Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-5 September 17, 1945

CO KIM CHAM (alias CO KIM CHAM), petitioner,

vs.
EUSEBIO VALDEZ TAN KEH and ARSENIO P. DIZON, Judge of First Instance of
Manila, respondents.1

Marcelino Lontok for petitioner.

P. A. Revilla for respondent Valdez Tan Keh.
Respondent Judge Dizon in his own behalf.

FERIA, J.:

This petition for mandamus in which petitioner prays that the respondent judge of the lower court be
ordered to continue the proceedings in civil case No. 3012 of said court, which were initiated under
the regime of the so-called Republic of the Philippines established during the Japanese military
occupation of these Islands.

The respondent judge refused to take cognizance of and continue the proceedings in said case on
the ground that the proclamation issued on October 23, 1944, by General Douglas MacArthur had
the effect of invalidating and nullifying all judicial proceedings and judgements of the court of the
Philippines under the Philippine Executive Commission and the Republic of the Philippines
established during the Japanese military occupation, and that, furthermore, the lower courts have no
jurisdiction to take cognizance of and continue judicial proceedings pending in the courts of the
defunct Republic of the Philippines in the absence of an enabling law granting such authority. And
the same respondent, in his answer and memorandum filed in this Court, contends that the
government established in the Philippines during the Japanese occupation were no de
facto governments.

On January 2, 1942, the Imperial Japanese Forces occupied the City of Manila, and on the next day
their Commander in Chief proclaimed "the Military Administration under law over the districts
occupied by the Army." In said proclamation, it was also provided that "so far as the Military
Administration permits, all the laws now in force in the Commonwealth, as well as executive and
judicial institutions, shall continue to be effective for the time being as in the past," and "all public
officials shall remain in their present posts and carry on faithfully their duties as before."

A civil government or central administration organization under the name of "Philippine Executive
Commission was organized by Order No. 1 issued on January 23, 1942, by the Commander in Chief
of the Japanese Forces in the Philippines, and Jorge B. Vargas, who was appointed Chairman
thereof, was instructed to proceed to the immediate coordination of the existing central
administrative organs and judicial courts, based upon what had existed therefore, with approval of
the said Commander in Chief, who was to exercise jurisdiction over judicial courts.

The Chairman of the Executive Commission, as head of the central administrative organization,
issued Executive Orders Nos. 1 and 4, dated January 30 and February 5, 1942, respectively, in
which the Supreme Court, Court of Appeals, Courts of First Instance, and the justices of the peace
and municipal courts under the Commonwealth were continued with the same jurisdiction, in
conformity with the instructions given to the said Chairman of the Executive Commission by the
Commander in Chief of Japanese Forces in the Philippines in the latter's Order No. 3 of February 20,
1942, concerning basic principles to be observed by the Philippine Executive Commission in
exercising legislative, executive and judicial powers. Section 1 of said Order provided that "activities
of the administration organs and judicial courts in the Philippines shall be based upon the existing
statutes, orders, ordinances and customs. . . ."

On October 14, 1943, the so-called Republic of the Philippines was inaugurated, but no substantial
change was effected thereby in the organization and jurisdiction of the different courts that
functioned during the Philippine Executive Commission, and in the laws they administered and
enforced.

On October 23, 1944, a few days after the historic landing in Leyte, General Douglas MacArthur
issued a proclamation to the People of the Philippines which declared:

1. That the Government of the Commonwealth of the Philippines is, subject to the supreme
authority of the Government of the United States, the sole and only government having legal
and valid jurisdiction over the people in areas of the Philippines free of enemy occupation
and control;

2. That the laws now existing on the statute books of the Commonwealth of the Philippines
and the regulations promulgated pursuant thereto are in full force and effect and legally
binding upon the people in areas of the Philippines free of enemy occupation and control;
and

3. That all laws, regulations and processes of any other government in the Philippines than
that of the said Commonwealth are null and void and without legal effect in areas of the
Philippines free of enemy occupation and control.

On February 3, 1945, the City of Manila was partially liberated and on February 27, 1945, General
MacArthur, on behalf of the Government of the United States, solemnly declared "the full powers and
responsibilities under the Constitution restored to the Commonwealth whose seat is here established
as provided by law."

In the light of these facts and events of contemporary history, the principal questions to be resolved
in the present case may be reduced to the following:(1) Whether the judicial acts and proceedings of
the court existing in the Philippines under the Philippine Executive Commission and the Republic of
the Philippines were good and valid and remained so even after the liberation or reoccupation of the
Philippines by the United States and Filipino forces; (2)Whether the proclamation issued on October
23, 1944, by General Douglas MacArthur, Commander in Chief of the United States Army, in which
he declared "that all laws, regulations and processes of any of the government in the Philippines
than that of the said Commonwealth are null and void and without legal effect in areas of the
Philippines free of enemy occupation and control," has invalidated all judgements and judicial acts
and proceedings of the said courts; and (3) If the said judicial acts and proceedings have not been
invalidated by said proclamation, whether the present courts of the Commonwealth, which were the
same court existing prior to, and continued during, the Japanese military occupation of the
Philippines, may continue those proceedings pending in said courts at the time the Philippines were
reoccupied and liberated by the United States and Filipino forces, and the Commonwealth of the
Philippines were reestablished in the Islands.
We shall now proceed to consider the first question, that is, whether or not under the rules of
international law the judicial acts and proceedings of the courts established in the Philippines under
the Philippine Executive Commission and the Republic of the Philippines were good and valid and
remained good and valid even after the liberation or reoccupation of the Philippines by the United
States and Filipino forces.

1. It is a legal truism in political and international law that all acts and proceedings of the legislative,
executive, and judicial departments of a de facto government are good and valid. The question to be
determined is whether or not the governments established in these Islands under the names of the
Philippine Executive Commission and Republic of the Philippines during the Japanese military
occupation or regime were de facto governments. If they were, the judicial acts and proceedings of
those governments remain good and valid even after the liberation or reoccupation of the Philippines
by the American and Filipino forces.

There are several kinds of de facto governments. The first, or government de facto in a proper legal
sense, is that government that gets possession and control of, or usurps, by force or by the voice of
the majority, the rightful legal governments and maintains itself against the will of the latter, such as
the government of England under the Commonwealth, first by Parliament and later by Cromwell as
Protector. The second is that which is established and maintained by military forces who invade and
occupy a territory of the enemy in the course of war, and which is denominated a government of
paramount force, as the cases of Castine, in Maine, which was reduced to British possession in the
war of 1812, and Tampico, Mexico, occupied during the war with Mexico, by the troops of the United
States. And the third is that established as an independent government by the inhabitants of a
country who rise in insurrection against the parent state of such as the government of the Southern
Confederacy in revolt not concerned in the present case with the first kind, but only with the second
and third kinds of de facto governments.

Speaking of government "de facto" of the second kind, the Supreme Court of the United States, in
the case of Thorington vs. Smith (8 Wall., 1), said: "But there is another description of government,
called also by publicists a government de facto, but which might, perhaps, be more aptly
denominated a government of paramount force. Its distinguishing characteristics are (1), that its
existence is maintained by active military power with the territories, and against the rightful authority
of an established and lawful government; and (2), that while it exists it necessarily be obeyed in civil
matters by private citizens who, by acts of obedience rendered in submission to such force, do not
become responsible, or wrongdoers, for those acts, though not warranted by the laws of the rightful
government. Actual governments of this sort are established over districts differing greatly in extent
and conditions. They are usually administered directly by military authority, but they may be
administered, also, civil authority, supported more or less directly by military force. . . . One example
of this sort of government is found in the case of Castine, in Mine, reduced to British possession in
the war of 1812 . . . U. S. vs. Rice (4 Wheaton, 253). A like example is found in the case of Tampico,
occupied during the war with Mexico, by the troops of the United States . . . Fleming vs. Page (9
Howard, 614). These were cases of temporary possessions of territory by lawfull and regular
governments at war with the country of which the territory so possessed was part."

The powers and duties of de facto governments of this description are regulated in Section III of the
Hague Conventions of 1907, which is a revision of the provisions of the Hague Conventions of 1899
on the same subject of said Section III provides "the authority of the legislative power having actually
passed into the hands of the occupant, the latter shall take steps in his power to reestablish and
insure, as far as possible, public order and safety, while respecting, unless absolutely prevented, the
laws in force in the country."
According to the precepts of the Hague Conventions, as the belligerent occupant has the right and is
burdened with the duty to insure public order and safety during his military occupation, he possesses
all the powers of a de factogovernment, and he can suspended the old laws and promulgate new
ones and make such changes in the old as he may see fit, but he is enjoined to respect, unless
absolutely prevented by the circumstances prevailing in the occupied territory, the municipal laws in
force in the country, that is, those laws which enforce public order and regulate social and
commercial life of the country. On the other hand, laws of a political nature or affecting political
relations, such as, among others, the right of assembly, the right to bear arms, the freedom of the
press, and the right to travel freely in the territory occupied, are considered as suspended or in
abeyance during the military occupation. Although the local and civil administration of justice is
suspended as a matter of course as soon as a country is militarily occupied, it is not usual for the
invader to take the whole administration into his own hands. In practice, the local ordinary tribunals
are authorized to continue administering justice; and judges and other judicial officers are kept in
their posts if they accept the authority of the belligerent occupant or are required to continue in their
positions under the supervision of the military or civil authorities appointed, by the Commander in
Chief of the occupant. These principles and practice have the sanction of all publicists who have
considered the subject, and have been asserted by the Supreme Court and applied by the President
of the United States.

The doctrine upon this subject is thus summed up by Halleck, in his work on International Law (Vol.
2, p. 444): "The right of one belligerent to occupy and govern the territory of the enemy while in its
military possession, is one of the incidents of war, and flows directly from the right to conquer. We,
therefore, do not look to the Constitution or political institutions of the conqueror, for authority to
establish a government for the territory of the enemy in his possession, during its military occupation,
nor for the rules by which the powers of such government are regulated and limited. Such authority
and such rules are derived directly from the laws war, as established by the usage of the of the
world, and confirmed by the writings of publicists and decisions of courts — in fine, from the law of
nations. . . . The municipal laws of a conquered territory, or the laws which regulate private rights,
continue in force during military occupation, excepts so far as they are suspended or changed by the
acts of conqueror. . . . He, nevertheless, has all the powers of a de facto government, and can at his
pleasure either change the existing laws or make new ones."

And applying the principles for the exercise of military authority in an occupied territory, which were
later embodied in the said Hague Conventions, President McKinley, in his executive order to the
Secretary of War of May 19,1898, relating to the occupation of the Philippines by United States
forces, said in part: "Though the powers of the military occupant are absolute and supreme, and
immediately operate upon the political condition of the inhabitants, the municipal laws of the
conquered territory, such as affect private rights of person and property and provide for the
punishment of crime, are considered as continuing in force, so far as they are compatible with the
new order of things, until they are suspended or superseded by the occupying belligerent; and in
practice they are not usually abrogated, but are allowed to remain in force and to be administered by
the ordinary tribunals, substantially as they were before the occupation. This enlightened practice is,
so far as possible, to be adhered to on the present occasion. The judges and the other officials
connected with the administration of justice may, if they accept the authority of the United States,
continue to administer the ordinary law of the land as between man and man under the supervision
of the American Commander in Chief." (Richardson's Messages and Papers of President, X, p. 209.)

As to "de facto" government of the third kind, the Supreme Court of the United States, in the same
case of Thorington vs. Smith, supra, recognized the government set up by the Confederate States
as a de factogovernment. In that case, it was held that "the central government established for the
insurgent States differed from the temporary governments at Castine and Tampico in the
circumstance that its authority did no originate in lawful acts of regular war; but it was not, on the
account, less actual or less supreme. And we think that it must be classed among the governments
of which these are examples. . . .

In the case of William vs. Bruffy (96 U. S. 176, 192), the Supreme Court of the United States,
discussing the validity of the acts of the Confederate States, said: "The same general form of
government, the same general laws for the administration of justice and protection of private rights,
which had existed in the States prior to the rebellion, remained during its continuance and
afterwards. As far as the Acts of the States do not impair or tend to impair the supremacy of the
national authority, or the just rights of citizens under the Constitution, they are, in general, to be
treated as valid and binding. As we said in Horn vs. Lockhart (17 Wall., 570; 21 Law. ed., 657): "The
existence of a state of insurrection and war did not loosen the bonds of society, or do away with civil
government or the regular administration of the laws. Order was to be preserved, police regulations
maintained, crime prosecuted, property protected, contracts enforced, marriages celebrated, estates
settled, and the transfer and descent of property regulated, precisely as in the time of peace. No
one, that we are aware of, seriously questions the validity of judicial or legislative Acts in the
insurrectionary States touching these and kindered subjects, where they were not hostile in their
purpose or mode of enforcement to the authority of the National Government, and did not impair the
rights of citizens under the Constitution'. The same doctrine has been asserted in numerous other
cases."

And the same court, in the case of Baldy vs. Hunter (171 U. S., 388, 400), held: "That what occured
or was done in respect of such matters under the authority of the laws of these local de
facto governments should not be disregarded or held to be invalid merely because those
governments were organized in hostility to the Union established by the national Constitution; this,
because the existence of war between the United States and the Confederate States did not relieve
those who are within the insurrectionary lines from the necessity of civil obedience, nor destroy the
bonds of society nor do away with civil government or the regular administration of the laws, and
because transactions in the ordinary course of civil society as organized within the enemy's territory
although they may have indirectly or remotely promoted the ends of the de facto or unlawful
government organized to effect a dissolution of the Union, were without blame 'except when proved
to have been entered into with actual intent to further invasion or insurrection:'" and "That judicial
and legislative acts in the respective states composing the so-called Confederate States should be
respected by the courts if they were not hostile in their purpose or mode of enforcement to the
authority of the National Government, and did not impair the rights of citizens under the
Constitution."

In view of the foregoing, it is evident that the Philippine Executive Commission, which was organized
by Order No. 1, issued on January 23, 1942, by the Commander of the Japanese forces, was a civil
government established by the military forces of occupation and therefore a de facto government of
the second kind. It was not different from the government established by the British in Castine,
Maine, or by the United States in Tampico, Mexico. As Halleck says, "The government established
over an enemy's territory during the military occupation may exercise all the powers given by the
laws of war to the conqueror over the conquered, and is subject to all restrictions which that code
imposes. It is of little consequence whether such government be called a military or civil government.
Its character is the same and the source of its authority the same. In either case it is a government
imposed by the laws of war, and so far it concerns the inhabitants of such territory or the rest of the
world, those laws alone determine the legality or illegality of its acts." (Vol. 2, p. 466.) The fact that
the Philippine Executive Commission was a civil and not a military government and was run by
Filipinos and not by Japanese nationals, is of no consequence. In 1806, when Napoleon occupied
the greater part of Prussia, he retained the existing administration under the general direction of a
french official (Langfrey History of Napoleon, 1, IV, 25); and, in the same way, the Duke of
Willington, on invading France, authorized the local authorities to continue the exercise of their
functions, apparently without appointing an English superior. (Wellington Despatches, XI, 307.). The
Germans, on the other hand, when they invaded France in 1870, appointed their own officials, at
least in Alsace and Lorraine, in every department of administration and of every rank. (Calvo, pars.
2186-93; Hall, International Law, 7th ed., p. 505, note 2.)

The so-called Republic of the Philippines, apparently established and organized as a sovereign state
independent from any other government by the Filipino people, was, in truth and reality, a
government established by the belligerent occupant or the Japanese forces of occupation. It was of
the same character as the Philippine Executive Commission, and the ultimate source of its authority
was the same — the Japanese military authority and government. As General MacArthur stated in
his proclamation of October 23, 1944, a portion of which has been already quoted, "under enemy
duress, a so-called government styled as the 'Republic of the Philippines' was established on
October 14, 1943, based upon neither the free expression of the people's will nor the sanction of the
Government of the United States." Japan had no legal power to grant independence to the
Philippines or transfer the sovereignty of the United States to, or recognize the latent sovereignty of,
the Filipino people, before its military occupation and possession of the Islands had matured into an
absolute and permanent dominion or sovereignty by a treaty of peace or other means recognized in
the law of nations. For it is a well-established doctrine in International Law, recognized in Article 45
of the Hauge Conventions of 1907 (which prohibits compulsion of the population of the occupied
territory to swear allegiance to the hostile power), the belligerent occupation, being essentially
provisional, does not serve to transfer sovereignty over the territory controlled although the de
jure government is during the period of occupancy deprived of the power to exercise its rights as
such. (Thirty Hogshead of Sugar vs. Boyle, 9 Cranch, 191; United States vs. Rice, 4 Wheat., 246;
Fleming vs. Page, 9 Howard, 603; Downes vs. Bidwell, 182 U. S., 345.) The formation of the
Republic of the Philippines was a scheme contrived by Japan to delude the Filipino people into
believing in the apparent magnanimity of the Japanese gesture of transferring or turning over the
rights of government into the hands of Filipinos. It was established under the mistaken belief that by
doing so, Japan would secure the cooperation or at least the neutrality of the Filipino people in her
war against the United States and other allied nations.

Indeed, even if the Republic of the Philippines had been established by the free will of the Filipino
who, taking advantage of the withdrawal of the American forces from the Islands, and the occupation
thereof by the Japanese forces of invasion, had organized an independent government under the
name with the support and backing of Japan, such government would have been considered as one
established by the Filipinos in insurrection or rebellion against the parent state or the Unite States.
And as such, it would have been a de facto government similar to that organized by the confederate
states during the war of secession and recognized as such by the by the Supreme Court of the
United States in numerous cases, notably those of Thorington vs. Smith, Williams vs. Bruffy, and
Badly vs. Hunter, above quoted; and similar to the short-lived government established by the Filipino
insurgents in the Island of Cebu during the Spanish-American war, recognized as a de
facto government by the Supreme Court of the United States in the case of McCleod vs. United
States (299 U. S., 416). According to the facts in the last-named case, the Spanish forces evacuated
the Island of Cebu on December 25, 1898, having first appointed a provisional government, and
shortly afterwards, the Filipinos, formerly in insurrection against Spain, took possession of the
Islands and established a republic, governing the Islands until possession thereof was surrendered
to the United States on February 22, 1898. And the said Supreme Court held in that case that "such
government was of the class of de facto governments described in I Moore's International Law
Digest, S 20, . . . 'called also by publicists a government de facto, but which might, perhaps, be more
aptly denominated a government of paramount force . . '." That is to say, that the government of a
country in possession of belligerent forces in insurrection or rebellion against the parent state, rests
upon the same principles as that of a territory occupied by the hostile army of an enemy at regular
war with the legitimate power.
The governments by the Philippine Executive Commission and the Republic of the Philippines during
the Japanese military occupation being de facto governments, it necessarily follows that the judicial
acts and proceedings of the courts of justice of those governments, which are not of a political
complexion, were good and valid, and, by virtue of the well-known principle of postliminy
(postliminium) in international law, remained good and valid after the liberation or reoccupation of the
Philippines by the American and Filipino forces under the leadership of General Douglas MacArthur.
According to that well-known principle in international law, the fact that a territory which has been
occupied by an enemy comes again into the power of its legitimate government of sovereignty,
"does not, except in a very few cases, wipe out the effects of acts done by an invader, which for one
reason or another it is within his competence to do. Thus judicial acts done under his control, when
they are not of a political complexion, administrative acts so done, to the extent that they take effect
during the continuance of his control, and the various acts done during the same time by private
persons under the sanction of municipal law, remain good. Were it otherwise, the whole social life of
a community would be paralyzed by an invasion; and as between the state and the individuals the
evil would be scarcely less, — it would be hard for example that payment of taxes made under
duress should be ignored, and it would be contrary to the general interest that the sentences passed
upon criminals should be annulled by the disappearance of the intrusive government ." (Hall,
International Law, 7th ed., p. 518.) And when the occupation and the abandonment have been each
an incident of the same war as in the present case, postliminy applies, even though the occupant
has acted as conqueror and for the time substituted his own sovereignty as the Japanese intended
to do apparently in granting independence to the Philippines and establishing the so-called Republic
of the Philippines. (Taylor, International Law, p. 615.)

That not only judicial but also legislative acts of de facto governments, which are not of a political
complexion, are and remain valid after reoccupation of a territory occupied by a belligerent occupant,
is confirmed by the Proclamation issued by General Douglas MacArthur on October 23, 1944, which
declares null and void all laws, regulations and processes of the governments established in the
Philippines during the Japanese occupation, for it would not have been necessary for said
proclamation to abrogate them if they were invalid ab initio.

2. The second question hinges upon the interpretation of the phrase "processes of any other
government" as used in the above-quoted proclamation of General Douglas MacArthur of October
23, 1944 — that is, whether it was the intention of the Commander in Chief of the American Forces
to annul and void thereby all judgments and judicial proceedings of the courts established in the
Philippines during the Japanese military occupation.

The phrase "processes of any other government" is broad and may refer not only to the judicial
processes, but also to administrative or legislative, as well as constitutional, processes of the
Republic of the Philippines or other governmental agencies established in the Islands during the
Japanese occupation. Taking into consideration the fact that, as above indicated, according to the
well-known principles of international law all judgements and judicial proceedings, which are not of a
political complexion, of the de facto governments during the Japanese military occupation were good
and valid before and remained so after the occupied territory had come again into the power of the
titular sovereign, it should be presumed that it was not, and could not have been, the intention of
General Douglas MacArthur, in using the phrase "processes of any other government" in said
proclamation, to refer to judicial processes, in violation of said principles of international law. The
only reasonable construction of the said phrase is that it refers to governmental processes other
than judicial processes of court proceedings, for according to a well-known rule of statutory
construction, set forth in 25 R. C. L., p. 1028, "a statute ought never to be construed to violate the
law of nations if any other possible construction remains."

It is true that the commanding general of a belligerent army of occupation, as an agent of his
government, may not unlawfully suspend existing laws and promulgate new ones in the occupied
territory, if and when the exigencies of the military occupation demand such action. But even
assuming that, under the law of nations, the legislative power of a commander in chief of military
forces who liberates or reoccupies his own territory which has been occupied by an enemy, during
the military and before the restoration of the civil regime, is as broad as that of the commander in
chief of the military forces of invasion and occupation (although the exigencies of military
reoccupation are evidently less than those of occupation), it is to be presumed that General Douglas
MacArthur, who was acting as an agent or a representative of the Government and the President of
the United States, constitutional commander in chief of the United States Army, did not intend to act
against the principles of the law of nations asserted by the Supreme Court of the United States from
the early period of its existence, applied by the Presidents of the United States, and later embodied
in the Hague Conventions of 1907, as above indicated. It is not to be presumed that General
Douglas MacArthur, who enjoined in the same proclamation of October 23, 1944, "upon the loyal
citizens of the Philippines full respect and obedience to the Constitution of the Commonwealth of the
Philippines," should not only reverse the international policy and practice of his own government, but
also disregard in the same breath the provisions of section 3, Article II, of our Constitution, which
provides that "The Philippines renounces war as an instrument of national policy, and adopts the
generally accepted principles of international law as part of the law of the Nation."

Moreover, from a contrary construction great inconvenience and public hardship would result, and
great public interests would be endangered and sacrificed, for disputes or suits already adjudged
would have to be again settled accrued or vested rights nullified, sentences passed on criminals set
aside, and criminals might easily become immune for evidence against them may have already
disappeared or be no longer available, especially now that almost all court records in the Philippines
have been destroyed by fire as a consequence of the war. And it is another well-established rule of
statutory construction that where great inconvenience will result from a particular construction, or
great public interests would be endangered or sacrificed, or great mischief done, such construction
is to be avoided, or the court ought to presume that such construction was not intended by the
makers of the law, unless required by clear and unequivocal words. (25 R. C. L., pp. 1025, 1027.)

The mere conception or thought of possibility that the titular sovereign or his representatives who
reoccupies a territory occupied by an enemy, may set aside or annul all the judicial acts or
proceedings of the tribunals which the belligerent occupant had the right and duty to establish in
order to insure public order and safety during military occupation, would be sufficient to paralyze the
social life of the country or occupied territory, for it would have to be expected that litigants would not
willingly submit their litigation to courts whose judgements or decisions may afterwards be annulled,
and criminals would not be deterred from committing crimes or offenses in the expectancy that they
may escaped the penalty if judgments rendered against them may be afterwards set aside.

That the proclamation has not invalidated all the judgements and proceedings of the courts of justice
during the Japanese regime, is impliedly confirmed by Executive Order No. 37, which has the force
of law, issued by the President of the Philippines on March 10, 1945, by virtue of the emergency
legislative power vested in him by the Constitution and the laws of the Commonwealth of the
Philippines. Said Executive order abolished the Court of Appeals, and provided "that all case which
have heretofore been duly appealed to the Court of Appeals shall be transmitted to the Supreme
Court final decision." This provision impliedly recognizes that the judgments and proceedings of the
courts during the Japanese military occupation have not been invalidated by the proclamation of
General MacArthur of October 23, because the said Order does not say or refer to cases which have
been duly appealed to said court prior to the Japanese occupation, but to cases which had therefore,
that is, up to March 10, 1945, been duly appealed to the Court of Appeals; and it is to be presumed
that almost all, if not all, appealed cases pending in the Court of Appeals prior to the Japanese
military occupation of Manila on January 2, 1942, had been disposed of by the latter before the
restoration of the Commonwealth Government in 1945; while almost all, if not all, appealed cases
pending on March 10, 1945, in the Court of Appeals were from judgments rendered by the Court of
First Instance during the Japanese regime.

The respondent judge quotes a portion of Wheaton's International Law which say: "Moreover when it
is said that an occupier's acts are valid and under international law should not be abrogated by the
subsequent conqueror, it must be remembered that no crucial instances exist to show that if his acts
should be reversed, any international wrong would be committed. What does happen is that most
matters are allowed to stand by the restored government, but the matter can hardly be put further
than this." (Wheaton, International Law, War, 7th English edition of 1944, p. 245.) And from this
quotion the respondent judge "draws the conclusion that whether the acts of the occupant should be
considered valid or not, is a question that is up to the restored government to decide; that there is no
rule of international law that denies to the restored government to decide; that there is no rule of
international law that denies to the restored government the right of exercise its discretion on the
matter, imposing upon it in its stead the obligation of recognizing and enforcing the acts of the
overthrown government."

There is doubt that the subsequent conqueror has the right to abrogate most of the acts of the
occupier, such as the laws, regulations and processes other than judicial of the government
established by the belligerent occupant. But in view of the fact that the proclamation uses the words
"processes of any other government" and not "judicial processes" prisely, it is not necessary to
determine whether or not General Douglas MacArthur had power to annul and set aside all
judgments and proceedings of the courts during the Japanese occupation. The question to be
determined is whether or not it was his intention, as representative of the President of the United
States, to avoid or nullify them. If the proclamation had, expressly or by necessary implication,
declared null and void the judicial processes of any other government, it would be necessary for this
court to decide in the present case whether or not General Douglas MacArthur had authority to
declare them null and void. But the proclamation did not so provide, undoubtedly because the author
thereof was fully aware of the limitations of his powers as Commander in Chief of Military Forces of
liberation or subsequent conqueror.

Not only the Hague Regulations, but also the principles of international law, as they result from the
usages established between civilized nations, the laws of humanity and the requirements of the
public of conscience, constitute or from the law of nations. (Preamble of the Hague Conventions;
Westlake, International Law, 2d ed., Part II, p. 61.) Article 43, section III, of the Hague Regulations or
Conventions which we have already quoted in discussing the first question, imposes upon the
occupant the obligation to establish courts; and Article 23 (h), section II, of the same Conventions,
which prohibits the belligerent occupant "to declare . . . suspended . . . in a Court of Law the rights
and action of the nationals of the hostile party," forbids him to make any declaration preventing the
inhabitants from using their courts to assert or enforce their civil rights. (Decision of the Court of
Appeals of England in the case of Porter vs. Fruedenburg, L.R. [1915], 1 K.B., 857.) If a belligerent
occupant is required to establish courts of justice in the territory occupied, and forbidden to prevent
the nationals thereof from asserting or enforcing therein their civil rights, by necessary implication,
the military commander of the forces of liberation or the restored government is restrained from
nullifying or setting aside the judgments rendered by said courts in their litigation during the period of
occupation. Otherwise, the purpose of these precepts of the Hague Conventions would be thwarted,
for to declare them null and void would be tantamount to suspending in said courts the right and
action of the nationals of the territory during the military occupation thereof by the enemy. It goes
without saying that a law that enjoins a person to do something will not at the same time empower
another to undo the same. Although the question whether the President or commanding officer of
the United States Army has violated restraints imposed by the constitution and laws of his country is
obviously of a domestic nature, yet, in construing and applying limitations imposed on the executive
authority, the Supreme Court of the United States, in the case of Ochoa, vs. Hernandez (230 U.S.,
139), has declared that they "arise from general rules of international law and from fundamental
principles known wherever the American flag flies."

In the case of Raymond vs. Thomas (91 U.S., 712), a special order issued by the officer in command
of the forces of the United States in South Carolina after the end of the Civil War, wholly annulling a
decree rendered by a court of chancery in that state in a case within its jurisdiction, was declared
void, and not warranted by the acts approved respectively March 2, 1867 (14 Stat., 428), and July 19
of the same year (15 id., 14), which defined the powers and duties of military officers in command of
the several states then lately in rebellion. In the course of its decision the court said; "We have
looked carefully through the acts of March 2, 1867 and July 19, 1867. They give very large
governmental powers to the military commanders designated, within the States committed
respectively to their jurisdiction; but we have found nothing to warrant the order here in question. . . .
The clearest language would be necessary to satisfy us that Congress intended that the power given
by these acts should be so exercised. . . . It was an arbitrary stretch of authority, needful to no good
end that can be imagined. Whether Congress could have conferred the power to do such an act is a
question we are not called upon to consider. It is an unbending rule of law that the exercise of
military power, where the rights of the citizen are concerned, shall never be pushed beyond what the
exigency requires. (Mithell vs. Harmony, 13 How., 115; Warden vs. Bailey, 4 Taunt., 67;
Fabrigas vs. Moysten, 1 Cowp., 161; s.c., 1 Smith's L.C., pt. 2, p. 934.) Viewing the subject before
us from the standpoint indicated, we hold that the order was void."

It is, therefore, evident that the proclamation of General MacArthur of October 23, 1944, which
declared that "all laws, regulations and processes of any other government in the Philippines than
that of the said Commonwealth are null and void without legal effect in areas of the Philippines free
of enemy occupation and control," has not invalidated the judicial acts and proceedings, which are
not a political complexion, of the courts of justice in the Philippines that were continued by the
Philippine Executive Commission and the Republic of the Philippines during the Japanese military
occupation, and that said judicial acts and proceedings were good and valid before and now good
and valid after the reoccupation of liberation of the Philippines by the American and Filipino forces.

3. The third and last question is whether or not the courts of the Commonwealth, which are the same
as those existing prior to, and continued during, the Japanese military occupation by the Philippine
Executive Commission and by the so-called Republic of the Philippines, have jurisdiction to continue
now the proceedings in actions pending in said courts at the time the Philippine Islands were
reoccupied or liberated by the American and Filipino forces, and the Commonwealth Government
was restored.

Although in theory the authority the authority of the local civil and judicial administration is
suspended as a matter of course as soon as military occupation takes place, in practice the invader
does not usually take the administration of justice into his own hands, but continues the ordinary
courts or tribunals to administer the laws of the country which he is enjoined, unless absolutely
prevented, to respect. As stated in the above-quoted Executive Order of President McKinley to the
Secretary of War on May 19, 1898, "in practice, they (the municipal laws) are not usually abrogated
but are allowed to remain in force and to be administered by the ordinary tribunals substantially as
they were before the occupation. This enlightened practice is, so far as possible, to be adhered to on
the present occasion." And Taylor in this connection says: "From a theoretical point of view it may be
said that the conqueror is armed with the right to substitute his arbitrary will for all preexisting forms
of government, legislative, executive and judicial. From the stand-point of actual practice such
arbitrary will is restrained by the provision of the law of nations which compels the conqueror to
continue local laws and institution so far as military necessity will permit." (Taylor, International
Public Law, p.596.) Undoubtedly, this practice has been adopted in order that the ordinary pursuits
and business of society may not be unnecessarily deranged, inasmuch as belligerent occupation is
essentially provisional, and the government established by the occupant of transient character.
Following these practice and precepts of the law of nations, Commander in Chief of the Japanese
Forces proclaimed on January 3, 1942, when Manila was occupied, the military administration under
martial law over the territory occupied by the army, and ordered that "all the laws now in force in the
Commonwealth, as well as executive and judicial institutions, shall continue to be affective for the
time being as in the past," and "all public officials shall remain in their present post and carry on
faithfully their duties as before." When the Philippine Executive Commission was organized by Order
No. 1 of the Japanese Commander in Chief, on January 23, 1942, the Chairman of the Executive
Commission, by Executive Orders Nos. 1 and 4 of January 30 and February 5, respectively,
continued the Supreme Court, Court of Appeals, Court of First Instance, and justices of the peace of
courts, with the same jurisdiction in conformity with the instructions given by the Commander in
Chief of the Imperial Japanese Army in Order No. 3 of February 20, 1942. And on October 14, 1943
when the so-called Republic of the Philippines was inaugurated, the same courts were continued
with no substantial change in organization and jurisdiction thereof.

If the proceedings pending in the different courts of the Islands prior to the Japanese military
occupation had been continued during the Japanese military administration, the Philippine Executive
Commission, and the so-called Republic of the Philippines, it stands to reason that the same courts,
which had become reestablished and conceived of as having in continued existence upon the
reoccupation and liberation of the Philippines by virtue of the principle of postliminy (Hall,
International Law, 7th ed., p. 516), may continue the proceedings in cases then pending in said
courts, without necessity of enacting a law conferring jurisdiction upon them to continue said
proceedings. As Taylor graphically points out in speaking of said principles "a state or other
governmental entity, upon the removal of a foreign military force, resumes its old place with its right
and duties substantially unimpaired. . . . Such political resurrection is the result of a law analogous to
that which enables elastic bodies to regain their original shape upon removal of the external force, —
and subject to the same exception in case of absolute crushing of the whole fibre and content."
(Taylor, International Public Law, p. 615.)

The argument advanced by the respondent judge in his resolution in support in his conclusion that
the Court of First Instance of Manila presided over by him "has no authority to take cognizance of,
and continue said proceedings (of this case) to final judgment until and unless the Government of
the Commonwealth of the Philippines . . . shall have provided for the transfer of the jurisdiction of the
courts of the now defunct Republic of the Philippines, and the cases commenced and the left
pending therein," is "that said courts were a government alien to the Commonwealth Government.
The laws they enforced were, true enough, laws of the Commonwealth prior to Japanese
occupation, but they had become the laws — and the courts had become the institutions — of Japan
by adoption (U.S. vs.Reiter. 27 F. Cases, No. 16146), as they became later on the laws and
institutions of the Philippine Executive Commission and the Republic of the Philippines."

The court in the said case of U.S. vs. Reiter did not and could not say that the laws and institutions
of the country occupied if continued by the conqueror or occupant, become the laws and the courts,
by adoption, of the sovereign nation that is militarily occupying the territory. Because, as already
shown, belligerent or military occupation is essentially provisional and does not serve to transfer the
sovereignty over the occupied territory to the occupant. What the court said was that, if such laws
and institutions are continued in use by the occupant, they become his and derive their force from
him, in the sense that he may continue or set them aside. The laws and institution or courts so
continued remain the laws and institutions or courts of the occupied territory. The laws and the
courts of the Philippines, therefore, did not become, by being continued as required by the law of
nations, laws and courts of Japan. The provision of Article 45, section III, of the Hague Conventions
of 1907 which prohibits any compulsion of the population of occupied territory to swear allegiance to
the hostile power, "extends to prohibit everything which would assert or imply a change made by the
invader in the legitimate sovereignty. This duty is neither to innovate in the political life of the
occupied districts, nor needlessly to break the continuity of their legal life. Hence, so far as the courts
of justice are allowed to continue administering the territorial laws, they must be allowed to give their
sentences in the name of the legitimate sovereign " (Westlake, Int. Law, Part II, second ed., p. 102).
According to Wheaton, however, the victor need not allow the use of that of the legitimate
government. When in 1870, the Germans in France attempted to violate that rule by ordering, after
the fall of the Emperor Napoleon, the courts of Nancy to administer justice in the name of the "High
German Powers occupying Alsace and Lorraine," upon the ground that the exercise of their powers
in the name of French people and government was at least an implied recognition of the Republic,
the courts refused to obey and suspended their sitting. Germany originally ordered the use of the
name of "High German Powers occupying Alsace and Lorraine," but later offered to allow use of the
name of the Emperor or a compromise. (Wheaton, International Law, War, 7th English ed. 1944, p.
244.)

Furthermore, it is a legal maxim, that excepting that of a political nature, "Law once established
continues until changed by the some competent legislative power. It is not change merely by change
of sovereignty." (Joseph H. Beale, Cases on Conflict of Laws, III, Summary Section 9, citing
Commonwealth vs. Chapman, 13 Met., 68.) As the same author says, in his Treatise on the Conflict
on Laws (Cambridge, 1916, Section 131): "There can no break or interregnum in law. From the time
the law comes into existence with the first-felt corporateness of a primitive people it must last until
the final disappearance of human society. Once created, it persists until a change take place, and
when changed it continues in such changed condition until the next change, and so forever.
Conquest or colonization is impotent to bring law to an end; in spite of change of constitution, the law
continues unchanged until the new sovereign by legislative acts creates a change."

As courts are creatures of statutes and their existence defends upon that of the laws which create
and confer upon them their jurisdiction, it is evident that such laws, not being a political nature, are
not abrogated by a change of sovereignty, and continue in force "ex proprio vigore" unless and until
repealed by legislative acts. A proclamation that said laws and courts are expressly continued is not
necessary in order that they may continue in force. Such proclamation, if made, is but a declaration
of the intention of respecting and not repealing those laws. Therefore, even assuming that Japan
had legally acquired sovereignty over these Islands, which she had afterwards transferred to the so-
called Republic of the Philippines, and that the laws and the courts of these Islands had become the
courts of Japan, as the said courts of the laws creating and conferring jurisdiction upon them have
continued in force until now, it necessarily follows that the same courts may continue exercising the
same jurisdiction over cases pending therein before the restoration of the Commonwealth
Government, unless and until they are abolished or the laws creating and conferring jurisdiction
upon them are repealed by the said government. As a consequence, enabling laws or acts providing
that proceedings pending in one court be continued by or transferred to another court, are not
required by the mere change of government or sovereignty. They are necessary only in case the
former courts are abolished or their jurisdiction so change that they can no longer continue taking
cognizance of the cases and proceedings commenced therein, in order that the new courts or the
courts having jurisdiction over said cases may continue the proceedings. When the Spanish
sovereignty in the Philippine Islands ceased and the Islands came into the possession of the United
States, the "Audiencia" or Supreme Court was continued and did not cease to exist, and proceeded
to take cognizance of the actions pending therein upon the cessation of the Spanish sovereignty
until the said "Audiencia" or Supreme Court was abolished, and the Supreme Court created in
Chapter II of Act No. 136 was substituted in lieu thereof. And the Courts of First Instance of the
Islands during the Spanish regime continued taking cognizance of cases pending therein upon the
change of sovereignty, until section 65 of the same Act No. 136 abolished them and created in its
Chapter IV the present Courts of First Instance in substitution of the former. Similarly, no enabling
acts were enacted during the Japanese occupation, but a mere proclamation or order that the courts
in the Island were continued.
On the other hand, during the American regime, when section 78 of Act No. 136 was enacted
abolishing the civil jurisdiction of the provost courts created by the military government of occupation
in the Philippines during the Spanish-American War of 1898, the same section 78 provided for the
transfer of all civil actions then pending in the provost courts to the proper tribunals, that is, to the
justices of the peace courts, Court of First Instance, or Supreme Court having jurisdiction over them
according to law. And later on, when the criminal jurisdiction of provost courts in the City of Manila
was abolished by section 3 of Act No. 186, the same section provided that criminal cases pending
therein within the jurisdiction of the municipal court created by Act No. 183 were transferred to the
latter.

That the present courts as the same courts which had been functioning during the Japanese regime
and, therefore, can continue the proceedings in cases pending therein prior to the restoration of the
Commonwealth of the Philippines, is confirmed by Executive Order No. 37 which we have already
quoted in support of our conclusion in connection with the second question. Said Executive Order
provides"(1) that the Court of Appeals created and established under Commonwealth Act No. 3 as
amended, be abolished, as it is hereby abolished," and "(2) that all cases which have heretofore
been duly appealed to the Court of Appeals shall be transmitted to the Supreme Court for final
decision. . . ." In so providing, the said Order considers that the Court of Appeals abolished was the
same that existed prior to, and continued after, the restoration of the Commonwealth Government;
for, as we have stated in discussing the previous question, almost all, if not all, of the cases pending
therein, or which had theretofore (that is, up to March 10, 1945) been duly appealed to said court,
must have been cases coming from the Courts of First Instance during the so-called Republic of the
Philippines. If the Court of Appeals abolished by the said Executive Order was not the same one
which had been functioning during the Republic, but that which had existed up to the time of the
Japanese occupation, it would have provided that all the cases which had, prior to and up to that
occupation on January 2, 1942, been dully appealed to the said Court of Appeals shall be
transmitted to the Supreme Court for final decision.

It is, therefore, obvious that the present courts have jurisdiction to continue, to final judgment, the
proceedings in cases, not of political complexion, pending therein at the time of the restoration of the
Commonwealth Government.

Having arrived at the above conclusions, it follows that the Court of First Instance of Manila has
jurisdiction to continue to final judgment the proceedings in civil case No. 3012, which involves civil
rights of the parties under the laws of the Commonwealth Government, pending in said court at the
time of the restoration of the said Government; and that the respondent judge of the court, having
refused to act and continue him does a duty resulting from his office as presiding judge of that
court, mandamus is the speedy and adequate remedy in the ordinary course of law, especially
taking into consideration the fact that the question of jurisdiction herein involved does affect not only
this particular case, but many other cases now pending in all the courts of these Islands.

In view of all the foregoing it is adjudged and decreed that a writ of mandamus issue, directed to the
respondent judge of the Court of First Instance of Manila, ordering him to take cognizance of and
continue to final judgment the proceedings in civil case No. 3012 of said court. No pronouncement
as to costs. So ordered.

Moran, C.J., Ozaeta, Paras, Jaranilla and Pablo, JJ., concur.

Separate Opinions
DE JOYA, J., concurring:

The principal question involved in this case is the validity of the proceedings held in civil case No.
3012, in the Court of First Instance of the City of Manila, under the now defunct Philippine Republic,
during Japanese occupation; and the effect on said proceedings of the proclamation of General
Douglas MacArthur, dated October 23, 1944. The decision of this question requires the application
of principles of International Law, in connection with the municipal law in force in this country, before
and during Japanese occupation.

Questions of International Law must be decided as matters of general law (Juntington vs. Attril, 146
U.S., 657; 13 Sup. Ct. 224; 36 Law. ed., 1123); and International Law is no alien in this Tribunal, as,
under the Constitution of the Commonwealth of the Philippines, it is a part of the fundamental law of
the land (Article II, section 3).

As International Law is an integral part of our laws, it must be ascertained and administered by this
Court, whenever questions of right depending upon it are presented for our determination, sitting as
an international as well as a domestic Tribunal (Kansas vs. Colorado, 185 U.S., 146; 22 Sup. Ct.
552; 46 Law. Ed., 838).

Since International Law is a body of rules actually accepted by nations as regulating their mutual
relations, the proof of the existence of a given rule is to be found in the consent of nations to abide
by that rule; and this consent is evidenced chiefly by the usages and customs of nations, and to
ascertain what these usages and customs are, the universal practice is to turn to the writings of
publicists and to the decisions of the highest courts of the different countries of the world (The
Habana, 175 U.S., 677; 20 Sup. Cit., 290; 44 Law. ed., 320).

But while usage is the older and original source of International Law, great international treaties are
a later source of increasing importance, such as The Hague Conventions of 1899 and 1907.

The Hague Conventions of 1899, respecting laws and customs of war on land, expressly declares
that:

ARTICLE XLII. Territory is considered occupied when it is actually placed under the authority
of the hostile army.

The occupation applies only to be territory where such authority is established, and in a
position to assert itself.

ARTICLE XLIII. The authority of the legitimate power having actually passed into the hands
of the occupant, the later shall take all steps in his power to reestablish and insure, as far as
possible, public order and safety, while respecting, unless absolutely prevented, the laws in
force in the country. (32 Stat. II, 1821.)

The above provisions of the Hague Convention have been adopted by the nations giving adherence
to them, among which is United States of America (32 Stat. II, 1821).

The commander in chief of the invading forces or military occupant may exercise governmental
authority, but only when in actual possession of the enemy's territory, and this authority will be
exercised upon principles of international Law (New Orleans vs. Steamship Co, [1874], 20 Wall.,
387; Kelly vs. Sanders [1878], 99 U.S., 441; MacLeod vs. U.S., 229 U.S. 416; 33 Sup. Ct., 955; 57
Law Ed., 1260; II Oppenheim of International Law, section 167).
There can be no question that the Philippines was under Japanese military occupation, from
January, 1942, up to the time of the reconquest by the armed forces of the United States of the
Island of Luzon, in February, 1945.

It will thus be readily seen that the civil laws of the invaded State continue in force, in so far as they
do not affect the hostile occupant unfavorably. The regular judicial Tribunals of the occupied territory
continue usual for the invader to take the whole administration into his own hands, partly because it
is easier to preserve order through the agency of the native officials, and partly because it is easier
to preserve order through the agency of the native officials, and partly because the latter are more
competent to administer the laws in force within the territory and the military occupant generally
keeps in their posts such of the judicial and administrative officers as are willing to serve under him,
subjecting them only to supervision by the military authorities, or by superior civil authorities
appointed by him.(Young vs. U.S., 39; 24 Law, ed., 992; Coleman vs. Tennessee, 97 U.S., 509; 24
Law ed., 1118; MacLeod vs. U.S., 229 U.S., 416; 33 Sup. Ct., 955; 57 Law. ed., 1260; Taylor on
International Law, sections 576. 578; Wilson on International Law; pp. 331-37; Hall on International
Law, 6th Edition [1909], pp. 464, 465, 475, 476; Lawrence on International Law, 7th ed., pp. 412,
413; Davis, Elements of International Law, 3rd ed., pp. 330-332 335; Holland on International Law
pp. 356, 357, 359; Westlake on International Law, 2d ed., pp. 121-23.)

It is, therefore, evident that the establishment of the government under the so-called Philippine
Republic, during Japanese occupation, respecting the laws in force in the country, and permitting the
local courts to function and administer such laws, as proclaimed in the City of Manila, by the
Commander in Chief of the Japanese Imperial Forces, on January 3, 1942, was in accordance with
the rules and principles of International Law.

If the military occupant is thus in duly bound to establish in the territory under military occupation
governmental agencies for the preservation of peace and order and for the proper administration of
justice, in accordance with the laws in force within territory it must necessarily follow that the judicial
proceedings conducted before the courts established by the military occupant must be considered
legal and valid, even after said government establish by the military occupant has been displaced by
the legitimate government of the territory.

Thus the judgments rendered by the Confederate Courts, during the American Civil War, merely
settling the rights of private parties actually within their jurisdiction, not tending to defeat the legal
rights of citizens of the United States, nor in furtherance of laws passed in aid of the rebellion had
been declared valid and binding (Cock vs. Oliver, 1 Woods, 437; Fed. Cas., No. 3, 164;
Coleman vs. Tennessee, 97 U. S., 509; 24 Law. ed., 118; Williams vs. Bruffy, 96 U. S., 176;
Horn vs. Lockhart, 17 Wall., 570; Sprott vs. United States, 20 id., 459; Texas vs. White, 7 id., 700;
Ketchum vs. Buckley [1878], 99 U.S., 188); and the judgment of a court of Georgia rendered in
November, 1861, for the purchase money of slaves was held valid judgment when entered, and
enforceable in 1871(French vs. Tumlin, 10 Am. Law. Reg. [N.S.], 641; Fed. Case, No. 5104).

Said judgments rendered by the courts of the states constituting the Confederate States of America
were considered legal and valid and enforceable, even after the termination of the American Civil
War, because they had been rendered by the courts of a de facto government. The Confederate
States were a de facto government in the sense that its citizens were bound to render the
government obedience in civil matters, and did not become responsible, as wrong-doers, for such
acts of obedience (Thorington vs. Smith, 8 Wall. [U.S.], 9; 19 Law. ed., 361).

In the case of Ketchum vs. Buckley ([1878], 99 U.S., 188), the Court held — "It is now settled law in
this court that during the late civil war the same general form of government, the same general law
for the administration of justice and the protection of private rights, which had existed in the States
prior to the rebellion, remained during its continuance and afterwards. As far as the acts of the
States did not impair or tend to impair the supremacy of the national authority, or the just and legal
rights of the citizens, under the Constitution, they are in general to be treated as valid and binding."
(William vs. Bruffy, 96 U.S., 176; Horn vs. Lockhart, 17 Wall., 570; Sprott vs. United States, 20 id.,
459; Texas vs. White, 7 id., 700.)

The government established in the Philippines, during Japanese occupation, would seem to fall
under the following definition of de facto government given by the Supreme Court of the United
States:

But there is another description of government, called also by publicists, a government de

facto, but which might, perhaps, be more aptly denominateda government of paramount
force. Its distinguishing characteristics are (1) that its existence is maintained by active
military power within the territories, and against the rightful authority of an established and
lawful government; and (2) that while it exists it must necessarily be obeyed in civil matters
by private citizens who, by acts of obedience rendered in submission to such force, do not
become responsible, as wrong doers, for those acts, though not warranted by the laws of the
rightful government. Actual government of this sort are established over districts differing
greatly in extent and conditions. They are usually administered directly by military authority,
but they may be administered, also, by civil authority, supported more or less directly by
military force. (Macleod vs. United States [1913] 229 U.S., 416.)

The government established in the Philippines, under the so-called Philippine Republic, during
Japanese occupation, was and should be considered as a de facto government; and that the judicial
proceedings conducted before the courts which had been established in this country, during said
Japanese occupation, are to be considered legal and valid and enforceable, even after the liberation
of this country by the American forces, as long as the said judicial proceedings had been conducted,
under the laws of the Commonwealth of the Philippines.

The judicial proceedings involved in the case under consideration merely refer to the settlement of
property rights, under the provisions of the Civil Code, in force in this country under the
Commonwealth government, before and during Japanese occupation.

Now, petitioner contends that the judicial proceedings in question are null and void, under the
provisions of the proclamation issued by General Douglas MacArthur, dated October 23, 1944; as
said proclamation "nullifies all the laws, regulations and processes of any other government of the
Philippines than that of the Commonwealth of the Philippines."

In other words, petitioner demands a literal interpretation of said proclamation issued by General
Douglas MacArthur, a contention which, in our opinion, is untenable, as it would inevitably produce
judicial chaos and uncertainties.

When an act is susceptible of two or more constructions, one of which will maintain and the others
destroy it, the courts will always adopt the former (U. S. vs. Coombs [1838], 12 Pet., 72; 9 Law. ed.,
1004; Board of Supervisors of Granada County vs. Brown [1884], 112 U.S., 261; 28 Law. ed., 704; 5
Sup. Ct. Rep., 125; In re Guarina [1913], 24 Phil., 37; Fuentes vs. Director of Prisons [1924], 46
Phil., 385). The judiciary, always alive to the dictates of national welfare, can properly incline the
scales of its decisions in favor of that solution which will most effectively promote the public policy
(Smith, Bell & Co., Ltd. vs. Natividad [1919], 40 Phil., 136). All laws should receive a sensible
construction. General terms should be so limited in their application as not lead to injustice,
oppression or an absurd consequence. It will always, therefore, be presumed that the legislature
intended exceptions to its language, which would avoid results of this character. The reason of the
law in such cases should prevail over its letter (U. S. vs.Kirby, 7 Wall. [U.S.], 482; 19 Law. ed., 278;
Church of Holy Trinity vs. U. S., 143 U. S. 461; 12 Sup. Ct., 511; 36 Law. ed., 226;
Jacobson vs. Massachussetts, 197 U. S., 39; 25 Sup. Ct., 358; 49 Law. ed., 643; 3 Ann. Cas., 765;
In re Allen, 2 Phil., 630). The duty of the court in construing a statute, which is reasonably
susceptible of two constructions to adopt that which saves is constitutionality, includes the duty of
avoiding a construction which raises grave and doubtful constitutional questions, if it can be avoided
(U. S. vs. Delaware & Hudson Co., U.S., 366; 29 Sup. Ct., 527; 53 Law. ed., 836).

According to the rules and principles of International Law, and the legal doctrines cited above, the
judicial proceedings conducted before the courts of justice, established here during Japanese
military occupation, merely applying the municipal law of the territory, such as the provisions of our
Civil Code, which have no political or military significance, should be considered legal, valid and
binding.

It is to be presumed that General Douglas MacArthur is familiar with said rules and principles, as
International Law is an integral part of the fundamental law of the land, in accordance with the
provisions of the Constitution of the United States. And it is also to be presumed that General
MacArthur his acted, in accordance with said rules and principles of International Law, which have
been sanctioned by the Supreme Court of the United States, as the nullification of all judicial
proceedings conducted before our courts, during Japanese occupation would lead to injustice and
absurd results, and would be highly detrimental to the public interests.

For the foregoing reasons, I concur in the majority opinion.

PERFECTO, J., dissenting:

Law must be obeyed. To keep the bonds of society, it must not be evaded. On its supremacy
depends the stability of states and nations. No government can prevail without it. The preservation of
the human race itself hinges in law.

Since time immemorial, man has relied on law as an essential means of attaining his purposes, his
objectives, his mission in life. More than twenty-two centuries before the Christian Era, on orders of
the Assyrian King Hammurabi, the first code was engrave in black diorite with cunie form characters.
Nine centuries later Emperor Hung Wu, in the cradle of the most ancient civilization, compiled the
Code of the Great Ming. The laws of Manu were written in the verdic India. Moses received at Sinai
the ten commandments. Draco, Lycurgus, Solon made laws in Greece. Even ruthless Genghis Khan
used laws to keep discipline among the nomad hordes with which he conquered the greater part of
the European and Asiastic continents.

Animal and plants species must follow the mendelian heredity rules and other biological laws to
survive. Thanks to them, the chalk cliffs of the infusoria show the marvel of an animal so tiny as to
be imperceptible to the naked eye creating a whole mountain. Even the inorganic world has to
conform the law. Planets and stars follow the laws discovered by Kepler, known as the law-maker of
heavens. If, endowed with rebellious spirit, they should happen to challenge the law of universal
gravity, the immediate result would be cosmic chaos. The tiny and twinkling points of light set above
us on the velvet darkness of the night will cease to inspire us with dreams of more beautiful and
happier worlds.
Again we are called upon to do our duty. Here is a law that we must apply. Shall we shrink? Shall we
circumvent it ? Can we ignore it?

The laws enacted by the legislators shall be useless if courts are not ready to apply them. It is actual
application to real issues which gives laws the breath of life.

In the varied and confused market of human endeavor there are so many things that might induce us
to forget the elementals. There are so many events, so many problem, so many preoccupations that
are pushing among themselves to attract our attention, and we might miss the nearest and most
familiar things, like the man who went around his house to look for a pencil perched on one of his
ears.

THE OCTOBER PROCLAMATION

In October, 1944, the American Armed Forces of Liberation landed successfully in Leyte.

When victory in islands was accomplished, after the most amazing and spectacular war operations,
General of the Army Douglas MacArthur as a commander in Chief of the American Army, decided to
reestablish, in behalf of the United States, the Commonwealth Government.

Then he was confronted with the question as to what policy to adopt in regards to the official acts of
the governments established in the Philippines by the Japanese regime. He might have thought of
recognizing the validity of some of said acts, but, certainly, there were acts which he should declare
null and void, whether against the policies of the American Government, whether inconsistent with
military strategy and operations, whether detrimental to the interests of the American or Filipino
peoples, whether for any other strong or valid reasons.

But, which to recognize, and which not? He was not in a position to gather enough information for a
safe basis to distinguished and classify which acts must be nullified, and which must validated. At
the same time he had to take immediate action. More pressing military matters were requiring his
immediate attention. He followed the safe course: to nullify all the legislative, executive, and judicial
acts and processes under the Japanese regime. After all, when the Commonwealth Government is
already functioning, with proper information, he will be in a position to declare by law, through its
Congress, which acts and processes must be revived and validated in the public interest.

So on October 23, 1944, the Commander in Chief issued the following proclamation:

GENERAL HEADQUARTERS

SOUTHWEST PACIFIC AREA

OFFICE OF THE COMMANDER IN CHIEF

PROCLAMATION

To the People of the Philippines:

WHEREAS, the military forces under my command have landed in the Philippines soil as a
prelude to the liberation of the entire territory of the Philippines; and
 WHEREAS, the seat of the Government of the Commonwealth of the Philippines has been
re-established in the Philippines under President Sergio Osmeña and the members of his
cabinet; and

WHEREAS, under enemy duress, a so-called government styled as the "Republic of the
Philippines" was established on October 14, 1943, based upon neither the free expression of
the people's will nor the sanction of the Government of the United States, and is purporting
to exercise Executive, Judicial and Legislative powers of government over the people;

Now, therefore, I, Douglas MacArthur, General, United States Army, as Commander in Chief
of the military forces committed to the liberation of the Philippines, do hereby proclaim and
declare:

1. That the Government of the Commonwealth of the Philippines is, subject to the
supreme authority of the Government of the United States, the sole and the only
government having legal and valid jurisdiction over the people in areas of the
Philippines free of enemy occupation and control;

2. The laws now existing on the statute books of the Commonwealth of the
Philippines and the regulation promulgated pursuant thereto are in full force and
effect and legally binding upon the people in areas of the Philippines free of enemy
occupation and control; and

3. That all laws, regulations and processes of any other government in the
Philippines than that of the said Commonwealth are null and void and without legal
effect in areas of the Philippines free enemy occupation and control; and

I do hereby announce my purpose progressively to restore and extend to the people of the
Philippines the sacred right of government by constitutional process under the regularly
constituted Commonwealth Government as rapidly as the several occupied areas are
liberated to the military situation will otherwise permit;

I do enjoin upon all loyal citizens of the Philippines full respect for and obedience to the
Constitution of the Commonwealth of the Philippines and the laws, regulations and other acts
of their duly constituted government whose seat is now firmly re-established on Philippine
soil.

October 23, 1944.

DOUGLAS MACARTHUR
General U. S. Army
Commander in Chief

IS THE OCTOBER PROCLAMATION LAW?

In times of war the Commander in Chief of an army is vested with extraordinary inherent powers, as
a natural result of the nature of the military operations aimed to achieve the purposes of his country
in the war, victory being paramount among them.

Said Commander in Chief may establish in the occupied or reoccupied territory, under his control, a
complete system of government; he may appoint officers and employees to manage the affairs of
said government; he may issue proclamations, instructions, orders, all with the full force of laws
enacted by a duly constituted legislature; he may set policies that should be followed by the public
administration organized by him; he may abolish the said agencies. In fact, he is the supreme ruler
and law-maker of the territory under his control, with powers limited only by the receipts of the
fundamental laws of his country.

California, or the port of San Francisco, had been conquered by the arms of the United
States as early as 1846. Shortly afterward the United States had military possession of all
upper California. Early in 1847 the President, as constitutional commander in chief of the
army and navy, authorized the military and naval commander of our forces in California to
exercise the belligerent rights of a conqueror, and form a civil government for the conquered
country, and to impose duties on imports and tonnage as military contributions for the
support of the government, and of the army which has the conquest in possession. . . Cross
of Harrison, 16 Howard, 164, 189.)

In May, 1862, after the capture of New Orleans by the United States Army, General Butler,
then in command of the army at that place, issued a general order appointing Major J. M.
Bell, volunteer aide-de-camp, of the division staff, provost judge of the city, and directed that
he should be obeyed and respected accordingly. The same order appointed Capt. J. H.
French provost marshal of the city, the Capt. Stafford deputy provost marshal. A few days
after this order the Union Bank lent to the plaintiffs the sum of $130,000, and subsequently,
the loan not having been repaid, brought suit before the provost judge to recover the debt.
The defense was taken that the judge had no jurisdiction over the civil cases, but judgement
was given against the borrowers, and they paid the money under protest. To recover it back
is the object of the present suit, and the contention of the plaintiffs is that the judgement was
illegal and void, because the Provost Court had no jurisdiction of the case. The judgement of
the District Court was against the plaintiffs, and this judgement was affirmed by the Supreme
Court of the State. To this affirmance error is now assigned.

The argument of the plaintiffs in error is that the establishment of the Provost Court, the
appointment of the judge, and his action as such in the case brought by the Union Bank
against them were invalid, because in violation of the Constitution of the United States, which
vests the judicial power of the General government in one Supreme Court and in such
inferior courts as Congress may from time to time ordain and establish, and under this
constitutional provision they were entitled to immunity from liability imposed by the judgment
of the Provost Court. Thus, it is claimed, a Federal question is presented, and the highest
court of the State having decided against the immunity claimed, our jurisdiction is invoked.

Assuming that the case is thus brought within our right to review it, the controlling question is
whether the commanding general of the army which captured New Orleans and held it in
May 1862, had authority after the capture of the city to establish a court and appoint a judge
with power to try and adjudicate civil causes. Did the Constitution of the United States
prevent the creation of the civil courts in captured districts during the war of the rebellion, and
their creation by military authority?

This cannot be said to be an open question. The subject came under the consideration by
this court in The Grapeshot, where it was decided that when, during the late civil war,
portions of the insurgent territory were occupied by the National forces, it was within the
constitutional authority of the President, as commander in chief, to establish therein
provisional courts for the hearing and determination of all causes arising under the laws of
the States or of the United States, and it was ruled that a court instituted by President Lincoln
for the State of Louisiana, with authority to hear, try, and determine civil causes, was lawfully
 authorized to exercise such jurisdiction. Its establishment by the military authority was held to
be no violation of the constitutional provision that "the judicial power of the United States
shall be vested in one Supreme Court and in such inferior courts as the Congress may form
time to time ordain and establish." That clause of the Constitution has no application to the
abnormal condition of conquered territory in the occupancy of the conquering, army. It refers
only to courts of United States, which military courts are not. As was said in the opinion of
the court, delivered by Chief Justice Chase, in The Grapeshot, "It became the duty of the
National government, wherever the insurgent power was overthrown, and the territory which
had been dominated by it was occupied by the National forces, to provide, as far as possible,
so long as the war continued, for the security of the persons and property and for the
administration of justice. The duty of the National government in this respect was no other
than that which devolves upon a regular belligerent, occupying during war the territory of
another belligerent. It was a military duty, to be performed by the President, as Commander
in Chief, and instructed as such with the direction of the military force by which the
occupation was held."

Thus it has been determined that the power to establish by military authority courts for the
administration of civil as well as criminal justice in portions of the insurgent States occupied
by the National forces, is precisely the same as that which exists when foreign territory has
been conquered and is occupied by the conquerors. What that power is has several times
been considered. In Leitensdorfer & Houghton vs. Webb, may be found a notable illustration.
Upon the conquest of New Mexico, in 1846, the commanding officer of the conquering army,
in virtue of the power of conquest and occupancy, and with the sanction and authority of the
President, ordained a provisional government for the country. The ordinance created courts,
with both civil and criminal jurisdiction. It did not undertake to change the municipal laws of
the territory, but it established a judicial system with a superior or appellate court, and with
circuit courts, the jurisdiction of which declared to embrace, first, all criminal causes that
should not otherwise provided for by law; and secondly, original and exclusive cognizance of
all civil cases not cognizable before the prefects and alcades. But though these courts and
this judicial system were established by the military authority of the United States, without
any legislation of Congress, this court ruled that they were lawfully established. And there
was no express order for their establishment emanating from the President or the
Commander in Chief. The ordinance was the act of the General Kearney the commanding
officer of the army occupying the conquered territory.

In view of these decisions it is not to be questioned that the Constitution did not prohibit the
creation by the military authority of court for the trial of civil causes during the civil war in
conquered portions of the insurgent States. The establishment of such courts is but the
exercise of the ordinary rights of conquest. The plaintiffs in error, therefore, had no
constitutional immunity against subjection to the judgements of such courts. They argue,
however, that if this be conceded, still General Butler had no authority to establish such a
court; that the President alone, as a Commander in Chief, had such authority. We do not
concur in this view. General Butler was in command of the conquering and the occupying
army. He was commissioned to carry on the war in Louisina. He was, therefore, invested
with all the powers of making war, so far as they were denied to him by the Commander in
Chief, and among these powers, as we have seen, was of establishing courts in conquered
territory. It must be presumed that he acted under the orders of his superior officer, the
President, and that his acts, in the prosecution of the war, were the acts of his commander in
chief. (Mechanics' etc. Bank vs. Union Bank, 89 U. S. [22 Wall.], 276-298.)

There is no question, therefore, that when General of the Army Douglas MacArthur issued on
October Proclamation, he did it in the legitimate exercise of his powers. He did it as the official
representative of the supreme authority of the United States of America. Consequently, said
proclamation is legal, valid, and binding.

Said proclamation has the full force of a law. In fact, of a paramount law. Having been issued in the
exercise of the American sovereignty, in case of conflict, it can even supersede, not only the
ordinary laws of the Commonwealth of the Philippines, but also our Constitution itself while we
remain under the American flag.

"PROCESS" IN THE OCTOBER PROCLAMATION

In the third section of the dispositive part of the October Proclamation, it is declared that all laws,
regulations and processes of any other government in the Philippines than that of the
Commonwealth, are null and void.

Does the word "processes" used in the proclamation include judicial processes?

In its broadest sense, process is synonymous with proceedings or procedures and embraces all the
steps and proceedings in a judicial cause from it commencement to its conclusion.

PROCESS. In Practice. — The means of compelling a defendant to appear in court after

suing out the original writ, in civil, and after indictment, in criminal cases.

The method taken by law to compel a compliance with the original writ or command as of the
court.

A writ, warrant, subpoena, or other formal writing issued by authority law; also the means of
accomplishing an end, including judicial proceedings; Gollobitch vs. Rainbow, 84 la., 567; 51
N. W., 48; the means or method pointed out by a statute, or used to acquire jurisdiction of
the defendants, whether by writ or notice. Wilson vs.R. Co. (108 Mo., 588; 18 S. W., 286; 32
Am. St. Rep., 624). (3 Bouvier's Law Dictionary, p. 2731.)

A. Process generally. 1. Definition. — As a legal term process is a generic word of every

comprehensive signification and many meanings. It is broadest sense it is equivalent to, or
synonymous with, "proceedings" or "procedure," and embraces all the steps and
proceedings in a cause from its commencement to its conclusion. Sometimes the term is
also broadly defined as the means whereby a court compels a compliance with it demands.
"Process" and "writ" or "writs" are synonymous in the sense that every writ is a process, and
in a narrow sense of the term "process" is limited to judicial writs in an action, or at least to
writs or writings issued from or out of court, under the seal thereof, and returnable thereto;
but it is not always necessary to construe the term so strictly as to limit it to a writ issued by a
court in the exercise of its ordinary jurisdiction; the term is sometimes defined as a writ or
other formal writing issued by authority of law or by some court, body, or official having
authority to issue it; and it is frequently used to designate a means, by writ or otherwise , of
acquiring jurisdiction of defendant or his property, or of bringing defendant into, or compelling
him to appear in, court to answer.

As employed in the statutes the legal meaning of the word "process" varies according to the
context, subject matter, and spirit of the statute in which it occurs. In some jurisdictions
codes or statutes variously define "process" as signifying or including: A writ or summons
issued in the course of judicial proceedings; all writs, warrants, summonses, and orders of
courts of justice or judicial officers; or any writ, declaration, summons, order, or subpoena
whereby any action, suit or proceeding shall be commenced, or which shall be issued in or
upon any action, suit or proceeding. (50 C. J., PP. 441, 442.)

The definition of "process" given by Lord Coke comprehends any lawful warrant, authority, or
proceeding by which a man may be arrested. He says: "Process of law is two fold, namely,
by the King's writ, or by proceeding and warrant, either in deed or in law, without writ."
(People vs. Nevins [N. Y.] Hill, 154, 169, 170; State vs. Shaw, 50 A., 869; 73 Vt., 149.)

Baron Comyn says that process, in a large acceptance, comprehends the whole proceedings
after the original and before judgement; but generally it imports the writs which issue out of
any court to bring the party to answer, or for doing execution, and all process out of the
King's court ought to be in the name of the King. It is called "process" because it proceeds or
goes upon former matter, either original or judicial. Gilmer, vs.Bird 15 Fla., 410, 421. (34
Words and Phrases, permanent edition, 1940 edition, p. 147.)

In a broad sense the word "process" includes the means whereby a court compels the
appearance of the defendant before it, or a compliance with it demands, and any every writ,
rule order, notice, or decree, including any process of execution that may issue in or upon
any action, suit, or legal proceedings, and it is not restricted to mesne process. In a narrow
or restricted sense it is means those mandates of the court intending to bring parties into
court or to require them to answer proceedings there pending. (Colquitt Nat.
Bank vs. Poitivint, 83 S. E., 198, 199; 15 Ga. App., 329. (34 Words and Phrases, permanent
edition, 1940 edition, p. 148.)

A "process" is an instrument in an epistolary from running in the name of the sovereign of a

state and issued out of a court of justice, or by a judge thereof, at the commencement of an
action or at any time during its progress or incident thereto, usually under seal of the court,
duly attested and directed to some municipal officer or to the party to be bound by it,
commanding the commission of some act at or within a specified time, or prohibiting the
doing of some act. The cardinal requisites are that the instrument issue from a court of
justice, or a judge thereof; that it run in the name of the sovereign of the state; that it be duly
attested, but not necessarily by the judge, though usually, but not always, under seal; and
that it be directed to some one commanding or prohibiting the commission of an act.
Watson vs. Keystone Ironworks Co., 74 P., 272, 273; 70 Kan., 43. (34 Words and Phrases,
permanent edition, 1940 edition, p. 148.)

Jacobs in his Law Dictionary says: "Process" has two qualifications: First, it is largely taken
for all proceedings in any action or prosecution, real or personal, civil or criminal, from the
beginning to the end; secondly, that is termed the "process" by which a man is called into
any temporal court, because the beginning or principal part thereof, by which the rest is
directed or taken. Strictly, it is a proceeding after the original, before the judgement. A policy
of fire insurance contained the condition that if the property shall be sold or transferred, or
any change takes place in title or possession, whether by legal process or judicial decree or
voluntary transfer or convenience, then and in every such case the policy shall be void. The
term "legal process," as used in the policy, means what is known as a writ; and, as
attachment or execution on the writs are usually employed to effect a change of title to
property, they are or are amongst the processes contemplated by the policy. The words
"legal process" mean all the proceedings in an action or proceeding. They would necessarily
embrace the decree, which ordinarily includes the proceedings. Perry vs. Lorillard Fire Ins.
Co., N. Y., 6 Lans., 201, 204. See, also, Tipton vs. Cordova, 1 N. M., 383, 385. (34 Words
and Phrases, permanent edition, 1940 edition, p. 148.)
 "Process" in a large acceptation, is nearly synonymous with "proceedings," and means the
entire proceedings in an action, from the beginning to the end. In a stricter sense, it is
applied to the several judicial writs issued in an action. Hanna vs. Russell, 12 Minn., 80, 86
(Gil., 43, 45). (34 Words and Phrases, permanent edition, 1940, edition 149.)

The term "process" as commonly applied, intends that proceeding by which a party is called
into court, but it has more enlarged signification, and covers all the proceedings in a court,
from the beginning to the end of the suit; and, in this view, all proceedings which may be had
to bring testimony into court, whether viva voceor in writing, may be considered the process
of the court. Rich vs. Trimple, Vt., 2 Tyler, 349, 350. Id.

"Process" in its broadest sense comprehends all proceedings to the accomplishment of an

end, including judicial proceedings. Frequently its signification is limited to the means of
bringing a party in court. In the Constitution process which at the common law would have
run in the name of the king is intended. In the Code process issued from a court is meant.
McKenna vs. Cooper, 101 P., 662, 663; 79 Kan., 847, quoting Hanna vs. Russel, 12 Minn.,
80. (Gil., 43 ); Black Com. 279; Bou vs. Law. Dict. (34 Words and Phrases, permanent
edition 1940 edition, p. 149.)

"Judicial process" includes the mandate of a court to its officers, and a means whereby
courts compel the appearance of parties, or compliance with its commands, and includes a
summons. Ex parte Hill, 51 So., 786, 787; 165 Ala., 365.

"Judicial process" comprehends all the acts of then court from the beginning of the
proceeding to its end, and in a narrower sense is the means of compelling a defendant to
appear in court after suing out the original writ in civil case and after the indictment in
criminal cases, and in every sense is the act of the court and includes any means of
acquiring jurisdiction and includes attachment, garnishment, or execution, and also a writ.
Blair vs. Maxbass Security Bank of Maxbass, 176 N. W., 98, 199; 44 N. D. 12 (23 Words and
Phrases, permanent edition 1940 edition, p. 328.)

There is no question that the word process, as used in the October Proclamation, includes all judicial
processes or proceedings.

The intention of the author of the proclamation of including judicial processes appears clearly in the
preamble of the document.

The second "Whereas," states that so-called government styled as the "Republic of the Philippines,"
based upon neither the free expression of the people's will nor the sanction of the Government of the
United States, and is purporting to the exercise Executive, Judicial, and Legislative powers of
government over the people."

It is evident from the above-mentioned words that it was the purpose of General MacArthur to
declare null and void all acts of government under the Japanese regime, and he used, in section 3 of
he dispositive part, the word laws, as pertaining to the legislative branch, the word regulations, as
pertaining to the executive branch, and lastly, the word processes, as pertaining to the judicial
branch of the government which functioned under the Japanese regime.

It is reasonable to assume that he might include in the word "process." besides those judicial
character, those of executive or administrative character. At any rate, judicial processes cannot be
excluded.
 THE WORDS OF PROCLAMATION EXPRESS UNMISTAKABLY

THE INTENTION OF THE AUTHOR

The October Proclamation is written in such a way that it is impossible to make a mistake as to the
intention of its author.

Oliver Wendell Holmes, perhaps the wisest man who had ever sat in the Supreme Court of the
United States, the following:

When the words in their literal sense have a plain meaning, courts must be very cautious in
allowing their imagination to give them a different one. Guild vs. Walter, 182 Mass., 225, 226
(1902)

Upon questions of construction when arbitrary rule is involved, it is always more important to
consider the words and the circumstances than even strong analogies decisions. The
successive neglect of a series of small distinctions, in the effort to follow precedent, is very
liable to end in perverting instruments from their plain meaning. In no other branch of the law
(trusts) is so much discretion required in dealing with authority. . . . There is a strong
presumption in favor of giving them words their natural meaning, and against reading them
as if they said something else, which they are not fitted to express. (Merrill vs. Preston, 135
Mass., 451, 455 (1883).

When the words of an instrument are free from ambiguity and doubt, and express plainly, clearly and
distinctly the sense of the framer, there is no occasion to resort to other means of interpretation. It is
not allowable to interpret what needs no interpretation.

Very strong expression have been used by the courts to emphasize the principle that they are to
derive their knowledge of the legislative intention from the words or language of the statute itself
which the legislature has used to express it. The language of a statute is its most natural guide. We
are not liberty to imagine an intent and bind the letter to the intent.

The Supreme Court of the United States said: "The primary and general rule of statutory
construction is that the intent of the law-maker is to be found in the language that he has used. He is
presumed to know the meaning of the words and the rules of grammar. The courts have no function
of legislation, and simply seek to ascertain the will of the legislator. It is true that there are cases in
which the letter of the statute is not deemed controlling, but the cases are few and exceptional and
only arise where there are cogent reasons for believing that the letter does not fully and accurately
disclose the intent. No mere ommission, no mere failure to provide for contingencies, which it may
seem wise should have specifically provided for will justify any judicial addition to the language of the
statute." (United States vs. Goldenberg, 168 U. S., 95, 102, 103; 18 S. C. Rep., 3; 42 Law. ed., 394.)

That the Government of the Commonwealth of the Philippines shall be the sole and only government
in our country; that our laws are in full force and effect and legally binding; that "all laws, regulations
and processes of any other government are null and void and without legal effect", are provisions
clearly, distinctly, unmistakably expressed in the October Proclamation, as to which there is no
possibility of error, and there is absolutely no reason in trying to find different meanings of the plain
words employed in the document.

As we have already seen, the annulled processes are precisely judicial processes, procedures and
proceedings, including the one which is under our consideration.
 THE OCTOBER PROCLAMATION ESTABLISHES A CLEAR POLICY

Although, as we have already stated, there is no possible mistakes as to the meaning of the words
employed in the October Proclamation, and the text of the document expresses, in clear-cut
sentences, the true purposes of its author, it might not be amiss to state here what was the policy
intended to be established by said proclamation.

It is a matter of judicial knowledge that in the global war just ended on September 2, 1945, by the
signatures on the document of unconditional surrender affixed by representatives of the Japanese
government, the belligerents on both sides resorted to what may call war weapons of psychological
character.

So Japan, since its military forces occupied Manila, had waged an intensive campaign propaganda,
intended to destroy the faith of the Filipino people in America, to wipe out all manifestations of
American or occidental civilization, to create interest in all things Japanese, which the imperial
officers tried to present as the acme of oriental culture, and to arouse racial prejudice among
orientals and occidentals, to induce the Filipinos to rally to the cause of Japan, which she tried to
make us believe is the cause of the inhabitants of all East Asia.

It is, then, natural that General MacArthur should take counter-measures to neutralize or annul
completely all vestiges of Japanese influence, specially those which might jeopardize in any way his
military operations and his means of achieving the main objective of the campaign of the liberation,
that is, to restore in our country constitutional processes and the high ideals constitute the very
essence of democracy.

It was necessary to free, not only our territory, but also our spiritual patrimony. It was necessary, not
only to restore to us the opportunity of enjoying the physical treasures which a beneficent
Providence accumulated on this bountiful land, the true paradise in the western Pacific, but to
restore the full play of our ideology, that wonderful admixture of sensible principles of human
conduct, bequeathed to us by our Malayan ancestors, the moral principles of the Christianity
assimilated by our people from teachers of Spain, and the common-sense rules of the American
democratic way of life.

It was necessary to free that ideology from any Japanese impurity.

Undoubtedly, the author of the proclamation thought that the laws, regulations, and processes of all
the branches of the governments established under the Japanese regime, if allowed to continue and
to have effect, might be a means of keeping and spreading in our country the Japanese influence,
with the same deadly effects as the mines planted by the retreating enemy.

The government offices and agencies which functioned during the Japanese occupation represented
a sovereignty and ideology antagonistic to the sovereignty and ideology which MacArthur's forces
sought to restore in our country.

Under chapter I of the Japanese Constitution, it is declared that Japan shall reigned and governed
by a line Emperors unbroken for ages eternal (Article 1); that the Emperor is sacred and inviolable
(Article 3); that he is the head of the Empire, combining in himself the rights of the sovereignty
(Article 4); that he exercises the legislative power (Article 5); that he gives sanction to laws, and
orders to be promulgated and executed (Article 6);that he has the supreme command of the Army
and Navy (Article 11); that he declares war, makes peace, and concludes treaties (Article 13).
There is no reason for allowing to remain any vestige of Japanese ideology, the ideology of a people
which as confessed in a book we have at our desk, written by a Japanese, insists in doing many
things precisely in a way opposite to that followed by the rest of the world.

It is the ideology of a people which insists in adopting the policy of self-delusion; that believes that
their Emperor is a direct descendant of gods and he himself is a god, and that the typhoon which
occured on August 14, 1281, which destroyed the fleet with which Kublai Khan tried to invade Japan
was the divine wind of Ise; that defies the heinous crime of the ronin, the 47 assassins who, in order
to avenge the death of their master Asano Naganori, on February 3, 1703, entered stealthily into the
house of Yoshinaka Kiro and killed him treacherously.

It is an ideology which dignifies harakiri or sepukku, the most bloody and repugnant from suicide,
and on September 13, 1912, on the occasion of the funeral of Emperor Meiji, induced General
Maresuke Nogi and his wife to practice the abhorrent "junshi", and example of which is offered to us
in the following words of a historian:

When the Emperor's brother Yamato Hiko, died in 2 B. C., we are told that, following the
occasion, his attendants were assembled to from the hito-bashira (pillar-men) to gird the
grave. They were buried alive in circle up to the neck around the thomb and "for several days
they died not, but wept and wailed day night. At last they died not, but wept and wailed day
night. At last they did not rotted. Dogs and cows gathered and ate them." (Gowen, an Outline
of History of Japan, p. 50.)

The practice shows that the Japanese are the spiritual descendants of the Sumerians, the ferocious
inhabitants of Babylonia who, 3500 years B. C., appeared in history as the first human beings to
honor their patesis by killing and entombing with him his window, his ministers, and notable men and
women of his kingdom, selected by the priests to partake of such abominable honor. (Broduer, The
Pageant of Civilization, pp. 62-66.)

General MacArthur sought to annul completely the officials acts of the governments under the
Japanese occupation, because they were done at the shadow of the Japanese dictatorship, the
same which destroyed the independence of Korea, the "Empire of Morning Frehsness"; they violated
the territorial integrity of China, invaded Manchuria, and initiated therein the deceitful system of
puppet governments, by designating irresponsible Pu Yi as Emperor of Manchukuo; they violated
the trusteeship granted by the Treaty of Versailles by usurping tha mandated islands in the Pacific;
they initiated that they call China Incident, without war declaration, and, therefore, in complete
disregard of an elemental international duty; they attacked Pearl Harbor treacherously, and
committed a long series of the flagrant violations of international law that have logically bestowed on
Japan the title of the bandit nation in the social world.

The conduct of the Japanese during the occupation shows a shocking an anchronism of a modern
world power which seems to be re-incarnation of one whose primitive social types of pre-history,
whose proper place must be found in an archeological collection. It represents a backward jump in
the evolution of ethical and juridical concepts, a reversion that, more than a simple pathological
state, represents a characteristics and well defined case of sociological teratology.

Since they entered the threshold of our capital, the Japanese had announced that for every one of
them killed they would kill ten prominent Filipinos. They promised to respect our rights by submitting
us to the wholesale and indiscriminate slapping, tortures, and atrocious massacres. Driving nails in
the cranium, extraction of teeth and eyes, burnings of organs, hangings, diabolical zonings, looting
of properties, establishments of redlight districts, machine gunning of women and children, interment
of alive persons, they are just mere preludes of the promised paradised that they called "Greater
East Asia Co-Prosperity Sphere".

They promised religious liberty by compelling all protestant sects to unite, against the religious
scruples and convictions of their members, in one group, and by profaning convents, seminaries,
churches, and other cult centers of the Catholics, utilizing them as military barracks, munitions
dumps, artillery base, deposits of bombs and gasoline, torture chambers and zone, and by
compelling the government officials and employees to face and to bow in adoration before that
caricature of divinity in the imperial palace of Tokyo.

The Japanese offered themselves to be our cultural mentors by depriving us of the use of our
schools and colleges, by destroying our books and other means of culture, by falsifying the contents
of school texts, by eliminating free press, the radio, all elemental principles of civilized conduct, by
establishing classes of rudimentary Japanese so as to reduce the Filipinos to the mental level of the
rude Japanese guards, and by disseminating all kinds of historical, political, and cultural falsehoods.

Invoking our geographical propinquity and race affinity, they had the insolence of calling us their
brothers, without the prejuce of placing of us in the category of slaves, treating the most prominent
Filipinos in a much lower social and political category than that of the most ignorant and brutal
subject of the Emperor.

The civil liberties of the citizens were annulled. Witnesses and litigants were slapped and tortured
during investigations. In the prosecuting attorney's offices, no one was safe. When the Japanese
arrested a person, the lawyer who dared to intercede was also placed under arrest. Even courts
were not free from their dispotic members. There were judges who had to trample laws and shock
their conscience in order not to disgust a Nipponese.

The most noble of all professions, so much so that the universities of the world could not conceive of
higher honor that may be conferred than that of Doctor of Laws, became the most despised. It was
dangerous to practice the profession by which faith in the effectiveness of law is maintained; citizens
feel confident in the protection of their liberties, honor, and dignity; the weak may face the powerful;
the lowest citizen is not afraid of the highest official; civil equality becomes reality; justice is
admnistered with more efficiency; and democracy becomes the best system of government and the
best guaranty for the welfare and happiness of the individual human being. In fact, the profession of
law was annulled, and the best lawyers for the unfortunate prisoners in Fort Santiago and other
centers of torture were the military police, concubines, procurers, and spies, the providers of war
materials and shameful pleasures, and the accomplices in fraudulent transactions, which were the
specialty of many naval and military Japanese officers.

The courts and Filipino government officials were completely helpless in the question of protecting
the constitutional liberties and fundamental rights of the citizens who happen to be unfortunate
enough to fall under the dragnet of the hated kempei. Even the highest government officials were not
safe from arrest and imprisonment in the dreaded military dungeons, where torture or horrible death
were always awaiting the defenseless victim of the Japanese brutality.

May any one be surprised if General MacArthur decided to annul all the judicial processes?

The evident policy of the author of the October Proclamation can be seen if we take into
consideration the following provisions of the Japanese Constitution:

ART. 57. The Judicature shall be exercised by the Courts of Law according to law, in the
name of the Emperor.
 ART. 61. No suit at law, which relates to rights alleged to have been infringed by the illegal
measures of the executive authority .. shall be taken cognizance of by a Court of Law.

INTERNATIONAL LAW

Nobody dared challenge the validity of the October Proclamation.

Nobody dared challenge the authority of the military Commander in Chief who issued it.

Certainly not because of the awe aroused by the looming figure of General of the Army Douglas
MacArthur, the Allied Supreme Commander, the military hero, the greatest American general, the
Liberator of the Philippines, the conqueror of Japan, the gallant soldier under whose authority the
Emperor of the Japan, who is supposed to rule supreme for ages as a descendant of gods, is
receiving orders with the humility of a prisoner of war.

No challenge has been hurled against the proclamation or the authority of the author to issue it,
because everybody acknowledges the full legality of its issuance.

But because the proclamation will affect the interest and the rights of a group of individuals, and to
protect the same, a way is being sought to neutralize the effect of the proclamation.

The way found is to invoke international law. The big and resounding word is considered as a
shibboleth powerful enough to shield the affected persons from the annulling impact.

Even then, international law is not invoked to challenge the legality or authority of the proclamation,
but only to construe it in a convenient way so that judicial processes during the Japanese
occupation, through an exceptional effort of the imagination, might to segregated from the processes
mentioned in the proclamation.

An author said that the law of nations, the "jus gentiun", is not a fixed nor immutable science. On the
country, it is developing incessantly, it is perpetually changing in forms. In each turn it advances or
recedes, according to the vicissitudes of history, and following the monotonous rythm of the ebb and
rise of the tide of the sea.

Le driot des gens, en effet, n'est point une science fixe est immuable: bein au contraire, il se
developpe sans cesse, il change eternellement de formes; tour il avance et il recule, selon
less vicissitudes de histoire et suivan un rhythm monotone qui est comme le flux et le reflux
d'un mer. (M. Revon, De l'existence du driot international sous la republique romain.)

Another author has this to say:

International law, if it is or can be a science at all, or can be, at most a regulative science,
dealing with the conduct of States, that is, human beings in a certain capacity; and its
principles and prescriptions are not, like those of science proper, final and unchanging. The
substance of science proper is already made for man; the substance of international is
actually made by man, — and different ages make differently." (Coleman Philippson, The
International Law and Custom of Ancient Greece of Rome, Vol. I, p. 50.)

"Law must be stable, and yet it cannot stand still." (Pound, Interpretations of Legal History., p. 1. )
Justice Cardozo adds: "Here is the great antimony confronting us at every turn. Rest and motion,
unrelieved and unchecked, are equally destructive. The law, like human kind, if life is to continue,
must find some path compromise." (The Growth of Law p. 2.) Law is just one of the manifestations of
human life, and "Life has relations not capable of division into inflexible compartments. The moulds
expand and shrink," (Glanzer vs. Shepard, 233 N.Y., 236, 241.)

The characteristic plasticity of law is very noticeable, much more than in any other department, in
international law.

In a certain matters it is clear we have made substantial progress, but in other points, he (M.
Revon) maintains, we have retrograded; for example, in the middle ages the oath was not
always respected as faithfully as in ancient Rome; and nearer our own times, in the
seventeenth century, Grotius proclaims the unquestioned right of the belligerents to
massacre the women and the children of the enemy; and in our more modern age the due
declaration of war which Roman always conformed to has not been invariably observed.
(Coleman Philippson, The International Law and Custom of Ancient Greece and Rome, Vol.
I, p. 209.)

Now let us see if any principle of international law may effect the enforcement of the October
Proclamation.

In this study we should be cautioned not to allow ourselves to be deluded by generalities and
vagueness which are likely to lead us easily to error, in view of the absence of codification and
statutory provisions.

Our Constitution provides:

The Philippines renounces war as an instrument of national policy, and adopts the generally
accepted principles of international law as part of the law of the Nation. (Sec. 3, Art. II.)

There being no codified principles of international law, or enactments of its rules, we cannot rely on
merely legal precepts.

With the exception of international conventions and treaties and, just recently, the Charter of the
United Nations, adopted in San Francisco Conference on June 26, 1945, we have to rely on
unsystemized judicial pronouncements and reasonings and on theories, theses, and propositions
that we may find in the works of authors and publicists.

Due to that characteristic pliability and imprecision of international law, the drafters of our
Constitution had to content themselves with "generally accepted principles."

We must insists, therefore, that the principles should be specific and unmistakably defined and that
there is definite and conclusive evidence to the effect that they generally accepted among the
civilized nations of the world and that they belong to the current era and no other epochs of history.

The temptation of assuming the role of a legislator is greater in international law than in any other
department of law, since there are no parliaments, congresses, legislative assemblies which can
enact laws and specific statutes on the subject. It must be our concern to avoid falling in so a great
temptation, as its, dangers are incalculable. It would be like building castles in the thin air, or trying to
find an exit in the thick dark forest where we are irretrievably lost. We must also be very careful in
our logic. In so vast a field as international law, the fanciful wandering of the imagination often impair
the course of dialistics.
 THE OCTOBER PROCLAMATION AND INTERNATIONAL LAW

Is there any principle of international law that may effect the October Proclamation?

We tried in vain to find out in the majority opinion anything as to the existence of any principle of
international law under which the authority of General MacArthur to issue the proclamation can
effectively be challenged.

No principle of international law has been, or could be invoked as a basis for denying the author of
the document legal authority to issue the same or any part thereof.

We awaited in vain for any one to dare deny General MacArthur the authority, under international
law, to declare null and void and without effect, not only the laws and regulations of the governments
under the Japanese regime, but all the processes of said governments, including judicial processes.

If General MacArthur, as commander in Chief of the American Armed Forces of Liberation, had
authority, full and legal, to issue the proclamation, the inescapable result will be the complete
viodance and nullity of all judicial processes, procedures, and proceedings of all courts under the
Japanese regime.

But those who are sponsoring the cause of said judicial processes try to achieve their aim, not by
direct means, but by following a tortuous side-road.

They accept and recognize the full authority of the author of the proclamation to issue it and all its
parts, but they maintain that General MacArthur did not and could not have in mind the idea of
nullifying the judicial processes during the Japanese occupation, because that will be in violation of
the principles of international law.

If we follow the reasoning of the majority opinion we will have to reach the conlusion that the world
"processes" does not appear at all in the October Proclamation.

It is stated more than once, and reiterated with dogmatic emphasis, that under the principles of
international law the judicial processes under an army occupation cannot be invalidated.

But we waited in vain for the specific principle of international law, only one of those alluded to, to be
pointed out to us.

If the law exist, it can be pointed out. If the principle exists, it can stated specifically. The word is
being used very often in plural, principles, but we need only one to be convinced.

The imagined principles are so shrouded in a thick maze of strained analogies and reasoning, that
we confess our inability even to have a fleeting glimpse at them through their thick and invulnerable
wrappers.

At every turn international law, the blatant words, are haunting us with the deafening bray of a
trumpet, but after the transient sound has fled away, absorbed by the resiliency of the vast
atmosphere, the announced principles, which are the very soul of international law, would disappear
too with the lighting speed of a vanishing dream.

WEAKNESS OF THE MAJORITY POSITION

In the majority opinion three questions are propounded: first, whether judicial acts and proceedings
during the Japanese occupation are valid even after liberation; second whether the October
Proclamation had invalidated all judgement and judicial proceedings under the Japanese regime;
and third, whether the present courts of the Commonwealth may continue the judicial proceedings
pending at the time of liberation.

As regards the first question, it is stated that it is a legal tourism in political and international law that
all acts of a de facto government are good and valid, that the governments established during the
Japanese occupation. that is, the Philippine Executive Commission and the Republic of the
Philippines, were de facto governments, and that it necessarily follows that the judicial acts and
proceedings of the courts of those governments, "which are not of a political complexion," were good
and valid, and by virtue of the principle of postliminium, remain good and valid after the liberation.

In the above reasoning we will see right away how the alleged legal truism in political and
international law, stated as a premise in a sweeping way, as an absolute rule, is immediately
qualified by the exception as to judicial acts and proceedings which are of a "political complexion."

So it is the majority itself which destroys the validity of what it maintains as a legal truism in political
and international law, by stating from the beginning of the absolute proposition that all acts and
proceedings of the legislative, executive, and judicial departments of a de facto governments are
good and valid.

It is be noted that no authority, absolutely no authority, has been cited to support the absolute and
sweeping character of the majority proposition as stated in their opinion.

No authority could be cited, because the majority itself loses faith in the validity of such absolute and
sweeping proposition, by establishing an unexplained exception as regards the judicial acts and
proceedings of a "political complexion."

Besides, it is useless to try to find in the arguments of the majority anything that may challenge the
power, the authority of a de jure government to annul the official acts of a de facto government, or
the legal and indisputable authority of the restored legitimate government to refuse to recognize the
official acts, legislative, executive and judicial, of the usurping government, once the same is ousted.

As to the second question, the majority argues that the judicial proceedings and judgments of the de
factogovernments under the Japanese regime being good and valid, "it should be presumed that it
was not, and could not have been, the intention of General Douglas MacArthur to refer to judicial
processes, when he used the last word in the October Proclamation, and that it only refers to
government processes other than judicial processes or court proceedings."

The weakness and absolute ineffectiveness of the argument are self-evident.

It is maintained that when General MacArthur declared the processes of the governments under the
Japanese regime null and void, he could not refer to judicial processes, because the same are valid
and remained so under the legal truism announced by the majority to the effect that, under political
and international law, all official acts of a de facto government, legislative, executive or judicial, are
valid.

But we have seen already how the majority excepted from said legal truism the judicial processes of
"political complexion."
And now it is stated that in annulling the processes of the governments under Japanese occupation,
General MacArthur referred to "processes other than judicial processes."

That is, the legislative and executive processes.

But, did not the majority maintain that all acts and proceedings of legislative and executive
departments of a de factogovernments are good and valid? Did it not maintain that they are so as a
"legal truism in political and international law?"

Now if the reasoning of the majority to the effect that General MacArthur could not refer to judicial
processes because they are good and valid in accordance with international law, why should the
same reasoning not apply to legislative and executive processes?

Why does the majority maintain that, notwithstanding the fact that, according that said legal truism,
legislative and executive official acts of de facto governments are good and valid, General
MacArthur referred to the latter in his annulling proclamation, but not to judicial processes?

If the argument is good so as to exclude judicial processes from the effect of the October
Proclamation, we can see no logic in considering it bad with respect to legislative and executive
processes.

If the argument is bad with respect to legislative and executive processes, there is no logic in holding
that it is not good with respect to judicial processes.

Therefore, if the argument of the majority opinion is good, the inevitable conclusion is that General
MacArthur did not declare null and void any processes, at all, whether legislative processes,
executive processes, or judicial processes, and that the word "processes" used by him in the
October Proclamation is a mere surplusage or an ornamental literary appendix.

The absurdity of the conclusion unmasks the utter futility of the position of the majority, which is but
a mere legal pretense that cannot stand the least analysis or the test of logic.

A great legal luminary admonished that we must have courage to unmasks pretense if we are to
reach a peace that will abide beyond the fleeting hour.

It is admitted that the commanding general of a belligerent army of occupation as an agent of his
government, "may not unlawfully suspend existing laws and promulgate new ones in the occupied
territory if and when exigencies of the military occupation demand such action," but it is doubted
whether the commanding general of the army of the restored legitimate government can exercise the
same broad legislative powers.

We beg to disagree with a theory so unreasonable and subversive.

We cannot accept that the commanding general of an army of occupation, of a rebellious army, of an
invading army, or of a usurping army, should enjoy greater legal authority during the illegal, and in
the case of the Japanese, iniquitous and bestial occupation, than the official representative of the
legitimate government, once restored in the territory wrested from the brutal invaders and
aggressors. We cannot agree with such legal travesty.

Broad and unlimited powers are granted and recognized in the commanding general of an army of
invasion, but the shadow of the vanishing alleged principle of international law is being brandished to
gag, manacle, and make completely powerless the commander of an army of liberation to wipe out
the official acts of the government for usurpation, although said acts might impair the military
operation or neutralize the public policies of the restored legitimate government.

We are not unmindful of the interest of the persons who might be adversely affected by the
annulment of the judicial processes of the governments under the Japanese regime, but we cannot
help smiling when we hear that chaos will reign or that the world will sink.

It is possible that some criminals will be let loose unpunished, but nobody has ever been alarmed
that the President, in the exercise of his constitutional powers of pardon and amnesty, had in the
past released many criminals from imprisonment. And let us not forget that due to human limitations,
in all countries, under all governments, in peace or in war, there were, there are, and there will
always be unpunished criminals, and that situation never caused despair to any one.

We can conceive of inconveniences and hardships, but they are necessary contributions to great
and noble purposes. Untold sacrifices were always offered to attain high ideals and in behalf of
worthy causes.

We cannot refrain from feeling a paternal emotion for those who are trembling with all sincerity
because of the belief that the avoidance of judicial proceedings of the governments under the
Japanese regime "would paralyze the social life of the country." To allay such fear we must remind
them that the country that produced many great hereos and martyrs; that contributed some of
highest morals figures that humanity has ever produced in all history; which inhabited by a race
which was able to traverse in immemorial times the vast expanses of the Indian Ocean and the
Pacific with inadequate means of navigation, and to inhabit in many islands so distantly located, from
Madagascar to the eastern Pacific; which made possible the wonderful resistance of Bataan and
Corregidor, can not have a social life so frail as to be easily paralyzed by the annulment of some
judicial proceedings. The Japanese vandalisms during the last three years of nightmares and bestial
oppression, during the long period of our national slavery, and the wholesale massacres and
destructions in Manila and many other cities and municipalities and populated areas, were not able
to paralyze the social life of our people. Let us not loss faith so easily in the inherent vitality of the
social life of the people and country of Rizal and Mabini.

It is insinuated that because of the thought that the representative of the restored sovereign power
may set aside all judicial processes of the army of occupation, in the case to courts of a future
invasions, litigants will not summit their cases to courts whose judgement may afterwards be
annulled, and criminals would not be deterred from committing offenses in the expectancy that they
may escape penalty upon liberation of the country. We hope that Providence will never allow the
Philippines to fall again under the arms of an invading army, but if such misfortune will happen, let
the October Proclamation serve as a notice to the ruthless invaders that the official acts of the
government of occupation will not merit any recognition from the legitimate government, especially if
they should not conduct themselves, as exemplified by the Japanese, in accordance with the rules of
action of a civilized state.

One conclusive evidence of the untenableness of the majority position is the fact that it had to resort
to Executive Order No. 37, issued on March 10, 1945, providing "that all cases that have heretofore
been appealed to the Court of Appeals shall be transmitted to the Supreme Court for final decision."
The far-fetched theory is advanced that this provision impliedly recognizes the court processes
during the Japanese military occupation, on the false assumption that it refers to the Court of
Appeals existing during the Japanese regime. It is self-evident that the Executive Order could have
referred only to the Commonwealth Court of Appeals, which is the one declared abolished in said
order. Certainly no one will entertain the absurd idea that the President of the Philippines could have
thought of abolishing the Court of Appeals under the government during the Japanese occupation.
Said Court of Appeals disappeared with the ouster of the Japanese military administration from
which it derived its existence and powers. The Court of Appeals existing on March 10, 1945, at the
time of the issuance of Executive Order No. 37, was the Commonwealth Court of Appeals and it was
the only one that could be abolished.

Without discussing the correctness of principle stated the majority opinion quotes from Wheaton the
following: "Moreover when it is said that occupier's acts are valid and under international law should
not be abrogated by the subsequent conqueror, it must be remembered that on crucial instances
exist to show that if his acts should be reversed, any international wrong would be committed. What
does happen is that most matters are allowed to stand by the stored government, but the matter can
hardly be put further than this." (Wheaton, International Law, War, 7th English edition of 1944, p.
245)

Then it says that there is no doubt that the subsequent conqueror has the right to abrogate most of
the acts of the occupier, such as the laws, regulations and processes other than the judicial of the
government established by the belligerent occupant.

It is evident that the statement just quoted is a complete diversion from the principle stated in the in
an unmistakable way by Wheaton, who says in definite terms that "it must be remembered that no
crucial instances exist to show that if his acts (the occupant's) should be reversed, any international
wrong would be committed."

It can be clearly seen that Wheaton does not make any distinction or point out any exception.

But in the majority opinion the principle is qualified, without stating any reason therefore, by limiting
the right of the restored government to annul "most of the acts of the occupier" and "processes other
than judicial."

The statement made by the respondent judge after quoting the above-mentioned principle, as stated
by Wheaton, to the effect that whether the acts of military occupant should be considered valid or
not, is a question that is up to the restored government to decide, and that there is no rule of
international law that denies to the restored government the right to exercise its discretion on the
matter, is quoted without discussion in the majority opinion.

As the statement is not disputed, wee are entitled to presume that it is concurred in and, therefore,
the qualifications made in the statement in the majority opinion seem to completely groundless.

THE DUTIES IMPOSED ON OCCUPANT ARMY ARE NOT LIMITATIONS TO THE RIGHTS OF
THE LEGITIMATE GOVERNMENT

The majority opinion is accumulating authorities to show the many duties imposed by international
law on the military occupant of an invaded country.

And from said duties it is deduced that the legitimate government, once restored in his own territory,
is bound to respect all the official acts of the government established by the usurping army, except
judicial processes political complexion.

The reasoning calls for immediate opposition. It is absolutely contrary to all principles of logic.
Between the duties imposed in the military occupant and the legal prerogatives of the legitimate
government there are no logical relationship or connection that might bind the ones with the others.

The military occupants is duty bound to protect the civil rights of the inhabitants, but why should the
legitimate government necessarily validate the measures adopted by the said occupant in the
performance of this duty, if the legitimate government believes his duty to annul them for weighty
reasons?

The military occupant is duty bound to establish courts of justice. Why should the legitimate
government validate the acts of said courts, if it is convinced that said courts were absolutely
powerless, as was the case during the Japanese occupation, to stop the horrible abuses of the
military police, to give relief to the victims of zoning and Fort Santiago tortures, to protect the
fundamental human rights of the Filipinos — life, property, and personal freedom?

The majority opinion recognizes in the military occupant the power to annul the official acts of the
ousted and supplanted legitimate government, a privilege which is inversely denied to the last. This
preference and predilection in favor of the military occupant, that is in favor of the invader and
usurper, and against the legitimate government, is simply disconcerting, if we have to say the least.

PRESUMPTIONS AND SUPPOSITIONS AGAINST TRUTH AND FACTS

The invading military occupant is duty bound to establish and maintain courts of justice in the
invaded territory, for the protection of the inhabitants thereof. It is presumed that the restored
legitimate government will respect the acts of said courts of the army of occupation. Therefore, it is a
principle of international law that said acts are valid and should be respected by the legitimate
government. It is presumed that General MacArthur is acquainted with such principle, discovered or
revealed through presumptive operations, and it is presumed that he had not the intention of
declaring null and void the judicial processes of the government during the Japanese regime.
Therefore, his October Proclamation, declaring null and void and without effect "all processes" of
said governments, in fact, did not annul the Japanese regime judicial processes.

So run the logic of the majority.

They don't mind the that General MacArthur speaks in the October Proclamation as follows:

NOW, THEREFORE, I, Douglas MacArthur, General, United States Army, as Commander-in-Chief

of the military forces committed to the liberation of the Philippines, do hereby proclaim and declare:

xxx xxx xxx

3. That all laws, regulations and processes of any other government in the Philippines than that of
the said Commonwealth are null and void and without legal effect in areas of the Philippines free of
enemy occupation and control. (emphasis supplied.)

General MacArthur says categorically "all processes", but the majority insists on reading differently,
that, is: "NOT ALL processes." The majority presume, suppose, against the unequivocal meaning of
simple and well known words, that when General MacArthur said "all processes", in fact, he said "not
all processes", because it is necessary, by presumption, by supposition, to exclude judicial
processes.
If where General MacArthur says "all", the majority shall insist on reading "not all", it is impossible to
foresee the consequences of such so stubborn attitude, but it is possible to understand how they
reached the unacceptable possible conclusion which we cannot be avoid opposing and exposing.

Are we to adopt and follow the policy of deciding cases submitted to our consideration, by
presumption and suppositions putting aside truths and facts? Are we to place in the documents
presented to us, such as the October Proclamation, different words than what are written therein?
Are we to read "not all", where it is written "all"?

We are afraid to such procedure is not precisely the most appropriate to keep public confidence in
the effectiveness of the administration of justice.

That is why we must insists that in the October Proclamation should be read what General
MacArthur has written in it, that is, that, besides laws and regulations, he declared and proclaimed
null and void "ALL PROCESSES", including naturally judicial processes, of the governments under
the Japanese regime.

THE COMMONWEALTH COURTS HAVE NO JURISDICTION TO CONTINUE JAPANESE REGIME

JUDICIAL PROCESSES

Now we come to the third and last question propounded in the majority opinion.

The jurisdiction of the Commonwealth tribunals is defined, prescribed, and apportioned by legislative
act.

It is provided so in our Constitution. (Section 2, Article VIII.)

The Commonwealth courts of justice are continuations of the courts established before the
inauguration of the Commonwealth and before the Constitution took effect on November 15, 1935.
And their jurisdiction is the same as provided by existing laws at the time of inauguration of the
Commonwealth Government.

Act No. 136 of the Philippine Commission, known as the Organic Act of the courts of justice of the
Philippines, is the one that defines the jurisdiction of justice of the peace and municipal courts,
Courts of First Instance, and the Supreme Court. It is not necessary to mention here the jurisdiction
of the Court of Appeals, because the same has been abolished by Executive Order No. 37.

No provision may be found in Act. No. 136, nor in any other law of the Philippines, conferring on the
Commonwealth tribunals jurisdiction to continue the judicial processes or proceedings of tribunals
belonging to other governments, such as the governments established during the Japanese
occupation.

The jurisdiction of our justice of the peace and municipal courts is provided in section 68, chapter V,
of Act No. 136. The original and appellate jurisdiction of the Courts of First Instance is provided in
the sections 56, 57, Chapter IV, of Act No. 136. The original and appellate jurisdiction of the
Supreme Court is provided in 17 and 18, Chapter II, of the same Act. The provisions of the above-
cited do not authorize, even implicitly, any of the decisions and judgements of tribunals of the
governments, nor to continue the processes or proceedings of said tribunals.

NECESSITY OF ENABLING ACT UNDER THE LEGAL DOCTRINE PREVAILING IN THE

PHILIPPINES AND IN THE UNITED STATES
Taking aside the question as to whether the judicial processes of the government established during
the Japanese occupation should be considered valid or not, in order that said processes could be
continued and the Commonwealth tribunals could exercise proper jurisdiction to continue them,
under the well- established legal doctrine, prevailing not only in the Philippines, but also in the proper
enabling law.

Almost a half a century ago, in the instructions given by President McKinley on April 7, 1900, for the
guidance of the Philippine Commission, it was stated that, in all the forms of the govenment and
administrative provisions which they were authorized to prescribed, the Commission should bear in
mind that the government which they were establishing was designed not for the satisfaction of the
Americans or for the expression of their of their theoretical views, but for the happiness, peace and
prosperity of the people of the Philippines, and the measures adopted should be made to conform to
their customs, their habits, and even their prejudices, to the fullest extent consistent with the
accomplishment of the indispensable requisites of just and effective government.

Notwithstanding the policy so outlined, it was not enough for the Philippine Commission to create
and establish the courts of justice provided in Act No. 136, in order that said tribunals could take
cognizance and continue the judicial proceedings of the tribunals existing in the Philippines at the
time the American occupation.

It needed specific enabling provisions in order that the new tribunals might continue the processes
pending in the tribunals established by the Spaniards, and which continued to function until they
were substituted by the courts created by the Philippine Commission.

So it was done in regards to the transfer of the cases pending before the Spanish Audiencia to the
newly created Supreme Court, in sections 38 and 39 of Act No. 136 quoted as follows:

SEC. 38. Disposition of causes, actions, proceedings, appeals, records, papers, and so forth,
pending in the existing Supreme Court and in the "Contencioso Administravo." — All records,
books, papers, causes, actions, proceedings, and appeals logged, deposited, or pending in
the existing Audiencia or Supreme Court, or pending by appeal before the Spanish tribunal
called "Contencioso Administravo," are transferred to the Supreme Court above provided for
which, has the same power and jurisdiction over them as if they had been in the first instance
lodged, filed, or pending therein, or, in case of appeal, appealed thereto.

SEC. 39. Abolition of existing Supreme Court. — The existing Audiencia or Supreme Court is
hereby abolished, and the Supreme Court provided by this Act is substituted in place thereof.

Sections 64 and 65 of the same Act allowed the same procedure as regards the transfer of cases
and processes pending in the abolished Spanish Courts of First Instance to the tribunals of the same
name established by the Philippine Commission.

SEC. 64. Disposition of records, papers, causes, and appeals, now pending in the existing
Courts of First Instance. — All records, books, papers, actions, proceedings, and appeals
lodged, deposited, or pending in the Court of First Instance as now constituted of or any
province are transferred to the Court of First Instance of such province hereby established,
which shall have the same power and jurisdiction over them as if they had been primarily
lodged, deposited, filed, or commenced therein, or in case of appeal, appealed thereto.

SEC. 65. Abolition of existing Courts of First Instance. — The existing Courts First Instance
are hereby abolished, and the Courts of First Instance provided by this Act are substituted in
place thereof.
The same procedure has been followed by the Philippine Commission eventhough the courts of
origin of the judicial processes to be transferred and continued belonged to the same government
and sovereignty of the courts which are empowered to continue said processes.

So section 78 of Act No. 136, after the repeal of all acts conferring upon American provost courts in
the Philippines jurisdiction over civil actions, expressly provided that said civil actions shall be
transferred to the newly created tribunals.

And it provided specifically that "the Supreme Court, Courts of the First Instance and courts of the
justice of the peace established by this Act (No. 136) are authorized to try and determine the actions
so transferred to them respectively from the provost courts, in the same manner and with the same
legal effect as though such actions had originally been commenced in the courts created" by virtue
of said Act.

MUNICIPAL COURTS UNDER ACT NO. 183

On July 30, 1901, the Philippine Commission enacted the Organic Act of the City of Manila, No. 183.

Two municipal courts for the city were created by section 40 of said Act, one for the northern side of
Pasig River and the other for the southern side.

They were courts with criminal jurisdiction or identical cases under the jurisdiction of the justices of
the peace then existing in Manila. Although both courts were of the same jurisdiction, in order that
the criminal cases belonging to the justice of the peace courts may be transferred to the municipal
courts just created, and the proceedings may be continued by the same, the Philippine Commission
considered it necessary to pas the proper enabling act.

So on August 5, 1901, it enacted Act No. 186, section 2 of which provides that all criminal cases and
proceedings pending in the justices of the peace of Manila are transferred to the municipal courts,
which are conferred the jurisdiction to continue said cases and proceedings.

THE CABANTAG CASE

On August 1, 1901, Narciso Cabantag was convicted of murder by a military commission.

(Cabantag vs. Wolfe, 6 Phil., 273.) The decision was confirmed on December 10, 1901, and his
execution by hanging was set for January 12,1902. .

On December 26, 1901, he fled, but surrendered to the authorities on July 18, 1902. The Civil
Governor on December 2, 1903, commuted the death penalty to 20 years imprisonment. The
commutation was approved by the Secretary of War, following instructions of the President.

Cabantag filed later a writ of habeas corpus on the theory that, with the abolition of the military
commission which convicted him, there was no existing tribunal which could order the execution of
the penalty of imprisonment.

The Supreme Court denied the writ, but stated that, if the petitioner had filed the writ before the
enactment of Act No. 865, the question presented to the Supreme Court would have been different.

Act No. 865, enacted on September 3, 1903, is enabling law, wherein it is provided that decisions
rendered by the provost courts and military commission shall be ordered executed by the Courts of
First Instance in accordance with the procedure outlined in said Act.
It is evident from the foregoing that this Supreme Court has accepted and confirmed the doctrine of
the necessity of an enabling act in order that our Courts of First Instance could exercise jurisdiction
to execute the decision of the abolished provost courts and military commission.

It is evident that the doctrine is applicable, with more force, to the judicial processes coming from
governments deriving their authority from a foreign enemy state.

THE DOCTRINE IN THE UNITED STATES

It is also evident that the Congress of the United States, by enacting the Bill of the Philippines on
July 1, 1902, confirmed also the same doctrine.

In effect, in section 9 of said Act, the Congress approved what the Philippine Commission did as to
the jurisdiction of the courts established and transfer of cases and judicial processes, as provided in
Acts Nos. 136, 186, and 865.

The same doctrine was adopted by the United States government as part of its international policy,
as could be seen in Article XII of the Treaty concluded with Spain on December 10, 1898, in Paris.

Even in 1866 the Congress of the United States followed the same doctrine.

The suit, shown by the record, was originally instituted in the District Court of the United
States for the District of Louisiana, where a decree was rendered for the libellant. From the
decree an appeal was taken to the Circuit Court, where the case was pending, when in 1861,
the proceedings of the court were interrupted by the civil war. Louisiana had become
involved in the rebellion, and the courts and officers of the United States were excluded from
its limits. In 1862, however, the National authority had been partially reestablished in the
State, though still liable to the overthrown by the vicissitudes of war. The troops of the Union
occupied New Orleans, and held military possession of the city and such other portions of
the State as had submitted to the General Government. The nature of this occupation and
possession was fully explained in the case of The Vinice.

Whilst it continued, on the 20th of October, 1862, President Lincoln, by proclamation,

instituted a Provisional Court of the State of Louisiana, with authority, among other powers,
to hear, try, and determine all causes in admiralty. Subsequently, by consent of parties, this
cause was transferred into the Provisional Court thus, constituted, and was heard, and a
decree was again rendered in favor of the libellants. Upon the restoration of civil authority in
the State, the Provincial Court, limited in duration, according to the terms of the
proclamation, by the event, ceased to exist.

On the 28th of July, 1866, Congress enacted that all suits, causes and proceedings in the
Provisional Court, proper for the jurisdiction of the Circuit Court of the United States for the
Eastern District of Louisiana, should be transferred to that court, and heard, and determined
therein; and that all judgements, orders, and decrees of the Provisional Court in causes
transferred to the Circuit Court should at once become the orders, judgements, and decrees
of that court, and might be enforced, pleaded, and proved accordingly.

It is questioned upon these facts whether the establishment by the President of a Provisional
Court was warranted by the Constitution.

xxx xxx xxx

 We have no doubt that the Provisional Court of Louisiana was properly established by the
President in the exercise of this constitutional authority during war; or that Congress had
power, upon the close of the war, and the dissolution of the Provisional Court, to provide for
the transfer of cases pending in that court, and of its judgement and decrees, to the proper
courts of the United States. (U. S. Reports, Wallace, Vol. 9, The Grapeshot, 131-133.)

JUDGEMENTS OF THE REBEL COURTS IN LOUISIANA WERE VALIDATED BY

CONSTITUTIONAL PROVISION

During the civil war in 1861, the prevailing rebel forces established their own government in
Louisiana.

When the rebel forces were overpowered by the Union Forces and the de facto government was
replaced by the de jure government, to give effect to the judgments and other judicial acts of the
rebel government, from January 26, 1861, up to the date of the adoption of the State Constitution, a
provision to said effect was inserted in said document.

Section 149 of the Louisiana Constitution reads as follows:

All the rights, actions, prosecutions, claims, contracts, and all laws in force at the time of the
adoption of this Constitution, and not inconsistent therewith, shall continue as if it had not
been adopted; all judgments and judicial sales, marriages, and executed contracts made in
good faith and in accordance with existing laws in this State rendered, made, or entered into,
between the 26th day of January, 1861, and the date when this constitution shall be adopted,
are hereby declared to be valid, etc. (U. S. Report, Wallace, Vol. 22, Mechanics' etc.
Bank vs. Union Bank, 281.)

EVEN AMONG SISTERS STATES OF THE UNITED STATES JUDGEMENTS ARE NOT
EXECUTORY

The member states of the United States of America belong to the same nation, to the country, and
are under the same sovereignty.

But judgements rendered in one state are not executory in other states.

To give them effect in other states it is necessary to initiate an original judicial proceedings, and
therein the defendants in the domestic suit may plead bar the sister state judgement puis darrien
continuance. (Wharton, on the Conflict of Laws, Vol. II, p. 1411.)

Under the Constitution of the United States, when a judgement of one state in the Union is
offered in a court of a sister state as the basis of a suit nil debet cannot be pleaded. The only
proper plea is nul tiel record. (Id., p. 1413.).

It is competent for the defendant, however, to an action on a judgement of a sister state, as

to an action on a foreign judgement, to set up as a defense, want of jurisdiction of the court
rendering the judgement; and, as indicating such want of jurisdiction, to aver by plea that the
defendant was not an inhabitant of the state rendering the judgement, and had not been
served with process, and did not enter his appearance; or that the attorney was without
authority to appear. (Id., pp. 1414-1415.)
The inevitable consequence is that the courts of the Commonwealth of the Philippines, in the
absence of an enabling act or of an express legislative grant, have no jurisdiction to take cognizance
and continue the judicial processes, procedures, and proceedings of the tribunals which were
created by the Japanese Military Administration and functioned under the Vargas Philippine
Executive Commission of the Laurel Republic of the Philippines, deriving their authority from the
Emperor, the absolute ruler of Japan, the invading enemy, and not from the Filipino people in whom,
according to the Constitution, sovereignty resides, and from whom all powers of government
emanate.

The position of Honorable Asenio P. Dizon, the respondent judge of the Court of the First Instance of
Manila in declaring himself without jurisdiction nor authority to continue the proceedings which
provoked the present controversy, being a judicial process of a Japanese sponsored government, is
absolutely correct, under the legal doctrines established by the United States and the Philippine
Government, and consistently, invariably, and without exception, followed by the same.

If we accept, for the sake of argument, the false hypothesis that the Commonwealth tribunals have
jurisdiction to continue the judicial processes left pending by the courts of the governments
established under the Japanese regime, the courts which disappeared and, automatically, ceased to
function with the ouster of the enemy, the position of the Judge Dizon, in declining to continue the
case, is still unassailable, because, for all legal purposes, it is the same as if the judicial processes in
said case were not taken at all, as inevitable result of the sweeping and absolute annulment
declared by the General MacArthur in the October Proclamation.

In said proclamation it is declared in unmistakable and definite terms that "ALL PROCESSES" of the
Japanese sponsored governments "ARE NULL AND VOID AND WITHOUT LEGAL EFFECT", and
they shall remain so until the Commonwealth, through its legislative power, decides otherwise in a
proper validating act.

The fact that the Japanese invaders, under international law, were in duty bound to establish courts
of justice during the occupation, although they made them completely powerless to safeguard the
constitutional rights of the citizens, and mere figureheads as regards the fundamental liberties of the
helpless men, women and children of our people, so much so that said courts could not offer even
the semblance of protection when the life, the liberty, the honor and dignity of our individual citizens
were wantonly trampled by any Japanese, military or civilian, does not change the situation. "ALL
PROCESSES" of said court are declared "NULL AND VOID AND WITHOUT LEGAL EFFECT" in the
October proclamation, and we do not have any other alternative but to accept the law, as said
proclamation has the full force of a law.

The fact that in the past, the legitimate governments, once restored in their own territory,
condescended in many cases to recognize and to give effect to judgments rendered by courts under
the governments set up by an invading military occupant or by a rebel army, does not elevate such
condescension to the category of a principle, when Wheaton declares that no international wrong is
done if the acts of the invader are reversed.

Many irrelevant authorities were cited to us as to the duties imposed by the international law on
military occupants, but no authority has been cited to the effect that the representative of the
restored legitimate government is a bound to recognize and accept as valid the acts and processes
of said occupants. On the contrary, Wheaton says that if the occupant's acts are reversed "no
international wrong would be committed."

Following the authority of Wheaton, undisputed by the majority, General MacArthur thought, as the
wisest course, of declaring "NULL AND VOID AND WITHOUT EFFECT," by official proclamation,
"ALL PROCESSES" under the Japanese regime, that is legislative, executive and judicial processes,
which fall under the absolute adjective "ALL".

That declaration is a law. It is a law that everybody bound to accept and respect, as all laws must be
accepted and respected. It is a law that the tribunals are duty bound to give effect and apply.

We are not unmindful of the adverse consequences to some individuals of the annullment of all the
judicial processes under the Japanese regime, as provided in the October Proclamation, but the
tribunals are not guardians of the legislative authorities, either an army commander in chief, during
war, or a normal legislature, in peace time. The tribunals are not called upon to guide the legislative
authorities to the wisdom of the laws to be enacted. That is the legislative responsibility. Our duty
and our responsibility is to see to it that the law, once enacted, be applied and complied with.

No matter the consequences, no matter who might be adversely affected, a judge must have the firm
resolve and the courage to do his duty, as, in the present case, Judge Dizon did, without fear nor
favor. We cannot see any reason why we should not uphold him in his stand in upholding the law.

It is our official duty, national and international duty. Yes. Because this Supreme Court is sitting, not
only as a national court, but as an international court, as is correctly stated in the concurring opinion
of Justice De Joya, and we should feel the full weight of the corresponding responsibility, as the
American courts with admiralty jurisdiction and the Prize Courts of England did feel. In fact, it is in
the judiciary where, more than in any point of view is more pressing, more imperative, more
unavoidable. Justice has no country. It is of all countries. The horizon of justice cannot be limited by
the scene where our tribunals are functioning and moving. That horizon is boundless. That is why in
our constitution the bill of rights has been written not for Filipinos, but for all persons. They are rights
that belong to men, not as Filipinos, Americans, Russians, Chinese or Malayan, but as a members
of humanity. The international character of our duty to administer justice has become more specific
by the membership of our country in the United Nations. And let us not forget, as an elemental thing,
that our primary duty is to uphold and apply the law, as it is; that we must not replace the words of
the law with what we might be inclined to surmise; that what is clearly and definitely provided should
not be substituted with conjectures and suppositions; that we should not try to deduce a contrary
intention to that which is unequivocally stated in the law; that we should not hold valid what is
conclusively declared null and void.

The October Proclamation declared "ALL PROCESSES" under the Japanese regime "AND VOID
WITHOUT EFFECT", so they must stand. There is no possible way of evasion. "ALL PROCESSES",
in view of the meaning of the absolute adjective "ALL", include "JUDICIAL PROCESSES". Allegatio
contra factum non est admittenda.

CONCLUSION

For all the foregoing reasons we conclude:

1. That General MacArthur had full legal authority to issue the October Proclamation, and that no
principle of the international law is violated by said proclamation, no international wrong being
committed by the reversal by the legitimate government of the acts of the military invader.
2. That said proclamation was issued in full conformity with the official policies to which the United
States and Philippine Governments were committed, and the annulment of all the facts of the
governments under the Japanese regime, legislative, executive, and judicial, is legal, and justified by
the wrongs committed by the Japanese.

3. That when General MacArthur proclaimed and declared in the October Proclamation "That all
laws, regulations and processes" of the Japanese sponsored governments, during enemy
occupation, "are null and void and without effect", he meant exactly what he said.

4. That where General MacArthur said "all processes" we must read and understand precisely and
exactly "all processes", and not "some processes". "All" and "some" have incompatible meanings
and are not interchangeable.

5. That the word "processes" includes judicial procedures, proceedings, processes, and cases.
Therefore, "all processes" must include "all judicial processes.".

6. That we have no right to attribute General MacArthur an intention different from what he has
plainly, clearly, unmistakably expressed in unambiguous words with familiar meaning generally
understood by the common man.

7. That the judicial proceedings here in question are included among those adversely affected by the
October Proclamation.

8. That the Commonwealth tribunals have no jurisdiction to take cognizance of nor to continue the
judicial proceedings under the Japanese regime.

9. That to exercise said jurisdiction an enabling act of the Congress is necessary.

10. That respondent Judge Dizon did not commit the error complained of in the petition, and that the
petition has no merits at all.

We refuse to follow the course of action taken by the majority in the present case. It is a course
based on a mistaken conception of the principles of international law and their interpretation and
application, and on a pinchbeck. It is a course based on misconstruction or misunderstanding of the
October Proclamation, in utter disregard of the most elemental principles of legal here meneutics. It
is a course that leads to nowhere, except to the brink of disaster, because it is following the
dangerous path of ignoring or disobeying the law.

Let us not allow ourselves to be deceived. The issue confronting us is not of passing importance. It
is an issue of awesome magnitude and transcendency. It goes to and reaches the very bottom. It is
simple. Lacking in complexities. But it may shake the very foundation of society, the cornerstone of
the state, the primary pillar of the nation. It may dry the very foundation of social life, the source of
vitalizing sap that nurtures the body politic. The issue is between the validity of one or more
Japanese regime processes and the sanctity of the law.

That is the question, reduced to its ultimate terms. it is a simple dilemma that is facing us. It is the
alpha and the omega of the whole issue. Either the processes, or the law. We have to select
between two, which to uphold. It is a dilemma that does not admit of middle terms, or of middle ways
where we can loiter with happy unconcern . We are in the cross road: which way shall we follow?
The processes and the law are placed in the opposite ends of the balance. Shall we inclined the
balance of justice to uphold the processes and defeat law, or vice versa?
We feel jittery because some judicial processes might be rescinded or annulled, but we do not
tremble with sincere alarm at the thought of putting the law under the axe, of sentencing law to be
executed by the guillotine. We feel uneasy, fancying chaos and paralyzation of social life, because
some litigants in cases during the Japanese regime will be affected in their private interests, with the
annulment of some judicial processes, but we adopt an attitude of complete nonchalance in throwing
law overboard. This baffling attitude is a judicial puzzle that nobody will understand. So it is better
that we should shift to a more understandable way, that which is conformable to the standard that
the world expects in judicial action.

No amount of arguments and lucubration's, no amount of speculative gymnastics, no amount of

juggling of immaterial principles of international law, no amount of presumptions and suppositions,
surmises and conjectures, no amount of dexterity in juridical exegesis can divert our attention from
the real, simple, looming, hypostasis of the issue before us: Law. It is Law with all its majestic
grandeur which we are defying and intending to overthrow from the sacred pedestal where the ages
had placed her as a goddess, to be enshrined, obeyed, and venerated by men, forever. Let us not
dare to lay our profaning hands on her vestal virginity, lest the oracle should fling at us the thunder of
his prophetic anathema.

We cannot therefore vote except for the denial of the petition.

HILADO, J., dissenting:

I dissent from the opinion of the majority and, pursuant to the Constitution, proceed to state the
reason for my dissent.

The proceeding involved in the case at bar were commenced by a complaint filed by the instant
petitioner, as plaintiff, on November 18, 1944, in civil case No. 3012 of the so-called Court of First
Instance of Manila, the complaint bearing this heading and title: "The Republic of the Philippines —
In the Court of First Instance of Manila" (Annex X of Exhibit A of petition for mandamus). The farthest
that said proceedings had gone before the record was burned or destroyed during the battle for
Manila, was the filing by counsel for plaintiff therein of their opposition to a motion for dismissal filed
by opposing counsel.

It is, therefore, plain that the case had not been heard on the merits when the record was burned or
destroyed.

The respondent judge, in his order dated June 6, 1945, disposing of the petition dated May 25, 1945
filed by petitioner, as a plaintiff in said case, and of the petition filed by respondent Eusebio Valdez
Tan Keh, as defendant therein, on May 31, 19045, held: " first, that by virtue of the proclamation of
General MacArthur quoted above, all laws, regulations and processes of any other government in
the Philippines than that of the Commonwealth became null and void and without legal effect in
Manila on February 3, 1945 or, at the lates, on February 27 of the same year; second that the
proceedings and processes had in the present case having been before a court of the Republic of
the Philippines and in accordance with the laws and regulations of said Republic, the same are now
void and without legal effect; third, that this Court as one of the different courts of general jurisdiction
of the Commonwealth of the Philippines, has no authority to take cognizance of and continue said
proceedings to final judgement, until and unless the Government of the Commonwealth of the
Philippines, in the manner and form provided by law, shall have provided for the transfer of the
jurisdiction of the courts of the now defunct Republic of the Philippines, and the causes commenced
and left pending therein, to the courts created and organized by virtue of the provisions of Act No.
4007, as revived by Executive Order No. 36, or for the validation of all proceedings had in said
courts."

Petitioner prays that this Court declare that the respondent judge should not have ordered the
suspension of the proceedings in civil case No. 3012 and should continue and dispose of all the
incidents in said case till its complete termination. In my opinion, the petition should denied.

In stating the reasons for this dissent, we may divide the arguments under the following propositions:

1. The proceedings in said civil case No. 3012 are null and void under General of the Army
MacArthur's proclamation of October 23, 1944 (41 Off. Gaz., 147, 148);

2. (a) The government styled as, first, the "Philippine Executive Commission "and later as the
Republic of the Philippines", established here by the Commander in Chief of the Imperial Japanese
Forces or by his order was not a de-facto government — the so-called Court of First Instance of
Manila was not a de facto court, and the judge who presided it was not a de facto judge; (b) the rules
of International Law regarding the establishment of a de factoGovernment in territory belonging to a
belligerent but occupied or controlled by an opposing belligerent are inapplicable to the governments
thus established here by Japan;

3. The courts of those governments were entirely different from our Commonwealth courts before
and after the Japanese occupation;

4. The question boils down to whether the Commonwealth Government, as now restored, is to be
bound by the acts of either or both of those Japanese-sponsored governments;

5. Even consideration of policy of practical convenience militate against petitioner's contention.

The proceedings in said civil case No. 3012 are null and void under General of the Army
MacArthur's proclamation of October 23, 1944 (41 Off. Gaz., 147, 148).

In this proclamation, after reciting certain now historic facts, among which was that the so-called
government styled as the "Republic of the Philippines" was established on October 14, 1943 "under
enemy duress, . . . based upon neither the free expression of the people's will nor the sanction of the
Government of the United States," the great Commander-in-Chief proclaimed and declared:

xxx xxx xxx

3. That all laws, regulations and processes of any other government in the Philippines than
that of the said Commonwealth are null and void and without legal effect in areas of the
Philippines free of enemy occupation and control; and

xxx xxx xxx

I do enjoin upon all loyal citizens of the Philippines full respect for and obedience to the
Constitution of the Commonwealth of the Philippines and the laws, regulations and other acts
of their duly constituted government whose seat is now firmly re-established on Philippine
soil.
The evident meaning and effect of the 3rd paragraph above quoted is, I think, that as the different
areas of the Philippines were progressively liberated, the declaration of nullity therein contained shall
attach to the laws, regulations and processes thus condemned in so far as said areas were
concerned. Mark that the proclamation did not provide that such laws, regulations and processes
shall be or are annulled, but that they are null and void. Annulment implies some degree of the
effectiveness in the act annulled previous to the annulment, but a declaration of nullity denotes that
the act is null and void ab initio — the nullity precedes the declaration. The proclamation speaks in
the present tense, not in the future. If so, the fact that the declaration of nullity as to the condemned
laws, regulations, and processes in areas not yet free from enemy occupation and control upon the
date of the proclamation, would attach thereto at a later date, is no argument for giving them validity
or effectiveness in the interregnum. By the very terms of the proclamation itself, that nullity had to
date back from the inception of such laws, regulations and processes; and to dispel any shadow of
doubt which may still remain, we need only consider the concluding paragraph of the proclamation
wherein the Commander in Chief of the army liberation solemnly enjoined upon all loyal citizens of
the Philippines full respect for and obedience to the Constitution of the Commonwealth of the
Philippines and the laws, regulations and other acts of their duly constituted government. This is all-
inclusive — it comprises not only the loyal citizens in the liberated areas but also those in areas still
under enemy occupation and control. It will be noticed that the complaint in said civil case No. 3012
was filed twenty-six days after the above-quoted proclamations of General of the Army MacArthur. If
the parties to said case were to consider the proceedings therein up to the date of the liberation of
Manila valid and binding, they would hardly be complying with the severe injunction to render full
respect for and obedience to our Constitution and the laws, regulations and other acts of our duly
constituted government from October 23, 1944, onwards. Indeed, to my mind, in choosing between
these two courses of action, they would be dangerously standing on the dividing line between loyalty
and disloyalty to this country and its government.

The proceeding in question, having been had before the liberation of Manila, were unquestionably
"processes" of the Japanese-sponsored government in the Philippines within the meaning of the
aforesaid proclamation of General of the Army MacArthur and, consequently, fall within the
condemnation of the proclamation. Being processes of a branch of a government which had been
established in the hostility to the Commonwealth Government, as well as the United States
Government, they could not very well be considered by the parties to be valid and binding, at least
after October 23, 1944, without said parties incurring in disobedience and contempt of the
proclamation which enjoins them to render full respect for the obedience to our Constitution and the
laws, regulations and other acts of our duly constituted government. Nine days after the inauguration
of the so-called "Republic of the Philippines," President Franklin Delano Roosevelt of the United
States declared in one of his most memorable pronouncements about the activities of the enemy in
the Philippines, as follows:

One of the fourtheenth of this month, a puppet government was set up in the Philippine
Island with Jose P. Laurel, formerly a justice of the Philippine Supreme Court, as "president."
Jorge Vargas, formerly as a member of the Commonwealth Cabinet, and Benigno Aquino,
also formerly a member of that cabinet, were closely associated with Laurel in this
movement. The first act of the new puppet regime was to sign a military alliance with Japan.
The second act was a hyphocritical appeal for American sympathy which was made in fraud
and deceit, and was designed to confuse and mislead the Filipino people.

I wish to make it clear that neither the former collaborationist "Philippine Executive
Commission" nor the present "Philippine Republic " has the recognition or sympathy of the
Government of the United States. . . .
 Our symphaty goes out to those who remain loyal to the United States and the
Commonwealth — that great majority of the Filipino people who have not been deceived by
the promises of the enemy.

October 23, 1943.

FRANKLIN DELANO ROOSEVELT

President of the United States

(Form U.S. Naval War College International Law Documents, 1943, pp. 93, 94.).

It is a fact of contemporary history that while President Manuel L. Quezon of the Philippines was in
Washington, D.C., with his exiled government, he also repeatedly condemned both the "Philippine
Executive Commission" and the "Philippine Republic," as they had been established by or under
orders of the Commander in Chief of the Imperial Japanese Forces. With these two heads of the
Governments of the United States and the Commonwealth of the Philippines condemning the
"puppet regime" from its very inception, it is beyond my comprehension to see how the proceedings
in question could be considered valid and binding without adopting an attitude incompatible with
theirs. As President Roosevelt said in his above quoted message, "Our symphaty goes out to those
remain loyal to the United States and the Commonwealth — that great majority of the Filipino people
who have not been deceived by the promises of the enemy.

The most that I can concede is that while the Japanese Army of occupation was in control in the
Islands and their paramount military strength gave those of our people who were within their reach
no other alternative, these had to obey their orders and decrees, but the only reason for such
obedience would be that paramount military strength and not any intrinsic legal validity in the
enemy's orders and decrees. And once that paramount military strength disappeared, the reason for
the obedience vanished, and obedience should likewise cease.

As was stated by the Supreme Court of the United States in the case of Williams vs. Bruffy (96 U.S.,
176; 24 Law. ed., 719), "In the face of an overwhelming force, obedience in such matters may often
be a necessity and, in the interest of order, a duty. No concession is thus made to the rightfulness of
the authority exercised." (Emphasis ours.) The court there refers to its own former decision in
Thorington vs. Smith, and makes it clear that the doctrine in the Thorington case, so far as the
effects of the acts of the provisional government maintained by the British in Casetine, from
September, 1814 to the Treaty of Peace in 1815, and the consideration of Tampico as United States
territory, were concerned, was limited to the period during which the British, in the first case, retained
possession of Castine, and the United States, in the second, retained possession of Tampico. In
referring to the Confederate Government during the Civil War, as mentioned in the Thorington case,
the court again says in effect that the actual supremacy of the Confederate Government over a
portion of the territory of the Union was the only reason for holding that its inhabitants could not but
obey its authority. But the court was careful to limit this to the time when that actual supremacy
existed, when it said: . . . individual resistance to its authority then would have been futile and,
therefore, unjustifiable." (Emphasis ours.)

Because of its pertinence, we beg leave to quote the following paragraph from that leading decision:

There is nothing in the language used in Thorington vs. Smith (supra), which conflicts with
these views. In that case, the Confederate Government is characterized as one of
paramount force, and classed among the governments of which the one maintained by great
Britain in Castine, from September 1814, to the Treaty of Peace in 1815, and the one
maintained by the United States in Tampico, during our War with Mexico, are examples.
 Whilst the British retained possession of Castine, the inhabitants were held to be subject to
such laws as the British Government chose to recognize and impose. Whilst the United
States retained possession of Tampico, it was held that it must regarded and respected as
their territory. The Confederate Government, the court observed, differed from these
temporary governments in the circumstance that its authority did not justifying acts of hostility
to the United States, "Made obedience to its authority in civil and local matters not only a
necessity, but a duty." All that was meant by this language was, that as the actual
supremancy of the Confederate Government existed over certain territory, individual
resistance to its authority then would have been futile and, therefore, unjustifiable. In the face
of an overwhelming force, obedience in such matters may often be a necessity and, in the
interest of order, a duty. No concession is thus made to the rightfulness of the authority
exercised. (Williams vs. Bruffy, 24 Law ed., 719; emphasis ours.)

The majority opinion, in considering valid the proceedings in question, invokes the rule that when a
belligerent army occupies a territory belonging to the enemy, the former through its Commander in
Chief, has the power to establish thereon what the decisions and treaties have variously
denominated provisional or military government, and the majority holds that the Japanese-
sponsored government in the Philippines was such a government. Without prejudice to later
discussing the effects which the renunciation of war as an instrument of national policy contained in
our Commonwealth Constitution, as well as in the Briand-Kellog Pact, must have produced in this
rule in so far as the Philippines is concerned, let us set forth some considerations apropos of this
conclusion of the majority. If the power to establish here such a provisional government is
recognized in the Commander in Chief of the invasion army, why should we not recognize at least
an equal power in the Commander in Chief of the liberation army to overthrow that government will
all of its acts, at least of those of an executory nature upon the time of liberation? Considering the
theory maintained by the majority, it would seem that they would recognize in the Japanese
Commander in Chief the power to overthrow the Commonwealth Government, and all of its acts and
institutions if he had choosen to. Why should at least an equal power be denied the Commander in
Chief of the United States Army to overthrow the substitute government thus erected by the enemy
with all of its acts and institutions which are still not beyond retrieve? Hereafter we shall have
occasion to discuss the aspects of this question from the point of view of policy or the practical
convenience of the inhabitants. If the Japanese Commander in Chief represented sovereignty of
Japan, the American Commander in Chief represented the sovereignty of the United States, as well
as the Government of the Commonwealth. If Japan had won this war, her paramount military
supremacy would have continued to be exerted upon the Filipino people, and out of sheer physical
compulsion this country would have had to bow to the continuance of the puppet regime that she
had set up here for an indefinite time. In such a case, we admit that, not because the acts of that
government would then have intrinsically been legal and valid, but simply because of the paramount
military force to which our people would then have continued to be subjected, they would have had
to recognize as binding and obligatory the acts of the different departments of that government. But
fortunately for the Filipinos and for the entire civilized world, Japan was defeated. And I now ask:
Now that Japan has been defeated, why should the Filipinos be still bound to respect or recognize
validity in the acts of the Japanese-sponsored government which has been so severely condemned
by both the heads of the United States and our Commonwealth Government throughout the duration
of the war? If we were to draw a parallel between that government and that which was established
by the Confederate States during the American Civil War, we will find that both met with ultimate
failure. And, in my opinion, the conclusion to be drawn should be the same in both cases.

As held by the United States Supreme Court in Williams vs. Bruffy (supra), referring to the
Confederate Government, its failure carried with it the dissipation of its pretentions and the breaking
down in pieces of the whole fabric of its government. The Court said among other things:
 The immense power exercised by the government of the Confederate States for nearly four
years, the territory over which it extended, the vast resources it wielded, and the millions who
acknowledged its authority, present an imposing spectacle well fitted to mislead the mind in
considering the legal character of that organization. It claimed to represent an independent
nation and to posses sovereign powers; as such to displace to jurisdiction and authority of
the United States from nearly half of their territory and, instead of their laws, to substitute and
enforce those of its own enactment. Its pretentions being resisted, they were submitted to the
arbitrament of war. In that contest the Confederacy failed; and in its failure its pretentions
were dissipated, its armies scattered, and the whole fabric of its government broken in
pieces. (24 Law, ed., 719; emphasis ours.)

By analogy, if the Japanese invasion and occupation of the Philippines had been lawful — which,
however, is not the case — and if Japan had succeeded in permanently maintaining the government
that she established in the Philippines, which would have been the case had victory been hers, there
would be more reason for holding the acts of that government valid, but because Japan has lost the
war and, therefore, failed in giving permanence to that government, the contrary conclusion should
legitimately follow.

The validity of legislation exercised by either contestant "depends not upon the existence of
hostilities but upon the ultimate success of the party which it is adopted" (emphasis ours). And,
referring to the overthrow of the of the Confederacy, the Court, said, "when its military forces were
overthrown, it utterly perished, and with it all its enactments" (emphasis ours)

The majority cite on page 9-10 of their opinion a passage from the same case of
Williams vs. Bruffy, supra, which is a mere obiter dictum. The majority opinion says that in this
passage the Court was "discussing the validity of the acts of the Confederate States." In the first
place, an examination of the decision will reveal that the controversy dealt with an act of
the Confederate Government, not of the Confederate States individually; and in the second place,
the quoted passage refers to something which was not in issue in the case, namely, the acts of the
individual States composing the Confederacy. But even this passage clearly places the case at bar
apart from the Court's pronouncement therein. The quoted passage commences by stating that "The
same general form of government the same general laws for the administration of justice and the
protection of private rights, which has existed in the States prior to the rebellion, remanded during
(its) continuance and afterwards. "In the case at bar, the same general form of the Commonwealth
Government did not continue under the Japanese, for the simple reason that one of the first acts of
the invaders was to overthrow the Commonwealth Constitution and, therefore, the constitutional
government which existed thereunder, as an effect of the following acts and decrees of the
Commander in Chief of the Imperial Japanese Forces:

1. Order No. 3, dated February 20, 1942 of the Commander in Chief of the Imperial Japanese
Forces to the Chairman of the Philippine Executive Commission directed that, in the exercise of
legislative, executive and judicial powers in the Philippines, the "activities" of the "administrative
organs and judicial courts in the Philippines shall be based upon the existing status, order,
ordinances and the Commonwealth Constitution (1 Official Journal of the Japanese Military
Administration, page 34). Under the frame of government existing in this Commonwealth upon the
date of the Japanese invasion, the Constitution was the very fountain-head of the validity and effects
of all the "status, orders, and ordinances" mentioned by the Japanese Commander in Chief, and in
overthrowing the Constitution he, in effect, overthrew all of them.

2. Instruction No. 6 of the Japanese Military Administration (Vol. 1, usages 36 et seq., Official
Gazette, edited at the Office of the Executive Commission) gave the "Detailed Instruction Based on
Guiding Principle of the Administration," and among other things required "The entire personnel shall
be required to pledge their loyalty to the Imperial Japanese Forces. . . ." (This, of course, was
repugnant to the frame of government existing here under the Commonwealth Constitution upon the
date of invasion.)

3. Proclamation dated January 3, 19452 of the Japanese Commander in Chief provided in

paragraph 3 that "The Authorities and the People of the Commonwealth should sever their relations
with the U.S. o . . ." (This is, likewise, repugnant to the Commonwealth Constitution and the to the
Government of that Commonwealth Constitution and to the Government of that Commonwealth
which was expressly made subject to the supreme sovereignty of the United States until complete
independence is granted, not by the mere will of the United States, but by virtue of an agreement
between that Government and ours, under the Tydings-McDuffie Act.)

The individual States of the Confederate and their governments existed prior to the Civil War and
had received the sanction and recognition of the Union Government, for which the Federal Supreme
Court was speaking in the Williams-Bruffy case; while the Japanese-sponsored governments of the
"Philippine Executive Commission" and the Republic of the Philippines" neither existed here before
the war nor had received the recognition or sanction of either the United States or the
Commonwealth Government — nay, they had received the most vigorous condemnation of both.

The Court further says in Williams vs. Bruffy (supra):

No case has been cited in argument, and we think unsuccesfully attempting to establish a
separate revolutionary government have been sustained as a matter of legal right. As justly
observed by the late Chief Justice in the case of Shortridge vs. Macon, I Abb. U.S., 58,
decided at the circuit, and, in all material respects like the one at bar, "Those who engage in
rebellion must consider the consequences. If they succeed, rebellion becomes revolution,
and the new government will justify is founders. If they fail, all their acts hostile to the rightful
government are violations of law, and originate no rights which can be recognized by the
courts of the nation whose authority and existence have been alike assailed. S.C., Chase,
Dec., 136. (Williams vs. Bruffy, 96 U.S., 176; 24 Law. ed., 716, 718.) (Emphasis ours.)

I am of opinion that the principles thus enunciated for the case of an unsuccessful rebellion should
be applied with greater force to the case of a belligerent who loss the war. And since the founding of
the Japanese-sponsored government in the Philippines was designed to supplant and did actually
supplant the rightful government and since all its acts could not but a hostile to the latter (however
blameless the officials who acted under enemy duress might be), and since Japan failed, all said
acts, particularly those of the Japanese-sponsored court in said civil case No. 3012, "are violations
of law, and originate no rights which can be recognized by the courts of the nation whose authority
and existence have been alike assailed", quoting the language of the court in Shortridge vs. Macon,
cited by Mr. Justice Field in Williams vs. Bruffy, supra (24 Law. ed., 718).

II

(a) The government styled as, first, the "Philippine Executive Commission" and later as the
Republic of the Philippines", established here by the Commander in Chief of the Imperial
Japanese Forces or by the his order was not a de facto government--the so-called Court of
First Instance of Manila was not a de facto court and the who presided it was not a de
facto judge;

(b) The rules of International Law regarding the establishment of a de facto government in
territory belonging to a belligerent but occupied or controlled by an opposing belligerent are
inapplicable to the governments thus established here by Japan.
Under the doctrine of Williams vs. Bruffy, supra, and the pertinent cases therein cited, the short-lived
provisional government thus established by the Japanese in the Philippines should be classified, at
best, as a government of paramount force. But this is not all. The Constitution of this Commonwealth
which has been expressly approved by the United States Government, in Article II, section 3, under
the heading "Declaration of Principles", renounces war as an instrument of national policy. This
renunciation of war as an instruments of national policy follows an equal renunciation in the Briand-
Kellog Pact. The rules of International Law , cited in support of the power or right of a belligerent
army of occupation to set up a provisional government on occupied enemy territory, were evolved
prior to the first World War, but the horrors and devastations of that war convinced, at least the
governments of the United States and France, that they should thereafter renounce war as an
instrument of national policy, and they consequently subscribed the Briand-Kellog Pact. Those
horrors and devastations were increased a hundred fold, if not more, in this second World War, but
even before this war occurred, our own people, through our Constitutional delegates, who framed
the Commonwealth Constitution also adopted the same doctrine, and embodied an express
renunciation of war as an instrument of national policy in the instrument that they drafted. It is true
that in section 3, Article II, above-cited, our Constitution adopts the generally accepted principles of
International Law as a part of the law of the Nation. But, of course, this adoption is exclusive of those
principles of International Law which might involve recognition of war as an instrument of national
policy. It is plain that on the side of the Allies, the present war is purely defensive. When Japan
started said war, treacherously and without previous declaration, and attacked Pearl Harbor and the
Philippines on those two fateful days of December 7 and 8, 1941, she employed war as an
instrument of the national policy. Under the Briand-Kellog Pact and our Commonwealth Constitution,
the United States and the Commonwealth Government could not possibly have recognized in Japan
any right, as against them, to employ that war as an instrument of her national policy, and,
consequently, they could not have recognized in Japan power to set up in the Philippines the puppet
government that she later set up, because such power would be a mere incident or consequence of
the war itself. The authorities agree that such a power, under the cited rules, is said to a right derived
from war. (67 C.J., p. 421, sec. 171.) There can be no question that the United States and the
Commonwealth Governments were free to refuse to be bound by those rules when they made their
respective renunciations above referred to. Indeed, all the United Nations have exercised this free
right in their Charter recently signed at San Francisco.

As necessary consequence of this, those rules of International Law were no longer applicable to the
Philippines and to the United States at the time of the Japanese invasion as a corollary, it follows
that we have no legal foundation on which to base the proposition that the acts of that Japanese-
sponsored government in the Philippines were valid and binding. Moreover, I am of opinion, that
although at the time of the Japanese invasion and up to the present, the United States retains over
the Philippines, a certain measure of sovereignty, it is only for certain specified purposes
enumerated in the Tydings-McDufie Act of the Commonwealth Constitution. (Ordinance appended to
the Constitution.) And our territory was at the time of the Japanese invasion not a territory of the
United States, within the meaning of the laws of war governing war-like operations on enemy
territory. Our territory is significantly called "The National Territory" in Article I of our Constitution and
this bears the stamps of express approval of the United States Government. The Philippines has
been recognized and admitted as a member of the United Nations. We, therefore, had our own
national and territorial identity previous to that invasion. Our nation was not at war with the Filipinos.
And line with this, the Japanese army, in time, released Filipino war prisoners captured in Bataan. Lt.
Gen. Maeda, Chief of Staff, Imperial Japanese Forces, in his speech of January 2, 1942, said:

. . . we had not the slighest intensions to make your people our enemy; rather we considered
them as our friends who will join us has hand-in-hand in the establishment of an orderly
Greater East Asia. . . ., (Official Gazette, edited at the Office of the Executive Commission,
Vol. I, p. 55.)
If the Philippines was a neutral territory when invaded by the Japanese, the following principles from
Lawrence, International Law (7th ed.), p. 603, are pertinent:

The Duties of Belligerent States Towards Neutral States. — . . . To refrain from carrying on
hostilities within neutral territory. — We have already seen that, though this obligation was
recognized in theory during the infancy of International law, it was often very imperfectly
observed in practice. But in modern times it has been strickly enforced, and any State which
knowingly ordered warlike operations to be carried on in neutral territory . . . would bring
down upon itself the reprobation of civilized mankind. Hostilities may be carried on in the
territory of either belligerent, on the high seas, and in territory belonging to no one. Neutral
land and neutral territorial waters are sacred. No acts of warfare may lawfully take place
within them. . . . (Emphasis ours.)

In all the cases and authorities supporting the power or right to set up a provisional government, the
belligerent had the right to invade or occupy the territory in the first instance. Such was not the case
with the Philippines. President Roosevelt, in his message to the Filipino people, soon after the
landing of American Forces in Leyte, on October 20, 1944, characterized Japan's invasion and
occupation of the Philippines as "the barbarous, unprovoked and treacherous attack upon the
Philippines," and he announced the American people's "firm determination to punish the guilty." (41
Off. Gaz., 149.) (Emphasis ours.) The illustrious leader of the United Nations could not have in more
unmistakable terms the utter illegality of that invasion and occupation. If the establishment of a
provinsional government in occupied territory by a belligerent is "a mere application or extension of
the force by which the invasion or occupation was effected" (67 C.J., p. 421, sec 171), the illegality
of the invasion, would necessarily permeate the government, which was its mere application or
extention.

The fact that shortly before December 8, 1941, the date of the "barbarous, unprovoked and
treacherous attack," the meager and almost untrained forces of the Philippine Army had been
inducted into the American Army, did not change the neutral status of the Philippines. That military
measure had been adopted for purely defensive purposes. Nothing could be farther from the minds
of the government and military leaders of the United States and the Philippines in adopting it than to
embark upon any aggressive or warlike enterprise against any other nation. It is an old and honored
rule dating as far back as the 18th century that even solemn promises of assistance made before the
war by a neutral to a nation which later becomes a belligerent, would not change the status of the
neutral even if such promises were carried out, so long as they were made for purely defensive
purposes. In the words of Vattel "when a sovereign furnishes the succor due in virtue of a former
defensive alliance, he does not associate himself in the war. Therefore he may fulfill his
engagements and yet preserve an exact neutrality." (Lawrence, Principles of International Law [7th
ed.], pp. 585, 586.)

If the Filipinos had, from contemptible cowardice and fear, allowed their shores to be invaded, and
their territory occupied by the Japanese without resistance, such invasion occupation would
undoubtedly have been considered in violation of International Law. Should the Filipinos be
punished for having had the patriotism, bravery, and heroism to fight in defense of the sacredness of
their land, the sanctity of their homes, and the honor and dignity of their government by giving
validity, in whatever limited measure, to the lawless acts of the ruthless enemy who thus overran
their country, and robbed them of the tranquility and happiness of their daily lives? And yet, to my
mind, to give any measure of validity or binding effect to the proceedings of the Japanese-sponsored
Court of First Instance of Manila, involved herein, would be to give that much validity or effect to the
acts of those same invaders. To equalize the consequences of a lawful and a wrongful invasion of
occupation, would be to equalize right and wrong, uphold the creed that might makes right, and
adopt "the law of the jungle."
If said Japanese-sponsored government was not a de facto government, it would seem clearly to
follow that its "Court of First Instance of Manila" was not a de facto court. But it should additionally be
stated that for it be a de facto court, its judge had to be a de facto judge, which he could not be, as
presently demonstrated.

As said by President Osmeña, in replying to the speech of General of the Army MacArthur when the
latter turned over to him the full powers and responsibilities of the Commonwealth Government, on
February 27, 1945:

xxx xxx xxx

The time has come when the world should know that when our forces surrendered in Bataan
and Corregidor, resistance to the enemy was taken up by the people itself — resistance
which was inarticulate and disorganized in its inception but which grew from the day to day
and from island until it broke out into an open warfare against the enemy.

The fight against the enemy was truly a people's war because it counted with the
wholehearted support of the masses. From the humble peasant to the barrio school teacher,
from the volunteer guard to the women's auxilliary service units, from the loyal local official to
the barrio folk — each and every one of those contributed his share in the great crusade for
liberation.

The guerrillas knew that without the support of the civilian population, they could not survive.
Whole town and villages dared enemy reprisal to oppose the hated invader openly or give
assistance to the underground movement. . . . (41 Off. Gaz., 88, 89.)

Under these facts, taken together with the General of the Army MacArthur's accurate statement that
the "Republic of the Philippines" had been established under enemy duress, it must be presumed —
to say the least — that the judge who presided over the proceedings in question during the
Japanese occupation, firstly, accepted his appointment under duress; and secondly, acted by virtue
of that appointment under the same duress. In such circumstances he could not have acted in
the bona fide belief that the new "courts" created by or under the orders of the Japanese Military
Commander in chief had been legally created--among them the "Court of first Instance of Manila," —
that the Chairman of the "Philippine Executive Commission" or the President of the "Republic of the
Philippines", whoever appointed him, and conferred upon him a valid title to his office and a
legitimate jurisdiction to act as such judge. Good faith is essential for the existence of a de
facto judge (Tayko vs. Capistrano, 53 Phil., 866, 872). The very idea of enemy duress would
necessarily imply that but for the duress exerted upon him by the enemy he would have refused to
accept the appointment and to act thereunder. And why? Because he must be presumed to know
that the office to which he was thus appointed had been created by the enemy in open defiance of
the Commonwealth Constitution and the laws and regulation promulgated by our Commonwealth
Government, and that his acceptance of said office and his acting therein, if willfully done, would
have been no less than an open hostility to the very sovereignty of the United Sates and to the
Commonwealth Government, and a renunciation of his allegiance to both. There is no middle ground
here. Either the judge acted purely under duress, in which case his acts would be null and void; or
maliciously in defiance of said governments, in which case his acts would be null and void for more
serious reasons.

The courts created here by the Japanese government had to look for the source of their supposed
authority to the orders of the Japanese Military Commander in chief and the so-called Constitution of
the "Republic of the Philippines," which had been adopted in a manner which would shock the
conscience of democratic peoples, and which was designed to supplant the Constitution which had
been duly adopted by the Filipino people in a Constitutional Convention of their duly elected
Constitutional Delegates. And it was decreed that the Commander in chief of the Imperial Japanese
Forces "shall exercise jurisdiction over judicial courts." (Vol. 1, p. 7, Official Journal of the Japanese
Military Administration, cited on pp. 2, 3, of the order of the respondent judge complained of and
marked Exhibit H of the petition for mandamus.) How can our present courts legitimately recognize
any efficacy in the proceedings of such an exotic judicial system, wherein the Commander in Chief
of the Imperial Japanese Forces possessed the highest judicial jurisdiction?

III

The courts of those governments were entirely different from our Commonwealth courts
before and after the Japanese occupation.

Executive Order No. 36 of the President of the Philippines, dated March 10, 1945, in its very first
paragraph, states the prime concern of the government "to re-establish the courts as fast as
provinces are liberated from the Japanese occupation." If the courts under the Japanese-sponsored
government of the "Republic of the Philippines" were the same Commonwealth courts that existed
here under the Constitution at the time of the Japanese invasion, President Osmeña would not be
speaking of re-establishing those courts in his aforesaid Executive Order. For soothe, how could
those courts under the "Republic of the Philippines" be the courts of the Commonwealth of the
Philippines when they were not functioning under the Constitution of the Commonwealth and the
laws enacted in pursuance of said Constitution? The jurisdiction of the Commonwealth courts was
defined and conferred under the Commonwealth Constitution and the pertinent legislation enacted
thereunder, that of the Japanese-sponsored courts was defined and conferred by the orders and
decrees of the Japanese Commander in Chief, and, perhaps, the decrees of the "Philippine
Executive Commission" and the laws of the so-called Legislature under the Republic, which was not
composed of the elected representatives of the people. The Justices and Judges of the
Commonwealth courts had to be appointed by the President of the Commonwealth with confirmation
by the Commission on Appointments, pursuant to the Commonwealth Constitution. The Chief
Justice of the Supreme Court, under the "Philippine Executive Commission" was appointed by the
Commander in Chief of the Imperial Japanese Forces, and the Associate Justices of the Supreme
Court, the Presiding Justice and Associate Justices of the Court of Appeals, the Judges of first
Instance and of all inferior courts were appointed by the Chairman of the Executive Commission, at
first, and later, by the President of the Republic, of course, without confirmation by the Commission
on Appointments under the Commonwealth Constitution. The Chief Justice and Associate Justices
of the Supreme Court, the President and Associate Justices of the Court of Appeals, and the Judges
of First Instance and of all inferior courts in the Commonwealth judicial system, had to swear to
support and defend the Commonwealth Constitution, while this was impossible under the Japanese-
sponsored government. In the Commonwealth judicial system, if a Justice or Judge should die or
incapacitated to continue in the discharge of his official duties, his successor was appointed by the
Commonwealth President with confirmation by the Commission on Appointments, and said
successor had to swear to support and defend the Commonwealth Constitution; in the exotic judicial
system implanted here by the Japanese, if a Justice or Judge should die or incapacitated, his
successor would be appointed by the Japanese Commander in Chief, if the dead or incapacitated
incumbent should be the Chief Justice of the Supreme Court, or otherwise, by the Chairman of the
"Executive Commission" or the President of the "Republic", of course without confirmation by the
Commission on Appointments of the Commonwealth Congress, and, of course, without the
successor swearing to support and defend the Commonwealth Constitution.

If, as we believe having conclusively shown, the Japanese-sponsored courts were not the same
Commonwealth courts, the conclusion is unavoidable that any jurisdiction possessed by the former
and any cases left pending therein, were not and could not be automatically transfered to the
Commonwealth courts which we re-established under Executive Order No. 36. For the purpose, a
special legislation was necessary.

Executive Order No. 37, in my humble opinion, does not, as held by the majority, imply that the
President recognized as valid the proceedings in all cases appealed to the Court of Appeals. Section
2 of that order simply provides that all cases which have been duly appealed to the Court of Appeals
shall be transmitted to the Supreme Court for final decision. The adverb "duly" would indicate that
the President foresaw the possibility of appeals not having been duly taken. All cases appealed to
the Court of Appeals before the war and the otherwise duly appealed, would come under the phrase
"duly appealed" in this section of the Executive Order. But considering the determined and firm
attitude of the Commonwealth Government towards those Japanese-sponsored governments since
the beginning, it would seem inconceivable that the President Osmeña, in section 2 of Executive
Order No. 37, intended to include therein appeals taken to the Japanese-sponsored Court of
Appeals, or from the Japanese-sponsored inferior courts. It should be remembered that in the
Executive Order immediately preceeding and issued on the same date, the President speaks of re-
establishing the courts as fast as provinces were liberated from the Japanese occupation.

IV

The question boils down to whether the Commonwealth Government, as now restored, is to
be bound by the acts of either or both of those Japanese-sponsored governments.

In the last analysis, in deciding the question of validity or nullity of the proceedings involved herein,
we are confronted with the necessity to decide whether the Court of first Instance of Manila and this
Supreme Court, as re-established under the Commonwealth Constitution, and the entire
Commonwealth Government, are to be bound by the acts of the said Japanese-sponsored court and
government. To propound this question is, to my mind, to answer it most decidedly in the negative,
not only upon the ground of the legal principles but also for the reasons of national dignity and
international decency. To answer the question in the affirmative would be nothing short for legalizing
the Japanese invasion and occupation of the Philippines. Indeed, it would be virtual submission to
the dictation of an invader our people's just hatred of whom gave rise to the epic Philippine
resistance movement, which has won the admiration of the entire civilized world.

Even considerations of policy or practical convenience militate against petitioner's

contention.

In this connection, the respondent judge, in his order of June 6, 1945, complained of, has the
following to say:

It is contended, however, that the judicial system implanted by the Philippine Executive
Commission and the Republic was the same as that of the Commonwealth prior to Japanese
occupation; that the laws administered and enforced by said courts during the existence of
said regime were the same laws on the statute books of Commonwealth before Japanese
occupation, and that even the judges who presided them were, in many instances, the same
persons who held the position prior to the Japanese occupation. All this may be true, but
other facts are just as stubborn and pitiless. One of them is that said courts were of a
government alien to the Commonwealth Government. The laws they enforced were, true
enough, laws of the Commonwealth prior to Japanese occupation, but they had become the
laws — and the Courts had become the institutions-of Japan by adoption (U.S. vs. Reiter, 27
F. Case No. 16,146), as they became later on the laws and institution of the Philippine
 Executive Commission and the Republic of the Philippines. No amount of argument or legal
fiction can obliterate this fact.

Besides, I am of the opinion that the validity of the acts of the courts in the "judicial system implanted
by the Philippine Executive Commission and the Republic "would not depend upon the laws that
they "administered and enforced", but upon the authority by virtue of which they acted. If the
members of this Court were to decide the instant case in strict accordance with the Constitution and
the laws of the Commonwealth but not by the authority that they possess in their official capacity as
the Supreme Court of the Philippines, but merely as lawyers, their decision would surely be null and
void. And yet, I am firmly of opinion that whoever was the "judge" of the Japanese sponsored Court
of First Instance of Manila who presided over the said court when the proceedings and processes in
the dispute were had, in acting by virtue of the supposed authority which he was supposed to have
received from that government, did so with no more legal power than if he had acted as a mere
lawyer applying the same laws to the case. If duplication of work or effort, or even if confussion,
should be alleged to possibly arise from a declaration of nullity or judicial proceedings had before
those Japanese-sponsored courts, it should suffice to answer that the party so complaining in
voluntarily resorting to such courts should be prepared to assume the consequences of his voluntary
act. On the other hand, his convenience should not be allowed to visit upon the majority of the
inhabitants of this country, the dire consequences of a sweeping and wholesale validation of judicial
proceedings in those courts. Let us set forth a few considerations apropos of this assertion. It is a
fact of general knowledge that during the Japanese occupation of the Philippines, the overwhelming
majority of our people and other resident inhabitants were literally afraid to go any place where there
were Japanese sentries, soldiers or even civilians, and that these sentries were posted at the
entrance into cities and towns and at government offices; that the feared Japanese "M. P.'s" or
Kempeitai's" were a constant terror to them; and lastly, that the greater number who lived or had
evacuated to places for from the Japanese, were found precisely in the cities and towns where the
courts were located; and as a consequence, the great majority of the people were very strongly
adverse to traveling any considerable distance from their homes and were, one might say, in
constant hiding. Add to these circumstances, the fact of the practical absence of transportation
facilities and the no less important fact of the economic structure having been so dislocated as to
have impoverished the many in exchange for the enrichment of the few — and we shall have a fair
picture of the practical difficulties which the ordinary litigant would in those days have encountered in
defending his rights against anyone of the favored few who would bring him to court. It should be
easy to realize how hard it was for instances, to procure the attendance of witnesses, principally
because of the fact that most of them were in hiding or, at least, afraid to enter the cities and towns,
and also because of then generally difficult and abnormal conditions prevailing. Under such
conditions, cases or denial of a party's day in court expected. Such denial might arise from many a
cause. It might be party's fear to appear before the court because in doing so, he would have had to
get near the feared Japanese. It might be because he did not recognize any legal authority in that
court, or it might be his down-right repugnance of the hated enemy. And I dare say that among such
people would be found more than seventeen million Filipinos. These are but a few of countless
cause. So that if some form of validation of such judicial proceedings were to be attempted, all
necessary safeguards should be provided to avoid that in any particular case the validation should
violate any litigant's constitutional right to his day in court, within the full meaning of the phrase, or
any other constitutional or statutory right of his. More people, I am afraid, would be prejudiced than
would be benefited by a wholesale validation of said proceedings.

Much concern has been shown for the possible confusion which might result from a decision
declaring null and void the acts processes of the Japanese-sponsored governments in the
Philippines. I think, this aspect of the question has been unduly stressed. The situation is not without
remedy, but the remedy lies with the legislature and not with the courts. As the courts cannot create
a new or special jurisdiction for themselves, which is a legislative function, and as the situation
demands such new or special jurisdiction, let the legislature act in the premises. For instance, the
Congress may enact a law conferring a special jurisdiction upon the courts of its selection, whereby
said courts may, after hearing all the parties interested, and taking all the necessary safeguards, so
that, a party's day in court or other constitutional or statutory right under the Commonwealth
Government should not be prejudiced by any of said acts, processes or proceedings, particullarly,
those in Japanese-sponsored courts, and subject to such other conditions as the special law may
provide, validate the corresponding acts, processes or proceedings. This, to my mind, would be
more conducive to a maximum of benefit and a minimum of prejudice to the inhabitants of this
country, rather than the procedure favored by the majority.

Finally, let us not equalize the conditions then prevailing in Manila to that prevailing in the provinces,
where the greater number of the people where then living outside the towns, in the farms and the
hills. These people constitute the great majority of the eighteen million Filipinos. To them the
semblance of an administration of justice which Japanese allowed, was practically unknown. But
they constituted the majority of loyal citizens to whom President Roosevelt's message of October 23,
1943 refers. They — the majority of our people — had an unshaken faith in the arrival of American
aid here and the final triumph of the Allied cause. They were willing to wait for the restoration of their
rightful government, with its courts and other institutions, for the settlement of their differences. May
in their common hardship and sufferings under yoke of foreign oppression, they had not much time
to think of such differences, if they did not utterly forget them. Their undoubted hatred of the invader
was enough to keep them away from the judicial system that said invader allowed to have. Those
who voluntarily went to the courts in those tragic days belong to the small minority.

As to the public order — why! any public order which then existed was not due to the courts or other
departments of the puppet government. It was maintained at the point of the bayonet by the
Japanese army, and in their own unique fashion.

Footnotes

1 Resolution on motion for reconsideration, see p. 371, post.

 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-21897 October 22, 1963

RAMON A. GONZALES, petitioner,

vs.
RUFINO G. HECHANOVA, as Executive Secretary, MACARIO PERALTA, JR., as Secretary of
Defense, PEDRO GIMENEZ, as Auditor General, CORNELIO BALMACEDA, as Secretary of
Commerce and Industry, and SALVADOR MARINO, Secretary of Justice, respondents.

Ramon A. Gonzales in his own behalf as petitioner.

Office of the Solicitor General and Estanislao Fernandez for respondents.

CONCEPCION, J.:

This is an original action for prohibition with preliminary injunction.

It is not disputed that on September 22, 1963, respondent Executive Secretary authorized the
importation of 67,000 tons of foreign rice to be purchased from private sources, and created a rice
procurement committee composed of the other respondents herein1 for the implementation of said
proposed importation. Thereupon, or September 25, 1963, herein petitioner, Ramon A. Gonzales —
a rice planter, and president of the Iloilo Palay and Corn Planters Association, whose members are,
likewise, engaged in the production of rice and corn — filed the petition herein, averring that, in
making or attempting to make said importation of foreign rice, the aforementioned respondents "are
acting without jurisdiction or in excess of jurisdiction", because Republic Act No. 3452 which
allegedly repeals or amends Republic Act No. 220 — explicitly prohibits the importation of rice and
corn "the Rice and Corn Administration or any other government agency;" that petitioner has no
other plain, speedy and adequate remedy in the ordinary course of law; and that a preliminary
injunction is necessary for the preservation of the rights of the parties during the pendency this case
and to prevent the judgment therein from coming ineffectual. Petitioner prayed, therefore, that said
petition be given due course; that a writ of preliminary injunction be forthwith issued restraining
respondent their agents or representatives from implementing the decision of the Executive
Secretary to import the aforementioned foreign rice; and that, after due hearing, judgment be
rendered making said injunction permanent.

Forthwith, respondents were required to file their answer to the petition which they did, and
petitioner's pray for a writ of preliminary injunction was set for hearing at which both parties
appeared and argued orally. Moreover, a memorandum was filed, shortly thereafter, by the
respondents. Considering, later on, that the resolution said incident may require some
pronouncements that would be more appropriate in a decision on the merits of the case, the same
was set for hearing on the merits thereafter. The parties, however, waived the right to argue orally,
although counsel for respondents filed their memoranda.

I. Sufficiency of petitioner's interest.

Respondents maintain that the status of petitioner as a rice planter does not give him sufficient
interest to file the petition herein and secure the relief therein prayed for. We find no merit in this
pretense. Apart from prohibiting the importation of rice and corn "by the Rice and Corn
Administration or any other government agency". Republic Act No. 3452 declares, in Section 1
thereof, that "the policy of the Government" is to "engage in the purchase of these basic
foods directly from those tenants, farmers, growers, producers and landowners in the
Philippines who wish to dispose of their products at a price that will afford them a fair and just return
for their labor and capital investment. ... ." Pursuant to this provision, petitioner, as a planter with a
rice land of substantial proportion,2 is entitled to a chance to sell to the Government the rice it now
seeks to buy abroad. Moreover, since the purchase of said commodity will have to be effected with
public funds mainly raised by taxation, and as a rice producer and landowner petitioner must
necessarily be a taxpayer, it follows that he has sufficient personality and interest to seek judicial
assistance with a view to restraining what he believes to be an attempt to unlawfully disburse said
funds.

II. Exhaustion of administrative remedies.

Respondents assail petitioner's right to the reliefs prayed for because he "has not exhausted all
administrative remedies available to him before coming to court". We have already held, however,
that the principle requiring the previous exhaustion of administrative remedies is not applicable
where the question in dispute is purely a legal one",3 or where the controverted act is "patently
illegal" or was performed without jurisdiction or in excess of jurisdiction,4 or where the respondent is
a department secretary, whose acts as an alter-ego of the President bear the implied or assumed
approval of the latter,5 unless actually disapproved by him,6 or where there are circumstances
indicating the urgency of judicial intervention.7 The case at bar fails under each one of the foregoing
exceptions to the general rule. Respondents' contention is, therefore, untenable.

III. Merits of petitioner's cause of action.

Respondents question the sufficiency of petitioner's cause of action upon the theory that the
proposed importation in question is not governed by Republic Acts Nos. 2207 and 3452, but was
authorized by the President as Commander-in-Chief "for military stock pile purposes" in the exercise
of his alleged authority under Section 2 of Commonwealth Act No. 1;8 that in cases of necessity, the
President "or his subordinates may take such preventive measure for the restoration of good order
and maintenance of peace"; and that, as Commander-in-Chief of our armed forces, "the President ...
is duty-bound to prepare for the challenge of threats of war or emergency without waiting for any
special authority".

Regardless of whether Republic Act No. 3452 repeals Republic Act No. 2207, as contended by
petitioner herein - on which our view need not be expressed — we are unanimously of the opinion -
assuming that said Republic Act No. 2207 is still in force — that the two Acts are applicable to the
proposed importation in question because the language of said laws is such as to include within the
purview thereof all importations of rice and corn into the Philippines". Pursuant to Republic Act No.
2207, "it shall be unlawful for any person, association, corporation or government agency to import
rice and corn into any point in the Philippines", although, by way of exception, it adds, that "the
President of the Philippines may authorize the importation of these commodities through any
government agency that he may designate", is the conditions prescribed in Section 2 of said Act are
present. Similarly, Republic Act No. 3452 explicitly enjoins "the Rice and Corn Administration or any
government agency" from importing rice and corn.

Respondents allege, however, that said provisions of Republic Act Nos. 2207 and 3452, prohibiting
the importation of rice and corn by any "government agency", do not apply to importations "made by
the Government itself", because the latter is not a "government agency". This theory is devoid of
merit. The Department of National Defense and the Armed Forces of the Philippines, as well as
respondents herein, and each and every officer and employee of our Government, our government
agencies and/or agents. The applicability of said laws even to importations by the Government as
such, becomes more apparent when we consider that:

1. The importation permitted in Republic Act No. 2207 is to be authorized by the "President of the
Philippines" and, hence, by or on behalf of the Government of the Philippines;

2. Immediately after enjoining the Rice and Corn administration and any other government agency
from importing rice and corn, Section 10 of Republic Act No. 3452 adds "that the importation of rice
and corn is left to private parties upon payment of the corresponding taxes", thus indicating
that only "private parties" may import rice under its provisions; and

3. Aside from prescribing a fine not exceeding P10,000.00 and imprisonment of not more than five
(5) years for those who shall violate any provision of Republic Act No. 3452 or any rule and
regulation promulgated pursuant thereto, Section 15 of said Act provides that "if the offender is
a public official and/or employees", he shall be subject to the additional penalty specified therein. A
public official is an officer of the Government itself, as distinguished from officers or employees of
instrumentalities of the Government. Hence, the duly authorized acts of the former are those of the
Government, unlike those of a government instrumentality which may have a personality of its own,
distinct and separate from that of the Government, as such. The provisions of Republic Act No. 2207
are, in this respect, even more explicit. Section 3 thereof provides a similar additional penalty for any
"officer or employee of the Government" who "violates, abets or tolerates the violation of any
provision" of said Act. Hence, the intent to apply the same to transactions made by the very
government is patent.

Indeed, the restrictions imposed in said Republic Acts are merely additional to those prescribed in
Commonwealth Act No. 138, entitled "An Act to give native products and domestic entities the
preference in the purchase of articles for the Government." Pursuant to Section 1 thereof:

The Purchase and Equipment Division of the Government of the Philippines and other
officers and employees of the municipal and provincial governments and the Government of
the Philippines and of chartered cities, boards, commissions, bureaus, departments, offices,
agencies, branches, and bodies of any description, including government-owned companies,
authorized to requisition, purchase, or contract or make disbursements for articles, materials,
and supplies for public use, public buildings, or public works shall give preference to
materials ... produced ... in the Philippines or in the United States, and to domestic entities,
subject to the conditions hereinbelow specified. (Emphasis supplied.)

Under this provision, in all purchases by the Government, including those made by and/or for the
armed forces, preference shall be given to materials produced in the Philippines. The importation
involved in the case at bar violates this general policy of our Government, aside from the provisions
of Republic Acts Nos. 2207 and 3452.

The attempt to justify the proposed importation by invoking reasons of national security —
predicated upon the "worsening situation in Laos and Vietnam", and "the recent tension created by
the Malaysia problem" - and the alleged powers of the President as Commander-in-Chief of all
armed forces in the Philippines, under Section 2 of the National Defense Act (Commonwealth Act
No. 1), overlooks the fact that the protection of local planters of rice and corn in a manner that would
foster and accelerate self-sufficiency in the local production of said commodities constitutes a factor
that is vital to our ability to meet possible national emergency. Even if the intent in importing goods in
anticipation of such emergency were to bolster up that ability, the latter would, instead, be impaired if
the importation were so made as to discourage our farmers from engaging in the production of rice.
Besides, the stockpiling of rice and corn for purpose of national security and/or national emergency
is within the purview of Republic Act No. 3452. Section 3 thereof expressly authorizes the Rice and
Corn Administration "to accumulate stocks as a national reserve in such quantities as it may deem
proper and necessary to meet any contingencies". Moreover, it ordains that "the buffer stocks held
as a national reserve ... be deposited by the administration throughout the country under the proper
dispersal plans ... and may be released only upon the occurrence of calamities or emergencies ...".
(Emphasis applied.)

Again, the provisions of Section 2 of Commonwealth Act No. 1, upon which respondents rely so
much, are not self-executory. They merely outline the general objectives of said legislation. The
means for the attainment of those objectives are subject to congressional legislation. Thus, the
conditions under which the services of citizens, as indicated in said Section 2, may be availed of, are
provided for in Sections 3, 4 and 51 to 88 of said Commonwealth Act No. 1. Similarly, Section 5
thereof specifies the manner in which resources necessary for our national defense may be secured
by the Government of the Philippines, but only "during a national mobilization",9 which does not exist.
Inferentially, therefore, in the absence of a national mobilization, said resources shall be produced in
such manner as Congress may by other laws provide from time to time. Insofar as rice and corn are
concerned, Republic Acts Nos. 2207 and 3452, and Commonwealth Act No. 138 are such laws.

Respondents cite Corwin in support of their pretense, but in vain. An examination of the work
cited10 shows that Corwin referred to the powers of the President during "war time"11 or when he has
placed the country or a part thereof under "martial law".12 Since neither condition obtains in the case
at bar, said work merely proves that respondents' theory, if accepted, would, in effect, place the
Philippines under martial law, without a declaration of the Executive to that effect. What is worse, it
would keep us perpetually under martial law.

It has been suggested that even if the proposed importation violated Republic Acts Nos. 2207 and
3452, it should, nevertheless, be permitted because "it redounds to the benefit of the people". Salus
populi est suprema lex, it is said.

If there were a local shortage of rice, the argument might have some value. But the respondents, as
officials of this Government, have expressly affirmed again and again that there is no rice shortage.
And the importation is avowedly for stockpile of the Army — not the civilian population.

But let us follow the respondents' trend of thought. It has a more serious implication that appears on
the surface. It implies that if an executive officer believes that compliance with a certain statute will
not benefit the people, he is at liberty to disregard it. That idea must be rejected - we still live under a
rule of law.

And then, "the people" are either producers or consumers. Now — as respondents explicitly admit —
Republic Acts Nos. 2207 and 3452 were approved by the Legislature for the benefit of producers
and consumers, i.e., the people, it must follow that the welfare of the people lies precisely in
the compliance with said Acts.

It is not for respondent executive officers now to set their own opinions against that of the
Legislature, and adopt means or ways to set those Acts at naught. Anyway, those laws permit
importation — but under certain conditions, which have not been, and should be complied with.

IV. The contracts with Vietnam and Burma —

It is lastly contended that the Government of the Philippines has already entered into two (2)
contracts for the Purchase of rice, one with the Republic of Vietnam, and another with the
Government of Burma; that these contracts constitute valid executive agreements under
international law; that such agreements became binding effective upon the signing thereof by
representatives the parties thereto; that in case of conflict between Republic Acts Nos. 2207 and
3452 on the one hand, and aforementioned contracts, on the other, the latter should prevail,
because, if a treaty and a statute are inconsistent with each other, the conflict must be resolved —
under the American jurisprudence — in favor of the one which is latest in point of time; that petitioner
herein assails the validity of acts of the Executive relative to foreign relations in the conduct of which
the Supreme Court cannot interfere; and the aforementioned contracts have already been
consummated, the Government of the Philippines having already paid the price of the rice involved
therein through irrevocable letters of credit in favor of the sell of the said commodity. We find no
merit in this pretense.

The Court is not satisfied that the status of said tracts as alleged executive agreements has been
sufficiently established. The parties to said contracts do not pear to have regarded the same as
executive agreements. But, even assuming that said contracts may properly considered as
executive agreements, the same are unlawful, as well as null and void, from a constitutional
viewpoint, said agreements being inconsistent with the provisions of Republic Acts Nos. 2207 and
3452. Although the President may, under the American constitutional system enter into executive
agreements without previous legislative authority, he may not, by executive agreement, enter into a
transaction which is prohibited by statutes enacted prior thereto. Under the Constitution, the main
function of the Executive is to enforce laws enacted by Congress. The former may not interfere in
the performance of the legislative powers of the latter, except in the exercise of his veto power. He
may not defeat legislative enactments that have acquired the status of law, by indirectly
repealing the same through an executive agreement providing for the performance of the very act
prohibited by said laws.

The American theory to the effect that, in the event of conflict between a treaty and a statute, the
one which is latest in point of time shall prevail, is not applicable to the case at bar, for respondents
not only admit, but, also insist that the contracts adverted to are not treaties. Said theory may be
justified upon the ground that treaties to which the United States is signatory require the advice and
consent of its Senate, and, hence, of a branch of the legislative department. No such justification can
be given as regards executive agreements not authorized by previous legislation, without completely
upsetting the principle of separation of powers and the system of checks and balances which are
fundamental in our constitutional set up and that of the United States.

As regards the question whether an international agreement may be invalidated by our courts,
suffice it to say that the Constitution of the Philippines has clearly settled it in the affirmative, by
providing, in Section 2 of Article VIII thereof, that the Supreme Court may not be deprived "of its
jurisdiction to review, revise, reverse, modify, or affirm on appeal, certiorari, or writ of error as the law
or the rules of court may provide, final judgments and decrees of inferior courts in — (1) All cases in
which the constitutionality or validity of any treaty, law, ordinance, or executive order or regulation is
in question". In other words, our Constitution authorizes the nullification of a treaty, not only when it
conflicts with the fundamental law, but, also, when it runs counter to an act of Congress.

The alleged consummation of the aforementioned contracts with Vietnam and Burma
does not render this case academic, Republic Act No. 2207 enjoins our Government not
from entering into contracts for the purchase of rice, but from importing rice, except under the
conditions Prescribed in said Act. Upon the other hand, Republic Act No. 3452 has two (2) main
features, namely: (a) it requires the Government to purchase rice and corn directly from our local
planters, growers or landowners; and (b) it prohibits importations of rice by the Government, and
leaves such importations to private parties. The pivotal issue in this case is whether the
proposed importation — which has not been consummated as yet — is legally feasible.
Lastly, a judicial declaration of illegality of the proposed importation would not compel our
Government to default in the performance of such obligations as it may have contracted with the
sellers of the rice in question, because, aside from the fact that said obligations may be complied
with without importing the commodity into the Philippines, the proposed importation may still be
legalized by complying with the provisions of the aforementioned laws.

V. The writ of preliminary injunction.

The members of the Court have divergent opinions on the question whether or not respondents
herein should be enjoined from implementing the aforementioned proposed importation. However,
the majority favors the negative view, for which reason the injunction prayed for cannot be granted.

WHEREFORE, judgment is hereby rendered declaring that respondent Executive Secretary had and
has no power to authorize the importation in question; that he exceeded his jurisdiction in granting
said authority; said importation is not sanctioned by law and is contrary to its provisions; and that, for
lack of the requisite majority, the injunction prayed for must be and is, accordingly denied. It is so
ordered.

Bengzon, CJ, Padilla, Labrador, Reyes, J.B.L., Dizon and Makalintal, JJ., concur.
Paredes and Regala, JJ., concur in the result.

Separate Opinions

BAUTISTA ANGELO, J., concurring:

Under Republic Act No. 2207, which took effect on May 15, 1959, it is unlawful for any person,
association, corporation or government agency to import rice and corn into any point in the
Philippines. The exception is if there is an existing or imminent shortage of such commodity of much
gravity as to constitute national emergency in which case an importation may be authorized by the
President when so certified by the National Economic Council.

However, on June 14, 1962, Republic Act 3452 was enacted providing that the importation of rice
and corn can onlybe made by private parties thereby prohibiting from doing so the Rice and Corn
Administration or any other government agency. Republic Act 3452 does not expressly repeal
Republic Act 2207, but only repeals or modified those parts thereof that are inconsistent with its
provisions. The question that now arises is: Has the enactment of Republic Act 3452 the effect of
prohibiting completely the government from importing rice and corn into the Philippines?

My answer is in the negative. Since this Act does not in any manner provide for the importation of
rice and corn in case of national emergency, the provision of the former law on that matter should
stand, for that is not inconsistent with any provision embodied in Republic Act 3452. The Rice and
Corn Administration, or any other government agency, may therefore still import rice and corn into
the Philippines as provided in Republic Act 2207 if there is a declared national emergency.

The next question that arises is: Can the government authorize the importation of rice and corn
regardless of Republic Act 2207 if that is authorized by the President as Commander-in-Chief of the
Philippine Army as a military precautionary measure for military stockpile?
Respondents answer this question in the affirmative. They advance the argument that it is the
President's duty to see to it that the Armed Forces of the Philippines are geared to the defenses of
the country as well as to the fulfillment of our international commitments in Southeast Asia in the
event the peace and security of the area are in danger. The stockpiling of rice, they aver, is an
essential requirement of defense preparation in view of the limited local supply and the probable
disruption of trade and commerce with outside countries in the event of armed hostilities, and this
military precautionary measure is necessary because of the unsettled conditions in the Southeast
Asia bordering on actual threats of armed conflicts as evaluated by the Intelligence Service of the
Military Department of our Government. This advocacy, they contend, finds support in the national
defense policy embodied in Section 2 of our National Defense Act (Commonwealth Act No. 1), which
provides:

(a) The preservation of the State is the obligation of every citizen. The security of the
Philippines and the freedom, independence and perpetual neutrality of the Philippine
Republic shall be guaranteed by the employment of all citizens, without distinction of sex or
age, and all resources.

(b) The employment of the nation's citizens and resources for national defense shall be
effected by a national mobilization.

(c) The national mobilization shall include the execution of all measures necessary to pass
from a peace to a war footing.

(d) The civil authority shall always be supreme. The President of the Philippines as the
Commander-in-Chief of all military forces, shall be responsible that mobilization measures
are prepared at all times.(Emphasis supplied)

Indeed, I find in that declaration of policy that the security of the Philippines and its freedom
constitutes the core of the preservation of our State which is the basic duty of every citizen and that
to secure which it is enjoined that the President employ all the resources at his command. But over
and above all that power and duty, fundamental as they may seem, there is the injunction that the
civil authority shall always be supreme. This injunction can only mean that while all precautions
should be taken to insure the security and preservation of the State and to this effect the
employment of all resources may be resorted to, the action must always be taken within the
framework of the civil authority. Military authority should be harmonized and coordinated with civil
authority, the only exception being when the law clearly ordains otherwise. Neither Republic Act
2207, nor Republic Act 3452, contains any exception in favor of military action concerning
importation of rice and corn. An exception must be strictly construed.

A distinction is made between the government and government agency in an attempt to take the
former out of the operation of Republic Act 2207. I disagree. The Government of the Republic of the
Philippines under the Revised Administrative Code refers to that entity through which the functions
of government are exercised, including the various arms through which political authority is made
effective whether they be provincial, municipal or other form of local government, whereas a
government instrumentality refers to corporations owned or controlled by the government to promote
certain aspects of the economic life of our people. A government agency, therefore, must
necessarily refer to the government itself of the Republic, as distinguished from any government
instrumentality which has a personality distinct and separate from it (Section 2).

The important point to determine, however, is whether we should enjoin respondents from carrying
out the importation of the rice which according to the record has been authorized to be imported on
government to government level, it appearing that the arrangement to this effect has already been
concluded, the only thing lacking being its implementation. This is evident from the manifestation
submitted by the Solicitor General wherein it appears that the contract for the purchase of 47,000
tons of rice from had been sign on October 5, 1963, and for the purchase of 20,000 tons from Burma
on October 8, 1963, by the authorized representatives of both our government and the governments
of Vietnam and Burma, respectively. If it is true that, our government has already made a formal
commitment with the selling countries there arises the question as to whether the act can still be
impeded at this stage of the negotiations. Though on this score there is a divergence of opinion, it is
gratifying to note that the majority has expressed itself against it. This is a plausible attitude for, had
the writ been issued, our government would have been placed in a predicament where, as a
necessary consequence, it would have to repudiate a duly formalized agreement to its great
embarrassment and loss of face. This was avoided by the judicial statesmanship evinced by the
Court.

BARRERA, J., concurring:

Because of possible complications that might be aggravated by misrepresentation of the true nature
and scope of the case before this Court, it is well to restate as clearly as possible, the real and only
issue presented by the respondents representing the government.

From the answer filed by the Solicitor General, in behalf of respondents, we quote:

The importation of the rice in question by the Armed Forces of the Philippines is for military
stockpilingauthorized by the President pursuant to his inherent power as commander-in-chief
and as a military precautionary measure in view the worsening situation in Laos and Vietnam
and, it may added, the recent, tension created by the Malaysia problem (Answer, p. 2;
emphasis supplied.)

During the oral argument, Senator Fernandez, appealing in behalf of the respondents, likewise
reiterated the imported rice was for military stockpiling, and which he admitted that some of it went to
the Rice and Corn Administration, he emphasized again and again that rice was not intended for the
RCA for distribution to people, as there was no shortage of rice for that purpose but it was only
exchanged for palay because this could better preserved.

From the memorandum filed thereafter by the Solicits General, again the claim was made:

We respectfully reiterate the arguments in our answer dated October 4, 1963 that the
importation of rice sought be enjoined in this petition is in the exercise of the authority vested
in the President of the Philippines as Commander-in-Chief of the Armed Forces, as a
measure of military preparedness demanded by a real and actual threat of emergency in the
South East Asian countries. (p. 1, Emphasis supplied.)

xxx xxx xxx

It (the stressing of the unsettled conditions in Southeast Asia) is merely our intention to show
the necessity for the stockpiling of rice for army purposes, which is the very reason for the
importation.

xxx xxx xxx

 As it is, the importation in question is being made by the Republic of the Philippines for its
own use, and the rice is not supposed to be poured into the open market as to affect the
price to be paid by the public. (p. 4, Emphasis supplied.)

xxx xxx xxx

What we do contend is that the law, for want of express and clear provision to that
effect, does not include in its prohibition importation by the Government of rice for its own
use and not for the consuming public, regardless of whether there is or there is no
emergency. (p. 5, Emphasis supplied.)

From the above, it not only appears but is evident that the respondents were not concerned with
the present rice situation confronting the consuming public, but were solely and exclusively after the
stockpiling of rice for the futureuse of the army. The issue, therefore, in which the Government was
interested is not whether rice is imported to give the people a bigger or greater supply to maintain
the price at P.80 per ganta — for, to quote again their contention: "the rice is not supposed to be
poured into the open market to affect the price to be paid by the public, as it is not for the consuming
public, regardless of whether there is or there is no emergency", — but whether rice can legally be
imported by the Armed Forces of the Philippines avowedly for its future use, notwithstanding the
prohibitory provisions of Republic Acts Nos. 2207 and 3452. The majority opinion ably sets forth the
reasons why this Court can not accept the contention of the respondents that this importation is
beyond and outside the operation of these statutes. I can only emphasize that I see in the theory
advanced by the Solicitor General a dangerous trend — that because the policies enunciated in the
cited laws are for the protection of the producers and the consumers, the army is removed from their
application. To adopt this theory is to proclaim the existence in the Philippines of three economic
groups or classes: the producers, the consumers, and the Armed Forces of the Philippines. What is
more portentous is the effect to equate the army with the Government itself.

Then again, the importation of this rice for military stockpiling is sought to be justified by the alleged
threat of emergency in the Southeast Asian countries. But the existence of this supposed threat was
unilaterally determined by the Department of National Defense alone. We recall that there exists a
body called the National Security Council in which are represented the Executive as well as the
Legislative department. In it sit not only members of the party in power but of the opposition as well.
To our knowledge, this is the highest consultative body which deliberates precisely in times of
emergency threatening to affect the security of the state. The democratic composition of this council
is to guarantee that its deliberations would be non-partisan and only the best interests of the nation
will be considered. Being a deliberative body, it insures against precipitate action. This is as it should
be. Otherwise, in these days of ever present cold war, any change or development in the political
climate in any region of the world is apt to be taken as an excuse for the military to conjure up a
crisis or emergency and thereupon attempt to override our laws and legal processes, and
imperceptibly institute some kind of martial law on the pretext of precautionary mobilization measure
avowedly in the interest of the security of the state. One need not, be too imaginative to perceive a
hint of this in the present case.

The Supreme Court, in arriving at the conclusion unanimously reached, is fully aware of the difficult
and delicate task it had to discharge. Its position is liable to be exploited by some for their own
purposes by claiming and making it appear that the Court is unmindful of the plight of our people
during these days of hardship; that it preferred to give substance to the "niceties of the law than
heed the needs of the people. Our answer is that the Court was left no alternative. It had, in
compliance with its duty, to decide the case upon the facts presented to it. The respondents,
representing the administration, steadfastly maintained and insisted that there is no rice shortage;
that the imported rice is not for the consuming public and is not supposed to be placed in the open
market to affect the price to be paid by the public; that it is solely for stockpiling of the army for future
use as a measure of mobilization in the face of what the Department of National Defense unilaterally
deemed a threatened armed conflict in Southeast Asia. Confronted with these facts upon, which the
Government has built and rested its case, we have searched in vain for legal authority or cogent
reasons to justify this importation made admittedly contrary to the provisions of Republic Acts Nos.
2207 and 3452. I say admittedly, because respondents never as much as pretended that the
importation fulfills the conditions specified in these laws, but limited themselves to the contention,
which is their sole defense that this importation does not fall within the scope of said laws. In our
view, however, the laws are clear. The laws are comprehensive and their application does not admit
of any exception. The laws are adequate. Compliance therewith is not difficult, much less
impossible. The avowed emergency, if at all, is not urgently immediate.

In this connection, it is pertinent to bear in mind that the Supreme Court has a duty to perform under
the Constitution. It has to decide, when called upon to do so in an appropriate proceeding, all cases
in which the constitutionality or validity of any treaty, law, ordinance, executive order or regulation is
in question. We can not elude this duty. To do so would be culpable dereliction on our part. While we
sympathize with the public that might be adversely affected as a result of this decision yet our
sympathy does not authorize us to sanction an act contrary to applicable laws. The fault lies with
those who stubbornly contended and represented before this Court that there is no rice shortage,
that the imported rice is not intended for the consuming public, but for stockpiling of the army. And, if
as now claimed before the public, contrary to the Government's stand in this case, that there is need
for imported rice to stave off hunger, our legislature has provided for such a situation. As already
stated, the laws are adequate. The importation of rice under the conditions set forth in the laws may
be authorized not only where there is an existing shortage, but also when the shortage is imminent.
In other words, lawful remedy to solve the situation is available, if only those who have the duty to
execute the laws perform their duty. If there is really need for the importation of rice, who adopt
some dubious means which necessitates resort to doubtful exercise of the power of the President as
Commander-in-Chief of the Army? Why not comply with the mandate of the law? Ours is supposed
to be a regime under the rule of law. Adoption as a government policy of the theory of the end
justifies the means brushing aside constitutional and legal restraints, must be rejected, lest we end
up with the end of freedom.

For these reasons, I concur in the decision of the Court.

Separate Opinions

Footnotes

1 The Secretary of National Defense, the Auditor General, the Secretary of Commerce and
Industry, and the Secretary Justice.

2 275 hectares.

3 Tapales vs. The President and the Board of Regents of the U.P., L-17523, March 30, 1963.

4Mangubat vs. Osmeña, L-12837, April 30, 1959; Baguio vs. Hon. Jose Rodriguez, L-11078,
May 27, 1959; Pascual Provincial Board, L-11959, October 31, 1959.
5 Marinduque Iron Mines Agents, Inc. vs. Secretary of Public Works, L-15982, May 31, 1963.

6 In the present case, respondents allege in their answer that "the importation ... in question
... is authorized by the President.

7Alzate vs. Aldaba, L-14407, February 29, 1960; Demaisip vs. Court of Appeals, L-13000,
September 25, 1959.

8 Which provides that the national defense policy of the Philippines shall be follows:

(a) The preservation of the state is the obligation of every citizen. The security of the
Philippines and the freedom, independence and perpetual neutrality of the Philippine
Republic shall be guaranteed by the employment of all citizens, without distinction of
sex or age, and all resources.

(b) The employment of the nation's citizens and resources for national defense shall
be effected by a national mobilization.

(c) The national mobilization shall include the execution of all measures necessary to
pass from a peace to a war footing.

(d) The civil authority shall always be supreme. The President of the Philippines as
the Commander-in-Chief of all military forces, shall be responsible that mobilization
measures are prepared at all times.

xxx xxx xxx

9 In line with the provisions of paragraphs b), c), e), and f) of section 2 of said Act.

10 The Constitution and What It Means Today, pp. 95-96.

11The Power of the President as Commander-in-Chief is primarily that of military

command in wartime, and as such includes, as against the persons and property
of enemies of the United States encountered within the theater of military operations, all the
powers allowed a military commander in such cases by the Law of Nations. President
Lincoln's famous Proclamation of Emancipation rested upon this ground. It was effective
within the theater of military operations while the war lasted, but no longer. (p. 93, Emphasis
supplied.)

12From an early date the Commander-in-Chief power came to be merged with the
President's duty to take care that the laws be faithfully executed. So, while in using military
force against unlawful combinations too strong to be dealt with through the ordinary
processes of law the President acts by authorization of statute, his powers are still those of
Commander-in-Chief. ...

Under "preventive martial law", so-called because it authorizes "preventive" arrests and
detentions, the military acts as an adjunct of the civil authorities but not necessarily subject to
their orders. It may be established whenever the executive organ, State or national, deems it
to be necessary for the restoration of good order. The concept, being of judicial origin, is of
course for judicial application, and ultimately for application by the Supreme Court, in
 enforcement of the due process clauses. (See, also, Section III of this Article, and Article IV,
Section IV.) (Pp. 95-96, Emphasis supplied.)

EN BANC

June 23, 1987

G.R. No. L-69401

RIZAL ALIH, NASIM ALIH, AISAN ALIH, MIJAL ALIH, OMAR ALIH, EDRIS MUKSAN, MULSIDI
WARADIL, BILLY ASMAD RAMSID ASALI, BANDING USMAN, ANGGANG HADANI,
WARMIKHAN HAPA, GABRAL JIKIRI, ALLAN TAN, MUJAHIRIN MARAJUKI, KENNEDY
GONZALES, URDUJA ALIH, MERLA ALIH, and NURAISA ALIH VDA DE
FEROLINO, petitioners,
vs.
MAJOR GENERAL DELFIN C. CASTRO, IN HIS CAPACITY AS COMMANDER SOUTHCOM AND
REGIONAL UNIFIED COMMAND, REGION IX, ZAMBOANGA CITY, COLONEL ERNESTO
CALUPIG, IN HIS CAPACITY AS COMMANDING OFFICER OF THE SPECIAL FORCES GROUP
(AIRBORNE) AND INTERNAL DEFENSE COMMAND, OTHERWISE KNOWN AS IdC MAJOR
ARNOLD BLANCO IN HIS CAPACITY AS COMMANDING OFFICER OF THE PHILIPPINE
MARINES AND 1ST LIEUTENANT DARWIN GUERRA IN HIS CAPACITY AS ACTS
SUPERVISOR, INTERNAL DEFENSE COMMAND, ARMED FORCES OF THE
PHILIPPINES, respondents.

CRUZ, J.:

On November 25, 1984, a contingent of more than two hundred Philippine marines and elements of
the home defense forces raided the compound occupied by the petitioners at Gov. Alvarez street,
Zamboanga City, in search of loose firearms, ammunition and other explosives. 1

The military operation was commonly known and dreaded as a "zona," which was not unlike the
feared practice of the kempeitai during the Japanese Occupation of rounding up the people in a
locality, arresting the persons fingered by a hooded informer, and executing them outright (although
the last part is not included in the modern refinement).

The initial reaction of the people inside the compound was to resist the invasion with a burst of
gunfire. No one was hurt as presumably the purpose was merely to warn the intruders and deter
them from entering. Unfortunately, as might be expected in incidents like this, the situation
aggravated soon enough. The soldiers returned fire and a bloody shoot-out ensued, resulting in a
number of casualties. 2

The besieged compound surrendered the following morning, and sixteen male occupants were
arrested, later to be finger-printed, paraffin-tested and photographed over their objection. The
military also inventoried and confiscated nine M16 rifles, one M14 rifle, nine rifle grenades, and
several rounds of ammunition found in the premises. 3

On December 21, 1984, the petitioners came to this Court in a petition for prohibition
and mandamus with preliminary injunction and restraining order. Their purpose was to recover the
articles seized from them, to prevent these from being used as evidence against them, and to
challenge their finger-printing, photographing and paraffin-testing as violative of their right against
self-incrimination.4

The Court, treating the petition as an injunction suit with a prayer for the return of the articles alleged
to have been illegally seized, referred it for hearing to Judge Omar U. Amin of the regional trial court,
Zamboanga City. 5 After receiving the testimonial and documentary evidence of the parties, he
submitted the report and recommendations on which this opinion is based. 6

The petitioners demand the return of the arms and ammunition on the ground that they were taken
without a search warrant as required by the Bill of Rights. This is confirmed by the said report and in
fact admitted by the respondents, "but with avoidance. 7

Article IV, Section 3, of the 1973 Constitution, which was in force at the time of the incident in
question, provided as follows:

Sec. 3. The right of the people to be secure in their persons, houses, papers, and effects
against unreasonable searches and seizures of whatever nature and for any purpose shall
not be violated, and no search warrant or warrant of arrest shall issue except upon probable
cause to be determined by the judge, or such other responsible officer as may be authorized
by law, after examination under oath or affirmation of the complainant and the witnesses he
may produce, and particularly describing the place to be searched, and the persons or things
to be seized.

It was also declared in Article IV, Section 4(2) that-

Sec. 4(2) Any evidence obtained in violation of this or the preceding section shall be
inadmissible for any purpose in any proceeding.

The respondents, while admitting the absence of the required such warrant, sought to justify their act
on the ground that they were acting under superior orders. 8 There was also the suggestion that the
measure was necessary because of the aggravation of the peace and order problem generated by
the assassination of Mayor Cesar Climaco. 9

Superior orders" cannot, of course, countermand the Constitution. The fact that the
petitioners were suspected of the Climaco killing did not excuse the constitutional short-cuts
the respondents took. As eloquently affirmed by the U.S. Supreme Court in Ex parte
Milligan: 10

The Constitution is a law for rulers and people, equally in war and in peace, and covers with
the shield of its protection all classes of men, at all times and under all circumstances. No
doctrine, involving more pernicious consequences, was ever invented by the wit of man than
that any of its provisions can be suspended during any of the great exigencies of
government.
The precarious state of lawlessness in Zamboanga City at the time in question certainly did not
excuse the non-observance of the constitutional guaranty against unreasonable searches and
seizures. There was no state of hostilities in the area to justify, assuming it could, the repressions
committed therein against the petitioners.

It is so easy to say that the petitioners were outlaws and deserved the arbitrary treatment they
received to take them into custody; but that is a criminal argument. It is also fallacious. Its obvious
flaw lies in the conclusion that the petitioners were unquestionably guilty on the strength alone of
unsubstantiated reports that they were stockpiling weapons.

The record does not disclose that the petitioners were wanted criminals or fugitives from justice. At
the time of the "zona," they were merely suspected of the mayor's slaying and had not in fact even
been investigated for it. As mere suspects, they were presumed innocent and not guilty as
summarily pronounced by the military.

Indeed, even if were assumed for the sake of argument that they were guilty, they would not have
been any less entitled to the protection of the Constitution, which covers both the innocent and the
guilty. This is not to say, of course, that the Constitution coddles criminals. What it does simply
signify is that, lacking the shield of innocence, the guilty need the armor of the Constitution, to
protect them, not from a deserved sentence, but from arbitrary punishment. Every person is entitled
to due process. It is no exaggeration that the basest criminal, ranged against the rest of the people
who would condemn him outright, is still, under the Bill of Rights, a majority of one.

If the respondents did not actually disdain the Constitution when they made their illegal raid, they
certainly gave every appearance of doing so. This is truly regrettable for it was incumbent on them,
especially during those tense and tindery times, to encourage rather than undermine respect for the
law, which it was their duty to uphold.

In acting as they did, they also defied the precept that "civilian authority is at all times supreme over
the military" so clearly proclaimed in the 1973 Constitution. 11 In the instant case, the respondents
simply by-passed the civil courts, which had the authority to determine whether or not there was
probable cause to search the petitioner's premises. Instead, they proceeded to make the raid without
a search warrant on their own unauthorized determination of the petitioner's guilt.

The respondents cannot even plead the urgency of the raid because it was in fact not urgent. They
knew where the petitioners were. They had every opportunity to get a search warrant before making
the raid. If they were worried that the weapons inside the compound would be spirited away, they
could have surrounded the premises in the meantime, as a preventive measure. There was
absolutely no reason at all why they should disregard the orderly processes required by the
Constitution and instead insist on arbitrarily forcing their way into the petitioner's premises with all
the menace of a military invasion.

Conceding that the search was truly warrantless, might not the search and seizure be nonetheless
considered valid because it was incidental to a legal arrest? Surely not. If all the law enforcement
authorities have to do is force their way into any house and then pick up anything they see there on
the ground that the occupants are resisting arrest, then we might as well delete the Bill of Rights as
a fussy redundancy.

When the respondents could have easily obtained a search warrant from any of the TEN civil courts
then open and functioning in Zamboanga City, 12 they instead simply barged into the beleaguered
premises on the verbal order of their superior officers. One cannot just force his way into any man's
house on the illegal orders of a superior, however lofty his rank. Indeed, even the humblest hovel is
protected from official intrusion because of the ancient rule, revered in all free regimes, that a man's
house is his castle.

It may be frail; its roof may shake; the wind may enter; the rain may enter. But the King of
England may not enter. All the forces of the Crown dare not cross the threshold of the ruined
tenement. 13

If the arrest was made under Rule 113, Section 5, of the Rules of Court in connection with a crime
about to be committed, being committed, or just committed, what was that crime? There is no
allegation in the record of such a justification. Parenthetically, it may be observed that under the
Revised Rule 113, Section 5(b), the officer making the arrest must have personal knowledge of the
ground therefor as stressed in the recent case of People v. Burgos.14

If follows that as the search of the petitioners' premises was violative of the Constitution, all the
firearms and ammunition taken from the raided compound are inadmissible in evidence in any of the
proceedings against the petitioners. These articles are "fruits of the poisonous tree. 15 As Judge
Learned Hand observed, "Only in case the prosecution which itself controls the seizing officials,
knows that it cannot profit by their wrong, will the wrong be repressed. 16 Pending determination of
the legality of such articles, however, they shall remain in custodia legis, subject to such appropriate
disposition as the corresponding courts may decide. 17

The objection to the photographing, fingerprinting and paraffin-testing of the petitioners deserves
slight comment. The prohibition against self-incrimination applies to testimonial compulsion only. As
Justice Holmes put it in Holt v. United States, 18 "The prohibition of compelling a man in a criminal
court to be a witness against himself is a prohibition of the use of physical or moral compulsion to
extort communications from him, not an exclusion of his body as evidence when it may be material."

The fearful days of hamleting salvaging, "zona" and other dreaded operations should remain in the
past, banished with the secret marshals and their covert license to kill without trial. We must be done
with lawlessness in the name of law enforcement. Those who are supposed to uphold the law must
not be the first to violate it. As Chief Justice Claudio Teehankee stressed in his concurring opinion
in Lacanilao v. De Leon, 19 "It is time that the martial law regime's legacy of the law of force be
discarded and that there be a return to the force and rule of law."

All of us must exert efforts to make our country truly free and democratic, where every individual is
entitled to the full protection of the Constitution and the Bill of Rights can stand as a stolid sentinel
for all, the innocent as well as the guilty, including the basest of criminals.

WHEREFORE, the search of the petitioners' premises on November 25, 1984, is hereby declared
ILLEGAL and all the articles seized as a result thereof are inadmissible in evidence against the
petitioners in any proceedings. However, the said articles shall remain in custodia legis pending the
outcome of the criminal cases that have been or may later be filed against the petitioners.

SO ORDERED.

Teehankee, C.J., Yap, Fernan, Narvasa, Melencio-Herrera, Gutierrez, Jr., Paras, Feliciano,
Gancayco, Padilla, Bidin, Sarmiento and Cortes, JJ., concur.
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-45892 July 13, 1938

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
TRANQUILINO LAGMAN, defendant-appellant.

-----------------------------

G.R. No. L-45893 July 13, 1938

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
PRIMITIVO DE SOSA, defendant-appellant.

Severino P. Izon for appellants.

Office of the Solicitor-General Tuason for appellee.

AVANCEÑA, J.:

In these two cases (G.R. Nos. L-45892 and 45893), the appellants Tranquilino and Primitivo de
Sosa are charged with a violation of section 60 of Commonwealth Act No. 1, known as the National
Defense Law. It is alleged that these two appellants, being Filipinos and having reached the age of
twenty years in 1936, willfully and unlawfully refused to register in the military service between the
1st and 7th of April of said year, notwithstanding the fact that they had been required to do so. The
evidence shows that these two appellants were duly notified by the corresponding authorities to
appear before the Acceptance Board in order to register for military service in accordance with law,
and that the said appellants, in spite of these notices, had not registered up to the date of the filing of
the information.

The appellants do not deny these facts, but they allege in defense that they have not registered in
the military service because Primitivo de Sosa is fatherless and has a mother and a brother eight
years old to support, and Tranquilino Lagman also has a father to support, has no military learnings,
and does not wish to kill or be killed.

Each of these appellants was sentenced by the Court of First Instance to one month and one day of
imprisonment, with the costs.

In this instance, the validity of the National Defense Law, under which the accused were sentenced,
is impugned on the ground that it is unconstitutional. Section 2, Article II of the Constitution of the
Philippines provides as follows:

SEC. 2. The defense of the state is a prime duty of government, and in the fulfillment of this
duty all citizens may be required by law to render personal military or civil service.
The National Defense Law, in so far as it establishes compulsory military service, does not go
against this constitutional provision but is, on the contrary, in faithful compliance therewith. The duty
of the Government to defend the State cannot be performed except through an army. To leave the
organization of an army to the will of the citizens would be to make this duty of the Government
excusable should there be no sufficient men who volunteer to enlist therein. 1ªvvphïl.nët

In the United States the courts have held in a series of decisions that the compulsory military service
adopted by reason of the civil war and the world war does not violate the Constitution, because the
power to establish it is derived from that granted to Congress to declare war and to organize and
maintain an army. This is so because the right of the Government to require compulsory military
service is a consequence of its duty to defend the State and is reciprocal with its duty to defend the
life, liberty, and property of the citizen. In the case of Jacobson vs. Massachusetts (197 U.S., 11; 25
Sup. Ct. Rep., 385), it was said that, without violating the Constitution, a person may be compelled
by force, if need be, against his will, against his pecuniary interests, and even against his religious or
political convictions, to take his place in the ranks of the army of his country, and risk the chance of
being shot down in its defense. In the case of United States vs. Olson (253 Fed., 233), it was also
said that this is not deprivation of property without due process of law, because, in its just sense,
there is no right of property to an office or employment.

The circumstance that these decisions refer to laws enacted by reason on the actual existence of
war does not make our case any different, inasmuch as, in the last analysis, what justifies
compulsory military service is the defense of the State, whether actual or whether in preparation to
make it more effective, in case of need. The circumstance that the appellants have dependent
families to support does not excuse them from their duty to present themselves before the
Acceptance Board because, if such circumstance exists, they can ask for determent in complying
with their duty and, at all events, they can obtain the proper pecuniary allowance to attend to these
family responsibilities (secs. 65 and 69 of Commonwealth Act No. 1).

The appealed judgment rendered in these two cases is affirmed, with the costs to the appellants. So
ordered.

Villa-Real, Imperial, Diaz, Laurel and Concepcion, JJ., concur.

Brief Fact Summary. The Petitioner, Everson (Petitioner), in his status as a taxpayer, filed suit
challenging the ability of the Respondent, Board of Education (Respondent), to reimburse funds
to parents of parochial school students for the transportation of their children to and from school.

Synopsis of Rule of Law. This case stands for the proposition that, while no law respecting an
establishment of religion will stand under the United States Constitution (Constitution), neutral
laws, which afford benefits to children will be upheld.

Facts. The Petitioner in his status as a taxpayer filed suit challenging the ability of the
Respondent to reimburse funds to parents of parochial school students for the transportation of
their children to and from school. The Petitioner brought suit alleging that the New Jersey
reimbursement statute respects the establishment of religion, by allowing the parents of
parochial school students to benefit from the reimbursement scheme. The New Jersey Court of
Appeals held that the statute did not violate the Constitution and the Supreme Court of the
United States (Supreme Court) granted certiorari to consider the issue.

Issue. This case considers whether the parents of parochial school children can benefit from
the same services afforded to the parents of public school children.

United States Supreme Court

ENGEL v. VITALE, (1962)
No. 468
Argued: April 3, 1962 Decided: June 25, 1962
Because of the prohibition of the First Amendment against the enactment of any law "respecting an
establishment of religion," which is made applicable to the States by the Fourteenth Amendment, state
officials may not compose an official state prayer and require that it be recited in the public schools of the
State at the beginning of each school day - even if the prayer is denominationally neutral and pupils who
wish to do so may remain silent or be excused from the room while the prayer is being recited. Pp. 422-
436.

10 N. Y. 2d 174, 176 N. E. 2d 579, reversed.

William J. Butler argued the cause for petitioners. With him on the briefs was Stanley Geller.

Bertram B. Daiker argued the cause for respondents. With him on the briefs was Wilford E. Neier.

Porter R. Chandler argued the cause for intervenors-respondents. With him on the briefs were Thomas J.
Ford and Richard E. Nolan.

Charles A. Brind filed a brief for the Board of Regents of the University of the State of New York, as
amicus curiae, in opposition to the petition for certiorari.

Briefs of amici curiae, urging reversal, were filed by Herbert A. Wolff, Leo Rosen and Nancy Wechsler for
the American Ethical Union; Louis Caplan, Edwin J. Lukas, Paul Hartman, Theodore Leskes and Sol
Rabkin for the American Jewish Committee et al.; and Leo Pfeffer, Lewis H. Weinstein, Albert Wald, Shad
Polier and Samuel Lawrence Brennglass for the Synagogue Council of America et al.

A brief of amici curiae, urging affirmance, was filed by Roger D. Foley, Attorney General of Nevada,
Robert[370 U.S. 421, 422] Pickrell, Attorney General of Arizona, Frank Holt, Attorney General of
Arkansas, Albert L. Coles, Attorney General of Connecticut, Richard W. Ervin, Attorney General of
Florida, Eugene Cook, Attorney General of Georgia, Frank Benson, Attorney General of Idaho, Edwin K.
Steers, Attorney General of Indiana, William M. Ferguson, Attorney General of Kansas, Jack P. F.
Gremillion, Attorney General of Louisiana, Thomas B. Finan, Attorney General of Maryland, Joe T.
Patterson, Attorney General of Mississippi, William Maynard, Attorney General of New Hampshire,
Arthur J. Sills, Attorney General of New Jersey, Earl E. Hartley, Attorney General of New Mexico, Leslie
R. Burgum, Attorney General of North Dakota, David Stahl, Attorney General of Pennsylvania, J. Joseph
Nugent, Attorney General of Rhode Island, Daniel R. McLeod, Attorney General of South Carolina, A. C.
Miller, Attorney General of South Dakota, Will Wilson, Attorney General of Texas, and C. Donald
Robertson, Attorney General of West Virginia.

MR. JUSTICE BLACK delivered the opinion of the Court.

The respondent Board of Education of Union Free School District No. 9, New Hyde Park, New York,
acting in its official capacity under state law, directed the School District's principal to cause the following
prayer to be said aloud by each class in the presence of a teacher at the beginning of each school day:

"Almighty God, we acknowledge our dependence upon Thee, and we beg Thy blessings upon us, our
parents, our teachers and our Country."
This daily procedure was adopted on the recommendation of the State Board of Regents, a governmental
agency created by the State Constitution to which the New York Legislature has granted broad
supervisory, executive, and [370 U.S. 421, 423] legislative powers over the State's public school
system. 1 These state officials composed the prayer which they recommended and published as a part of
their "Statement on Moral and Spiritual Training in the Schools," saying: "We believe that this Statement
will be subscribed to by all men and women of good will, and we call upon all of them to aid in giving life
to our program."
Shortly after the practice of reciting the Regents' prayer was adopted by the School District, the parents of
ten pupils brought this action in a New York State Court insisting that use of this official prayer in the
public schools was contrary to the beliefs, religions, or religious practices of both themselves and their
children. Among other things, these parents challenged the constitutionality of both the state law
authorizing the School District to direct the use of prayer in public schools and the School District's
regulation ordering the recitation of this particular prayer on the ground that these actions of official
governmental agencies violate that part of the First Amendment of the Federal Constitution which
commands that "Congress shall make no law respecting an establishment of religion" - a command which
was "made applicable to the State of New York by the Fourteenth Amendment of the said Constitution."
The New York Court of Appeals, over the dissents of Judges Dye and Fuld, sustained an order of the lower
state courts which had upheld the power of New York to use the Regents' prayer as a part of the daily
procedures of its public schools so long as the schools did not compel any pupil to join in the prayer over
his or his parents' objection. 2 [370 U.S. 421, 424] We granted certiorari to review this important
decision involving rights protected by the First and Fourteenth Amendments. 3

We think that by using its public school system to encourage recitation of the Regents' prayer, the State of
New York has adopted a practice wholly inconsistent with the Establishment Clause. There can, of course,
be no doubt that New York's program of daily classroom invocation of God's blessings as prescribed in the
Regents' prayer is a religious activity. It is a solemn avowal of divine faith and supplication for the
blessings of the Almighty. The nature of such a prayer has always been [370 U.S. 421, 425] religious,
none of the respondents has denied this and the trial court expressly so found:

"The religious nature of prayer was recognized by Jefferson and has been concurred in by theological
writers, the United States Supreme Court and State courts and administrative officials, including New
York's Commissioner of Education. A committee of the New York Legislature has agreed.
"The Board of Regents as amicus curiae, the respondents and intervenors all concede the religious nature
of prayer, but seek to distinguish this prayer because it is based on our spiritual heritage. . . ." 4
The petitioners contend among other things that the state laws requiring or permitting use of the Regents'
prayer must be struck down as a violation of the Establishment Clause because that prayer was composed
by governmental officials as a part of a governmental program to further religious beliefs. For this reason,
petitioners argue, the State's use of the Regents' prayer in its public school system breaches the
constitutional wall of separation between Church and State. We agree with that contention since we think
that the constitutional prohibition against laws respecting an establishment of religion must at least mean
that in this country it is no part of the business of government to compose official prayers for any group of
the American people to recite as a part of a religious program carried on by government.
It is a matter of history that this very practice of establishing governmentally composed prayers for
religious services was one of the reasons which caused many of our early colonists to leave England and
seek religious freedom in America. The Book of Common Prayer, [370 U.S. 421, 426] which was created
under governmental direction and which was approved by Acts of Parliament in 1548 and 1549, 5 set out
in minute detail the accepted form and content of prayer and other religious ceremonies to be used in the
established, tax-supported Church of England. 6 The controversies over the Book and what should be its
content repeatedly threatened to disrupt the peace of that country as the accepted forms of prayer in the
established church changed with the views of the particular ruler that happened to be in control at the
time. 7 Powerful groups representing some of the varying religious views of the people struggled among
themselves to impress their particular views upon the Government and [370 U.S. 421, 427] obtain
amendments of the Book more suitable to their respective notions of how religious services should be
conducted in order that the official religious establishment would advance their particular religious
beliefs. 8 Other groups, lacking the necessary political power to influence the Government on the matter,
decided to leave England and its established church and seek freedom in America from England's
governmentally ordained and supported religion.

It is an unfortunate fact of history that when some of the very groups which had most strenuously
opposed the established Church of England found themselves sufficiently in control of colonial
governments in this country to write their own prayers into law, they passed laws making their own
religion the official religion of their respective colonies. 9 Indeed, as late as the time of the
Revolutionary [370 U.S. 421, 428] War, there were established churches in at least eight of the thirteen
former colonies and established religions in at least four of the other five. 10 But the successful Revolution
against English political domination was shortly followed by intense opposition to the practice of
establishing religion by law. This opposition crystallized rapidly into an effective political force in Virginia
where the minority religious groups such as Presbyterians, Lutherans, Quakers and Baptists had gained
such strength that the adherents to the established Episcopal Church were actually a minority themselves.
In 1785-1786, those opposed to the established Church, led by James Madison and Thomas Jefferson,
who, though themselves not members of any of these dissenting religious groups, opposed all religious
establishments by law on grounds of principle, obtained the enactment of the famous "Virginia Bill for
Religious Liberty" by which all religious groups were placed on an equal footing so far as the State was
concerned. 11 Similar though less far-reaching [370 U.S. 421, 429] legislation was being considered and
passed in other States. 12

By the time of the adoption of the Constitution, our history shows that there was a widespread awareness
among many Americans of the dangers of a union of Church and State. These people knew, some of them
from bitter personal experience, that one of the greatest dangers to the freedom of the individual to
worship in his own way lay in the Government's placing its official stamp of approval upon one particular
kind of prayer or one particular form of religious services. They knew the anguish, hardship and bitter
strife that could come when zealous religious groups struggled with one another to obtain the
Government's stamp of approval from each King, Queen, or Protector that came to temporary power. The
Constitution was intended to avert a part of this danger by leaving the government of this country in the
hands of the people rather than in the hands of any monarch. But this safeguard was not enough. Our
Founders were no more willing to let the content of their prayers and their privilege of praying whenever
they pleased be influenced by the ballot box than they were to let these vital matters of personal
conscience depend upon the succession of monarchs. The First Amendment was added to the
Constitution to stand as a guarantee that neither the power nor the prestige of the Federal Government
would be used to control, support or influence the kinds of prayer the American people can say -[370 U.S.
421, 430] that the people's religious must not be subjected to the pressures of government for change
each time a new political administration is elected to office. Under that Amendment's prohibition against
governmental establishment of religion, as reinforced by the provisions of the Fourteenth Amendment,
government in this country, be it state or federal, is without power to prescribe by law any particular form
of prayer which is to be used as an official prayer in carrying on any program of governmentally sponsored
religious activity.

There can be no doubt that New York's state prayer program officially establishes the religious beliefs
embodied in the Regents' prayer. The respondents' argument to the contrary, which is largely based upon
the contention that the Regents' prayer is "non-denominational" and the fact that the program, as
modified and approved by state courts, does not require all pupils to recite the prayer but permits those
who wish to do so to remain silent or be excused from the room, ignores the essential nature of the
program's constitutional defects. Neither the fact that the prayer may be denominationally neutral nor the
fact that its observance on the part of the students is voluntary can serve to free it from the limitations of
the Establishment Clause, as it might from the Free Exercise Clause, of the First Amendment, both of
which are operative against the States by virtue of the Fourteenth Amendment. Although these two
clauses may in certain instances overlap, they forbid two quite different kinds of governmental
encroachment upon religious freedom. The Establishment Clause, unlike the Free Exercise Clause, does
not depend upon any showing of direct governmental compulsion and is violated by the enactment of laws
which establish an official religion whether those laws operate directly to coerce nonobserving individuals
or not. This is not to say, of course, that [370 U.S. 421, 431] laws officially prescribing a particular form of
religious worship do not involve coercion of such individuals. When the power, prestige and financial
support of government is placed behind a particular religious belief, the indirect coercive pressure upon
religious minorities to conform to the prevailing officially approved religion is plain. But the purposes
underlying the Establishment Clause go much further than that. Its first and most immediate purpose
rested on the belief that a union of government and religion tends to destroy government and to degrade
religion. The history of governmentally established religion, both in England and in this country, showed
that whenever government had allied itself with one particular form of religion, the inevitable result had
been that it had incurred the hatred, disrespect and even contempt of those who held contrary
beliefs. 13That same history showed that many people had lost their respect for any religion that had
relied upon the support of government to spread its faith. 14 The Establishment Clause [370 U.S. 421,
432] thus stands as an expression of principle on the part of the Founders of our Constitution that
religion is too personal, too sacred, too holy, to permit its "unhallowed perversion" by a civil
magistrate. 15 Another purpose of the Establishment Clause rested upon an awareness of the historical
fact that governmentally established religions and religious persecutions go hand in hand. 16 The
Founders knew that only a few years after the Book of Common Prayer became the only accepted form of
religious services in the established Church of England, an Act of Uniformity was passed to compel all
Englishmen to attend those services and to make it a criminal offense to conduct or attend religious
gatherings of any other kind 17 - a law [370 U.S. 421, 433] which was consistently flouted by dissenting
religious groups in England and which contributed to widespread persecutions of people like John
Bunyan who persisted in holding "unlawful [religious] meetings . . . to the great disturbance and
distraction of the good subjects of this kingdom . . . ." 18 And they knew that similar persecutions had
received the sanction of law in several of the colonies in this country soon after the establishment of
official religions in those colonies. 19 It was in large part to get completely away from this sort of
systematic religious persecution that the Founders brought into being our Nation, our Constitution, and
our Bill of Rights with its prohibition against any governmental establishment of religion. The New York
laws officially prescribing the Regents' prayer are inconsistent both with the purposes of the
Establishment Clause and with the Establishment Clause itself.

It has been argued that to apply the Constitution in such a way as to prohibit state laws respecting an [370
U.S. 421, 434] establishment of religious services in public schools is to indicate a hostility toward
religion or toward prayer. Nothing, of course, could be more wrong. The history of man is inseparable
from the history of religion. And perhaps it is not too much to say that since the beginning of that history
many people have devoutly believed that "More things are wrought by prayer than this world dreams of."
It was doubtless largely due to men who believed this that there grew up a sentiment that caused men to
leave the cross-currents of officially established state religions and religious persecution in Europe and
come to this country filled with the hope that they could find a place in which they could pray when they
pleased to the God of their faith in the language they chose. 20 And there were men of this same faith in
the [370 U.S. 421, 435] power of prayer who led the fight for adoption of our Constitution and also for
our Bill of Rights with the very guarantees of religious freedom that forbid the sort of governmental
activity which New York has attempted here. These men knew that the First Amendment, which tried to
put an end to governmental control of religion and of prayer, was not written to destroy either. They knew
rather that it was written to quiet well-justified fears which nearly all of them felt arising out of an
awareness that governments of the past had shackled men's tongues to make them speak only the
religious thoughts that government wanted them to speak and to pray only to the God that government
wanted them to pray to. It is neither sacrilegious nor antireligious to say that each separate government in
this country should stay out of the business of writing or sanctioning official prayers and leave that purely
religious function to the people themselves and to those the people choose to look to for religious
guidance. 21 [370 U.S. 421, 436]

It is true that New York's establishment of its Regents' prayer as an officially approved religious doctrine
of that State does not amount to a total establishment of one particular religious sect to the exclusion of all
others - that, indeed, the governmental endorsement of that prayer seems relatively insignificant when
compared to the governmental encroachments upon religion which were commonplace 200 years ago. To
those who may subscribe to the view that because the Regents' official prayer is so brief and general there
can be no danger to religious freedom in its governmental establishment, however, it may be appropriate
to say in the words of James Madison, the author of the First Amendment:

"[I]t is proper to take alarm at the first experiment on our liberties. . . . Who does not see that the same
authority which can establish Christianity, in exclusion of all other Religions, may establish with the same
ease any particular sect of Christians, in exclusion of all other Sects? That the same authority which can
force a citizen to contribute three pence only of his property for the support of any one establishment, may
force him to conform to any other establishment in all cases whatsoever?" 22
The judgment of the Court of Appeals of New York is reversed and the cause remanded for further
proceedings not inconsistent with this opinion.
Reversed and remanded.
MR. JUSTICE FRANKFURTER took no part in the decision of this case.
MR. JUSTICE WHITE took no part in the consideration or decision of this case.

Footnotes
[ Footnote 1 ] See New York Constitution, Art. V, 4; New York Education Law, 101, 120 et seq., 202, 214-
219, 224, 245 et seq., 704, and 801 et seq.
[ Footnote 2 ] 10 N. Y. 2d 174, 176 N. E. 2d 579. The trial court's opinion, which is reported at 18 Misc. 2d
659, 191 N. Y. S. 2d 453, had made it clear that the Board of Education must set up some sort [370 U.S.
421, 424] of procedures to protect those who objected to reciting the prayer: "This is not to say that the
rights accorded petitioners and their children under the `free exercise' clause do not mandate safeguards
against such embarrassments and pressures. It is enough on this score, however, that regulations, such as
were adopted by New York City's Board of Education in connection with its released time program, be
adopted, making clear that neither teachers nor any other school authority may comment on participation
or nonparticipation in the exercise nor suggest or require that any posture or language be used or dress be
worn or be not used or not worn. Nonparticipation may take the form either of remaining silent during
the exercise, or if the parent or child so desires, of being excused entirely from the exercise. Such
regulations must also make provision for those nonparticipants who are to be excused from the prayer
exercise. The exact provision to be made is a matter for decision by the board, rather than the court,
within the framework of constitutional requirements. Within that framework would fall a provision that
prayer participants proceed to a common assembly while nonparticipants attend other rooms, or that
nonparticipants be permitted to arrive at school a few minutes late or to attend separate opening
exercises, or any other method which treats with equality both participants and nonparticipants." 18 Misc.
2d, at 696, 191 N. Y. S. 2d, at 492-493. See also the opinion of the Appellate Division affirming that of the
trial court, reported at 11 App. Div. 2d 340, 206 N. Y. S. 2d 183.

[ Footnote 3 ] 368 U.S. 924 .

[ Footnote 4 ] 18 Misc. 2d, at 671-672, 191 N. Y. S. 2d, at 468-469.

[ Footnote 5 ] 2 & 3 Edward VI, c. 1, entitled "An Act for Uniformity of Service and Administration of the
Sacraments throughout the Realm"; 3 & 4 Edward VI, c. 10, entitled "An Act for the abolishing and
putting away of divers Books and Images."

[ Footnote 6 ] The provisions of the various versions of the Book of Common Prayer are set out in broad
outline in the Encyclopedia Britannica, Vol. 18 (1957 ed.), pp. 420-423. For a more complete description,
see Pullan, The History of the Book of Common Prayer (1900).

[ Footnote 7 ] The first major revision of the Book of Common Prayer was made in 1552 during the reign
of Edward VI. 5 & 6 Edward VI, c. 1. In 1553, Edward VI died and was succeeded by Mary who abolished
the Book of Common Prayer entirely. 1 Mary, c. 2. But upon the accession of Elizabeth in 1558, the Book
was restored with important alterations from the form it had been given by Edward VI. 1 Elizabeth, c. 2.
The resentment to this amended form of the Book was kept firmly under control during the reign of
Elizabeth but, upon her death in 1603, a petition signed by more than 1,000 Puritan ministers was
presented to King James I asking for further alterations in the Book. Some alterations were made and the
Book retained substantially this form until it was completely suppressed again in 1645 as a result of the
successful Puritan Revolution. Shortly after the restoration in 1660 of Charles II, the Book was again
reintroduced, 13 & 14 Charles II, c. 4, and again with alterations. Rather than accept this form of the Book
some 2,000 Puritan ministers vacated their benefices. See generally Pullan, The History of the Book of
Common Prayer (1900), pp. vii-xvi; Encyclopaedia Britannica (1957 ed.), Vol. 18, pp. 421-422.

[ Footnote 8 ] For example, the Puritans twice attempted to modify the Book of Common Prayer and once
attempted to destroy it. The story of their struggle to modify the Book in the reign of Charles I is vividly
summarized in Pullan, History of the Book of Common Prayer, at p. xiii: "The King actively supported
those members of the Church of England who were anxious to vindicate its Catholic character and
maintain the ceremonial which Elizabeth had approved. Laud, Archbishop of Canterbury, was the leader
of this school. Equally resolute in his opposition to the distinctive tenets of Rome and of Geneva, he
enjoyed the hatred of both Jesuit and Calvinist. He helped the Scottish bishops, who had made large
concessions to the uncouth habits of Presbyterian worship, to draw up a Book of Common Prayer for
Scotland. It contained a Communion Office resembling that of the book of 1549. It came into use in 1637,
and met with a bitter and barbarous opposition. The vigour of the Scottish Protestants strengthened the
hands of their English sympathisers. Laud and Charles were executed, Episcopacy was abolished, the use
of the Book of Common Prayer was prohibited."

[ Footnote 9 ] For a description of some of the laws enacted by early theocratic governments in New
England, see Parrington, Main Currents in American Thought (1930), Vol. 1, pp. 5-50; Whipple, Our
Ancient Liberties (1927), pp. 63-78; Wertenbaker, The Puritan Oligarchy (1947).

[ Footnote 10 ] The Church of England was the established church of at least five colonies: Maryland,
Virginia, North Carolina, South Carolina and Georgia. There seems to be some controversy as to whether
that church was officially established in New York and New Jersey but there is no doubt that it received
substantial support from those States. See Cobb, The Rise of Religious Liberty in America (1902), pp. 338,
408. In Massachusetts, New Hampshire and Connecticut, the Congregationalist Church was officially
established. In Pennsylvania and Delaware, all Christian sects were treated equally in most situations but
Catholics were discriminated against in some respects. See generally Cobb, The Rise of Religious Liberty
in America (1902). In Rhode Island all Protestants enjoyed equal privileges but it is not clear whether
Catholics were allowed to vote. Compare Fiske, The Critical Period in American History (1899), p. 76 with
Cobb, The Rise of Religious Liberty in America (1902), pp. 437-438.

[ Footnote 11 ] 12 Hening, Statutes of Virginia (1823), 84, entitled "An act for establishing religious
freedom." The story of the events surrounding the enactment of this law was reviewed in Everson v. Board
of Education,330 U.S. 1 , both by the Court, at pp. 11-13, and in the [370 U.S. 421, 429] dissenting
opinion of Mr. Justice Rutledge, at pp. 33-42. See also Fiske, The Critical Period in American History
(1899), pp. 78-82; James, The Struggle for Religious Liberty in Virginia (1900); Thom, The Struggle for
Religious Freedom in Virginia: The Baptists (1900); Cobb, The Rise of Religious Liberty in America
(1902), pp. 74-115, 482-499.

[ Footnote 12 ] See Cobb, The Rise of Religious Liberty in America (1902), pp. 482-509.

[ Footnote 13 ] "[A]ttempts to enforce by legal sanctions, acts obnoxious to so great a proportion of

Citizens, tend to enervate the laws in general, and to slacken the bands of Society. If it be difficult to
execute any law which is not generally deemed necessary or salutary, what must be the case where it is
deemed invalid and dangerous? and what may be the effect of so striking an example of impotency in the
Government, on its general authority." Memorial and Remonstrance against Religious Assessments, II
Writings of Madison 183, 190.

[ Footnote 14 ] "It is moreover to weaken in those who profess this Religion a pious confidence in its
innate excellence, and the patronage of its Author; and to foster in those who still reject it, a suspicion that
its friends are too conscious of its fallacies, to trust it to its own merits. . . . [E]xperience witnesseth that
ecclesiastical establishments, instead of maintaining the purity and efficacy of Religion, have had a
contrary operation. During almost fifteen centuries, has the legal establishment of Christianity been on
trial. What have been its fruits? More or less in all places, pride and indolence in the Clergy; ignorance
and servility in the laity; in both, superstition, [370 U.S. 421, 432] bigotry and persecution. Enquire of
the Teachers of Christianity for the ages in which it appeared in its greatest lustre; those of every sect,
point to the ages prior to its incorporation with Civil policy." Id., at 187.

[ Footnote 15 ] Memorial and Remonstrance against Religious Assessments, II Writings of Madison, at

187.

[ Footnote 16 ] "[T]he proposed establishment is a departure from that generous policy, which, offering an
asylum to the persecuted and oppressed of every Nation and Religion, promised a lustre to our country,
and an accession to the number of its citizens. What a melancholy mark is the Bill of sudden degeneracy?
Instead of holding forth an asylum to the persecuted, it is itself a signal of persecution. . . . Distant as it
may be, in its present form, from the Inquisition it differs from it only in degree. The one is the first step,
the other the last in the career of intolerance. The magnanimous sufferer under this cruel scourge in
foreign Regions, must view the Bill as a Beacon on our Coast, warning him to seek some other haven,
where liberty and philanthropy in their due extent may offer a more certain repose from his troubles." Id.,
at 188.

[ Footnote 17 ] 5 & 6 Edward VI, c. 1, entitled "An Act for the Uniformity of Service and Administration of
Sacraments throughout the Realm." This Act was repealed during the reign of Mary but revived upon the
accession of Elizabeth. See note 7, supra. The reasons which led to the enactment of this statute were set
out in its preamble: "Where there hath been a very godly Order set forth by the Authority of Parliament,
for Common Prayer and Administration of the Sacraments [370 U.S. 421, 433] to be used in the Mother
Tongue within the Church of England, agreeable to the Word of God and the Primitive Church, very
comfortable to all good People desiring to live in Christian Conversation, and most profitable to the Estate
of this Realm, upon the which the Mercy, Favour and Blessing of Almighty God is in no wise so readily
and plenteously poured as by Common Prayers, due using of the Sacraments, and often preaching of the
Gospel, with the Devotion of the Hearers: (1) And yet this notwithstanding, a great Number of People in
divers Parts of this Realm, following their own Sensuality, and living either without Knowledge or due
Fear of God, do wilfully and damnably before Almighty God abstain and refuse to come to their Parish
Churches and other Places where Common Prayer, Administration of the Sacraments, and Preaching of
the Word of God, is used upon Sundays and other Days ordained to be Holydays."

[ Footnote 18 ] Bunyan's own account of his trial is set forth in A Relation of the Imprisonment of Mr.
John Bunyan, reprinted in Grace Abounding and The Pilgrim's Progress (Brown ed. 1907), at 103-132.

[ Footnote 19 ] For a vivid account of some of these persecutions, see Wertenbaker, The Puritan Oligarchy
(1947).
[ Footnote 20 ] Perhaps the best example of the sort of men who came to this country for precisely that
reason is Roger Williams, the founder of Rhode Island, who has been described as "the truest Christian
amongst many who sincerely desired to be Christian." Parrington, Main Currents in American Thought
(1930), Vol. 1, at p. 74. Williams, who was one of the earliest exponents of the doctrine of separation of
church and state, believed that separation was necessary in order to protect the church from the danger of
destruction which he thought inevitably flowed from control by even the best-intentioned civil authorities:
"The unknowing zeale of Constantine and other Emperours, did more hurt to Christ Jesus his Crowne and
Kingdome, then the raging fury of the most bloody Neroes. In the persecutions of the later, Christians
were sweet and fragrant, like spice pounded and beaten in morters: But those good Emperours,
persecuting some erroneous persons, Arrius, & c. and advancing the professours of some Truths of Christ
(for there was no small number of Truths lost in those times) and maintaining their Religion by the
materiall Sword, I say by this meanes Christianity was ecclipsed, and the Professors of it fell asleep . . . ."
Williams, The Bloudy Tenent, of Persecution, for cause of Conscience, discussed in A Conference between
Truth and Peace (London, 1644), reprinted in Narragansett Club Publications, Vol. III, p. 184. To
Williams, it was no part of the business or competence of a civil magistrate to interfere in religious
matters: "[W]hat imprudence and indiscretion is it in the most common [370 U.S. 421, 435] affaires of
Life, to conceive that Emperours, Kings and Rulers of the earth must not only be qualified with politicall
and state abilities to make and execute such Civill Lawes which may concerne the common rights, peace
and safety (which is worke and businesse, load and burthen enough for the ablest shoulders in the
Commonweal) but also furnished with such Spirituall and heavenly abilities to governe the Spirituall and
Christian Commonweale . . . ." Id., at 366. See also id., at 136-137.

[ Footnote 21 ] There is of course nothing in the decision reached here that is inconsistent with the fact
that school children and others are officially encouraged to express love for our country by reciting
historical documents such as the Declaration of Independence which contain references to the Deity or by
singing officially espoused anthems which include the composer's professions of faith in a Supreme Being,
or with the fact that there are many manifestations in our public life of belief in God. Such patriotic or
ceremonial occasions bear no true resemblance to the unquestioned religious exercise that the State of
New York has sponsored in this instance.

[ Footnote 22 ] Memorial and Remonstrance against Religious Assessments, II Writings of Madison 183,
at 185-186. [370 U.S. 421, 437]

MR. JUSTICE DOUGLAS, concurring.

It is customary in deciding a constitutional question to treat it in its narrowest form. Yet at times the
setting of the question gives it a form and content which no abstract treatment could give. The point for
decision is whether the Government can constitutionally finance a religious exercise. Our system at the
federal and state levels is presently honeycombed with such financing. 1 Nevertheless, I think it is an
unconstitutional undertaking whatever form it takes.

First, a word as to what this case does not involve. [370 U.S. 421, 438]

Plainly, our Bill of Rights would not permit a State or the Federal Government to adopt an official prayer
and penalize anyone who would not utter it. This, however, is not that case, for there is no element of
compulsion or coercion in New York's regulation requiring that public schools be opened each day with
the following prayer:

"Almighty God, we acknowledge our dependence upon Thee, and we beg Thy blessings upon us, our
parents, our teachers and our Country."
The prayer is said upon the commencement of the school day, immediately following the pledge of
allegiance to the flag. The prayer is said aloud in the presence of a teacher, who either leads the recitation
or selects a student to do so. No student, however, is compelled to take part. The respondents have
adopted a regulation which provides that "Neither teachers nor any school authority shall comment on
participation or non-participation . . . nor suggest or request that any posture or language be used or dress
be worn or be not used or not worn." Provision is also made for excusing children, upon written request of
a parent or guardian, from the saying of the prayer or from the room in which the prayer is said. A letter
implementing and explaining this regulation has been sent to each taxpayer and parent in the school
district. As I read this regulation, a child is free to stand or not stand, to recite or not recite, without fear of
reprisal or even comment by the teacher or any other school official.
In short, the only one who need utter the prayer is the teacher; and no teacher is complaining of it.
Students can stand mute or even leave the classroom, if they desire. 2 [370 U.S. 421, 439]

McCollum v. Board of Education, 333 U.S. 203 , does not decide this case. It involved the use of public
school facilities for religious education of students. Students either had to attend religious instruction or
"go to some other place in the school building for pursuit of their secular studies. . . . Reports of their
presence or absence were to be made to their secular teachers." Id., at 209. The influence of the teaching
staff was therefore brought to bear on the student body, to support the instilling of religious principles. In
the present case, school facilities are used to say the prayer and the teaching staff is employed to lead the
pupils in it. There is, however, no effort at indoctrination and no attempt at exposition. Prayers of course
may be so long and of such a character as to amount to an attempt at the religious instruction that was
denied the public schools by the McCollum case. But New York's prayer is of a character that does not
involve any element of proselytizing as in the McCollum case.

The question presented by this case is therefore an extremely narrow one. It is whether New York
oversteps the bounds when it finances a religious exercise.

What New York does on the opening of its public schools is what we do when we open court. Our Crier has
from the beginning announced the convening of the Court and then added "God save the United States
and this Honorable Court." That utterance is a supplication, a prayer in which we, the judges, are free to
join, but which we need not recite any more than the students need recite the New York prayer.

What New York does on the opening of its public schools is what each House of Congress 3 does at the
opening[370 U.S. 421, 440] of each day's business. 4 Reverend Frederick B. Harris is Chaplain of the
Senate; Reverend Bernard Braskamp is Chaplain of the House. Guest chaplains of various denominations
also officiate.5 [370 U.S. 421, 441]

In New York the teacher who leads in prayer is on the public payroll; and the time she takes seems
minuscule as compared with the salaries appropriated by state legislatures and Congress for chaplains to
conduct prayers in the legislative halls. Only a bare fraction of the teacher's time is given to reciting this
short 22-word prayer, about the same amount of time that our Crier spends announcing the opening of
our sessions and offering a prayer for this Court. Yet for me the principle is the same, no matter how
briefly the prayer is said, for in each of the instances given the person praying is a public official on the
public payroll, performing a religious exercise in a governmental institution. 6 It is said that the [370 U.S.
421, 442] element of coercion is inherent in the giving of this prayer. If that is true here, it is also true of
the prayer with which this Court is convened, and of those that open the Congress. Few adults, let alone
children, would leave our courtroom or the Senate or the House while those prayers are being given.
Every such audience is in a sense a "captive" audience.

At the same time I cannot say that to authorize this prayer is to establish a religion in the strictly historic
meaning of those words. 7 A religion is not established in the usual sense merely by letting those who
choose to do so say the prayer that the public school teacher leads. Yet once government finances a
religious exercise it inserts a divisive influence into our communities. 8 The New York Court said that the
prayer given does not conform to all of the tenets of the Jewish, Unitarian, and Ethical Culture groups.
One of the petitioners is an agnostic.

"We are a religious people whose institutions presuppose a Supreme Being." Zorach v. Clauson, 343 U.S.
306, 313 . Under our Bill of Rights free play is given for [370 U.S. 421, 443] making religion an active
force in our lives. 9 But "if a religious leaven is to be worked into the affairs of our people, it is to be done
by individuals and groups, not by the Government." McGowan v. Maryland, 366 U.S. 420, 563 (dissenting
opinion). By reason of the First Amendment government is commanded "to have no interest in theology
or ritual" (id., at 564), for on those matters "government must be neutral." Ibid. The First Amendment
leaves the Government in a position not of hostility to religion but of neutrality. The philosophy is that the
atheist or agnostic - the nonbeliever - is entitled to go his own way. The philosophy is that if government
interferes in matters spiritual, it will be a divisive force. The First Amendment teaches that a government
neutral in the field of religion better serves all religious interests.
My problem today would be uncomplicated but for Everson v. Board of Education, 330 U.S. 1, 17 , which
allowed taxpayers' money to be used to pay "the bus fares of parochial school pupils as a part of a general
program under which" the fares of pupils attending public and other schools were also paid. The Everson
case seems in retrospect to be out of line with the First Amendment. Its result is appealing, as it allows aid
to be given to needy children. Yet by the same token, public funds could be used to satisfy other needs of
children in parochial schools - lunches, books, and tuition being obvious examples. Mr. Justice Rutledge
stated in dissent what I think is durable First Amendment philosophy:
"The reasons underlying the Amendment's policy have not vanished with time or diminished in
force. [370 U.S. 421, 444] Now as when it was adopted the price of religious freedom is double. It is that
the church and religion shall live both within and upon that freedom. There cannot be freedom of religion,
safeguarded by the state, and intervention by the church or its agencies in the state's domain or
dependency on its largesse. Madison's Remonstrance, Par. 6, 8. The great condition of religious liberty is
that it be maintained free from sustenance, as also from other interferences, by the state. For when it
comes to rest upon that secular foundation it vanishes with the resting. Id., Par. 7, 8. Public money
devoted to payment of religious costs, educational or other, brings the quest for more. It brings too the
struggle of sect against sect for the larger share or for any. Here one by numbers alone will benefit most,
there another. That is precisely the history of societies which have had an established religion and
dissident groups. Id., Par. 8, 11. It is the very thing Jefferson and Madison experienced and sought to
guard against, whether in its blunt or in its more screened forms. Ibid. The end of such strife cannot be
other than to destroy the cherished liberty. The dominating group will achieve the dominant benefit; or all
will embroil the state in their dissensions. Id., Par. 11." Id., pp. 53-54.
What New York does with this prayer is a break with that tradition. I therefore join the Court in reversing
the judgment below.
[ Footnote 1 ] "There are many `aids' to religion in this country at all levels of government. To mention
but a few at the federal level, one might begin by observing that the very First Congress which wrote the
First Amendment provided for chaplains in both Houses and in the armed services. There is compulsory
chapel at the service academies, and religious services are held in federal hospitals and prisons. The
President issues religious proclamations. The Bible is used for the administration of oaths. N. Y. A. and W.
P. A. funds were available to parochial schools during the depression. Veterans receiving money under the
`G. I.' Bill of 1944 could attend denominational schools, to which payments were made directly by the
government. During World War II, federal money was contributed to denominational schools for the
training of nurses. The benefits of the National School Lunch Act are available to students in private as
well as public schools. The Hospital Survey and Construction Act of 1946 specifically made money
available to non-public hospitals. The slogan `In God We Trust' is used by the Treasury Department, and
Congress recently added God to the pledge of allegiance. There is Bible-reading in the schools of the
District of Columbia, and religious instruction is given in the District's National Training School for Boys.
Religious organizations are exempt from the federal income tax and are granted postal privileges. Up to
defined limits - 15 per cent of the adjusted gross income of individuals and 5 per cent of the net income of
corporations - contributions to religious organizations are deductible for federal income tax purposes.
There are no limits to the deductibility of gifts and bequests to religious institutions made under the
federal gift and estate tax laws. This list of federal `aids' could easily be expanded, and of course there is a
long list in each state." Fellman, The Limits of Freedom (1959), pp. 40-41.

[ Footnote 2 ] West Point Cadets are required to attend chapel each Sunday. Reg., c. 21, 2101. The same
requirement obtains at the Naval Academy (Reg., c. 9, 0901, (1) (a)), and at the Air Force Academy except
First Classmen. Catalogue, 1962-1963, p. 110. And see Honeywell, [370 U.S. 421, 439] Chaplains of the
United States Army (1958): Jorgensen, The Service of Chaplains to Army Air Units, 1917-1946, Vol. I
(1961).

[ Footnote 3 ] The New York Legislature follows the same procedure. See, e. g., Vol. 1, N. Y. Assembly
Jour., 184th Sess., 1961, p. 8: Vol. 1, N. Y. Senate Jour., 184th Sess., 1961, p. 5.

[ Footnote 4 ] Rules of the Senate provide that each calendar day's session shall open with prayer. See
Rule III, Senate Manual, S. Doc. No. 2, 87th Cong., 1st Sess. The same is true of the Rules of the House.
See Rule VII, Rules of the House of Representatives, H. R. Doc. No. 459, 86th Cong., 2d Sess. The
Chaplains of the Senate and of the House receive $8,810 annually. See 75 Stat. 320, 324.

[ Footnote 5 ] It would, I assume, make no difference in the present case if a different prayer were said
every day or if the ministers of the community rotated, each giving his own prayer. For some of the
petitioners in the present case profess no religion.

The Pledge of Allegiance, like the prayer, recognizes the existence of a Supreme Being. Since 1954 it has
contained the words "one Nation under God, indivisible, with liberty and justice for all." 36 U.S.C. 172.
The House Report recommending the addition of the words "under God" stated that those words in no
way run contrary to the First Amendment but recognize "only the guidance of God in our national affairs."
H. R. Rep. No. 1693, 83d Cong., 2d Sess., p. 3. And see S. Rep. No. 1287, 83d Cong., 2d Sess. Senator
Ferguson, who sponsored the measure in the Senate, pointed out that the words "In God We Trust" are
over the entrance to the Senate Chamber. 100 Cong. Rec. 6348. He added:

"I have felt that the Pledge of Allegiance to the Flag which stands for the United States of America should
recognize the Creator who we really believe is in control of the destinies of this great Republic.
"It is true that under the Constitution no power is lodged anywhere to establish a religion. This is not an
attempt to establish a religion; it has nothing to do with anything of that kind. It relates to belief in God,
in whom we sincerely repose our trust. We know that America cannot be defended by guns, planes, and
ships alone. Appropriations and expenditures for defense will be of value only if the God under whom we
live believes that we are in the right. We should at all times recognize God's province over the lives of our
people and over this great Nation." Ibid. And see 100 Cong. Rec. 7757 et seq. for the debates in the House.
The Act of March 3, 1865, 13 Stat. 517, 518, authorized the phrase "In God We Trust" to be placed on
coins. And see 17 Stat. 427. The first mandatory requirement for the use of that motto on coins [370 U.S.
421, 441] was made by the Act of May 18, 1908, 35 Stat. 164. See H. R. Rep. No. 1106, 60th Cong., 1st
Sess.; 42 Cong. Rec. 3384 et seq. The use of the motto on all currency and coins was directed by the Act of
July 11, 1955, 69 Stat. 290. See H. R. Rep. No. 662, 84th Cong., 1st Sess.; S. Rep. No. 637, 84th Cong., 1st
Sess. Moreover, by the Joint Resolution of July 30, 1956, our national motto was declared to be "In God
We Trust." 70 Stat. 732. In reporting the Joint Resolution, the Senate Judiciary Committee stated:
"Further official recognition of this motto was given by the adoption of the Star-Spangled Banner as our
national anthem. One stanza of our national anthem is as follows:
"`O, thus be it ever when freemen shall stand Between their lov'd home and the war's desolation! Blest
with vict'ry and peace may the heav'n rescued land Praise the power that hath made and preserved us a
nation! Then conquer we must when our cause it is just, And this be our motto - "In God is our trust." And
the Star-Spangled Banner in triumph shall wave O'er the land of the free and the home of the brave.'
"In view of these words in our national anthem, it is clear that `In God we trust' has a strong claim as our
national motto." S. Rep. No. 2703, 84th Cong., 2d Sess., p. 2.
[ Footnote 6 ] The fact that taxpayers do not have standing in the federal courts to raise the issue
(Frothingham v. Mellon, 262 U.S. 447 ) is of course no justification for drawing a line between what is
done in New York on the one hand and on the other what we do and what Congress does in this matter of
prayer.

[ Footnote 7 ] The Court analogizes the present case to those involving the traditional Established Church.
We once had an Established Church, the Anglican. All baptisms and marriages had to take place there.
That church was supported by taxation. In these and other ways the Anglican Church was favored over the
others. The First Amendment put an end to placing any one church in a preferred position. It ended
support of any church or all churches by taxation. It went further and prevented secular sanction to any
religious ceremony, dogma, or rite. Thus, it prevents civil penalties from being applied against
recalcitrants or nonconformists.

[ Footnote 8 ] Some communities have a Christmas tree purchased with the taxpayers' money. The tree is
sometimes decorated with the words "Peace on earth, goodwill to men." At other times the authorities
draw from a different version of the Bible which says "Peace on earth to men of goodwill." Christmas, I
suppose, is still a religious celebration, not merely a day put on the calendar for the benefit of merchants.
[ Footnote 9 ] Religion was once deemed to be a function of the public school system. The Northwest
Ordinance, which antedated the First Amendment, provided in Article III that "Religion, morality, and
knowledge being necessary to good government and the happiness of mankind, schools and the means of
education shall forever be encouraged."

MR. JUSTICE STEWART, dissenting.

A local school board in New York has provided that those pupils who wish to do so may join in a brief
prayer at the beginning of each school day, acknowledging their dependence upon God and asking His
blessing upon them [370 U.S. 421, 445] and upon their parents, their teachers, and their country. The
Court today decides that in permitting this brief nondenominational prayer the school board has violated
the Constitution of the United States. I think this decision is wrong.

The Court does not hold, nor could it, that New York has interfered with the free exercise of anybody's
religion. For the state courts have made clear that those who object to reciting the prayer must be entirely
free of any compulsion to do so, including any "embarrassments and pressures." Cf. West Virginia State
Board of Education v. Barnette, 319 U.S. 624 . But the Court says that in permitting school children to say
this simple prayer, the New York authorities have established "an official religion."

With all respect, I think the Court has misapplied a great constitutional principle. I cannot see how an
"official religion" is established by letting those who want to say a prayer say it. On the contrary, I think
that to deny the wish of these school children to join in reciting this prayer is to deny them the
opportunity of sharing in the spiritual heritage of our Nation.

The Court's historical review of the quarrels over the Book of Common Prayer in England throws no light
for me on the issue before us in this case. England had then and has now an established church. Equally
unenlightening, I think, is the history of the early establishment and later rejection of an official church in
our own States. For we deal here not with the establishment of a state church, which would, of course, be
constitutionally impermissible, but with whether school children who want to begin their day by joining in
prayer must be prohibited from doing so. Moreover, I think that the Court's task, in this as in all areas of
constitutional adjudication, is not responsibly aided by the uncritical invocation of metaphors like the
"wall of separation," a phrase nowhere to [370 U.S. 421, 446] be found in the Constitution. What is
relevant to the issue here is not the history of an established church in sixteenth century England or in
eighteenth century America, but the history of the religious traditions of our people, reflected in countless
practices of the institutions and officials of our government.

At the opening of each day's Session of this Court we stand, while one of our officials invokes the
protection of God. Since the days of John Marshall our Crier has said, "God save the United States and
this Honorable Court." 1 Both the Senate and the House of Representatives open their daily Sessions with
prayer. 2 Each of our Presidents, from George Washington to John F. Kennedy, has upon assuming his
Office asked the protection and help of God. 3 [370 U.S. 421, 447]

The Court today says that the state and federal governments are without constitutional power to prescribe
any particular form of words to be recited by any group of the American people on any subject touching
religion. 4One of the stanzas of "The Star-Spangled Banner," made our National Anthem by Act of
Congress in 1931, 5contains these verses:

"Blest with victory and peace, may the heav'n rescued land
Praise the Pow'r that hath made and preserved us a nation!
Then conquer we must, when our cause it is just, And this be our motto `In God is our Trust.'"
In 1954 Congress added a phrase to the Pledge of Allegiance to the Flag so that it now contains the words
"one Nation under God, indivisible, with liberty and justice for all." 6 In 1952 Congress enacted legislation
calling upon the President each year to proclaim a National Day of Prayer. 7 Since 1865 the words "IN
GOD WE TRUST" have been impressed on our coins. 8 [370 U.S. 421, 450]
Countless similar examples could be listed, but there is no need to belabor the obvious. 9 It was all
summed up by this Court just ten years ago in a single sentence: "We are a religious people whose
institutions presuppose a Supreme Being." Zorach v. Clauson, 343 U.S. 306, 313 .

I do not believe that this Court, or the Congress, or the President has by the actions and practices I have
mentioned established an "official religion" in violation of the Constitution. And I do not believe the State
of New York has done so in this case. What each has done has been to recognize and to follow the deeply
entrenched and highly cherished spiritual traditions of our Nation - traditions which come down to us
from those who almost two hundred years ago avowed their "firm Reliance on the Protection of divine
Providence" when they proclaimed the freedom and independence of this brave new world. 10

I dissent.

[ Footnote 1 ] See Warren, The Supreme Court in United States History, Vol. 1, p. 469.

[ Footnote 2 ] See Rule III, Senate Manual, S. Doc. No. 2, 87th Cong., 1st Sess. See Rule VII, Rules of the
House of Representatives, H. R. Doc. No. 459, 86th Cong., 2d Sess.

[ Footnote 3 ] For example:

On April 30, 1789, President George Washington said:

". . . it would be peculiarly improper to omit in this first official act my fervent supplications to that
Almighty Being who rules over the universe, who presides in the councils of nations, and whose
providential aids can supply every human defect, that His benediction may consecrate to the liberties and
happiness of the people of the United States a Government instituted by themselves for these essential
purposes, and may enable every instrument employed in its administration to execute with success the
functions allotted to his charge. In tendering this homage to the Great Author of every public and private
good, I assure myself that it expresses your sentiments not less than my own, nor those of my fellow-
citizens at large less than either. No people can be bound to acknowledge and adore the Invisible Hand
which conducts the affairs of men more than those of the United States. . . .
.....
"Having thus imparted to you my sentiments as they have been awakened by the occasion which brings us
together, I shall [370 U.S. 421, 447] take my present leave; but not without resorting once more to the
benign Parent of the Human Race in humble supplication that, since He has been pleased to favor the
American people with opportunities for deliberating in perfect tranquillity, and dispositions for deciding
with unparalleled unanimity on a form of government for the security of their union and the advancement
of their happiness, so His divine blessing may be equally conspicuous in the enlarged views, the temperate
consultations, and the wise measures on which the success of this Government must depend."
On March 4, 1797, President John Adams said:
"And may that Being who is supreme over all, the Patron of Order, the Fountain of Justice, and the
Protector in all ages of the world of virtuous liberty, continue His blessing upon this nation and its
Government and give it all possible success and duration consistent with the ends of His providence."
On March 4, 1805, President Thomas Jefferson said:
". . . I shall need, too, the favor of that Being in whose hands we are, who led our fathers, as Israel of old,
from their native land and planted them in a country flowing with all the necessaries and comforts of life;
who has covered our infancy with His providence and our riper years with His wisdom and power, and to
whose goodness I ask you to join in supplications with me that He will so enlighten the minds of your
servants, guide their councils, and prosper their measures that whatsoever they do shall result in your
good, and shall secure to you the peace, friendship, and approbation of all nations."
On March 4, 1809, President James Madison said:
"But the source to which I look . . . is in . . . my fellow-citizens, and in the counsels of those representing
them in the other departments associated in the care of the national interests. In these my confidence will
under every difficulty be best placed, next to that which we have all been encouraged to feel in the
guardianship and guidance of that Almighty Being whose power regulates the destiny of nations, whose
blessings have been so conspicuously dispensed to this rising Republic, and to whom we are bound to
address our devout gratitude for the past, as well as our fervent supplications and best hopes for the
future." [370 U.S. 421, 448]
On March 4, 1865, President Abraham Lincoln said:
". . . Fondly do we hope, fervently do we pray, that this mighty scourge of war may speedily pass away. Yet,
if God wills that it continue until all the wealth piled by the bondsman's two hundred and fifty years of
unrequited toil shall be sunk, and until every drop of blood drawn with the lash shall be paid by another
drawn with the sword, as was said three thousand years ago, so still it must be said `the judgments of the
Lord are true and righteous altogether.'
"With malice toward none, with charity for all, with firmness in the right as God gives us to see the right,
let us strive on to finish the work we are in, to bind up the nation's wounds, to care for him who shall have
borne the battle and for his widow and his orphan, to do all which may achieve and cherish a just and
lasting peace among ourselves and with all nations."
On March 4, 1885, President Grover Cleveland said:
". . . And let us not trust to human effort alone, but humbly acknowledging the power and goodness of
Almighty God, who presides over the destiny of nations, and who has at all times been revealed in our
country's history, let us invoke His aid and His blessing upon our labors."
On March 5, 1917, President Woodrow Wilson said:
". . . I pray God I may be given the wisdom and the prudence to do my duty in the true spirit of this great
people."
On March 4, 1933, President Franklin D. Roosevelt said:
"In this dedication of a Nation we humbly ask the blessing of God. May He protect each and every one of
us. May He guide me in the days to come."
On January 21, 1957, President Dwight D. Eisenhower said:
"Before all else, we seek, upon our common labor as a nation, the blessings of Almighty God. And the
hopes in our hearts fashion the deepest prayers of our whole people."
On January 20, 1961, President John F. Kennedy said:
"The world is very different now. . . . And yet the same revolutionary beliefs for which our forebears fought
are still at issue around the globe - the belief that the rights of man come [370 U.S. 421, 449] not from
the generosity of the state but from the hand of God.
.....
"With a good conscience our only sure reward, with history the final judge of our deeds, let us go forth to
lead the land we love, asking His blessing and His help, but knowing that here on earth God's work must
truly be our own."
[ Footnote 4 ] My brother DOUGLAS says that the only question before us is whether government "can
constitutionally finance a religious exercise." The official chaplains of Congress are paid with public
money. So are military chaplains. So are state and federal prison chaplains.

[ Footnote 5 ] 36 U.S.C. 170.

[ Footnote 6 ] 36 U.S.C. 172.

[ Footnote 7 ] 36 U.S.C. 185.

[ Footnote 8 ] 13 Stat. 517, 518; 17 Stat. 427; 35 Stat. 164; 69 Stat. 290. The current provisions are
embodied in 31 U.S.C. 324, 324a.

[ Footnote 9 ] I am at a loss to understand the Court's unsupported ipse dixit that these official
expressions of religious faith in and reliance upon a Supreme Being "bear no true resemblance to the
unquestioned religious exercise that the State of New York has sponsored in this instance." See ante, p.
435, n. 21. I can hardly think that the Court means to say that the First Amendment imposes a lesser
restriction upon the Federal Government than does the Fourteenth Amendment upon the States. Or is the
Court suggesting that the Constitution permits judges and Congressmen and Presidents to join in prayer,
but prohibits school children from doing so?
[ Footnote 10 ] The Declaration of Independence ends with this sentence: "And for the support of this
Declaration, with a firm reliance on the protection of divine Providence, we mutually pledge to each other
our Lives, our Fortunes and our sacred Honor." [370 U.S. 421, 451]

Annotation
Primary Holding
Due process does not allow a state to prohibit teaching children any language other than
English.

Facts
Meyer, a teacher, taught German to a 10-year-old child. He was convicted of violating a
Nebraska law that prohibited teaching any language other than English.

Opinions

Majority

 James Clark McReynolds (Author)

 William Howard Taft
 Joseph McKenna
 Oliver Wendell Holmes, Jr.
 Willis Van Devanter
 Louis Dembitz Brandeis
 Pierce Butler
 Edward Terry Sanford
 George Sutherland

The Fourteenth Amendment vision of liberty includes the right of a teacher to teach
German and the right of parents to control the upbringing of their children as they see
fit. While the state has a legitimate interest in encouraging the growth of a homogenous
population that can engage in discussions of civic matters, the means that it has chosen
to pursue this objective is excessive.

Case Commentary
This law probably derived from the First World War, when nationalist sentiment ran high. It could
be constitutional during wartime or emergency to ban teaching foreign languages in the interest
of protecting American ideals.

Less

Opinions
  Syllabus

 Case

U.S. Supreme Court

Meyer v. Nebraska, 262 U.S. 390 (1923)

Meyer v. State of Nebraska

No. 325

Argued February 23, 1923

Decided June 4, 1923

262 U.S. 390

ERROR TO THE SUPREME COURT OF THE STATE OF NEBRASKA

Syllabus

A state law forbidding, under penalty, the teaching in any private, denominational,
parochial or public school, of any modern language, other than English, to any child who
has not attained and successfully

Page 262 U. S. 391

passed the eighth grade, invades the liberty guaranteed by the Fourteenth Amendment
and exceeds the power of the State. P. 262 U. S. 399.

So held where the statute was applied in punishment of an instructor who taught
reading in German, to a child of ten years, in a parochial school.

107 Neb. 657, reversed.

ERROR to a judgment of the Supreme Court of Nebraska affirming a conviction for

infraction of a statute against teaching of foreign languages to young children in
schools.

Page 262 U. S. 396

MR. JUSTICE McREYNOLDS delivered the opinion of the Court.

Plaintiff in error was tried and convicted in the District Court for Hamilton County,
Nebraska, under an information which charged that, on May 25, 1920, while an
instructor in Zion Parochial School, he unlawfully taught the subject of reading in the
German language to Raymond Parpart, a child of ten years, who had not attained

Page 262 U. S. 397

and successfully passed the eighth grade. The information is based upon "An act
relating to the teaching of foreign languages in the State of Nebraska," approved April 9,
1919, which follows [Laws 1919, c. 249.]:

"Section 1. No person, individually or as a teacher, shall, in any private, denominational,

parochial or public school, teach any subject to any person in any language other than
the English language."

"Sec. 2. Languages, other than the English language, may be taught as languages only
after a pupil shall have attained and successfully passed the eighth grade as evidenced
by a certificate of graduation issued by the county superintendent of the county in which
the child resides."

"Sec. 3. Any person who violates any of the provisions of this act shall be deemed guilty
of a misdemeanor and upon conviction, shall be subject to a fine of not less than
twenty-five dollars ($25), nor more than one hundred dollars ($100) or be confined in
the county jail for any period not exceeding thirty days for each offense."

"Sec. 4. Whereas, an emergency exists, this act shall be in force from and after its
passage and approval."

The Supreme Court of the State affirmed the judgment of conviction. 107 Neb. 657. It
declared the offense charged and established was "the direct and intentional teaching of
the German language as a distinct subject to a child who had not passed the eighth
grade," in the parochial school maintained by Zion Evangelical Lutheran Congregation,
a collection of Biblical stories being used therefor. And it held that the statute forbidding
this did not conflict with the Fourteenth Amendment, but was a valid exercise of the
police power. The following excerpts from the opinion sufficiently indicate the reasons
advanced to support the conclusion.

"The salutary purpose of the statute is clear. The legislature had seen the baneful
effects of permitting foreigners,

Page 262 U. S. 398

who had taken residence in this country, to rear and educate their children in the
language of their native land. The result of that condition was found to be inimical to our
own safety. To allow the children of foreigners, who had emigrated here, to be taught
from early childhood the language of the country of their parents was to rear them with
that language as their mother tongue. It was to educate them so that they must always
think in that language, and, as a consequence, naturally inculcate in them the ideas and
sentiments foreign to the best interests of this country. The statute, therefore, was
intended not only to require that the education of all children be conducted in the
English language, but that, until they had grown into that language and until it had
become a part of them, they should not in the schools be taught any other language.
The obvious purpose of this statute was that the English language should be and
become the mother tongue of all children reared in this state. The enactment of such a
statute comes reasonably within the police power of the state. Pohl v. State, 132 N.E.
(Ohio) 20; State v. Bartels, 181 N.W. (Ia.) 508."

"It is suggested that the law is an unwarranted restriction, in that it applies to all citizens
of the state and arbitrarily interferes with the rights of citizens who are not of foreign
ancestry, and prevents them, without reason, from having their children taught foreign
languages in school. That argument is not well taken, for it assumes that every citizen
finds himself restrained by the statute. The hours which a child is able to devote to study
in the confinement of school are limited. It must have ample time for exercise or play. Its
daily capacity for learning is comparatively small. A selection of subjects for its
education, therefore, from among the many that might be taught, is obviously
necessary. The legislature no doubt had in mind the practical operation of the law. The
law affects few citizens, except those of foreign lineage.

Page 262 U. S. 399

Other citizens, in their selection of studies, except perhaps in rare instances, have never
deemed it of importance to teach their children foreign languages before such children
have reached the eighth grade. In the legislative mind, the salutary effect of the statute
no doubt outweighed the restriction upon the citizens generally, which, it appears, was a
restriction of no real consequence."

The problem for our determination is whether the statute, as construed and applied,
unreasonably infringes the liberty guaranteed to the plaintiff in error by the Fourteenth
Amendment. "No State shall . . . deprive any person of life, liberty, or property, without
due process of law."

While this Court has not attempted to define with exactness the liberty thus guaranteed,
the term has received much consideration and some of the included things have been
definitely stated. Without doubt, it denotes not merely freedom from bodily restraint, but
also the right of the individual to contract, to engage in any of the common occupations
of life, to acquire useful knowledge, to marry, establish a home and bring up children, to
worship God according to the dictates of his own conscience, and generally to enjoy
those privileges long recognized at common law as essential to the orderly pursuit of
happiness by free men.Slaughter-House Cases, 16 Wall. 36; Butchers' Union Co. v.
Crescent City Co., 111 U. S. 746; Yick Wo v. Hopkins,118 U. S. 356; Minnesota v.
Barber, 136 U. S. 313; Allgeyer v. Louisiana, 165 U. S. 578; Lochner v. New York, 198
U. S. 45; Twining v. New Jersey, 211 U. S. 78; Chicago, Burlington & Quincy R.R. Co.
v. McGuire, 219 U. S. 549; Truax v. Raich, 239 U. S. 33; Adams v. Tanner, 244 U. S.
590; New York Life Ins. Co. v. Dodge, 246 U. S. 357; Truax v. Corrigan, 257 U. S.
312; Adkins v. Children's Hospital, 261 U. S. 525; Wyeth v. Cambridge Board of
Health, 200 Mass. 474. The established doctrine is that this liberty may not be interfered

Page 262 U. S. 400

with, under the guise of protecting the public interest, by legislative action which is
arbitrary or without reasonable relation to some purpose within the competency of the
State to effect. Determination by the legislature of what constitutes proper exercise of
police power is not final or conclusive, but is subject to supervision by the
courts. Lawton v. Steele, 152 U. S. 133, 152 U. S. 137.

The American people have always regarded education and acquisition of knowledge as
matters of supreme importance which should be diligently promoted. The Ordinance of
1787 declares,

"Religion, morality, and knowledge being necessary to good government and the
happiness of mankind, schools and the means of education shall forever be
encouraged."

Corresponding to the right of control, it is the natural duty of the parent to give his
children education suitable to their station in life, and nearly all the States, including
Nebraska, enforce this obligation by compulsory laws.

Practically, education of the young is only possible in schools conducted by especially

qualified persons who devote themselves thereto. The calling always has been
regarded as useful and honorable, essential, indeed, to the public welfare. Mere
knowledge of the German language cannot reasonably be regarded as harmful.
Heretofore it has been commonly looked upon as helpful and desirable. Plaintiff in error
taught this language in school as part of his occupation. His right thus to teach and the
right of parents to engage him so to instruct their children, we think, are within the liberty
of the Amendment.

The challenged statute forbids the teaching in school of any subject except in English;
also the teaching of any other language until the pupil has attained and successfully
passed the eighth grade, which is not usually accomplished before the age of twelve.
The Supreme Court of the State has held that "the so-called ancient or dead languages"
are not "within the spirit or the purpose of

Page 262 U. S. 401

the act." Nebraska District of Evangelical Lutheran Synod v. McKelvie, 187 N.W. 927.
Latin, Greek, Hebrew are not proscribed; but German, French, Spanish, Italian and
every other alien speech are within the ban. Evidently the legislature has attempted
materially to interfere with the calling of modern language teachers, with the
opportunities of pupils to acquire knowledge, and with the power of parents to control
the education of their own.

It is said the purpose of the legislation was to promote civic development by inhibiting
training and education of the immature in foreign tongues and ideals before they could
learn English and acquire American ideals, and "that the English language should be
and become the mother tongue of all children reared in this State." It is also affirmed
that the foreign born population is very large, that certain communities commonly use
foreign words, follow foreign leaders, move in a foreign atmosphere, and that the
children are thereby hindered from becoming citizens of the most useful type, and the
public safety is imperiled.

That the State may do much, go very far, indeed, in order to improve the quality of its
citizens, physically, mentally and morally, is clear; but the individual has certain
fundamental rights which must be respected. The protection of the Constitution extends
to all, to those who speak other languages as well as to those born with English on the
tongue. Perhaps it would be highly advantageous if all had ready understanding of our
ordinary speech, but this cannot be coerced by methods which conflict with the
Constitution -- a desirable end cannot be promoted by prohibited means.

For the welfare of his Ideal Commonwealth, Plato suggested a law which should
provide:

"That the wives of our guardians are to be common, and their children are to be
common, and no parent is to know his own child,

Page 262 U. S. 402

nor any child his parent. . . . The proper officers will take the offspring of the good
parents to the pen or fold, and there they will deposit them with certain nurses who
dwell in a separate quarter; but the offspring of the inferior, or of the better when they
chance to be deformed, will be put away in some mysterious, unknown place, as they
should be."

In order to submerge the individual. and develop ideal citizens, Sparta assembled the
males at seven into barracks and intrusted their subsequent education and training to
official guardians. Although such measures have been deliberately approved by men of
great genius, their ideas touching the relation between individual and State were wholly
different from those upon which our institutions rest, and it hardly will be affirmed that
any legislature could impose such restrictions upon the people of a State without doing
violence to both letter and spirit of the Constitution.

The desire of the legislature to foster a homogeneous people with American ideals
prepared readily to understand current discussions of civic matters is easy to
appreciate. Unfortunate experiences during the late war and aversion toward every
characteristic of truculent adversaries were certainly enough to quicken that aspiration.
But the means adopted, we think, exceed the limitations upon the power of the State
and conflict with rights assured to plaintiff in error. The interference is plain enough, and
no adequate reason therefor in time of peace and domestic tranquility has been shown.

The power of the State to compel attendance at some school and to make reasonable
regulations for all schools, including a requirement that they shall give instructions in
English, is not questioned. Nor has challenge been made of the State's power to
prescribe a curriculum for institutions which it supports. Those matters are not within the
present controversy. Our concern is with the prohibition approved by the Supreme
Court. Adams v.

Page 262 U. S. 403

Tanner, supra, p. 244 U. S. 594, pointed out that mere abuse incident to an occupation
ordinarily useful is not enough to justify its abolition, although regulation may be entirely
proper. No emergency has arisen which renders knowledge by a child of some
language other than English so clearly harmful as to justify its inhibition with the
consequent infringement of rights long freely enjoyed. We are constrained to conclude
that the statute as applied is arbitrary and without reasonable relation to any end within
the competency of the State.

As the statute undertakes to interfere only with teaching which involves a modern
language, leaving complete freedom as to other matters, there seems no adequate
foundation for the suggestion that the purpose was to protect the child's health by
limiting his mental activities. It is well known that proficiency in a foreign language
seldom comes to one not instructed at an early age, and experience shows that this is
not injurious to the health, morals or understanding of the ordinary child.

The judgment of the court below must be reversed, and the cause remanded for further
proceedings not inconsistent with this opinion.

Reversed. [See the separate opinion of MR. JUSTICE HOLMES, concurred in by MR.
JUSTICE SUTHERLAND, in the next case, at p. 262 U. S. 412, infra.]

Ondoy vs. Ignacio et. al. 97 SCRA 252 G.R.

No. L-47178 May 16, 1980
Ondoy vs. Ignacio et. al. 97 SCRA 252 G.R. No. L-47178 May 16, 1980
[Estrella B. Ondoy, petitioner vs. Virgilio Ignacio, Proprietor M/B Lady Estrellita and/or Imperial Fishing
Enterprises and/or the Secretary of Labor and/or The Compensation Appeals and Review Staff, Department of
Labor, Respondents]

Facts: The petitioner, Estrella Ondoy, is a mother of one Jose Ondoy, an employee who worked under Virgilio
Ignacio. According to the chief engineer and oiler, Jose Andoy was aboard the ship of the respondent’s enterprise as
part of the workforce. He was invited by friends to a drinking spree, left the ship and thereafter was found dead due
to drowning. Thus the petitioner asked for compensation, however, the testimonies by the chief engineer were
dismissed by the hearing officer due to lack of merit. Afterwards, a motion for reconsideration was also filed before
the Secretary of Labor, but was denied again due to lack of merit.

Issue: Whether or not the compensation for Jose’s death is constitutional. Whether or not Social Justice has a role in
this case.

Ruling: The Supreme Court granted the petition, granting Estrella Ondoy 6,000 pesos as compensation for Jose’s
death, 300 pesos for burial fees and 600 pesos as attorney’s fee with the costs against respondent, Ignacio.

Ratio Decidendi: The principle of social justice applied in this case is a matter of protection, and not equality. The
Supreme Court recognized the right of petitioner to claim a compensation from the respondent, as Jose did drown
while “in the actual performance of his duty.” To fortify this ruling, the SC cited cases wherein, with accordance to
the constitutional scheme of social justice and protection to labor, Workmen’s Compensation Act, which dealt with
the right of workers for compensation for personal injury, was applied. Among them is a case where there was no
direct testimony attesting that the deceased drowned while in the performance of his duty, however, the
compensation was sustained. Lastly from another case, the SC quoted that “as between a laborer, usually poor and
unlettered, and the employer, who has resources to secure able legal advice, the law has reason to demand from the
latter strict compliance. Social justice in these cases is not equality but protection.

THIRD DIVISION

[G.R. No. 120853. March 13, 1997]

PAT. RUDY ALMEDA, petitioner, vs. COURT OF APPEALS and

PEOPLE OF THE PHILIPPINES, respondents.

DECISION
FRANCISCO, J.:

This is a case of homicide.

 Petitioner Rudy Almeda was charged with murder before the Regional Trial Court
(RTC) of Tandag, Surigao del Sur in an information which reads as follows:

"That on the 29th day of November 1988, at about 7:30 o'clock in the evening, more
or less, inside Bautista's Food and Snack Inn at Capitol Hills, Tandag, province of
Surigao del Sur, Philippines, and within the jurisdiction of this Honorable Court, the
above-named, with intent to kill, treachery and evident premeditation, did, then and
there, willfully, unlawfully and feloniously shoot several times one, CBL Leo Pilapil
Selabao, PC Member, with the use of a caliber 45 nickled pistol, thereby inflicting
upon the latter the following wounds, to wit:

1. Gunshot wound 1 cm. in diameter with point of entry 1 cm. lateral to the 6th
thoracic cavity, penetrating lung thru and thru, with point of exit 2 cm. below the left
nipple.

2. Gunshot wound 1 cm. in diameter with point of entry at midscapular area left at the
level of 4th thoracic vertebra, penetrating the thoracic cavity, penetrating the heart
thru and thru, with point of exit at level of ziphoid process.

3. Gunshot wound 1 cm. in diameter with point of entry 3 cm. left lateral to the 3rd
thoracic vertebra, posterior chest wall penetrating the thoracic cavity, penetrating the
mediatinum thru and thru. Slug lodged skin deep.

4. Gunshot wound 1 cm. in diameter with point of entry 4 cm. from midline right
occipital area thru and thru with point of exit preauricular area right.

5. Gunshot wound 1 cm. in diameter with gunpowder tatooing (sic) left infra auricular
area thru and thru with point of exit at the right side of the neck 2 cm. beside the
oricoid cartilage.

6. Gunshot wound 1 cm. in diameter with gunpowder tatooing (sic) with point of
entry at left side of neck at level of 4th cervical vertebra, tangential with point of
exit at left side of the neck at the level of 5th cervical vertebra (about 4 cm. from
point of entry), which wounds have caused the instantaneous death of CBL Leo P.
Salabao, to the damage and prejudice of his heirs in the following amounts:

P50,000.00 as life indemnity of the victim;

10,000.00 as moral damages; and
10,000.00 as exemplary damages.

CONTRARY TO LAW. (In violation of Art. 248 of the Revised Penal Code.)" [1]
 During arraignment, petitioner pleaded not guilty. After trial, the lower
court[2] convicted petitioner of homicide only and appreciated in his favor two mitigating
circumstances.[3] The prosecution filed a motion for reconsideration with regard to the
appreciation of the mitigating circumstances. On July 23, 1992, the lower court granted
the motion and modified its earlier decision. The dispositive portion of the modified
judgment reads:

WHEREFORE, finding accused Rudy Almeda GUILTY beyond reasonable doubt of

HOMICIDE, and there being neither mitigating nor aggravating circumstances which
attended the commission of the offense, but applying the Indeterminate Sentence law,
the Court hereby sentences him to suffer the indeterminate penalty of imprisonment
ranging from eight (8) years and one (1) day of prision mayor, as minimum, to
fourteen (14) years, eight (8) months and one (1) day of reclusion temporal, as
maximum; to pay the heirs of the deceased victim PC Cbl. Leo Salabao the sum of
Fifty Thousand (50,000) Pesos as life indemnity and ten thousand (10, 000) Pesos as
moral damages, without subsidiary imprisonment in case of insolvency; and to pay the
cost.

The bail bond put up by the accused for his provisional liberty is ordered cancelled.

SO ORDERED. [4]

On appeal, the Court of Appeals (CA) affirmed the modified judgment.[5] Hence this
petition where petitioner imputes error to the appellate court in (1) not finding that he
acted in defense of strangers, and (2) in failing to appreciate in his favor the mitigating
circumstances of sufficient provocation and voluntary surrender.
The anterior facts ably supported by evidence on record are summarized by the CA
as follows:

On November 29, 1988, at approximately 5:00 o'clock in the afternoon, Julian

Herrera, Jr., together with his two nephews Donato Salabao and PC Constable Leo
Salabao arrived at the Bautista's Snack Inn to fetch Susonte Montero who lived in the
same town with Herrera. (TSN, January 22, 1992, p. 6) Herrera asked Donato to enter
the snack inn and inform Montero that they were ready to head home. However,
Montero was in the middle of a drinking spree with Vice Governor Acosta and the
latter's companions, one of whom was Almeda who was the Vice Governor's
bodyguard. Upon the invitation of Vice Governor Acosta, Herrera joined the drinking
session and left his nephews in the service jeep. (TSN Jan. 23, 1992, p. 5)

After about an hour, the Salabao brothers alighted and sought shelter in the covered
porch of the Bautista's Snack Inn. (TSN, Jan. 23, 1992, p. 6) Shortly thereafter, Felix
Amora, who was among the drinking companions of the Vice Governor and the then
Community Development Officer and Civil Defense Coordinator, stepped out of the
inn and saw the Salabao brothers. Irked because Cbl. Leo Salabao failed to salute him,
Amora confronted the former and ordered Cbl. Salabao to salute him. Cbl. Salabao
countered that since Amora was not known to him as a PC officer and was in civilian
clothes he was not compelled to salute him.(Ibid.) Their argument got the attention of
Herrera who went out to pacify them. He then asked Amora and the Salabao brothers
to get inside. (TSN, Jan. 22, 1992, p. 10) Once inside, Cbl. Salabao sat at the right
side of Almeda while Amora sat opposite Almeda at the left side of Herrera. (TSN,
Jan. 22, 1992, p. 12-14) Donato Salabao, on the other hand, sat near the counter.
(TSN, Jan. 23, 1992, p. 7)

Unknown to the Salabao brothers, during the past hour, Herrera had himself been
arguing with Vice Governor Acosta because of the latter's accusation that Herrera was
involved in anomalous transactions. (TSN, Jan. 22, 1992, p. 7-9)

A short time after the Salabao brothers had seated themselves, Herrera's argument
with Acosta resumed. At this juncture Acosta stood up, presumably to pay for the beer
he had ordered, and whispered something to Almeda. Almeda promptly grabbed the
barrel of the armalite rifle which Cbl. Salabao carried with him and pushed it down.
(TSN, Jan . 22, 1992, p. 16; TSN, Jan. 23, 1992, p. 8) Simultaneously, Almeda pulled
out his .45 caliber pistol pointed it at Cbl. Salabao's head and shot the latter in the left
temple. As Cbl. Salabao staggered Almeda fired five more shots felling (sic) the
former. (TSN, Jan. 22, 1992, p. 20-21; TSN, Jan. 23, 1992 p. 12) After which Almeda
picked up Cbl. Salabao's armalite, cocked it and than (sic) pointed it at Donato
Salabao who immediately raised his hands. (TSN, Jan. 23, 1992 p. 13) Almeda then
left along with the Vice Governor and his companions. The following day, at
approximately 7:00 o'clock in the morning, Almeda was arrested by a group of PC
Constables. (TSN, Feb. 18, 1992 p. 3-4) [6]

The petition is not impressed with merit. A party who invokes the justifying
circumstance of defense of strangers has the burden of proving by clear and convincing
evidence the exculpatory cause[7] that would save him from conviction. He must rely on
the strength of his own evidence and not on the weakness of the evidence for the
prosecution for even if the latter's evidence is weak, it cannot be disbelieved[8] and will
not exculpate the former from his categorical admission as the author of the killing. The
Court is convinced upon scrutiny of the evidence that petitioner failed to discharge this
burden.
Article 11 (3) of the Revised Penal Code provides:

"Justifying Circumstance. The following do not incur any criminal liability:

3. Anyone who acts in defense of the person or rights of a stranger, provided that
the first and second requisites mentioned in the first circumstance of this article
 are present and that the person defending be not induced by revenge, resentment,
or other evil motive "

This circumstance of defense of strangers has three requisites:[9]

(1) unlawful aggression;

(2) reasonable necessity of the means employed to prevent or repel it; and

(3) the person defending be not induced by revenge, resentment, or other evil motive.

The first and crucial requisite for defense of strangers to prosper is absent in this case.
Unlawful aggression presupposes an actual, sudden and unexpected attack or
imminent danger on the life or limb of a person. [10] The mere cocking of the M- 14 rifle by
the victim (Cbl. Salabao) without aiming the firearm at any particular target, is not
sufficient to conclude that the life of the Vice-Governor, Herrera or even of Amora was
in imminent danger. A threatening or intimidating attitude per se does not constitute
unlawful aggression.[11] Even a mysterious whisper poses no danger. There is nothing
from the act of the victim in trying to stand up, from which the Court may infer that the
life of the person (the Vice Governor) whom petitioner was allegedly protecting, was
under actual threat or attack from the victim.
Besides, assuming that such act of the victim posed an imminent danger, petitioner
was able to check if not neutralize such danger, when with a lightning speed, he held
and pointed downward the rifle of the former and simultaneously poked his .45 caliber at
the victim's head. Moreover, when the victim fell down and staggered after petitioner
shot him pointblank in the head, any supposed unlawful aggression by the former,
assuming that it has begun, had ceased. If so, the one making the defense has no more
right to kill or even wound the former aggressor.[12] Accordingly, petitioner's contention
that "he was forced to fire five more shots to defend the life of the Vice-Governor
belongs to the realm of fantasy. "[13]
Moreover, the number, location and severity of the fatal wounds suffered by the
victim belie the claim of defense of stranger but is indicative of a determined effort to
kill.[14]The victim was hit on the vital parts of his body head, lungs, heart, chest and
neck.[15]
With the absence of unlawful aggression that can be attributed to the victim, it
becomes unnecessary to determine the remaining requisites for they obviously have no
leg to stand on. Thus, in this case, the defense of stranger will not lie, complete or
incomplete.[16]
On petitioner's claim that he voluntarily surrendered, the evidence on record
disclosed otherwise. Military men acting on order of their superior officer were tasked to
look for and apprehend petitioner. When they spotted him, they surrounded and
captured petitioner. Moreover, before he was captured, petitioner could have easily
surrendered to the Vice Governor or to the police station which is a few blocks from his
house. Yet, the record is bereft of any evidence that he made any effort to do so.
 The Court does not also agree with petitioner's claim that he is entitled to the
mitigating circumstance of "sufficient provocation on the part of the offended party
immediately preceded the act."[17] To avail of this benefit, it must be shown that the
provocation originated from the offended party, in this case, the victim. However, the
records will attest that it was not the victim who provoked the heated confrontation
between the Vice-Governor and Herrera, as he has nothing to do with their discussions.
Neither was it shown that the victim provoked petitioner into committing the felonious
act. Petitioner and the victim do not know each other, they never met before that
incident, and the victim never aimed his rifle at petitioner. They merely sat beside each
other which could hardly be sustained as a provocative act. Moreover, any purported
provocation by the victim on Amora, when the former refused to salute the latter outside
the restaurant, could not be considered as a provocation on petitioner since the latter
was not even aware of the saluting incident between the victim and Amora. Thus, the
benefit of the mitigating circumstances under Article 13 (4) of the Revised Penal Code is
unavailable to petitioner.
At any rate, the errors assigned by petitioner assail the factual findings and
evaluation of witness's credibility by the trial court. It is a settled tenet, however, that the
findings of fact of the trial court is accorded not only with great weight and respect on
appeal but at times finality, especially when such findings are affirmed by the CA and
provided it is supported by substantial evidence on record.[18] Upon examination of the
evidence in this case, the Court is convinced that no significant facts or circumstances
were overlooked or disregarded by the courts below which if considered would warrant
a reversal of the findings and vary the outcome hereof. [19] With respect to the issue of
credibility of witnesses, the appreciation and assessment thereof is best left to the trial
court judge[20] having the unique opportunity of observing that elusive and
incommunicable evidence of the witness' deportment on the stand, a privilege denied to
the appellate court.[21] Again, there is nothing in the record that would indicate material
inconsistencies or even improbabilities in the testimony of prosecution's witnesses.
Since no arbitrariness or any cogent reasons were cited that would call for the reversal
of the lower court's evaluation of credibility of witness, such evaluations bind this court.[22]
WHEREFORE, premises considered, the decision of the Court of Appeals affirming
the decision of the trial court convicting Rudy Almeda of homicide and sentencing him to
suffer an indeterminate penalty of eight (8) years and one ( 1 ) day of prision mayor, as
minimum to fourteen (14) years, eight (8) months and one ( 1 ) day of reclusion
temporal, as maximum and to pay the heirs of the victim Leo Salabao, a total of P60,
000.00 as indemnity and damages is hereby AFFIRMED in toto.
SO ORDERED.
Narvasa, C.J., (Chairman), Davide, Jr., Melo, and Panganiban, JJ., concur. Slx
 Republic of the Philippines
SUPREME COURT
Manila

FIRST DIVISION

G.R. No. L-47088 July 10, 1981

CONSOLACION DUQUE SALONGA, assisted by her husband WENCESLAO

SALONGA, plaintiff-appellant,
vs.
JULITA B. FARRALES, and THE SHERIFF OF OLONGAPO CITY, defendants-appellees.

FERNANDEZ, J.:

This is an appeal certified to this Court by the Court of Appeals 1 from the decision of the Court of
First Instance of Zambales and Olongapo City, Third Judicial District, Branch III, Olongapo City, in
Civil Case No. 1144-0, entitled "Consolacion Duque Salonga, assisted by her husband, Wenceslao
Salonga, Plaintiff, versus Julita B. Farrales, and The Sheriff of Olongapo City, Defendants," the
dispositive part of which reads:

FOR THE REASONS GIVEN, judgment is hereby rendered dismissing plaintiff's

complaint, as well as defendants' counterclaim.

Costs against plaintiff.

SO ORDERED. 2

The records disclose that on January 2, 1973; the appellant, Consolacion Duque Salonga assisted
by her husband, filed a complaint against Julita B. Farrales and the Sheriff of Olongapo City with the
Court of First Instance of Zambales and Olongapo City, Third Judicial District, Branch III, Olongapo
City, seeking the following relief:

WHEREFORE, plaintiff most respectfully prays for the following relief:

a) Ordering defendant Julita Farrales to sell to plaintiff the parcel of land containing
an area of 156 Square Meters, more or less, where the house of strong materials of
plaintiff exists.

b) Ordering the defendants not to disturb nor interfere in the peaceful possession or
occupation of the land by plaintiff, until a final decision is rendered in this case.

c) Ordering defendants jointly and severally to pay costs; and

d) Granting plaintiff such other relief conformable to law, justice and equity.

Sta. Rita, Olongapo City, December 28, 1972. 3

that on January 9, 1973, plaintiff-appellant, Salonga filed an urgent petition for the issuance of a writ
of preliminary injunction which was duly amended on January 16, 1973, 4 with the following prayer:

WHEREFORE, plaintiff assisted by counsel most respectfully prays the Hon. Court
the following relief:

a) That a restraining order be issued pending resolution of the instant petition for
issuance of a Writ of Preliminary Injunction enjoining defendants, particularly the
Sheriff of Olongapo City to restrain from enforcing the Writ of Execution issued in
connection with the judgment rendered in Civil Case 650 for ejectment in the City
Court of Olongapo City;

b) That after due hearing of the present amended petition, a Writ of Preliminary
Injunction conditioned upon a reasonable bond be issued enjoining the defendants,
particularly, the Sheriff of Olongapo City, to restrain from enforcing the Writ of
Execution issued in connection with the judgment rendered in Civil Case No. 650 for
ejectment in the City Court of Olongapo City, in order to maintain the status of the
parties; in order to prevent the infliction of irreparable injury to plaintiff; and in order
that whatever judgment may be rendered in this case, may not become moot,
academic, illusory and ineffectual, and

c) Granting plaintiff such other relief conformable to law, justice and equity;

that on January 22, 1973, the court a quo issued an order temporarily restraining the carrying out of
the writ of execution issued pursuant to the judgment rendered by the City Court of Olongapo City in
Civil Case No. 650, a suit for ejectment filed by defendant-appellee Farrales against five defendants,
among whom the herein appellant, Consolacion Duque Salonga; 5 that on January 23, 1973,
defendant-appellee Farrales filed a motion to deny the motion for the issuance of a preliminary
injunction for being vague and her answer with counterclaim to the complaint; 6 that an opposition to
the amended petition for the issuance of a writ of preliminary injunction was also filed by the
defendant-appellee Farrales on January 25, 1973; 7 that in an order dated January 20, 1973, the
court a quo denied the petition for the issuance of a preliminary injunction and lifted the restraining
order issued on January 22, 1973; 8 that plaintiff-appellant moved for reconsideration of the order
denying the motion for issuance of a preliminary injunction on January 5, 1973; 9 which was also
denied by the court a quo on February 21, 1973; 10 that after the trial on the merits of Civil Case No.
1144-0, the trial court rendered the judgment under review, dismissing plaintiff's complaint; 11 that on
August 13, 1973, the plaintiff, Consolacion Duque Salonga, appealed from the said decision to the
Court of Appeals; 12 that on February 25, 1974, the plaintiff-appellant, Consolacion Duque Salonga,
filed with the Court of Appeals a motion for the issuance of a writ of preliminary injunction in aid of
appeal; 13 that in a resolution dated March 6, 1974, the Court of Appeals denied the said motion on
the ground that "the writ of preliminary injunction prayed for being intended to restrain the
enforcement of the writ of execution issued in Civil Case No. 650 for Ejectment, which is not involved
in this appeal, and there being no justification for the issuance of the writ ... " 14 that on January 13,
1975, the defendant-appellee Julita B. Farrales filed a motion to dismiss the appeal on the ground
that the appeal has become moot and academic because "the house of the plaintiffs-appellants,
subject matter of this appeal was demolished on October 21, 1974, Annex "A", Sheriff's return and
the land where this house was built was delivered to her and she is now the one in possession ...
; 15 that the plaintiffs-appellants having failed to comment on the said motion to dismiss when
required by the Court of Appeals in its resolution dated January 16, 1975, 16 the Court of Appeals
resolved to submit the motion for decision in a resolution dated April 17, 1975; 17 and that, likewise,
the plaintiffs-appellants having failed to show cause why the case should not be submitted for
decision without the benefit of appellant's reply brief when required to do so in a Court of Appeals
resolution dated May 14, 1975, 18 the Court of Appeals resolved on July 8, 1975 to submit the case
for decision without the benefit of appellants' reply brief. 19

In a resolution promulgated on September 15, 1977 the Court of Appeals certified the case to the
Supreme Court because the issue raised in the appeal is purely legal. 20

The plaintiffs-appellants assign the following errors:

I — THE COURT A QUO SERIOUSLY ERRED IN DISMISSING APPELLANTS'

COMPLAINT AND IN DENYING SAID APPELLANTS' RELIEF TO PURCHASE
FROM DEFENDANT-APPELLEE JULITA FARRALES THE PIECE OF LAND IN
QUESTION.

II — THE COURT A QUO SERIOUSLY ERRED IN NOT APPLYING TO THE SUIT

AT BAR, SECTION 6, UNDER ARTICLE 11 OF THE NEW CONSTITUTION,
WHICH CONTROLS, DELIMITS AND REGULATES PROPERTY RIGHTS AND
PRIVATE GAINS. 21

The main legal question involved in this appeal is whether or not the court a quo erred in dismissing
the complaint for specific performance or the ground that there exists no legally enforceable
compromise agreement upon which the defendant-appellee Farrales can be compelled to sell the
piece of land in question to plaintiff-appellant, Consolacion Duque Salonga.

The facts, as found by the trial court, are:

At the pre-trial conference, the parties stipulated on the following facts -

(1) THAT the personal circumstances of the parties as alleged in the complaint are
admitted:

(2) THAT defendant Farrales is the titled owner of a parcel of residential land situated
in Sta. Rita, Olongapo City, Identity of which is not disputed, formerly acquired by her
from one Leoncio Dytuco who, in turn, acquired the same from the Corpuz Family of
which only 361 square meters, more or less, not actually belong to said defendant
after portions thereof had been sold to Marciala Zarsadias, Catalino Pascual and
Rosanna Quiocson*; (*Per Deed of Absolute Sale, Exhibit B, the vendee is actually
Dionisio Quiocson);

3) THAT even prior to the acquisition by defendant Farrales (if the land aforesaid,
plaintiff was already in possession as lessee of some 156 square meters thereof, on
which she had erected a house, paying rentals thereon first to the original owners
and later to defendant Farrales.

(4) THAT, sometime prior to November, 1968, defendant Farrales filed an ejectment
case for non-payment of rentals against plaintiff and her husband-jointly with other
lessees of other portions of the land, to wit, Jorge Carvajal, Catalino Pascua,
Marciala Zarsadias, and the spouses Cesar and Rosalina Quiocson - Civil Case No.
650 of the Olongapo City Court, Branch 1, in which, on November 20, 1968, and
reiterated on February 4, 1970, a decision was rendered in favor of defendant
Farrales and ordering the therein defendants, including plaintiff herein and her
 husband, to vacate the portion occupied by them and to pay rentals in arrears,
attorney's fees and costs;

(5) THAT the decision aforesaid was elevated on appeal to the Court of First
Instance of Zambales and Olongapo City, Civil Case No. 581-0 thereof, and, in a
Decision dated November 11, 1971 of Branch III thereof, the same was affirmed with
modification only as to the amount of rentals arrears to be paid;

(6) THAT the affirmatory decision of the Court of First Instance aforesaid is now final
and executory the records of the case had been remanded to the Court for
execution, and the corresponding writ of execution had been issued partially
satisfied, as far as plaintiff herein is concerned, by the payment of all rentals in
arrears although the removal of said plaintiff's house from the land still remains to be
carried out by defendant Sheriff: and

(7) THAT, even before the rendition of the affirmatory decision of the Court of First
Instance, by common consent amongst themselves defendant sold to Catalino
Pascua, Marciala Zarsadias and the spouses Cesar and Rosalina Quiocson the
areas respectly occupied by them; while, with respect to Jorge Carvajal, in a suit
thereafter filed between him and defendant Farrales, a compromise. agreement was
entered into whereunder said defendant undertook to pay for Carvajal's house on her
land, so that the decision aforesaid is now being executed, as far as ejectment is
concerned, only against plaintiff herein. (Pre-Trial Order, May 17, 1973, pp. 2-5) 22

The lower court explained its conclusion thus:

... From the very allegations of the complaint, it is clearly admitted -

5. That plaintiff herein, in view of the sale to three tenants defendants of the portions
of land occupied by each of said three tenant-defendants, by defendant Julita B.
Farrales, also offered to purchase from said defendant the area of One Hundred
Fifty-Six (156) Square Meters, more or less, where plaintiff's house of strong
materials exists, but, defendant Julita B. Farrales, despite the fact that said plaintiff's
order to purchase was just, fair and reasonable persistently refused such offer, and
instead insisted to execute the judgment rendered in the ejectment case, before the
City Court of Olongapo City, thru the herein defendant Sheriff of Olongapo City, with
the sole and only purpose of causing damage and prejudice to the plaintiff
(Complaint, p. 3 emphasis supplied).

Being a judicial admission, the foregoing binds plaintiff who cannot subsequently
take a position contradictory thereto or inconsistent therewith (Section 2, Rule 129,
Rules of Court; McDaniel vs. Apacible, 44 Phil. 248 Cunanan vs. Amparo, 80 Phil.,
227). Hence, if plaintiff's offer to purchase was, as aforesaid persistently refused by
defendant, it is obvious that no meeting of the and, took place and, accordingly, no
contract, either to sell or of sale, was ever perfected between them. This is only
firmed up even more by plaintiff's admission on the witness stand that no agreement
respecting the purchase and sale of the disputed land was finalized because, while
defendant Farrales purportedly wanted payment in cash, plaintiff did not have any
money for that purpose and neither were negotiations ever had respecting any
possible arrangement for payment in installments. On all fours to the case at bar,
therefore, is Velasco et al., vs. Court of Appeals, et al, G.R. No. L-31018, June 29,
1973, which was a case for specific performance to compel the therein respondent
 Magdalena Estate, Inc. to sell a parcel of land to petitioner per an alleged contract of
sale in which the Supreme Court ruled:

It is not difficult to glean from the aforequoted averments that the

petitioners themselves admit that they and the respondent still had to
meet and agree on how and when the down payment and the
installment payments were to be paid. Such being the situation, it
cannot, therefore be said that a definite and firm sales agreement
between the parties had been perfected over the lot in question.
Indeed this Court has already ruled before that a definite agreement
on the manner of payment of the purchase price is an essential
element in the formation of a binding and enforceable contract of
sale.

Since contracts are enforceable only from the moment of perfection (Articles 1315
and 1475, Civil Code of the Philippines; Pacific Oxygen and Acetylene Co. vs.
Central Bank, G.R. No. L-21881, March 1, 1968; Atkins, Kroll and Co., Inc. vs. B.
Cua Hian Teck G.R. No. L-9817, January 31, 1958), and there is here no perfected
contract at all, it goes without saying that plaintiff has absolutely nothing to enforce
against defendant Farrales, and the fact that defendant Farrales previously sold
portions of the land to other lessees similarly situated as plaintiff herein, does not
change the situation because, as to said other lessees, a perfected contract existed -
which is not the case with plaintiff. 23

The trial court found as a fact that no compromise agreement to sell the land in question was ever
perfected between the defendant-appellee as vendor and the plaintiffs-appellants as vendees. 24

It is elementary that consent is an essential element for the existence of a contract, and where it is
wanting, the contract is non-existent. The essence of consent is the conformity of the parties on the
terms of the contract, the acceptance by one of the offer made by the other. The contract to sell is a
bilateral contract. Where there is merely an offer by one party, without the acceptance of the other,
there is no consent. 25

It appears in this case that the offeree, the defendant-appellee Julita B. Farrales not only did not
accept, but rejected the offer of plaintiffs-appellants, spouses Salonga to buy the land in question.
There being no consent there is. therefore, no contract to sell to speak of.

Likewise, it must be borne in mind that the alleged compromise agreement to sell the land in
question is unenforceable under the Statute of Frauds, 26 and thus, renders all the more ineffective
the action for specific performance in the court a quo.

Moreover, as correctly found by the trial court, the plaintiffs-appellants, as lessees, are neither
builders in good faith nor in bad faith. Their rights are governed not by Article 448 but by Art. 1678 of
the New Civil Code. 27 As lessees, they may remove the improvements should the lessor refuse to
reimburse them, but the lessee does not have the right to buy the land. 28

Anent the appellants' claim that since the appellee sold to the three (3) other defendants in the
ejectment suit the three (3) portions of the land in question occupied by them, it follows that "she
must also sell that portion of the land where appellants' residential house was found to appellants" is
unmeritorious. The trial court correctly ruled that the fact that defendant-appellee sold portions of the
land to the other lessees similarly situated as plaintiffs-appellants Salonga does not change the
situation because as to said other lessees, a perfected contract of sale existed which, as previously
shown was not the case with the plaintiff. 29

As to the contention that Sec. 6, Article II of the New Constitution is applicable to the case at bar, it
must be remembered that social justice cannot be invoked to trample on the rights of property
owners who under our Constitution and laws are also entitled to protection. The social justice
consecrated in our constitution was not intended to take away rights from a person and give them to
another who is not entitled thereto. Evidently, the plea for social justice cannot nullify the law on
obligations and contracts, and is, therefore, beyond the power of the Court to grant.

There is no showing that the trial court committed any reversible error.

WHEREFORE, the appeal is DISMISSED for lack of merit and the judgment appealed from is
hereby affirmed, without pronouncement as to costs.

SO ORDERED

Teehankee (Chairman), Makasiar, Guerrero and Melencio-Herrera, JJ., concur.

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. 101083 July 30, 1993

JUAN ANTONIO, ANNA ROSARIO and JOSE ALFONSO, all surnamed OPOSA, minors, and
represented by their parents ANTONIO and RIZALINA OPOSA, ROBERTA NICOLE SADIUA,
minor, represented by her parents CALVIN and ROBERTA SADIUA, CARLO, AMANDA SALUD
and PATRISHA, all surnamed FLORES, minors and represented by their parents ENRICO and
NIDA FLORES, GIANINA DITA R. FORTUN, minor, represented by her parents SIGRID and
DOLORES FORTUN, GEORGE II and MA. CONCEPCION, all surnamed MISA, minors and
represented by their parents GEORGE and MYRA MISA, BENJAMIN ALAN V. PESIGAN,
minor, represented by his parents ANTONIO and ALICE PESIGAN, JOVIE MARIE ALFARO,
minor, represented by her parents JOSE and MARIA VIOLETA ALFARO, MARIA
CONCEPCION T. CASTRO, minor, represented by her parents FREDENIL and JANE CASTRO,
JOHANNA DESAMPARADO,
minor, represented by her parents JOSE and ANGELA DESAMPRADO, CARLO JOAQUIN T.
NARVASA, minor, represented by his parents GREGORIO II and CRISTINE CHARITY
NARVASA, MA. MARGARITA, JESUS IGNACIO, MA. ANGELA and MARIE GABRIELLE, all
surnamed SAENZ, minors, represented by their parents ROBERTO and AURORA SAENZ,
KRISTINE, MARY ELLEN, MAY, GOLDA MARTHE and DAVID IAN, all surnamed KING, minors,
represented by their parents MARIO and HAYDEE KING, DAVID, FRANCISCO and THERESE
VICTORIA, all surnamed ENDRIGA, minors, represented by their parents BALTAZAR and
TERESITA ENDRIGA, JOSE MA. and REGINA MA., all surnamed ABAYA, minors, represented
by their parents ANTONIO and MARICA ABAYA, MARILIN, MARIO, JR. and MARIETTE, all
surnamed CARDAMA, minors, represented by their parents MARIO and LINA CARDAMA,
CLARISSA, ANN MARIE, NAGEL, and IMEE LYN, all surnamed OPOSA, minors and
represented by their parents RICARDO and MARISSA OPOSA, PHILIP JOSEPH, STEPHEN
JOHN and ISAIAH JAMES, all surnamed QUIPIT, minors, represented by their parents JOSE
MAX and VILMI QUIPIT, BUGHAW CIELO, CRISANTO, ANNA, DANIEL and FRANCISCO, all
surnamed BIBAL, minors, represented by their parents FRANCISCO, JR. and MILAGROS
BIBAL, and THE PHILIPPINE ECOLOGICAL NETWORK, INC., petitioners,
vs.
THE HONORABLE FULGENCIO S. FACTORAN, JR., in his capacity as the Secretary of the
Department of Environment and Natural Resources, and THE HONORABLE ERIBERTO U.
ROSARIO, Presiding Judge of the RTC, Makati, Branch 66, respondents.

Oposa Law Office for petitioners.

The Solicitor General for respondents.

DAVIDE, JR., J.:

In a broader sense, this petition bears upon the right of Filipinos to a balanced and healthful ecology
which the petitioners dramatically associate with the twin concepts of "inter-generational
responsibility" and "inter-generational justice." Specifically, it touches on the issue of whether the
said petitioners have a cause of action to "prevent the misappropriation or impairment" of Philippine
rainforests and "arrest the unabated hemorrhage of the country's vital life support systems and
continued rape of Mother Earth."

The controversy has its genesis in Civil Case No. 90-77 which was filed before Branch 66 (Makati,
Metro Manila) of the Regional Trial Court (RTC), National Capital Judicial Region. The principal
plaintiffs therein, now the principal petitioners, are all minors duly represented and joined by their
respective parents. Impleaded as an additional plaintiff is the Philippine Ecological Network, Inc.
(PENI), a domestic, non-stock and non-profit corporation organized for the purpose of, inter alia,
engaging in concerted action geared for the protection of our environment and natural resources.
The original defendant was the Honorable Fulgencio S. Factoran, Jr., then Secretary of the
Department of Environment and Natural Resources (DENR). His substitution in this petition by the
new Secretary, the Honorable Angel C. Alcala, was subsequently ordered upon proper motion by the
petitioners.1 The complaint2 was instituted as a taxpayers' class suit3 and alleges that the plaintiffs
"are all citizens of the Republic of the Philippines, taxpayers, and entitled to the full benefit, use and
enjoyment of the natural resource treasure that is the country's virgin tropical forests." The same was
filed for themselves and others who are equally concerned about the preservation of said resource
but are "so numerous that it is impracticable to bring them all before the Court." The minors further
asseverate that they "represent their generation as well as generations yet unborn."4 Consequently,
it is prayed for that judgment be rendered:
 . . . ordering defendant, his agents, representatives and other persons acting in his
behalf to —

(1) Cancel all existing timber license agreements in the country;

(2) Cease and desist from receiving, accepting, processing, renewing or approving
new timber license agreements.

and granting the plaintiffs ". . . such other reliefs just and equitable under the premises."5

The complaint starts off with the general averments that the Philippine archipelago of 7,100 islands
has a land area of thirty million (30,000,000) hectares and is endowed with rich, lush and verdant
rainforests in which varied, rare and unique species of flora and fauna may be found; these
rainforests contain a genetic, biological and chemical pool which is irreplaceable; they are also the
habitat of indigenous Philippine cultures which have existed, endured and flourished since time
immemorial; scientific evidence reveals that in order to maintain a balanced and healthful ecology,
the country's land area should be utilized on the basis of a ratio of fifty-four per cent (54%) for forest
cover and forty-six per cent (46%) for agricultural, residential, industrial, commercial and other uses;
the distortion and disturbance of this balance as a consequence of deforestation have resulted in a
host of environmental tragedies, such as (a) water shortages resulting from drying up of the water
table, otherwise known as the "aquifer," as well as of rivers, brooks and streams, (b) salinization of
the water table as a result of the intrusion therein of salt water, incontrovertible examples of which
may be found in the island of Cebu and the Municipality of Bacoor, Cavite, (c) massive erosion and
the consequential loss of soil fertility and agricultural productivity, with the volume of soil eroded
estimated at one billion (1,000,000,000) cubic meters per annum — approximately the size of the
entire island of Catanduanes, (d) the endangering and extinction of the country's unique, rare and
varied flora and fauna, (e) the disturbance and dislocation of cultural communities, including the
disappearance of the Filipino's indigenous cultures, (f) the siltation of rivers and seabeds and
consequential destruction of corals and other aquatic life leading to a critical reduction in marine
resource productivity, (g) recurrent spells of drought as is presently experienced by the entire
country, (h) increasing velocity of typhoon winds which result from the absence of windbreakers, (i)
the floodings of lowlands and agricultural plains arising from the absence of the absorbent
mechanism of forests, (j) the siltation and shortening of the lifespan of multi-billion peso dams
constructed and operated for the purpose of supplying water for domestic uses, irrigation and the
generation of electric power, and (k) the reduction of the earth's capacity to process carbon dioxide
gases which has led to perplexing and catastrophic climatic changes such as the phenomenon of
global warming, otherwise known as the "greenhouse effect."

Plaintiffs further assert that the adverse and detrimental consequences of continued and
deforestation are so capable of unquestionable demonstration that the same may be submitted as a
matter of judicial notice. This notwithstanding, they expressed their intention to present expert
witnesses as well as documentary, photographic and film evidence in the course of the trial.

As their cause of action, they specifically allege that:

CAUSE OF ACTION

7. Plaintiffs replead by reference the foregoing allegations.

8. Twenty-five (25) years ago, the Philippines had some sixteen (16) million hectares
of rainforests constituting roughly 53% of the country's land mass.
9. Satellite images taken in 1987 reveal that there remained no more than 1.2 million
hectares of said rainforests or four per cent (4.0%) of the country's land area.

10. More recent surveys reveal that a mere 850,000 hectares of virgin old-growth
rainforests are left, barely 2.8% of the entire land mass of the Philippine archipelago
and about 3.0 million hectares of immature and uneconomical secondary growth
forests.

11. Public records reveal that the defendant's, predecessors have granted timber
license agreements ('TLA's') to various corporations to cut the aggregate area of 3.89
million hectares for commercial logging purposes.

A copy of the TLA holders and the corresponding areas covered is hereto attached
as Annex "A".

12. At the present rate of deforestation, i.e. about 200,000 hectares per annum or 25
hectares per hour — nighttime, Saturdays, Sundays and holidays included — the
Philippines will be bereft of forest resources after the end of this ensuing decade, if
not earlier.

13. The adverse effects, disastrous consequences, serious injury and irreparable
damage of this continued trend of deforestation to the plaintiff minor's generation and
to generations yet unborn are evident and incontrovertible. As a matter of fact, the
environmental damages enumerated in paragraph 6 hereof are already being felt,
experienced and suffered by the generation of plaintiff adults.

14. The continued allowance by defendant of TLA holders to cut and deforest the
remaining forest stands will work great damage and irreparable injury to plaintiffs —
especially plaintiff minors and their successors — who may never see, use, benefit
from and enjoy this rare and unique natural resource treasure.

This act of defendant constitutes a misappropriation and/or impairment of the natural

resource property he holds in trust for the benefit of plaintiff minors and succeeding
generations.

15. Plaintiffs have a clear and constitutional right to a balanced and healthful ecology
and are entitled to protection by the State in its capacity as the parens patriae.

16. Plaintiff have exhausted all administrative remedies with the defendant's office.
On March 2, 1990, plaintiffs served upon defendant a final demand to cancel all
logging permits in the country.

A copy of the plaintiffs' letter dated March 1, 1990 is hereto attached as Annex "B".

17. Defendant, however, fails and refuses to cancel the existing TLA's to the
continuing serious damage and extreme prejudice of plaintiffs.

18. The continued failure and refusal by defendant to cancel the TLA's is an act
violative of the rights of plaintiffs, especially plaintiff minors who may be left with a
country that is desertified (sic), bare, barren and devoid of the wonderful flora, fauna
and indigenous cultures which the Philippines had been abundantly blessed with.
 19. Defendant's refusal to cancel the aforementioned TLA's is manifestly contrary to
the public policy enunciated in the Philippine Environmental Policy which, in pertinent
part, states that it is the policy of the State —

(a) to create, develop, maintain and improve conditions under which man and nature
can thrive in productive and enjoyable harmony with each other;

(b) to fulfill the social, economic and other requirements of present and future
generations of Filipinos and;

(c) to ensure the attainment of an environmental quality that is conductive to a life of

dignity and well-being. (P.D. 1151, 6 June 1977)

20. Furthermore, defendant's continued refusal to cancel the aforementioned TLA's

is contradictory to the Constitutional policy of the State to —

a. effect "a more equitable distribution of opportunities, income and wealth" and
"make full and efficient use of natural resources (sic)." (Section 1, Article XII of the
Constitution);

b. "protect the nation's marine wealth." (Section 2, ibid);

c. "conserve and promote the nation's cultural heritage and resources (sic)" (Section
14, Article XIV, id.);

d. "protect and advance the right of the people to a balanced and healthful ecology in
accord with the rhythm and harmony of nature." (Section 16, Article II, id.)

21. Finally, defendant's act is contrary to the highest law of humankind — the natural
law — and violative of plaintiffs' right to self-preservation and perpetuation.

22. There is no other plain, speedy and adequate remedy in law other than the
instant action to arrest the unabated hemorrhage of the country's vital life support
systems and continued rape of Mother Earth. 6

On 22 June 1990, the original defendant, Secretary Factoran, Jr., filed a Motion to Dismiss the
complaint based on two (2) grounds, namely: (1) the plaintiffs have no cause of action against him
and (2) the issue raised by the plaintiffs is a political question which properly pertains to the
legislative or executive branches of Government. In their 12 July 1990 Opposition to the Motion, the
petitioners maintain that (1) the complaint shows a clear and unmistakable cause of action, (2) the
motion is dilatory and (3) the action presents a justiciable question as it involves the defendant's
abuse of discretion.

On 18 July 1991, respondent Judge issued an order granting the aforementioned motion to
dismiss.7 In the said order, not only was the defendant's claim — that the complaint states no cause
of action against him and that it raises a political question — sustained, the respondent Judge further
ruled that the granting of the relief prayed for would result in the impairment of contracts which is
prohibited by the fundamental law of the land.

Plaintiffs thus filed the instant special civil action for certiorari under Rule 65 of the Revised Rules of
Court and ask this Court to rescind and set aside the dismissal order on the ground that the
respondent Judge gravely abused his discretion in dismissing the action. Again, the parents of the
plaintiffs-minors not only represent their children, but have also joined the latter in this case.8

On 14 May 1992, We resolved to give due course to the petition and required the parties to submit
their respective Memoranda after the Office of the Solicitor General (OSG) filed a Comment in behalf
of the respondents and the petitioners filed a reply thereto.

Petitioners contend that the complaint clearly and unmistakably states a cause of action as it
contains sufficient allegations concerning their right to a sound environment based on Articles 19, 20
and 21 of the Civil Code (Human Relations), Section 4 of Executive Order (E.O.) No. 192 creating
the DENR, Section 3 of Presidential Decree (P.D.) No. 1151 (Philippine Environmental Policy),
Section 16, Article II of the 1987 Constitution recognizing the right of the people to a balanced and
healthful ecology, the concept of generational genocide in Criminal Law and the concept of man's
inalienable right to self-preservation and self-perpetuation embodied in natural law. Petitioners
likewise rely on the respondent's correlative obligation per Section 4 of E.O. No. 192, to safeguard
the people's right to a healthful environment.

It is further claimed that the issue of the respondent Secretary's alleged grave abuse of discretion in
granting Timber License Agreements (TLAs) to cover more areas for logging than what is available
involves a judicial question.

Anent the invocation by the respondent Judge of the Constitution's non-impairment clause,
petitioners maintain that the same does not apply in this case because TLAs are not contracts. They
likewise submit that even if TLAs may be considered protected by the said clause, it is well settled
that they may still be revoked by the State when the public interest so requires.

On the other hand, the respondents aver that the petitioners failed to allege in their complaint a
specific legal right violated by the respondent Secretary for which any relief is provided by law. They
see nothing in the complaint but vague and nebulous allegations concerning an "environmental right"
which supposedly entitles the petitioners to the "protection by the state in its capacity as parens
patriae." Such allegations, according to them, do not reveal a valid cause of action. They then
reiterate the theory that the question of whether logging should be permitted in the country is a
political question which should be properly addressed to the executive or legislative branches of
Government. They therefore assert that the petitioners' resources is not to file an action to court, but
to lobby before Congress for the passage of a bill that would ban logging totally.

As to the matter of the cancellation of the TLAs, respondents submit that the same cannot be done
by the State without due process of law. Once issued, a TLA remains effective for a certain period of
time — usually for twenty-five (25) years. During its effectivity, the same can neither be revised nor
cancelled unless the holder has been found, after due notice and hearing, to have violated the terms
of the agreement or other forestry laws and regulations. Petitioners' proposition to have all the TLAs
indiscriminately cancelled without the requisite hearing would be violative of the requirements of due
process.

Before going any further, We must first focus on some procedural matters. Petitioners instituted Civil
Case No. 90-777 as a class suit. The original defendant and the present respondents did not take
issue with this matter. Nevertheless, We hereby rule that the said civil case is indeed a class suit.
The subject matter of the complaint is of common and general interest not just to several, but to all
citizens of the Philippines. Consequently, since the parties are so numerous, it, becomes
impracticable, if not totally impossible, to bring all of them before the court. We likewise declare that
the plaintiffs therein are numerous and representative enough to ensure the full protection of all
concerned interests. Hence, all the requisites for the filing of a valid class suit under Section 12, Rule
3 of the Revised Rules of Court are present both in the said civil case and in the instant petition, the
latter being but an incident to the former.

This case, however, has a special and novel element. Petitioners minors assert that they represent
their generation as well as generations yet unborn. We find no difficulty in ruling that they can, for
themselves, for others of their generation and for the succeeding generations, file a class suit. Their
personality to sue in behalf of the succeeding generations can only be based on the concept of
intergenerational responsibility insofar as the right to a balanced and healthful ecology is concerned.
Such a right, as hereinafter expounded, considers
the "rhythm and harmony of nature." Nature means the created world in its entirety.9 Such rhythm
and harmony indispensably include, inter alia, the judicious disposition, utilization, management,
renewal and conservation of the country's forest, mineral, land, waters, fisheries, wildlife, off-shore
areas and other natural resources to the end that their exploration, development and utilization be
equitably accessible to the present as well as future generations. 10Needless to say, every generation
has a responsibility to the next to preserve that rhythm and harmony for the full enjoyment of a
balanced and healthful ecology. Put a little differently, the minors' assertion of their right to a sound
environment constitutes, at the same time, the performance of their obligation to ensure the
protection of that right for the generations to come.

The locus standi of the petitioners having thus been addressed, We shall now proceed to the merits
of the petition.

After a careful perusal of the complaint in question and a meticulous consideration and evaluation of
the issues raised and arguments adduced by the parties, We do not hesitate to find for the
petitioners and rule against the respondent Judge's challenged order for having been issued with
grave abuse of discretion amounting to lack of jurisdiction. The pertinent portions of the said order
reads as follows:

xxx xxx xxx

After a careful and circumspect evaluation of the Complaint, the Court cannot help
but agree with the defendant. For although we believe that plaintiffs have but the
noblest of all intentions, it (sic) fell short of alleging, with sufficient definiteness, a
specific legal right they are seeking to enforce and protect, or a specific legal wrong
they are seeking to prevent and redress (Sec. 1, Rule 2, RRC). Furthermore, the
Court notes that the Complaint is replete with vague assumptions and vague
conclusions based on unverified data. In fine, plaintiffs fail to state a cause of action
in its Complaint against the herein defendant.

Furthermore, the Court firmly believes that the matter before it, being impressed with
political color and involving a matter of public policy, may not be taken cognizance of
by this Court without doing violence to the sacred principle of "Separation of Powers"
of the three (3) co-equal branches of the Government.

The Court is likewise of the impression that it cannot, no matter how we stretch our
jurisdiction, grant the reliefs prayed for by the plaintiffs, i.e., to cancel all existing
timber license agreements in the country and to cease and desist from receiving,
accepting, processing, renewing or approving new timber license agreements. For to
do otherwise would amount to "impairment of contracts" abhored (sic) by the
fundamental law. 11
We do not agree with the trial court's conclusions that the plaintiffs failed to allege with sufficient
definiteness a specific legal right involved or a specific legal wrong committed, and that the
complaint is replete with vague assumptions and conclusions based on unverified data. A reading of
the complaint itself belies these conclusions.

The complaint focuses on one specific fundamental legal right — the right to a balanced and
healthful ecology which, for the first time in our nation's constitutional history, is solemnly
incorporated in the fundamental law. Section 16, Article II of the 1987 Constitution explicitly provides:

Sec. 16. The State shall protect and advance the right of the people to a balanced
and healthful ecology in accord with the rhythm and harmony of nature.

This right unites with the right to health which is provided for in the preceding section
of the same article:

Sec. 15. The State shall protect and promote the right to health of the people and
instill health consciousness among them.

While the right to a balanced and healthful ecology is to be found under the Declaration of Principles
and State Policies and not under the Bill of Rights, it does not follow that it is less important than any
of the civil and political rights enumerated in the latter. Such a right belongs to a different category of
rights altogether for it concerns nothing less than self-preservation and self-perpetuation — aptly and
fittingly stressed by the petitioners — the advancement of which may even be said to predate all
governments and constitutions. As a matter of fact, these basic rights need not even be written in the
Constitution for they are assumed to exist from the inception of humankind. If they are now explicitly
mentioned in the fundamental charter, it is because of the well-founded fear of its framers that
unless the rights to a balanced and healthful ecology and to health are mandated as state policies by
the Constitution itself, thereby highlighting their continuing importance and imposing upon the state a
solemn obligation to preserve the first and protect and advance the second, the day would not be too
far when all else would be lost not only for the present generation, but also for those to come —
generations which stand to inherit nothing but parched earth incapable of sustaining life.

The right to a balanced and healthful ecology carries with it the correlative duty to refrain from
impairing the environment. During the debates on this right in one of the plenary sessions of the
1986 Constitutional Commission, the following exchange transpired between Commissioner Wilfrido
Villacorta and Commissioner Adolfo Azcuna who sponsored the section in question:

MR. VILLACORTA:

Does this section mandate the State to provide sanctions against all
forms of pollution — air, water and noise pollution?

MR. AZCUNA:

Yes, Madam President. The right to healthful (sic) environment

necessarily carries with it the correlative duty of not impairing the
same and, therefore, sanctions may be provided for impairment of
environmental balance. 12

The said right implies, among many other things, the judicious management and conservation of the
country's forests.
 Without such forests, the ecological or environmental balance would be irreversiby disrupted.

Conformably with the enunciated right to a balanced and healthful ecology and the right to health, as
well as the other related provisions of the Constitution concerning the conservation, development
and utilization of the country's natural resources, 13 then President Corazon C. Aquino promulgated
on 10 June 1987 E.O. No. 192, 14 Section 4 of which expressly mandates that the Department of
Environment and Natural Resources "shall be the primary government agency responsible for the
conservation, management, development and proper use of the country's environment and natural
resources, specifically forest and grazing lands, mineral, resources, including those in reservation
and watershed areas, and lands of the public domain, as well as the licensing and regulation of all
natural resources as may be provided for by law in order to ensure equitable sharing of the benefits
derived therefrom for the welfare of the present and future generations of Filipinos." Section 3
thereof makes the following statement of policy:

Sec. 3. Declaration of Policy. — It is hereby declared the policy of the State to ensure
the sustainable use, development, management, renewal, and conservation of the
country's forest, mineral, land, off-shore areas and other natural resources, including
the protection and enhancement of the quality of the environment, and equitable
access of the different segments of the population to the development and the use of
the country's natural resources, not only for the present generation but for future
generations as well. It is also the policy of the state to recognize and apply a true
value system including social and environmental cost implications relative to their
utilization, development and conservation of our natural resources.

This policy declaration is substantially re-stated it Title XIV, Book IV of the Administrative Code of
1987,15 specifically in Section 1 thereof which reads:

Sec. 1. Declaration of Policy. — (1) The State shall ensure, for the benefit of the
Filipino people, the full exploration and development as well as the judicious
disposition, utilization, management, renewal and conservation of the country's
forest, mineral, land, waters, fisheries, wildlife, off-shore areas and other natural
resources, consistent with the necessity of maintaining a sound ecological balance
and protecting and enhancing the quality of the environment and the objective of
making the exploration, development and utilization of such natural resources
equitably accessible to the different segments of the present as well as future
generations.

(2) The State shall likewise recognize and apply a true value system that takes into
account social and environmental cost implications relative to the utilization,
development and conservation of our natural resources.

The above provision stresses "the necessity of maintaining a sound ecological balance and
protecting and enhancing the quality of the environment." Section 2 of the same Title, on the other
hand, specifically speaks of the mandate of the DENR; however, it makes particular reference to the
fact of the agency's being subject to law and higher authority. Said section provides:

Sec. 2. Mandate. — (1) The Department of Environment and Natural Resources shall
be primarily responsible for the implementation of the foregoing policy.

(2) It shall, subject to law and higher authority, be in charge of carrying out the
State's constitutional mandate to control and supervise the exploration, development,
utilization, and conservation of the country's natural resources.
Both E.O. NO. 192 and the Administrative Code of 1987 have set the objectives which will serve as
the bases for policy formulation, and have defined the powers and functions of the DENR.

It may, however, be recalled that even before the ratification of the 1987 Constitution, specific
statutes already paid special attention to the "environmental right" of the present and future
generations. On 6 June 1977, P.D. No. 1151 (Philippine Environmental Policy) and P.D. No. 1152
(Philippine Environment Code) were issued. The former "declared a continuing policy of the State (a)
to create, develop, maintain and improve conditions under which man and nature can thrive in
productive and enjoyable harmony with each other, (b) to fulfill the social, economic and other
requirements of present and future generations of Filipinos, and (c) to insure the attainment of an
environmental quality that is conducive to a life of dignity and well-being." 16 As its goal, it speaks of
the "responsibilities of each generation as trustee and guardian of the environment for succeeding
generations." 17 The latter statute, on the other hand, gave flesh to the said policy.

Thus, the right of the petitioners (and all those they represent) to a balanced and healthful ecology is
as clear as the DENR's duty — under its mandate and by virtue of its powers and functions under
E.O. No. 192 and the Administrative Code of 1987 — to protect and advance the said right.

A denial or violation of that right by the other who has the corelative duty or obligation to respect or
protect the same gives rise to a cause of action. Petitioners maintain that the granting of the TLAs,
which they claim was done with grave abuse of discretion, violated their right to a balanced and
healthful ecology; hence, the full protection thereof requires that no further TLAs should be renewed
or granted.

A cause of action is defined as:

. . . an act or omission of one party in violation of the legal right or rights of the other;
and its essential elements are legal right of the plaintiff, correlative obligation of the
defendant, and act or omission of the defendant in violation of said legal right. 18

It is settled in this jurisdiction that in a motion to dismiss based on the ground that the complaint fails
to state a cause of action, 19 the question submitted to the court for resolution involves the sufficiency
of the facts alleged in the complaint itself. No other matter should be considered; furthermore, the
truth of falsity of the said allegations is beside the point for the truth thereof is deemed hypothetically
admitted. The only issue to be resolved in such a case is: admitting such alleged facts to be true,
may the court render a valid judgment in accordance with the prayer in the complaint? 20 In Militante
vs. Edrosolano, 21 this Court laid down the rule that the judiciary should "exercise the utmost care
and circumspection in passing upon a motion to dismiss on the ground of the absence thereof
[cause of action] lest, by its failure to manifest a correct appreciation of the facts alleged and
deemed hypothetically admitted, what the law grants or recognizes is effectively nullified. If that
happens, there is a blot on the legal order. The law itself stands in disrepute."

After careful examination of the petitioners' complaint, We find the statements under the introductory
affirmative allegations, as well as the specific averments under the sub-heading CAUSE OF
ACTION, to be adequate enough to show, prima facie, the claimed violation of their rights. On the
basis thereof, they may thus be granted, wholly or partly, the reliefs prayed for. It bears stressing,
however, that insofar as the cancellation of the TLAs is concerned, there is the need to implead, as
party defendants, the grantees thereof for they are indispensable parties.

The foregoing considered, Civil Case No. 90-777 be said to raise a political question. Policy
formulation or determination by the executive or legislative branches of Government is not squarely
put in issue. What is principally involved is the enforcement of a right vis-a-vis policies already
formulated and expressed in legislation. It must, nonetheless, be emphasized that the political
question doctrine is no longer, the insurmountable obstacle to the exercise of judicial power or the
impenetrable shield that protects executive and legislative actions from judicial inquiry or review. The
second paragraph of section 1, Article VIII of the Constitution states that:

Judicial power includes the duty of the courts of justice to settle actual controversies
involving rights which are legally demandable and enforceable, and to determine
whether or not there has been a grave abuse of discretion amounting to lack or
excess of jurisdiction on the part of any branch or instrumentality of the Government.

Commenting on this provision in his book, Philippine Political Law, 22 Mr. Justice Isagani A. Cruz, a
distinguished member of this Court, says:

The first part of the authority represents the traditional concept of judicial power,
involving the settlement of conflicting rights as conferred as law. The second part of
the authority represents a broadening of judicial power to enable the courts of justice
to review what was before forbidden territory, to wit, the discretion of the political
departments of the government.

As worded, the new provision vests in the judiciary, and particularly the Supreme
Court, the power to rule upon even the wisdom of the decisions of the executive and
the legislature and to declare their acts invalid for lack or excess of jurisdiction
because tainted with grave abuse of discretion. The catch, of course, is the meaning
of "grave abuse of discretion," which is a very elastic phrase that can expand or
contract according to the disposition of the judiciary.

In Daza vs. Singson, 23 Mr. Justice Cruz, now speaking for this Court, noted:

In the case now before us, the jurisdictional objection becomes even less tenable
and decisive. The reason is that, even if we were to assume that the issue presented
before us was political in nature, we would still not be precluded from revolving it
under the expanded jurisdiction conferred upon us that now covers, in proper cases,
even the political question. Article VII, Section 1, of the Constitution clearly provides:
...

The last ground invoked by the trial court in dismissing the complaint is the non-impairment of
contracts clause found in the Constitution. The court a quo declared that:

The Court is likewise of the impression that it cannot, no matter how we stretch our
jurisdiction, grant the reliefs prayed for by the plaintiffs, i.e., to cancel all existing
timber license agreements in the country and to cease and desist from receiving,
accepting, processing, renewing or approving new timber license agreements. For to
do otherwise would amount to "impairment of contracts" abhored (sic) by the
fundamental law. 24

We are not persuaded at all; on the contrary, We are amazed, if not shocked, by such a sweeping
pronouncement. In the first place, the respondent Secretary did not, for obvious reasons, even
invoke in his motion to dismiss the non-impairment clause. If he had done so, he would have acted
with utmost infidelity to the Government by providing undue and unwarranted benefits and
advantages to the timber license holders because he would have forever bound the Government to
strictly respect the said licenses according to their terms and conditions regardless of changes in
policy and the demands of public interest and welfare. He was aware that as correctly pointed out by
the petitioners, into every timber license must be read Section 20 of the Forestry Reform Code (P.D.
No. 705) which provides:

. . . Provided, That when the national interest so requires, the President may amend,
modify, replace or rescind any contract, concession, permit, licenses or any other
form of privilege granted herein . . .

Needless to say, all licenses may thus be revoked or rescinded by executive action. It is not
a contract, property or a property right protested by the due process clause of the
Constitution. In Tan vs. Director of Forestry, 25 this Court held:

. . . A timber license is an instrument by which the State regulates the utilization and
disposition of forest resources to the end that public welfare is promoted. A timber
license is not a contract within the purview of the due process clause; it is only a
license or privilege, which can be validly withdrawn whenever dictated by public
interest or public welfare as in this case.

A license is merely a permit or privilege to do what otherwise would be unlawful, and

is not a contract between the authority, federal, state, or municipal, granting it and
the person to whom it is granted; neither is it property or a property right, nor does it
create a vested right; nor is it taxation (37 C.J. 168). Thus, this Court held that the
granting of license does not create irrevocable rights, neither is it property or property
rights (People vs. Ong Tin, 54 O.G. 7576).

We reiterated this pronouncement in Felipe Ysmael, Jr. & Co., Inc. vs. Deputy Executive Secretary: 26

. . . Timber licenses, permits and license agreements are the principal instruments by
which the State regulates the utilization and disposition of forest resources to the end
that public welfare is promoted. And it can hardly be gainsaid that they merely
evidence a privilege granted by the State to qualified entities, and do not vest in the
latter a permanent or irrevocable right to the particular concession area and the
forest products therein. They may be validly amended, modified, replaced or
rescinded by the Chief Executive when national interests so require. Thus, they are
not deemed contracts within the purview of the due process of law clause
[See Sections 3(ee) and 20 of Pres. Decree No. 705, as amended. Also, Tan v.
Director of Forestry, G.R. No. L-24548, October 27, 1983, 125 SCRA 302].

Since timber licenses are not contracts, the non-impairment clause, which reads:

Sec. 10. No law impairing, the obligation of contracts shall be passed. 27

cannot be invoked.

In the second place, even if it is to be assumed that the same are contracts, the instant case does
not involve a law or even an executive issuance declaring the cancellation or modification of existing
timber licenses. Hence, the non-impairment clause cannot as yet be invoked. Nevertheless, granting
further that a law has actually been passed mandating cancellations or modifications, the same
cannot still be stigmatized as a violation of the non-impairment clause. This is because by its very
nature and purpose, such as law could have only been passed in the exercise of the police power of
the state for the purpose of advancing the right of the people to a balanced and healthful ecology,
promoting their health and enhancing the general welfare. In Abe vs. Foster Wheeler
Corp. 28 this Court stated:
 The freedom of contract, under our system of government, is not meant to be
absolute. The same is understood to be subject to reasonable legislative regulation
aimed at the promotion of public health, moral, safety and welfare. In other words,
the constitutional guaranty of non-impairment of obligations of contract is limited by
the exercise of the police power of the State, in the interest of public health, safety,
moral and general welfare.

The reason for this is emphatically set forth in Nebia vs. New York, 29 quoted in Philippine American
Life Insurance Co. vs. Auditor General,30 to wit:

Under our form of government the use of property and the making of contracts are
normally matters of private and not of public concern. The general rule is that both
shall be free of governmental interference. But neither property rights nor contract
rights are absolute; for government cannot exist if the citizen may at will use his
property to the detriment of his fellows, or exercise his freedom of contract to work
them harm. Equally fundamental with the private right is that of the public to regulate
it in the common interest.

In short, the non-impairment clause must yield to the police power of the state. 31

Finally, it is difficult to imagine, as the trial court did, how the non-impairment clause could apply with
respect to the prayer to enjoin the respondent Secretary from receiving, accepting, processing,
renewing or approving new timber licenses for, save in cases of renewal, no contract would have as
of yet existed in the other instances. Moreover, with respect to renewal, the holder is not entitled to it
as a matter of right.

WHEREFORE, being impressed with merit, the instant Petition is hereby GRANTED, and the
challenged Order of respondent Judge of 18 July 1991 dismissing Civil Case No. 90-777 is hereby
set aside. The petitioners may therefore amend their complaint to implead as defendants the holders
or grantees of the questioned timber license agreements.

No pronouncement as to costs.

SO ORDERED.

Cruz, Padilla, Bidin, Griño-Aquino, Regalado, Romero, Nocon, Bellosillo, Melo and Quiason, JJ.,
concur.

Narvasa, C.J., Puno and Vitug, JJ., took no part.

Separate Opinions

FELICIANO, J., concurring

I join in the result reached by my distinguished brother in the Court, Davide, Jr., J., in this case
which, to my mind, is one of the most important cases decided by this Court in the last few years.
The seminal principles laid down in this decision are likely to influence profoundly the direction and
course of the protection and management of the environment, which of course embraces the
utilization of all the natural resources in the territorial base of our polity. I have therefore sought to
clarify, basically to myself, what the Court appears to be saying.

The Court explicitly states that petitioners have the locus standi necessary to sustain the bringing
and, maintenance of this suit (Decision, pp. 11-12). Locus standi is not a function of petitioners' claim
that their suit is properly regarded as a class suit. I understand locus standi to refer to the legal
interest which a plaintiff must have in the subject matter of the suit. Because of the very broadness
of the concept of "class" here involved — membership in this "class" appears to
embrace everyone living in the country whether now or in the
future — it appears to me that everyone who may be expected to benefit from the course of action
petitioners seek to require public respondents to take, is vested with the necessary locus standi. The
Court may be seen therefore to be recognizing a beneficiaries' right of action in the field of
environmental protection, as against both the public administrative agency directly concerned and
the private persons or entities operating in the field or sector of activity involved. Whether such
beneficiaries' right of action may be found under any and all circumstances, or whether some failure
to act, in the first instance, on the part of the governmental agency concerned must be shown ("prior
exhaustion of administrative remedies"), is not discussed in the decision and presumably is left for
future determination in an appropriate case.

The Court has also declared that the complaint has alleged and focused upon "one specific
fundamental legal right — the right to a balanced and healthful ecology" (Decision, p. 14). There is
no question that "the right to a balanced and healthful ecology" is "fundamental" and that,
accordingly, it has been "constitutionalized." But although it is fundamental in character, I suggest,
with very great respect, that it cannot be characterized as "specific," without doing excessive
violence to language. It is in fact very difficult to fashion language more comprehensive in scope and
generalized in character than a right to "a balanced and healthful ecology." The list of particular
claims which can be subsumed under this rubic appears to be entirely open-ended: prevention and
control of emission of toxic fumes and smoke from factories and motor vehicles; of discharge of oil,
chemical effluents, garbage and raw sewage into rivers, inland and coastal waters by vessels, oil
rigs, factories, mines and whole communities; of dumping of organic and inorganic wastes on open
land, streets and thoroughfares; failure to rehabilitate land after strip-mining or open-pit
mining; kaingin or slash-and-burn farming; destruction of fisheries, coral reefs and other living sea
resources through the use of dynamite or cyanide and other chemicals; contamination of ground
water resources; loss of certain species of fauna and flora; and so on. The other statements pointed
out by the Court: Section 3, Executive Order No. 192 dated 10 June 1987; Section 1, Title XIV, Book
IV of the 1987 Administrative Code; and P.D. No. 1151, dated 6 June 1977 — all appear to be
formulations of policy, as general and abstract as the constitutional statements of basic policy in
Article II, Section 16 ("the right — to a balanced and healthful ecology") and 15 ("the right to health").

P.D. No. 1152, also dated 6 June 1977, entitled "The Philippine Environment Code," is, upon the
other hand, a compendious collection of more "specific environment management policies" and
"environment quality standards" (fourth "Whereas" clause, Preamble) relating to an extremely wide
range of topics:

(a) air quality management;

(b) water quality management;

 (c) land use management;

(d) natural resources management and conservation embracing:

(i) fisheries and aquatic resources;

(ii) wild life;

(iii) forestry and soil conservation;

(iv) flood control and natural calamities;

(v) energy development;

(vi) conservation and utilization of surface and ground water

(vii) mineral resources

Two (2) points are worth making in this connection. Firstly, neither petitioners nor the Court has
identified the particular provision or provisions (if any) of the Philippine Environment Code which give
rise to a specific legal right which petitioners are seeking to enforce. Secondly, the Philippine
Environment Code identifies with notable care the particular government agency charged with the
formulation and implementation of guidelines and programs dealing with each of the headings and
sub-headings mentioned above. The Philippine Environment Code does not, in other words, appear
to contemplate action on the part of private persons who are beneficiaries of implementation of that
Code.

As a matter of logic, by finding petitioners' cause of action as anchored on a legal right comprised in
the constitutional statements above noted, the Court is in effect saying that Section 15 (and Section
16) of Article II of the Constitution are self-executing and judicially enforceable even in their present
form. The implications of this doctrine will have to be explored in future cases; those implications are
too large and far-reaching in nature even to be hinted at here.

My suggestion is simply that petitioners must, before the trial court, show a more specific legal right
— a right cast in language of a significantly lower order of generality than Article II (15) of the
Constitution — that is or may be violated by the actions, or failures to act, imputed to the public
respondent by petitioners so that the trial court can validly render judgment granting all or part of the
relief prayed for. To my mind, the Court should be understood as simply saying that such a more
specific legal right or rights may well exist in our corpus of law, considering the general policy
principles found in the Constitution and the existence of the Philippine Environment Code, and that
the trial court should have given petitioners an effective opportunity so to demonstrate, instead of
aborting the proceedings on a motion to dismiss.

It seems to me important that the legal right which is an essential component of a cause of action be
a specific, operable legal right, rather than a constitutional or statutory policy, for at least two (2)
reasons. One is that unless the legal right claimed to have been violated or disregarded is given
specification in operational terms, defendants may well be unable to defend themselves intelligently
and effectively; in other words, there are due process dimensions to this matter.

The second is a broader-gauge consideration — where a specific violation of law or applicable

regulation is not alleged or proved, petitioners can be expected to fall back on the expanded
conception of judicial power in the second paragraph of Section 1 of Article VIII of the Constitution
which reads:

Section 1. . . .

Judicial power includes the duty of the courts of justice to settle actual controversies
involving rights which are legally demandable and enforceable, and to determine
whether or not there has been a grave abuse of discretion amounting to lack or
excess of jurisdiction on the part of any branch or instrumentality of the Government.
(Emphasis supplied)

When substantive standards as general as "the right to a balanced and healthy ecology" and
"the right to health" are combined with remedial standards as broad ranging as "a grave
abuse of discretion amounting to lack or excess of jurisdiction," the result will be, it is
respectfully submitted, to propel courts into the uncharted ocean of social and economic
policy making. At least in respect of the vast area of environmental protection and
management, our courts have no claim to special technical competence and experience and
professional qualification. Where no specific, operable norms and standards are shown to
exist, then the policy making departments — the legislative and executive departments —
must be given a real and effective opportunity to fashion and promulgate those norms and
standards, and to implement them before the courts should intervene.

My learned brother Davide, Jr., J., rightly insists that the timber companies, whose concession
agreements or TLA's petitioners demand public respondents should cancel, must be impleaded in
the proceedings below. It might be asked that, if petitioners' entitlement to the relief demanded
is not dependent upon proof of breach by the timber companies of one or more of the specific terms
and conditions of their concession agreements (and this, petitioners implicitly assume), what will
those companies litigate about? The answer I suggest is that they may seek to dispute the existence
of the specific legal right petitioners should allege, as well as the reality of the claimed factual nexus
between petitioners' specific legal rights and the claimed wrongful acts or failures to act of public
respondent administrative agency. They may also controvert the appropriateness of the remedy or
remedies demanded by petitioners, under all the circumstances which exist.

I vote to grant the Petition for Certiorari because the protection of the environment, including the
forest cover of our territory, is of extreme importance for the country. The doctrines set out in the
Court's decision issued today should, however, be subjected to closer examination.

# Separate Opinions

FELICIANO, J., concurring

I join in the result reached by my distinguished brother in the Court, Davide, Jr., J., in this case
which, to my mind, is one of the most important cases decided by this Court in the last few years.
The seminal principles laid down in this decision are likely to influence profoundly the direction and
course of the protection and management of the environment, which of course embraces the
utilization of all the natural resources in the territorial base of our polity. I have therefore sought to
clarify, basically to myself, what the Court appears to be saying.
The Court explicitly states that petitioners have the locus standi necessary to sustain the bringing
and, maintenance of this suit (Decision, pp. 11-12). Locus standi is not a function of petitioners' claim
that their suit is properly regarded as a class suit. I understand locus standi to refer to the legal
interest which a plaintiff must have in the subject matter of the suit. Because of the very broadness
of the concept of "class" here involved — membership in this "class" appears to
embrace everyone living in the country whether now or in the
future — it appears to me that everyone who may be expected to benefit from the course of action
petitioners seek to require public respondents to take, is vested with the necessary locus standi. The
Court may be seen therefore to be recognizing a beneficiaries' right of action in the field of
environmental protection, as against both the public administrative agency directly concerned and
the private persons or entities operating in the field or sector of activity involved. Whether such
beneficiaries' right of action may be found under any and all circumstances, or whether some failure
to act, in the first instance, on the part of the governmental agency concerned must be shown ("prior
exhaustion of administrative remedies"), is not discussed in the decision and presumably is left for
future determination in an appropriate case.

The Court has also declared that the complaint has alleged and focused upon "one specific
fundamental legal right — the right to a balanced and healthful ecology" (Decision, p. 14). There is
no question that "the right to a balanced and healthful ecology" is "fundamental" and that,
accordingly, it has been "constitutionalized." But although it is fundamental in character, I suggest,
with very great respect, that it cannot be characterized as "specific," without doing excessive
violence to language. It is in fact very difficult to fashion language more comprehensive in scope and
generalized in character than a right to "a balanced and healthful ecology." The list of particular
claims which can be subsumed under this rubic appears to be entirely open-ended: prevention and
control of emission of toxic fumes and smoke from factories and motor vehicles; of discharge of oil,
chemical effluents, garbage and raw sewage into rivers, inland and coastal waters by vessels, oil
rigs, factories, mines and whole communities; of dumping of organic and inorganic wastes on open
land, streets and thoroughfares; failure to rehabilitate land after strip-mining or open-pit
mining; kaingin or slash-and-burn farming; destruction of fisheries, coral reefs and other living sea
resources through the use of dynamite or cyanide and other chemicals; contamination of ground
water resources; loss of certain species of fauna and flora; and so on. The other statements pointed
out by the Court: Section 3, Executive Order No. 192 dated 10 June 1987; Section 1, Title XIV, Book
IV of the 1987 Administrative Code; and P.D. No. 1151, dated 6 June 1977 — all appear to be
formulations of policy, as general and abstract as the constitutional statements of basic policy in
Article II, Section 16 ("the right — to a balanced and healthful ecology") and 15 ("the right to health").

P.D. No. 1152, also dated 6 June 1977, entitled "The Philippine Environment Code," is, upon the
other hand, a compendious collection of more "specific environment management policies" and
"environment quality standards" (fourth "Whereas" clause, Preamble) relating to an extremely wide
range of topics:

(a) air quality management;

(b) water quality management;

(c) land use management;

(d) natural resources management and conservation embracing:

(i) fisheries and aquatic resources;

(ii) wild life;

 (iii) forestry and soil conservation;

(iv) flood control and natural calamities;

(v) energy development;

(vi) conservation and utilization of surface and ground water

(vii) mineral resources

Two (2) points are worth making in this connection. Firstly, neither petitioners nor the Court has
identified the particular provision or provisions (if any) of the Philippine Environment Code which give
rise to a specific legal right which petitioners are seeking to enforce. Secondly, the Philippine
Environment Code identifies with notable care the particular government agency charged with the
formulation and implementation of guidelines and programs dealing with each of the headings and
sub-headings mentioned above. The Philippine Environment Code does not, in other words, appear
to contemplate action on the part of private persons who are beneficiaries of implementation of that
Code.

As a matter of logic, by finding petitioners' cause of action as anchored on a legal right comprised in
the constitutional statements above noted, the Court is in effect saying that Section 15 (and Section
16) of Article II of the Constitution are self-executing and judicially enforceable even in their present
form. The implications of this doctrine will have to be explored in future cases; those implications are
too large and far-reaching in nature even to be hinted at here.

My suggestion is simply that petitioners must, before the trial court, show a more specific legal right
— a right cast in language of a significantly lower order of generality than Article II (15) of the
Constitution — that is or may be violated by the actions, or failures to act, imputed to the public
respondent by petitioners so that the trial court can validly render judgment granting all or part of the
relief prayed for. To my mind, the Court should be understood as simply saying that such a more
specific legal right or rights may well exist in our corpus of law, considering the general policy
principles found in the Constitution and the existence of the Philippine Environment Code, and that
the trial court should have given petitioners an effective opportunity so to demonstrate, instead of
aborting the proceedings on a motion to dismiss.

It seems to me important that the legal right which is an essential component of a cause of action be
a specific, operable legal right, rather than a constitutional or statutory policy, for at least two (2)
reasons. One is that unless the legal right claimed to have been violated or disregarded is given
specification in operational terms, defendants may well be unable to defend themselves intelligently
and effectively; in other words, there are due process dimensions to this matter.

The second is a broader-gauge consideration — where a specific violation of law or applicable

regulation is not alleged or proved, petitioners can be expected to fall back on the expanded
conception of judicial power in the second paragraph of Section 1 of Article VIII of the Constitution
which reads:

Section 1. . . .

Judicial power includes the duty of the courts of justice to settle actual controversies
involving rights which are legally demandable and enforceable, and to determine
whether or not there has been a grave abuse of discretion amounting to lack or
 excess of jurisdiction on the part of any branch or instrumentality of the Government.
(Emphasis supplied)

When substantive standards as general as "the right to a balanced and healthy ecology" and
"the right to health" are combined with remedial standards as broad ranging as "a grave
abuse of discretion amounting to lack or excess of jurisdiction," the result will be, it is
respectfully submitted, to propel courts into the uncharted ocean of social and economic
policy making. At least in respect of the vast area of environmental protection and
management, our courts have no claim to special technical competence and experience and
professional qualification. Where no specific, operable norms and standards are shown to
exist, then the policy making departments — the legislative and executive departments —
must be given a real and effective opportunity to fashion and promulgate those norms and
standards, and to implement them before the courts should intervene.

My learned brother Davide, Jr., J., rightly insists that the timber companies, whose concession
agreements or TLA's petitioners demand public respondents should cancel, must be impleaded in
the proceedings below. It might be asked that, if petitioners' entitlement to the relief demanded
is not dependent upon proof of breach by the timber companies of one or more of the specific terms
and conditions of their concession agreements (and this, petitioners implicitly assume), what will
those companies litigate about? The answer I suggest is that they may seek to dispute the existence
of the specific legal right petitioners should allege, as well as the reality of the claimed factual nexus
between petitioners' specific legal rights and the claimed wrongful acts or failures to act of public
respondent administrative agency. They may also controvert the appropriateness of the remedy or
remedies demanded by petitioners, under all the circumstances which exist.

I vote to grant the Petition for Certiorari because the protection of the environment, including the
forest cover of our territory, is of extreme importance for the country. The doctrines set out in the
Court's decision issued today should, however, be subjected to closer examination.

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. 89572 December 21, 1989

DEPARTMENT OF EDUCATION, CULTURE AND SPORTS (DECS) and DIRECTOR OF CENTER

FOR EDUCATIONAL MEASUREMENT, petitioners,
vs.
ROBERTO REY C. SAN DIEGO and JUDGE TERESITA DIZON-CAPULONG, in her capacity as
Presiding Judge of the Regional Trial Court of Valenzuela, Metro Manila, Branch
172, respondents.

Ramon M. Guevara for private respondent.

CRUZ, J.:

The issue before us is mediocrity. The question is whether a person who has thrice failed the
National Medical Admission Test (NMAT) is entitled to take it again.

The petitioner contends he may not, under its rule that-

h) A student shall be allowed only three (3) chances to take the NMAT. After three
(3) successive failures, a student shall not be allowed to take the NMAT for the fourth
time.

The private respondent insists he can, on constitutional grounds.

But first the facts.

The private respondent is a graduate of the University of the East with a degree of Bachelor of
Science in Zoology. The petitioner claims that he took the NMAT three times and flunked it as many
times.1 When he applied to take it again, the petitioner rejected his application on the basis of the
aforesaid rule. He then went to the Regional Trial Court of Valenzuela, Metro Manila, to compel his
admission to the test.

In his original petition for mandamus, he first invoked his constitutional rights to academic freedom
and quality education. By agreement of the parties, the private respondent was allowed to take the
NMAT scheduled on April 16, 1989, subject to the outcome of his petition. 2 In an amended petition
filed with leave of court, he squarely challenged the constitutionality of MECS Order No. 12, Series
of 1972, containing the above-cited rule. The additional grounds raised were due process and equal
protection.

After hearing, the respondent judge rendered a decision on July 4, 1989, declaring the challenged
order invalid and granting the petition. Judge Teresita Dizon-Capulong held that the petitioner had
been deprived of his right to pursue a medical education through an arbitrary exercise of the police
power. 3

We cannot sustain the respondent judge. Her decision must be reversed.

In Tablarin v. Gutierrez, 4 this Court upheld the constitutionality of the NMAT as a measure intended
to limit the admission to medical schools only to those who have initially proved their competence
and preparation for a medical education. Justice Florentino P. Feliciano declared for a unanimous
Court:

Perhaps the only issue that needs some consideration is whether there is some
reasonable relation between the prescribing of passing the NMAT as a condition for
admission to medical school on the one hand, and the securing of the health and
safety of the general community, on the other hand. This question is perhaps most
usefully approached by recalling that the regulation of the pratice of medicine in all its
branches has long been recognized as a reasonable method of protecting the health
and safety of the public. That the power to regulate and control the practice of
medicine includes the power to regulate admission to the ranks of those authorized
to practice medicine, is also well recognized. Thus, legislation and administrative
regulations requiring those who wish to practice medicine first to take and pass
medical board examinations have long ago been recognized as valid exercises of
 governmental power. Similarly, the establishment of minimum medical educational
requirements-i.e., the completion of prescribed courses in a recognized medical
school-for admission to the medical profession, has also been sustained as a
legitimate exercise of the regulatory authority of the state. What we have before us in
the instant case is closely related: the regulation of access to medical schools.
MECS Order No. 52, s. 1985, as noted earlier, articulates the rationale of regulation
of this type: the improvement of the professional and technical quality of the
graduates of medical schools, by upgrading the quality of those admitted to the
student body of the medical schools. That upgrading is sought by selectivity in the
process of admission, selectivity consisting, among other things, of limiting admission
to those who exhibit in the required degree the aptitude for medical studies and
eventually for medical practice. The need to maintain, and the difficulties of
maintaining, high standards in our professional schools in general, and medical
schools in particular, in the current state of our social and economic development,
are widely known.

We believe that the government is entitled to prescribe an admission test like the
NMAT as a means of achieving its stated objective of "upgrading the selection of
applicants into [our] medical schools" and of "improv[ing] the quality of medical
education in the country." Given the widespread use today of such admission tests
in, for instance, medical schools in the United States of America (the Medical College
Admission Test [MCAT] and quite probably, in other countries with far more
developed educational resources than our own, and taking into account the failure or
inability of the petitioners to even attempt to prove otherwise, we are entitled to hold
that the NMAT is reasonably related to the securing of the ultimate end of legislation
and regulation in this area. That end, it is useful to recall, is the protection of the
public from the potentially deadly effects of incompetence and ignorance in those
who would undertake to treat our bodies and minds for disease or trauma.

However, the respondent judge agreed with the petitioner that the said case was not applicable. Her
reason was that it upheld only the requirement for the admission test and said nothing about the so-
called "three-flunk rule."

We see no reason why the rationale in the Tablarin case cannot apply to the case at bar. The issue
raised in both cases is the academic preparation of the applicant. This may be gauged at least
initially by the admission test and, indeed with more reliability, by the three-flunk rule. The latter
cannot be regarded any less valid than the former in the regulation of the medical profession.

There is no need to redefine here the police power of the State. Suffice it to repeat that the power is
validly exercised if (a) the interests of the public generally, as distinguished from those of a particular
class, require the interference of the State, and (b) the means employed are reasonably necessary
to the attainment of the object sought to be accomplished and not unduly oppressive upon
individuals.5

In other words, the proper exercise of the police power requires the concurrence of a lawful subject
and a lawful method.

The subject of the challenged regulation is certainly within the ambit of the police power. It is the
right and indeed the responsibility of the State to insure that the medical profession is not infiltrated
by incompetents to whom patients may unwarily entrust their lives and health.
The method employed by the challenged regulation is not irrelevant to the purpose of the law nor is it
arbitrary or oppressive. The three-flunk rule is intended to insulate the medical schools and
ultimately the medical profession from the intrusion of those not qualified to be doctors.

While every person is entitled to aspire to be a doctor, he does not have a constitutional right to be a
doctor. This is true of any other calling in which the public interest is involved; and the closer the link,
the longer the bridge to one's ambition. The State has the responsibility to harness its human
resources and to see to it that they are not dissipated or, no less worse, not used at all. These
resources must be applied in a manner that will best promote the common good while also giving the
individual a sense of satisfaction.

A person cannot insist on being a physician if he will be a menace to his patients. If one who wants
to be a lawyer may prove better as a plumber, he should be so advised and adviced. Of course, he
may not be forced to be a plumber, but on the other hand he may not force his entry into the bar. By
the same token, a student who has demonstrated promise as a pianist cannot be shunted aside to
take a course in nursing, however appropriate this career may be for others.

The right to quality education invoked by the private respondent is not absolute. The Constitution
also provides that "every citizen has the right to choose a profession or course of study, subject to
fair, reasonable and equitable admission and academic requirements.6

The private respondent must yield to the challenged rule and give way to those better prepared.
Where even those who have qualified may still not be accommodated in our already crowded
medical schools, there is all the more reason to bar those who, like him, have been tested and found
wanting.

The contention that the challenged rule violates the equal protection clause is not well-taken. A law
does not have to operate with equal force on all persons or things to be conformable to Article III,
Section 1 of the Constitution.

There can be no question that a substantial distinction exists between medical students and other
students who are not subjected to the NMAT and the three-flunk rule. The medical profession
directly affects the very lives of the people, unlike other careers which, for this reason, do not require
more vigilant regulation. The accountant, for example, while belonging to an equally respectable
profession, does not hold the same delicate responsibility as that of the physician and so need not
be similarly treated.

There would be unequal protection if some applicants who have passed the tests are admitted and
others who have also qualified are denied entrance. In other words, what the equal protection
requires is equality among equals.

The Court feels that it is not enough to simply invoke the right to quality education as a guarantee of
the Constitution: one must show that he is entitled to it because of his preparation and promise. The
private respondent has failed the NMAT five times. 7 While his persistence is noteworthy, to say the
least, it is certainly misplaced, like a hopeless love.

No depreciation is intended or made against the private respondent. It is stressed that a person who
does not qualify in the NMAT is not an absolute incompetent unfit for any work or occupation. The
only inference is that he is a probably better, not for the medical profession, but for another calling
that has not excited his interest.
In the former, he may be a bungler or at least lackluster; in the latter, he is more likely to succeed
and may even be outstanding. It is for the appropriate calling that he is entitled to quality education
for the full harnessing of his potentials and the sharpening of his latent talents toward what may
even be a brilliant future.

We cannot have a society of square pegs in round holes, of dentists who should never have left the
farm and engineers who should have studied banking and teachers who could be better as
merchants.

It is time indeed that the State took decisive steps to regulate and enrich our system of education by
directing the student to the course for which he is best suited as determined by initial tests and
evaluations. Otherwise, we may be "swamped with mediocrity," in the words of Justice Holmes, not
because we are lacking in intelligence but because we are a nation of misfits.

WHEREFORE, the petition is GRANTED. The decision of the respondent court dated January 13,
1989, is REVERSED, with costs against the private respondent. It is so ordered.

Fernan, C.J., Narvasa Melencio-Herrera, Gutierrez, Jr., Paras, Feliciano, Gancayco, Padilla, Bidin,
Sarmiento, Cortes, Griño-Aquino, Medialdea and Regalado, JJ., concur.

Footnotes

1 A check with the Department of Education showed that the private respondent
had actually taken and flunked four tests already and was applying to take a fifth
examination. 2 He also failed this fifth test.

2 Rollo, pp. 26-34.

3 152 SCRA 730.

4 US vs. Toribio, 15 Phil. 85; Fabie v. City of Manila, 21 Phil. 486; Ynot v.
Intermediate Appellate Court, 148 SCRA 659.

5 Article XIV, Section 5(3).

6 Footnote Nos. 1 & 2.

The Lawphil Project - Arellano Law Foundation

Department of Education vs. San Diego180 SCRA 533Facts:Private respondent is a graduate of the
University of the East with a degree of Bachelor ofScience in Zoology. The petitioner claims that
he took the National Medical AdmissionTest (NMAT) three times and flunked it as many times.
When he applied to take it again,the petitioner rejected his application on the basis of the
three-flunk rule that a studentshall be allowed only three (3) chances to take the NMAT.
After three (3) successivefailures, a student shall not be allowed to take the NMAT for the
fourth time. He thenfiled in the Regional Trial Court of Valenzuela petition for mandamus.
He invoked hisconstitutional rights to academic freedom and quality education. Respondent
judge heldthat the private respondent had been deprived of his right to pursue a medical
educationthrough an arbitrary exercise of police power.Issue:Whether or not the admission
rule by the petitioner is an arbitrary exercise of police power.Held:The court held that
police power is validly exercised if (a) the interests of the public generally, as distinguished
from those of a particular class, require the interference of theState, and (b) the means
employed are reasonably necessary to the attainment of the object sought to be
accomplished and not unduly oppressive upon individuals. The subject of the challenged
regulation is certainly within the ambit of the police power. It isthe right and indeed the
responsibility of the State to insure that the medical profession isnot infiltrated by
incompetents to whom patients may unwarily entrust their l ives andhealth. The method
employed by the challenged regulation is not irrelevant to the purposeof the law nor is it
arbitrary or oppressive. It is intended to insulate the medical schools and ultimately the
medical profession from the intrusion of those not qualified to bedoctors. The right to
quality education invoked by the private respondent is not absolute.The Constitution also
provides that “every citizen has the right to choose a profession orcourse of study, subject
to fair, reasonable, and equitabl e admission and academicrequirements. The decision
of the respondent court is reversed, with costs against the private respondent.

Pierce v. Society of Sisters, 268 U.S. 510 (1925)

Pierce v. Society of Sisters

Nos. 583, 584

Argued March 16, 17, 1925

Decided June 1, 1925

268 U.S. 510

APPEALS FROM THE DISTRICT COURT OF THE UNITED STATES

FOR THE DISTRICT OF OREGON

Syllabus
1. The fundamental theory of liberty upon which all governments of this Union rest
excludes any general power of the State to standardize its children by forcing them to
accept instruction from public teachers only. P. 268 U. S. 535.

2. The Oregon Compulsory Education Act (Oreg. Ls., § 5259) which, with certain
exemptions, requires every parent, guardian or other person having control of a child
between the ages of eight and sixteen years to send him to the public school in the
district where he resides, for the period during which the school is held for the current
year, is an unreasonable interference with the liberty of the parents and guardians to
direct the upbringing of the children, and in that respect violates the Fourteenth
Amendment. P. 268 U. S. 534.

3. In a proper sense, it is true that corporations cannot claim for themselves the liberty
guaranteed by the Fourteenth Amendment, and, in general, no person in any business
has such an interest in possible customers as to enable him to restrain exercise of
proper power by the State upon the ground that he will be deprived of patronage;

4. But where corporations owning and conducting schools are threatened with
destruction of their business and property through the improper and unconstitutional
compulsion exercised by this statute upon parents and guardians, their interest is direct
and immediate, and entitles them to protection by injunction. Truax v. Raich, 239 U. S.
33. P. 268 U. S. 535.

5. The Act, being intended to have general application, cannot be construed in its
application to such corporations as an exercise of power to amend their charters. Berea
College v. Kentucky, 211 U. S. 45. P. 268 U. S. 535.

6. Where the injury threatened by an unconstitutional statute is present and real before
the statute is to be effective, and will

Page 268 U. S. 511

become irreparable if relief be postponed to that time, a suit to restrain future

enforcement of the statute is not premature. P. 268 U. S. 536.

296 Fed. 928, affirmed.

APPEALS from decrees of the District Court granting preliminary injunctions restraining
the Governor, and other officials, of the State of Oregon from threatening or attempting
to enforce an amendment to the school law -- an initiative measure adopted by the
people November 7, 1922, to become effective in 1926 -- requiring parents and others
having control of young children to send them to the primary schools of the State. The
plaintiffs were two Oregon corporations owning and conducting schools.

Page 268 U. S. 529

MR. JUSTICE McREYNOLDS delivered the opinion of the Court.

These appeals are from decrees, based upon undenied allegations, which granted
preliminary orders restraining

Page 268 U. S. 530

appellants from threatening or attempting to enforce the Compulsory Education

Act * adopted November 7, 1922, under the initiative provision of her Constitution by the
voters of Oregon. Jud.Code, § 266. They present the same points of law; there are no
controverted questions of fact. Rights said to be guaranteed by the federal Constitution
were specially set up, and appropriate prayers asked for their protection.

The challenged Act, effective September 1, 1926, requires every parent, guardian or
other person having control or charge or custody of a child between eight and sixteen
years to send him "to a public school for the period of time a public school shall be held
during the current year" in the district where the child resides, and failure so to do is
declared a misdemeanor. There are

Page 268 U. S. 531

exemptions not specially important here -- for children who are not normal, or who have
completed he eighth grade, or who reside at considerable distances from any public
school, or whose parents or guardians hold special permits from the County
Superintendent. The manifest purpose is to compel general attendance at public
schools by normal children, between eight and sixteen, who have not completed the
eighth grade. And without doubt enforcement of the statute would seriously impair,
perhaps destroy, the profitable features of appellees' business and greatly diminish the
value of their property.

Appellee, the Society of Sisters, is an Oregon corporation, organized in 1880, with

power to care for orphans, educate and instruct the youth, establish and maintain
academies or schools, and acquire necessary real and personal

Page 268 U. S. 532

property. It has long devoted its property and effort to the secular and religious
education and care of children, and has acquired the valuable good will of many parents
and guardians. It conducts interdependent primary and high schools and junior colleges,
and maintains orphanages for the custody and control of children between eight and
sixteen. In its primary schools, many children between those ages are taught the
subjects usually pursued in Oregon public schools during the first eight years.
Systematic religious instruction and moral training according to the tenets of the Roman
Catholic Church are also regularly provided. All courses of study, both temporal and
religious, contemplate continuity of training under appellee's charge; the primary
schools are essential to the system and the most profitable. It owns valuable buildings,
especially constructed and equipped for school purposes. The business is remunerative
-- the annual income from primary schools exceeds thirty thousand dollars -- and the
successful conduct of this requires long-time contracts with teachers and parents. The
Compulsory Education Act of 1922 has already caused the withdrawal from its schools
of children who would otherwise continue, and their income has steadily declined. The
appellants, public officers, have proclaimed their purpose strictly to enforce the statute.

After setting out the above facts, the Society's bill alleges that the enactment conflicts
with the right of parents to choose schools where their children will receive appropriate
mental and religious training, the right of the child to influence the parents' choice of a
school, the right of schools and teachers therein to engage in a useful business or
profession, and is accordingly repugnant to the Constitution and void. And, further, that,
unless enforcement of the measure is enjoined the corporation's business and property
will suffer irreparable injury.

Appellee, Hill Military Academy, is a private corporation organized in 1908 under the
laws of Oregon, engaged

Page 268 U. S. 533

in owning, operating and conducting for profit an elementary, college preparatory and
military training school for boys between the ages of five and twenty-one years. The
average attendance is one hundred, and the annual fees received for each student
amount to some eight hundred dollars. The elementary department is divided into eight
grades, as in the public schools; the college preparatory department has four grades,
similar to those of the public high schools; the courses of study conform to the
requirements of the State Board of Education. Military instruction and training are also
given, under the supervision of an Army officer. It owns considerable real and personal
property, some useful only for school purposes. The business and incident good will are
very valuable. In order to conduct its affairs, long time contracts must be made for
supplies, equipment, teachers and pupils. Appellants, law officers of the State and
County, have publicly announced that the Act of November 7, 1922, is valid, and have
declared their intention to enforce it. By reason of the statute and threat of enforcement,
appellee's business is being destroyed and its property depreciated; parents and
guardians are refusing to make contracts for the future instruction of their sons, and
some are being withdrawn.

The Academy's bill states the foregoing facts and then alleges that the challenged Act
contravenes the corporation's rights guaranteed by the Fourteenth Amendment and
that, unless appellants are restrained from proclaiming its validity and threatening to
enforce it, irreparable injury will result. The prayer is for an appropriate injunction.

No answer was interposed in either cause, and, after proper notices, they were heard
by three judges (Jud.Code § 266) on motions for preliminary injunctions upon the
specifically alleged facts. The court ruled that the Fourteenth Amendment guaranteed
appellees against the
Page 268 U. S. 534

deprivation of their property without due process of law consequent upon the unlawful
interference by appellants with the free choice of patrons, present and prospective. It
declared the right to conduct schools was property, and that parents and guardians, as
a part of their liberty, might direct the education of children by selecting reputable
teachers and places. Also, that these schools were not unfit or harmful to the public,
and that enforcement of the challenged statute would unlawfully deprive them of
patronage, and thereby destroy their owners' business and property. Finally, that the
threats to enforce the Act would continue to cause irreparable injury, and the suits were
not premature.

No question is raised concerning the power of the State reasonably to regulate all
schools, to inspect, supervise and examine them, their teachers and pupils; to require
that all children of proper age attend some school, that teachers shall be of good moral
character and patriotic disposition, that certain studies plainly essential to good
citizenship must be taught, and that nothing be taught which is manifestly inimical to the
public welfare.

The inevitable practical result of enforcing the Act under consideration would be
destruction of appellees' primary schools, and perhaps all other private primary schools
for normal children within the State of Oregon. These parties are engaged in a kind of
undertaking not inherently harmful, but long regarded as useful and meritorious.
Certainly there is nothing in the present records to indicate that they have failed to
discharge their obligations to patrons, students or the State. And there are no peculiar
circumstances or present emergencies which demand extraordinary measures relative
to primary education.

Under the doctrine of Meyer v. Nebraska, 262 U. S. 390, we think it entirely plain that
the Act of 1922 unreasonably interferes with the liberty of parents and guardians to
direct the upbringing and education of children

Page 268 U. S. 535

under their control: as often heretofore pointed out, rights guaranteed by the
Constitution may not be abridged by legislation which has no reasonable relation to
some purpose within the competency of the State. The fundamental theory of liberty
upon which all governments in this Union repose excludes any general power of the
State to standardize its children by forcing them to accept instruction from public
teachers only. The child is not the mere creature of the State; those who nurture him
and direct his destiny have the right, coupled with the high duty, to recognize and
prepare him for additional obligations.

Appellees are corporations, and therefore, it is said, they cannot claim for themselves
the liberty which the Fourteenth Amendment guarantees. Accepted in the proper sense,
this is true. Northwestern Life Ins. Co. v. Riggs, 203 U. S. 243, 203 U. S. 255; Western
Turf Association v. Greenberg, 204 U. S. 359, 204 U. S. 363. But they have business
and property for which they claim protection. These are threatened with destruction
through the unwarranted compulsion which appellants are exercising over present and
prospective patrons of their schools. And this court has gone very far to protect against
loss threatened by such action. Truax v. Raich,239 U. S. 33; Truax v. Corrigan, 257 U.
S. 312; Terrace v. Thompson, 263 U. S. 197.

The courts of the State have not construed the Act, and we must determine its meaning
for ourselves. Evidently it was expected to have general application, and cannot be
construed as though merely intended to amend the charters of certain private
corporations, as in Berea College v. Kentucky, 211 U. S. 45. No argument in favor of
such view has been advanced.

Generally it is entirely true, as urged by counsel, that no person in any business has
such an interest in possible customers as to enable him to restrain exercise of proper
power of the State upon the ground that he will be deprived

Page 268 U. S. 536

of patronage. But the injunctions here sought are not against the exercise of any proper
power. Plaintiffs asked protection against arbitrary, unreasonable and unlawful
interference with their patrons and the consequent destruction of their business and
property. Their interest is clear and immediate, within the rule approved in Truax v.
Raich, Truax v. Corrigan and Terrace v. Thompson, supra, and many other cases
where injunctions have issued to protect business enterprises against interference with
the freedom of patrons or customers. Hitchman Coal & Coke Co. v. Mitchell, 245 U. S.
229; Duplex Printing Press Co. v. Deering, 254 U. S. 443; American Steel Foundries v.
Tri-City Central Trades Council, 257 U. S. 184; Nebraska District v. McKelvie, 262 U. S.
404; Truax v. Corrigan, supra, and cases there cited.

The suits were not premature. The injury to appellees was present and very real, not a
mere possibility in the remote future. If no relief had been possible prior to the effective
date of the Act, the injury would have become irreparable. Prevention of impending
injury by unlawful action is a well recognized function of courts of equity. The decrees
below are

Affirmed.

"Be it Enacted by the People of the State of Oregon:"

"Section 1. That Section 5259, Oregon Laws, be and the same is hereby amended so
as to read as follows:"
"Sec. 5259. Children Between the Ages of Eight and Sixteen Years -- Any parent,
guardian or other person in the State of Oregon, having control or charge or custody of
a child under the age of sixteen years and of the age of eight years or over at the
commencement of a term of public school of the district in which said child resides, who
shall fail or neglect or refuse to send such child to a public school for the period of time
a public school shall be held during the current year in said district, shall be guilty of a
misdemeanor and each day's failure to send such child to a public school shall
constitute a separate offense; provided, that, in the following cases, children shall not be
required to attend public schools:"

"(a) Children Physically Unable -- Any child who is abnormal, subnormal or physically
unable to attend school."

"(b) Children Who Have Completed the Eighth Grade -- Any child who has completed
the eighth grade, in accordance with the provisions of the state course of study."

"(c) Distance from school -- Children between the ages of eight and ten years, inclusive,
whose place of residence is more than one and one-half miles, and children over ten
years of age whose place of residence is more than three miles, by the nearest traveled
road, from public school; provided, however, that, if transportation to and from school is
furnished by the school district, this exemption shall not apply."

"(d) Private Instruction -- Any child who is being taught for a like period of time by the
parent or private teacher such subjects as are usually taught in the first eight years in
the public school; but before such child can be taught by a parent or a private teacher,
such parent or private teacher must receive written permission from the county
superintendent, and such permission shall not extend longer than the end of the current
school year. Such child must report to the county school superintendent or some person
designated by him at least once every three months and take an examination in the
work covered. If, after such examination, the county superintendent shall determine that
such child is not being properly taught, then the county superintendent shall order the
parent, guardian or other person, to send such child to the public school the remainder
of the school year."

"If any parent, guardian or other person having control or charge or custody of any child
between the ages of eight and sixteen years shall fail to comply with any provision of
this section, he shall be guilty of a misdemeanor, and shall, on conviction thereof, be
subject to a fine of not less than $5, nor more than $100, or to imprisonment in the
county jail not less than two nor more than thirty days, or by both such fine and
imprisonment in the discretion of the court."

"This Act shall take effect and be and remain in force from and after the first day of
September, 1926."

Disclaimer: Official Supreme Court case law is only found in the

 Republic of the Philippines
SUPREME COURT
Manila

SECOND DIVISION

G.R. No. L-47841 March 21, 1978

FRANCISCO VIRTOUSO, JR., petitioner,

vs.
MUNICIPAL JUDGE OF MARIVELES, BATAAN, and CHIEF OF POLICE OF MARIVELES,
BATAAN, respondents.

RESOLUTION

FERNANDO, J.:

Petitioner Francisco Virtouso, Jr., who filed an application for the writ of habeas corpus on February
23, 1978, premised his plea for liberty primarily on the ground that the pre examination which led to
the issuance of a warrant of arrest against him was a useless formality as respondent Municipal
Judge of Mariveles, Bataan, 1 failed to meet the strict standard required by the Constitution to
ascertain whether there was a probable cause. 2 He likewise alleged that aside from the
constitutional infirmity that tainted the procedure followed in the preliminary examination, the bail
imposed was clearly excessive. 3 It was in the amount of Pl6,000.00, the alleged robbery of a TV set
being imputed to petitioner. As prayed for, the Court issued a writ of habeas corpus, returnable to it
on Wednesday, March 15, 1978. Respondent Judge, in his return filed on March 8, 1978, justified
the issuance of the warrant of arrest, alleging that there was no impropriety in the way the
preliminary examination was conducted. As to the excessive character of the bail, he asserted that
while it was fixed in accordance with the Revised Bail Bond Guide issued by the Executive Judge of
Bataan in 1977, he nevertheless reduced the amount to P 8,000.00.

Petitioner's counsel and respondent Municipal Judge orally argued the matter on March 15, 1978. In
the course of intensive questioning by the members of this Court, especially Justices Barredo,
Aquino and Santos, it was ascertained that petitioner is a seventeen-year old minor entitled to the
protection and benefits of the Child and Youth Welfare Code. 4 a youthful offender being defined
therein as "one who is over nine years but under eighteen years of age at the time of the
commission of the offense." 5 As such, he could be provisionally released on recognizance in the
discretion of a court. 6 According accordingly, after the hearing, the Court issued the following
resolution: "Acting on the verbal petition of counsel for petitioner Francisco Virtouso, Jr., the Court
Resolved pursuant to section 191 of Presidential Decree No. 603, petitioner being a 17-year old
minor, to [order] the release of the petitioner on the recognizance of his parents Francisco Virtouso,
Sr. and Manuela Virtouso and his counsel, Atty. Guillermo B. Bandonil, who, in open court, agreed to
act in such capacity, without prejudice to further proceedings in a pending case against petitioner
being taken in accordance with law." 7 This Court should, whenever appropriate, give vitality and
force to the Youth and Welfare Code, which is an implementation of this specific constitutional
mandate: "The State recognizes the vital role of the youth in nation-building and shall promote their
physical, intellectual, and social well-being." 8
Thus was the petition resolved, without the need of passing upon the issue of whether or not the
procedure by respondent Judge in ascertaining the existence of probable cause was constitutionally
deficient. Nonetheless, it must ever be kept in mind by occupants of the bench that they should
always be on the alert lest by sloth or indifference or due to the economic or social standing of the
alleged offended party, as was intimated in this petition, the rights of an accused, instead of being
honored, are disregarded. There is much more importance attached to the immunities of an
individual during a period of martial law, which in itself is a creature of the Constitution as a mode of
coping with grave emergency situations. It is equally pertinent to state that there should be fealty to
the constitutional ban against excessive bail being required. There is relevance to this excerpt
from De la Camara v. Enage: 9

Where, however, the right to bail exists, it should not be rendered nugatory by
requiring a sum that is excessive. So the Constitution commands. It is
understandable why. If there were no such prohibition, the right to bail becomes
meaningless. It would have been more forthright if no mention of such a guarantee
were found in the fundamental law. It is not to be lost sight of that that United States
Constitution limits itself to a prohibition against excessive bail. As construed in the
latest American decision, 'the sole permissible function of money bail is to assure the
accused's presence at trial, and declared that "bail set at a higher figure than an
amount reasonably calculated to fulfill this purpose is 'excessive' under the Eighth
Amendment. 10

WHEREFORE, the petition is granted in accordance with the terms of the Resolution of this Court of
March 15, 1978 as set forth above.

Barredo, Antonio, Aquino, Concepcion, Jr. and Santos, JJ., concur.

Footnotes

1 The Chief of Police of Mariveles, Bataan was named as the other respondent.

2 According to Article IV, Section 3 of the Constitution: "The right of the people to be
secure in their persons, houses, papers, and effects against unreasonable searches
and seizures of whatever nature and for any purpose shall not be violated, and no
search warrant or warrant of arrest shall issue except upon probable cause to be
determined by the judge, or such other responsible officer as may be authorized by
law, after examination under oath or affirmation of the complainant and the witnesses
he may produced, and particularly describing the place to be searched, and the
persons or things to be seized."

3 According to Article IV, Section 18 of the Constitution: "All persons, except those
charged with capital offenses when evidence of guilt is strong, shall, before
conviction, be bailable by sufficient sureties. Excessive bail shall not be required."

4 Presidential Decree 603 (1974).

5 The Child and Youth Welfare Code, Article 189, as amended by Presidential
Decree No. 1179 (1977).
6 Ibid, Article 191.

7 Resolution of March 15,1978.

8 Article II, Section 5 of the Constitution.

9 L-32951-2, September 17, 1971, 41 SCRA 1.

10 Ibid, 8.