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Republic of the Philippines

SUPREME COURT
Manila
EN BANC

G.R. No. 101083 July 30, 1993


JUAN ANTONIO, ANNA ROSARIO and JOSE ALFONSO, all surnamed
OPOSA, minors, and represented by their parents ANTONIO and
RIZALINA OPOSA, ROBERTA NICOLE SADIUA, minor, represented by
her parents CALVIN and ROBERTA SADIUA, CARLO, AMANDA SALUD
and PATRISHA, all surnamed FLORES, minors and represented by
their parents ENRICO and NIDA FLORES, GIANINA DITA R. FORTUN,
minor, represented by her parents SIGRID and DOLORES FORTUN,
GEORGE II and MA. CONCEPCION, all surnamed MISA, minors and
represented by their parents GEORGE and MYRA MISA, BENJAMIN
ALAN V. PESIGAN, minor, represented by his parents ANTONIO and
ALICE PESIGAN, JOVIE MARIE ALFARO, minor, represented by her
parents JOSE and MARIA VIOLETA ALFARO, MARIA CONCEPCION T.
CASTRO, minor, represented by her parents FREDENIL and JANE
CASTRO, JOHANNA DESAMPARADO,
minor, represented by her parents JOSE and ANGELA DESAMPRADO,
CARLO JOAQUIN T. NARVASA, minor, represented by his parents
GREGORIO II and CRISTINE CHARITY NARVASA, MA. MARGARITA,
JESUS IGNACIO, MA. ANGELA and MARIE GABRIELLE, all surnamed
SAENZ, minors, represented by their parents ROBERTO and AURORA
SAENZ, KRISTINE, MARY ELLEN, MAY, GOLDA MARTHE and DAVID
IAN, all surnamed KING, minors, represented by their parents MARIO
and HAYDEE KING, DAVID, FRANCISCO and THERESE VICTORIA, all
surnamed ENDRIGA, minors, represented by their parents BALTAZAR
and TERESITA ENDRIGA, JOSE MA. and REGINA MA., all surnamed
ABAYA, minors, represented by their parents ANTONIO and MARICA
ABAYA, MARILIN, MARIO, JR. and MARIETTE, all surnamed
CARDAMA, minors, represented by their parents MARIO and LINA
CARDAMA, CLARISSA, ANN MARIE, NAGEL, and IMEE LYN, all
surnamed OPOSA, minors and represented by their parents RICARDO
and MARISSA OPOSA, PHILIP JOSEPH, STEPHEN JOHN and ISAIAH
JAMES, all surnamed QUIPIT, minors, represented by their parents
JOSE MAX and VILMI QUIPIT, BUGHAW CIELO, CRISANTO, ANNA,

DANIEL and FRANCISCO, all surnamed BIBAL, minors, represented


by their parents FRANCISCO, JR. and MILAGROS BIBAL, and THE
PHILIPPINE ECOLOGICAL NETWORK, INC., petitioners,
vs.
THE HONORABLE FULGENCIO S. FACTORAN, JR., in his capacity as
the Secretary of the Department of Environment and Natural
Resources, and THE HONORABLE ERIBERTO U. ROSARIO, Presiding
Judge of the RTC, Makati, Branch 66, respondents.
Oposa Law Office for petitioners.
The Solicitor General for respondents.

DAVIDE, JR., J.:


In a broader sense, this petition bears upon the right of Filipinos to a balanced and
healthful ecology which the petitioners dramatically associate with the twin
concepts of "inter-generational responsibility" and "inter-generational justice."
Specifically, it touches on the issue of whether the said petitioners have a cause of
action to "prevent the misappropriation or impairment" of Philippine rainforests
and "arrest the unabated hemorrhage of the country's vital life support systems
and continued rape of Mother Earth."
The controversy has its genesis in Civil Case No. 90-77 which was filed before
Branch 66 (Makati, Metro Manila) of the Regional Trial Court (RTC), National
Capital Judicial Region. The principal plaintiffs therein, now the principal
petitioners, are all minors duly represented and joined by their respective parents.
Impleaded as an additional plaintiff is the Philippine Ecological Network, Inc.
(PENI), a domestic, non-stock and non-profit corporation organized for the
purpose of, inter alia, engaging in concerted action geared for the protection of our
environment and natural resources. The original defendant was the Honorable
Fulgencio S. Factoran, Jr., then Secretary of the Department of Environment and
Natural Resources (DENR). His substitution in this petition by the new Secretary,
the Honorable Angel C. Alcala, was subsequently ordered upon proper motion by
the petitioners. 1 The complaint 2 was instituted as a taxpayers' class suit 3 and
alleges that the plaintiffs "are all citizens of the Republic of the Philippines,
taxpayers, and entitled to the full benefit, use and enjoyment of the natural
resource treasure that is the country's virgin tropical forests." The same was filed
for themselves and others who are equally concerned about the preservation of

said resource but are "so numerous that it is impracticable to bring them all before
the Court." The minors further asseverate that they "represent their generation as
well as generations yet unborn." 4 Consequently, it is prayed for that judgment be
rendered:
. . . ordering defendant, his agents, representatives and other
persons acting in his behalf to
(1) Cancel all existing timber license agreements in the country;
(2) Cease and desist from receiving, accepting, processing,
renewing or approving new timber license agreements.
and granting the plaintiffs ". . . such other reliefs just and equitable under the
premises." 5
The complaint starts off with the general averments that the Philippine archipelago
of 7,100 islands has a land area of thirty million (30,000,000) hectares and is
endowed with rich, lush and verdant rainforests in which varied, rare and unique
species of flora and fauna may be found; these rainforests contain a genetic,
biological and chemical pool which is irreplaceable; they are also the habitat of
indigenous Philippine cultures which have existed, endured and flourished since
time immemorial; scientific evidence reveals that in order to maintain a balanced
and healthful ecology, the country's land area should be utilized on the basis of a
ratio of fifty-four per cent (54%) for forest cover and forty-six per cent (46%) for
agricultural, residential, industrial, commercial and other uses; the distortion and
disturbance of this balance as a consequence of deforestation have resulted in a
host of environmental tragedies, such as (a) water shortages resulting from drying
up of the water table, otherwise known as the "aquifer," as well as of rivers, brooks
and streams, (b) salinization of the water table as a result of the intrusion therein
of salt water, incontrovertible examples of which may be found in the island of
Cebu and the Municipality of Bacoor, Cavite, (c) massive erosion and the
consequential loss of soil fertility and agricultural productivity, with the volume of
soil eroded estimated at one billion (1,000,000,000) cubic meters per annum
approximately the size of the entire island of Catanduanes, (d) the endangering
and extinction of the country's unique, rare and varied flora and fauna, (e) the
disturbance and dislocation of cultural communities, including the disappearance
of the Filipino's indigenous cultures, (f) the siltation of rivers and seabeds and
consequential destruction of corals and other aquatic life leading to a critical
reduction in marine resource productivity, (g) recurrent spells of drought as is
presently experienced by the entire country, (h) increasing velocity of typhoon

winds which result from the absence of windbreakers, (i) the floodings of lowlands
and agricultural plains arising from the absence of the absorbent mechanism of
forests, (j) the siltation and shortening of the lifespan of multi-billion peso dams
constructed and operated for the purpose of supplying water for domestic uses,
irrigation and the generation of electric power, and (k) the reduction of the earth's
capacity to process carbon dioxide gases which has led to perplexing and
catastrophic climatic changes such as the phenomenon of global warming,
otherwise known as the "greenhouse effect."
Plaintiffs further assert that the adverse and detrimental consequences of
continued and deforestation are so capable of unquestionable demonstration that
the same may be submitted as a matter of judicial notice. This notwithstanding,
they expressed their intention to present expert witnesses as well as documentary,
photographic and film evidence in the course of the trial.
As their cause of action, they specifically allege that:
CAUSE OF ACTION
7. Plaintiffs replead by reference the foregoing allegations.
8. Twenty-five (25) years ago, the Philippines had some sixteen
(16) million hectares of rainforests constituting roughly 53% of the
country's land mass.
9. Satellite images taken in 1987 reveal that there remained no
more than 1.2 million hectares of said rainforests or four per cent
(4.0%) of the country's land area.
10. More recent surveys reveal that a mere 850,000 hectares of
virgin old-growth rainforests are left, barely 2.8% of the entire
land mass of the Philippine archipelago and about 3.0 million
hectares of immature and uneconomical secondary growth forests.
11. Public records reveal that the defendant's, predecessors have
granted timber license agreements ('TLA's') to various
corporations to cut the aggregate area of 3.89 million hectares for
commercial logging purposes.
A copy of the TLA holders and the corresponding areas covered is
hereto attached as Annex "A".

12. At the present rate of deforestation, i.e. about 200,000


hectares per annum or 25 hectares per hour nighttime,
Saturdays, Sundays and holidays included the Philippines will
be bereft of forest resources after the end of this ensuing decade, if
not earlier.
13. The adverse effects, disastrous consequences, serious injury
and irreparable damage of this continued trend of deforestation to
the plaintiff minor's generation and to generations yet unborn are
evident and incontrovertible. As a matter of fact, the
environmental damages enumerated in paragraph 6 hereof are
already being felt, experienced and suffered by the generation of
plaintiff adults.
14. The continued allowance by defendant of TLA holders to cut
and deforest the remaining forest stands will work great damage
and irreparable injury to plaintiffs especially plaintiff minors
and their successors who may never see, use, benefit from and
enjoy this rare and unique natural resource treasure.
This act of defendant constitutes a misappropriation and/or
impairment of the natural resource property he holds in trust for
the benefit of plaintiff minors and succeeding generations.
15. Plaintiffs have a clear and constitutional right to a balanced
and healthful ecology and are entitled to protection by the State in
its capacity as the parens patriae.
16. Plaintiff have exhausted all administrative remedies with the
defendant's office. On March 2, 1990, plaintiffs served upon
defendant a final demand to cancel all logging permits in the
country.

18. The continued failure and refusal by defendant to cancel the


TLA's is an act violative of the rights of plaintiffs, especially
plaintiff minors who may be left with a country that is desertified
(sic), bare, barren and devoid of the wonderful flora, fauna and
indigenous cultures which the Philippines had been abundantly
blessed with.
19. Defendant's refusal to cancel the aforementioned TLA's is
manifestly contrary to the public policy enunciated in the
Philippine Environmental Policy which, in pertinent part, states
that it is the policy of the State
(a) to create, develop, maintain and improve conditions under
which man and nature can thrive in productive and enjoyable
harmony with each other;
(b) to fulfill the social, economic and other requirements of
present and future generations of Filipinos and;
(c) to ensure the attainment of an environmental quality that is
conductive to a life of dignity and well-being. (P.D. 1151, 6 June
1977)
20. Furthermore, defendant's continued refusal to cancel the
aforementioned TLA's is contradictory to the Constitutional policy
of the State to
a. effect "a more equitable distribution of opportunities, income
and wealth" and "make full and efficient use of natural resources
(sic)." (Section 1, Article XII of the Constitution);
b. "protect the nation's marine wealth." (Section 2, ibid);

A copy of the plaintiffs' letter dated March 1, 1990 is hereto


attached as Annex "B".

c. "conserve and promote the nation's cultural heritage and


resources (sic)" (Section 14, Article XIV,id.);

17. Defendant, however, fails and refuses to cancel the existing


TLA's to the continuing serious damage and extreme prejudice of
plaintiffs.

d. "protect and advance the right of the people to a balanced and


healthful ecology in accord with the rhythm and harmony of
nature." (Section 16, Article II, id.)

21. Finally, defendant's act is contrary to the highest law of


humankind the natural law and violative of plaintiffs' right to
self-preservation and perpetuation.
22. There is no other plain, speedy and adequate remedy in law
other than the instant action to arrest the unabated hemorrhage of
the country's vital life support systems and continued rape of
Mother Earth. 6
On 22 June 1990, the original defendant, Secretary Factoran, Jr., filed a Motion to
Dismiss the complaint based on two (2) grounds, namely: (1) the plaintiffs have no
cause of action against him and (2) the issue raised by the plaintiffs is a political
question which properly pertains to the legislative or executive branches of
Government. In their 12 July 1990 Opposition to the Motion, the petitioners
maintain that (1) the complaint shows a clear and unmistakable cause of action, (2)
the motion is dilatory and (3) the action presents a justiciable question as it
involves the defendant's abuse of discretion.
On 18 July 1991, respondent Judge issued an order granting the aforementioned
motion to dismiss. 7 In the said order, not only was the defendant's claim that
the complaint states no cause of action against him and that it raises a political
question sustained, the respondent Judge further ruled that the granting of the
relief prayed for would result in the impairment of contracts which is prohibited by
the fundamental law of the land.
Plaintiffs thus filed the instant special civil action for certiorari under Rule 65 of
the Revised Rules of Court and ask this Court to rescind and set aside the dismissal
order on the ground that the respondent Judge gravely abused his discretion in
dismissing the action. Again, the parents of the plaintiffs-minors not only
represent their children, but have also joined the latter in this case. 8
On 14 May 1992, We resolved to give due course to the petition and required the
parties to submit their respective Memoranda after the Office of the Solicitor
General (OSG) filed a Comment in behalf of the respondents and the petitioners
filed a reply thereto.
Petitioners contend that the complaint clearly and unmistakably states a cause of
action as it contains sufficient allegations concerning their right to a sound
environment based on Articles 19, 20 and 21 of the Civil Code (Human Relations),
Section 4 of Executive Order (E.O.) No. 192 creating the DENR, Section 3 of
Presidential Decree (P.D.) No. 1151 (Philippine Environmental Policy), Section 16,

Article II of the 1987 Constitution recognizing the right of the people to a balanced
and healthful ecology, the concept of generational genocide in Criminal Law and
the concept of man's inalienable right to self-preservation and self-perpetuation
embodied in natural law. Petitioners likewise rely on the respondent's correlative
obligation per Section 4 of E.O. No. 192, to safeguard the people's right to a
healthful environment.
It is further claimed that the issue of the respondent Secretary's alleged grave
abuse of discretion in granting Timber License Agreements (TLAs) to cover more
areas for logging than what is available involves a judicial question.
Anent the invocation by the respondent Judge of the Constitution's nonimpairment clause, petitioners maintain that the same does not apply in this case
because TLAs are not contracts. They likewise submit that even if TLAs may be
considered protected by the said clause, it is well settled that they may still be
revoked by the State when the public interest so requires.
On the other hand, the respondents aver that the petitioners failed to allege in their
complaint a specific legal right violated by the respondent Secretary for which any
relief is provided by law. They see nothing in the complaint but vague and
nebulous allegations concerning an "environmental right" which supposedly
entitles the petitioners to the "protection by the state in its capacity as parens
patriae." Such allegations, according to them, do not reveal a valid cause of action.
They then reiterate the theory that the question of whether logging should be
permitted in the country is a political question which should be properly addressed
to the executive or legislative branches of Government. They therefore assert that
the petitioners' resources is not to file an action to court, but to lobby before
Congress for the passage of a bill that would ban logging totally.
As to the matter of the cancellation of the TLAs, respondents submit that the same
cannot be done by the State without due process of law. Once issued, a TLA
remains effective for a certain period of time usually for twenty-five (25) years.
During its effectivity, the same can neither be revised nor cancelled unless the
holder has been found, after due notice and hearing, to have violated the terms of
the agreement or other forestry laws and regulations. Petitioners' proposition to
have all the TLAs indiscriminately cancelled without the requisite hearing would be
violative of the requirements of due process.
Before going any further, We must first focus on some procedural matters.
Petitioners instituted Civil Case No. 90-777 as a class suit. The original defendant
and the present respondents did not take issue with this matter. Nevertheless, We

hereby rule that the said civil case is indeed a class suit. The subject matter of the
complaint is of common and general interest not just to several, but to all citizens
of the Philippines. Consequently, since the parties are so numerous, it, becomes
impracticable, if not totally impossible, to bring all of them before the court. We
likewise declare that the plaintiffs therein are numerous and representative enough
to ensure the full protection of all concerned interests. Hence, all the requisites for
the filing of a valid class suit under Section 12, Rule 3 of the Revised Rules of Court
are present both in the said civil case and in the instant petition, the latter being
but an incident to the former.
This case, however, has a special and novel element. Petitioners minors assert that
they represent their generation as well as generations yet unborn. We find no
difficulty in ruling that they can, for themselves, for others of their generation and
for the succeeding generations, file a class suit. Their personality to sue in behalf of
the succeeding generations can only be based on the concept of intergenerational
responsibility insofar as the right to a balanced and healthful ecology is concerned.
Such a right, as hereinafter expounded, considers
the "rhythm and harmony of nature." Nature means the created world in its
entirety. 9 Such rhythm and harmony indispensably include, inter alia, the
judicious disposition, utilization, management, renewal and conservation of the
country's forest, mineral, land, waters, fisheries, wildlife, off-shore areas and other
natural resources to the end that their exploration, development and utilization be
equitably accessible to the present as well as future generations. 10 Needless to say,
every generation has a responsibility to the next to preserve that rhythm and
harmony for the full enjoyment of a balanced and healthful ecology. Put a little
differently, the minors' assertion of their right to a sound environment constitutes,
at the same time, the performance of their obligation to ensure the protection of
that right for the generations to come.
The locus standi of the petitioners having thus been addressed, We shall now
proceed to the merits of the petition.
After a careful perusal of the complaint in question and a meticulous consideration
and evaluation of the issues raised and arguments adduced by the parties, We do
not hesitate to find for the petitioners and rule against the respondent Judge's
challenged order for having been issued with grave abuse of discretion amounting
to lack of jurisdiction. The pertinent portions of the said order reads as follows:
xxx xxx xxx

After a careful and circumspect evaluation of the Complaint, the


Court cannot help but agree with the defendant. For although we
believe that plaintiffs have but the noblest of all intentions, it (sic)
fell short of alleging, with sufficient definiteness, a specific legal
right they are seeking to enforce and protect, or a specific legal
wrong they are seeking to prevent and redress (Sec. 1, Rule 2,
RRC). Furthermore, the Court notes that the Complaint is replete
with vague assumptions and vague conclusions based on
unverified data. In fine, plaintiffs fail to state a cause of action in
its Complaint against the herein defendant.
Furthermore, the Court firmly believes that the matter before it,
being impressed with political color and involving a matter of
public policy, may not be taken cognizance of by this Court
without doing violence to the sacred principle of "Separation of
Powers" of the three (3) co-equal branches of the Government.
The Court is likewise of the impression that it cannot, no matter
how we stretch our jurisdiction, grant the reliefs prayed for by the
plaintiffs, i.e., to cancel all existing timber license agreements in
the country and to cease and desist from receiving, accepting,
processing, renewing or approving new timber license agreements.
For to do otherwise would amount to "impairment of contracts"
abhored (sic) by the fundamental law. 11
We do not agree with the trial court's conclusions that the plaintiffs failed to allege
with sufficient definiteness a specific legal right involved or a specific legal wrong
committed, and that the complaint is replete with vague assumptions and
conclusions based on unverified data. A reading of the complaint itself belies these
conclusions.
The complaint focuses on one specific fundamental legal right the right to a
balanced and healthful ecology which, for the first time in our nation's
constitutional history, is solemnly incorporated in the fundamental law. Section 16,
Article II of the 1987 Constitution explicitly provides:
Sec. 16. The State shall protect and advance the right of the people
to a balanced and healthful ecology in accord with the rhythm and
harmony of nature.

This right unites with the right to health which is provided for in
the preceding section of the same article:
Sec. 15. The State shall protect and promote the right to health of
the people and instill health consciousness among them.
While the right to a balanced and healthful ecology is to be found under the
Declaration of Principles and State Policies and not under the Bill of Rights, it does
not follow that it is less important than any of the civil and political rights
enumerated in the latter. Such a right belongs to a different category of rights
altogether for it concerns nothing less than self-preservation and self-perpetuation
aptly and fittingly stressed by the petitioners the advancement of which may
even be said to predate all governments and constitutions. As a matter of fact,
these basic rights need not even be written in the Constitution for they are
assumed to exist from the inception of humankind. If they are now explicitly
mentioned in the fundamental charter, it is because of the well-founded fear of its
framers that unless the rights to a balanced and healthful ecology and to health are
mandated as state policies by the Constitution itself, thereby highlighting their
continuing importance and imposing upon the state a solemn obligation to
preserve the first and protect and advance the second, the day would not be too far
when all else would be lost not only for the present generation, but also for those to
come generations which stand to inherit nothing but parched earth incapable of
sustaining life.
The right to a balanced and healthful ecology carries with it the correlative duty to
refrain from impairing the environment. During the debates on this right in one of
the plenary sessions of the 1986 Constitutional Commission, the following
exchange transpired between Commissioner Wilfrido Villacorta and Commissioner
Adolfo Azcuna who sponsored the section in question:
MR. VILLACORTA:
Does this section mandate the State to provide
sanctions against all forms of pollution air,
water and noise pollution?
MR. AZCUNA:
Yes, Madam President. The right to healthful (sic)
environment necessarily carries with it the
correlative duty of not impairing the same and,

therefore, sanctions may be provided for


impairment of environmental balance. 12
The said right implies, among many other things, the judicious management and
conservation of the country's forests.
Without such forests, the ecological or environmental balance would be
irreversiby disrupted.
Conformably with the enunciated right to a balanced and healthful ecology and the
right to health, as well as the other related provisions of the Constitution
concerning the conservation, development and utilization of the country's natural
resources, 13 then President Corazon C. Aquino promulgated on 10 June 1987 E.O.
No. 192, 14 Section 4 of which expressly mandates that the Department of
Environment and Natural Resources "shall be the primary government agency
responsible for the conservation, management, development and proper use of the
country's environment and natural resources, specifically forest and grazing lands,
mineral, resources, including those in reservation and watershed areas, and lands
of the public domain, as well as the licensing and regulation of all natural resources
as may be provided for by law in order to ensure equitable sharing of the benefits
derived therefrom for the welfare of the present and future generations of
Filipinos." Section 3 thereof makes the following statement of policy:
Sec. 3. Declaration of Policy. It is hereby declared the policy of
the State to ensure the sustainable use, development,
management, renewal, and conservation of the country's forest,
mineral, land, off-shore areas and other natural resources,
including the protection and enhancement of the quality of the
environment, and equitable access of the different segments of the
population to the development and the use of the country's natural
resources, not only for the present generation but for future
generations as well. It is also the policy of the state to recognize
and apply a true value system including social and environmental
cost implications relative to their utilization, development and
conservation of our natural resources.
This policy declaration is substantially re-stated it Title XIV, Book IV of the
Administrative Code of 1987, 15specifically in Section 1 thereof which reads:
Sec. 1. Declaration of Policy. (1) The State shall ensure, for the
benefit of the Filipino people, the full exploration and

development as well as the judicious disposition, utilization,


management, renewal and conservation of the country's forest,
mineral, land, waters, fisheries, wildlife, off-shore areas and other
natural resources, consistent with the necessity of maintaining a
sound ecological balance and protecting and enhancing the quality
of the environment and the objective of making the exploration,
development and utilization of such natural resources equitably
accessible to the different segments of the present as well as future
generations.
(2) The State shall likewise recognize and apply a true value
system that takes into account social and environmental cost
implications relative to the utilization, development and
conservation of our natural resources.
The above provision stresses "the necessity of maintaining a sound ecological
balance and protecting and enhancing the quality of the environment." Section 2 of
the same Title, on the other hand, specifically speaks of the mandate of the DENR;
however, it makes particular reference to the fact of the agency's being subject to
law and higher authority. Said section provides:
Sec. 2. Mandate. (1) The Department of Environment and
Natural Resources shall be primarily responsible for the
implementation of the foregoing policy.
(2) It shall, subject to law and higher authority, be in charge of
carrying out the State's constitutional mandate to control and
supervise the exploration, development, utilization, and
conservation of the country's natural resources.
Both E.O. NO. 192 and the Administrative Code of 1987 have set the objectives
which will serve as the bases for policy formulation, and have defined the powers
and functions of the DENR.
It may, however, be recalled that even before the ratification of the 1987
Constitution, specific statutes already paid special attention to the "environmental
right" of the present and future generations. On 6 June 1977, P.D. No. 1151
(Philippine Environmental Policy) and P.D. No. 1152 (Philippine Environment
Code) were issued. The former "declared a continuing policy of the State (a) to
create, develop, maintain and improve conditions under which man and nature can
thrive in productive and enjoyable harmony with each other, (b) to fulfill the social,

economic and other requirements of present and future generations of Filipinos,


and (c) to insure the attainment of an environmental quality that is conducive to a
life of dignity and well-being." 16 As its goal, it speaks of the "responsibilities of
each generation as trustee and guardian of the environment for succeeding
generations." 17 The latter statute, on the other hand, gave flesh to the said policy.
Thus, the right of the petitioners (and all those they represent) to a balanced and
healthful ecology is as clear as the DENR's duty under its mandate and by virtue
of its powers and functions under E.O. No. 192 and the Administrative Code of
1987 to protect and advance the said right.
A denial or violation of that right by the other who has the corelative duty or
obligation to respect or protect the same gives rise to a cause of action. Petitioners
maintain that the granting of the TLAs, which they claim was done with grave
abuse of discretion, violated their right to a balanced and healthful ecology; hence,
the full protection thereof requires that no further TLAs should be renewed or
granted.
A cause of action is defined as:
. . . an act or omission of one party in violation of the legal right or
rights of the other; and its essential elements are legal right of the
plaintiff, correlative obligation of the defendant, and act or
omission of the defendant in violation of said legal right. 18
It is settled in this jurisdiction that in a motion to dismiss based on the ground that
the complaint fails to state a cause of action, 19 the question submitted to the court
for resolution involves the sufficiency of the facts alleged in the complaint itself. No
other matter should be considered; furthermore, the truth of falsity of the said
allegations is beside the point for the truth thereof is deemed hypothetically
admitted. The only issue to be resolved in such a case is: admitting such alleged
facts to be true, may the court render a valid judgment in accordance with the
prayer in the complaint? 20 InMilitante vs. Edrosolano, 21 this Court laid down the
rule that the judiciary should "exercise the utmost care and circumspection in
passing upon a motion to dismiss on the ground of the absence thereof [cause of
action] lest, by its failure to manifest a correct appreciation of the facts alleged and
deemed hypothetically admitted, what the law grants or recognizes is effectively
nullified. If that happens, there is a blot on the legal order. The law itself stands in
disrepute."

After careful examination of the petitioners' complaint, We find the statements


under the introductory affirmative allegations, as well as the specific averments
under the sub-heading CAUSE OF ACTION, to be adequate enough to
show, prima facie, the claimed violation of their rights. On the basis thereof, they
may thus be granted, wholly or partly, the reliefs prayed for. It bears stressing,
however, that insofar as the cancellation of the TLAs is concerned, there is the need
to implead, as party defendants, the grantees thereof for they are indispensable
parties.
The foregoing considered, Civil Case No. 90-777 be said to raise a political
question. Policy formulation or determination by the executive or legislative
branches of Government is not squarely put in issue. What is principally involved
is the enforcement of a right vis-a-vis policies already formulated and expressed in
legislation. It must, nonetheless, be emphasized that the political question doctrine
is no longer, the insurmountable obstacle to the exercise of judicial power or the
impenetrable shield that protects executive and legislative actions from judicial
inquiry or review. The second paragraph of section 1, Article VIII of the
Constitution states that:
Judicial power includes the duty of the courts of justice to settle
actual controversies involving rights which are legally demandable
and enforceable, and to determine whether or not there has been a
grave abuse of discretion amounting to lack or excess of
jurisdiction on the part of any branch or instrumentality of the
Government.
Commenting on this provision in his book, Philippine Political Law, 22 Mr. Justice
Isagani A. Cruz, a distinguished member of this Court, says:
The first part of the authority represents the traditional concept of
judicial power, involving the settlement of conflicting rights as
conferred as law. The second part of the authority represents a
broadening of judicial power to enable the courts of justice to
review what was before forbidden territory, to wit, the discretion
of the political departments of the government.
As worded, the new provision vests in the judiciary, and
particularly the Supreme Court, the power to rule upon even the
wisdom of the decisions of the executive and the legislature and to
declare their acts invalid for lack or excess of jurisdiction because
tainted with grave abuse of discretion. The catch, of course, is the

meaning of "grave abuse of discretion," which is a very elastic


phrase that can expand or contract according to the disposition of
the judiciary.
In Daza vs. Singson, 23 Mr. Justice Cruz, now speaking for this Court, noted:
In the case now before us, the jurisdictional objection becomes
even less tenable and decisive. The reason is that, even if we were
to assume that the issue presented before us was political in
nature, we would still not be precluded from revolving it under the
expanded jurisdiction conferred upon us that now covers, in
proper cases, even the political question. Article VII, Section 1, of
the Constitution clearly provides: . . .
The last ground invoked by the trial court in dismissing the complaint is the nonimpairment of contracts clause found in the Constitution. The court a quo declared
that:
The Court is likewise of the impression that it cannot, no matter
how we stretch our jurisdiction, grant the reliefs prayed for by the
plaintiffs, i.e., to cancel all existing timber license agreements in
the country and to cease and desist from receiving, accepting,
processing, renewing or approving new timber license agreements.
For to do otherwise would amount to "impairment of contracts"
abhored (sic) by the fundamental law. 24
We are not persuaded at all; on the contrary, We are amazed, if not shocked, by
such a sweeping pronouncement. In the first place, the respondent Secretary did
not, for obvious reasons, even invoke in his motion to dismiss the non-impairment
clause. If he had done so, he would have acted with utmost infidelity to the
Government by providing undue and unwarranted benefits and advantages to the
timber license holders because he would have forever bound the Government to
strictly respect the said licenses according to their terms and conditions regardless
of changes in policy and the demands of public interest and welfare. He was aware
that as correctly pointed out by the petitioners, into every timber license must be
read Section 20 of the Forestry Reform Code (P.D. No. 705) which provides:
. . . Provided, That when the national interest so requires, the
President may amend, modify, replace or rescind any contract,
concession, permit, licenses or any other form of privilege granted
herein . . .

Needless to say, all licenses may thus be revoked or rescinded by executive


action. It is not a contract, property or a property right protested by the
due process clause of the Constitution. In Tan vs. Director of
Forestry, 25 this Court held:
. . . A timber license is an instrument by which the State regulates
the utilization and disposition of forest resources to the end that
public welfare is promoted. A timber license is not a contract
within the purview of the due process clause; it is only a license or
privilege, which can be validly withdrawn whenever dictated by
public interest or public welfare as in this case.
A license is merely a permit or privilege to do what otherwise
would be unlawful, and is not a contract between the authority,
federal, state, or municipal, granting it and the person to whom it
is granted; neither is it property or a property right, nor does it
create a vested right; nor is it taxation (37 C.J. 168). Thus, this
Court held that the granting of license does not create irrevocable
rights, neither is it property or property rights (People vs. Ong Tin,
54 O.G. 7576).
We reiterated this pronouncement in Felipe Ysmael, Jr. & Co., Inc. vs. Deputy
Executive Secretary: 26
. . . Timber licenses, permits and license agreements are the
principal instruments by which the State regulates the utilization
and disposition of forest resources to the end that public welfare is
promoted. And it can hardly be gainsaid that they merely evidence
a privilege granted by the State to qualified entities, and do not
vest in the latter a permanent or irrevocable right to the particular
concession area and the forest products therein. They may be
validly amended, modified, replaced or rescinded by the Chief
Executive when national interests so require. Thus, they are not
deemed contracts within the purview of the due process of law
clause [See Sections 3(ee) and 20 of Pres. Decree No. 705, as
amended. Also, Tan v. Director of Forestry, G.R. No. L-24548,
October 27, 1983, 125 SCRA 302].
Since timber licenses are not contracts, the non-impairment clause, which reads:

Sec. 10. No law impairing, the obligation of contracts shall be


passed. 27
cannot be invoked.
In the second place, even if it is to be assumed that the same are contracts, the
instant case does not involve a law or even an executive issuance declaring the
cancellation or modification of existing timber licenses. Hence, the nonimpairment clause cannot as yet be invoked. Nevertheless, granting further that a
law has actually been passed mandating cancellations or modifications, the same
cannot still be stigmatized as a violation of the non-impairment clause. This is
because by its very nature and purpose, such as law could have only been passed in
the exercise of the police power of the state for the purpose of advancing the right
of the people to a balanced and healthful ecology, promoting their health and
enhancing the general welfare. In Abe vs. Foster Wheeler
Corp. 28 this Court stated:
The freedom of contract, under our system of government, is not
meant to be absolute. The same is understood to be subject to
reasonable legislative regulation aimed at the promotion of public
health, moral, safety and welfare. In other words, the
constitutional guaranty of non-impairment of obligations of
contract is limited by the exercise of the police power of the State,
in the interest of public health, safety, moral and general welfare.
The reason for this is emphatically set forth in Nebia vs. New York, 29 quoted
in Philippine American Life Insurance Co. vs. Auditor General, 30 to wit:
Under our form of government the use of property and the making
of contracts are normally matters of private and not of public
concern. The general rule is that both shall be free of governmental
interference. But neither property rights nor contract rights are
absolute; for government cannot exist if the citizen may at will use
his property to the detriment of his fellows, or exercise his
freedom of contract to work them harm. Equally fundamental with
the private right is that of the public to regulate it in the common
interest.
In short, the non-impairment clause must yield to the police power of the state. 31

Finally, it is difficult to imagine, as the trial court did, how the non-impairment
clause could apply with respect to the prayer to enjoin the respondent Secretary
from receiving, accepting, processing, renewing or approving new timber licenses
for, save in cases of renewal, no contract would have as of yet existed in the other
instances. Moreover, with respect to renewal, the holder is not entitled to it as a
matter of right.
WHEREFORE, being impressed with merit, the instant Petition is hereby
GRANTED, and the challenged Order of respondent Judge of 18 July 1991
dismissing Civil Case No. 90-777 is hereby set aside. The petitioners may therefore
amend their complaint to implead as defendants the holders or grantees of the
questioned timber license agreements.
No pronouncement as to costs.
SO ORDERED.
Cruz, Padilla, Bidin, Grio-Aquino, Regalado, Romero, Nocon, Bellosillo, Melo
and Quiason, JJ., concur.
Narvasa, C.J., Puno and Vitug, JJ., took no part.

Oposa vs. Factoran Case Digest (G.R. No. 101083, July 30, 1993)
FACTS:
The plaintiffs in this case are all minors duly represented and joined by their
parents. The first complaint was filed as a taxpayer's class suit at the Branch 66
(Makati, Metro Manila), of the Regional Trial Court, National capital Judicial
Region against defendant (respondent) Secretary of the Department of
Environment and Natural Reasources (DENR). Plaintiffs alleged that they are
entitled to the full benefit, use and enjoyment of the natural resource treasure that
is the country's virgin tropical forests. They further asseverate that they represent
their generation as well as generations yet unborn and asserted that continued
deforestation have caused a distortion and disturbance of the ecological balance
and have resulted in a host of environmental tragedies.
Plaintiffs prayed that judgement be rendered ordering the respondent, his agents,
representatives and other persons acting in his behalf to cancel all existing Timber
License Agreement (TLA) in the country and to cease and desist from receiving,
accepting, processing, renewing or approving new TLAs.
Defendant, on the other hand, filed a motion to dismiss on the ground that the
complaint had no cause of action against him and that it raises a political question.
The RTC Judge sustained the motion to dismiss, further ruling that granting of the
relief prayed for would result in the impairment of contracts which is prohibited by
the Constitution.

Plaintiffs (petitioners) thus filed the instant special civil action for certiorari and
asked the court to rescind and set aside the dismissal order on the ground that the
respondent RTC Judge gravely abused his discretion in dismissing the action.

Hence, the full protection thereof requires that no further TLAs should be renewed
or granted.
After careful examination of the petitioners' complaint, the Court finds it to be
adequate enough to show, prima facie, the claimed violation of their rights.

ISSUES:
(1) Whether or not the plaintiffs have a cause of action.
(2) Whether or not the complaint raises a political issue.
(3) Whether or not the original prayer of the plaintiffs result in the impairment of
contracts.
RULING:

Second Issue: Political Issue.


Second paragraph, Section 1 of Article VIII of the constitution provides for the
expanded jurisdiction vested upon the Supreme Court. It allows the Court to rule
upon even on the wisdom of the decision of the Executive and Legislature and to
declare their acts as invalid for lack or excess of jurisdiction because it is tainted
with grave abuse of discretion.

First Issue: Cause of Action.


Respondents aver that the petitioners failed to allege in their complaint a specific
legal right violated by the respondent Secretary for which any relief is provided by
law. The Court did not agree with this. The complaint focuses on one fundamental
legal right -- the right to a balanced and healthful ecology which is incorporated in
Section 16 Article II of the Constitution. The said right carries with it the duty to
refrain from impairing the environment and implies, among many other things,
the judicious management and conservation of the country's forests. Section 4 of
E.O. 192 expressly mandates the DENR to be the primary government agency
responsible for the governing and supervising the exploration, utilization,
development and conservation of the country's natural resources. The policy
declaration of E.O. 192 is also substantially re-stated in Title XIV Book IV of the
Administrative Code of 1987. Both E.O. 192 and Administrative Code of 1987 have
set the objectives which will serve as the bases for policy formation, and have
defined the powers and functions of the DENR. Thus, right of the petitioners (and
all those they represent) to a balanced and healthful ecology is as clear as DENR's
duty to protect and advance the said right.
A denial or violation of that right by the other who has the correlative duty or
obligation to respect or protect or respect the same gives rise to a cause of action.
Petitioners maintain that the granting of the TLA, which they claim was done with
grave abuse of discretion, violated their right to a balance and healthful ecology.

Third Issue: Violation of the non-impairment clause.


The Court held that the Timber License Agreement is an instrument by which the
state regulates the utilization and disposition of forest resources to the end that
public welfare is promoted. It is not a contract within the purview of the due
process clause thus, the non-impairment clause cannot be invoked. It can be
validly withdraw whenever dictated by public interest or public welfare as in this
case. The granting of license does not create irrevocable rights, neither is it
property or property rights.
Moreover, the constitutional guaranty of non-impairment of obligations of contract
is limit by the exercise by the police power of the State, in the interest of public
health, safety, moral and general welfare. In short, the non-impairment clause
must yield to the police power of the State.
The instant petition, being impressed with merit, is hereby GRANTED and the
RTC decision is SET ASIDE.

Republic of the Philippines


SUPREME COURT
Manila
FIRST DIVISION

G.R. Nos. 120865-71 December 7, 1995


LAGUNA LAKE DEVELOPMENT AUTHORITY, petitioner,
vs.
COURT OF APPEALS; HON. JUDGE HERCULANO TECH, PRESIDING
JUDGE, BRANCH 70, REGIONAL TRIAL COURT OF BINANGONAN
RIZAL; FLEET DEVELOPMENT, INC. and CARLITO ARROYO; THE
MUNICIPALITY OF BINANGONAN and/or MAYOR ISIDRO B.
PACIS, respondents.
LAGUNA LAKE DEVELOPMENT AUTHORITY, petitioner,
vs.
COURT OF APPEALS; HON. JUDGE AURELIO C. TRAMPE,
PRESIDING JUDGE, BRANCH 163, REGIONAL TRIAL COURT OF
PASIG; MANILA MARINE LIFE BUSINESS RESOURCES, INC.
represented by, MR. TOBIAS REYNALD M. TIANGCO; MUNICIPALITY
OF TAGUIG, METRO MANILA and/or MAYOR RICARDO D. PAPA,
JR., respondents.

LAGUNA LAKE DEVELOPMENT AUTHORITY, petitioner,


vs.
COURT OF APPEALS; HON. JUDGE ALEJANDRO A. MARQUEZ,
PRESIDING JUDGE, BRANCH 79, REGIONAL TRIAL COURT OF
MORONG, RIZAL; GREENFIELD VENTURES INDUSTRIAL
DEVELOPMENT CORPORATION and R. J. ORION DEVELOPMENT
CORPORATION; MUNICIPALITY OF JALA-JALA and/or MAYOR
WALFREDO M. DE LA VEGA, respondents.
LAGUNA LAKE DEVELOPMENT AUTHORITY, petitioner,
vs.
COURT OF APPEALS; HON. JUDGE MANUEL S. PADOLINA,
PRESIDING JUDGE, BRANCH 162, REGIONAL TRIAL COURT OF
PASIG, METRO MANILA; IRMA FISHING & TRADING CORP.; ARTM
FISHING CORP.; BDR CORPORATION, MIRT CORPORATION and
TRIM CORPORATION; MUNICIPALITY OF BINANGONAN and/or
MAYOR ISIDRO B. PACIS, respondents.
LAGUNA LAKE DEVELOPMENT AUTHORITY, petitioner,
vs.
COURT OF APPEALS; HON. JUDGE ARTURO A. MARAVE, PRESIDING
JUDGE, BRANCH 78, REGIONAL TRIAL COURT OF MORONG, RIZAL;
BLUE LAGOON FISHING CORP. and ALCRIS CHICKEN GROWERS,
INC.; MUNICIPALITY OF JALA-JALA and/or MAYOR WALFREDO M.
DE LA VEGA, respondents.
LAGUNA LAKE DEVELOPMENT AUTHORITY, petitioner,
vs.
COURT OF APPEALS; HON. JUDGE ARTURO A. MARAVE, PRESIDING
JUDGE, BRANCH 78, REGIONAL TRIAL COURT OF MORONG, RIZAL;
AGP FISH VENTURES, INC., represented by its PRESIDENT ALFONSO
PUYAT; MUNICIPALITY OF JALA-JALA and/or MAYOR WALFREDO
M. DE LA VEGA, respondents.
LAGUNA LAKE DEVELOPMENT AUTHORITY, petitioner,
vs.
COURT OF APPEALS; HON. JUDGE EUGENIO S. LABITORIA,
PRESIDING JUDGE, BRANCH 161, REGIONAL TRIAL COURT OF
PASIG, METRO MANILA; SEA MAR TRADING CO. INC.; EASTERN
LAGOON FISHING CORP.; MINAMAR FISHING CORP.;
MUNICIPALITY OF BINANGONAN and/or MAYOR ISIDRO B.
PACIS,respondents.

HERMOSISIMA, JR., J.:


It is difficult for a man, scavenging on the garbage dump created by affluence and
profligate consumption and extravagance of the rich or fishing in the murky waters
of the Pasig River and the Laguna Lake or making a clearing in the forest so that he
can produce food for his family, to understand why protecting birds, fish, and trees
is more important than protecting him and keeping his family alive.
How do we strike a balance between environmental protection, on the one hand,
and the individual personal interests of people, on the other?
Towards environmental protection and ecology, navigational safety, and
sustainable development, Republic Act No. 4850 created the "Laguna Lake
Development Authority." This Government Agency is supposed to carry out and
effectuate the aforesaid declared policy, so as to accelerate the development and
balanced growth of the Laguna Lake area and the surrounding provinces, cities and
towns, in the act clearly named, within the context of the national and regional
plans and policies for social and economic development.
Presidential Decree No. 813 of former President Ferdinand E. Marcos amended
certain sections of Republic Act No. 4850 because of the concern for the rapid
expansion of Metropolitan Manila, the suburbs and the lakeshore towns of Laguna
de Bay, combined with current and prospective uses of the lake for municipalindustrial water supply, irrigation, fisheries, and the like. Concern on the part of
the Government and the general public over: the environment impact of
development on the water quality and ecology of the lake and its related river
systems; the inflow of polluted water from the Pasig River, industrial, domestic
and agricultural wastes from developed areas around the lake; the increasing
urbanization which induced the deterioration of the lake, since water quality
studies have shown that the lake will deteriorate further if steps are not taken to
check the same; and the floods in Metropolitan Manila area and the lakeshore
towns which will influence the hydraulic system of Laguna de Bay, since any
scheme of controlling the floods will necessarily involve the lake and its river
systems, likewise gave impetus to the creation of the Authority.
Section 1 of Republic Act No. 4850 was amended to read as follows:
Sec. 1. Declaration of Policy. It is hereby declared to be the
national policy to promote, and accelerate the development and

balanced growth of the Laguna Lake area and the surrounding


provinces, cities and towns hereinafter referred to as the region,
within the context of the national and regional plans and policies
for social and economic development and to carry out the
development of the Laguna Lake region with due regard and
adequate provisions for environmental management and control,
preservation of the quality of human life and ecological systems,
and the prevention of undue ecological disturbances, deterioration
and pollution. 1
Special powers of the Authority, pertinent to the issues in this case, include:
Sec. 3. Section 4 of the same Act is hereby further amended by
adding thereto seven new paragraphs to be known as paragraphs
(j), (k), (l), (m), (n), (o), and (p) which shall read as follows:
xxx xxx xxx
(j) The provisions of existing laws to the contrary
notwithstanding, to engage in fish production and
other aqua-culture projects in Laguna de Bay and
other bodies of water within its jurisdiction and in
pursuance thereof to conduct studies and make
experiments, whenever necessary, with the
collaboration and assistance of the Bureau of
Fisheries and Aquatic Resources, with the end in
view of improving present techniques and
practices. Provided, that until modified, altered or
amended by the procedure provided in the
following sub-paragraph, the present laws, rules
and permits or authorizations remain in force;
(k) For the purpose of effectively regulating and
monitoring activities in Laguna de Bay,the
Authority shall have exclusive jurisdiction to
issue new permit for the use of the lake waters
for any projects or activities in or affecting the
said lake including navigation, construction, and
operation of fishpens, fish enclosures, fish corrals
and the like, and to impose necessary safeguards
for lake quality control and management and to

collect necessary fees for said activities and


projects: Provided, That the fees collected for
fisheries may be shared between the Authority
and other government agencies and political subdivisions in such proportion as may be
determined by the President of the Philippines
upon recommendation of the Authority's
Board: Provided, further, That the Authority's
Board may determine new areas of fishery
development or activities which it may place
under the supervision of the Bureau of Fisheries
and Aquatic Resources taking into account the
overall development plans and programs for
Laguna de Bay and related bodies of
water: Provided, finally, That the Authority shall
subject to the approval of the President of the
Philippines promulgate such rules and regulations
which shall govern fisheries development
activities in Laguna de Bay which shall take into
consideration among others the following: socioeconomic amelioration of bonafide resident
fishermen whether individually or collectively in
the form of cooperatives, lakeshore town
development, a master plan for fishpen
construction and operation, communal fishing
ground for lake shore town residents, and
preference to lake shore town residents in hiring
laborer for fishery projects;
(l) To require the cities and municipalities
embraced within the region to pass appropriate
zoning ordinances and other regulatory measures
necessary to carry out the objectives of the
Authority and enforce the same with the
assistance of the Authority;
(m) The provisions of existing laws to the contrary
notwithstanding, to exercise water rights over
public waters within the Laguna de Bay region
whenever necessary to carry out the Authority's
projects;

(n) To act in coordination with existing


governmental agencies in establishing water
quality standards for industrial, agricultural and
municipal waste discharges into the lake and to
cooperate with said existing agencies of the
government of the Philippines in enforcing such
standards, or to separately pursue enforcement
and penalty actions as provided for in Section 4
(d) and Section 39-A of this Act: Provided, That in
case of conflict on the appropriate water quality
standard to be enforced such conflict shall be
resolved thru the NEDA Board. 2
To more effectively perform the role of the Authority under Republic Act No. 4850,
as though Presidential Decree No. 813 were not thought to be completely effective,
the Chief Executive, feeling that the land and waters of the Laguna Lake Region are
limited natural resources requiring judicious management to their optimal
utilization to insure renewability and to preserve the ecological balance, the
competing options for the use of such resources and conflicting jurisdictions over
such uses having created undue constraints on the institutional capabilities of the
Authority in the light of the limited powers vested in it by its charter, Executive
Order No. 927 further defined and enlarged the functions and powers of the
Authority and named and enumerated the towns, cities and provinces
encompassed by the term "Laguna de Bay Region".
Also, pertinent to the issues in this case are the following provisions of Executive
Order No. 927 which include in particular the sharing of fees:
Sec 2. Water Rights Over Laguna de Bay and Other Bodies of
Water within the Lake Region: To effectively regulate and monitor
activities in the Laguna de Bay region, the Authority shall have
exclusive jurisdiction to issue permit for the use of all surface
water for any projects or activities in or affecting the said region
including navigation, construction, and operation of fishpens, fish
enclosures, fish corrals and the like.
For the purpose of this Executive Order, the term "Laguna de Bay
Region" shall refer to the Provinces of Rizal and Laguna; the Cities
of San Pablo, Pasay, Caloocan, Quezon, Manila and Tagaytay; the
towns of Tanauan, Sto. Tomas and Malvar in Batangas Province;
the towns of Silang and Carmona in Cavite Province; the town of

Lucban in Quezon Province; and the towns of Marikina, Pasig,


Taguig, Muntinlupa, and Pateros in Metro Manila.
Sec 3. Collection of Fees. The Authority is hereby empowered to
collect fees for the use of the lake water and its tributaries for all
beneficial purposes including but not limited to fisheries,
recreation, municipal, industrial, agricultural, navigation,
irrigation, and waste disposal purpose; Provided, that the rates of
the fees to be collected, and the sharing with other government
agencies and political subdivisions, if necessary, shall be subject
to the approval of the President of the Philippines upon
recommendation of the Authority's Board, except fishpen fee,
which will be shared in the following manner; 20 percent of the
fee shall go to the lakeshore local governments, 5 percent shall go
to the Project Development Fund which shall be administered by a
Council and the remaining 75 percent shall constitute the share of
LLDA. However, after the implementation within the three-year
period of the Laguna Lake Fishery Zoning and Management
Plan, the sharing will be modified as follows: 35 percent of the
fishpen fee goes to the lakeshore local governments, 5 percent
goes to the Project Development Fund and the remaining 60
percent shall be retained by LLDA; Provided, however, that the
share of LLDA shall form part of its corporate funds and shall not
be remitted to the National Treasury as an exception to the
provisions of Presidential Decree No. 1234. (Emphasis supplied)
It is important to note that Section 29 of Presidential Decree No. 813 defined the
term "Laguna Lake" in this manner:
Sec 41. Definition of Terms.
(11) Laguna Lake or Lake. Whenever Laguna Lake or lake is used
in this Act, the same shall refer to Laguna de Bay which is that area
covered by the lake water when it is at the average annual
maximum lake level of elevation 12.50 meters, as referred to a
datum 10.00 meters below mean lower low water (M.L.L.W).
Lands located at and below such elevation are public lands which
form part of the bed of said lake.
Then came Republic Act No. 7160, the Local Government Code of 1991. The
municipalities in the Laguna Lake Region interpreted the provisions of this law to

mean that the newly passed law gave municipal governments the exclusive
jurisdiction to issue fishing privileges within their municipal waters because R.A.
7160 provides:
Sec. 149. Fishery Rentals, Fees and Charges.
(a) Municipalities shall have the exclusive authority to grant
fishery privileges in the municipal waters and impose rental fees
or charges therefor in accordance with the provisions of this
Section.
(b) The Sangguniang Bayan may:
(1) Grant fishing privileges to erect fish corrals,
oyster, mussel or other aquatic beds or bangus fry
areas, within a definite zone of the municipal
waters, as determined by it; . . . .
(2) Grant privilege to gather, take or catch bangus
fry, prawn fry or kawag-kawag or fry of other
species and fish from the municipal waters by
nets, traps or other fishing gears to marginal
fishermen free from any rental fee, charges or any
other imposition whatsoever.
xxx xxx xxx
Sec. 447. Power, Duties, Functions and Compensation. . . . .
xxx xxx xxx
(XI) Subject to the provisions of Book II of this
Code, grant exclusive privileges of constructing
fish corrals or fishpens, or the taking or catching
of bangus fry, prawn fry orkawag-kawag or fry of
any species or fish within the municipal waters.
xxx xxx xxx
Municipal governments thereupon assumed the authority to issue fishing
privileges and fishpen permits. Big fishpen operators took advantage of the

occasion to establish fishpens and fishcages to the consternation of the Authority.


Unregulated fishpens and fishcages, as of July, 1995, occupied almost one-third of
the entire lake water surface area, increasing the occupation drastically from 7,000
hectares in 1990 to almost 21,000 hectares in 1995. The Mayor's permit to
construct fishpens and fishcages were all undertaken in violation of the policies
adopted by the Authority on fishpen zoning and the Laguna Lake carrying capacity.
To be sure, the implementation by the lakeshore municipalities of separate
independent policies in the operation of fishpens and fishcages within their
claimed territorial municipal waters in the lake and their indiscriminate grant of
fishpen permits have already saturated the lake area with fishpens, thereby
aggravating the current environmental problems and ecological stress of Laguna
Lake.
In view of the foregoing circumstances, the Authority served notice to the general
public that:
In compliance with the instructions of His Excellency PRESIDENT
FIDEL V. RAMOS given on June 23, 1993 at Pila, Laguna pursuant
to Republic Act 4850 as amended by Presidential Decree 813 and
Executive Order 927 series of 1983 and in line with the policies
and programs of the Presidential Task Force on Illegal Fishpens
and Illegal Fishing, the general public is hereby notified that:
1. All fishpens, fishcages and other aqua-culture structures in the
Laguna de Bay Region, which were not registered or to which no
application for registration and/or permit has been filed with
Laguna Lake Development Authority as of March 31, 1993 are
hereby declared outrightly as illegal.
2. All fishpens, fishcages and other aqua-culture structures so
declared as illegal shall be subject to demolition which shall be
undertaken by the Presidential Task Force for Illegal Fishpen and
Illegal Fishing.
3. Owners of fishpens, fishcages and other aqua-culture structures
declared as illegal shall, without prejudice to demolition of their
structures be criminally charged in accordance with Section 39-A
of Republic Act 4850 as amended by P.D. 813 for violation of the
same laws. Violations of these laws carries a penalty of

imprisonment of not exceeding 3 years or a fine not exceeding Five


Thousand Pesos or both at the discretion of the court.
All operators of fishpens, fishcages and other aqua-culture
structures declared as illegal in accordance with the foregoing
Notice shall have one (1) month on or before 27 October 1993 to
show cause before the LLDA why their said fishpens, fishcages and
other aqua-culture structures should not be
demolished/dismantled.
One month, thereafter, the Authority sent notices to the concerned owners of the
illegally constructed fishpens, fishcages and other aqua-culture structures advising
them to dismantle their respective structures within 10 days from receipt thereof,
otherwise, demolition shall be effected.
Reacting thereto, the affected fishpen owners filed injunction cases against the
Authority before various regional trial courts, to wit: (a) Civil Case No. 759-B, for
Prohibition, Injunction and Damages, Regional Trial Court, Branch 70,
Binangonan, Rizal, filed by Fleet Development, Inc. and Carlito Arroyo; (b) Civil
Case No. 64049, for Injunction, Regional Trial Court, Branch 162, Pasig, filed by
IRMA Fishing and Trading Corp., ARTM Fishing Corp., BDR Corp., MIRT Corp.
and TRIM Corp.; (c) Civil Case No. 566, for Declaratory Relief and Injunction,
Regional Trial Court, Branch 163, Pasig, filed by Manila Marine Life Business
Resources, Inc. and Tobias Reynaldo M. Tianco; (d) Civil Case No. 556-M, for
Prohibition, Injunction and Damages, Regional Trial Court, Branch 78, Morong,
Rizal, filed by AGP Fishing Ventures, Inc.; (e) Civil Case No. 522-M, for
Prohibition, Injunction and Damages, Regional Trial Court, Branch 78, Morong,
Rizal, filed by Blue Lagoon and Alcris Chicken Growers, Inc.; (f) Civil Case No.
554-, for Certiorari and Prohibition, Regional Trial Court, Branch 79, Morong,
Rizal, filed by Greenfields Ventures Industrial Corp. and R.J. Orion Development
Corp.; and (g) Civil Case No. 64124, for Injunction, Regional Trial Court, Branch
15, Pasig, filed by SEA-MAR Trading Co., Inc. and Eastern Lagoon Fishing Corp.
and Minamar Fishing Corporation.
The Authority filed motions to dismiss the cases against it on jurisdictional
grounds. The motions to dismiss were invariably denied. Meanwhile, temporary
restraining order/writs of preliminary mandatory injunction were issued in Civil
Cases Nos. 64124, 759 and 566 enjoining the Authority from demolishing the
fishpens and similar structures in question.

Hence, the herein petition for certiorari, prohibition and injunction, G.R. Nos.
120865-71, were filed by the Authority with this court. Impleaded as partiesrespondents are concerned regional trial courts and respective private parties, and
the municipalities and/or respective Mayors of Binangonan, Taguig and Jala-jala,
who issued permits for the construction and operation of fishpens in Laguna de
Bay. The Authority sought the following reliefs, viz.:
(A) Nullification of the temporary restraining order/writs of
preliminary injunction issued in Civil Cases Nos. 64125, 759 and
566;
(B) Permanent prohibition against the regional trial courts from
exercising jurisdiction over cases involving the Authority which is
a co-equal body;
(C) Judicial pronouncement that R.A. 7610 (Local Government
Code of 1991) did not repeal, alter or modify the provisions of R.A.
4850, as amended, empowering the Authority to issue permits for
fishpens, fishcages and other aqua-culture structures in Laguna de
Bay and that, the Authority the government agency vested with
exclusive authority to issue said permits.
By this Court's resolution of May 2, 1994, the Authority's consolidated petitions
were referred to the Court of Appeals.
In a Decision, dated June 29, 1995, the Court of Appeals dismissed the Authority's
consolidated petitions, the Court of Appeals holding that: (A) LLDA is not among
those quasi-judicial agencies of government whose decision or order are
appealable only to the Court of Appeals; (B) the LLDA charter does vest LLDA with
quasi-judicial functions insofar as fishpens are concerned; (C) the provisions of the
LLDA charter insofar as fishing privileges in Laguna de Bay are concerned had
been repealed by the Local Government Code of 1991; (D) in view of the aforesaid
repeal, the power to grant permits devolved to and is now vested with their
respective local government units concerned.
Not satisfied with the Court of Appeals decision, the Authority has returned to this
Court charging the following errors:
1. THE HONORABLE COURT OF APPEALS PROBABLY
COMMITTED AN ERROR WHEN IT RULED THAT THE

LAGUNA LAKE DEVELOPMENT AUTHORITY IS NOT A QUASIJUDICIAL AGENCY.

that there was no intent on the part of the legislature to repeal Republic Act No.
4850 and its amendments. The repeal of laws should be made clear and expressed.

2. THE HONORABLE COURT OF APPEALS COMMITTED


SERIOUS ERROR WHEN IT RULED THAT R.A. 4850 AS
AMENDED BY P.D. 813 AND E.O. 927 SERIES OF 1983 HAS
BEEN REPEALED BY REPUBLIC ACT 7160. THE SAID RULING
IS CONTRARY TO ESTABLISHED PRINCIPLES AND
JURISPRUDENCE OF STATUTORY CONSTRUCTION.

It has to be conceded that the charter of the Laguna Lake Development Authority
constitutes a special law. Republic Act No. 7160, the Local Government Code of
1991, is a general law. It is basic in statutory construction that the enactment of a
later legislation which is a general law cannot be construed to have repealed a
special law. It is a well-settled rule in this jurisdiction that "a special statute,
provided for a particular case or class of cases, is not repealed by a subsequent
statute, general in its terms, provisions and application, unless the intent to repeal
or alter is manifest, although the terms of the general law are broad enough to
include the cases embraced in the special law." 3

3. THE HONORABLE COURT OF APPEALS COMMITTED


SERIOUS ERROR WHEN IT RULED THAT THE POWER TO
ISSUE FISHPEN PERMITS IN LAGUNA DE BAY HAS BEEN
DEVOLVED TO CONCERNED (LAKESHORE) LOCAL
GOVERNMENT UNITS.
We take a simplistic view of the controversy. Actually, the main and only issue
posed is: Which agency of the Government the Laguna Lake Development
Authority or the towns and municipalities comprising the region should exercise
jurisdiction over the Laguna Lake and its environs insofar as the issuance of
permits for fishery privileges is concerned?
Section 4 (k) of the charter of the Laguna Lake Development Authority, Republic
Act No. 4850, the provisions of Presidential Decree No. 813, and Section 2 of
Executive Order No. 927, cited above, specifically provide that the Laguna Lake
Development Authority shall have exclusive jurisdiction to issue permits for the
use of all surface water for any projects or activities in or affecting the said region,
including navigation, construction, and operation of fishpens, fish enclosures, fish
corrals and the like. On the other hand, Republic Act No. 7160, the Local
Government Code of 1991, has granted to the municipalities the exclusive authority
to grant fishery privileges in municipal waters. The Sangguniang Bayan may grant
fishery privileges to erect fish corrals, oyster, mussels or other aquatic beds or
bangus fry area within a definite zone of the municipal waters.
We hold that the provisions of Republic Act No. 7160 do not necessarily repeal the
aforementioned laws creating the Laguna Lake Development Authority and
granting the latter water rights authority over Laguna de Bay and the lake region.
The Local Government Code of 1991 does not contain any express provision which
categorically expressly repeal the charter of the Authority. It has to be conceded

Where there is a conflict between a general law and a special statute, the special
statute should prevail since it evinces the legislative intent more clearly than the
general statute. The special law is to be taken as an exception to the general law in
the absence of special circumstances forcing a contrary conclusion. This is because
implied repeals are not favored and as much as possible, effect must be given to all
enactments of the legislature. A special law cannot be repealed, amended or altered
by a subsequent general law by mere implication. 4
Thus, it has to be concluded that the charter of the Authority should prevail over
the Local Government Code of 1991.
Considering the reasons behind the establishment of the Authority, which are
environmental protection, navigational safety, and sustainable development, there
is every indication that the legislative intent is for the Authority to proceed with its
mission.
We are on all fours with the manifestation of petitioner Laguna Lake Development
Authority that "Laguna de Bay, like any other single body of water has its own
unique natural ecosystem. The 900 km lake surface water, the eight (8) major
river tributaries and several other smaller rivers that drain into the lake, the 2,920
km basin or watershed transcending the boundaries of Laguna and Rizal
provinces, greater portion of Metro Manila, parts of Cavite, Batangas, and Quezon
provinces, constitute one integrated delicate natural ecosystem that needs to be
protected with uniform set of policies; if we are to be serious in our aims of
attaining sustainable development. This is an exhaustible natural resource a very
limited one which requires judicious management and optimal utilization to
ensure renewability and preserve its ecological integrity and balance."

"Managing the lake resources would mean the implementation of a national policy
geared towards the protection, conservation, balanced growth and sustainable
development of the region with due regard to the inter-generational use of its
resources by the inhabitants in this part of the earth. The authors of Republic Act
4850 have foreseen this need when they passed this LLDA law the special law
designed to govern the management of our Laguna de Bay lake resources."
"Laguna de Bay therefore cannot be subjected to fragmented concepts of
management policies where lakeshore local government units exercise exclusive
dominion over specific portions of the lake water. The garbage thrown or sewage
discharged into the lake, abstraction of water therefrom or construction of fishpens
by enclosing its certain area, affect not only that specific portion but the entire 900
km of lake water. The implementation of a cohesive and integrated lake water
resource management policy, therefore, is necessary to conserve, protect and
sustainably develop Laguna de Bay." 5
The power of the local government units to issue fishing privileges was clearly
granted for revenue purposes. This is evident from the fact that Section 149 of the
New Local Government Code empowering local governments to issue fishing
permits is embodied in Chapter 2, Book II, of Republic Act No. 7160 under the
heading, "Specific Provisions On The Taxing And Other Revenue Raising Power Of
Local Government Units."
On the other hand, the power of the Authority to grant permits for fishpens,
fishcages and other aqua-culture structures is for the purpose of effectively
regulating and monitoring activities in the Laguna de Bay region (Section 2,
Executive Order No. 927) and for lake quality control and management. 6 It does
partake of the nature of police power which is the most pervasive, the least
limitable and the most demanding of all State powers including the power of
taxation. Accordingly, the charter of the Authority which embodies a valid exercise
of police power should prevail over the Local Government Code of 1991 on matters
affecting Laguna de Bay.
There should be no quarrel over permit fees for fishpens, fishcages and other aquaculture structures in the Laguna de Bay area. Section 3 of Executive Order No. 927
provides for the proper sharing of fees collected.
In respect to the question as to whether the Authority is a quasi-judicial agency or
not, it is our holding that, considering the provisions of Section 4 of Republic Act
No. 4850 and Section 4 of Executive Order No. 927, series of 1983, and the ruling

of this Court in Laguna Lake Development Authority vs. Court of Appeals, 231
SCRA 304, 306, which we quote:
xxx xxx xxx
As a general rule, the adjudication of pollution cases generally
pertains to the Pollution Adjudication Board (PAB), except in
cases where the special law provides for another forum. It must be
recognized in this regard that the LLDA, as a specialized
administrative agency, is specifically mandated under Republic
Act No. 4850 and its amendatory laws to carry out and make
effective the declared national policy of promoting and
accelerating the development and balanced growth of the Laguna
Lake area and the surrounding provinces of Rizal and Laguna and
the cities of San Pablo, Manila, Pasay, Quezon and Caloocan with
due regard and adequate provisions for environmental
management and control, preservation of the quality of human life
and ecological systems, and the prevention of undue ecological
disturbances, deterioration and pollution. Under such a broad
grant of power and authority, the LLDA, by virtue of its special
charter, obviously has the responsibility to protect the inhabitants
of the Laguna Lake region from the deleterious effects of
pollutants emanating from the discharge of wastes from the
surrounding areas. In carrying out the aforementioned declared
policy, the LLDA is mandated, among others, to pass upon and
approve or disapprove all plans, programs, and projects proposed
by local government offices/agencies within the region, public
corporations, and private persons or enterprises where such plans,
programs and/or projects are related to those of the LLDA for the
development of the region.
xxx xxx xxx
. . . . While it is a fundamental rule that an administrative agency
has only such powers as are expressly granted to it by law, it is
likewise a settled rule that an administrative agency has also such
powers as are necessarily implied in the exercise of its express
powers. In the exercise, therefore, of its express powers under its
charter, as a regulatory and quasi-judicial body with respect to
pollution cases in the Laguna Lake region, the authority of the
LLDA to issue a "cease and desist order" is, perforce, implied.
Otherwise, it may well be reduced to a "toothless" paper agency.

there is no question that the Authority has express powers as a regulatory


and quasi-judicial body in respect to pollution cases with authority to issue
a "cease and desist order" and on matters affecting the construction of
illegal fishpens, fishcages and other aqua-culture structures in Laguna de
Bay. The Authority's pretense, however, that it is co-equal to the Regional
Trial Courts such that all actions against it may only be instituted before
the Court of Appeals cannot be sustained. On actions necessitating the
resolution of legal questions affecting the powers of the Authority as
provided for in its charter, the Regional Trial Courts have jurisdiction.
In view of the foregoing, this Court holds that Section 149 of Republic Act No.
7160, otherwise known as the Local Government Code of 1991, has not repealed the
provisions of the charter of the Laguna Lake Development Authority, Republic Act
No. 4850, as amended. Thus, the Authority has the exclusive jurisdiction to issue
permits for the enjoyment of fishery privileges in Laguna de Bay to the exclusion of
municipalities situated therein and the authority to exercise such powers as are by
its charter vested on it.
Removal from the Authority of the aforesaid licensing authority will render
nugatory its avowed purpose of protecting and developing the Laguna Lake
Region. Otherwise stated, the abrogation of this power would render useless its
reason for being and will in effect denigrate, if not abolish, the Laguna Lake
Development Authority. This, the Local Government Code of 1991 had never
intended to do.
WHEREFORE, the petitions for prohibition, certiorari and injunction are hereby
granted, insofar as they relate to the authority of the Laguna Lake Development
Authority to grant fishing privileges within the Laguna Lake Region.
The restraining orders and/or writs of injunction issued by Judge Arturo Marave,
RTC, Branch 78, Morong, Rizal; Judge Herculano Tech, RTC, Branch 70,
Binangonan, Rizal; and Judge Aurelio Trampe, RTC, Branch 163, Pasig, Metro
Manila, are hereby declared null and void and ordered set aside for having been
issued with grave abuse of discretion.
The Municipal Mayors of the Laguna Lake Region are hereby prohibited from
issuing permits to construct and operate fishpens, fishcages and other aqua-culture
structures within the Laguna Lake Region, their previous issuances being declared
null and void. Thus, the fishing permits issued by Mayors Isidro B. Pacis,
Municipality of Binangonan; Ricardo D. Papa, Municipality of Taguig; and

Walfredo M. de la Vega, Municipality of Jala-jala, specifically, are likewise declared


null and void and ordered cancelled.
The fishpens, fishcages and other aqua-culture structures put up by operators by
virtue of permits issued by Municipal Mayors within the Laguna Lake Region,
specifically, permits issued to Fleet Development, Inc. and Carlito Arroyo; Manila
Marine Life Business Resources, Inc., represented by, Mr. Tobias Reynald M.
Tiangco; Greenfield Ventures Industrial Development Corporation and R.J. Orion
Development Corporation; IRMA Fishing And Trading Corporation, ARTM
Fishing Corporation, BDR Corporation, Mirt Corporation and Trim Corporation;
Blue Lagoon Fishing Corporation and ALCRIS Chicken Growers, Inc.; AGP Fish
Ventures, Inc., represented by its President Alfonso Puyat; SEA MAR Trading Co.,
Inc., Eastern Lagoon Fishing Corporation, and MINAMAR Fishing Corporation,
are hereby declared illegal structures subject to demolition by the Laguna Lake
Development Authority.
SO ORDERED.

while the latter is a general law. It is basic in statutory construction that the
enactment of a later legislation which is a general law, cannot be construed to have
repealed a special law. The special law is to be taken as an exception to the general
law in the absence of special circumstances forcing a contrary conclusion.
In addition, the charter of the LLDA embodies a valid exercise of police power for
the purpose of protecting and developing the Laguna Lake region, as opposed to
the Local Government Code, which grants powers to municipalities to issue fishing
permits for revenue purposes.
Thus it has to be concluded that the charter of the LLDA should prevail over the
Local Government Code of 1991 on matters affecting Laguna de Bay.

Laguna Lake Development Authority vs CA


Natural Resources and Environmental Laws; Statutory Construction
GR No. 120865-71; Dec. 7 1995
FACTS:
The Laguna Lake Development Authority (LLDA) was created through Republic
Act No. 4850. It was granted, inter alia, exclusive jurisdiction to issue permits for
the use of all surface water for any project or activity in or affecting the said region
including navigation, construction, and operation of fishpens, fish enclosures, fish
corrals and the like.
Then came RA 7160, the Local Government Code of 1991. The municipalities in the
Laguna Lake region interpreted its provisions to mean that the newly passed law
gave municipal governments the exclusive jurisdiction to issue fishing privileges
within their municipal waters.
ISSUE:
Who should exercise jurisdiction over the Laguna Lake and its environs insofar as
the issuance of permits for fishing privileges is concerned, the LLDA or the towns
and municipalities comprising the region?
HELD:
LLDA has jurisdiction over such matters because the charter of the LLDA prevails
over the Local Government Code of 1991. The said charter constitutes a special law,

FRITZIE TANGKIA, SARAH JOELLE LINTAG, HANNIBAL AUGUSTUS


BOBIS, FELIMON SANTIAGUEL, and JAIME AGUSTIN R.
OPOSA,Respondents.
RESOLUTION
VELASCO, JR., J.:
On December 18, 2008, this Court rendered a Decision in G.R. Nos. 171947-48
ordering petitioners to clean up, rehabilitate and preserve Manila Bay in their
different capacities. The fallo reads:
WHEREFORE, the petition is DENIED. The September 28, 2005 Decision of the
CA in CA-G.R. CV No. 76528 and SP No. 74944 and the September 13, 2002
Decision of the RTC in Civil Case No. 1851-99 are AFFIRMED but with
MODIFICATIONS in view of subsequent developments or supervening events in
the case. The fallo of the RTC Decision shall now read:

Republic of the Philippines


SUPREME COURT
Manila
EN BANC
G.R. Nos. 171947-48

February 15, 2011

METROPOLITAN MANILA DEVELOPMENT AUTHORITY,


DEPARTMENT OF ENVIRONMENT AND NATURAL RESOURCES,
DEPARTMENT OF EDUCATION, CULTURE AND
SPORTS,1 DEPARTMENT OF HEALTH, DEPARTMENT OF
AGRICULTURE, DEPARTMENT OF PUBLIC WORKS AND HIGHWAYS,
DEPARTMENT OF BUDGET AND MANAGEMENT, PHILIPPINE COAST
GUARD, PHILIPPINE NATIONAL POLICE MARITIME GROUP, and
DEPARTMENT OF THE INTERIOR AND LOCAL
GOVERNMENT, Petitioners,
vs.
CONCERNED RESIDENTS OF MANILA BAY, represented and joined by
DIVINA V. ILAS, SABINIANO ALBARRACIN, MANUEL SANTOS, JR.,
DINAH DELA PEA, PAUL DENNIS QUINTERO, MA. VICTORIA
LLENOS, DONNA CALOZA, FATIMA QUITAIN, VENICE SEGARRA,

WHEREFORE, judgment is hereby rendered ordering the abovenamed defendantgovernment agencies to clean up, rehabilitate, and preserve Manila Bay, and
restore and maintain its waters to SB level (Class B sea waters per Water
Classification Tables under DENR Administrative Order No. 34 [1990]) to make
them fit for swimming, skin-diving, and other forms of contact recreation.
In particular:
(1) Pursuant to Sec. 4 of EO 192, assigning the DENR as the primary
agency responsible for the conservation, management, development, and
proper use of the countrys environment and natural resources, and Sec. 19
of RA 9275, designating the DENR as the primary government agency
responsible for its enforcement and implementation, the DENR is directed
to fully implement its Operational Plan for the Manila Bay Coastal Strategy
for the rehabilitation, restoration, and conservation of the Manila Bay at
the earliest possible time. It is ordered to call regular coordination
meetings with concerned government departments and agencies to ensure
the successful implementation of the aforesaid plan of action in accordance
with its indicated completion schedules.
(2) Pursuant to Title XII (Local Government) of the Administrative Code of
1987 and Sec. 25 of the Local Government Code of 1991, the DILG, in
exercising the Presidents power of general supervision and its duty to

promulgate guidelines in establishing waste management programs under


Sec. 43 of the Philippine Environment Code (PD 1152), shall direct all
LGUs in Metro Manila, Rizal, Laguna, Cavite, Bulacan, Pampanga, and
Bataan to inspect all factories, commercial establishments, and private
homes along the banks of the major river systems in their respective areas
of jurisdiction, such as but not limited to the Pasig-Marikina-San Juan
Rivers, the NCR (Paraaque-Zapote, Las Pias) Rivers, the NavotasMalabon-Tullahan-Tenejeros Rivers, the Meycauayan-Marilao-Obando
(Bulacan) Rivers, the Talisay (Bataan) River, the Imus (Cavite) River, the
Laguna De Bay, and other minor rivers and waterways that eventually
discharge water into the Manila Bay; and the lands abutting the bay, to
determine whether they have wastewater treatment facilities or hygienic
septic tanks as prescribed by existing laws, ordinances, and rules and
regulations. If none be found, these LGUs shall be ordered to require noncomplying establishments and homes to set up said facilities or septic
tanks within a reasonable time to prevent industrial wastes, sewage water,
and human wastes from flowing into these rivers, waterways, esteros, and
the Manila Bay, under pain of closure or imposition of fines and other
sanctions.
(3) As mandated by Sec. 8 of RA 9275, the MWSS is directed to provide,
install, operate, and maintain the necessary adequate waste water
treatment facilities in Metro Manila, Rizal, and Cavite where needed at the
earliest possible time.
(4) Pursuant to RA 9275, the LWUA, through the local water districts and
in coordination with the DENR, is ordered to provide, install, operate, and
maintain sewerage and sanitation facilities and the efficient and safe
collection, treatment, and disposal of sewage in the provinces of Laguna,
Cavite, Bulacan, Pampanga, and Bataan where needed at the earliest
possible time.
(5) Pursuant to Sec. 65 of RA 8550, the DA, through the BFAR, is ordered
to improve and restore the marine life of the Manila Bay. It is also directed
to assist the LGUs in Metro Manila, Rizal, Cavite, Laguna, Bulacan,
Pampanga, and Bataan in developing, using recognized methods, the
fisheries and aquatic resources in the Manila Bay.
(6) The PCG, pursuant to Secs. 4 and 6 of PD 979, and the PNP Maritime
Group, in accordance with Sec. 124 of RA 8550, in coordination with each
other, shall apprehend violators of PD 979, RA 8550, and other existing

laws and regulations designed to prevent marine pollution in the Manila


Bay.
(7) Pursuant to Secs. 2 and 6-c of EO 513 and the International Convention
for the Prevention of Pollution from Ships, the PPA is ordered to
immediately adopt such measures to prevent the discharge and dumping
of solid and liquid wastes and other ship-generated wastes into the Manila
Bay waters from vessels docked at ports and apprehend the violators.
(8) The MMDA, as the lead agency and implementor of programs and
projects for flood control projects and drainage services in Metro Manila,
in coordination with the DPWH, DILG, affected LGUs, PNP Maritime
Group, Housing and Urban Development Coordinating Council (HUDCC),
and other agencies, shall dismantle and remove all structures,
constructions, and other encroachments established or built in violation of
RA 7279, and other applicable laws along the Pasig-Marikina-San Juan
Rivers, the NCR (Paraaque-Zapote, Las Pias) Rivers, the NavotasMalabon-Tullahan-Tenejeros Rivers, and connecting waterways and
esteros in Metro Manila. The DPWH, as the principal implementor of
programs and projects for flood control services in the rest of the country
more particularly in Bulacan, Bataan, Pampanga, Cavite, and Laguna, in
coordination with the DILG, affected LGUs, PNP Maritime Group,
HUDCC, and other concerned government agencies, shall remove and
demolish all structures, constructions, and other encroachments built in
breach of RA 7279 and other applicable laws along the MeycauayanMarilao-Obando (Bulacan) Rivers, the Talisay (Bataan) River, the Imus
(Cavite) River, the Laguna De Bay, and other rivers, connecting waterways,
and esteros that discharge wastewater into the Manila Bay.
In addition, the MMDA is ordered to establish, operate, and maintain a
sanitary landfill, as prescribed by RA 9003, within a period of one (1) year
from finality of this Decision. On matters within its territorial jurisdiction
and in connection with the discharge of its duties on the maintenance of
sanitary landfills and like undertakings, it is also ordered to cause the
apprehension and filing of the appropriate criminal cases against violators
of the respective penal provisions of RA 9003, Sec. 27 of RA 9275 (the
Clean Water Act), and other existing laws on pollution.
(9) The DOH shall, as directed by Art. 76 of PD 1067 and Sec. 8 of RA
9275, within one (1) year from finality of this Decision, determine if all
licensed septic and sludge companies have the proper facilities for the
treatment and disposal of fecal sludge and sewage coming from septic

tanks. The DOH shall give the companies, if found to be non-complying, a


reasonable time within which to set up the necessary facilities under pain
of cancellation of its environmental sanitation clearance.
(10) Pursuant to Sec. 53 of PD 1152, Sec. 118 of RA 8550, and Sec. 56 of RA
9003, the DepEd shall integrate lessons on pollution prevention, waste
management, environmental protection, and like subjects in the school
curricula of all levels to inculcate in the minds and hearts of students and,
through them, their parents and friends, the importance of their duty
toward achieving and maintaining a balanced and healthful ecosystem in
the Manila Bay and the entire Philippine archipelago.
(11) The DBM shall consider incorporating an adequate budget in the
General Appropriations Act of 2010 and succeeding years to cover the
expenses relating to the cleanup, restoration, and preservation of the water
quality of the Manila Bay, in line with the countrys development objective
to attain economic growth in a manner consistent with the protection,
preservation, and revival of our marine waters.
(12) The heads of petitioners-agencies MMDA, DENR, DepEd, DOH, DA,
DPWH, DBM, PCG, PNP Maritime Group, DILG, and also of MWSS,
LWUA, and PPA, in line with the principle of "continuing mandamus,"
shall, from finality of this Decision, each submit to the Court a quarterly
progressive report of the activities undertaken in accordance with this
Decision.
SO ORDERED.
The government agencies did not file any motion for reconsideration and the
Decision became final in January 2009.
The case is now in the execution phase of the final and executory December 18,
2008 Decision. The Manila Bay Advisory Committee was created to receive and
evaluate the quarterly progressive reports on the activities undertaken by the
agencies in accordance with said decision and to monitor the execution phase.
In the absence of specific completion periods, the Committee recommended that
time frames be set for the agencies to perform their assigned tasks. This may be
viewed as an encroachment over the powers and functions of the Executive Branch
headed by the President of the Philippines.

This view is misplaced.


The issuance of subsequent resolutions by the Court is simply an exercise of
judicial power under Art. VIII of the Constitution, because the execution of the
Decision is but an integral part of the adjudicative function of the Court. None of
the agencies ever questioned the power of the Court to implement the December
18, 2008 Decision nor has any of them raised the alleged encroachment by the
Court over executive functions.
While additional activities are required of the agencies like submission of plans of
action, data or status reports, these directives are but part and parcel of the
execution stage of a final decision under Rule 39 of the Rules of Court. Section 47
of Rule 39 reads:
Section 47. Effect of judgments or final orders.The effect of a judgment or final
order rendered by a court of the Philippines, having jurisdiction to pronounce the
judgment or final order, may be as follows:
xxxx
(c) In any other litigation between the same parties of their successors in interest,
that only is deemed to have been adjudged in a former judgment or final order
which appears upon its face to have been so adjudged, or which was actually and
necessarily included therein or necessary thereto. (Emphasis supplied.)
It is clear that the final judgment includes not only what appears upon its face to
have been so adjudged but also those matters "actually and necessarily included
therein or necessary thereto." Certainly, any activity that is needed to fully
implement a final judgment is necessarily encompassed by said judgment.
Moreover, the submission of periodic reports is sanctioned by Secs. 7 and 8, Rule 8
of the Rules of Procedure for Environmental cases:
Sec. 7. Judgment.If warranted, the court shall grant the privilege of the writ of
continuing mandamus requiring respondent to perform an act or series of acts
until the judgment is fully satisfied and to grant such other reliefs as may be
warranted resulting from the wrongful or illegal acts of the respondent. The court
shall require the respondent to submit periodic reports detailing the progress and
execution of the judgment, and the court may, by itself or through a commissioner
or the appropriate government agency, evaluate and monitor compliance. The

petitioner may submit its comments or observations on the execution of the


judgment.
Sec. 8. Return of the writ.The periodic reports submitted by the respondent
detailing compliance with the judgment shall be contained in partial returns of the
writ. Upon full satisfaction of the judgment, a final return of the writ shall be made
to the court by the respondent. If the court finds that the judgment has been fully
implemented, the satisfaction of judgment shall be entered in the court docket.
(Emphasis supplied.)
With the final and executory judgment in MMDA, the writ of continuing
mandamus issued in MMDA means that until petitioner-agencies have shown full
compliance with the Courts orders, the Court exercises continuing jurisdiction
over them until full execution of the judgment.
There being no encroachment over executive functions to speak of, We shall now
proceed to the recommendation of the Manila Bay Advisory Committee.
Several problems were encountered by the Manila Bay Advisory Committee.2 An
evaluation of the quarterly progressive reports has shown that (1) there are
voluminous quarterly progressive reports that are being submitted; (2) petitioneragencies do not have a uniform manner of reporting their cleanup, rehabilitation
and preservation activities; (3) as yet no definite deadlines have been set by
petitioner DENR as to petitioner-agencies timeframe for their respective duties;
(4) as of June 2010 there has been a change in leadership in both the national and
local levels; and (5) some agencies have encountered difficulties in complying with
the Courts directives.
In order to implement the afore-quoted Decision, certain directives have to be
issued by the Court to address the said concerns.
Acting on the recommendation of the Manila Bay Advisory Committee, the Court
hereby resolves to ORDER the following:
(1) The Department of Environment and Natural Resources (DENR), as lead
agency in the Philippine Clean Water Act of 2004, shall submit to the Court on or
before June 30, 2011 the updated Operational Plan for the Manila Bay Coastal
Strategy.
The DENR is ordered to submit summarized data on the overall quality of Manila
Bay waters for all four quarters of 2010 on or before June 30, 2011.

The DENR is further ordered to submit the names and addresses of persons and
companies in Metro Manila, Rizal, Laguna, Cavite, Bulacan, Pampanga and Bataan
that generate toxic and hazardous waste on or before September 30, 2011.
(2) On or before June 30, 2011, the Department of the Interior and Local
Government (DILG) shall order the Mayors of all cities in Metro Manila; the
Governors of Rizal, Laguna, Cavite, Bulacan, Pampanga and Bataan; and the
Mayors of all the cities and towns in said provinces to inspect all factories,
commercial establishments and private homes along the banks of the major river
systemssuch as but not limited to the Pasig-Marikina-San Juan Rivers, the
National Capital Region (Paranaque-Zapote, Las Pinas) Rivers, the NavotasMalabon-Tullahan-Tenejeros Rivers, the Meycauayan-Marilao-Obando (Bulacan)
Rivers, the Talisay (Bataan) River, the Imus (Cavite) River, and the Laguna De
Bayand other minor rivers and waterways within their jurisdiction that
eventually discharge water into the Manila Bay and the lands abutting it, to
determine if they have wastewater treatment facilities and/or hygienic septic tanks,
as prescribed by existing laws, ordinances, rules and regulations. Said local
government unit (LGU) officials are given up to September 30, 2011 to finish the
inspection of said establishments and houses.
In case of non-compliance, the LGU officials shall take appropriate action to
ensure compliance by non-complying factories, commercial establishments and
private homes with said law, rules and regulations requiring the construction or
installment of wastewater treatment facilities or hygienic septic tanks.
The aforementioned governors and mayors shall submit to the DILG on or before
December 31, 2011 their respective compliance reports which will contain the
names and addresses or offices of the owners of all the non-complying factories,
commercial establishments and private homes, copy furnished the concerned
environmental agency, be it the local DENR office or the Laguna Lake
Development Authority.
The DILG is required to submit a five-year plan of action that will contain
measures intended to ensure compliance of all non-complying factories,
commercial establishments, and private homes.
On or before June 30, 2011, the DILG and the mayors of all cities in Metro Manila
shall consider providing land for the wastewater facilities of the Metropolitan
Waterworks and Sewerage System (MWSS) or its concessionaires (Maynilad and
Manila Water, Inc.) within their respective jurisdictions.

(3) The MWSS shall submit to the Court on or before June 30, 2011 the list of areas
in Metro Manila, Rizal and Cavite that do not have the necessary wastewater
treatment facilities. Within the same period, the concessionaires of the MWSS shall
submit their plans and projects for the construction of wastewater treatment
facilities in all the aforesaid areas and the completion period for said facilities,
which shall not go beyond 2037.
On or before June 30, 2011, the MWSS is further required to have its two
concessionaires submit a report on the amount collected as sewerage fees in their
respective areas of operation as of December 31, 2010.
(4) The Local Water Utilities Administration is ordered to submit on or before
September 30, 2011 its plan to provide, install, operate and maintain sewerage and
sanitation facilities in said cities and towns and the completion period for said
works, which shall be fully implemented by December 31, 2020.
(5) The Department of Agriculture (DA), through the Bureau of Fisheries and
Aquatic Resources, shall submit to the Court on or before June 30, 2011 a report on
areas in Manila Bay where marine life has to be restored or improved and the
assistance it has extended to the LGUs in Metro Manila, Rizal, Cavite, Laguna,
Bulacan, Pampanga and Bataan in developing the fisheries and aquatic resources
in Manila Bay. The report shall contain monitoring data on the marine life in said
areas. Within the same period, it shall submit its five-year plan to restore and
improve the marine life in Manila Bay, its future activities to assist the
aforementioned LGUs for that purpose, and the completion period for said
undertakings.
The DA shall submit to the Court on or before September 30, 2011 the baseline
data as of September 30, 2010 on the pollution loading into the Manila Bay system
from agricultural and livestock sources.
(6) The Philippine Ports Authority (PPA) shall incorporate in its quarterly reports
the list of violators it has apprehended and the status of their cases. The PPA is
further ordered to include in its report the names, make and capacity of the ships
that dock in PPA ports. The PPA shall submit to the Court on or before June 30,
2011 the measures it intends to undertake to implement its compliance with
paragraph 7 of the dispositive portion of the MMDA Decision and the completion
dates of such measures.
The PPA should include in its report the activities of its concessionaire that collects
and disposes of the solid and liquid wastes and other ship-generated wastes, which

shall state the names, make and capacity of the ships serviced by it since August
2003 up to the present date, the dates the ships docked at PPA ports, the number
of days the ship was at sea with the corresponding number of passengers and crew
per trip, the volume of solid, liquid and other wastes collected from said ships, the
treatment undertaken and the disposal site for said wastes.
(7) The Philippine National Police (PNP) Maritime Group shall submit on or before
June 30, 2011 its five-year plan of action on the measures and activities it intends
to undertake to apprehend the violators of Republic Act No. (RA) 8550 or the
Philippine Fisheries Code of 1998 and other pertinent laws, ordinances and
regulations to prevent marine pollution in Manila Bay and to ensure the successful
prosecution of violators.
The Philippine Coast Guard shall likewise submit on or before June 30, 2011 its
five-year plan of action on the measures and activities they intend to undertake to
apprehend the violators of Presidential Decree No. 979 or the Marine Pollution
Decree of 1976 and RA 9993 or the Philippine Coast Guard Law of 2009 and other
pertinent laws and regulations to prevent marine pollution in Manila Bay and to
ensure the successful prosecution of violators.
(8) The Metropolitan Manila Development Authority (MMDA) shall submit to the
Court on or before June 30, 2011 the names and addresses of the informal settlers
in Metro Manila who, as of December 31, 2010, own and occupy houses, structures,
constructions and other encroachments established or built along the PasigMarikina-San Juan Rivers, the NCR (Paraaque-Zapote, Las Pias) Rivers, the
Navotas-Malabon-Tullahan-Tenejeros Rivers, and connecting waterways
and esteros, in violation of RA 7279 and other applicable laws. On or before June
30, 2011, the MMDA shall submit its plan for the removal of said informal settlers
and the demolition of the aforesaid houses, structures, constructions and
encroachments, as well as the completion dates for said activities, which shall be
fully implemented not later than December 31, 2015.
The MMDA is ordered to submit a status report, within thirty (30) days from
receipt of this Resolution, on the establishment of a sanitary landfill facility for
Metro Manila in compliance with the standards under RA 9003 or the Ecological
Solid Waste Management Act.
On or before June 30, 2011, the MMDA shall submit a report of the location of
open and controlled dumps in Metro Manila whose operations are illegal after
February 21, 2006,3 pursuant to Secs. 36 and 37 of RA 9003, and its plan for the
closure of these open and controlled dumps to be accomplished not later than

December 31, 2012. Also, on or before June 30, 2011, the DENR Secretary, as
Chairperson of the National Solid Waste Management Commission (NSWMC),
shall submit a report on the location of all open and controlled dumps in Rizal,
Cavite, Laguna, Bulacan, Pampanga and Bataan.
On or before June 30, 2011, the DENR Secretary, in his capacity as NSWMC
Chairperson, shall submit a report on whether or not the following landfills strictly
comply with Secs. 41 and 42 of RA 9003 on the establishment and operation of
sanitary landfills, to wit:

13. Brgy. Pintong Bukawe, San Mateo, Rizal (SMSLFDC)


On or before June 30, 2011, the MMDA and the seventeen (17) LGUs in Metro
Manila are ordered to jointly submit a report on the average amount of garbage
collected monthly per district in all the cities in Metro Manila from January 2009
up to December 31, 2010 vis--vis the average amount of garbage disposed
monthly in landfills and dumpsites. In its quarterly report for the last quarter of
2010 and thereafter, MMDA shall report on the apprehensions for violations of the
penal provisions of RA 9003, RA 9275 and other laws on pollution for the said
period.

National Capital Region


1. Navotas SLF (PhilEco), Brgy. Tanza (New Site), Navotas City
2. Payatas Controlled Dumpsite, Barangay Payatas, Quezon City
Region III
3. Sitio Coral, Brgy. Matictic, Norzagaray, Bulacan
4. Sitio Tiakad, Brgy. San Mateo, Norzagaray, Bulacan
5. Brgy. Minuyan, San Jose del Monte City, Bulacan
6. Brgy. Mapalad, Santa Rosa, Nueva Ecija
7. Sub-zone Kalangitan, Clark Capas, Tarlac Special Economic Zone
Region IV-A
8. Kalayaan (Longos), Laguna
9. Brgy. Sto. Nino, San Pablo City, Laguna
10. Brgy. San Antonio (Pilotage SLF), San Pedro, Laguna
11. Morong, Rizal
12. Sitio Lukutan, Brgy. San Isidro, Rodriguez (Montalban), Rizal
(ISWIMS)

On or before June 30, 2011, the DPWH and the LGUs in Rizal, Laguna, Cavite,
Bulacan, Pampanga, and Bataan shall submit the names and addresses of the
informal settlers in their respective areas who, as of September 30, 2010, own or
occupy houses, structures, constructions, and other encroachments built along the
Meycauayan-Marilao-Obando (Bulacan) Rivers, the Talisay (Bataan) River, the
Imus (Cavite) River, the Laguna de Bay, and other rivers, connecting waterways
and esteros that discharge wastewater into the Manila Bay, in breach of RA 7279
and other applicable laws. On or before June 30, 2011, the DPWH and the
aforesaid LGUs shall jointly submit their plan for the removal of said informal
settlers and the demolition of the aforesaid structures, constructions and
encroachments, as well as the completion dates for such activities which shall be
implemented not later than December 31, 2012.
(9) The Department of Health (DOH) shall submit to the Court on or before June
30, 2011 the names and addresses of the owners of septic and sludge companies
including those that do not have the proper facilities for the treatment and disposal
of fecal sludge and sewage coming from septic tanks.
The DOH shall implement rules and regulations on Environmental Sanitation
Clearances and shall require companies to procure a license to operate from the
DOH.
The DOH and DENR-Environmental Management Bureau shall develop a toxic
and hazardous waste management system by June 30, 2011 which will implement
segregation of hospital/toxic/hazardous wastes and prevent mixing with municipal
solid waste.
On or before June 30, 2011, the DOH shall submit a plan of action to ensure that
the said companies have proper disposal facilities and the completion dates of
compliance.1avvphi1

(10) The Department of Education (DepEd) shall submit to the Court on or before
May 31, 2011 a report on the specific subjects on pollution prevention, waste
management, environmental protection, environmental laws and the like that it
has integrated into the school curricula in all levels for the school year 2011-2012.
On or before June 30, 2011, the DepEd shall also submit its plan of action to ensure
compliance of all the schools under its supervision with respect to the integration
of the aforementioned subjects in the school curricula which shall be fully
implemented by June 30, 2012.
(11) All the agencies are required to submit their quarterly reports electronically
using the forms below. The agencies may add other key performance indicators
that they have identified.
SO ORDERED.

MMDA v Concerned Residents of Manila Bay (Environmental Law)


Metropolitan Manila Development Authority v Concerned Residents of Manila Bay
GR No. 171947-48
December 18, 2008
FACTS:
The complaint by the residents alleged that the water quality of the Manila
Bay had fallen way below the allowable standards set by law, specifically
Presidential Decree No. (PD) 1152 or the Philippine Environment Code and
that ALL defendants (public officials) must be jointly and/or solidarily liable and
collectively ordered to clean up Manila Bay and to restore its water quality to class
B, waters fit for swimming, diving, and other forms of contact recreation.
ISSUES:
(1) WON Sections 17 and 20 of PD 1152 under the headings, Upgrading of Water
Quality and Clean-up Operations, envisage a cleanup in general or are they
limited only to the cleanup of specific pollution incidents;
(2) WON petitioners be compel led by mandamus to clean up and rehabilitate the
Manila Bay.
APPLICABLE LAWS:
PD 1152 Philippine Environmental Code Section 17. Upgrading of Water
Quality. Where the quality of water has deteriorated t o a degree where it
s state will adversely affect its best u sage, the government agencies
concerned shall take such measures as may be necessary to upgrade the
quality of such water to meet the prescribed water quality standards. Section
20. Clean-up Operations.It shall be the responsibility of the polluter to
contain , remove and clean - up water pollution incidents at his own
expense. In case of his failure to do so, the government agencies concerned
shall undertake containment, removal and clean-up operations and expenses
incurred in said operation shall be charged against the persons and/ or entities
responsible for such pollution.
HELD:

U.S. Supreme Court


(1) Sec. 17 does not in any way state that the government agencies concerned
ought to confine themselves to the containment, removal, and cleaning
operations when a specific pollution incident occurs. On the contrary, Sec. 17
requires them to act even in the absence of a specific pollution incident, as
long as water quality has deteriorated to a degree where its state will adversely
affect its best usage. Section 17 & 20 are of general application and are not for
specific pollution incidents only. The fact that the pollution of the Manila Bay is
of such magnitude and scope that it is well -nigh impossible to draw the line
between a specific and a general pollution incident.
(2) The Cleaning or Rehabilitation of Manila Bay Can be Compelled by Mandamus.
While the implementation of the MMDA's mandated tasks may entail a
decision-making process, the enforcement of the law or the very act of doing
what the law exacts to be done is ministerial in nature and may be
compelled by mandamus. Under what other judicial discipline describes as
continuing mandamus , the Court may, under extraordinary circumstances,
issue directives with the end in view of ensuring that its decision would not be
set to naught by administrative inaction or indifference.
NOTE: This continuing mandamus is no longer applicable, since this is
institutionalized in the rules of procedure for environmental cases.
20 days Temporary restraining order

In re Yamashita, 327 U.S. 1 (1946)


In re Yamashita
No. 61, Misc.
Argued January 7, 8, 1946
Decided February 4, 1946*
327 U.S. 1
APPLICATION FOR LEAVE TO FILE PETITION FOR WRIT OF
HABEAS CORPUS AND WRIT OF PROHIBITION
Syllabus
Prior to September 3, 1945, petitioner was the Commanding General of the
Fourteenth Army Group of the Imperial Japanese Army in the Philippine Islands.
On that day, he surrendered to the United States Army and became a prisoner of
war. Respondent was the Commanding General of the United States Army Forces,
Western Pacific, whose command embraced the Philippine Islands. Respondent
appointed a military commission to try the petitioner on a charge of violation of the
law of war. The gist of the charge was that petitioner had failed in his duty as an
army commander to control the operations of his troops, "permitting them to
commit" specified atrocities against the civilian population and prisoners of war.
Petitioner was found guilty, and sentenced to death.
Held:

1. The military commission appointed to try the petitioner was lawfully created.

usage, and by the terms of the surrender of the Japanese government. P. 327 U. S.

P. 327 U. S. 9.

13.

(a) Nature of the authority to create military commissions for the trial of enemy

3. The charge preferred against the petitioner was of a violation of the law of war.

combatants for offenses against the law of war, and principles governing the

P. 327 U. S. 13.

exercise of jurisdiction by such commissions, considered. Citing Ex parte


Quirin, 317 U. S. 1, and other cases. Pp. 327 U. S. 7-9.

(a) The law of war imposes on an army commander a duty to take such appropriate
measures as are within his power to control the troops under his command for the

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

prevention of acts which are violations of the law of war and which are likely to

commander competent to appoint a general court-martial, as was respondent by

attend the occupation of hostile territory by an uncontrolled soldiery, and he may

order of the President. P. 327 U. S. 10.

be charged with personal responsibility for his failure to take such measures when
violations result. Pp. 327 U. S. 14, 327 U. S. 16.

(c) The order creating the military commission was in conformity with the Act of
Congress (10 U.S.C. 1471-1593) sanctioning

(b) What measures, if any, petitioner took to prevent the alleged violations of the
law of war, and whether such measures as he may have taken were appropriate and

Page 327 U. S. 2
the creation of such tribunals for the trial of offenses against the law of war
committed by enemy combatants. P. 327 U. S. 11.
2. Trial of the petitioner by the military commission was lawful, although hostilities
had ceased. P. 327 U. S. 12.
(a) A violation of the law of war, committed before the cessation of hostilities, may
lawfully be tried by a military commission after hostilities have ceased -- at least
until peace has been officially recognized by treaty or proclamation by the political
branch of the Government. P. 327 U. S. 12.
(b) Trial of the petitioner by the military commission was authorized by the
political branch of the Government, by military command, by international law and

sufficient to discharge the duty imposed upon him, were questions within the
peculiar competence of the military officers composing the commission, and were
for it to decide. P. 327 U. S. 16.
(c) Charges of violations of the law of war triable before a military tribunal need
not be stated with the precision of a common law indictment. P. 327 U. S. 17.
(d) The allegations of the charge here, tested by any reasonable standard,
sufficiently set forth a violation of the law of war, and the military commission had
authority to try and to decide the issue which it raised. P. 327 U. S. 17.
4. In admitting on behalf of the prosecution a deposition and hearsay and opinion
evidence, the military commission did not violate any Act of Congress, treaty, or
military command defining the commission's authority. Pp. 327 U. S. 18, 327 U. S.
23.

(a) The Articles of War, including Articles 25 and 38, are not applicable to the trial

did not foreclose their right to contend that the Constitution or laws of the United

of an enemy combatant by a military commission

States withhold authority to proceed with the trial. P. 327 U. S. 9.

Page 327 U. S. 3

7. The Court does not appraise the evidence on which the petitioner here was
convicted. P. 327 U. S. 17.

for violations of the law of war, and imposed no restrictions upon the procedure to
be followed in such trial. Pp. 327 U. S. 19-20.

8. The military commission's rulings on evidence and on the mode of conducting


the proceedings against the petitioner are not reviewable by the courts, but only by

(b) Article 63 of the Geneva Convention of 1929, which provides that


"Sentence may be pronounced against a prisoner of war only by the same courts
and according to the same procedure as in the case of persons belonging to the

the reviewing military authorities. From this viewpoint, it is unnecessary to


consider what, in other situations, the Fifth Amendment might require. Pp. 327 U.
S. 8, 327 U. S. 23.

armed forces of the detaining Power,"

9. Article 60 of the Geneva Convention of 1929, which provides that,

does not require that Articles 25 and 38 of the Articles of War be applied in the

"At the opening of a judicial proceeding directed against a prisoner of war, the

trial of the petitioner. Article 63 refers to sentence "pronounced against a prisoner

detaining Power shall advise the representative of the protecting Power thereof as

of war" for an offense committed while a prisoner of war, and not for a violation of

soon as possible, and always before the date set for the opening of the trial,"

the law of war committed while a combatant. P. 327 U. S. 20.


applies only to persons who are subjected to judicial proceedings for offenses
(c) The Court expresses no opinion on the question of the wisdom of considering

committed while prisoners of war. P. 327 U. S. 23.

such evidence as was received in this proceeding, nor on the question whether the
action of a military tribunal in admitting evidence which Congress or controlling

10. The detention of the petitioner for trial, and his detention upon his conviction,

military command has directed to be excluded may be drawn in question by

subject to the prescribed review by the military authorities, were lawful. P. 327 U.

petition for habeas corpus or prohibition. P. 327 U. S. 23.

S. 25.

5. On an application for habeas corpus, the Court is not concerned with the guilt or

Leave and petition denied.

innocence of the petitioner. P. 327 U. S. 8.


Page 328 U. S. 4
6. By sanctioning trials of enemy aliens by military commission for offenses against
the law of war, Congress recognized the right of the accused to make a defense, and

No. 61, Misc. Application for leave to file a petition for writs of habeas corpus and
prohibition in this Court challenging the jurisdiction and legal authority of a

military commission which convicted applicant of a violation of the law of war and

October 8, 1945, petitioner, after pleading not guilty to the charge, was held for

sentenced him to be hanged.Denied.

trial before a military commission of five Army officers appointed by order of


General Styer. The order appointed six Army officers, all lawyers, as defense

No. 672. Petition for certiorari to review an order of the Supreme Court of the

counsel. Throughout the proceedings which followed, including those before this

Commonwealth of the Philippines, 42 Off.Gaz. 664, denying an application for

Court, defense counsel have demonstrated their professional skill and

writs of habeas corpus and prohibition likewise challenging the jurisdiction and

resourcefulness and their proper zeal for the defense with which they were

legal authority of the military commission which tried and convicted

charged.

petitioner. Denied.
On the same date, a bill of particulars was filed by the prosecution, and the
MR. CHIEF JUSTICE STONE delivered the opinion of the Court.
No. 61 Miscellaneous is an application for leave to file a petition for writs of habeas
corpus and prohibition in this Court. No. 672 is a petition for certiorari to review
an order of the Supreme Court of the the Philippines (28 U.S.C. 349) denying
petitioner's application to that court for writs of habeas corpus and prohibition. As
both applications raise substantially like questions, and because of the importance
and novelty of some of those presented, we set the two applications down for oral
argument as one case.
Page 327 U. S. 5
From the petitions and supporting papers, it appears that, prior to September 3,

commission heard a motion made in petitioner's behalf to dismiss the charge on


the ground that it failed to state a violation of the law of war. On October 29th, the
commission was reconvened, a supplemental bill of particulars was filed, and the
motion to dismiss was denied. The trial then proceeded until its conclusion on
December 7, 1945, the commission hearing two hundred and eighty-six witnesses,
who gave over three thousand pages of testimony. On that date, petitioner was
found guilty of the offense as charged, and sentenced to death by hanging.
The petitions for habeas corpus set up that the detention of petitioner for the
purpose of the trial was unlawful for
Page 327 U. S. 6

1945, petitioner was the Commanding General of the Fourteenth Army Group of

reasons which are now urged as showing that the military commission was without

the Imperial Japanese Army in the Philippine Islands. On that date, he

lawful authority or jurisdiction to place petitioner on trial, as follows:

surrendered to and became a prisoner of war of the United States Army Forces in
Baguio, Philippine Islands. On September 25th, by order of respondent, Lieutenant

(a) That the military commission which tried and convicted petitioner was not

General Wilhelm D. Styer, Commanding General of the United States Army Forces,

lawfully created, and that no military commission to try petitioner for violations of

Western Pacific, which command embraces the Philippine Islands, petitioner was

the law of war could lawfully be convened after the cessation of hostilities between

served with a charge prepared by the Judge Advocate General's Department of the

the armed forces of the United States and Japan;

Army, purporting to charge petitioner with a violation of the law of war. On

(b) that the charge preferred against petitioner fails to charge him with a violation

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

of the law of war;

and nature of the authority to create military commissions for the trial of enemy
combatants for offenses against the law of war. We there pointed out that

(c) that the commission was without authority and jurisdiction to try and convict

Congress, in the exercise of the power conferred upon it by Article I, 8, Cl. 10, of

petitioner, because the order governing the procedure of the commission permitted

the Constitution to "define and punish . . . Offenses against the Law of Nations . . . "

the admission in evidence of depositions, affidavits, and hearsay and opinion

of which the law of war is a part, had, by the Articles of War (10 U.S.C. 1471-

evidence, and because the commission's rulings admitting such evidence were in

1593), recognized the "military commission" appointed by military command, as it

violation of the 25th and 38th Articles of War (10 U.S.C. 1496, 1509) and the

had previously existed in United States Army practice, as an appropriate tribunal

Geneva Convention (47 Stat. 2021), and deprived petitioner of a fair trial in

for the trial and punishment of offenses against the law of war. Article 15 declares

violation of the due process clause of the Fifth Amendment;

that

(d) that the commission was without authority and jurisdiction in the premises

"the provisions of these articles conferring jurisdiction upon courts-martial shall

because of the failure to give advance notice of petitioner's trial to the neutral

not be construed as depriving military commissions . . . or other military tribunals

power representing the interests of Japan as a belligerent as required by Article 60

of concurrent jurisdiction in respect of offenders of offenses that, by statute or by

of the Geneva Convention, 47 Stat. 2021, 2051.

the law of war, may be triable by such military commissions . . . or other military

On the same grounds, the petitions for writs of prohibition set up that the
commission is without authority to proceed with the trial.
The Supreme Court of the Philippine Islands, after hearing argument, denied the
petition for habeas corpus presented to it on the ground, among others, that its
jurisdiction was limited to an inquiry as to the jurisdiction of the commission to
place petitioner on trial for the offense charged, and that the commission, being
validly constituted
Page 327 U. S. 7
by the order of General Styer, had jurisdiction over the person of petitioner and
over the trial for the offense charged.

tribunals."
See a similar provision of the Espionage Act of 1917, 50 U.S.C. 38. Article 2
includes among those persons subject to the Articles of War the personnel of our
own military establishment. But this, as Article 12 indicates, does not exclude from
the class of persons subject to trial by military commissions "any other person who,
by the law of war, is subject to trial by military tribunals" and who, under Article
12, may be tried by court martial, or, under Article 15, by military commission.
We further pointed out that Congress, by sanctioning trial of enemy combatants for
violations of the law of war by military commission, had not attempted to codify
the law of war or to mark its precise boundaries. Instead, by Article 15, it had
incorporated, by reference, as within the

Page 327 U. S. 8

authorized to review their decisions. SeeDynes v. Hoover, 20 How. 5, 61 U. S.


81; Runkle v. United States, 122

preexisting jurisdiction of military commissions created by appropriate military


command, all offenses which are defined as such by the law of war and which may

Page 327 U. S. 9

constitutionally be included within that jurisdiction. It thus adopted the system of


military common law applied by military tribunals so far as it should be recognized

U.S. 543, 122 U. S. 555-556; Carter v. McClaughry, 183 U. S. 365; Collins v.

and deemed applicable by the courts, and as further defined and supplemented by

McDonald, 258 U. S. 416. Cf. Matter of Moran, 203 U. S. 96, 203 U. S. 105.

the Hague Convention, to which the United States and the Axis powers were
parties.

Finally, we held in Ex parte Quirin, supra, 317 U. S. 24-25, as we hold now, that
Congress, by sanctioning trials of enemy aliens by military commission for offenses

We also emphasized in Ex parte Quirin, as we do here, that, on application for

against the law of war, had recognized the right of the accused to make a

habeas corpus, we are not concerned with the guilt or innocence of the petitioners.

defense. Cf. Ex parte Kawato, 317 U. S. 69. It has not foreclosed their right to

We consider here only the lawful power of the commission to try the petitioner for

contend that the Constitution or laws of the United States withhold authority to

the offense charged. In the present cases, it must be recognized throughout that the

proceed with the trial. It has not withdrawn, and the Executive branch of the

military tribunals which Congress has sanctioned by the Articles of War are not

government could not, unless there was suspension of the writ, withdraw from the

courts whose rulings and judgments are made subject to review by this

courts the duty and power to make such inquiry into the authority of the

Court. See Ex parte Vallandingham, 1 Wall. 243; In re Vidal, 179 U. S. 126; cf. Ex

commission as may be made by habeas corpus.

parte Quirin, supra, 317 U. S. 39. They are tribunals whose determinations are
reviewable by the military authorities either as provided in the military orders
constituting such tribunals or as provided by the Articles of War. Congress
conferred on the courts no power to review their determinations save only as it has
granted judicial power "to grant writs of habeas corpus for the purpose of an
inquiry into the cause of the restraint of liberty." 28 U.S.C. 451, 452. The courts
may inquire whether the detention complained of is within the authority of those
detaining the petitioner. If the military tribunals have lawful authority to hear,
decide, and condemn, their action is not subject to judicial review merely because
they have made a wrong decision on disputed facts. Correction of their errors of
decision is not for the courts, but for the military authorities, which are alone

With these governing principles in mind, we turn to the consideration of the


several contentions urged to establish want of authority in the commission. We are
not here concerned with the power of military commissions to try civilians. See Ex
parte Milligan, 4 Wall. 2, 71 U. S. 132; Sterling v. Constantin, 287 U. S. 378; Ex
parte Quirin, supra, 317 U. S. 45. The Government's contention is that General
Styer's order creating the commission conferred authority on it only to try the
purported charge of violation of the law of war committed by petitioner, an enemy
belligerent, while in command of a hostile army occupying United States territory
during time of war. Our first inquiry must therefore be whether the present
commission was created by lawful military command, and, if so, whether authority

could thus be conferred on the commission to place petitioner on trial after the

those who have visited cruelties upon prisoners." U.S. Dept. of State Bull., Vol.

cessation of hostilities between the armed forces of the United States and Japan.

XIII, No. 318, pp. 137, 138. This Declaration was accepted by the Japanese
government by its note of August 10, 1945. U.S. Dept. of State Bull., Vol. XIII, No.

The authority to create the Commission. General Styer's order for the appointment

320, p. 205.

of the commission was made by him as Commander of the United States Armed
Forces, Western Pacific. His command includes, as part

By direction of the President, the Joint Chiefs of Staff of the American Military
Forces, on September 12, 1945, instructed General MacArthur, Commander in

Page 327 U. S. 10

Chief, United States Army Forces, Pacific, to proceed with the trial, before

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

Page 327 U. S. 11

committed, where petitioner surrender as a prisoner of war, and where, at the time
of the order convening the commission, he was detained as a prisoner in custody of

appropriate military tribunals, of such Japanese war criminals "as have been or

the United States Army. The Congressional recognition of military commissions

may be apprehended." By order of General MacArthur of September 24, 1945,

and its sanction of their use in trying offenses against the law of war to which we

General Styer was specifically directed to proceed with the trial of petitioner upon

have referred sanctioned their creation by military command in conformity to long

the charge here involved. This order was accompanied by detailed rules and

established American precedents. Such a commission may be appointed by any

regulations which General MacArthur prescribed for the trial of war criminals.

field commander, or by any commander competent to appoint a general court

These regulations directed, among other things, that review of the sentence

martial, as was General Styer, who had been vested with that power by order of the

imposed by the commission should be by the officer convening it, with "authority

President. 2 Winthrop, Military Law and Precedents,2d Ed., *1302;cf. Article of

to approve, mitigate, remit, commute, suspend, reduce, or otherwise alter the

War 8.

sentence imposed," and directed that no sentence of death should be carried into
effect until confirmed by the Commander in Chief, United States Army Forces,

Here, the commission was not only created by a commander competent to appoint

Pacific.

it, but his order conformed to the established policy of the Government and to
higher military commands authorizing his action. In a proclamation of July 2, 1942

It thus appears that the order creating the commission for the trial of petitioner

(56 Stat. 1964), the President proclaimed that enemy belligerents who, during time

was authorized by military command, and was in complete conformity to the Act of

of war, enter the United States, or any territory possession thereof, and who violate

Congress sanctioning the creation of such tribunals for the trial of offenses against

the law of war, should be subject to the law of war and to the jurisdiction of

the law of war committed by enemy combatants. And we turn to the question

military tribunals. Paragraph 10 of the Declaration of Potsdam of July 6, 1945,

whether the authority to create the commission and direct the trial by military

declared that " . . . stern justice shall be meted out to all war criminals, including

order continued after the cessation of hostilities.

An important incident to the conduct of war is the adoption of measures by the

their cessation could the greater number of offenders and the principal ones be

military commander not only to repel and defeat the enemy, but to seize and

apprehended and subjected to trial.

subject to disciplinary measures those enemies who, in their attempt to thwart or


impede our military effort, have violated the law of war. Ex parte Quirin,

No writer on international law appears to have regarded the power of military

supra, 317 U. S. 28. The trial and punishment of enemy combatants who have

tribunals, otherwise competent to try violations of the law of war, as terminating

committed violations of the law of war is thus not only a part of the conduct of war

before the formal state of war has ended. [Footnote 1] In our own military history,

operating as a preventive measure against such violations, but is an exercise of the


authority sanctioned by Congress to administer the system of military justice
recognized by the law of war. That sanction is without qualification as to the
exercise of this authority so
Page 327 U. S. 12
long as a state of war exists -- from its declaration until peace is
proclaimed. See United States v. Anderson, 9 Wall. 56, 76 U. S. 70;The
Protector, 12 Wall. 700, 79 U. S. 702; McElrath v. United States, 102 U. S.
426, 102 U. S. 438; Kahn v. Anderson, 255 U. S. 1,255 U. S. 9-10. The war power,
from which the commission derives its existence, is not limited to victories in the
field, but carries with it the inherent power to guard against the immediate renewal
of the conflict, and to remedy, at least in ways Congress has recognized, the evils
which the military operations have produced. See Stewart v. Kahn, 11 Wall.
493, 78 U. S. 507.
We cannot say that there is no authority to convene a commission after hostilities
have ended to try violations of the law of war committed before their cessation, at
least until peace has been officially recognized by treaty or proclamation of the
political branch of the Government. In fact, in most instances, the practical
administration of the system of military justice under the law of war would fail if
such authority were thought to end with the cessation of hostilities. For only after

Page 327 U. S. 13
there have been numerous instances in which offenders were tried by military
commission after the cessation of hostilities and before the proclamation of peace,
for offenses against the law of war committed before the cessation of hostilities.
[Footnote 2]
The extent to which the power to prosecute violations of the law of war shall be
exercised before peace is declared rests not with the courts, but with the political
branch of the Government, and may itself be governed by the terms of an armistice
or the treaty of peace. Here, peace has not been agreed upon or proclaimed. Japan,
by her acceptance of the Potsdam Declaration and her surrender, has acquiesced in
the trials of those guilty of violations of the law of war. The conduct of the trial by
the military commission has been authorized by the political branch of the
Government, by military command, by international law and usage, and by the
terms of the surrender of the Japanese government.
The Charge. Neither Congressional action nor the military orders constituting the
commission authorized it to place petitioner on trial unless the charge preferred
against him is of a violation of the law of war. The charge, so far as now relevant, is
that petitioner, between October 9, 1944, and September 2, 1945, in the Philippine
Islands,

"while commander of armed forces of Japan at war with the United States of

Convention, 1907, 36 Stat. 2277, 2296, 2303, 2306, 2307. But it is urged that the

America and its allies, unlawfully disregarded and failed to discharge his duty as

charge does not allege that petitioner has either committed or directed the

commander to

commission of such acts, and consequently that no violation is charged as against


him. But this overlooks the fact that the gist of the charge is an unlawful breach of

Page 327 U. S. 14
control the operations of the members of his command, permitting them to
commit brutal atrocities and other high crimes against people of the United States
and of its allies and dependencies, particularly the Philippines, and he . . . thereby

duty by petitioner as an army commander to control the operations of the


members of his command by "permitting them to commit" the extensive and
widespread atrocities specified. The question, then, is whether the law of war
imposes

violated the laws of war."

Page 327 U. S. 15

Bills of particulars, filed by the prosecution by order of the commission, allege a a

on an army commander a duty to take such appropriate measures as are within his

series of acts, one hundred and twenty-three in number, committed by members of

power to control the troops under his command for the prevention of the specified

the forces under petitioner's command during the period mentioned. The first item

acts which are violations of the law of war and which are likely to attend the

specifies the execution of a

occupation of hostile territory by an uncontrolled soldiery, and whether he may be

"a deliberate plan and purpose to massacre and exterminate a large part of the
civilian population of Batangas Province, and to devastate and destroy public,
private, and religious property therein, as a result of which more than 25,000 men,

charged with personal responsibility for his failure to take such measures when
violations result. That this was the precise issue to be tried was made clear by the
statement of the prosecution at the opening of the trial.

women and children, all unarmed noncombatant civilians, were brutally

It is evident that the conduct of military operations by troops whose excesses are

mistreated and killed, without cause or trial, and entire settlements were

unrestrained by the orders or efforts of their commander would almost certainly

devastated and destroyed wantonly and without military necessity."

result in violations which it is the purpose of the law of war to prevent. Its purpose

Other items specify acts of violence, cruelty, and homicide inflicted upon the
civilian population and prisoners of war, acts of wholesale pillage, and the wanton
destruction of religious monuments.
It is not denied that such acts directed against the civilian population of an
occupied country and against prisoners of war are recognized in international law
as violations of the law of war. Articles 4, 28, 46, and 47, Annex to Fourth Hague

to protect civilian populations and prisoners of war from brutality would largely be
defeated if the commander of an invading army could, with impunity, neglect to
take reasonable measures for their protection. Hence, the law of war presupposes
that its violation is to be avoided through the control of the operations of war by
commanders who are to some extent responsible for their subordinates.

This is recognized by the Annex to Fourth Hague Convention of 1907, respecting

population. This duty of a commanding officer has heretofore been recognized, and

the laws and customs of war on land. Article I lays down, as a condition which an

its breach penalized by our own military tribunals. [Footnote 3] A like principle has

armed force must fulfill in order to be accorded the rights of lawful belligerents,

been applied so as to impose liability on the United States in international

that it must be "commanded by a person responsible for his subordinates." 36 Stat.

arbitrations. Case of Jenaud, 3 Moore, International Arbitrations 3000; Case of

2295. Similarly, Article 19 of the Tenth Hague Convention, relating to

"The Zafiro," 5 Hackworth, Digest of International Law 707.

bombardment by naval vessels, provides that commanders in chief of the


belligerent vessels "must see that the above Articles are properly carried out." 36

We do not make the laws of war, but we respect them so far as they do not conflict

Stat. 2389. And Article 26 of the Geneva Red Cross Convention of 1929, 47 Stat.

with the commands of Congress or the Constitution. There is no contention that

2074, 2092, for the amelioration of the condition of the wounded and sick in

the present charge, thus read, is without the support of evidence, or that the

armies in the field, makes it

commission held petitioner responsible for failing to take measures which were
beyond his control or inappropriate for a commanding officer to take in the

"the duty of the commanders in chief of the belligerent

circumstances. [Footnote 4]

Page 327 U. S. 16

Page 327 U. S. 17

armies to provide for the details of execution of the foregoing articles [of the

We do not here appraise the evidence on which petitioner was convicted. We do

convention], as well as for unforeseen cases."

not consider what measures, if any, petitioner took to prevent the commission, by
the troops under his command, of the plain violations of the law of war detailed in

And, finally, Article 43 of the Annex of the Fourth Hague Convention, 36 Stat.

the bill of particulars, or whether such measures as he may have taken were

2306, requires that the commander of a force occupying enemy territory, as was

appropriate and sufficient to discharge the duty imposed upon him. These are

petitioner,

questions within the peculiar competence of the military officers composing the

"shall take all the measures in his power to restore and ensure, as far as possible,
public order and safety, while respecting, unless absolutely prevented, the laws in
force in the country."
These provisions plainly imposed on petitioner, who at the time specified was
military governor of the Philippines as well as commander of the Japanese forces,
an affirmative duty to take such measures as were within his power and
appropriate in the circumstances to protect prisoners of war and the civilian

commission, and were for it to decide. See Smith v. Whitney, 116 U. S. 167, 116 U.
S. 178. It is plain that the charge on which petitioner was tried charged him with a
breach of his duty to control the operations of the members of his command, by
permitting them to commit the specified atrocities. This was enough to require the
commission to hear evidence tending to establish the culpable failure of petitioner
to perform the duty imposed on him by the law of war, and to pass upon its
sufficiency to establish guilt.

Obviously, charges of violations of the law of war triable before a military tribunal

Page 327 U. S. 19

need not be stated with the precision of a common law indictment. Cf. Collins v.
McDonald, supra, 258 U. S. 420. But we conclude that the allegations of the

We think that neither Article 25 nor Article 38 is applicable to the trial of an enemy

charge, tested by any reasonable standard, adequately allege a violation of the law

combatant by a military commission for violations of the law of war. Article 2 of the

of war, and that the

Articles of War enumerates "the persons . . . subject to these articles," who are
denominated, for purposes of the Articles, as "persons subject to military law." In

Page 327 U. S. 18

general, the persons so enumerated are members of our own Army and of the
personnel accompanying the Army. Enemy combatants are not included among

commission had authority to try and decide the issue which it raised. Cf. Dealy v.

them. Articles 12, 13, and 14, before the adoption of Article 15 in 1916, 39 Stat. 653,

United States, 152 U. S. 539; Williamson v. United States, 207 U. S. 425, 207 U. S.

made all "persons subject to military law" amenable to trial by courts-martial for

447; Glasser v. United States, 315 U. S. 60, 315 U. S. 66, and cases cited.

any offense made punishable by the Articles of War. Article 12 makes triable by

The Proceedings before the Commission. The regulations prescribed by General


MacArthur governing the procedure for the trial of petitioner by the commission
directed that the commission should admit such evidence
"as, in its opinion, would be of assistance in proving or disproving the charge, or
such as, in the commission's opinion, would have probative value in the mind of a
reasonable man,"

general court martial "any other person who, by the law of war, is [triable] by
military tribunals." Since Article 2, in its 1916 form, 39 Stat. 651, includes some
persons who, by the law of war, were, prior to 1916, triable by military commission,
it was feared by the proponents of the 1916 legislation that, in the absence of a
saving provision, the authority given by Articles 12, 13, and 14 to try such persons
before courts-martial might be construed to deprive the nonstatutory military
commission of a portion of what was considered to be its traditional jurisdiction.
To avoid this, and to preserve that jurisdiction intact, Article 15 was added to the

and that, in particular, it might admit affidavits, depositions, or other statements

Articles. [Footnote 7] It declared that

taken by officers detailed for that purpose by military authority. The petitions in
this case charged that, in the course of the trial, the commission received, over
objection by petitioner's counsel, the deposition of a witness taken pursuant to
military authority by a United States Army captain. It also, over like objection,

"The provisions of these articles


Page 327 U. S. 20

admitted hearsay and opinion evidence tendered by the prosecution. Petitioner

conferring jurisdiction upon courts-martial shall not be construed as depriving

argues, as ground for the writ of habeas corpus, that Article 25 [Footnote 5] of the

military commissions . . . of concurrent jurisdiction in respect of offenders or

Articles of War prohibited the reception in evidence by the commission of

offenses that, by the law of war, may be lawfully triable by such military

depositions on behalf of the prosecution in a capital case, and that Article 38

commissions."

[Footnote 6] prohibited the reception of hearsay and of opinion evidence.

By thus recognizing military commissions in order to preserve their traditional

only by the same courts and according to the same procedure as in the case of

jurisdiction over enemy combatants unimpaired by the Articles, Congress gave

persons belonging to the armed forces of the detaining Power."

sanction, as we held in Ex parte Quirin, to any use of the military commission


contemplated by the common law of war. But it did not thereby make subject to the

Since petitioner is a prisoner of war, and as the 25th and 38th Articles of War apply

Articles of War persons other than those defined by Article 2 as being subject to the

to the trial of any person in our own armed forces, it is said that Article 63 requires

Articles, nor did it confer the benefits of the Articles upon such persons. The

them to be applied in the trial of petitioner. But we think examination of Article 63

Articles recognized but one kind of military commission, not two. But they

in its setting in the Convention plainly shows that it refers to sentence "pronounced

sanctioned the use of that one for the trial of two classes of persons, to one of which

against a prisoner of war" for an offense committed while a prisoner of war, and

the Articles do, and to the other of which they do not, apply in such trials. Being of

not for a violation of the law of war committed while a combatant.

this latter class, petitioner cannot claim the benefits of the Articles, which are
applicable only to the members of the other class. Petitioner, an enemy combatant,
is therefore not a person made subject to the Articles of War by Article 2, and the
military commission before which he was tried, though sanctioned, and its
jurisdiction saved, by Article 15, was not convened by virtue of the Articles of War,
but pursuant to the common law of war. It follows that the Articles of War,
including Articles 25 and 38, were not applicable to petitioner's trial, and imposed
no restrictions upon the procedure to be followed. The Articles left the control over
the procedure in such a case where it had previously been -- with the military
command.
Petitioner further urges that, by virtue of Article 63 of the Geneva Convention of
1929, 47 Stat. 2052, he is entitled to the benefits afforded by the 25th and 38th
Articles of War to members of our own forces. Article 63 provides:
"Sentence may be pronounced against a prisoner of war
Page 327 U. S. 21

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


3, "Penalties Applicable to Prisoners of War," of V, "Prisoners' Relations with the
Authorities," one of the sections of Title III, "Captivity." All taken together relate
only to the conduct and control of prisoners of war while in captivity as such.
Chapter 1 of Section V, Article 42, deals with complaints of prisoners of war
because of the conditions of captivity. Chapter 2, Articles 43 and 44, relates to
those of their number chosen by prisoners of war to represent them.
Chapter 3 of Section V, Articles 45 through 67, is entitled "Penalties Applicable to
Prisoners of War." Part 1 of that chapter, Articles 45 through 53, indicates what
acts of prisoners of war committed while prisoners shall be considered offenses,
and defines to some extent the punishment which the detaining power may impose
on account of such offenses. [Footnote 8] Punishment is of two kinds -"disciplinary" and
Page 327 U. S. 22
"judicial," the latter being the more severe. Article 52 requires that leniency be
exercised in deciding whether an offense requires disciplinary or judicial
punishment. Part 2 of Chapter 3 is entitled "Disciplinary Punishments," and

further defines the extent of such punishment and the mode in which it may be

Effect of failure to give notice of the trial to the protecting power. Article 60 of the

imposed. Part 3, entitled "Judicial Suits," in which Article 63 is found, describes

Geneva Convention of July 27, 1929, 47 Stat. 2051, to which the United States and

the procedure by which "judicial" punishment may be imposed. The three parts of

Japan were signatories, provides that,

Chapter 3, taken together, are thus a comprehensive description of the substantive


offenses which prisoners of war may commit during their imprisonment, of the

"At the opening of a judicial proceeding directed against a prisoner of war, the

penalties which may be imposed on account of such offenses, and of the procedure

detaining Power shall advise the representative of the protecting Power thereof as

by which guilt may be adjudged and sentence pronounced.

soon as possible, and always before the date set for the opening of the trial."

We think it clear, from the context of these recited provisions, that part 3, and

Petitioner relies on the failure to give the prescribed notice to the protecting power

Article 63 which it contains, apply only to judicial proceedings directed against a

[Footnote 9] to establish want of authority in the commission to proceed with the

prisoner of war for offenses committed while a prisoner of war. Section

trial.

Page 327 U. S. 23

Page 327 U. S. 24

V gives no indication that this part was designed to deal with offenses other than

For reasons already stated, we conclude that Article 60 of the Geneva Convention,

those referred to in parts 1 and 2 of chapter 3.

which appears in part 3, Chapter 3, Section V, Title III of the Geneva Convention,
applies only to persons who are subjected to judicial proceedings for offenses

We cannot say that the commission, in admitting evidence to which objection is

committed while prisoners of war. [Footnote 10]

now made, violated any act of Congress, treaty, or military command defining the
commission's authority. For reasons already stated, we hold that the commission's
rulings on evidence and on the mode of conducting these proceedings against
petitioner are not reviewable by the courts, but only by the reviewing military
authorities. From this viewpoint, it is unnecessary to consider what, in other
situations, the Fifth Amendment might require, and as to that, no intimation one
way or the other is to be implied. Nothing we have said is to be taken as indicating
any opinion on the question of the wisdom of considering such evidence, or
whether the action of a military tribunal in admitting evidence which Congress or
controlling military command has directed to be excluded may be drawn in
question by petition for habeas corpus or prohibition.

Page 327 U. S. 25
It thus appears that the order convening the commission was a lawful order, that
the commission was lawfully constituted, that petitioner was charged with
violation of the law of war, and that the commission had authority to proceed with
the trial, and, in doing so, did not violate any military, statutory, or constitutional
command. We have considered, but find it unnecessary to discuss, other
contentions which we find to be without merit. We therefore conclude that the
detention of petitioner for trial and his detention upon his conviction, subject to
the prescribed review by the military authorities, were lawful, and that the petition
for certiorari, and leave to file in this Court

Page 327 U. S. 26

[Footnote 2]

petitions for writs of habeas corpus and prohibition should be, and they are

See cases mentioned in Ex parte Quirin, supra, 317 U. S. 32, note 10, and in 2
Winthrop, supra, *1310-1311, n. 5; 14 Op.Atty.Gen. 249 (Modoc Indian Prisoners).

Denied.
[Footnote 3]
MR. JUSTICE JACKSON took no part in the consideration or decision of these
cases.

Failure of an officer to take measures to prevent murder of an inhabitant of an


occupied country committed in his presence. Gen.Orders No. 221, Hq.Div. of the

* Together with No. 672, Yamashita v. Styer, Commanding General, on petition

Philippines, August 17, 1901. And, in Gen.Orders No. 264, Hq.Div. of the

for writ of certiorari to the Supreme Court of the the Philippines. For earlier orders

Philippines, September 9, 1901, it was held that an officer could not be found guilty

in these cases, see 326 U.S. 693-694.

for failure to prevent a murder unless it appeared that the accused had "the power

[Footnote 1]
The Commission on the Responsibility of the Authors of the War and on the
Enforcement of Penalties of the Versailles Peace Conference, which met after

to prevent" it.
[Footnote 4]
In its findings, the commission took account of the difficulties

cessation of hostilities in the First World War, were of the view that violators of the
law of war could be tried by military tribunals. See Report of the Commission,

"faced by the accused with respect not only to the swift and overpowering advance

March 9, 1919, 14 Am.J.Int.L. 95, 121. See also memorandum of American

of American forces, but also to errors of his predecessors, weakness in

commissioners concurring on this point, id. at p. 141. The treaties of peace

organization, equipment, supply . . . , training, communication, discipline, and

concluded after World War I recognized the right of the Allies and of the United

morale of his troops,"

States to try such offenders before military tribunals. See Art. 228 of Treaty of
Versailles, June 28, 1919; Art. 173 of Treaty of St. Germain, Sept. 10, 1919; Art. 157
of Treaty of Trianon, June 4, 1920.
The terms of the agreement which ended hostilities in the Boer War reserved the
right to try, before military tribunals, enemy combatants who had violated the law
of war. 95 British and Foreign State Papers (1901-1902) 160. See also trials cited in
Colby, War Crimes, 23 Michigan Law Rev. 482, 496-497.

and
"the tactical situation, the character, training and capacity of staff officers and
subordinate commanders, as well as the traits of character of his troops."
It nonetheless found that petitioner had not taken such measures to control his
troops as were "required by the circumstances." We do not weigh the evidence. We
merely hold that the charge sufficiently states a violation against the law of war,

and that the commission, upon the facts found, could properly find petitioner

"Article 15 is new. We have included in article 2, as subject to military law, a

guilty of such a violation.

number of persons who are also subject to trial by military commission. A military
commission is our common law war court. It has no statutory existence, though it

[Footnote 5]
Article 25 provides:
"A duly authenticated deposition taken upon reasonable notice to the opposite
party may be read in evidence before any military court or commission in any case
not capital, or in any proceeding before a court of inquiry or a military
board, . . . Provided, That testimony by deposition may be adduced for the defense
in capital cases."
[Footnote 6]
Article 38 provides:
"The President may, by regulations, which he may modify from time to time,
prescribe the procedure, including modes of proof, in cases before courts-martial,
courts of inquiry, military commissions, and other military tribunals, which
regulations shall, insofar as he shall deem practicable, apply the rules of evidence
generally recognized in the trial of criminal cases in the district courts of the
United States: Provided, That nothing contrary to or inconsistent with these
articles shall be so prescribed. . . ."
[Footnote 7]

is recognized by statute law. As long as the articles embraced them in the


designation 'persons subject to military law,' and provided that they might be tried
by court-martial, I was afraid that, having made a special provision for their trial
by court-martial [Arts. 12, 13, and 14], it might be held that the provision operated
to exclude trials by military commission and other war courts; so this new article
was introduced. . . ."
Sen.R. 130, 64th Cong., 1st Sess., p. 40.
[Footnote 8]
Part 1 of Chapter 3, "General Provisions," provides in Articles 45 and 46 that
prisoners of war are subject to the regulations in force in the armies of the
detaining power, that punishments other than those provided "for the same acts
for soldiers of the national armies" may not be imposed on prisoners of war, and
that "collective punishment for individual acts" is forbidden. Article 47 provides
that
"Acts constituting an offense against discipline, and particularly attempted escape,
shall be verified immediately; for all prisoners of war, commissioned or not,
preventive arrest shall be reduced to the absolute minimum. Judicial proceedings
against prisoners of war shall be conducted as rapidly as the circumstances
permit. . . . In all cases, the duration of preventive imprisonment shall be deducted

General Crowder, the Judge Advocate General, who appeared before Congress as

from the disciplinary or the judicial punishment inflicted."

sponsor for the adoption of Article 15 and the accompanying amendment of Article
25, in explaining the purpose of Article 15, said:

Article 48 provides that prisoners of war, after having suffered "the judicial of
disciplinary punishment which has been imposed on them," are not to be treated

differently from other prisoners, but provides that "prisoners punished as a result

It might be suggested that, if Article 60 is inapplicable to petitioner, it is

of attempted escape may be subjected to special surveillance." Article 49 recites

inapplicable in the cases specified, and that, hence, he could not be lawfully held or

that prisoners "given disciplinary punishment may not be deprived of the

convicted on a charge of failing to require the notice provided for in Article 60 to be

prerogatives attached to their rank." Articles 50 and 51 deal with escaped prisoners

given.

who have been retaken or prisoners who have attempted to escape. Article 52
provides:

As the Government insists, it does not appear from the charge and specifications
that the prisoners in question were not charged with offenses committed by them

"Belligerents shall see that the competent authorities exercise the greatest leniency

as prisoners, rather than with offenses against the law of war committed by them

in deciding the question of whether an infraction committed by a prisoner of war

as enemy combatants. But, apart from this consideration, independently of the

should be punished more than once because of the same act or the same count."

notice requirements of the Geneva Convention, it is a violation of the law of war, on


which there could be a conviction if supported by evidence, to inflict capital

[Footnote 9]
Switzerland, at the time of the trial, was the power designated by Japan for the
protection of Japanese prisoners of war detained by the United States, except in
Hawaii. U.S.Dept. of State Bull. Vol. XIII, No. 317, p. 125.
[Footnote 10]
One of the items of the bill of particulars in support of the charge against petitioner
specifies that he permitted members of the armed forces under his command to try
and execute three named and other prisoners of war,

punishment on prisoners of war without affording to them opportunity to make a


defense. 2 Winthrop, supra, *434, 435, 1241; Article 84, Oxford Manual; U.S. War
Dept., Basic Field Manual, Rules of Land Warfare (1940) par. 356; Lieber's Code,
G.O. No. 100 (1863) Instructions for the Government of Armies of the United
States in the Field, par. 12; Spaight, War Rights on Land, 462, n.
Further, the commission, in making its findings, summarized as follows the
charges on which it acted in three classes, any one of which, independently of the
others if supported by evidence, would be sufficient to support the conviction: (1)
execution or massacre without trial and maladministration generally of civilian
internees and prisoners of war; (2) brutalities committed upon the civilian

"subjecting to trial without prior notice to a representative of the protecting power,

population, and (3) burning and demolition, without adequate military necessity,

without opportunity to defend, and without counsel; denying opportunity to appeal

of a large number of homes, places of business, places of religious worship,

from the sentence rendered; failing to notify the protecting power of the sentence

hospitals, public buildings, and educational institutions.

pronounced, and executing a death sentence without communicating to the


representative of the protecting power the nature and circumstances of the offense
charged."

The commission concluded: "(1) that a series of atrocities and other high crimes
have been committed by members of the Japanese armed forces" under command
of petitioner

"against people of the United States, their allies and dependencies; . . . that they

Nations. . . ." The grave issue raised by this case is whether a military commission

were not sporadic in nature, but in many cases were methodically supervised by

so established and so authorized may disregard the procedural rights of an accused

Japanese officers and noncommissioned officers;"

person as guaranteed by the Constitution, especially by the due process clause of


the Fifth Amendment.

(2) that, during the period in question, petitioner "failed to provide effective
control of [his] troops, as was required by the circumstances." The commission

The answer is plain. The Fifth Amendment guarantee of due process of law applies

said:

to "any person" who is accused of a crime by the Federal Government or any of its
agencies. No exception is made as to those who are accused of war crimes or as to

"Where murder and rape and vicious, revengeful actions are widespread offenses,

those who possess the status of an enemy belligerent. Indeed, such an exception

and there is no effective attempt by a commander to discover and control the

would be contrary to the whole philosophy of human rights which makes the

criminal acts, such a commander may be held responsible, even criminally liable,

Constitution the great living document that it is. The immutable rights of the

for the lawless acts of his troops, depending upon their nature and the

individual, including those secured by the due process clause of the Fifth

circumstances surrounding them."

Amendment, belong not alone to the members of those nations that excel on the

The commission made no finding of noncompliance with the Geneva Convention.


Nothing has been brought to our attention from which we could conclude that the
alleged noncompliance with Article 60 of the Geneva Convention had any relation
to the commission's finding of a series of atrocities committed by members of the
forces under petitioner's command, and that he failed to provide effective control
of his troops, as was required by the circumstances, or which could support the

battlefield or that subscribe to the democratic ideology. They belong to every


person in the world, victor or vanquished, whatever may be his race, color, or
beliefs. They rise above any status of belligerency or outlawry. They survive any
popular passion or frenzy of the moment. No court or legislature or executive, not
even the mightiest
Page 327 U. S. 27

petitions for habeas corpus on the ground that petitioner had been charged with or
convicted for failure to require the notice prescribed by Article 60 to be given.

army in the world, can ever destroy them. Such is the universal and indestructible
nature of the rights which the due process clause of the Fifth Amendment

MR. JUSTICE MURPHY, dissenting.


The significance of the issue facing the Court today cannot be overemphasized. An

recognizes and protects when life or liberty is threatened by virtue of the authority
of the United States.

American military commission has been established to try a fallen military

The existence of these rights, unfortunately, is not always respected. They are often

commander of a conquered nation for an alleged war crime. The authority for such

trampled under by those who are motivated by hatred, aggression, or fear. But, in

action grows out of the exercise of the power conferred upon Congress by Article I,

this nation, individual rights are recognized and protected, at least in regard to

8, Cl. 10 of the Constitution to "define and punish . . . Offenses against the Law of

governmental action. They cannot be ignored by any branch of the Government,

as commander to control the operations of the members of his command,

even the military, except under the most extreme and urgent circumstances.

permitting them to commit the acts of atrocity. The recorded annals of warfare and
the established principles of international law afford not the slightest precedent for

The failure of the military commission to obey the dictates of the due process

such a charge. This indictment, in effect, permitted the military commission to

requirements of the Fifth Amendment is apparent in this case. The petitioner was

make the crime whatever it willed, dependent upon its biased view as to

the commander of an army totally destroyed by the superior power of this nation.

petitioner's duties and his disregard thereof, a practice reminiscent of that pursued

While under heavy and destructive attack by our forces, his troops committed

in certain less respected nations in recent years.

many brutal atrocities and other high crimes. Hostilities ceased, and he voluntarily
surrendered. At that point, he was entitled, as an individual protected by the due

In my opinion, such a procedure is unworthy of the traditions of our people or of

process clause of the Fifth amendment, to be treated fairly and justly according to

the immense sacrifices that they have made to advance the common ideals of

the accepted rules of law and procedure. He was also entitled to a fair trial as to any

mankind. The high feelings of the moment doubtless will be satisfied. But in the

alleged crimes, and to be free from charges of legally unrecognized crimes that

sober afterglow will come the realization of the boundless and dangerous

would serve only to permit his accusers to satisfy their desires for revenge.

implications of the procedure sanctioned today. No one in a position of command


in an army, from sergeant to general, can escape those implications. Indeed, the

A military commission was appointed to try the petitioner for an alleged war crime.

fate of some future President of the United States and his chiefs of staff and

The trial was ordered to be held in territory over which the United States has

military advisers may well have been sealed by this decision. But even more

complete sovereignty. No military necessity or other emergency demanded the

significant will be the hatred and ill will growing out of the application of this

suspension of the safeguards of due process. Yet petitioner was rushed to trial

unprecedented procedure. That has been the inevitable effect of every method of

under an improper charge, given insufficient time to prepare an adequate defense,

punishment disregarding the element of personal culpability. The effect in this

deprived of the benefits of some of the most

instance, unfortunately, will be magnified infinitely, for here we are dealing with

Page 327 U. S. 28
elementary rules of evidence, and summarily sentenced to be hanged. In all this

the rights of man on an international level. To subject an enemy belligerent


Page 327 U. S. 29

needless and unseemly haste, there was no serious attempt to charge or to prove

to an unfair trial, to charge him with an unrecognized crime, or to vent on him our

that he committed a recognized violation of the laws of war. He was not charged

retributive emotions only antagonizes the enemy nation and hinders the

with personally participating in the acts of atrocity, or with ordering or condoning

reconciliation necessary to a peaceful world.

their commission. Not even knowledge of these crimes was attributed to him. It
was simply alleged that he unlawfully disregarded and failed to discharge his duty

That there were brutal atrocities inflicted upon the helpless Filipino people, to

jurisdiction, that the highest standards of justice be applied in this trial of an

whom tyranny is no stranger, by Japanese armed forces under the petitioner's

enemy commander conducted under the authority of the United States. Otherwise,

command is undeniable. Starvation, execution, or massacre without trial, torture,

stark retribution will be free to masquerade in a cloak of false legalism. And the

rape, murder, and wanton destruction of property were foremost among the

hatred and cynicism engendered by that retribution will supplant the great ideals

outright violations of the laws of war and of the conscience of a civilized world.

to which this nation is dedicated.

That just punishment should be meted out to all those responsible for criminal acts
of this nature is also beyond dispute. But these factors do not answer the problem

This Court, fortunately, has taken the first and most important step toward

in this case. They do not justify the abandonment of our devotion to justice in

insuring the supremacy of law and justice in the treatment of an enemy belligerent

dealing with a fallen enemy commander. To conclude otherwise is to admit that the

accused of violating the laws of war. Jurisdiction properly has been asserted to

enemy has lost the battle, but has destroyed our ideals.

inquire "into the cause of restraint of liberty" of such a person. 28 U.S.C. 452.
Thus, the obnoxious doctrine asserted by the Government in this case -- to the

War breeds atrocities. From the earliest conflicts of recorded history to the global

effect that restraints of liberty resulting from military trials of war criminals are

struggles of modern times, inhumanities, lust, and pillage have been the inevitable

political matters completely outside the arena of judicial review -- has been

byproducts of man's resort to force and arms. Unfortunately, such despicable acts

rejected fully and unquestionably. This does not mean, of course, that the foreign

have a dangerous tendency to call forth primitive impulses of vengeance and

affairs and policies of the nation are proper subjects of judicial inquiry. But, when

retaliation among the victimized peoples. The satisfaction of such impulses, in

the liberty of any person is restrained by reason of the authority of the United

turn, breeds resentment and fresh tension. Thus does the spiral of cruelty and

States, the writ of habeas corpus is available to test the legality of that restraint,

hatred grow.

even though direct court review of the restraint is prohibited. The conclusive
presumption must be made, in this country at least, that illegal restraints are

If we are ever to develop an orderly international community based upon a

unauthorized and unjustified by any foreign policy of the Government, and that

recognition of human dignity, it is of the utmost importance that the necessary

commonly accepted juridical standards are to be recognized and enforced. On that

punishment of those guilty of atrocities be as free as possible from the ugly stigma

basis, judicial inquiry into these matters may proceed within its proper sphere.

of revenge and vindictiveness. Justice must be tempered by compassion, rather


than by vengeance. In this, the first case involving this momentous problem ever to

The determination of the extent of review of war trials calls for judicial

reach this Court, our responsibility is both lofty and difficult. We must insist,

statesmanship of the highest order. The ultimate nature and scope of the writ of

within the confines of our proper

habeas corpus are within the discretion of the judiciary unless validly
circumscribed by Congress. Here, we are confronted with a use of the writ under

Page 327 U. S. 30

circumstances novel in the history of the

Page 327 U. S. 31

with headquarters in the Philippines. The reconquest of the Philippines by the


armed forces of the United States began approximately at the time when

Court. For my own part, I do not feel that we should be confined by the traditional
lines of review drawn in connection with the use of the writ by ordinary criminals

Page 327 U. S. 32

who have direct access to the judiciary in the first instance. Those held by the
military lack any such access; consequently the judicial review available by habeas

the petitioner assumed this command. Combined with a great and decisive sea

corpus must be wider than usual in order that proper standards of justice may be

battle, an invasion was made on the island of Leyte on October 20, 1944.

enforceable.

"In the six days of the great naval action, the Japanese position in the Philippines

But, for the purposes of this case, I accept the scope of review recognized by the

had become extremely critical. Most of the serviceable elements of the Japanese

Court at this time. As I understand it, the following issues in connection with war

Navy had become committed to the battle, with disastrous results. The strike had

criminal trials are reviewable through the use of the writ of habeas corpus: (1)

miscarried, and General MacArthur's land wedge was firmly implanted in the

whether the military commission was lawfully created and had authority to try and

vulnerable flank of the enemy. . . . There were 260,000 Japanese troops scattered

to convict the accused of a war crime; (2) whether the charge against the accused

over the Philippines, but most of them might as well have been on the other side of

stated a violation of the laws of war; (3) whether the commission, in admitting

the world so far as the enemy's ability to shift them to meet the American thrusts

certain evidence, violated any law or military command defining the commission's

was concerned. If General MacArthur succeeded in establishing himself in the

authority in that respect, and (4) whether the commission lacked jurisdiction

Visayas, where he could stage, exploit, and spread under cover of overwhelming

because of a failure to give advance notice to the protecting power as required by

naval and air superiority, nothing could prevent him from overrunning the

treaty or convention.

Philippines."

The Court, in my judgment, demonstrates conclusively that the military

Biennial Report of the Chief of Staff of the United States Army, July 1, 1943, to

commission was lawfully created in this instance, and that petitioner could not

June 30, 1945, to the Secretary of War, p. 74.

object to its power to try him for a recognized war crime. Without pausing here to
discuss the third and fourth issues, however, I find it impossible to agree that the
charge against the petitioner stated a recognized violation of the laws of war.
It is important, in the first place, to appreciate the background of events preceding
this trial. From October 9, 1944, to September 2, 1945, the petitioner was the
Commanding General of the 14th Army Group of the Imperial Japanese Army,

By the end of 1944, the island of Leyte was largely in American hands. And on
January 9, 1945, the island of Luzon was invaded.
"Yamashita's inability to cope with General MacArthur's swift moves, his desired
reaction to the deception measures, the guerrillas, and General Kenney's aircraft,
combined to place the Japanese in an impossible situation. The enemy was forced
into a piecemeal commitment of his troops."

Ibid., p. 78. It was at this time and place that most of the alleged atrocities took

of the charge, he was removed from the status of a prisoner of war and placed in

place. Organized resistance around Manila ceased on February 23. Repeated land

confinement as an accused war criminal. Arraignment followed on October 8

and air assaults pulverized the enemy, and, within a few months, there was little

before a military commission specially appointed for the case. Petitioner pleaded

left of petitioner's command except a few remnants which had gathered for a last

not guilty. He was also served on that day with a bill of particulars alleging 64

stand among the precipitous mountains.

crimes by troops under his command. A supplemental bill alleging 59 more crimes
by his troops was filed on October 29, the same day that the trial began. No

As the military commission here noted,


"The Defense established the difficulties faced by the Accused with respect
Page 327 U. S. 33
not only to the swift and overpowering advance of American forces, but also to the
errors of his predecessors, weaknesses in organization, equipment, supply, with

continuance was allowed for preparation of a defense as to the supplemental bill.


The trial continued uninterrupted until December 5, 1945. On December 7
petitioner was found guilty as charged, and was sentenced to be hanged.
Page 327 U. S. 34
The petitioner was accused of having

especial reference to food and gasoline, training, communication, discipline, and

"unlawfully disregarded and failed to discharge his duty as commander to control

morale of his troops. It was alleged that the sudden assignment of Naval and Air

the operations of the members of his command, permitting them to commit brutal

Forces to his tactical command presented almost insurmountable difficulties. This

atrocities and other high crimes."

situation was followed, the Defense contended, by failure to obey his orders to
withdraw troops from Manila, and the subsequent massacre of unarmed civilians,

The bills of particular further alleged that specific acts of atrocity were committed

particularly by Naval forces. Prior to the Luzon Campaign, Naval forces had

by "members of the armed forces of Japan under the command of the accused."

reported to a separate ministry in the Japanese Government, and Naval

Nowhere was it alleged that the petitioner personally committed any of the

Commanders may not have been receptive or experienced in this instance with

atrocities, or that he ordered their commission, or that he had any knowledge of

respect to a joint land operation under a single commander who was designated

the commission thereof by members of his command.

from the Army Service."


The findings of the military commission bear out this absence of any direct
The day of final reckoning for the enemy arrived in August, 1945. On September 3,

personal charge against the petitioner. The commission merely found that

the petitioner surrendered to the United States Army at Baguio, Luzon. He

atrocities and other high crimes

immediately became a prisoner of war, and was interned in prison in conformity


with the rules of international law. On September 25, approximately three weeks

"have been committed by members of the Japanese armed forces under your

after surrendering, he was served with the charge in issue in this case. Upon service

command . . . ; that they were not sporadic in nature, but, in many cases, were

methodically supervised by Japanese officers and noncommissioned officers . . . ;

International law makes no attempt to define the duties of a commander of an

that, during the period in question, you failed to provide effective control of your

army under constant and overwhelming assault, nor does it impose liability under

troops, as was required by the circumstances."

such circumstances for failure to meet the ordinary responsibilities of command.


The omission is understandable. Duties, as well as ability to control troops, vary

In other words, read against the background of military events in the Philippines

according to the nature and intensity of the particular battle. To find an unlawful

subsequent to October 9, 1944, these charges amount to this:

deviation from duty under battle conditions requires difficult and speculative

"We, the victorious American forces, have done everything possible to destroy and
disorganize your lines of communication, your effective control of your personnel,
your ability to wage war. In those respects, we have succeeded. We have defeated
and crushed your forces. And now, we charge and condemn you for having been
inefficient in maintaining control of your troops during the period when we were
so effectively beseiging and eliminating your forces and blocking your ability to
maintain effective control. Many terrible atrocities were committed by your
disorganized troops. Because these atrocities were so widespread, we will not
bother to charge or prove that you committed, ordered, or
Page 327 U. S. 35
condoned any of them. We will assume that they must have resulted from your
inefficiency and negligence as a commander. In short, we charge you with the
crime of inefficiency in controlling your troops. We will judge the discharge of your
duties by the disorganization which we ourselves created in large part. Our
standards of judgment are whatever we wish to make them."
Nothing in all history or in international law, at least as far as I am aware, justifies
such a charge against a fallen commander of a defeated force. To use the very
inefficiency and disorganization created by the victorious forces as the primary
basis for condemning officers of the defeated armies bears no resemblance to
justice, or to military reality.

calculations. Such calculations become highly untrustworthy when they are made
by the victor in relation to the actions of a vanquished commander. Objective and
realistic norms of conduct are then extremely unlikely to be used in forming a
judgment as to deviations from duty. The probability that vengeance will form the
major part of the victor's judgment is an unfortunate but inescapable fact. So great
is that probability that international law refuses to recognize such a judgment as a
basis for a war crime, however fair the judgment may be in a particular instance. It
is this consideration that undermines the charge against the petitioner in this case.
The indictment permits -- indeed compels -- the military commission of a
victorious nation to
Page 327 U. S. 36
sit in judgment upon the military strategy and actions of the defeated enemy, and
to use its conclusions to determine the criminal liability of an enemy commander.
Life and liberty are made to depend upon the biased will of the victor, rather than
upon objective standards of conduct.
The Court's reliance upon vague and indefinite references in certain of the Hague
Conventions and the Geneva Red Cross Convention is misplaced. Thus, the
statement in Article 1 of the Annex to Hague Convention No. IV of October 18,
1907, 36 Stat. 2277, 2295, to the effect that the laws, rights and duties of war apply
to military and volunteer corps only if they are "commanded by a person

responsible for his subordinates," has no bearing upon the problem in this case.

The provisions of the other conventions referred to by the Court are, on their face,

Even if it has, the clause "responsible for his subordinates" fails to state to whom

equally devoid of relevance or significance to the situation here in issue. Neither

the responsibility is owed, or to indicate the type of responsibility contemplated.

Article 19 of Hague Convention No. X, 36 Stat. 2371, 2389, nor Article 26 of the

The phrase has received differing interpretations by authorities on international

Geneva Red Cross Convention of 1929, 47 Stat. 2074, 2092, refers to circumstances

law. In Oppenheim, International Law (6th ed., rev. by Lauterpacht, 1940, vol. 2, p.

where the troops of a commander commit atrocities while under heavily adverse

204, fn. 3) it is stated that

battle conditions. Reference is also made to the requirement of Article 43 of the


Annex to Hague Convention No. IV, 36 Stat. 2295, 2306, that the commander of a

"The meaning of the word 'responsible' . . . is not clear. It probably means

force occupying enemy territory

'responsible to some higher authority,' whether the person is appointed from above
or elected from below. . . ."

"shall take all the measures in his power to restore, and ensure, as far as possible,
public order and safety, while respecting, unless absolutely prevented, the laws in

Another authority has stated that the word "responsible" in this particular context

force in the country."

means "presumably to a higher authority," or "possibly it merely means one who


controls his subordinates, and who therefore can be called to account for their

But the petitioner was more than a commander of a force occupying enemy

acts." Wheaton, International Law (14th ed., by Keith, 1944, p. 172, fn. 30). Still

territory. He was the leader of an army under constant and devastating attacks by a

another authority, Westlake, International Law (1907, Part II, p. 61), states that

superior reinvading force. This provision is silent as to the responsibilities of a

"probably the responsibility intended is nothing more than a capacity of exercising

commander under such conditions as that.

effective control." Finally, Edwards and Oppenheim, Land Warfare (1912, p. 19,
par. 22) state that it is enough "if the commander of the corps is regularly or

Even the laws of war heretofore recognized by this nation fail to impute

temporarily commissioned as an officer or is a person of

responsibility to a fallen commander for excesses committed by his disorganized


troops while under attack. Paragraph 347 of the War Department publication,

Page 327 U. S. 37

Basic Field Manual, Rules of Land Warfare, FM 27-10 (1940), states the principal
offenses under the laws of war recognized by the United States. This includes all of

position and authority." It seems apparent beyond dispute that the word

the atrocities which the Japanese troops were alleged to have committed in this

"responsible" was not used in this particular Hague Convention to hold the

instance. Originally,

commander of a defeated army to any high standard of efficiency when he is under


destructive attack; nor was it used to impute to him any criminal responsibility for

Page 327 U. S. 38

war crimes committed by troops under his command under such circumstances.
this paragraph concluded with the statement that

"The commanders ordering the commission of such acts, or under whose authority

There are numerous instances, especially with reference to the Philippine

they are committed by their troops, may be punished by the belligerent into whose

Insurrection in 1900 and 1901, where commanding officers were found to have

hands they may fall."

violated the laws of war by specifically ordering members of their command to


commit atrocities and other war crimes. Francisco Frani, G.O. 143, Dec. 13, 1900,

The meaning of the phrase "under whose authority they are committed" was not

Hq. Div. Phil.; Eugenio Fernandez and Juan Soriano, G.O. 28, Feb. 6, 1901,

clear. On November 15, 1944, however, this sentence was deleted and a new

Hq.Div.Phil.; Ciriaco Cabungal, G.O. 188, Jul. 22, 1901, Hq.Div.Phil.; Natalio

paragraph was added relating to the personal liability of those who violate the laws

Valencia, G.O. 221, Aug. 17, 1901, Hq.Div.Phil.; Aniceta Angeles, G.O. 246, Sept. 2,

of war. Change 1, FM 27-10. The new paragraph 345.1 states that

1901, Hq.Div.Phil.; Francisco Braganza, G.O. 291, Sept. 26, 1901, Hq.Div.Phil.;

"Individuals and organizations who violate the accepted laws and customs of war
may be punished therefor. However, the fact that the acts complained of were done
pursuant to order of a superior or government sanction may be taken into

Lorenzo Andaya, G.O. 328, Oct. 25, 1901, Hq.Div.Phil. And, in other cases, officers
have been held
Page 327 U. S. 39

consideration in determining culpability, either by way of defense or in mitigation


of punishment. The person giving such orders may also be punished."

liable where they knew that a crime was to be committed, had the power to prevent
it, and failed to exercise that power. Pedro Abad Santos, G.O. 130, June 19, 1901,

From this, the conclusion seems inescapable that the United States recognizes

Hq.Div.Phil. Cf. Pedro A. Cruz, G.O. 264, Sept. 9, 1901, Hq.Div.Phil. In no recorded

individual criminal responsibility for violations of the laws of war only as to those

instance, however, has the mere inability to control troops under fire or attack by

who commit the offenses or who order or direct their commission. Such was not

superior forces been made the basis of a charge of violating the laws of war.

the allegation here. Cf.Article 67 of the Articles of War, 10 U.S.C. 1539.


The Government claims that the principle that commanders in the field are bound
to control their troops has been applied so as to impose liability on the United
States in international arbitrations. Case of Jeannaud, 1880, 3 Moore,
International Arbitrations (1898) 3000; Case of The Zafiro, 1910, 5 Hackworth,
Digest of International Law (1943) 707. The difference between arbitrating
property rights and charging an individual with a crime against the laws of war is
too obvious to require elaboration. But even more significant is the fact that even
these arbitration cases fail to establish any principle of liability where troops are
under constant assault and demoralizing influences by attacking forces. The same
observation applies to the common law and statutory doctrine, referred to by the

Government, that one who is under a legal duty to take protective or preventive

grossly and openly violated without any justification. All of this was done without

action is guilty of criminal homicide if he willfully or negligently omits to act and

any thorough investigation and prosecution of those immediately responsible for

death is proximately caused. State v. Harrison, 107 N.J.L. 213, 152 A. 867; State v.

the atrocities, out of which might have come some proof or indication of personal

Irvine, 126 La. 434, 52 So. 567; Holmes, The Common Law, p. 278. No one denies

culpability on petitioner's part. Instead the loose charge was made that great

that inaction or negligence may give rise to liability, civil or criminal. But it is quite

numbers of atrocities had been committed and that petitioner was the

another thing to say that the inability to control troops under highly competitive

commanding officer; hence he must have been guilty of disregard of duty. Under

and disastrous battle conditions renders one guilty of a war crime in the absence of

that charge the commission was free to establish whatever standard of duty on

personal culpability. Had there been some element of knowledge or direct

petitioner's part that it desired. By this flexible method a victorious nation may

connection with the atrocities, the problem would be entirely different. Moreover,

convict and execute any or all leaders of a vanquished foe, depending upon the

it must be remembered that we are not dealing

prevailing degree of vengeance and the absence of any objective judicial review.

Page 327 U. S. 40

At a time like this when emotions are understandably high it is difficult to adopt a
dispassionate attitude toward

here with an ordinary tort or criminal action; precedents in those fields are of little
if any value. Rather, we are concerned with a proceeding involving an international

Page 327 U. S. 41

crime, the treatment of which may have untold effects upon the future peace of the
world. That fact must be kept uppermost in our search for precedent.

a case of this nature. Yet now is precisely the time when that attitude is most
essential. While peoples in other lands may not share our beliefs as to due process

The only conclusion I can draw is that the charge made against the petitioner is

and the dignity of the individual, we are not free to give effect to our emotions in

clearly without precedent in international law or in the annals of recorded military

reckless disregard of the rights of others. We live under the Constitution, which is

history. This is not to say that enemy commanders may escape punishment for

the embodiment of all the high hopes and aspirations of the new world. And it is

clear and unlawful failures to prevent atrocities. But that punishment should be

applicable in both war and peace. We must act accordingly. Indeed, an uncurbed

based upon charges fairly drawn in light of established rules of international law

spirt of revenge and retribution, masked in formal legal procedure for purposes of

and recognized concepts of justice.

dealing with a fallen enemy commander, can do more lasting harm than all of the
atrocities giving rise to that spirit. The people's faith in the fairness and

But the charge in this case, as previously noted, was speedily drawn and filed but

objectiveness of the law can be seriously undercut by that spirit. The fires of

three weeks after the petitioner surrendered. The trial proceeded with great

nationalism can be further kindled. And the hearts of all mankind can be

dispatch, without allowing the defense time to prepare an adequate case.

embittered and filled with hatred, leaving forlorn and impoverished the noble ideal

Petitioner's rights under the due process clause of the Fifth Amendment were

of malice toward none and charity to all. These are the reasons that lead me to

This long held attachment marks the great divide between our enemies and

dissent in these terms.

ourselves. Theirs was a philosophy of universal force. Ours is one of universal law,
albeit imperfectly made flesh of our system and so dwelling among us. Every

MR. JUSTICE RUTLEDGE, dissenting.


Not with ease does one find his views at odds with the Court's in a matter of this
character and gravity. Only the most deeply felt convictions could force one to
differ. That reason alone leads me to do so now, against strong considerations for
withholding dissent.
More is at stake than General Yamashita's fate. There could be no possible
sympathy for him if he is guilty of the atrocities for which his death is sought. But
there can be and should be justice administered according to law. In this stage of
war's aftermath, it is too early for Lincoln's great spirit, best lighted in the Second
Inaugural, to have wide hold for the treatment of foes. It is not too early -- it is
never too early -- for the nation steadfastly to follow its great constitutional
traditions, none older or more universally protective against unbridled power than
due process
Page 327 U. S. 42
of law in the trial and punishment of men -- that is, of all men, whether citizens,
aliens, alien enemies, or enemy belligerents. It can become too late.

departure weakens the tradition, whether it touches the high or the low, the
powerful or the weak, the triumphant or the conquered. If we need not or cannot
be magnanimous, we can keep our own law on the plane from which it has not
descended hitherto and to which the defeated foes' never rose.
With all deference to the opposing views of my brethren, whose attachment to that
tradition needless to say is no less than my own, I cannot believe in the face of this
record that the petitioner has had the fair trial our Constitution and laws
command. Because I cannot reconcile what has occurred with their measure, I am
forced to speak. At bottom, my concern is that we shall not forsake in any case,
whether Yamashita's or another's, the basic standards of trial which, among other
guaranties, the nation fought to keep; that our system of military justice shall not,
alone among all our forms of judging, be above or beyond the fundamental law or
the control of Congress within its orbit of authority, and that this Court shall not
fail in its part under the Constitution to see that these things do not happen.
This trial is unprecedented in our history. Never before have we tried and
convicted an enemy general for action taken during hostilities or otherwise in the
course of military operations or duty. Much less have we condemned one for failing
to take action. The novelty is not lessened by the trial's having taken place after
hostilities ended and the enemy, including the accused, had surrendered.
Moreover, so far as the time permitted for our
Page 327 U. S. 43

consideration has given opportunity, I have not been able to find precedent for the

It is outside our basic scheme to condemn men without giving reasonable

proceeding in the system of any nation founded in the basic principles of our

opportunity for preparing defense; [Footnote 2/3] in capital or other serious

constitutional democracy, in the laws of war, or in other internationally binding

crimes, to convict on "official documents . . . ; affidavits; . . . documents or

authority or usage.

translations thereof; diaries . . photographs, motion picture films, and . . .


newspapers" [Footnote 2/4] or on hearsay, once, twice or thrice removed,

The novelty is legal, as well as historical. We are on strange ground. Precedent is

[Footnote 2/5] more particularly when the documentary evidence or some of it is

not all-controlling in law. There must be room for growth, since every precedent

prepared ex parte by the prosecuting authority and includes not only opinion but

has an origin. But it is the essence of our tradition for judges, when they stand at

conclusions of guilt. Nor in such cases do we deny the rights of confrontation of

the end of the marked way, to go forward with caution keeping sight, so far as they

witnesses and cross-examination. [Footnote 2/6]

are able, upon the great landmarks left behind and the direction they point ahead.
If, as may be hoped, we are now to enter upon a new era of law in the world, it

Our tradition does not allow conviction by tribunals both authorized and bound

becomes more important than ever before for the nations creating that system to

[Footnote 2/7] by the instrument of their creation to receive and consider evidence

observe their greatest traditions of administering justice, including this one, both

which is expressly excluded by Act of Congress or by treaty obligation; nor is it in

in their own judging and in their new creation. The proceedings in this case veer so

accord with our basic concepts to make the tribunal, specially constituted for the

far from some of our time-tested road signs that I cannot take the large strides

particular trial, regardless of those prohibitions, the sole and exclusive judge of the

validating them would demand.

credibility,

I
It is not in our tradition for anyone to be charged with crime which is defined after

Page 327 U. S. 45
probative value, and admissibility of whatever may be tendered as evidence.

his conduct, alleged to be criminal, has taken place, [Footnote 2/1] or in language
not sufficient to inform him of the nature of the offense or to enable him to make

The matter is not one merely of the character and admissibility of evidence. It goes

defense. [Footnote 2/2] Mass guilt we do not impute to individuals, perhaps in any

to the very competency of the tribunal to try and punish consistently with the

case, but certainly in none where the person is not charged or shown actively to

Constitution, the laws of the United States made in pursuance thereof, and treaties

have participated in or knowingly to have failed in taking action to

made under the nation's authority.

Page 327 U. S. 44

All these deviations from the fundamental law, and others, occurred in the course
of constituting the commission, the preparation for trial and defense, the trial

prevent the wrongs done by others, having both the duty and the power to do so.

itself, and therefore, in effect, in the sentence imposed. Whether taken singly in
some instances as departures from specific constitutional mandates or in totality as

in violation of the Fifth Amendment's command that no person shall be deprived

In this view, the action taken here is one of military necessity, exclusively within

of life, liberty or property without due process of law, a trial so vitiated cannot

the authority of the President as Commander-in-Chief and his military

withstand constitutional scrutiny.

subordinates to take in warding off military danger and subject to no judicial


restraint on any account, although, somewhat inconsistently, it is said this Court

One basis protection of our system, and one only, petitioner has had. He has been

may "examine" the proceedings generally.

represented by able counsel, officers of the army he fought. Their difficult


assignment has been done with extraordinary fidelity not only to the accused, but

As I understand the Court, this is in substance the effect of what has been done.

to their high conception of military justice, always to be administered in

For I cannot conceive any instance of departure from our basic concepts of fair trial

subordination to the Constitution and consistent Acts of Congress and treaties.

if the failures here are not sufficient to produce that effect.

But, as will appear, even this conceded shield was taken away in much of its value
by denial of reasonable opportunity for them to perform their function.

We are technically still at war, because peace has not been negotiated finally or
declared. But there is no longer the danger which always exists before surrender

On this denial and the commission's invalid constitution specifically, but also more

and armistice. Military necessity does not demand the same measures. The nation

generally upon the totality of departures from constitutional norms inherent in the

may be more secure now than at any time after peace is officially concluded. In

idea of a fair trial, I rest my judgment that the commission was without jurisdiction

these facts is one great difference from Ex parte Quirin, 317 U. S. 1. Punitive action

from the beginning to try or punish the petitioner, and that, if it had acquired

taken now can be effective only for the next war, for purposes of military security.

jurisdiction then, its power to proceed was lost in the course of what was done

And enemy aliens, including belligerents, need the attenuated protections our

before and during trial.

system extends to them more now than before hostilities ceased or than they may
after a treaty of peace is signed. Ample power there is to punish them or others for

Only on one view, in my opinion, could either of these conclusions be avoided. This

crimes, whether under the laws of war during its course or later during occupation.

would be that an enemy

There can be no question of that. The only question is how it shall be done,

Page 327 U. S. 46
belligerent in petitioner's position is altogether beyond the pale of constitutional

consistently
Page 327 U. S. 47

protection, regardless of the fact that hostilities had ended and he had surrendered

with universal constitutional commands or outside their restricting effects. In this

with his country. The Government has so argued, urging that we are still at war

sense, I think the Constitution follows the flag.

with Japan, and all the power of the military effective during active hostilities in
theaters of combat continues in full force, unaffected by the events of August 14,

The other thing to be mentioned in order to be put aside is that we have no

1945, and after.

question here of what the military might have done in a field of combat. There, the

maxim about the law becoming silent in the noise of arms applies. The purpose of

Invalidity of the Commission's Constitution

battle is to kill. But it does not follow that this would justify killing by trial after
capture or surrender, without compliance with laws or treaties made to apply in

The fountainhead of the commission's authority was General MacArthur's directive

such cases, whether trial is before or after hostilities end.

by which General Styer was ordered to and pursuant to which he did proceed with
constituting the commission. [Footnote 2/8] The directive was accompanied by

I turn now to discuss some of the details of what has taken place. My basic

elaborate and detailed rules and regulations prescribing the procedure and rules of

difference is with the Court's view that provisions of the Articles of War and of

evidence to be followed, of which, for present purposes, Section 16, set forth below,

treaties are not made applicable to this proceeding, and with its ruling that, absent

[Footnote 2/9] is crucial.

such applicable provisions, none of the things done so vitiated the trial and
sentence as to deprive the commission of jurisdiction.

Page 327 U. S. 49

My Brother MURPHY has discussed the charge with respect to the substance of the

Section 16, as will be noted, permits reception of documents, reports, affidavits,

crime. With his conclusions in this respect, I agree. My own primary concern will

depositions, diaries, letters, copies of documents or other secondary evidence of

be with the constitution of the commission and other matters taking place in the

their contents, hearsay, opinion evidence and conclusions -- in fact, of anything

course of the proceedings, relating chiefly to the denial of reasonable opportunity

which, in the commission's opinion, "would be of assistance in proving or

to prepare petitioner's defense and the sufficiency of the evidence, together with

disproving the charge," without any of the usual modes of authentication.

serious questions of admissibility, to prove on offense, all going, as I think, to the


commission's jurisdiction.

A more complete abrogation of customary safeguards relating to the proof,


whether in the usual rules of evidence or any reasonable substitute and whether for

Necessarily, only a short sketch can be given concerning each matter. And it may

use in the trial of crime in the civil courts or military tribunals, hardly could have

be stated at the start that, although it was ruled in Ex parte Quirin, supra, that this

been made. So far as the admissibility and probative value of evidence was

Court had no function to review the evidence, it was not there or elsewhere

concerned, the directive made the commission a law unto itself.

determined that it could not ascertain whether conviction is founded upon


evidence expressly excluded by Congress or treaty; nor does the Court purport to
do so now.
Page 327 U. S. 48

It acted accordingly. As against insistent and persistent objection to the reception


of all kinds of "evidence," oral, documentary and photographic, for nearly every
kind of defect under any of the usual prevailing standards for admissibility and
probative value, the commission not only consistently ruled against the defense,
but repeatedly stated it was bound by the directive to receive the kinds of evidence

II

it specified, [Footnote 2/10] reprimanded counsel for continuing to make


objection, declined to hear further objections, and, in more than one instance

during the course of the proceedings, reversed its rulings favorable to the defense

Page 327 U. S. 51

where initially it had declined to receive what the prosecution offered. Every
conceivable kind of statement, rumor, report at first, second, third or further hand,

presented evidence to show that the crimes were so extensive and so widespread,

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

both as to time and area, [Footnote 2/14] that they must either have been willfully

of this relating to atrocities committed

permitted by the accused or secretly ordered by"

Page 327 U. S. 50

him, and in the conclusion of guilt and the sentence. [Footnote 2/15] (Emphasis
added.) Indeed, the commission's ultimate findings [Footnote 2/16] draw no

by troops under petitioner's command throughout the several thousand islands of

express conclusion of knowledge, but state only two things: (1) the fact of

the Philippine Archipelago during the period of active hostilities covered by the

widespread atrocities and crimes; (2) that petitioner "failed to provide effective

American forces' return to and recapture of the Philippines. [Footnote 2/11]

control . . . as required by the circumstances."

The findings reflect the character of the proof and the charge. The statement

This vagueness, if not vacuity, in the findings runs throughout the proceedings,

quoted above [Footnote 2/12] gives only a numerical idea of the instances in which

from the charge itself, through the proof and the findings, to the conclusion. It

ordinary safeguards in reception of written evidence were ignored. In addition to

affects

these 423 "exhibits," the findings state the commission "has heard 286 persons
during the course of this trial, most of whom have given eye-witness accounts of
what they endured or what they saw."

Page 327 U. S. 52
the very gist of the offense -- whether that was willful, informed, and intentional

But there is not a suggestion in the findings that petitioner personally participated

omission to restrain and control troops known by petitioner to be committing

in, was present at the occurrence of, or ordered any of these incidents, with the

crimes, or was only a negligent failure on his part to discover this and take

exception of the wholly inferential suggestion noted below. Nor is there any

whatever measures he then could to stop the conduct.

express finding that he knew of any one of the incidents in particular or of all taken
together. The only inferential findings that he had knowledge, or that the
commission so found, are in the statement that "the crimes alleged to have been
permitted by the accused in violation of the laws of war may be grouped into three
categories" set out below, [Footnote 2/13] in the further statement that
"the prosecution

Although it is impossible to determine from what is before us whether petitioner in


fact has been convicted of one or the other or of both these things, [Footnote 2/17]
the case has been
Page 327 U. S. 53

presented on the former basis and, unless, as is noted below, there is fatal

Page 327 U. S. 54

duplicity, it must be taken that the crime charged and sought to be proved was only
the failure, with knowledge, to perform the commander's function of control,

in the bills of particulars was by ex parte affidavits. It was in relation to this also

although the Court's opinion nowhere expressly declares that knowledge was

vital phase of the proof that there occurred one of the commission's reversals of its

essential to guilt or necessary to be set forth in the charge.

earlier rulings in favor of the defense [Footnote 2/19] -- a fact, in itself, conclusive
demonstration of the necessity to the prosecution's case of the prohibited type of

It is in respect to this feature especially, quite apart from the reception of

evidence and of its prejudicial effects upon the defense.

unverified rumor, report, etc., that perhaps the greatest prejudice arose from the
admission of untrustworthy, unverified, unauthenticated evidence which could not

These two basic elements in the proof -- namely, proof of knowledge of the crimes

be probed by cross-examination or other means of testing credibility, probative

and proof of the specifications in the bills, that is, of the atrocities themselves --

value, or authenticity.

constitute the most important instances, perhaps, if not the most flagrant,
[Footnote 2/20]

Counsel for the defense have informed us in the brief and at the argument that the
sole proof of knowledge introduced at the trial was in the form of ex
parte affidavits and depositions. Apart from what has been excerpted from the
record in the applications and the briefs and such portions of the record as I have
been able to examine, it has been impossible for me fully to verify counsel's
statement in this respect. But the Government has not disputed it, and it has
maintained that we have no right to examine the record upon any question "of
evidence." Accordingly, without concession to that view, the statement of counsel is
taken for the fact . And, in that state of things, petitioner has been convicted of a
crime in which knowledge is an essential element, with no proof of knowledge
other than what would be inadmissible in any other capital case or proceeding
under our system, civil or military, and which, furthermore, Congress has expressly
commanded shall not be received in such cases tried by military commissions and
other military tribunals. [Footnote 2/18]
Moreover, counsel assert in the brief, and this also is not denied, that the sole proof
made of certain of the specifications

Page 327 U. S. 55
of departure not only from the express command of Congress against receiving
such proof, but from the whole British-American tradition of the common law and
the Constitution. Many others occurred which there is neither time nor space to
mention. [Footnote 2/21]
Petitioner asserts, and there can be no reason to doubt, that, by the use of all this
forbidden evidence, he was deprived of the right of cross-examination and other
means to establish the credibility of the deponents or affiants, not to speak of the
authors of reports, letters, documents, and newspaper articles; of opportunity to
determine whether the multitudinous crimes specified in the bills were committed
in fact by troops under his command or by naval or air force troops not under his
command at the time alleged; to ascertain whether the crimes attested were
isolated acts of individual soldiers or were military acts committed by troop units
acting under supervision of officers; and, finally, whether, "in short, there was such

a pattern' of conduct as the prosecution alleged and its whole theory of the crime

treaties, and the Constitution, in that order. If all these traditions can be so put

and the evidence required to be made out."

away, then indeed will we have entered upon a new but foreboding era of law.

He points out in this connection that the commission based its decision on a
finding as to the extent and number
Page 327 U. S. 56
of the atrocities, and that this, of itself, establishes the prejudicial effect of the
affidavits, etc., and of the denial resulting from their reception of any means of
probing the evidence they contained, including all opportunity for cross-

III
Denial of Opportunity to Prepare Defense
Petitioner surrendered September 3, 1945, and was interned as a prisoner of war in
conformity with Article 9
Page 327 U. S. 57

examination. Yet it is said there is no sufficient showing of prejudice. The effect

of the Geneva Convention of July 27, 1929. [Footnote 2/22] He was served with the

could not have been other than highly prejudicial. The matter is not one merely of

charge on September 25, and put in confinement as an accused war criminal. On

"rules of evidence." It goes, as will appear more fully later, to the basic right of

October 8, he was arraigned, and pleaded not guilty. On October 29, the trial

defense, including some fair opportunity to test probative value.

began, and it continued until December 7, when sentence was pronounced, exactly

Insufficient as this recital is to give a fair impression of what was done, it is enough

four years, almost to the hour, from the attack on Pearl Harbor.

to show that this was no trial in the traditions of the common law and the

On the day of arraignment, October 8, three weeks before the trial began,

Constitution. If the tribunal itself was not strange to them otherwise, it was in its

petitioner was served with a bill of particulars specifying 64 items setting forth a

forms and modes of procedure, in the character and substance of the evidence it

vast number of atrocities and crimes allegedly committed by troops under his

received, in the denial of all means to the accused and his counsel for testing the

command. [Footnote 2/23] The six officers appointed as defense counsel thus had

evidence, in the brevity and ambiguity of its findings made upon such a mass of

three weeks -- it is true, at the prosecution's suggestion, a week longer than they

material, and, as will appear, in the denial of any reasonable opportunity for

sought at first -- to investigate and prepare to meet all these items and the large

preparation of the defense. Because this last deprivation not only is important in

number of incidents they embodied, many of which had occurred in distant islands

itself, but is closely related to the departures from all limitations upon the

of the archipelago. There is some question whether they then anticipated the full

character of and modes of making the proof, it will be considered before turning to

scope and character of the charge or the evidence they would have to meet. But, as

the important legal questions relating to whether all these violations of our

will appear, they worked night and day at the task. Even so, it would have been

traditions can be brushed aside as not forbidden by the valid Acts of Congress,

impossible to do thoroughly had nothing more occurred.

But there was more. On the first day of the trial, October 29, the prosecution filed a

proceed on the supplemental bill. On November 1, the commission ruled it would

supplemental bill of particulars

not receive affidavits without corroboration by witnesses on any specification, a


ruling reversed four days later.

Page 327 U. S. 58
On November 2, after the commission had received an affirmative answer to its
containing 59 more specifications of the same general character, involving perhaps

inquiry whether the defense was prepared to proceed with an item in the

as many incidents occurring over an equally wide area. [Footnote 2/24] A copy had

supplemental bill which the prosecution proposed to prove, it announced:

been given the defense three days earlier. One item, No. 89, charged that American
soldiers, prisoners of war, had been tried and executed without notice having been

"Hereafter, then, unless there is no [sic] objection by the Defense, the Commission

given to the protecting power of the United States in accordance with the

will assume that you are prepared to proceed with any items in the Supplemental

requirements of the Geneva Convention, which it is now argued, strangely, the

Bill."

United States was not required to observe as to petitioner's trial. [Footnote 2/25]
On November 8, the question arose again upon the prosecution's inquiry as to
But what is more important is that defense counsel, as they felt was their duty, at

when the defense would be ready to proceed on the supplemental bill, the

once moved for a continuance. [Footnote 2/26] The application was denied.

prosecutor adding:

However the commission indicated that if, at the end of the prosecution's
presentation

"Frankly, sir, it took the War Crimes Commission some three months to investigate
these matters, and I cannot conceive of the Defense undertaking a similar

Page 327 U. S. 59

investigation with any less period of time."

concerning the original bill, counsel should "believe they require additional

Stating it realized "the tremendous burden which we have placed on the Defense"

time . . . , the Commission will consider such a motion at that time," before taking

and its "determination to give them the time they require," the commission again

up the items of the supplemental bill. Counsel again indicated, without other

adhered to its ruling of October 29.

result, that time was desired at once "as much, if not more" to prepare for crossexamination "as the Prosecutor's case goes in" as to prepare affirmative defense.

Page 327 U. S. 60

On the next day, October 30, the commission interrupted the prosecutor to say it

Four days later, the commission announced it would grant a continuance "only for

would not then listen to testimony or discussion upon the supplemental bill. After

the most urgent and unavoidable reasons." [Footnote 2/27]

colloquy, it adhered to its prior ruling and, in response to inquiry from the
prosecution, the defense indicated it would require two weeks before it could

On November 20, when the prosecution rested, senior defense counsel moved for a

wide departure from the most elementary principles of fairness vitiated the

reasonable continuance, recalling the commission's indication that it would then

proceeding. When added to the other denials of fundamental right sketched above,

consider such a motion and stating that, since October 29, the defense had been

it deprived the proceeding of any semblance of trial as we know that institution.

"working night and day," with "no time whatsoever to prepare any affirmative
defense," since counsel had been fully occupied trying "to keep up with the new Bill

IV

of Particulars."

Applicability of the Articles of War

The commission thereupon retired for deliberation and, on resuming its sessions

The Court's opinion puts the proceeding and the petitioner, insofar as any rights

shortly, denied the motion. Counsel then asked for "a short recess of a day." The

relating to his trial and conviction are concerned, wholly outside the Articles of

commission suggested a recess until 1:30 in the afternoon. Counsel responded this

War. In view of what has taken place, I think the decision's necessary effect is also

would not suffice. The commission stated it felt "that the Defense should be

to place them entirely beyond limitation and protection, respectively, by the

prepared, at least on its opening statement," to which senior counsel answered:

Constitution. I disagree as to both conclusions or effects.

"We haven't had time to do that, sir." The commission then recessed until 8:30 the
following morning.

The Court rules that Congress has not made Article 25 and 38 applicable to this
proceeding. It think it has made them applicable to this and all other military

Further comment is hardly required. Obviously the burden placed upon the

commissions or tribunals. If so, the commission not only lost all power to punish

defense, in the short time allowed for preparation on the original bill, was not only

petitioner by what occurred in the proceedings. It never acquired jurisdiction to try

"tremendous." In view of all the facts, it was an impossible one, even though the

him. For the directive by which it was constituted, in the provisions of Section 16,

time allowed was a week longer than asked. But the grosser vice was later, when

[Footnote 2/28] was squarely in conflict with Articles 25 and 38 of the Articles of

the burden was more than doubled by service of the supplemental bill on the eve of

War, [Footnote 2/29] and therefore was void.

trial, a procedure which, taken in connection with the consistent denials of


continuance and the commission's later reversal of its rulings favorable to the

Page 327 U. S. 62

defense
Article 25 allows reading of depositions in evidence, under prescribed conditions,
Page 327 U. S. 61

in the plainest terms "before any military court or commission in any case not
capital," providing, however, that "testimony by deposition may be adduced for the

was wholly arbitrary, cutting off the last vestige of adequate chance to prepare

defense in capital cases." (Emphasis added.) This language clearly and broadly

defense and imposing a burden the most able counsel could not bear. This sort of

covers every kind of military tribunal, whether "court" or "commission." It covers

thing has no place in our system of justice, civil or military. Without more, this

all capital cases. It makes no exception or distinction for any accused.

Article 38 authorizes the President, by regulations, to prescribe procedure,

of the United States, unless they are connected in the manner Article 2 prescribes

including modes of proof, even more all-inclusively, if possible, "in cases before

with our armed forces, exclusive of the Navy.

courts-martial, courts of inquiry, military commissions, and other military


tribunals." Language could not be more broadly inclusive. No exceptions are

The logic which excludes petitioner on the basic that prisoners of war are not

mentioned or suggested, whether of tribunals or of accused persons. Every kind of

mentioned in Article 2 would exclude all these. I strongly doubt the Court would go

military body for performing the function of trial is covered. That is clear from the

so far, if presented with a trial like this in such instances. Nor does it follow

face of the Article.

necessarily that, because some persons may not be mentioned in Article 2, they can
be tried without regard to any of the limitations placed by any of the other Articles

Article 38, moreover, limits the President's power. He is, so far as practicable, to

upon military tribunals.

prescribe "the rules of evidence generally recognized in the trial of criminal cases in
the

Article 2, in defining persons "subject to the articles of war," was, I think,


specifying those to whom the Articles in general were applicable. And there is no

Page 327 U. S. 63

dispute that most of the Articles are not applicable to the petitioner. It does not
follow, however, and Article 2 does not provide, that there may not be in the

district courts of the United States," a clear mandate that Congress intended all

Articles specific provisions

military trials to conform as closely as possible to our customary procedural and


evidentiary protections, constitutional and statutory, for accused persons. But

Page 327 U. S. 64

there are also two unqualified limitations, one "that nothing contrary to or
inconsistent with these articles (specifically here Article 25) shall be so prescribed,"

covering persons other than those specified in Article 2. Had it so provided, Article

the other "that all rules made in pursuance of this article shall be laid before the

2 would have been contradictory not only of Articles 25 and 38, but also of Article

Congress annually."

15, among others.

Notwithstanding these broad terms, the Court, resting chiefly on Article 2,

In 1916, when the last general revision of the Articles of War took place, [Footnote

concludes the petitioner was not among the persons there declared to be subject to

2/30] for the first time, certain of the Articles were specifically made applicable to

the Articles of War, and therefore the commission which tries him is not subject to

military commissions. Until then, they had applied only to courts-martial. There

them. That Article does not cover prisoners of war or war criminals. Neither does it

were two purposes -- the first to give statutory recognition to the military

cover civilians in occupied territories, theaters of military operations, or other

commission without loss of prior jurisdiction, and the second to give those tried

places under military jurisdiction within or without the United States or territory

before military commissions some of the more important protections afforded

subject to its sovereignty, whether they be neutrals or enemy aliens, even citizens

persons tried by courts-martial.

In order to effectuate the first purpose, the Army proposed Article 15. [Footnote

Winthrop, supra at *1299. Since that time, there has been only one type of military

2/31] To effectuate the second purpose, Articles

tribunal, called the military commission, though it may exercise different kinds of
jurisdiction, [Footnote 2/33] according to the circumstances under which and

Page 327 U. S. 66

purposes for which it is convened.

25 and 38 and several others were proposed. [Footnote 2/32] But, as the Court

The testimony of General Crowder is perhaps the most authoritative evidence of

now construes the Articles of War, they have no application to military

what was intended by the legislation,

commissions before which alleged offenders against the laws of war are tried. What
the Court holds, in effect, is that there are two types of military commissions, one

Page 327 U. S. 68

to try offenses which might be cognizable by a court-martial, the other to try war
crimes, and that Congress intended the Articles of War referring in terms to

for he was its most active official sponsor, spending years in securing its adoption

military commissions without exception to be applicable only to the first type.

and revision. Articles 15, 25, and 38 particularly are traceable to his efforts. His
concern to secure statutory recognition for military commissions was equalled by

Page 327 U. S. 67

his concern that the statutory provisions giving this should not restrict their
preexisting jurisdiction. He did not wish, by securing additional jurisdiction,

This misconceives both the history of military commissions and the legislative

overlapping partially that of the court-martial, to surrender other. Hence, Article

history of the Articles of War. There is only one kind of military commission. It is

15. That Article had one purpose and one only. It was to make sure that the

true, as the history noted shows, that what is now called "the military commission"

acquisition of partially concurrent jurisdiction with courts-martial should not

arose from two separate military courts instituted during the Mexican War. The

cause loss of any other. And it was jurisdiction, not procedure, which was covered

first military court, called by General Scott a "military commission," was given

by other Articles with which he and Congress were concerned in that Article. It

jurisdiction in Mexico over criminal offenses of the class cognizable by civil courts

discloses no purpose to deal in any way with procedure or to qualify Articles 25 and

in time of peace. The other military court, called a "counsel of war" was given

38. And it is clear that General Crowder at all times regarded all military

jurisdiction over offenses against the laws of war. Winthrop, Military Law and

commissions as being governed by the identical procedure. In fact, so far as

Precedents (2d ed., reprinted 1920) *1298-1299. During the Civil War,

Articles 25 and 38 are concerned, this seems obvious for all types of military

"the two jurisdictions of the earlier commission and council respectively . . . [were]
united in the . . . war court, for which the general designation of 'military
commission' was retained as the preferable one."

tribunals. The same would appear to be true of other Articles also, e.g., 24,
(prohibiting compulsory self-incrimination), 26, 27, 32 (contempts), all except the
last dealing with procedural matters.

Article 12 is especially significant. It empowers general courts-martial to try two

from his 1916 statement, after stating expressly the purpose of Article 15 to

classes of offenders: (1) "any person subject to military law," under the definition

preserve unimpaired the military commission's jurisdiction, and to make it

of Article 2, for any offense "made punishable by these articles;" (2) "and any other

concurrent with that of courts-martial insofar as the two would overlap, "so that

person who by the law of war is subject to trial by military tribunals," not covered

the military commander in the field in time of war will be at liberty to employ

by the terms of Article 2. (Emphasis added.)

either form of court that happens to be convenient," he went on to say: "Both


classes of courts have the same procedure," a statement so unequivocal as to leave

Article 12 thus, in conformity with Article 15, gives the general court-martial

no room for question. And his quotation from Winthrop supports his statement,

concurrent jurisdiction of war crimes and war criminals with military

namely: "Its (i.e., the military commission's) composition, constitution and

commissions. Neither it nor any other Article states or indicates there are to

procedure follow the analogy of courts-martial."

be two kinds of general courts-martial for trying war crimes; yet


At no point in the testimony is there suggestion that there are two types of military
Page 327 U. S. 69

commission, one bound by

this is the necessary result of the Court's decision, unless, in the alternative, that

Page 327 U. S. 70

would be to imply that, in exercising such jurisdiction, there is only one kind of
general court-martial, but there are two or more kinds of military commission,

the procedural provisions of the Articles, the other wholly free from their

with wholly different procedures and with the result that "the commander in the

restraints, or, as the Court strangely puts the matter, that there is only one kind of

field" will not be free to determine whether general court-martial or military

commission, but that it is bound or not bound by the Articles applicable in terms,

commission shall be used as the circumstances may dictate, but must govern his

depending upon who is being tried and for what offense; for that very difference

choice by the kind of procedure he wishes to have employed.

makes the difference between one and two. The history and the discussion show
conclusively that General Crowder wished to secure, and Congress intended to

The only reasonable and, I think, possible conclusion to draw from the Articles is

give, statutory recognition to all forms of military tribunals; to enable commanding

that the Articles which are in terms applicable to military commissions are so

officers in the field to use either court-martial or military commission as

uniformly, and those applicable to both such commissions and to courts-martial

convenience might dictate, thus broadening to this extent the latter's jurisdiction

when exercising jurisdiction over offenders against the laws of war likewise are

and utility; but, at the same time, to preserve its full preexisting jurisdiction, and

uniformly, applicable, and not diversely according to the person or offense being

also to lay down identical provisions for governing or providing for the government

tried.

of the procedure and rules of evidence of every type of military tribunal, wherever

Not only the face of the Articles, but specific statements in General Crowder's
testimony support this view. Thus, in the portion quoted above [Footnote 2/34]

and however constituted. [Footnote 2/35]

Page 327 U. S. 71

If the provisions of Articles 25 and 38 were not applicable to the proceeding by


their own force as Acts of Congress, I think they would still be made applicable by

Finally, unless Congress was legislating with regard to all military commissions,

virtue of the terms of the Geneva Convention of 1929, in particular, Article 63. And

Article 38, which gives the President the power to "prescribe the procedure,

in other respects, in my opinion, the petitioner's trial was not in accord with that

including modes of proof, in cases before courts-martial, courts of inquiry, military

treaty, namely with Article 60.

commissions, and other military tribunals" takes on a rather senseless meaning,


for the President would have such power only with respect to those military

The Court does not hold that the Geneva Convention is not binding upon the

commissions exercising concurrent jurisdiction with courts-martial.

United States, and no such contention has been made in this case. [Footnote 2/36]
It relies on other

All this seems so obvious upon a mere reading of the Articles themselves and the
legislative history as not to require demonstration. And all this Congress knew, as

Page 327 U. S. 73

that history shows. In the face of that showing, I cannot accept the Court's highly
strained construction, first, because I think it is in plain contradiction of the facts

arguments to show that Article 60, which provides that the protecting power shall

disclosed by the history of Articles 15, 25 and 38 as well as their language, and also

be notified in advance of a judicial proceeding directed against a prisoner of war,

because that construction defeats at least two of the ends General Crowder had in

and Article 63, which provides that a prisoner of war may be tried only by the same

mind -- namely, to secure statutory recognition for every form of military tribunal

courts and according to the same procedure as in the case of persons belonging to

and to provide for them a basic uniform

the armed forces of the detaining power, are not properly invoked by the
petitioner. Before considering the Court's view that these Articles are not

Page 327 U. S. 72

applicable to this proceeding by their terms, it may be noted that, on his surrender,
petitioner was interned in conformity with Article 9 of this Convention.

mode of procedure or method of providing for their procedure.


Page 327 U. S. 74
Accordingly, I think Articles 25 and 38 are applicable to this proceeding; that the
provisions of the governing directive in Section 16 are in direct conflict with those

The chief argument is that Articles 60 and 63 have reference only to offenses

Articles, and, for that reason, the commission was invalidly constituted, was

committed by a prisoner of war while a prisoner of war, and not to violations of the

without jurisdiction, and its sentence is therefore void.

law of war committed while a combatant. This conclusion is derived from the

V
The Geneva Convention of 1929

setting in which these articles are placed. I do not agree that the context gives any
support to this argument. The argument is, in essence, of the same type as the
argument the Court employs to nullify the application of Articles 25 and 38 of the

Articles of War by restricting their own broader coverage by reference to Article 2.

compliance with such treaties, except in the case of political questions. This is

For reasons set forth in the margin, [Footnote 2/37] I think it equally invalid here.

especially true where the treaty has provisions -- such as Article 60 -- for the
protection of a man being tried for an offense the punishment for which is death;

Page 327 U. S. 76
Neither Article 60 nor Article 63 contains such a restriction of meaning as the
Court reads into it. [Footnote 2/38] In the absence of any such limitation, it would
seem that they were intended to cover all judicial proceedings, whether instituted
for crimes allegedly committed before capture or later. Policy supports this view.
For such a construction is require for the security of our own soldiers, taken

for to say that it was intended to provide for enforcement of such provisions solely
by claim, after breach, of indemnity would be, in many instances, especially those
involving trial of nationals of a defeated nation by a conquering one, to deprive the
Articles of all force. Executed men are not much aided by post-war claims for
indemnity. I do not think the adhering powers' purpose was to provide only for
such ineffective relief.

prisoner, as much as for that of prisoners we take. And the opposite one leaves

Finally, the Government has argued that Article 60 has no application after the

prisoners of war open to any form of trial and punishment for offenses against the

actual cessation of hostilities, as there is no longer any need for an intervening

law of war their captors may wish to use, while safeguarding them, to the extent of

power between the two belligerents. The premise is that Japan no longer needs

the treaty limitations, in cases of disciplinary offense. This, in many instances,

Switzerland to intervene with the United

would be to make the treaty strain at a gnat and swallow the camel.
Page 327 U. S. 78
The United States has complied with neither of these Articles. It did not notify the
protecting power of Japan in advance of trial, as Article 60 requires it to do,

States to protect the rights of Japanese nationals, since Japan is now in direct

although the supplemental bill charges the same failure to petitioner

communication with this Government. This, of course, is in contradiction of the


Government's theory, in other connections, that the war is not over, and military

Page 327 U. S. 77

necessity still requires use of all the power necessary for actual combat.

in Item 89. [Footnote 2/39] It is said that, although this may be true, the

Furthermore the premise overlooks all the realities of the situation. Japan is a

proceeding is not thereby invalidated. The argument is that our noncompliance

defeated power, having surrendered, if not unconditionally, then under the most

merely gives Japan a right of indemnity against us, and that Article 60 was not

severe conditions. Her territory is occupied by American military forces. She is

intended to give Yamashita any personal rights. I cannot agree. The treaties made

scarcely in a position to bargain with us or to assert her rights. Nor can her

by the United States are, by the Constitution, made the supreme law of the land. In

nationals. She no longer holds American prisoners of war. [Footnote 2/40]

the absence of something in the treaty indicating that its provisions were not

Certainly, if there was the need of an independent neutral to protect her nationals

intended to be enforced, upon breach, by more than subsequent indemnification, it

during the war, there is more now. In my opinion the failure to give the notice

is, as I conceive it, the duty of the courts of this country to insure the nation's

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

affirm that he has some, if but little, constitutional protection. Nor does the Court

observe the obligations of our law.

defend what was done. I think the effect of what it does is in substance to deny him
all such safeguards. And this is the great issue in the cause.

What is more important, there was no compliance with Article 63 of the same
Convention. Yamashita was not tried "according to the same procedure as in the

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

case of persons belonging to the armed forces of the detaining Power." Had one of

rear are not in the sum of protections surrounding jury trials or any other

our soldiers or officers been tried for alleged war crimes, he would have been

proceeding known to our law. Nor is the essence of the Fifth Amendment's

entitled to the benefits of the Articles of War. I think that Yamashita was equally

elementary protection comprehended in any single one of our time-honored

entitled to the same protection. In any event, he was entitled to their benefits

specific constitutional safeguards in trial, though there are some without which the

under the provisions of Article 63 of the Geneva Convention. Those benefits he did

words "fair trial" and all they cannot become a mockery.

not receive. Accordingly, his trial was in violation of the Convention.


Apart from a tribunal concerned that the law as applied shall be an instrument of
VI
The Fifth Amendment

justice, albeit stern in measure to the guilt established, the heart of the security lies
in two things. One is that conviction shall not rest in any essential part upon
unchecked rumor, report, or the results of the prosecution's ex

Wholly apart from the violation of the Articles of War and of the Geneva

parte investigations, but shall stand on proven fact; the other, correlative, lies in a

Convention, I am completely unable to

fair chance to defend. This embraces at the least the rights to know with reasonable
clarity in advance of the trial the exact nature of the offense with which one is to be

Page 327 U. S. 79

charged; to have reasonable time for preparing to meet the charge, and to have the
aid of counsel in doing so, as also in the

accept or to understand the Court's ruling concerning the applicability of the due
process clause of the Fifth Amendment to this case. Not heretofore has it been held

Page 327 U. S. 80

that any human being is beyond its universally protecting spread in the guaranty of
a fair trial in the most fundamental sense. That door is dangerous to open. I will

trial itself, and if, during its course, one is taken by surprise, through the injection

have no part in opening it. For, once it is ajar, even for enemy belligerents, it can be

of new charges or reversal of rulings which brings forth new masses of evidence,

pushed back wider for others, perhaps ultimately for all.

then to have further reasonable time for meeting the unexpected shift.

The Court does not declare expressly that petitioner, as an enemy belligerent, has

So far as I know, it has not yet been held that any tribunal in our system, of

no constitutional rights, a ruling I could understand, but not accept. Neither does it

whatever character, is free to receive "such evidence as in its opinion would be of


assistance in proving or disproving the charge" or, again as in its opinion, "would

have probative value in the mind of a reasonable man;" and, having received what

the military and, on the other hand, that the provisions of the Articles of War, of

in its unlimited discretion it regards as sufficient, is also free to determine what

the Geneva Convention and the Fifth Amendment apply.

weight may be given to the evidence received without restraint. [Footnote 2/41]
I cannot accept the view that anywhere in our system resides or lurks a power so
When to this fatal defect in the directive, however innocently made, are added the

unrestrained to deal with any human being through any process of trial. What

broad departures from the fundamentals of fair play in the proof and in the right to

military agencies or authorities may do with our enemies in battle or invasion,

defend which occurred throughout the proceeding, there can be no

apart from proceedings in the nature of trial and some semblance of judicial action,

accommodation with the due process of law which the Fifth Amendment demands.

is beside the point. Nor has any human being heretofore been held to be wholly
beyond elementary procedural protection by the Fifth Amendment. I cannot

All this the Court puts to one side with the short assertion that no question of due

consent to even implied departure from that great absolute.

process under the Fifth Amendment or jurisdiction reviewable here is presented. I


do not think this meets the issue, standing alone or in conjunction with the

It was a great patriot who said:

suggestion which follows that the Court gives no intimation one way or the other
concerning

"He that would make his own liberty secure must guard even his enemy from
oppression, for if he violates this duty he establishes a precedent that will reach

Page 327 U. S. 81

himself. [Footnote 2/42]"

what Fifth Amendment due process might require in other situations.

MR. JUSTICE MURPHY joins in this opinion.

It may be appropriate to add here that, although without doubt the directive was

[Footnote 2/1]

drawn in good faith in the belief that it would expedite the trial and that enemy
belligerents in petitioner's position were not entitled to more, that state of mind
and purpose cannot cure the nullification of basic constitutional standards which
has taken place.
It is not necessary to recapitulate. The difference between the Court's view of this
proceeding and my own comes down in the end to the view, on the one hand, that
there is no law restrictive upon these proceedings other than whatever rules and
regulations may be prescribed for their government by the executive authority or

Cummings v. Missouri, 4 Wall. 277; Kring v. Missouri, 107 U. S. 221.


[Footnote 2/2]
Armour Packing Co. v. United States, 209 U. S. 56, 209 U. S. 83-84; United States
v. Cohen Grocery Co., 255 U. S. 81, cf. Screws v. United States, 325 U. S.
91. See note 17 and text.
[Footnote 2/3]

Hawk v. Olson, 326 U. S. 271; Snyder v. Massachusetts, 291 U. S. 97, 291 U. S.

See 327 U. S. S. 1fn2/10|>10, 19; 327 U. S.

105: "What may not be taken away is notice of the charge and an adequate
opportunity to be heard in defense of it." See 327 U. S.

[Footnote 2/8]

[Footnote 2/4]

The line of authorization within the military hierarchy extended from the
President, through the Joint Chiefs of Staff and General MacArthur, to General

The commission's findings state:

Styer, whose order of September 25th and others were made pursuant to and in
conformity with General MacArthur's directive. The charge was prepared by the

"We have received for analysis and evaluation 423 exhibits consisting of official

Judge Advocate General's Department of the Army. There is no dispute concerning

documents of the United States Army, the United States State Department, and the

these facts or that the directive was binding on General Styer and the commission,

the Philippines; affidavits; captured enemy documents or translations thereof;

though it is argued his own authority as area commanding general was

diaries taken from Japanese personnel, photographs, motion picture films, and

independently sufficient to sustain what was done.

Manila newspapers."
[Footnote 2/9]
See notes 19 and 20.
"16. Evidence. -- a. The commission shall admit such evidence as in its opinion
Concerning the specific nature of these elements in the proof, the issues to which

would be of assistance in proving or disproving the charge, or such as in the

they were directed, and their prejudicial effects, seetext infra and notes in 327 U. S.

commission's opinion would have probative value in the mind of a reasonable man.

[Footnote 2/5]
Queen v. Hepburn, 7 Cranch. 290; Donnelly v. United States, 228 U. S. 243, 228
U. S. 273. See 327 U. S. note 21.
[Footnote 2/6]
Motes v. United States, 178 U. S. 458, 178 U. S. 471; Paoni v. United States, 281 F.
801. See Parts 327 U. S. S. 56|>III.

In particular, and without limiting in any way the scope of the foregoing general
rules, the following evidence may be admitted:"
"(1) Any document while appears to the commission to have been signed or issued
officially by any officer, department, agency, or member of the armed forces of any
government, without proof of the signature or of the issuance of the document."
"(2) Any report which appears to the commission to have been signed or issued by
the International Red Cross or a member thereof, or by a medical doctor or any
medical service personnel, or by an investigator or intelligence officer, or by any

[Footnote 2/7]

other person whom the commission finds to have been acting in the course of his
duty when making the report."

"(3) Affidavits, depositions, or other statements taken by an officer detailed for that

Namely,

purpose by military authority."


"(1) starvation, execution or massacre without trial, and maladministration
"(4) Any diary, letter or other document appearing to the commission to contain

generally of civilian internees and prisoners of war; (2) torture, rape, murder, and

information relating to the charge."

mass execution of very large numbers of residents of the Philippines, including


women and children and members of religious orders, by starvation, beheading,

"(5) A copy of any document or other secondary evidence of its contents, if the

bayoneting, clubbing, hanging, burning alive, and destruction by explosives; (3)

commission believes that the original is not available or cannot be produced

burning and demolition without adequate military necessity of large numbers of

without undue delay. . . ."

homes, places of business, places of religious worship, hospitals, public buildings,

[Footnote 2/10]
In one instance, the president of the commission said:

and educational institutions. In point of time, the offenses extended throughout


the period the accused was in command of Japanese troops in the Philippines. In
point of area, the crimes extended through the Philippine Archipelago, although by
far he most of the incredible acts occurred on Luzon."

"The rules and regulations which guide this Commission are binding upon the
Commission and agencies provided to assist the Commission. . . . We have been
authorized to receive and weigh such evidence as we can consider to have probative
value, and further comments by the Defense on the right which we have to accept

[Footnote 2/14]
Cf. note 13.

this evidence is decidedly out of order."

[Footnote 2/15]

But see note 19.

In addition, the findings set forth that captured orders of subordinate officers gave

[Footnote 2/11]
Cf. text infra at note 19 concerning the prejudicial character of the evidence.
[Footnote 2/12]
Note 4.

proof that "they at least" ordered acts "leading directly to" atrocities; that
"the proof offered to the Commission alleged criminal neglect . . . as well as
complete failure by the higher echelons of command to detect and prevent cruel
and inhuman treatment accorded by local commanders and guards;"
and that, although "the defense had established the difficulties faced by the
accused" with special reference, among other things, to the discipline and morale

[Footnote 2/13]

of his troops under the "swift and overpowering advance of American forces," and

notwithstanding he had stoutly maintained his complete ignorance of the crimes,

hardly be sufficient to charge "willful and intentional" action or omission; and, if

still he was an officer of long experience; his assignment was one of broad

taken to be sufficient to charge knowledge, it would follow necessarily that the

responsibility; it was his duty "to discover and control" crimes by his troops, if

charge itself was not drawn to state, and was insufficient to support, a finding of

widespread, and therefore

mere failure to detect or discover the criminal conduct of others.

"The Commission concludes: (1) that a series of atrocities and other high crimes

At the most, "permitting" could charge knowledge only by inference or implication.

have been committed by members of the Japanese armed forces under your

And, reasonably, the word could be taken in the context of the charge to mean

command against the people of the United States, their allies, and dependencies

"allowing" or "not preventing" -- a meaning consistent with absence of knowledge

throughout the Philippine Islands; that they were not sporadic in nature, but in

and mere failure to discover. In capital cases, such ambiguity is wholly out of place.

many cases were methodically supervised by Japanese officers and

The proof was equally ambiguous in the same respect, so far as we have been

noncommissioned officers; (2) that, during the period in question, you failed to

informed, and so, to repeat, were the findings. The use of "willfully," even qualified

provide effective control of your troops, as was required by the circumstances."

by a "must have," one time only in the findings hardly can supply the absence of
that or an equivalent word or language in the charge or in the proof to support that

"Accordingly, upon secret written ballot, two-thirds or more of the members

essential element in the crime.

concurring, the Commission finds you guilty as charged and sentences you to death
by hanging."

The charge was as follows:

(Emphasis added.)

"Tomoyuki Yamashita, General Imperial Japanese Army, between 9 October 1944


and 2 September 1945 at Manila and other places in the Philippine Islands, while

[Footnote 2/16]
See note 15.
[Footnote 2/17]

commander of armed forces of Japan at war with the United States of America and
its allies, unlawfully disregarded and failed to discharge his duty as commander to
control the operations of the members of his command, permitting them to
commit brutal atrocities and other high crimes against people of the United States
and of its allies and dependencies, particularly the Philippines, and he, General

The charge, set forth at the end of this note, is consistent with either theory -- or

Tomoyuki Yamashita, thereby violated the laws of war."

both -- and thus ambiguous, as were the findings. Seenote 15. The only word
implying knowledge was "permitting." If "willfully" is essential to constitute a
crime or charge of one, otherwise subject to the objection of "vagueness," cf.
Screws v. United States, 325 U. S. 91, it would seem that "permitting" alone would

[Footnote 2/18]
Cf. Text infra, 327 U. S.

[Footnote 2/19]

(Emphasis added.)

On November 1, early in the trial, the president of the commission stated:

Thereafter, this type of evidence was consistently received, and again by the
undisputed statement of counsel, as the sole proof of many of the specifications of

"I think the Prosecution should consider the desirability of striking certain items.

the bills a procedure which they characterized correctly, in my view, as having, "in

The Commission feels that there must be witnesses introduced on each of the

effect, stripped the proceeding of all semblance of a trial, and converted it into

specifications or items. It has no objection to considering affidavits, but it is

an ex parte investigation."

unwilling to form an opinion of a particular item based solely on an


affidavit. Therefore, until evidence is introduced, these particular exhibits are

[Footnote 2/20]

rejected."
This perhaps consisted in the showing of the so-called "propaganda" film, "Orders
(Emphasis added.)

from Tokyo," portraying scenes of battle destruction in Manila, which counsel say
"was not, in itself, seriously objectionable." Highly objectionable, inflammatory

Later evidence of the excluded type was offered, to introduction of which the

and prejudicial, however, was the accompanying sound track with comment that

defense objected on various grounds, including the prior ruling. At the

the film was "evidence which will convict," mentioning petitioner specifically by

prosecution's urging, the commission withdrew to deliberate. Later, it announced

name.

that,
[Footnote 2/21]
"after further consideration, the Commission reverses that ruling [of November 1]
and affirms its prerogative of receiving and considering affidavits or depositions, if

Innumerable instances of hearsay, once or several times removed, relating to all

it chooses to do so, for whatever probative value the Commission believes they may

manner of incidents, rumors, reports, etc., were among these. Many instances, too,

have, without regard to the presentation of some partially corroborative oral

are shown of the use of opinion evidence and conclusions of guilt, including reports

testimony."

made after ex parte investigations by the War Crimes Branch of the Judge
Advocate General's Department, which it was and is urged had the effect of

It then added:
"The Commission directs the prosecution again to introduce the affidavits or
depositions then in question, and other documents of similar nature which the
prosecution stated has been prepared for introduction."

"putting the prosecution on the witness stand" and of usurping the commission's
function as judge of the law and the facts. It is said also that some of the reports
were received as the sole proof of some of the specifications.
[Footnote 2/22]

Also with Paragraph 82 of the Rules of I and Warfare.

See note 39 and text, 327 U. S.

[Footnote 2/23]

[Footnote 2/26]

Typical of the items are allegations that members of the armed forces of Japan

In support of the motion, counsel indicated surprise by saying that, though it was

under the command of the accused committed the acts

assumed two or three new specifications might be added, there had been no
expectation of 59 "about entirely new persons and times." The statement

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

continued:

mistreating and torturing numerous unarmed noncombatant civilians at the


Japanese Military Police Headquarters located at Cortabitarte and Mabini Streets,

"We have worked earnestly seven days a week in order to prepare the defense on

Manila,"

64 specifications. And when I say 'prepare the defense,' sir, I do not mean merely
an affirmative defense, but to acquaint ourselves with the facts so that we could

and,

properly cross-examine the Prosecution's witnesses."

"On or about 19 February 1945, in the Town of Cuenca, Batangas Province, brutally

". . . 'In advance of trial' means: sufficient time to allow the defense a chance to

mistreating, massacring, and killing Jose M. Laguo, Esteban Magsamdol, Jose

prepare its defense."

Lanbo, Felisa Apuntar, Elfidio Lunar, Victoriana Ramo, and 978 other persons, all
unarmed noncombatant civilians, pillaging and unnecessarily, deliberately, and

"We earnestly state that we must have this time in order adequately to prepare the

wantonly devastating, burning, and destroying large areas of that town."

defense. I might add, sir, we think this is important to the accused, but far more
important than any rights of this accused, we believe, is the proposition that this

[Footnote 2/24]
The supplemental bill contains allegations similar to those set out in the original
bill. See note 23. For example, it charged that members of the armed forces of

Commission should not deviate from a fundamental American concept of


fairness. . . ."
[Footnote 2/27]

Japan under the command of the accused "during the period from 9 October 1944
to about 1 February 1945 at Cavite City, Imus, and elsewhere in Cavite Province,"

The commission went on to question the need for all of the six officers representing

were permitted to commit the acts of "brutally mistreating, torturing, and killing or

the defense to be present during presentation of all the case, suggested one or two

attempting to kill, without cause or trial, unarmed noncombatant civilians."

would be adequate and others "should be out of the courtroom" engaged in other
matters, and strongly suggested bringing in additional counsel in the midst of the

[Footnote 2/25]

trial, all to the end that "need to request continuance may not arise."

[Footnote 2/28]

articles shall be so prescribed: Provided further, That all rules made in pursuance
of this article shall be laid before the Congress annually."

See note 9.
(Emphasis added.) 10 U.S.C. 1509.
[Footnote 2/29]
[Footnote 2/30]
Article 25 is as follows:
Another revision of the Articles of War took place in 1920. At this time, Article 15
"A duly authenticated deposition taken upon reasonable notice to the opposite

was slightly amended.

party may be read in evidence before any military court or commission in any
case not capital, or in any proceeding before a court of inquiry or a military

In 1916 Article 15, 39 Stat. 653, was enacted to read:

board, if such deposition be taken when the witness resides, is found, or is about to
go beyond the State, Territory, or district in which the court, commission, or board

"The provisions of these articles conferring jurisdiction upon courts-martial shall

is ordered to sit, or beyond the distance of one hundred miles from the place of

not be construed as depriving military commissions, provost courts, or other

trial or hearing, or when it appears to the satisfaction of the court, commission,

military tribunals of concurrent jurisdiction in respect of offenders or offenses

board, or appointing authority that the witness, by reason of age, sickness, bodily

that, by the law of war, may be lawfully triable by such military commissions,

infirmity, imprisonment, or other reasonable cause, is unable to appear and testify

provost courts, or other military tribunals."

in person at the place of trial or hearing: Provided, That testimony by deposition


may be adduced for the defense in capital cases."
(Emphasis added.) 10 U.S.C. 1496.
Article 38 reads:
"The President may, by regulations, which he may modify from time to time,
prescribe the procedure, including modes of proof, in cases before courts-martial,
courts of inquiry, military commissions, and other military tribunals, which
regulations shall, insofar as he shall deem practicable, apply the rules of evidence
generally recognized in the trial of criminal cases in the district courts of the
United States: Provided, That nothing contrary to or inconsistent with these

(Emphasis added.)
The 1920 amendment put in the words "by statute or" before the words "by the law
of war" and omitted the word "lawfully."
[Footnote 2/31]
Speaking at the Hearings before the Committee on Military Affairs, House of
Representatives, 62nd Cong., 2d Sess., printed as an Appendix to S.Rep.229, 63rd
Cong., 2d Sess., General Crowder said:
"The next article, No. 15, is entirely new, and the reasons for its insertion in the
code are these: in our War with Mexico, two war courts were brought into existence

by orders of Gen. Scott, viz., the military commission and the council of war. By the

by court-martial, I was afraid that, having made a special provision for their

military commission, Gen. Scott tried cases cognizable in time of peace by civil

court-martial, it might be held that the provision operated to exclude trials by

courts, and by the council of war, he tried offenses against the laws of war.The

military commission and other war courts; so this new article was

council of war did not survive the Mexican War period, and, in our subsequent

introduced. . . ."

wars, its jurisdiction has been taken over by the military commission, which,
during the Civil War period, tried more than 2,000 cases. While the military

"It just saves to these war courts the jurisdiction they now have and makes it a

commission has not been formally authorized by statute, its jurisdiction as a war

concurrent jurisdiction with courts-martial, so that the military commander in

court has been upheld by the Supreme Court of the United States. It is an

the field in time of war will be at liberty to employ either form of court that

institution of the greatest importance in a period of war, and should be

happens to be convenient. Both classes of courts have the same procedure. For the

preserved. In the new code, the jurisdiction of courts-martial has been somewhat

information of the committee and in explanation of these war courts to which I

amplified by the introduction of the phrase 'Persons subject to military law.'

have referred, I insert here an explanation from Winthrop's Military Law and

There will be more instances in the future than in the past when the jurisdiction of

Precedents --"

courts-martial will overlap that of the war courts, and the question would arise
whether Congress having vested jurisdiction by statute the common law of
war jurisdiction was not ousted. I wish to make it perfectly plain by the new
article that, in such cases, the jurisdiction of the war court is concurrent."
S.Rep. No.229, 63rd Cong., 2d Sess., p. 53. (Emphasis added.)

" The military commission -- a war court -- had its origin in G.O. 20, Headquarters
of the Army at Tampico, February 19, 1847 (Gen. Scott). Its jurisdiction was
confined mainly to criminal offenses of the class cognizable by civil courts in time
of peace committed by inhabitants of the theater of hostilities. A further war court
was originated by Gen. Scott at the same time, called 'council of war,' with
jurisdiction to try the same classes of persons for violations of the laws of war,

And later, in 1916, speaking before the Subcommittee on Military Affairs of the

mainly guerillas. These two jurisdictions were united in the later war court of the

Senate at their Hearings on S.3191, a project for the revision of the Articles of War,

Civil War and Spanish War periods, for which the general designation of 'military

64th Cong., 1st Sess., printed as an Appendix to S.Rep.230, 64th Cong., 1st Sess.,

commission' was retained. The military commission was given statutory

General Crowder explained at greater length:

recognition in section 30, act of March 3, 1863, 12 Stat. 736, and in various other
statutes of that period. The United States Supreme Court has acknowledged the

"Article 15 is new. We have included in article 2 as subject to military law a number

validity of its judgments (Ex parte Vallandingham, 1 Wall. 243 and Coleman v.

of persons who are also subject to trial by military commissions. A military

Tennessee, 97 U. S. 509). It tried more than 2,000 cases during the Civil War and

commission is our common law war court. It has no statutory existence, though it

reconstruction period. Its composition, constitution, and procedure follows the

is recognized by statute law. As long as the articles embraced them in the

analogy of courts-martial. Another war court is the provost court, an inferior

designation 'persons subject to military law,' and provided that they might be tried

court with jurisdiction assimilated to that of justices of the peace and police courts,

and other war courts variously designated 'courts of conciliation,' 'arbitrators,'

[Footnote 2/33]

'military tribunals' have been convened by military commanders in the exercise of


the war power as occasion and necessity dictated."

Winthrop, speaking of military commissions at the time he was writing, 1896, says:

" Yet, as I have said, these war courts never have been formally authorized by

"The offences cognizable by military commissions may thus be classed as follows:

statute."

(1) Crimes and statutory offences cognizable by State or U.S. courts, and which
would properly be tried by such courts if open and acting; (2) Violations of the

" Senator Colt: They grew out of usage and necessity?"

laws and usages of warcognizable by military tribunals only; (3) Breaches of


military orders or regulations for which offenders are not legally triable by court-

" Gen. Crowder: Out of usage and necessity. I thought it was just as well, as

martial under the Articles of War."

inquiries would arise, to put this information in the record."


(Emphasis added.) Winthrop at *1309. And cf. Fairman, The Law of Martial Rule
S.Rep. No.130, 64th Cong., 1st Sess. (1916) p. 40. (Emphasis added.)

(2d ed.1943):

Article 15 was also explained in the "Report of a committee on the proposed

"Military commissions take cognizance of three categories of criminal

revision of the articles of war, pursuant to instructions of the Chief of Staff, March

cases: offenses against the laws of war, breaches of military regulations, and civil

10, 1915," included in Revision of the Articles of War, Comparative Prints, Etc.,

crimes which, where the ordinary courts have ceased to function, cannot be tried

1904-1920. J.A.G.O., as follows:

normally."

"A number of articles . . . of the revision have the effect of giving courts-martial

(Emphasis added.) Fairman, 265-266. See also Davis, A Treatise on the Military

jurisdiction over certain offenders and offenses which, under the law of war or by

Law of the United States (1915) 309, 310.

statute, are also triable by military commissions, provost courts, etc. Article 15 is
introduced for the purpose of making clear that, in such cases, a court martial has

[Footnote 2/34]

only a concurrent jurisdiction with such war tribunals."


Note 31.
[Footnote 2/32]
[Footnote 2/35]
Of course, Articles 25 and 38, at the same time that they gave protection to
defendants before military commissions, also provided for the application by such

In addition to the statements of General Crowder with relation to Article 15, set out

tribunals of modern rules of procedure and evidence.

in note 31, supra, see the following statements made with reference to Article 25 in
1912 at a hearing before the Committee on Military Affairs of the House:

"We come now to article 25, which relates to the admissibility of depositions. . . . It

commission, court of injury, or board, or before any officer conducting an

will be noted further that the application of the old article has been broadened to

investigation." This article was drafted so that "The prohibition should reach all

include military commissions, courts of inquiry, and military boards."

witnesses, irrespective of the class of military tribunal before which they


appear. . . ." (Emphasis added.) Comparative Print showing S.3191 with the Present

"Mr. SWEET. Please explain what you mean by military commission."


"Gen. CROWDER. That is our common law of war court, and was referred to by me
in a prior hearing. [The reference is to the discussion of Article 15.] This war court
came into existence during the Mexican War, and was created by orders of Gen.

Articles of War and other Related Statutes, and Explanatory Notes, Printed for use
of the Senate Committee on Military Affairs, 64th Cong., 1st Sess., 17, included in
Revision of the Articles of War, Comparative Prints, Etc., 1904-1920, J.A.G.O.
[Footnote 2/36]

Scott. It had jurisdiction to try all cases usually cognizable in time of peace by civil
courts. Gen. Scott created another war court, called the 'council of war,' with

We are informed that Japan has not ratified the Geneva

jurisdiction to try offenses against the laws of war. The constitution, composition,

Convention. See discussion of Article 82 in the paragraphs below. We are also

and jurisdiction of these courts have never been regulated by statute. The council

informed, however -- and the record shows this at least as to Japan -- that, at the

of war did not survive the Mexican War period, since which its jurisdiction has

beginning of the war, both the United States and Japan announced their intention

been taken over by the military commission. The military commission received

to adhere to the provisions of that treaty. The force of that understanding

express recognition in the reconstruction acts, and its jurisdictionhas been

continues, perhaps with greater reason, if not effect, despite the end of

affirmed and supported by all our courts. It was extensively employed during the

hostilities. See note 40 and text.

Civil War period and also during the Spanish-American War. It is highly desirable
that this important war court should be continued to be governed as heretofore, by
the laws of war, rather than by statute."
S.Rep. No.229, 63d Cong., 2d Sess., 59; cf. S.Rep. 130, 64th Cong., 1st Sess., 54-55.
(Emphasis added.) See also Hearings before the Subcommittee of the Committee
on Military Affairs of the Senate on Establishment of Military Justice, 66th Cong.,
1st Sess., 1182-1183.
Further evidence that procedural provisions of the Articles were intended to apply
to all forms of military tribunal is given by Article 24, 10 U.S.C. 1495, which
provides against compulsory self-incrimination "before a military court,

Article 82 provides:
"The provisions of the present Convention must be respected by the High
Contracting Parties under all circumstances."
"In case, in time of war, one of the belligerents is not a party to the Convention, its
provisions shall nevertheless remain in force as between the belligerents who are
parties thereto."
It is not clear whether the Article means that, during a war, when one of the
belligerents is not a party to the Convention, the provisions must nevertheless be
applied by all the other belligerents to the prisoners of war not only of one another,

but also of the power that was not a party thereto, or whether it means that they

of a binding treaty which codifies them. See U.S. War Dep't Basic Field Manual,

need not be applied to soldiers of the nonparticipating party who have been

Rules of Land Warfare (1940), par. 5-b.

captured. If the latter meaning is accepted, the first paragraph would seem to
contradict the second.

[Footnote 2/37]

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

Title III of the Convention, which comprises Articles 7 to 67, is called "Captivity." It

on war prisoners drawn up in advance of the Geneva meeting by the International

contains Section I, "Evacuation of Prisoners of War" (Articles 7, 8); Section II,

Committee of the Red Cross (Actes de la Conference Diplomatique de Geneve,

"Prisoners-of-War Camps" (Articles 9-26); Section III, "Labor of Prisoners of War"

edited by Des Gouttes, pp. 21-34) provided in Article 92 that the provisions of the

(Articles 27-34); Section IV, "External Relations of Prisoners of War" (Articles 35-

Convention

41), and Section V, "Prisoners' Relations with the Authorities" (Articles 42-67).
Thus, Title III regulates all the various incidents of a prisoner of war's life while in

"ne cesseront d'etre obligatories qu'au cas ou l'un des Etats belligerents participant

captivity.

a la Convention se trouve avoir a combattre les forces armees d'un autre Etat que
n'y serait par parties at a l'egard de cet Etat seulement."

Section V, with which we are immediately concerned, is divided into three


chapters. Chapter 1 (Article 42) gives a prisoner of war the right to complain of his

See Rasmussen, Code des Prisonniers de Guerre (1931) 70. The fact that this

condition of captivity. Chapter 2 (Articles 43-44) gives prisoners of war the right to

suggested article was not included in the Geneva Convention would indicate that

appoint agents to represent them. Chapter 3 is divided into three subsections, and

the nations in attendance were avoiding a decision on this problem. But I think it

is termed "Penalties Applicable to Prisoners of War." Subsection 1 (Articles 45-53)

shows more -- that is, it manifests an intention not to foreclose a future holding

contains various miscellaneous articles to be considered in detail later. Subsection

that, under the terms of the Convention, a state is bound to apply the provisions to

2 (Articles 54-59) contains provisions with respect to disciplinary punishments.

prisoners of war of nonparticipating state. And not to foreclose such a holding is to

And subsection 3 (Articles 60-67), which is termed "Judicial Suits," contains

invite one. We should, in my opinion, so hold, for reasons of security to members

various provisions for protection of a prisoner's rights in judicial proceedings

of our own armed forces taken prisoner, if for no others.

instituted against him.

Moreover, if this view is wrong and the Geneva Convention is not strictly binding

Thus, subsection 3, which contains Articles 60 and 63, as opposed to subsection 2,

upon the United States as a treaty, it is strong evidence of and should be held

of Chapter 3, is concerned not with mere problems of discipline, as is the latter, but

binding as representing what have become the civilized rules of international

with the more serious matters of trial leading to imprisonment or possible sentence

warfare. Yamashita is as much entitled to the benefit of such rules as to the benefit

of death; cf.Brereton, The Administration of Justice Among Prisoners of War by


Military Courts (1935) 1 Proc. Australian & New Zealand Society of International

Law 143, 153. The Court, however, would have the distinction between subsection 2

"Judicial proceedings against prisoners of war shall be conducted as rapidly as the

and subsection 3 one between minor disciplinary action against a prisoner of war

circumstances permit; preventive imprisonment shall be limited as much as

for acts committed while a prisoner and major judicial action against a prisoner of

possible."

war for acts committed while a prisoner. This narrow view not only is highly
strained, confusing the different situations and problems treated by the two

Thus, at the most, subjection 1 contains, in some of its articles, the same

subdivisions. It defeats the most important protections subsection 3 was intended

ambiguities, and is open to the same problem, that we are faced with in construing

to secure, for our own as well as for enemy captive military personnel.

Articles 60 and 63. It cannot be said therefore that all of chapter 3, and especially
subsection 3, relate only to acts committed by prisoners of war after capture, for

At the most, there would be logic in the Court's construction if it could be said that

the meaning of subsection 3, in this argument, is related to the meaning of

all of Chapter 3 deals with acts committed while a prisoner of war. Of course,

subsection 1, and subsection 1 is no more clear restricted to punishments and

subsection 2 does, because of the very nature of its subject matter. Disciplinary

proceedings in disciplinary matters than is subsection 3.

action will be taken by a captor power against prisoners of war only for acts
committed by prisoners after capture.

[Footnote 2/38]

But it is said that subsection 7 deals exclusively with acts committed by a prisoner

Article 60 pertinently is as follows:

of war after having become a prisoner, and this indicates subsection 3 is limited
similarly. This ignores the fact that some of the articles in subsection 1 appear, on
their face, to apply to all judicial proceedings for whatever purpose instituted.
Article 46, for example, provides in part:
"Punishments other than those provided for the same acts for soldiers of the
national armies may not be imposed upon prisoners of war by the military

"At the opening of a judicial proceeding directed against a prisoner of war, the
detaining Power shall advise the representative of the protecting Power thereof as
soon as possible, and always before the date set for the opening of the trial."
"This advice shall contain the following information:"
"a) Civil state and rank of prisoner;"

authorities and courts of the detaining Power."


"b) Place of sojourn or imprisonment;"
This seems to refer to war crimes as well as to other offenses, for surely a country
cannot punish soldiers of another army for offenses against the law of war when it

"c) Specification of the [count] or counts of the indictment, giving the legal

would not punish its own soldiers for the same offences. Similarly, Article 47 in

provisions applicable."

subsection 1 appears to refer to war crimes as well as to crimes committed by a


prisoner after his capture. It reads in part:

"If it is not possible to mention in that advice the court which will pass upon the
matter, the date of opening the trial, and the place where it will take place, this

information must be furnished to the representative of the protecting Power later,

the directive commanded and the commission followed out, lies "in the

as soon as possible, and at all events at least three weeks before the opening of the

Commission's opinion," whether that be concerning the assistance the "evidence"

trial."

tendered would give in proving or disproving the charge or as it might think would
"have value in the mind of a reasonable man." Nor is it enough to establish the

Article 63 reads:
"Sentence may be pronounced against a prisoner of war only by the same courts
and according to the same procedure as in the case of persons belonging to the

semblance of a constitutional right that the commission declares, in receiving the


evidence, that it comes in as having only such probative value, if any, as the
commission decides to award it and this is accepted as conclusive.

armed forces of the detaining Power."

[Footnote 2/42]

[Footnote 2/39]

2 The Complete Writings of Thomas Paine (edited by Foner, 1945) 588.

Item 89 charged the armed forces of Japan with subjecting to trial certain named

In re Yamashita case brief

and other prisoners of war


"without prior notice to a representative of the protecting power, without
opportunity to defend, and without counsel; denying opportunity to appeal from
the sentence rendered; failing to notify the protecting power of the sentence
pronounced, and executed a death sentence without communicating to the
representative of the protecting power the nature and circumstances of the offense
charged."
[Footnote 2/40]
Nations adhere to international treaties regulating the conduct of war at least in
part because of the fear of retaliation. Japan no longer has the means of retaliating.
[Footnote 2/41]
There can be no limit either to the admissibility or the use of evidence if the only
test to be applied concerns probative value and the only test of probative value, as

In re Yamashita
U.S. Supreme Court
327 U.S. 1, 13-16, 28, 34-35 (1946)
FACTS
After World War II, Japanese General Tomoyuki Yamashita was tried before a U.S.
military tribunal in Manilla for war crimes committed by troops under his
command.
-U.S. claimed that D failed to discharge his duty as a commander to control the
operations of the members of his command, allowing them to commit brutal
atrocities and other high crimes against the U.S. and allies and was in violation of
laws of war.
ISSUE
Does the law of war impose upon an army commander to take appropriate
measures to control his troops for prevention of violations of the law of war which
are likely to attend occupation of hostile territory, and whether he may be charged
with personal responsibility for the failure to take such measures when violations
result?
HOLDING
There is an affirmative duty to take such measures as were in his power and
appropriate in the circumstances to protect prisoners of war and civilians.
DISCUSSION
Purpose of the law is to protect civilians and prisoners of war from brutality.

Fourth Hague Convention of 1907: Armed force must be commanded by a person


responsible for his subordinates.

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