KURODA vs. JALANDONI 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 fortyseven, and of the Independence of the Philippines, the second. MANUEL President of the Philippines By the President: EMILIO 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. ABELLO ROXAS

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 ablebodied 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.

YAMASHITA vs. STYER MORAN, C.J.: Tomoyuki Yamashita, erstwhile commanding general of the 14th army group of the Japanese Imperial Army in the Philippines, and now charged before an American Military Commission with the most monstrous crimes ever committed against the American and Filipino peoples, comes to this Court with a petition for habeas corpus and prohibition against Lt. Gen. Wilhelm D. Styer, Commanding General of the United States Army Forces, Western Pacific. It is alleged therein that petitioner after his surrender became a prisoner of war of the United States of America but was later removed from such status and placed in confinement as an accused war criminal charged before an American Military Commission constituted by respondent Lieutenant General Styer; and he now asks that he be reinstated to his former status as prisoner of war, and that the Military Commission be prohibited from further trying him, upon the following grounds: (1) That the Military Commission was not duly constituted, and, therefore, it is without jurisdiction; (2) That the Philippines cannot be considered as an occupied territory, and the Military Commission cannot exercise jurisdiction therein; (3) That Spain, the "protecting power" of Japan, has not been given notice of the implementing trial against petitioner, contrary to the provisions of the Geneva Convention of July 27, 1892, and therefore, the Military Commission has no jurisdiction to try the petitioner; (4) That there is against the petitioner no charge of an offense against the laws of war; and (5) That the rules of procedure and evidence under which the Military Commission purports to be acting denied the petitioner a fair trial. We believe and so hold that the petition for habeas corpus is untenable. It seeks no discharge of petitioner from confinement but merely his restoration to his former status as a prisoner of war, to be interned, not confined. The relative difference as to the degree of confinement in such cases is a matter of military measure, disciplinary in character, beyond the jurisdiction of civil courts. Neither may the petition for prohibition prosper against Lt. Gen. Wilhelm D. Styer. The military Commission is not made party respondent in this case, and although it may be acting, as alleged, without jurisdiction, no order may be issued in these case proceedings requiring it to refrain from trying the petitioner. Furthermore, this Court has no jurisdiction to entertain the petition even if the commission be joined as respondent. As we have said in Raquiza vs. Bradford (pp. 50, 61, ante), ". . . an attempt of our civil courts to exercise jurisdiction over the United States Army before such period (state of war) expires, would be considered as a violation of this country's faith, which this Court should not be the last to keep and uphold." (Emphasis supplied) We have said this in a case where Filipino citizens were under confinement, and we can say no less in a case where the person confined is an enemy charged with the most heinous atrocities committed against the American and Filipino peoples. True that the rule was made applicable in time of war, and there is a conflict of opinion as to whether war has already terminated. 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 important incident to a conduct of a 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 measures those enemies who in their attempt to thwart or

impede our military effort to have violated the law of the war." ( Ex parte Quirin, 317 US., 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 date of a treaty agreement." (Cowles,Trial of War Criminals by Military Tribunals, American Bar Association Journal, June, 1944.) Upon the other hand, we have once said (Payomo vs. Floyd, 42 Phil., 788), and this applicable in time of war as well as the time of peace that this Court has no power to review upon habeas corpus the proceedings of a military or naval tribunal, an that, in such case, "the single inquiry, the test, is jurisdiction. That being established, the habeas corpus must be denied and the petitioner discharged." (In re Grimley, 137 U.S., 147; 11 Sup. Ct., 54; 34 La. ed., 636.) Following this rule in the instant case, we find that the Military Commission has been validly constituted and it has jurisdiction both over the person of the petitioner and over the offenses with which he is charged. The Commission has been validly constituted by Lieutenant General Styer duly issued by General Douglas MacArthur, Commander in Chief, United States Army Force Pacific, in accordance in authority vested in him and with radio communication from the Joint Chiefs of Staff, as shown by Exhibits C, E, G, and H, attached by petition. Under paragraph 356 of the Rules of the Land Welfare a Military Commission for the trial and punishment of the war criminals must be designated by the belligerent. And the belligerent's representative in the present case is none other than the Commander in Chief of the United States Army in the Pacific. According to the Regulations Governing the Trial of the War Criminals in the Pacific, attached as Exhibit F to the petition, the "trial of persons, units and organizations accused as a war criminals will be the Military Commissions to be convened by or under the authority of the Commander in Chief, United States Army Forces, Pacific." Articles of War Nos. 12 and 15 recognized the "Military Commission" appointed by military command as an appropriate tribunal for the trial and punishment of offenses against the law of the war not ordinarily tried by court martial. (Ex parte Quirin, supra.) And this has always been the United States military practice at since the Mexican War of 1847 when General Winfield Scott took the position that, under the laws of war, a military commander has an implied power to appoint and convene a Military Commission. This is upon the theory that since the power to create a Military Commission is an aspect of waging war, Military Commanders have that power unless expressly withdrawn from them. The Military Commission thus duly constituted has jurisdiction both over the person of the petitioner and over the offenses with which he is charged. It has jurisdiction over the person of the petitioner by reason of his having fallen into the hands of the United States Army Forces. Under paragraph 347 of the Rules of the Land Warfare, "the commanders ordering the commission of such acts, or under whose authority they are committed by their troops, may be punished by the belligerent into whose hands they may fall." As to the jurisdiction of the Military Commission over war crimes, the Supreme Court of the United States said: From the very beginning of its history this Court has recognized and applied the law of war as including that part of the law of nations which prescribes, for the conduct of war, the status rights and duties and of enemy nations as well as of enemy individuals. By the Articles of War, and especially Article 15, Congress has explicitly provided, so far as it may constitutionally do so, that military tribunals shall have jurisdiction to try offenders or offenses against the law of war in appropriate cases. Congress, in addition to making rules for the government of our Armed Forces, has thus exercised its authority to define and punish offenses against the law of nations by sanctioning, within constitutional limitations, the jurisdiction of military commissions to try persons and offenses which, according to the rules and precepts of the law of nations, and more particularly the law of war, are cognizable by such tribunals. (Ex parte Quirin, 317 U.S. 1, 27-28; 63 Sup. Ct., 2.)

Petitioner is charged before the Military Commission sitting at Manila with having permitted members of his command "to commit brutal atrocities and other high crimes against the people of the United States and of its allies and dependencies, particularly the Philippines," crimes and atrocities which in the bills of particulars, are described as massacre and extermination of thousand and thousands of unarmed noncombatant civilians by cruel and brutal means, including bayoneting of children and raping of young girls, as well as devastation and destruction of public, or private, and religious property for no other motive than pillage and hatred. These are offenses against the laws of the war as described in paragraph 347 of the Rules of Land Warfare. It is maintained, however, that, according to the Regulations Governing the Trial of War Criminals in the Pacific. "the Military Commission . . . shall have jurisdiction over all of Japan and other areas occupied by the armed forces commanded by the Commander in Chief, United States Army Forces, Pacific" (emphasis supplied), and the Philippines is not an occupied territory. The American Forces have occupied the Philippines for the purpose of liberating the Filipino people from the shackles of Japanese tyranny, and the creation of a Military Commission for the trial and punishment of Japanese war criminals is an incident of such war of liberation. It is maintained that Spain, the "protecting power" of Japan, has not been given notice before trial was begun against petitioner, contrary to the provisions of the Geneva Convention of July 27, 1929. But there is nothing in that Convention showing that notice is a prerequisite to the jurisdiction of Military Commissions appointed by victorious belligerent. Upon the other hand, the unconditional surrender of Japan and her acceptance of the terms of the Potsdam Ultimatum are a clear waiver of such a notice. It may be stated, furthermore, that Spain has severed her diplomatic relation of Japan because of atrocities committed by the Japanese troops against Spaniards in the Philippines. Apparently, therefore, Spain has ceased to be the protecting power of Japan. And, lastly, it is alleged that the rules of procedure and evidence being followed by the Military Commission in the admission of allegedly immaterial or hearsay evidence, cannot divest the commission of its jurisdiction and cannot be reviewed in a petition for the habeas corpus. (25 Am. Jur., 218; Collins vs. McDonald, 258 U. S. 416; 66 Law. ed., 692; 42 Sup. Ct., 326). For all foregoing, petition is hereby dismissed without costs.lawphi1.net Jaranilla, Feria, De Joya, Paras, J., concurs in the result. Pablo, Hilado, Bengzon, and Briones, JJ., concur.

KOOKOORITCHKIN vs. SOLICITOR GENERAL PERFECTO, J.: In August, 1941, appellee filed with the lower court a petition for naturalization, accompanied with supporting affidavits of two citizens, copy of a declaration of intention sworn in July, 1940, and proper notice of the hearing. The petition was finally set for hearing on December 18, 1941, but it was held on that date because the province was invaded by the Japanese forces on December 14, and the case remained pending until the records were destroyed during the military operations for liberation in March, 1945. The case was declared reconstituted on May 10, 1947, and the evidence was presented on August 28 and September 30, 1947. On the same day resolution was issued granting the petition. Although appellant was represented at the hearing and cross-examined the witnesses for the petitioner, he did not file an opposition or presented any evidence. The lower court made the findings of fact in the following paragraphs of its resolution: Eremes Kookooritchkin applies for Philippine citizenship naturalization under the provisions of Commonwealth Act 473, as amended by Act 535. The records shows that in August, 1941, he filed his petition for naturalization supported by the affidavits of ex-Judge Jaime M. Reyes and Dr. Salvador Mariano, both residents of Camarines Sur. In the preceding year, in July, 1940 to be precise, he filed his declaration of intention to become a citizen of this country. Notice of the hearing was published as required by law. It was established at the hearing that the petitioner is a native-born Russian, having first seen the light of day on November 4, 1897 in the old City of St. Petersburg, Russia. He grew up as a citizen of the defunct Imperial Russian Government under the Czars. World War I found him in the military service of this Government. In 1915 he volunteered for the Imperial Russian navy and was sent to the Navy Aviation School. He fought with the Allies in the Baltic Sea, was later transferred to the eastern front in Poland, and much later was sent as a navy flier to Asia Minor. In the latter part of the war, but before the Russian capitulation, he was transferred to the British Air Force under which he served for fourteen months. When the revolution broke out in Russia in 1917, he joined the White Russian Army at Vladivostok and fought against the Bolsheviks until 1922 when the White Russian Army was overwhelmed by the Bolsheviks. As he refused to join the Bolshevik regime, he fled by sea from Vladivostok to Shanghai and from this Chinese port he found his way to Manila, arriving at this port as a member of a group of White Russians under Admiral Stark in March, 1923. He stayed in Manila for about seven months, then moved to Olongapo, Zambales, where he resided for about a year, and from this place he went to Iriga, Camarines Sur, where he established his permanent residence since May, 1925. He has remained a resident of this municipality, except for a brief period from 1942 to July, 1945, when by reason of his underground activities he roamed mountains of Caramoan as a guerrilla officer. After liberation he returned to Iriga where again he resides up to the present time. The applicant is married to a Filipino by the name of Concepcion Segovia, with whom he has one son named Ronald Kookooritchkin. He is at present studying in Saint Agnes Academy, at Legaspi, Albay, a school duly recognized by the Government. The applicant is shop superintendent of A. L. Ammen Transportation Company, with about eighty Filipino employees working under him. He receives an annual salary of P13,200 with free quarters and house allowance. He also owns stocks and bonds of this and other companies.

The applicant speaks and writes English and the Bicol dialect. Socially he intermingles with the Filipinos, attending parties, dances and other social functions with his wife. He has a good moral character and believes in the principles underlying the Philippine Constitution. He has never been accused of any crime. On the other hand, he has always conducted himself in a proper and irreproachable manner during his entire period of residence in Camarines Sur, in his relations with the constituted authorities as well as with the community. Although he could have lived in ease by maintaining good relations with the enemy by reason of his being Russian-born during the years preceding the declaration of war by Russia against Japan, the applicant of his own volition chose to cast his lot with the guerrilla movement and fought the enemy in several encounters in the Province of Camarines Sur. He belonged to the guerrilla outfit of Colonel Padua with rank of major. Upon the arrival of the forces of liberation he was attached to the American Army from April to June, 1945. Although a Russian by birth he is not a citizen of Soviet Russia. He disclaims allegiance to the present Communist Government of Russia. He is, therefore, a stateless refugee in this country, belonging to no State, much less to the present Government of the land of his birth to which he is uncompromisingly opposed. He is not against organized government or affiliated with any association which upholds and teaches doctrine opposing all organized governments. He does not believe in the necessity or propriety of violence, personal assault or assassination for the success or predominance of his ideas. Neither is he a polygamist or a believer in the practice of polygamy. He is not suffering from any mental alienation or incurable contagious disease. Appellant assigns four errors in the appealed resolution. We will consider them separately. I Appellant claims that the lower court erred in not finding that the declaration of intention to become a Filipino citizen filed by appellee is invalid and insufficient as a basis for the petition of naturalization. The question calls for the application of the following provision of section 5 of the Revised Naturalization Law: No declaration shall be valid until entry for permanent residence has been established and a certificate showing the date, place and manner of his arrival has been issued. Appellant alleges that no documentary or testimonial evidence was introduced to establish the fact that appellee had lawfully been admitted into the Philippines for permanent residence. In the reconstituted declaration (page 11, record on appeal) the following can be read: I arrived at the Port of Manila on or about the first day of March, 1923, as shown by the attached certificate of arrival or landing certificate of residence. The records of the Bureau of Justice, where the declarations of intention to become a Filipino citizen were filed, had been lost or destroyed during the battle for the liberation of Manila, and the certificate alluded to has not been reconstituted. Appellant's contention that attachment of the certificate of arrival is essential to the validity of a declaration finds no support in the wordings of the law, as the above-quoted section 5 of Commonwealth Act no. 473 uses the words "has been issued.

Appellee suggests that we would not consider the question here raised by appellant, the latter having failed to raise it in lower court and points out that there is testimonial evidence showing appellee's arrival March, 1923, and that he was lawfully admitted for permanent residence, and the testimony of petitioner has not been refuted. Appellee's alleges that the office of the President has certified that it is a matter of record that petitioner was one of the Russian refugees who entered the Philippines under the command of Admiral Stark, the facts regarding arrival of the latter fleet being a matter of common knowledge, widely publicized in the newspapers at the time, of which this Court may properly take judicial notice under section 5 of Rule 123. When the fleet entered the Philippine waters, it was met by a Governor General Wood who, later, took the matter up with the authorities in Washington in lengthy correspondence, and the 1,200 persons manning the fleet were allowed to land and to remain in the Philippines or proceed to other countries, except about 800 who were allowed to go to the United States and given free transportation on the naval transport "Merritt." The ships of the fleet were sold in the Philippines. The undisputed fact that the petitioner has been continuously residing in the Philippines for about 25 years, without having been molested by the authorities, who are presumed to have been regularly performing their duties and would have arrested petitioner if his residence is illegal, as rightly contended by appellee, can be taken as evidence that he is enjoying permanent residence legally. That a certificate of arrival has been issued is a fact that should be accepted upon the petitioner's undisputed statement in his declaration of July, 1940, that the certificate cannot be supposed that the receiving official would have accepted the declaration without the certificate mentioned therein as attached thereto. We conclude that petitioner's declaration is valid under section 5 of the Naturalization Law, failure to reconstitute the certificate of arrival notwithstanding. What an unreconstituted document intended to prove may be shown by other competent evidence. II The second assignment of error touches upon two questions, that the lower court erred (1) in not finding that appellee has not established a legal residence in the Philippines, and (2) in not finding that he cannot speak and write any of the principal Philippine languages. The first question has already been disposed of in the above discussion. Perusal of the testimonies on record leads to the conclusion that petitioner has shown legal residence in the Philippines for a continuous period of not less than ten years as required by section 2 of Commonwealth Act No. 473. As to the next question, appellant alleges that in the oral test at the hearing, it was demonstrated that petitioner has only a smattering of Bicol, the Filipino language that petitioner alleges to know, and he cannot speak it as he was not able to translate from English to Bicol questions asked by the court and the provincial fiscal, although, in the continuation of the hearing on September 30, 1947, "surprisingly enough, he succeeded answering correctly in Bicol the questions propounded by his counsel, however, he fumbled and failed to give the translation of such a common word as 'love' which the fiscal asked of him. The lower court made the finding of fact that applicant speaks and writes English and Bicol and there seems to be no question about the competency of the judge who made the pronouncement, because he has shown by the appealed resolution and by his questions propounded to appellee, that he has command of both English and Bicol. The law has not set a specific standard of the principal Philippine languages. A great number of standards can be set. There are experts in English who say that Shakespeare has used in his works 15,000 different English words, and the King's Bible about 10,000, while about 5,000 are used by the better educated persons and about

3,000 by the average individual. While there may be persons ambitious enough to have a command of the about 600,000 words recorded in the Webster's International Dictionary, there are authorities who would reduce basic English to a few hundred words. Perhaps less than one hundred well selected words will be enough for the ordinary purposes of daily life. There is a reason to believe that the lower court's pronouncement is well taken considering the fact that, after he was liberated in 1942 from the Japanese in the Naga prison, petitioner joined the guerrilla in the Bicol region, took part in encounters and skirmishes against the Japanese, and remained with the guerrilla until the Americans liberated the Bicol provinces. If appellee with his smattering of Bicol was able to get along with his Bicol comrades in the hazardous life of the resistance movement, we believe that his knowledge of the language satisfies the requirement of the law. But appellant contends that there is no piece of positive evidence to support petitioner's allegation that he can write too in the Bicol language. There, is, however, on record circumstantial evidence from which it can be concluded that petitioner ought to know also how to write Bicol. We know that Bicol, as all the important Philippine languages, uses the same alphabet used in English, and it is much easier to write Bicol than English, because it is phonetic. Vowels and consonants have in them single and not interchangeable phonetic values, while English words deviate very often from the basic sounds of the alphabet. The ability to write cannot be denied to a person like petitioner, who has undergone the exacting technical training to be able to render services as flier in the Russian Naval Squadron in the Baltic Sea and in the British Air Forces during the first World War. The difference between the Cyrillic alphabet, as now used by Russians, and our Roman alphabet, cannot weigh much to deny petitioner the ability to use the latter. A person who has shown the command of English which can be seen in his testimony on record can easily make use of an alphabet of twenty or more letters universally used in this country where he has been residing continuously for 25 years. III Appellant contends that the lower court erred in finding appellee stateless and not a Russian citizen and in not finding that he has failed to establish that he is not disqualified for Philippine citizenship under section 4 (h) of the Revised Naturalization Law. It is contended that petitioner failed to show that under the laws of Russia, appellee has lost his Russian citizenship and failed to show that Russia grants to Filipinos the right to become a naturalized citizens or subjects thereof. The controversy centers on the question as to whether petitioner is a Russian citizen or is stateless. Petitioner testified categorically that he is not a Russian citizen and that he has no citizenship. His testimony supports the lower court's pronouncement that petitioner is a stateless refugee in this country. Appellant points out that petitioner stated in his petition for naturalization that he is citizen or subject of the Empire of Russia, but the Empire of Russia has ceased to exist since the Czars were overthrown in 1917 by the Bolshevists, and the petitioner disclaims allegiance or connection with the Soviet Government established after the overthrow of the Czarist Government. We do not believe that the lower court erred in pronouncing appellee stateless. Appellee's testimony, besides being uncontradicted, is supported by the well-known fact that the ruthlessness of modern dictatorship has scattered throughout the world a large number of stateless refugees or displaced persons, without country and without flag. The tyrannical intolerance of said dictatorships toward all opposition induced them to resort to beastly oppression, concentration camps and blood purges, and it is only natural that the not-so-fortunate ones

who were able to escape to foreign countries should feel the loss of all bonds of attachment to the hells which were formerly their fatherland's. Petitioner belongs to that group of stateless refugees. Knowing, as all cultured persons all over the world ought to know, the history, nature and character of the Soviet dictatorship, presently the greatest menace to humanity and civilization, it would be technically fastidious to require further evidence of petitioner's claim that he is stateless than his testimony that he owes no allegiance to the Russian Communist Government and, is because he has been at war with it, he fled from Russia to permanently reside in the Philippines. After finding in this country economic security in a remunerative job, establishing a family by marrying a Filipina with whom he has a son, and enjoying for 25 years the freedoms and blessings of our democratic way of life, and after showing his resolution to retain the happiness he found in our political system to the extent of refusing to claim Russian citizenship even to secure his release from the Japanese and of casting his lot with that of our people by joining the fortunes and misfortunes of our guerrillas, it would be beyond comprehension to support that the petitioner could feel any bond of attachment to the Soviet dictatorship. IV The fourth and last assignment of error need not be discussed, it being only a sequel of the other assignments and has necessarily been disposed of in their discussion. The appealed resolution is affirmed. Paras, Feria, Pablo, Bengzon, Briones, Padilla and Tuason, JJ., concur.

NORTH SEA CONTINENTAL SHELF CASES Judgment of 20 February 1969 The Court delivered judgment, by 11 votes to 6, in the North Sea Continental Shelf cases. The dispute, which was submitted to the Court on 20 February 1967, related to the delimitation of the continental shelf between the Federal Republic of Germany and Denmark on the one hand, and between the Federal Republic of Germany and the Netherlands on the other. The Parties asked the Court to state the principles and rules of international law applicable, and undertook thereafter to carry out the delimitations on that basis. The Court rejected the contention of Denmark and the Netherlands to the effect that the delimitations in question had to be carried out in accordance with the principle of equidistance as defined in Article 6 of the 1958 Geneva Convention on the Continental Shelf, holding: - that the Federal Republic, which had not ratified the Convention, was not legally bound by the provisions of Article 6; - that the equidistance principle was not a necessary consequence of the general concept of continental shelf rights, and was not a rule of customary international law. The Court also rejected the contentions of the Federal Republic in so far as these sought acceptance of the principle of an apportionment of the continental shelf into just and equitable shares. It held that each Party had an original right to those areas of the continental shelf which constituted the natural prolongation of its land territory into and under the sea. It was not a question of apportioning or sharing out those areas, but of delimiting them. The Court found that the boundary lines in question were to be drawn by agreement between the Parties and in accordance with equitable principles, and it indicated certain factors to be taken into consideration for that purpose. It was now for the Parties to negotiate on the basis of such principles, as they have agreed to do. The proceedings, relating to the delimitation as between the Parties of the areas of the North Sea continental shelf appertaining to each of them, were instituted on 20 February 1967 by the communication to the Registry of the Court of two Special Agreements, between Denmark and the Federal Republic and the Federal Republic and the Netherlands respectively. By an Order of 26 April 1968, the Court joined the proceedings in the two cases. The Court decided the two cases in a single Judgment, which it adopted by eleven votes to six. Amongst the Members of the Court concurring in the Judgment, Judge Sir Muhammad Zafrulla Khan appended a declaration; and President Bustamante y Rivero and Judges Jessup, Padilla Nervo and Ammoun appended separate opinions. In the case of the non-concurring Judges, a declaration of his dissent was appended by Judge Bengzon; and Vice-President Koretsky, together with Judges Tanaka, Morelli and Lachs, and Judge ad hoc Sorensen, appended dissenting opinions. In its Judgment, the Court examined in the context of the delimitations concerned the problems relating to the legal regime of the continental shelf raised by the contentions of the Parties.

The Facts and the Contentions of the Parties (paras. 1-17 of the Judgment) The two Special Agreements had asked the Court to declare the principles and rules of international law applicable to the delimitation as between the Parties of the areas of the North Sea continental shelf appertaining to each of them beyond the partial boundaries in the immediate vicinity of the coast already determined between the Federal Republic and the Netherlands by an agreement of 1 December 1964 and between the Federal Republic and Denmark by an agreement of 9 June 1965.The Court was not asked actually to delimit the further boundaries involved, the Parties undertaking in their respective Special Agreements to effect such delimitation by agreement in pursuance of the Court's decision. The waters of the North Sea were shallow, the whole seabed, except for the Norwegian Trough, consisting of continental shelf at a depth of less than 200 metres. Most of it had already been delimited between the coastal States concerned. The Federal Republic and Denmark and the Netherlands, respectively, had, however, been unable to agree on the prolongation of the partial boundaries referred to above, mainly because Denmark and the Netherlands had wished this prolongation to be effected on the basis of the equidistance principle, whereas the Federal Republic had considered that it would unduly curtail what the Federal Republic believed should be its proper share of continental shelf area, on the basis of proportionality to the length of its North Sea coastline. Neither of the boundaries in question would by itself produce this effect, but only both of them together - an element regarded by Denmark and the Netherlands as irrelevant to what they viewed as being two separate delimitations, to be carried out without reference to the other. A boundary based on the equidistance principle, i.e., an "equidistance line", left to each of the Parties concerned all those portions of the continental shelf that were nearer to a point on its own coast than they were to any point on the coast of the other Party. In the case of a concave or recessing coast such as that of the Federal Republic on the North Sea, the effect of the equidistance method was to pull the line of the boundary inwards, in the direction of the concavity. Consequently, where two equidistance lines were drawn, they would, if the curvature were pronounced, inevitably meet at a relatively short distance from the coast, thus "cutting off" the coastal State from the area of the continental shelf outside. In contrast, the effect of convex or outwardly curving coasts, such as were, to a moderate extent, those of Denmark and the Netherlands, was to cause the equidistance lines to leave the coasts on divergent courses, thus having a widening tendency on the area of continental shelf off that coast. It had been contended on behalf of Denmark and the Netherlands that the whole matter was governed by a mandatory rule of law which, reflecting the language of Article 6 of the Geneva Convention on the Continental Shelf of 29 April 1958, was designated by them as the "equidistance-special circumstances" rule. That rule was to the effect that in the absence of agreement by the parties to employ another method, all continental shelf boundaries had to be drawn by means of an equidistance line unless "special circumstances" were recognized to exist. According to Denmark and the Netherlands, the configuration of the German North Sea coast did not of itself constitute, for either of the two boundary lines concerned, a special circumstance. The Federal Republic, for its part, had contended that the correct rule, at any rate in such circumstances as those of the North Sea, was one according to which each of the States concerned should have a "just and equitable share" of the available continental shelf, in proportion to the length of its sea-frontage. It had also contended that in a sea shaped as is the North Sea, each of the States concerned was entitled to a continental shelf area extending up to the central point of that sea, or at least extending to its median line. Alternatively, the Federal Republic had claimed that if the equidistance method were held to bc applicable, the configuration of the

German North Sea coast constituted a special circumstance such as to justify a departure from that method of delimitation in this particular case. The Apportionment Theory Rejected (paras. 18-20 of the Judgment) The Court felt unable to accept, in the particular form it had taken, the first contention put forward on behalf of the Federal Republic. Its task was to delimit, not to apportion the areas concerned. The process of delimitation involved establishing the boundaries of an area already, in principle, appertaining to the coastal State and not the determination de novo of such an area. The doctrine of the just and equitable share was wholly at variance with the most fundamental of all the rules of law relating to the continental shelf, namely, that the rights of the coastal State in respect of the area of continental shelf constituting a natural prolongation of its land territory under the sea existed ipso facto and ab initio, by virtue of its sovereignty over the land. That right was inherent. In order to exercise it, no special legal acts had to be performed. It followed that the notion of apportioning an as yet undelimited area considered as a whole (which underlay the doctrine of the just and equitable share) was inconsistent with the basic concept of continental shelf entitlement. Non-Applicability of Article 6 of the 1958 Continental Shelf Convention (paras. 21-36 of the Judgment) The Court then turned to the question whether in delimiting those areas the Federal Republic was under a legal obligation to accept the application of the equidistance principle. While it was probably true that no other method of delimitation had the same combination of practical convenience and certainty of application, those factors did not suffice of themselves to convert what was a method into a rule of law. Such a method would have to draw its legal force from other factors than the existence of those advantages. The first question to be considered was whether the 1958 Geneva Convention on the Continental Shelf was binding for all the Parties in the case. Under the formal provisions of the Convention, it was in force for any individual State that had signed it within the time-limit provided, only if that State had also subsequently ratified it. Denmark and the Netherlands had both signed and ratified the Convention and were parties to it, but the Federal Republic, although one of the signatories of the Convention, had never ratified it, and was consequently not a party. It was admitted on behalf of Denmark and the Netherlands that in the circumstances the Convention could not, as such, be binding on the Federal Republic. But it was contended that the r egime of Article 6 of the Convention had become binding on the Federal Republic, because, by conduct, by public statements and proclamations, and in other ways, the Republic had assumed the obligations of the Convention. It was clear that only a very definite, very consistent course of conduct on the part of a State in the situation of the Federal Republic could justify upholding those contentions. When a number of States drew up a convention specifically providing for a particular method by which the intention to become bound by the r egime of the convention was to be manifested, it was not lightly to be presumed that a State which had not carried out those formalities had nevertheless somehow become bound in another way. Furthermore, had the Federal Republic ratified the Geneva Convention, it could have entered a reservation to Article 6, by reason of the faculty to do so conferred by Article 12 of the Convention. Only the existence of Netherlands - i.e., if conventional rgime, evinced acceptance of a situation of estoppel could lend substance to the contention of Denmark and the the Federal Republic were now precluded from denying the applicability of the by reason of past conduct, declarations, etc., which not only clearly and consistently that rgime, but also had caused Denmark or the Netherlands, in reliance on such

conduct, detrimentally to change position or suffer some prejudice. Of this there was no evidence. Accordingly, Article 6 of the Geneva Convention was not, as such, applicable to the delimitations involved in the present proceedings. The Equidistance Principle Not Inherent in the Basic Doctrine of the Continental Shelf (paras. 37-59 of the Judgment) It had been maintained by Denmark and the Netherlands that the Federal Republic was in any event, and quite apart from the Geneva Convention, bound to accept delimitation on an equidistance basis, since the use of that method was a rule of general or customary international law, automatically binding on the Federal Republic. One argument advanced by them in support of this contention, which might be termed the a priori argument, started from the position that the rights of the coastal State to its continental shelf areas were based on its sovereignty over the land domain, of which the shelf area was the natural prolongation under the sea. From this notion of appurtenance was derived the view, which the Court accepted, that the coastal State's rights existed ipso facto and ab initio. Denmark and the Netherlands claimed that the test of appurtenance must be "proximity": all those parts of the shelf being considered as appurtenant to a particular coastal State which were closer to it than they were to any point on the coast of another State. Hence, delimitation had to be effected by a method which would leave to each one of the States concerned all those areas that were nearest to its own coast. As only an equidistance line would do this, only such a line could be valid, it was contended. This view had much force; the greater part of a State's continental shelf areas would normally in fact be nearer to its coasts than to any other. But the real issue was whether it followed that every part of the area concerned must be placed in that way. The Court did not consider this to follow from the notion of proximity, which was a somewhat fluid one. More fundamental was the concept of the continental shelf as being the natural prolongation of the land domain. Even if proximity might afford one of the tests to be applied, and an important one in the right conditions, it might not necessarily be the only, nor in all circumstances the most appropriate, one. Submarine areas did not appertain to the coastal State merely because they were near it, nor did their appurtenance depend on any certainty of delimitation as to their boundaries. What conferred the ipso jure title was the fact that the submarine areas concerned might be deemed to be actually part of its territory in the sense that they were a prolongation of its land territory under the sea. Equidistance clearly could not be identified with the notion of natural prolongation, since the use of the equidistance method would frequently cause areas which were the natural prolongation of the territory of one State to be attributed to another. Hence, the notion of equidistance was not an inescapable a priori accompaniment of basic continental shelf doctrine. A review of the genesis of the equidistance method of delimitation confirmed the foregoing conclusion. The "Truman Proclamation" issued by the Government of the United States on 28 September 1945 could be regarded as a starting point of the positive law on the subject, and the chief doctrine it enunciated, that the coastal State had an original, natural and exclusive right to the continental shelf off its shores, had come to prevail over all others and was now reflected in the1958 Geneva Convention. With regard to the delimitation of boundaries between the continental shelves of adjacent States, the Truman Proclamation had stated that such boundaries "shall be determined by the United States and the State concerned in accordance with equitable principles". These two concepts, of delimitation by mutual agreement and delimitation in accordance with equitable principles, had underlain all the subsequent history of the subject. It had been largely on the recommendation of a committee of experts that the principle of equidistance for the delimitation of continental shelf boundaries had been accepted by the United Nations International Law Commission in the text it had laid

before the Geneva Conference of 1958 on the Law of the Sea which had adopted the Continental Shelf Convention. It could legitimately be assumed that the experts had been actuated by considerations not of legal theory but of practical convenience and cartography. Moreover, the article adopted by the Commission had given priority to delimitation by agreement and had contained an exception in favour of "special circumstances". The Court consequently considered that Denmark and the Netherlands inverted the true order of things and that, far from an equidistance rule having been generated by an antecedent principle of proximity inherent in the whole concept of continental shelf appurtenance, the latter was rather a rationalization of the former The Equidistance Principle Not a Rule of Customary International Law (paras. 60-82 of the Judgment) The question remained whether through positive law processes the equidistance principle must now be regarded as a rule of customary international law. Rejecting the contentions of Denmark and the Netherlands, the Court considered that the principle of equidistance, as it figured in Article 6 of the Geneva Convention, had not been proposed by the International Law Commission as an emerging rule of customary international law. This Article could not be said to have reflected or crystallized such a rule. This was confirmed by the fact that any State might make reservations in respect of Article 6, unlike Articles 1, 2 and 3, on signing, ratifying or acceding to the Convention. While certain other provisions of the Convention, although relating to matters that lay within the field of received customary law, were also not excluded from the faculty of reservation, they all related to rules of general maritime law very considerably antedating the Convention which were only incidental to continental shelf rights as such, and had been mentioned in the Convention simply to ensure that they were not prejudiced by the exercise of continental shelf rights. Article 6, however, related directly to continental shelf rights as such, and since it was not excluded from the faculty of reservation, it was a legitimate inference that it was not considered to reflect emergent customary law. It had been argued on behalf of Denmark and the Netherlands that even if at the date of the Geneva Convention no rule of customary international law existed in favour of the equidistance principle, such a rule had nevertheless come into being since the Convention, partly because of its own impact, and partly on the basis of subsequent State practice. In order for this process to occur it was necessary that Article 6 of the Convention should, at all events potentially, be of a norm-creating character. Article 6 was so framed, however, as to put the obligation to make use of the equidistance method after a primary obligation to effect delimitation by agreement. Furthermore, the part played by the notion of special circumstances in relation to the principle of equidistance, the controversies as to the exact meaning and scope of that notion, and the faculty of making reservations to Article 6 must all raise doubts as to the potentially norm-creating character of that Article. Furthermore, while a very widespread and representative participation in a convention might show that a conventional rule had become a general rule of international law, in the present case the number of ratifications and accessions so far was hardly sufficient. As regards the time element, although the passage of only a short period of time was not necessarily a bar to the formation of a new rule of customary international law on the basis of what was originally a purely conventional rule, it was indispensable that State practice during that period, including that of States whose interests were specially affected, should have been both extensive and virtually uniform in the sense of the provision invoked and should have occurred in such a way as to show a general recognition that a rule of law was involved. Some 15 cases had been cited in which the States concerned

had agreed to draw or had drawn the boundaries concerned according to the principle of equidistance, but there was no evidence that they had so acted because they had felt legally compelled to draw them in that way by reason of a rule of customary law. The cases cited were inconclusive and insufficient evidence of a settled practice. The Court consequently concluded that the Geneva Convention was not in its origins or inception declaratory of a mandatory rule of customary international law enjoining the use of the equidistance principle, its subsequent effect had not been constitutive of such a rule, and State practice up to date had equally been insufficient for the purpose. The Principles and Rules of Law Applicable (paras. 83-101 of the Judgment) The legal situation was that the Parties were under no obligation to apply the equidistance principle either under the 1958 Convention or as a rule of general or customary international law. It consequently became unnecessary for the Court to consider whether or not the configuration of the German North Sea coast constituted a "special circumstance". It remained for the Court, however, to indicate to the Parties the principles and rules of law in the light of which delimitation was to be effected. The basic principles in the matter of delimitation, deriving from the Truman Proclamation, were that it must be the object of agreement between the States concerned and that such agreement must be arrived at in accordance with equitable principles. The Parties were under an obligation to enter into negotiations with a view to arriving at an agreement and not merely to go through a formal process of negotiation as a sort of prior condition for the automatic application of a certain method of delimitation in the absence of agreement; they were so to conduct themselves that the negotiations were meaningful, which would not be the case when one of them insisted upon its own position without contemplating any modification of it. This obligation was merely a special application of a principle underlying all international relations, which was moreover recognized in Article 33 of the Charter of the United Nations as one of the methods for the peaceful settlement of international disputes. The Parties were under an obligation to act in such a way that in the particular case, and taking all the circumstances into account, equitable principles were applied. There was no question of the Court's decision being ex aequo et bono. It was precisely a rule of law that called for the application of equitable principles, and in such cases as the present ones the equidistance method could unquestionably lead to inequity. Other methods existed and might be employed, alone or in combination, according to the areas involved. Although the Parties intended themselves to apply the principles and rules laid down by the Court some indication was called for of the possible ways in which they might apply them. For all the foregoing reasons, the Court found in each case that the use of the equidistance method of delimitation was not obligatory as between the Parties; that no other single method of delimitation was in all circumstances obligatory; that delimitation was to be effected by agreement in accordance with equitable principles and taking account of all relevant circumstances, in such a way as to leave as much as possible to each Party all those parts of the continental shelf that constituted a natural prolongation of its land territory, without encroachment on the natural prolongation of the land territory of the other; and that, if such delimitation produced overlapping areas, they were to be divided between the Parties in agreed proportions, or, failing agreement, equally, unless they decided on a regime of joint jurisdiction, user, or exploitation.

In the course of negotiations, the factors to be taken into account were to include: the general configuration of the coasts of the Parties, as well as the presence of any special or unusual features; so far as known or readily ascertainable, the physical and geological structure and natural resources of the continental shelf areas involved, the element of a reasonable degree of proportionality between the extent of the continental shelf areas appertaining to each State and the length of its coast measured in the general direction of the coastline, taking into account the effects, actual or prospective, of any other continental shelf delimitations in the same region.