be sold at public auction
and the proceeds of the sale applied to the payment of said
obligations. The plaintiff appealed from the decision to this Court.
The appellant's assignments of error may be reduced to two, to wit:
First, whether or not the Japanese Military Administration had
authority to order the liquidation or winding up of the business of
defendant-appellee China Banking Corporation, and to appoint the
Bank of Taiwan liquidator authorized as such to accept the payment
by the plaintiff-appellant to said defendant-appellee; and second,
whether or not such payment by the plaintiff-appellant has
extinguished her obligation to said defendant-appellee.
(1) As to the first question, we are Japanese military opinion, and
therefore hold, that the Japanese military authorities had power,
under the international law, to order the liquidation of the China
Banking Corporation and to appoint and authorize the Bank of Taiwan
as liquidator to accept the payment in question, because such
liquidation is not confiscation of the properties of the bank appellee,
but a mere sequestration of its assets which required the liquidation
or winding up of the business of said bank. All the arguments to the
contrary in support of the decision appealed from the predicated upon
the erroneous assumption that the liquidation or winding up of the
affairs of the China Banking Corporation, in order to determine its
liabilities and net assets to be sequestrated or controlled, was an act
of confiscation or appropriation of private property contrary to Article
46, section III of the Hague Regulations of 1907.

The provisions of the Hague Regulations, section III, on Military

Authority over Hostile Territory, which is a part of the Hague
Convention respecting the laws and customs of war on land, are
intended to serve as general rule of conduct for the belligerents in
their relations with each other and with the inhabitants, but as it had
not been found possible then to concert regulations covering all the
circumstances which occur in practice, and on the other hand it could
not have been intended by the High Contracting Parties that the
unforeseen cases should, in the absence of a written undertaking, be
left to the arbitrary judgment of military commanders, it was agreed
that "Until a complete code of the laws of war has been issued, the
High Contracting Parties deem it expedient to declare that in cases
not included in the Regulations adopted by them, the inhabitants and
the belligerents remain under the protection and the rule of the
principles of international law, as they result for the usages
established among civilized peoples, from the laws of humanity, and
the dictates of public conscience."
Before the Hague Convention, it was the usage or practice to allow or
permit the confiscation or appropriation by the belligerent occupant
not only of public but also of private property of the enemy in a
territory occupied by the belligerent hostile army; and as such usage
or practice was allowed, a fortiori, any other act short of confiscation
was necessarily permitted. Section III of the Hague Regulations only
prohibits the confiscation of private property, article 53 provides that
cash funds, and property liable to requisition and all other movable
property belonging to the State susceptible of military use or
operation, may be confiscated or taken possession of as a booty and
utilized for the benefit of the invader's government (II Oppenheim, 8th
ed. section 137; 320 & 321, War Department; Basic Field Manual,
Rules of Land Warfare FM 27-10). The belligerents in their effort to
control enemy property within their jurisdiction or in territories
occupied by their armed forces in order to avoid their use in aid of the
enemy and to increase their own resources, after the Hague
Convention and specially during the first World War, had to resort to
such measures of prevention which do not amount to a straight
confiscation, as freezing, blocking, placing under custody and
sequestrating the enemy private property. Such acts are recognized
as not repugnant to the Hague Regulations by well-known writers on
International Law, and are authorized in the Army and Navy Manual

of Military Government and Civil Affairs not only of the United States,
but also in tries, as well as in the Trading with the Enemy Acts of said
countries.
Hyde in his International Law chiefly as interpreted and applied by the
United States, Vol. 3, 6th ed., p. 1727, has the following to say:
In examining the efforts of a belligerent to control in various
ways property within its domain that has such a connection with
nationals of the enemy that it may be fairly regarded as enemy
property, it is important to inquire whether the attempt is made
to appropriate property without compensation, divesting him not
only of title, but also of any right or interest in what is taken,
without prospect of reimbursement, or whether those efforts
constitute an assumption of control which, regardless of any
transfer of title, is not designated to produce such a deprivation.
The character of the belligerent acts in the two situations is not
identical. To refer to both as confiscatory is not productive of
clearness of thought, unless a loose and broad signification be
attached to the term "confiscation." The point to be noted is that
a belligerent may in fact deprive an alien enemy owner of
property by process that are into essentially confiscatory, even
though the taking and retention may cause him severe loss and
hardship. Recourse to such non-confiscatory retentions or
deprivations has marked the conduct of belligerents since the
beginning of the World War in 1914. They may perhaps be
appropriately referred to as sequestrations. The propriety of
what they have involved is, therefore, hardly discernible by
reference to objections directed against confiscatory action as
such, and must be tested by other means or standards.
A belligerent may fairly endeavor to prevent enemy property of
any kind within its territory (or elsewhere within its reach) from
being so employed as to afford direct military aid to its foe.
Measures of prevention may, in a particular case, assume a
confiscatory aspect. In such a situation the question may arise
whether those aspect. In such a situation the question may
arise whether those measures are, nevertheless, excusable. It
is believed that they may be, and that they are not invariably

unlawful despite the absence of efforts to compensate the

owners.
And in the footnote of the same page, said author adds:
This analysis differs sharply from that of those who would
regard almost all uncompensated deprivations of property as
essentially confiscatory, and as, therefore, internationally illegal
because of the further assumption or conclusion that
confiscatory action must inevitably be so regarded. Belligerent
States have not, however, generally acted on such a theory.
They have in fact proceeded, especially since 1914, to exercise
varying degrees of control over vast amounts of enemy private
property by strictly non-confiscatory processes from which they
have felt no sense of legal obligation to abstain. In so doing
they have been creative of relatively fresh practices which logic
has ordained and war-terminating treaties have sanctioned.
Thus it happens that proper estimation of the place of
confiscation of enemy private property in the law of nations has
become of less importance than formerly, because both of the
reluctance of States and notably of the United States to have
recourse to it, and of their preference for no-confiscatory
measures exemplified in sequestrations as a desirable and
sufficient means of utilizing such property.
And Oppenheim in his International Law, Vol. 2, 6th ed., by
Lauterpacht, says:
But the desire to eliminate the financial and commercial
influence of the enemy, and other motives, presently led in most
States to exceptional war measures against the businesses and
property of enemies, which though not confiscation, implicated
great loss and injury. Sometimes these measures stopped short
of divesting the enemy ownership of the property; but in other
cases the businesses or property were liquidated, and were
represented at the close of hostilities by nothing else than the
proceeds of their realization, often enough out of all proportion
to their value. In the Trading with the Enemy Act, 1939,
provisions was made for the appointment of custodians of
enemy property in order to prevent the payment of money to

enemies and preserve enemy property in contemplation of

arrangements to be made at the conclusion of peace.
The readjustment of rights of private property on land was
provided for by the Treaties of Peace. The general principles
underlying their complicated arrangements were that the
validity of all completed war measures was reciprocally
confirmed; but that while uncompleted liquidations on the
territories of the Central Powers were to be discontinued, and
the subjects of the victorious Powers were to receive
compensation for the loss or damage inflicted on their property
by the emergency war measures, the property of subjects of the
vanquished Powers on the territories of the Allied and
Associated Powers might be retained and liquidated, and the
owner was to look for compensation to his own State. The
proceeds of the realization of such property were not to be
handed over to him, or to his State, but were to be credited to
his State as payment on account of the sums payable by it
under the treaties.
In paragraph 143 (p. 313) of the same work, Oppenheim states that
"Private personal property which does not consist of war materials or
means of transport serviceable for military operations may not be as
a rule seized". It is obvious that the word "seized" used therein
signifies "confiscated" in view of the above quoted paragraph, and
therefore when Oppenheim says, in footnote to said passage, "Nor
may the occupant liquidate the business of enemy subject in
occupied territories," he means "confiscate" by the word "liquidate".
Ernest K. Feildchenfeld in his "The International Economic Law of
Belligerent Occupation (1942)" supports the foregoing conclusion of
Hyde, when he says that "According to Article 46 of the Hague
Regulations, private property must be respected and cannot be
confiscated. This rule affords protection against the loss of property,
through outright confiscation, but not against losses under lawful
requisition, contribution, seizure, fines, taxes, and expropriation" (Par.
208, p. 51). And later on the adds: "A complete nationalization of a
corporation for the benefit of the occupant could not be anything but a
permanent measure involving final effects beyond the duration of the
occupation. There is no military need for it because the same

practical results can be achieved by temporarysequestration," (par.

385, p. 107).
Martin Domke in his Trading with the Enemy in World War II, pp. 4
and 5, speaking of Warfare on Economic and military fronts, says that
"Freezing Control is but one phase of the present war effort; it is but
one weapon on the total war which is now being waged on both
economic and military fronts. Coupled with Freezing Control as a part
of this nation's program of economic warfare are to be found export
control, the promulgation of a Black List, censorship, seizure of
enemy-owned property, and financial and lend-lease aid to allied and
friendly nations. As to Japan, no official information is available as yet
on steps taken by the Japanese Government. As a Commentary of
April 11, 1942, points out, the Japanese Trading with the Enemy
legislation enacted during the last war against Germany might throw
some light on the views adopted by Japan in this matter."
The sequestration or liquidation of enemy banks in occupied
territories is authorized expressly by the United States Army and
Navy Manual of Military Government and Civil Affairs F.M. 2710
OPNAV 50-E-3, which, mandatory and controlling upon the theatre
commanders of the U. S. forces in said territories, provides in its
paragraph 12 the following:
Functions of Civil Affairs Officers. In the occupation of such
territories for a considerable period of time, the civil affairs
officers will in most cases be concerned with the following and
other activities:
1. MONEY AND BANKING. Closing, if necessary and
guarding of banks, bank funds, safe deposit boxes, securities
and records; providing interim banking and credit
needs; liquidation; reorganization, and reopening of banks at
appropriate times; regulations and supervisions of credit
cooperatives and other financial agencies and organizations;
execution of policies on currency fixed by higher authority, such
as the designation of types of currency to be used and rates of
exchange supervision of the issue and use of all types of
money and credit; declaration of debt moratoria; prevention of
financial transactions with enemy occupied territory.

The civil affairs officers are concerned, that is, entrusted with the
performance of the functions enumerated above, when so directed by
the chief commander of the occupant military forces.
Not only the United States Army and Navy Manual of Military
Government and Civil Affairs but similar manuals of other countries
authorize the liquidation or impounding of the assets of enemy banks
or the freezing, blocking and impounding of enemy properties in the
occupied hostile territories without violating article 46 or other articles
of the Hague Regulations. They do not amount to an outright
confiscation of private property, and were put into effect by the Allied
Army in the occupied hostile territories in Europe during World War II.
The Combined Chiefs of Staff, in their Directive of May 31, 1943, on
Military Government in Sicily, Italy, addressed to the Supreme Allied
Commander, Mediterranean Theater, ordered: "(h) An Allied
Military Financial Agency under the control of the Military Government
shall be established with such sub-agencies as considered
necessary," "(i) Military authorities on occupying an area shall
immediately take the following steps: '(1) All financial institutions and
banks shall be closed and put under the custody of the military
forces'," (2) a general moratorium shall be declared. (j) ... all papers
of value, foreign securities, gold and foreign currencies shall be
impounded with receipts granted to recognized owners. (k) "The
Allied Military Financial Agency or any appointed agency by the MG
will take into immediate custody all foreign securities and currencies,
holding of gold, national funds and holding of Fascist organizations
for deposit." (Appendix on American Military Government, its
Organization and Policies, by Hajo Holborn, 1947, pp. 116, 117.)
The Combined Directive of April 28, 1944, for Military government in
Germany Prior to Defeat or Surrender, provided that the Allied Forces
"Upon entering the area of Germany will take the following steps and
put into effect only such further financial measures as they deem
necessary from a strictly military standpoint. (b) "Banks should be
placed under such control as deemed necessary by them in order
that adequate facilities or military needs may be provided and to
insure that instructions and regulations issued by the military
authorities will be fully complied with." (c) "Pending determination of
future disposition, all gold, foreign currencies, foreign securities,

accounts in financial institutions, credits, valuable papers, and all

similar assets held by or on behalf of the following, will be impounded
or blocked and will be used or otherwise dealt with only as permitted
under licenses or other instructions which you may issue: (1) German
national state, provincial and local governments and agencies and
instrumentalities thereof." (4) "Nazi party organizations including the
party formations, affiliates and supervised associations, and the
officials, leading members and supporters thereof; and (5) Persons
under detention or other types of custody by Allied Military authorities
and other persons whose activities are hostile to the interest of
military government" (Holborn, supra, p. 141)
In the Allied Directive of June 27, 1945, to the Commander in Chief of
the United States forces of occupation regarding the military
government of Austria, the Commanding General of the United States
forces of occupation in Austria, serving as United States members of
the Allied Council of the Allied Commission for Austria, was
authorized, subject to agreed policies of the Allied Council to close
banks, insurance companies, and other financial institutions for a
period long enough to introduce satisfactory control to ascertain their
cash position and to issue instructions for the determination of
accounts and assets to be blocked under paragraph 55 which
authorized him to impound or block all gold, silver, currencies,
securities accounts in financial institutions, credits, valuable papers,
and all other assets falling within the following categories; a. Property
owned or controlled, directly or indirectly, in whole or in part, by any of
the following: (1) the governments, nationals or residents of the
German Reich, Italy, Bulgaria, Rumania, Hungary, Finland and
Japan, including those of territories occupied by them; (3) the Nazi
Party, its formations, affiliated associations and supervised
organizations, its officials, leading members and supporters; (4) all
organizations, clubs and other associations prohibited or dissolved by
military government; (5) absentee owners, including United nations
and neutral governments; (7) persons subject to arrest under the
provisions of paragraph 7, and all other persons specified by military
government by inclusion in lists or otherwise, (Holborn, supra, p.
192).
On the other hand, the provisions of the Trading with the Enemy Acts
enacted by the United States and almost all the principal nations

since the first World War, including England, Germany, France and
other European countries, as well as Japan, confirms that the assets
of enemy corporations, specially banks incorporated under the laws
of the country at war with the occupant and doing business in the
occupied territory, may be legally sequestered, and the business
thereof wound up or liquidated. Such sequestration or seizure of the
properties is not an act for the confiscation of enemy property, but for
the conservation of it, subject to further disposition by treaty between
the belligerents at the end of the war. Section 12 of the Trading with
the Enemy Act of the United States provides that "after the end of the
war any claim of enemy or ally of an enemy to any money or other
property received and held by the Alien Custodian or deposited in the
United States Treasury, shall be settled as Congress shall direct."
The purpose of such sequestration is well expounded in the Annual
Report of the Office of the Alien Custodian for a period from March
11, 1943 to June 30, 1943. "In the absence of effective measures of
control, enemy-owned property can be used to further the interest of
the enemy and to impede our own war effort. All enemy-controlled
assets can be used to finance propaganda, epionage, and sabotage
in this country or in countries friendly to our cause. They can be used
to acquire stocks of strategic materials and supplies ... use to the
enemy, they will be diverted from our own war effort.
The national safety requires the prohibition of all unlicensed
communication, direct or indirect, with enemy and enemy-owned
territories. To the extent that this prohibition is effective, the residents
of such territory are prevented from exercising the rights and
responsibilities of ownership over property located in the United
States. Meanwhile, decisions affecting the utilization of such property
must be made and carried out. Houses must be maintained and rents
collected; payments of principal and interest on mortgages must be
made for the account of foreign debtors and foreign creditors;
stranded stocks of material and equipment must be sold; patents
must be licensed, business enterprises must be operated and
liquidated, and foreign interest must be represented in court actions.
The number of decisions to be made in connection with property is in
fact multiplied by a state of war, which requires that productive
resources be shifted from one use to another so as to conform with
the requirements of a war economy."

The defendant-appellee, China Banking Corporation, comes within

the meaning of the word "enemy" as used in the Trading with Enemy
Act of civilized countries, because not only it was controlled by
Japan's enemies, but it was, besides, incorporated under the laws of
a country with which Japan was at war.
Section 2 (1) of the Trading with the Enemy Act of Great Britain
provides that the expression "enemy" means: "any body of persons
(whether corporate or incorporate) carrying on business in any place,
if and so long as the body is controlled by a person who, under this
section, is an "enemy". The control test has also been expressly
adopted in the French Trading with the Enemy Act. The Italian Act
regards as enemies "legal persons when enemy subject have any
prevalent interest whatever in them." The Decree of the Dutch
Government-in-exile of June 7, 1940, also adopted the control test by
including in the term enemy subjects "legal persons in which interest
of an enemy state or enemy subjects are predominantly involved."
(Domke Trading with the Enemy Act, pp. 127-130.)
In the United States, the Trading with the Enemy Act has not adopted
the control theory. But section 2-a of the said Act says that the word
enemy shall be deemed to mean any "corporation incorporated within
such territory of any nation with which the United States is at war."
And the same definition is given to the word "enemy" by the Trading
with the Enemy Act of the above-named countries. The British Act in
Section 2 (1) defines as enemy "any body of persons constituted or
incorporated in or under the laws of a state at war with his Majesty," it
being immaterial that they are under the control of allied or neutral
stockholders. Similarly the French Act regards as enemies,
corporations incorporated in conformity with the laws of an enemy
state. The decree of the Dutch Government-in-exile on June 7, 1940,
considers as enemies legal persons "organized or existing according
to or governed by the law of an enemy state." The German Act of
January 15, 1940, I section 3 (1) 3, deems enemies all corporations,
"the original personality of which is based on the laws of an enemy
state." The Italian Act of 1938, section 5, regards corporation as
enemies if they are of enemy nationality under the law of the enemy
state. So too the Japanese Act, Chapter 1, No. 25, deems enemies
"all corporations belonging to enemy countries." (See Martin Domke,
Trading with the Enemy Act in World War II, pp. 120-122.)

Section 3-A of the Trading with the Enemy Act of the United Kingdom
of September 5, 1939, as amended up to April 1, 1943, provides that
"Where and business is being carried in the United Kingdom by, on
behalf of, or under the jurisdiction of, persons all or any of whom are
enemies or enemy subjects or appear to the Board of Trade to be
associated with enemies, the Board of Trade may, if they think it
expedient so to do, make ...;" (b) and order (hereinafter in this section
referred to as a winding up orders) requiring the business to be
wound up;" and section 14 (c) of the same Act (that obviously makes
it applicable to enemy territories occupied by the United Kingdoms
armed forces) provides that "His Majesty may by order in council
direct that the provisions of this Act other than this section shall
extend, with such exceptions, adaptations and modifications, if any,
as may be prescribed by or under the order ... (to the extent of His
Majesty's jurisdiction therein) to any of the country or territory being a
foreign country or territory, in which for the time being His Majesty
has jurisdiction." (The Trading with the Enemy Act in World War II, p.
481, by Martin Domke.)
Section 5 (b) of the Trading with the Enemy Act of the United States
provides that "during the time of war or during any period in which
national emergencies declared by the President, the President may
under any agency that he may designate or otherwise under such
rule and regulation as he may prescribe," and "any property or
interest of any foreign country or national thereof shall vest, when, as,
and upon the terms, directed by the President, in such agency or
person as may be designated from time to time by the President, and
upon such terms and conditions as the President may prescribe, such
interest or property shall be held, used, administered, liquidated, etc."
and section 6 (e) of the same Act provides that "any payment, ... of
money or property made to the alien property custodian hereunder
shall be a full acquittance and discharge for all purposes of the
obligation of the person making the same to the extent of same. ..
and shall, in any case of payment to the alien, property custodian of
any debt or obligation owed to an enemy or ally of enemy, deliver up
any notes, bonds, or other evidences of indebtedness or
obligation, ... with like effect as if he or they, respectively, were duly
appointed by the enemy or ally of enemy, creditor, or obligee."

It is evident that the Trading with the Enemy Act of the United States,
like that of the United Kingdom or Great Britain above quoted, and
those of other countries, may be applied and enforced in a hostile
territory occupied by the United States armed forces, because section
2 of said Act provides "That the words 'United States', as used herein,
shall be deemed to mean all land and water, continental or insular, in
any way within the jurisdiction of the United States or occupied by the
military or naval forces thereof." After the liberation of the Philippines
during World War II, properties belonging to Japanese Nationals
located in this country were taken possession of by the Alien Property
Custodian appointed by the President of the United States under the
Trading with the Enemy Act, because, although the Philippines was
not a territory or within the jurisdiction or national domain of the
United States, it was then occupied by the military and naval forces
thereof.
Of course it is obvious that the obligations assumed by the United
States, in applying the Trading with the Enemy Act of the United
States to properties within her national domain, is different and
distinct from those arising from the application thereof to enemy
properties located within the hostile territory occupied by her armed
forces. In the first case, Congress is untramelled and free to authorize
the seizure, use, or appropriation of such properties without and
compensation to the owners, for although section 2 of the Trading
with the Enemy Act provides that "at the end of the war any claim of
an enemy or of an ally of enemy to any money or other property
received and held by the alien property custodian or deposited in the
United States Treasury shall be settled by Congress," the owners of
the properties seized within the national domain of the United States
are not entitled to demand its release or compensation for its seizure,
but what could ultimately come back to them, might be secured, not
as a matter of right, but as matter of either grace to the vanquished or
exacted by the victor, for the case is to be governed by the domestic
laws of the United States, and not by the Hague Regulations or
International Law (U.S. vs. Chemical Foundation Inc., 272 U.S. 1;
United States vs. S.S. White Dental Manufacturing Company, 274
U.S., 402). While in the latter case, when the properties are
sequestered in a hostile occupied territory by the armed forces of the
United States, Congress can not legally refuse to credit the
compensation for them to the States of the owners as payment on the

account of the sums payable by said States under treaties, and the
owners have to look for compensation to their States, otherwise, they
would violate article 46 of the Hague Regulations or their pledge of
good faith implied in the act of sequestering or taking control of such
properties.
It is to be presumed that Japan, in sequestering and liquidating the
China Banking Corporation, must have acted in accordance, either
with her own Manual of the Army and Navy and Civil Affairs, or with
her Trading with the Enemy Act, and even if not, it being permitted to
the Allied Nations, specially the United states and England, to
sequestrate, impound, and block enemy properties found within their
own domain or in enemy territories occupied during the war by their
armed forces, and it not being contrary to the Hague regulations or
international law, Japan had also the right to do the same in the
Philippines by virtue of the international law principle that "what is
permitted to one belligerent is also allowed to the other."
Taking into consideration the acts of the Japanese Military
Administration in treating the private properties of the so-called
enemy banks, it appears evident that Japan did not intend to
confiscate or appropriate the assets of said banks or the debts due
them from their debtors, and thus violate article 46 or any other article
of the Hague Regulations. It is true that as to private personal
properties of the enemy, freezing, blocking, or impounding thereof is
sufficient for the purpose of preventing their being used in aid of the
enemy; but with regard to the funds of commercial banks like the socalled enemy banks, it was impossible or impracticable to attain the
purpose for which the freezing, blocking or impounding are intended,
without liquidating the said banks and collecting the loans given by
then to the hundreds if not thousands or persons scattered over the
Islands. Without doing so, their assets or money loaned to so many
persons can not properly be impounded or blocked, in order to
prevent their being used in aid to the enemy through the intervention
of their very debtors, and successfully wage economic as well as
military war.
That the liquidation or winding up of the business of the China
Banking Corporation and other enemy banks did not constitute a
confiscation or appropriation of their properties or of the debts due

them from their debtors, but a mere sequestration of their assets

during the duration of the war for the purposes already stated, is
evidenced conclusively by the following uncontroverted facts set forth
in the briefs of both parties and amici curiae:
(1) Out of the sum of about P34,000,000 collected from the debtors
by the liquidator Bank of Taiwan, the latter paid out to the depositors
or creditors of the same bank about P9,000,000; and its common
sense that this last amount should not have been disbursed or taken
out of the said amount of about P34,000,000 had it been the intention
of the Japanese Military Administration to confiscate this amount
collected by the Bank of Taiwan.
(2) The members of Chinese Associations were permitted to withdraw
from their deposits with the China Banking Corporation a
considerable amount of money which was paid out of the sum
collected from the debtors of said bank, in order that they may pay
the contribution legally exacted from them by the military occupant in
accordance with article 51 of the Hague Regulations. And this
showed the intention of the belligerent occupant not to confiscate the
bank's assets and to act, at least in this respect, in accordance with
said Regulations; because otherwise the Japanese Military
Administration could have properly required the Chinese to pay the
contribution out of their own funds, without diminishing or reducing
the amounts collected by the Bank of Taiwan from the debtors of the
China Bank.
(3) The collection of the aforementioned debts from the bank's
debtors, as well as the payment of withdrawal by the depositors, were
regularly entered into the books of said Banks, so that after liberation
they could easily determine the respective amounts and the persons
who had made the payments, which enabled all said banks to reopen and continue their business; and the regular keeping of said
books would have been unnecessary or useless, were it the intention
of the military occupant to close definitely the enemy banks and
appropriate all their resources.
(4) There was absolutely no reason for confiscating the funds of the
banks collected from their debtors, because by sequestrating or
impounding their assets or funds after the latter had been collected

from their debtors, the principal purpose of preventing the possible

use of the funds of the banks in aid of Japan's enemy was completely
accomplished. Absolutely no other benefit could be derived by Japan
from confiscating or appropriating the payments made in Japanese
war military notes to the enemy banks by their debtors, because the
Japanese Government could have them at will without cost, except
that of the ink, paper and labor necessary for printing and issuing
them.
(5) The annual Report, 31st December, 1945, of the Chartered Bank
of India, Australia, and China (pp. 11-12), which had a branch in
Manila liquidated by Japanese Military authorities as one of enemy
banks, clearly shows that the liquidation of said branch was a mere
sequestration, impounding or control of its assets, and not a
confiscation or appropriation thereof during the occupation by the
Japanese. It says that during the enemy occupation the cash balance
of our Branches were seized, their assets realized and repayment of
varying amounts, but up to 100 per cent in one Branch at least, made
to depositors. Said report reads, in its pertinent part, as follows:
I informed you, when commenting upon the Balance Sheet
figures for the year ending 31st December, 1942, that we had
reason to believe that accounts of some of our occupied
Branches had been partly or wholly liquidated, and that the
liquidation of such accounts would ultimately bring about
shrinkage in both Assets and Liabilities in the Balance Sheet
figures. The information now in our possession and the various
changes in the Balance Sheet figures to which I have referred
to above, confirm the correctness of this statement, for during
the enemy occupation the cash balances of our Branches were
seized, their assets realized where possible, and repayment of
varying amounts, but up to 100 per cent in one Branch at least,
made to depositors. Even so, the business of the offices of the
Bank which remained under our own control throughout the war
was steadily increased and has offset to a great extent
decreases brought about by the partial liquidation of Branches
which were in Japanese control. (Emphasis supplied.)
It is obvious that the fact that Japanese Military authorities failed to
pay the enemy banks the balance of the money collected by the Bank

of Taiwan from the debtors of the said banks, did not and could not
change the sequestration or impounding by them of the bank's assets
during the war, into an outright confiscation or appropriation thereof.
Aside from the fact that it was physically impossible for the Japanese
Military authorities to do so because they were forcibly driven out of
the Philippines or annihilated by the forces of liberation, following the
readjustment of rights of private property on land seized by the
enemy provided by the Treaty of Versailles and other peace treaties
entered into at the close of the first World War, the general principles
underlying such arrangements are that the owners of properties
seized, sequestrated or impounded who are nationals of the
victorious belligerent are entitled to receive compensation for the loss
or damage inflicted on their property by the emergency war measures
taken by the enemy, through their respective States or Governments
who may officially intervene and demand the payment of he claim on
behalf of their nationals (VI Hackworth Digest of International Law,
pages 232, 233; 11 Oppenheim, sixth edition, page 263). Naturally,
as the Japanese war notes were issued as legal tender for payment
of all kinds at par with the Philippine peso, by the Japanese Imperial
Government, which in its proclamations of January 3, 1942, and
February 1, 1942, "takes full responsibility for their usage having the
correct amount to back them up" (See said Proclamations and their
official explanation, O.T. IMA, Vol, 1, pp. 39, 40), Japan is bound to
indemnify the aggrieved banks for the loss or damage on their
property, in terms of Philippine pesos or U.S. dollars at the rate of one
dollar for two pesos.
(2) The second question is, we may say, corollary of the first. It
having been shown above that the Japanese Military Forces had
power to sequestrate and impound the assets or funds of the China
Banking Corporation, and for that purpose to liquidate it by collecting
the debts due to said bank from its debtors, and paying its creditors,
and therefore to appoint the Bank of Taiwan as liquidator with the
consequent authority to make the collection, it follows evidently that
the payments by the debtors to the Bank of Taiwan of their debts to
the China Banking Corporation have extinguished their obligation to
the latter. Said payments were made to a person, the Bank of Taiwan,
authorized to receive them in the name of the bank creditor under
article 1162, of the Civil Code. Because it is evident the words "a
person authorized to receive it," as used therein, means not only a

person authorized by the same creditor, but also a person authorized

by law to do so, such as guardian, executor or administrator of estate
of a deceased, and assignee or liquidator of a partnership or
corporation, as well as any other who may be authorized to do so by
law (Manresa, Civil Code, 4th ed. p. 254.)
The fact that the money with which that debts have been paid were
Japanese war notes doe not affect the validity of the payments. The
provision of article 1170 of our Civil Code to the effect that "payment
of debts of money must be made in the species stipulated and if it not
to deliver such specie in silver or gold coins which is legal tender," in
not applicable to the present case, because the contract between the
parties was to pay Philippine pesos and not some specifically defined
species of money. The Philippine peso and half-pesos including the
Philippine Treasury Certificate was and is legal tender in the
Philippines under section 612 of the Administrative Code, as
amended by Act No. 4199. As well stated by the Supreme Court of
the United States in Knox vs. Lee and Parker (Legal Tender Cases,
12 Wall., 457-681, 20 Law. ed., 287). "The expectation of the creditor
and the anticipation of the debtor may have been that the contract
would be discharged by the payment of coined metals, but neither the
expectation of one party to the contract, respecting its fruits, nor the
anticipation of the other, constitutes its obligation. There is a wellrecognized distinction between the expectation of the parties to a
contract and the duty imposed by it. Aspdin vs. Austin, 5 Ad. & Bl.
(N.S.) 671; Dunn vs. Sayles, Ibid. 685; Coffin vs. Landis, 46 Pa. 426.
Were it not so, the expectation of results would be always equivalent
to a binding engagement that they should follow. But the obligation of
contract to pay money is to pay that which the law shall recognize as
money when the payment is made. If there is anything settled by
decision it is this, and we do not understand it to be controverted."
(Knox vs. Exchange Bank of Virginia, 12 Wall., 457; 20 U.S. Supreme
Court Reports, 20 L. ed., 287, 311.) In said case it was held that the
legal tender for payment of debts contracted before and after their
passage were not inappropriate for carrying into execution the
legitimate purpose of the Government. And this Court, in Rogers vs.
Smith Bell (10 Phil., 319), held that "A debt of 12,000 pesos created
in 1876 can now (1908) be paid by 12,000 of the Philippine pesos
authorized by the Act of Congress of March 2, 1903, although at the

time the loan was made which created the debt, the creditor delivered
to the debtor 12,000 pesos in gold coin."
The power of the military governments established in occupied
enemy territory to issue military currency in the exercise of their
governmental power has never been seriously questioned. Such
power is based, not only on the occupant's general power to maintain
law and order recognized in article 43 of the Hague Regulations
(Feilchenfeld of Belligerent Occupation, paragraph 6), but on military
necessity as shown by the history of the use of money or currency in
wars.
As early as the year 1122, during the siege of Tyre, Doge Micheli paid
his troops in leather money which he promised to redeem when he
returned to Venice (Del Mar, Money and Civilization, 26), and when
Frederick II besieged Milan he also used leather money to pay his
troops, as well as in payment of wages (id. 33). When the French
forces occupied the Ruhr in 1923, they finished the printing of some
Reichsbank notes in process and issued them. (Nussbaum, Money in
the Law, note 6, 158-59.) The British during the Boer War issued
receipts for requisitioned goods and made such receipts readily
negotiable, an arrangement very similar to the issuance of currency
(Spaight, War Rights on Land, 396). During the American Revolution,
the Continental Congress issued currency even before the issuance
of the Declaration of Independence, when the territory controlled by
Congress was held in military occupation against the then legitimate
government. (Dewey, Financial History of the United States, 37-38;
Morrison and Commager, Growth of the American Republic, 207;
Nussbaum, op. cit. supra note, 6, 172-173.) The Confederacy issued
its own currency in Confederate territory (Thorington vs. Smith, 8
Wall., 1) and also in northern areas occupied from time to time during
the war. (Spaight, op. cit. supra, note 19, 392.) The Japanese issued
special occupation currency in Korea and Manchuria during the
Russo-Japanese War of 1905. (Takahashi, International Law Applied
to Russo-Japanese War, 1908, 260-61; Spaight, op. cit. note 19,397;
Ariga, La Guerre Rossu-Japanese, 1908, 450 et seq.) The British
also issued currency notes redeemable in Sterling in London at a
fixed rate of exchange, in their occupation of Archangel during and
after the first World War. (White, Currency of the Great War, 66;
League of Nations, Currency After the War, 100.)

During the World War II, the Germans had been using a variety of
occupation currencies as legal tenders on a large scale, the currency
initially used in most occupied areas being the Reichskroditkassa
mark, a paper currency printed in German and denominated in
German monetary units, which circulated side by side with the local
currency at decreased rate of exchange. And the Allies have
introduced notes as legal currency in Sicily, Germany, and Austria.
The Combined Directive of the combined Chief of Staffs to the
Supreme Allied Commander issued on June 24, 1943, directed that
the task forces of the U.S. will use, besides regular U.S. coins, yellow
seal dollars, and the forces of Great Britain will use besides British
coins, British Military Notes (BMA), to supplement the local lire
currency then in use (Hajo Holborn, American Military Government,
1947, pp. 115-116). The Combined directive for Military Government
in Germany, prior to defeat or surrender, of April 28, 1944, directed
the United States, British and other Allied Forces to use Allied military
mark and Reichsmark currency in circulation in Germany as legal
tender and the Allied Military Marks will be interchangeable with the
Reichsmark currency at the rate of Allied Mark for Reichsmark; and
that in the event adequate supplies of them were not available, the
United States forces will use Yellow seal dollars and the British forces
will use British Military Authority (BMN) notes. (Holborn, op. cit. supra,
p. 140.) And the American Directive on the Military Government of
Austria of June 27, 1945, ordered that the United States forces and
other Allied forces within Austria will use only Allied Military Schillings
for pay of troops and other military requirements, declaring it legal
tender in Austria interchangeably with Reichsmarks at a rate of one
Allied military schilling for one Reichsmarks. (Holborn, op. cit. supra,
p. 192.)
In the above cited case of Thorington vs. Smith, the Supreme Court
of the United States said:
. . . While the war lasted, however, they had a certain
contingent value, and were used as money in nearly all
business transactions of many millions of people. They must be
regarded, therefore, as a currency, imposed on the community
by irresistible force.

It seems to follows as a necessary consequence from this

actual supremacy of the insurgent government, as a belligerent,
within the territory where it circulated, and from the necessity of
civil obedience on the part of all who remained in it, that this
currency must be considered in courts of law in the same light
as it has been issued by a foreign government, temporarily
occupying a part of the territory of the United States."
According to Feilchenfeld in his book "The International Economic
Law of Belligerent Occupation," the occupant in exercising his powers
in regard to money and currency, may adopt one of the following
methods according to circumstances: (1) When the coverage of the
currency of the territory occupied has become inadequate as found in
several Balkan countries during the War of 1914-18, and "the local
currency continues to be used, an occupant may reorganize the
national currency by appropriate methods, such as the creation of
new types and supplies of coverage" (paragraph 272). (2) The
occupant may, and not infrequently, use his own currency, in the
occupied region. But this method may be found inconvenient if the
coverage for their national currency had already become inadequate,
and for that reason authorities are afraid of exposing it to additional
strain, and for that reason an occupant may not replace the local
currency by his own currency for all currency for all purposes, and
enforce its use not only for his own payment but also for payments
among inhabitants (paragraph 285). (3) Where the regional currency
has become inadequate and it is deemed inadvisable by the
occupant to expose his own currency to further strain, new types of
money may be created by the occupant. Such new currency may
have anew name and may be issued by institution created for that
purpose (paragraph 296). This last method was the one adopted by
Japan in this country, because the coverage of the Philippine
Treasury Certificate of the territory occupied had become inadequate,
for most if not all of the said coverage had been taken to the United
States and many millions of silver pesos were buried or thrown into
the sea near Corregidor, and Japan did not want to use her national
currency, and expose it to additional strains.
But be that as it may, whatever might have been the intrinsic or
extrinsic worth of the Japanese war-notes which the Bank of Taiwan
has received as full satisfaction of the obligations of the appellee's

debtors to it, is of no consequence in the present case. As we have

already stated, the Japanese war-notes were issued as legal tender
at par with the Philippine peso, and guaranteed by Japanese
Government "which takes full responsibility for their usage having the
correct amount to back them up (Proclamation of January 3, 1942).
Now that the outcome of the war has turned against Japan, the
enemy banks have the right to demand from Japan, through their
States or Governments, payments or compensation in Philippine
peso or U.S. dollars as the case may be, for the loss or damage
inflicted on the property by the emergency war measure taken by the
enemy. If Japan had won the war of were the victor, the property or
money of said banks sequestrated or impounded by her might be
retained by Japan and credited to the respective State of which the
owners of said banks were nationals, as a payment on the account of
the sums payable by them as indemnity under the treaties, and the
said owners were to look for compensation in Philippine pesos or
U.S. dollars to their respective States. (Treaty of Versailles and other
peace treaties entered at the close of the first world war; VI
Hackworth Digest of International Law, p. 232.) And if they cannot et
any or sufficient compensation either from the enemy or from their
States, because of their insolvency or impossibility to pay, they have
naturally to suffer, as everyone else, the losses incident to all wars.
In view of all the foregoing, the judgement appealed from is reversed,
and the defendant-appellee is sentenced to execute the deed of
cancellation of mortgage of the property described in the complaint,
and to deliver to the plaintiff-appellant the Transfer Certificate of Title
No. 47634 of the Register of Deeds in Manila with the annotation of
mortgage therein already cancelled, without pronouncement as to
costs. So ordered.
Moran, C.J., Paras, Pablo, and Bengzon, JJ., concur.

Separate Opinions
PERFECTO, J., concurring:

Before September 14, 1939, Haw Pia secured an overdraft account

from the China Banking Corporation up to the sum of P8,000 with the
obligation to pay, on the bank's demand, the amounts withdrawn with
interest at the rate of 9 per cent per annum, payable monthly, at the
end of each month, the interests to be compounded in case of failure.
From September 14, 1939, to December 26, 1941, plaintiff withdrew
several amounts and on a later date the balance amounted to
P5,103.35.
On September 14, 1941, plaintiff mortgaged to defendant, as
guaranty for the amounts of her indebtedness to the latter, her
property described in transfer certificate of title No. 47634 of the
Register of Deeds of Manila. One of the conditions of the mortgage
was that, in case of execution, plaintiff will pay an additional amount
of 10 per cent of the debt which in no case shall be less than P1,500.
On January 2, 1942, the Bank of Taiwan was appointed by the
Japanese military authorities of occupation as liquidator of the China
Bank, and from October 7, 1942, to August 29, 1944, plaintiff made
payments to the Bank of Taiwan amounting to P6,055.21 to liquidate
her obligation with the China Bank, payments being made in
Japanese military notes.
In the complaint filed by plaintiff on September 4, 1945, she prayed
that the China Bank be required to return to her, her certificate of title
No. 47634, with the mortgage cancelled, and to pay P1,000 as
attorneys fees, plus costs.
On October 15, 1945, the China Bank, not recognizing the payments
made by the plaintiff to the Bank of Taiwan, filed a cross complaint for
the collection from the plaintiff of the amount of P5,103.35, with
interest, plus P1,500 for attorney's fees and costs.
On March 12, 1946, the lower court rendered a decision declaring
null and void the payments made by plaintiff to the Bank of Taiwan to
satisfy her obligation to the China Bank, ordering her to pay to the
China Bank the sum of P5,103.35 with interests and that, upon her
failure to pay said amount within ninety days after Executive Order
No. 32, series of 1945, on moratorium, shall have been revoked, the

mortgaged property be sold at public auction and the product applied

to the payment of the judgment.
The above are the facts in this case as stated in appellee's brief.
Appellant states that the mortgaged property consists of a lot and
house located at No. 1134 Padre Algue street, Manila, and that the
China Bank, being an enemy bank, was placed under liquidation of
the Bank of Taiwan by virtue of Administrative Ordinance No. 11
issued by the Director General of the Japanese Military
Administration dated August 1, 1942, and prays for reversal of the
appealed decision and that the China Bank be ordered to execute a
deed of cancellation of the mortgage and to deliver to her transfer
certificate of title No. 47634, with costs.
For the purposes of the legal questions raised in this appeal, there is
no substantial disagreement as to the pertinent facts. Disentangled
from the morass of voluminous memoranda filed by the parties'
counsel and amici curiae, giving to the recorf imposing bulkiness, all
the controversy in this case can be reduced and simplified into the
following questions: The amounts paid by Haw Pia to the Bank of
Taiwam having been lost, unless and until they are recovered from
the Japanese government, who should suffer the loss?
Justice, as we see it, allows only the following answer: the creditor.
The appropriation made by the Japanese of the money paid by Haw
Pia, be it designated as a confiscation or plain highway robbery, was
unquestionably aimed, not at the money as owned by Haw Pia, but
as property of the China Bank. The Japanese appropriated appellee's
credit, the money owned by Haw Pia to the China Bank, but not the
property of Haw Pia.
Haw Pia would not have been molested if the Japanese had not
taken possession of the credit held by the China Bank.
No question has been raised as to the value of the money paid. The
presumption is that it covered completely the credit.
For all the foregoing, we vote for the reversal of the appealed
decision and as prayed for by appellant, the mortgage executed by
appellant in favor of appellee is declared cancelled, and appellee

ordered to return to appellant transfer certificate of title No. 47634,

without costs.

BRIONES, M., conforme:

El presente caso es una de las derivaciones juridicas mas
importantes de la ocupacion japonesa. No ha sido facil el hallarie una
solucion adecuada y justa, siquiera sea dentro de lo relativo que
supone la creacion de un derecho, de una justicia, en un medio tan
esencialmente caotico y confuso como es toda guerra con su
balumba compleja de consecuencias. Hay mucho de barbarie en
toda guerra, maxime en una de agresion como la emprendida por los
japoneses en 1941; asi que no es extrao que haya sido tan dificil
para la humanidad el extraer de la barbarie un cuerpo de derecho, un
sistema de justicia. El que esto exista ahora, permitiendo
relativamente a los tribunales dirimir y resolver las disputas
resultantes de las guerras, no solo habla alto de la perfectibilidad
humana, de la capacidad basica del genero humano para el progreso
en el orden moral y juridico, sino que constituye un feliz augurio, por
encima de todos los pesimismos, de la victoria final de las fuerzas del
bien sobre las tenebrosas potestades del mal.
No hay controversia acerca de ciertos postulados a saber:
(a) Que las reglas de derecho internacional complementan nuestro
derecho civil para la solucion de ciertos conflictos y litigios. Esto rige
particularmente en la materia que se refiere al pago de las
obligaciones.
(b) Que la piedra de toque de la validez y eficacia, despues de la
guerra, de los actos juridicos realizados durante la ocupacion militar
por un beligerante de un territorio enemigo, es la legalidad de tales
actos bajo las reglas conocidas de derecho internal y los usos y
practicas generalmente sancionados en tiempo de guerra. Son
legales tales actos? Entonces surten efecto aun despues de la
guerra. Son ilegales? Entonces son invalidos e ineficaces: los
derechos y obligaciones de las partes contrantantes se restauran en

su condicion original preguerra, como si ningun acto se hubiese

ejecutado.
(c) Que el ocupante militar de un territorio enemigo no puede
confiscar bienes de propiedad particular, a tenor de lo dispuesto en la
Sec. III de las Regulaciones de La Haya. Asi que es importante
definir el significado y alcance de la palabra "confiscacion", tal como
ella se emplea tanto en el derecho domestico como en el
internacional. Desde luego la voz tiene la misma acepcion en ambos
derechos. Segun el diccionario de la Real Academia de la Lengua
Espaola confiscar es "privar a uno de sus bienes para aplicarlos al
fisco". Escriche, en su Diccionario de Legiscacion y Jurisprudencia,
define el vocablo diciendo que es "la adjudicacion que se hace al
fisco de los bienes de algun reao".
Confiscate. To adjudge forfeited; to appropriate property. The
word is derived from the Latin "con" meaning with, and "fiscus",
a basket or hamper in which the Roman emperor's treasure
was kept. Hence, the word means to transfer property from
private use to public use; or to forfeit property to the prince or
state. See Ware vs. Hylton, 1 U. S. (3 Dallas), 199, 234; 1 L.
ed. (U. S.), 568, 583.
Confiscation. The seizure and appropriation of property
belonging to an enemy. the law of nations prescribes that all
property belonging to the enemy shall be liable to confiscation,
but with certain modifications and relaxations of the rule. See
15 R.C.L. 187. (Law Dictionary with Pronunciations by
Ballentine, p. 261.)
Confiscate. To appropriate to the use of the state.
Especially used of the goods and property of alien enemies
found in a state in time of war. 1 Kent 52 et. seq.Bona
confiscata and foriscata are said to be the same (1 Bla. Com.
299), and the result to the individual is the same whether the
property be forfeited or confiscated; but, as distinguisned, an
individual forfeits, a state confiscates, goods or other property.
Use also as an adjective forfeited. 1 Bla. Com. 299.
(Bouvier's Law Dictionary, Vol. 1-A to E, p. 595.)

"Confiscation" may result from taking use of property without

compensation, as well as from taking title. U.S.C.A. Const.
Amend. 5, Chicago, R. I. & P. Ry. Co. vs. U. S. (11) 52 S. Ct.
87, 92; 284 U. S. 80, 76 L. ed. 177.
The verb "confiscate" is derived from the latin "con," with, and
"fiscus," a basket or hamper, in which the Emperor's treasure
was formerly kept. The meaning of the word "confiscate" is to
transfer property from private to public use, or to forfeit property
to the prince or state. Ware vs. Hylton, 3 U. S. (3 Dallas), 199,
234; 1 L. ed., 568, 584.
Even if the war power includes right to confiscate debt due to
an enemy national, "confiscation" is not consummated by mere
declaration so as to automatically vest debt in government, but
actual payment must be exacted. Frankel & Co. vs. L'Urbaine
Fire Ins. Co. of Paris, France, 167 N. E., 430, 432; 251 N. Y.,
243. (Words & Phrases, 8th ed., p. 575.)
(d) Que si al ocupante militar de un territorio enemigo no le esta
permitido confiscar bienes de propiedad particular, le esta permitido,
sin embargo, secuestar o embargar para determinados fines, entre
ellos el enervar y debilitar la capacidad para guerrear del pais
ocupado, o el evitar que los bienes objeto de secuestro o embargo
puedan ser utilizados en dao y perjuicio del ocupante militar. (Hyde,
International Law, Vol. 3, 6th ed., p. 1727; Oppenheim, International
Law, Vol. 2, 6th ed., por Lauterpacht.)
(e) Que cuando la ocupacion militar del territorio enemigo dura algun
tiempo, el ocupante puede, por medio de sus oficiales y agentes
encargados de administrar los asuntos civiles, reorganizar los
bancos, e inclusive liquidarlos.Esto esta categoricamente
preceptuado en el Manual de Gobierno Militar y Asuntos Civiles del
Ejercito y Marina de los Estados Unidos (United States Army and
Navy Manual of Military Government and Civil Affairs F. M. 2710
OPNAV, 50-E-3). Resulta evidente que en tal caso la liquidacion no
tiene el significado y alcance de unaconfiscacion, sino que es solo
una de las formas del secuestro o embargo, permitido por el derecho
internacional, segun ya queda indicado.

Resulta evidente, de lo expuesto, que mientras la confiscacion de

bienes de propiedad particular esta condenada y prohibida por las
Regulaciones de La Haya y es contraria a los usos y practicas de
una guerra civilizada, no pudiendo, por tanto, surtir efectos validos y
eficaces despues de la guerra contra la voluntad de las partes
afectadas, no asi el simple secuestro o embargo, el cual, como ya
hemos visto, esta autorizado por el derecho internacional para ciertos
fines, entre ellos los indicados en el apartado "e" arriba expuesto. La
cuestion ahora en orden es la siguiente: como se debe enjuiciar y
conceptuar la liquidacion de los bancos extranjeros en Filipinas por el
Banco de Taiwan, que actuo como liquidador durante toda la
ocupacion militar japonesa en nombre y representacion del ejercito
del Mikado? Fue confiscacion, y fue mero secuestro,
simple embargo? Los hechos convenidos y establecidos en autos
conducen a una inevitable conclusion: que no se trata aqui de
unaconfiscacion, sino de un secuestro. No solo no hay en autos
ninguna prueba de que el ejercito ocupante o el banco liquidador se
aproprio de los creditos cobrados para usarlos en su beneficio o
aplicarlos al fisco, sino que, por el contrario, consta sin discusion que
de los 34 millones que produjo la liquidacion, unos 9 millones se
pagaron a los depositantes de dichos bancos que retiraron total o
parcialmente sus depositos, y a otros acreedores, figurando, por
supuesto, entre tales depositantes y acreedores algunos extranjeros
internados en los campos de concentracion. Este solo hecho basta y
sobra para rechazar la idea o concepto de la confiscacion. Es que
para sus gastos militares y de todo genero los japoneses no tenian
necesidad de confiscar los creditos de los bancos extranjeros: tenia
para ello el llamado fiat money en cantidades ilimitadas. Como se
dice bien en la ponencia, los japoneses disponian de imprenta, papel
y tinta para producir papel moneda ad libitum . . .
Se admite que el banco demandado y otros bancos extranjeros
puestos en su caso han tomado provecho de las mencionadas
retiradas de deposito pagadas por el banco liquidador
enriqueciendose en la extension y cuantia de tales retiradas. Esta
admision implica necesariamente otra admision mas importante, a
saber: que el dinero utilizado para satisfacer dichas retiradas de
deposito procedia de los creditos liquidados; y que naturalmente
tales dinero y creditos no habian
sido confiscados sino secuestrados solamente. Ahora bien; cabe

dividir y encasillar la liquidacion, declarando como confiscacion una

parte, y como secuestro, otra. Indudablemente que no, pues ello
seria un absurdo; la liquidacion no podia ser mitad confiscacion,
mitad secuestro. Habiendo el banco demandado y sus congeneres
aceptado implicitamente la teoria del secuestro al beneficiarse con
las retiradas de deposito que se han acreditado a su favor, mal
puede permitirseles repudiar dicha teoria cuando no les conviene
gritando confiscacion! con relacion a los otros creditos liquidados.
Usando una frase vulgar, el que esta a las duras, tambien debe estar
a las maduras, y viceversa. Esto debe regir tanto etica como
juridicamente.
No hay por que discutir si los japoneses hicieron bien o mal al
secuestrar el activo y los creditos de los bancos enemigos
liquidandolos en la forma en que los liquidaron. No se trata de eso;
es decir, no se trata de nuestros puntos de vista, ni de nuestras
preferencias. Desde luego que nuestro sentir es que todo lo que
hicieron aqui fue malo, muy malo desde el comienzo hasta el fin.
Basicamente, fundamentalmente la guerra que nos hicieron fue una
infamia; la invasion de nuestro suelo fue pura barbarie. Pero de lo
que se trata es si de acuerdo con el derecho internacional vigente
podian desarmar a los bancos enemigos secuestrando y liquidando
su activo, a fin de evitar que sus adversarios lo pudiesen utilizar en
su dao y lo activasen para fomentar el movimiento de resistencia
contra la ocupacion; y ya hemos visto que en la etapa a que ha
llegado el derecho internacional en su contknuado avance eso esta
permitido. Tampoco hay por que discutir si la liquidacion de los
creditos era la forma adecuada de secuestro o embargo, pues la
opcion era suya de los nipones no nuestra.
Ahora, mas de tres aos despues de la guerra, en que los hechos se
pueden avalorar desde mejor perspectiva, no resulta dificil explicar
por que los japoneses recurrieron al arbitrio de la liquidacion como
forma de secuestro del activo y creditos de los bancos enemigos. El
nipon es acaso el hombre mas suspicaz del mundo. Su ingenita
suspicacia se acentuo en un 1,000 por 100 durante la ocupacion de
Filipinas porque con razon sospechaba de la hostilidad de una
inmensisima mayoria de la poblacion como que creia ver a un
guerrillero en casi cada varon habil. Extraara, pues, que con tal
prejuicio y suspicacia presintiese la posibilidad de que los creditos

por cobrar de los bancos enemigos, desperdigados por el pais, se

aprovechasen por America y sus aliados para animar el movimiento
de resistencia, subvencionado con el capital de los mismos los
servicios de informacion, el espionaje, el "sabotage," etc., etc? No
da esto la clave de que el suspicaz invasor recurriese a la liquidacion
para compeler el pago de las deudas bajo la presion de la coaccion o
amenaza, o estimularlo, si se quiere, mediante el impulso natural del
instinto de conservacion? Repito: no se trata aqui ni mucho menos
de justificar el secuestro; se trata simplemente de explicarlo para
deducir las consecuencias juridicas de imperativa obligatoriedad bajo
las reglas del derecho internacional.
Se ha puesto enfasis en los daos y perjuicios que sufririan el banco
demandado y otros bancos colocados en igual predicamento si se
convalidaran los pagos en cuestion. La situacion, sin embargo, no es
absolutamente irremediable. Habiendo el Japon causado esos daos
con los procedimientos de secuestro y liquidacion que ejecuto para
promover sus objetivos militares, el mismo es desde luego
responsable y esta obligado a pagar la correspondiente
indemnizacion. Por tanto, el tiempo oportuno para discutir esta
cuestion sera cuando se negocie el tratado de paz con el Japon. Es
de presumir que entonces los gobiernos de los paises afectados
es decir, los paises de origen de esos bancos formularan un
programa de reclamaciones en el que se incluiran los daos y
perjuicios de que se trata; y es de presumir tambien que habra un
arreglo entre dichos bancos y sus respectivos gobiernos. Esto es, por
lo menos, lo que cabe esperar no solo porque es lo mas razonable y
justo bajo las circunstancias, sino tambien porque es lo mas logico y
hacedero a la luz de los precedentes, usos y practicas
internacionales.
Es posible que estos bancos no consigan un reembolso completo de
sus creditos liquidados por los japoneses. Pero cabe preguntar:
quien despues de una guerra, sobre todo si ha sido tan devastadora
como la ultima, puede conseguir una completa reparacion de los
daos sufridos en forma de vidas destruidas, de salud fisica y moral
deshecha, de propiedades aniquiladas o robadas, etc., etc., quien?
El que ha perdido a su padre, a su madre, a un hijo, a un ser querido
en una palabra puede acaso recobrarlo? Aunque recibiera una
indemnizacion pecuniaria llena esto plenamente el vacio? cura

sobre todo el dolor moral? A los bancos afectados les queda, por los
menos, el consuelo de que sus perdidas resultantes de la liquidacion
forzosa por los japoneses han quedado casi cubiertas, bien con sus
ganancias obtenidas en otras areas no directamente afectadas por la
guerra, bien con ganancias logradas por ellos aqui mismo despues
de la liberacion, segun informes y datos autenticos. Asi es la guerra:
todos tienen su parte de dolor y sacrificio en ella; y uno no va a
quejarse si por cualquiera combinacion de circunstancias superiores
a la voluntad humana, le toca en suerte sobrellevar una cruz mas
pesada que la del projimo. Ces't la guerree . . .
Se ha puesto asimismo enfasis en otro aspecto moral, etico, de la
cuestion, a saber: el que algunos logreros se hayan lucrado
precipitandose a pagar sus deudas durante el apogeo de la inflacion.
Es indudable que algunos deudores pudieron aprovecharse de la
inflacion pagando sus deudas durante el periodo en que el billete
militar japones tenia un poder adquisitivo muy bajo, pero esto no
afecta a la cuestion fundamental de principio. Una vez establecido
juridicamente que el banco liquidador tenia autoridad y facultad para
recibir y aceptar pagos segun las reglas conocidas de derecho
internacional y bajo los usos y practicas sancionados en tiempo de
guerra, y una vez que el banco liquidador aceotp y recibio dichos
pagos sin discriminacion en cuanto al dinero pagado, la extincion de
la obligacion tenia que seguir necesariamente. Habiendo comenzado
la liquidacion en un tiempo en que aun no habia inflacion de hecho
el billete militar japones estaba casi a la par con el peso del
Commonweath ; y no habiendo el gobierno militar de ocupacion ni
el banco liquidador establecido una escala de volares de acuerdo
con las oscilaciones y curvaturas que sufriera dicho billete en el
accidentado curso de la inflacion, no podemos ahora, so pena de
incurrir en arbitrariedad, establecer fronteras de demarcacion que
separen el periodo normal del inflatorio, declarando valido la pagado
en el primer periodo, e invalido, total o parcialmente, lo pagado en el
segundo. El principio tiene que aceptarse integramente con todas
sus consecuencias. O se itra de la manta para todos, o no se tira
para nadie . . . El principio es indivisible.
Sobre la cuestion del legal tender, pareceme que nada se puede
aadir a los luminosos razonamientos del Seos Magistrado
ponente. Razones de dialectica, experiencia e historia abonan en

favor de la tesis de que el ocupante militar de un territorio enemigo

tiene poder para emitir billetes y ponerlos en circulacion como
moneda corriente. Quiero, sin embargo, destacar el siguiente hecho:
que en Filipinas, en virtud de una ley economica elemental, el billete
militar japones arrojo el peso filipino del Commonwealth de las
corrientes circulatorias, forzandolo a buscar escondite "para mejores
tiempos." Asi que sin haber sido condenado por la administracion
militar nipona, el peso del Commonwealth se elimino por si mismo.
Esto determino un resultado economico indeclinable: el absoluto
predominio del billete militar como instrumento de cambio y de pago,
excepto solamente en las areas dominadas por las fuerzas de
resistencia las guerrillas. Asi que, por encima de todas las
abstracciones, los pagos hubieron de hacerse en billete militar
durante la mayor parte de la ocupacion japonesa, excepto en muy
corto tiempo durante los primeros meses en que el peso filipino
alternaba indistintamente con el billete militar. De hecho las retiradas
de deposito de los bancos en liquidacion se pagaron todas en billete
militar.
Se revoca la sentencia.

HILADO, J., with whom concur PADILLA and

TUASON, JJ., dissenting:
I dissent.
On or about September 14, 1939, in the City of Manila, Philippines,
Haw Pia obtained from the China Banking Corporation certain credit
facilities in the form of overdraft withdrawable through promissory
notes, letters of credit, trust receipts, bills of exchange, etc., and for
the security thereof executed and delivered to the said bank the
mortgage indenture known in the record as "Exhibit CC-plaintiff" or as
"Exhibit Z" of "Defendant's Exhibit 1." It was stipulated in that
mortgage indenture (12th clause), among other things, that should
the mortgagee find it necessary to resort to the courts in order to
collect the indebtedness, the interests or expenses, the mortgagee
shall be allowed "a sum equivalent to ten per centum (10%) of all the
amounts due, but in no case less than fifteen hundred pesos (P1500),

as attorney's fees, said amount to be considered part of the principal

sum hereby secured, this mortgage answering for its payment
accordingly." Thus it becomes apparent that the obligation incurred by
Haw Pia under the overdraft was payable in Philippine currency as
shown by the fact that 10 per cent of it was payable in fifteen hundred
pesos Philippine currency, as indicated by the "P" sign and
considering the date in which the agreement was made. At that time,
as now, the "P" sign, used in the Philippines, stands for Philippine
currency.
As of December 26, 1941, that overdraft account has a debit balance
of P5,103.35 (defendant's Exhibit 2).
During the occupation, and under the Administrative Ordinance No.
11 dated July 31, 1942, issued by the Japanese occupation
authorities, the defendant bank was allegedly placed under liquidation
along with six other "banks of hostile countries," by the Taiwan Bank,
as "liquidator." The latter bank, as pretended liquidator, and by virtue
of said ordinance, received partial payments from Haw Pia on
account of the aforesaid overdraft totalling P6,067.13 composed of
the said former balance of P5,103.35 and P963.78 as interest. All
these payments were made in Japanese military notes, P303.35 in
1942, P1,200 in 1943, and P4,563.78 in 1944.
Twice did the plaintiff Haw Pia ask the Taiwan Bank to cancel the
mortgage aforesaid and the delivery of her torrens title covering the
mortgaged property, but twice did said bank refuse the cancellation
(statement by Haw Pia's counsel, p. 5, t. s. n.).
On August 31, 1945, plaintiff Haw Pia filed suit in the Court of First
Instance of Manila against the China Banking Corporation and the
Bank of Taiwan, praying for judgment ordering the defendants to
deliver to her Transfer Certificate of Title aforesaid, ordering the said
defendants to execute a deed of cancellation of the mortgage and
other remedies not pertinent to the present decision.
After certain subsequent proceedings the defendant China Banking
Corporation filed its answer with special defenses and "cross-claim"
under date of October 15, 1945, praying: (1) to be absolved from
plaintiff's complaint; (2) that plaintiff be sentenced to pay defendant

the sum of P5,103.35 with interests thereon at 9 per cent per annum
from December 26, 1941, compounded monthly until paid, and the
additional sum of P1,500 for attorney's fees and costs of suit; (3) that
plaintiff be ordered to pay defendant the amount of the judgment
within 90 days from and after the date on which Executive Order No.
32, series of 1945, (Moratorium order) is repealed or lifted; and (4) for
general relief.
The trial court rendered judgment on March 12, 1946, absolving the
defendant China Banking Corporation from the complaint and giving
judgment pursuant to said defendant's "cross-claim." Upon this
appeal, plaintiff-appellant's assignment of error may be reduced to
the following: (1) whether or not the Japanese Military Administration
or Japanese Army of occupation had authority to liquidate the socalled alien or enemy banks through the Taiwan Bank or otherwise;
and (2) whether payments made to said supposed liquidator in
Japanese military notes by plaintiff-appellant has discharged her from
her obligation to defendant-appellee China Banking Corporation.
1. Japanese occupation army, or the enemy property custodian of the
Japanese Military Administration, or the latter itself, through Bank of
Taiwan or otherwise, had no authority to liquidate enemy banks
mentioned in Administrative Ordinance No. 11.
Appellant Haw Pia principally relies on Administrative Ordinance No.
11 issued by the Japanese Military Administration, the subject matter
of which was "the liquidation of the banks of hostile countries." This
contention is argued under the seventh proposition set forth on page
123 of the printed memorandum of Atty. Claro M. Recto,amicus
curiae, as follows:
VII. Under International Law, the Bank of Taiwan, acting as
liquidator of the "enemy" banks and as direct representative of
the office of the enemy property custodian of the Japanese
Military Administration and/or the latter itself, was lawfully
authorized to demand and receive payments for and on behalf
of the 'enemy' banks and inasmuch as it is admitted that the
debtors paid the Bank of Taiwan, in that capacity, their debts to
said "enemy" banks, they have been and are not validly
discharged from any obligation under the municipal law.

As stated in the aforequoted proposition, the theory is also there

advanced that the payments made by the debtors to the Bank of
Taiwan as such "liquidator" discharged their debts under the
municipal law.
The lower court held against this contention, and the case has been
brought here on appeal.
It seems self-evident that under article 1162 of the Civil Code,
providing that "payment must be made to the person in whose favor
the obligation is constituted, or to another authorized to receive it in
his name," the authority of such other person to receive the payment
must be lawful, that is, granted by the creditor himself or otherwise
conferred by virtue of some provision of law. There is not question
that the alien banks denominated "hostile" in Administrative
Ordinance No. 11, did not confer such authority on the Bank of
Taiwan nor on the Japanese occupation army, or the enemy property
custodian of the Japanese Military Administration, or the latter itself,
to collect or receive payment of the debts owed said banks by their
prewar debtors, now involved herein, and the question arises whether
said Bank of Taiwan or said Japanese occupation army, or enemy
property custodian, or Japanese Military Administration, was by any
law, international or municipal, authorized to do so.
Hereafter we will show that not only was such an authority lacking but
it was absolutely denied under the provisions of the Hague
Regulations of 1907. But long before said regulations were
formulated, that is, as early as 1863, during vhe American Civil War
and even before, it was already an established doctrine that no such
authority is possessed by a conquering power, much less, therefore,
by a mere military occupant, whenever the debt is owed to
a privatecreditor and the credit belongs to him, as
his private property.
In Planters' Bank vs. Union Bank, 16 Wall. (U.S.), 483; 21 Law. ed.,
473, 479, decided by the United States Supreme Court, April 28,
1873, it was held:
. . . And it is by no means to be admitted that a conquering
power may compel private debtors to pay their debts to itself,

and that such payments extinguish the claims of the original

creditor. It does indeed appear to be a principle of international
law that a conquering state, after the conquest has subsided
into government, may exact payment from the state debtors of
the conquered power, and that payments to the conqueror
discharge the debt, so that when the former government returns
the debtor is not compellable to pay again. This is the doctrine
in Phillimore on International Law, Vol. 3, part 12, ch. 4, to
which we have been referred.But the principle has no
applicability to debts not due to the conquered state. neither
Phillimore nor Bynkershoek, whom he cites, asserts that the
conquering state succeeds to the rights of a private creditor.
It follows, then, that the order of General Banks was one which
he had no authority to make, and that his direction to the Union
Bank to pay to the quartermaster of the army the debt due the
Planters' Bank was wholly invalid . . . .
For all practical intents and purposes, by the aforesaid Administrative
Ordinance No. 11, the Japanese occupation Commander, through the
Bank of Taiwan, attempted to achieve what General Banks in the
cited case was declared to have been devoid of legal authority to do.
The order of General Banks was made in the City of New Orleans
when said city was in quiet possession of the United States forces
after its capture more than 15 months previously and when it was in
an undisturbed possession of the Union forces. "Hence," the court
says, "the order was no attempt to seize property 'flagrante bello' nor
was it a seizure for immediate use of the Army. It was simply an
attempt to confiscate private property . . . . Still, as the war had not
ceased, though it was not flagrant in the district, and as General
Banks was in command of the district, it must be conceded that he
had power to do all that the laws of war permitted, except so far as he
was restrained by the pledged faith of the government, or by the
effect of congressional legislation. . . ." (21 Law. ed., 478.)
When the Administrative Ordinance No. 11 was promulgated, the City
of Manila was in quiet possession of the Japanese Forces after its
capture as an open city following the entry of the Japanese on
January 2, 1942. Hence, paraphrasing the United States Supreme

Court's opinion, the said ordinance was no attempt to seize the

credits in question "flagrante bello," nor where they seized for the
immediate use of the Army. In fact, the Japanese Army, having the
absolute power and control over the printing of its military notes
without any limitation, did not need to seize such notes in other
people's possession in order to make use of the same. The so-called
liquidation of said alien banks appears to have been solely motivated
by the reason that the Japanese considered them as "hostile," as
stated in the very title of the ordinance, and with the sole object, to all
practical intents and purposes, of confiscating the credits involved
and depriving the creditor banks of their rights therein. If under the
laws of war, as found in the prevailing international law, the acts of
General Banks were not held to be permitted thereby, the similar acts
of the Japanese Commander in Chief or of the Japanese occupation
army, of the Japanese enemy property custodian, or of the Japanese
Military Administration, through their agent the Taiwan Bank, were
positively forbidden by the provisions of international law contained in
the Hague Regulations of 1907 and in force at the time of the
promulgation of Administrative Ordinance No. 11 and the commission
of the acts of the Taiwan Bank thereunder with respect to said alien
banks and their credits.
If in the Union Bank case General Bank's army had no power to order
payment to itself, it clearly had no power to order payment to its
appointee, if there had been one, like the Bank of Taiwan as regards
the Japanese occupation army in our case. The Hague Regulations
contain in their preamble a very significant language negativing the
power and authority asserted here for the Japanese army of
occupation. Said preamble stipulates:
Until a more complete code of the laws of war has been issued,
the High Contracting Parties deem it expedient to declare that,
in cases not included in the Regulations adopted by them, the
inhabitants and belligerents remain under the protection and
the rule of the principles of the law of nations, as they result
from the usages established among civilized peoples, from
the laws of humanity, and the dictates of the public conscience.
(Emphasis supplied.)

But not only this, but in the specific provisions of the regulations, we
find articles 46, 47, and 53 which, respectively, enjoin respect for
private property and prohibit confiscation of private property, sternly
forbid pillage, and authorize the Army of occupation to take
possession only of cash, funds, and realizable securities which
are strictly the property of the State, among other specified items of
property. For convenience, these articles, in so far as pertinent, are
quoted below:
ARTICLE 46. Family honour and rights, the lives of persons,
and private property, as well as religious convictions and
practice, must be respected.
Private property can not be confiscated.
ARTICLE 47. Pillage is formally forbidden. . . .
ARTICLE 53. An army of occupation can only take possession
of cash, funds, and realizable securities which are strictly the
property of the State . . . . (Emphasis supplied.)
Amicus curiae Attorney Recto cites (pp. 149-150 of his printed
memorandum) two paragraphs from the work of Arthur Garfield Hays
entitled "Enemy Property in America," in an effort to further support
his 7th proposition, but the fact is that this author in the passages
quoted treats of the power of a belligerent to seize and confiscate
enemy private property within its own domain. He does not say that
the belligerent would also possess that power in a territory of its
enemy temporarily occupied by it during the course of the war. Thus,
the author says:
In its acts each belligerent had before its eyes the possible
extent of retaliation and was, therefore, guided in its procedure
by the proportion of the enemy in its country as compared with
that of its nationals in other countries. Germany dealt lightly
with American property and quite naturally, since German
property under American control was many times that
of American property under German control. (Emphasis
supplied.)

In the case of Co Kim Cham vs. Tan Keh, 41 Off. Gaz., 779, it was
held by the majority of the Court that the powers of the Japanese
military forces in the Philippines, that is, in those parts thereof
occupied by the Japanese Army during the war, were subject to and
limited by the Hague Regulations. As already stated, these
Regulations direct in the most solemn manner that private property
be respected and be not confiscated. The municipal laws of this
country at the time of the commencement of the Japanese
occupation included, among others, these precepts of the Hague
Regulations by virtue of that provision in our Constitution (Article II,
section 3) to the effect that the Philippines adopts the generally
accepted principles of international law as a part of the law of the
Nation. So that, both by the direct injunctions of the Hague
Regulations which bound Japan, and by the municipal law of the
Philippines, said invader was under obligation to respect private
property here and to refrain from confiscating, seizing and
appropriating the same. There can be no doubt of Japan's obligations
in the premises under the direct provisions of the Hague Regulations
or the rules of international law as therein formulated. And so far as
those rules were adopted as part of the municipal law of the
Philippines, she was also enjoined to respect them, unless absolutely
prevented, by article 43 of the same Regulations reading:
The authority of the legitimate power having in fact passed into
the hands of the occupant, the latter shall take all the measures
in his power to restore and ensure, as far as possible, public
order and safety, while respecting, unless absolutely prevented,
the laws in force in the country.
It is of course obvious that Japan was not absolutely prevented from
respecting the laws of the Philippines which enjoin respect for and
forbid confiscation of private property.
We have said above that the Japanese occupation army, or the
enemy property custodian of the Japanese Military Administration, or
the latter itself, through the Bank of Taiwan or otherwise, was
absolutely denied under the provisions of the Hague Regulations of
1907 the authority to liquidate the enemy banks mentioned in
Administrative Ordinance No. 11. We will not show it.

Article 53 of the Regulations, as we have recalled, allows the army of

occupation to take possession only of cash, funds, and realizable
securities which are strictly the property of the State. A liquidation
such as that attempted by the Bank of Taiwan of the abovementioned alien banks, necessarily and inevitably requires its taking
possession of the cash, funds, and realizable securities involved in
the transactions to be liquidated. If that taking of possession is
essential to the liquidation if without it the liquidation would be
impossible but it is forbidden, how can it be said that the liquidation
is permitted?
Article 46 of the Regulations, as we have seen, enjoins respect for
private property, and forbids its confiscation. (Hereafter we will show
that the so-called liquidation of the alien banks was in fact
confiscation.) For the present we will speak of respect for it. Of
course, it is beyond cavil that credits and contractual rights relating to
any kind of property, whether money or otherwise, are property and if
they belong to a private owner, are private property. Respect for such
private property requires that it be not interfered with, that nothing be
done with it, in a manner injurious to the rights of its owner without
the latter's consent.
Even before the Hague Regulations of 1907 were adopted,
international law already made it the duty of a belligerent occupant
not to annul private rights nor to disturb the relations of the
inhabitants to each other. In U. S. vs. Percheman, 7 Pet. (U. S.), 51, 8
Law. ed., 608, 617, Chief Justice Marshall, speaking for a unanimous
court, said:
. . . The modern usage of nations, which has become law,
would be violated; that sense of justice and of right which is
acknowledged and felt by the whole civilized world would be
outraged, if private property should be generally confiscated,
and private rights annulled. The people change their allegiance;
their relation to their ancient sovereign is dissolved; but their
relations to each other, and their rights of property remained
undisturbed . . . (The great jurist was speaking of a case
of conquest. With how much more vehemence he would have
uttered his learned pronouncements, had he been referring to a

mere provisional military occupation of enemy territory during

the progress of a war, we can easily imagine.)
. . . As the population does not owe the occupying commander
allegiance, and as his authority is based merely on military
necessity and so is provisional, it follows that, unless military
exigencies imperatively demand otherwise, he must administer
the existing territorial law, and must not interfere with the
existing rights and obligations of the inhabitants, and in
particular must not infringe the provision laid down in article 231
(II Wheaton's International Law, 7th English ed., p. 236;
emphasis supplied).
SEC. 283. If the occupant has performed acts which, according
to International Law, he was not competent to
perform, postliminium makes the invalidity of these illegitimate
acts apparent. Therefore, if the occupant has sold immovable
State property, such property may afterwards be claimed from
the purchaser, whoever he is, without compensation. If he has
appointed individuals to offices for terms outlasting the
occupation they may afterwards be dismissed. If he has
appropriated and sold such private or public property as may
not be legitimately be appropriated by a military occupant, it
may afterwards be claimed from the purchaser without payment
of compensation. (II Oppenheim, International Law, 6th Rev.
Ed., p. 483; emphasis supplied.)
If such illegitimate sale of immovable State property, and such
illegitimate appropriation and sale of public or private property by the
military occupant, are thus annulled, so must an illegitimate
liquidation of private banks in the occupied territory be after the final
defeat of the occupant, for "postliminium makes the invalidity of these
illegitimate acts apparent."
Even the passage from Halleck quoted on page 142 of the amicus
curiae's memorandum says that "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 the restrictions which that code
embodies." (Emphasis supplied.)

In this connection, a most important distinction should be constantly

kept in mind between the extent of control legally exercisable of
enemy property within the belligerent's own domain and that within
merely occupied territory: it is greater in the former than in the latter
case. And to the former case refer the quotations supposed to
support the proposition on page 142 of the memorandum of
the amicus curiae, as shown by the passage from Hyde
(Memorandum, p. 143) subheaded thus:
Control of enemy property within the national domain.
On the other hand, Oppenheim (p. 313), dealing with the military
occupant's control of enemy property in the occupied territory, says:
Private personal property which does not consist of war
materials or means of transport serviceable for military
operations may not as a rule be seized.
In his footnote to the above we read this categorical declaration of
principle:
Nor may the occupant liquidate the businesses of enemy
subjects in occupied territories, although he can control them,
and must certainly not sell their real estate (see above, section
140), even if the proceeds are to be handed over to them after
the war." (Emphasis supplied.)
Hyde declares (Vol. III, p. 1878):
Belligerent occupation, being "essentially provisional," does not
serve to transfer sovereignty over the territory controlled, . . . .
There has developed, accordingly, a body of law indicating the
scope of the rights of the occupant over the hostile territory
and limiting his freedom of action. The Hague Regulations of
1907 have exemplified it. It indicates the test of the propriety of
his conduct with respect to what is under his sway. While this
law is essentially international in character and origin, it is also
local, because it prevails in principle where the occupant his
control. (Emphasis supplied.)

In G.R. No. L-409, Laurel vs. Misa, promulgated July 16, 1947, 44
Off. Gaz., 1176, we also held that there was no transfer of
sovereignty in the Philippines during the Japanese occupation.
Hence, the Philippine areas occupied by Japan did not become a part
of her territory or domain, with the result that the rules governing the
power and authority of the Japanese occupation army in the
Philippines to control enemy property here during the occupation are
those which obtain under the Hague Regulations and International
Law for belligerent occupation of enemy territory during the course of
a war, and not the laws of Japan herself governing her control over
enemy property within her national domain.
The rights of a belligerent occupant as such, during the period
of control exercised over the hostile territory concerned are
measured by the circumstances that he is to be regarded as
a temporary possessor of what he controls rather than as a
conqueror bent on the acquisition of the occupied area . . . . (III
Hyde, p. 1879; emphasis supplied.)
The Hague Regulations of 1907 announce that private property
"must be respected"; that such property "cannot be
confiscated," also that "pillage is formally forbidden," an
injunction seemingly applicable to public as well as private
property, and possessed of wide implications . . . . (Ibid., p.
1894.)
And Mr. Hyde maintains the theory, which is clearly justified by the
Hague Regulations and the general principles of International Law,
that debts due to the inhabitants of the occupied district are not to be
distinguished from tangible property, and should also be immune from
confiscation, and he very soundly maintains that if a private debtors
owes a private creditor, both residing in that territory, no reason is
apparent why the occupant should have the power to cancel the debt.
He says:
It is believed that no distinction should be made between
tangible and intangible or incorporeal private property, such
as debts due to the inhabitants of the occupied district, with
respect to the duty of the belligerent to refrain from
confiscation . . . . If the debtor is a private individual residing in

that territory, and the creditor an inhabitant of the occupied

district, no reason is apparent why the occupant should be
entitled to cancel the debt. (Ibid., p. 1894, emphasis supplied.)
The alien banks involved here are not central or national banks but
are entirely private in character. As such, they enjoyed complete
immunity from being liquidated, were entitled to have their credits
respected, and not taken possession of or confiscated by the
Japanese occupant. Mr. Hyde says (Vol. III, p. 1898) that even in the
case of central or national banks, the right of the occupant to control
their operations or to administer them under its own auspices would
not necessarily be decisive of its right to treat as public property all of
the assets of the institution, embracing all deposits or securities held
by it, opining that those shown to be held in trust for, or to belong to,
private individuals, should be respected as private property, and their
treatment governed by the Hague Regulations applicable to such
property. As to private banks, their credits, funds, cash or securities
are of course private property, no less than the deposits or securities
held by them belonging to their depositors or held in trust for other
parties dealing with them.
To the same effect is the article by Mr. Colby referred to on pages
143-145 in the memorandum of the amicus curiae. This article is
entitled "Occupation under the Laws of War" (Vols. XXV and XXVI,
Columbia Law Review), and throughout the article the author
recognizes the limitations upon the powers of the occupant imposed
by the Hague Regulations and the laws of war, and makes the
following significant statement in the last paragraph:
It is not my purpose to plead for unlimited power to occupant
forces in all circumstances.
The same writer, as quoted on page 142 of the memorandum of
the amicus curiae, makes his opinion more categorical in the
following statement:
The only remaining method is to check the acts (of the
occupant) against the Hague Conventions" (in determining their
lawfulness or unlawfulness) (emphasis supplied).

Hall, an English writer on International Law, is one of the authorities

cited by the amicus curiae. Concerning the fiction of substituted
sovereignty as maintained by the older theories, and upon which the
powers of confiscation had of old been asserted, he makes certain
very categorical declarations which we shall quote below. Before
doing so, however, we refer to that statement by Magoon (cited
in amicus curiae's memorandum, p. 145) that "the right of
confiscation is a sovereign right." Now, Hall characterizes those older
theories as effete:
Looking at the history of opinion with reference to the legal
character of occupation, at the fact that the fundamental
principle of the continuing national character of an occupied
territory and its population is fully established, at the amount of
support which is already given to the doctrines which are
necessary to complete its application in detail, and to
the uselessness of the illogical oppressive fiction of substituted
sovereignty, the older theories may be unhesitatingly ranked as
effete and the rights of occupation may be placed upon the
broad foundation of simple military necessity.
155. 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 operation . . . . In its exercise (the authority of the
occupant) however this ultimate authority is governed by the
condition that the invader, only having a right to such control as
is necessary for his safety and the success of his operations,
must use his power within the limits denied by the fundamental
motion of occupation, and with due reference to its transient
character.
160. Though the fact of occupation imposes no duties upon the
inhabitants of occupied territory the invader himself is not left
equally free. As it is a consequence of his acts that the regular

government of the occupied 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,
over and above the limitations before stated, to alter or override
the existing laws as little as possible, whether he is acting in his
own or the general interest. As moreover his rights belong to
him only that he may bring his war to a successful issue, it is
his duty not to do acts which injure individuals, without
facilitating his operations, or putting a stress upon his
antagonist. Thus though he may make use of or destroy both
public and private property for any object connected with the
war, he must not commit wanton damage, and he is even
bound to protect public buildings, works of art, libraries, and
museums. (Hall, p. 498; emphasis supplied.)
Later on we will discuss the question of whether or not there was
military necessity for the Japanese occupation army to liquidate alien
banks under Administrative Ordinance No. 11. At this point, it is well
to quote that in the year 1942 Feilchenfeld, whom the amicus
curiae also cites, said. This writer said:
PAR. 12. The rules of belligerent occupation have been codified
in Section III of the Hague Regulations, respecting the Laws
and Customs of War on Land, entitled "On military Authority
over the Territory of the Hostile Estate," and comprising articles
42-56 of the Regulations.
PAR. 13. This body of law has survived all historical change
since 1914 . . . . (Emphasis supplied.)
xxx

xxx

xxx

PAR. 40. Section III of the Hague Regulations is the outcome of

developments extended over many centuries.
xxx

xxx

xxx

4. PAR. 41. During the nineteenth century earlier legal

developments became consolidated under the influence of

liberal ideas which restricted the traditional powers of

occupants by subjecting them to rules against the assumption
of full sovereignty and against undue interference with civilian
and property interests. (Emphasis supplied.)
xxx

xxx

xxx

PAR. 340. Since the powers of occupants are based on the

right to protect military interests and to promote law and
order, it would seem that an occupant may not interfere with
purely private relationships, and may not, for instance,
arbitrarily pass regulations under which the wealth of one
individuals is handed over to another. (Emphasis supplied.)
But the amicus curiae quotes (p. 149 of his memorandum) from the
United States Army and Navy Manual of Military Government and
Civil Affairs (FM-27-5 OPNAV 50-E-3) wherein, among other things, it
is stated that in the occupation of the territories therein mentioned for
a consideration period of time the civil affairs officers "will in most
cases be concerned with," among other matters, "closing, if
necessary, and guarding of banks, bank funds, etc.; liquidation,
reorganization, and reopening of banks at appropriate times . . .."
In the first place, to be concerned with the liquidation of banks is
certainly not tantamount to such officers making the liquidation
themselves or ordering it; and if we construe the passage in the light
of the prohibitions of the Hague Regulations already discussed, the
conclusion is inevitable that it can not possibly be interpreted as
authorizing the occupation officers to themselves make the liquidation
of purely private banks. In the second place, to be concerned with
such liquidation simply means that the officers in question have the
power and the duty to seeing to it that, where such a liquidation is
made as authorized by the laws governing the territory, under the
economic circumstances created by or concurring during the
occupation, it is done property, legally and honestly not that they
themselves may take the initiative to effect or order the liquidation.
What laws govern the occupied territory is, of course, determined
primarily by the Hague Regulations, and in a suppletory manner, in all
that has not been provided thereby, by "the principles of the law of
nations, as they result from the usages established among civilized

peoples, from the laws of humanity, and the dictates of the public
conscience" (Preamble, The Hague Regulations.)
The Field Manual cited by the amicus curiae and relied upon by him,
by its own terms, is subordinated to the Rules of Land Warfare
embodied in War Department Basic Field Manual (FM-27-10). The
manual invoked by the amicus curiae contains the following
provisions at the very beginning:
For restraints on the discretion of the theater commander in
dealing with persons and property in occupied territory, see War
Department Field Manual 27-10 (Rules of Land Warfare).
In turn, this Field Manuel 27-10 is subordinated to the Hague
Regulations which it quotes verbatim, article by article. The result is
that the language of the manual relied upon by the amicus
curiae must be deemed to be controlled and limited by the provisions
of Field Manual 27-10 and the Hague Regulations incorporated
therein.
Under article 53, paragraph 1, of the Hague Regulations, quoted in
paragraph 320 of the Field Manual 27-10 aforesaid, said manual
provides in paragraph 321:
321. Two classes of movable property. All movable property
belonging to the State directly susceptible of military use may
be taken possession of as booty and utilized for the benefit of
the invader's government. Other movable property,
not directly susceptible of military use, must be respected and
cannot be appropriated. (Emphasis supplied.)
The cash, funds, or realizable securities of the private alien banks
here were not "strictly the property of the state," nor "directly
susceptible of military use."
As a matter of fact, it is not pretended that the Japanese army ever
intended to use the military notes collected by the Bank of Taiwan
from the prewar debtors of these alien banks for military purposes. It
is asserted that the Taiwan Bank used them, or part of them, in
paying withdrawals allegedly made by the alien banks' depositors or
in the supposed payment of supposed obligations of the same banks.

Indeed, under the terms of article 53 of the Hague Regulations

permitting an army of occupation to take possession only of cash,
funds and realizable securities which are strictly the property of the
state, necessarily prohibits the taking possession of those which are
of private ownership even on the ground of military necessity. At this
juncture, it behooves us to remember that even military necessity is
powerless when confronted by the prohibitions of the modern laws
and customs of war, particularly those which have been codified in
the Hague Regulations of 1907. The Basic Field Manual on Rules of
Land Warfare, FM-27-10, above referred to, speaking of "military
necessity" provides:
23. Military necessity. Military necessity justifies a resort to
all the measures which are indispensable for securing this
objective (the submission of the enemy) and which are not
forbidden by the laws and customs of war. (Emphasis
supplied.)
Oppenheim says on page 268 of his work already cited above:
But to use the words of article 22 of the Hague Regulations
the belligerents have not an unlimited rightas to the means
they adopt for injuring the enemy. (Emphasis supplied.)
The very title and first paragraph of Administrative Ordinance No. 11,
moreover, conclusively show that it was not military necessity that
motivated the so-called liquidation of these alien banks, but solely the
fact that they were considered and called "banks of hostile countries."
For, if the Japanese feared (entirely without foundation) that the funds
and assets of banks might be used against them, or, as was argued
during the deliberation on this case, if they feared that the banks'
debtors, unless made to pay to the Bank of Taiwan under the
ordinance, might, through some secret arrangement (a very daring
act it would have been) with the representatives of the banks, pay the
amounts of their debts to the guerrillas or to the underground, why
were these alien banks singled out for liquidation to the exclusion of
the other banks existing in Manila? Besides, there would have been
no need of such liquidation. If this was the only purpose, the same
objective could have been attained by the Japanese Army sealing the
vaults and safes, closing the banks and placing them under guard,

with the simple but most effective expedient of a proclamation of the

Commander in Chief or even of an inferior officer, forbidding the
debtors under pain of death that was the vogue in those bloody
days to pay or deliver to the guerrillas, the underground, or to
anybody else, any amount on account of their debts to the said
banks.
In Williams vs. Bruffy, 96 U. S., 176; 24 Law. ed., 716, it was held that
payment of debts to a party without authority to demand the payment
is not valid. In that case the lack of authority arose from the unlawful
combination of the confederate states to rise against the union in
defiance of the constitution. In the case at bar the authority claimed
for the Bank of Taiwan to exact the payments is sought to be derived
from the Japanese occupation army, but that army, as we have seen,
was denied by the Hague Regulations the power to liquidate or order
the liquidation of private banks. Furthermore, if in the Bruffy case the
confederacy was held to be an unlawful combination leading to the
illegality or invalidity of the payment, in our case, the war of
aggression which was being waged by Japan and, of which the
Japanese occupation and the so-called liquidation of said alien banks
were mere incidents, was far more unlawful for being a crime against
humanity proscribed and penalized by modern international law. As
solemnly declared in the Briand-Kellog Pact, of which Japan herself
was a signatory, "unjustifiable war is a crime." The Geneva Protocol
of 1924 for the Pacific Settlement of International Disputes declared
that "a war of aggression constitutes and . . . international crime." So
did the Eighth Assembly of the League of Nations in 1927. The Sixth
Pan-American Conference of 1928 pronounced such a war "an
international crime against the human species." (Report of Justice
Jackson of the U. S. Supreme Court, as chief counsel for the U. S. in
the prosecution of "Axis war criminals," of June 7, 1945.)
In Williams vs. Bruffy, supra, we read the following passage which is
remarkably applicable by analogy to the case at bar:
But, debts not being tangible things subject to physical seizure
and removal, the debtors cannot claim release from liability to
their creditors by reason of the coerced payment of equivalent
sums to an unlawful combination. The debt can only be
satisfied when paid to the creditors to whom they are due, or to

others by direction of lawful authority. Any sum which the

unlawful combination may have compelled the debtors to pay to
its agents on account of debts to loyal citizens, cannot have any
effect upon their obligations; they remain subsisting and
unimpaired. . . . (24 Law. ed., 719.)
The contention that the so-called liquidation of said alien banks was
valid and legal runs counter to all of section III of the Hague
Regulations which, as held in the Co Kim Cham case, regulated and
controlled the powers of the Japanese occupation forces in the
Philippines. This part of the Regulations is entitled "On Military
Authority over the Territory of the Hostile State." Thus Feilchenfeld
says:
12. The rules on belligerent occupation have been codified in
Section III of the Hague Regulations respecting the Laws and
Customs of War on Land, entitled "On Military Authority over the
Territory of the Hostile State," and comprising articles 42-56 of
the Regulations.
According to Taylor (p.587) this section of the Hague Regulations
clearly defines the extent to which the invader may subject the
inhabitants of occupied territory and its resources to the necessities
of war. He says:
Since then, the whole subject has been regulated by Section III
of the Hague Second Convention "On Military Authority over
Hostile Territory," which clearly defines the extent to which the
invader may subject the inhabitants of the occupied territory
and its resources to the necessities of war.
Against the argument that because banking is a public function, it
may be regulated by the occupant, it is sufficient to answer that the
power of regulation can never be validly used to clothe what is really
confiscation or pillage. The subject of confiscation will be treated of
separately hereafter. We would only advert here and now to those
provisions of the Hague Regulations already quoted which deny to
the occupant such a power as to put a privately owned bank out of
business or to disturb and interfere with its legitimate contractual
relations with its customers. The alien banks here involved do not

even come within that class referred to by Mr. Hyde (Vol. III. 1898),
where the particular fiscal organization bears such a relationship to
the territorial sovereign as to justify the treatment of the bank as a
public enemy concern, and its assets as public enemy property. Mr.
Hyde's statement is as follows:
In the case of banks functioning in occupied territory the
question is likely to arise, whether the particular fiscal
organization bears such a relationship to the territorial
sovereign as to justify the treatment of it as a public enemy
concern, and its assets as public enemy property. A variety of
factors may call for due appraisal in each case that presents
itself. Thus, the institution may be strictly a private concern as
tested by the local law, conducting its affairs, however, chiefly
for the benefit and possibly under the direction of, the territorial
sovereign. Again, it may be wholly or for the most part owned
by that sovereign. The depositors may be both private
individuals and public agencies of the State within whose
domain it operates. (Emphasis supplied.)
And Mr. Feilchenfeld (International Economic Law of Belligerent
Occupation, pages 96-104), mentions under paragraph 357 both the
Bank of France in 1870 and 1871 and the Bank of Belgium from
1914-1918 as having been treated as private institutions (and
consequently protected under those provisions of the Hague
Regulations enjoining respect for private property).
This author says:
357. The treatment of central banks has been controversial.
State practice is not available on all types of central banks.
However, both the Bank of France in 1870 and 1871 and the
Bank of Belgium from 1914 to 1918 were treated as
private institutions. (Emphasis supplied.)
Even Germany, the senior partner of Japan in World War II, before
the Bank of Taiwan attempted the so-called liquidation here in
question, had, by previous acts, recognized the unlawfulness of such
a procedure. In his work, Feilchenfeld makes reference to the fact
that the seizure of the assets of the local branch of the Bank of

France in Rheims in 1870 was recognized as an error by the

Germans (par. 360); that upon the capture of Strasbourg by the
Germans on September 28, 1870, the German Governor General
having in mind the administration of Alsace-Lorraine, "appointed a
liquidator for the branch offices of the Bank of France and under
which all funds belonging to the French State and held by these
branches were to be confiscated."
Feilchenfeld adds:
It appears that the Germans implicitly recognized both the
general rules of law and the private-law character of the Bank
of France and of its branches. While changes were made in the
administration of the branch offices, there was no intention to
seize funds belonging to the bank. The decree extended only to
state funds. (Paragraph 361.)
And in paragraph 362 he says:
362. The course and the outcome of the negotiations have
been rightly regarded as a further confirmation of the
recognition of the rule that private bank funds may not be
seized by an occupant, and that institutions like the Bank of
France must be treated as private corporations. (Emphasis
supplied.)
2. Conceding arguendo that Administrative Ordinance No. 11 validly
authorized liquidation of alien banks under such hypothesis the
least that should be required of the liquidator was that in effecting the
liquidation, it must not alter, disturb, much less annul, the substantive
rights and obligations of the parties, the creditor banks and their prewar debtors.
This is the kind of liquidation with which the civil affairs officers
mentioned in the United States Army and Navy Manual of Military
Government and Civil Affairs (FM 27-5 OPNAV 50-E-3) "will in most
cases be concerned." In order that the liquidation might be made in
that manner, there should be no impairment of the obligation of the
preexisting contracts between the banks and their prewar debtors, for
among the laws of the Philippines which the Japanese occupant was
bound to respect, because he was not absolutely prevented from

doing so, was the provision in our constitution against the impairment
of the obligation of contracts; and this being a provision based upon
natural justice, equity, and reason, so much so that the Japanese
Government could not help approving its inclusion in the constitution
of the puppet Republic that it established here during the occupation
(Article VII, section 4 thereof), and considering that such impairment
would inevitably entail the obliteration of property rights (in the
present case to the tune of P34,311,330.14 in good Philippine
money), it was against "the principles of the law of nations, as they
result from the usages established among civilized peoples, . . . the
laws of humanity, and the dictates of the public conscience"
(Preamble, The Hague Regulations), to impair the obligation of said
contracts.
In a genuine bank liquidation the liquidator simply exercises in the
collection of the credits the rights of the creditor bank, and in the
payment of the debts simply fulfills the obligations of the same bank
to its depositors or creditors, under its existing contracts with the
other parties to the transactions involved. The liquidator does not
possess the power to in any manner change, alter or modify, much
less nullify, such rights or obligations. This is self-evident. So that if
under the existing contract the bank has the right to be paid in
genuine Philippine money because that was the money that it loaned
to its debtor, and because the law so directs, the liquidator has no
power to alter the bank's rights in this regard. The circumstance that
the liquidator is an agent of an occupation army does not matter.
Conversely, under such a contract the creditor bank or the liquidator,
would not have had the right to demand payment in any other
currency than the Philippine peso, the Japanese occupation
notwithstanding. When the debt was contracted in the case at bar, a
promissory note was executed and delivered by the debtor and there
the amount contracted for was stated to be in pesos.
In the case of Thorington vs. Smith, 8 Wall. (U. S.) 1, 11-12; 19 Law.
ed., 361, 364, the Supreme Court of the United States, inter alia,
held:
It is quite clear that a contract to pay dollars, made between
citizens of any State of the Union, while maintaining its
constitutional relations with the National Government, is a

contract to pay lawful money of the United States, and cannot

be modified or explained by parol evidence.
In the case at bar the contract between Haw Pia and the bank, like
the contracts between the other alien banks and their respective
prewar debtors, were to pay pesos, and were made while the country
was at peace under its legitimate government. And paraphrasing the
foregoing pronouncement of the Federal Supreme Court, those
contracts were clearly contracts to pay lawful money of the
Philippines. In the Thorington case, the contract between debtor and
creditor was made during the civil war and in a state which was in
rebellion against the union. That is why parol evidence was allowed
to prove what kind of dollars was meant by the contract, whether
lawful money of the union or dollars of the confederacy.
Our case is radically different, because the contracts having been
made during peace time, and they providing for the payment of pesos
there could be no doubt that genuine Philippine pesos were meant. At
that time nobody dreamed that there was going to be imposed upon
our people such a thing as the Japanese military notes, a war
currency without backing except the Japanese bayonet, quickly
depreciating and eventually becoming worthless.
7 Am. Jur. (page 524, section 727) has this to say regarding
the functions and powers of a liquidator:
. . . He has, upon taking charge of the bank (insolvent bank), all
the rights and equities in favor of the bankand for the benefit of
the depositors, creditors, and stockholders . . . .
If, therefore, those "rights and equities" require payment in a certain
currency, how can the liquidator have the power to alter them so as to
make them payable in a different and depreciated, and ultimately
worthless currency?
The Civil Code provides:
ART. 1753. One who receives a loan of money or any other
fungible thing acquires ownership thereof and is bound to return
to the creditor an equal amount of the same kind and quality.
(Emphasis supplied.)

ART. 1754. The obligations of persons who borrow money shall

be governed by the provisions of article 1170 of this code.
xxx

xxx

xxx

ART. 1170. Payment of debts of money shall be made in the

specie in silver or gold coin legally current in (the Philippines).
xxx

xxx

xxx

The "specie stipulated" spoken of in this article may be stipulated

expressly or impliedly; and in the absence of an express stipulation,
all reasons of natural justice and common sense tell us that the
parties must have intended the debtor to pay his creditor in the same
currency that he received from the latter: indeed, article 1753 of the
Code categorically so ordains. As against the above-quoted specific
provisions of our law, which have not been shown to have
counterparts in American law, the quotation from the Legal Tender
Cases on pages 84-86 of Mr. Recto's memorandum are unavailing.
In a very recent decision of the Supreme Court of Spain, that of
November 23, 1946, (Informacion Juridica, published in Madrid by the
Ministerio de Justicia, pagina 128), we read the following under the
title "Jurisprudencia del Tribunal Supreme":
Sentencia de 23 de noviembre de 1946. Clausula de oro y
depreciacion del dinero
Contra la sentencia de la Audiencia de Albacete, enfirmatoria
de la del Juzgado, declarando ineficaz la consignacion,
impagado el capital prestado y sus intereses, subsistente la
garantia hipotecaria y estimando procedente la reconvencion
formulada por los demandados para que se condenase al actor
al pago de dicho prestamo, se ha interpuesto el presente
recurso, cuyo primer motivo, amparado en el numero 1. del
articulo 1692 de la Ley de Enjuiciamiento Civil, denuncia la
infraccion de los articulos 1176 y 1180 del Codigo Civil y de la
doctrina sustentada en la sentencia de esta Sala, invocada en
dicho motivo, por entender que la consignacion se hizo con
observancia de todos los requisitos que la regulan, por lo que
debe surtir los efector del pago; pero la expresada alegacion no

puede prosperar, porque pactado el pago en la escritura de

prestamo en moneda corriente y legitima de oro o plata, y
siendo evidente la enorme depreciacion de aquella en que se
pago, no puede sostenerse que la consignacion, que en todo
caso, y conforme al articulo 1177 del Codigo Civil, habra de
ajustarse a las disposiciones reguladoras del pago, se realizo
conforme a las mismas condicion precisa para atribuirle
efecto liberatorio , ni que el acreedor se opusiera sin razon a
aceptarla, como dice el articulo 1176; y por ello, tal motivo debe
ser desestimado de acuero con la doctrina recientemente
sostenida por este Tribunal en sentencias de 4 de julio de 1944
y 12 de marzo y 26 de abril de 1946, pues en estas ultimas se
trataba de clausulas donde expresamente se consignaba que
el caso de hacerse el pago en papel se abonaria la diferencia
de valor entre este y las especies monetarias de oro o plata, y
no puede ponerse en duda que al pactarse, como en el caso
presente, que el pago se verificaria en moneda corriente de oro
o plata gruesa, fue la intencion de los contratantes que se
realizase en monedaequivalente a la recibida al celebrarse
el contrato de prestamo. (Informacion Juridica, publicada por el
Ministerio de Justicia, Comision de Legislacion Extranjera, en
Madrid, Nums. 50-51, julio-agosto 1947, p. 128 [Jurisprudencia
del Tribunal Supremo]; emphasis supplied.)
In our case the promise evidently was to pay in Philippine money,
because: (1) that was the money loaned; and (2) that was the lawful
money of the Philippines at the time Haw Pia contracted the
overdraft. (Thorington vs. Smith,supra.)
It appears from the above-quoted decision that it was concerned with
a loan secured by a mortgage contracted before the adoption of a
certain enormously inflated currency in Spain. It also appears
therefrom that (a) the "Audiencia de Albacete" declared the
consignation invalid, the principal loaned and its interest unpaid, the
mortgage security subsisting, and upheld the counterclaim of the
defendants (creditors) praying for judgment against the plaintiff
(debtor) for the payment of the loan; and (b) that the judgment of the
"Audiencia de Albacete" was sustained by the Supreme Court on two
grounds, namely, (1) that it having been stipulated in the document of
loan that the payment shall be in current gold or silver coin, and

(translating) "the enormous depreciation of that in which it was paid

being evident, it can not be maintained that the consignation, which in
any case, and pursuant to article 1177 of the Civil Code, must be in
accordance with the provisions regulating payment, was made in
accordance therewith an undispensable condition to give it
liberatory effect nor that the creditor refused without reason to
accept it, as article 1176 says, the contention of the appellants
(debtors) could not be upheld and should be overruled; and (2) that in
stipulating that the payment shall be made in current gold coin or
"plata gruesa," the intention of the contracting parties was that it shall
be realized "en moneda equivalente a la recibida al celebrarse el
contrato de prestamo," the textual words of the decision reading: ". . .
y no puede ponerse en duda que al pactarse, como en el caso
presente, que el pago se verificaria en moneda corriente de oro o
plata gruesa, fue la intencion de los contrantes que se realizase en
moneda equivalente a la recibida al celebrarse el contrato de
prestamo." (Emphasis supplied.) And how can it be seriously affirmed
that the Japanese military notes were a "moneda equivalente" to our
genuine currency?
Manresa, Volume 11, 4th edition, page 543, commenting on article
1753 of the Code, says:
Prestamos en dinero. Siempre se rigieron los pagos en
metalico por leyes especiales, en consideracion al distinto valor
de la moneda, siendo discutidisima entre los jurisconsultos la
cuestion que con relacion al contrato de prestamo podia
producir esa alteracion. Asi, mientras Cujas y Vinio opinaban
que el prestamista, al efectuar el contrato, en su mente tenia el
que a su termino se le devolviera una cantidad igual a la
prestada para no enriquecerse a costa del prestatario ni
empobrecerse por los riesgos del valor de la cosa prestada,
Doneau y Pothier, estimaban que esos riesgos debian siempre
ser de cuenta del acreedor. El Codigo resuelve la cuestion,
determinado que los prestamos de dinero se rijan por lo
dispuesto en el articulo 1.170; esto es, la restitucion se hara en
la especie pactada, y no siendo posible entregar la especie, en
la moneda de plata u oro que tenga curso legal en Espaa. En
el primer caso, por la Ley del Contrato, el acreedor debe recibir
la moneda especificamente determinada, monedas del mismo

valor, peso y ley que corrian al tiempo del contrato. En su

virtud, si se pacto la devolucion en moneda de oro, asi debera
hacerse, sin que quepa, como deciamos al comentar el citado
articulo, pagar en plata, aunque sea abonando la diferencia del
cambio, porque ello equivaldria a autorizar una variacion en la
especie pactada. . . . (Emphasis supplied).
The above-mentioned provisions of our municipal laws in force at the
time of the Japanese invasion were expressly continued in force by
the Commander in Chief of the Imperial Japanese Forces through his
proclamation dated January 3, 1942 (I. O. J. of the Japanese Military
Administration, 3rd ed., p. 2), in the following words:
(4) 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 in the specific matter of currency, the same Commander in Chief
issued another proclamation, dated January 10, 1942 (Ibid, p. 38)
from which we quote in part:
The currencies which shall be sanctioned by the authorities of
the Japanese Army to circulate in the Philippine Islands shall be
the Peso military notes which are issued by the Imperial
Japanese Government, and the Philippine Peso currency,
which is already in circulation.
On February 6, 1942, said Commander in Chief issued another
proclamation accompanied with an explanation (Ibid, pp. 43-44), from
which explanation the following partial quotation has been taken:
Currencies approved by the Commander in Chief of the
Imperial Japanese Forces at present are:
I. Peso Military notes issued by the Imperial Japanese
Government.
II. Philippine Peso currency.
xxx

xxx

xxx

In short no currency is allowed to circulate except Peso military

notes issued by the Imperial Japanese Government
and Philippine Peso Currency.
We have reviewed all succeeding volumes of the Official Journal of
the Japanese Military Administration, and have found no
proclamation, order, or decree of any kind subsequently banning the
use and circulation of the Philippine Peso currency which was already
in use here at the time of the invasion. Much less have we found any
proclamation, order or decree of any kind which, expressly or
impliedly, order, the payment of prewar debts or obligations
contracted in the currency of the Philippines, by means of the socalled Japanese "war notes" or "military notes." Among other
authorities which can be cited, Hall, International Law, 7th edition,
pages 498, 499, states the well-known and salutary rule that:
. . . He (invader) is therefore forbidden as a general rule to vary
or suspend laws affecting property and private personal
relations, or which regulate the mortal order of the community.
Among such rules affecting property and private personal relations
are the aforecited articles of the Civil Code. We have failed to find
any proclamation, order, or decree of any kind of the Japanese
military or civil authorities stationed in the Philippines during the war
which has attempted to vary or suspend said laws.
However, the above is not all: we fail to find either in Administrative
Ordinance No. 11 or in the numerous proclamations, orders, etc. of
the Japanese Commander in Chief and of the Japanese Military
Administration, published in the Official Journal of the said
Administration, that would even hint that they intended thereby to
impair the obligation of contracts already existing when the
occupation began. Indeed, as already stated, such impairment was
sternly forbidden in the constitution of the puppet Republic which was
approved by the Japanese Government. Even judging for a moment
the rights of appellant Haw Pia herein from the point of view of the
constitution of the puppet Republic, since she made the payments in
Japanese military notes during the occupation, she must, in all justice
and fairness, be held to respect the inhibition of that instrument
against the impairment of the obligation of contracts, and should,

therefore, not now be allowed to say that, because she paid

Japanese military notes to the Bank of Taiwan in pretended
satisfaction of her debt in genuine Philippine money to the China.
Banking Corporation, that payment was valid and that it entirely
discharged her.
The pertinent provisions of the Civil Code, as well as the pertinent
interpretative decisions of the Philippine and Spanish courts applying
or construing the same, which were in force at the time these pre-war
contracts of indebtedness were made by the alien banks and their
pre-war debtors became parts and parcel of those contracts.
Unless a contract otherwise provides, the law applicable thereto
at the time of its making, including the law of the place where it
is entered into, and the law of the place where it is to be
performed, as the case may be, is as much a part of the
contract as though it were expressed or referred to therein, for it
is presumed that the parties had such a law in contemplation
when the contract was made. So, when a statute prescribes a
duty and a contract is made involving performance of that duty,
such statute becomes a part of the contract; or, where the law
authorizes the regulation of service rendered the public, such
law becomes a part of and controls contracts providing for the
public service. Likewise, where a contract is made in
contemplation of state law, or of a particular statute, such law
forms a part of the contract, whether or not incorporated
therein, and the contract will be construed in the light thereof.
Similarly, the parties to a contract made with reference to the
laws of a jurisdiction other than that of the place of contracting
are deemed to have incorporated into the contract the law of
such jurisdiction. However, it has been held that a contract
cannot be construed with reference to a foreign law, unless the
intent of the parties to be governed by such law is evident from
the instrument itself without the aid of extrinsic evidence. (17 C.
J. S. Contracts, section 330, pp. 782-784).
The U. S. Supreme Court held in Northern Pacific Railway
Company vs. Wall., 241 U. S., 87; 60 Law. ed., 905, 907:

As this court often has held, the laws in force at the time and
place of the making of a contract, and which affect its validity,
performance, and enforcement, enter into and form a part of it,
as if they were expressly referred to or incorporated in its terms.
Von Hoffman vs. Quincy, 4 Wall., 535. 550; 18 Law. ed., 408,
409; Walker vs. Whitehead, 16 Wall., 314, 317; 21 Law. ed.,
357, 358; Edwards vs. Kearzey, 96 U. S., 595, 601; 24 Law.
ed., 793, 796.
Now, what was the obligation of the contract between the debtor and
the creditor in the instant case? It was constituted not only by what
they undertook and promised in their written agreement, particularly
as regards the currency in which the debt was to be paid, but also by
the applicable legal provisions existing at the time of the making of
said agreement, and at the place of the making thereof and where the
payment of the debt was to be performed. The particular legal
provisions so applicable have also been cited elsewhere in this
opinion.
The case of Walker vs. Whitehead, 16 Wall. (U. S.), 314, 317; 21
Law. ed., 357, 358, and the case therein cited afford instances of
impairment of the obligations of contracts applicable herein. Said the
court:
As this court often has held, the laws in force at the time and
place of the making of a contract, and which affect its validity,
performance, and enforcement, enter into and form a part of it,
as if they were expressly referred to or incorporated in its terms.
Von Hoffman vs. Quincy, Wall., 535, 550; 18 Law. ed., 408, 409;
Walker vs. Whitehead, 16 Wall., 314, 317; 21 Law. ed., 357,
358; Edwards vs. Kearzey, 96 U. S., 595, 601; 24 Law. ed.,
793, 796. (Northern Pacific Railroad Co. vs. Wall., 241 U. S.,
87; 60 Law. ed., 905, 907.)
It is also settled that the laws which subsist at the time and
place of the making of a contract, and where it is to be
performed, enter into and form a part of it, as if they were
expressly referred to or incorporated in its terms. This principle
embraces alike those which affect its validity, construction,
discharge, and enforcement. Illustrations of this proposition are

found, in the obligation of the debtor to pay interest after the

maturity of the debt, where the contract is silent; in the liability
of the drawer of a protested bill to pay exchange and damages,
and in the right of the drawer and indorser to require proof of
demand and notice. These are as much incidents and
conditions of the contract as if they rested upon the basis of a
distinct agreement. Greem vs. Biddle, 8 Wheat., 92;
Bronsen vs. Kinzie, 1 How., 319; McCracken vs. Hayward, 2
How., 612; People vs. Bon, 10 Cal., 570; Ogden vs. Saunders,
12 Wheat., 231. (Von Hoffman vs. Quincy, 4 Wall. [U. S.], 535,
550; 18 Law. ed., 408, 409.)
The laws which exist at the time and place of the making of a
contract, and where it is to be performed, enter into and form a
part of it. This embraces alike those which affect its validity,
construction, discharge and enforcement.
Nothing is more material to the obligation of a contract than the
means of its enforcement. The ideas of validity and remedy are
inseparable, and both are parts of the obligation which is
guaranteed by the Constitution against impairment;
The obligation of a contract "is the law which binds the parties
to perform their agreement";
Any impairment of the obligation of a contract, the degree of
impairment is immaterial, is within the prohibition of the
Constitution;
The states may change the remedy; provided no substantial
right secured by the contract is impaired. Whenever such a
result is produced by the act in question, to that extent it is void.
The states are no more permitted to impair the efficacy of a
contract in this way than to attack its vitality in any other
manner. Against all assaults coming from that quarter, whatever
guise they may assume, the contract is shielded by the
Constitution. It may be left with the same force and
effect, including the substantial means of enforcementwhich
existed when it was made. The guaranty of the Constitution
gives it protection to that extent. Von Hoffman vs. Quincy, 4

Wall., 535; 18 Law. ed., 403." (Walker vs. Whitehead, 16 Wall.,

314, 317; 21 Law. ed., 357, 358; emphasis supplied.)
Administrative Ordinance No. 11 will be vainly scanned for an order to
pay in Japanese war-notes debts payable in Philippine currency to
the banks therein mentioned under the prewar loans, overdrafts, etc.
granted by them to their prewar debtors. Such an order can not be
found in any of the seven paragraphs of said ordinance
(seememorandum of amicus curiae Recto, pages 10-11;
Memorandum of amici curiae DeWitt, Perkins and Ponce Enrile,
pages 2-3).
And this is perfectly understandable, because in his proclamation of
January 10, 1942 (I. O. J. Japanese Military Administration, 3rd
edition, page 38, and that of February 6, 1942, with its
explanation, Ibid., pages 43-44), said commander allowed the use of
both Japanese war notes and Philippine currency. Consequently, if
the debtors paid in military notes it was their voluntary choice.
Perhaps it will be affirmed in their defense that Japanese military
notes were the only ones in circulation at the time. But the deadline
set by Administrative Ordinance No. 11 for payments, that is, the due
date fixed thereby, was September 30, 1942, and according to the
Ballantyne Schedule (the reliability of which Mr. Recto seems not to
question page 33 of his printed counter-reply), in 1941-42, the
genuine Philippine currency was at par with the Japanese military
notes. And if we were to be guided, as we think we should be, by the
well known rule of economics that the cheaper money drives the
more valuable from circulation, during those two years when both
moneys were at par, they must have been considered equally
valuable by the public. And neither was to be expected to have been
driven by the other from circulation. And let it not be forgotten that
when the Japanese occupation of Manila commenced, there were
about P230,000,000, Philippine money, in circulation in the
Philippines, according to the 6th annual report of the High
Commissioner to the Philippines to the President and Congress of the
United States, covering the fiscal period July 1, 1941-June 30, 1942.
Said report says that only P7,474,000, or only 3.2 per cent of that
total was withdrawn from circulation.(Memorandum of amici
curiae DeWitt, Perkins and Ponce Enrile, page 64.) The trouble is that
these pre-war debtors did not pay on September 30, 1942, nor many

months thereafter, but only when the Japanese military notes became
practically worthless. And did they pay at those later dates in
Japanese military notes because they were told by the Japanese
military or civil authorities to pay in that specific currency? No. But
they perhaps will say that they did so because, again, the military
notes were the only ones to be had, and they were afraid that if they
did not pay, any of the following consequences might be fall them:
(1) That they might be punished with death (although
Administrative Ordinance No. 11 contains no such threat).
(2) That they might be tortured (neither did the ordinance
contain this threat).
(3) that their mortgaged properties securing their debts might
before closed upon (the ordinance did contain this sanction).
Not only by positive legal provisions but by the eternal principles of
natural justice and equity, in the absence of an express stipulation to
the contrary, a debtor has the obligation to repay his debt in the same
currency that he borrowed. This is right, just, and fair for both parties
the creditor will not be entitled to required payment in a more
valuable currency, while the debtor will not be allowed to pay in a less
valuable one. This certainly was the situation between Haw Pia and
the China Banking Corporation under their contract in question when
the Japanese came. Did the Japanese occupant, even under his
powers pursuant to international law, firstly as codified in the Hague
Regulations, and secondarily by the general usage of modern
civilized nations existing at the time of the adoption of said
Regulations, have the power to alter those substantive rights and
obligations of the parties? Most assuredly not. With all the present
and potential atomic strength of the United States, with all the great
army of Russia, with all the former powerful war machine of Japan or
of Germany, none of these nations in the realm of law and justice
could have pretended the right to wipe out such contractual rights and
obligations which might exist in territories which might happen to
have been occupied by their armies during the war. That by sheer
military force any of them could have physically forced the inhabitants
of such occupied territories to do acts in relation to their pre-existing
contracts, is admitted; but that is in the realm of physical force. This

Court, however, is called upon here to adjudicate questions in the

realm of law and justice we are here concerned not with the illnamed "right of force," but with the "force of right."
Under a separate heading entitled "Equities of the Case-Question of
Conscience" we shall discuss this aspect of the controversy.
The Legal Tender Cases cited on pages 84-87 of amicus
curiae Recto's memorandum are not in point, for two reasons: (1) The
American laws governing loans of money did not contain such
specific provisions as articles 1753, 1754, 11750 and allied articles of
the Civil Code; and (2) the American Congress had power to impair
the obligation of contracts. As to the first reason, on page 85 of said
memorandum, the following is quoted from the decision in the Legal
Tender Cases:
. . . But whether the obligation of the contract is thereby
weakened can be determined only after consideringwhat was
the contract obligation . . . (emphasis supplied.)
Unlike the American law there applied, the Philippine law on the
subject required the debtor under a loan of money "to return to the
creditor an equal amount of the same kind and quality" (article 1753,
Civil Code), and as expressed by Manresa (Vol. 11, 4th edition, page
543), in the quotation inserted on pages 36-37, supra.
En su virtud, se pacto la devolucion en moneda de oro, asi
debera hacerse, sin que quepa, como deciamos al comentar el
citado articulo, pagar en plata, aunque sea abonando la
deferencia del cambio, porque ello equivaldria a autorizar una
variacion en la especie pactada . . . (Emphasis supplied.)
By analogy, if the contract stipulates for Philippine currency, no
payment in Japanese military notes can legally be admitted, even
paying the difference in the exchange rate.
And as to the power of the American Congress to impair the
obligation of contracts,
. . . Such constitutional provisions (against impairment of
contractual obligations) are expressly directed at state action

and operate to prevent impairment of a contract obligation by a

state law; and they do not apply to or restrict congress or the
United States, which may pass laws directly or indirectly
impairing the obligation of contracts . . . (16 C.J.S., 69-695, and
cases cited in support.)
3. Alleged liquidation, if allowed to produce its effects, tantamount to
confiscation:
We must remember that said liquidation involved investments, by way
of loans, by the alien banks to their prewar debtors in the total
amount of P34,311.330.14 (printed memorandum of amici
curiae DeWitt, Perkins and Ponce Enrile, pages 4-5). This amount is
not disputed by any party herein. As a result of the so-called
liquidation, if it were allowed to produce its effects, all this huge sum
of money will be completely lost to said banks, excepting perhaps the
relatively small sums which may result to be represented by voluntary
withdrawals of their prewar depositors during the occupation. Such
withdrawals would be those which the depositors voluntarily made in
Japanese money, accepting the military notes at par with Philippine
currency. As of the date of Mr. DeWitt's letter to the Committee on
War Claims, Congress of the Philippines, dated September 5, 1946
(Memorandum of amici curiae DeWitt, Perkins and Ponce Enrile,
pages 22-23), the amount of those withdrawals was P1,927,841.22
for six of the seven banks, and his supplemental letter to the same
committee of September 6, 1946 (same memorandum pages 24-25),
added the figure for the China Banking Corporation, namely,
P2,082,424.83. In said two letters the amici curiae explained how
apparent withdrawals were found to be involuntary and how certain
sums had been reinstated in favor of the depositors for that reason.
The total of said voluntary withdrawals for the seven banks then
would be P4,010,366.05 and this amount deducted from the
P34,311,330.14 will leave a balance of P30,300,964.09, which should
be the amount of the net loss to the alien banks if the so-called
liquidation were to be held legal and valid. This last sum would be the
amount that said banks would be deprived of, and as to which their
rights as private creditors would be totally annulled and abrogated.
After the occupation ended, consequent upon the Japanese
unconditional surrender, no sum of money on account of the prewar
loans was delivered to these banks, either by the Bank of Taiwan or

the Japanese Imperial Forces, or the Japanese Military

Administration, which all disappeared from the scene in so far as the
unfinished pretended liquidation was concerned. If we are now to
declare that as a legal consequence of that so-called liquidation these
seven banks are no longer the creditors of their prewar debtors above
referred to, that they have completely lost their contractual right to
enforce payment of their prewar credits although they have not
received payment last least of the above balance of P30,300,964.09:
then, the inevitable result would be that the so-called liquidation
was confiscation pure and simple, and what is worse, this Court, by
so deciding, will have played the ignominious role of bringing about
the consummation of what the Japanese oppressor so unlawfully and
iniquitously commenced and was in process of executing when his
defeat overtook him. This Court in Peralta vs. Director of Prisons, 42
Off. Gaz., 198, 212, 213, quoted from Westlake International Law,
Part II, War, pages 97-98, the following passage:
. . . 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.
On page 194 of his memorandum, amicus curiae Recto submits the
proposition that sequestration is not confiscation and cites Hyde as
his authority. However, it will be seen that Hyde speaks of
sequestration within the belligerent's own national domain, and not
within enemy territory occupied by him in the course of the war. As
already pointed out elsewhere in this opinion, the Hague Regulations
do not deal with the powers of the belligerent within his own domain
in the matter of control of enemy property, so that Mr. Hyde's
treatment of the subject relied upon by the amicus curiae has nothing
to do with the different subject of the power of control of enemy
property in occupied territory.
Furthermore, even sequestration of cash, funds, and realizable
securities in occupied territory is prescribed by article 53 of the Hague
Regulations. The municipal laws of the Philippines which at the time
of the commencement of the Japanese occupation included, by virtue
of our constitution, the generally accepted principles of international
law, among them the same article 53 of the aforesaid Regulations,
unquestionably prohibited such taking possession of the cash, funds,

and realizable securities of the banks in question as was done under

Administrative Order No. 11. This particular provisions of the local
municipal law the Japanese Army was certainly not absolutely
prevented form respecting, as enjoined by article 43 of the
Regulations.
4. Japanese occupation army had no power to impair the obligation
of prewar contracts between the inhabitants of the Philippines
certainly it had no military necessity to do so.
As just reiterated, that army was bound by the Hague Regulations to
respect the municipal laws of these Islands unless absolutely
prevented. The principle of the inviolability of private contracts was
not only found by said army enshrined in the Philippine constitution,
but must have been already a part of the juridical ideology of the
Japanese government itself, since said government approved the
constitution of the puppet Republic which likewise embodied the
same principle. The Japanese army, therefore, should be deemed to
have brought that same principle when invading this country. But the
most important thing is that, being enjoined to respect that particular
provision of the local municipal law, because not absolutely
prevented, it was naturally prohibited from doing precisely the thing
that was forbidden by it. The substantive rights and obligations of the
alien banks which the Taiwan Bank attempted to liquidate and those
of their prewar debtors, we have sufficiently discussed above. We
have cited article 1753, 1754, first paragraph, and 1170 of the Civil
Code. We have quoted the judgment of the Supreme Court of Spain
of November 23, 1946. We have already quoted on pages 36-37 of
this opinion from the eminent Manresa under the heading "Prestamos
en dinero" (Vol. 11, 4th ed., 543). All the above legal provisions were
in force at the time and place of the making of the contracts by the
said banks and their prewar debtors. Those legal provisions,
therefore, became parts and parcel of the same contracts. And even
the proclamation of the Japanese Commander in Chief of January 3,
1942 (I.O.J. Japanese Military Adm., 3rd ed., pp. 1-2) expressly
guaranteed that "So far as the Military Administration permits, all the
laws now in force in the Commonwealth ... shall continue to be
effective for the time being as in the past." No order, proclamation, or
decree of that military administration, or the Commander in Chief, or
any other officer of the Japanese Army has been brought to our

attention, and none can be found in all the volumes of the Official
Journal of said Administration, that discontinued these particular
provisions of our civil law and constitution. Certainly, no military
reason or exigency could have required such a determination.
We have already quoted from Walker vs. Whitehead, supra (pp. 4243 of this opinion). But in this connection would repeat the following
passages therefrom upon the particular subject of impairment of
contractual obligations:
Nothing is more material to the obligation of a contract than the
means of its enforcement. The ideas of validity and remedy are
inseparable, and both are parts of the obligation which is
guaranteed by the constitution against impairment;
The obligation of a contract "is the law which binds the parties
to perform their agreement";
Any impairment of the obligation of a contract, the degree of
impairment is immaterial, is within the prohibition of the
constitution.
And if we force the creditor, who has loaned good Philippine money,
to receive in payment depreciated or worthless Japanese military
notes, are we not changing "the means of enforcement" of his
contract? What is the enforcement of a contract of loan if it is not the
collection of what has been loaned?
In Hepburn vs. Griswald, 8 Wall. (U.S.), 603; 19 Law. ed., 513, 521,
the United States Supreme Court held:
Now, it certainly needs no argument to prove that an Act,
compelling acceptance in satisfaction of anything other than the
stipulated payment, alters arbitrarily the terms of the contract
and impairs its obligations, and that the extent of impairment is
in the proportion of the inequality of the payment accepted
under the constraint of the law to the payment due under the
contract. Nor does it need argument to prove that the practical
operation of such an act is contrary to justice and equity . . .

Lastly, the impairment of the obligation of contracts involving, as it

does, property rights and obligations already contracted for, and
entailing as it must, damage and prejudice to the contracting parties,
is against the dictates of public conscience within the meaning of the
preamble to the Hague Regulations. The ordinary man in the street
will so say because he feels that what had been agreed upon
between honest men binds them in good faith and in conscience to its
fulfillment. True it is, that dishonest men abound in the world, but
when the preamble speaks of "the public conscience" it refers to
those who are honest, and who are presumed to constitute the
majority. A more wise rule of conduct can hardly be enunciated. This
court must not be the last uphold and enforce it.
5. Japanese military notes not legal tender. Hence, their receipt was
into compulsory, and any forced payment therewith was null and void.
In Juilliard vs. Greenman, 28, Law. ed. (U.S.), 204, 214, the United
States Supreme Court held:
It appears to us to follow, as a logical and necessary
consequence, that Congress has the power to issue the
obligations of the United States in such form, and to impress
upon them such qualities as currency for the purchase of
merchandise and the payment of debts, as accord with usage
of sovereign governments. The power, as incident to the power
of borrowing money and issuing bills or notes of the
governments for money borrowed, of impressing upon those
bills or notes the quality of being a legal tender for the payment
or private debts, was a power universally understood to belong
to sovereignty in Europe and America, at the time of the framing
and adoption of the Constitution of the United States. The
Governments of Europe, acting through the monarch or the
Legislature, according to the distribution of powers under their
respective constitutions, had and have as sovereign a power of
issuing paper money as of stamping coin. This power has been
distinctly recognized in an important modern case, ably argued
and fully considered in which Emperor of Austria, as King of
Hungary, obtained from the English Court of Chancery an
injunction against the issue in England,without his license, of
notes purporting to be public paper money of Hungary,

Austria vs. Day, 2 Giff., 628, and 3 de G.F. & J. 217 . . . .

(Emphasis supplied.)
Thus we see that both in Europe and America the power to impress
the character of legal tender upon bills or notes is universally
understood to belong to sovereignty.
In Laurel vs. Misa, supra, it has been definitely settled that there was
not transfer of sovereignty to the Empire of Japanese or to her
Imperial Forces over the areas of the Philippines occupied by them
during the late war. And this is in consonance with the enlightened
doctrine of modern international law. (See also 36 Am. Jur., 468.) And
this is as it should be. For the idea of legal tender is inseparable with
that of money, and money is a standard of value by which all other
values are measured. The adoption of such a standard, and the
provision of what may stand for it as legal tender, whether coin or
paper money, are aimed at that uniformity in the unit of value which is
demanded by all sound economy. In their very nature these things
require the characteristics of permanence and universality. Without
these they would only create confusion and chaos in the country's
business. To speak of legal tender not forall the Philippine but only for
specified and isolated parts thereof during the Japanese occupation,
is to incur in a contradiction in terms. The merely provisional
government established by an occupation commander during the
course of war should have nothing to do with establishing such
standards for the economy of the country, particularly when his
occupation is not extended over its entire territory, and his authority is
not effectively exercised over all its people, but is confined to certain
definite areas, more or less isolate, because of the geographical
conditions of the archipelago and because of the continued
resistance of the inhabitants of the major portion thereof. Currency or
money should not be confused with legal tender. There may be
currency or money in circulation, or allowed to circulate, which is not
legal tender, because the sovereign has not decreed that they be
received as such, in payment of public or private debts. Not even the
allied military currency which was used in Sicily was made legal
tender, presumably because the allies respected the principle that
only the sovereign can establish a legal tender, and acknowledged
that they were not the sovereign even while occupying Sicily. In a
case where the court is so sharply divided, before we decide to

declare the notorious Japanese military notes legal tender during the
occupation, we must warm ourselves of the far-reaching
consequences to be expected. To mention just one instance, there is
the Philippine National Bank fully 90 per cent of whose prewar
investments, according to reliable information, were paid with those
military notes during the occupation, and they total hundreds of
millions of pesos, according to that information. Besides, what shall
we say of the hundreds of millions of pesos in the same war notes
deposited with the same bank during the occupation? If we declare
these notes legal tender, what will happen to our national bank? And
what will happen to the economic life of this ravaged country? If this
bank were to lose 90 per cent of its pre-war investments, totalling
hundreds of millions of pesos, and to pay in good sound Philippine
money other hundreds of millions of pesos of deposits made in that
Japanese military currency, it will be instantly plunged into utter ruin
and bankruptcy and still leave an enormous amount of unpaid
obligations after its total destruction.
In this connection, the writer would propose that we take the
precautionary step of requiring definite information from the bank
itself. Under Rule 123, section 5, we have judicial notice, among
other matters, of those which "are capable of unquestionable
demonstration." The amount paid to the bank in Japanese military
notes during the Japanese occupation to satisfy prewar debts is
capable of unquestionable demonstration because it appears in the
books of the bank. Hence, we can take judicial notice thereof, and in
accordance with the same rule and section, we may receive evidence
upon the same subject when we shall find it necessary for our own
information, and we may resort for our aid to the books or documents
of the bank, in which connection it is believed that the court would be
satisfied with a mere certification from the proper bank official as to
the total of such payments. In this way, if we must declare those
military notes legal tender and thus bring about the complete ruin and
destruction of the chief local banking agency for the economic
rehabilitation of our people, the official depository of our government's
funds, and the majority of whose capital and assets belong to our
government, let us do it with full knowledge of the facts. If we must
expose ourselves to the grave danger of going down in history as the
authors of such of tremendous collapse in the economic life of our
people just as they were struggling to rise from their financial

prostration consequent upon the war; if we must face the accusing

fingers of posterity in this regard, let us not place ourselves in the
necessity of having to answer: "We did not know it was going to entail
that result."
Upon their very face those Japanese military notes could not possibly
be considered as legal tender. It is of general knowledge, and
therefore within judicial notice, that all that appeared in those notes
which might possibly be interpreted as a promise of the Japanese
government to pay the face value thereof in the currency therein
stated to the holder upon demand, or as a guarantee that the
equivalent amount has been deposited in the treasury of the
Japanese government in the same currency, were couched in the
following words and figures:
The Japanese Government-Ten Pesos" (or any other
denomination in pesos or centavos) (A sample of the 10-peso
military notes is annexed to the original of this opinion for ready
reference.
I take it that no member of this Court would for a moment consider as
legal tender, in the legitimate sense of the term the only sense we
should be interested in a paper money not bearing either: (a) a
certification by the government that there has been deposited in the
treasury the amount therein stated payable to the bearer on
demand in the money also therein stated; or (b) an absolute and
unconditional promise of the government to pay to the bearer on
demand the amount therein stated. Thus the majority opinion quotes
(p. 25) from the Japanese Commander in Chief's proclamations of
January 3 and February 1 (6), 1942, as follows:
. . . Naturally, as the Japanese were notes were issued as legal
tender for payment of all kinds at par with the Philippine peso,
by the Imperial Japanese Governments, which in its
proclamation of January 3, 1942, and February 1 (6), 1942,
"takes full responsibility for their usage having the correct
amount to back them up" . . . .
Now, it is apparent that, whether the words and figures thus printed
on those notes be interpreted as a promise of the Japanese

government to pay the stated amount to the holder on demand, or a

guarantee that said amount was in deposit in the treasury of Japan,
such promise was an absolutely hollow undertaking, impossible of
performanceand such guarantee equally futile and
meaningless, impossible of effectuation. The reason is the simple fact
that the Japanese government did not have pesos but yen, nor was
the peso currency in deposit in its treasury. It is, therefore, selfevident that when the Japanese government, as the Japanese
authorities in the Philippines would have us accept, promised or
guaranteed the payment to the bearer on demand of the amount
represented by those military notes in pesos, it promised or
guaranteed something which it could not fulfill, unless again we are to
abuse our imagination and say that what was meant was that the
promise or the guarantee was to be good only if and when the
Japanese government should confiscate, or succeed in confiscating,
the Philippine pesos, or if and whenthe Japanese government should
succeed in somehow obtaining such pesos to redeem or pay its war
notes. This should be more than the Filipino people can be made to
swallow. Let us not exact so much naivete from them.
In the very nature of things, the concept of legal tender implies good
faith besides legal authority, but when a whole people is made to
accept as legal tender a paper "currency" which is impossible of
redemption by the issuing government, let not this Highest Tribunal of
the land be the instrument for forcing them to submit to such a
regime. Even in the legal Tender Cases (12 Wall., 457; 20 Law. ed.,
287, 313), it was confessed by the Supreme Court of the United
States that it was not there intended to assert that Congress might
make anything which has no value money. Said the Court:
. . . nor do we assert that Congress may make anything which
has no value-money. What we do assert is that Congress has
power to enact that the government's promises to pay money
shall be for the time being equivalent in value to the
representative of value determined by the coinage acts or to
multiples thereof . . . (Emphasis supplied.)
But how can a government's promise to pay money, which is
impossible of fulfillment, have any value at all? Mark that the promise
was made in terms of Pesos or Centavos (depending on the

denomination), which money the Japanese government did and does

not have. It is at times said, more or less loosely, that those war notes
were intended to be redeemed in case Japan won the war. This is
preposterous. Or will it be pretended that since the Japanese
government did not posses the peso currency in which it thus
promised or guaranteed payment, the poor creditor who was forced
to accept war notes, at par with genuine Philippine currency, in
complete satisfaction of a prewar credit, would have to, even in case
Japan had won the war, ask that government for a settlement by
which the face value in pesos of his war notes might be reduce to
Japanese yen? In the first place, this is altogether beyond the terms
printed in the military notes themselves, and they did not contain
anything that would include such a supposition within their purview. In
the second place, a paper money whose redemption is thus made so
precarious, doubtful and conditional, is just the antithesis of legal
tender; for legal tender does not become so by the mere order of a
military occupant, however absolute and compelling that order may
be in the military sense. The term "legal" in the name "legal tender"
means just what it says, and legality is never predicated upon sheer
military or physical compulsion. Just imagine the injustice of it: the
pre-war creditor whom his pre-war debtor owed good Philippine
money, is made to accept Japanese war notes, at par with the
Philippine Peso, and is placed in the situation of not being able to
have said notes redeemed because the Japanese government does
not have the money which it therein promised or guaranteed to pay.
In practical illustration, let us consider the case of any present holder
of such war notes. If he went to Japan now and presented those
notes for redemption to the Japanese Government, what would he
find? No pesos but at most yen in the treasury of the Japanese
government. But the yen is not the money or currency the payment of
which is promised or guaranteed in the war notes that the he
presents. If he happens to be prewar creditor for, say P10,000, in
genuine Philippine money, and has been forced to receive the war
notes in the same face value and at par with his credit, if the war
notes were considered legal tender, he has already lost all right to
collect the original credit from his debtor. But the tragedy does not
end here; for he can not possibly collect the equivalent amount in
pesos from the Japanese government which, we are told, had the
necessary amount to back up the war notes. The Situation of such a
creditor could not have been a whit better had he gone to Japan

immediately upon receiving the war notes during the occupation, to

seek the redemption thereof, for the Japanese government
possessed no more pesos then than now.
Are we going to further strain the predicament of this unfortunate
creditor by holding that he can present and maintain a claim,
diplomatic, administrative, or judicial, against the Japanese
government upon its supposed promise or guarantee made in those
military notes? And in the same breath tell him that those notes were
legal tender?
At any rate, laws providing what shall be legal tender invariably make
an exception of specific contractual provisions to the contrary. Thus
section 1612 of our Revised Administrative Code, in providing that the
Philippine silver peso and half peso, and gold coins of the United
States, at the rate of one dollar for two pesos, shall be legal tender,
makes the following express exception:
unless otherwise specifically provided by contract.
Westerfield on Money, Credit, and Banking, page 15, has the
following to say on the point:
. . . A legal tender law ... does not prevent contracting parties,
unless specifically inhibited by law, from naming the specific
money in which payment is to be made . . . .
If the creditor in our example contracted with his debtor for the
payment of the debt in Philippine currency, he had under section
1612 of the Revised Administrative Code and the general doctrine of
legal tender, as stated by Mr. Westerfield, to cite just one writer on the
subject, the right to demand payment in that currency.
And yet, it is submitted that for the majority in this case there is no
dodging the question, there is not possibility of avoiding the grave
decision of the question whether those war notes were legal tender or
not. For if they were, then their receipt was compulsory, saving an
express contractual stipulation to the contrary (Rev. Adm. Code, sec.
1612; 40 C.J., p. 1490, sec. 2; Morris vs. Edwards, 1 Oh., 189, 204),
but if they were not, no prewar creditor would legitimately be
compellable to receive them in payment, any such payment forced by

the enemy's pressure and duress, would necessarily be null and void.
(Civil Code, arts. 1265, 1267, 1268.) If they were legal tender, the
hundreds of millions of pesos in Japanese military notes deposited
during the occupation in the Philippine National Bank, for instance,
would be valid and would now be payable in genuine money of this
country. Then will that bank, and others similarly situated, be hurled
into utter bankruptcy and ruin. In a case, which at best is doubtful, I
decline to be among the authors of such an economic catastrophe.
6. Allies, including the Commonwealth of the Philippines, through
their political departments reserved the right to assert nullity of illegal
acts of Axis occupant court bound to respect and enforce their
declarations.
On July 10-12, 1943, an International Law Conference was held in
London in which some of the most prominent international law jurists
of today with experience in two world wars participated. They issued
certain declarations and passed certain resolutions. Among their
declarations which are pertinent here, because what applies to the
Germans equally applies to the Japanese, were the following:
Nothing has been more devastating to the National economy of
occupied countries than this form of looting to which not even
the faintest allusion is made in the Regulations, it being a new
device entirely out of keeping with the assumptions of the basis
of that document. The inflationary measures serve at the time
the coordination of the monetary system of the occupied
country with that of Germany (already heavily inflated) and the
exploitation for the benefit of central Reich authorities of the
available resources of the occupied territories; they enter thus
into a system of policy and government which is on another
plane altogether than that of belligerent occupation. Under the
Hargue Convention IV, belligerents who transgress the
regulations have to pay damages; but the very subtlety of the
destruction, thus wrought is such as to defy ordinary attempt at
assessing damages, altogether apart from the fact that no
payment of money damages can repair the social and national
damage suffered. The bank notes themselves which were
carried to a third country during the occupation and are still
located in a third country at the end of the occupation are in

such a caseinvalid intrinsically or may be declared so as it was

beyond the powers of the occupant to create the inflation either
directly or by means of the occupant controlled bank of issue.
(Emphasis supplied.)
The vice of invalidity or nullity flows from an excess of powers
or usurpation of power by the occupant. The occupant has,
under international law, only a limited right of jurisdiction and
administration. He has no right to dispose of goods or services
acquired from the inhabitants for purposes other than the
maintenance of the necessary forces of occupation and the
welfare of the inhabitants, and he has no right to transfer titles
to property, rights or interests outside the country. This applies
in principles also to State property. Excess of power or
usurpation of power by the occupant may be expressed in the
acts of the occupant himself or of his agents or helpers or
abetters, whether these agents or helpers or abetters be
persons of his own nationality, nationals or inhabitants of the
occupied country or any other persons.
Among their resolutions were the following:
(ii) The occupant does not succeed, even provisionally, to the
status or rights of the sovereign whom he displaces. The
occupant has at most, under international law, only limited
rights of jurisdiction and administration; acts in excess of these
limited rights are null and void in law and are not entitled
recognition in the occupied country after its true sovereign is
restored.
(iii) The rights of the occupant do not include any right to
dispose of property, rights or interests for purposes other than
the maintenance of public order and safety in the occupied
territory. In particular the occupant is not international law
vested with any power to transfer a title which will be valid
outside that territory, to any proper, rights or interests which he
purports to acquired or create of dispose of; this applies
whether such property, rights, or interests are those of the State
or of private persons or bodies. This status of the occupant is

not changed by the fact that he annexes by unilateral action the

territory occupied by him.
(iv) The civil administration established in a country subject to
belligerent occupation has no status in international law. Any
rule of international law establishing the invalidity of transfers
of, or dealings with, property, rights or interests effected by the
occupant, applies also to similar transfer and dealings carried
out by any associated or agent of the occupant acting for him or
in his interests.
(vi) Without prejudice to the foregoing rules, rightful ownership
remains in the person who has been dispossessed of anything
by outright confiscation or by any device resulting from political
pressure by the occupant; the title of a party in a third country
derived from the occupant or from his associates or agents is
invalid. (Emphasis supplied.)
The full text of that inter-allied declaration with a prefixed statement of
the government of the United Kingdom follows:
London, January 5th, 1943
His Majesty's Government in the United Kingdom have today
joined with sixteen other Governments of the United Nations,
and with the French National Committee in making a formal
declaration of their determination to combat and defeat the
plundering by the enemy Powers of the territories which have
been over-run or brought under enemy control. The systematic
spoliation of occupied or controlled territory has followed
immediately upon each fresh aggression. This has taken every
sort of form, from open looting to the most cunningly
camouflaged financial penetration, and has extended to every
to every sort of property from work of art to stock of
commodities, from bullion and bank notes to stocks and shares
in business and financial undertakings. But the object is always
the same to seize everything of value that can be put to the
aggressor's profit and then to bring the whole economy of the
subjugated countries under control so that they must enslave to
enrich and strengthen their oppressors.

It has always been foreseen that when the tide of battle began
to turn against the Axis the campaign of plunder would be even
further extended and accelerated and that every effort would be
made to stow away the stolen property in neutral countries and
to persuade neutral citizens to act as fences or cloaks on behalf
of the thieves.
There is evidence that this is now happening, under the
pressure of events in Russia and North Africa, and that the
ruthless and complete methods of plunder begun in Central
Europe are now being extended on a vast and ever-increasing
scale in the occupied territories of Western Europe. (All this
language is applicable to the Japanese methods throughout the
Far Eastern Territories they occupied.)
His Majesty's Government agrees with the Allied Governments
and the French National Committee that it is important to leave
no doubt whatsoever of their resolution not to accept or tolerate
the misdeeds of their enemies in the field of property, however
these may be cloaked, just as they have recently emphasized
their determination to exact retribution from war criminals for
their outrages against persons in the occupied territories.
Accordingly they have made the following joint Declaration and
issued the appended explanatory memorandum on its meaning,
scope and application:
DECLARATION
The Governments of the Union of South Africa, the United
States of America, Australia, Belgium, Canada, China, the
Czechoslavak Republic, the United Kingdom of Great of Britain
and Northern Ireland, the Union of Soviet Socialist Republics,
Greece, India, Luxemburg, the Netherlands, New Zealand,
Norway, Poland, Yugoslavia and the French National
Committee,
Hereby issue a formal warning to all concerned, and in
particular to persons in neutral countries, that they intend to do
their utmost to defeat the methods of dispossession practiced
by the governments with which they are at war against the

countries and peoples who have been so want only assaulted

and dispoiled.
Accordingly the governments making this declaration and the
French National Committee reserve all their rights to declare
invalid any transfers of, or dealings with, property, rights and
interests of any description whatsoever, which are, or have
been situated in the territories which have come under the
occupation or control, direct or indirect, of the governments with
which they are at war or which belong or have belonged, to
persons including juridical persons residing in such territories.
This warning applies whether such transfers or dealings have
taken the form of open looting or plunder, or of transaction
apparently legal in form, even when they purport to be
voluntarily effected.
The governments making this declaration and the French
National Committee solemnly record their solidarity in this
matter.
Now, Martin Domke, in his work entitled "Trading with the Enemy in
World War II" says that "this warning was indorsed by the
Commonwealth of the Philippines, in order to strengthen further
Filipino resistance to Japanese occupation." In this connection, it has
been asserted for the debtors of the alien banks that the so-called
liquidation was impelled by the military necessity of weakening our
resistance to the invader. By the same token, the action of President
Quezon, as head of the Commonwealth Government, in endorsing
and joining the London Declaration, was impelled by the no less
pressing military necessity which to us should be of overpowering
force to further strengthen that resistance. Now at this sovereign
though young Republic is free, is its Highest Court going to give more
effect to the decree of our former oppressor than to that of our own
lawful Government to obey the former and disobey the latter?
In Philipps vs. Payne, 2 Otto (U.S.), 130; 23 Law. ed., 649, the
Supreme Court of the United States expressly acknowledged that "in
cases involving the action to the political departments of the
government the judiciary is bound by such action." (See
also Williams vs. Insurance Co., 13 Pet., 420; Garcia vs. Lee, 12 Pet.,

511; Kennel vs. Chambers, 14 How., 38; Foster vs. Neilson, 2 Pet.,
209; Nabod of Carnatio vs. East Ind. Co. Ves. Jr. 60; Lucer vs.
Barbon, 7 How., 1; R. I. vs. Mass., 12 Pet., 714.)
In accordance with the foregoing doctrine this Court is bound by the
determination of the political department of the Commonwealth
Government, through President Quezon and his exile cabinet, in
adhering to the London Declaration, and to enforce what was there
announced in respect to declaring invalid, among other things,
anydealings by the governments with the Allies were at war with
"property rights and interests of any description whatsoever which
are, or have been situated in the territories which have come under
the occupation or control,direct or indirect of said governments
or which belong or have belonged, to persons, including juridical
persons, residing in such territories." (Emphasis supplied.) This Court
is bound by the determination of said political department of our
government announcement in the same declaration that the warning
therein contained "applies whether such transfers or dealings have
taken the form of open looting or plunder, or of transactions
apparently legal in form, even when they purport to be voluntarily
effected."
There can be not doubt that the pretended liquidation of the above
mentioned alien banks under Administrative Ordinance No. 11 by the
Taiwan Bank, as an agency of the Japanese Army, or Military
Administration, comes squarely under the condemnation of the above
quoted London Declaration, and, therefore, the condemnation of the
political department of our own government then in exile in
Washington. Will this Court go against that declaration? Have we the
right to declare that President Quezon, as head of the political
department of our government, did not have the power to bind us in
this matter of the peculiar province of his department? Is the judiciary,
through its highest court, going to break one of the most fundamental
and best settled principles of republican government, and overthrow
and nullify this most solemn decision of another coordinate branch
upon a matter within its legitimate sphere? Shall we say that the
Japanese were right, and President Quezon was wrong? And be it
not forgotten that if this Court should so resolve, it would in effect be
taking such an unprecedented course in an effort to uphold the

validity of one of the most iniquitous acts of the worst despot that ever
swayed this innocent country.
7. The acts of the Japanese military and civil authorities in the issue
of their military notes, and the pretended liquidation of said alien
banks were of political complexion.
In Peralta vs. Director of Prisons, 42 Official Gazette, 198, 210-211,
this Court held that the crimes penalized by Act NO. 65 (of the
occupation regime), those penalized by Ordinance No. 7 (of the same
regime), and certain other offenses therein specified, "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
directed against the welfare, safety and security of the belligerent
occupant."
The reason and purpose which motivated the issue of those military
notes are declared by the Commander in Chief of the Imperial
Japanese Forces in this proclamation of January 3, 1942, supra,
thus:
The Imperial Japanese Army, in the occupied areas, will use the
ware-notes (military pass-money) endorsed and issued by the
Imperial Japanese Government. . . .
That reason and that purpose were public, par excellence, in
character, for the support, welfare and security of said army was
the public interest and concern of the Japanese Empire. The military
notes were not issued for the privatebenefit of the persons serving as
officers and men in that army.
The majority opinion in the same Peralta cause proceeds to declare
(p. 213):
We have already held in or recent decision in the case of Co
Kim Cham vs. Valdez Tan Keh, 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.
As a consequence, the punitive sentence imposed upon Peralta by
the occupation court was held to have "ceased to be good and
valid ipso facto upon the reoccupation of these Islands and the
restoration therein of the Commonwealth Government."
By the same token, that proclamation of January 3, 1942, of the
Japanese Commander in chief, Administrative Ordinance No. 11, and
the so-called liquidation attempted thereunder, being all of a political
complexion, even to a superior degree, did not remain good, but
automatically "fell through as of course," as stated by Hall:
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 ... 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 supplied.)
8. The pretended liquidation, not having been terminated, even
hypothetically supposing that it would have been otherwise valid, fell
short of being validly consummated, and become impossible of
consummation.
By its very nature, such a liquidation is not accomplished, does not
become a fact, until the end of the process is reached until the net
result is determined in the final balance, either in favor of or against
the banks. Before this net result, this final balance, could be reached,
it is plain that all the credits of the banks be fully paid to, and all their
obligations fully satisfied by, the liquidator. In regard to the payment of
those credits, the Civil Code provides;

ART. 1169. Unless the contract expressly authorizes it the

creditor cannot be compelled to accept partial performances of
the undertaking of which the obligation consists.
xxx

xxx

xxx

Without the consent of the alien banks here spoken of, therefore
and that consent was never given no partial payment, even in
genuine Philippine money, could be validly applied to them by the
pretended liquidator. Now, if those Japanese military notes were not
legal tender, no one seems to deny that said notes, at least from
January, 1943, to January, 1945, were increasingly lower in value
than the lawful money of the Philippines: it resulting that, computed
under the Ballantyne schedule, by January, 1945, the face value of
P34,311,330.14 of the military notes paid to the Taiwan Bank, was
only equivalent to P16,119,305.78 in Philippine currency. (Amici
curiae Dewitt, Perkins & Ponce Enrile's printed memorandum, page
5.) In other words, in terms of Philippine currency, less than half of
the total credits was paid, even giving the military notes the
Ballantyne schedule values in the respective years. This would be at
best a partial payment which the creditor banks would at any rate not
be compellable to receive, pursuant to article 1169 of the Civil Code,
for certainly there was no stipulation in their contracts authorizing the
debtors to pay in Japanese military notes, and for these to be
computed in terms of Philippine money under a schedule still
undevised, and even unforeseen, when said contracts were made.
But this is not all; in the instant case Haw Pia's own counsel in the
lower court stated at the hearing that his client twice demanded from
the Taiwan Bank the release of the mortgage, but the said bank
refused it in both instances (t.s.n. 5). On pages 7-8 of the same
transcript said counsel admitted that the Bank of Taiwan took
possession of the China Banking Corporation and became liquidator
without the consent of the latter bank, which was only forced by the
Japanese Military Forces. Nobody pretends now that the so-called
liquidation reached the net result, the final balance. And we all seem
to agree that the banks have not received any amount from the
"liquidator." Neither is it asserted that they were ever notified by it of
any debit balance against them.

An unfinished liquidation is no liquidation at all. Are we to take over

where the Japanese left off in the execution of Administrative
Ordinance No. 11? How are do it?
Being of a political complexion, that ordinance "fell though," came to
nothing, upon the cessation of the occupation. Indeed, we cannot for
a moment think of the Supreme Court of this Republic executing a
command of the Japanese occupant.
. . . The enemy's law depends on him for enforcement as well
as for enactment. The invaded states is not subject to the
indignity of being obliged to execute his commands. (Westlake
International Law, Part II, War, pp. 97-98, quoted in majority
opinion in Peralta vs. Director of Prisons, 42 Off. Gaz., 198,
212-213; emphasis supplied.)
Any attempt now to continue and finish that pretended liquidation will
meet these insuperable obstacles; (1) Administrative Ordinance No.
11 is no more; 92) at any rate this country "is not subject to the
indignity of being obliged to execute" it; (3) collection of the prewar
credits in question is forbidden by our moratorium law; and (4) we
cannot credit the debtors for their payments in military notes under
said ordinance without giving effect to and carrying out, even now
that we are free from enemy occupation and control, such political
acts of said enemy as the proclamation for the issue of the military
notes for use of the army "in the occupied areas," and the said
ordinance.
9. Consequences of occupant's illegal acts postliminium
10. SEC. 283. If the occupants has performed acts which,
according to International Law, he was not competent to
perform, postliminium makes the invalidity of these illegitimate
acts apparent. Therefore, if the occupant has sold immovable
State property, such property may afterwards be claimed from
the purchaser, whoever he is, without compensation. If he has
appointed individuals to offices for terms outlasting the
occupation, they may afterwards be dismissed. If he has
appropriated and sold such private or public property as may
not legitimately be appropriated by a military occupant, it may

afterwards be claimed from the purchaser without payment of

compensation. (II Oppenheim International Law, 6th Rev. ed., p.
483; emphasis supplied.)
If the Japanese occupant, therefore, had no power to liquidate the
alien banks under consideration, postliminium would make the
invalidity of that act "apparent." Paraphrasing the above quotation, if
said occupant was without legal authority to liquidate said "enemy
banks,' or has illegally collected or received payments is military
notes of prewar loans in genuine Philippine money, such payments
can be declared null and void at the instance of the legitimate
creditors, "without payment of compensation" which, in this case,
means "without crediting any amount" to the payors of the military
notes.
The most important principle of law incident to belligerent
occupation one that was not established until the last century
is that occupation does not displace or transfer
sovereignty ... The occupant's right and duty of administering
the occupied territory are governed by international law. . . .
In so far as the occupant acts within the scope of the
authority permitted to him by international law, it is customary
for the legitimate government, if and when it reacquires
possession of the territory, to recognize his measures and give
effect to rights acquired thereunder. If the occupant acts
unlawfully, his measures will not receive that recognition.
(McNair p. 320; emphasis supplied.)
The right of "postlimini," says Vattel, is that in virtue of which
persons and things taken by the enemy arerestrored to their
former states on coming actually into the power of the nation to
which they belong. (Leitensdorfer vs. Webb, I N. 34, 44.)
The Civil Code provides:
ART. 1162. Payment must be made to the persons in whose
favor the obligation has been constituted, or to another
authorized to receive it in this name.

If the Taiwan Bank was not authorized to receive the payment in the
name of the alien banks, it was void, and it would have been void
even if payment had been made with Philippine money.
But in behalf of Haw Pia article 1164 of the Civil Code is invoked. It
stipulates:
ART. 1164. A payment made in good faith to the person in
possession of the credit shall release the debtor.
At the same time, also in her behalf, the following is quoted (amicus
curiae's memorandum page 60) from the pertinent commentaries of
Manresa:
Partiendo de esas bases y de que la buena fe se presume
siempre, seran obstaculos que impediran tal prresuncion los
que demuestran el conomcimiento por el deudor de los vicious
de la posesion, y aun cuando su buena fe no pueda
contradeirse, no hara eficaz el pago si falta tal posesion
verdad, V. gr., si ha cometido la ligereza de pagar a quien solo
ostenta el documento de un credito, cuya transmision necesita,
cuando menos, el endoso u otro requisito cuya existencia no
conste. (8 Manresa, Codigo Civil, pp. 274-275.)
It is not hard to demonstrate that the pretended validity of the
payment made by Haw Pia to the Taiwan Bank cannot be founded
upon either the article or the commentary. Both require good faith on
the part of the debtor, and the commentary adds that the payment will
not be valid if the debtor "ha cometido la ligereza de pagar a quien
solo ostenta el documento de un credito, cuya transmision necesita,
cuando menos, el endoso u otro requisito cuya existencia no conste."
We all know that no indorsement or other form of assignment of the
credits in question is asserted to have been made to the Taiwan
Bank.
Were the payments made in good faith? Most assuredly not. Not
alone by the precepts of positive law, but by the most rudimentary
principles of natural justice ingrained in the good conscience of man,
it is not good faith, it is notfair, it is not right, for a debtor, who before
the war solicited and received a loan in good, sound Philippine
Pesos, to pay it with the depreciated and ultimately worthless war

notes or "military pass-money" of the Japanese occupant. If the

Japanese army of occupation had not meddled at all with the
contractual relations between Haw Pia and the China Banking
Corporation, created before the war when the former applied for and
obtained the loan or overdraft from the latter, there could be no
question that it would have been against conscience for the debtor to
pay or to offer payment with the Japanese "military pass-money,"
unless, of course, the creditor voluntarily agreed to that medium of
payment. Now, supposing the Japanese army had ordered Haw Pia
to pay that debt with those war notes: would that order have changed
the question of conscience, let alone for the moment the legal
situation, as between debtor and creditor and creditor? Could such an
order have made right what was essentially wrong? just, what was
essentially unjust? fair, what was essentially unfair? As between
debtor and creditor, the former's conduct would only have been
in good faith, if she had persisted in her determination to pay her
creditor (at least after the end of the occupation) in the same currency
that she had borrowed from it when she was in need, regardless of
the illegal and unjust interference of the meddlesome invader if
she had treated the interference as a matter exclusively between her
and the latter, not affecting her innocent creditor whose responsible
officials were in the concentration camp, absolutely deprived of any
say in the matter.
But what is Haw Pia's attitude here? Planted upon the ground that
pursuant to Administrative Ordinance No. 11 she has paid to the
Taiwan Bank, during the occupation, an amount in Japanese "military
pass-money" equal to her prewar indebtedness to the China Banking
Corporation in genuine Philippine currency, she contends that she
now owes her said creditor exactly nothing. In other words, she would
profit by the illegal and unauthorized acts of the Japanese occupant
under the pretended liquidation. If she had done without Japanese
intervention what she did with or under it, to say the least she would
have committed a fraudulent act. We take it that if it had only been
possible for the creditor, if informed of what was going on outside the
camp, to ask her why she was making payment in those war notes,
she would have replied that the she realized it was not the right thing
to do but that she was acting under Japanese pressure. But if now
that the pressure has ceased she should assert the legality of the act,

and contend that she has been discharge thereby, she becomes a
"particeps criminis."
It would aid in solving the problem now confronting us, to pose this
question: If the situation were reversed, and the instant debtors were
the creditors and the present creditors the debtors, how would the
former like it if the latter were to claim discharge under identical
circumstances?
One who assists another in any manner in carrying out a
fraudulent purpose is a "particeps criminis." It is utterly
immaterial what means he resorts to. If he invokes and adopts
them, to aid in the perpetration of a fraud, he forfeits thereby
the countenance of the law, and is a joint tort feasor.
(Alberger vs. White, 23 S. W., 92, 96; 117 Mo., 347; emphasis
supplied; 6 Words and Phrases, First Series, p. 5185.)
But more than this, the law rightly extends still a wider protection over
the innocent creditor. As held by this Court, through Chief Justice
Arellano, in Panganiban vs. Cuevas, 7 Phil., 477, 485:
The payment made by Panganiban to the revolutionary
government of the 1,300 pesos which he should have paid to
Francisco Gonzalez in order to redeem the property, could not
have extinguished the obligation incurred by him in favor of the
latter. The Supreme Court of Spain, in a judgment rendered on
the 28th of February, 1896, said: "The payment of the debt in
order to extinguish the obligation must be made to the person
or persons in whose favor in was incurred or to his or their duly
authorized agent. It follows, therefore, that the payment made
to a third person, even through error and in good faith, shall not
release the debtor of the obligation to pay and will not deprive
the creditor of his right to demand payment. It is becomes
impossible to recover what was unduly paid, any loss resulting
therefrom shall be borne by the deceived debtor, who is the
only one responsible for his own acts unless there is a
stipulation to the contrary or unless the creditor himself is
responsible for the wrongful payment."
10. Equities of the Case Question of Conscience.

Under No. 2 above we have adverted to the possibility of the debtors

saying that, if they did not pay even only in Japanese military notes,
any of the following consequences might befall them:
(1) That they might be punished with death (although
Administrative Ordinance No. 11 contains no such threat).
(2) That they might be tortured (neither did the ordinance
contain this threat).
(3) That their mortgaged properties securing their debts might
be foreclosed upon (the ordinance did contain this sanction).
Suppose these debtors, or any of them, acted as they did, because
they were afraid to be killed or tortured or to lose their mortgaged
properties in an auction sale, if they did not. will the "equities of the
case" "the question of conscience" argue in their favor and
against the creditors? that is, that we should hold them discharged
from their aggregate obligations amounting to P34,311,330.14, and
condemn the innocent creditors to the total of their legitimate
investments? If the debtors, or any of them, made payment with the
"military pass-money" because they verily believed the Japanese
would kill them if they did not and not because they wanted to
practice a fraud upon their creditors by taking advantage of that
opportunity to wipe out their obligations with cheap and ultimately
worthless money ; in that case they made the payment for
the exclusive purpose of saving their lives or limbs. They saved both.
Does equity still demand that the just rights of the innocent creditors
be also annihilated although this consequence could into have been
intended by the debtors (who in the present hypothesis are supposed
to have acted in good faith)? If, again, they made payment with those
war notes, not to thus defraud their creditors but simply because they
feared that their mortgaged properties might be auctioned off, we see
that they save those properties. Does good conscience counsel that
we confer upon them the special bounty of complete liberation from
their just debts, altogether beyond their intention? And yet if we are,
lastly, to assume that when they made those payments they intended
to avail themselves of Administrative Ordinance No. 11 inorder to pay
with a different, inflated and ultimately valueless currency what they
owed their creditors in second money of this country, then they acted

fraudulently, illegally and inequitably: and this Court is not here to aid
them.
Granting that neither party is to be blamed for the acts of the
Japanese, the fact remains that it was the debtors who were illegally
ordered to pay, they were the victims of the illegal order, and while
they thereby acquired the right to lay a claim against the guilty party,
they certainly are not authorized to visit the consequences upon the
innocent creditors. So far as these were concerned, their
responsibilities officials were in the concentration camp, and under
the law so long as they were not legally paid, and their rights have not
prescribed, they would always preserve their credits.
During the deliberation the following example was given: During the
occupation the Japanese took away one of the two telephone
apparatus which a Filipino had in his house, rented from the
Telephone Co. It was pointed out that the one who suffered the
damage was the Filipino, for having been deprived of the use of the
apparatus, and not the company. In the first place, while the Filipino
was prejudiced in that way, the company was also prejudiced by
being thus deprived of its property. In the second place, the
apparatus was a material thing capable of physical appropriation and
removal, whereby the Filipino was effectively deprived of its use.
Whereas in the case of the debts here in question, they are intangible
things, incorporeal rights, incapable of physically being taken
possession of andwrested from the creditors. All that the Japanese
and the debtors did with respect to them were absolutely vain and
futile to take away those incorporeal rights from the creditors. Thus in
Williams vs. Bruffy, 96 U.S., 176; 24 law. ed., 716, it was said:
. . . Parties in the insurrectionary territory, having property in
their possession as trustees or bailees of loyal citizens, may in
some instances have had such property taken from them by
force; and in that event they may, perhaps, be released from
liability. Their release will depend upon the same principles
which control in ordinary cases of violence by an unlawful
combination too powerful to be successfully resisted.
But, debts not being tangible things subject to physical seizure
and removal, the debtors cannot claim release from liability to

their creditors by reason of the coerced payment of equivalent

sums to an unlawful combination. The debts can only be
satisfied when paid to the creditors to whom they are due, or to
others by direction of lawful authority. Any sum which the
unlawful combination may have compelled the debtors to pay to
its agents on account of debts to loyal citizens, cannot have any
effect upon their obligations; they remain subsisting and
unimpaired. . . . (Emphasis supplied.)
The Japanese could not only do the physical acts performed by them
in pursuance of the so-called liquidation but could even burn or
otherwise destroy the instruments of the credits due the banks; but
without valid payment to the creditors or to another authorized to
receive it, they were legally powerless to extinguish the incorporeal,
theintangible rights of said creditors. The promissory notes, the
mortgage indentures, etc., were but the titles to the rights themselves.
The former were in the physical power of the enemy to destroy, the
latter were not.
If payment in war notes had bee offered to said banks and they had
refused it, even though the debtors should have judicially consigned
the said notes, the consignation would have been null and void as
against the banks, for the reason that without their voluntary consent
to receive payment in such different currency thus effecting a
novation of the contract in this regard they could not be compelled
to receive such payment. In the cases under consideration the banks
have not given such a consent.
Of course, it is perfectly possible that, for varied reasons and
purposes of their own, certain creditors voluntarily received or even
demanded payment of prewar debts with Japanese military notes. In
such cases there can be no question of the validity of the payment.
And this being so, there can be no occasion for another payment, or
the debtor being obliged to pay again. But such is not the case of the
banks involved in this discussion.
Again, there can be no dispute that contracts voluntarily entered into
during the occupation in terms of the war notes were valid and, during
the occupation, would have been dischargeable in that money;
although thereafter they were dischargeable, if at all, only to the

extent of their just obligation and value in terms of Philippine

currency. (Presidential Executive Order No. 25.)
10-a. The alleged need of upsetting sales of properties in order to
raise military notes for payment of prewar debts, if such payments
were declared invalid.
It has been suggested during the deliberation that if payments with
military notes of prewar debts were to be declared invalid, there
would be need of also invalidating sales of properties which might
have been made by the debtors in order to raise military notes for
effecting such payments, and in case of subsequent transfers of the
same properties there would also be need of cancelling these. There
is absolutely no ground for this point for the simple reason that any
such sales or transfers of property were voluntarily made, as the
Japanese never ordered anybody to sell his property in order to pay
his prewar debts, or any debts of his for that matter. The truth of the
matter is that if such sales were made for effecting such payments, it
must have been because the seller considered that it was worthwhile
to make the sale and raise the requisite amount of military notes to
pay his prewar debts. It might have been due to a desire to save
mortgaged properties securing the prewar debts, which were
considered more valuable than the properties sold in order to redeem
them. The sale might have been effected because when the war
notes were already much depreciated until they bordered on
complete worthlessness, any small item of real or personal property
would bring in thousands of pesos in military notes sought to wipe out
the face value of prewar obligation in sound Philippine money. It is
believed to be of common knowledge, and therefore within judicial
notice, that during 1944 a suit or a dress could sell for as much as
P4,000 in war notes; a chicken would sell for thousands of pesos in
war notes, and any small items of property would bring in ridiculously
fabulous prices.
11. View and attitude of legislative and executive branches of
Philippine Government after liberation.
The provision of section 1 of Commonwealth Act No. 727 (which,
however, never become law due to the veto of President Truman) that
payments in Japanese military notes, war notes or military pass-

money, as they have been variously called, of prewar debts "shall be

considered valid," evidently shows that the Philippine Congress did
not consider such payments already valid under the laws existing at
the time of the enactment. It was precisely for this reason that the
passage of that validating enactment was attempted. The legislature
never passes laws enjoining the people "to consider
valid" already valid transactions pursuant to already existing
legislation.
Thereafter, the executive branch of the government which, as is well
known, controls the Board of Directors of the Philippine National
Bank, withdrew the appeal of said bank in civil case No. 71200,
Manila Court of First Instance,Milne vs. Philippine National Bank,
wherein the trial court had rendered judgment compelling the bank to
pay to plaintiff Milne the amount of the latter's prewar deposit, despite
the seizure of said deposit by the Japanese Military Administration
during the occupation. That was a clear recognition by the executive
department of the invalidity of such seizures of alien enemies' credits.
As a consequence, there seems to be no dispute that the Philippine
National Bank has paid all of its American and British depositors
notwithstanding the seizure of their deposits by the Japanese Military
Administration.
12. The alleged ratification:
Amicus curiae Recto on page 15 of his printed memorandum states
as follows:
Lastly, it need be stated that during the occupation all the
'creditor' banks including the China Bank allowed, under
authority given by the Japanese Military Administration,
withdrawals by their depositors up to certain limits. The
amounts of such withdrawals stand now credited in favor of
said banks in their books and have been considered, especially
by the said banks, as valid to the full extent of the amounts
represented on the face of the Japanese war notes withdrawn.
At least, no indication has yet been shown that the said banks
would adopt any other attitude towards said withdrawals. In
fact, speaking for his clients, Judge DeWitt is reported to have
so stated in the course of the congressional hearings in the

Philippine Congress on H.G. No. 437, commonly known as the

Fiat Money Bill, and further admitted that said withdrawals were
paid out of the collections made as aforesaid.
No evidence of record exists to support the fact above stated, but in
the records of the official proceedings of the Committee on War
Claims of the Philippine Congress, two letters, one dated September
5, 1946, and the other September 6, 1946, appear and from
them amici curiae DeWitt, Perkins and Ponce Enrile have quoted
excerpts on pages 22-25 of their printed memorandum. Both letters
appear to have been written by Atty. C.A. DeWitt of the same firm.
The excerpt from the letter of September 5, 1946, is as follows:
During the hearings, a great deal was said as to withdrawals
from the Bank of Taiwan by depositors or creditors of the
foreign banks. We have secured the figures on those
withdrawals, with the exception of those corresponding to the
China Banking Corporation, which we have not bee able to
secure as yet. We shall send them on to the Committee as
soon as they are available, as we understand that they are of
considerable importance since they represent some millions of
pesos which were forcibly debited to Chinese depositors and
credited to Chinese associations, through which credits the
Bank of Taiwan made forcible levies upon Chinese depositors.
As to the other six banks, the total withdrawals aggregated
P3,514,254.22. Of this amount, the six banks have recredited
their former creditors the amount of P1,586, 313 because it was
found that the withdrawals thereof were not voluntary on their
part. The question is still under examination as to the remaining
withdrawals. Undoubtedly, the figure of P1,586,313 will be
increased, but, as it stands today, the net withdrawals (gross
withdrawals less reinstatements) is P1,927,941.22.
Of course, where the withdrawal is voluntary, then no court will
permit the withdrawing creditor to collect the same amount
again. The case is one of a creditor receiving from a third party
a payment on account or in satisfaction of a debt and being
thereby precluded in respect thereto from afterwards suing the
debtor.

In Fletcher Moulton L. J. in Hinachand Punamoband vs.

Temple, 1911, 2 K.B., 330, the Court said:
"The way in which this is worked out in law may be that it
would be an abuse of the process of the Court to allow
the creditor under such circumstances to sue, or it may
be, and I prefer that view, that there is an extinction of the
debt."
Abbot C.W., in Welby vs. Drake, 1825 I.G. & P. 557, said that it
would be a fraud, if after accepting payment from a third party a
creditor could sue the debtor for the debt.
It is our view that such payments by the Bank of Taiwan should
be regarded as payments by a negotiorum gestor under the
provisions of article 1888 and 1901 of the Civil Code, and in
closing accounts between the Bank of Taiwan and any foreign
banks for whose accounts such payments were made, the
Bank of Taiwan would receive credit for such payments, without
in any way becoming a recognized agent of the foreign bank for
whose account the payment was made. In a remote case that
such payments should exceed the indebtedness resulting from
the settlement of accounts, such excess would to the Alien
property Custodian as an enemy asset.
The excerpt from that of September 6, 1946, reads;
TO THE COMMITTEE ON WAR CLAIMS,
Congress of the Philippines
Manila
H.B.No. 437
(Fiat Money Bill)
Gentlemen:
In Part III of my letter to you of yesterday, I discussed the
question of the status of withdrawals from the Bank of Taiwan
by depositors or creditors of the foreign banks, and stated that
we had then secured the figures on those withdrawals, with the
exception of those corresponding to the China Banking

Corporation which we had not been able to secure as yet and

promised to sent them on the Committee as soon as they are
available. We have now received them. The total withdrawals
from the Bank of Taiwan, corresponding to the China Banking
Corporation, were P5,354, 312.48. Of this amount
P3,271,887.65 had been reinstated up to July 31, 1946, leaving
a net balance of withdrawals of P2,082,424.83.
With these figures in hand, we may now give the total figures
on withdrawals for all seven foreign banks. The total
withdrawals aggregated P8,868, 566.70. Of this amount, the
foreign banks have recredited to their former creditors a total of
P4,858,200.65, because it was found that the withdrawals
thereof were not voluntary on their part. The question is still
under examination as to the remaining withdrawals.
Undoubtedly, the figure of P4,858,200.65 will be increased, but,
as it stands today, the net withdrawals (gross withdrawals less
reinstatements) are P4,010,366.05.
The second paragraph, Part III, of my letter of yesterday should
be amended to read accordingly.
It now appears that Atty. Recto was referring to the facts contained in
the above quoted excerpts. From these facts it results that the books
of the Taiwan Bank point to payments for account of these seven
alien banks totaling P8,868,566.70, said to have been made to
depositors of said banks and others, the books also showing the debit
entries against said depositors and others in their accounts. They do
not show, however, the origin of the money with which those
payments were effected. They show that of the aggregate sum of
P8,868,566.70 the banks have recredited their depositors and other
creditors with P4,858,200.65, as of September 6, 1946, for the
reason that it was discovered that the withdrawals thereof were not
voluntarily made by said depositors and creditors; this leaves a
balance of P4,010,366.05 as of September 6, 1946, which last figure
was at the time the amici curiae'smemorandum was prepared still
under examination as to memorandum was prepared still under
examination as to the voluntary character of the withdrawals. We do
not find even from the letter of September 5, 1946, that the banks
took credit for those withdrawals, and there is not independent

evidence of this fact. The amici curiae, speaking for the banks, now
affirm that pursuant to article 1163 of the Civil Code those
withdrawals by depositors or payments to creditors would only be
valid against the banks in so far as they may have been beneficial to
the latter. Commenting on the same article, Manresa has the
following to say:
Pago hecho a un tercero. Este pago puede revestir
diferentes formas, de las cuales dependera su mayor o
menoreficacia.
El supuesto de que expresamente se ocupa el Codigo en este
lugar, por se el que mayores dificultades pude ofreceer, es el
de que se pague a un tercero en favor del cual nada se
hubiese estipulado, no al cual se hubiese designado en la
obligacion, ni autorizado con posteridad para recibir el pago de
aquella. Refiriendose a tal supuesto, exige el Codigo como
condicion de validez apar el pago, y fija como medida de la
eficacia de este, el mismo requisto que en el parrafo y caso
anterior del propio articulo deja establecido; lautilidad de pago
par el acreedor. Con motivo de esto y refiriendose a la prueba
de tal utilidad, repetimos lo que antes hemos dicho: que esa
pureba incumbe al deudor que pago, y en este caso con motivo
mas poderoso aun que en el anterior porque la utilidad para el
acreedor de un pago hecho a tercera persona es tan dificil, que
no puede presumirse, y necesita una prueba cumplida de parte
de aquel a quien su demonstracion ha de aprovechar.
(Emphasis supplied.)
Applying the article and the commentaries to the instant case, the
third person would be the Taiwan Bank, and the measure of the
validity or efficacy of the payment as against the banks would be the
benefit or utility which they might have meant to them, and that is not
other than the face value of the amount in Japanese military notes
which might have been voluntarily withdrawn by the depositors
or voluntarily received by the creditors from the Taiwan Bank and
which the latter, as a sort of negotiorum gestor, paid out to them. But
this falls far short of constituting necessitates the exercise of the will
of the party ratifying, while the provisions of Article 1163 of the Code

are independent of such will. Upon the whole, there is a complete

absence of evidence of ratification.
The transcript in this case is only ten pages long and does not
contain the testimony of any witness but merely stipulations of facts
between counsel, and identification of exhibits. The documentary
evidence is likewise brief and likewise fails to furnish any evidence of
such ratification. Indeed, the letter of the defendant China Banking
Corporation under date of September 19, 1945, made a written
demand (Exhibit 2) upon plaintiff haw Pia for the immediate payment
of her indebtedness to the bank in the form of overdraft "amounting to
P5,103.35 as of December 26, 1941, together with interest thereon at
the rate of 9 per cent per annum from said date compounded
monthly." This amount is exactly that stated in plaintiff's Exh. "Z"
under the column entitled "Amount". This shows just the opposite of
ratification. It shows that the bank did not recognize any validity in the
supposed liquidation in so far as it was concerned. Naturally, the
question having been submitted to the courts and pending decision
thereby, neither party could be expected to make any material
alterations in their books of account they, perforce, have to await
the final decision of the courts.
The writer believes that, the issues of the instant case not requiring it,
we should not here attempt to lay down rulings or make
pronouncements calculated to serve as guides for possible future
disputes. However, if the majority should opine otherwise, as some
members of the Court seem to think, with a view to avoiding useless
multiplicity of suits, the following norms are submitted for the purpose:
(1) Payments of prewar debts with Japanese military notes during the
occupation, voluntarily received by the creditors are valid, because
the creditors, who had the right to refuse such payments, agreed to
receive them, thuspro tanto novating their contracts with the debtors;
(2) But it was just as obviously beyond the power and right of the
debtors to change, against their creditors' will, the currency in which
their obligations were justly and legally dischargeable and, by
compelling their creditors to receive the different currency
especially if this was an inflated or practically worthless one to

virtually extinguish their credits, for was declared by Chief Justice

Arellano in Panganiban vs. Cuevas, supra:
. . . Un credito no se extingue contra la voluntad del acreedor,
sino por sentencia judicial o lo prescripcion de toda accion. (7
Jur. Fil., 501.)
(3) Where the debtor was compelled to make such payment and the
creditor to receive it under enemy duress, and one or the other, or
both should have thereby suffered any prejudice in this or their
respective rights, then such one, or such other, or both was or were
the victim or victim of the enemy's illegal acts, and should suffer the
respective prejudice thus caused him by the enemy, with the
corresponding right of action against the latter;
(4) But where, as here, the debtor alone acted, whether in obedience
to or independently of the orders of the Japanese occupant, his acts
and those of said occupant in the premises cannot affect the rights of
the creditor, without prejudice to his right of action against said
occupant.
(5) Any erroneous, even if bona fide, belief of the debtor that the
Japanese occupant had the power to do what he did in respect to the
afore-mentioned prewar creditor-debtor relations, did not validate an
otherwise invalid payment, just as the erroneous, even if bona fide,
belief of Panganiban (in Panganiban vs. Cuevas, supra) that the
Revolutionary Government had the power to collect or receive from
him the 1,300 pesos that he paid it instead of D. Francisco Gonzalez,
did not extinguish hi obligations contracted in favor of the latter,
because, said Chief Justice Arellano:
". . . como se ha declarado en sentencia de casacion de 28 de
Febrero de 1896, 'para que el pago de lo debido extinga las
obligaciones, debe hacerse a las personas en cuyo favor estuvieren
constituidas o a cualquiera otra autorizada para recibirlo; siguiendose
de ello que la entrega de lo adeudado hecho a un tercero siquiera se
haga por mero error y de buena fe, no libera al deudor de su
obligacion de pagar ni perjudica al acreedor en su derechoa cobrar, y
que si por la imposiblidad de recuperar lo indebidamente pagado,
resultasen perjuicios irreparables, recaen estos sobre

el deudor engaado, como unico responsable de sus propios actos, a

no mediar sobre este punto pacto en contratrio, o culpabilidad del
acredor que origine responsabilities al mismo imputables.'" (7 J.F.
501-502; emphasis supplied.) The reason for the law would be the
same here, whether the error relates to the powers of the Taiwan
Bank as supposed liquidator, or to the general powers of the
Japanese occupant; hence, its provisions should be the same in the
instant case;
(6) Where both prewar creditor and debtor honestly believed that the
Japanese occupant had the legal power during the occupation to
make prewar debts payable in the occupation war notes, without
either having induced the other into that belief, and both acted in
accordance therewith, neither should be allowed to undo what has
thus been done, each being bound to shoulder any prejudice that his
own voluntary acts may have caused him, all on the strength of the
above quoted doctrine in Panganiban vs. Cuevas, supra.
(7) Where the creditor has not given his voluntary consent to receive
war notes during the occupation in payment of a prewar obligation
due him. and where the debtor has taken, or attempts to take,
advantage of the orders of the Japanese occupant in order to force
said creditor to receive such payment, with or without judicial
consignation in the courts, such debtor would be acting in bad faith,
illegally, fraudulently and against good conscience, and any judgment
in his favor would be nothing short of legalizing, sanctioning and
putting a premium on such bad faith, fraud and iniquity.
(8) Hypothetically conceding that the Japanese occupant made the
military notes legal tender by virtue of the Commander in Chief's
proclamations of January 10 and February 6, 1942, then it must also
be recognized that by the same proclamation and by the same
authority the Philippine peso was simultaneously made legal tender,
since the said proclamation expressly allowed the continued use of
the Philippine peso alongside with the military notes; and considering
that said Commander in Chief did not direct the inhabitants (not
covered by Administrative Ordinance No. 11) to pay their obligation
among one another, much less prewar obligations, consequently
leaving the debtors at liberty to pay such obligations or not and, if
they did, to pay them in either of the two currencies, which gives rise

to the necessary inference that the occupant never ordered such

prewar debtors to act unjustly, fraudulently, and in bad faith toward
their creditors by paying the latter with cheaper or practically
worthless money; considering that any such payments with war notes
of prewar debts owed in Philippine currency forced or attempted to be
forced by debtors upon their creditors, not under orders of the
occupant but as voluntary acts of the debtors, were acts done in bad
faith, fraudulently and unjustly; considering that such prewar debtors
did not have to pay their prewar debts during the war, which by
operation of law suspended the due dates of such debts and
suspended the earning of interested thereon; considering further that
when the Japanese Government approved the constitution of the
occupation "Republic," in whose Article XI, section 8, it was provided
that "all property rights and privileges acquired by any person, entity
or corporation, since the outbreak of the Greater East Asia War, shall
be subject to adjustment and settlement upon the termination of the
said war," which provision necessarily comprised acts consisting in
payments with military notes of prewar debts, whatever supposed
parity might have existed between the Philippine peso and the
military note peso, and therefore whatever supposed character as
legal tender the said war notes might have had before, were as a
necessary consequences abolished thereby: payments of prewars
debts with military notes thus forced or attempted to be forced by
such debtors upon their creditors after the approval of the said
occupation constitution in October, 1943, could not possibly be
recognized as valid upon the basis of such parity and legal tender
character.
(9) Even where the creditor refuses to receive a legal tender in
settlement of his credit, his right is not cancelledthereby, but will
merely be subject to be outlawed by the statute of limitations, if he
persists in his refusal during the statutory period.
. . . If a debtor offers a legal tender in settlement of his debt, the
creditor is obligated to accept this or receive nothing; the debt
will not be cancelled by the creditor's refusal to accept duly
tendered legal tender, but it will in time be outlawed by the
statute of limitations, if the creditor persists in his refusal to take
the legal tender offered . . . . (Westerfield, Money, Credit and
Banking, page 15.)

DIGEST:
Haw Pia vs China Banking Corp.
NOVEMBER 4, 2014 | KAAARINA
Haw Pia vs China Banking Corp.
G.R. No. L-554 April 9, 1948
Facts:
Plaintiff-appellants indebtedness to the defendant-appellee China
Banking Corporation in the sum of P5,103.35 by way of overdraft in
current account payable on demand together with its interests, has
been completely paid, on different occasions to the defendant Bank
China Banking Corporation through the defendant Bank of Taiwan,
Ltd., that was appointed by the Japanese Military authorities as
liquidator of the China Banking Corporation.
The trial court held that, as there was no evidence presented to show
that the defendant Bank had authorized the Bank of Taiwan, Ltd., to
accept the payment of the plaintiffs debt to the said defendant, and
said Bank of Taiwan, as an agency of the Japanese invading army,
was not authorized under the international law to liquidate the
business of the China Banking Corporation, the payment has not
extinguished the indebtedness of the plaintiff to the said defendant
under Article 1162 of the Civil Code.
Issues:

1. Whether or not the Japanese Military Administration had authority

to order the liquidation or winding up of the business of defendantappellee China Banking Corporation, and to appoint the Bank of
Taiwan liquidator authorized as such to accept the payment by the
plaintiff-appellant to said defendant-appellee; and
2. Whether or not such payment by the plaintiff-appellant has
extinguished her obligation to said defendant-appellee.
Ruling:
1. YES. The Japanese military authorities had power, under the
international law, to order the liquidation of the China Banking
Corporation and to appoint and authorize the Bank of Taiwan as
liquidator to accept the payment in question, because such liquidation
is not confiscation of the properties of the bank appellee, but a mere
sequestration of its assets which required the liquidation or winding
up of the business of said bank. The sequestration or liquidation of
enemy banks in occupied territories is authorized expressly by the
United States Army and Navy Manual of Military Government and
Civil Affairs F.M. 2710 OPNAV 50-E-3.
2. YES. It having been shown above that the Japanese Military
Forces had power to sequestrate and impound the assets or funds of
the China Banking Corporation, and for that purpose to liquidate it by
collecting the debts due to said bank from its debtors, and paying its
creditors, and therefore to appoint the Bank of Taiwan as liquidator
with the consequent authority to make the collection, it follows
evidently that the payments by the debtors to the Bank of Taiwan of
their debts to the China Banking Corporation have extinguished their
obligation to the latter. Said payments were made to a person, the
Bank of Taiwan, authorized to receive them in the name of the bank
creditor under article 1162, of the Civil Code. Because it is evident the
words a person authorized to receive it, as used therein, means not
only a person authorized by the same creditor, but also a person
authorized by law to do so, such as guardian, executor or

administrator of estate of a deceased, and assignee or liquidator of a

partnership or corporation, as well as any other who may be
authorized to do so by law (Manresa, Civil Code, 4th ed. p. 254.)
The fact that the money with which that debts have been paid were
Japanese war notes does not affect the validity of the payments. The
power of the military governments established in occupied enemy
territory to issue military currency in the exercise of their
governmental power is based, not only on the occupants general
power to maintain law and order recognized in article 43 of the Hague
Regulations (Feilchenfeld of Belligerent Occupation, paragraph 6),
but on military necessity as shown by the history of the use of money
or currency in wars.

7.) Yamashita VS Styer

Yamashita v. Styer Digest
Yamashita vs. Styer
G.R. L-129 December 19, 1945
Ponente: Moran, C.J.
Facts:
1. Yamashita was the Commanding General of the Japanese army in
the Philippines during World War 2. He was charged before the
American military commission for war crimes.
2. He filed a petition for habeas corpus and prohibition against Gen.
Styer to reinstate his status as prisoner of war from being accused as
a war criminal. Petitioner also questioned the jurisdiction of the
military tribunal.
Issue: Whether or not the military tribunal has jurisdiction

Held:
YES.
1. The military commission was lawfully created in conformity with an
act of Congress sanctioning the creation of such tribunals.
2. The laws of war imposes upon a commander the duty to take any
appropriate measures within his powers to control the troops under
his command to prevent acts which constitute violation of the laws of
war. Hence, petitioner could be legitimately charged with personal
responsibility arising from his failure to take such measure. In this
regard the SC invoked Art. 1 of the Hague Convention No. IV of 1907,
as well as Art. 19 of Hague Convention No. X, Art. 26 of 1929 Geneva
Convention
among
others.
3. Habeas corpus is untenable since the petitioner merely sought for
restoration to his former status as prisoner of war and not a discharge
from confinement. This is a matter of military measure and not within
the
jurisdiction
of
the
courts.
4. The petition for prohibition against the respondent will also not life
since the military commission is not made a party respondent in the
case. As such, no order may be issued requiring it to refrain from
trying the petitioner.

OTHER:
Yamashita v. Styer
Court

Supreme Court, United States

Case number

317 U.S. 1; 66 S. 340

Decision title

Judgment

Decision date

4 February 1946

Parties

Tomoyuki Yamashita

Lieutenant General Wilhelm D. Styer,

Commanding General of the United
States Army Forces, Western Pacific

Other names

Categories

War crimes

Keywords

command responsibility, Japan, military

commission, Philippines, United States,
war crimes, World War II

Links

Judgment

Other countries
involved
back to top

Philippines

In re Yamashita

Summary
At the end of the Second World War, Tomoyuki Yamashita was a
Commander in the Japanese Army serving in the Philippines. His
troops were allegedly responsible for killing, torturing and raping
thousands of civilians.
On 3 September 1945, Yamashita surrendered to the United States
army. A US military commission tried him for violations of the laws of
war. Yamashita was charged with having failed to perform his duties
as an army commander to control the operations of his troops, thus
permitting them to commit atrocities. He was convicted and
sentenced to death by hanging.
Yamashita appealed at the US Supreme Court, because the military
commission had lacked many procedural and evidential protections.
The Supreme Court denied this appeal. The Supreme Court ruled
that even if Yamashita did not know about the crimes committed by
his subordinates, because of his position as a superior, he should
have known. Yamashita was executed on 23 February 1946.
The outcome of this case has been much debated and criticised,
because of the claimed lack of evidence and the should have known
criteria as described by the Supreme Court.

back to top
Procedural history
On 3 September 1945, the accused surrendered to the United States
Army and became a prisoner of war. The accused was a former
Commanding General of the Fourteenth Army Group of the Imperial
Japanese Army in the Philippines.
A military commission was appointed by General Styer in order to try
the accused for a violation of the laws of war.
On 8 October 1945, the accused was held for trial before a military
commission of five Army officers appointed by order of General Styer.
The accused had allegedly failed in his duty as an army commander
to control the operations of his troops, permitting them to commit
specified atrocities against the civilian population and prisoners of
war. Yamashita was found guilty and sentenced to death by hanging
on 7 December 1945.
Yamashita addressed the Supreme Court of the Philippines for a writ
of habeas corpus, but this was denied on jurisdictional grounds.
He then lastly addressed the United States Supreme Court a petition
for habeas corpus, which is the current decision.
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Related developments
Yamashita was executed on 23 February 1946.
The Yamashita case set a precedent for command responsibility:
The modern legal standard governing the doctrine of command
responsibility in the United States rests upon the precedent
established by the United States Supreme Court in the case of
General Tomoyuki Yamashita. The Court's holding has become
known as the "Yamashita Standard" (A.E. Mahle, 'The Yamashita
Standard', PBS).

back to top
Legally relevant facts
The petition for habeas corpus by the accused alleged that the
detention of the petitioner for the purpose of the trial was unlawful for
several reasons:

The military commission was not lawfully created;

The charge against the petitioner fails to charge him with a

violation of the laws of war;

The commission was without authority and jurisdiction to try

and convict petitioner.
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Core legal questions

Was the military commission unlawfully established and without

jurisdiction?

Could the commission lawfully try Yamashita after hostilities

had ceased for his failure to stop his subordinates from committing
violations of the law of war?
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Specific legal rules and provisions

Articles 60 and 63 of the 1929 Geneva Convention relative to

the Treatment of Prisoners of War.

Articles 8, 15, 25 and 38 of the Articles of War.

Articles 1, 8, 9 and 10 of the United States Constitution.

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Court's holding and analysis
The Supreme Court disagrees that the military commission unlawfully
created and without jurisdiction and denies the writ. The Court held
that the commission was not only created by a commander
competent to appoint it, but his order conformed to the established

policy of the government and was in complete conformity with the

Articles of War.
Moreover, there was authority to convene the commission, even after
hostilities had ended, to try violations of the law of war that were
committed before the wars cessation, at least until peace was
officially recognized by treaty or proclamation.
Further, the accused was not entitled to any of the evidentiary and
procedural protections afforded by the Geneva Convention, part 3,
chapter 3, V, title III, because that applied only to persons subjected
to judicial proceedings for offenses committed while prisoners of war.
The Court held that the Articles of War are not applicable to the trial
of an enemy combatant by a military commission; therefore the
military commission did not violate any Acts of Congress.

DIGEST:

Yamashita vs Styer
NOVEMBER 4, 2014 | KAAARINA
Yamashita vs Styer
G.R. No. L-129 December 19, 1945
Facts:
Petitioner Tomoyuki Yamashita, the commanding general of the 14th
army group of the Japanese Imperial Army in the Philippines, after his
surrender became a prisoner of war of the United States of America
but was later removed from such status and placed in confinement as
an accused war criminal charged before an American Military
Commission constituted by respondent Lieutenant General Styer,
Commanding General of the United States Army Forces, Western
Pacific.

Filing for habeas corpus and prohibition against respondent, he asks

that he be reinstated to his former status as prisoner of war, and that
the Military Commission be prohibited from further trying him. He
questions, among others, the jurisdiction of said Military Commission.
Issue/s:
1. Should the petitions for habeas corpus and prohibition be granted
in this case?
2. Was the Military Commission validly constituted by respondent,
therefore having jurisdiction over the war crimes?
Ruling: 1. NO. 2. YES.
1. A petition for habeas corpus is improper when release of petitioner
is not sought. It seeks no discharge of petitioner from confinement but
merely his restoration to his former status as a prisoner of war, to be
interned, not confined. The relative difference as to the degree of
confinement in such cases is a matter of military measure,
disciplinary in character, beyond the jurisdiction of civil courts.
Prohibition cannot issue against one not made party respondent.
Neither may the petition for prohibition prosper against Lt. Gen.
Wilhelm D. Styer. The Military Commission is not made party
respondent in this case, and although it may be acting, as alleged,
without jurisdiction, no order may be issued in these case
proceedings requiring it to refrain from trying the petitioner.
The Court further ruled that it has no jurisdiction to entertain the
petition even if the commission be joined as respondent. As it has
said, in Raquiza vs. Bradford (pp. 50, 61, ante), . . . an attempt of our
civil courts to exercise jurisdiction over the United States Army before
such period (state of war) expires, would be considered as a violation
of this countrys faith, which this Court should not be the last to keep
and uphold.

2. Under the laws of war, a military commander has an implied power

to appoint and convene a military commission. This is upon the
theory that since the power to create a military commission is an
aspect of waging war, military commanders have that power unless
expressly
withdrawn
from
them.
By the Articles of War, and especially Article 15, the Congress of the
United States has explicitly provided, so far as it may constitutionally
do so, that military tribunals shall have jurisdiction to try offenders or
offenses against the laws of war in appropriate cases.

8.) In re Yamashita
327 U.S. 1 (1946)
Annotate this Case
Syllabus

Case

U.S. Supreme Court

In re Yamashita, 327 U.S. 1 (1946)
In re Yamashita
No. 61, Misc.

Argued January 7, 8, 1946

Decided February 4, 1946*
327 U.S. 1
APPLICATION FOR LEAVE TO FILE PETITION FOR WRIT OF
HABEAS CORPUS AND WRIT OF PROHIBITION
Syllabus
Prior to September 3, 1945, petitioner was the Commanding General
of the Fourteenth Army Group of the Imperial Japanese Army in the
Philippine Islands. On that day, he surrendered to the United States
Army and became a prisoner of war. Respondent was the
Commanding General of the United States Army Forces, Western
Pacific, whose command embraced the Philippine Islands.
Respondent appointed a military commission to try the petitioner on a
charge of violation of the law of war. The gist of the charge was that
petitioner had failed in his duty as an army commander to control the
operations of his troops, "permitting them to commit" specified
atrocities against the civilian population and prisoners of war.
Petitioner was found guilty, and sentenced to death.
Held:
1. The military commission appointed to try the petitioner was lawfully
created. P. 327 U. S. 9.
(a) Nature of the authority to create military commissions for the trial
of enemy combatants for offenses against the law of war, and
principles governing the exercise of jurisdiction by such commissions,
considered. Citing Ex parte Quirin, 317 U. S. 1, and other cases.
Pp. 327 U. S. 7-9.

(b) A military commission may be appointed by any field commander,

or by any commander competent to appoint a general court-martial,
as was respondent by order of the President. P. 327 U. S. 10.
(c) The order creating the military commission was in conformity with
the Act of Congress (10 U.S.C. 1471-1593) sanctioning
Page 327 U. S. 2
the creation of such tribunals for the trial of offenses against the law
of war committed by enemy combatants. P.327 U. S. 11.
2. Trial of the petitioner by the military commission was lawful,
although hostilities had ceased. P. 327 U. S. 12.
(a) A violation of the law of war, committed before the cessation of
hostilities, may lawfully be tried by a military commission after
hostilities have ceased -- at least until peace has been officially
recognized by treaty or proclamation by the political branch of the
Government. P. 327 U. S. 12.
(b) Trial of the petitioner by the military commission was authorized
by the political branch of the Government, by military command, by
international law and usage, and by the terms of the surrender of the
Japanese government. P. 327 U. S. 13.
3. The charge preferred against the petitioner was of a violation of the
law of war. P. 327 U. S. 13.
(a) The law of war imposes on an army commander a duty to take
such appropriate measures as are within his power to control the
troops under his command for the prevention of acts which are
violations of the law of war and which are likely to attend the
occupation of hostile territory by an uncontrolled soldiery, and he may
be charged with personal responsibility for his failure to take such
measures when violations result. Pp. 327 U. S. 14, 327 U. S. 16.

(b) What measures, if any, petitioner took to prevent the alleged

violations of the law of war, and whether such measures as he may
have taken were appropriate and sufficient to discharge the duty
imposed upon him, were questions within the peculiar competence of
the military officers composing the commission, and were for it to
decide. P. 327 U. S. 16.
(c) Charges of violations of the law of war triable before a military
tribunal need not be stated with the precision of a common law
indictment. P. 327 U. S. 17.
(d) The allegations of the charge here, tested by any reasonable
standard, sufficiently set forth a violation of the law of war, and the
military commission had authority to try and to decide the issue which
it raised. P. 327 U. S. 17.
4. In admitting on behalf of the prosecution a deposition and hearsay
and opinion evidence, the military commission did not violate any Act
of Congress, treaty, or military command defining the commission's
authority. Pp. 327 U. S. 18, 327 U. S. 23.
(a) The Articles of War, including Articles 25 and 38, are not
applicable to the trial of an enemy combatant by a military
commission
Page 327 U. S. 3
for violations of the law of war, and imposed no restrictions upon the
procedure to be followed in such trial. Pp. 327 U. S. 19-20.
(b) Article 63 of the Geneva Convention of 1929, which provides that
"Sentence may be pronounced against a prisoner of war only by the
same courts and according to the same procedure as in the case of
persons belonging to the armed forces of the detaining Power,"
does not require that Articles 25 and 38 of the Articles of War be
applied in the trial of the petitioner. Article 63 refers to sentence

"pronounced against a prisoner of war" for an offense committed

while a prisoner of war, and not for a violation of the law of war
committed while a combatant. P. 327 U. S. 20.
(c) The Court expresses no opinion on the question of the wisdom of
considering such evidence as was received in this proceeding, nor on
the question whether the action of a military tribunal in admitting
evidence which Congress or controlling military command has
directed to be excluded may be drawn in question by petition for
habeas corpus or prohibition. P. 327 U. S. 23.
5. On an application for habeas corpus, the Court is not concerned
with the guilt or innocence of the petitioner. P.327 U. S. 8.
6. By sanctioning trials of enemy aliens by military commission for
offenses against the law of war, Congress recognized the right of the
accused to make a defense, and did not foreclose their right to
contend that the Constitution or laws of the United States withhold
authority to proceed with the trial. P. 327 U. S. 9.
7. The Court does not appraise the evidence on which the petitioner
here was convicted. P. 327 U. S. 17.
8. The military commission's rulings on evidence and on the mode of
conducting the proceedings against the petitioner are not reviewable
by the courts, but only by the reviewing military authorities. From this
viewpoint, it is unnecessary to consider what, in other situations, the
Fifth Amendment might require. Pp. 327 U. S. 8, 327 U. S. 23.
9. Article 60 of the Geneva Convention of 1929, which provides that,
"At the opening of a judicial proceeding directed against a prisoner of
war, the detaining Power shall advise the representative of the
protecting Power thereof as soon as possible, and always before the
date set for the opening of the trial,"

applies only to persons who are subjected to judicial proceedings for

offenses committed while prisoners of war. P.327 U. S. 23.
10. The detention of the petitioner for trial, and his detention upon his
conviction, subject to the prescribed review by the military authorities,
were lawful. P. 327 U. S. 25.
Leave and petition denied.
Page 328 U. S. 4
No. 61, Misc. Application for leave to file a petition for writs of habeas
corpus and prohibition in this Court challenging the jurisdiction and
legal authority of a military commission which convicted applicant of a
violation of the law of war and sentenced him to be hanged. Denied.
No. 672. Petition for certiorari to review an order of the Supreme
Court of the Commonwealth of the Philippines, 42 Off.Gaz. 664,
denying an application for writs of habeas corpus and prohibition
likewise challenging the jurisdiction and legal authority of the military
commission which tried and convicted petitioner. Denied.
MR. CHIEF JUSTICE STONE delivered the opinion of the Court.
No. 61 Miscellaneous is an application for leave to file a petition for
writs of habeas corpus and prohibition in this Court. No. 672 is a
petition for certiorari to review an order of the Supreme Court of the
the Philippines (28 U.S.C. 349) denying petitioner's application to
that court for writs of habeas corpus and prohibition. As both
applications raise substantially like questions, and because of the
importance and novelty of some of those presented, we set the two
applications down for oral argument as one case.
Page 327 U. S. 5
From the petitions and supporting papers, it appears that, prior to
September 3, 1945, petitioner was the Commanding General of the
Fourteenth Army Group of the Imperial Japanese Army in the

Philippine Islands. On that date, he surrendered to and became a

prisoner of war of the United States Army Forces in Baguio,
Philippine Islands. On September 25th, by order of respondent,
Lieutenant General Wilhelm D. Styer, Commanding General of the
United States Army Forces, Western Pacific, which command
embraces the Philippine Islands, petitioner was served with a charge
prepared by the Judge Advocate General's Department of the Army,
purporting to charge petitioner with a violation of the law of war. On
October 8, 1945, petitioner, after pleading not guilty to the charge,
was held for trial before a military commission of five Army officers
appointed by order of General Styer. The order appointed six Army
officers, all lawyers, as defense counsel. Throughout the proceedings
which followed, including those before this Court, defense counsel
have demonstrated their professional skill and resourcefulness and
their proper zeal for the defense with which they were charged.
On the same date, a bill of particulars was filed by the prosecution,
and the commission heard a motion made in petitioner's behalf to
dismiss the charge on the ground that it failed to state a violation of
the law of war. On October 29th, the commission was reconvened, a
supplemental bill of particulars was filed, and the motion to dismiss
was denied. The trial then proceeded until its conclusion on
December 7, 1945, the commission hearing two hundred and eightysix witnesses, who gave over three thousand pages of testimony. On
that date, petitioner was found guilty of the offense as charged, and
sentenced to death by hanging.
The petitions for habeas corpus set up that the detention of petitioner
for the purpose of the trial was unlawful for
Page 327 U. S. 6
reasons which are now urged as showing that the military
commission was without lawful authority or jurisdiction to place
petitioner on trial, as follows:

(a) That the military commission which tried and convicted petitioner
was not lawfully created, and that no military commission to try
petitioner for violations of the law of war could lawfully be convened
after the cessation of hostilities between the armed forces of the
United States and Japan;
(b) that the charge preferred against petitioner fails to charge him with
a violation of the law of war;
(c) that the commission was without authority and jurisdiction to try
and convict petitioner, because the order governing the procedure of
the commission permitted the admission in evidence of depositions,
affidavits, and hearsay and opinion evidence, and because the
commission's rulings admitting such evidence were in violation of the
25th and 38th Articles of War (10 U.S.C. 1496, 1509) and the
Geneva Convention (47 Stat. 2021), and deprived petitioner of a fair
trial in violation of the due process clause of the Fifth Amendment;
(d) that the commission was without authority and jurisdiction in the
premises because of the failure to give advance notice of petitioner's
trial to the neutral power representing the interests of Japan as a
belligerent as required by Article 60 of the Geneva Convention, 47
Stat. 2021, 2051.
On the same grounds, the petitions for writs of prohibition set up that
the commission is without authority to proceed with the trial.
The Supreme Court of the Philippine Islands, after hearing argument,
denied the petition for habeas corpus presented to it on the ground,
among others, that its jurisdiction was limited to an inquiry as to the
jurisdiction of the commission to place petitioner on trial for the
offense charged, and that the commission, being validly constituted
Page 327 U. S. 7
by the order of General Styer, had jurisdiction over the person of
petitioner and over the trial for the offense charged.

In Ex parte Quirin, 317 U. S. 1, we had occasion to consider at length

the sources and nature of the authority to create military commissions
for the trial of enemy combatants for offenses against the law of war.
We there pointed out that Congress, in the exercise of the power
conferred upon it by Article I, 8, Cl. 10, of the Constitution to "define
and punish . . . Offenses against the Law of Nations . . . " of which the
law of war is a part, had, by the Articles of War (10 U.S.C. 14711593), recognized the "military commission" appointed by military
command, as it had previously existed in United States Army
practice, as an appropriate tribunal for the trial and punishment of
offenses against the law of war. Article 15 declares that
"the provisions of these articles conferring jurisdiction upon courtsmartial shall not be construed as depriving military commissions . . .
or other military tribunals of concurrent jurisdiction in respect of
offenders of offenses that, by statute or by the law of war, may be
triable by such military commissions . . . or other military tribunals."
See a similar provision of the Espionage Act of 1917, 50 U.S.C. 38.
Article 2 includes among those persons subject to the Articles of War
the personnel of our own military establishment. But this, as Article 12
indicates, does not exclude from the class of persons subject to trial
by military commissions "any other person who, by the law of war, is
subject to trial by military tribunals" and who, under Article 12, may be
tried by court martial, or, under Article 15, by military commission.
We further pointed out that Congress, by sanctioning trial of enemy
combatants for violations of the law of war by military commission,
had not attempted to codify the law of war or to mark its precise
boundaries. Instead, by Article 15, it had incorporated, by reference,
as within the
Page 327 U. S. 8
preexisting jurisdiction of military commissions created by appropriate
military command, all offenses which are defined as such by the law
of war and which may constitutionally be included within that

jurisdiction. It thus adopted the system of military common law

applied by military tribunals so far as it should be recognized and
deemed applicable by the courts, and as further defined and
supplemented by the Hague Convention, to which the United States
and the Axis powers were parties.
We also emphasized in Ex parte Quirin, as we do here, that, on
application for habeas corpus, we are not concerned with the guilt or
innocence of the petitioners. We consider here only the lawful power
of the commission to try the petitioner for the offense charged. In the
present cases, it must be recognized throughout that the military
tribunals which Congress has sanctioned by the Articles of War are
not courts whose rulings and judgments are made subject to review
by this Court. See Ex parte Vallandingham, 1 Wall. 243; In re
Vidal, 179 U. S. 126; cf. Ex parte Quirin, supra, 317 U. S. 39. They
are tribunals whose determinations are reviewable by the military
authorities either as provided in the military orders constituting such
tribunals or as provided by the Articles of War. Congress conferred on
the courts no power to review their determinations save only as it has
granted judicial power "to grant writs of habeas corpus for the
purpose of an inquiry into the cause of the restraint of liberty." 28
U.S.C. 451, 452. The courts may inquire whether the detention
complained of is within the authority of those detaining the petitioner.
If the military tribunals have lawful authority to hear, decide, and
condemn, their action is not subject to judicial review merely because
they have made a wrong decision on disputed facts. Correction of
their errors of decision is not for the courts, but for the military
authorities, which are alone authorized to review their
decisions. See Dynes v. Hoover, 20 How. 5, 61 U. S. 81; Runkle v.
United States, 122
Page 327 U. S. 9
U.S. 543, 122 U. S. 555-556; Carter v. McClaughry, 183 U. S.
365; Collins v. McDonald, 258 U. S. 416. Cf. Matter of Moran, 203 U.
S. 96, 203 U. S. 105.

Finally, we held in Ex parte Quirin, supra, 317 U. S. 24-25, as we hold

now, that Congress, by sanctioning trials of enemy aliens by military
commission for offenses against the law of war, had recognized the
right of the accused to make a defense. Cf. Ex parte Kawato, 317 U.
S. 69. It has not foreclosed their right to contend that the Constitution
or laws of the United States withhold authority to proceed with the
trial. It has not withdrawn, and the Executive branch of the
government could not, unless there was suspension of the writ,
withdraw from the courts the duty and power to make such inquiry
into the authority of the commission as may be made by habeas
corpus.
With these governing principles in mind, we turn to the consideration
of the several contentions urged to establish want of authority in the
commission. We are not here concerned with the power of military
commissions to try civilians. See Ex parte Milligan, 4 Wall. 2, 71 U. S.
132; Sterling v. Constantin, 287 U. S. 378; Ex parte Quirin, supra,317
U. S. 45. The Government's contention is that General Styer's order
creating the commission conferred authority on it only to try the
purported charge of violation of the law of war committed by
petitioner, an enemy belligerent, while in command of a hostile army
occupying United States territory during time of war. Our first inquiry
must therefore be whether the present commission was created by
lawful military command, and, if so, whether authority could thus be
conferred on the commission to place petitioner on trial after the
cessation of hostilities between the armed forces of the United States
and Japan.
The authority to create the Commission. General Styer's order for the
appointment of the commission was made by him as Commander of
the United States Armed Forces, Western Pacific. His command
includes, as part
Page 327 U. S. 10

of a vastly greater area, the Philippine Islands, where the alleged

offenses were committed, where petitioner surrender as a prisoner of
war, and where, at the time of the order convening the commission,
he was detained as a prisoner in custody of the United States Army.
The Congressional recognition of military commissions and its
sanction of their use in trying offenses against the law of war to which
we have referred sanctioned their creation by military command in
conformity to long established American precedents. Such a
commission may be appointed by any field commander, or by any
commander competent to appoint a general court martial, as was
General Styer, who had been vested with that power by order of the
President. 2 Winthrop, Military Law and Precedents,2d Ed.,
*1302; cf. Article of War 8.
Here, the commission was not only created by a commander
competent to appoint it, but his order conformed to the established
policy of the Government and to higher military commands
authorizing his action. In a proclamation of July 2, 1942 (56 Stat.
1964), the President proclaimed that enemy belligerents who, during
time of war, enter the United States, or any territory possession
thereof, and who violate the law of war, should be subject to the law
of war and to the jurisdiction of military tribunals. Paragraph 10 of the
Declaration of Potsdam of July 6, 1945, declared that " . . . stern
justice shall be meted out to all war criminals, including those who
have visited cruelties upon prisoners." U.S. Dept. of State Bull., Vol.
XIII, No. 318, pp. 137, 138. This Declaration was accepted by the
Japanese government by its note of August 10, 1945. U.S. Dept. of
State Bull., Vol. XIII, No. 320, p. 205.
By direction of the President, the Joint Chiefs of Staff of the American
Military Forces, on September 12, 1945, instructed General
MacArthur, Commander in Chief, United States Army Forces, Pacific,
to proceed with the trial, before
Page 327 U. S. 11

appropriate military tribunals, of such Japanese war criminals "as

have been or may be apprehended." By order of General MacArthur
of September 24, 1945, General Styer was specifically directed to
proceed with the trial of petitioner upon the charge here involved.
This order was accompanied by detailed rules and regulations which
General MacArthur prescribed for the trial of war criminals. These
regulations directed, among other things, that review of the sentence
imposed by the commission should be by the officer convening it,
with "authority to approve, mitigate, remit, commute, suspend,
reduce, or otherwise alter the sentence imposed," and directed that
no sentence of death should be carried into effect until confirmed by
the Commander in Chief, United States Army Forces, Pacific.
It thus appears that the order creating the commission for the trial of
petitioner was authorized by military command, and was in complete
conformity to the Act of Congress sanctioning the creation of such
tribunals for the trial of offenses against the law of war committed by
enemy combatants. And we turn to the question whether the authority
to create the commission and direct the trial by military order
continued after the cessation of hostilities.
An important incident to the conduct of war is the adoption of
measures by the military commander not only to repel and defeat the
enemy, but to seize and subject to disciplinary measures those
enemies who, in their attempt to thwart or impede our military effort,
have violated the law of war. Ex parte Quirin, supra, 317 U. S. 28.
The trial and punishment of enemy combatants who have committed
violations of the law of war is thus not only a part of the conduct of
war operating as a preventive measure against such violations, but is
an exercise of the authority sanctioned by Congress to administer the
system of military justice recognized by the law of war. That sanction
is without qualification as to the exercise of this authority so
Page 327 U. S. 12

long as a state of war exists -- from its declaration until peace is

proclaimed. See United States v. Anderson, 9 Wall. 56, 76 U. S.
70; The Protector, 12 Wall. 700, 79 U. S. 702; McElrath v. United
States, 102 U. S. 426, 102 U. S. 438;Kahn v. Anderson, 255 U. S.
1, 255 U. S. 9-10. The war power, from which the commission derives
its existence, is not limited to victories in the field, but carries with it
the inherent power to guard against the immediate renewal of the
conflict, and to remedy, at least in ways Congress has recognized,
the evils which the military operations have produced. See Stewart v.
Kahn, 11 Wall. 493, 78 U. S. 507.
We cannot say that there is no authority to convene a commission
after hostilities have ended to try violations of the law of war
committed before their cessation, at least until peace has been
officially recognized by treaty or proclamation of the political branch of
the Government. In fact, in most instances, the practical
administration of the system of military justice under the law of war
would fail if such authority were thought to end with the cessation of
hostilities. For only after their cessation could the greater number of
offenders and the principal ones be apprehended and subjected to
trial.
No writer on international law appears to have regarded the power of
military tribunals, otherwise competent to try violations of the law of
war, as terminating before the formal state of war has ended.
[Footnote 1] In our own military history,
Page 327 U. S. 13
there have been numerous instances in which offenders were tried by
military commission after the cessation of hostilities and before the
proclamation of peace, for offenses against the law of war committed
before the cessation of hostilities. [Footnote 2]
The extent to which the power to prosecute violations of the law of
war shall be exercised before peace is declared rests not with the
courts, but with the political branch of the Government, and may itself

be governed by the terms of an armistice or the treaty of peace. Here,

peace has not been agreed upon or proclaimed. Japan, by her
acceptance of the Potsdam Declaration and her surrender, has
acquiesced in the trials of those guilty of violations of the law of war.
The conduct of the trial by the military commission has been
authorized by the political branch of the Government, by military
command, by international law and usage, and by the terms of the
surrender of the Japanese government.
The Charge. Neither Congressional action nor the military orders
constituting the commission authorized it to place petitioner on trial
unless the charge preferred against him is of a violation of the law of
war. The charge, so far as now relevant, is that petitioner, between
October 9, 1944, and September 2, 1945, in the Philippine Islands,
"while commander of armed forces of Japan at war with the United
States of America and its allies, unlawfully disregarded and failed to
discharge his duty as commander to
Page 327 U. S. 14
control the operations of the members of his command, permitting
them to commit brutal atrocities and other high crimes against people
of the United States and of its allies and dependencies, particularly
the Philippines, and he . . . thereby violated the laws of war."
Bills of particulars, filed by the prosecution by order of the
commission, allege a a series of acts, one hundred and twenty-three
in number, committed by members of the forces under petitioner's
command during the period mentioned. The first item specifies the
execution of a
"a deliberate plan and purpose to massacre and exterminate a large
part of the civilian population of Batangas Province, and to devastate
and destroy public, private, and religious property therein, as a result
of which more than 25,000 men, women and children, all unarmed
noncombatant civilians, were brutally mistreated and killed, without

cause or trial, and entire settlements were devastated and destroyed

wantonly and without military necessity."
Other items specify acts of violence, cruelty, and homicide inflicted
upon the civilian population and prisoners of war, acts of wholesale
pillage, and the wanton destruction of religious monuments.
It is not denied that such acts directed against the civilian population
of an occupied country and against prisoners of war are recognized in
international law as violations of the law of war. Articles 4, 28, 46, and
47, Annex to Fourth Hague Convention, 1907, 36 Stat. 2277, 2296,
2303, 2306, 2307. But it is urged that the charge does not allege that
petitioner has either committed or directed the commission of such
acts, and consequently that no violation is charged as against him.
But this overlooks the fact that the gist of the charge is an unlawful
breach of duty by petitioner as an army commander to control the
operations of the members of his command by "permitting them to
commit" the extensive and widespread atrocities specified. The
question, then, is whether the law of war imposes
Page 327 U. S. 15
on an army commander a duty to take such appropriate measures as
are within his power to control the troops under his command for the
prevention of the specified acts which are violations of the law of war
and which are likely to attend the occupation of hostile territory by an
uncontrolled soldiery, and whether he may be charged with personal
responsibility for his failure to take such measures when violations
result. That this was the precise issue to be tried was made clear by
the statement of the prosecution at the opening of the trial.
It is evident that the conduct of military operations by troops whose
excesses are unrestrained by the orders or efforts of their
commander would almost certainly result in violations which it is the
purpose of the law of war to prevent. Its purpose to protect civilian
populations and prisoners of war from brutality would largely be
defeated if the commander of an invading army could, with impunity,

neglect to take reasonable measures for their protection. Hence, the

law of war presupposes that its violation is to be avoided through the
control of the operations of war by commanders who are to some
extent responsible for their subordinates.
This is recognized by the Annex to Fourth Hague Convention of 1907,
respecting the laws and customs of war on land. Article I lays down,
as a condition which an armed force must fulfill in order to be
accorded the rights of lawful belligerents, that it must be "commanded
by a person responsible for his subordinates." 36 Stat. 2295.
Similarly, Article 19 of the Tenth Hague Convention, relating to
bombardment by naval vessels, provides that commanders in chief of
the belligerent vessels "must see that the above Articles are properly
carried out." 36 Stat. 2389. And Article 26 of the Geneva Red Cross
Convention of 1929, 47 Stat. 2074, 2092, for the amelioration of the
condition of the wounded and sick in armies in the field, makes it
"the duty of the commanders in chief of the belligerent
Page 327 U. S. 16
armies to provide for the details of execution of the foregoing articles
[of the convention], as well as for unforeseen cases."
And, finally, Article 43 of the Annex of the Fourth Hague Convention,
36 Stat. 2306, requires that the commander of a force occupying
enemy territory, as was petitioner,
"shall take all the measures in his power to restore and ensure, as far
as possible, public order and safety, while respecting, unless
absolutely prevented, the laws in force in the country."
These provisions plainly imposed on petitioner, who at the time
specified was military governor of the Philippines as well as
commander of the Japanese forces, an affirmative duty to take such
measures as were within his power and appropriate in the
circumstances to protect prisoners of war and the civilian population.

This duty of a commanding officer has heretofore been recognized,

and its breach penalized by our own military tribunals. [Footnote 3] A
like principle has been applied so as to impose liability on the United
States in international arbitrations. Case of Jenaud, 3 Moore,
International Arbitrations 3000; Case of "The Zafiro," 5 Hackworth,
Digest of International Law 707.
We do not make the laws of war, but we respect them so far as they
do not conflict with the commands of Congress or the Constitution.
There is no contention that the present charge, thus read, is without
the support of evidence, or that the commission held petitioner
responsible for failing to take measures which were beyond his
control or inappropriate for a commanding officer to take in the
circumstances. [Footnote 4]
Page 327 U. S. 17
We do not here appraise the evidence on which petitioner was
convicted. We do not consider what measures, if any, petitioner took
to prevent the commission, by the troops under his command, of the
plain violations of the law of war detailed in the bill of particulars, or
whether such measures as he may have taken were appropriate and
sufficient to discharge the duty imposed upon him. These are
questions within the peculiar competence of the military officers
composing the commission, and were for it to decide. See Smith v.
Whitney, 116 U. S. 167, 116 U. S. 178. It is plain that the charge on
which petitioner was tried charged him with a breach of his duty to
control the operations of the members of his command, by permitting
them to commit the specified atrocities. This was enough to require
the commission to hear evidence tending to establish the culpable
failure of petitioner to perform the duty imposed on him by the law of
war, and to pass upon its sufficiency to establish guilt.
Obviously, charges of violations of the law of war triable before a
military tribunal need not be stated with the precision of a common
law indictment. Cf. Collins v. McDonald, supra, 258 U. S. 420. But we

conclude that the allegations of the charge, tested by any reasonable

standard, adequately allege a violation of the law of war, and that the
Page 327 U. S. 18
commission had authority to try and decide the issue which it
raised. Cf. Dealy v. United States, 152 U. S. 539;Williamson v. United
States, 207 U. S. 425, 207 U. S. 447; Glasser v. United States, 315
U. S. 60, 315 U. S. 66, and cases cited.
The Proceedings before the Commission. The regulations prescribed
by General MacArthur governing the procedure for the trial of
petitioner by the commission directed that the commission should
admit such evidence
"as, in its opinion, would be of assistance in proving or disproving the
charge, or such as, in the commission's opinion, would have
probative value in the mind of a reasonable man,"
and that, in particular, it might admit affidavits, depositions, or other
statements taken by officers detailed for that purpose by military
authority. The petitions in this case charged that, in the course of the
trial, the commission received, over objection by petitioner's counsel,
the deposition of a witness taken pursuant to military authority by a
United States Army captain. It also, over like objection, admitted
hearsay and opinion evidence tendered by the prosecution. Petitioner
argues, as ground for the writ of habeas corpus, that Article 25
[Footnote 5] of the Articles of War prohibited the reception in
evidence by the commission of depositions on behalf of the
prosecution in a capital case, and that Article 38 [Footnote 6]
prohibited the reception of hearsay and of opinion evidence.
Page 327 U. S. 19
We think that neither Article 25 nor Article 38 is applicable to the trial
of an enemy combatant by a military commission for violations of the
law of war. Article 2 of the Articles of War enumerates "the

persons . . . subject to these articles," who are denominated, for

purposes of the Articles, as "persons subject to military law." In
general, the persons so enumerated are members of our own Army
and of the personnel accompanying the Army. Enemy combatants are
not included among them. Articles 12, 13, and 14, before the adoption
of Article 15 in 1916, 39 Stat. 653, made all "persons subject to
military law" amenable to trial by courts-martial for any offense made
punishable by the Articles of War. Article 12 makes triable by general
court martial "any other person who, by the law of war, is [triable] by
military tribunals." Since Article 2, in its 1916 form, 39 Stat. 651,
includes some persons who, by the law of war, were, prior to 1916,
triable by military commission, it was feared by the proponents of the
1916 legislation that, in the absence of a saving provision, the
authority given by Articles 12, 13, and 14 to try such persons before
courts-martial might be construed to deprive the nonstatutory military
commission of a portion of what was considered to be its traditional
jurisdiction. To avoid this, and to preserve that jurisdiction intact,
Article 15 was added to the Articles. [Footnote 7] It declared that
"The provisions of these articles
Page 327 U. S. 20
conferring jurisdiction upon courts-martial shall not be construed as
depriving military commissions . . . of concurrent jurisdiction in
respect of offenders or offenses that, by the law of war, may be
lawfully triable by such military commissions."
By thus recognizing military commissions in order to preserve their
traditional jurisdiction over enemy combatants unimpaired by the
Articles, Congress gave sanction, as we held in Ex parte Quirin, to
any use of the military commission contemplated by the common law
of war. But it did not thereby make subject to the Articles of War
persons other than those defined by Article 2 as being subject to the
Articles, nor did it confer the benefits of the Articles upon such
persons. The Articles recognized but one kind of military commission,

not two. But they sanctioned the use of that one for the trial of two
classes of persons, to one of which the Articles do, and to the other of
which they do not, apply in such trials. Being of this latter class,
petitioner cannot claim the benefits of the Articles, which are
applicable only to the members of the other class. Petitioner, an
enemy combatant, is therefore not a person made subject to the
Articles of War by Article 2, and the military commission before which
he was tried, though sanctioned, and its jurisdiction saved, by Article
15, was not convened by virtue of the Articles of War, but pursuant to
the common law of war. It follows that the Articles of War, including
Articles 25 and 38, were not applicable to petitioner's trial, and
imposed no restrictions upon the procedure to be followed. The
Articles left the control over the procedure in such a case where it
had previously been -- with the military command.
Petitioner further urges that, by virtue of Article 63 of the Geneva
Convention of 1929, 47 Stat. 2052, he is entitled to the benefits
afforded by the 25th and 38th Articles of War to members of our own
forces. Article 63 provides:
"Sentence may be pronounced against a prisoner of war
Page 327 U. S. 21
only by the same courts and according to the same procedure as in
the case of persons belonging to the armed forces of the detaining
Power."
Since petitioner is a prisoner of war, and as the 25th and 38th Articles
of War apply to the trial of any person in our own armed forces, it is
said that Article 63 requires them to be applied in the trial of
petitioner. But we think examination of Article 63 in its setting in the
Convention plainly shows that it refers to sentence "pronounced
against a prisoner of war" for an offense committed while a prisoner
of war, and not for a violation of the law of war committed while a
combatant.

Article 63 of the Convention appears in part 3, entitled "Judicial

Suits," of Chapter 3, "Penalties Applicable to Prisoners of War," of
V, "Prisoners' Relations with the Authorities," one of the sections of
Title III, "Captivity." All taken together relate only to the conduct and
control of prisoners of war while in captivity as such. Chapter 1 of
Section V, Article 42, deals with complaints of prisoners of war
because of the conditions of captivity. Chapter 2, Articles 43 and 44,
relates to those of their number chosen by prisoners of war to
represent them.
Chapter 3 of Section V, Articles 45 through 67, is entitled "Penalties
Applicable to Prisoners of War." Part 1 of that chapter, Articles 45
through 53, indicates what acts of prisoners of war committed while
prisoners shall be considered offenses, and defines to some extent
the punishment which the detaining power may impose on account of
such offenses. [Footnote 8] Punishment is of two kinds -"disciplinary" and
Page 327 U. S. 22
"judicial," the latter being the more severe. Article 52 requires that
leniency be exercised in deciding whether an offense requires
disciplinary or judicial punishment. Part 2 of Chapter 3 is entitled
"Disciplinary Punishments," and further defines the extent of such
punishment and the mode in which it may be imposed. Part 3, entitled
"Judicial Suits," in which Article 63 is found, describes the procedure
by which "judicial" punishment may be imposed. The three parts of
Chapter 3, taken together, are thus a comprehensive description of
the substantive offenses which prisoners of war may commit during
their imprisonment, of the penalties which may be imposed on
account of such offenses, and of the procedure by which guilt may be
adjudged and sentence pronounced.
We think it clear, from the context of these recited provisions, that
part 3, and Article 63 which it contains, apply only to judicial

proceedings directed against a prisoner of war for offenses

committed while a prisoner of war. Section
Page 327 U. S. 23
V gives no indication that this part was designed to deal with offenses
other than those referred to in parts 1 and 2 of chapter 3.
We cannot say that the commission, in admitting evidence to which
objection is now made, violated any act of Congress, treaty, or
military command defining the commission's authority. For reasons
already stated, we hold that the commission's rulings on evidence
and on the mode of conducting these proceedings against petitioner
are not reviewable by the courts, but only by the reviewing military
authorities. From this viewpoint, it is unnecessary to consider what, in
other situations, the Fifth Amendment might require, and as to that,
no intimation one way or the other is to be implied. Nothing we have
said is to be taken as indicating any opinion on the question of the
wisdom of considering such evidence, or whether the action of a
military tribunal in admitting evidence which Congress or controlling
military command has directed to be excluded may be drawn in
question by petition for habeas corpus or prohibition.
Effect of failure to give notice of the trial to the protecting
power. Article 60 of the Geneva Convention of July 27, 1929, 47 Stat.
2051, to which the United States and Japan were signatories,
provides that,
"At the opening of a judicial proceeding directed against a prisoner of
war, the detaining Power shall advise the representative of the
protecting Power thereof as soon as possible, and always before the
date set for the opening of the trial."
Petitioner relies on the failure to give the prescribed notice to the
protecting power [Footnote 9] to establish want of authority in the
commission to proceed with the trial.

Page 327 U. S. 24
For reasons already stated, we conclude that Article 60 of the
Geneva Convention, which appears in part 3, Chapter 3, Section V,
Title III of the Geneva Convention, applies only to persons who are
subjected to judicial proceedings for offenses committed while
prisoners of war. [Footnote 10]
Page 327 U. S. 25
It thus appears that the order convening the commission was a lawful
order, that the commission was lawfully constituted, that petitioner
was charged with violation of the law of war, and that the commission
had authority to proceed with the trial, and, in doing so, did not violate
any military, statutory, or constitutional command. We have
considered, but find it unnecessary to discuss, other contentions
which we find to be without merit. We therefore conclude that the
detention of petitioner for trial and his detention upon his conviction,
subject to the prescribed review by the military authorities, were
lawful, and that the petition for certiorari, and leave to file in this Court
Page 327 U. S. 26
petitions for writs of habeas corpus and prohibition should be, and
they are
Denied.
MR. JUSTICE JACKSON took no part in the consideration or
decision of these cases.
* Together with No. 672, Yamashita v. Styer, Commanding
General, on petition for writ of certiorari to the Supreme Court of the
the Philippines. For earlier orders in these cases, see 326 U.S. 693694.
[Footnote 1]

The Commission on the Responsibility of the Authors of the War and

on the Enforcement of Penalties of the Versailles Peace Conference,
which met after cessation of hostilities in the First World War, were of
the view that violators of the law of war could be tried by military
tribunals. See Report of the Commission, March 9, 1919, 14
Am.J.Int.L. 95, 121. See also memorandum of American
commissioners concurring on this point, id. at p. 141. The treaties of
peace concluded after World War I recognized the right of the Allies
and of the United States to try such offenders before military
tribunals. See Art. 228 of Treaty of Versailles, June 28, 1919; Art. 173
of Treaty of St. Germain, Sept. 10, 1919; Art. 157 of Treaty of Trianon,
June 4, 1920.
The terms of the agreement which ended hostilities in the Boer War
reserved the right to try, before military tribunals, enemy combatants
who had violated the law of war. 95 British and Foreign State Papers
(1901-1902) 160. See also trials cited in Colby, War Crimes, 23
Michigan Law Rev. 482, 496-497.
[Footnote 2]
See cases mentioned in Ex parte Quirin, supra, 317 U. S. 32, note
10, and in 2 Winthrop, supra, *1310-1311, n. 5; 14 Op.Atty.Gen. 249
(Modoc Indian Prisoners).
[Footnote 3]
Failure of an officer to take measures to prevent murder of an
inhabitant of an occupied country committed in his presence.
Gen.Orders No. 221, Hq.Div. of the Philippines, August 17, 1901.
And, in Gen.Orders No. 264, Hq.Div. of the Philippines, September 9,
1901, it was held that an officer could not be found guilty for failure to
prevent a murder unless it appeared that the accused had "the power
to prevent" it.
[Footnote 4]

In its findings, the commission took account of the difficulties

"faced by the accused with respect not only to the swift and
overpowering advance of American forces, but also to errors of his
predecessors, weakness in organization, equipment, supply . . . ,
training, communication, discipline, and morale of his troops,"
and
"the tactical situation, the character, training and capacity of staff
officers and subordinate commanders, as well as the traits of
character of his troops."
It nonetheless found that petitioner had not taken such measures to
control his troops as were "required by the circumstances." We do not
weigh the evidence. We merely hold that the charge sufficiently
states a violation against the law of war, and that the commission,
upon the facts found, could properly find petitioner guilty of such a
violation.
[Footnote 5]
Article 25 provides:
"A duly authenticated deposition taken upon reasonable notice to the
opposite party may be read in evidence before any military court or
commission in any case not capital, or in any proceeding before a
court of inquiry or a military board, . . . Provided, That testimony by
deposition may be adduced for the defense in capital cases."
[Footnote 6]
Article 38 provides:
"The President may, by regulations, which he may modify from time
to time, prescribe the procedure, including modes of proof, in cases
before courts-martial, courts of inquiry, military commissions, and
other military tribunals, which regulations shall, insofar as he shall

deem practicable, apply the rules of evidence generally recognized in

the trial of criminal cases in the district courts of the United
States: Provided, That nothing contrary to or inconsistent with these
articles shall be so prescribed. . . ."
[Footnote 7]
General Crowder, the Judge Advocate General, who appeared before
Congress as sponsor for the adoption of Article 15 and the
accompanying amendment of Article 25, in explaining the purpose of
Article 15, said:
"Article 15 is new. We have included in article 2, as subject to military
law, a number of persons who are also subject to trial by military
commission. A military commission is our common law war court. It
has no statutory existence, though it is recognized by statute law. As
long as the articles embraced them in the designation 'persons
subject to military law,' and provided that they might be tried by courtmartial, I was afraid that, having made a special provision for their
trial by court-martial [Arts. 12, 13, and 14], it might be held that the
provision operated to exclude trials by military commission and other
war courts; so this new article was introduced. . . ."
Sen.R. 130, 64th Cong., 1st Sess., p. 40.
[Footnote 8]
Part 1 of Chapter 3, "General Provisions," provides in Articles 45 and
46 that prisoners of war are subject to the regulations in force in the
armies of the detaining power, that punishments other than those
provided "for the same acts for soldiers of the national armies" may
not be imposed on prisoners of war, and that "collective punishment
for individual acts" is forbidden. Article 47 provides that
"Acts constituting an offense against discipline, and particularly
attempted escape, shall be verified immediately; for all prisoners of
war, commissioned or not, preventive arrest shall be reduced to the

absolute minimum. Judicial proceedings against prisoners of war

shall be conducted as rapidly as the circumstances permit. . . . In all
cases, the duration of preventive imprisonment shall be deducted
from the disciplinary or the judicial punishment inflicted."
Article 48 provides that prisoners of war, after having suffered "the
judicial of disciplinary punishment which has been imposed on them,"
are not to be treated differently from other prisoners, but provides that
"prisoners punished as a result of attempted escape may be
subjected to special surveillance." Article 49 recites that prisoners
"given disciplinary punishment may not be deprived of the
prerogatives attached to their rank." Articles 50 and 51 deal with
escaped prisoners who have been retaken or prisoners who have
attempted to escape. Article 52 provides:
"Belligerents shall see that the competent authorities exercise the
greatest leniency in deciding the question of whether an infraction
committed by a prisoner of war should be punished more than once
because of the same act or the same count."
[Footnote 9]
Switzerland, at the time of the trial, was the power designated by
Japan for the protection of Japanese prisoners of war detained by the
United States, except in Hawaii. U.S.Dept. of State Bull. Vol. XIII, No.
317, p. 125.
[Footnote 10]
One of the items of the bill of particulars in support of the charge
against petitioner specifies that he permitted members of the armed
forces under his command to try and execute three named and other
prisoners of war,
"subjecting to trial without prior notice to a representative of the
protecting power, without opportunity to defend, and without counsel;
denying opportunity to appeal from the sentence rendered; failing to

notify the protecting power of the sentence pronounced, and

executing a death sentence without communicating to the
representative of the protecting power the nature and circumstances
of the offense charged."
It might be suggested that, if Article 60 is inapplicable to petitioner, it
is inapplicable in the cases specified, and that, hence, he could not
be lawfully held or convicted on a charge of failing to require the
notice provided for in Article 60 to be given.
As the Government insists, it does not appear from the charge and
specifications that the prisoners in question were not charged with
offenses committed by them as prisoners, rather than with offenses
against the law of war committed by them as enemy combatants. But,
apart from this consideration, independently of the notice
requirements of the Geneva Convention, it is a violation of the law of
war, on which there could be a conviction if supported by evidence, to
inflict capital punishment on prisoners of war without affording to
them opportunity to make a defense. 2 Winthrop, supra, *434, 435,
1241; Article 84, Oxford Manual; U.S. War Dept., Basic Field Manual,
Rules of Land Warfare (1940) par. 356; Lieber's Code, G.O. No. 100
(1863) Instructions for the Government of Armies of the United States
in the Field, par. 12; Spaight, War Rights on Land, 462, n.
Further, the commission, in making its findings, summarized as
follows the charges on which it acted in three classes, any one of
which, independently of the others if supported by evidence, would be
sufficient to support the conviction: (1) execution or massacre without
trial and maladministration generally of civilian internees and
prisoners of war; (2) brutalities committed upon the civilian
population, and (3) burning and demolition, without adequate military
necessity, of a large number of homes, places of business, places of
religious worship, hospitals, public buildings, and educational
institutions.

The commission concluded: "(1) that a series of atrocities and other

high crimes have been committed by members of the Japanese
armed forces" under command of petitioner
"against people of the United States, their allies and dependencies; . .
. that they were not sporadic in nature, but in many cases were
methodically supervised by Japanese officers and noncommissioned
officers;"
(2) that, during the period in question, petitioner "failed to provide
effective control of [his] troops, as was required by the
circumstances." The commission said:
"Where murder and rape and vicious, revengeful actions are
widespread offenses, and there is no effective attempt by a
commander to discover and control the criminal acts, such a
commander may be held responsible, even criminally liable, for the
lawless acts of his troops, depending upon their nature and the
circumstances surrounding them."
The commission made no finding of noncompliance with the Geneva
Convention. Nothing has been brought to our attention from which we
could conclude that the alleged noncompliance with Article 60 of the
Geneva Convention had any relation to the commission's finding of a
series of atrocities committed by members of the forces under
petitioner's command, and that he failed to provide effective control of
his troops, as was required by the circumstances, or which could
support the petitions for habeas corpus on the ground that petitioner
had been charged with or convicted for failure to require the notice
prescribed by Article 60 to be given.
MR. JUSTICE MURPHY, dissenting.
The significance of the issue facing the Court today cannot be
overemphasized. An American military commission has been
established to try a fallen military commander of a conquered nation
for an alleged war crime. The authority for such action grows out of

the exercise of the power conferred upon Congress by Article I, 8,

Cl. 10 of the Constitution to "define and punish . . . Offenses against
the Law of Nations. . . ." The grave issue raised by this case is
whether a military commission so established and so authorized may
disregard the procedural rights of an accused person as guaranteed
by the Constitution, especially by the due process clause of the Fifth
Amendment.
The answer is plain. The Fifth Amendment guarantee of due process
of law applies to "any person" who is accused of a crime by the
Federal Government or any of its agencies. No exception is made as
to those who are accused of war crimes or as to those who possess
the status of an enemy belligerent. Indeed, such an exception would
be contrary to the whole philosophy of human rights which makes the
Constitution the great living document that it is. The immutable rights
of the individual, including those secured by the due process clause
of the Fifth Amendment, belong not alone to the members of those
nations that excel on the battlefield or that subscribe to the
democratic ideology. They belong to every person in the world, victor
or vanquished, whatever may be his race, color, or beliefs. They rise
above any status of belligerency or outlawry. They survive any
popular passion or frenzy of the moment. No court or legislature or
executive, not even the mightiest
Page 327 U. S. 27
army in the world, can ever destroy them. Such is the universal and
indestructible nature of the rights which the due process clause of the
Fifth Amendment recognizes and protects when life or liberty is
threatened by virtue of the authority of the United States.
The existence of these rights, unfortunately, is not always respected.
They are often trampled under by those who are motivated by hatred,
aggression, or fear. But, in this nation, individual rights are recognized
and protected, at least in regard to governmental action. They cannot

be ignored by any branch of the Government, even the military,

except under the most extreme and urgent circumstances.
The failure of the military commission to obey the dictates of the due
process requirements of the Fifth Amendment is apparent in this
case. The petitioner was the commander of an army totally destroyed
by the superior power of this nation. While under heavy and
destructive attack by our forces, his troops committed many brutal
atrocities and other high crimes. Hostilities ceased, and he voluntarily
surrendered. At that point, he was entitled, as an individual protected
by the due process clause of the Fifth amendment, to be treated fairly
and justly according to the accepted rules of law and procedure. He
was also entitled to a fair trial as to any alleged crimes, and to be free
from charges of legally unrecognized crimes that would serve only to
permit his accusers to satisfy their desires for revenge.
A military commission was appointed to try the petitioner for an
alleged war crime. The trial was ordered to be held in territory over
which the United States has complete sovereignty. No military
necessity or other emergency demanded the suspension of the
safeguards of due process. Yet petitioner was rushed to trial under an
improper charge, given insufficient time to prepare an adequate
defense, deprived of the benefits of some of the most
Page 327 U. S. 28
elementary rules of evidence, and summarily sentenced to be
hanged. In all this needless and unseemly haste, there was no
serious attempt to charge or to prove that he committed a recognized
violation of the laws of war. He was not charged with personally
participating in the acts of atrocity, or with ordering or condoning their
commission. Not even knowledge of these crimes was attributed to
him. It was simply alleged that he unlawfully disregarded and failed to
discharge his duty as commander to control the operations of the
members of his command, permitting them to commit the acts of
atrocity. The recorded annals of warfare and the established

principles of international law afford not the slightest precedent for

such a charge. This indictment, in effect, permitted the military
commission to make the crime whatever it willed, dependent upon its
biased view as to petitioner's duties and his disregard thereof, a
practice reminiscent of that pursued in certain less respected nations
in recent years.
In my opinion, such a procedure is unworthy of the traditions of our
people or of the immense sacrifices that they have made to advance
the common ideals of mankind. The high feelings of the moment
doubtless will be satisfied. But in the sober afterglow will come the
realization of the boundless and dangerous implications of the
procedure sanctioned today. No one in a position of command in an
army, from sergeant to general, can escape those implications.
Indeed, the fate of some future President of the United States and his
chiefs of staff and military advisers may well have been sealed by this
decision. But even more significant will be the hatred and ill will
growing out of the application of this unprecedented procedure. That
has been the inevitable effect of every method of punishment
disregarding the element of personal culpability. The effect in this
instance, unfortunately, will be magnified infinitely, for here we are
dealing with the rights of man on an international level. To subject an
enemy belligerent
Page 327 U. S. 29
to an unfair trial, to charge him with an unrecognized crime, or to vent
on him our retributive emotions only antagonizes the enemy nation
and hinders the reconciliation necessary to a peaceful world.
That there were brutal atrocities inflicted upon the helpless Filipino
people, to whom tyranny is no stranger, by Japanese armed forces
under the petitioner's command is undeniable. Starvation, execution,
or massacre without trial, torture, rape, murder, and wanton
destruction of property were foremost among the outright violations of
the laws of war and of the conscience of a civilized world. That just

punishment should be meted out to all those responsible for criminal

acts of this nature is also beyond dispute. But these factors do not
answer the problem in this case. They do not justify the abandonment
of our devotion to justice in dealing with a fallen enemy commander.
To conclude otherwise is to admit that the enemy has lost the battle,
but has destroyed our ideals.
War breeds atrocities. From the earliest conflicts of recorded history
to the global struggles of modern times, inhumanities, lust, and
pillage have been the inevitable byproducts of man's resort to force
and arms. Unfortunately, such despicable acts have a dangerous
tendency to call forth primitive impulses of vengeance and retaliation
among the victimized peoples. The satisfaction of such impulses, in
turn, breeds resentment and fresh tension. Thus does the spiral of
cruelty and hatred grow.
If we are ever to develop an orderly international community based
upon a recognition of human dignity, it is of the utmost importance
that the necessary punishment of those guilty of atrocities be as free
as possible from the ugly stigma of revenge and vindictiveness.
Justice must be tempered by compassion, rather than by vengeance.
In this, the first case involving this momentous problem ever to reach
this Court, our responsibility is both lofty and difficult. We must insist,
within the confines of our proper
Page 327 U. S. 30
jurisdiction, that the highest standards of justice be applied in this trial
of an enemy commander conducted under the authority of the United
States. Otherwise, stark retribution will be free to masquerade in a
cloak of false legalism. And the hatred and cynicism engendered by
that retribution will supplant the great ideals to which this nation is
dedicated.
This Court, fortunately, has taken the first and most important step
toward insuring the supremacy of law and justice in the treatment of
an enemy belligerent accused of violating the laws of war. Jurisdiction

properly has been asserted to inquire "into the cause of restraint of

liberty" of such a person. 28 U.S.C. 452. Thus, the obnoxious
doctrine asserted by the Government in this case -- to the effect that
restraints of liberty resulting from military trials of war criminals are
political matters completely outside the arena of judicial review -- has
been rejected fully and unquestionably. This does not mean, of
course, that the foreign affairs and policies of the nation are proper
subjects of judicial inquiry. But, when the liberty of any person is
restrained by reason of the authority of the United States, the writ of
habeas corpus is available to test the legality of that restraint, even
though direct court review of the restraint is prohibited. The
conclusive presumption must be made, in this country at least, that
illegal restraints are unauthorized and unjustified by any foreign policy
of the Government, and that commonly accepted juridical standards
are to be recognized and enforced. On that basis, judicial inquiry into
these matters may proceed within its proper sphere.
The determination of the extent of review of war trials calls for judicial
statesmanship of the highest order. The ultimate nature and scope of
the writ of habeas corpus are within the discretion of the judiciary
unless validly circumscribed by Congress. Here, we are confronted
with a use of the writ under circumstances novel in the history of the
Page 327 U. S. 31
Court. For my own part, I do not feel that we should be confined by
the traditional lines of review drawn in connection with the use of the
writ by ordinary criminals who have direct access to the judiciary in
the first instance. Those held by the military lack any such access;
consequently the judicial review available by habeas corpus must be
wider than usual in order that proper standards of justice may be
enforceable.
But, for the purposes of this case, I accept the scope of review
recognized by the Court at this time. As I understand it, the following
issues in connection with war criminal trials are reviewable through

the use of the writ of habeas corpus: (1) whether the military
commission was lawfully created and had authority to try and to
convict the accused of a war crime; (2) whether the charge against
the accused stated a violation of the laws of war; (3) whether the
commission, in admitting certain evidence, violated any law or military
command defining the commission's authority in that respect, and (4)
whether the commission lacked jurisdiction because of a failure to
give advance notice to the protecting power as required by treaty or
convention.
The Court, in my judgment, demonstrates conclusively that the
military commission was lawfully created in this instance, and that
petitioner could not object to its power to try him for a recognized war
crime. Without pausing here to discuss the third and fourth issues,
however, I find it impossible to agree that the charge against the
petitioner stated a recognized violation of the laws of war.
It is important, in the first place, to appreciate the background of
events preceding this trial. From October 9, 1944, to September 2,
1945, the petitioner was the Commanding General of the 14th Army
Group of the Imperial Japanese Army, with headquarters in the
Philippines. The reconquest of the Philippines by the armed forces of
the United States began approximately at the time when
Page 327 U. S. 32
the petitioner assumed this command. Combined with a great and
decisive sea battle, an invasion was made on the island of Leyte on
October 20, 1944.
"In the six days of the great naval action, the Japanese position in the
Philippines had become extremely critical. Most of the serviceable
elements of the Japanese Navy had become committed to the battle,
with disastrous results. The strike had miscarried, and General
MacArthur's land wedge was firmly implanted in the vulnerable flank
of the enemy. . . . There were 260,000 Japanese troops scattered
over the Philippines, but most of them might as well have been on the

other side of the world so far as the enemy's ability to shift them to
meet the American thrusts was concerned. If General MacArthur
succeeded in establishing himself in the Visayas, where he could
stage, exploit, and spread under cover of overwhelming naval and air
superiority, nothing could prevent him from overrunning the
Philippines."
Biennial Report of the Chief of Staff of the United States Army, July 1,
1943, to June 30, 1945, to the Secretary of War, p. 74.
By the end of 1944, the island of Leyte was largely in American
hands. And on January 9, 1945, the island of Luzon was invaded.
"Yamashita's inability to cope with General MacArthur's swift moves,
his desired reaction to the deception measures, the guerrillas, and
General Kenney's aircraft, combined to place the Japanese in an
impossible situation. The enemy was forced into a piecemeal
commitment of his troops."
Ibid., p. 78. It was at this time and place that most of the alleged
atrocities took place. Organized resistance around Manila ceased on
February 23. Repeated land and air assaults pulverized the enemy,
and, within a few months, there was little left of petitioner's command
except a few remnants which had gathered for a last stand among
the precipitous mountains.
As the military commission here noted,
"The Defense established the difficulties faced by the Accused with
respect
Page 327 U. S. 33
not only to the swift and overpowering advance of American forces,
but also to the errors of his predecessors, weaknesses in
organization, equipment, supply, with especial reference to food and
gasoline, training, communication, discipline, and morale of his

troops. It was alleged that the sudden assignment of Naval and Air
Forces to his tactical command presented almost insurmountable
difficulties. This situation was followed, the Defense contended, by
failure to obey his orders to withdraw troops from Manila, and the
subsequent massacre of unarmed civilians, particularly by Naval
forces. Prior to the Luzon Campaign, Naval forces had reported to a
separate ministry in the Japanese Government, and Naval
Commanders may not have been receptive or experienced in this
instance with respect to a joint land operation under a single
commander who was designated from the Army Service."
The day of final reckoning for the enemy arrived in August, 1945. On
September 3, the petitioner surrendered to the United States Army at
Baguio, Luzon. He immediately became a prisoner of war, and was
interned in prison in conformity with the rules of international law. On
September 25, approximately three weeks after surrendering, he was
served with the charge in issue in this case. Upon service of the
charge, he was removed from the status of a prisoner of war and
placed in confinement as an accused war criminal. Arraignment
followed on October 8 before a military commission specially
appointed for the case. Petitioner pleaded not guilty. He was also
served on that day with a bill of particulars alleging 64 crimes by
troops under his command. A supplemental bill alleging 59 more
crimes by his troops was filed on October 29, the same day that the
trial began. No continuance was allowed for preparation of a defense
as to the supplemental bill. The trial continued uninterrupted until
December 5, 1945. On December 7 petitioner was found guilty as
charged, and was sentenced to be hanged.
Page 327 U. S. 34
The petitioner was accused of having
"unlawfully disregarded and failed to discharge his duty as
commander to control the operations of the members of his

command, permitting them to commit brutal atrocities and other high

crimes."
The bills of particular further alleged that specific acts of atrocity were
committed by "members of the armed forces of Japan under the
command of the accused." Nowhere was it alleged that the petitioner
personally committed any of the atrocities, or that he ordered their
commission, or that he had any knowledge of the commission thereof
by members of his command.
The findings of the military commission bear out this absence of any
direct personal charge against the petitioner. The commission merely
found that atrocities and other high crimes
"have been committed by members of the Japanese armed forces
under your command . . . ; that they were not sporadic in nature, but,
in many cases, were methodically supervised by Japanese officers
and noncommissioned officers . . . ; that, during the period in
question, you failed to provide effective control of your troops, as was
required by the circumstances."
In other words, read against the background of military events in the
Philippines subsequent to October 9, 1944, these charges amount to
this:
"We, the victorious American forces, have done everything possible
to destroy and disorganize your lines of communication, your
effective control of your personnel, your ability to wage war. In those
respects, we have succeeded. We have defeated and crushed your
forces. And now, we charge and condemn you for having been
inefficient in maintaining control of your troops during the period when
we were so effectively beseiging and eliminating your forces and
blocking your ability to maintain effective control. Many terrible
atrocities were committed by your disorganized troops. Because
these atrocities were so widespread, we will not bother to charge or
prove that you committed, ordered, or

Page 327 U. S. 35
condoned any of them. We will assume that they must have resulted
from your inefficiency and negligence as a commander. In short, we
charge you with the crime of inefficiency in controlling your troops.
We will judge the discharge of your duties by the disorganization
which we ourselves created in large part. Our standards of judgment
are whatever we wish to make them."
Nothing in all history or in international law, at least as far as I am
aware, justifies such a charge against a fallen commander of a
defeated force. To use the very inefficiency and disorganization
created by the victorious forces as the primary basis for condemning
officers of the defeated armies bears no resemblance to justice, or to
military reality.
International law makes no attempt to define the duties of a
commander of an army under constant and overwhelming assault,
nor does it impose liability under such circumstances for failure to
meet the ordinary responsibilities of command. The omission is
understandable. Duties, as well as ability to control troops, vary
according to the nature and intensity of the particular battle. To find
an unlawful deviation from duty under battle conditions requires
difficult and speculative calculations. Such calculations become
highly untrustworthy when they are made by the victor in relation to
the actions of a vanquished commander. Objective and realistic
norms of conduct are then extremely unlikely to be used in forming a
judgment as to deviations from duty. The probability that vengeance
will form the major part of the victor's judgment is an unfortunate but
inescapable fact. So great is that probability that international law
refuses to recognize such a judgment as a basis for a war crime,
however fair the judgment may be in a particular instance. It is this
consideration that undermines the charge against the petitioner in this
case. The indictment permits -- indeed compels -- the military
commission of a victorious nation to

Page 327 U. S. 36
sit in judgment upon the military strategy and actions of the defeated
enemy, and to use its conclusions to determine the criminal liability of
an enemy commander. Life and liberty are made to depend upon the
biased will of the victor, rather than upon objective standards of
conduct.
The Court's reliance upon vague and indefinite references in certain
of the Hague Conventions and the Geneva Red Cross Convention is
misplaced. Thus, the statement in Article 1 of the Annex to Hague
Convention No. IV of October 18, 1907, 36 Stat. 2277, 2295, to the
effect that the laws, rights and duties of war apply to military and
volunteer corps only if they are "commanded by a person responsible
for his subordinates," has no bearing upon the problem in this case.
Even if it has, the clause "responsible for his subordinates" fails to
state to whom the responsibility is owed, or to indicate the type of
responsibility contemplated. The phrase has received differing
interpretations by authorities on international law. In Oppenheim,
International Law (6th ed., rev. by Lauterpacht, 1940, vol. 2, p. 204,
fn. 3) it is stated that
"The meaning of the word 'responsible' . . . is not clear. It probably
means 'responsible to some higher authority,' whether the person is
appointed from above or elected from below. . . ."
Another authority has stated that the word "responsible" in this
particular context means "presumably to a higher authority," or
"possibly it merely means one who controls his subordinates, and
who therefore can be called to account for their acts." Wheaton,
International Law (14th ed., by Keith, 1944, p. 172, fn. 30). Still
another authority, Westlake, International Law (1907, Part II, p. 61),
states that "probably the responsibility intended is nothing more than
a capacity of exercising effective control." Finally, Edwards and
Oppenheim, Land Warfare (1912, p. 19, par. 22) state that it is

enough "if the commander of the corps is regularly or temporarily

commissioned as an officer or is a person of
Page 327 U. S. 37
position and authority." It seems apparent beyond dispute that the
word "responsible" was not used in this particular Hague Convention
to hold the commander of a defeated army to any high standard of
efficiency when he is under destructive attack; nor was it used to
impute to him any criminal responsibility for war crimes committed by
troops under his command under such circumstances.
The provisions of the other conventions referred to by the Court are,
on their face, equally devoid of relevance or significance to the
situation here in issue. Neither Article 19 of Hague Convention No. X,
36 Stat. 2371, 2389, nor Article 26 of the Geneva Red Cross
Convention of 1929, 47 Stat. 2074, 2092, refers to circumstances
where the troops of a commander commit atrocities while under
heavily adverse battle conditions. Reference is also made to the
requirement of Article 43 of the Annex to Hague Convention No. IV,
36 Stat. 2295, 2306, that the commander of a force occupying enemy
territory
"shall take all the measures in his power to restore, and ensure, as
far as possible, public order and safety, while respecting, unless
absolutely prevented, the laws in force in the country."
But the petitioner was more than a commander of a force occupying
enemy territory. He was the leader of an army under constant and
devastating attacks by a superior reinvading force. This provision is
silent as to the responsibilities of a commander under such conditions
as that.
Even the laws of war heretofore recognized by this nation fail to
impute responsibility to a fallen commander for excesses committed
by his disorganized troops while under attack. Paragraph 347 of the
War Department publication, Basic Field Manual, Rules of Land

Warfare, FM 27-10 (1940), states the principal offenses under the

laws of war recognized by the United States. This includes all of the
atrocities which the Japanese troops were alleged to have committed
in this instance. Originally,
Page 327 U. S. 38
this paragraph concluded with the statement that
"The commanders ordering the commission of such acts, or under
whose authority they are committed by their troops, may be punished
by the belligerent into whose hands they may fall."
The meaning of the phrase "under whose authority they are
committed" was not clear. On November 15, 1944, however, this
sentence was deleted and a new paragraph was added relating to the
personal liability of those who violate the laws of war. Change 1, FM
27-10. The new paragraph 345.1 states that
"Individuals and organizations who violate the accepted laws and
customs of war may be punished therefor. However, the fact that the
acts complained of were done pursuant to order of a superior or
government sanction may be taken into consideration in determining
culpability, either by way of defense or in mitigation of punishment.
The person giving such orders may also be punished."
From this, the conclusion seems inescapable that the United States
recognizes individual criminal responsibility for violations of the laws
of war only as to those who commit the offenses or who order or
direct their commission. Such was not the allegation here. Cf. Article
67 of the Articles of War, 10 U.S.C. 1539.
There are numerous instances, especially with reference to the
Philippine Insurrection in 1900 and 1901, where commanding officers
were found to have violated the laws of war by specifically ordering
members of their command to commit atrocities and other war
crimes. Francisco Frani, G.O. 143, Dec. 13, 1900, Hq. Div. Phil.;

Eugenio Fernandez and Juan Soriano, G.O. 28, Feb. 6, 1901,

Hq.Div.Phil.; Ciriaco Cabungal, G.O. 188, Jul. 22, 1901, Hq.Div.Phil.;
Natalio Valencia, G.O. 221, Aug. 17, 1901, Hq.Div.Phil.; Aniceta
Angeles, G.O. 246, Sept. 2, 1901, Hq.Div.Phil.; Francisco Braganza,
G.O. 291, Sept. 26, 1901, Hq.Div.Phil.; Lorenzo Andaya, G.O. 328,
Oct. 25, 1901, Hq.Div.Phil. And, in other cases, officers have been
held
Page 327 U. S. 39
liable where they knew that a crime was to be committed, had the
power to prevent it, and failed to exercise that power. Pedro Abad
Santos, G.O. 130, June 19, 1901, Hq.Div.Phil. Cf. Pedro A. Cruz,
G.O. 264, Sept. 9, 1901, Hq.Div.Phil. In no recorded instance,
however, has the mere inability to control troops under fire or attack
by superior forces been made the basis of a charge of violating the
laws of war.
The Government claims that the principle that commanders in the
field are bound to control their troops has been applied so as to
impose liability on the United States in international arbitrations. Case
of Jeannaud, 1880, 3 Moore, International Arbitrations (1898) 3000;
Case of The Zafiro, 1910, 5 Hackworth, Digest of International Law
(1943) 707. The difference between arbitrating property rights and
charging an individual with a crime against the laws of war is too
obvious to require elaboration. But even more significant is the fact
that even these arbitration cases fail to establish any principle of
liability where troops are under constant assault and demoralizing
influences by attacking forces. The same observation applies to the
common law and statutory doctrine, referred to by the Government,
that one who is under a legal duty to take protective or preventive
action is guilty of criminal homicide if he willfully or negligently omits
to act and death is proximately caused. State v. Harrison, 107 N.J.L.
213, 152 A. 867; State v. Irvine, 126 La. 434, 52 So. 567; Holmes,
The Common Law, p. 278. No one denies that inaction or negligence
may give rise to liability, civil or criminal. But it is quite another thing to

say that the inability to control troops under highly competitive and
disastrous battle conditions renders one guilty of a war crime in the
absence of personal culpability. Had there been some element of
knowledge or direct connection with the atrocities, the problem would
be entirely different. Moreover, it must be remembered that we are
not dealing
Page 327 U. S. 40
here with an ordinary tort or criminal action; precedents in those fields
are of little if any value. Rather, we are concerned with a proceeding
involving an international crime, the treatment of which may have
untold effects upon the future peace of the world. That fact must be
kept uppermost in our search for precedent.
The only conclusion I can draw is that the charge made against the
petitioner is clearly without precedent in international law or in the
annals of recorded military history. This is not to say that enemy
commanders may escape punishment for clear and unlawful failures
to prevent atrocities. But that punishment should be based upon
charges fairly drawn in light of established rules of international law
and recognized concepts of justice.
But the charge in this case, as previously noted, was speedily drawn
and filed but three weeks after the petitioner surrendered. The trial
proceeded with great dispatch, without allowing the defense time to
prepare an adequate case. Petitioner's rights under the due process
clause of the Fifth Amendment were grossly and openly violated
without any justification. All of this was done without any thorough
investigation and prosecution of those immediately responsible for
the atrocities, out of which might have come some proof or indication
of personal culpability on petitioner's part. Instead the loose charge
was made that great numbers of atrocities had been committed and
that petitioner was the commanding officer; hence he must have been
guilty of disregard of duty. Under that charge the commission was
free to establish whatever standard of duty on petitioner's part that it

desired. By this flexible method a victorious nation may convict and

execute any or all leaders of a vanquished foe, depending upon the
prevailing degree of vengeance and the absence of any objective
judicial review.
At a time like this when emotions are understandably high it is difficult
to adopt a dispassionate attitude toward
Page 327 U. S. 41
a case of this nature. Yet now is precisely the time when that attitude
is most essential. While peoples in other lands may not share our
beliefs as to due process and the dignity of the individual, we are not
free to give effect to our emotions in reckless disregard of the rights
of others. We live under the Constitution, which is the embodiment of
all the high hopes and aspirations of the new world. And it is
applicable in both war and peace. We must act accordingly. Indeed,
an uncurbed spirt of revenge and retribution, masked in formal legal
procedure for purposes of dealing with a fallen enemy commander,
can do more lasting harm than all of the atrocities giving rise to that
spirit. The people's faith in the fairness and objectiveness of the law
can be seriously undercut by that spirit. The fires of nationalism can
be further kindled. And the hearts of all mankind can be embittered
and filled with hatred, leaving forlorn and impoverished the noble
ideal of malice toward none and charity to all. These are the reasons
that lead me to dissent in these terms.
MR. JUSTICE RUTLEDGE, dissenting.
Not with ease does one find his views at odds with the Court's in a
matter of this character and gravity. Only the most deeply felt
convictions could force one to differ. That reason alone leads me to
do so now, against strong considerations for withholding dissent.
More is at stake than General Yamashita's fate. There could be no
possible sympathy for him if he is guilty of the atrocities for which his
death is sought. But there can be and should be justice administered

according to law. In this stage of war's aftermath, it is too early for

Lincoln's great spirit, best lighted in the Second Inaugural, to have
wide hold for the treatment of foes. It is not too early -- it is never too
early -- for the nation steadfastly to follow its great constitutional
traditions, none older or more universally protective against unbridled
power than due process
Page 327 U. S. 42
of law in the trial and punishment of men -- that is, of all men, whether
citizens, aliens, alien enemies, or enemy belligerents. It can become
too late.
This long held attachment marks the great divide between our
enemies and ourselves. Theirs was a philosophy of universal force.
Ours is one of universal law, albeit imperfectly made flesh of our
system and so dwelling among us. Every departure weakens the
tradition, whether it touches the high or the low, the powerful or the
weak, the triumphant or the conquered. If we need not or cannot be
magnanimous, we can keep our own law on the plane from which it
has not descended hitherto and to which the defeated foes' never
rose.
With all deference to the opposing views of my brethren, whose
attachment to that tradition needless to say is no less than my own, I
cannot believe in the face of this record that the petitioner has had
the fair trial our Constitution and laws command. Because I cannot
reconcile what has occurred with their measure, I am forced to speak.
At bottom, my concern is that we shall not forsake in any case,
whether Yamashita's or another's, the basic standards of trial which,
among other guaranties, the nation fought to keep; that our system of
military justice shall not, alone among all our forms of judging, be
above or beyond the fundamental law or the control of Congress
within its orbit of authority, and that this Court shall not fail in its part
under the Constitution to see that these things do not happen.

This trial is unprecedented in our history. Never before have we tried

and convicted an enemy general for action taken during hostilities or
otherwise in the course of military operations or duty. Much less have
we condemned one for failing to take action. The novelty is not
lessened by the trial's having taken place after hostilities ended and
the enemy, including the accused, had surrendered. Moreover, so far
as the time permitted for our
Page 327 U. S. 43
consideration has given opportunity, I have not been able to find
precedent for the proceeding in the system of any nation founded in
the basic principles of our constitutional democracy, in the laws of
war, or in other internationally binding authority or usage.
The novelty is legal, as well as historical. We are on strange ground.
Precedent is not all-controlling in law. There must be room for growth,
since every precedent has an origin. But it is the essence of our
tradition for judges, when they stand at the end of the marked way, to
go forward with caution keeping sight, so far as they are able, upon
the great landmarks left behind and the direction they point ahead. If,
as may be hoped, we are now to enter upon a new era of law in the
world, it becomes more important than ever before for the nations
creating that system to observe their greatest traditions of
administering justice, including this one, both in their own judging and
in their new creation. The proceedings in this case veer so far from
some of our time-tested road signs that I cannot take the large strides
validating them would demand.
I
It is not in our tradition for anyone to be charged with crime which is
defined after his conduct, alleged to be criminal, has taken place,
[Footnote 2/1] or in language not sufficient to inform him of the nature
of the offense or to enable him to make defense. [Footnote 2/2] Mass
guilt we do not impute to individuals, perhaps in any case, but

certainly in none where the person is not charged or shown actively

to have participated in or knowingly to have failed in taking action to
Page 327 U. S. 44
prevent the wrongs done by others, having both the duty and the
power to do so.
It is outside our basic scheme to condemn men without giving
reasonable opportunity for preparing defense; [Footnote 2/3] in
capital or other serious crimes, to convict on "official documents . . . ;
affidavits; . . . documents or translations thereof; diaries . .
photographs, motion picture films, and . . . newspapers" [Footnote
2/4] or on hearsay, once, twice or thrice removed, [Footnote 2/5]
more particularly when the documentary evidence or some of it is
prepared ex parte by the prosecuting authority and includes not only
opinion but conclusions of guilt. Nor in such cases do we deny the
rights of confrontation of witnesses and cross-examination. [Footnote
2/6]
Our tradition does not allow conviction by tribunals both authorized
and bound [Footnote 2/7] by the instrument of their creation to
receive and consider evidence which is expressly excluded by Act of
Congress or by treaty obligation; nor is it in accord with our basic
concepts to make the tribunal, specially constituted for the particular
trial, regardless of those prohibitions, the sole and exclusive judge of
the credibility,
Page 327 U. S. 45
probative value, and admissibility of whatever may be tendered as
evidence.
The matter is not one merely of the character and admissibility of
evidence. It goes to the very competency of the tribunal to try and
punish consistently with the Constitution, the laws of the United

States made in pursuance thereof, and treaties made under the

nation's authority.
All these deviations from the fundamental law, and others, occurred in
the course of constituting the commission, the preparation for trial
and defense, the trial itself, and therefore, in effect, in the sentence
imposed. Whether taken singly in some instances as departures from
specific constitutional mandates or in totality as in violation of the Fifth
Amendment's command that no person shall be deprived of life,
liberty or property without due process of law, a trial so vitiated cannot
withstand constitutional scrutiny.
One basis protection of our system, and one only, petitioner has had.
He has been represented by able counsel, officers of the army he
fought. Their difficult assignment has been done with extraordinary
fidelity not only to the accused, but to their high conception of military
justice, always to be administered in subordination to the Constitution
and consistent Acts of Congress and treaties. But, as will appear,
even this conceded shield was taken away in much of its value by
denial of reasonable opportunity for them to perform their function.
On this denial and the commission's invalid constitution specifically,
but also more generally upon the totality of departures from
constitutional norms inherent in the idea of a fair trial, I rest my
judgment that the commission was without jurisdiction from the
beginning to try or punish the petitioner, and that, if it had acquired
jurisdiction then, its power to proceed was lost in the course of what
was done before and during trial.
Only on one view, in my opinion, could either of these conclusions be
avoided. This would be that an enemy
Page 327 U. S. 46
belligerent in petitioner's position is altogether beyond the pale of
constitutional protection, regardless of the fact that hostilities had
ended and he had surrendered with his country. The Government has

so argued, urging that we are still at war with Japan, and all the
power of the military effective during active hostilities in theaters of
combat continues in full force, unaffected by the events of August 14,
1945, and after.
In this view, the action taken here is one of military necessity,
exclusively within the authority of the President as Commander-inChief and his military subordinates to take in warding off military
danger and subject to no judicial restraint on any account, although,
somewhat inconsistently, it is said this Court may "examine" the
proceedings generally.
As I understand the Court, this is in substance the effect of what has
been done. For I cannot conceive any instance of departure from our
basic concepts of fair trial if the failures here are not sufficient to
produce that effect.
We are technically still at war, because peace has not been
negotiated finally or declared. But there is no longer the danger which
always exists before surrender and armistice. Military necessity does
not demand the same measures. The nation may be more secure
now than at any time after peace is officially concluded. In these facts
is one great difference from Ex parte Quirin, 317 U. S. 1. Punitive
action taken now can be effective only for the next war, for purposes
of military security. And enemy aliens, including belligerents, need the
attenuated protections our system extends to them more now than
before hostilities ceased or than they may after a treaty of peace is
signed. Ample power there is to punish them or others for crimes,
whether under the laws of war during its course or later during
occupation. There can be no question of that. The only question is
how it shall be done, consistently
Page 327 U. S. 47
with universal constitutional commands or outside their restricting
effects. In this sense, I think the Constitution follows the flag.

The other thing to be mentioned in order to be put aside is that we

have no question here of what the military might have done in a field
of combat. There, the maxim about the law becoming silent in the
noise of arms applies. The purpose of battle is to kill. But it does not
follow that this would justify killing by trial after capture or surrender,
without compliance with laws or treaties made to apply in such cases,
whether trial is before or after hostilities end.
I turn now to discuss some of the details of what has taken place. My
basic difference is with the Court's view that provisions of the Articles
of War and of treaties are not made applicable to this proceeding,
and with its ruling that, absent such applicable provisions, none of the
things done so vitiated the trial and sentence as to deprive the
commission of jurisdiction.
My Brother MURPHY has discussed the charge with respect to the
substance of the crime. With his conclusions in this respect, I agree.
My own primary concern will be with the constitution of the
commission and other matters taking place in the course of the
proceedings, relating chiefly to the denial of reasonable opportunity to
prepare petitioner's defense and the sufficiency of the evidence,
together with serious questions of admissibility, to prove on offense,
all going, as I think, to the commission's jurisdiction.
Necessarily, only a short sketch can be given concerning each
matter. And it may be stated at the start that, although it was ruled
in Ex parte Quirin, supra, that this Court had no function to review the
evidence, it was not there or elsewhere determined that it could not
ascertain whether conviction is founded upon evidence expressly
excluded by Congress or treaty; nor does the Court purport to do so
now.
Page 327 U. S. 48
II
Invalidity of the Commission's Constitution

The fountainhead of the commission's authority was General

MacArthur's directive by which General Styer was ordered to and
pursuant to which he did proceed with constituting the commission.
[Footnote 2/8] The directive was accompanied by elaborate and
detailed rules and regulations prescribing the procedure and rules of
evidence to be followed, of which, for present purposes, Section 16,
set forth below, [Footnote 2/9] is crucial.
Page 327 U. S. 49
Section 16, as will be noted, permits reception of documents, reports,
affidavits, depositions, diaries, letters, copies of documents or other
secondary evidence of their contents, hearsay, opinion evidence and
conclusions -- in fact, of anything which, in the commission's opinion,
"would be of assistance in proving or disproving the charge," without
any of the usual modes of authentication.
A more complete abrogation of customary safeguards relating to the
proof, whether in the usual rules of evidence or any reasonable
substitute and whether for use in the trial of crime in the civil courts or
military tribunals, hardly could have been made. So far as the
admissibility and probative value of evidence was concerned, the
directive made the commission a law unto itself.
It acted accordingly. As against insistent and persistent objection to
the reception of all kinds of "evidence," oral, documentary and
photographic, for nearly every kind of defect under any of the usual
prevailing standards for admissibility and probative value, the
commission not only consistently ruled against the defense, but
repeatedly stated it was bound by the directive to receive the kinds of
evidence it specified, [Footnote 2/10] reprimanded counsel for
continuing to make objection, declined to hear further objections, and,
in more than one instance during the course of the proceedings,
reversed its rulings favorable to the defense where initially it had
declined to receive what the prosecution offered. Every conceivable
kind of statement, rumor, report at first, second, third or further hand,

written, printed, or oral, and one "propaganda" film were allowed to

come in, most of this relating to atrocities committed
Page 327 U. S. 50
by troops under petitioner's command throughout the several
thousand islands of the Philippine Archipelago during the period of
active hostilities covered by the American forces' return to and
recapture of the Philippines. [Footnote 2/11]
The findings reflect the character of the proof and the charge. The
statement quoted above [Footnote 2/12] gives only a numerical idea
of the instances in which ordinary safeguards in reception of written
evidence were ignored. In addition to these 423 "exhibits," the
findings state the commission "has heard 286 persons during the
course of this trial, most of whom have given eye-witness accounts of
what they endured or what they saw."
But there is not a suggestion in the findings that petitioner personally
participated in, was present at the occurrence of, or ordered any of
these incidents, with the exception of the wholly inferential suggestion
noted below. Nor is there any express finding that he knew of any one
of the incidents in particular or of all taken together. The only
inferential findings that he had knowledge, or that the commission so
found, are in the statement that "the crimes alleged to have been
permitted by the accused in violation of the laws of war may be
grouped into three categories" set out below, [Footnote 2/13] in the
further statement that
"the prosecution
Page 327 U. S. 51
presented evidence to show that the crimes were so extensive and so
widespread, both as to time and area, [Footnote 2/14] that they must
either have been willfully permitted by the accused or secretly
ordered by"

him, and in the conclusion of guilt and the sentence. [Footnote 2/15]
(Emphasis added.) Indeed, the commission's ultimate findings
[Footnote 2/16] draw no express conclusion of knowledge, but state
only two things: (1) the fact of widespread atrocities and crimes; (2)
that petitioner "failed to provide effective control . . . as required by
the circumstances."
This vagueness, if not vacuity, in the findings runs throughout the
proceedings, from the charge itself, through the proof and the
findings, to the conclusion. It affects
Page 327 U. S. 52
the very gist of the offense -- whether that was willful, informed, and
intentional omission to restrain and control troops known by petitioner
to be committing crimes, or was only a negligent failure on his part to
discover this and take whatever measures he then could to stop the
conduct.
Although it is impossible to determine from what is before us whether
petitioner in fact has been convicted of one or the other or of both
these things, [Footnote 2/17] the case has been
Page 327 U. S. 53
presented on the former basis and, unless, as is noted below, there is
fatal duplicity, it must be taken that the crime charged and sought to
be proved was only the failure, with knowledge, to perform the
commander's function of control, although the Court's opinion
nowhere expressly declares that knowledge was essential to guilt or
necessary to be set forth in the charge.
It is in respect to this feature especially, quite apart from the reception
of unverified rumor, report, etc., that perhaps the greatest prejudice
arose from the admission of untrustworthy, unverified,
unauthenticated evidence which could not be probed by cross-

examination or other means of testing credibility, probative value, or

authenticity.
Counsel for the defense have informed us in the brief and at the
argument that the sole proof of knowledge introduced at the trial was
in the form of ex parte affidavits and depositions. Apart from what has
been excerpted from the record in the applications and the briefs and
such portions of the record as I have been able to examine, it has
been impossible for me fully to verify counsel's statement in this
respect. But the Government has not disputed it, and it has
maintained that we have no right to examine the record upon any
question "of evidence." Accordingly, without concession to that view,
the statement of counsel is taken for the fact . And, in that state of
things, petitioner has been convicted of a crime in which knowledge is
an essential element, with no proof of knowledge other than what
would be inadmissible in any other capital case or proceeding under
our system, civil or military, and which, furthermore, Congress has
expressly commanded shall not be received in such cases tried by
military commissions and other military tribunals. [Footnote 2/18]
Moreover, counsel assert in the brief, and this also is not denied, that
the sole proof made of certain of the specifications
Page 327 U. S. 54
in the bills of particulars was by ex parte affidavits. It was in relation to
this also vital phase of the proof that there occurred one of the
commission's reversals of its earlier rulings in favor of the defense
[Footnote 2/19] -- a fact, in itself, conclusive demonstration of the
necessity to the prosecution's case of the prohibited type of evidence
and of its prejudicial effects upon the defense.
These two basic elements in the proof -- namely, proof of knowledge
of the crimes and proof of the specifications in the bills, that is, of the
atrocities themselves -- constitute the most important instances,
perhaps, if not the most flagrant, [Footnote 2/20]

Page 327 U. S. 55
of departure not only from the express command of Congress against
receiving such proof, but from the whole British-American tradition of
the common law and the Constitution. Many others occurred which
there is neither time nor space to mention. [Footnote 2/21]
Petitioner asserts, and there can be no reason to doubt, that, by the
use of all this forbidden evidence, he was deprived of the right of
cross-examination and other means to establish the credibility of the
deponents or affiants, not to speak of the authors of reports, letters,
documents, and newspaper articles; of opportunity to determine
whether the multitudinous crimes specified in the bills were
committed in fact by troops under his command or by naval or air
force troops not under his command at the time alleged; to ascertain
whether the crimes attested were isolated acts of individual soldiers
or were military acts committed by troop units acting under
supervision of officers; and, finally, whether, "in short, there was such
a pattern' of conduct as the prosecution alleged and its whole theory
of the crime and the evidence required to be made out."
He points out in this connection that the commission based its
decision on a finding as to the extent and number
Page 327 U. S. 56
of the atrocities, and that this, of itself, establishes the prejudicial
effect of the affidavits, etc., and of the denial resulting from their
reception of any means of probing the evidence they contained,
including all opportunity for cross-examination. Yet it is said there is
no sufficient showing of prejudice. The effect could not have been
other than highly prejudicial. The matter is not one merely of "rules of
evidence." It goes, as will appear more fully later, to the basic right of
defense, including some fair opportunity to test probative value.
Insufficient as this recital is to give a fair impression of what was
done, it is enough to show that this was no trial in the traditions of the

common law and the Constitution. If the tribunal itself was not strange
to them otherwise, it was in its forms and modes of procedure, in the
character and substance of the evidence it received, in the denial of
all means to the accused and his counsel for testing the evidence, in
the brevity and ambiguity of its findings made upon such a mass of
material, and, as will appear, in the denial of any reasonable
opportunity for preparation of the defense. Because this last
deprivation not only is important in itself, but is closely related to the
departures from all limitations upon the character of and modes of
making the proof, it will be considered before turning to the important
legal questions relating to whether all these violations of our traditions
can be brushed aside as not forbidden by the valid Acts of Congress,
treaties, and the Constitution, in that order. If all these traditions can
be so put away, then indeed will we have entered upon a new but
foreboding era of law.
III
Denial of Opportunity to Prepare Defense
Petitioner surrendered September 3, 1945, and was interned as a
prisoner of war in conformity with Article 9
Page 327 U. S. 57
of the Geneva Convention of July 27, 1929. [Footnote 2/22] He was
served with the charge on September 25, and put in confinement as
an accused war criminal. On October 8, he was arraigned, and
pleaded not guilty. On October 29, the trial began, and it continued
until December 7, when sentence was pronounced, exactly four
years, almost to the hour, from the attack on Pearl Harbor.
On the day of arraignment, October 8, three weeks before the trial
began, petitioner was served with a bill of particulars specifying 64
items setting forth a vast number of atrocities and crimes allegedly
committed by troops under his command. [Footnote 2/23] The six
officers appointed as defense counsel thus had three weeks -- it is

true, at the prosecution's suggestion, a week longer than they sought

at first -- to investigate and prepare to meet all these items and the
large number of incidents they embodied, many of which had
occurred in distant islands of the archipelago. There is some question
whether they then anticipated the full scope and character of the
charge or the evidence they would have to meet. But, as will appear,
they worked night and day at the task. Even so, it would have been
impossible to do thoroughly had nothing more occurred.
But there was more. On the first day of the trial, October 29, the
prosecution filed a supplemental bill of particulars
Page 327 U. S. 58
containing 59 more specifications of the same general character,
involving perhaps as many incidents occurring over an equally wide
area. [Footnote 2/24] A copy had been given the defense three days
earlier. One item, No. 89, charged that American soldiers, prisoners
of war, had been tried and executed without notice having been given
to the protecting power of the United States in accordance with the
requirements of the Geneva Convention, which it is now argued,
strangely, the United States was not required to observe as to
petitioner's trial. [Footnote 2/25]
But what is more important is that defense counsel, as they felt was
their duty, at once moved for a continuance. [Footnote 2/26] The
application was denied. However the commission indicated that if, at
the end of the prosecution's presentation
Page 327 U. S. 59
concerning the original bill, counsel should "believe they require
additional time . . . , the Commission will consider such a motion at
that time," before taking up the items of the supplemental bill.
Counsel again indicated, without other result, that time was desired at
once "as much, if not more" to prepare for cross-examination "as the
Prosecutor's case goes in" as to prepare affirmative defense.

On the next day, October 30, the commission interrupted the

prosecutor to say it would not then listen to testimony or discussion
upon the supplemental bill. After colloquy, it adhered to its prior ruling
and, in response to inquiry from the prosecution, the defense
indicated it would require two weeks before it could proceed on the
supplemental bill. On November 1, the commission ruled it would not
receive affidavits without corroboration by witnesses on any
specification, a ruling reversed four days later.
On November 2, after the commission had received an affirmative
answer to its inquiry whether the defense was prepared to proceed
with an item in the supplemental bill which the prosecution proposed
to prove, it announced:
"Hereafter, then, unless there is no [sic] objection by the Defense, the
Commission will assume that you are prepared to proceed with any
items in the Supplemental Bill."
On November 8, the question arose again upon the prosecution's
inquiry as to when the defense would be ready to proceed on the
supplemental bill, the prosecutor adding:
"Frankly, sir, it took the War Crimes Commission some three months
to investigate these matters, and I cannot conceive of the Defense
undertaking a similar investigation with any less period of time."
Stating it realized "the tremendous burden which we have placed on
the Defense" and its "determination to give them the time they
require," the commission again adhered to its ruling of October 29.
Page 327 U. S. 60
Four days later, the commission announced it would grant a
continuance "only for the most urgent and unavoidable reasons."
[Footnote 2/27]

On November 20, when the prosecution rested, senior defense

counsel moved for a reasonable continuance, recalling the
commission's indication that it would then consider such a motion and
stating that, since October 29, the defense had been "working night
and day," with "no time whatsoever to prepare any affirmative
defense," since counsel had been fully occupied trying "to keep up
with the new Bill of Particulars."
The commission thereupon retired for deliberation and, on resuming
its sessions shortly, denied the motion. Counsel then asked for "a
short recess of a day." The commission suggested a recess until 1:30
in the afternoon. Counsel responded this would not suffice. The
commission stated it felt "that the Defense should be prepared, at
least on its opening statement," to which senior counsel answered:
"We haven't had time to do that, sir." The commission then recessed
until 8:30 the following morning.
Further comment is hardly required. Obviously the burden placed
upon the defense, in the short time allowed for preparation on the
original bill, was not only "tremendous." In view of all the facts, it was
an impossible one, even though the time allowed was a week longer
than asked. But the grosser vice was later, when the burden was
more than doubled by service of the supplemental bill on the eve of
trial, a procedure which, taken in connection with the consistent
denials of continuance and the commission's later reversal of its
rulings favorable to the defense
Page 327 U. S. 61
was wholly arbitrary, cutting off the last vestige of adequate chance to
prepare defense and imposing a burden the most able counsel could
not bear. This sort of thing has no place in our system of justice, civil
or military. Without more, this wide departure from the most
elementary principles of fairness vitiated the proceeding. When
added to the other denials of fundamental right sketched above, it

deprived the proceeding of any semblance of trial as we know that

institution.
IV
Applicability of the Articles of War
The Court's opinion puts the proceeding and the petitioner, insofar as
any rights relating to his trial and conviction are concerned, wholly
outside the Articles of War. In view of what has taken place, I think
the decision's necessary effect is also to place them entirely beyond
limitation and protection, respectively, by the Constitution. I disagree
as to both conclusions or effects.
The Court rules that Congress has not made Article 25 and 38
applicable to this proceeding. It think it has made them applicable to
this and all other military commissions or tribunals. If so, the
commission not only lost all power to punish petitioner by what
occurred in the proceedings. It never acquired jurisdiction to try him.
For the directive by which it was constituted, in the provisions of
Section 16, [Footnote 2/28] was squarely in conflict with Articles 25
and 38 of the Articles of War, [Footnote 2/29] and therefore was void.
Page 327 U. S. 62
Article 25 allows reading of depositions in evidence, under prescribed
conditions, in the plainest terms "before any military court or
commission in any case not capital," providing, however, that
"testimony by deposition may be adduced for the defense in capital
cases." (Emphasis added.) This language clearly and broadly covers
every kind of military tribunal, whether "court" or "commission." It
covers all capital cases. It makes no exception or distinction for any
accused.
Article 38 authorizes the President, by regulations, to prescribe
procedure, including modes of proof, even more all-inclusively, if
possible, "in cases before courts-martial, courts of inquiry, military

commissions, and other military tribunals." Language could not be

more broadly inclusive. No exceptions are mentioned or suggested,
whether of tribunals or of accused persons. Every kind of military
body for performing the function of trial is covered. That is clear from
the face of the Article.
Article 38, moreover, limits the President's power. He is, so far as
practicable, to prescribe "the rules of evidence generally recognized
in the trial of criminal cases in the
Page 327 U. S. 63
district courts of the United States," a clear mandate that Congress
intended all military trials to conform as closely as possible to our
customary procedural and evidentiary protections, constitutional and
statutory, for accused persons. But there are also two unqualified
limitations, one "that nothing contrary to or inconsistent with these
articles (specifically here Article 25) shall be so prescribed," the other
"that all rules made in pursuance of this article shall be laid before the
Congress annually."
Notwithstanding these broad terms, the Court, resting chiefly on
Article 2, concludes the petitioner was not among the persons there
declared to be subject to the Articles of War, and therefore the
commission which tries him is not subject to them. That Article does
not cover prisoners of war or war criminals. Neither does it cover
civilians in occupied territories, theaters of military operations, or
other places under military jurisdiction within or without the United
States or territory subject to its sovereignty, whether they be neutrals
or enemy aliens, even citizens of the United States, unless they are
connected in the manner Article 2 prescribes with our armed forces,
exclusive of the Navy.
The logic which excludes petitioner on the basic that prisoners of war
are not mentioned in Article 2 would exclude all these. I strongly
doubt the Court would go so far, if presented with a trial like this in
such instances. Nor does it follow necessarily that, because some

persons may not be mentioned in Article 2, they can be tried without

regard to any of the limitations placed by any of the other Articles
upon military tribunals.
Article 2, in defining persons "subject to the articles of war," was, I
think, specifying those to whom the Articles in general were
applicable. And there is no dispute that most of the Articles are not
applicable to the petitioner. It does not follow, however, and Article 2
does not provide, that there may not be in the Articles specific
provisions
Page 327 U. S. 64
covering persons other than those specified in Article 2. Had it so
provided, Article 2 would have been contradictory not only of Articles
25 and 38, but also of Article 15, among others.
In 1916, when the last general revision of the Articles of War took
place, [Footnote 2/30] for the first time, certain of the Articles were
specifically made applicable to military commissions. Until then, they
had applied only to courts-martial. There were two purposes -- the
first to give statutory recognition to the military commission without
loss of prior jurisdiction, and the second to give those tried before
military commissions some of the more important protections afforded
persons tried by courts-martial.
In order to effectuate the first purpose, the Army proposed Article 15.
[Footnote 2/31] To effectuate the second purpose, Articles
Page 327 U. S. 66
25 and 38 and several others were proposed. [Footnote 2/32] But, as
the Court now construes the Articles of War, they have no application
to military commissions before which alleged offenders against the
laws of war are tried. What the Court holds, in effect, is that there are
two types of military commissions, one to try offenses which might be
cognizable by a court-martial, the other to try war crimes, and that

Congress intended the Articles of War referring in terms to military

commissions without exception to be applicable only to the first type.
Page 327 U. S. 67
This misconceives both the history of military commissions and the
legislative history of the Articles of War. There is only one kind of
military commission. It is true, as the history noted shows, that what is
now called "the military commission" arose from two separate military
courts instituted during the Mexican War. The first military court,
called by General Scott a "military commission," was given
jurisdiction in Mexico over criminal offenses of the class cognizable
by civil courts in time of peace. The other military court, called a
"counsel of war" was given jurisdiction over offenses against the laws
of war. Winthrop, Military Law and Precedents (2d ed., reprinted
1920) *1298-1299. During the Civil War,
"the two jurisdictions of the earlier commission and council
respectively . . . [were] united in the . . . war court, for which the
general designation of 'military commission' was retained as the
preferable one."
Winthrop, supra at *1299. Since that time, there has been only one
type of military tribunal, called the military commission, though it may
exercise different kinds of jurisdiction, [Footnote 2/33] according to
the circumstances under which and purposes for which it is
convened.
The testimony of General Crowder is perhaps the most authoritative
evidence of what was intended by the legislation,
Page 327 U. S. 68
for he was its most active official sponsor, spending years in securing
its adoption and revision. Articles 15, 25, and 38 particularly are
traceable to his efforts. His concern to secure statutory recognition for
military commissions was equalled by his concern that the statutory

provisions giving this should not restrict their preexisting jurisdiction.

He did not wish, by securing additional jurisdiction, overlapping
partially that of the court-martial, to surrender other. Hence, Article 15.
That Article had one purpose and one only. It was to make sure that
the acquisition of partially concurrent jurisdiction with courts-martial
should not cause loss of any other. And it was jurisdiction, not
procedure, which was covered by other Articles with which he and
Congress were concerned in that Article. It discloses no purpose to
deal in any way with procedure or to qualify Articles 25 and 38. And it
is clear that General Crowder at all times regarded all military
commissions as being governed by the identical procedure. In fact,
so far as Articles 25 and 38 are concerned, this seems obvious for all
types of military tribunals. The same would appear to be true of other
Articles also, e.g., 24, (prohibiting compulsory self-incrimination), 26,
27, 32 (contempts), all except the last dealing with procedural
matters.
Article 12 is especially significant. It empowers general courts-martial
to try two classes of offenders: (1) "any person subject to military
law," under the definition of Article 2, for any offense "made
punishable by these articles;" (2) "and any other person who by the
law of war is subject to trial by military tribunals," not covered by the
terms of Article 2. (Emphasis added.)
Article 12 thus, in conformity with Article 15, gives the general courtmartial concurrent jurisdiction of war crimes and war criminals with
military commissions. Neither it nor any other Article states or
indicates there are to be twokinds of general courts-martial for trying
war crimes; yet
Page 327 U. S. 69
this is the necessary result of the Court's decision, unless, in the
alternative, that would be to imply that, in exercising such jurisdiction,
there is only one kind of general court-martial, but there are two or
more kinds of military commission, with wholly different procedures

and with the result that "the commander in the field" will not be free to
determine whether general court-martial or military commission shall
be used as the circumstances may dictate, but must govern his
choice by the kind of procedure he wishes to have employed.
The only reasonable and, I think, possible conclusion to draw from
the Articles is that the Articles which are in terms applicable to military
commissions are so uniformly, and those applicable to both such
commissions and to courts-martial when exercising jurisdiction over
offenders against the laws of war likewise are uniformly, applicable,
and not diversely according to the person or offense being tried.
Not only the face of the Articles, but specific statements in General
Crowder's testimony support this view. Thus, in the portion quoted
above [Footnote 2/34] from his 1916 statement, after stating
expressly the purpose of Article 15 to preserve unimpaired the
military commission's jurisdiction, and to make it concurrent with that
of courts-martial insofar as the two would overlap, "so that the military
commander in the field in time of war will be at liberty to employ either
form of court that happens to be convenient," he went on to say:
"Both classes of courts have the same procedure," a statement so
unequivocal as to leave no room for question. And his quotation from
Winthrop supports his statement, namely: "Its (i.e., the military
commission's) composition, constitution and procedure follow the
analogy of courts-martial."
At no point in the testimony is there suggestion that there are two
types of military commission, one bound by
Page 327 U. S. 70
the procedural provisions of the Articles, the other wholly free from
their restraints, or, as the Court strangely puts the matter, that there is
only one kind of commission, but that it is bound or not bound by the
Articles applicable in terms, depending upon who is being tried and
for what offense; for that very difference makes the difference
between one and two. The history and the discussion show

conclusively that General Crowder wished to secure, and Congress

intended to give, statutory recognition to all forms of military tribunals;
to enable commanding officers in the field to use either court-martial
or military commission as convenience might dictate, thus broadening
to this extent the latter's jurisdiction and utility; but, at the same time,
to preserve its full preexisting jurisdiction, and also to lay down
identical provisions for governing or providing for the government of
the procedure and rules of evidence of every type of military tribunal,
wherever and however constituted. [Footnote 2/35]
Page 327 U. S. 71
Finally, unless Congress was legislating with regard to all military
commissions, Article 38, which gives the President the power to
"prescribe the procedure, including modes of proof, in cases before
courts-martial, courts of inquiry, military commissions, and other
military tribunals" takes on a rather senseless meaning, for the
President would have such power only with respect to those military
commissions exercising concurrent jurisdiction with courts-martial.
All this seems so obvious upon a mere reading of the Articles
themselves and the legislative history as not to require
demonstration. And all this Congress knew, as that history shows. In
the face of that showing, I cannot accept the Court's highly strained
construction, first, because I think it is in plain contradiction of the
facts disclosed by the history of Articles 15, 25 and 38 as well as their
language, and also because that construction defeats at least two of
the ends General Crowder had in mind -- namely, to secure statutory
recognition for every form of military tribunal and to provide for them a
basic uniform
Page 327 U. S. 72
mode of procedure or method of providing for their procedure.
Accordingly, I think Articles 25 and 38 are applicable to this
proceeding; that the provisions of the governing directive in Section

16 are in direct conflict with those Articles, and, for that reason, the
commission was invalidly constituted, was without jurisdiction, and its
sentence is therefore void.
V
The Geneva Convention of 1929
If the provisions of Articles 25 and 38 were not applicable to the
proceeding by their own force as Acts of Congress, I think they would
still be made applicable by virtue of the terms of the Geneva
Convention of 1929, in particular, Article 63. And in other respects, in
my opinion, the petitioner's trial was not in accord with that treaty,
namely with Article 60.
The Court does not hold that the Geneva Convention is not binding
upon the United States, and no such contention has been made in
this case. [Footnote 2/36] It relies on other
Page 327 U. S. 73
arguments to show that Article 60, which provides that the protecting
power shall be notified in advance of a judicial proceeding directed
against a prisoner of war, and Article 63, which provides that a
prisoner of war may be tried only by the same courts and according
to the same procedure as in the case of persons belonging to the
armed forces of the detaining power, are not properly invoked by the
petitioner. Before considering the Court's view that these Articles are
not applicable to this proceeding by their terms, it may be noted that,
on his surrender, petitioner was interned in conformity with Article 9 of
this Convention.
Page 327 U. S. 74
The chief argument is that Articles 60 and 63 have reference only to
offenses committed by a prisoner of war while a prisoner of war, and
not to violations of the law of war committed while a combatant. This

conclusion is derived from the setting in which these articles are

placed. I do not agree that the context gives any support to this
argument. The argument is, in essence, of the same type as the
argument the Court employs to nullify the application of Articles 25
and 38 of the Articles of War by restricting their own broader
coverage by reference to Article 2. For reasons set forth in the
margin, [Footnote 2/37] I think it equally invalid here.
Page 327 U. S. 76
Neither Article 60 nor Article 63 contains such a restriction of meaning
as the Court reads into it. [Footnote 2/38] In the absence of any such
limitation, it would seem that they were intended to cover all judicial
proceedings, whether instituted for crimes allegedly committed before
capture or later. Policy supports this view. For such a construction is
require for the security of our own soldiers, taken prisoner, as much
as for that of prisoners we take. And the opposite one leaves
prisoners of war open to any form of trial and punishment for offenses
against the law of war their captors may wish to use, while
safeguarding them, to the extent of the treaty limitations, in cases of
disciplinary offense. This, in many instances, would be to make the
treaty strain at a gnat and swallow the camel.
The United States has complied with neither of these Articles. It did
not notify the protecting power of Japan in advance of trial, as Article
60 requires it to do, although the supplemental bill charges the same
failure to petitioner
Page 327 U. S. 77
in Item 89. [Footnote 2/39] It is said that, although this may be true,
the proceeding is not thereby invalidated. The argument is that our
noncompliance merely gives Japan a right of indemnity against us,
and that Article 60 was not intended to give Yamashita any personal
rights. I cannot agree. The treaties made by the United States are, by
the Constitution, made the supreme law of the land. In the absence of
something in the treaty indicating that its provisions were not intended

to be enforced, upon breach, by more than subsequent

indemnification, it is, as I conceive it, the duty of the courts of this
country to insure the nation's compliance with such treaties, except in
the case of political questions. This is especially true where the treaty
has provisions -- such as Article 60 -- for the protection of a man
being tried for an offense the punishment for which is death; for to
say that it was intended to provide for enforcement of such provisions
solely by claim, after breach, of indemnity would be, in many
instances, especially those involving trial of nationals of a defeated
nation by a conquering one, to deprive the Articles of all force.
Executed men are not much aided by post-war claims for indemnity. I
do not think the adhering powers' purpose was to provide only for
such ineffective relief.
Finally, the Government has argued that Article 60 has no application
after the actual cessation of hostilities, as there is no longer any need
for an intervening power between the two belligerents. The premise is
that Japan no longer needs Switzerland to intervene with the United
Page 327 U. S. 78
States to protect the rights of Japanese nationals, since Japan is now
in direct communication with this Government. This, of course, is in
contradiction of the Government's theory, in other connections, that
the war is not over, and military necessity still requires use of all the
power necessary for actual combat.
Furthermore the premise overlooks all the realities of the situation.
Japan is a defeated power, having surrendered, if not unconditionally,
then under the most severe conditions. Her territory is occupied by
American military forces. She is scarcely in a position to bargain with
us or to assert her rights. Nor can her nationals. She no longer holds
American prisoners of war. [Footnote 2/40] Certainly, if there was the
need of an independent neutral to protect her nationals during the
war, there is more now. In my opinion the failure to give the notice

required by Article 60 is only another instance of the commission's

failure to observe the obligations of our law.
What is more important, there was no compliance with Article 63 of
the same Convention. Yamashita was not tried "according to the
same procedure as in the case of persons belonging to the armed
forces of the detaining Power." Had one of our soldiers or officers
been tried for alleged war crimes, he would have been entitled to the
benefits of the Articles of War. I think that Yamashita was equally
entitled to the same protection. In any event, he was entitled to their
benefits under the provisions of Article 63 of the Geneva Convention.
Those benefits he did not receive. Accordingly, his trial was in
violation of the Convention.
VI
The Fifth Amendment
Wholly apart from the violation of the Articles of War and of the
Geneva Convention, I am completely unable to
Page 327 U. S. 79
accept or to understand the Court's ruling concerning the applicability
of the due process clause of the Fifth Amendment to this case. Not
heretofore has it been held that any human being is beyond its
universally protecting spread in the guaranty of a fair trial in the most
fundamental sense. That door is dangerous to open. I will have no
part in opening it. For, once it is ajar, even for enemy belligerents, it
can be pushed back wider for others, perhaps ultimately for all.
The Court does not declare expressly that petitioner, as an enemy
belligerent, has no constitutional rights, a ruling I could understand,
but not accept. Neither does it affirm that he has some, if but little,
constitutional protection. Nor does the Court defend what was done. I
think the effect of what it does is in substance to deny him all such
safeguards. And this is the great issue in the cause.

For it is exactly here we enter wholly untrodden ground. The safe

signposts to the rear are not in the sum of protections surrounding
jury trials or any other proceeding known to our law. Nor is the
essence of the Fifth Amendment's elementary protection
comprehended in any single one of our time-honored specific
constitutional safeguards in trial, though there are some without
which the words "fair trial" and all they cannot become a mockery.
Apart from a tribunal concerned that the law as applied shall be an
instrument of justice, albeit stern in measure to the guilt established,
the heart of the security lies in two things. One is that conviction shall
not rest in any essential part upon unchecked rumor, report, or the
results of the prosecution's ex parte investigations, but shall stand on
proven fact; the other, correlative, lies in a fair chance to defend. This
embraces at the least the rights to know with reasonable clarity in
advance of the trial the exact nature of the offense with which one is
to be charged; to have reasonable time for preparing to meet the
charge, and to have the aid of counsel in doing so, as also in the
Page 327 U. S. 80
trial itself, and if, during its course, one is taken by surprise, through
the injection of new charges or reversal of rulings which brings forth
new masses of evidence, then to have further reasonable time for
meeting the unexpected shift.
So far as I know, it has not yet been held that any tribunal in our
system, of whatever character, is free to receive "such evidence as in
its opinion would be of assistance in proving or disproving the
charge" or, again as in its opinion, "would have probative value in the
mind of a reasonable man;" and, having received what in its unlimited
discretion it regards as sufficient, is also free to determine what
weight may be given to the evidence received without restraint.
[Footnote 2/41]
When to this fatal defect in the directive, however innocently made,
are added the broad departures from the fundamentals of fair play in

the proof and in the right to defend which occurred throughout the
proceeding, there can be no accommodation with the due process of
law which the Fifth Amendment demands.
All this the Court puts to one side with the short assertion that no
question of due process under the Fifth Amendment or jurisdiction
reviewable here is presented. I do not think this meets the issue,
standing alone or in conjunction with the suggestion which follows
that the Court gives no intimation one way or the other concerning
Page 327 U. S. 81
what Fifth Amendment due process might require in other situations.
It may be appropriate to add here that, although without doubt the
directive was drawn in good faith in the belief that it would expedite
the trial and that enemy belligerents in petitioner's position were not
entitled to more, that state of mind and purpose cannot cure the
nullification of basic constitutional standards which has taken place.
It is not necessary to recapitulate. The difference between the Court's
view of this proceeding and my own comes down in the end to the
view, on the one hand, that there is no law restrictive upon these
proceedings other than whatever rules and regulations may be
prescribed for their government by the executive authority or the
military and, on the other hand, that the provisions of the Articles of
War, of the Geneva Convention and the Fifth Amendment apply.
I cannot accept the view that anywhere in our system resides or lurks
a power so unrestrained to deal with any human being through any
process of trial. What military agencies or authorities may do with our
enemies in battle or invasion, apart from proceedings in the nature of
trial and some semblance of judicial action, is beside the point. Nor
has any human being heretofore been held to be wholly beyond
elementary procedural protection by the Fifth Amendment. I cannot
consent to even implied departure from that great absolute.

It was a great patriot who said:

"He that would make his own liberty secure must guard even his
enemy from oppression, for if he violates this duty he establishes a
precedent that will reach himself. [Footnote 2/42]"
MR. JUSTICE MURPHY joins in this opinion.
[Footnote 2/1]
Cummings v. Missouri, 4 Wall. 277; Kring v. Missouri, 107 U. S. 221.
[Footnote 2/2]
Armour Packing Co. v. United States, 209 U. S. 56, 209 U. S. 8384; United States v. Cohen Grocery Co., 255 U. S. 81, cf. Screws v.
United States, 325 U. S. 91. See note 17 and text.
[Footnote 2/3]
Hawk v. Olson, 326 U. S. 271; Snyder v. Massachusetts, 291 U. S.
97, 291 U. S. 105: "What may not be taken away is notice of the
charge and an adequate opportunity to be heard in defense of
it." See 327 U. S.
[Footnote 2/4]
The commission's findings state:
"We have received for analysis and evaluation 423 exhibits consisting
of official documents of the United States Army, the United States
State Department, and the the Philippines; affidavits; captured enemy
documents or translations thereof; diaries taken from Japanese
personnel, photographs, motion picture films, and Manila
newspapers."
See notes 19 and 20.

Concerning the specific nature of these elements in the proof, the

issues to which they were directed, and their prejudicial
effects, see text infra and notes in 327 U. S.
[Footnote 2/5]
Queen v. Hepburn, 7 Cranch. 290; Donnelly v. United States, 228 U.
S. 243, 228 U. S. 273. See 327 U. S. note 21.
[Footnote 2/6]
Motes v. United States, 178 U. S. 458, 178 U. S. 471; Paoni v. United
States, 281 F. 801. See Parts 327 U. S. S. 56|>III.
[Footnote 2/7]
See 327 U. S. S. 1fn2/10|>10, 19; 327 U. S.
[Footnote 2/8]
The line of authorization within the military hierarchy extended from
the President, through the Joint Chiefs of Staff and General
MacArthur, to General Styer, whose order of September 25th and
others were made pursuant to and in conformity with General
MacArthur's directive. The charge was prepared by the Judge
Advocate General's Department of the Army. There is no dispute
concerning these facts or that the directive was binding on General
Styer and the commission, though it is argued his own authority as
area commanding general was independently sufficient to sustain
what was done.
[Footnote 2/9]
"16. Evidence. -- a. The commission shall admit such evidence as in
its opinion would be of assistance in proving or disproving the charge,
or such as in the commission's opinion would have probative value in
the mind of a reasonable man. In particular, and without limiting in

any way the scope of the foregoing general rules, the following
evidence may be admitted:"
"(1) Any document while appears to the commission to have been
signed or issued officially by any officer, department, agency, or
member of the armed forces of any government, without proof of the
signature or of the issuance of the document."
"(2) Any report which appears to the commission to have been signed
or issued by the International Red Cross or a member thereof, or by a
medical doctor or any medical service personnel, or by an
investigator or intelligence officer, or by any other person whom the
commission finds to have been acting in the course of his duty when
making the report."
"(3) Affidavits, depositions, or other statements taken by an officer
detailed for that purpose by military authority."
"(4) Any diary, letter or other document appearing to the commission
to contain information relating to the charge."
"(5) A copy of any document or other secondary evidence of its
contents, if the commission believes that the original is not available
or cannot be produced without undue delay. . . ."
[Footnote 2/10]
In one instance, the president of the commission said:
"The rules and regulations which guide this Commission are binding
upon the Commission and agencies provided to assist the
Commission. . . . We have been authorized to receive and weigh
such evidence as we can consider to have probative value, and
further comments by the Defense on the right which we have to
accept this evidence is decidedly out of order."
But see note 19.

[Footnote 2/11]
Cf. text infra at note 19 concerning the prejudicial character of the
evidence.
[Footnote 2/12]
Note 4.
[Footnote 2/13]
Namely,
"(1) starvation, execution or massacre without trial, and
maladministration generally of civilian internees and prisoners of war;
(2) torture, rape, murder, and mass execution of very large numbers
of residents of the Philippines, including women and children and
members of religious orders, by starvation, beheading, bayoneting,
clubbing, hanging, burning alive, and destruction by explosives; (3)
burning and demolition without adequate military necessity of large
numbers of homes, places of business, places of religious worship,
hospitals, public buildings, and educational institutions. In point of
time, the offenses extended throughout the period the accused was in
command of Japanese troops in the Philippines. In point of area, the
crimes extended through the Philippine Archipelago, although by far
he most of the incredible acts occurred on Luzon."
[Footnote 2/14]
Cf. note 13.
[Footnote 2/15]
In addition, the findings set forth that captured orders of subordinate
officers gave proof that "they at least" ordered acts "leading directly
to" atrocities; that

"the proof offered to the Commission alleged criminal neglect . . . as

well as complete failure by the higher echelonsof command to
detect and prevent cruel and inhuman treatment accorded by local
commanders and guards;"
and that, although "the defense had established the difficulties faced
by the accused" with special reference, among other things, to the
discipline and morale of his troops under the "swift and overpowering
advance of American forces," and notwithstanding he had stoutly
maintained his complete ignorance of the crimes, still he was an
officer of long experience; his assignment was one of broad
responsibility; it was his duty "to discover and control" crimes by his
troops, if widespread, and therefore
"The Commission concludes: (1) that a series of atrocities and other
high crimes have been committed by members of the Japanese
armed forces under your command against the people of the United
States, their allies, and dependencies throughout the Philippine
Islands; that they were not sporadic in nature, but in many cases
were methodically supervised by Japanese officers and
noncommissioned officers; (2) that, during the period in question, you
failed to provide effective control of your troops, as was required by
the circumstances."
"Accordingly, upon secret written ballot, two-thirds or more of the
members concurring, the Commission finds you guilty as charged
and sentences you to death by hanging."
(Emphasis added.)
[Footnote 2/16]
See note 15.
[Footnote 2/17]

The charge, set forth at the end of this note, is consistent with either
theory -- or both -- and thus ambiguous, as were the
findings. See note 15. The only word implying knowledge was
"permitting." If "willfully" is essential to constitute a crime or charge of
one, otherwise subject to the objection of "vagueness," cf. Screws v.
United States,325 U. S. 91, it would seem that "permitting" alone
would hardly be sufficient to charge "willful and intentional" action or
omission; and, if taken to be sufficient to charge knowledge, it would
follow necessarily that the charge itself was not drawn to state, and
was insufficient to support, a finding of mere failure to detect or
discover the criminal conduct of others.
At the most, "permitting" could charge knowledge only by inference or
implication. And, reasonably, the word could be taken in the context
of the charge to mean "allowing" or "not preventing" -- a meaning
consistent with absence of knowledge and mere failure to discover. In
capital cases, such ambiguity is wholly out of place. The proof was
equally ambiguous in the same respect, so far as we have been
informed, and so, to repeat, were the findings. The use of "willfully,"
even qualified by a "must have," one time only in the findings hardly
can supply the absence of that or an equivalent word or language in
the charge or in the proof to support that essential element in the
crime.
The charge was as follows:
"Tomoyuki Yamashita, General Imperial Japanese Army, between 9
October 1944 and 2 September 1945 at Manila and other places in
the Philippine Islands, while commander of armed forces of Japan at
war with the United States of America and its allies, unlawfully
disregarded and failed to discharge his duty as commander to control
the operations of the members of his command, permitting them to
commit brutal atrocities and other high crimes against people of the
United States and of its allies and dependencies, particularly the
Philippines, and he, General Tomoyuki Yamashita, thereby violated
the laws of war."

[Footnote 2/18]
Cf. Text infra, 327 U. S.
[Footnote 2/19]
On November 1, early in the trial, the president of the commission
stated:
"I think the Prosecution should consider the desirability of striking
certain items. The Commission feels that there must be witnesses
introduced on each of the specifications or items. It has no objection
to considering affidavits, but it is unwilling to form an opinion of a
particular item based solely on an affidavit. Therefore, until evidence
is introduced, these particular exhibits are rejected."
(Emphasis added.)
Later evidence of the excluded type was offered, to introduction of
which the defense objected on various grounds, including the prior
ruling. At the prosecution's urging, the commission withdrew to
deliberate. Later, it announced that,
"after further consideration, the Commission reverses that ruling [of
November 1] and affirms its prerogative of receiving and considering
affidavits or depositions, if it chooses to do so, for whatever probative
value the Commission believes they may have, without regard to the
presentation of some partially corroborative oral testimony."
It then added:
"The Commission directs the prosecution again to introduce the
affidavits or depositions then in question, and other documents of
similar nature which the prosecution stated has been prepared for
introduction."
(Emphasis added.)

Thereafter, this type of evidence was consistently received, and again

by the undisputed statement of counsel, as the sole proof of many of
the specifications of the bills a procedure which they characterized
correctly, in my view, as having, "in effect, stripped the proceeding of
all semblance of a trial, and converted it into an ex
parteinvestigation."
[Footnote 2/20]
This perhaps consisted in the showing of the so-called "propaganda"
film, "Orders from Tokyo," portraying scenes of battle destruction in
Manila, which counsel say "was not, in itself, seriously objectionable."
Highly objectionable, inflammatory and prejudicial, however, was the
accompanying sound track with comment that the film was "evidence
which will convict," mentioning petitioner specifically by name.
[Footnote 2/21]
Innumerable instances of hearsay, once or several times removed,
relating to all manner of incidents, rumors, reports, etc., were among
these. Many instances, too, are shown of the use of opinion evidence
and conclusions of guilt, including reports made after ex
parte investigations by the War Crimes Branch of the Judge Advocate
General's Department, which it was and is urged had the effect of
"putting the prosecution on the witness stand" and of usurping the
commission's function as judge of the law and the facts. It is said also
that some of the reports were received as the sole proof of some of
the specifications.
[Footnote 2/22]
Also with Paragraph 82 of the Rules of I and Warfare.
[Footnote 2/23]
Typical of the items are allegations that members of the armed forces
of Japan under the command of the accused committed the acts

"[d]uring the months of October, November, and December, 1944 [of]

brutally mistreating and torturing numerous unarmed noncombatant
civilians at the Japanese Military Police Headquarters located at
Cortabitarte and Mabini Streets, Manila,"
and,
"On or about 19 February 1945, in the Town of Cuenca, Batangas
Province, brutally mistreating, massacring, and killing Jose M. Laguo,
Esteban Magsamdol, Jose Lanbo, Felisa Apuntar, Elfidio Lunar,
Victoriana Ramo, and 978 other persons, all unarmed noncombatant
civilians, pillaging and unnecessarily, deliberately, and wantonly
devastating, burning, and destroying large areas of that town."
[Footnote 2/24]
The supplemental bill contains allegations similar to those set out in
the original bill. See note 23. For example, it charged that members
of the armed forces of Japan under the command of the accused
"during the period from 9 October 1944 to about 1 February 1945 at
Cavite City, Imus, and elsewhere in Cavite Province," were permitted
to commit the acts of "brutally mistreating, torturing, and killing or
attempting to kill, without cause or trial, unarmed noncombatant
civilians."
[Footnote 2/25]
See note 39 and text, 327 U. S.
[Footnote 2/26]
In support of the motion, counsel indicated surprise by saying that,
though it was assumed two or three new specifications might be
added, there had been no expectation of 59 "about entirely new
persons and times." The statement continued:
"We have worked earnestly seven days a week in order to prepare
the defense on 64 specifications. And when I say 'prepare the

defense,' sir, I do not mean merely an affirmative defense, but to

acquaint ourselves with the facts so that we could properly crossexamine the Prosecution's witnesses."
". . . 'In advance of trial' means: sufficient time to allow the defense a
chance to prepare its defense."
"We earnestly state that we must have this time in order adequately
to prepare the defense. I might add, sir, we think this is important to
the accused, but far more important than any rights of this accused,
we believe, is the proposition that this Commission should not deviate
from a fundamental American concept of fairness. . . ."
[Footnote 2/27]
The commission went on to question the need for all of the six
officers representing the defense to be present during presentation of
all the case, suggested one or two would be adequate and others
"should be out of the courtroom" engaged in other matters, and
strongly suggested bringing in additional counsel in the midst of the
trial, all to the end that "need to request continuance may not arise."
[Footnote 2/28]
See note 9.
[Footnote 2/29]
Article 25 is as follows:
"A duly authenticated deposition taken upon reasonable notice to the
opposite party may be read in evidence before any military court or
commission in any case not capital, or in any proceeding before
a court of inquiry or a military board, if such deposition be taken when
the witness resides, is found, or is about to go beyond the State,
Territory, or district in which the court, commission, or board is
ordered to sit, or beyond the distance of one hundred miles from the
place of trial or hearing, or when it appears to the satisfaction of the

court, commission, board, or appointing authority that the witness, by

reason of age, sickness, bodily infirmity, imprisonment, or other
reasonable cause, is unable to appear and testify in person at the
place of trial or hearing: Provided, That testimony by deposition may
be adduced for the defense in capital cases."
(Emphasis added.) 10 U.S.C. 1496.
Article 38 reads:
"The President may, by regulations, which he may modify from time
to time, prescribe the procedure, including modes of proof, in cases
before courts-martial, courts of inquiry, military commissions, and
other military tribunals, which regulations shall, insofar as he shall
deem practicable, apply the rules of evidence generally recognized in
the trial of criminal cases in the district courts of the United
States: Provided, That nothing contrary to or inconsistent with these
articles shall be so prescribed: Provided further, That all rules made
in pursuance of this article shall be laid before the Congress
annually."
(Emphasis added.) 10 U.S.C. 1509.
[Footnote 2/30]
Another revision of the Articles of War took place in 1920. At this time,
Article 15 was slightly amended.
In 1916 Article 15, 39 Stat. 653, was enacted to read:
"The provisions of these articles conferring jurisdiction upon courtsmartial shall not be construed as depriving military commissions,
provost courts, or other military tribunals of concurrent jurisdiction in
respect of offenders or offenses that, by the law of war, may be
lawfully triable by such military commissions, provost courts, or other
military tribunals."
(Emphasis added.)

The 1920 amendment put in the words "by statute or" before the
words "by the law of war" and omitted the word "lawfully."
[Footnote 2/31]
Speaking at the Hearings before the Committee on Military Affairs,
House of Representatives, 62nd Cong., 2d Sess., printed as an
Appendix to S.Rep.229, 63rd Cong., 2d Sess., General Crowder said:
"The next article, No. 15, is entirely new, and the reasons for its
insertion in the code are these: in our War with Mexico, two war
courts were brought into existence by orders of Gen. Scott, viz., the
military commission and the council of war. By the military
commission, Gen. Scott tried cases cognizable in time of peace by
civil courts, and by the council of war, he tried offenses against the
laws of war. The council of war did not survive the Mexican War
period, and, in our subsequent wars, its jurisdiction has been taken
over by the military commission, which, during the Civil War period,
tried more than 2,000 cases. While the military commission has not
been formally authorized by statute, its jurisdiction as a war court has
been upheld by the Supreme Court of the United States. It is an
institution of the greatest importance in a period of war, and should be
preserved. In the new code, the jurisdiction of courts-martial has
been somewhat amplified by the introduction of the phrase 'Persons
subject to military law.' There will be more instances in the future than
in the past when the jurisdiction of courts-martial will overlap that of
the war courts, and the question would arise whether Congress
having vested jurisdiction by statute the common law of
war jurisdiction was not ousted. I wish to make it perfectly plain by
the new article that, in such cases, the jurisdiction of the war court is
concurrent."
S.Rep. No.229, 63rd Cong., 2d Sess., p. 53. (Emphasis added.)
And later, in 1916, speaking before the Subcommittee on Military
Affairs of the Senate at their Hearings on S.3191, a project for the
revision of the Articles of War, 64th Cong., 1st Sess., printed as an

Appendix to S.Rep.230, 64th Cong., 1st Sess., General Crowder

explained at greater length:
"Article 15 is new. We have included in article 2 as subject to military
law a number of persons who are also subject to trial by military
commissions. A military commission is our common law war court. It
has no statutory existence, though it is recognized by statute law. As
long as the articles embraced them in the designation 'persons
subject to military law,' and provided that they might be tried by courtmartial, I was afraid that, having made a special provision for their
court-martial, it might be held that the provision operated to exclude
trials by military commission and other war courts; so this new article
was introduced. . . ."
"It just saves to these war courts the jurisdiction they now have and
makes it a concurrent jurisdiction with courts-martial, so that the
military commander in the field in time of war will be at liberty to
employ either form of court that happens to be convenient. Both
classes of courts have the same procedure. For the information of the
committee and in explanation of these war courts to which I have
referred, I insert here an explanation from Winthrop's Military Law
and Precedents --"
" The military commission -- a war court -- had its origin in G.O. 20,
Headquarters of the Army at Tampico, February 19, 1847 (Gen.
Scott). Its jurisdiction was confined mainly to criminal offenses of the
class cognizable by civil courts in time of peace committed by
inhabitants of the theater of hostilities. A further war court was
originated by Gen. Scott at the same time, called 'council of war,' with
jurisdiction to try the same classes of persons for violations of the
laws of war, mainly guerillas. These two jurisdictions were united in
the later war court of the Civil War and Spanish War periods, for
which the general designation of 'military commission' was retained.
The military commission was given statutory recognition in section
30, act of March 3, 1863, 12 Stat. 736, and in various other statutes
of that period. The United States Supreme Court has acknowledged

the validity of its judgments (Ex parte Vallandingham, 1 Wall. 243

and Coleman v. Tennessee, 97 U. S. 509). It tried more than 2,000
cases during the Civil War and reconstruction period. Its composition,
constitution, and procedure follows the analogy of courtsmartial. Another war court is the provost court, an inferior court with
jurisdiction assimilated to that of justices of the peace and police
courts, and other war courts variously designated 'courts of
conciliation,' 'arbitrators,' 'military tribunals' have been convened by
military commanders in the exercise of the war power as occasion
and necessity dictated."
" Yet, as I have said, these war courts never have been formally
authorized by statute."
" Senator Colt: They grew out of usage and necessity?"
" Gen. Crowder: Out of usage and necessity. I thought it was just as
well, as inquiries would arise, to put this information in the record."
S.Rep. No.130, 64th Cong., 1st Sess. (1916) p. 40. (Emphasis
added.)
Article 15 was also explained in the "Report of a committee on the
proposed revision of the articles of war, pursuant to instructions of the
Chief of Staff, March 10, 1915," included in Revision of the Articles of
War, Comparative Prints, Etc., 1904-1920. J.A.G.O., as follows:
"A number of articles . . . of the revision have the effect of giving
courts-martial jurisdiction over certain offenders and offenses which,
under the law of war or by statute, are also triable by military
commissions, provost courts, etc. Article 15 is introduced for the
purpose of making clear that, in such cases, a court martial has only
a concurrent jurisdiction with such war tribunals."
[Footnote 2/32]

Of course, Articles 25 and 38, at the same time that they gave
protection to defendants before military commissions, also provided
for the application by such tribunals of modern rules of procedure and
evidence.
[Footnote 2/33]
Winthrop, speaking of military commissions at the time he was
writing, 1896, says:
"The offences cognizable by military commissions may thus be
classed as follows: (1) Crimes and statutory offences cognizable by
State or U.S. courts, and which would properly be tried by such
courts if open and acting; (2) Violations of the laws and usages of
war cognizable by military tribunals only; (3) Breaches of military
orders or regulations for which offenders are not legally triable by
court-martial under the Articles of War."
(Emphasis added.) Winthrop at *1309. And cf. Fairman, The Law of
Martial Rule (2d ed.1943):
"Military commissions take cognizance of three categories of criminal
cases: offenses against the laws of war,breaches of military
regulations, and civil crimes which, where the ordinary courts have
ceased to function, cannot be tried normally."
(Emphasis added.) Fairman, 265-266. See also Davis, A Treatise on
the Military Law of the United States (1915) 309, 310.
[Footnote 2/34]
Note 31.
[Footnote 2/35]
In addition to the statements of General Crowder with relation to
Article 15, set out in note 31, supra, see the following statements

made with reference to Article 25 in 1912 at a hearing before the

Committee on Military Affairs of the House:
"We come now to article 25, which relates to the admissibility of
depositions. . . . It will be noted further that the application of the old
article has been broadened to include military commissions, courts of
inquiry, and military boards."
"Mr. SWEET. Please explain what you mean by military commission."
"Gen. CROWDER. That is our common law of war court, and was
referred to by me in a prior hearing. [The reference is to the
discussion of Article 15.] This war court came into existence during
the Mexican War, and was created by orders of Gen. Scott. It had
jurisdiction to try all cases usually cognizable in time of peace by civil
courts. Gen. Scott created another war court, called the 'council of
war,' with jurisdiction to try offenses against the laws of war. The
constitution, composition, and jurisdiction of these courts have never
been regulated by statute. The council of war did not survive the
Mexican War period, since which its jurisdiction has been taken over
by the military commission. The military commission received express
recognition in the reconstruction acts, and itsjurisdiction has been
affirmed and supported by all our courts. It was extensively employed
during the Civil War period and also during the Spanish-American
War. It is highly desirable that this important war court should be
continued to be governed as heretofore, by the laws of war, rather
than by statute."
S.Rep. No.229, 63d Cong., 2d Sess., 59; cf. S.Rep. 130, 64th Cong.,
1st Sess., 54-55. (Emphasis added.) See alsoHearings before the
Subcommittee of the Committee on Military Affairs of the Senate on
Establishment of Military Justice, 66th Cong., 1st Sess., 1182-1183.
Further evidence that procedural provisions of the Articles were
intended to apply to all forms of military tribunal is given by Article 24,
10 U.S.C. 1495, which provides against compulsory selfincrimination "before a military court, commission, court of injury, or

board, or before any officer conducting an investigation." This article

was drafted so that "The prohibition should reach all
witnesses, irrespective of the class of military tribunal before which
they appear. . . ." (Emphasis added.) Comparative Print showing
S.3191 with the Present Articles of War and other Related Statutes,
and Explanatory Notes, Printed for use of the Senate Committee on
Military Affairs, 64th Cong., 1st Sess., 17, included in Revision of the
Articles of War, Comparative Prints, Etc., 1904-1920, J.A.G.O.
[Footnote 2/36]
We are informed that Japan has not ratified the Geneva
Convention. See discussion of Article 82 in the paragraphs below. We
are also informed, however -- and the record shows this at least as to
Japan -- that, at the beginning of the war, both the United States and
Japan announced their intention to adhere to the provisions of that
treaty. The force of that understanding continues, perhaps with
greater reason, if not effect, despite the end of hostilities. Seenote 40
and text.
Article 82 provides:
"The provisions of the present Convention must be respected by the
High Contracting Parties under all circumstances."
"In case, in time of war, one of the belligerents is not a party to the
Convention, its provisions shall nevertheless remain in force as
between the belligerents who are parties thereto."
It is not clear whether the Article means that, during a war, when one
of the belligerents is not a party to the Convention, the provisions
must nevertheless be applied by all the other belligerents to the
prisoners of war not only of one another, but also of the power that
was not a party thereto, or whether it means that they need not be
applied to soldiers of the nonparticipating party who have been
captured. If the latter meaning is accepted, the first paragraph would
seem to contradict the second.

"Legislative history" here is of some, if little, aid. A suggested draft of

a convention on war prisoners drawn up in advance of the Geneva
meeting by the International Committee of the Red Cross (Actes de la
Conference Diplomatique de Geneve, edited by Des Gouttes, pp. 2134) provided in Article 92 that the provisions of the Convention
"ne cesseront d'etre obligatories qu'au cas ou l'un des Etats
belligerents participant a la Convention se trouve avoir a combattre
les forces armees d'un autre Etat que n'y serait par parties at a
l'egard de cet Etat seulement."
See Rasmussen, Code des Prisonniers de Guerre (1931) 70. The
fact that this suggested article was not included in the Geneva
Convention would indicate that the nations in attendance were
avoiding a decision on this problem. But I think it shows more -- that
is, it manifests an intention not to foreclose a future holding that,
under the terms of the Convention, a state is bound to apply the
provisions to prisoners of war of nonparticipating state. And not to
foreclose such a holding is to invite one. We should, in my opinion, so
hold, for reasons of security to members of our own armed forces
taken prisoner, if for no others.
Moreover, if this view is wrong and the Geneva Convention is not
strictly binding upon the United States as a treaty, it is strong
evidence of and should be held binding as representing what have
become the civilized rules of international warfare. Yamashita is as
much entitled to the benefit of such rules as to the benefit of a binding
treaty which codifies them. See U.S. War Dep't Basic Field Manual,
Rules of Land Warfare (1940), par. 5-b.
[Footnote 2/37]
Title III of the Convention, which comprises Articles 7 to 67, is called
"Captivity." It contains Section I, "Evacuation of Prisoners of War"
(Articles 7, 8); Section II, "Prisoners-of-War Camps" (Articles 9-26);
Section III, "Labor of Prisoners of War" (Articles 27-34); Section IV,
"External Relations of Prisoners of War" (Articles 35-41), and Section

V, "Prisoners' Relations with the Authorities" (Articles 42-67). Thus,

Title III regulates all the various incidents of a prisoner of war's life
while in captivity.
Section V, with which we are immediately concerned, is divided into
three chapters. Chapter 1 (Article 42) gives a prisoner of war the right
to complain of his condition of captivity. Chapter 2 (Articles 43-44)
gives prisoners of war the right to appoint agents to represent them.
Chapter 3 is divided into three subsections, and is termed "Penalties
Applicable to Prisoners of War." Subsection 1 (Articles 45-53)
contains various miscellaneous articles to be considered in detail
later. Subsection 2 (Articles 54-59) contains provisions with respect to
disciplinary punishments. And subsection 3 (Articles 60-67), which is
termed "Judicial Suits," contains various provisions for protection of a
prisoner's rights in judicial proceedings instituted against him.
Thus, subsection 3, which contains Articles 60 and 63, as opposed to
subsection 2, of Chapter 3, is concerned not with mere problems of
discipline, as is the latter, but with the more serious matters of trial
leading to imprisonment or possible sentence of death; cf. Brereton,
The Administration of Justice Among Prisoners of War by Military
Courts (1935) 1 Proc. Australian & New Zealand Society of
International Law 143, 153. The Court, however, would have the
distinction between subsection 2 and subsection 3 one between
minor disciplinary action against a prisoner of war for acts committed
while a prisoner and major judicial action against a prisoner of war for
acts committed while a prisoner. This narrow view not only is highly
strained, confusing the different situations and problems treated by
the two subdivisions. It defeats the most important protections
subsection 3 was intended to secure, for our own as well as for
enemy captive military personnel.
At the most, there would be logic in the Court's construction if it could
be said that all of Chapter 3 deals with acts committed while a
prisoner of war. Of course, subsection 2 does, because of the very
nature of its subject matter. Disciplinary action will be taken by a

captor power against prisoners of war only for acts committed by

prisoners after capture.
But it is said that subsection 7 deals exclusively with acts committed
by a prisoner of war after having become a prisoner, and this
indicates subsection 3 is limited similarly. This ignores the fact that
some of the articles in subsection 1 appear, on their face, to apply to
all judicial proceedings for whatever purpose instituted. Article 46, for
example, provides in part:
"Punishments other than those provided for the same acts for
soldiers of the national armies may not be imposed upon prisoners of
war by the military authorities and courts of the detaining Power."
This seems to refer to war crimes as well as to other offenses, for
surely a country cannot punish soldiers of another army for offenses
against the law of war when it would not punish its own soldiers for
the same offences. Similarly, Article 47 in subsection 1 appears to
refer to war crimes as well as to crimes committed by a prisoner after
his capture. It reads in part:
"Judicial proceedings against prisoners of war shall be conducted as
rapidly as the circumstances permit; preventive imprisonment shall be
limited as much as possible."
Thus, at the most, subjection 1 contains, in some of its articles, the
same ambiguities, and is open to the same problem, that we are
faced with in construing Articles 60 and 63. It cannot be said therefore
that all of chapter 3, and especially subsection 3, relate only to acts
committed by prisoners of war after capture, for the meaning of
subsection 3, in this argument, is related to the meaning of
subsection 1, and subsection 1 is no more clear restricted to
punishments and proceedings in disciplinary matters than is
subsection 3.
[Footnote 2/38]

Article 60 pertinently is as follows:

"At the opening of a judicial proceeding directed against a prisoner of
war, the detaining Power shall advise the representative of the
protecting Power thereof as soon as possible, and always before the
date set for the opening of the trial."
"This advice shall contain the following information:"
"a) Civil state and rank of prisoner;"
"b) Place of sojourn or imprisonment;"
"c) Specification of the [count] or counts of the indictment, giving the
legal provisions applicable."
"If it is not possible to mention in that advice the court which will pass
upon the matter, the date of opening the trial, and the place where it
will take place, this information must be furnished to the
representative of the protecting Power later, as soon as possible, and
at all events at least three weeks before the opening of the trial."
Article 63 reads:
"Sentence may be pronounced against a prisoner of war only by the
same courts and according to the same procedure as in the case of
persons belonging to the armed forces of the detaining Power."
[Footnote 2/39]
Item 89 charged the armed forces of Japan with subjecting to trial
certain named and other prisoners of war
"without prior notice to a representative of the protecting power,
without opportunity to defend, and without counsel; denying
opportunity to appeal from the sentence rendered; failing to notify the
protecting power of the sentence pronounced, and executed a death
sentence without communicating to the representative of the

protecting power the nature and circumstances of the offense

charged."
[Footnote 2/40]
Nations adhere to international treaties regulating the conduct of war
at least in part because of the fear of retaliation. Japan no longer has
the means of retaliating.
[Footnote 2/41]
There can be no limit either to the admissibility or the use of evidence
if the only test to be applied concerns probative value and the only
test of probative value, as the directive commanded and the
commission followed out, lies "in the Commission's opinion," whether
that be concerning the assistance the "evidence" tendered would give
in proving or disproving the charge or as it might think would "have
value in the mind of a reasonable man." Nor is it enough to establish
the semblance of a constitutional right that the commission declares,
in receiving the evidence, that it comes in as having only such
probative value, if any, as the commission decides to award it and
this is accepted as conclusive.
[Footnote 2/42]
2 The Complete Writings of Thomas Paine (edited by Foner, 1945)
588.
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developments, verdicts or settlements. We make no warranties or
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9.) Republic VS Sandiganbayan

Republic vs. Sandiganbayan Digest
G.R. No. 155832 : December 7, 2010
REPUBLIC
OF
THE
PHILIPPINES, Petitioner,
v. SANDIGANBAYAN (Fourth Division) and IMELDA R.
MARCOS,Respondents.
FACTS:

On February 28, 1986, immediately after assuming power, President

Corazon C. Aquino issued Executive Order 1, creating the
PCGG.She empowered the PCGG to recover all ill-gotten wealth
allegedly amassed by former President Ferdinand E. Marcos, his
family, and close associates during his 20-year regime.
PCGG Commissioner Raul Daza gave lawyers Jose Tan Ramirez
and Ben Abella PCGG Region VIII Task Force Head and Co-Deputy,
respectively, written authority to sequester any property, documents,
money, and other assets in Leyte, belonging to former First Lady
Imelda R. Marcos,Benjamin Romualdez, Alfredo Romualdez, and
their agents. On March 18, 1986, Attys. Ramirez and Abella issued a
sequestration order against the Marcoses Olot, Tolosa, Leyte
property (lot Resthouse).
On August 10, 2001, Mrs. Marcos filed a motion to quash the
sequestration order against the Olot Resthouse,claiming that such
order, issued only by Attys. Ramirez and Abella, was void for failing to
observe Sec. 3 of the PCGG Rules and Regulations. The rules
required the signatures of at least two PCGG Commissioners. Mrs.
Marcos filed a Supplement to her earlier motion, claiming no prima
facie evidence that the Olot Resthouse constituted ill-gotten
wealth.She pointed out that the property is the ancestral home of her
family. The Republic countered that Mrs. Marcos was already
stopped from questioning the order.
On February 28, 2002 the Sandiganbayan issued the assailed
Resolution, granting the motion to quash and ordering the full
restoration
of
the Olot Resthouse to
Mrs.
Marcos.The Sandiganbayan ruled that the sequestration order was
void because it was signed, not by PCGG Commissioners, but by
mere PCGG agents.
ISSUE: Whether or not the March 18, 1986 sequestration order
against the Olot Resthouse, issued by PCGG agents before the
enactment of the PCGG rules, was validly issued.
HELD: The petition lacks merit.
POLITICAL LAW; SEQUESTRATION

Under Section 26, Article XVIII of the Constitution, an order of

sequestration may only issue upon a showing "of a prima facie case"
that the properties are ill-gotten wealth under Executive Orders 1 and
2. When a court nullifies an order of sequestration for having been
issued without a prima facie case, the Court does not substitute its
judgment for that of the PCGG but simply applies the law.
The Republics supposed evidence does not show how
the Marcoses acquired the sequestered property, what makes it "illgotten wealth," and how former President Marcos intervened in its
acquisition. Taking the foregoing view, the resolution of the issue
surrounding the character of the property sequestered whether or not
it could prima facie be considered ill-gotten should be necessary.
Although the two PCGG lawyers issued the sequestration order in
this case on March 18, 1986, before the passage of Sec. 3 of the
PCGG Rules, such consideration is immaterial following the above
ruling.
Finally, Mrs Marcos is not estopped from questioning the order
because a void order produces no effect and cannot be validated
under the doctrine of estoppel.
Petition is DISMISSED and the court AFFIRMS the resolution of
the Sandiganbayan.
ANOTHER:
Republic v Sandiganbayan (G.R. No. 155832)
FACTS:
Presidential Commission on Good Government (PCGG)
Commissioner Daza gave written authority to two lawyers to
sequester any property, documents, money, and other assets in Leyte
belonging to Imelda Marcos. A sequestration order was issued
against the Olot Resthouse in Tolosa, Leyte. Imelda Marcos filed a
motion to quash claiming that such order was void for failing to
observe Sec. 3 of the PCGG Rules and Regulations. The Rules
required the signatures of at least 2 PCGG Commissioners.

The Republic opposed claiming that Imelda is estopped from

questioning the sequestration since by her acts ( such as seeking
permission from the PCGG to repair the resthouse and entertain
guests), she had conceded to the validity of the sequestration. The
Republic also claims that Imelda failed to exhaust administrative
remedies by first seeking its lifting as provided in the Rules; that the
rule requiring the two signatures did not yet exist when the Olot
Resthouse was sequestered; and that she intended to delay
proceedings by filing the motion to quash.

Sandiganbayan granted the motion to quash and ruled that the

sequestration order was void because it was signed not by the 2
commissioners but by 2 agents. Hence the certiorari.
ISSUE:
Whether or not the sequestration order is valid.
HELD:
No. The Order is not valid. Under Sec. 26, Art 18 of the Constitution,
a sequestration order may be issued upon a showing of a prima facie
case that the properties are ill-gotten wealth. When the court nullifies
an Order, the court does not substitute its judgment for that of the
PCGG.

In the case, the PCGG did not make a prior determination of the
existence of the prima facie case. The Republic presented no
evidence to the Sandiganbayan. Nor did the Republic demonstrate
that the the 2 PCGG representatives were given the quasi-judicial
authority to receive and consider evidence that would warrant a prima
facie finding. The Republic's evidence does not show how the
Marcoses' acquired the property, what makes it ill-gotten wealth,and
how Ferdinand Marcos intervened in its acquisition.

As regards the issue on estoppel, a void order produces no effect and

cannot be validated under the doctine of estoppel. The Court cannot
accept the view that Imelda should have first sought the lifiting of the
sequestration order. Being void, the Sandiganbayan has the power to
strike it down on sight.
*Decision of Sandiganbayan affirmed and orders the annotation of lis
pendens on the title of the Olot Resthouse with respect to the claim of
the Republic in another civil case.

FULL CASE:
EN BANC

[G.R. No. 104768. July 21, 2003]

Republic of the Philippines, petitioner, vs. Sandiganbayan, Major

General
Josephus
Q.
Ramas
and
Elizabeth
Dimaano,respondents.
DECISION
CARPIO, J.:
The Case
Before this Court is a petition for review on certiorari seeking to
set aside the Resolutions of the Sandiganbayan (First Division)

[1]

dated 18 November 1991 and 25 March 1992 in Civil Case No.

0037. The first Resolution dismissed petitioners Amended Complaint
and ordered the return of the confiscated items to respondent
Elizabeth Dimaano, while the second Resolution denied petitioners
Motion for Reconsideration. Petitioner prays for the grant of the reliefs
sought in its Amended Complaint, or in the alternative, for the remand
of this case to the Sandiganbayan (First Division) for further
proceedings allowing petitioner to complete the presentation of its
evidence.
Antecedent Facts
Immediately upon her assumption to office following the
successful EDSA Revolution, then President Corazon C. Aquino
issued Executive Order No. 1 (EO No. 1) creating the Presidential
Commission on Good Government (PCGG). EO No. 1 primarily
tasked the PCGG to recover all ill-gotten wealth of former President
Ferdinand E. Marcos, his immediate family, relatives, subordinates
and close associates. EO No. 1 vested the PCGG with the power (a)
to conduct investigation as may be necessary in order to accomplish
and carry out the purposes of this order and the power (h) to
promulgate such rules and regulations as may be necessary to carry
out the purpose of this order. Accordingly, the PCGG, through its then
Chairman Jovito R. Salonga, created an AFP Anti-Graft Board (AFP
Board) tasked to investigate reports of unexplained wealth and
corrupt practices by AFP personnel, whether in the active service or
retired.[2]
Based on its mandate, the AFP Board investigated various reports
of alleged unexplained wealth of respondent Major General Josephus
Q. Ramas (Ramas). On 27 July 1987, the AFP Board issued a
Resolution on its findings and recommendation on the reported
unexplained wealth of Ramas. The relevant part of the Resolution
reads:
III. FINDINGS and EVALUATION:
Evidence in the record showed that respondent is the owner of a
house and lot located at 15-Yakan St., La Vista, Quezon City. He is

also the owner of a house and lot located in Cebu City. The lot has an
area of 3,327 square meters.
The value of the property located in Quezon City may be estimated
modestly at P700,000.00.
The equipment/items and communication facilities which were found
in the premises of Elizabeth Dimaano and were confiscated by
elements of the PC Command of Batangas were all covered by
invoice receipt in the name of CAPT. EFREN SALIDO, RSO
Command Coy, MSC, PA. These items could not have been in the
possession of Elizabeth Dimaano if not given for her use by
respondent Commanding General of the Philippine Army.
Aside from the military equipment/items and communications
equipment, the raiding team was also able to confiscate money in the
amount of P2,870,000.00 and $50,000 US Dollars in the house of
Elizabeth Dimaano on 3 March 1986.
Affidavits of members of the Military Security Unit, Military Security
Command, Philippine Army, stationed at Camp Eldridge, Los Baos,
Laguna, disclosed that Elizabeth Dimaano is the mistress of
respondent. That respondent usually goes and stays and sleeps in
the alleged house of Elizabeth Dimaano in Barangay Tengga, Itaas,
Batangas City and when he arrives, Elizabeth Dimaano embraces
and kisses respondent. That on February 25, 1986, a person who
rode in a car went to the residence of Elizabeth Dimaano with four (4)
attache cases filled with money and owned by MGen Ramas.
Sworn statement in the record disclosed also that Elizabeth Dimaano
had no visible means of income and is supported by respondent for
she was formerly a mere secretary.
Taking in toto the evidence, Elizabeth Dimaano could not have used
the military equipment/items seized in her house on March 3, 1986
without the consent of respondent, he being the Commanding
General of the Philippine Army. It is also impossible for Elizabeth
Dimaano to claim that she owns the P2,870,000.00 and $50,000 US
Dollars for she had no visible source of income.

This money was never declared in the Statement of Assets and

Liabilities of respondent. There was an intention to cover the
existence of these money because these are all ill-gotten and
unexplained wealth. Were it not for the affidavits of the members of
the Military Security Unit assigned at Camp Eldridge, Los Baos,
Laguna, the existence and ownership of these money would have
never been known.
The Statement of Assets and Liabilities of respondent were also
submitted for scrutiny and analysis by the Boards
consultant. Although the amount of P2,870,000.00 and $50,000 US
Dollars were not included, still it was disclosed that respondent has
an unexplained wealth of P104,134. 60.
IV. CONCLUSION:
In view of the foregoing, the Board finds that a prima facie case exists
against respondent for ill-gotten and unexplained wealth in the
amount of P2,974,134.00 and $50,000 US Dollars.
V. RECOMMENDATION:
Wherefore it is recommended that Maj. Gen. Josephus Q. Ramas
(ret.) be prosecuted and tried for violation of RA 3019, as amended,
otherwise known as Anti-Graft and Corrupt Practices Act and RA
1379, as amended, otherwise known as The Act for the Forfeiture of
Unlawfully Acquired Property.[3]
Thus, on 1 August 1987, the PCGG filed a petition for forfeiture
under Republic Act No. 1379 (RA No. 1379) [4] against Ramas.
Before Ramas could answer the petition, then Solicitor General
Francisco I. Chavez filed an Amended Complaint naming the
Republic of the Philippines (petitioner), represented by the PCGG, as
plaintiff and Ramas as defendant. The Amended Complaint also
impleaded Elizabeth Dimaano (Dimaano) as co-defendant.
The Amended Complaint alleged that Ramas was the
Commanding General of the Philippine Army until 1986. On the other
hand, Dimaano was a confidential agent of the Military Security Unit,
Philippine Army, assigned as a clerk-typist at the office of Ramas
from 1 January 1978 to February 1979. The Amended Complaint

further alleged that Ramas acquired funds, assets and properties

manifestly out of proportion to his salary as an army officer and his
other income from legitimately acquired property by taking undue
advantage of his public office and/or using his power, authority and
influence as such officer of the Armed Forces of the Philippines and
as a subordinate and close associate of the deposed President
Ferdinand Marcos.[5]
The Amended Complaint also alleged that the AFP Board, after a
previous inquiry, found reasonable ground to believe that
respondents have violated RA No. 1379. [6] The Amended Complaint
prayed for, among others, the forfeiture of respondents properties,
funds and equipment in favor of the State.
Ramas filed an Answer with Special and/or Affirmative Defenses
and Compulsory Counterclaim to the Amended Complaint. In his
Answer, Ramas contended that his property consisted only of a
residential house at La Vista Subdivision, Quezon City, valued
at P700,000, which was not out of proportion to his salary and other
legitimate income. He denied ownership of any mansion in Cebu City
and the cash, communications equipment and other items
confiscated from the house of Dimaano.
Dimaano filed her
own Answer
to the Amended
Complaint. Admitting her employment as a clerk-typist in the office of
Ramas from January-November 1978 only, Dimaano claimed
ownership of the monies, communications equipment, jewelry and
land titles taken from her house by the Philippine Constabulary
raiding team.
After termination of the pre-trial,[7] the court set the case for trial on
the merits on 9-11 November 1988.
On 9 November 1988, petitioner asked for a deferment of the
hearing due to its lack of preparation for trial and the absence of
witnesses and vital documents to support its case. The court reset
the hearing to 17 and 18 April 1989.
On 13 April 1989, petitioner filed a motion for leave to amend the
complaint in order to charge the delinquent properties with being
subject to forfeiture as having been unlawfully acquired by defendant
Dimaano alone x x x.[8]

Nevertheless, in an order dated 17 April 1989, the Sandiganbayan

proceeded with petitioners presentation of evidence on the ground
that the motion for leave to amend complaint did not state when
petitioner would file the amended complaint. The Sandiganbayan
further stated that the subject matter of the amended complaint was
on its face vague and not related to the existing complaint. The
Sandiganbayan also held that due to the time that the case had been
pending in court, petitioner should proceed to present its evidence.
After presenting only three witnesses, petitioner asked for a
postponement of the trial.
On 28 September 1989, during the continuation of the trial,
petitioner manifested its inability to proceed to trial because of the
absence of other witnesses or lack of further evidence to
present. Instead, petitioner reiterated its motion to amend the
complaint to conform to the evidence already presented or to change
the averments to show that Dimaano alone unlawfully acquired the
monies or properties subject of the forfeiture.
The Sandiganbayan noted that petitioner had already delayed the
case for over a year mainly because of its many postponements.
Moreover, petitioner would want the case to revert to its preliminary
stage when in fact the case had long been ready for trial. The
Sandiganbayan ordered petitioner to prepare for presentation of its
additional evidence, if any.
During the trial on 23 March 1990, petitioner again admitted its
inability to present further evidence. Giving petitioner one more
chance to present further evidence or to amend the complaint to
conform to its evidence, the Sandiganbayan reset the trial to 18 May
1990. The Sandiganbayan, however, hinted that the re-setting was
without prejudice to any action that private respondents might take
under the circumstances.
However, on 18 May 1990, petitioner again expressed its inability
to proceed to trial because it had no further evidence to
present. Again, in the interest of justice, the Sandiganbayan granted
petitioner 60 days within which to file an appropriate pleading. The
Sandiganbayan, however, warned petitioner that failure to act would
constrain the court to take drastic action.

Private respondents then filed their motions to dismiss based

on Republic v. Migrino.[9] The Court held in Migrino that the PCGG
does not have jurisdiction to investigate and prosecute military
officers by reason of mere position held without a showing that they
are subordinates of former President Marcos.
On 18 November 1991, the Sandiganbayan rendered a resolution,
the dispositive portion of which states:
WHEREFORE, judgment is hereby rendered dismissing the
Amended Complaint, without pronouncement as to costs. The
counterclaims are likewise dismissed for lack of merit, but the
confiscated sum of money, communications equipment, jewelry and
land titles are ordered returned to Elizabeth Dimaano.
The records of this case are hereby remanded and referred to the
Hon. Ombudsman, who has primary jurisdiction over the forfeiture
cases under R.A. No. 1379, for such appropriate action as the
evidence warrants. This case is also referred to the Commissioner of
the Bureau of Internal Revenue for a determination of any tax liability
of respondent Elizabeth Dimaano in connection herewith.
SO ORDERED.
On 4 December
Reconsideration.

1991,

petitioner

filed

its

Motion

for

In answer to the Motion for Reconsideration, private respondents

filed a Joint Comment/Opposition to which petitioner filed its Reply on
10 January 1992.
On 25 March 1992, the Sandiganbayan rendered a Resolution
denying the Motion for Reconsideration.
Ruling of the Sandiganbayan
The Sandiganbayan dismissed the Amended Complaint on the
following grounds:
(1.) The actions taken by the PCGG are not in accordance with
the rulings of the Supreme Court in Cruz, Jr. v.

Sandiganbayan[10] and Republic v. Migrino[11] which involve

the same issues.
(2.) No previous inquiry similar to preliminary investigations in
criminal cases was conducted against Ramas and
Dimaano.
(3.) The evidence adduced against Ramas does not constitute
a prima facie case against him.
(4.) There was an illegal search and seizure of the items
confiscated.
The Issues
Petitioner raises the following issues:
A. RESPONDENT COURT SERIOUSLY ERRED IN
CONCLUDING
THAT
PETITIONERS
EVIDENCE CANNOT MAKE A CASE FOR
FORFEITURE AND THAT THERE WAS NO
SHOWING OF CONSPIRACY, COLLUSION OR
RELATIONSHIP BY CONSANGUINITY OR
AFFINITY BY AND BETWEEN RESPONDENT
RAMAS AND RESPONDENT DIMAANO
NOTWITHSTANDING THE FACT THAT SUCH
CONCLUSIONS
WERE
CLEARLY
UNFOUNDED AND PREMATURE, HAVING
BEEN
RENDERED
PRIOR
TO
THE
COMPLETION OF THE PRESENTATION OF
THE EVIDENCE OF THE PETITIONER.
B. RESPONDENT COURT SERIOUSLY ERRED IN
HOLDING THAT THE ACTIONS TAKEN BY
THE PETITIONER, INCLUDING THE FILING
OF THE ORIGINAL COMPLAINT AND THE
AMENDED
COMPLAINT,
SHOULD
BE
STRUCK OUT IN LINE WITH THE RULINGS
OF THE SUPREME COURT IN CRUZ, JR. v.
SANDIGANBAYAN, 194 SCRA 474 AND

REPUBLIC v. MIGRINO, 189 SCRA 289,

NOTWITHSTANDING THE FACT THAT:
1. The cases of Cruz, Jr. v. Sandiganbayan, supra,
and Republic v. Migrino, supra, are clearly not
applicable to this case;
2. Any procedural defect in the institution of the
complaint in Civil Case No. 0037 was cured
and/or waived by respondents with the filing of
their respective answers with counterclaim;
and
3. The separate motions to dismiss were evidently
improper considering that they were filed after
commencement of the presentation of the
evidence of the petitioner and even before the
latter was allowed to formally offer its
evidence and rest its case;
C. RESPONDENT COURT SERIOUSLY ERRED IN
HOLDING THAT THE ARTICLES AND THINGS
SUCH
AS
SUMS
OF
MONEY,
COMMUNICATIONS EQUIPMENT, JEWELRY
AND LAND TITLES CONFISCATED FROM THE
HOUSE OF RESPONDENT DIMAANO WERE
ILLEGALLY SEIZED
AND
THEREFORE
[12]
EXCLUDED AS EVIDENCE.
The Courts Ruling
First Issue: PCGGs Jurisdiction to Investigate Private
Respondents
This case involves a revisiting of an old issue already decided by
this Court in Cruz, Jr. v. Sandiganbayan[13] and Republic v.
Migrino.[14]

The primary issue for resolution is whether the PCGG has the
jurisdiction to investigate and cause the filing of a forfeiture petition
against Ramas and Dimaano for unexplained wealth under RA No.
1379.
We hold that PCGG has no such jurisdiction.
The PCGG created the AFP Board to investigate the unexplained
wealth and corrupt practices of AFP personnel, whether in the active
service or retired.[15]The PCGG tasked the AFP Board to make the
necessary recommendations to appropriate government agencies on
the action to be taken based on its findings. [16] The PCGG gave this
task to the AFP Board pursuant to the PCGGs power under Section 3
of EO No. 1 to conduct investigation as may be necessary in order to
accomplish and to carry out the purposes of this order. EO No. 1
gave the PCGG specific responsibilities, to wit:
SEC. 2. The Commission shall be charged with the task of assisting
the President in regard to the following matters:
(a) The recovery of all ill-gotten wealth accumulated by former
President Ferdinand E. Marcos, his immediate family,
relatives, subordinates and close associates, whether
located in the Philippines or abroad, including the
takeover and sequestration of all business enterprises
and entities owned or controlled by them, during his
administration, directly or through nominees, by taking
undue advantage of their public office and/ or using their
powers, authority, influence, connections or relationship.
(b) The investigation of such cases of graft and corruption as
the President may assign to the Commission from time
to time.
x x x.
The PCGG, through the AFP Board, can only investigate the
unexplained wealth and corrupt practices of AFP personnel who fall
under either of the two categories mentioned in Section 2 of EO No.
1. These are: (1) AFP personnel who have accumulated ill-gotten
wealth during the administration of former President Marcos by being
the latters immediate family, relative, subordinate or close associate,

taking undue advantage of their public office or using their powers,

influence x x x;[17] or (2) AFP personnel involved in other cases of
graft and corruption provided the President assigns their cases to the
PCGG.[18]
Petitioner, however, does not claim that the President assigned
Ramas case to the PCGG. Therefore, Ramas case should fall under
the first category of AFP personnel before the PCGG could exercise
its jurisdiction over him. Petitioner argues that Ramas was
undoubtedly a subordinate of former President Marcos because of his
position as the Commanding General of the Philippine
Army. Petitioner claims that Ramas position enabled him to receive
orders directly from his commander-in-chief, undeniably making him a
subordinate of former President Marcos.
We hold that Ramas was not a subordinate of former President
Marcos in the sense contemplated under EO No. 1 and its
amendments.
Mere position held by a military officer does not automatically
make him a subordinate as this term is used in EO Nos. 1, 2, 14 and
14-A absent a showing that he enjoyed close association with former
President Marcos. Migrino discussed this issue in this wise:
A close reading of EO No. 1 and related executive orders will readily
show what is contemplated within the term subordinate. The Whereas
Clauses of EO No. 1 express the urgent need to recover the ill-gotten
wealth amassed by former President Ferdinand E. Marcos, his
immediate family, relatives, and close associates both here and
abroad.
EO No. 2 freezes all assets and properties in the Philippines in which
former President Marcos and/or his wife, Mrs. Imelda Marcos, their
close relatives, subordinates, business associates, dummies, agents,
or nominees have any interest or participation.
Applying the rule in statutory construction known as ejusdem
generis that is[W]here general words follow an enumeration of persons or things by
words of a particular and specific meaning, such general words are
not to be construed in their widest extent, but are to be held as

applying only to persons or things of the same kind or class as those

specifically mentioned [Smith, Bell & Co, Ltd. vs. Register of Deeds of
Davao, 96 Phil. 53, 58, citing Black on Interpretation of Laws, 2 nd Ed.,
203].
[T]he term subordinate as used in EO Nos. 1 & 2 refers to one who
enjoys a close association with former President Marcos and/or his
wife, similar to the immediate family member, relative, and close
associate in EO No. 1 and the close relative, business associate,
dummy, agent, or nominee in EO No. 2.
xxx
It does not suffice, as in this case, that the respondent is or was a
government official or employee during the administration of former
President Marcos. There must be a prima facie showing that the
respondent unlawfully accumulated wealth by virtue of his close
association or relation with former Pres. Marcos and/or his wife.
(Emphasis supplied)
Ramas position alone as Commanding General of the Philippine
Army with the rank of Major General[19] does not suffice to make him a
subordinate of former President Marcos for purposes of EO No. 1 and
its amendments. The PCGG has to provide a prima facie showing
that Ramas was a close associate of former President Marcos, in the
same manner that business associates, dummies, agents or
nominees of former President Marcos were close to him. Such close
association is manifested either by Ramas complicity with former
President Marcos in the accumulation of ill-gotten wealth by the
deposed President or by former President Marcos acquiescence in
Ramas own accumulation of ill-gotten wealth if any.
This, the PCGG failed to do.
Petitioners attempt to differentiate the instant case
from Migrino does not convince us. Petitioner argues that unlike
in Migrino, the AFP Board Resolution in the instant case states that
the AFP Board conducted the investigation pursuant to EO Nos. 1, 2,
14 and 14-A in relation to RA No. 1379. Petitioner asserts that there is
a presumption that the PCGG was acting within its jurisdiction of
investigating crony-related cases of graft and corruption and that

Ramas was truly a subordinate of the former President. However, the

same AFP Board Resolution belies this contention. Although the
Resolution begins with such statement, it ends with the following
recommendation:
V. RECOMMENDATION:
Wherefore it is recommended that Maj. Gen. Josephus Q. Ramas
(ret.) be prosecuted and tried for violation of RA 3019, as amended,
otherwise known as Anti-Graft and Corrupt Practices Act and RA
1379, as amended, otherwise known as The Act for the Forfeiture of
Unlawfully Acquired Property.[20]
Thus, although the PCGG sought to investigate and prosecute private
respondents under EO Nos. 1, 2, 14 and 14-A, the result yielded a
finding of violation of Republic Acts Nos. 3019 and 1379 without any
relation to EO Nos. 1, 2, 14 and 14-A. This absence of relation to EO
No. 1 and its amendments proves fatal to petitioners case. EO No. 1
created the PCGG for a specific and limited purpose, and necessarily
its powers must be construed to address such specific and limited
purpose.
Moreover, the resolution of the AFP Board and even the Amended
Complaint do not show that the properties Ramas allegedly owned
were accumulated by him in his capacity as a subordinate of his
commander-in-chief. Petitioner merely enumerated the properties
Ramas allegedly owned and suggested that these properties were
disproportionate to his salary and other legitimate income without
showing that Ramas amassed them because of his close association
with former President Marcos. Petitioner, in fact, admits that the AFP
Board resolution does not contain a finding that Ramas accumulated
his wealth because of his close association with former President
Marcos, thus:
10. While it is true that the resolution of the Anti-Graft Board of the
New Armed Forces of the Philippines did not categorically find
a prima facie evidence showing that respondent Ramas
unlawfully accumulated wealth by virtue of his close association
or relation with former President Marcos and/or his wife, it is
submitted that such omission was not fatal. The resolution of the
Anti-Graft Board should be read in the context of the law creating the

same and the objective of the investigation which was, as stated in

the above, pursuant to Republic Act Nos. 3019 and 1379 in relation to
Executive Order Nos. 1, 2, 14 and 14-a;[21] (Emphasis supplied)
Such omission is fatal. Petitioner forgets that it is precisely
a prima facie showing that the ill-gotten wealth was accumulated by a
subordinate of former President Marcos that vests jurisdiction on
PCGG. EO No. 1[22] clearly premises the creation of the PCGG on the
urgent need to recover all ill-gotten wealth amassed by former
President Marcos, his immediate family, relatives, subordinates and
close associates. Therefore, to say that such omission was not fatal
is clearly contrary to the intent behind the creation of the PCGG.
In Cruz, Jr. v. Sandiganbayan,[23] the Court outlined the cases
that fall under the jurisdiction of the PCGG pursuant to EO Nos. 1, 2,
[24]
14,[25] 14-A:[26]
A careful reading of Sections 2(a) and 3 of Executive Order No. 1 in
relation with Sections 1, 2 and 3 of Executive Order No. 14, shows
what the authority of the respondent PCGG to investigate and
prosecute covers:
(a) the investigation and prosecution of the civil action for the
recovery of ill-gotten wealth under Republic Act No.
1379, accumulated by former President Marcos, his
immediate family, relatives, subordinates and close
associates, whether located in the Philippines or abroad,
including the take-over or sequestration of all business
enterprises and entities owned or controlled by them,
during his administration, directly or through his
nominees, by taking undue advantage of their public
office and/or using their powers, authority and
influence, connections or relationships; and
(b) the investigation and prosecution of such offenses
committed in the acquisition of said ill-gotten wealth as
contemplated under Section 2(a) of Executive Order No.
1.
However, other violations of the Anti-Graft and Corrupt Practices
Act not otherwise falling under the foregoing categories, require

a previous authority of the President for the respondent PCGG

to investigate and prosecute in accordance with Section 2 (b) of
Executive Order No. 1. Otherwise, jurisdiction over such cases
is vested in the Ombudsman and other duly authorized
investigating agencies such as the provincial and city
prosecutors, their assistants, the Chief State Prosecutor and his
assistants and the state prosecutors. (Emphasis supplied)
The proper government agencies, and not the PCGG, should
investigate and prosecute forfeiture petitions not falling under EO No.
1 and its amendments.The preliminary investigation of unexplained
wealth amassed on or before 25 February 1986 falls under the
jurisdiction of the Ombudsman, while the authority to file the
corresponding forfeiture petition rests with the Solicitor General.
[27]
The Ombudsman Act or Republic Act No. 6770 (RA No. 6770)
vests in the Ombudsman the power to conduct preliminary
investigation and to file forfeiture proceedings involving unexplained
wealth amassed after 25 February 1986.[28]
After the pronouncements of the Court in Cruz, the PCGG still
pursued this case despite the absence of a prima facie finding that
Ramas was a subordinate of former President Marcos. The petition
for forfeiture filed with the Sandiganbayan should be dismissed for
lack of authority by the PCGG to investigate respondents since there
is no prima facie showing that EO No. 1 and its amendments apply to
respondents. The AFP Board Resolution and even the Amended
Complaint state that there are violations of RA Nos. 3019 and
1379. Thus, the PCGG should have recommended Ramas case to
the Ombudsman who has jurisdiction to conduct the preliminary
investigation of ordinary unexplained wealth and graft cases. As
stated in Migrino:
[But] in view of the patent lack of authority of the PCGG to investigate
and cause the prosecution of private respondent for violation of Rep.
Acts Nos. 3019 and 1379, the PCGG must also be enjoined from
proceeding with the case, without prejudice to any action that may be
taken by the proper prosecutory agency. The rule of law mandates
that an agency of government be allowed to exercise only the powers
granted to it.

Petitioners argument that private respondents have waived any

defect in the filing of the forfeiture petition by submitting their
respective Answers with counterclaim deserves no merit as well.
Petitioner has no jurisdiction over private respondents. Thus,
there is no jurisdiction to waive in the first place. The PCGG cannot
exercise investigative or prosecutorial powers never granted to
it. PCGGs powers are specific and limited. Unless given additional
assignment by the President, PCGGs sole task is only to recover the
ill-gotten wealth of the Marcoses, their relatives and cronies.
[29]
Without these elements, the PCGG cannot claim jurisdiction over a
case.
Private respondents questioned the authority and jurisdiction of
the PCGG to investigate and prosecute their cases by filing their
Motion to Dismiss as soon as they learned of the pronouncement of
the Court in Migrino. This case was decided on 30 August 1990,
which explains why private respondents only filed their Motion to
Dismiss on 8 October 1990. Nevertheless, we have held that the
parties may raise lack of jurisdiction at any stage of the proceeding.
[30]
Thus, we hold that there was no waiver of jurisdiction in this case.
Jurisdiction is vested by law and not by the parties to an action. [31]
Consequently, the petition should be dismissed for lack of
jurisdiction by the PCGG to conduct the preliminary investigation. The
Ombudsman may still conduct the proper preliminary investigation for
violation of RA No. 1379, and if warranted, the Solicitor General may
file the forfeiture petition with the Sandiganbayan. [32] The right of the
State to forfeit unexplained wealth under RA No. 1379 is not subject
to prescription, laches or estoppel.[33]
Second Issue: Propriety of Dismissal of Case
Before Completion of Presentation of Evidence
Petitioner also contends that the Sandiganbayan erred in
dismissing the case before completion of the presentation of
petitioners evidence.
We disagree.

Based on the findings of the Sandiganbayan and the records of

this case, we find that petitioner has only itself to blame for noncompletion of the presentation of its evidence. First, this case has
been pending for four years before the Sandiganbayan dismissed
it. Petitioner
filed
its
Amended Complaint on11
August 1987, and only began to present its evidence on 17 April
1989. Petitioner had almost two years to prepare its evidence.
However, despite this sufficient time, petitioner still delayed the
presentation of the rest of its evidence by filing numerous motions for
postponements and extensions. Even before the date set for the
presentation of its evidence, petitioner filed, on 13 April 1989, a
Motion for Leave to Amend the Complaint. [34] The motion sought to
charge the delinquent properties (which comprise most of petitioners
evidence) with being subject to forfeiture as having been unlawfully
acquired by defendant Dimaano alone x x x.
The Sandiganbayan, however, refused to defer the presentation
of petitioners evidence since petitioner did not state when it would file
the amended complaint. On 18 April 1989, the Sandiganbayan set the
continuation of the presentation of evidence on 28-29 September and
9-11 October 1989, giving petitioner ample time to prepare its
evidence. Still, on 28 September 1989, petitioner manifested its
inability to proceed with the presentation of its evidence. The
Sandiganbayan issued an Order expressing its view on the matter, to
wit:
The Court has gone through extended inquiry and a narration of the
above events because this case has been ready for trial for over a
year and much of the delay hereon has been due to the inability of
the government to produce on scheduled dates for pre-trial and for
trial documents and witnesses, allegedly upon the failure of the
military to supply them for the preparation of the presentation of
evidence thereon. Of equal interest is the fact that this Court has
been held to task in public about its alleged failure to move cases
such as this one beyond the preliminary stage, when, in view of the
developments such as those of today, this Court is now faced with a
situation where a case already in progress will revert back to the
preliminary stage, despite a five-month pause where appropriate
action could have been undertaken by the plaintiff Republic. [35]

On 9 October 1989, the PCGG manifested in court that it was

conducting a preliminary investigation on the unexplained wealth of
private respondents as mandated by RA No. 1379. [36] The PCGG
prayed for an additional four months to conduct the preliminary
investigation. The Sandiganbayan granted this request and
scheduled the presentation of evidence on 26-29 March
1990. However, on the scheduled date, petitioner failed to inform the
court of the result of the preliminary investigation the PCGG
supposedly conducted. Again, the Sandiganbayan gave petitioner
until 18 May 1990 to continue with the presentation of its evidence
and to inform the court of what lies ahead insofar as the status of the
case is concerned x x x.[37] Still on the date set, petitioner failed to
present its evidence. Finally, on 11 July 1990, petitioner filed its ReAmended Complaint.[38] The Sandiganbayan correctly observed that a
case already pending for years would revert to its preliminary stage if
the court were to accept the Re-Amended Complaint.
Based on these circumstances, obviously petitioner has only itself
to blame for failure to complete the presentation of its evidence. The
Sandiganbayan gave petitioner more than sufficient time to finish the
presentation of its evidence. The Sandiganbayan overlooked
petitioners delays and yet petitioner ended the long-string of delays
with the filing of a Re-Amended Complaint, which would only prolong
even more the disposition of the case.
Moreover,
the
pronouncements
of
the
Court
in Migrino and Cruz prompted the Sandiganbayan to dismiss the
case since the PCGG has no jurisdiction to investigate and prosecute
the case against private respondents. This alone would have been
sufficient legal basis for the Sandiganbayan to dismiss the forfeiture
case against private respondents.
Thus, we hold that the Sandiganbayan did not err in dismissing
the case before completion of the presentation of petitioners
evidence.
Third Issue: Legality of the Search and Seizure
Petitioner claims that the Sandiganbayan erred in declaring the
properties confiscated from Dimaanos house as illegally seized and

therefore inadmissible in evidence. This issue bears a significant

effect on petitioners case since these properties comprise most of
petitioners evidence against private respondents. Petitioner will not
have much evidence to support its case against private respondents
if these properties are inadmissible in evidence.
On 3 March 1986, the Constabulary raiding team served at
Dimaanos residence a search warrant captioned Illegal Possession of
Firearms and Ammunition. Dimaano was not present during the raid
but Dimaanos cousins witnessed the raid. The raiding team seized
the items detailed in the seizure receipt together with other
items not included in the search warrant. The raiding team seized
these items: one baby armalite rifle with two magazines; 40 rounds of
5.56 ammunition; one pistol, caliber .45; communications equipment,
cash consisting of P2,870,000 and US$50,000, jewelry, and land
titles.
Petitioner wants the Court to take judicial notice that the raiding
team conducted the search and seizure on March 3, 1986 or five
days after the successful EDSA revolution. [39] Petitioner argues that a
revolutionary government was operative at that time by virtue of
Proclamation No. 1 announcing that President Aquino and Vice
President Laurel were taking power in the name and by the will of the
Filipino people.[40] Petitioner asserts that the revolutionary
government effectively withheld the operation of the 1973
Constitution which guaranteed private respondents exclusionary right.
Moreover, petitioner argues that the exclusionary right arising
from an illegal search applies only beginning 2 February 1987, the
date of ratification of the 1987 Constitution. Petitioner contends that
all rights under the Bill of Rights had already reverted to its embryonic
stage at the time of the search. Therefore, the government may
confiscate the monies and items taken from Dimaano and use the
same in evidence against her since at the time of their seizure,
private respondents did not enjoy any constitutional right.
Petitioner is partly right in its arguments.
The EDSA Revolution took place on 23-25 February 1986. As
succinctly stated in President Aquinos Proclamation No. 3 dated 25
March 1986, the EDSA Revolution was done in defiance of the
provisions of the 1973 Constitution.[41] The resulting government
was indisputably a revolutionary government bound by no constitution

or legal limitations except treaty obligations that the revolutionary

government, as the de jure government in the Philippines, assumed
under international law.
The correct issues are: (1) whether the revolutionary government
was bound by the Bill of Rights of the 1973 Constitution during
the interregnum, that is,after the actual and effective take-over of
power by the revolutionary government following the cessation of
resistance by loyalist forces up to 24 March 1986 (immediately before
the adoption of the Provisional Constitution); and (2) whether the
protection accorded to individuals under the International Covenant
on Civil and Political Rights (Covenant) and the Universal Declaration
of Human Rights (Declaration) remained in effect during the
interregnum.
We hold that the Bill of Rights under the 1973 Constitution was
not operative during the interregnum. However, we rule that the
protection accorded to individuals under the Covenant and the
Declaration remained in effect during the interregnum.
During the interregnum, the directives and orders of the
revolutionary government were the supreme law because no
constitution limited the extent and scope of such directives and
orders. With the abrogation of the 1973 Constitution by the successful
revolution, there was no municipal law higher than the directives and
orders of the revolutionary government. Thus, during the interregnum,
a person could not invoke any exclusionary right under a Bill of Rights
because there was neither a constitution nor a Bill of Rights during
the interregnum. As the Court explained in Letter of Associate
Justice Reynato S. Puno:[42]
A revolution has been defined as the complete overthrow of the
established government in any country or state by those who were
previously subject to it or as a sudden, radical and fundamental
change in the government or political system, usually effected with
violence or at least some acts of violence. In Kelsen's book, General
Theory of Law and State, it is defined as that which occurs whenever
the legal order of a community is nullified and replaced by a new
order . . . a way not prescribed by the first order itself.
It was through the February 1986 revolution, a relatively peaceful
one, and more popularly known as the people power revolution that

the Filipino people tore themselves away from an existing regime.

This revolution also saw the unprecedented rise to power of the
Aquino government.
From the natural law point of view, the right of revolution has been
defined as an inherent right of a people to cast out their rulers,
change their policy or effect radical reforms in their system of
government or institutions by force or a general uprising when the
legal and constitutional methods of making such change have proved
inadequate or are so obstructed as to be unavailable. It has been
said that the locus of positive law-making power lies with the people
of the state and from there is derived the right of the people to
abolish, to reform and to alter any existing form of government
without regard to the existing constitution.
xxx
It is widely known that Mrs. Aquinos rise to the presidency was
not due to constitutional processes; in fact, it was achieved in
violation of the provisions of the 1973 Constitution as a
Batasang Pambansa resolution had earlier declared Mr. Marcos
as the winner in the 1986 presidential election. Thus it can be said
that the organization of Mrs. Aquinos Government which was met by
little resistance and her control of the state evidenced by the
appointment of the Cabinet and other key officers of the
administration, the departure of the Marcos Cabinet officials, revamp
of the Judiciary and the Military signaled the point where the legal
system then in effect, had ceased to be obeyed by the
Filipino. (Emphasis supplied)
To hold that the Bill of Rights under the 1973 Constitution
remained operative during the interregnum would render void all
sequestration orders issued by the Philippine Commission on Good
Government (PCGG) before the adoption of the Freedom
Constitution. The sequestration orders, which direct the freezing and
even the take-over of private property by mere executive issuance
without judicial action, would violate the due process and search and
seizure clauses of the Bill of Rights.
During the interregnum, the government in power was concededly
a revolutionary government bound by no constitution. No one could

validly question the sequestration orders as violative of the Bill of

Rights because there was no Bill of Rights during the
interregnum. However, upon the adoption of the Freedom
Constitution, the sequestered companies assailed the sequestration
orders as contrary to the Bill of Rights of the Freedom Constitution.
In Bataan Shipyard & Engineering Co. Inc. vs. Presidential
Commission on Good Government,[43] petitioner Baseco, while
conceding there was no Bill of Rights during the interregnum,
questioned the continued validity of the sequestration orders upon
adoption of the Freedom Constitution in view of the due process
clause in its Bill of Rights. The Court ruled that the Freedom
Constitution,
and
later
the
1987
Constitution, expressly
recognized the validity of sequestration orders, thus:
If any doubt should still persist in the face of the foregoing
considerations as to the validity and propriety of sequestration, freeze
and takeover orders, it should be dispelled by the fact that these
particular remedies and the authority of the PCGG to issue them
have received constitutional approbation and sanction. As already
mentioned, the Provisional or Freedom Constitution recognizes the
power and duty of the President to enact measures to achieve the
mandate of the people to . . . (r)ecover ill-gotten properties amassed
by the leaders and supporters of the previous regime and protect the
interest of the people through orders of sequestration or freezing of
assets or accounts. And as also already adverted to, Section 26,
Article XVIII of the 1987 Constitution treats of, and ratifies the
authority to issue sequestration or freeze orders under Proclamation
No. 3 dated March 25, 1986.
The framers of both the Freedom Constitution and the 1987
Constitution were fully aware that the sequestration orders would
clash with the Bill of Rights.Thus, the framers of both constitutions
had to include specific language recognizing the validity of the
sequestration orders. The following discourse by Commissioner
Joaquin G. Bernas during the deliberations of the Constitutional
Commission is instructive:
FR. BERNAS: Madam President, there is something schizophrenic
about the arguments in defense of the present amendment.

For instance, I have carefully studied Minister Salongas

lecture in the Gregorio Araneta University Foundation, of
which all of us have been given a copy. On the one hand, he
argues that everything the Commission is doing is traditionally
legal. This is repeated by Commissioner Romulo also. Minister
Salonga spends a major portion of his lecture developing that
argument. On the other hand, almost as an afterthought, he
says that in the end what matters are the results and not the
legal niceties, thus suggesting that the PCGG should be
allowed to make some legal shortcuts, another word for
niceties or exceptions.
Now, if everything the PCGG is doing is legal, why is it asking
the CONCOM for special protection? The answer is
clear. What they are doing will not stand the test of
ordinary due process, hence they are asking for
protection, for exceptions. Grandes malos, grandes
remedios, fine, as the saying stands, but let us not say
grandes malos, grande y malos remedios. That is not an
allowable extrapolation. Hence, we should not give the
exceptions asked for, and let me elaborate and give three
reasons:
First, the whole point of the February Revolution and of the
work of the CONCOM is to hasten constitutional normalization.
Very much at the heart of the constitutional normalization is
the full effectivity of the Bill of Rights. We cannot, in one
breath, ask for constitutional normalization and at the same
time ask for a temporary halt to the full functioning of what is at
the heart of constitutionalism. That would be hypocritical; that
would be a repetition of Marcosian protestation of due process
and rule of law. The New Society word for that is backsliding. It
is tragic when we begin to backslide even before we get there.
Second, this is really a corollary of the first. Habits tend to
become ingrained. The committee report asks for
extraordinary exceptions from the Bill of Rights for six months
after the convening of Congress, and Congress may even
extend this longer.
Good deeds repeated ripen into virtue; bad deeds repeated
become vice. What the committee report is asking for is that
we should allow the new government to acquire the vice of
disregarding the Bill of Rights.

Vices, once they become ingrained, become difficult to shed.

The practitioners of the vice begin to think that they have a
vested right to its practice, and they will fight tooth and nail to
keep the franchise. That would be an unhealthy way of
consolidating the gains of a democratic revolution.
Third, the argument that what matters are the results and not
the legal niceties is an argument that is very disturbing. When
it comes from a staunch Christian like Commissioner Salonga,
a Minister, and repeated verbatim by another staunch
Christian like Commissioner Tingson, it becomes doubly
disturbing and even discombobulating. The argument makes
the PCGG an auctioneer, placing the Bill of Rights on the
auction block. If the price is right, the search and seizure
clause will be sold. Open your Swiss bank account to us and
we will award you the search and seizure clause. You can
keep it in your private safe.
Alternatively, the argument looks on the present government
as hostage to the hoarders of hidden wealth. The hoarders will
release the hidden health if the ransom price is paid and the
ransom price is the Bill of Rights, specifically the due process
in the search and seizure clauses. So, there is something
positively revolving about either argument. The Bill of Rights is
not for sale to the highest bidder nor can it be used to ransom
captive dollars. This nation will survive and grow strong, only if
it would become convinced of the values enshrined in the
Constitution of a price that is beyond monetary estimation.
For these reasons, the honorable course for the Constitutional
Commission is to delete all of Section 8 of the committee
report and allow the new Constitution to take effect in full vigor.
If Section 8 is deleted, the PCGG has two options. First, it can
pursue the Salonga and the Romulo argument that what the
PCGG has been doing has been completely within the pale of
the law. If sustained, the PCGG can go on and should be able
to go on, even without the support of Section 8. If not
sustained, however, the PCGG has only one honorable option,
it must bow to the majesty of the Bill of Rights.
The PCGG extrapolation of the law is defended by staunch
Christians. Let me conclude with what another Christian
replied when asked to toy around with the law. From his prison
cell, Thomas More said, "I'll give the devil benefit of law for my

nations safety sake. I ask the Commission to give the devil

benefit of law for our nations sake. And we should delete
Section 8.
Thank you, Madam President. (Emphasis supplied)
Despite the impassioned plea by Commissioner Bernas against
the
amendment
excepting sequestration orders from the Bill of Rights, the
Constitutional Commission still adopted the amendment as Section
26,[44] Article XVIII of the 1987 Constitution. The framers of the
Constitution were fully aware that absent Section 26, sequestration
orders would not stand the test of due process under the Bill of
Rights.
Thus, to rule that the Bill of Rights of the 1973 Constitution
remained in force during the interregnum, absent a constitutional
provision excepting sequestration orders from such Bill of Rights,
would clearly render all sequestration orders void during the
interregnum. Nevertheless, even during the interregnum the Filipino
people continued to enjoy, under the Covenant and the Declaration,
almost the same rights found in the Bill of Rights of the 1973
Constitution.
The revolutionary government, after installing itself as the de
jure government, assumed responsibility for the States good faith
compliance with the Covenant to which the Philippines is a
signatory. Article 2(1) of the Covenant requires each signatory State
to respect and to ensure to all individuals within its territory and
subject to its jurisdiction the rights [45] recognized in the present
Covenant. Under Article 17(1) of the Covenant, the revolutionary
government had the duty to insure that [n]o one shall be subjected to
arbitrary or unlawful interference with his privacy, family, home or
correspondence.
The Declaration, to which the Philippines is also a signatory,
provides in its Article 17(2) that [n]o one shall be arbitrarily deprived
of his property. Although the signatories to the Declaration did not
intend it as a legally binding document, being only a declaration, the
Court has interpreted the Declaration as part of the generally
accepted principles of international law and binding on the State.
[46]
Thus, the revolutionary government was also obligated under

international law to observe the rights[47] of individuals under the

Declaration.
The revolutionary government did not repudiate the Covenant or
the Declaration during the interregnum. Whether the revolutionary
government could have repudiated all its obligations under the
Covenant or the Declaration is another matter and is not the issue
here. Suffice it to say that the Court considers the Declaration as part
of customary international law, and that Filipinos as human beings
are proper subjects of the rules of international law laid down in the
Covenant. The fact is the revolutionary government did not repudiate
the Covenant or the Declaration in the same way it repudiated the
1973 Constitution. As the de jure government, the revolutionary
government could not escape responsibility for the States good faith
compliance with its treaty obligations under international law.
It was only upon the adoption of the Provisional Constitution on 25
March 1986 that the directives and orders of the revolutionary
government became subject to a higher municipal law that, if
contravened, rendered such directives and orders void. The
Provisional Constitution adopted verbatim the Bill of Rights of the
1973 Constitution.[48] The Provisional Constitution served as a selflimitation by the revolutionary government to avoid abuses of the
absolute powers entrusted to it by the people.
During the interregnum when no constitution or Bill of Rights
existed, directives and orders issued by government officers were
valid so long as these officers did not exceed the authority granted
them by the revolutionary government. The directives and orders
should not have also violated the Covenant or the Declaration. In this
case, the revolutionary government presumptively sanctioned the
warrant since the revolutionary government did not repudiate it. The
warrant, issued by a judge upon proper application, specified the
items to be searched and seized. The warrant is thus valid with
respect to the items specifically described in the warrant.
However, the Constabulary raiding team seized items not included
in the warrant. As admitted by petitioners witnesses, the raiding team
confiscated items not included in the warrant, thus:
Direct Examination of Capt. Rodolfo Sebastian
AJ AMORES

Q. According to the search warrant, you are supposed to

seize only for weapons. What else, aside from the
weapons, were seized from the house of Miss
Elizabeth Dimaano?
A. The communications equipment, money in Philippine
currency and US dollars, some jewelries, land titles,
sir.
Q. Now, the search warrant speaks only of weapons to be
seized from the house of Elizabeth Dimaano. Do you
know the reason why your team also seized other
properties not mentioned in said search warrant?
A. During the conversation right after the conduct of said
raid, I was informed that the reason why they also
brought the other items not included in the search
warrant was because the money and other jewelries
were contained in attach cases and cartons with
markings Sony Trinitron, and I think three (3) vaults or
steel safes. Believing that the attach cases and the
steel safes were containing firearms, they forced open
these containers only to find out that they contained
money.
xxx
Q. You said you found money instead of weapons, do you
know the reason why your team seized this money
instead of weapons?
A. I think the overall team leader and the other two officers
assisting him decided to bring along also the money
because at that time it was already dark and they felt
most secured if they will bring that because they might
be suspected also of taking money out of those items,
your Honor.[49]
Cross-examination
Atty. Banaag

Q. Were you present when the search warrant in

connection with this case was applied before the
Municipal Trial Court of Batangas, Branch 1?
A. Yes, sir.
Q. And the search warrant applied for by you was for the
search and seizure of five (5) baby armalite rifles M-16
and five (5) boxes of ammunition?
A. Yes, sir.
xxx
AJ AMORES
Q. Before you applied for a search warrant, did you
conduct surveillance in the house of Miss Elizabeth
Dimaano?
A. The Intelligence Operatives conducted surveillance
together with the MSU elements, your Honor.
Q. And this party believed there were weapons deposited
in the house of Miss Elizabeth Dimaano?
A. Yes, your Honor.
Q. And they so swore before the Municipal Trial Judge?
A. Yes, your Honor.
Q. But they did not mention to you, the applicant for the
search warrant, any other properties or contraband
which could be found in the residence of Miss
Elizabeth Dimaano?
A. They just gave us still unconfirmed report about some
hidden items, for instance, the communications
equipment and money. However, I did not include that
in the application for search warrant considering that
we have not established concrete evidence about
that. So when
Q. So that when you applied for search warrant, you had
reason to believe that only weapons were in the house
of Miss Elizabeth Dimaano?
A. Yes, your Honor.[50]

xxx
Q. You stated that a .45 caliber pistol was seized along
with one armalite rifle M-16 and how many
ammunition?
A. Forty, sir.
Q. And this became the subject of your complaint with the
issuing Court, with the fiscals office who charged
Elizabeth Dimaano for Illegal Possession of Firearms
and Ammunition?
A. Yes, sir.
Q. Do you know what happened to that case?
A. I think it was dismissed, sir.
Q. In the fiscals office?
A. Yes, sir.
Q. Because the armalite rifle you seized, as well as the .45
caliber pistol had a Memorandum Receipt in the name
of Felino Melegrito, is that not correct?
A. I think that was the reason, sir.
Q. There were other articles seized which were not
included in the search warrant, like for instance,
jewelries. Why did you seize the jewelries?
A. I think it was the decision of the overall team leader and
his assistant to bring along also the jewelries and
other items, sir. I do not really know where it was
taken but they brought along also these articles. I do
not really know their reason for bringing the same, but
I just learned that these were taken because they
might get lost if they will just leave this behind.
xxx
Q. How about the money seized by your raiding team, they
were not also included in the search warrant?
A. Yes sir, but I believe they were also taken considering
that the money was discovered to be contained in
attach cases. These attach cases were suspected to
be containing pistols or other high powered firearms,

but in the course of the search the contents turned out

to be money. So the team leader also decided to take
this considering that they believed that if they will just
leave the money behind, it might get lost also.
Q. That holds true also with respect to the other articles
that were seized by your raiding team, like Transfer
Certificates of Title of lands?
A. Yes, sir. I think they were contained in one of the vaults
that were opened.[51]
It is obvious from the testimony of Captain Sebastian that the
warrant did not include the monies, communications equipment,
jewelry and land titles that the raiding team confiscated. The search
warrant did not particularly describe these items and the raiding team
confiscated them on its own authority. The raiding team had no legal
basis to seize these items without showing that these items could be
the subject of warrantless search and seizure. [52] Clearly, the raiding
team exceeded its authority when it seized these items.
The seizure of these items was therefore void, and unless these
items are contraband per se,[53] and they are not, they must be
returned to the person from whom the raiding seized them. However,
we do not declare that such person is the lawful owner of these items,
merely that the search and seizure warrant could not be used as
basis to seize and withhold these items from the possessor. We thus
hold that these items should be returned immediately to Dimaano.
WHEREFORE, the petition for certiorari is DISMISSED. The
questioned Resolutions of the Sandiganbayan dated 18 November
1991 and 25 March 1992 in Civil Case No. 0037, remanding the
records of this case to the Ombudsman for such appropriate action
as the evidence may warrant, and referring this case to the
Commissioner of the Bureau of Internal Revenue for a determination
of any tax liability of respondent Elizabeth Dimaano, are AFFIRMED.

10 . Philip Morrris Vs Fortune Tobacco Corporation

Republic of the Philippines

Supreme Court
Manila

SECOND DIVISION

PHILIP MORRIS, INC., BENSON

& HEDGES (CANADA), INC.,
and FABRIQUES DE TABAC
REUNIES, S.A., (now known as
PHILIP MORRIS PRODUCTS
S.A.),
Petitioners,

G.R. No. 158589

Present:
PUNO, J., Chairperson,
SANDOVAL-GUTIERREZ,
CORONA,
AZCUNA, and
GARCIA, JJ.

- versus Promulgated:
FORTUNE
CORPORATION,

TOBACCO
June 27, 2006

Respondent.
x------------------------------------------------------------------------------------x

DECISION
GARCIA, J.:
Via this petition for review under Rule 45 of the Rules of Court, herein
petitioners Philip Morris, Inc., Benson & Hedges (Canada) Inc., and
Fabriques de Tabac Reunies, S.A. (now Philip Morris Products S.A.)
seek the reversal and setting aside of the following issuances of the
Court of Appeals (CA) in CA-G.R. CV No. 66619, to wit:
1. Decision dated January 21, 2003 [1] affirming an earlier
decision of the Regional Trial Court of Pasig City,
Branch 166, in its Civil Case No. 47374, which
dismissed the complaint for trademark infringement

and damages thereat commenced by the petitioners

against respondent Fortune Tobacco Corporation;
and
2. Resolution dated May 30, 2003[2] denying petitioners
motion for reconsideration.
Petitioner Philip Morris, Inc., a corporation organized under the laws
of the State of Virginia, United States of America, is, per Certificate of
Registration No. 18723 issued on April 26, 1973 by the Philippine
Patents Office (PPO), the registered owner of the trademark MARK
VII for cigarettes. Similarly, petitioner Benson & Hedges (Canada),
Inc., a subsidiary of Philip Morris, Inc., is the registered owner of the
trademark MARK TEN for cigarettes as evidenced by PPO Certificate
of Registration No. 11147. And as can be seen in Trademark
Certificate of Registration No. 19053, another subsidiary of Philip
Morris, Inc., the Swiss company Fabriques de Tabac Reunies, S.A., is
the assignee of the trademark LARK, which was originally registered
in 1964 by Ligget and Myers Tobacco Company. On the other hand,
respondent Fortune Tobacco Corporation, a company organized in
the Philippines, manufactures and sells cigarettes using the
trademark MARK.
The legal dispute between the parties started when the herein
petitioners, on the claim that an infringement of their respective
trademarks had been committed, filed, on August 18, 1982,
a Complaint for Infringement of Trademark and Damages against
respondent Fortune Tobacco Corporation, docketed as Civil Case No.
47374 of the Regional Trial Court of Pasig, Branch 166.
The decision under review summarized what happened next, as
follows:
In the Complaint xxx with prayer for the issuance of a
preliminary injunction, [petitioners] alleged that they are
foreign
corporations
not
doing
business
in
thePhilippines and
are
suing
on
an
isolated

transaction. xxx they averred that the countries in which

they are domiciled grant xxx to corporate or juristic
persons of the Philippines the privilege to bring action for
infringement, xxx without need of a license to do business
in those countries. [Petitioners] likewise manifested [being
registered owners of the trademark MARK VII and MARK
TEN for cigarettes as evidenced by the corresponding
certificates of registration and an applicant for the
registration of the trademark LARK MILDS]. xxx.
[Petitioners] claimed that they have registered the
aforementioned trademarks in their respective countries
of origin and that, by virtue of the long and extensive
usage of the same, these trademarks have already
gained international fame and acceptance. Imputing bad
faith on the part of the [respondent], petitioners claimed
that the [respondent], without any previous consent from
any of the [petitioners], manufactured and sold cigarettes
bearing the identical and/or confusingly similar trademark
MARK xxx Accordingly, they argued that [respondents]
use of the trademark MARK in its cigarette products have
caused and is likely to cause confusion or mistake, or
would deceive purchasers and the public in general into
buying these products under the impression and mistaken
belief that they are buying [petitioners] products.
Invoking the provisions of the Paris Convention for the
Protection of Industrial and Intellectual Property (Paris
Convention, for brevity), to which the Philippines is a
signatory xxx, [petitioners] pointed out that upon the
request of an interested party, a country of the Union may
prohibit the use of a trademark which constitutes a
reproduction, imitation, or translation of a mark already
belonging to a person entitled to the benefits of the said
Convention. They likewise argued that, in accordance
with Section 21-A in relation to Section 23 of Republic Act
166, as amended, they are entitled to relief in the form of
damages xxx [and] the issuance of a writ of preliminary
injunction which should be made permanent to enjoin
perpetually the [respondent] from violating [petitioners]

right to the exclusive use of their aforementioned

trademarks.
[Respondent] filed its Answer xxx denying [petitioners]
material allegations and xxx averred [among other things]
xxx that MARK is a common word, which cannot
particularly identify a product to be the product of the
[petitioners] xxx
xxx xxx xxx.
Meanwhile,
after
the
[respondent]
filed
its Opposition (Records, Vo. I, p. 26), the matter of the
[petitioners] prayer for the issuance of a writ of preliminary
injunction was negatively resolved by the court in
an Order xxx dated March 28, 1973. [The incidental issue
of the propriety of an injunction would eventually be
elevated to the CA and would finally be resolved by the
Supreme Court in its Decision dated July 16, 1993 in G.R.
No. 91332]. xxx.
xxx xxx xxx
After the termination of the trial on the merits xxx
trial court rendered its Decision xxx dated November 3,
1999 dismissing the complaint and counterclaim after
making a finding that the [respondent] did not commit
trademark
infringement
against
the
[petitioners]. Resolving first the issue of whether or not
[petitioners] have capacity to institute the instant action,
the trial court opined that [petitioners] failure to present
evidence to support their allegation that their respective
countries indeed grant Philippine corporations reciprocal
or similar privileges by law xxx justifies the dismissal of
the complaint xxx. It added that the testimonies of
[petitioners] witnesses xxx essentially declared that
[petitioners] are in fact doing business in the Philippines,
but [petitioners] failed to establish that they are doing so
in accordance with the legal requirement of first securing
a license. Hence, the court declared that [petitioners] are

barred from maintaining any action in Philippine courts

pursuant to Section 133 of the Corporation Code.
The issue of whether or not there was infringement of the
[petitioners] trademarks by the [respondent] was likewise
answered xxx in the negative. It expounded that in order
for a name, symbol or device to constitute a trademark, it
must, either by itself or by association, point distinctly to
the origin or ownership of the article to which it is applied
and be of such nature as to permit an exclusive
appropriation by one person. Applying such principle to
the instant case, the trial court was of the opinion that the
words MARK, TEN, LARK and the Roman Numerals VII,
either alone or in combination of each other do not by
themselves or by association point distinctly to the origin
or ownership of the cigarettes to which they refer, such
that the buying public could not be deceived into believing
that [respondents] MARK cigarettes originated either from
the USA, Canada, or Switzerland.
Emphasizing that the test in an infringement case is the
likelihood of confusion or deception, the trial court stated
that the general rule is that an infringement exists if the
resemblance is so close that it deceives or is likely to
deceive a customer exercising ordinary caution in his
dealings and induces him to purchase the goods of one
manufacturer in the belief that they are those of
another. xxx. The trial court ruled that the [petitioners]
failed to pass these tests as it neither presented
witnesses or purchasers attesting that they have bought
[respondents] product believing that they bought
[petitioners] MARK VII, MARK TEN or LARK, and have
also failed to introduce in evidence a specific magazine or
periodical circulated locally, which promotes and
popularizes their products in the Philippines. It, moreover,
elucidated that the words consisting of the trademarks
allegedly infringed by [respondent] failed to show that
they have acquired a secondary meaning as to identify
them as [petitioners] products. Hence, the court ruled that

the [petitioners] cannot avail themselves of the doctrine of

secondary meaning.
As to the issue of damages, the trial court deemed it just
not to award any to either party stating that, since the
[petitioners] filed the action in the belief that they were
aggrieved by what they perceived to be an infringement of
their trademark, no wrongful act or omission can be
attributed to them. xxx.[3] (Words in brackets supplied)
Maintaining to have the standing to sue in the local forum and that
respondent has committed trademark infringement, petitioners went
on appeal to the CA whereat their appellate recourse was docketed
as CA-G.R. CV No. 66619.
Eventually, the CA, in its Decision dated January 21,
2003, while ruling for petitioners on the matter of their legal capacity
to sue in this country for trademark infringement, nevertheless
affirmed the trial courts decision on the underlying issue of
respondents liability for infringement as it found that:
xxx the appellants [petitioners] trademarks, i.e.,
MARK VII, MARK TEN and LARK, do not qualify as wellknown marks entitled to protection even without the
benefit of actual use in the local market and that the
similarities in the trademarks in question are insufficient
as to cause deception or confusion tantamount to
infringement. Consequently, as regards the third issue,
there is likewise no basis for the award of damages
prayed for by the appellants herein. [4](Word in bracket
supplied)
With their motion for reconsideration having been denied by the
CA in its equally challenged Resolution of May 30, 2003,petitioners
are now with this Court via this petition for review essentially raising
the following issues: (1) whether or not petitioners, as Philippine
registrants of trademarks, are entitled to enforce trademark rights in
this country; and (2) whether or not respondent has committed

trademark infringement against petitioners by its use of the mark

MARK for its cigarettes, hence liable for damages.
In its Comment,[5] respondent, aside from asserting the
correctness of the CAs finding on its liability for trademark
infringement and damages, also puts in issue the propriety of the
petition as it allegedly raises questions of fact.
The petition is bereft of merit.
Dealing first with the procedural matter interposed by
respondent, we find that the petition raises both questions of fact and
law contrary to the prescription against raising factual questions in a
petition for review on certiorari filed before the Court. A question of
law exists when the doubt or difference arises as to what the law is
on a certain state of facts; there is a question of fact when the doubt
or difference arises as to the truth or falsity of alleged facts. [6]
Indeed, the Court is not the proper venue to consider factual
issues as it is not a trier of facts. [7] Unless the factual findings of the
appellate court are mistaken, absurd, speculative, conflicting, tainted
with grave abuse of discretion, or contrary to the findings culled by
the court of origin,[8] we will not disturb them.
It is petitioners posture, however, that their contentions should
be treated as purely legal since they are assailing erroneous
conclusions deduced from a set of undisputed facts.
Concededly, when the facts are undisputed, the question of
whether or not the conclusion drawn therefrom by the CA is correct is
one of law.[9] But, even if we consider and accept as pure questions of
law the issues raised in this petition, still, the Court is not inclined to
disturb the conclusions reached by the appellate court, the
established rule being that all doubts shall be resolved in favor of the
correctness of such conclusions.[10]
Be that as it may, we shall deal with the issues tendered and
determine whether the CA ruled in accordance with law and
established jurisprudence in arriving at its assailed decision.

A trademark is any distinctive word, name, symbol, emblem,

sign, or device, or any combination thereof adopted and used by a
manufacturer or merchant on his goods to identify and distinguish
them from those manufactured, sold, or dealt in by others.
[11]
Inarguably, a trademark deserves protection. For, as Mr. Justice
Frankfurter observed in Mishawaka Mfg. Co. v. Kresge Co.:[12]
The protection of trademarks is the laws recognition
of the psychological function of symbols. If it is true that
we live by symbols, it is no less true that we purchase
goods by them. A trade-mark is a merchandising short-cut
which induces a purchaser to select what he wants, or
what he has been led to believe what he wants. The
owner of a mark exploits this human propensity by
making every effort to impregnate the atmosphere of the
market with the drawing power of a congenial
symbol. Whatever the means employed, the aim is the
same - to convey through the mark, in the minds of
potential customers, the desirability of the commodity
upon which it appears. Once this is attained, the trademark owner has something of value. If another poaches
upon the commercial magnetism of the symbol he has
created, the owner can obtain legal redress.
It is thus understandable for petitioners to invoke in this
recourse their entitlement to enforce trademark rights in this country,
specifically, the right to sue for trademark infringement in Philippine
courts and be accorded protection against unauthorized use of their
Philippine-registered trademarks.
In support of their contention respecting their right of
action, petitioners assert that, as corporate nationals of membercountries of the Paris Union, they can sue before Philippine courts for
infringement of trademarks, or for unfair competition, without need
of obtaining registration or a license to do business in
the Philippines, and without necessity of actually doing
business in the Philippines. To petitioners, these grievance right

and mechanism are accorded not only by Section 21-A of Republic

Act (R.A.) No. 166, as amended, or the Trademark Law, but also by
Article 2 of the Paris Convention for the Protection of Industrial
Property, otherwise known as the Paris Convention.
In any event, petitioners point out that there is actual use of
their trademarks in the Philippines as evidenced by the certificates of
registration
of
their
trademarks.
The
marks MARK
TEN and LARK were registered on the basis of actual use in
accordance with Sections 2-A[13] and 5(a)[14] of R.A. No. 166, as
amended, providing for a 2-month pre-registration use in local
commerce and trade while the registration of MARK VII was on the
basis of registration in the foreign country of origin pursuant to
Section 37 of the same law wherein it is explicitly provided that prior
use in commerce need not be alleged.[15]
Besides, petitioners argue that their not doing business in
the Philippines, if that be the case, does not mean that cigarettes
bearing their trademarks are not available and sold locally.
Citing Converse Rubber Corporation v. Universal Rubber Products,
Inc.,[16]petitioners state that such availability and sale may be effected
through the acts of importers and distributors.
Finally, petitioners would press on their entitlement to protection even
in the absence of actual use of trademarks in the country in view of
the Philippines adherence to the Trade Related Aspects of
Intellectual Property Rights or the TRIPS Agreement and the
enactment of R.A. No. 8293, or the Intellectual Property Code
(hereinafter the IP Code), both of which provide that the fame of a
trademark may be acquired through promotion or advertising with no
explicit requirement of actual use in local trade or commerce.
Before discussing petitioners claimed entitlement to enforce
trademark rights in the Philippines, it must be emphasized that their
standing to sue in Philippine courts had been recognized, and rightly
so, by the CA. It ought to be pointed out, however, that the appellate
court qualified its holding with a statement, following G.R. No.

91332, entitled Philip Morris, Inc., et al. v. The Court of Appeals and
Fortune Tobacco Corporation,[17] that such right to sue does not
necessarily mean protection of their registered marks in the absence
of actual use in the Philippines.
Thus clarified, what petitioners now harp about is their
entitlement to protection on the strength of registration of their
trademarks in the Philippines.
As we ruled in G.R. No. 91332,[18] supra, so it must be here.
Admittedly, the registration of a trademark gives the registrant,
such as petitioners, advantages denied non-registrants or ordinary
users, like respondent. But while petitioners enjoy the statutory
presumptions arising from such registration, [19] i.e., as to the validity of
the registration, ownership and the exclusive right to use the
registered marks, they may not successfully sue on the basis alone of
their respective certificates of registration of trademarks. For,
petitioners are still foreign corporations. As such, they ought, as a
condition to availment of the rights and privileges vis--vis their
trademarks in this country, to show proof that, on top of Philippine
registration, their country grants substantially similar rights and
privileges to Filipino citizens pursuant to Section 21-A [20] of R.A.
No. 166.
In Leviton Industries v. Salvador,[21] the Court further held that
the aforementioned reciprocity requirement is a condition sine qua
non to filing a suit by a foreign corporation which, unless alleged in
the complaint, would justify dismissal thereof, a mere allegation that
the suit is being pursued under Section 21-A of R.A. No. 166 not
being sufficient. In a subsequent case, [22] however, the Court held that
where the complainant is a national of a Paris Convention- adhering
country, its allegation that it is suing under said Section 21-A would
suffice, because the reciprocal agreement between the two countries
is embodied and supplied by the Paris Convention which, being
considered part of Philippine municipal laws, can be taken judicial
notice of in infringement suits.[23]

As well, the fact that their respective home countries, namely,

the United States, Switzerland and Canada, are, together with the
Philippines, members of the Paris Union does not automatically
entitle petitioners to the protection of their trademarks in this
countryabsent actual use of the marks in local commerce and
trade.
True, the Philippines adherence to the Paris Convention[24] effectively
obligates the country to honor and enforce its provisions [25] as regards
the protection of industrial property of foreign nationals in this
country. However, any protection accorded has to be made subject to
the limitations of Philippine laws. [26] Hence, despite Article 2 of the
Paris Convention which substantially provides that (1) nationals of
member-countries shall have in this country rights specially provided
by the Convention as are consistent with Philippine laws, and enjoy
the privileges that Philippine laws now grant or may hereafter grant to
its nationals, and (2) while no domicile requirement in the country
where protection is claimed shall be required of persons entitled to
the benefits of the Union for the enjoyment of any industrial property
rights,[27] foreign nationals must still observe and comply with the
conditions imposed by Philippine law on its nationals.
Considering that R.A. No. 166, as amended, specifically Sections
2[28] and 2-A[29] thereof, mandates actual use of the marks and/or
emblems in local commerce and trade before they may be registered
and ownership thereof acquired, the petitioners cannot, therefore,
dispense with the element of actual use. Their being nationals of
member-countries of the Paris Union does not alter the legal
situation.
In Emerald Garment Mfg. Corporation v. Court of Appeals,
[30]
the Court reiterated its rulings in Sterling Products International,
Inc. v. Farbenfabriken Bayer Aktiengesellschaft, [31] Kabushi Kaisha
Isetan v. Intermediate Appellate Court, [32] and Philip Morris v. Court of
Appeals and Fortune Tobacco Corporation[33] on the importance
of actual
commercial
use of
a
trademark
in
the Philippinesnotwithstanding the Paris Convention:

The provisions of the 1965 Paris Convention relied

upon by private respondent and Sec. 21-A of the
Trademark Law were sufficiently expounded upon and
qualified in the recent case of Philip Morris, Inc., et. al. vs.
Court of Appeals:
xxx xxx xxx
Following universal acquiescence and comity, our
municipal law on trademarks regarding the requirements
of actual use in the Philippines must subordinate an
international agreement inasmuch as the apparent clash
is being decided by a municipal tribunal. Xxx. Withal, the
fact that international law has been made part of the law
of the land does not by any means imply the primacy of
international law over national law in the municipal
sphere. Under the doctrine of incorporation as applied in
most countries, rules of International Law are given a
standing equal, not superior, to national legislative
enactments.
xxx xxx xxx
In other words, (a foreign corporation) may have the
capacity to sue for infringement but the question of
whether they have an exclusive right over their symbol as
to justify issuance of the controversial writ will depend on
actual use of their trademarks in the Philippines in line
with Sections 2 and 2-A of the same law. It is thus
incongruous for petitioners to claim that when a foreign
corporation not licensed to do business in the Philippines
files a complaint for infringement, the entity need not be
actually using its trademark in commerce in the
Philippines. Such a foreign corporation may have the
personality to file a suit for infringement but it may not
necessarily be entitled to protection due to absence of
actual use of the emblem in the local market.
Contrary to what petitioners suggest, the registration of
trademark cannot be deemed conclusive as to the actual use of such
trademark in local commerce. As it were, registration does not confer

upon the registrant an absolute right to the registered mark. The

certificate of registration merely constitutes prima facie evidence that
the registrant is the owner of the registered mark. Evidence of nonusage of the mark rebuts the presumption of trademark ownership,
[34]
as what happened here when petitioners no less admitted not
doing business in this country.[35]
Most importantly, we stress that registration in the Philippines of
trademarks does not ipso facto convey an absolute right or exclusive
ownership thereof. To borrow from Shangri-La International Hotel
Management, Ltd. v. Development Group of Companies, Inc.
[36]
trademark is a creation of use and, therefore, actual use is a prerequisite to exclusive ownership; registration is only an administrative
confirmation of the existence of the right of ownership of the mark,
but does not perfect such right; actual use thereof is the perfecting
ingredient.[37]
Petitioners reliance on Converse Rubber Corporation[38] is quite
misplaced, that case being cast in a different factual milieu. There, we
ruled that a foreign owner of a Philippine trademark, albeit not
licensed to do, and not so engaged in, business in thePhilippines,
may actually earn reputation or goodwill for its goods in the country.
But unlike in the instant case, evidence of actual sales of Converse
rubber shoes, such as sales invoices, receipts and the testimony of a
legitimate trader, was presented in Converse.
This Court also finds the IP Code and the TRIPS Agreement to be
inapplicable, the infringement complaint herein having been filed in
August 1982 and tried under the aegis of R.A. No. 166, as amended.
The IP Code, however, took effect only on January 1, 1998 without a
provision as to its retroactivity.[39] In the same vein, the TRIPS
Agreement was inexistent when the suit for infringement was filed,
the Philippines having adhered thereto only on December 16, 1994.
With the foregoing perspective, it may be stated right off that the
registration of a trademark unaccompanied by actual use thereof in
the country accords the registrant only the standing to sue for
infringement in Philippine courts. Entitlement to protection of such
trademark in the country is entirely a different matter.

This brings us to the principal issue of infringement.

Section 22 of R.A. No. 166, as amended, defines what
constitutes trademark infringement, as follows:
Sec. 22. Infringement, what constitutes. Any person who
shall use, without the consent of the registrant, any
reproduction, counterfeit, copy or colorable imitation of
any registered mark or tradename in connection with the
sale, offering for sale, or advertising of any goods,
business or services on or in connection with which such
use is likely to cause confusion or mistake or to deceive
purchasers or others as to the source or origin of such
goods or services, or identity of such business; or
reproduce, counterfeit, copy of color ably imitate any such
mark or tradename and apply such reproduction,
counterfeit, copy or colorable imitation to labels, signs,
prints,
packages,
wrappers,
receptacles
or
advertisements intended to be used upon or in connection
with such goods, business, or services, shall be liable to a
civil action by the registrant for any or all of the remedies
herein provided.
Petitioners would insist on their thesis of infringement since
respondents mark MARK for cigarettes is confusingly or deceptively
similar with their duly registered MARK
VII, MARK
TEN
and LARK marks likewise for cigarettes. To them, the word MARK
would likely cause confusion in the trade, or deceive purchasers,
particularly as to the source or origin of respondents cigarettes.
The likelihood of confusion is the gravamen of trademark
infringement.[40] But likelihood of confusion is a relative concept, the
particular, and sometimes peculiar, circumstances of each case being
determinative of its existence. Thus, in trademark infringement cases,
more than in other kinds of litigation, precedents must be evaluated in
the light of each particular case.[41]

In determining similarity and likelihood of confusion,

jurisprudence has developed two tests: the dominancy test
and
[42]
[43]
the holistictest. The
dominancy test sets
sight
on
the
similarity of the prevalent features of the competing trademarks that
might cause confusion and deception, thus constitutes
infringement. Under this norm, the question at issue turns on whether
the use of the marks involved would be likely to cause confusion or
mistake in the mind of the public or deceive purchasers. [44]
In contrast, the holistic test[45] entails a consideration of the
entirety of the marks as applied to the products, including the labels
and packaging, in determining confusing similarity.
Upon consideration of the foregoing in the light of the peculiarity
of this case, we rule against the likelihood of confusion resulting in
infringement arising from the respondents use of the trademark
MARK for its particular cigarette product.
For one, as rightly concluded by the CA after comparing the
trademarks involved in their entirety as they appear on the products,
[46]
the striking dissimilarities are significant enough to warn any
purchaser that one is different from the other. Indeed, although the
perceived offending word MARK is itself prominent in petitioners
trademarks MARK VII and MARK TEN, the entire marking system
should be considered as a whole and not dissected, because a
discerning eye would focus not only on the predominant word but
also on the other features appearing in the labels. Only then would
such discerning observer draw his conclusion whether one mark
would be confusingly similar to the other and whether or not sufficient
differences existed between the marks.[47]
This said, the CA then, in finding that respondents goods
cannot be mistaken as any of the three cigarette brands of the
petitioners, correctly relied on the holistic test.
But, even if the dominancy test were to be used, as urged by
the petitioners, but bearing in mind that a trademark serves as a tool

to point out distinctly the origin or ownership of the goods to which it

is affixed,[48] the likelihood of confusion tantamount to infringement
appears to be farfetched. The reason for the origin and/or ownership
angle is that unless the words or devices do so point out the origin or
ownership, the person who first adopted them cannot be injured by
any appropriation or imitation of them by others, nor can the public be
deceived.[49]
Since the word MARK, be it alone or in combination with the
word TEN and the Roman numeral VII, does not point to the origin or
ownership of the cigarettes to which they apply, the local buying
public could not possibly be confused or deceived that respondents
MARK is the product of petitioners and/or originated from the U.S.A.,
Canada or Switzerland. And lest it be overlooked, no actual
commercial use of petitioners marks in local commerce was proven.
There can thus be no occasion for the public in this country,
unfamiliar in the first place with petitioners marks, to be confused.
For another, a comparison of the trademarks as they appear on
the goods is just one of the appreciable circumstances in determining
likelihood of confusion. Del Monte Corp. v. CA[50] dealt with
another, where we instructed to give due regard to the ordinary
purchaser, thus:
The question is not whether the two articles are
distinguishable by their label when set side by side but
whether the general confusion made by the article upon
the eye of the casual purchaser who is unsuspicious and
off his guard, is such as to likely result in his confounding
it with the original. As observed in several cases, the
general impression of the ordinary purchaser, buying
under the normally prevalent conditions in trade and
giving the attention such purchasers usually give in
buying that class of goods is the touchstone.

When we spoke of an ordinary purchaser, the reference was

not to the completely unwary customer but to the ordinarily intelligent
buyer considering the type of product involved. [51]
It cannot be over-emphasized that the products involved are
addicting cigarettes purchased mainly by those who are already
predisposed to a certain brand. Accordingly, the ordinary buyer
thereof would be all too familiar with his brand and discriminating as
well. We, thus, concur with the CA when it held, citing a definition
found in Dy Buncio v. Tan Tiao Bok,[52] that the ordinary purchaserin
this case means one accustomed to buy, and therefore to some
extent familiar with, the goods in question.
Pressing on with their contention respecting the commission of
trademark infringement, petitioners finally point to Section 22 of R.A.
No. 166, as amended. As argued, actual use of trademarks in local
commerce is, under said section, not a requisite before an aggrieved
trademark owner can restrain the use of his trademark upon goods
manufactured or dealt in by another, it being sufficient that he had
registered the trademark or trade-name with the IP Office. In fine,
petitioners submit that respondent is liable for infringement,
havingmanufactured and sold cigarettes with the trademark MARK
which, as it were, are identical and/or confusingly similar with their
duly registered trademarks MARK VII, MARK TEN and LARK.
This Court is not persuaded.
In Mighty Corporation v. E & J Gallo Winery,[53] the Court held
that the following constitute the elements of trademark infringement in
accordance not only with Section 22 of R.A. No. 166, as amended,
but also Sections 2, 2-A, 9-A[54] and 20 thereof:
(a) a trademark actually used in commerce in
the Philippines and registered in the principal register of
the Philippine Patent Office,
(b) is used by another person in connection with the sale,
offering for sale, or advertising of any goods, business or

services or in connection with which such use is likely to

cause confusion or mistake or to deceive purchasers or
others as to the source or origin of such goods or
services, or identity of such business; or such trademark
is reproduced, counterfeited, copied or colorably imitated
by another person and such reproduction, counterfeit,
copy or colorable imitation is applied to labels, signs,
prints,
packages,
wrappers,
receptacles
or
advertisements intended to be used upon or in connection
with such goods, business or services as to likely cause
confusion or mistake or to deceive purchasers,
(c) the trademark is used for identical or similar goods,
and
(d) such act is done without the consent of the trademark
registrant or assignee.
As already found herein, while petitioners have
registered
the trademarks MARK VII, MARK TEN and LARK for cigarettes in the
Philippines, prior actual commercial use thereof had not been
proven. In fact, petitioners judicial admission of not doing business in
this country effectively belies any pretension to the contrary.
Likewise, we note that petitioners even failed to support their
claim that their respective marks are well-known and/or have
acquired goodwill in the Philippines so as to be entitled to protection
even without actual use in this country in accordance with Article
6bis[55] of the Paris Convention. As correctly found by the CA,
affirming that of the trial court:
xxx the records are bereft of evidence to establish
that the appellants [petitioners] products are indeed wellknown in the Philippines, either through actual sale of the
product or through different forms of advertising. This
finding is supported by the fact that appellants admit in
their Complaint that they are not doing business in
the Philippines, hence, admitting that their products are
not being sold in the local market. We likewise see no

cogent reason to disturb the trial courts finding that the

appellants failed to establish that their products are widely
known by local purchasers as (n)o specific magazine or
periodical published in the Philippines, or in other
countries but circulated locally have been presented by
the appellants during trial. The appellants also were not
able to show the length of time or the extent of the
promotion or advertisement made to popularize their
products in the Philippines.[56]
Last,
but
not
least,
we must
reiterate that the
issue of trademark infringement is factual,
with both the trial
and
appellate courts having peremptorily found allegations of infringement
on the part of respondent to be without basis. As we said time and
time again, factual determinations of the trial court, concurred in by
the CA, are final and binding on this Court. [57]
For lack of convincing proof on the part of the petitioners of
actual use of their registered trademarks prior to respondents use of
its mark and for petitioners failure to demonstrate confusing similarity
between said trademarks, the dismissal of their basic complaint for
infringement and the concomitant plea for damages must be affirmed.
The law, the surrounding circumstances and the equities of the
situation call for this disposition.
WHEREFORE, the petition is hereby DENIED. Accordingly, the
assailed decision and resolution of the Court of Appeals
areAFFIRMED.
Costs against the petitioners.
SO ORDERED.

ATTESTATION
I attest that the conclusions in the above decision were reached in
consultation before the case was assigned to the writer of the opinion
of the Courts Division.

REYNATO S. PUNO
Associate Justice
Chairperson, Second Division

CERTIFICATION
Pursuant to Article VIII, Section 13 of the Constitution, and the
Division Chairperson's Attestation, it is hereby certified that the
conclusions in the above decision were reached in consultation
before the case was assigned to the writer of the opinion of the Court.
ARTEMIO V. PANGANIBAN
Chief Justice

[1]

Penned by Associate Justice Mercedes Gozo-Dadole (ret.) and

concurred in by Associate Justices Bennie Adefuin-Dela Cruz
(ret.) and Mariano C. del Castillo; Rollo, pp. 9-34.

[2]

Id. at 36.

[3]

CA Decision; Id. at 10-19.

[4]

CA Decision; Id. at 33.

[5]

Id. at 228-296.

[6]

Ramos v. Pepsi-Cola Bottling Co. of the Phils., L-22533, February

9, 1967, 19 SCRA 289, 292.

[7]

Moomba Mining Exploration Co. v. CA, G.R. No. 108846, October

26, 99, 317 SCRA 388, 397.

[8]

Smith Kline Beckman Corporation v. CA, G.R. No. 126627, August

14, 2003, 409 SCRA 33, 39.

[9]

F. D. Regalado, REMEDIAL LAW COMPENDIUM, Vol. 1, 1999 ed.,

p. 541.

[10]

Ibid., citing Pilar Dev. Corp. v. IAC, et

72283, December 12, 1986, 146 SCRA 215.

[11]

Sec. 38 of R.A. No. 166.

[12]

316 U.S. 203, 53 USPQ 323 [1942] cited in Societe Des Produits
Nestle, S.A. v. Court of Appeals, G.R. No. 112012, April 4,
2001, 356 SCRA 207, 215.

[13]

Sec. 2-A. Ownership of trademarks, trade names and

servicemarks; how acquired. Anyone who lawfully produces or
deals in merchandise of any kind or who engages in any lawful
business, xxx, by actual use thereof in manufacture or trade, in
business, xxx, may appropriate to his exclusive use a
trademark, a trade name, or a servicemark not so appropriated
by another, to distinguish his merchandise, [or] business xxx
from the merchandise, business or service of others. The
ownership or possession of a trademark, trade name,
servicemark, heretofore or hereafter appropriated, as in this
section provided, shall be recognized and protected in the
same manner and to the same extent as are other property
rights known to the law.

[14]

SEC. 5. Requirements of the application. xxx

al.,

G.R.

No.

(a) Sworn statement of the applicants domicile and

citizenship, the date of the applicants first use of the mark
or trade-name, the date of the applicants first use of the
mark or trade-name in commerce or business, the goods,
business or services in connection with which the mark or
trade-name is used and the mode or manner in which the
mark is used in connection with such goods, business or
services, and that the person making the application
believes himself, or the firm, corporation or association on
whose behalf he makes the verification, to be the owner
of the mark or trade-name sought to be registered, that
the mark or trade-name is in use in commerce or
business, and that to be best of his knowledge no person,
firm, corporation or association has the right to use such
mark or trade-name in commerce or business either in the
identical form thereof or in such near resemblance thereto
as might be calculated to deceive; xxx.
[15]

Sec. 37. Rights of Foreign Registrants-Persons who are nationals

of, domiciled in, or have a bona fide or effective business or
commercial establishment in any foreign country, which is a
party to an international convention or treaty relating to marks
or tradenames on the repression of unfair competition to which
the Philippines may be a party, shall be entitled to the benefits
and subject to the provisions of this Act . . . x x x

Tradenames of persons described in the first paragraph of this

section shall be protected without the obligation of filing or
registration (sic) whether or not they form parts of marks.
[16]

G.R. No. L-27906, January 8, 1987, 147 SCRA 154.

[17]

Philip Morris, Inc., et al. vs. CA, et al., July 16, 1993, 224 SCRA
576, 595.

[18]

Superseded by R.A. No. 8293 which took effect on January 1,

1998.

[19]

SEC. 20. Certificate of registration prima facie evidence of

validity. - A certificate of registration of a mark or trade name

shall be prima facie evidence of the validity of the registration,

the registrants ownership of the mark xxx, and of the registrants
exclusive right to use the same xxx, subject to any conditions
and limitations stated therein. (Superseded by Sec. 138 of R.A.
No. 8293).
[20]

SECTION 21-A. Any foreign corporation or juristic person to which

a mark or trade-name has been registered or assigned under
this Act may bring an action hereunder for infringement, xxx,
whether or not it has been licensed to do business in the
Philippines under Act [No. 1495] or the Corporation Law, at the
time it brings complaint: Provided, That the country of which the
said foreign corporation or juristic person is a citizen or in which
it is domiciled, by treaty, convention or law, grants a similar
privilege to corporate or juristic persons of the
Philippines. (Superseded by Section 160 of R.A. No. 8293)

[21]

G.R. No. L-40163, June 19, 1982, 114 SCRA 420.

[22]

Puma Sportschufabriken Rudolf Dassler, K.G. v. IAC., G.R. No.

75067, February 26, 1988, 158 SCRA 233.

[23]

Agpalo, The Law on Trademark, Infringement

Competition, 2000 ed., pp. 209-210.

[24]

The Paris Convention is essentially a compact among the various

member countries to accord in their own countries to citizens of
the other contracting parties trademarks and other rights
comparable to those accorded their own citizens by their
domestic laws. The underlying principle is that foreign nationals
should be given the same treatment in each of the member
countries as that country makes available to its own
citizens. (La Chemise Lacoste, S.A. v. Fernandez, G.R. No. L63796-97, May 21, 1984, 129 SCRA 373.)

[25]

See La Chemise Lacoste S.A. v. Fernandez, supra at pp. 386-387.

[26]

Agpalo, The Law on Trademark,

Competition, supra at p. 199.

Infringement

and

and

Unfair

Unfair

[27]

ART. 2. Nationals of each of the countries of the Union shall, as

regards the protection of industrial property, enjoy in all the
other countries of the Union the advantages that their
respective laws now grant, or may hereafter grant, to nationals,
without prejudice to the rights specially provided by the present
Convention. Consequently, they shall have the same protection
as the latter, and the same legal remedy against any
infringement of their rights, provided they observe the
conditions and formalities imposed upon nationals.

[28]

Sec. 2. What are registrable. Trademarks, tradenames and service

marks owned by persons, corporations, partnerships or
associations domiciled in the Philippines and by persons,
corporations, partnerships or associations domiciled in any
foreign country may be registered in accordance with the
provisions of this Act; Provided, That said trademarks,
tradenames, or service marks are actually in use in
commerce and services not less than two months in the
Philippines before the time the applications for registration are
filed; And provided, further, That the country of which the
applicant for registration is a citizen grants by law substantially
similar privileges to citizens of the Philippines, and such fact is
officially certified, . (As amended by R.A. No. 865).

[29]

Sec. 2-A. Ownership of trademarks, trade names and

servicemarks; how acquired. Anyone who lawfully produces or
deals in merchandise of any kind or who engages in any lawful
business, or who renders any lawful service in commerce, by
actual use thereof in manufacture or trade, in business, and in
the service rendered, may appropriate to his exclusive use a
trademark, a trade name, or a servicemark not so appropriated
by another, to distinguish his merchandise, business or service
from the merchandise, business or service of others. The
ownership or possession of a trademark, trade name,
servicemark, heretofore or hereafter appropriated, as in this
section provided, shall be recognized and protected in the
same manner and to the same extent as are other property
rights known to the law.(Now Sec. 122 of R.A. No. 8293.)

DIGEST:
PHILIP MORRIS, INC. VS. FORTUNE TOBACCO CORPORATION (Equal Standing
of International Law and Municipal Law)
Penned by:
GARCIA, J.:Petition for review under Rule 45 of the Rules of Court
, petitioners
Philip Morris, Inc.,Benson & Hedges (Canada) Inc., and Fabriques de Tabac
Reunies, S.A.
(now Philip Morris ProductsS.A.)
seek the reversal and setting aside of the following issuances of the Court
of Appeals (CA)
in CA-G.R. CV No. 66619:
PETITION DENIED
1. Decision dated January 21, 20031 affirming an earlier decision of the
Regional Trial Court of Pasig City, Branch 166, in its Civil Case No. 47374

Dismissed
the complaint for trademark infringement and damages
thereatcommenced by the petitioners against respondent Fortune Tobacco
Corporation; and2. Resolution dated May 30, 20032 denying petitioners
motion for reconsideration
.
FACTS OF THE CASE:

Petitioner Philip Morris, Inc.

, a corporation (State of Virginia, U.S.A), is the
registeredowner of the trademark MARK VII for cigarettes.
(per Certificate of Registration No.18723 issued on April 26, 1973 by the
Philippine Patents Office (PPO)

Similarly, petitioner
Benson & Hedges (Canada), Inc.,
a subsidiary of Philip Morris, Inc.
,
is the registered owner of the trademark
MARK TEN

for cigarettes (PPO Certificate of Registration No. 11147)

Fabriques de Tabac Reunies, S.A.

(Swiss company), another subsidiary of Philip Morris,Inc., is the
assignee of the trademark LARK,
(Trademark Certificate of RegistrationNo. 19053) (originally registered in 1964
by Ligget and Myers Tobacco Company)

Respondent Fortune Tobacco Corporation

, a company organized in the Philippines,manufactures and sells cigarettes
using the trademark
MARK.

Petitioners, on the claim that an

infringement of their respective trademarks
had beencommitted, filed, on August 18, 1982, a
Complaint for Infringement of Trademark andDamages
against respondent Fortune Tobacco Corporation, docketed as Civil Case
No.47374 of the
Regional Trial Court of Pasig
, Branch 166.
The decision under review summarized what happened next, as follows:
o
Prayer for the issuance of a
preliminary injunction
, [petitioners] alleged that they are foreign corporations not doingbusiness in the
Philippines and are suing on an isolated transaction.
o
Countries in which they are domiciled grant to corporate or juristic persons of
the Philippines the privilege to bringaction for infringement, without need of a
license to do business in those countries.
o
[Petitioners] likewise manifested [being registered owners of the trademark
MARK VII and MARK TEN
o
registered the trademarks in their respective countries of origin

by virtue of the long and extensive usage of the same, these trademarks have
already gained internationalfame and acceptance


[respondent], without any previous consent from any of the
[petitioners], manufactured and soldcigarettes bearing the identical and/or
confusingly similar trademark MARK

have caused and is likely to cause confusion or mistake, or would deceive

purchasers and the public ingeneral into buying these products under the
impression and mistaken belief that they are buying[petitioners] products.
o
Invoked provisions of the
Paris Convention for the Protection of Industrial and Intellectual
Property
(ParisConvention)
o
Philippines is a signatory, [petitioners] pointed out that upon the
request of an interested party, a country of theUnion may prohibit the
use of a trademark which constitutes a reproduction, imitation, or translation of
a markalready belonging to a person entitled to the benefits of the said
Convention. In accordance
with Section 21-A inrelation to Section 23 of Republic Act 166
, as amended, they are entitled to relief in the form of damages[and] the
issuance of a writ of preliminary injunction which should be made permanent.
o
[Respondent] filed its Answer denying [petitioners] material
allegations and averred [among other things] that
MARK is a common word, which cannot particularly identify a
product to be the product of the [petitioners]
o
After the termination of the trial on the merits trial court rendered its
Decision dated November 3, 1999
dismissing
thecomplaint and counterclaim after making a finding that the [respondent] did
not commit trademark infringement against the[petitioners].
o
The issue of whether or not there was infringement of the
[petitioners] trademarks by the[respondent] was likewise answered in
the negative.
It expounded that in order for a name, symbol or device to

constitute a trademark, it must, either by itself or by association, point

distinctly to the origin or ownership of the article towhich it is applied and
be of such nature as to permit an exclusive appropriation by one person.

Maintaining to have the

standing to sue in the local forum
and that respondent hascommitted trademark infringement, petitioners
went on appeal to the CA.
(
Appellaterecourse
docket CA-G.R. CV No. 66619)
o
CA decision on January 21, 2003 (while ruling for petitioners on the matter
of their
legal capacity to sue in this country
for trademark infringement)
affirmed the trialcourts decision on the underlying issue of respondents liability
forinfringement
.

Motion for reconsideration denied by the CA

(Resolution of May 30, 2003)
ISSUES

Petitioners seek petition for review (Court of Appeals):

o
(1)
whether or not petitioners, as Philippine registrants of trademarks, areentitled to
enforce trademark rights in this country;
o
(2) whether or not respondent has committed trademark infringement
againstpetitioners by its use of the mark MARK for its cigarettes, hence liable
for damages.

Respondent:
issue the propriety of the petition as it allegedly raises questions of
fact.

The petition is bereft of merit.


Petition raises both questions of fact and law
o
question of law
exists when the doubt or difference arises as to what the law is on a
certain state of facts
o
question of fact
when the doubt or difference arises as to the truth or falsity of alleged facts

Court is not the proper venue to consider factual issues as it is not a trier of
facts

Unless the factual findings of the appellate court are mistaken, absurd,
speculative, conflicting,tainted with grave abuse of discretion, or contrary to the
findings culled by the court of origin,we will not disturb them

Petitioners:
contentions should be treated as purely legal since they are assailing
erroneous conclusionsdeduced from a set of undisputed facts

A
trademark
is any distinctive word, name, symbol, emblem, sign, or device, or
anycombination thereof adopted and used by a manufacturer or merchant on
his goods toidentify and distinguish them from those manufactured, sold, or
dealt in by others.
o
A trademark deserves protection.
PETITIONER:

Petitioners
assert that,
as corporate nationals of member-countries of the ParisUnion, they can
sue before Philippine
courts for infringement of trademarks, or forunfair competition
, without need of obtaining registration or a license to dobusiness in the
Philippines, and without necessity of actually doing business inthe Philippines.
o

Right and mechanism are accorded by

Section 21-A of Republic Act (R.A.) No. 166

or the
Trademark Law
, asamended

Article 2 of the Paris Convention for the Protection of IndustrialProperty

, aka
Paris Convention.

Not doing business in the Philippines does not mean that cigarettes bearing
their trademarks are not available and sold locally
. Citing
Converse Rubber Corporation v.Universal Rubber Products, Inc.
, such availability and sale may be effected through the
acts of importers and distributors
.

Entitlement to protection even in the absence of actual use of trademarks in

thecountry
o
Philippines adherence to the
Trade Related Aspects of Intellectual PropertyRights or the TRIPS Agreement
o
enactment of R
.A. No. 8293, or the Intellectual Property Code
(IP Code)
o
fame of a trademark may be acquired through promotion or advertising with
noexplicit requirement of actual use in local trade or commerce

Before discussing petitioners claimed entitlement to enforce trademark rights in

thePhilippines,
it must be emphasized that their standing to sue in Philippine courtshad been
recognized, and rightly so, by the CA
o

such right to sue does not necessarily mean protection of their

registered marks in the absence of actual use in the Philippines.
Thus clarified, what
petitioner
s now harp about is their
entitlement to protection on thestrength of registration of their trademarks in the
Philippines.
HELD/RATIO:
As we ruled in G.R. No. 91332,18 :
1. RECIPROCITY REQUIREMENT

Registration of a trademark gives the registrant (petitioners) advantages

denied non-registrants or ordinary users (respondent)
o
validity of the registration
o
ownership and the exclusive right to use the registered marks

they may not successfully sue on the basis alone of their respective certificates
of registration of trademarks.
o
Petitioners:
still foreign corporations
o
condition to availment of the rights and privileges
& their
trademarks
in thiscountry:

On top of Philippine registration,

their country grants substantiallysimilar rights and privileges to Filipino citizens
pursuant to Section 21-A20 of R.A. No. 166.

In
Leviton Industries v. Salvador
o
Court:
reciprocity requirement
is a condition sine qua non to filing a suit by aforeign corporation


Unless alleged in the complaint, would justify dismissal
o
complainant is a national of a Paris Convention- adhering country, itsallegation
that it is suing under said Section 21-A would suffice, becausethe reciprocal
agreement between the two countries is embodied andsupplied by the Paris
Convention

being considered part of Philippine municipal laws, can be taken judicial

notice of in infringement suits.
2. REGISTRATION VERSUS ACUAL USE!!

members of the Paris Union does not automatically entitle petitioners to theprotection of
their trademarks in this countryABSENTACTUALUSE OF THE MARKSIN LOCAL
COMMERCE AND TRADE
.

Philippines adherence to the

Paris Convention effectively obligates the country tohonor and enforce its
provisions(
as regards the protection of industrial property of foreign nationals in this
country)

11.) AGUSTIN VS EDU

Agustin v Edu (1979) 88 SCRA 195
Facts:
Leovillo Agustin, the owner of a Beetle, challenged the
constitutionality of Letter of Instruction 229 and its implementing order
No. 1 issued by LTO Commissioner Romeo Edu. His car already had
warning lights and did not want to use this.
The letter was promulgation for the requirement of an early warning
device installed on a vehicle to reduce accidents between moving
vehicles and parked cars.
The LTO was the issuer of the device at the rate of not more than
15% of the acquisition cost.
The triangular reflector plates were set when the car parked on any
street or highway for 30 minutes. It was mandatory.
Petitioner: 1. LOI violated the provisions and delegation of police
power, equal protection, and due process/
2. It was oppressive because the make manufacturers and car
dealers millionaires at the expense f car owners at 56-72 pesos per
set.
Hence the petition.
The OSG denied the allegations in par X and XI of the petition with
regard to the unconstitutionality and undue delegation of police power
to such acts.
The Philippines was also a member of the 1968 Vienna convention of
UN on road signs as a regulation. To the petitioner, this was still an
unlawful delegation of police power.
Issue:

Is the LOI constitutional? If it is, is it a valid delegation of police

power?
Held: Yes on both. Petition dismissed.
Ratio:
Police power, according to the case of Edu v Ericta, which cited J.
Taney, is nothing more or less than the power of government inherent
in every sovereignty.
The case also says that police power is state authority to enact
legislation that may interfere with personal liberty or property to
promote the general welfare.
Primicias v Fulgoso- It is the power to describe regulations to
promote the health, morals, peace, education, good order, and
general welfare of the people.
J. Carazo- government limitations to protect constitutional rights did
not also intend to enable a citizen to obstruct unreasonable the
enactment of measures calculated to insure communal peace.
There was no factual foundation on petitioner to refute validity.
Ermita Malate Hotel-The presumption of constitutionality must prevail
in the absence of factual record in over throwing the statute.
Brandeis- constitutionality must prevail in the absence of some
factual foundation in overthrowing the statute.
Even if the car had blinking lights, he must still buy reflectors. His
claims that the statute was oppressive was fantastic because the
reflectors were not expensive.
SC- blinking lights may lead to confusion whether the nature and
purpose of the driver is concerned.
Unlike the triangular reflectors, whose nature is evident because its
installed when parked for 30 minutes and placed from 400 meters
from the car allowing drivers to see clearly.
There was no constitutional basis for petitioner because the law
doesnt violate any constitutional provision.
LOI 229 doesnt force motor vehicle owners to purchase the reflector
from the LTO. It only prescribes rge requirement from any source.
The objective is public safety.
The Vienna convention on road rights and PD 207 both
recommended enforcement for installation of ewds. Bother possess
relevance in applying rules with the decvlaration of principles in the
Constitution.

On the unlawful delegation of legislative power, the petitioners have

no settled legal doctrines.

FULL CASE:
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-49112 February 2, 1979
LEOVILLO C. AGUSTIN, petitioner,
vs.
HON. ROMEO F. EDU, in his capacity as Land Transportation
Commissioner; HON. JUAN PONCE ENRILE, in his capacity as
Minister of National Defense; HON. ALFREDO L. JUINIO, in his
capacity as Minister Of Public Works, Transportation and
Communications; and HON: BALTAZAR AQUINO, in his capacity
as Minister of Public Highways, respondents.
Leovillo C. Agustin Law Office for petitioner.
Solicitor General Estelito P. Mendoza, Assistant Solicitor General
Ruben E. Agpalo and Solicitor Amado D. Aquino for respondents.

FERNANDO, J.:
The validity of a letter of Instruction 1 providing for an early seaming
device for motor vehicles is assailed in this prohibition proceeding as
being violative of the constitutional guarantee of due process and,
insofar as the rules and regulations for its implementation are
concerned, for transgressing the fundamental principle of nondelegation of legislative power. The Letter of Instruction is stigmatized
by petitioner who is possessed of the requisite standing, as being

arbitrary and oppressive. A temporary restraining order as issued and

respondents Romeo F. Edu, Land Transportation Commissioner Juan
Ponce Enrile, Minister of National Defense; Alfredo L. Juinio, Minister
of Public Works, Transportation and Communications; and Baltazar
Aquino, Minister of Public Highways; were to answer. That they did in
a pleading submitted by Solicitor General Estelito P.
Mendoza. 2 Impressed with a highly persuasive quality, it makes
devoid clear that the imputation of a constitutional infirmity is devoid
of justification The Letter of Instruction on is a valid police power
measure. Nor could the implementing rules and regulations issued by
respondent Edu be considered as amounting to an exercise of
legislative power. Accordingly, the petition must be dismissed.
The facts are undisputed. The assailed Letter of Instruction No. 229
of President Marcos, issued on December 2, 1974, reads in full:
"[Whereas], statistics show that one of the major causes of fatal or
serious accidents in land transportation is the presence of disabled,
stalled or parked motor vehicles along streets or highways without
any appropriate early warning device to signal approaching motorists
of their presence; [Whereas], the hazards posed by such obstructions
to traffic have been recognized by international bodies concerned
with traffic safety, the 1968 Vienna Convention on Road Signs and
Signals and the United Nations Organization (U.N.); [Whereas], the
said Vienna Convention which was ratified by the Philippine
Government under P.D. No. 207, recommended the enactment of
local legislation for the installation of road safety signs and devices;
[Now, therefore, I, Ferdinand E. Marcos], President of the Philippines,
in the interest of safety on all streets and highways, including
expressways or limited access roads, do hereby direct: 1. That all
owners, users or drivers of motor vehicles shall have at all times in
their motor vehicles at least one (1) pair of early warning device
consisting of triangular, collapsible reflectorized plates in red and
yellow colors at least 15 cms. at the base and 40 cms. at the sides. 2.
Whenever any motor vehicle is stalled or disabled or is parked for
thirty (30) minutes or more on any street or highway, including
expressways or limited access roads, the owner, user or driver
thereof shall cause the warning device mentioned herein to be
installed at least four meters away to the front and rear of the motor
vehicle staged, disabled or parked. 3. The Land Transportation
Commissioner shall cause Reflectorized Triangular Early Warning

Devices, as herein described, to be prepared and issued to registered

owners of motor vehicles, except motorcycles and trailers, charging
for each piece not more than 15 % of the acquisition cost. He shall
also promulgate such rules and regulations as are appropriate to
effectively implement this order. 4. All hereby concerned shall closely
coordinate and take such measures as are necessary or appropriate
to carry into effect then instruction. 3 Thereafter, on November 15,
1976, it was amended by Letter of Instruction No. 479 in this wise.
"Paragraph 3 of Letter of Instruction No. 229 is hereby amended to
read as follows: 3. The Land transportation Commissioner shall
require every motor vehicle owner to procure from any and present at
the registration of his vehicle, one pair of a reflectorized early warning
device, as d bed of any brand or make chosen by mid motor vehicle .
The Land Transportation Commissioner shall also promulgate such
rule and regulations as are appropriate to effectively implement this
order.'" 4 There was issued accordingly, by respondent Edu, the
implementing rules and regulations on December 10, 1976. 5 They
were not enforced as President Marcos on January 25, 1977, ordered
a six-month period of suspension insofar as the installation of early
warning device as a pre-registration requirement for motor vehicle
was concerned. 6 Then on June 30, 1978, another Letter of
Instruction 7 the lifting of such suspension and directed the immediate
implementation of Letter of Instruction No. 229 as amended. 8 It was
not until August 29, 1978 that respondent Edu issued Memorandum
Circular No. 32, worded thus: "In pursuance of Letter of Instruction
No. 716, dated June 30, 1978, the implementation of Letter of
Instruction No. 229, as amended by Letter of Instructions No. 479,
requiring the use of Early Warning Devices (EWD) on motor vehicle,
the following rules and regulations are hereby issued: 1. LTC
Administrative Order No. 1, dated December 10, 1976; shall now be
implemented provided that the device may come from whatever
source and that it shall have substantially complied with the EWD
specifications contained in Section 2 of said administrative order; 2.
In order to insure that every motor vehicle , except motorcycles, is
equipped with the device, a pair of serially numbered stickers, to be
issued free of charge by this Commission, shall be attached to each
EWD. The EWD. serial number shall be indicated on the registration
certificate and official receipt of payment of current registration fees of
the motor vehicle concerned. All Orders, Circulars, and Memoranda
in conflict herewith are hereby superseded, This Order shall take

effect immediately. 9 It was for immediate implementation by

respondent Alfredo L. Juinio, as Minister of Public Works,
transportation, and Communications. 10
Petitioner, after setting forth that he "is the owner of a Volkswagen
Beetle Car, Model 13035, already properly equipped when it came
out from the assembly lines with blinking lights fore and aft, which
could very well serve as an early warning device in case of the
emergencies mentioned in Letter of Instructions No. 229, as
amended, as well as the implementing rules and regulations in
Administrative Order No. 1 issued by the land transportation
Commission," 11 alleged that said Letter of Instruction No. 229, as
amended, "clearly violates the provisions and delegation of police
power, [sic] * * *: " For him they are "oppressive, unreasonable,
arbitrary, confiscatory, nay unconstitutional and contrary to the
precepts of our compassionate New Society." 12 He contended that
they are "infected with arbitrariness because it is harsh, cruel and
unconscionable to the motoring public;" 13 are "one-sided, onerous
and patently illegal and immoral because [they] will make
manufacturers and dealers instant millionaires at the expense of car
owners who are compelled to buy a set of the so-called early warning
device at the rate of P 56.00 to P72.00 per set." 14 are unlawful and
unconstitutional and contrary to the precepts of a compassionate
New Society [as being] compulsory and confiscatory on the part of
the motorists who could very well provide a practical alternative road
safety device, or a better substitute to the specified set of
EWD's." 15 He therefore prayed for a judgment both the assailed
Letters of Instructions and Memorandum Circular void and
unconstitutional and for a restraining order in the meanwhile.
A resolution to this effect was handed down by this Court on October
19, 1978: "L-49112 (Leovillo C. Agustin v. Hon. Romeo F. Edu, etc., et
al.) Considering the allegations contained, the issues raised and
the arguments adduced in the petition for prohibition with writ of p
prohibitory and/or mandatory injunction, the Court Resolved to
(require) the respondents to file an answer thereto within ton (10)
days from notice and not to move to dismiss the petition. The Court
further Resolved to [issue] a [temporary restraining order] effective as
of this date and continuing until otherwise ordered by this Court. 16

Two motions for extension were filed by the Office of the Solicitor
General and granted. Then on November 15, 1978, he Answer for
respondents was submitted. After admitting the factual allegations
and stating that they lacked knowledge or information sufficient to
form a belief as to petitioner owning a Volkswagen Beetle car," they
"specifically deny the allegations and stating they lacked knowledge
or information sufficient to form a belief as to petitioner owning a
Volkswagen Beetle Car, 17 they specifically deny the allegations in
paragraphs X and XI (including its subparagraphs 1, 2, 3, 4) of
Petition to the effect that Letter of Instruction No. 229 as amended by
Letters of Instructions Nos. 479 and 716 as well as Land
transportation Commission Administrative Order No. 1 and its
Memorandum Circular No. 32 violates the constitutional provisions on
due process of law, equal protection of law and undue delegation of
police power, and that the same are likewise oppressive, arbitrary,
confiscatory, one-sided, onerous, immoral unreasonable and illegal
the truth being that said allegations are without legal and factual basis
and for the reasons alleged in the Special and Affirmative Defenses
of this Answer." 18 Unlike petitioner who contented himself with a
rhetorical recital of his litany of grievances and merely invoked the
sacramental phrases of constitutional litigation, the Answer, in
demonstrating that the assailed Letter of Instruction was a valid
exercise of the police power and implementing rules and regulations
of respondent Edu not susceptible to the charge that there was
unlawful delegation of legislative power, there was in the portion
captioned Special and Affirmative Defenses, a citation of what
respondents believed to be the authoritative decisions of this Tribunal
calling for application. They are Calalang v. Williams, 19 Morfe v.
Mutuc, 20 and Edu v. Ericta. 21 Reference was likewise made to the
1968 Vienna Conventions of the United Nations on road traffic, road
signs, and signals, of which the Philippines was a signatory and
which was duly ratified. 22 Solicitor General Mendoza took pains to
refute in detail, in language calm and dispassionate, the vigorous, at
times intemperate, accusation of petitioner that the assailed Letter of
Instruction and the implementing rules and regulations cannot survive
the test of rigorous scrutiny. To repeat, its highly-persuasive quality
cannot be denied.

This Court thus considered the petition submitted for decision, the
issues being clearly joined. As noted at the outset, it is far from
meritorious and must be dismissed.
1. The Letter of Instruction in question was issued in the exercise of
the police power. That is conceded by petitioner and is the main
reliance of respondents. It is the submission of the former, however,
that while embraced in such a category, it has offended against the
due process and equal protection safeguards of the Constitution,
although the latter point was mentioned only in passing. The broad
and expansive scope of the police power which was originally
Identified by Chief Justice Taney of the American Supreme Court in
an 1847 decision as "nothing more or less than the powers of
government inherent in every sovereignty" 23 was stressed in the
aforementioned case of Edu v. Erictathus: "Justice Laurel, in the first
leading decision after the Constitution came into force, Calalang v.
Williams, Identified police power with state authority to enact
legislation that may interfere with personal liberty or property in order
to promote the general welfare. Persons and property could thus 'be
subjected to all kinds of restraints and burdens in order to we the
general comfort, health and prosperity of the state.' Shortly after
independence in 1948, Primicias v. Fugoso reiterated the doctrine,
such a competence being referred to as 'the power to prescribe
regulations to promote the health, morals, peace, education, good
order or safety, and general welfare of the people. The concept was
set forth in negative terms by Justice Malcolm in a preCommonwealth decision as 'that inherent and plenary power in the
State which enables it to prohibit all things hurtful to the comfort,
safety and welfare of society. In that sense it could be hardly
distinguishable as noted by this Court in Morfe v. Mutuc with the
totality of legislative power. It is in the above sense the greatest and
most powerful at. tribute of government. It is, to quote Justice
Malcolm anew, 'the most essential, insistent, and at least table
powers, I extending as Justice Holmes aptly pointed out 'to all the
great public needs.' Its scope, ever-expanding to meet the exigencies
of the times, even to anticipate the future where it could be done,
provides enough room for an efficient and flexible response to
conditions and circumstances thus assuring the greatest benefits. In
the language of Justice Cardozo: 'Needs that were narrow or
parochial in the past may be interwoven in the present with the well-

being of the nation. What is critical or urgent changes with the time.'
The police power is thus a dynamic agency, suitably vague and far
from precisely defined, rooted in the conception that men in
organizing the state and imposing upon its government limitations to
safeguard constitutional rights did not intend thereby to enable an
individual citizen or a group of citizens to obstruct unreasonably the
enactment of such salutary measures calculated to communal peace,
safety, good order, and welfare." 24
2. It was thus a heavy burden to be shouldered by petitioner,
compounded by the fact that the particular police power measure
challenged was clearly intended to promote public safety. It would be
a rare occurrence indeed for this Court to invalidate a legislative or
executive act of that character. None has been called to our attention,
an indication of its being non-existent. The latest decision in point,
Edu v. Ericta, sustained the validity of the Reflector Law, 25 an
enactment conceived with the same end in view. Calalang v.
Williams found nothing objectionable in a statute, the purpose of
which was: "To promote safe transit upon, and. avoid obstruction on
roads and streets designated as national roads * * *. 26 As a matter of
fact, the first law sought to be nullified after the effectivity of the 1935
Constitution, the National Defense Act, 27 with petitioner failing in his
quest, was likewise prompted by the imperative demands of public
safety.
3. The futility of petitioner's effort to nullify both the Letter of
Instruction and the implementing rules and regulations becomes even
more apparent considering his failure to lay the necessary factual
foundation to rebut the presumption of validity. So it was held
in Ermita-Malate Hotel and Motel Operators Association, Inc. v. City
Mayor of Manila. 28 The rationale was clearly set forth in an excerpt
from a decision of Justice Branders of the American Supreme Court,
quoted in the opinion: "The statute here questioned deals with a
subject clearly within the scope of the police power. We are asked to
declare it void on the ground that the specific method of regulation
prescribed is unreasonable and hence deprives the plaintiff of due
process of law. As underlying questions of fact may condition the
constitutionality of legislation of this character, the presumption of
constitutionality must prevail in the absence of some factual
foundation of record in overthrowing the statute. 29

4. Nor did the Solicitor General as he very well could, rely solely on
such rebutted presumption of validity. As was pointed out in his
Answer "The President certainly had in his possession the necessary
statistical information and data at the time he issued said letter of
instructions, and such factual foundation cannot be defeated by
petitioner's naked assertion that early warning devices 'are not too
vital to the prevention of nighttime vehicular accidents' because
allegedly only 390 or 1.5 per cent of the supposed 26,000 motor
vehicle accidents that in 1976 involved rear-end collisions (p. 12 of
petition). Petitioner's statistics is not backed up by demonstrable data
on record. As aptly stated by this Honorable Court: Further: "It admits
of no doubt therefore that there being a presumption of validity, the
necessity for evidence to rebut it is unavoidable, unless the statute or
ordinance is void on its face, which is not the case here"' * * *. But
even as g the verity of petitioner's statistics, is that not reason enough
to require the installation of early warning devices to prevent another
390 rear-end collisions that could mean the death of 390 or more
Filipinos and the deaths that could likewise result from head-on or
frontal collisions with stalled vehicles?" 30 It is quite manifest then that
the issuance of such Letter of Instruction is encased in the armor of
prior, careful study by the Executive Department. To set it aside for
alleged repugnancy to the due process clause is to give sanction to
conjectural claims that exceeded even the broadest permissible limits
of a pleader's well known penchant for exaggeration.
5. The rather wild and fantastic nature of the charge of
oppressiveness of this Letter of Instruction was exposed in the
Answer of the Solicitor General thus: "Such early warning device
requirement is not an expensive redundancy, nor oppressive, for car
owners whose cars are already equipped with 1) blinking lights in the
fore and aft of said motor vehicles,' 2) "battery-powered blinking lights
inside motor vehicles," 3) "built-in reflectorized tapes on front and rear
bumpers of motor vehicles," or 4) "well-lighted two (2) petroleum
lamps (the Kinke) * * * because: Being universal among the signatory
countries to the said 1968 Vienna Conventions, and visible even
under adverse conditions at a distance of at least 400 meters, any
motorist from this country or from any part of the world, who sees a
reflectorized rectangular early seaming device installed on the roads,
highways or expressways, will conclude, without thinking, that
somewhere along the travelled portion of that road, highway, or

expressway, there is a motor vehicle which is stationary, stalled or

disabled which obstructs or endangers passing traffic. On the other
hand, a motorist who sees any of the aforementioned other built in
warning devices or the petroleum lamps will not immediately get
adequate advance warning because he will still think what that
blinking light is all about. Is it an emergency vehicle? Is it a law
enforcement car? Is it an ambulance? Such confusion or uncertainty
in the mind of the motorist will thus increase, rather than decrease,
the danger of collision. 31
6. Nor did the other extravagant assertions of constitutional deficiency
go unrefuted in the Answer of the Solicitor General "There is nothing
in the questioned Letter of Instruction No. 229, as amended, or in
Administrative Order No. 1, which requires or compels motor vehicle
owners to purchase the early warning device prescribed thereby. All
that is required is for motor vehicle owners concerned like petitioner,
to equip their motor vehicles with a pair of this early warning device in
question, procuring or obtaining the same from whatever source. In
fact, with a little of industry and practical ingenuity, motor vehicle
owners can even personally make or produce this early warning
device so long as the same substantially conforms with the
specifications laid down in said letter of instruction and administrative
order. Accordingly the early warning device requirement can neither
be oppressive, onerous, immoral, nor confiscatory, much less does it
make manufacturers and dealers of said devices 'instant millionaires
at the expense of car owners' as petitioner so sweepingly concludes *
* *. Petitioner's fear that with the early warning device requirement 'a
more subtle racket may be committed by those called upon to enforce
it * * * is an unfounded speculation. Besides, that unscrupulous
officials may try to enforce said requirement in an unreasonable
manner or to an unreasonable degree, does not render the same
illegal or immoral where, as in the instant case, the challenged Letter
of Instruction No. 229 and implementing order disclose none of the
constitutional defects alleged against it. 32
7 It does appear clearly that petitioner's objection to this Letter of
Instruction is not premised on lack of power, the justification for a
finding of unconstitutionality, but on the pessimistic, not to say
negative, view he entertains as to its wisdom. That approach, it put it
at its mildest, is distinguished, if that is the appropriate word, by its

unorthodoxy. It bears repeating "that this Court, in the language of

Justice Laurel, 'does not pass upon questions of wisdom justice or
expediency of legislation.' As expressed by Justice Tuason: 'It is not
the province of the courts to supervise legislation and keep it within
the bounds of propriety and common sense. That is primarily and
exclusively a legislative concern.' There can be no possible objection
then to the observation of Justice Montemayor. 'As long as laws do
not violate any Constitutional provision, the Courts merely interpret
and apply them regardless of whether or not they are wise or
salutary. For they, according to Justice Labrador, 'are not supposed to
override legitimate policy and * * * never inquire into the wisdom of
the law.' It is thus settled, to paraphrase Chief Justice Concepcion in
Gonzales v. Commission on Elections, that only congressional power
or competence, not the wisdom of the action taken, may be the basis
for declaring a statute invalid. This is as it ought to be. The principle
of separation of powers has in the main wisely allocated the
respective authority of each department and confined its jurisdiction
to such a sphere. There would then be intrusion not allowable under
the Constitution if on a matter left to the discretion of a coordinate
branch, the judiciary would substitute its own. If there be adherence
to the rule of law, as there ought to be, the last offender should be
courts of justice, to which rightly litigants submit their controversy
precisely to maintain unimpaired the supremacy of legal norms and
prescriptions. The attack on the validity of the challenged provision
likewise insofar as there may be objections, even if valid and cogent
on is wisdom cannot be sustained. 33
8. The alleged infringement of the fundamental principle of nondelegation of legislative power is equally without any support wellsettled legal doctrines. Had petitioner taken the trouble to acquaint
himself with authoritative pronouncements from this Tribunal, he
would not have the temerity to make such an assertion. An exempt
from the aforecited decision of Edu v. Ericta sheds light on the matter:
"To avoid the taint of unlawful delegation, there must be a standard,
which implies at the very least that the legislature itself determines
matters of principle and lays down fundamental policy. Otherwise, the
charge of complete abdication may be hard to repel A standard thus
defines legislative policy, marks its maps out its boundaries and
specifies the public agency to apply it. It indicates the circumstances
under which the legislative command is to be effected. It is the

criterion by which legislative purpose may be carried out. Thereafter,

the executive or administrative office designated may in pursuance of
the above guidelines promulgate supplemental rules and regulations.
The standard may be either express or implied. If the former, the nondelegation objection is easily met. The standard though does not
have to be spelled out specifically. It could be implied from the policy
and purpose of the act considered as a whole. In the Reflector Law
clearly, the legislative objective is public safety. What is sought to be
attained as in Calalang v. Williams is "safe transit upon the roads.'
This is to adhere to the recognition given expression by Justice
Laurel in a decision announced not too long after the Constitution
came into force and effect that the principle of non-delegation "has
been made to adapt itself to the complexities of modern
governments, giving rise to the adoption, within certain limits, of the
principle of "subordinate legislation" not only in the United States and
England but in practically all modern governments.' He continued:
'Accordingly, with the growing complexity of modern life, the
multiplication of the subjects of governmental regulation, and the
increased difficulty of administering the laws, there is a constantly
growing tendency toward the delegation of greater powers by the
legislature and toward the approval of the practice by the courts.'
Consistency with the conceptual approach requires the reminder that
what is delegated is authority non-legislative in character, the
completeness of the statute when it leaves the hands of Congress
being assumed." 34
9. The conclusion reached by this Court that this petition must be
dismissed is reinforced by this consideration. The petition itself
quoted these two whereas clauses of the assailed Letter of
Instruction: "[Whereas], the hazards posed by such obstructions to
traffic have been recognized by international bodies concerned with
traffic safety, the 1968 Vienna Convention on Road Signs and Signals
and the United Nations Organization (U.N.); [Whereas], the said
Vionna Convention, which was ratified by the Philippine Government
under P.D. No. 207, recommended the enactment of local legislation
for the installation of road safety signs and devices; * * * " 35 It cannot
be disputed then that this Declaration of Principle found in the
Constitution possesses relevance: "The Philippines * * * adopts the
generally accepted principles of international law as part of the law of
the land * * *." 36 The 1968 Vienna Convention on Road Signs and

Signals is impressed with such a character. It is not for this country to

repudiate a commitment to which it had pledged its word. The
concept of Pacta sunt servanda stands in the way of such an attitude,
which is, moreover, at war with the principle of international morality.
10. That is about all that needs be said. The rather court reference to
equal protection did not even elicit any attempt on the Part of
Petitioner to substantiate in a manner clear, positive, and categorical
why such a casual observation should be taken seriously. In no case
is there a more appropriate occasion for insistence on what was
referred to as "the general rule" in Santiago v. Far Eastern
Broadcasting Co., 37 namely, "that the constitutionality of a law wig not
be considered unless the point is specially pleaded, insisted upon,
and adequately argued." 38 "Equal protection" is not a talismanic
formula at the mere invocation of which a party to a lawsuit can
rightfully expect that success will crown his efforts. The law is
anything but that.
WHEREFORE, this petition is dismissed. The restraining order is
lifted. This decision is immediately executory. No costs.
Castro, C.J., Barredo, Antonio, Santos, Fernandez, Guerrero, Abad
Santos, De Castro and Melencio-Herrera, concur.
Makasiar, J, reserves the right to file a separate opinion.
Aquino J., took no part.
Concepcion J., is on leave.
Castro, C.J., certifies that Justice Concepcion concurs in their
decision.

Separate Opinions

TEEHANKEE, J., dissenting:

I dissent from the majority's peremptory dismissal of the petition and
lifting of the restraining order issued on October 19, 1978 against the
blanket enforcement of the requirement that all motor vehicles be
equipped with the so-called early warning device, without even
hearing the parties in oral argument as generally required by the
Court in original cases of far-reaching consequence such as the case
at bar.
Lack of time presents my filing an extended dissent. I only wish to
state that the petition advances grave and serious grounds of
assailing "the rules and regulations issued by the Land Transportation
Commission under Administrative Order No. 1 and Memorandum
Circular No. 32 [which] do not reflect the real intent, noble objectives
and spirit of Letter of Instructions No. 229, as amended by Letter of
Instructions Nos. 479 and 716, because it is oppressive,
unreasonable, arbitrary, confiscatory, nay unconstitutional and
contrary to the precepts of our compassionate New Society," because
of the following considerations, inter alia:
1. It is oppressive, arbitrary and discriminatory to require owners of
motor vehicles with built-in and more effective and efficient E.W.D.'S
such as "a) blinking lights in the fore and aft of said motor vehicles,
1)) battery-powered blinking lights inside motor vehicles, c) built-in
reflectorized tapes on front and rear bumpers of motor vehicles.......
to purchase the E.W.D. specified in the challenged administrative
order, whose effectivity and utility have yet to be demonstrated.
2. The public necessity for the challenged order has yet to be shown.
No valid refutation has been made of petitioner's assertion that the
"E.W.D.'s are not too vital to the prevention of nighttime vehicular
accidents. Statistics shows that of the 26,000 motor vehicle accidents
that occurred in 1976, only 390 or 1.5 per cent involved rear-end
collisions," as to require the purchase and installation of the
questioned E.W.D. for almost 900,000 vehicles throughout the
country;
3. The big financial burden to be imposed on all motorists is
staggering, and petitioner's assertion that "as of 1975, there were at

least 865,037 motor vehicles all over the country requiring E.W.D.'S
and at the minimum price of 1156.00 per set, this would mean a
consumer outlay of P 48,451,872.00, or close to P 50 million for the
questioned E.W.D.'S "stands unchallenged;
4. No real effort has been made to show that there can be practical
and less burdensome alternative road safety devices for stalled
vehicles than the prescribed E.W.D., such as the common petroleum
lamps "kinke" which can be placed just as effectively in front of stalled
vehicles on the highways; and
5. There is no imperative need for imposing such a bet requirement
on all vehicles. The respondents have not shown that they have
availed of the powers and prerogatives vested in their offices such as
ridding the country of dilapidated trucks and vehicles which are the
main cause of the deplorable -highway accidents due to stoned
vehicles, establishing an honest and foolproof system of examination
and licensing of motor vehicle drivers so as to ban the reckless and
irresponsible and a sustained education campaign to instill safe
driving habits and attitudes that can be carried out for much less than
the P 50 million burden that would be imposed by the challenged
order.
I do feel that a greater "degree of receptivity and sympathy" could be
extended to the petitioner for his civic mindedness in having filed the
present petition g as capricious and unreasonable the "all pervading
police power" of the State instead of throwing the case out of court
and leaving the wrong impression that the exercise of police power
insofar as it may affect the life, liberty and property of any person is
no longer subject to judicial inquiry.

# Separate Opinions
TEEHANKEE, J., dissenting:
I dissent from the majority's peremptory dismissal of the petition and
lifting of the restraining order issued on October 19, 1978 against the

blanket enforcement of the requirement that all motor vehicles be

equipped with the so-called early warning device, without even
hearing the parties in oral argument as generally required by the
Court in original cases of far-reaching consequence such as the case
at bar.
Lack of time presents my filing an extended dissent. I only wish to
state that the petition advances grave and serious grounds of
assailing "the rules and regulations issued by the Land Transportation
Commission under Administrative Order No. 1 and Memorandum
Circular No. 32 [which] do not reflect the real intent, noble objectives
and spirit of Letter of Instructions No. 229, as amended by Letter of
Instructions Nos. 479 and 716, because it is oppressive,
unreasonable, arbitrary, confiscatory, nay unconstitutional and
contrary to the precepts of our compassionate New Society," because
of the following considerations, inter alia:
1. It is oppressive, arbitrary and discriminatory to require owners of
motor vehicles with built-in and more effective and efficient E.W.D.'S
such as "a) blinking lights in the fore and aft of said motor vehicles,
1)) battery-powered blinking lights inside motor vehicles, c) built-in
reflectorized tapes on front and rear bumpers of motor vehicles.......
to purchase the E.W.D. specified in the challenged administrative
order, whose effectivity and utility have yet to be demonstrated.
2. The public necessity for the challenged order has yet to be shown.
No valid refutation has been made of petitioner's assertion that the
"E.W.D.'s are not too vital to the prevention of nighttime vehicular
accidents. Statistics shows that of the 26,000 motor vehicle accidents
that occurred in 1976, only 390 or 1.5 per cent involved rear-end
collisions," as to require the purchase and installation of the
questioned E.W.D. for almost 900,000 vehicles throughout the
country;
3. The big financial burden to be imposed on all motorists is
staggering, and petitioner's assertion that "as of 1975, there were at
least 865,037 motor vehicles all over the country requiring E.W.D.'S
and at the minimum price of 1156.00 per set, this would mean a
consumer outlay of P 48,451,872.00, or close to P 50 million for the
questioned E.W.D.'S "stands unchallenged;

4. No real effort has been made to show that there can be practical
and less burdensome alternative road safety devices for stalled
vehicles than the prescribed E.W.D., such as the common petroleum
lamps "kinke" which can be placed just as effectively in front of stalled
vehicles on the highways; and
5. There is no imperative need for imposing such a bet requirement
on all vehicles. The respondents have not shown that they have
availed of the powers and prerogatives vested in their offices such as
ridding the country of dilapidated trucks and vehicles which are the
main cause of the deplorable -highway accidents due to stoned
vehicles, establishing an honest and foolproof system of examination
and licensing of motor vehicle drivers so as to ban the reckless and
irresponsible and a sustained education campaign to instill safe
driving habits and attitudes that can be carried out for much less than
the P 50 million burden that would be imposed by the challenged
order.
I do feel that a greater "degree of receptivity and sympathy" could be
extended to the petitioner for his civic mindedness in having filed the
present petition g as capricious and unreasonable the "all pervading
police power" of the State instead of throwing the case out of court
and leaving the wrong impression that the exercise of police power
insofar as it may affect the life, liberty and property of any person is
no longer subject to judicial inquiry.
#Footnotes
Facts
This case is a petition assailing the validity or the constitutionality of a
Letter of Instruction No. 229, issued by President Ferdinand E.
Marcos, requiring all vehicle owners, users or drivers to procure early
warning devices to be installed a distance away from such vehicle
when it stalls or is disabled. In compliance with such letter of
instruction, the Commissioner of the Land Transportation Office
issued Administrative Order No. 1 directing the compliance thereof.
This petition alleges that such letter of instruction and subsequent
administrative order are unlawful and unconstitutional as it violates
the provisions on due process, equal protection of the law and undue
delegation of police power.

Issue
Whether or not the Letter of Instruction No. 229 and the subsequent
Administrative Order issued is unconstitutional
Ruling
The Supreme Court ruled for the dismissal of the petition. The
statutes in question are deemed not unconstitutional. These were
definitely in the exercise of police power as such was established to
promote public welfare and public safety. In fact, the letter of
instruction is based on the constitutional provision of adopting to the
generally accepted principles of international law as part of the law of
the land. The letter of instruction mentions, as its premise and basis,
the resolutions of the 1968 Vienna Convention on Road Signs and
Signals and the discussions on traffic safety by the United Nations that such letter was issued in consideration of a growing number of
road accidents due to stalled or parked vehicles on the streets and
highways.
Agustin v Edu
88 SCRA 195, GR No. L-49112
February 2, 1979
FACTS:
Peititioner, Agustin assails the validity of the Letter of Instruction No.
229 which requires an early warning device to be carried by users of
motor vehicles as being violative of the constitutional guarantee of
due process and transgresses the fundamental principle of nondelegation of legislative power. This instruction, signed by President
Marcos, aims to prevent accidents on streets and highways, including
expressways or limited access roads caused by the presence of
disabled, stalled or parked motor vehicles without appropriate early
warning devices. The hazards posed by these disabled vehicles are
recognized by international bodies concerned with traffic safety. The
Philippines is a signatory of the 1968 Vienna Convention on Road
Signs and Signals and the United Nations Organizations and the said
Vienna Convention was ratified by the Philippine Government under

PD 207.
ISSUE:
Is the letter of instruction valid?
HELD:
Yes. The letter of instruction is a valid exercise of police power and
there is also no transgression of the fundamental principle of nondelegation of legislative power. Under the Declaration of Principle of
the Philippine Constitution (1973) it is written: The
Philippines...adopts the generally accepted principles of international
law as part of the law of the land... The 1968 Vienna Convention on
Road Signs and Signals is impressed with a character of an accepted
principle of international law since it was ratified by the Philippine
Government under PD 207. It is not for the country to repudiate a
commitment to which it had pledged its word. The concept of Pacta
sunt servanda stands in the way of such an attitude, which is,
moreover, at war with the principle of international morality.

12.) KURODA VS. JALANDONI

KURODA VS. JALANDONI
83 Phil. 171 (1949) Court of the Philippines
Facts:
Kuroda, Lieutenant General of the Japanese Imperial Army, was
prosecuted for war crimes before the Military Commission set up by
Executive Order No. 68 of the President of the Philippines. Kuroda
challenged the legality and constitutionality of the Military

Commission and contended that it lacked jurisdiction to try him for

violation of the Hague and Geneva Conventions on the Laws of War,
since the Philippines was not a signatory to these conventions.
Issue: Whether or not the established Military Commission is legal
and constitutional.
Held:
The court ruled that the Military Commission was legal and
constitutional base on the citation of Article II, Section 3 of the
Philippine Constitution declaring that the Philippine adopts the
generally accepted principles of international law as part of the law of
the nation.
The court ruled that in accordance with the generally accepted
principles of international law of the present day, including the Hague
Convention, the Geneva Convention, and significant precedents of
international jurisprudence established by the United Nations, all
those persons, military or civilian, who had been guilty of planning,
preparing or waging a war of aggression and of the commission of
crimes and offenses consequential and incidental thereto, in violation
of the laws and customs of war, of humanity and civilization, were
held accountable therefore. Although the Philippines was not a
signatory to the conventions embodying them, our Constitution has
been deliberately general and extensive in its scope and is not
confined to the recognition of rules and principles of international law
as contained in treaties to which our government may have been or
shall be a signatory. Consequently, in the promulgation and
enforcement of Executive Order No. 68, the President of the
Philippines had acted in conformity with the generally accepted
principles and policies of international law which are part of our
Constitution.

Kuroda vs Jalandoni 83 Phil 171

Facts
Shinegori Kuroda, a former Lieutenant-General of the Japanese

Imperial Army and Commanding General of the Japanese Imperial

Forces in the Philippines was charged before the Philippine Military
Commission for war crimes. As he was the commanding general
during such period of war, he was tried for failure to discharge his
duties and permitting the brutal atrocities and other high crimes
committed by his men against noncombatant civilians and prisoners
of the Japanese forces, in violation of of the laws and customs of war.
Kuroda, in his petition, argues that the Military Commission is not a
valid court because the law that created it, Executive Order No. 68, is
unconstitutional. He further contends that using as basis the Hague
Conventions Rules and Regulations covering Land Warfare for the
war crime committed cannot stand ground as the Philippines was not
a signatory of such rules in such convention. Furthermore, he alleges
that the United States is not a party of interest in the case and that
the two US prosecutors cannot practice law in the Philippines.
Issue
1.Whether or not Executive Order No. 68 is constitutional
2.Whether or not the US is a party of interest to this case
Ruling
The Supreme Court ruled that Executive Order No. 68, creating the
National War Crimes Office and prescribing rules on the trial of
accused war criminals, is constitutional as it is aligned with Sec
3,Article 2 of the Constitution which states 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. The generally accepted principles of international law
includes those formed during the Hague Convention, the Geneva
Convention and other international jurisprudence established by
United Nations. These include the principle that all persons, military
or civilian, who have been guilty of planning, preparing or waging a
war of aggression and of the commission of crimes and offenses in
violation of laws and customs of war, are to be held accountable. In
the doctrine of incorporation, the Philippines abides by these
principles and therefore has a right to try persons that commit such
crimes and most especially when it is committed againsts its citizens.
It abides with it even if it was not a signatory to these conventions by
the mere incorporation of such principles in the constitution.

The United States is a party of interest because the country and its
people have been equally, if not more greatly, aggrieved by the
crimes with which the petitioner is charged for. By virtue of Executive
Order No. 68, the Military Commission is a special military tribunal
and that the rules as to parties and representation are not governed
by the rules of court but by the very provisions of this special law.

Kuroda v. Jalandoni
9/17/2014
0 Comments
Constitutional Law. Political Law. Fundamental Principles and State
Policies. Article II, Section 2. Incorporation Clause.
KURODA v. JALANDONI
42 O.G. 4282
FACTS:
Shigenori Kuroda, a former Lieutenant-General of the Japanese
Imperial Army, is charged before a military commission of the Armed
Forces of the Philippines. He seeks to establish the illegality of EO 68
on the grounds that it violates our Constitution and that the petitioners
are not charged of crimes based on law since the Philippines is not a
signatory to the Hague Convention on Rules and Regulations
covering Land Warfare.
ISSUE:
1) Whether or not EO 68 is unconstitutional; and
2) Whether or not Kuroda may be charged for violation of Hague
Conventions rules and regulations
HELD:
Executive Order 68, establishing a National War Crimes Office is
valid and constitutional. The president has acted in conformity with
the generally accepted policies of international law which are also

part of the Constitution pursuant to the incorporation clause stipulated

in Section 2, Article II of the Constitution. The rules and regulation of
Hague Convention form part of and are wholly based on generally
accepted principles of international law and were even accepted by
the United States and Japan for they are signatories to said
convention. Such rules and regulations therefore form part of the law
of the Philippines regardless of whether or not it was a signatory to
the same. Thus, Kuroda may be charged for violation of its rules and
regulations.

FULL CASE:
Republic of the Philippines SUPREME COURT Manila EN BANC
G.R. No. L-2662 March 26, 1949 SHIGENORI KURODA, petitioner,
vs. Major General RAFAEL JALANDONI, Brigadier General CALIXTO
DUQUE, Colonel MARGARITO TORALBA, Colonel IRENEO
BUENCONSEJO, Colonel PEDRO TABUENA, Major FEDERICO
ARANAS, MELVILLE S. HUSSEY and ROBERT PORT, respondents.
Pedro Serran, Jose G. Lukban, and Liberato B. Cinco for petitioner.
Fred Ruiz Castro Federico Arenas Mariano Yengco, Jr., Ricardo A.
Arcilla and S. Melville Hussey for respondents. MORAN, C.J.:
Shigenori Kuroda, formerly a Lieutenant-General of the Japanese
Imperial Army and Commanding General of the Japanese Imperial
Forces in The Philippines during a period covering 1943 and 1944,
who is now charged before a military Commission convened by the
Chief of Staff of the Armed forces of the Philippines with having
unlawfully disregarded and failed "to discharge his duties as such
command, permitting them to commit brutal atrocities and other high
crimes against noncombatant civilians and prisoners of the Imperial
Japanese Forces in violation of the laws and customs of war"
comes before this Court seeking to establish the illegality of
Executive Order No. 68 of the President of the Philippines: to enjoin
and prohibit respondents Melville S. Hussey and Robert Port from
participating in the prosecution of petitioner's case before the Military
Commission and to permanently prohibit respondents from
proceeding with the case of petitioners. In support of his case
petitioner tenders the following principal arguments. First. "That

Executive Order No. 68 is illegal on the ground that it violates not only
the provision of our constitutional law but also our local laws to say
nothing of the fact (that) the Philippines is not a signatory nor an
adherent to the Hague Convention on Rules and Regulations
covering Land Warfare and therefore petitioners is charged of 'crimes'
not based on law, national and international." Hence petitioner argues
"That in view off the fact that this commission has been
empanelled by virtue of an unconstitutional law an illegal order this
commission is without jurisdiction to try herein petitioner." Second.
That the participation in the prosecution of the case against petitioner
before the Commission in behalf of the United State of America of
attorneys Melville Hussey and Robert Port who are not attorneys
authorized by the Supreme Court to practice law in the Philippines is
a diminution of our personality as an independent state and their
appointment as prosecutors are a violation of our Constitution for the
reason that they are not qualified to practice law in the Philippines.
Third. That Attorneys Hussey and Port have no personality as
prosecutors, the United State not being a party in interest in the case.
Executive Order No. 68, establishing a National War Crimes Office
prescribing rule and regulation governing the trial of accused war
criminals, was issued by the President of the Philippines on the 29th
days of July, 1947 This Court holds that this order is valid and
constitutional. Article 2 of our Constitution provides in its section 3,
that The Philippines renounces war as an instrument of national
policy and adopts the generally accepted principles of international
law as part of the of the nation. In accordance with the generally
accepted principle of international law of the present day including the
Hague Convention the Geneva Convention and significant
precedents of international jurisprudence established by the United
Nation all those persons, military or civilian, who have been guilty of
planning preparing or waging a war of aggression and of the
commission of crimes and offenses consequential and incidental
thereto in violation of the laws and customs of war, of humanity and
civilization are held accountable therefor. Consequently in the
promulgation and enforcement of Execution Order No. 68 the
President of the Philippines has acted in conformity with the generally
accepted and policies of international law which are part of the our
Constitution. The promulgation of said executive order is an exercise
by the President of his power as Commander in chief of all our armed
forces as upheld by this Court in the case of Yamashita vs. Styer (L-

129, 42 Off. Gaz., 664) 1 when we said War is not ended simply
because hostilities have ceased. After cessation of armed hostilities
incident of war may remain pending which should be disposed of as
in time of war. An importance incident to a conduct of war is the
adoption of measure by the military command not only to repel and
defeat the enemies but to seize and subject to disciplinary measure
those enemies who in their attempt to thwart or impede our military
effort have violated the law of war. (Ex parte Quirin 317 U.S., 1; 63
Sup. Ct., 2.) Indeed the power to create a military commission for the
trial and punishment of war criminals is an aspect of waging war. And
in the language of a writer, a military commission has jurisdiction so
long as a technical state of war continues. This includes the period of
an armistice or military occupation up to the effective of a treaty of
peace and may extend beyond by treaty agreement. (Cowles Trial of
War Criminals by Military Tribunals, America Bar Association Journal
June, 1944.) Consequently, the President as Commander in Chief is
fully empowered to consummate this unfinished aspect of war,
namely the trial and punishment of war criminal through the issuance
and enforcement of Executive Order No. 68. Petitioner argues that
respondent Military Commission has no Jurisdiction to try petitioner
for acts committed in violation of the Hague Convention and the
Geneva Convention because the Philippines is not a signatory to the
first and signed the second only in 1947. It cannot be denied that the
rules and regulation of the Hague and Geneva conventions form part
of and are wholly based on the generally accepted principals of
international law. In facts these rules and principles were accepted by
the two belligerent nations, the United State and Japan, who were
signatories to the two Conventions. Such rules and principles
therefore form part of the law of our nation even if the Philippines was
not a signatory to the conventions embodying them for our
Constitution has been deliberately general and extensive in its scope
and is not confined to the recognition of rule and principle of
international law as continued in treaties to which our government
may have been or shall be a signatory. Furthermore when the crimes
charged against petitioner were allegedly committed, the Philippines
was under the sovereignty of United States and thus we were equally
bound together with the United States and with Japan to the rights
and obligations contained in the treaties between the belligerent
countries. These rights and obligations were not erased by our
assumption of full sovereignty. If at all our emergency as a free state

entitles us to enforce the right on our own of trying and punishing

those who committed crimes against crimes against our people. In
this connection it is well to remember what we have said in the case
of Laurel vs. Misa (76 Phil., 372): . . . The change of our form
government from Commonwealth to Republic does not affect the
prosecution of those charged with the crime of treason committed
during then Commonwealth because it is an offense against the
same sovereign people. . . . By the same token war crimes committed
against our people and our government while we were a
Commonwealth are triable and punishable by our present Republic.
Petitioner challenges the participation of two American attorneys
namely Melville S. Hussey and Robert Port in the prosecution of his
case on the ground that said attorney's are not qualified to practice
law in Philippines in accordance with our Rules of court and the
appointment of said attorneys as prosecutors is violative of our
national sovereignty. In the first place respondent Military
Commission is a special military tribunal governed by a special law
and not by the Rules of court which govern ordinary civil courts. It has
already been shown that Executive Order No. 68 which provides for
the organization of such military commission is a valid and
constitutional law. There is nothing in said executive order which
requires that counsel appearing before said commission must be
attorneys qualified to practice law in the Philippines in accordance
with the Rules of Court. In facts it is common in military tribunals that
counsel for the parties are usually military personnel who are neither
attorneys nor even possessed of legal training. Secondly the
appointment of the two American attorneys is not violative of our
nation sovereignty. It is only fair and proper that United States, which
has submitted the vindication of crimes against her government and
her people to a tribunal of our nation should be allowed
representation in the trial of those very crimes. If there has been any
relinquishment of sovereignty it has not been by our government but
by the United State Government which has yielded to us the trial and
punishment of her enemies. The least that we could do in the spirit of
comity is to allow them representation in said trials. Alleging that the
United State is not a party in interest in the case petitioner challenges
the personality of attorneys Hussey and Port as prosecutors. It is of
common knowledge that the United State and its people have been
equally if not more greatly aggrieved by the crimes with which
petitioner stands charged before the Military Commission. It can be

considered a privilege for our Republic that a leader nation should

submit the vindication of the honor of its citizens and its government
to a military tribunal of our country. The Military Commission having
been convened by virtue of a valid law with jurisdiction over the
crimes charged which fall under the provisions of Executive Order
No. 68, and having said petitioner in its custody, this Court will not
interfere with the due process of such Military commission. For all the
foregoing the petition is denied with costs de oficio. Paras, Feria,
Pablo, Bengzon, Tuason, Montemayor and Reyes, JJ., concur.
Separate Opinions PERFECTO, J., dissenting: A military commission
was empanelled on December 1, 1948 to try Lt. Gen. Shigenori
Kuroda for Violation of the laws and customs of land warfare. Melville
S. Hussey and Robert Port, American citizens and not authorized by
the Supreme Court to practice law were appointed prosecutor
representing the American CIC in the trial of the case. The
commission was empanelled under the authority of Executive Order
No. 68 of the President of the Philippines the validity of which is
challenged by petitioner on constitutional grounds. Petitioner has also
challenged the personality of Attorneys Hussey and Port to appear as
prosecutors before the commission. The charges against petitioner
has been filed since June 26, 1948 in the name of the people of the
Philippines as accusers. We will consideration briefly the challenge
against the appearance of Attorneys Hussey and Port. It appearing
that they are aliens and have not been authorized by the Supreme
Court to practice law there could not be any question that said person
cannot appear as prosecutors in petitioner case as with such
appearance they would be practicing law against the law. Said
violation vanishes however into insignificance at the side of the
momentous question involved in the challenge against the validity of
Executive Order No. 68. Said order is challenged on several
constitutional ground. To get a clear idea of the question raised it is
necessary to read the whole context of said order which is
reproduced as follows: EXECUTIVE ORDER NO. 68.
ESTABLISHING A NATIONAL WAR CRIMES OFFICE AND
PRESCRIBING RULES AND REGULATION GOVERNING THE
TRIAL OF ACCUSED WAR CRIMINAL. I, Manuel Roxas president of
the Philippines by virtue of the power vested in me by the Constitution
and laws of the Philippines do hereby establish a National War
Crimes Office charged with the responsibility of accomplishing the
speedy trial of all Japanese accused of war crimes committed in the

Philippines and prescribe the rules and regulation such trial. The
National War crimes office is established within the office of the
Judge Advocate General of the Army of the Philippines and shall
function under the direction supervision and control of the Judge
Advocate General. It shall proceed to collect from all available
sources evidence of war crimes committed in the Philippines from the
commencement of hostilities by Japan in December 1941, maintain a
record thereof and bring about the prompt trial maintain a record
thereof and bring about the prompt trial of the accused. The National
War Crimes Office shall maintain direct liaison with the Legal Section
General Headquarters, Supreme Commander for the Allied power
and shall exchange with the said Office information and evidence of
war crimes. The following rules and regulation shall govern the trial
off person accused as war criminals: ESTABLISHMENT OF
MILITARY COMMISSIONS (a) General. person accused as war
criminal shall be tried by military commission to be convened by or
under the authority of the Philippines. II. JURISDICTION (a) Over
Person. Thee military commission appointed hereunder shall have
jurisdiction over all persons charged with war crimes who are in the
custody of the convening authority at the time of the trial. (b) Over
Offenses. The military commission established hereunder shall
have jurisdiction over all offenses including but not limited to the
following: (1) The planning preparation initiation or waging of a war of
aggression or a war in violation of international treaties agreement or
assurance or participation in a common plan or conspiracy for the
accomplishment of any of the foregoing. (2) Violation of the laws or
customs of war. Such violation shall include but not be limited to
murder ill-treatment or deportation to slave labor or for other purpose
of civilian population of or in occupied territory; murder or ill-treatment
of prisoners of war or internees or person on the seas or elsewhere;
improper treatment of hostage; plunder of public or private property
wanton destruction of cities towns or village; or devastation not
justified by military necessity. (3) Murder extermination enslavement
deportation and other inhuman acts committed against civilian
population before or during the war or persecution on political racial
or religion ground in executive of or in connection with any crime
defined herein whether or not in violation of the local laws. III.
MEMBERSHIP OF COMMISSIONS (a) Appointment. The
members of each military commission shall be appointed by the
President of the Philippines or under authority delegated by him.

Alternates may be appointed by the convening authority. Such shall

attend all session of the commission, and in case of illness or other
incapacity of any principal member, an alternate shall take the place
of that member. Any vacancy among the members or alternates,
occurring after a trial has begun, may be filled by the convening
authority but the substance of all proceeding had evidence taken in
that case shall be made known to the said new member or alternate.
This facts shall be announced by the president of the commission in
open court. (b) Number of Members. Each commission shall
consist of not less than three (3) members. (c) Qualifications. The
convening authority shall appoint to the commission persons whom
he determines to be competent to perform the duties involved and not
disqualified by personal interest or prejudice, provided that no person
shall be appointed to hear a case in which he personally investigated
or wherein his presence as a witness is required. One specially
qualified member whose ruling is final in so far as concerns the
commission on an objection to the admissibility of evidence offered
during the trial. (d) Voting. Except as to the admissibility of
evidence all rulings and finding of the Commission shall be by
majority vote except that conviction and sentence shall be by the
affirmative vote of not less than conviction and sentence shall be by
the affirmative vote of not less than two-thirds (2\3) of the member
present. (e) Presiding Member. In the event that the convening
authority does not name one of the member as the presiding
member, the senior officer among the member of the Commission
present shall preside. IV. PROSECUTORS (a) Appointment. The
convening authority shall designate one or more person to conduct
the prosecution before each commission. (b) Duties. The duties of
the prosecutor are: (1) To prepare and present charges and
specifications for reference to a commission. (2) To prepare cases for
trial and to conduct the prosecution before the commission of all
cases referred for trial. V. POWER AND PROCEDURE OF
COMMISSION (a) Conduct of the Trial. A Commission shall: (1)
Confine each trial strictly to fair and expeditious hearing on the issues
raised by the charges, excluding irrelevant issues or evidence and
preventing any unnecessary delay or interference. (2) Deal summarily
with any contumacy or contempt, imposing any appropriate
punishment therefor. (3) Hold public session when otherwise decided
by the commission. (4) Hold each session at such time and place as
it shall determine, or as may be directed by the convening authority.

(b) Rights of the Accused. The accused shall be entitled: (1) To

have in advance of the trial a copy of the charges and specifications
clearly worded so as to apprise the accused of each offense charged.
(2) To be represented, prior to and during trial, by counsel appointed
by the convening authority or counsel of his own choice, or to conduct
his own defense. (3) To testify in his own behalf and have his counsel
present relevant evidence at the trial in support of his defense, and
cross-examine each adverse witness who personally appears before
the commission. (4) To have the substance of the charges and
specifications, the proceedings and any documentary evidence
translated, when he is unable otherwise to understand them. (c)
Witnesses. The Commission shall have power: (1) To summon
witnesses and require their attendance and testimony; to administer
oaths or affirmations to witnesses and other persons and to question
witnesses. (2) To require the production of documents and other
evidentiary material. (3) To delegate the Prosecutors appointed by the
convening authority the powers and duties set forth in (1) and (2)
above. (4) To have evidence taken by a special commissioner
appointed by the commission. (d) Evidence. (1) The commission shall
admit such evidence as in its opinion shall be of assistance in proving
or disproving the charge, or such as in the commission's opinion
would have probative value in the mind of a reasonable man. The
commission shall apply the rules of evidence and pleading set forth
herein with the greatest liberality to achieve expeditious procedure. In
particular, and without limiting in any way the scope of the foregoing
general rules, the following evidence may be admitted: (a) Any
document, irrespective of its classification, which appears to the
commission to have been signed or issued by any officer,
department, agency or member of the armed forces of any
Government without proof of the signature or of the issuance of the
document. (b) Any report which appears to the commission to have
been signed or issued by the International Red Cross or a member of
any medical service personnel, or by any investigator or intelligence
officer, or by any other person whom commission considers as
possessing knowledge of the matters contained in the report. (c)
Affidavits, depositions or other signed statements. (d) Any diary, letter
to other document, including sworn statements, appearing to the
commission to contain information relating to the charge. (e) A copy
of any document or other secondary evidence of the contents, if the
original is not immediately available. (2) The commission shall take

judicial notice of facts of common knowledge, official government

documents of any nation, and the proceedings, records and findings
of military or other agencies of any of the United Nation. (3) A
commission may require the prosecution and the defense to make a
preliminary offer of proof whereupon the commission may rule in
advance on the admissibility of such evidence. (4) The official
position of the accused shall not absolve him from responsibility nor
be considered in mitigation of punishment. Further action pursuant to
an order of the accused's superior, or of his Government, shall not
constitute a defense, but may be considered in mitigation of
punishment if the commission determines that justice so requires. (5)
All purposed confessions or statements of the accused shall bee
admissible in evidence without any showing that they were voluntarily
made. If it is shown that such confession or statement was procured
by mean which the commission believe to have been of such a
character that may have caused the accused to make a false
statement the commission may strike out or disregard any such
portion thereof as was so procured. (e) Trial Procedure. The
proceedings of each trial shall be conducted substantially as follows
unless modified by the commission to suit the particular
circumstances: (1) Each charge and specification shall be read or its
substance stated in open court. (2) The presiding member shall ask
each accused whether he pleads "Guilty" or "Not guilty." (3) The
prosecution shall make its opening statement."(4) The presiding
member may at this or any other time require the prosecutor to state
what evidence he proposes to submit to the commission and the
commission thereupon may rule upon the admissibility of such
evidence. (4) The witnesses and other evidence for the prosecution
shall be heard or presented. At the close of the case for the
prosecution, the commission may, on motion of the defense for a
finding of not guilty, consider and rule whether he evidence before the
commission may defer action on any such motion and permit or
require the prosecution to reopen its case and produce any further
available evidence. (5) The defense may make an opening statement
prior to presenting its case. The presiding member may, at this any
other time require the defense to state what evidence it proposes to
submit to the commission where upon the commission may rule upon
the admissibility of such evidence. (6) The witnesses and other
evidence for the defense shall be heard or presented. Thereafter, the
prosecution and defense may introduce such evidence in rebuttal as

the commission may rule as being admissible. (7) The defense and
thereafter the prosecution shall address the commission. (8) The
commission thereafter shall consider the case in closed session and
unless otherwise directed by the convening authority, announce in
open court its judgment and sentence if any. The commission may
state the reason on which judgment is based. ( f ) Record of
Proceedings. Each commission shall make a separate record of its
proceeding in the trial of each case brought before it. The record shall
be prepared by the prosecutor under the direction of the commission
and submitted to the defense counsel. The commission shall be
responsible for its accuracy. Such record, certified by the presiding
member of the commission or his successor, shall be delivered to the
convening authority as soon as possible after the trial. (g) Sentence.
The commission may sentence an accused, upon conviction to
death by hanging or shooting, imprisonment for life or for any less
term, fine or such other punishment as the commission shall
determine to be proper. (h) Approval of Sentence. No. sentence of
a military commission shall be carried into effect until approved by the
chief off Staff: Provided, That no sentence of death or life
imprisonment shall be carried into execution until confirmed by the
President of the Philippines. For the purpose of his review the Chief
of Staff shall create a Board of Review to be composed of not more
than three officers none of whom shall be on duty with or assigned to
the Judge Advocate General's Office. The Chief of Staff shall have
authority to approve, mitigate remit in whole or in part, commute,
suspend, reduce or otherwise alter the sentence imposed, or (without
prejudice to the accused) remand the case for rehearing before a
new military commission; but he shall not have authority to increase
the severity of the sentence. Except as herein otherwise provided the
judgment and sentence of a commission shall final and not subject to
review by any other tribunal. VI. RULE-MAKING POWER
Supplementary Rule and Forms. Each commission shall adopt
rules and forms to govern its procedure, not inconsistent with the
provision of this Order, or such rules and forms as may be prescribed
by the convening authority]or by the President of the Philippines. VII.
The amount of amount of seven hundred thousand pesos is hereby
set aside out of the appropriations for the Army of the Philippines for
use by the National War Crimes Office in the accomplishment of its
mission as hereinabove set forth, and shall be expended in
accordance with the recommendation of the Judge Advocate General

as approved by the President. The buildings, fixtures, installations,

messing, and billeting equipment and other property herefore used by
then Legal Section, Manila Branch, of the General Headquarters,
Supreme Commander for the Allied Power, which will be turned over
by the United States Army to the Philippines Government through the
Foreign Liquidation Commission and the Surplus Property
Commission are hereby specification reserved for use off the National
War Crimes Office. Executive Order No. 64, dated August 16, 1945,
is hereby repealed. Done in the City of Manila, this 29th day of July in
the year of Our Lord, nineteen hundred and forty-seven, and of the
Independence of the Philippines, the second. MANUEL ROXAS
President of the Philippines By the President: EMILIO ABELLO Chief
of the Executive Office EXECUTIVE LEGISLATION Executive Order
No. 68 is a veritable piece of Legislative measure, without the benefit
of congressional enactment. The first question that is trust at our face
spearheading a group of other no less important question, is whether
or not the President of the Philippines may exercise the legislative
power expressly vested in Congress by the Constitution. . The
Constitution provides: The Legislative powers shall be vested in a
Congress of the Philippines which shall consist of a Senate and
House of Representatives. (Section 1, Article VI.) While there is no
express provision in the fundamental law prohibiting the exercise of
legislative power by agencies other than Congress, a reading of the
whole context of the Constitution would dispel any doubt as to the
constitutional intent that the legislative power is to be exercised
exclusively by Congress, subject only to the veto power of the
President of the President of the Philippines, to the specific provision
which allow the president of the Philippines to suspend the privileges
of the writ of habeas corpus and to place any part of the Philippines
under martial law, and to the rule-making power expressly vested by
the Constitution in the Supreme Court. There cannot be any question
that the member of the Constitutional Convention were believers in
the tripartite system of government as originally enunciated by
Aristotle, further elaborated by Montequieu and accepted and
practiced by modern democracies, especially the United State of
America, whose Constitution, after which ours has been patterned,
has allocated the three power of government legislative, executive,
judicial to distinct and separate department of government.
Because the power vested by our Constitution to the several
department of the government are in the nature of grants, not

recognition of pre-existing power, no department of government may

exercise any power or authority not expressly granted by the
Constitution or by law by virtue express authority of the Constitution.
Executive Order No. 68 establishes a National War Crimes Office and
the power to establish government office is essentially legislative. The
order provides that person accused as war criminals shall be tried by
military commissions. Whether such a provision is substantive or
adjective, it is clearly legislative in nature. It confers upon military
commissions jurisdiction to try all persons charge with war crimes.
The power to define and allocate jurisdiction for the prosecution of
person accused of any crime is exclusively vested by the Constitution
in Congress. . It provides rules of procedure for the conduct of trial of
trial. This provision on procedural subject constitutes a usurpation of
the rule-making power vested by Constitution in the Supreme Court.
It authorized military commission to adopt additional rule of
procedure. If the President of the Philippines cannot exercise the rule
-making power vested by the Constitution in the Supreme Court, he
cannot, with more reason, delegate that power to military
commission. It appropriates the sum of P7000,000 for the expenses
of the National War Crimes office established by the said Executive
Order No. 68. This constitutes another usurpation of legislative power
as the power to vote appropriations belongs to Congress. Executive
Order No. 68., is, therefore, null and void, because, though it the
President of the Philippines usurped power expressly vested by the
Constitution in Congress and in the Supreme Court. Challenged to
show the constitutional or legal authority under which the President
issued Executive Order No. 68, respondent could not give any
definite answer. They attempted, however, to suggest that the
President of the Philippines issued Executive Order No. 68 under the
emergency power granted to him by Commonwealth Act No. 600, as
amended by Commonwealth Act No. 620, and Commonwealth Act
No. 671, both of which are transcribed below: COMMONWEALTH
ACT NO. 600. AN ACT DECLARING A STATE OF EMERGENCY
AND AUTHORIZING THE PRESIDENT TO PROMULGATE RULES
AND REGULATION TO SAFEGUARD THE INTEGRITY OF THE
PHILIPPINES AND TO INSURE THE TRANQUILITY OF ITS
INHABITANTS. Be it enacted by the National Assembly of the
Philippines: SECTION 1. The existence of war in many parts of the
world has created a national emergency which makes it necessary to
invest the President of the Philippines with extraordinary power in

order to safeguard the integrity of the Philippines and to insure the

tranquility of its inhabitants, by suppressing espionage, lawlessness,
and all subversive to the people adequate shelter and clothing and
sufficient food supply, and by providing means for the speedy
evacuation of the civilian population the establishment of an air
protective service and the organization of volunteer guard units, and
to adopt such other measures as he may deem necessary for the
interest of the public. To carry out this policy the President is
authorized to promulgate rules and regulations which shall have the
force and effect off law until the date of adjournment of the next
regulation which shall have the force and effect of law until the date of
adjournment of the next regular session of the First Congress of the
Philippines, unless sooner amended or repealed by the Congress of
Philippines. Such rules and regulation may embrace the following
objects: (1) to suppress espionage and other subversive activities; (2)
to require all able-bodied citizens (a) when not engaged in any lawful
occupation, to engage in farming or other productive activities or (b)
to perform such services as may bee necessary in the public interest;
(3) to take over farm lands in order to prevent or shortage of crops
and hunger and destitution; (4) to take over industrial establishment
in order to insure adequate production, controlling wages and profits
therein; (5) to prohibit lockouts and strikes whenever necessary to
prevent the unwarranted suspension of work in productive enterprises
or in the interest of national security; (6) to regulate the normal hours
of work for wage-earning and salaried employees in industrial or
business undertakings of all kinds; (7) to insure an even distribution
of labor among the productive enterprises; (8) to commandership and
other means of transportation in order to maintain, as much as
possible, adequate and continued transportation facilities; (9) to
requisition and take over any public service or enterprise for use or
operation by the Government;(10) to regulate rents and the prices of
articles or commodities of prime necessity, both imported and locally
produced or manufactured; and (11) to prevent, locally or generally,
scarcity, monopolization, hoarding injurious speculations, and private
control affecting the supply, distribution and movement of foods,
clothing, fuel, fertilizer, chemical, building, material, implements,
machinery, and equipment required in agriculture and industry, with
power to requisition these commodities subject to the payment of just
compensation. (As amended by Com. Act No. 620.) SEC. 2. For the
purpose of administering this Act and carrying out its objective, the

President may designate any officer, without additional

compensation, or any department, bureau, office, or instrumentality of
the National Government. SEC. 3. Any person, firm, or corporation
found guilty of the violation of any provision of this Act or of this Act or
any of the rules or regulations promulgated by the President under
the authority of section one of this Act shall be punished by
imprisonment of not more than ten years or by a fine of not more than
ten thousand pesos, or by both. If such violation is committed by a
firm or corporation, the manager, managing director, or person charge
with the management of the business of such firm, or corporation
shall be criminally responsible therefor. SEC. 4. The President shall
report to the national Assembly within the first ten days from the date
of the opening of its next regular session whatever action has been
taken by him under the authority herein granted. SEC. 5. To carry out
the purposed of this Act, the President is authorized to spend such
amounts as may be necessary from the sum appropriated under
section five Commonwealth Act Numbered four hundred and ninetyeight. SEC. 6. If any province of this Act shall be declared by any
court of competent jurisdiction to be unconstitutional and void, such
declaration shall not invalidate the remainder of this Act. SEC. 7. This
Act shall take upon its approval. Approved, August 19, 1940.
COMMONWEALTH ACT NO. 671 AN ACT DECLARING A STATE OF
TOTAL EMERGENCY AS A RESULT OF WAR INVOLVING THE
PHILIPPINES AND AUTHORIZING THE PRESIDENT TO
PROMULGATE RULE AND REGULATIONS TO MEET SUCH
EMERGENCY. Be it enacted the National Assembly of the
Philippines; SECTION 1. The existed of war between the United
State and other countries of Europe and Asia, which involves the
Philippines, makes it necessary to invest the President with
extraordinary powers in order to meet the resulting emergency. SEC.
2. Pursuant to the provision of Article VI, section 16, of the
Constitution, the President is hereby authorized, during the existence
of the emergency, to promulgate such rules and regulation as he may
deem necessary to carry out the national policy declared in section 1
hereof. Accordingly, he is, among other things, empowered (a) to
transfer the seat of the Government or any of its subdivisions,
branches, department, offices, agencies or instrumentalities; (b) to
reorganize the Government of the Commonwealth including the
determination of the order of precedence of the heads of the
Executive Department; (c) to create new subdivision, branches,

departments, offices, agency or instrumentalities of government and

to abolish any of those already existing; (d) to continue in force laws
and appropriation which would lapse or otherwise became
inoperative, and to modify or suspend the operation or application of
those of an administrative character; (e) to imposed new taxes or to
increase, reduce, suspend, or abolish those in existence; (f) to raise
funds through the issuance of bonds or otherwise, and to authorize
the expensive of the proceeds thereof; (g) to authorize the National,
provincial, city or municipal governments to incur in overdrafts for
purposes that he may approve; (h) to declare the suspension of the
collection of credits or the payment of debts; and (i) to exercise such
other power as he may deem necessary to enable the Government to
fulfill its responsibilities and to maintain and enforce its authority.
SEC. 3. The President of the Philippines report thereto all the rules
and regulation promulgated by him under the power herein granted.
SEC. 4. This Act shall take effect upon its approval and the rules and
regulations. promulgated hereunder shall be in force and effect until
the Congress of the Philippines shall otherwise provide. Approved
December 16, 1941. The above Acts cannot validly be invoked,
Executive Order No. 68 was issued on July 29, 1947. Said Acts had
elapsed upon the liberation of the Philippines form the Japanese
forces or, at the latest, when the surrender of Japan was signed in
Tokyo on September 2, 1945. When both Acts were enacted by the
Second National Assembly, we happened to have taken direct part in
their consideration and passage, not only as one of the members of
said legislative body as chairman of the Committee on Third Reading
population Known as the "Little Senate." We are, therefore in a
position to state that said measures were enacted by the second
national Assembly for the purpose of facing the emergency of
impending war and of the Pacific War that finally broke out with the
attack of Pearl Harbor on December 7, 1941. We approved said
extraordinary measures, by which under the exceptional
circumstances then prevailing legislative power were delegated to the
President of the Philippines, by virtue of the following provisions of
the Constitution: In time of war or other national emergency, the
Congress may by law authorize the President, for a limited period and
subject to such restrictions as it may prescribe to promulgate rules
and regulations to carry out declared national policy. (Article VI,
section 26.) It has never been the purpose of the National Assembly
to extend the delegation beyond the emergency created by the war

as to extend it farther would be violative of the express provision of

the Constitution. We are of the opinion that there is no doubt on this
question.; but if there could still be any the same should be resolved
in favor of the presumption that the National Assembly did not intend
to violate the fundamental law. The absurdity of the contention that
the emergency Acts continued in effect even after the surrender of
Japan can not be gainsaid. Only a few months after liberation and
even before the surrender of Japan, or since the middle of 1945, the
Congress started to function normally. In the hypothesis that the
contention can prevail, then, since 1945, that is, four years ago, even
after the Commonwealth was already replaced by the Republic of the
Philippines with the proclamation of our Independence, two district,
separate and independence legislative organs, Congress and the
President of the Philippines would have been and would continue
enacting laws, the former to enact laws of every nature including
those of emergency character, and the latter to enact laws, in the
form of executive orders, under the so-called emergency powers. The
situation would be pregnant with dangers to peace and order to the
rights and liberties of the people and to Philippines democracy.
Should there be any disagreement between Congress and the
President of the Philippines, a possibility that no one can dispute the
President of the Philippines may take advantage of he long recess of
Congress (two-thirds of every year ) to repeal and overrule legislative
enactments of Congress, and may set up a veritable system of
dictatorship, absolutely repugnant to the letter and spirit of the
Constitution. Executive Order No. 68 is equally offensive to the
Constitution because it violates the fundamental guarantees of the
due process and equal protection of the law. It is especially so,
because it permit the admission of many kinds evidence by which no
innocent person can afford to get acquittal and by which it is
impossible to determine whether an accused is guilty or not beyond
all reasonable doubt. The rules of evidence adopted in Executive
Order No. 68 are a reproduction of the regulation governing the trial
of twelve criminal, issued by General Douglas Mac Arthur,
Commander in Chief of the United State Armed Forces in Western
Pacific, for the purpose of trying among other, General Yamashita
and Homma. What we said in our concurring and dissenting opinion
to the decision promulgated on December 19, 1945, in the Yamashita
case, L-129, and in our concurring and dissenting opinion to the
resolution of January 23, 1946 in disposing the Homma case, L-244,

are perfectly applicable to the offensive rules of evidence in Executive

Order No. 68. Said rules of evidence are repugnant to conscience as
under them no justice can expected. For all the foregoing,
conformably with our position in the Yamashita and Homma cases,
we vote to declare Executive Order No. 68 null and void and to grant
petition.