EN BANC

SENATOR AQUILINO PIMENTEL, JR., G.R. No. 158088

REP. ETTA ROSALES, PHILIPPINE
COALITION FOR THE ESTABLISHMENT
OF THE INTERNATIONAL Present:
CRIMINAL COURT, TASK FORCE
DETAINEES OF THE PHILIPPINES, Davide, Jr., C.J.,
FAMILIES OF VICTIMS OF Puno,
INVOLUNTARY DISAPPEARANCES, Panganiban,
BIANCA HACINTHA R. ROQUE, Quisumbing,
HARRISON JACOB R. ROQUE, Ynares-Santiago,
AHMED PAGLINAWAN, RON P. SALO, *Sandoval-Gutierrez,
LEAVIDES G. DOMINGO, EDGARDO *Carpio,
CARLO VISTAN, NOEL VILLAROMAN, Austria-Martinez,
CELESTE CEMBRANO, LIZA ABIERA, *Corona,
JAIME ARROYO, MARWIL LLASOS, Carpio Morales,
CRISTINA ATENDIDO, ISRAFEL Callejo, Sr.,
FAGELA, and ROMEL BAGARES, Azcuna,
Petitioners, Tinga,
Chico-Nazario, and
- versus - Garcia, JJ.

OFFICE OF THE EXECUTIVE

SECRETARY, represented by Promulgated:
HON. ALBERTO ROMULO, and the
DEPARTMENT OF FOREIGN
AFFAIRS, represented by HON. BLAS OPLE, July 6, 2005
Respondents.
x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
- - - -x

DECISION
PUNO J.:

This is a petition for mandamus filed by petitioners to compel the

Office of the Executive Secretary and the Department of Foreign
Affairs to transmit the signed copy of the Rome Statute of the
International Criminal Court to the Senate of the Philippines for its
concurrence in accordance with Section 21, Article VII of the 1987
Constitution.

The Rome Statute established the International Criminal Court which

shall have the power to exercise its jurisdiction over persons for the
most serious crimes of international concern xxx and shall be
complementary to the national criminal jurisdictions.[1] Its jurisdiction
covers the crime of genocide, crimes against humanity, war crimes and
the crime of aggression as defined in the Statute.[2] The Statute was
opened for signature by all states in Rome on July 17, 1998 and had
remained open for signature until December 31, 2000 at the United
Nations Headquarters in New York. The Philippines signed the Statute
on December 28, 2000 through Charge d Affairs Enrique A. Manalo
of the Philippine Mission to the United Nations.[3] Its provisions,
however, require that it be subject to ratification, acceptance or
approval of the signatory states.[4]

Petitioners filed the instant petition to compel the respondents the

Office of the Executive Secretary and the Department of Foreign
Affairs to transmit the signed text of the treaty to the Senate of the
Philippines for ratification.

It is the theory of the petitioners that ratification of a treaty, under both

domestic law and international law, is a function of the Senate. Hence,
it is the duty of the executive department to transmit the signed copy
of the Rome Statute to the Senate to allow it to exercise its discretion
with respect to ratification of treaties. Moreover, petitioners submit
that the Philippines has a ministerial duty to ratify the Rome Statute
under treaty law and customary international law. Petitioners invoke
the Vienna Convention on the Law of Treaties enjoining the states to
refrain from acts which would defeat the object and purpose of a treaty
when they have signed the treaty prior to ratification unless they have
made their intention clear not to become parties to the treaty.[5]

The Office of the Solicitor General, commenting for the respondents,

questioned the standing of the petitioners to file the instant suit. It also
contended that the petition at bar violates the rule on hierarchy of
courts. On the substantive issue raised by petitioners, respondents
argue that the executive department has no duty to transmit the Rome
Statute to the Senate for concurrence.

A petition for mandamus may be filed when any tribunal, corporation,

board, officer or person unlawfully neglects the performance of an act
which the law specifically enjoins as a duty resulting from an office,
trust, or station.[6] We have held that to be given due course, a petition
for mandamus must have been instituted by a party aggrieved by the
alleged inaction of any tribunal, corporation, board or person which
unlawfully excludes said party from the enjoyment of a legal right. The
petitioner in every case must therefore be an aggrieved party in the
sense that he possesses a clear legal right to be enforced and a direct
interest in the duty or act to be performed.[7] The Court will exercise
its power of judicial review only if the case is brought before it by a
party who has the legal standing to raise the constitutional or legal
question. Legal standing means a personal and substantial interest in
the case such that the party has sustained or will sustain direct injury
as a result of the government act that is being challenged. The term
interest is material interest, an interest in issue and to be affected by
the decree, as distinguished from mere interest in the question
involved, or a mere incidental interest.[8]

The petition at bar was filed by Senator Aquilino Pimentel, Jr. who
asserts his legal standing to file the suit as member of the Senate;
Congresswoman Loretta Ann Rosales, a member of the House of
Representatives and Chairperson of its Committee on Human Rights;
the Philippine Coalition for the Establishment of the International
Criminal Court which is composed of individuals and corporate
entities dedicated to the Philippine ratification of the Rome Statute; the
Task Force Detainees of the Philippines, a juridical entity with the
avowed purpose of promoting the cause of human rights and human
rights victims in the country; the Families of Victims of Involuntary
Disappearances, a juridical entity duly organized and existing pursuant
to Philippine Laws with the avowed purpose of promoting the cause of
families and victims of human rights violations in the country; Bianca
Hacintha Roque and Harrison Jacob Roque, aged two (2) and one (1),
respectively, at the time of filing of the instant petition, and suing under
the doctrine of inter-generational rights enunciated in the case
of Oposa vs. Factoran, Jr.;[9] and a group of fifth year working law
students from the University of the Philippines College of Law who
are suing as taxpayers.

The question in standing is whether a party has alleged such a personal

stake in the outcome of the controversy as to assure that concrete
adverseness which sharpens the presentation of issues upon which the
court so largely depends for illumination of difficult constitutional
questions.[10]

We find that among the petitioners, only Senator Pimentel has the legal
standing to file the instant suit. The other petitioners maintain their
standing as advocates and defenders of human rights, and as citizens
of the country. They have not shown, however, that they have
sustained or will sustain a direct injury from the non-transmittal of the
signed text of the Rome Statute to the Senate. Their contention that
they will be deprived of their remedies for the protection and
enforcement of their rights does not persuade. The Rome Statute is
intended to complement national criminal laws and courts. Sufficient
remedies are available under our national laws to protect our citizens
against human rights violations and petitioners can always seek redress
for any abuse in our domestic courts.

As regards Senator Pimentel, it has been held that to the extent

the powers of Congress are impaired, so is the power of each member
thereof, since his office confers a right to participate in the exercise of
the powers of that institution.[11]Thus, legislators have the standing to
maintain inviolate the prerogatives, powers and privileges vested by
the Constitution in their office and are allowed to sue to question the
validity of any official action which they claim infringes their
prerogatives as legislators. The petition at bar invokes the power of the
Senate to grant or withhold its concurrence to a treaty entered into by
the executive branch, in this case, the Rome Statute. The petition seeks
to order the executive branch to transmit the copy of the treaty to the
Senate to allow it to exercise such authority. Senator Pimentel, as
member of the institution, certainly has the legal standing to assert such
authority of the Senate.

We now go to the substantive issue.

The core issue in this petition for mandamus is whether the Executive
Secretary and the Department of Foreign Affairs have
a ministerial duty to transmit to the Senate the copy of the Rome
Statute signed by a member of the Philippine Mission to the United
Nations even without the signature of the President.

We rule in the negative.

In our system of government, the President, being the head of state, is

regarded as the sole organ and authority in external relations and is the
countrys sole representative with foreign nations.[12] As the chief
architect of foreign policy, the President acts as the countrys
mouthpiece with respect to international affairs. Hence, the President
is vested with the authority to deal with foreign states and
governments, extend or withhold recognition, maintain diplomatic
relations, enter into treaties, and otherwise transact the business of
foreign relations.[13] In the realm of treaty-making, the President has
the sole authority to negotiate with other states.

Nonetheless, while the President has the sole authority to

negotiate and enter into treaties, the Constitution provides a limitation
to his power by requiring the concurrence of 2/3 of all the members of
the Senate for the validity of the treaty entered into by him. Section 21,
Article VII of the 1987 Constitution provides that no treaty or
international agreement shall be valid and effective unless concurred
in by at least two-thirds of all the Members of the Senate. The 1935
and the 1973 Constitution also required the concurrence by the
legislature to the treaties entered into by the executive. Section 10 (7),
Article VII of the 1935 Constitution provided:
Sec. 10. (7) The President shall have the power, with the
concurrence of two-thirds of all the Members of the Senate,
to make treaties xxx.

Section 14 (1) Article VIII of the 1973 Constitution stated:

Sec. 14. (1) Except as otherwise provided in this
Constitution, no treaty shall be valid and effective unless
concurred in by a majority of all the Members of the
Batasang Pambansa.

The participation of the legislative branch in the treaty-making process

was deemed essential to provide a check on the executive in the field
of foreign relations.[14] By requiring the concurrence of the legislature
in the treaties entered into by the President, the Constitution ensures a
healthy system of checks and balance necessary in the nations pursuit
of political maturity and growth.[15]

In filing this petition, the petitioners interpret Section 21, Article VII
of the 1987 Constitution to mean that the power to ratify treaties
belongs to the Senate.

We disagree.

Justice Isagani Cruz, in his book on International Law, describes the

treaty-making process in this wise:
The usual steps in the treaty-making process are:
negotiation, signature, ratification, and exchange of the
instruments of ratification. The treaty may then be submitted
for registration and publication under the U.N. Charter,
although this step is not essential to the validity of the
agreement as between the parties.

Negotiation may be undertaken directly by the head of state

but he now usually assigns this task to his authorized
representatives. These representatives are provided with
credentials known as full powers, which they exhibit to the
other negotiators at the start of the formal discussions. It is
standard practice for one of the parties to submit a draft of
the proposed treaty which, together with the counter-
proposals, becomes the basis of the subsequent negotiations.
The negotiations may be brief or protracted, depending on
the issues involved, and may even collapse in case the parties
are unable to come to an agreement on the points under
consideration.

If and when the negotiators finally decide on the terms of the

treaty, the same is opened for signature. This step is
primarily intended as a means of authenticating the
instrument and for the purpose of symbolizing the good faith
of the parties; but, significantly, it does not indicate the
final consent of the state in cases where ratification of the
treaty is required. The document is ordinarily signed in
accordance with the alternat, that is, each of the several
negotiators is allowed to sign first on the copy which he will
bring home to his own state.

Ratification, which is the next step, is the formal act by

which a state confirms and accepts the provisions of a treaty
concluded by its representatives. The purpose of
ratification is to enable the contracting states to examine
the treaty more closely and to give them an opportunity
to refuse to be bound by it should they find it inimical to
their interests. It is for this reason that most treaties are
made subject to the scrutiny and consent of a department
of the government other than that which negotiated
them.

xxx

The last step in the treaty-making process is

the exchange of the instruments of ratification, which
usually also signifies the effectivity of the treaty unless a
different date has been agreed upon by the parties. Where
ratification is dispensed with and no effectivity clause is
 embodied in the treaty, the instrument is deemed effective
upon its signature.[16] [emphasis supplied]

Petitioners arguments equate the signing of the treaty by the

Philippine representative with ratification. It should be underscored
that the signing of the treaty and the ratification are two separate and
distinct steps in the treaty-making process. As earlier discussed, the
signature is primarily intended as a means of authenticating the
instrument and as a symbol of the good faith of the parties. It is usually
performed by the states authorized representative in the diplomatic
mission. Ratification, on the other hand, is the formal act by which a
state confirms and accepts the provisions of a treaty concluded by its
representative. It is generally held to be an executive act, undertaken
by the head of the state or of the government.[17]Thus, Executive Order
No. 459 issued by President Fidel V. Ramos on November 25, 1997
provides the guidelines in the negotiation of international agreements
and its ratification. It mandates that after the treaty has been signed by
the Philippine representative, the same shall be transmitted to the
Department of Foreign Affairs. The Department of Foreign Affairs
shall then prepare the ratification papers and forward the signed copy
of the treaty to the President for ratification. After the President has
ratified the treaty, the Department of Foreign Affairs shall submit the
same to the Senate for concurrence. Upon receipt of the concurrence
of the Senate, the Department of Foreign Affairs shall comply with the
provisions of the treaty to render it effective. Section 7 of Executive
Order No. 459 reads:
Sec. 7. Domestic Requirements for the Entry into
Force of a Treaty or an Executive Agreement. The
domestic requirements for the entry into force of a treaty or
an executive agreement, or any amendment thereto, shall be
as follows:

A. Executive Agreements.

i. All executive agreements shall be

transmitted to the Department of Foreign
Affairs after their signing for the preparation
 of the ratification papers. The transmittal
shall include the highlights of the agreements
and the benefits which will accrue to the
Philippines arising from them.

ii. The Department of Foreign Affairs,

pursuant to the endorsement by the
concerned agency, shall transmit the
agreements to the President of the Philippines
for his ratification. The original signed
instrument of ratification shall then be
returned to the Department of Foreign Affairs
for appropriate action.

B. Treaties.

i. All treaties, regardless of their designation,

shall comply with the requirements provided
in sub-paragraph[s] 1 and 2, item A
(Executive Agreements) of this Section. In
addition, the Department of Foreign Affairs
shall submit the treaties to the Senate of the
Philippines for concurrence in the ratification
by the President. A certified true copy of the
treaties, in such numbers as may be required
by the Senate, together with a certified true
copy of the ratification instrument, shall
accompany the submission of the treaties to
the Senate.

ii. Upon receipt of the concurrence by the

Senate, the Department of Foreign Affairs
shall comply with the provision of the treaties
in effecting their entry into force.

Petitioners submission that the Philippines is bound under treaty law

and international law to ratify the treaty which it has signed is without
basis. The signature does not signify the final consent of the state to
the treaty. It is the ratification that binds the state to the provisions
thereof. In fact, the Rome Statute itself requires that the signature of
the representatives of the states be subject to ratification, acceptance
or approval of the signatory states. Ratification is the act by which the
provisions of a treaty are formally confirmed and approved by a State.
By ratifying a treaty signed in its behalf, a state expresses its
willingness to be bound by the provisions of such treaty. After the
treaty is signed by the states representative, the President, being
accountable to the people, is burdened with the responsibility and the
duty to carefully study the contents of the treaty and ensure that they
are not inimical to the interest of the state and its people. Thus, the
President has the discretion even after the signing of the treaty by the
Philippine representative whether or not to ratify the same. The Vienna
Convention on the Law of Treaties does not contemplate to defeat or
even restrain this power of the head of states. If that were so, the
requirement of ratification of treaties would be pointless and futile. It
has been held that a state has no legal or even moral duty to ratify a
treaty which has been signed by its plenipotentiaries.[18] There is no
legal obligation to ratify a treaty, but it goes without saying that the
refusal must be based on substantial grounds and not on superficial or
whimsical reasons. Otherwise, the other state would be justified in
taking offense.[19]

It should be emphasized that under our Constitution, the power to ratify

is vested in the President, subject to the concurrence of the Senate. The
role of the Senate, however, is limited only to giving or withholding
its consent, or concurrence, to the ratification.[20] Hence, it is within the
authority of the President to refuse to submit a treaty to the Senate or,
having secured its consent for its ratification, refuse to ratify
it.[21] Although the refusal of a state to ratify a treaty which has been
signed in its behalf is a serious step that should not be taken
lightly,[22] such decision is within the competence of the President
alone, which cannot be encroached by this Court via a writ
of mandamus. This Court has no jurisdiction over actions seeking to
enjoin the President in the performance of his official duties.[23] The
Court, therefore, cannot issue the writ of mandamus prayed for by the
petitioners as it is beyond its jurisdiction to compel the executive
branch of the government to transmit the signed text of Rome Statute
to the Senate.

IN VIEW WHEREOF, the petition is DISMISSED.

SO ORDERED.

REYNATO S. PUNO
Associate Justice

WE CONCUR:

HILARIO G. DAVIDE, JR.

Chief Justice

ARTEMIO V. PANGANIBAN LEONARDO A. QUISUMBING

Associate Justice Associate Justice

(on official leave)

CONSUELO YNARES-SANTIAGO ANGELINA SANDOVAL
GUTIERREZ
Associate Justice Associate Justice
(on official leave)
ANTONIO T. CARPIO MA. ALICIA AUSTRIA-MARTINEZ
Associate Justice Associate Justice

(on official leave)

RENATO C. CORONA CONCHITA CARPIO MORALES
Associate Justice Associate Justice

ROMEO J. CALLEJO, SR. ADOLFO S. AZCUNA

Associate Justice Associate Justice

DANTE O. TINGA MINITA V. CHICO-NAZARIO

Associate Justice Associate Justice

CANCIO C. GARCIA
Associate Justice
CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, it is hereby

certified that the conclusions in the above Decision were reached in
consultation before the case was assigned to the writer of the opinion
of the Court.

HILARIO G. DAVIDE, JR.

Chief Justice

*
On official leave.

[1]
Article 1, Rome Statute.
[2]
Article 5, Rome Statute.
[3]
Annex B of Petition, Rollo, p. 101.
[4]
Article 25, Rome Statute.
[5]
Article 18, Vienna Convention on the Law of Treaties reads:

Article 18
Obligation not to defeat the object and purpose of a treaty prior to its
entry into force

A State is obliged to refrain from acts which would defeat the object and
purpose of a treaty when:
 (a) it has signed the treaty or has exchanged instruments constituting the
treaty subject to ratification, acceptance or approval, until it shall have
made its intention clear not to become a party to the treaty; or

(b) it has expressed its consent to be bound by the treaty, pending the entry
into force of the treaty and provided that such entry into force is not
unduly delayed.

[6]
Section 3, Rule 65, 1997 Rules of Civil Procedure.
[7]
Legaspi vs. Civil Service Commission, 150 SCRA 530 (1987).
[8]
Joya vs. Presidential Commission on Good Government, 225 SCRA 568
(1993).
[9]
224 SCRA 792 (1993).
[10]
Gonzales vs. Narvasa, 337 SCRA 733 (2000).
[11]
Del Mar vs. Philippine Amusement and Gaming Corporation, 346 SCRA
485 (2000).
[12]
Cortes, The Philippine Presidency: A Study of Executive Power (1966), p.
187.
[13]
Cruz, Philippine Political Law (1996 Ed.), p. 223.
[14]
Cortes, supra note 12, p. 189.
[15]
Bayan vs. Zamora, 342 SCRA 449 (2000).
[16]
Cruz, International Law (1998 Ed.), pp. 172-174.
[17]
Bayan vs. Zamora, supra note 15.
[18]
Salonga and Yap, Public International Law (5th Edition), p. 138.
[19]
Cruz, International Law, supra note 16, p.174.
[20]
Bayan vs. Zamora, supra note 15.
[21]
Cruz, International Law, supra note 16, p.174.
[22]
Salonga and Yap, supra note 18.
[23]
See Severino vs. Governor-General, 16 Phil. 366 (1910).
Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-2662 March 26, 1949

SHIGENORI KURODA, petitioner,

vs.
Major General RAFAEL JALANDONI, Brigadier General CALIXTO
DUQUE, Colonel MARGARITO TORALBA, Colonel IRENEO
BUENCONSEJO, Colonel PEDRO TABUENA, Major FEDERICO
ARANAS, MELVILLE S. HUSSEY and ROBERT PORT, respondents.

Pedro Serran, Jose G. Lukban, and Liberato B. Cinco for petitioner.

Fred Ruiz Castro Federico Arenas Mariano Yengco, Jr., Ricardo A.
Arcilla and S. Melville Hussey for respondents.

MORAN, C.J.:

Shigenori Kuroda, formerly a Lieutenant-General of the Japanese

Imperial Army and Commanding General of the Japanese Imperial
Forces in The Philippines during a period covering 19433 and 19444
who is now charged before a military Commission convened by the Chief
of Staff of the Armed forces of the Philippines with having unlawfully
disregarded and failed "to discharge his duties as such command,
permitting them to commit brutal atrocities and other high crimes against
noncombatant civilians and prisoners of the Imperial Japanese Forces
in violation of the laws and customs of war" — comes before this Court
seeking to establish the illegality of Executive Order No. 68 of the
President of the Philippines: to enjoin and prohibit respondents Melville
S. Hussey and Robert Port from participating in the prosecution of
petitioner's case before the Military Commission and to permanently
prohibit respondents from proceeding with the case of petitioners.

In support of his case petitioner tenders the following principal

arguments.

First. — "That Executive Order No. 68 is illegal on the ground that it

violates not only the provision of our constitutional law but also our local
laws to say nothing of the fact (that) the Philippines is not a signatory
nor an adherent to the Hague Convention on Rules and Regulations
covering Land Warfare and therefore petitioners is charged of 'crimes'
not based on law, national and international." Hence petitioner argues
— "That in view off the fact that this commission has been empanelled
by virtue of an unconstitutional law an illegal order this commission is
without jurisdiction to try herein petitioner."
Second. — That the participation in the prosecution of the case against
petitioner before the Commission in behalf of the United State of
America of attorneys Melville Hussey and Robert Port who are not
attorneys authorized by the Supreme Court to practice law in the
Philippines is a diminution of our personality as an independent state
and their appointment as prosecutor are a violation of our Constitution
for the reason that they are not qualified to practice law in the
Philippines.

Third. — That Attorneys Hussey and Port have no personality as

prosecution the United State not being a party in interest in the case.

Executive Order No. 68, establishing a National War Crimes Office

prescribing rule and regulation governing the trial of accused war
criminals, was issued by the President of the Philippines on the 29th
days of July, 1947 This Court holds that this order is valid and
constitutional. Article 2 of our Constitution provides in its section 3, that
—

The Philippines renounces war as an instrument of national policy

and adopts the generally accepted principles of international law
as part of the of the nation.

In accordance with the generally accepted principle of international law

of the present day including the Hague Convention the Geneva
Convention and significant precedents of international jurisprudence
established by the United Nation all those person military or civilian who
have been guilty of planning preparing or waging a war of aggression
and of the commission of crimes and offenses consequential and
incidental thereto in violation of the laws and customs of war, of
humanity and civilization are held accountable therefor. Consequently in
the promulgation and enforcement of Execution Order No. 68 the
President of the Philippines has acted in conformity with the generally
accepted and policies of international law which are part of the our
Constitution.

The promulgation of said executive order is an exercise by the President

of his power as Commander in chief of all our armed forces as upheld
by this Court in the case of Yamashita vs. Styer (L-129, 42 Off. Gaz.,
664) 1 when we said —

War is not ended simply because hostilities have ceased. After

cessation of armed hostilities incident of war may remain pending
which should be disposed of as in time of war. An importance
incident to a conduct of war is the adoption of measure by the
military command not only to repel and defeat the enemies but to
seize and subject to disciplinary measure those enemies who in
their attempt to thwart or impede our military effort have violated
 the law of war. (Ex parte Quirin 317 U.S., 1; 63 Sup. Ct., 2.) Indeed
the power to create a military commission for the trial and
punishment of war criminals is an aspect of waging war. And in the
language of a writer a military commission has jurisdiction so long
as a technical state of war continues. This includes the period of an
armistice or military occupation up to the effective of a treaty of
peace and may extend beyond by treaty agreement. (Cowles Trial
of War Criminals by Military Tribunals, America Bar Association
Journal June, 1944.)

Consequently, the President as Commander in Chief is fully empowered

to consummate this unfinished aspect of war namely the trial and
punishment of war criminal through the issuance and enforcement of
Executive Order No. 68.

Petitioner argues that respondent Military Commission has no

Jurisdiction to try petitioner for acts committed in violation of the Hague
Convention and the Geneva Convention because the Philippines is not
a signatory to the first and signed the second only in 1947. It cannot be
denied that the rules and regulation of the Hague and Geneva
conventions form, part of and are wholly based on the generally
accepted principals of international law. In facts these rules and
principles were accepted by the two belligerent nation the United State
and Japan who were signatories to the two Convention, Such rule and
principles therefore form part of the law of our nation even if the
Philippines was not a signatory to the conventions embodying them for
our Constitution has been deliberately general and extensive in its scope
and is not confined to the recognition of rule and principle of international
law as continued inn treaties to which our government may have been
or shall be a signatory.

Furthermore when the crimes charged against petitioner were allegedly

committed the Philippines was under the sovereignty of United States
and thus we were equally bound together with the United States and
with Japan to the right and obligation contained in the treaties between
the belligerent countries. These rights and obligation were not erased by
our assumption of full sovereignty. If at all our emergency as a free state
entitles us to enforce the right on our own of trying and punishing those
who committed crimes against crimes against our people. In this
connection it is well to remember what we have said in the case of Laurel
vs. Misa (76 Phil., 372):

. . . The change of our form government from Commonwealth to

Republic does not affect the prosecution of those charged with the
crime of treason committed during then Commonwealth because it
is an offense against the same sovereign people. . . .
By the same token war crimes committed against our people and our
government while we were a Commonwealth are triable and punishable
by our present Republic.

Petitioner challenges the participation of two American attorneys namely

Melville S. Hussey and Robert Port in the prosecution of his case on the
ground that said attorney's are not qualified to practice law in Philippines
in accordance with our Rules of court and the appointment of said
attorneys as prosecutors is violative of our national sovereignty.

In the first place respondent Military Commission is a special military

tribunal governed by a special law and not by the Rules of court which
govern ordinary civil court. It has already been shown that Executive
Order No. 68 which provides for the organization of such military
commission is a valid and constitutional law. There is nothing in said
executive order which requires that counsel appearing before said
commission must be attorneys qualified to practice law in the Philippines
in accordance with the Rules of Court. In facts it is common in military
tribunals that counsel for the parties are usually military personnel who
are neither attorneys nor even possessed of legal training.

Secondly the appointment of the two American attorneys is not violative

of our nation sovereignty. It is only fair and proper that United States,
which has submitted the vindication of crimes against her government
and her people to a tribunal of our nation should be allowed
representation in the trial of those very crimes. If there has been any
relinquishment of sovereignty it has not been by our government but by
the United State Government which has yielded to us the trial and
punishment of her enemies. The least that we could do in the spirit of
comity is to allow them representation in said trials.

Alleging that the United State is not a party in interest in the case
petitioner challenges the personality of attorneys Hussey and Port as
prosecutors. It is of common knowledge that the United State and its
people have been equally if not more greatly aggrieved by the crimes
with which petitioner stands charged before the Military Commission. It
can be considered a privilege for our Republic that a leader nation
should submit the vindication of the honor of its citizens and its
government to a military tribunal of our country.

The Military Commission having been convened by virtue of a valid law

with jurisdiction over the crimes charged which fall under the provisions
of Executive Order No. 68, and having said petitioner in its custody, this
Court will not interfere with the due process of such Military commission.

For all the foregoing the petition is denied with costs de oficio.
Paras, Feria, Pablo, Bengzon, Tuason, Montemayor and Reyes,
JJ., concur.

Separate Opinions

PERFECTO, J., dissenting:

A military commission was empanelled on December 1, 1948 to try Lt.

Gen. Shigenori Kuroda for Violation of the laws and customs of land
warfare.

Melville S. Hussey and Robert Port, American citizens and not

authorized by the Supreme Court to practice law were appointed
prosecutor representing the American CIC in the trial of the case.

The commission was empanelled under the authority of Executive Order

No. 68 of the President of the Philippines the validity of which is
challenged by petitioner on constitutional grounds. Petitioner has also
challenged the personality of Attorneys Hussey and Port to appear as
prosecutors before the commission.

The charges against petitioner has been filed since June 26, 1948 in the
name of the people of the Philippines as accusers.

We will consideration briefly the challenge against the appearance of

Attorneys Hussey and Port. It appearing that they are aliens and have
not been authorized by the Supreme Court to practice law there could
not be any question that said person cannot appear as prosecutors in
petitioner case as with such appearance they would be practicing law
against the law.

Said violation vanishes however into insignificance at the side of the

momentous question involved in the challenge against the validity of
Executive Order No. 68. Said order is challenged on several
constitutional ground. To get a clear idea of the question raised it is
necessary to read the whole context of said order which is reproduced
as follows:

EXECUTIVE ORDER NO. 68.

ESTABLISHING A NATIONAL WAR CRIMES OFFICE AND

PRESCRIBING RULES AND REGULATION GOVERNING
THE TRIAL OF ACCUSED WAR CRIMINAL.

I, Manuel Roxas president of the Philippines by virtue of the power

vested in me by the Constitution and laws of the Philippines do
hereby establish a National War Crimes Office charged with the
responsibility of accomplishing the speedy trial of all Japanese
accused of war crimes committed in the Philippines and prescribe
the rules and regulation such trial.

The National War crimes office is established within the office of

the Judge Advocate General of the Army of the Philippines and
shall function under the direction supervision and control of the
Judge Advocate General. It shall proceed to collect from all
available sources evidence of war crimes committed in the
Philippines from the commencement of hostilities by Japan in
December 1941, maintain a record thereof and bring about the
prompt trial maintain a record thereof and bring about the prompt
trial of the accused.

The National War Crimes Office shall maintain direct liaison with
the Legal Section General Headquarters, Supreme Commander
for the Allied power and shall exchange with the said Office
information and evidence of war crimes.

The following rules and regulation shall govern the trial off person
accused as war criminals:

ESTABLISHMENT OF MILITARY COMMISSIONS

(a) General. — person accused as war criminal shall be tried by

military commission to be convened by or under the authority of the
Philippines.

II. JURISDICTION

(a) Over Person. — Thee military commission appointed hereunder

shall have jurisdiction over all persons charged with war crimes
who are in the custody of the convening authority at the time of the
trial.

(b) Over Offenses. — The military commission established

hereunder shall have jurisdiction over all offenses including but not
limited to the following:

(1) The planning preparation initiation or waging of a war of

aggression or a war in violation of international treaties agreement
or assurance or participation in a common plan or conspiracy for
the accomplishment of any of the foregoing.

(2) Violation of the laws or customs of war. Such violation shall

include but not be limited to murder ill-treatment or deportation to
slave labor or for other purpose of civilian population of or in
occupied territory; murder or ill-treatment of prisoners of war or
internees or person on the seas or elsewhere; improper treatment
of hostage; plunder of public or private property wanton destruction
of cities towns or village; or devastation not justified by military
necessity.

(3) Murder extermination enslavement deportation and other

inhuman acts committed against civilian population before or
during the war or persecution on political racial or religion ground
in executive of or in connection with any crime defined herein
whether or not in violation of the local laws.

III. MEMBERSHIP OF COMMISSIONS

(a) Appointment. — The members of each military commission

shall be appointed by the President of the Philippines or under
authority delegated by him. Alternates may be appointed by the
convening authority. Such shall attend all session of the
commission, and in case of illness or other incapacity of any
principal member, an alternate shall take the place of that member.
Any vacancy among the members or alternates, occurring after a
trial has begun, may be filled by the convening authority but the
substance of all proceeding had evidence taken in that case shall
be made known to the said new member or alternate. This facts
shall be announced by the president of the commission in open
court.

(b) Number of Members. — Each commission shall consist of not

less than three (3) members.

(c) Qualifications. — The convening authority shall appoint to the

commission persons whom he determines to be competent to
perform the duties involved and not disqualified by personal
interest or prejudice, provided that no person shall be appointed to
hear a case in which he personally investigated or wherein his
presence as a witness is required. One specially qualified member
whose ruling is final in so far as concerns the commission on an
objection to the admissibility of evidence offered during the trial.

(d) Voting. — Except as to the admissibility of evidence all rulings

and finding of the Commission shall be by majority vote except that
conviction and sentence shall be by the affirmative vote of not less
than conviction and sentence shall be by the affirmative vote of not
less than two-thirds (2\3) of the member present.

(e) Presiding Member. — In the event that the convening authority

does not name one of the member as the presiding member, the
senior officer among the member of the Commission present shall
preside.
IV. PROSECUTORS

(a) Appointment. — The convening authority shall designate one

or more person to conduct the prosecution before each
commission.

(b) Duties. — The duties of the prosecutor are:

(1) To prepare and present charges and specifications for

reference to a commission.

(2) To prepare cases for trial and to conduct the prosecution before
the commission of all cases referred for trial.

V. POWER AND PROCEDURE OF COMMISSION

(a) Conduct of the Trial. — A Commission shall:

(1) Confine each trial strictly to fair and expeditious hearing on the
issues raised by the charges, excluding irrelevant issues or
evidence and preventing any unnecessary delay or interference.

(2) Deal summarily with any contumacy or contempt, imposing any

appropriate punishment therefor.

(3) Hold public session when otherwise decided by the

commission.

(4) Hold each session at such time and place as it shall determine,
or as may be directed by the convening authority.

(b) Rights of the Accused. — The accused shall be entitled:

(1) To have in advance of the trial a copy of the charges and

specifications clearly worded so as to apprise the accused of each
offense charged.

(2) To be represented, prior to and during trial, by counsel

appointed by the convening authority or counsel of his own choice,
or to conduct his own defense.

(3) To testify in his own behalf and have his counsel present
relevant evidence at the trial in support of his defense, and cross-
examine each adverse witness who personally appears before the
commission.

(4) To have the substance of the charges and specifications, the

proceedings and any documentary evidence translated, when he
is unable otherwise to understand them.
(c) Witnesses. — The Commission shall have power:

(1) To summon witnesses and require their attendance and

testimony; to administer oaths or affirmations to witnesses and
other persons and to question witnesses.

(2) To require the production of documents and other evidentiary

material.

(3) To delegate the Prosecutors appointed by the convening

authority the powers and duties set forth in (1) and (2) above.

(4) To have evidence taken by a special commissioner appointed

by the commission.

(d) Evidence.

(1) The commission shall admit such evidence as in its opinion shall
be of assistance in proving or disproving the charge, or such as in
the commission's opinion would have probative value in the mind
of a reasonable man. The commission shall apply the rules of
evidence and pleading set forth herein with the greatest liberality to
achieve expeditious procedure. In particular, and without limiting in
any way the scope of the foregoing general rules, the following
evidence may be admitted:

(a) Any document, irrespective of its classification, which appears

to the commission to have been signed or issued by any officer,
department, agency or member of the armed forces of any
Government without proof of the signature or of the issuance of the
document.

(b) Any report which appears to the commission to have been

signed or issued by the International Red Cross or a member of
any medical service personnel, or by any investigator or
intelligence officer, or by any other person whom commission
considers as possessing knowledge of the matters contained in the
report.

(c) Affidavits, depositions or other signed statements.

(d) Any diary, letter to other document, including sworn statements,

appearing to the commission to contain information relating to the
charge.

(e) A copy of any document or other secondary evidence of the

contents, if the original is not immediately available.
(2) The commission shall take judicial notice of facts of common
knowledge, official government documents of any nation, and the
proceedings, records and findings of military or other agencies of
any of the United Nation.

(3) A commission may require the prosecution and the defense to

make a preliminary offer of proof whereupon the commission may
rule in advance on the admissibility of such evidence.

(4) The official position of the accused shall not absolve him from
responsibility nor be considered in mitigation of punishment.
Further action pursuant to an order of the accused's superior, or of
his Government, shall not constitute a defense, but may be
considered in mitigation of punishment if the commission
determines that justice so requires.

(5) All purposed confessions or statements of the accused shall

bee admissible in evidence without any showing that they were
voluntarily made. If it is shown that such confession or statement
was procured by mean which the commission believe to have been
of such a character that may have caused the accused to make a
false statement the commission may strike out or disregard any
such portion thereof as was so procured.

(e) Trial Procedure. — The proceedings of each trial shall be

conducted substantially as follows unless modified by the
commission to suit the particular circumstances:

(1) Each charge and specification shall be read or its substance

stated in open court.

(2) The presiding member shall ask each accused whether he

pleads "Guilty" or "Not guilty."

(3) The prosecution shall make its opening statement."(4) The

presiding member may at this or any other time require the
prosecutor to state what evidence he proposes to submit to the
commission and the commission thereupon may rule upon the
admissibility of such evidence.

(4) The witnesses and other evidence for the prosecution shall be
heard or presented. At the close of the case for the prosecution,
the commission may, on motion of the defense for a finding of not
guilty, consider and rule whether he evidence before the
commission may defer action on any such motion and permit or
require the prosecution to reopen its case and produce any further
available evidence.
(5) The defense may make an opening statement prior to
presenting its case. The presiding member may, at this any other
time require the defense to state what evidence it proposes to
submit to the commission where upon the commission may rule
upon the admissibility of such evidence.

(6) The witnesses and other evidence for the defense shall be
heard or presented. Thereafter, the prosecution and defense may
introduce such evidence in rebuttal as the commission may rule as
being admissible.

(7) The defense and thereafter the prosecution shall address the
commission.

(8) The commission thereafter shall consider the case in closed

session and unless otherwise directed by the convening authority,
announce in open court its judgment and sentence if any. The
commission may state the reason on which judgment is based.

( f ) Record of Proceedings. — Each commission shall make a

separate record of its proceeding in the trial of each case brought
before it. The record shall be prepared by the prosecutor under the
direction of the commission and submitted to the defense counsel.
The commission shall be responsible for its accuracy. Such record,
certified by the presiding member of the commission or his
successor, shall be delivered to the convening authority as soon as
possible after the trial.

(g) Sentence. — The commission may sentence an accused, upon

conviction to death by hanging or shooting, imprisonment for life or
for any less term, fine or such other punishment as the commission
shall determine to be proper.

(h) Approval of Sentence. — No. sentence of a military commission

shall be carried into effect until approved by the chief off Staff:
Provided, That no sentence of death or life imprisonment shall be
carried into execution until confirmed by the President of the
Philippines. For the purpose of his review the Chief of Staff shall
create a Board of Review to be composed of not more than three
officers none of whom shall be on duty with or assigned to the
Judge Advocate General's Office. The Chief of Staff shall have
authority to approve, mitigate remit in whole or in part, commute,
suspend, reduce or otherwise alter the sentence imposed, or
(without prejudice to the accused) remand the case for rehearing
before a new military commission; but he shall not have authority
to increase the severity of the sentence. Except as herein
otherwise provided the judgment and sentence of a commission
shall final and not subject to review by any other tribunal.
 VI. RULE-MAKING POWER

Supplementary Rule and Forms. — Each commission shall adopt

rules and forms to govern its procedure, not inconsistent with the
provision of this Order, or such rules and forms as may be
prescribed by the convening authority]or by the President of the
Philippines.

VII. The amount of amount of seven hundred thousand pesos is

hereby set aside out of the appropriations for the Army of the
Philippines for use by the National War Crimes Office in the
accomplishment of its mission as hereinabove set forth, and shall
be expended in accordance with the recommendation of the Judge
Advocate General as approved by the President. The buildings,
fixtures, installations, messing, and billeting equipment and other
property herefore used by then Legal Section, Manila Branch, of
the General Headquarters, Supreme Commander for the Allied
Power, which will be turned over by the United States Army to the
Philippines Government through the Foreign Liquidation
Commission and the Surplus Property Commission are hereby
specification reserved for use off the National War Crimes Office.

Executive Order No. 64, dated August 16, 1945, is hereby

repealed.

Done in the City of Manila, this 29th day of July in the year of Our
Lord, nineteen hundred and forty-seven, and of the Independence
of the Philippines, the second.

MANUEL ROXAS
President of the Philippines

By the President:

EMILIO ABELLO
Chief of the Executive Office

EXECUTIVE LEGISLATION

Executive Order No. 68 is a veritable piece of Legislative measure,

without the benefit of congressional enactment.

The first question that is trust at our face spearheading a group of other
no less important question, is whether or not the President of the
Philippines may exercise the legislative power expressly vested in
Congress by the Constitution. .

The Constitution provides:

 The Legislative powers shall be vested in a Congress of the
Philippines which shall consist of a Senate and House of
Representatives. (Section 1, Article VI.)

While there is no express provision in the fundamental law prohibiting

the exercise of legislative power by agencies other than Congress, a
reading of the whole context of the Constitution would dispel any doubt
as to the constitutional intent that the legislative power is to be exercised
exclusively by Congress, subject only to the veto power of the President
of the President of the Philippines, to the specific provision which allow
the president of the Philippines to suspend the privileges of the writ of
habeas corpus and to place any part of the Philippines under martial
law, and to the rule-making power expressly vested by the Constitution
in the Supreme Court.

There cannot be any question that the member of the Constitutional

Convention were believers in the tripartite system of government as
originally enunciated by Aristotle, further elaborated by Montequieu and
accepted and practiced by modern democracies, especially the United
State of America, whose Constitution, after which ours has been
patterned, has allocated the three power of government — legislative,
executive, judicial — to distinct and separate department of government.

Because the power vested by our Constitution to the several department

of the government are in the nature of grants, not recognition of pre-
existing power, no department of government may exercise any power
or authority not expressly granted by the Constitution or by law by virtue
express authority of the Constitution.

Executive Order No. 68 establishes a National War Crimes Office and

the power to establish government office is essentially legislative.

The order provides that person accused as war criminals shall be tried
by military commissions. Whether such a provision is substantive or
adjective, it is clearly legislative in nature. It confers upon military
commissions jurisdiction to try all persons charge with war crimes. The
power to define and allocate jurisdiction for the prosecution of person
accused of any crime is exclusively vested by the Constitution in
Congress. .

It provides rules of procedure for the conduct of trial of trial. This

provision on procedural subject constitutes a usurpation of the rule-
making power vested by Constitution in the Supreme Court.

It authorized military commission to adopt additional rule of procedure.

If the President of the Philippines cannot exercise the rule -making
power vested by the Constitution in the Supreme Court, he cannot, with
more reason, delegate that power to military commission.
It appropriates the sum of P7000,000 for the expenses of the National
War Crimes office established by the said Executive Order No. 68. This
constitutes another usurpation of legislative power as the power to vote
appropriations belongs to Congress.

Executive Order No. 68., is, therefore, null and void, because, though it
the President of the Philippines usurped power expressly vested by the
Constitution in Congress and in the Supreme Court.

Challenged to show the constitutional or legal authority under which the

President issued Executive Order No. 68, respondent could not give any
definite answer. They attempted, however, to suggest that the President
of the Philippines issued Executive Order No. 68 under the emergency
power granted to him by Commonwealth Act No. 600, as amended by
Commonwealth Act No. 620, and Commonwealth Act No. 671, both of
which are transcribed below:

COMMONWEALTH ACT NO. 600.

AN ACT DECLARING A STATE OF EMERGENCY AND

AUTHORIZING THE PRESIDENT TO PROMULGATE
RULES AND REGULATION TO SAFEGUARD THE
INTEGRITY OF THE PHILIPPINES AND TO INSURE THE
TRANQUILITY OF ITS INHABITANTS.

Be it enacted by the National Assembly of the Philippines:

SECTION 1. The existence of war in many parts of the world has

created a national emergency which makes it necessary to invest
the President of the Philippines with extraordinary power in order
to safeguard the integrity of the Philippines and to insure the
tranquility of its inhabitants, by suppressing espionage,
lawlessness, and all subversive to the people adequate shelter and
clothing and sufficient food supply, and by providing means for the
speedy evacuation of the civilian population the establishment of
an air protective service and the organization of volunteer guard
units, and to adopt such other measures as he may deem
necessary for the interest of the public. To carry out this policy the
President is authorized to promulgate rules and regulations which
shall have the force and effect off law until the date of adjournment
of the next regulation which shall have the force and effect of law
until the date of adjournment of the next regular session of the First
Congress of the Philippines, unless sooner amended or repealed
by the Congress of Philippines. Such rules and regulation may
embrace the following objects: (1) to suppress espionage and other
subversive activities; (2) to require all able-bodied citizens (a) when
not engaged in any lawful occupation, to engage in farming or other
productive activities or (b) to perform such services as may bee
necessary in the public interest; (3) to take over farm lands in order
to prevent or shortage of crops and hunger and destitution; (4) to
take over industrial establishment in order to insure adequate
production, controlling wages and profits therein; (5) to prohibit
lockouts and strikes whenever necessary to prevent the
unwarranted suspension of work in productive enterprises or in the
interest of national security; (6) to regulate the normal hours of work
for wage-earning and salaried employees in industrial or business
undertakings of all kinds; (7) to insure an even distribution of labor
among the productive enterprises; (8) to commandership and other
means of transportation in order to maintain, as much as possible,
adequate and continued transportation facilities; (9) to requisition
and take over any public service or enterprise for use or operation
by the Government;(10) to regulate rents and the prices of articles
or commodities of prime necessity, both imported and locally
produced or manufactured; and (11) to prevent, locally or generally,
scarcity, monopolization, hoarding injurious speculations, and
private control affecting the supply, distribution and movement of
foods, clothing, fuel, fertilizer, chemical, building, material,
implements, machinery, and equipment required in agriculture and
industry, with power to requisition these commodities subject to the
payment of just compensation. (As amended by Com. Act No. 620.)

SEC. 2. For the purpose of administering this Act and carrying out
its objective, the President may designate any officer, without
additional compensation, or any department, bureau, office, or
instrumentality of the National Government.

SEC. 3. Any person, firm, or corporation found guilty of the violation

of any provision of this Act or of this Act or any of the rules or
regulations promulgated by the President under the authority of
section one of this Act shall be punished by imprisonment of not
more than ten years or by a fine of not more than ten thousand
pesos, or by both. If such violation is committed by a firm or
corporation, the manager, managing director, or person charge
with the management of the business of such firm, or corporation
shall be criminally responsible therefor.

SEC. 4. The President shall report to the national Assembly within

the first ten days from the date of the opening of its next regular
session whatever action has been taken by him under the authority
herein granted.

SEC. 5. To carry out the purposed of this Act, the President is

authorized to spend such amounts as may be necessary from the
sum appropriated under section five Commonwealth Act
Numbered four hundred and ninety-eight.

SEC. 6. If any province of this Act shall be declared by any court of

competent jurisdiction to be unconstitutional and void, such
declaration shall not invalidate the remainder of this Act.

SEC. 7. This Act shall take upon its approval.

Approved, August 19, 1940.

COMMONWEALTH ACT NO. 671

AN ACT DECLARING A STATE OF TOTAL EMERGENCY

AS A RESULT OF WAR INVOLVING THE PHILIPPINES
AND AUTHORIZING THE PRESIDENT TO PROMULGATE
RULE AND REGULATIONS TO MEET SUCH EMERGENCY.

Be it enacted the National Assembly of the Philippines;

SECTION 1. The existed of war between the United State and

other countries of Europe and Asia, which involves the Philippines,
makes it necessary to invest the President with extraordinary
powers in order to meet the resulting emergency.

SEC. 2. Pursuant to the provision of Article VI, section 16, of the

Constitution, the President is hereby authorized, during the
existence of the emergency, to promulgate such rules and
regulation as he may deem necessary to carry out the national
policy declared in section 1 hereof. Accordingly, he is, among other
things, empowered (a) to transfer the seat of the Government or
any of its subdivisions, branches, department, offices, agencies or
instrumentalities; (b) to reorganize the Government of the
Commonwealth including the determination of the order of
precedence of the heads of the Executive Department; (c) to create
new subdivision, branches, departments, offices, agency or
instrumentalities of government and to abolish any of those already
existing; (d) to continue in force laws and appropriation which
would lapse or otherwise became inoperative, and to modify or
suspend the operation or application of those of an administrative
character; (e) to imposed new taxes or to increase, reduce,
suspend, or abolish those in existence; (f) to raise funds through
the issuance of bonds or otherwise, and to authorize the expensive
of the proceeds thereof; (g) to authorize the National, provincial,
city or municipal governments to incur in overdrafts for purposes
that he may approve; (h) to declare the suspension of the collection
 of credits or the payment of debts; and (i) to exercise such other
power as he may deem necessary to enable the Government to
fulfill its responsibilities and to maintain and enforce its authority.

SEC. 3. The President of the Philippines report thereto all the rules
and regulation promulgated by him under the power herein
granted.

SEC. 4. This Act shall take effect upon its approval and the rules
and regulations. promulgated hereunder shall be in force and effect
until the Congress of the Philippines shall otherwise provide.

Approved December 16, 1941.

The above Acts cannot validly be invoked, Executive Order No. 68 was
issued on July 29, 1947. Said Acts had elapsed upon the liberation of
the Philippines form the Japanese forces or, at the latest, when the
surrender of Japan was signed in Tokyo on September 2, 1945.

When both Acts were enacted by the Second National Assembly, we

happened to have taken direct part in their consideration and passage,
not only as one of the members of said legislative body as chairman of
the Committee on Third Reading population Known as the "Little
Senate." We are, therefore in a position to state that said measures were
enacted by the second national Assembly for the purpose of facing the
emergency of impending war and of the Pacific War that finally broke
out with the attack of Pearl Harbor on December 7, 1941. We approved
said extraordinary measures, by which under the exceptional
circumstances then prevailing legislative power were delegated to the
President of the Philippines, by virtue of the following provisions of the
Constitution:

In time of war or other national emergency, the Congress may by

law authorize the President, for a limited period and subject to such
restrictions as it may prescribe to promulgate rules and regulations
to carry out declared national policy. (Article VI, section 26.)

It has never been the purpose of the National Assembly to extend the
delegation beyond the emergency created by the war as to extend it
farther would be violative of the express provision of the Constitution.
We are of the opinion that there is no doubt on this question.; but if there
could still be any the same should be resolved in favor of the
presumption that the National Assembly did not intend to violate the
fundamental law.

The absurdity of the contention that the emergency Acts continued in

effect even after the surrender of Japan can not be gainsaid. Only a few
months after liberation and even before the surrender of Japan, or since
the middle of 1945, the Congress started to function normally. In the
hypothesis that the contention can prevail, then, since 1945, that is, four
years ago, even after the Commonwealth was already replaced by the
Republic of the Philippines with the proclamation of our Independence,
two district, separate and independence legislative organs, — Congress
and the President of the Philippines — would have been and would
continue enacting laws, the former to enact laws of every nature
including those of emergency character, and the latter to enact laws, in
the form of executive orders, under the so-called emergency powers.
The situation would be pregnant with dangers to peace and order to the
rights and liberties of the people and to Philippines democracy.

Should there be any disagreement between Congress and the President

of the Philippines, a possibility that no one can dispute the President of
the Philippines may take advantage of he long recess of Congress (two-
thirds of every year ) to repeal and overrule legislative enactments of
Congress, and may set up a veritable system of dictatorship, absolutely
repugnant to the letter and spirit of the Constitution.

Executive Order No. 68 is equally offensive to the Constitution because

it violates the fundamental guarantees of the due process and equal
protection of the law. It is especially so, because it permit the admission
of many kinds evidence by which no innocent person can afford to get
acquittal and by which it is impossible to determine whether an accused
is guilty or not beyond all reasonable doubt.

The rules of evidence adopted in Executive Order No. 68 are a

reproduction of the regulation governing the trial of twelve criminal,
issued by General Douglas Mac Arthur, Commander in Chief of the
United State Armed Forces in Western Pacific, for the purpose of trying
among other, General Yamashita and Homma. What we said in our
concurring and dissenting opinion to the decision promulgated on
December 19, 1945, in the Yamashita case, L-129, and in our concurring
and dissenting opinion to the resolution of January 23, 1946 in disposing
the Homma case, L-244, are perfectly applicable to the offensive rules
of evidence in Executive Order No. 68. Said rules of evidence are
repugnant to conscience as under them no justice can expected.

For all the foregoing, conformably with our position in the Yamashita and
Homma cases, we vote to declare Executive Order No. 68 null and void
and to grant petition.