Republic of the Philippines

SUPREME COURT
Manila

EN BANC

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

CO KIM CHAM (alias CO KIM CHAM), petitioner,
vs.
EUSEBIO VALDEZ TAN KEH and ARSENIO P. DIZON, Judge of First Instance of Manila, respondents.1

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

FERIA, J.:

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

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

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

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

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

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

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

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

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

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

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

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

We shall now proceed to consider the first question, that is, whether or not under the rules of international law the
judicial acts and proceedings of the courts established in the Philippines under the Philippine Executive Commission
and the Republic of the Philippines were good and valid and remained good and valid even after the liberation or
reoccupation of the Philippines by the United States and Filipino forces.

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

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

Speaking of government "de facto" of the second kind, the Supreme Court of the United States, in the case of
Thorington vs. Smith (8 Wall., 1), said: "But there is another description of government, called also by publicists a

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

The powers and duties of de facto governments of this description are regulated in Section III of the Hague
Conventions of 1907, which is a revision of the provisions of the Hague Conventions of 1899 on the same subject of
said Section III provides "the authority of the legislative power having actually passed into the hands of the
occupant, the latter shall take steps in his power to reestablish and insure, as far as possible, public order and
safety, while respecting, unless absolutely prevented, the laws in force in the country."

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

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

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

the same general laws for the administration of justice and protection of private rights. were without blame 'except when proved to have been entered into with actualintent to further invasion or insurrection:'" and "That judicial and legislative acts in the respective states composing the so-called Confederate States should be respected by the courts if they were not hostile in their purpose or mode of enforcement to the authority of the National Government. when they invaded France in 1870. those laws alone determine the legality or illegality of its acts. p. issued on January 23. in every department of administration and of every rank. it was held that "the central government established for the insurgent States differed from the temporary governments at Castine and Tampico in the circumstance that its authority did no originate in lawful acts of regular war. 2186-93. where they were not hostile in their purpose or mode of enforcement to the authority of the National Government. Lockhart (17 Wall. S. 388.the supervision of the American Commander in Chief." And the same court. 657): "The existence of a state of insurrection and war did not loosen the bonds of society. this. note 2. In the case of William vs. 570. he retained the existing administration under the general direction of a french official (Langfrey History of Napoleon. less actual or less supreme. apparently established and organized as a sovereign state independent from any other government by the Filipino people. in the same case of Thorington vs. And we think that it must be classed among the governments of which these are examples. ed. is of no consequence. Its character is the same and the source of its authority the same. and did not impair the rights of citizens under the Constitution. . was a civil government established by the military forces of occupation and therefore a de facto government of the second kind. in truth and reality.. As we said in Horn vs. and did not impair the rights of citizens under the Constitution'. and the transfer and descent of property regulated. authorized the local authorities to continue the exercise of their functions. and so far it concerns the inhabitants of such territory or the rest of the world. or by the United States in Tampico. 2. precisely as in the time of peace.. and because transactions in the ordinary course of civil society as organized within the enemy's territory although they may have indirectly or remotely promoted the ends of the de facto or unlawful government organized to effect a dissolution of the Union. which was organized by Order No. which had existed in the States prior to the rebellion. on the account. Mexico. 192)." In view of the foregoing. 209. Hall. 25). S. that we are aware of. they are. As far as the Acts of the States do not impair or tend to impair the supremacy of the national authority. As Halleck says. a government established by the . in the case of Baldy vs. at least in Alsace and Lorraine. 307.. The Germans. or the just rights of citizens under the Constitution. The same doctrine has been asserted in numerous other cases. (Wellington Despatches. held: "That what occured or was done in respect of such matters under the authority of the laws of these local de facto governments should not be disregarded or held to be invalid merely because those governments were organized in hostility to the Union established by the national Constitution. discussing the validity of the acts of the Confederate States. International Law. 1. on invading France." (Richardson's Messages and Papers of President. . Smith. or do away with civil government or the regular administration of the laws. the Supreme Court of the United States. it is evident that the Philippine Executive Commission. No one. In 1806. said: "The same general form of government. p. property protected. 400). remained during its continuance and afterwards. 1942. (Calvo." (Vol. but it was not. in the same way. 466. the Duke of Willington. nor destroy the bonds of society nor do away with civil government or the regular administration of the laws. pars. estates settled. 505. Maine. in general. 7th ed. Bruffy (96 U.) The so-called Republic of the Philippines. 176. recognized the government set up by the Confederate States as a de factogovernment. when Napoleon occupied the greater part of Prussia.. because the existence of war between the United States and the Confederate States did not relieve those who are within the insurrectionary lines from the necessity of civil obedience. p. crime prosecuted. marriages celebrated. was. by the Commander of the Japanese forces. Order was to be preserved. and. supra. on the other hand. IV. In that case. the Supreme Court of the United States. X. 21 Law. apparently without appointing an English superior. In either case it is a government imposed by the laws of war. Hunter (171 U. It is of little consequence whether such government be called a military or civil government.) The fact that the Philippine Executive Commission was a civil and not a military government and was run by Filipinos and not by Japanese nationals. appointed their own officials. XI. It was not different from the government established by the British in Castine. and is subject to all restrictions which that code imposes. 1. to be treated as valid and binding. "The government established over an enemy's territory during the military occupation may exercise all the powers given by the laws of war to the conqueror over the conquered.). contracts enforced. seriously questions the validity of judicial or legislative Acts in the insurrectionary States touching these and kindered subjects. .) As to "de facto" government of the third kind. police regulations maintained.

the whole social life of a community would be paralyzed by an invasion. above quoted. Downes vs. and. based upon neither the free expression of the people's will nor the sanction of the Government of the United States. International Law. It was established under the mistaken belief that by doing so. governing the Islands until possession thereof was surrendered to the United States on February 22. . 9 Cranch. 416). 615. and similar to the short-lived government established by the Filipino insurgents in the Island of Cebu during the Spanish-American war. by virtue of the well-known principle of postliminy (postliminium) in international law. being essentially provisional. . and the various acts done during the same time by private persons under the sanction of municipal law. and the ultimate source of its authority was the same — the Japanese military authority and government. the belligerent occupation. but which might. Japan would secure the cooperation or at least the neutrality of the Filipino people in her war against the United States and other allied nations. S 20. it would have been a de facto government similar to that organized by the confederate states during the war of secession and recognized as such by the by the Supreme Court of the United States in numerous cases. 1943. United States vs. postliminy applies. notably those of Thorington vs. that the government of a country in possession of belligerent forces in insurrection or rebellion against the parent state. 9 Howard. And as such.) The formation of the Republic of the Philippines was a scheme contrived by Japan to delude the Filipino people into believing in the apparent magnanimity of the Japanese gesture of transferring or turning over the rights of government into the hands of Filipinos. remain good. 'called also by publicists a government de facto. when they are not of a political complexion. 1898. and shortly afterwards.) And when the occupation and the abandonment have been each an incident of the same war as in the present case.. 345. "under enemy duress. Hunter. As General MacArthur stated in his proclamation of October 23. Were it otherwise. remained good and valid after the liberation or reoccupation of the Philippines by the American and Filipino forces under the leadership of General Douglas MacArthur. United States (299 U. recognized as a de facto government by the Supreme Court of the United States in the case of McCleod vs. Williams vs. the Spanish forces evacuated the Island of Cebu on December 25. having first appointed a provisional government. Thus judicial acts done under his control. formerly in insurrection against Spain. which for one reason or another it is within his competence to do. Page.. It was of the same character as the Philippine Executive Commission. even though the occupant has acted as conqueror and for the time substituted his own sovereignty as the Japanese intended to do apparently in granting independence to the Philippines and establishing the so-called Republic of the Philippines. except in a very few cases. a portion of which has been already quoted. 7th ed. which are not of a political complexion. took possession of the Islands and established a republic. For it is a well-established doctrine in International Law. — it would be hard for example that payment of taxes made under duress should be ignored. even if the Republic of the Philippines had been established by the free will of the Filipino who. International Law. Bidwell. 191. were good and valid. Bruffy. and Badlyvs. Smith. and the occupation thereof by the Japanese forces of invasion. p. rests upon the same principles as that of a territory occupied by the hostile army of an enemy at regular war with the legitimate power. And the said Supreme Court held in that case that "such government was of the class of de facto governments described in I Moore's International Law Digest. the fact that a territory which has been occupied by an enemy comes again into the power of its legitimate government of sovereignty. 4 Wheat. the Filipino people. the Filipinos. 1898. 603. According to that well-known principle in international law. or recognize the latent sovereignty of. to the extent that they take effect during the continuance of his control. and it would be contrary to the general interest that the sentences passed upon criminals should be annulled by the disappearance of the intrusive government . and as between the state and the individuals the evil would be scarcely less." Japan had no legal power to grant independence to the Philippines or transfer the sovereignty of the United States to. The governments by the Philippine Executive Commission and the Republic of the Philippines during the Japanese military occupation being de facto governments.belligerent occupant or the Japanese forces of occupation. Boyle. administrative acts so done. such government would have been considered as one established by the Filipinos in insurrection or rebellion against the parent state or the Unite States. . (Thirty Hogshead of Sugar vs.) . . '. had organized an independent government under the name with the support and backing of Japan. does not serve to transfer sovereignty over the territory controlled although the de juregovernment is during the period of occupancy deprived of the power to exercise its rights as such. a so-called government styled as the 'Republic of the Philippines' was established on October 14. 246. S. be more aptly denominated a government of paramount force . S. According to the facts in the last-named case. "does not. Rice." (Hall. recognized in Article 45 of the Hauge Conventions of 1907 (which prohibits compulsion of the population of the occupied territory to swear allegiance to the hostile power). Fleming vs.. (Taylor. perhaps. 518. 1944. 182 U.. it necessarily follows that the judicial acts and proceedings of the courts of justice of those governments. p. wipe out the effects of acts done by an invader. Indeed. taking advantage of the withdrawal of the American forces from the Islands. before its military occupation and possession of the Islands had matured into an absolute and permanent dominion or sovereignty by a treaty of peace or other means recognized in the law of nations." That is to say.

the legislative power of a commander in chief of military forces who liberates or reoccupies his own territory which has been occupied by an enemy. unless required by clear and unequivocal words. in violation of said principles of international law. p. L. if and when the exigencies of the military occupation demand such action. which declares null and void all laws. it should be presumed that it was not. processes of the Republic of the Philippines or other governmental agencies established in the Islands during the Japanese occupation. as above indicated. C.) The mere conception or thought of possibility that the titular sovereign or his representatives who reoccupies a territory occupied by an enemy. whether it was the intention of the Commander in Chief of the American Forces to annul and void thereby all judgments and judicial proceedings of the courts established in the Philippines during the Japanese military occupation. may not unlawfully suspend existing laws and promulgate new ones in the occupied territory. set forth in 25 R. under the law of nations. 1027. and great public interests would be endangered and sacrificed. during the military and before the restoration of the civil regime.That not only judicial but also legislative acts of de facto governments. for according to a well-known rule of statutory construction. which provides that "The Philippines renounces war as an instrument of national policy. which are not of a political complexion. and later embodied in the Hague Conventions of 1907. "upon the loyal citizens of the Philippines full respect and obedience to the Constitution of the Commonwealth of the Philippines. 1028. as an agent of his government. but also to administrative or legislative. The second question hinges upon the interpretation of the phrase "processes of any other government" as used in the above-quoted proclamation of General Douglas MacArthur of October 23. "a statute ought never to be construed to violate the law of nations if any other possible construction remains. pp. in using the phrase "processes of any other government" in said proclamation. Article II. of our Constitution." should not only reverse the international policy and practice of his own government. L. would be sufficient to paralyze the social life of the country or occupied territory. of the de facto governments during the Japanese military occupation were good and valid before and remained so after the occupied territory had come again into the power of the titular sovereign. 1025. applied by the Presidents of the United States. 2. and criminals might easily become immune for evidence against them may have already disappeared or be no longer available. constitutional commander in chief of the United States Army." It is true that the commanding general of a belligerent army of occupation. and could not have been. 1944. 1944 — that is. The only reasonable construction of the said phrase is that it refers to governmental processes other than judicial processes of court proceedings." Moreover.. C. Taking into consideration the fact that. . may set aside or annul all the judicial acts or proceedings of the tribunals which the belligerent occupant had the right and duty to establish in order to insure public order and safety during military occupation. the intention of General Douglas MacArthur. sentences passed on criminals set aside. did not intend to act against the principles of the law of nations asserted by the Supreme Court of the United States from the early period of its existence. from a contrary construction great inconvenience and public hardship would result. is as broad as that of the commander in chief of the military forces of invasion and occupation (although the exigencies of military reoccupation are evidently less than those of occupation). regulations and processes of the governments established in the Philippines during the Japanese occupation. (25 R. for disputes or suits already adjudged would have to be again settled accrued or vested rights nullified. is confirmed by the Proclamation issued by General Douglas MacArthur on October 23. as well as constitutional. and criminals would not be deterred from committing crimes or offenses in the expectancy that they may escaped the penalty if judgments rendered against them may be afterwards set aside. But even assuming that. or great mischief done. are and remain valid after reoccupation of a territory occupied by a belligerent occupant. or great public interests would be endangered or sacrificed. who was acting as an agent or a representative of the Government and the President of the United States. which are not of a political complexion. and adopts the generally accepted principles of international law as part of the law of the Nation. such construction is to be avoided. for it would have to be expected that litigants would not willingly submit their litigation to courts whose judgements or decisions may afterwards be annulled. according to the well-known principles of international law all judgements and judicial proceedings. or the court ought to presume that such construction was not intended by the makers of the law. to refer to judicial processes. And it is another well-established rule of statutory construction that where great inconvenience will result from a particular construction. The phrase "processes of any other government" is broad and may refer not only to the judicial processes.. it is to be presumed that General Douglas MacArthur. 1944. It is not to be presumed that General Douglas MacArthur. especially now that almost all court records in the Philippines have been destroyed by fire as a consequence of the war. for it would not have been necessary for said proclamation to abrogate them if they were invalid ab initio. as above indicated. but also disregard in the same breath the provisions of section 3. who enjoined in the same proclamation of October 23.

Hernandez (230 U. that there is no rule of international law that denies to the restored government to decide.) And from this quotion the respondent judge "draws the conclusion that whether the acts of the occupant should be considered valid or not." (Wheaton. but also the principles of international law. yet. section II. International Law. undoubtedly because the author thereof was fully aware of the limitations of his powers as Commander in Chief of Military Forces of liberation or subsequent conqueror. 245. been duly appealed to the Court of Appeals. 1945. 1945. such as the laws. L. [1915]. It goes without saying that a law that enjoins a person to do something will not at the same time empower another to undo the same. 2d ed. in a Court of Law the rights and action of the nationals of the hostile party. if not all. which prohibits the belligerent occupant "to declare ." . 37. p. . had been disposed of by the latter before the restoration of the Commonwealth Government in 1945.. If the proclamation had. vs. for to declare them null and void would be tantamount to suspending in said courts the right and action of the nationals of the territory during the military occupation thereof by the enemy. in the Court of Appeals were from judgments rendered by the Court of First Instance during the Japanese regime. Fruedenburg. War. appealed cases pending in the Court of Appeals prior to the Japanese military occupation of Manila on January 2.) If a belligerent occupant is required to establish courts of justice in the territory occupied. suspended . as they result from the usages established between civilized nations. constitute or from the law of nations." This provision impliedly recognizes that the judgments and proceedings of the courts during the Japanese military occupation have not been invalidated by the proclamation of General MacArthur of October 23. p. but to cases which had therefore. What does happen is that most matters are allowed to stand by the restored government. Not only the Hague Regulations. issued by the President of the Philippines on March 10. and forbidden to prevent the nationals thereof from asserting or enforcing therein their civil rights. (Decision of the Court of Appeals of England in the case of Porter vs. 139). to avoid or nullify them. up to March 10. but the matter can hardly be put further than this. and it is to be presumed that almost all. imposing upon it in its stead the obligation of recognizing and enforcing the acts of the overthrown government. the military commander of the forces of liberation or the restored government is restrained from nullifying or setting aside the judgments rendered by said courts in their litigation during the period of occupation. of the Hague Regulations or Conventions which we have already quoted in discussing the first question. by virtue of the emergency legislative power vested in him by the Constitution and the laws of the Commonwealth of the Philippines. But in view of the fact that the proclamation uses the words "processes of any other government" and not "judicial processes" prisely. while almost all. regulations and processes other than judicial of the government established by the belligerent occupant. which has the force of law. if not all. . 61. that is.S.B. Part II. 7th English edition of 1944. and Article 23 (h). Although the question whether the President or commanding officer of the United States Army has violated restraints imposed by the constitution and laws of his country is obviously of a domestic nature. 1942. The respondent judge quotes a portion of Wheaton's International Law which say: "Moreover when it is said that an occupier's acts are valid and under international law should not be abrogated by the subsequent conqueror. it would be necessary for this court to decide in the present case whether or not General Douglas MacArthur had authority to declare them null and void. declared null and void the judicial processes of any other government. Westlake. appealed cases pending on March 10. and provided "that all case which have heretofore been duly appealed to the Court of Appeals shall be transmitted to the Supreme Court final decision. But the proclamation did not so provide. because the said Order does not say or refer to cases which have been duly appealed to said court prior to the Japanese occupation. of the same Conventions. the purpose of these precepts of the Hague Conventions would be thwarted. The question to be determined is whether or not it was his intention. in construing and applying limitations imposed on the executive authority. . . (Preamble of the Hague Conventions. 857. is impliedly confirmed by Executive Order No.That the proclamation has not invalidated all the judgements and proceedings of the courts of justice during the Japanese regime. section III. is a question that is up to the restored government to decide. International Law. it must be remembered that no crucial instances exist to show that if his acts should be reversed. in the case of Ochoa. 1945. Otherwise. imposes upon the occupant the obligation to establish courts. the laws of humanity and the requirements of the public of conscience. that there is no rule of international law that denies to the restored government the right of exercise its discretion on the matter. has declared that they "arise from general rules of international law and from fundamental principles known wherever the American flag flies." There is doubt that the subsequent conqueror has the right to abrogate most of the acts of the occupier." forbids him to make any declaration preventing the inhabitants from using their courts to assert or enforce their civil rights.. expressly or by necessary implication.. 1 K. any international wrong would be committed.) Article 43.R. Said Executive order abolished the Court of Appeals. the Supreme Court of the United States. it is not necessary to determine whether or not General Douglas MacArthur had power to annul and set aside all judgments and proceedings of the courts during the Japanese occupation. by necessary implication. as representative of the President of the United States.

. They give very large governmental powers to the military commanders designated. and the government established by the occupant of transient character. when Manila was occupied. and justices of the peace of courts. the Japanese military occupation by the Philippine Executive Commission and by the so-called Republic of the Philippines. Harmony. the same courts were continued with no substantial change in organization and jurisdiction thereof. wholly annulling a decree rendered by a court of chancery in that state in a case within its jurisdiction. the military administration under martial law over the territory occupied by the army. this practice has been adopted in order that the ordinary pursuits and business of society may not be unnecessarily deranged. From the stand-point of actual practice such arbitrary will is restrained by the provision of the law of nations which compels the conqueror to continue local laws and institution so far as military necessity will permit. . 1867 (14 Stat. to be adhered to on the present occasion. executive and judicial. and not warranted by the acts approved respectively March 2. continued the Supreme Court. The third and last question is whether or not the courts of the Commonwealth. (Mithell vs. 1867." and "all public officials shall remain in their present post and carry on faithfully their duties as before. we hold that the order was void. 712). . 1 and 4 of January 30 and February 5. and continued during. 67. Whether Congress could have conferred the power to do such an act is a question we are not called upon to consider. inasmuch as belligerent occupation is essentially provisional. Commander in Chief of the Japanese Forces proclaimed on January 3.) Viewing the subject before us from the standpoint indicated. which are the same as those existing prior to.. as well as executive and judicial institutions. p." When the Philippine Executive Commission was organized by Order No. by Executive Orders Nos. . so far as possible. 14).S.. 13 How. shall never be pushed beyond what the exigency requires. of the courts of justice in the Philippines that were continued by the Philippine Executive Commission and the Republic of the Philippines during the Japanese military occupation.c. Bailey. Court of Appeals.596. in practice the invader does not usually take the administration of justice into his own hands. Although in theory the authority the authority of the local civil and judicial administration is suspended as a matter of course as soon as military occupation takes place. 1942. 1944.) Undoubtedly. . .C. within the States committed respectively to their jurisdiction. s. unless absolutely prevented. As stated in the above-quoted Executive Order of President McKinley to the Secretary of War on May 19. therefore." (Taylor. they (the municipal laws) are not usually abrogated but are allowed to remain in force and to be administered by the ordinary tribunals substantially as they were before the occupation. It was an arbitrary stretch of authority. was declared void. 1867 and July 19. legislative. a special order issued by the officer in command of the forces of the United States in South Carolina after the end of the Civil War. respectively. shall continue to be affective for the time being as in the past. pt. 1898. which defined the powers and duties of military officers in command of the several states then lately in rebellion.." And Taylor in this connection says: "From a theoretical point of view it may be said that the conqueror is armed with the right to substitute his arbitrary will for all preexisting forms of government. evident that the proclamation of General MacArthur of October 23. Court of First Instance. The clearest language would be necessary to satisfy us that Congress intended that the power given by these acts should be so exercised. 115. p. 1 Smith's L. Moysten. It is an unbending rule of law that the exercise of military power. but we have found nothing to warrant the order here in question. . regulations and processes of any other government in the Philippines than that of the said Commonwealth are null and void without legal effect in areas of the Philippines free of enemy occupation and control. And on October 14. which declared that "all laws." It is... 1942. This enlightened practice is.In the case of Raymond vs. 3 of February 20. which are not a political complexion. with the same jurisdiction in conformity with the instructions given by the Commander in Chief of the Imperial Japanese Army in Order No. Warden vs.. have jurisdiction to continue now the proceedings in actions pending in said courts at the time the Philippine Islands were reoccupied or liberated by the American and Filipino forces. Fabrigas vs. 161. and the Commonwealth Government was restored. Thomas (91 U. "in practice. Following these practice and precepts of the law of nations. and July 19 of the same year (15 id.. where the rights of the citizen are concerned. 2. but continues the ordinary courts or tribunals to administer the laws of the country which he is enjoined. the Chairman of the Executive Commission." has not invalidated the judicial acts and proceedings. 428). In the course of its decision the court said. 3. needful to no good end that can be imagined. and that said judicial acts and proceedings were good and valid before and now good and valid after the reoccupation of liberation of the Philippines by the American and Filipino forces. . to respect. 934. and ordered that "all the laws now in force in the Commonwealth. on January 23. 4 Taunt. International Public Law. "We have looked carefully through the acts of March 2. 1943 when the so-called Republic of the Philippines was inaugurated. 1942. 1 Cowp. 1 of the Japanese Commander in Chief.

did not become.S. become the laws and the courts. . and continue said proceedings (of this case) to final judgment until and unless the Government of the Commonwealth of the Philippines . 16146). vs. of the Hague Conventions of 1907 which prohibits any compulsion of the population of occupied territory to swear allegiance to the hostile power. The laws and institution or courts so continued remain the laws and institutions or courts of the occupied territory. A proclamation that said laws and courts are expressly continued is not necessary in order that they may continue in force. by adoption. it persists until a change take place.Reiter. if such laws and institutions are continued in use by the occupant. vs. Once created. When in 1870. Beale. The laws they enforced were. the law continues unchanged until the new sovereign by legislative acts creates a change.. 13 Met.) Furthermore. Cases.." (Joseph H. Summary Section 9. may continue the proceedings in cases then pending in said courts. The provision of Article 45.) As the same author says. citing Commonwealth vs. Hence. Chapman. and so forever. It is not change merely by change of sovereignty. p. 244. it is evident that such laws.) The argument advanced by the respondent judge in his resolution in support in his conclusion that the Court of First Instance of Manila presided over by him "has no authority to take cognizance of. the courts of Nancy to administer justice in the name of the "High German Powers occupying Alsace and Lorraine. without necessity of enacting a law conferring jurisdiction upon them to continue said proceedings. Germany originally ordered the use of the name of "High German Powers occupying Alsace and Lorraine. 1916. of the sovereign nation that is militarily occupying the territory.. Part II. laws and courts of Japan.S. p." is "that said courts were a government alien to the Commonwealth Government. in the sense that he may continue or set them aside. as they became later on the laws and institutions of the Philippine Executive Commission and the Republic of the Philippines. According to Wheaton. the victor need not allow the use of that of the legitimate government. not being a political nature. nor needlessly to break the continuity of their legal life. Such . Conquest or colonization is impotent to bring law to an end. as already shown. and when changed it continues in such changed condition until the next change. resumes its old place with its right and duties substantially unimpaired. — and subject to the same exception in case of absolute crushing of the whole fibre and content. belligerent or military occupation is essentially provisional and does not serve to transfer the sovereignty over the occupied territory to the occupant." but later offered to allow use of the name of the Emperor or a compromise. Section 131): "There can no break or interregnum in law. As Taylor graphically points out in speaking of said principles "a state or other governmental entity. International Public Law. p. No. in his Treatise on the Conflict on Laws (Cambridge. Because. From the time the law comes into existence with the first-felt corporateness of a primitive people it must last until the final disappearance of human society. they must be allowed to give their sentences in the name of the legitimate sovereign " (Westlake. it stands to reason that the same courts. Law. it is a legal maxim. War. What the court said was that." (Taylor. upon the removal of a foreign military force. International Law. the Philippine Executive Commission. so far as the courts of justice are allowed to continue administering the territorial laws. . 516). second ed.If the proceedings pending in the different courts of the Islands prior to the Japanese military occupation had been continued during the Japanese military administration. (Wheaton. and continue in force "ex proprio vigore" unless and until repealed by legislative acts. "Law once established continues until changed by the some competent legislative power. 1944. in spite of change of constitution. which had become reestablished and conceived of as having in continued existence upon the reoccupation and liberation of the Philippines by virtue of the principle of postliminy (Hall. 68. are not abrogated by a change of sovereignty. however. This duty is neither to innovate in the political life of the occupied districts. the Germans in France attempted to violate that rule by ordering. p." The court in the said case of U. "extends to prohibit everything which would assert or imply a change made by the invader in the legitimate sovereignty. 615. 102). 7th ed. International Law. Reiter did not and could not say that the laws and institutions of the country occupied if continued by the conqueror or occupant. Such political resurrection is the result of a law analogous to that which enables elastic bodies to regain their original shape upon removal of the external force. and the cases commenced and the left pending therein. true enough. that excepting that of a political nature. . The laws and the courts of the Philippines. but they had become the laws — and the courts had become the institutions — of Japan by adoption (U. 7th English ed. therefore. Int. the courts refused to obey and suspended their sitting. Cases on Conflict of Laws. . laws of the Commonwealth prior to Japanese occupation. III." upon the ground that the exercise of their powers in the name of French people and government was at least an implied recognition of the Republic. by being continued as required by the law of nations." As courts are creatures of statutes and their existence defends upon that of the laws which create and confer upon them their jurisdiction. and the so-called Republic of the Philippines. after the fall of the Emperor Napoleon. . shall have provided for the transfer of the jurisdiction of the courts of the now defunct Republic of the Philippines. section III. 27 F. they become his and derive their force from him.

during the American regime. Court of First Instance. the same section 78 provided for the transfer of all civil actions then pending in the provost courts to the proper tribunals. enabling laws or acts providing that proceedings pending in one court be continued by or transferred to another court. That the present courts as the same courts which had been functioning during the Japanese regime and. as the said courts of the laws creating and conferring jurisdiction upon them have continued in force until now. If the Court of Appeals abolished by the said Executive Order was not the same one which had been functioning during the Republic. It is. when section 78 of Act No. but many other cases now pending in all the courts of these Islands. Therefore. as it is hereby abolished. 136 abolished them and created in its Chapter IV the present Courts of First Instance in substitution of the former. 37 which we have already quoted in support of our conclusion in connection with the second question. When the Spanish sovereignty in the Philippine Islands ceased and the Islands came into the possession of the United States. . the said Order considers that the Court of Appeals abolished was the same that existed prior to. can continue the proceedings in cases pending therein prior to the restoration of the Commonwealth of the Philippines. which she had afterwards transferred to the so-called Republic of the Philippines. almost all. and the Supreme Court created in Chapter II of Act No. mandamus is the speedy and adequate remedy in the ordinary course of law. to final judgment. . if not all. As a consequence. Having arrived at the above conclusions. and that the laws and the courts of these Islands had become the courts of Japan. no enabling acts were enacted during the Japanese occupation. that is. and continued after. if made. . it necessarily follows that the same courts may continue exercising the same jurisdiction over cases pending therein before the restoration of the Commonwealth Government. but that which had existed up to the time of the Japanese occupation. 136 was substituted in lieu thereof. 183 were transferred to the latter. 3012. 1942. the "Audiencia" or Supreme Court was continued and did not cease to exist. . which involves civil rights of the parties under the laws of the Commonwealth Government. is confirmed by Executive Order No. but a mere proclamation or order that the courts in the Island were continued. pending therein at the time of the restoration of the Commonwealth Government. of the cases pending therein. even assuming that Japan had legally acquired sovereignty over these Islands. therefore. They are necessary only in case the former courts are abolished or their jurisdiction so change that they can no longer continue taking cognizance of the cases and proceedings commenced therein. in order that the new courts or the courts having jurisdiction over said cases may continue the proceedings.proclamation. and that the respondent judge of the court." In so providing. until section 65 of the same Act No. to the justices of the peace courts. up to March 10. Said Executive Order provides"(1) that the Court of Appeals created and established under Commonwealth Act No. 186. having refused to act and continue him does a duty resulting from his office as presiding judge of that court. must have been cases coming from the Courts of First Instance during the so-called Republic of the Philippines. 3 as amended. or which had theretofore (that is. when the criminal jurisdiction of provost courts in the City of Manila was abolished by section 3 of Act No. And later on. the restoration of the Commonwealth Government. and proceeded to take cognizance of the actions pending therein upon the cessation of the Spanish sovereignty until the said "Audiencia" or Supreme Court was abolished. especially taking into consideration the fact that the question of jurisdiction herein involved does affect not only this particular case. or Supreme Court having jurisdiction over them according to law. be abolished. been dully appealed to the said Court of Appeals shall be transmitted to the Supreme Court for final decision. therefore." and "(2) that all cases which have heretofore been duly appealed to the Court of Appeals shall be transmitted to the Supreme Court for final decision. Similarly. is but a declaration of the intention of respecting and not repealing those laws. as we have stated in discussing the previous question. the same section provided that criminal cases pending therein within the jurisdiction of the municipal court created by Act No. for. it would have provided that all the cases which had. it follows that the Court of First Instance of Manila has jurisdiction to continue to final judgment the proceedings in civil case No. 136 was enacted abolishing the civil jurisdiction of the provost courts created by the military government of occupation in the Philippines during the Spanish-American War of 1898. the proceedings in cases. pending in said court at the time of the restoration of the said Government. On the other hand. not of political complexion. 1945) been duly appealed to said court. obvious that the present courts have jurisdiction to continue. unless and until they are abolished or the laws creating and conferring jurisdiction upon them are repealed by the said government. are not required by the mere change of government or sovereignty. prior to and up to that occupation on January 2. And the Courts of First Instance of the Islands during the Spanish regime continued taking cognizance of cases pending therein upon the change of sovereignty.

even assuming that Japan legally acquired sovereignty over the Philippines. laws and courts of Japan. JJ. or great mischief done. and the laws and courts of the Philippines had become courts of Japan. however. non-political judgments and judicial proceedings of de facto governments are valid and remain valid even after the occupied territory has been liberated. The laws and courts of the Philippines did not become. until abolished or the laws creating and conferring jurisdiction upon them are repealed by the said government. ordering him to take cognizance of and continue to final judgment the proceedings in civil case No. for “the existence of a state of insurrection and war did not loosen the bonds of society. 1944 proclamation MacArthur issued in which he declared that “all laws. And whether or not if they were not invalidated by MacArthur’s proclamation.” Another is that “where great inconvenience will result from a particular construction. the court said that if such laws and institutions are continued in use by the occupant. The court resolved three issues: 1.” In the case of US vs Reiter. The Philippine Executive Commission and the Republic of the Philippines under the Japanese occupation may be considered de facto governments. then it could not have been MacArthur’s intention to refer to judicial processes. excepting of a political nature. C. hinges on the interpretation of the phrase “processes of any other government” and whether or not he intended it to annul all other judgments and judicial proceedings of courts during the Japanese military occupation. IF. 2. usually remain in force unless suspended or changed by the conqueror. according to international law. unless required by clear and unequivocal words.J. then it would not have been necessary for MacArthur to come out with a proclamation abrogating them. A well-known rule of statutory construction is: “A statute ought never to be construed to violate the law of nations if any other possible construction remains. . the new sovereign by legislative act creates a change.. the court said. Moran. Ozaeta. lower courts have no jurisdiction to take cognizance of and continue judicial proceedings pending in the courts of the defunct Republic of the Philippines (the Philippine government under the Japanese).” Until. Whether or not the October 23. they become his and derive their force from him. Jaranilla and Pablo. saying that a proclamation issued by General Douglas MacArthur had invalidated and nullified all judicial proceedings and judgments of the courts of the Philippines and. After the Liberation of the Manila and the American occupation.” Annulling judgments of courts made during the Japanese occupation would clog the dockets and violate international law. No pronouncement as to costs. It is a legal maxim that. of course. concur. initiated during the Japanese occupation. without an enabling law. Municipal laws and private laws. or do away with civil government or the regular administration of the laws. which would be in violation of international law. such construction is to be avoided. The second question. those courts could continue hearing the cases pending before them. 3. And if they were not valid. directed to the respondent judge of the Court of First Instance of Manila. So ordered. with the Court of First Instance of Manila. as the said courts and laws creating and conferring jurisdiction upon them have continued in force until now. Ratio: Political and international law recognizes that all acts and proceedings of a de facto government are good and valid. Whether or not judicial proceedings and decisions made during the Japanese occupation were valid and remained valid even after the American occupation. Judge Arsenio Dizon refused to continue hearings on the case. supported by the military force and deriving their authority from the laws of war. Paras.In view of all the foregoing it is adjudged and decreed that a writ of mandamus issue. “law once established continues until changed by some competent legislative power. 3012 of said court. Co Kim Chan v Valdez Tan Keh Facts of the case: Co Kim Chan had a pending civil case. or the court ought to presume that such construction was not intended by the makers of the law. by being continued as required by the law of nations.. it follows that the same courts may continue exercising the same jurisdiction over cases pending therein before the restoration of the Commonwealth Government. Civil obedience is expected even during war. Therefore. IT IS NOT CHANGED MERELY BY CHANGE OF SOVEREIGNTY. therefore what MacArthur said should not be construed to mean that judicial proceedings are included in the phrase “processes of any other governments. regulations and processes of any other government in the Philippines than that of the said Commonwealth are null and void and without legal effect in areas of the Philippines free of enemy occupation and control” invalidated all judgments and judicial acts and proceedings of the courts.

Valdez Tan Keh and Dizon75 Phil 113Feria. Peralta in his own behalf. No. but this cannot be applied on judicial proceedings because such a construction would violate the law of nations. Office of the Solicitor General Tañada for respondent. respondent. the court must continue hearing the case pending before it. Douglas MacArthur had the effectof invalidating and nullifying all judicial proceedings and judgements of the courts of the saidgovernments. J. Issue: Whether or not the governments established in the Philippines under the names of Philippines Executive Commission and Republic of the Philippines during the Japanese military occupation or regime were de facto governments. City Fiscal Mabanag as amicus curiae. MacArthur annulled proceedings of other governments. International law says the acts of a de facto government are valid and civil laws continue even during occupation unless repealed. 1 by the Commander of the Japanese forces. He argued that the proclamation issued by Gen. Held The Supreme Court held that the Philippine Executive Commission which was organized by Order No. The source of its authority comes from the Japanese military. Republic of the Philippines SUPREME COURT Manila EN BANC G. FERIA. Apparently established and organized as a sovereign state independent from any other government by the Filipino people. ***3 kinds of de facto government: one established through rebellion (govt gets possession and control through force or the voice of the majority and maintains itself against the will of the rightful government) through occupation (established and maintained by military forces who invade and occupy a territory of the enemy in the course of war.: . Summary of ratio: 1. William F.FactsThe respondent judge of the lower court refused to take cognizance of and continue the proceeding of civil case No. petitioner. vs. was. denoted as a government of paramount force) through insurrection (established as an independent government by the inhabitants of a country who rise in insurrection against the parent state) Co Kim Cham vs. a government established by the Japanese forces of occupation. 3. it is a government imposed by the laws of war. L-49 November 12. J. PERALTA. was a civil government established by the military forces of occupation and therefore a de facto government of the second kind. 3012 of said court which was initiated under the regime of the so-called Republic of the Philippines established during the Japanese military occupation of thePhilippines.R. ordering him to take cognizance of and continue to final judgment the proceedings in civil case no. 3012. The same is true with the Republic of the Philippines. 1945 WILLIAM F. in truth and reality.DECISION: Writ of mandamus issued to the judge of the Court of First Instance of Manila. THE DIRECTOR OF PRISONS. He also argued that the said governments during the Japanese occupation were notde facto governments. Since the laws remain valid. 2.

ante). Home Insurance Co. 459). in response to an urgent necessity. and in order to determine the law applicable to the questions involved in the present case. 7. 9 of the National Assembly of the so-called Republic of the Philippines. he may be immediately convicted. should now be denied force and efficacy. 104). except in case of death penalty which cannot be executed unless and until reviewed and affirmed by a special division of the Supreme Court composed of three Justices. states that. L-5. that the Court of Special and Exclusive Criminal Jurisdiction created. Sprott vs. 7 in connection with Executive Order No. to the effect that no person shall be compelled to be a witness against himself. made applicable to the trial violations of said Act No. it is necessary to bear in mind the nature and status of the government established in these Islands by the Japanese forces of occupation under the designation of Republic of the Philippines. and the crimes and offenses placed under its jurisdiction were penalized heavily. The features of the summary procedure adopted by Ordinance No. this Court. No. in his answer in behalf of the respondent. No. 7 is not violative of the provision of Article III. Valdez Tan Keh and Dizon (G. R. nor of the provision of section 1 (1) of the same Article that no person shall be deprived of life. United States (20 Wall. Horn vs. (22 Wall. was prosecuted for the crime of robbery as defined and penalized by section 2 (a) of Act No. 113. vs. Lockart (17 Wall. G. section 1 (18) of the Constitution of the Commonwealth. 65 by section 9 thereof and section 5 of said Ordinance No. The reasons advanced by the Solicitor General in said brief and in his reply memorandum in support of his contention are. 65 of the same Assembly. 157 of the Chairman of the Executive Commission are tinged with political complexion. held: . 7. the decisions of the Supreme Court of the United States in the cases of Texas vs. procurement and distribution of goods and other necessaries as defined in section 1 of Act No. and that the sentence of the sentence of the court is not appealable. assailed by the petitioner and the Solicitor General as impairing the constitutional rights of an accused are: that court may interrogate the accused and witnesses before trial in order to clarify the points in dispute. speaking through the Justice who pens this decision. And the procedure followed in the trial was the summary one established in Chapter II of Executive Order No. Ordinances and Executive Orders. L-22 (p." that the provisions of said Ordinance No. null and void ab initio. 7 are violative of the fundamental laws of the Commonwealth of the Philippines and "the petitioner has been deprived of his constitutional rights".. 743). or property without due process of law. according to the preamble of Ordinance No. pp. in support of this last proposition. that the right to appeal in a criminal case is not a constitutional right. that the petitioner herein is being punished by a law created to serve the political purpose of the Japanese Imperial Army in the Philippines. 7 promulgated by the President of the so-called Republic of the Philippines. defendant-appellee. Benedicto Jose y Santos.Petitioner-defendant. And he cites. In the case of Co Kim Cham vs. and that the summary procedure established in said Ordinance No. plaintiff-appellant. created in section 1 of Ordinance No. pursuant to the authority conferred upon him by the Constitution and laws of the said Republic." The Solicitor General. 570. in his own opinion. 157 of the Chairman of the Executive Commission. 612. 581). White (7 Wall. the aims and purposes of which are repugnant to those aims and political purposes of the Commonwealth of the Philippines. violates the Constitution of the Commonwealth. In his memorandum he submits that the petition for habeas corpus be denied on the following grounds: That the Court of Special and Exclusive Criminal Jurisdiction and the Acts. that the procedure prescribed in Ordinance No. and the summary procedure prescribed therefor.. the acts and proceedings taken and had before the said Court of Special and Exclusive Criminal Jurisdiction which resulted in the conviction and imprisonment of the herein petitioner. that if from the facts admitted at the preliminary interrogatory it appears that the defendant is guilty. by said Ordinance No. Before proceeding further. 700. and therefore the petition for habeas corpus should be granted. by the Court of Special and Exclusive Criminal Jurisdiction. The petition for habeas corpus is based on the ground that the Court of Special and Executive Criminal Jurisdiction created by Ordinance No. for the reasons expressed in his brief in the case of People of the Philippines. creating it are not of a political complexion. and impairs the Constitutional rights of accused persons under their legitimate Constitution.. United States vs. R. a member of the Metropolitan Constabulary of Manila charged with the supervision and control of the production.. 99. 1944. and therefore. which he commenced to serve on August 21. 127. recently decided. and "that the penalties provided for are much (more) severe than the penalties provided for in the Revised Penal Code. liberty. He was found guilty and sentenced to life imprisonment. that the refusal of the accused to answer the questions may be considered unfavorable to him. for said Court was created. The City Fiscal of Manila appeared before this Court as amicus curiae. as well as those of the United States of America. post). 7 "was a political instrumentality of the military forces of the Japanese Imperial Army. 7. 7 does not afford a fair trial.

and others) that the judicial and legislative acts of the Confederate States which impaired the rights of the citizens under the Constitution of the United States or of the States. 1944. and the doctrine laid down by the Supreme Court of the United States in the cases involving the validity of judicial and legislative acts of the Confederate States. . and the maintenance and safety of his forces. based upon neither the free expression of the peoples" will nor the sanction of the Government of the United States. during its occupation by the British forces and as that of Tampico. a so-called government styled as the 'Republic of the Philippines' was established on October 14.. or were in conflict with those constitutions. 249. this Court said: The so-called Republic of the Philippines. does not apply to the acts of the so-called Republic of the Philippines which is a de facto government of paramount force. were null and void. And Oppenheim. 342. Because that doctrine rests on the propositions that "the concession (of belligerency) made to the Confederate Government . Revised. Lockart. in carrying out the administration over the occupied territory and its inhabitants. II. 1942. 466. "the (belligerent) occupant is totally independent of the constitution and the laws of the territory. was. 2 p. p. Maine. and the purpose of war. before its military occupation and possession of the Islands had matured into an absolute and permanent dominion or sovereignty by a treaty of peace or other means recognized in the law of nations. In either case it is a government imposed by the laws of war and so far as it concerns the inhabitants of such territory or the rest of the world those laws alone determine the legality or illegality of its acts. Mexico. as it chose to recognize and impose. and the ultimate source of its authority was the same — the Japanese military authority and government. 246). and were bound by such laws. (Vol. In the case of United States vs. the question involved in the present case cannot be decided in the light of the Constitution of the Commonwealth Government. suspended. of course. S. sanctioned no hostile legislation ... issued on January 23. in his Treatise on International Law. and the laws of the United States could no longer be rightfully enforced there or be obligatory upon the inhabitants who remained and submitted to the belligerent occupant. because the belligerent occupant was totally independent of the constitution of the occupied territory in carrying out the administration over said territory. Sprott vs. the Supreme Court of the United States held that. or recognize the latent sovereignty of the Filipino people. . occupied during the war with that the country by the United State Army. Mexico. which was organized by Order No. As General MacArthur stated in his proclamation of October 23. 570.. Rice (4 Wheaton. or by the United States in Tanpico. It was of the same character as the Philippine Executive Commission. The Constitution of the so-called Republic of the Philippines can neither be applied. apparently established and organized as a sovereign state independent from any other government by the Filipino people. . As Halleck says. By the surrender the inhabitants passed under a temporary allegiance to the British government. 7 Wall. 20 Wall. As the so-called Republic of the Philippines was a de facto government of the second kind (of paramount force). stand in the foreground of his interest and must be promoted under all circumstances or conditions. 1944. It is of little consequence whether such government be called a military or civil government. Williams vs.) The doctrine laid down in the decisions of the Supreme Court of the United States (in the cases of Texas vs. as the government established in Castine. 176 United States vs. it is evident that the Philippines Executive Commission. 1943. by the military occupation of Castine. was a civil government established by the military forces of occupation and therefore a de facto government of the second kind. "under enemy duress. In view of the foregoing. Its character is the same and the source of its authority the same. "the government established over an enemy's territory during the military occupation may exercise all the powers given by the laws of war to the conqueror over the conquered. United States. Sixth Edition. since occupation is an aim of warfare. is not applicable to the present case. Horn vs. whose criminal jurisdiction is drawn entirely from the law martial as defined in the usages of nations. says that.' Japan had no legal power to grant independence to the Philippines or transfer the sovereignty of the United States to. a government established by the belligerent occupant or the Japanese forces of occupation. by the Commander of the Japanese forces. . Maine. a portion of which has been already quoted. White. 1. considered as de facto governments of the third kind. since the validity of an act of a belligerent occupant cannot be tested in the light of another act of the same occupant. in truth and reality. the sovereignty of the United States in the territory was. Home Insurance Co. and is subject to all restrictions which that code imposes. 20 Wall.. and such only. and it impaired in no respect the rights of loyal and citizens as they existed at . 17 Wall." (vol. 459. Maine.. Bruffy. It was not different from the government established by the British in Castine. 700. And speaking of the so-called Republic of the Philippines in the same decision. 96 U.) The fact that the Philippine Executive Commission was a civil and not a military government and was run by Filipinos and not by Japanese nationals is of no consequence.

International Public Law. In fine. first. had therefore the power or was competent to create the Court of Special and Exclusive Criminal Jurisdiction. so far as is necessary for military purposes.." (Oppenheim's International Law. secondly. and the obligation of allegiance to the to the estate and obedience to her laws and the estate constitution. if not in all instances. while the Constitution of the Commonwealth Government was suspended during the occupation of the Philippines by the Japanese forces of the belligerent occupant at regular war with the United States. and of the summary procedure adopted for that court. as we have already stated. because the latter was not in force during the period of the Japanese military occupation. It cannot be considered as violating the laws of humanity and public conscience. the same laws for the protection of the property and personal rights remained and were administered by the same officers. and he so far suspends the laws which guard personal liberty as is required for the summary punishment of any one doing such acts. Vol. and followed in the trial of the case which resulted in the conviction of the herein petitioner. No question may arise as to whether or not a court is of political complexion. for it is less objectionable. and thirdly. With respect to the Summary procedure adopted by Ordinance No. being a governmental instrumentality of the belligerent occupant. 7. and cases quoted and cited in the footnote). p. or for the maintenance of public order and safetytemporarily alter the laws.) The so-called Republic of the Philippines. the usages established by civilized nations. 598. the validity of the sentence which imprisonment during the Japanese military occupation. .) No objection can be set up to the legality of its provisions in the light of the precepts of our Commonwealth Constitution relating to the rights of accused under that Constitution." (Sprott vs. II. supra). even from the . are those imposed by the Hague Regulations. he declares certain acts. It is obvious that the summary procedure under consideration does not violate those precepts. especially the Criminal Law. merely transferred the existing state organizations to the support of a new and different national head. United States. the validity of the creation of the Court of Special and Exclusive Criminal Jurisdiction. Bruffy. supra) and that the Confederate States "in most. . to be punishable. that is. p. not forbidden by the ordinary laws of the country.that the Union is perpetual and indissoluble. remained unimpaired during the War of Secession (Texas vs. for it is mere a governmental agency charged with the duty of applying the law to cases falling within its jurisdiction." (Hall's International Law. as to the validity of the creation of the court in question. if they were then valid. seventh edition. so far as it is necessary for military purposes.349. and in so far as. especially as regards laws of procedure applied to cases already terminated completely. whose authority and procedure is defined in the military code of the conquering state. the effect on said punitive sentence of the reoccupation of the Philippines and the restoration therein of the Commonwealth Government. for his control of the territory and the safety and protection of his army. on the basis of which justice is administered as well as the laws regarding procedure. 7. For "the invader deals freely with the relations of the inhabitants of the occupied territory towards himself . sixth edition. White. Its judgments and sentences may be of political complexion. 5000). subject to the Constitution of the United States.the commencement of hostilities" (Williams vs. The authority thus derived can be asserted either through special tribunals. especially the criminal law as well as the laws regarding procedure. p. or through the ordinary courts and authorities of the occupied district. There is no room for doubt. page 97. or not depending upon the nature or character of the law so applied. supra). he admits the administration of justice by the ordinary courts. there is also no question as to the power or competence of the belligerent occupant to promulgate the law providing for such procedure. the laws of humanity and the requirements of public conscience. (1) As to the validity of the creation of the Court of Special and Exclusive Criminal Jurisdiction by Ordinance No. A belligerent "occupant may where necessary. The only restrictions or limitations imposed upon the power of a belligerent occupant to alter the laws or promulgate new ones." (Taylor. 1944. the only factor to be considered is the authority of the legislative power which promulgated said law or ordinance. he may nevertheless. the same constitution. seventh ed. therefore. The question which we have to resolve in the present case in the light of the law of nations are. set up military courts instead of the ordinary courts. and in case. because in the case of the Confederate States. the constitution of each state and that of the United States or the Union continued in force in those states during the War of Secession. unless the words employed show a clear intention that it should have a retrospective effect" (Cooley's Constitutional Limitations. Nor may said Constitution be applied upon its revival at the time of the re-occupation of the Philippines by virtue of the principle of postliminium because "a constitution should operate prospectively only. for his security also. — it is drawn entirely form the law martial as defined in the usages of nations. It is well established in International Law that "The criminal jurisdiction established by the invader in the occupied territory finds its source neither in the laws of the conquering or conquered state.

the Imperial Japanese forces could easily requisition them. III. the term "martial law. 1940. 65 are those committed by persons charged or connected with the supervision and control of the production. Indeed the entire relation between the invaders and the invaded. Act No. having the sanction of military authority. War. (Pub. and in this class will be included those laws which come into being as a result of military rule. All law. The words "martial law" are doubtless suggestive of the power of the occupant to share the law as he sees fit. that is. not only to prevent food and other necessaries from reaching the "guerrillas" which were harassing the belligerent occupant from every nook and corner of the country. and necessary for the control of the country by the belligerent occupant. and the success of its operations. through the National Assembly of the so-called Republic of the Philippines. as that which stands to the public order and social and commercial life of the district in a relation of mutual adaptation. The acts penalized by said Act were taken out of the territorial law or Revised Penal Code. They are not the same ordinary offenses penalized by the Revised Penal Code." in so far as it is used to describe any fact in relation to belligerent occupation. first. or to a special agency entrusted with its administration. so far as it may fall within the criminal department whether by the intrinsic nature of the acts done or in consequence of the regulations made by the invaders. that acts committed to their detriment shall not only lose what justification the territorial law might give them as committed against enemies. Hague Conventions of . p. — The criminal acts penalized by said Act No. so that any needless displacement of it would defeat the object which the invader is enjoined to have in view. to life imprisonment or death as maximum. does not refer to a particular code or system of law. 77. 386). it being necessary for the protection of the latter. in an occupied district martial law. as they did. procurement and distribution of foods and other necessaries. to establish tests for ascertaining the guilt of offenders. but also to preserve the food supply and other necessaries in order that. 96.) According to Hyde (International Law. and generally to administer justice through such agencies as the found expedient. International Law. in order. but shall be repressed more severely than the territorial law would repress acts committed against fellow subjects. 76. The term merely signifies that the body of law actually applied. and it is none the less so when applied by civil courts in matters devoid of special interest to the occupant. and referred to what is called martial law by international jurists. and for the unhindered prosecution of the war by them. may be considered as taken out of the territorial law and referred to what is called martial law. 65 of the said Assembly. by whomsoever administered.point of view of those who are used to the accusatory system of criminal procedure than the procedural laws based on the semi-inquisitorial or mixed system prevailing in France and other countries in continental Europe." (Westlake. those which establish new crimes and offenses incident to a state of war and are necessary for the control of the country and the protection of the army. Section III. p. that is. incident to a state of war. they were altered and penalized by said Act No. and as they had the right to do in accordance with the law of nations for their maintenance and subsistence (Art. for the principal object of the occupant is to provide for the security of the invading army and to contribute to its support and efficiency and the success of its operations. depends upon the competence or power of the belligerent occupant to promulgate Act No. is essentially martial. Vol. to determine what shall be deemed lawful or unlawful acts. defined above by Hyde. And the United States Rules of Land Warfare provide that the belligerent occupant may promulgate such new laws and regulations as military necessity demands. its support and efficiency. pp. in case of necessity. the protection and safety of the army of occupation. to fix penalties. which penalizes the crimes of robbery and other offenses by imprisonment ranging from the maximum period of the imprisonment prescribed by the laws and ordinances promulgated by the President of the so-called Republic as minimum. Although these crimes are defined in the Revised Penal Code. II. and the penalties imposed upon the violators are different from and much heavier than those provided by the Revised Penal Code for the same ordinary crimes. 65 which punishes the crime of which said petitioner was convicted. Sec.) From the above it appears clear that it was within the power and competence of the belligerent occupant to promulgate. of the Hague Conventions of 1907 "indicates that the laws to be enforced by the occupant consist of. the territorial law in general. 65 with different and heavier penalties. Westlake says that Article XLIII. and secondly. (2) The validity of the sentence rendered by the Court of Special and Exclusive Criminal Jurisdiction which imposes life imprisonment upon the herein petitioner. Such variations will naturally be greatest in what concerns the relation of the communities and individuals within the district to the invading army and its followers. such variations of the territorial law as may be required by real necessity and are not expressly prohibited by any of the rules which will come before us. as new crimes and offenses demanded by military necessity. LII. Part II.

p. In this connection Wheaton observes the following: "Of 'war crimes' the number is naturally indefinite. spreading alarmist reports. They are also considered by some writers as war crimes in a broad sense." (Wheaton's International Law." (Hall's International Law. being in possession. . 518. that the Imperial Japanese Army had depended mostly for their supply upon the produce of this country. traveling without a permit. without a permit. etc.. injuring military animals or stores.. The crimes penalized by Act No. But the law made by the . 65 — as well as the crimes against national security and the law of nations. While it is true that these offenses. and the crimes against public order. because the acts constituting those offenses were punished. etc. Valdez Tan Keh and Dizon. or whether they only suspend the working of that already in existence. ammunition. and the various acts done during the same time by private persons under the sanction of municipal law. p. when they are not of a political complexion. seventh edition. correspondence with hostile country. And they had to be taken out of the territorial law and made punishable by said Ordinance No. Hall. when committed against the Commonwealth or United States Government. imposing upon him the penalty of life imprisonment. holding meetings other than those allowed. overcharging for goods. the British military authorities proclaimed the following to be offenses against their martial law. cycles. of which this court may take judicial notice. were specified in the Japanese regulations made in the Russo-Japanese war. not indeed so as to be debarred from carrying out his will without notice. It is sufficient to quote the opinion on the subject of several international jurists and our recent decision in the case of Co Kim Cham vs. seventh edition. — Being in possession of arms. for they were not penalized before under the Revised Penal Code when committed against the belligerent occupant or the government established by him in these Island. but always remembering that to punish for breach of a regulation a person who was justifiably ignorant of it would be outrageous. depending as they do on the acts from time to time ordered to be done or forbidden to be done in the martial law proclamation or regulations of the invading or occupying commander. was good and valid. supra. evident that the sentence rendered by the Court of Special and Exclusive Criminal Jurisdiction against the petitioner. as are all political offenses. The execution also of punitive sentences ceases as of course when they have had reference to acts not criminal by the municipal law of the state. Thus. which is within the admitted power or competence of the belligerent occupant to punish. trespassing on defense works. espionage. whether they introduce any positive change into the organization of the country. . using seditious language. Like any other legislator he is morally subject to the duty of giving sufficient notice of his enactments or regulations. since it was within the admitted power or competence of the belligerent occupant to promulgate the law penalizing the crime of which petitioner was convicted. in the Anglo-Boer war. hindering those in execution of military orders. together with several others. remain good.) Westlake. War. such for example as acts directed against the security or control of the invader. sending prohibited goods. safety and security of the belligerent occupant. to the extent that they take effect during the continuance of his control. are defined and also penalized by the territorial law Revised Penal Code. 7 and placed under jurisdiction of the Court of Special and Exclusive Criminal Jurisdiction — are all of a political complexion. In order to resolve this last question. vehicles. opines "that judicial acts done under this control. administrative acts so done. flight to enemy's country. Especially taking into consideration the fact. . and were acts in aid or favor of the enemy and against the welfare. that is whether or not. 242. Political acts on the other hand fall through as of course. such as rebellion. to wit: treason. by the principle of postliminy.1907). for public rather than private reasons. wearing uniforms without due authority. 7. speaking of the duration of the validity of punitive sentences for offenses such as the one in question. when required by military necessity and so far as practically carrying out his will can be distinguished from punishment. illegal possession of firearms and other. the punitive sentence which petitioner is now serving fell through or ceased to be valid from that time. penalized by Ordinance No. of horses. inciting war. they became inapplicable as crimes against the occupier upon the occupation of the Islands by the Japanese forces. says that: "To the extent to which the legal power of the occupant is admitted he can make law for the duration of his occupation. (3) The last question is the legal effect of the reoccupation of the Philippines and restoration of the Commonwealth Government. sedition and disloyalty. Such offenses. commenting on the effect of the principle of postliminy upon sentences of the tribunals continued or created by the belligerent occupant. piracy. therefore. 1944.) It is. violation of neutrality. going out of doors between certain hours. it is not necessary to enter into an elaborate discussion on the matter.

and no civil right conferred by it can be further enforced. supra. 1940 Doctrine: Social Justice LAUREL. Applying that doctrine to the present case.. 7 and Act No. 65. So ordered. The invaded state is not subject to the indignity of being obliged to execute his commands.. WILLIAMS. will bind any member of the occupied population as against any other member of it. 98. When the occupation comes to an end the authority of the national government is restored. 245. G. without pronouncement as to costs. says: "In general. D. no redress can be had for what has been actually carried out but nothing further can follow from the occupant's legislation. in order to give retroactive effect to the nullification of said penal act and invalidate sentence rendered against petitioner under said law. concurs in the result. whether morally justifiable or not. Moran. J. alienation of the domains of the State or the sovereign). When occupation ceases. Part II.J. and to those that beyond the period of occupation. (Westlake. to sentences for 'war treason' and'war crimes. A prisoner detained under it must be released. p. But this rule does not necessarily apply to acts that exceed the occupant's power (e. in its resolution of July 17. resolved to recommend to the Director of the Public Works and to the Secretary of Public Works and Communications that animal- drawn vehicles be prohibited from passing along the following for a period of one year from the date of the opening of the Colgante Bridge to traffic: 1) Rosario Street extending from Plaza Calderon de la Barca to Dasmariñas . 47800 December 2. among them Act No. the cast of the occupant possess legal validity. Pablo and Bengzon. although good and valid during the military occupation of the Philippines by the Japanese forces. ceased to be valid upon the reoccupation of the islands by virtue of the principle or right of postliminium. 65. War. of the so-called Republic of the Philippines under which petitioner was convicted.R. 1940." (Wheaton's International Law. a sentence which. ET AL.' to acts of a political character. who..g. Valdez Tan Keh and Dizon. and will bind as between them all and their national government. International Law. It may not be amiss to say in this connection that it is not necessary and proper to invoke the proclamation of General Douglas MacArthur declaring null and void all laws. 97. concur. no reparation is legally due for what has already been carried out. In view of all the foregoing. the sentence which convicted the petitioner of a crime of a political complexion must be considered as having ceased to be valid ipso facto upon the reoccupation or liberation of the Philippines by General Douglas MacArthur. Jaranilla. MAXIMO CALALANG vs A. had already become null and of no effect. supra.) We have already held in our recent decision in the case of Co Kim Cham vs.: Facts: The National Traffic Commission. JJ. considers as war crimes such offenses as those penalized in Ordinance No.. the writ of habeas corpus prayed for is hereby granted and it is ordered that the petitioner be released forthwith. as above stated. that all judgments of political complexion of the courts during the Japanese regime. C. The enemy's law depends on him for enforcement as well as for enactment. No. We therefore hold that the punitive sentence under consideration. either by the progress of operations during the war or by the conclusion of a peace.occupant within his admitted power. and under international law should not be abrogated by the subsequent government. before the proclamation. ceased to be good and valid ipso facto upon the reoccupation of these Island and the restoration therein of the Commonwealth Government. so far as it produces an effect during the occupation. pp.) And Wheaton.

548 constitute an unlawful inference with legitimate business or trade and abridged the right to personal liberty and freedom of locomotion? 2) Whether the rules and regulations complained of infringe upon the constitutional precept regarding the promotion of social justice to insure the well-being and economic security of all the people? Held: 1) No. Public welfare lies at the bottom of the promulgation of the said law and the state in order to promote the general welfare may interfere with personal liberty. health. It was inspired by the desire to relieve congestion of traffic. The paradox lies in the fact that the apparent curtailment of liberty is precisely the very means of insuring its preserving. Liberty is a blessing which should not be made to prevail over authority because society will fall into anarchy. the Director recommended to the Secretary the approval of the recommendations made by the Chairman of the National Traffic Commission with modifications. Neither should authority be made to prevail over liberty because then the individual will fall into slavery. The Secretary of Public Works approved the recommendations on August 10. As a consequence. The promulgation of the Act aims to promote safe transit upon and avoid obstructions on national roads in the interest and convenience of the public. Issues: 1) Whether the rules and regulations promulgated by the respondents pursuant to the provisions of Commonwealth Act NO. 1940. which is a menace to the public safety. 548 which authorizes said Director with the approval from the Secretary of the Public Works and Communication to promulgate rules and regulations to regulate and control the use of and traffic on national roads. . The Mayor of Manila and the Acting Chief of Police of Manila have enforced and caused to be enforced the rules and regulation. with property. and prosperity of the State.Street from 7:30Am to 12:30 pm and from 1:30 pm to 530 pm. To this fundamental aims of the government. In enacting said law. and 2) along Rizal Avenue extending from the railroad crossing at Antipolo Street to Echague Street from 7 am to 11pm The Chairman of the National Traffic Commission on July 18. and with business and occupations. all animal-drawn vehicles are not allowed to pass and pick up passengers in the places above mentioned to the detriment not only of their owners but of the riding public as well. the National Assembly was prompted by considerations of public convenience and welfare. Persons and property may be subject to all kinds of restraints and burdens in order to secure the general comfort. 1940 recommended to the Director of Public Works with the approval of the Secretary of Public Works the adoption of thethemeasure proposed in the resolution aforementioned in pursuance of the provisions of theCommonwealth Act No. On August 2.1940. the rights of the individual are subordinated.

nor anarchy.. the correlative allegiance of Filipino citizens thereto was then suspended. constitutionally. respondent. nor atomism. Jr. Unite States.R. L-409 January 30. and (2) that there was a change of sovereignty over these Islands upon the proclamation of the Philippine Republic: (1) Considering that a citizen or subject owes. 1947 ANASTACIO LAUREL. Recto and Querube C. through the adoption of measures legally justifiable. in return for the protection he receives. L-409. through the exercise of powers underlying the existence of all governments on the time-honored principles of salus populi estsuprema lex. for the reason (1) that the sovereignty of the legitimate government in the Philippines and. Social justice must be founded on the recognition of the necessity of interdependence among divers and diverse units of a society and of the protection that should be equally and evenly extended to all groups as a combined force in our social and economic life. Considering that the absolute and permanent allegiance of the inhabitants of a territory occupied by the enemy of their legitimate government or sovereign is not abrogated or severed by the enemy occupation. ed. Social justice is “neither communism. (Carlisle vs.” but the humanization of laws and the equalization of social and economic forces by the State so that justice in its rational and objectively secular conception may at least be approximated. and which consists in the obedience to the laws of the government or sovereign. 429. but an absolute and permanent allegiance. consistent with the fundamental and paramount objective of the state of promoting health. and of bringing about “the greatest good to the greatest number.. vs. 21 Law. through the maintenance of a proper economic and social equilibrium in the interrelations of the members of the community. 526).. consequently. the Court. not a qualified and temporary. ERIBERTO MISA. Social justice means the promotion of the welfare of all the people. the adoption by the Government of measures calculated to insure economic stability of all the competent elements of society. or extra-constitutionally. No. 6 Web. comfort and quiet of all persons. No. petitioner. . First Assistant Solicitor General Reyes and Solicitor Hernandez. etc. and that this absolute and permanent allegiance should not be confused with the qualified and temporary allegiance which a foreigner owes to the government or sovereign of the territory wherein he resides. so long as he remains there. acting on the petition for habeas corpusfiled by Anastacio Laurel and based on a theory that a Filipino citizen who adhered to the enemy giving the latter aid and comfort during the Japanese occupation cannot be prosecuted for the crime of treason defined and penalized by article 114 of the Revised Penal Code. Works. for respondent.” Republic of the Philippines SUPREME COURT Manila EN BANC G. Anastacio Laurel vs. which consists in the obligation of fidelity and obedience to his government or sovereign. RESOLUTION In G. Makalintal for petitioner. Eriberto Misa. nor despotism. Secretary of State Webster Report to the President of the United States in the case of Thraser.2) No.R. Claro M.

and therefore there is no such thing as suspended allegiance. such as treason and espionage. 253. but of the existence of a government de factotherein and its power to promulgate rules and laws in the occupied territory. be considered similar to the temporary allegiance which a foreigner owes to the government or sovereign of the territory wherein he resides in return for the protection he receives as above described. on the other hand. or severed and transferred to another. the protection he is entitled to in his own. and does not do away with the absolute and permanent allegiance which the citizen residing in a foreign country owes to his own government or sovereign. the word "sovereignty" used therein should be construed to mean the exercise of the rights of sovereignty. and may be destroyed. 482). inciting to war. because as this remains vested in the legitimate government and is not transferred to the occupier. the political laws which prescribe the reciprocal rights. decided in 1819. as a corollary of the conclusion that the sovereignty itself is not suspended and subsists during the enemy occupation. Valdez Tan Keh and dizon. "although the former is in fact prevented from exercising the supremacy over them" is one of the "rules of international law of our times". and that in the second case. Valdez Tan Keh and Dizon (75 Phil. as a corollary of the suspension of the exercise of the rights of sovereignty by the legitimate government in the territory occupied by the enemy military forces. 45. such as rebellion. illegal . as we have held in the cases of Co Kim Cham vs. lose his original citizenship. must have been based. if the said conclusion or doctrine refers to the suspension of the sovereignty itself." repudiated by Oppenheim and other publicists. correspondence with hostile country. Director of Prisons. not of sovereignty. (II Oppenheim. Rice. that just as a citizen or subject of a government or sovereign may be prosecuted for and convicted of treason committed in a foreign country. in the first case. that the subsistence of the sovereignty of the legitimate government in a territory occupied by the military forces of the enemy during the war. and disloyalty. set forth in the decision in the case of United States vs. that the crimes against national security. 6th Lauterpacht ed. p. 1944. as well as those against public order. and that if the allegiance of a citizen or subject to his government or sovereign is nothing more than obedience to its laws in return for the protection he receives. that what may be suspended is the exercise of the rights of sovereignty with the control and government of the territory occupied by the enemy passes temporarily to the occupant. recognized. the allegiance of the inhabitants to their legitimate government or sovereign subsists. that the military occupation of an enemy territory does not transfer the sovereignty to the occupant. by necessary implication. and therefore it can not be applied to the present case. supra). Director of Prisons (75 Phil. it has become obsolete after the adoption of the Hague Regulations in 1907. in connection with the question. they are inoperative or not applicable to the government established by the occupant. 44. either on the theory adopted subsequently in the Hague Convention of 1907. and if it is not transferred to the occupant it must necessarily remain vested in the legitimate government. but it cannot be suspended because the existence of sovereignty cannot be suspended without putting it out of existence or divesting the possessor thereof at least during the so-called period of suspension. on one hand. for the only reason that as they exclusively bear relation to the ousted legitimate government.. flight to enemy's country. 246. Valdez Tan Keh and Dizon and Peralta vs. at most. supra. such allegiance may. that the sovereignty vested in the titular government (which is the supreme power which governs a body politic or society which constitute the state) must be distinguished from the exercise of the rights inherent thereto. because he would not be bound to obey most of the laws of his own government or sovereign. 4 Wheaton. that is. while in a foreign country. sedition. it cannot be suspended without putting it out of existence or divesting said government thereof. in the same way an inhabitant of a territory occupied by the military forces of the enemy may commit treason against his own legitimate government or sovereign if he adheres to the enemies of the latter by giving them aid and comfort. and 52 of Hague Regulation. in return for the protection he receives. because the authority of the legitimate power to govern has passed into the hands of the occupant (Article 43. duties and obligation of government and citizens.. it would necessarily follow that a citizen who resides in a foreign country or state would. Hague Regulations). and quoted in our decision in the cases of Co Kim Cham vs. Considering that the conclusion that the sovereignty of the United State was suspended in Castine. Considering that.. and would not receive. as descriptive of the relations borne by the inhabitants of the territory occupied by the enemy toward the military government established over them. in articles 23. 285). and would. that. Considering that even adopting the words "temporarily allegiance.because the sovereignty of the government or sovereign de jure is not transferred thereby to the occupier. and that. 113) and of Peralta vs. the basic theory on which the whole fabric of the petitioner's contention rests. ipso factoacquire the citizenship thereof since he has enforce public order and regulate the social and commercial life. are suspended or in abeyance during military occupation (Co Kim cham vs.

a crime against the Government of the Philippines established by authority of the people of the Philippines. all the powers of de facto government and may. Considering that adoption of the petitioner's theory of suspended allegiance would lead to disastrous consequences for small and weak nations or states. . upon the establishment of the Commonwealth Government in 1935. of the Constitution of the Philippines. while the offenses against public order to be preserved by the legitimate government were inapplicable as offenses against the invader for the reason above stated. when it is necessary for the occupier to do so for the control of the country and the protection of his army. those laws that enforce public order and regulate the social and commercial life of the country. as well and those which. are in conflict with such laws and orders of the occupier. and even compel those who are not aid them in their military operation against the resisting enemy forces in order to completely subdue and conquer the whole nation. the former may lawfully resist and die if necessary as a hero. the Congress and the President of the United States. although the military occupant is enjoined to respect or continue in force. either change the existing laws or make new ones when the exigencies of the military service demand such action. all acts of the military occupant dictated within these limitations are obligatory upon the inhabitants of the territory. and that. unless inconsistent with this Constitution . and thus deprive them all of their own independence or sovereignty — such theory would sanction the action of invaders in forcing the people of a free and sovereign country to be a party in the nefarious task of depriving themselves of their own freedom and independence and repressing the exercise by them of their own sovereignty. because they can not be committed against the latter (Peralta vs. because the inhabitants of the occupied territory were still bound by their allegiance to the latter during the enemy occupation. to give him aid and comfort. consequently. for it would allow invaders to legally recruit or enlist the Quisling inhabitants of the occupied territory to fight against their own government without the latter incurring the risk of being prosecuted for treason. or compel them to adhere and give aid and comfort to him. though originally intended to be a crime against said government as then organized by authority of the sovereign people of the United States. who are bound to obey them. at his pleasure. . if an inhabitant of the occupied territory were compelled illegally by the military occupant. which are of political complexion because they bear relation to. and all references in such laws to the Government or officials of the Philippine Islands. are also suspended or become inapplicable as against the occupant. the usages established by civilized nations. supra). 77). and would be repugnant to the laws of humanity and requirements of public conscience. shall . subject to the restrictions or limitations imposed by the Hague Regulations. or submit thereto without becoming a traitor. therefore. Article II. exercised through their authorized representative. and that. and the laws of the legitimate government which have not been adopted. . unless adopted by him. (2) Considering that the crime of treason against the government of the Philippines defined and penalized in article 114 of the Penal Code. . and because it is tantamount to practically transfer temporarily to the occupant their allegiance to the titular government or sovereign. was made. that is. the laws of humanity and the requirements of public conscience (Peralta vs. threat or intimidation. essential for the preservation of the allegiance owed by the inhabitants to their legitimate government. Considering that. and that. were also inoperative as against the ousted government for the latter was not responsible for the preservation of the public order in the occupied territory.possession of firearms. shall remain operative. was applicable to treason committed against the national security of the legitimate government. unless absolutely prevented by the circumstances. by virtue of the provision of section 2. Considering that.Director of Prisons. supra. shall be considered as suspended or not in force and binding upon said inhabitants. but only passive attitude or forbearance from adhering to the enemy by giving the latter aid and comfort. Article XVI thereof. yet article 114 of the said Revised Penal Code. as a corollary of the preceding consideration. because it is evident that such action is not demanded by the exigencies of the military service or not necessary for the control of the inhabitants and the safety and protection of his army. which provides that "All laws of the Philippine Islands . nevertheless. the occupant has no power. in other words. and are penalized by our Revised Penal Code as crimes against the legitimate government. to commit a political suicide. though continued in force. to repeal or suspend the operation of the law of treason. since the preservation of the allegiance or the obligation of fidelity and obedience of a citizen or subject to his government or sovereign does not demand from him a positive action. in whom the sovereignty resides according to section 1. Director of Prisons. 1940 United States Rules of Land Warfare 76. through force. he has.

as it is hereby denied. without prejudice to write later on a more extended opinion. among them in the case of Jones vs. Messrs. Gibbs. citizens and subjects of the country. Article II). that the late President Roosevelt in one of his messages to Congress said. because it is an offense against the same government and the same sovereign people. respondents. in the same way treason may have been committed during the Japanese occupation against the sovereignty of the United States as well as against the sovereignty of the Philippine Commonwealth. be construed. for the reasons above set forth and for others to be stated in the said opinion. 29. which contains the declaration that "Sovereignty resides in the people and all government authority emanates from them" (section 1. Vol. "As I stated on August 12. was recognized not only by the Legislative Department or Congress of the United States in approving the Independence Law above quoted and the Constitution of the Philippines. This Court resolves. if any. United States (137 U. L-1648 August 17. A. 1949 PEDRO SYQUIA. the Commonwealth of the Philippines shall thenceforth be known as the Republic of the Philippines". part 6. Justices Paras and Hontiveros dissent in a separate opinion. and that the change of our form of government from Commonwealth to Republic does not affect the prosecution of those charged with the crime of treason committed during the Commonwealth. petitioners. in so far as applicable. No. SANCHEZ. among others. was one of the few limitations of the sovereignty of the Filipino people retained by the United States. GEORGE F. Mr. 202. Considering that section I (1) of the Ordinance appended to the Constitution which provides that pending the final and complete withdrawal of the sovereignty of the United States "All citizens of the Philippines shall owe allegiance to the United States". CONRADO V. Wolfson for respondent. but these limitations do not away or are not inconsistent with said sovereignty. 696) that the question of sovereignty is "a purely political question.. but also by the Executive Department of the United States. without prejudice to concurring opinion therein. Chuidian and Quasha for petitioner. and that it is a principle upheld by the Supreme Court of the United States in many cases. J. Judge of Court of First Instance of Manila. Judge of Municipal Court of Manila. 691. the United States in practice regards the Philippines as having now the status as a government of other independent nations — in fact all the attributes of complete and respected nationhood" (Congressional Record. justice Perfecto concurs in a separate opinion.. to refer to the Government and corresponding officials under this constitution. 1943. ET AL. J.R. the determination of which by the legislative and executive departments of any government conclusively binds the judges. that just as to reason may be committed against the Federal as well as against the State Government. to deny the petitioner's petition. GONZALO SYQUIA. though not absolute but subject to certain limitations imposed in the Independence Act and incorporated as Ordinance appended to our Constitution.. Considering that the Commonwealth of the Philippines was a sovereign government. ed. vs. page 8173). MONTEMAYOR. and LEOPOLDO SYQUIA.: . in the same way that the people of each State of the Union preserves its own sovereignty although limited by that of the United States conferred upon the latter by the States.S. Republic of the Philippines SUPREME COURT Manila EN BANC G. 34 Law. Upon the final and complete withdrawal of the sovereignty of the United States and the proclamation of Philippine independence. NATIVIDAD ALMEDA LOPEZ. as well as all other officers. Gibbs. MOORE. for Article XVIII of our Constitution provides that "The government established by this constitution shall be known as the Commonwealth of the Philippines.

each occupants to pay P300 a month for his particular apartment from January 1. 1947. was said to control the occupancy of the said apartment houses and had authority in the name of the United States Government to assign officers of the U. The predecessors in office of Moore in a letter dated June 6. Mabini Streets. Army in the Manila Theatre. Office of the District Engineers. P1. Manila. the plaintiffs commenced the present action in the Municipal Court of Manila in the form of an action for unlawful detainer (desahucio) against Moore and Tillman and the 64 persons occupying apartments in the three buildings for the purpose of having them vacate the apartments. Because of the alleged representation and assurance that the U. del Pilar." The apartment buildings were used for billeting and quartering officers of the U. respectively. approached the predecessors in office of defendants Moore and Tillman and requested the return of the apartment buildings to them. refused to execute new leases but advised that "it is contemplated that the United States Army will vacate subject properties prior to 1 February 1947. all surnamed Syquia. 1946. and P3. 1946.890 for the South Syquia Apartment. Manila. and that in the event said occupants are unable to pay said P300 a month and/or the damages sustained by said property. and Leopoldo. the defendants Moore and Tillman jointly and severally be made to pay said monthly rentals of P300 per month per apartment from January 1. H. (d) release of said apartment buildings within thirty days of said notice in the event of the failure to comply with the foregoing demands. Defendant Moore and Tillman themselves did not occupy any part of the premises in question. when Japan surrendered. S. inclusive. in favor of the United States of America at a monthly rental of P1. About the middle of the year 1945. Because of the failure to comply with the alleged representation and assurance that the three apartment buildings will be vacated prior to February 1. del Pilar and 1188 A. 1947 until each of said particular defendant had vacated said apartment. 1947. Real Estate Division. (b) increase in rentals to P300 per month per apartment effective thirty days from notice. and that defendants Moore and Tillman be permanently enjoined against ordering any additional parties in the future from entering and occupying said premises. 1947 to March 19. are the undivided joint owners of three apartment buildings situated in the City of Manila known as the North Syquia Apartments. 1151 M. one for each of the three apartments. when these court proceedings were commenced. plaintiffs sometime in March. Under the theory that said leases terminated six months after September 2. execute lease contract for a period of three years and to pay a reasonable rental higher than those payable under the old contracts. Government would vacate the premises before February 1. the plaintiffs took no further steps to secure possession of the buildings and accepted the monthly rentals tendered by the predecessors in office of Moore and Tillman on the basis of a month to month lease subject to cancellation upon thirty days notice. The thirty-day period having expired without any of the defendants having complied with plaintiffs' demands. Tillman refused to comply with the request. to permit plaintiffs access to said apartment buildings for the purpose of appraising the damages sustained as the result of the occupancy by defendants. U.335 for the Michel Apartments. armed forces stationed in the Manila area. The term or period for the three leases was to be "for the duration of the war and six months thereafter. On May 11. Acting upon a motion to dismiss filed through the Special Assistant of the Judge Advocate. and as Commanding General of the U. Army wanted to continue occupying the premises.S. said plaintiffs requested the predecessors in office of Moore and Tillman to renegotiate said leases. Gonzalo.For the purposes of this decision. In March 1947. 1945. South Syquia Apartments and Michel Apartments located at 1131 M. Army. but were advised that the U. S. the following facts gathered from and based on the pleadings. H.775 for the North Syquia Apartments. otherwise. 1947. Philippine Ryukus Command on the ground that the court had no jurisdiction over the defendants and over the subject matter of the . who. plaintiffs on February 17. Philippine Ryukus Command. 1946. S. S. Tillman was the Chief. George F. said plaintiffs executed three lease contracts. that defendants be ordered to pay plaintiffs whatever damages may have been actually caused on said property." Not being in conformity with the continuance of the old leases because of the alleged comparatively low rentals being paid thereunder. under the command of defendant Moore was in direct charge and control of the lease and occupancy of said three apartment buildings. unless sooner terminated by the United States of America. Moore was the Commanding General. and/or the damages sustained by said apartments. S. may be stated. The plaintiffs named Pedro. 1946. demanding (a) cancellation of said leases. plaintiffs formally requested Tillman to cancel said three leases and to release the apartment buildings on June 28. United States Army. (c) execution of new leases for the three or any one or two of the said apartment buildings for a definite term. served formal notice upon defendants Moore and Tillman and 64 other army officers or members of the United States Armed Forces who were then occupying apartments in said three buildings. Army to said apartments or to order said officers to vacate the same. Erland A. 1947.

S.895 in rentals due and owing to petitioners. the South Syquia Apartments and Michel Apartments would be vacated by their occupants on February 29. S. and that the complaint did not state a cause of action.. and May 31. As a matter of fact. found that the war between the United States of America and her allies on one side and Germany and Japan on the other. reserving all of their rights against respondents including the right to collect rents and damages. because the real party in interest was the U.S. S. S. particularly the question of jurisdiction. Dollar. vs. The case was orally argued on November 26.. 167 U. 106 U. that the question of law involved in this case may again come up before the courts when conflicts arise between Filipino civilian property owners and the U.. the present suit must be regarded as one against the United States Government itself. Moore and Tillman filed a motion to dismiss on several grounds.action. affirmed the order of the municipal court dismissing plaintiffs' complaint. who feels aggrieved by the acts of the Government of a foreign country has the right to demand that the Philippine Government study his claim and if found meritorious. that they have not been paid rents since January 1. 1209. 1947. a judgment in these proceedings may become a charge against the U. take such diplomatic steps as may be necessary for the vindication of rights of that citizen. 1947. 1949. and now that both the possession of the three apartments in question as well as the rentals for their occupation have already .895 as rentals for the three apartments. On March 4. courts have jurisdiction over cases where private parties sue to recover possession of property being held by officers or agents acting in the name of the U. consequently. as a result of which. as the parties named as defendants are officers of the United States Army and were occupying the buildings in question as such and pursuant to orders received from that Government. to say nothing of the damages claimed. ed. Treasury. not only at the rate agreed upon in the lease contracts entered into by the United States of America but in excess of said rate. Government with respect to the three apartment houses. Not being satisfied with the order. It conceded that under the doctrine laid down in the case of U. the petitioners will be unable to enforce collection. that should this case be now dismissed. March 31. Lee. claimed that the plaintiffs and petitioners possession of the three apartment houses. far from dismissing the case. counsel for respondents Almeda Lopez. which cannot be sued without its consent. 1947. 1947. S. but inasmuch as the plaintiffs in the present case are bringing this action against officers and agents of the U. Government even though no suit can be brought against the Government itself. Counsel for the petitioners answering the motion. had not yet terminated and. petitioners filed a petition which. but also to collect back rents. S. that under the well settled rule of International Law. that it was clear from the allegations of the complaint that although the United States of America has not been named therein as defendant. 1947. and that the matter included or involved in the action should be a proper subject matter of representations between the Government of the Government of the United States of America and the Philippines. Moore and Tillman filed a petition to dismiss the present case on the ground that it is moot. S. Consequently. respectively. through a "petition to amend complaint" counsel for the petitioners informed this court that petitioners had already received the U. where the motion to dismiss was renewed. plaintiffs appealed to the Court of Manila. it is nevertheless the real defendant in this case. Government and not the individual defendants named in the complaint. In view of this last petition. S. counsel for respondents alleging that both respondent Moore and Tillman had long left the Islands for other Army assignments. this Court. specially by citizens of another country. 196 and affirmed in the case of Tindal vs. The plaintiffs as petitioners have brought this case before us on a petition for a writ of mandamus seeking to order the Municipal Court of Manila to take jurisdiction over the case. then under the rule laid down in the case of Land vs. The municipal court dismissed the action with costs against the plaintiffs with the suggestion or opinion that a citizen of the Philippines. a foreign government like the United States Government cannot be sued in the courts of another state without its consent. Sanchez. but with the reservation that said acceptance should not be construed as jeopardizing the rights of the petitioners in the case now pending in the courts of the Philippines or their rights against the U. informed this Court that the North Syquia Apartments. On October 30. Sanchez. 91 Law.S. Government. 1948. On the basis of this petition and because of the return of the three apartment houses to the owners. 1948. Wesley. said apartments were actually vacated on the dates already mentioned and were received by the plaintiff-owners. should decide it. the municipal court of Manila in an order dated April 29.S. Government not only to recover the possession of the three apartment houses supposedly being held illegally by them in the name of their government. according to the petitioners. among other things. that respondents admitted that there is a total of P109. Army authorities concerning contracts entered into in the Philippines between said Filipinos and the U. the period or term of the three leases had not yet expired. On June 18. counsel for respondents Almeda Lopez. 204 ordinarily. The Court of First Instance of Manila in an order dated July 12. Army Forces in the Western Pacific the sum of P109.

this Court may now well dismiss the present proceedings on the ground that the questions involved therein have become academic and moot. considering the facts involved therein as well as those of public knowledge of which we take judicial cognizance. Government. U. S. supra. The main purpose of the original action in the municipal court was to recover the possession of the three apartment houses in question. 91 Law. The philosophy of this ruling is that unless the courts are permitted to take cognizance and to assume jurisdiction over such a case. Office of the District Engineer.been received by the petitioners renew their motion for dismissal on the ground that this case has now become moot. The refusal to renegotiate the leases as requested by the petitioners was made not by Moore but by his predecessors in office according to the very complaint filed in the municipal court. Counsel for the petitioners however. Real State Division. officers and agents of the Government who are said to be illegally witholding the same from him. and was in direct charge and control of the leases and occupancy of the apartment buildings.895 had been paid to the petitioners and accepted by them though under reservations. 1209.) From a careful study of this case. his superior officer. The lessee in each of the three lease agreements was the United States of America and the lease agreement themselves were executed in her name by her officials acting as her agents. and this is important. a private citizen claiming title and right of possession of a certain property may. Army will vacate the premises prior to February 29. when it is made to appear in the suit against them that the title and right of possession is in the private citizen. S. then the suit should be regarded as one against the government itself. was also made by the predecessors in office of Moore. it cannot prosper or be validly entertained by the courts except with the consent of said Government. apart from the fact that the rentals amounting to P109. we are convinced that the real party in interest as defendant in the original case is the United States of America. the contracts of lease were entered into by such Government but also because the premises were used by officers of her armed forces during the war and immediately after the terminations of hostilities. The notice and decision that the U. and denied not by Moore and Tillman but by their predecessors in office. We accept the suggestion of petitioners and shall proceed to discuss the facts and law involved and rule upon them. and the court may entertain such a suit altho the Government itself is not included as a party- defendant. vs. where the judgment in such a case would result not only in the recovery of possession of the property in favor of said citizen but also in a charge against or financial liability to the Government. according to the complaint he was Chief. The recovery of rentals as submitted by the very counsel for the petitioner was merely incidental to the main action. Of course. (See case of Land vs. and. The original request made by the petitioners for the return of the apartment buildings after the supposed termination of the leases. ed. As to the defendant Tillman. not only for the satisfaction of the parties involved but also to serve as a guide in future cases involving cases of similar nature such as contracts of lease entered into between the Government of the United States of America on one side and Filipino citizens on the other regarding properties of the latter. We cannot see how the defendants and respondents Moore and Tillman could be held individually responsible for the payments of rentals or damages in relation to the occupancy of the apartment houses in question. as already stated. Army. However. sue as individuals.. consequently. a private citizen would be helpless and without redress and protection of his rights which may have been invaded by the officers of the government professing to act in its name. the recovery of the possession of the premises. but he was under the command of defendant Moore. to recover possession of said property. vs. Lee and U. We cannot see how said defendant Tillman in assigning new officers to occupy apartments in the three buildings. particularly on the question of jurisdiction of the municipal court over the original action. though in doing so. 1947. We shall concede as correctly did the Court of First Instance. S. Government not only because. Tindal. insists that a decision be rendered on the merits. S. The original action in the municipal court was brought on the basis of these three lease contracts and it is obvious in the opinion of this court that any back rentals or increased rentals will have to be paid by the U. S. said officers and agents claim that they are acting for the Government. S. that following the doctrine laid down in the cases of U. Both of these army officials had no intervention whatsoever in the execution of the lease agreements nor in the initial occupancy of the premises both of which were effected thru the intervention of and at the instance of their predecessors in office. The assurance that the U. in obedience to order or direction from his . Dollar. Army wanted and in fact continued to occupy the premises was made not by Moore and Tillman but by predecessors in office. The considerations or rentals was always paid by the U. In such a case the officials or agents asserting rightful possession must prove and justify their claim before the courts. Because the prime purpose of the action had been achieved. S. was made to. namely. the Government is not bound or concluded by the decision.

J. They were merely assigned quarters in the apartment buildings in question. as long as and until orders to the contrary were received by him. At least. Said assignments or billets may well be regarded as orders. Case dismissed. without the approval of his government. he was not in a position to pay increased rentals above those set and stipulated in the lease agreements. not a lawyer by profession but a soldier. . Dollar already cited. specially in the absence of proof that such damages to property had been caused by them and not by the previous occupants. S. defendant Moore. The question of lack of jurisdiction was raised and interposed at the very beginning of the action.. or for any damages to the premises incident to all leases of property. Paras. and continued to live in their apartments unless and until orders to the contrary were received by them. and all that those officers did was to obey them. when he assumed his command in Manila. neither do we believe nor find that defendant Moore can be held personally liable for the payment of back or increased rentals and alleged damages. Government has not given its consent to the filing of this suit which is essentially against her. and he had reasons to believe that he could continue holding and using the premises theretofore assigned for that purpose and under contracts previously entered into by his government. these lease agreement had already been negotiated and executed and were in actual operation. could they later be held personally liable for any back rentals which their government may have failed to pay to the owners of the building. As to the army officers who actually occupied the apartments involved. could be held personally liable for the payment of rentals or increase thereof. occupied the rooms assigned to them. and whether their occupancy of their rooms or apartments was legal or illegal? And if they dismissed these seemingly idle speculations. can it be supposed or conceived that such army officers would first inquire whether the rental being paid by the government for the rooms or apartments assigned to them by order of their superior officer was fair and reasonable or not. and whether the period of lease between their government and the owners of the premises had expired. Government. without pronouncement as to costs. unless he personally assumed financial responsibility therefor. Moreover. must have consulted and sought the advise of his legal department. that any judgment for back or increased rentals or damages will have to be paid not by defendants Moore and Tillman and their 64 co-defendants but by the said U. Under these circumstances. It must be remembered that these army officers when coming to their station in Manila were not given the choice of their dwellings. concur. there is less reason for holding them personally liable for rentals and supposed damages as sought by the plaintiffs. which renders more obvious the lack of jurisdiction of the courts of his country. or damages said to have been suffered by the plaintiffs. It is clear that the courts of the Philippines including the Municipal Court of Manila have no jurisdiction over the present case for unlawful detainer. All that he must have done was to assign or billet incoming army officers to apartments as they were vacated by outgoing officers due to changes in station.superior. S. On the basis of the foregoing considerations we are of the belief and we hold that the real party defendant in interest is the Government of the United States of America. Government. The three apartment buildings were occupied by army officers assigned thereto by his predecessors in office. On the basis of the ruling in the case of Land vs.. also army officers who are not now parties defendant to this suit? Incidentally it may be stated that both defendants Moore and Tillman have long left these Islands to assume other commands or assignments and in all probability none of their 64 co-defendants is still within this jurisdiction. Tuason and Reyes. this is not only a case of a citizen filing a suit against his own Government without the latter's consent but it is of citizen filing an action against a foreign government without said government's consent. though not in name. and. It is even to be presumed that when demand was made by the plaintiffs for the payment of increased rentals or for vacating the three apartment buildings. Under such circumstances. defendant Moore. accordingly. Moran. Feria. With respect to defendant General Moore. In conclusion we find that the Municipal Court of Manila committed no error in dismissing the case for lack of jurisdiction and that the Court of First Instance acted correctly in affirming the municipal court's order of dismissal. The principles of the law behind this rule are so elementary and of such general acceptance that we deem it unnecessary to cite authorities in support thereof. and that his action in declining to pay the increased rentals or to eject all his army officers from the three buildings must have been in pursuance to the advice and counsel of his legal division. He found these apartment buildings occupied by his government and devoted to the use and occupancy of army officers stationed in Manila under his command. The U. S. JJ. assuming that they ever entered their minds. and on what we have already stated. C. Bengzon. the present action must be considered as one against the U.

Siguion Reyna. The Order dated June 20. Jr. while the Order dated September 19. Private respondent. as Presiding Judge of the Regional Trial Court of Makati. I On January 23.1991 Order. In view of the refusal of the squatters to vacate the lots sold to private respondent. 101949 December 1. 90-183. Italy. Starbright Sales Enterprises. No. represented by the Papal Nuncio. Cirilos. acting as agent to the sellers. through Msgr. private respondent filed a complaint with the Regional Trial Court. Metro Manila for annulment of the sale of the three parcels of land. a dispute arose as to who of the parties has the responsibility of evicting and clearing the land of squatters. Domingo A. vs. 271108 and 265388 respectively and registered in the name of the Philippine Realty Corporation (PRC). INC. respondents. Inc.: This is a petition for certiorari under Rule 65 of the Revised Rules of Court to reverse and set aside the Orders dated June 20. ERIBERTO U. Complicating the relations of the parties was the sale by petitioner of Lot 5-A to Tropicana Properties and Development Corporation (Tropicana). Transfer Certificate of Title No. 1991 denied the motion for reconsideration of the June 20. Branch 61 and STARBRIGHT SALES ENTERPRISES.. Said Lot 5-A is contiguous to Lots 5-B and 5-D which are covered by Transfer Certificates of Title Nos. J. and specific performance and damages against petitioner.000 square meters (Lot 5-A. Republic of the Philippines SUPREME COURT Manila EN BANC G. JR. and is represented in the Philippines by the Papal Nuncio. Makati... Jr. 90-183. Montecillo & Ongsiako for private respondent. 1994 THE HOLY SEE. and three other defendants: namely. is a domestic corporation engaged in the real estate business.R. Licup assigned his rights to the sale to private respondent. Makati. Padilla Law Office for petitioner. Petitioner is the Holy See who exercises sovereignty over the Vatican City in Rome. petitioner. This petition arose from a controversy over a parcel of land consisting of 6. Later. Branch 61. the . Metro Manila and registered in the name of petitioner. 1991 denied the motion of petitioner to dismiss the complaint in Civil Case No. Msgr. 1990. 390440) located in the Municipality of Parañaque. Domingo A. THE HON.. QUIASON. 1991 and September 19. ROSARIO.. The three lots were sold to Ramon Licup. Branch 61. Metro Manila in Civil Case No. Cirilos. 1991 of the Regional Trial Court.

the trial court issued an order denying.00 to P1. Cirilos. to no avail.. on behalf of petitioner and the PRC. On June 20. as evidenced by two separate Deeds of Sale. (3) Licup paid the earnest money to Msgr.00 and wrote private respondent giving it seven days from receipt of the letter to pay the original purchase price in cash. Jr. the Papal Nuncio. Cirilos informed private respondent of the squatters' refusal to vacate the lots. petitioner's motion to dismiss after finding that petitioner "shed off [its] sovereign immunity by entering into the business contract in question" (Rollo. proposing instead either that private respondent undertake the eviction or that the earnest money be returned to the latter. it lost profits of not less than P30.240. (3) specific performance of the agreement to sell between it and the owners of the lots. (2) the reconveyance of the lots in question. petitioner and Msgr. (2) the agreement to sell was made on the condition that earnest money of P100.PRC and Tropicana (Civil Case No. agreed to sell to Ramon Licup Lots 5-A.150. II .00. Petitioner forthwith elevated the matter to us. and Msgr. In compliance with the resolution of this Court. 20- 21). 1991. petitioner moved for reconsideration of the order. and that the sellers' transfer certificate of title over the lots were cancelled. Msgr. Private respondent opposed this motion as well as the motion for reconsideration. On October 1. but later discovered that on March 30. In its petition. 5-B and 5-D at the price of P1. among others. a Motion for Intervention was filed before us by the Department of Foreign Affairs. Licup assigned his rights over the property to private respondent and informed the sellers of the said assignment. On June 8. claiming that it has a legal interest in the outcome of the case as regards the diplomatic immunity of petitioner. petitioner and the PRC. and Tropicana on the other. 1991. 1990. pp. 1988. On July 12. (4) in the same month. and that the sellers clear the said lots of squatters who were then occupying the same. The complaint alleged that: (1) on April 17. On December 9. the trial court issued an order deferring the resolution on the motion for reconsideration until after trial on the merits and directing petitioner to file its answer (Rollo." So as to facilitate the determination of its defense of sovereign immunity. 1991. and (11) private respondent is willing and able to comply with the terms of the contract to sell and has actually made plans to develop the lots into a townhouse project. On August 30. p.000. sold the lots to Tropicana. the purchase price of the lots should be reduced from P1. private respondent demanded from Msgr. and another over Lots 5-B and 5-D. Cirilos returned the earnest money of P100. transferred and registered in the name of Tropicana. (8) private respondent sent the earnest money back to the sellers. (6) private respondent counterproposed that if it would undertake the eviction of the squatters. Msgr. and that it "adopts by reference.000. petitioner prayed that a hearing be conducted to allow it to establish certain facts upon which the said defense is based. An opposition to the motion was filed by private respondent. 90-183). 87). and (4) damages.00 per square meter. (7) Msgr. 1989. 1991. (10) private respondent demanded the rescission of the sale to Tropicana and the reconveyance of the lots. however.240. Cirilos for being an improper party. petitioner invokes the privilege of sovereign immunity only on its own behalf and on behalf of its official representative. one over Lot 5-A.000. without notice to private respondent. 22). Private respondent thus prayed for: (1) the annulment of the Deeds of Sale between petitioner and the PRC on the one hand. both parties and the Department of Foreign Affairs submitted their respective memoranda.000. (9) Tropicana induced petitioner and the PRC to sell the lots to it and thus enriched itself at the expense of private respondent. Private respondent opposed the intervention of the Department of Foreign Affairs. the allegations contained in the petition of the Holy See insofar as they refer to arguments relative to its claim of sovereign immunity from suit" (Rollo. Cirilos that the sellers fulfill their undertaking and clear the property of squatters. 1991.00 be paid by Licup to the sellers. petitioner filed a "Motion for a Hearing for the Sole Purpose of Establishing Factual Allegation for claim of Immunity as a Jurisdictional Defense. but in view of the sellers' breach. p.00 per square meters. (5) thereafter. Cirilos separately moved to dismiss the complaint — petitioner for lack of jurisdiction based on sovereign immunity from suit. Cirilos.

Tizon. it entered into a commercial transaction for the sale of a parcel of land located in the Philippines. 50 Yale Law Journal 1088 [1941]). In England. Zambales. Calleja. of its own free will. The Holy See Before we determine the issue of petitioner's non-suability. In Public International Law." where the foreign state or the international organization sued in an American court requests the Secretary of State to make a determination as to whether it is entitled to immunity. But the general rule admits of exceptions. 80 Phil. when a state or international agency wishes to plead sovereign or diplomatic immunity in a foreign court. United States of America v. Aquino. Note: Immunity from Suit of Foreign Sovereign Instrumentalities and Obligations. In such a case. 216 SCRA 114 [1992]. he. private respondent insists that the doctrine of non-suability is not anymore absolute and that petitioner has divested itself of such a cloak when. a "suggestion" to respondent Judge. A. 186-190). it would be a sheer waste of time and energy to require the parties to undergo the rigors of a trial. In the Philippines. I International Law 130 [1965]. 50 [1945]. In International Catholic Migration Commission v. a brief look into its status as a sovereign state is in order. the courts can inquire into the facts and make their own determination as to the nature of the acts and transactions involved. In the case at bench. If the Secretary of State finds that the defendant is immune from suit. the practice is for the foreign government or the international organization to first secure an executive endorsement of its claim of sovereign or diplomatic immunity. 206 SCRA 582 [1992].S. 190 SCRA 130 (1990). 75 Phil.A preliminary matter to be threshed out is the procedural issue of whether the petition for certiorari under Rule 65 of the Revised Rules of Court can be availed of to question the order denying petitioner's motion to dismiss. In some cases. pp. 48 SCRA 242 (1972). the Secretary of Foreign Affairs just sent a letter directly to the Secretary of Labor and Employment. The other procedural question raised by private respondent is the personality or legal interest of the Department of Foreign Affairs to intervene in the case in behalf of the Holy See (Rollo. In Baer v. being a foreign state enjoying sovereign immunity. only the Foreign Office issues a certification to that effect instead of submitting a "suggestion" (O'Connell. Bradford. a similar procedure is followed. Florendo. in turn. and one of these is when it is very clear in the records that the trial court has no alternative but to dismiss the complaint (Philippine National Bank v. 182 SCRA 644 [1990] and companion cases). asks the Attorney General to submit to the court a "suggestion" that the defendant is entitled to immunity. 262 [1948]. the U. the Department of Foreign Affairs. Zagada v. Miquiabas v. In the United States. III The burden of the petition is that respondent trial court has no jurisdiction over petitioner. The general rule is that an order denying a motion to dismiss is not reviewable by the appellate courts. The Court allowed the said Department to file its memorandum in support of petitioner's claim of sovereign immunity. it requests the Foreign Office of the state where it is sued to convey to the court that said defendant is entitled to immunity. Philippine-Ryukyus Command. the Secretary of Foreign Affairs sent the trial court a telegram to that effect. the defense of sovereign immunity was submitted directly to the local courts by the respondents through their private counsels (Raquiza v. The Solicitor General embodied the "suggestion" in a Manifestation and Memorandum as amicus curiae. the remedy of the movant being to file his answer and to proceed with the hearing before the trial court. through the Office of Legal Affairs moved with this Court to be allowed to intervene on the side of petitioner. in behalf of the Commander of the United States Naval Base at Olongapo City. 57 SCRA 1 (1974). In cases where the foreign states bypass the Foreign Office. On the other hand. informing the latter that the respondent-employer could not be sued because it enjoyed diplomatic immunity. Guinto. Embassy asked the Secretary of Foreign Affairs to request the Solicitor General to make. the procedure followed is the process of "suggestion. Civil Service Commission. InWorld Health Organization v. . But how the Philippine Foreign Office conveys its endorsement to the courts varies.

Public and Private 81 [1948]). The Lateran Treaty established the statehood of the Vatican City "for the purpose of assuring to the Holy See absolute and visible independence and of guaranteeing to it indisputable sovereignty also in the field of international relations" (O'Connell. In view of the wordings of the Lateran Treaty. The United States passed the Foreign Sovereign Immunities Act of 1976. the Papal Nuncio. and the demands of its mission in the world. There are two conflicting concepts of sovereign immunity. which defines a commercial activity as "either a regular course of commercial conduct or a particular commercial . such principles of International Law are deemed incorporated as part of the law of the land as a condition and consequence of our admission in the society of nations (United States of America v. has had diplomatic representations with the Philippine government since 1957 (Rollo. without its consent. and to enter into treaties according to International Law (Garcia. In 1929. 182 SCRA 644 [1990]). With the loss of the Papal States and the limitation of the territory under the Holy See to an area of 108. 125. the world-wide interests and activities of the Vatican City are such as to make it in a sense an "international state" (Fenwick. through its Ambassador. 87). Coquia and Defensor-Santiago. One authority wrote that the recognition of the Vatican City as a state has significant implication — that it is possible for any entity pursuing objects essentially different from those pursued by states to be invested with international personality (Kunz. According to the classical or absolute theory. one can conclude that in the Pope's own view. I International Law 311 [1965]). Questions and Problems In International Law. be made a respondent in the courts of another sovereign. as the Holy See. each widely held and firmly established. supra. we have adopted the generally accepted principles of International Law. B. where Italy recognized the exclusive dominion and sovereign jurisdiction of the Holy See over the Vatican City. with the Pope. supra. was considered a subject of International Law. it is the Holy See that is the international person. 46 The American Journal of International Law 308 [1952]). Cruz. Public International Law 36-37 [1992]). The Holy See. Guinto. This appears to be the universal practice in international relations. Some writers even suggested that the treaty created two international persons — the Holy See and Vatican City (Salonga and Yap. The Republic of the Philippines has accorded the Holy See the status of a foreign sovereign. Even without this affirmation. the Vatican City has an independent government of its own. It also recognized the right of the Holy See to receive foreign diplomats. The Vatican City fits into none of the established categories of states. the immunity of the sovereign is recognized only with regard to public acts or acts jure imperii of a state. it is difficult to determine whether the statehood is vested in the Holy See or in the Vatican City. Sovereign Immunity As expressed in Section 2 of Article II of the 1987 Constitution. the Vatican City represents an entity organized not for political but for ecclesiastical purposes and international objects.Before the annexation of the Papal States by Italy in 1870. as the Holy See or Head of State. and the attribution to it of "sovereignty" must be made in a sense different from that in which it is applied to other states (Fenwick.. International Law 37 [1991]). In a community of national states. Despite its size and object. Kelsen. International Law 124-125 [1948]. 37). the Pope was the monarch and he. p. Ruiz. Some states passed legislation to serve as guidelines for the executive or judicial determination when an act may be considered as jure gestionis. 136 SCRA 487 [1987]. Public International Law 194 [1984]). the position of the Holy See in International Law became controversial (Salonga and Yap. a sovereign cannot. but not with regard to private acts or acts jure gestionis (United States of America v. to send its own diplomats to foreign countries.7 acres. Italy and the Holy See entered into the Lateran Treaty. Principles of International Law 160 [1956]). Indeed. The Status of the Holy See in International Law. Inasmuch as the Pope prefers to conduct foreign relations and enter into transactions as the Holy See and not in the name of the Vatican City. who is also head of the Roman Catholic Church. According to the newer or restrictive theory. in conformity with its traditions.

Rodrigo. This is particularly true with respect to the Communist states which took control of nationalized business activities and international trading. is of a "commercial character. 1965. surely the said transaction can be categorized as an act jure gestionis. 182 SCRA 644 [1990]). As held in United States of America v. If the foreign state is not engaged regularly in a business or trade. tentative they may be. and a coffee and pastry shop at the John Hay Air Station in Baguio City. this Court has considered the following transactions by a foreign state with private parties as acts jure gestionis: (1) the hiring of a cook in the recreation center. By entering into the employment contract with the cook in the discharge of its proprietary function. Private respondent failed to dispute said claim. in a receiving state. the particular act or transaction must then be tested by its nature. has created problems of its own. Such an act can only be the start of the inquiry.). This Court has considered the following transactions by a foreign state with private parties as acts jure imperii: (1) the lease by a foreign government of apartment buildings for use of its military officers (Syquia v. In the absence of legislation defining what activities and transactions shall be considered "commercial" and as constituting acts jure gestionis. Lopez.transaction or act. It is only when the contract involves its sovereign or governmental capacity that no such waiver may be implied. The operation of the restaurants and other facilities open to the general public is undoubtedly for profit as a commercial and not a governmental activity. then it is an act jure imperii. 312 [1949]. a bakery. Guinto. act or conduct or any regular course of conduct that by reason of its nature. Guinto. 182 SCRA 644 [1990]). 162 SCRA 88 [1988])." The Canadian Parliament enacted in 1982 an Act to Provide For State Immunity in Canadian Courts. Legal treatises and the decisions in countries which follow the restrictive theory have difficulty in characterizing whether a contract of a sovereign state with a private party is an act jure gestionis or an act jure imperii. On the other hand. we have to come out with our own guidelines. This treaty was concurred in by the Philippine Senate and entered into force in the Philippines on November 15. the United States government impliedly divested itself of its sovereign immunity from suit. will be deemed to have impliedly waived its non-suability if it has entered into a contract in its proprietary or private capacity." The restrictive theory. The donation was made not for commercial purpose. petitioner has denied that the acquisition and subsequent disposal of Lot 5-A were made for profit but claimed that it acquired said property for the site of its mission or the Apostolic Nunciature in the Philippines. and (2) the bidding for the operation of barber shops in Clark Air Base in Angeles City (United States of America v. If the act is in pursuit of a sovereign activity." Furthermore. or an incident thereof. real or personal. is recognized in the 1961 Vienna Convention on Diplomatic Relations (Arts. 84 Phil. the mere entering into a contract by a foreign state with a private party cannot be the ultimate test. especially when it is not undertaken for gain or profit. but for the use of petitioner to construct thereon the official place of residence of the Papal Nuncio. The logical question is whether the foreign state is engaged in the activity in the regular course of business. However. Veridiano. and (3) the change of employment status of base employees (Sanders v. Lot 5-A was acquired by petitioner as a donation from the Archdiocese of Manila. In the case at bench. a store. supra. consisting of three restaurants. (2) the conduct of public bidding for the repair of a wharf at a United States Naval Station (United States of America v. . rather than by reference to its purpose. (supra): There is no question that the United States of America. necessary for the creation and maintenance of its diplomatic mission. to cater to American servicemen and the general public (United States of America v. The restrictive theory came about because of the entry of sovereign states into purely commercial activities remotely connected with the discharge of governmental functions. if petitioner has bought and sold lands in the ordinary course of a real estate business. like any other state. The right of a foreign sovereign to acquire property. a cafeteria. Certainly. the law declared that the "commercial character of the activity shall be determined by reference to the nature of the course of conduct or particular transaction or act. The Act defines a "commercial activity" as any particular transaction. 20-22). which is intended to be a solution to the host of problems involving the issue of sovereign immunity. Ruiz.

July 25. respect for the rules of international law (The Mavrommatis Palestine Concessions. particularly the admission of private respondent. such procedure would however be pointless and unduly circuitous (Ortigas & Co. Of course. Remedies of Private Claimants Against Foreign States. pp. 3). the procedure would be to remand the case and order the trial court to conduct a hearing to establish the facts alleged by petitioner in its motion. it is the duty of the courts to accept this claim so as not to embarrass the executive arm of the government in conducting the country's foreign relations (World Health Organization v. IV Private respondent is not left without any legal remedy for the redress of its grievances. 1 Hudson. the forerunner of the International Court of Justice: By taking up the case of one of its subjects and by reporting to diplomatic action or international judicial proceedings on his behalf. in the person of its subjects. the privilege of sovereign immunity in this case was sufficiently established by the Memorandum and Certification of the Department of Foreign Affairs. 190 SCRA 130 [1990]). In view of said certification. the latter ceases to be a private cause. . World Court Reports 293. a diplomatic envoy is granted immunity from the civil and administrative jurisdiction of the receiving state over any real action relating to private immovable property situated in the territory of the receiving state which the envoy holds on behalf of the sending state for the purposes of the mission. with all the more reason should immunity be recognized as regards the sovereign itself. 48 SCRA 242 [1972]). has been admitted by private respondent in its complaint (Rollo. we abide by the certification of the Department of Foreign Affairs. According to the Permanent Court of International Justice. Partnership v. to espouse its claims against the Holy See. 1994). Its first task is to persuade the Philippine government to take up with the Holy See the validity of its claims. which in this case is the Holy See. a State is in reality asserting its own rights — its right to ensure. a person who feels aggrieved by the acts of a foreign sovereign can ask his own government to espouse his cause through diplomatic channels. The issue of petitioner's non-suability can be determined by the trial court without going to trial in the light of the pleadings. Ordinarily. Petitioner did not sell Lot 5-A for profit or gain. G.In Article 31(a) of the Convention. the Department of Foreign Affairs has formally intervened in this case and officially certified that the Embassy of the Holy See is a duly accredited diplomatic mission to the Republic of the Philippines exempt from local jurisdiction and entitled to all the rights. Book IV. As the department tasked with the conduct of the Philippines' foreign relations (Administrative Code of 1987. Judge Tirso Velasco. Calleja. 109645. The determination of the executive arm of government that a state or instrumentality is entitled to sovereign or diplomatic immunity is a political question that is conclusive upon the courts (International Catholic Migration Commission v. Aquino. Under both Public International Law and Transnational Law. Sec. pp. 27). 919 [1964]). through the Foreign Office. 90-183 against petitioner is DISMISSED. Ltd. Private respondent can ask the Philippine government. If this immunity is provided for a diplomatic envoy. It merely wanted to dispose off the same because the squatters living thereon made it almost impossible for petitioner to use it for the purpose of the donation. 302 [1924]). 156-157). the petition for certiorari is GRANTED and the complaint in Civil Case No. As in International Catholic Migration Commission and in World Health Organization. Besides. privileges and immunities of a diplomatic mission or embassy in this country (Rollo. No. Selected Readings on Protection by Law of Private Foreign Investments 905. Title I. Once the Philippine government decides to espouse the claim. 26. Where the plea of immunity is recognized and affirmed by the executive branch.R. The decision to transfer the property and the subsequent disposal thereof are likewise clothed with a governmental character. The fact that squatters have occupied and are still occupying the lot. WHEREFORE. and that they stubbornly refuse to leave the premises. SO ORDERED. the Foreign Office shall first make a determination of the impact of its espousal on the relations between the Philippine government and the Holy See (Young.

. Romero. represented by HON. Puno.THE PROVINCE OF NORTH COTABATO. Vitug. took no part. DRILON and ADEL ABBAS TAMANO. THE GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES PEACE PANEL ON ANCESTRAL DOMAIN (GRP). 183591 . v. ET AL. SUHARTO T. Bidin.Narvasa.R.. ET AL. ET AL. 183893 . in his capacity as Provincial Governor and a resident of the Province of Sultan Kudarat.THE CITY OF ILIGAN. v. petitioner-in-intervention. x----------------------------------x FRANKLIN M. Regalado. BASILAN PROVINCE. YEBES. J. SANTOS- AKBAR. Padilla. x--------------------------------------------------x . ET AL. Republic of the Philippines SUPREME COURT Manila EN BANC G.R.THE PROVINCIAL GOVERNMENT OF ZAMBOANGA DEL NORTE.. ET AL.R. DEANO. J. G. THE GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES PEACE PANEL ON ANCESTRAL DOMAIN (GRP). Bellosillo. No. MANGUDDATU. THE GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES PEACE PANEL ON ANCESTRAL DOMAIN (GRP). G. is on leave. x----------------------------------x CARLO B.J. represented by MAYOR CHERRYLYN P. ROLANDO E. Jr. petitioners-in-intervention.CITY GOVERNMENT OF ZAMBOANGA. x----------------------------------x RUY ELIAS LOPEZ. concur. No. JJ. THE GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES PEACE PANEL ON ANCESTRAL DOMAIN (GRP). C. duly represented by CITY MAYOR LAURENCE LLUCH CRUZ v. Kapunan and Mendoza. GOMEZ. x----------------------------------x THE CITY OF ISABELA. as represented by HON. No. x----------------------------------x MUNICIPALITY OF LINAMON duly represented by its Municipal Mayor NOEL N. G. 183752 . Feliciano.R. Melo. x----------------------------------x THE PROVINCE OF SULTAN KUDARAT. ET AL. petitioner-in-intervention.. v. ET AL. Davide. ET AL. 183951 .. petitioner-in-intervention. No. petitioner-in- intervention.petitioner-in-intervention..

that the question must be raised at the earliest possible opportunity. In Abbas v. and will never be. Commission on Elections. The Court held therein that it should not inquire into the constitutionality of a peace agreement which was already consummated (the 1976 Tripoli Agreement) and an Organic Act which was already passed into law (R. an assertion of opposite legal claims susceptible of judicial resolution. A justiciable controversy is distinguished from a hypothetical or abstract difference or dispute. only be delivering an opinion or advice on what are now hypothetical or abstract violations of constitutional rights. It cannot be the source of. Its provisions will not at all come into effect. The MOA will forever remain a draft that has never been finalized. But the most important are the first two requisites. Then. 6734 (the Organic Act for the Autonomous Region in Muslim Mindanao) were challenged for purported violations of the provisions of the Constitution on freedom of religion. and all other oppositions to the MOA. continue to push for what they call a "complete determination" of the constitutional issues raised in the present Petitions. the case must not be moot or academic or based on extra-legal or other similar considerations not cognizable by a court of justice. the issue of its constitutionality has obviously become moot. nor be capable of violating. with no legal force or binding effect. 6734) just because of potential conflicts with the Constitution. J.7 the 1976 Tripoli Agreement and Republic Act No. with more . have no more leg to stand on. the Solicitor General moved for the dismissal of the consolidated cases at bar based on changed circumstances as well as developments which have rendered them moot. that there must be an actual case or controversy. in effect. several parties to the case. whereas an opinion only advises what the law would be upon a hypothetical state of facts. particularly the Executive Department's statement that it would no longer sign the questioned peace negotiation document. one is not entitled to judicial intervention unless the issue is likely to be raised again between the parties. The MOA has not even been signed.5 Such is the case here. I believe that in light of the pronouncement of the Executive Department to already abandon the MOA. namely theMemorandum of Agreement on the Ancestral Domain Aspect of the GRP-MILF Tripoli Agreement of Peace of 2001 (MOA).A. namely: that the question must be raised by the proper party. any right. there must be an actual case or controversy — one which involves a conflict of legal rights.3 For a court to exercise its power of adjudication. that the decision on the constitutional or legal question must be necessary to the determination of the case itself. An actual case or controversy exists when there is a conflict of legal rights or an assertion of opposite legal claims.4 An action is considered "moot" when it no longer presents a justiciable controversy because the issues involved have become academic or dead or when the matter in dispute has already been resolved and hence. and.1 Subsequently.: The piece of writing being assailed in these consolidated Petitions is a peace negotiation document. It is now nothing more than a piece of paper. A case becomes moot and academic when its purpose has become stale. therefore. No. Simply stated.6 For the Court to still rule upon the supposed unconstitutionality of the MOA will merely be an academic exercise. as well as other sectors. The instant Petitions. there is nothing for the court to resolve as the determination thereof has been overtaken by subsequent events. was merely a codification of consensus points reached between both parties and the aspirations of the MILF to have a Bangsamoro homeland. SEPARATE OPINION CHICO-NAZARIO. The rule is settled that no question involving the constitutionality or validity of a law or governmental act may be heard and decided by the court unless there is compliance with the legal requisites for judicial inquiry. They no longer present an actual case or a justiciable controversy for resolution by this Court.2Nonetheless. The Solicitor General explained that this document. It would. prepared by the joint efforts of the Government of the Republic of the Philippines (GRP) Peace Panel and the Moro Islamic Liberation Front (MILF) Peace Panel. which can be resolved on the basis of existing law and jurisprudence. A justiciable controversy admits of specific relief through a decree that is conclusive in character. in that the former involves a definite and concrete dispute touching on the legal relations of parties having adverse legal interests.

then it should not be. Your Honor. without the Court having seen or considered the actual agreement and its terms. ASSOCIATE JUSTICE QUISUMBING: And this dicta or [dogma] is unassailable forever. The Court cannot doubt the sincerity of the Executive Department on this matter. The Executive Department has already manifested to this Court. . The Court must accord a co-equal branch of the government nothing less than trust and the presumption of good faith. the Supreme Court cannot look beyond the horizon and look for more satisfying result? DEAN AGABIN: Well. and now entirely abandoned. DEAN AGABIN: It is unassailable under the present Constitution. that it will not sign the MOA in its present form or in any other form. I deem it beyond the power of this Court to enjoin the Executive Department from entering into agreements similar to the MOA in the future. Moreover. would not only be premature. and not of public opinion. and as such. but also too general to make at this point. after all. if you mean by looking beyond the horizon. It will perilously tie the hands of the Executive Department and limit its options in negotiating peace for Mindanao. the Court must be careful that it is not committing abuse itself by ignoring the fundamental principles of constitutional law. cannot even have any potential conflict with the Constitution. It has declared the same intent to the public. The power of judicial review of this Court is for settling real and existent dispute. There cannot be an exception. If neither party in such negotiations thinks outside the box. the Executive Department should be given enough leeway and should not be prevented from offering solutions which may be beyond what the present Constitution allows. In acting on supposed abuses by other branches of government. Your Honor. we have gone to Malaysia. Your Honor. We are. it is not for allaying fears or addressing public clamor. A decree granting the same. Your Honor. we realize the constitutional constraints of sovereignty. xxx ASSOCIATE JUSTICE QUISUMBING: And in pursuit of that purpose.reason should this Court desist from ruling on the constitutionality of the MOA which is unsigned. But in all these. We have gone to the OIC. ASSOCIATE JUSTICE QUISUMBING: In some part. we have seen it happen in several instances. The Court should not feel constrained to rule on the Petitions at bar just because of the great public interest these cases have generated. through the Solicitor General. a counsel for one of the intervenors who assert the unconstitutionality of the MOA8 had no choice but to agree as follows: ASSOCIATE JUSTICE QUISUMBING: Well. it would mean a violation of the provisions of the Constitution. as what petitioners and other opponents of the MOA pray for. DEAN AGABIN: Yes. as long as such solutions are agreed upon subject to the amendment of the Constitution by completely legal means. integrity and the like. a court of law. Such prayer once again requires this Court to make a definitive ruling on what are mere hypothetical facts. In negotiating for peace. For this Court to insist that the issues raised in the instant Petitions cannot be moot for they are still capable of repetition is to totally ignore the assurance given by the Executive Department that it will not enter into any other form of the MOA in the future. Peace negotiations are never simple. and we have even gone to Libya. Upon the Executive Department falls the indisputably difficult responsibility of diffusing the highly volatile situation in Mindanao resulting from the continued clashes between the Philippine military and Muslim rebel groups. all they would arrive at is a constant impasse. we have always insisted on preserving the territorial integrity of the country. Thus. but isn't there a time that surely will come and the life of our people when they have to transcend even these limitations? DEAN AGABIN: Yes.

peace in Mindanao still remained to be elusive under its present terms. Your Honor. the means and requirements therefor. there is no room for the interposition of judicial oversight. Until then. If a document is meant to be a list of consensus points still subject to further negotiations. yet. I find it necessary to stress that the Court must not allow itself to be mired in controversies affecting each step of the peace process in Mindanao. and not just one group of Muslim insurgents. Only after it has made concrete what it intends to submit for ratification may the appropriate case be instituted. and the terms thereof carefully drafted and clearly worded. McArthur. we vote it to a referendum or any consultation beforehand? DEAN AGABIN: If there is such a proposal for or amendment or revision of the Constitution. may I ask. the Court ruled that: [A]s long as any proposed amendment is still unacted on by [the Convention]. There is the possibility that the solution to the peace problem in the Southern Philippines lies beyond the present Constitution. ASSOCIATE JUSTICE QUISUMBING: So. The nature and extent of any future written agreements should be clearly established from the very beginning. Your Honor. In Tan v. discuss. x x x. ASSOCIATE JUSTICE QUISUMBING: You remember how the emperor of Japan lost his divinity? They just changed their Constitution. much less render a pronouncement upon. how and how not. or adopt proposals which seek to revise the Constitution through the adoption of a form of government other than the form outlined in the then governing Constitution. At most. ASSOCIATE JUSTICE QUISUMBING: But. with the consent of the people. Given this kind of situation where war and peace hang in the balance. and they have no choice. At this point. is it possible to meld or modify our Constitutional Order in order to have some room for the newly developing international notions on Associative Governance Regulation Movement and Human Rights? DEAN AGABIN: Yes. It is not within the province or even the competence of the Judiciary to tell the Executive Department exactly what and what not. the Courts are devoid of jurisdiction. The Constitution itself implicitly allows for its own amendment by describing. you can also agree that the Constitution ought to be changed in order for a country to fulfill its internal obligation as a matter of necessity.10 where petitioners claim that the Constitutional Convention was without power to consider. ASSOCIATE JUSTICE QUISUMBING: And. either initiative or CHA-CHA or CON-AS? DEAN AGABIN: Yes. Macapagal. Exploring this possibility and considering the necessary amendment of the Constitution are not per se unconstitutional. is tasked to make political decisions in order to find solutions to . if the people so will it. under Article XVII. are essential to arrive at a more viable and acceptable peace plan. under its residual powers. Transparency and consultation with all major players. the Court can only exhort the Executive Department to keep in mind that it must negotiate and secure peace in Mindanao under terms which are most beneficial for the country as a whole. DEAN AGABIN: Yes. therefore. isn't it? DEAN AGABIN: Yes.9 It must be noted that the Constitution has been in force for three decades now. where people's lives are at stake. yes. at least. it was enforced upon him by Mr. As a final note. Your Honor. before I end. But frankly now Dean. to avoid misunderstandings or misconstructions by the parties and the public. ASSOCIATE JUSTICE QUISUMBING: Isn't that a very good example of thinking outside the box? That one day even those who are underground may have to think. It is possible. and the Executive Department. your Honor. to negotiate for peace with insurgents. there is far from a concrete proposed amendment to the Constitution which the Court can take cognizance of. then it should just simply state so. which necessarily include affected local government units and their constituents.

. DEL CASTILLO.the insurgency problem. RICARDO D. LEAGUE PEREZ. accordingly. LEGASPI. LANOZO. and CHAPTER). JR. I vote for the GRANT of the Motion to Dismiss filed by the Solicitor General and. PERLAS-BERNABE. ALBAN. BAGARES. ROQUE. FRANCISCO C. in his LEONARDO-DE CASTRO. (LUPA). Petitioner. BUTUYAN. Regional Trial Court of PERALTA. JOEL R. the Court should respect the political nature of the issues at bar and exercise judicial restraint until an actual controversy is brought before it. Promulgated: . Branch 145. VICENTE C. for the DISMISSAL of the Petitions at bar for being MOOT and ACADEMIC. ROGER R. (GROUP). QUINONES. CHRISTOPHER VILLARAMA.J. BOLASTIG. MA. MERLYN M. No. Makati City. JR. RAYEL.R. KALIPUNAN NG DAMAYANG MAHIHIRAP (KADAMAY). CESAR D. HON. DANILO M. BERSAMIN. CONCHITA G. JR. MINITA V. VAAL. GOZO. KILUSAN NG MARALITA SA SERENO. HERMINIO HARRY L. JR. and SERGIO C. MEYCAUAYAN (KMM-LUPA REYES.. Present: versus CORONA.. TERESA D. JJ... JOSEFINA A. JR. In view of the foregoing. C.. RAMMIL DINGAL. CARPIO. LOLITA S. LANOZO. CALDERON. official capacity as Presiding Judge of BRION. ZEPEDA. SANTAMARIA. ABAD. OF URBAN POOR FOR ACTION MENDOZA. EDY CLERIGO. 185572 EQUIPMENT CORP. CHICO-NAZARIO Associate Justice Republic of the Philippines Supreme Court Manila EN BANC CHINA NATIONAL MACHINERY & G. VELASCO. ROMEL R.

..000. Cortes.... and EDUARDO LEGSON..[7] The contract price for the Northrail Project was pegged at USD 421..000 in favor of the DOF... payable in 20 years.. represented by its chairperson..000. the Philippine government and EXIM Bank entered into a counterpart financial agreement Buyer Credit Loan Agreement No.[4] Under the Aug 30 MOU. Ren Hongbin.. BLA 04055 (the Loan Agreement).. EXIM Bank agreed to extend Preferential Buyers Credit in the amount of USD 400.. x . for the conduct of a feasibility study on a possible railway line from Manila to San Fernando.050.[9] In the Loan Agreement..: This is a Petition for Review on Certiorari with Prayer for the Issuance of a Temporary Restraining Order (TRO) and/or Preliminary Injunction assailing the 30 September 2008 Decision and 5 December 2008 Resolution of the Court of Appeals (CA) in CAG..[8] On 26 February 2004... with a 5-year grace period... (Group) (CNMEG)......[1] On 14 September 2002. the Export Import Bank of China (EXIM Bank) and the Department of Finance of the Philippines (DOF) entered into a Memorandum of Understanding (Aug 30 MOU).. petitioner China National Machinery & Equipment Corp. represented by its president. CARMEN DEUNIDA....[10] . Northrail and CNMEG executed a Contract Agreement for the construction of Section I.[6] On 30 December 2003.. Camacho) informing him of CNMEGs designation as the Prime Contractor for the Northrail Project.. Jose L.. wherein China agreed to extend Preferential Buyers Credit to the Philippine government to finance the Northrail Project.000.. February 7..[3] The Chinese government designated EXIM Bank as the lender... Wang Chungui (Amb. the Chinese Ambassador to the Philippines.. wrote a letter to DOF Secretary Jose Isidro Camacho (Sec.-x DECISION SERENO..R. while the Philippine government named the DOF as the borrower.NELSON B. SP No. entered into a Memorandum of Understanding with the North Luzon Railways Corporation (Northrail).. TERRADO. Jr.. Wang). EXIM Bank agreed to extend an amount not exceeding USD 400.[5] On 1 October 2003. 103351.000 in favor of the Philippine government in order to finance the construction of Phase I of the Northrail Project. J....... 2012 Respondents. Phase I of the North Luzon Railway System from Caloocan to Malolos on a turnkey basis (the Contract Agreement). La Union (the Northrail Project).[2] On 30 August 2003. and at the rate of 3% per annum....

(b) Republic Act No.[13] On 29 March 2006. arguing that the trial court did not have jurisdiction over (a) its person. the DOF. and (d) Executive Order No. (c) Presidential Decree No. On 13 February 2006. 145 issued an Order dated 17 March 2006 setting the case for hearing on the issuance of injunctive reliefs. Branch 145 (RTC Br.A. making it immune from suit. 06-203 before the Regional Trial Court. Whether or not the certification from the Department of Foreign Affairs is necessary under the foregoing circumstances. otherwise known as the Administrative Code.[11] The case was docketed as Civil Case No. CNMEG filed a Motion to Dismiss dated 12 April 2006.[17] which was denied by the trial court in an Order dated 10 March 2008. otherwise known as the Government Auditing Code. Whether or not the Northrail contracts are products of an executive agreement between two sovereign states.[19] In the assailed Decision dated 30 September 2008. In the Complaint. RTC Br. the Department of Budget and Management.[20] Subsequently. CNMEG filed a Motion for Reconsideration. Whether or not the act being undertaken by petitioner CNMEG is an act jure imperii.[22] Thus. . 9184). CNMEG filed an Urgent Motion for Reconsideration of this Order. National Capital Judicial Region. respondents alleged that the Contract Agreement and the Loan Agreement were void for being contrary to (a) the Constitution. 145 could rule thereon. as the Northrail Project was a product of an executive agreement. the Office of the Executive Secretary. respondents filed a Complaint for Annulment of Contract and Injunction with Urgent Motion for Summary Hearing to Determine the Existence of Facts and Circumstances Justifying the Issuance of Writs of Preliminary Prohibitory and Mandatory Injunction and/or TRO against CNMEG. No. otherwise known as the Government Procurement Reform Act.[12] RTC Br. CNMEG filed before the CA a Petition for Certiorari with Prayer for the Issuance of TRO and/or Writ of Preliminary Injunction dated 4 April 2008. Makati City. 292.[18] Thus. CNMEG filed the instant Petition for Review on Certiorari dated 21 January 2009. 1445.[14] Before RTC Br. the National Economic Development Authority and Northrail.[16] CNMEG then filed a Motion for Reconsideration. as it was an agent of the Chinese government. 145 issued an Omnibus Order denying CNMEGs Motion to Dismiss and setting the case for summary hearing to determine whether the injunctive reliefs prayed for should be issued. 145).[15] On 15 May 2007.[21]which was denied by the CA in a Resolution dated 5 December 2008. 9184 (R. and (b) the subject matter. the appellate court dismissed the Petition for Certiorari. raising the following issues: [23] Whether or not petitioner CNMEG is an agent of the sovereign Peoples Republic of China.

the immunity of the sovereign is recognized only with regard to public acts or acts jure imperii of a state. CNMEG prays for the dismissal of Civil Case No. 145 for lack of jurisdiction. According to the classical or absolute theory. be made a respondent in the courts of another sovereign. In JUSMAG v. precluding it from being sued before a local court. This is particularly true with respect to the Communist states which took control of nationalized business activities and international trading. 2. 06-203 before RTC Br. National Labor Relations Commission.) xxx xxx xxx The restrictive theory came about because of the entry of sovereign states into purely commercial activities remotely connected with the discharge of governmental functions. citations omitted. Whether or not the Court of Appeals ignored the ruling of this Honorable Court in the Neri case. Whether or not the Northrail Project is subject to competitive public bidding. later on. First issue: Whether CNMEG is entitled to immunity This Court explained the doctrine of sovereign immunity in Holy See v. Rosario. each widely held and firmly established. Whether the Contract Agreement is an executive agreement. The crux of this case boils down to two main issues. such that it cannot be questioned by or before a local court. namely: 1. According to the newer or restrictive theory. 06-203. Whether CNMEG is entitled to immunity. a sovereign cannot. Whether or not the Court of Appeals failed to avoid a procedural limbo in the lower court. It likewise requests this Court for the issuance of a TRO and.[25] this Court affirmed the Philippines adherence to the restrictive theory as follows: .[24] to wit: There are two conflicting concepts of sovereign immunity. but not with regard to private acts or acts jure gestionis. a writ of preliminary injunction to restrain public respondent from proceeding with the disposition of Civil Case No. without its consent. (Emphasis supplied.

AND WHEREAS the Contractor has offered to provide the Project on Turnkey basis. per se. The doctrine of state immunity from suit has undergone further metamorphosis. the application of the doctrine of immunity from suit has been restricted to sovereign or governmental activities (jure imperii).) Since the Philippines adheres to the restrictive theory. The parties executed the Contract Agreement for the purpose of constructing the Luzon Railways. including design. CNMEG is engaged in a proprietary activity. NOW. and training of the Employers personnel. its commercial activities or economic affairs. A threshold question that must be answered is whether CNMEG performs governmental or proprietary functions. xxx xxx xxx As it stands now. private and proprietary acts (jure gestionis). . mothered a more restrictive application of the doctrine. mean that sovereign states may. The mantle of state immunity cannot be extended to commercial. be sued in local courts. Phase I of Philippine North Luzon Railways Project (hereinafter referred to as THE PROJECT). As held in United States of America v. supply.[26] (Emphasis supplied. brought about by their increasing commercial activities. it is crucial to ascertain the legal nature of the act involved whether the entity claiming immunity performs governmental. functions. It does not apply where the contract relates to the exercise of its sovereign functions.[28] A. section I. at all times. the parties agree to sign this Contract for the Implementation of the Project. THEREFORE. Ruiz [27] The restrictive application of State immunity is proper only when the proceedings arise out of commercial transactions of the foreign sovereign. construction. The complexity of relationships between sovereign states. viz:[29] WHEREAS the Employer (Northrail) desired to construct the railways form Caloocan to Malolos. The view evolved that the existence of a contract does not. commissioning. a State may be said to have descended to the level of an individual and can thus be deemed to have tacitly given its consent to be sued only when it enters into business contracts. A thorough examination of the basic facts of the case would show that CNMEG is engaged in a proprietary activity. Stated differently. as opposed to proprietary. manufacturing. AND WHEREAS the Loan Agreement of the Preferential Buyers Credit between Export-Import Bank of China and Department of Finance of Republic of the Philippines.

1 As soon as possible after completion and presentation of the Study in accordance with Paragraphs 1. namely: (a) the Memorandum of Understanding dated 14 September 2002 between Northrail and CNMEG. In order to fully understand the intention behind and the purpose of the entire undertaking. WHEREAS.4 above and in compliance with necessary governmental laws.. professional competence and technical expertise to assess the state of the [Main Line North (MLN)] and recommend implementation plans as well as undertake its rehabilitation and/or modernization. regulations and procedures required from both parties. Wang dated 1 October 2003 addressed to Sec. the Contract Agreement must not be read in isolation. APPROVAL PROCESS 2.[32] 1. rules. considers CNMEGs proposal advantageous to the Government of the Republic of the Philippines and has therefore agreed to assist CNMEG in the conduct of the aforesaid Study. the NORTHRAIL CORP. WHEREAS. does not on its own reveal whether the construction of the Luzon railways was meant to be a proprietary endeavor. rules and regulations for the selection of a contractor. welcomes CNMEGs proposal to undertake a Feasibility Study (the Study) at no cost to NORTHRAIL CORP. the NORTHRAIL CORP. WHEREAS. Memorandum of Understanding dated 14 September 2002 The Memorandum of Understanding dated 14 September 2002 shows that CNMEG sought the construction of the Luzon Railways as a proprietary venture. the NORTHRAIL CORP.[30](b) the letter of Amb. also welcomes CNMEGs interest in undertaking the Project with Suppliers Credit and intends to employ CNMEG as the Contractor for the Project subject to compliance with Philippine and Chinese laws. Instead. La Union passing through the provinces of Bulacan. WHEREAS. xxx xxx xxx II.3 and 1. the parties shall commence the preparation and negotiation of the terms and conditions of the Contract (the Contract) to be entered into between them on the implementation of the . Pampanga. it must be construed in conjunction with three other documents executed in relation to the Northrail Project. The relevant parts thereof read: WHEREAS. Camacho. The above-cited portion of the Contract Agreement.[31] and (c) the Loan Agreement. CNMEG has expressed interest in the rehabilitation and/or modernization of the MLN from Metro Manila to San Fernando. Tarlac. Pangasinan and La Union (the Project). CNMEG has the financial capability. however.

(Emphasis supplied. Such being the case.[35] The use of the term state corporation to refer to CNMEG was only descriptive of its nature as a government-owned and/or -controlled corporation. in which all Chinese corporations owned by the state would be automatically considered as performing governmental activities. initiated the Northrail Project was confirmed by Amb. thus: 1. but was plainly a business strategy employed by CNMEG with a view to securing this commercial enterprise. This would categorize CNMEG as the state corporation within the Peoples Republic of China which initiated our Governments involvement in the Project. and not the Chinese government.050. (Emphasis supplied) Clearly. 3. 2. 2. they have already established an initial working relationship with your North Luzon Railways Corporation. The implementation of the Northrail Project was intended to generate profit for CNMEG. the desire of CNMEG to secure the Northrail Project was in the ordinary or regular course of its business as a global construction company. Among the various state corporations of the Peoples Republic of China.) Thus.000 for the venture. and its assignment as the Primary Contractor did not imply that it was acting on behalf of China in the performance of the latters sovereign functions. only CNMEG has the advantage of being fully familiar with the current requirements of the Northrail Project having already accomplished a Feasibility Study which was used as inputs by the North Luzon Railways Corporation in the approvals (sic) process required by the [34] Republic of the Philippines. CNMEG already signed an MOU with the North Luzon Railways Corporation last September 14. with the Contract Agreement placing a contract price of USD 421. The Feasibility Study was conducted not because of any diplomatic gratuity from or exercise of sovereign functions by the Chinese government. Wang in his letter dated 1 October 2003. Project. CNMEG has the proven competence and capability to undertake the Project as evidenced by the ranking of 42 given by the ENR among 225 global construction companies. even if they are clearly engaged in commercial or proprietary pursuits. 2000 during the visit of Chairman Li Peng. it was CNMEG that initiated the undertaking. . To imply otherwise would result in an absurd situation. Letter dated 1 October 2003 That CNMEG. The parties shall use their best endeavors to formulate and finalize a Contract with a view to signing the Contract within one hundred twenty (120) [33] days from CNMEGs presentation of the Study. and not the Chinese government.

attachment in aid of execution to which it or its assets may be entitled in any legal action or proceedings with respect to this Agreement or any of the transactions contemplated hereby or hereunder.3.5 Waiver of Immunity The Borrower irrevocably and unconditionally waives. which originated from the same Aug 30 MOU. execution on judgment. from any suit. the Borrower does not waive any immunity in respect of its assets which are (i) used by a diplomatic or consular mission of the Borrower. and the Borrowers performance of and compliance with its obligations under this Agreement will constitute. xxx (j) Commercial Activity The execution and delivery of this Agreement by the Borrower constitute. judgment. The Loan Agreement CNMEG claims immunity on the ground that the Aug 30 MOU on the financing of the Northrail Project was signed by the Philippine and Chinese governments. Notwithstanding the foregoing. the Loan Agreement likewise contains this express waiver of immunity: 15. the irrevocable submissions of the Borrower to the non-exclusive jurisdiction of the courts of the Peoples Republic of China and the appointment of the Borrowers Chinese Process Agent is legal. (ii) assets of a military character and under control of a military authority or defense agency and (iii) located in the Philippines and dedicated to a public or governmental use (as distinguished from patrimonial assets or assets dedicated to [37] commercial use). private and commercial acts done and performed for commercial purposes under the laws of the Republic of the Philippines and neither the Borrower nor any of its assets is entitled to any immunity or privilege (sovereign or otherwise) from suit. and its assignment as the Primary Contractor meant that it was bound to perform a governmental function on behalf of China. belies this reasoning.) (k) Proceedings to Enforce Agreement In any proceeding in the Republic of the Philippines to enforce this Agreement. execution or any other legal process with respect to its obligations under this Agreement. set-off. viz: Article 11. in any jurisdiction. (b) the Republic had notice of the proceedings. Notwithstanding the foregoing. valid. the Borrower does not waive any immunity with respect of its assets which are (i) used by a diplomatic or consular mission of the Borrower and (ii) assets of a military character and under control of a military authority or defense agency and (iii) located in the Philippines and dedicated to public or governmental use (as distinguished from patrimonial assets or assets dedicated to commercial use). binding and enforceable and any judgment obtained in the Peoples Republic of China will be if introduced. attachment prior to judgment. Further. The waiver of immunity by the Borrower. (Emphasis supplied. the Loan Agreement. any immunity to which it or its property may at any time be or become entitled. . However. evidence for enforcement in any proceedings against the Borrower and its assets in the Republic of the Philippines provided that (a) the court rendering judgment had jurisdiction over the subject matter of the action in accordance with its jurisdictional rules. service of process upon it or any agent. and (d) such judgment was not based on a clear [36] mistake of fact or law. the choice of the laws of the Peoples Republic of China as the governing law hereof will be recognized and such law will be applied. as the case may be. whether characterized as sovereign immunity or otherwise. (c) the judgment of the court was not obtained through collusion or fraud.

in which this Court held that (i)mmunity from suit is determined by the character of the objects for which the entity was organized. under the 1991 agreement. The two governments named their respective implementing organizations: the Department of Health (DOH) and the Philippine Health Insurance Corporation (PHIC) for the Philippines. while the Contract Agreement was between Northrail and CNMEG. which is an inextricable part of the entire undertaking. Thus. This view finds support in Malong v. Although the Contract Agreement is silent on the classification of the legal nature of the transaction. the Loan Agreement was entered into between EXIM Bank and the Philippine government. this Court held: The arguments raised by GTZ and the [Office of the Solicitor General (OSG)] are rooted in several indisputable facts.[38] it is clear from the foregoing provisions that the Northrail Project was a purely commercial transaction. B. such claim does not automatically vest it with immunity. CA[40] must be examined. Philippine National Railways. nonetheless reveal the intention of the parties to the Northrail Project to classify the whole venture as commercial or proprietary in character. and the Loan Agreement would reveal the desire of CNMEG to construct the Luzon Railways in pursuit of a purely commercial activity performed in the ordinary course of its business. . piecing together the content and tenor of the Contract Agreement. Admittedly. and GTZ for the implementation of Germanys contributions. despite petitioners claim that the EXIM Bank extended financial assistance to Northrail because the bank was mandated by the Chinese government. with the implementation of the contributions of the German government. The SHINE project was implemented pursuant to the bilateral agreements between the Philippine and German governments. In Deutsche Gesellschaft. The activities performed by GTZ pertaining to the SHINE project are governmental in nature. Even assuming arguendo that CNMEG performs governmental functions. pursuant to which both signed an arrangement promoting the Social Health InsuranceNetworking and Empowerment (SHINE) project. the Memorandum of Understanding dated 14 September 2002. Thus. this Courts ruling in Deutsche Gesellschaft Fr Technische Zusammenarbeit (GTZ) v.[39] In this regard. Wangs letter dated 1 October 2003. Germany and the Philippinesentered into a Technical Cooperation Agreement. In ruling that GTZ was not immune from suit. the foregoing provisions of the Loan Agreement. GTZ was tasked. CNMEG failed to adduce evidence that it is immune from suit under Chinese law. and not because of any motivation to do business in the Philippines. Amb.

The fact that GTZ entered into employment contracts with the private respondents did not disqualify it from invoking immunity from suit. If the foreign state is not engaged regularly in a business or trade. necessary as it is to avoid unduly vexing the peace of nations.related as they are to the promotion of health insurance in the Philippines. the particular act or transaction must then be tested by its nature. and the only necessary inquiry is whether said State had consented to be sued. by conception. Article XVI of the Constitution. is reflected in Section 9. then it is an act jure imperii. xxx xxx xxx State immunity from suit may be waived by general or special law. it does not automatically invest GTZ with the ability to invoke State immunity from suit. as held in cases such as Holy See v. Jr. Such an act can only be the start of the inquiry. which states that the State may not be sued without its consent. PHIC would not enjoy immunity from suit even in the . The logical question is whether the foreign state is engaged in the activity in the regular course of business. Assuming that the characterization is correct. xxx xxx xxx It is useful to note that on the part of the Philippine government. namely: Is GTZ. whether a local state or a foreign state. The special law can take the form of the original charter of the incorporated government agency. as the implementing agencies in behalf of the Philippines. the present suit was brought against GTZ. owing to provisions in their charters manifesting their consent to be sued. which set forth what remains valid doctrine: Certainly. If the act is in pursuit of a sovereign activity. Applying the previously cited jurisprudence. Section 16 (g) of which grants the corporation the power to sue and be sued in court. Yet there is an equally fundamental premise which GTZ and the OSG fail to address. Beyond dispute is the tenability of the comment points (sic) raised by GTZ and the OSG that GTZ was not performing proprietary functions notwithstanding its entry into the particular employment contracts. The PHIC was established under Republic Act No. If the instant suit had been brought directly against the Federal Republic of Germany. The distinction lies in whether the agency is incorporated or unincorporated. or an incident thereof. Jurisprudence is replete with examples of incorporated government agencies which were ruled not entitled to invoke immunity from suit. it had designated two entities. a depiction similarly adopted by the OSG. Counsel for GTZ characterizes GTZ as the implementing agency of the Government of the Federal Republic of Germany. However. the Department of Health and the Philippine Health Insurance Corporation (PHIC). It is necessary for us to understand what precisely are the parameters of the legal personality of GTZ. especially when it is not undertaken for gain or profit. there would be no doubt that it is a suit brought against a State.. able to enjoy the Federal Republics immunity from suit? The principle of state immunity from suit. Rosario. Who or what consists of the State? For one. the mere entering into a contract by a foreign state with a private party cannot be the ultimate test. the doctrine is available to foreign States insofar as they are sought to be sued in the courts of the local State. 7875.

though he was silent on that point in his Decision. and not that of a private corporation. It is entirely possible that under German law. by virtue of the Corporation Code. There is no doubt that the 1991 Agreement designated GTZ as the implementing agency in behalf of the German government. however. an agent acts in behalf of a principal. xxx xxx xxx Again. and is therefore deemed admitted.performance of its functions connected with SHINE. GTZ is akin to a governmental owned or controlled corporation without original charter which. whether it has juridical personality independent of the German government or none at all. On the other hand. In truth. Neither GTZ nor the OSG go beyond the claim that petitioner is the implementing agency of the Government of the Federal Republic of Germany. it has not consented to be sued despite it being owned by the Federal Republic of Germany. and following the most intelligent assumption we can gather. foreign laws on a particular subject are presumed to be the same as those of the Philippines. Is GTZ an incorporated agency of the German government? There is some mystery surrounding that question. Yet the catch is that such term has no precise definition that is responsive to our concerns. and the GTZ can be said to act in behalf of the German state. GTZ has failed to establish that under German law.) . We adhere to the rule that in the absence of evidence to the contrary. or a government-owned or controlled corporation without original charter. The Labor Arbiter accepted that claim in his Order denying the Motion to Dismiss. In its Reply. has expressly consented to be sued. we are uncertain of the corresponding legal implications under German law surrounding a private company owned by the Federal Republic of Germany. At the very least. saying that it is a matter of public knowledge that the status of petitioner GTZ is that of the implementing agency. GTZ controverts that finding. private respondents were unable to adduce any evidence to substantiate their claim that GTZ was a private corporation. Inherently. whether it is owned by the German state or by private interests. But neither has GTZ supplied any evidence defining its legal nature beyond that of the bare descriptive implementing agency. But that is as far as implementing agency could take us. private respondents argue in their Comment that the finding that GTZ was a private corporation was never controverted. And it bears notice that Section 36 of the Corporate Code states that [e]very corporation incorporated under this Code has the power and capacity x x x to sue and be sued in its corporate name. an entity such as GTZ or particularly GTZ itself has not been vested or has been specifically deprived the power and capacity to sue and/or be sued. the apparent equivalent under Philippine law is that of a corporation organized under the Corporation Code but owned by the Philippine government. Yet taking the description on face value. this Court has no basis in fact to conclude or presume that GTZ enjoys immunity from suit. private respondents asserted before the Labor Arbiter that GTZ was a private corporation engaged in the implementation of development projects. Nevertheless. Yet in the proceedings below and before this Court. like the Labor Arbiter and the Court of Appeals. and the Labor Arbiter acted rashly in accepting such claim without explanation. The term by itself does not supply whether GTZ is incorporated or unincorporated.[41] (Emphasis supplied. (sic) governmental in nature as (sic) they may be.

The Solicitor General embodied the suggestion in a Manifestation and Memorandum as amicus curiae. in the absence of evidence to the contrary. the defense of sovereign immunity was submitted directly to the local courts by the respondents through their private counsels (Raquiza v. 190 SCRA 130 (1990). 57 SCRA 1 (1974). the Department of Foreign Affairs. the U. As a result. Embassy asked the Secretary of Foreign Affairs to request the Solicitor General to make. In International Catholic Migration Commission v. Guinto. But how the Philippine Foreign Office conveys its endorsement to the courts varies. 182 SCRA 644 [1990] and companion cases). to wit: In Public International Law.S. 262 [1948]. Its designation as the Primary Contractor does not automatically grant it immunity. In Holy See. even if it contends that it performs governmental functions. In some cases. a suggestion to respondent Judge. when a state or international agency wishes to plead sovereign or diplomatic immunity in a foreign court. Zambales. In the case at bench. xxx xxx xxx In the Philippines. Bradford. Aquino. following this Courts ruling in Deutsche Gesellschaft. CNMEG is to be presumed to be a government-owned and -controlled corporation without an original charter. through the Office of Legal Affairs moved with this Court to be allowed to intervene on the side of petitioner. it failed to adduce evidence that it has not consented to be sued under Chinese law. C. In Baer v. Philippine-Ryukyus Command. 50 [1945]. Tizon. United States of America v. informing the latter that the respondent-employer could not be sued because it enjoyed diplomatic immunity. The Court allowed the said Department to file its memorandum in support of petitioners claim of sovereign immunity. the Secretary of Foreign Affairs just sent a letter directly to the Secretary of Labor and Employment. 75 Phil. In cases where the foreign . in behalf of the Commander of the United States Naval Base at Olongapo City. 48 SCRA 242 (1972). it has the capacity to sue and be sued under Section 36 of the Corporation Code. In World Health Organization v. Although CNMEG claims to be a government-owned corporation. it requests the Foreign Office of the state where it is sued to convey to the court that said defendant is entitled to immunity. Applying the foregoing ruling to the case at bar. the practice is for the foreign government or the international organization to first secure an executive endorsement of its claim of sovereign or diplomatic immunity. just as the term implementing agency has no precise definition for purposes of ascertaining whether GTZ was immune from suit. 80 Phil. CNMEG failed to present a certification from the Department of Foreign Affairs. Miquiabas v. the Secretary of Foreign Affairs sent the trial court a telegram to that effect. Calleja.[42] this Court reiterated the oft-cited doctrine that the determination by the Executive that an entity is entitled to sovereign or diplomatic immunity is a political question conclusive upon the courts. it is readily apparent that CNMEG cannot claim immunity from suit. Thus.

to wit: The DFAs function includes.) Further. The arguments raised by the OSG are virtually the same as the arguments raised by GTZ without any indication of any special and distinct perspective maintained by the Philippine government on the issue. or that the OSG had solicited the DFAs views on the issue. it would have been highly prudential for GTZ to obtain the same after the Labor Arbiter had denied the motion to dismiss. at the very least. the office of the executive branch in charge of our diplomatic relations. due to the same concerns that we have discussed herein. we do not see any evidence that the DFA. a determination which. Still. in both of his rulings.Certainly. the courts can inquire into the facts and make their own determination as to the nature of the acts and transactions involved.[43] (Emphasis supplied. among its other mandates. which may be considered as conclusive upon the courts. the determination of persons and institutions covered by diplomatic immunities. The Comment filed by the OSG does . had GTZ obtained such certification from the DFA. but failed to secure such certification. when challenge. The DFA must be allowed to plead its case whenever necessary or advisable to enable it to help keep the credibility of the Philippine government before the international community. It may be possible that GTZ tried. states bypass the Foreign Office. establish a disputable evidentiary presumption that the foreign party is indeed immune which the opposing party will have to overcome with its own factual evidence. noted that it was imperative for petitioners to secure from the Department of Foreign Affairs a certification of respondents diplomatic status and entitlement to diplomatic privileges including immunity from suits. (sic) entitles it to seek relief from the court so as not to seriously impair the conduct of the country's foreign relations. When international agreements are concluded.[45] (Emphasis supplied. Would the fact that the Solicitor General has endorsed GTZs claim of States immunity from suit before this Court sufficiently substitute for the DFA certification? Note that the rule in public international law quoted in Holy See referred to endorsement by the Foreign Office of the State where the suit is filed. has indeed endorsed GTZs claim of immunity. However. this task falls principally of (sic) the DFA as being the highest executive department with the competence and authority to so act in this aspect of the international arena. inDepartment of Foreign Affairs (DFA) v. This Court. the parties thereto are deemed to have likewise accepted the responsibility of seeing to it that their agreements are duly regarded. The requirement might not necessarily be imperative.) The question now is whether any agency of the Executive Branch can make a determination of immunity from suit. the fact that this authority is exclusive to the DFA was also emphasized in this Courts ruling in Deutsche Gesellschaft: It is to be recalled that the Labor Arbiter. Nowhere in the Comment of the OSG is it manifested that the DFA has endorsed GTZs claim. We do not see why GTZ could not have secured such certification or endorsement from the DFA for purposes of this case. such foreign office in the Philippines being the Department of Foreign Affairs. it would have provided factual basis for its claim of immunity that would. National Labor Relations Commission (NLRC).[44] emphasized the DFAs competence and authority to provide such necessary determination. In our country. even at this juncture.

as Holy See unequivocally refers to the determination of the Foreign Office of the state where it is sued. The . this is not the kind of certification that can establish CNMEGs entitlement to immunity from suit.[47] Surely. In the United States. which must be respected by the courts. however. CNMEG also claims that its immunity from suit has the executive endorsement of both the OSG and the Office of the Government Corporate Counsel (OGCC).[49] states: 33. the Foreign Sovereign Immunities Act of 1976 provides for a waiver by implication of state immunity.2. there is reason to apply the legal reasoning behind the waiver in this case. or by the OGCC for that matter.) In the case at bar.[48] which is an integral part of the Contract Agreement. D. The Conditions of Contract. An agreement to submit any dispute to arbitration may be construed as an implicit waiver of immunity from suit. However. this determination by the OSG. Amicable Settlement Both parties shall attempt to amicably settle all disputes or controversies arising from this Contract before the commencement of arbitration. 33. it must be remembered that this Court is not precluded from making an inquiry into the intrinsic correctness of such certification. Further. stating that the Northrail Project is in pursuit of a sovereign activity. does not inspire the same degree of confidence as a DFA certification. the agreement to submit disputes to arbitration in a foreign country is construed as an implicit waiver of immunity from suit. In the said law. not inspire the same degree of confidence as a certification from the DFA would have elicited.1. Arbitration All disputes or controversies arising from this Contract which cannot be settled between the Employer and the Contractor shall be submitted to arbitration in accordance with the UNCITRAL Arbitration Rules at present in force and as may be amended by the rest of this Clause. Although there is no similar law in the Philippines. as expressly enunciated in Deutsche Gesellschaft. Even with a DFA certification. SETTLEMENT OF DISPUTES AND ARBITRATION 33. CNMEG offers the Certification executed by the Economic and Commercial Office of the Embassy of the Peoples Republic of China.[46] (Emphasis supplied.

its enforcement in the Philippines would be subject to the Special Rules on Alternative Dispute Resolution (Special Rules). the following three requisites provided under the Vienna Convention must nevertheless concur: (a) the agreement must be between states. and (c) deals with a narrower range of subject matters. it is clear that CNMEG has agreed that it will not be afforded immunity from suit. if any dispute arises between Northrail and CNMEG. appointing authority shall be Hong Kong International Arbitration Center. whether embodied in a single instrument or in two or more related instruments and whatever its particular designation. The first and the third requisites do not obtain in the case at bar. Rule 13 thereof provides for the Recognition and Enforcement of a Foreign Arbitral Award. In case the HKIAC makes an arbitral award in favor of Northrail. Under Rules 13. (d) if any of the parties is an individual. .2 and 13. the courts have the competence and jurisdiction to ascertain the validity of the Contract Agreement. this Court held that an executive agreement is similar to a treaty. and (c) it must governed by international law. Under the above provisions. or (e) in the National Capital Judicial Region. both parties are bound to submit the matter to the HKIAC for arbitration.3 of the Special Rules. (b) it must be written. Thus. A. (b) is usually less formal. The place of arbitration shall be in Hong Kong at Hong Kong International Arbitration Center (HKIAC). where any of those individuals resides. From all the foregoing. In Bayan Muna v. Romulo. Second issue: Whether the Contract Agreement is an executive agreement Article 2(1) of the Vienna Convention on the Law of Treaties (Vienna Convention) defines a treaty as follows: [A]n international agreement concluded between States in written form and governed by international law. (c) in the principal place of business in the Philippines of any of the parties. to be considered an executive agreement. except that the former (a) does not require legislative concurrence. (b) where the acts to be enjoined are being performed. CNMEG is neither a government nor a government agency.[50] Despite these differences. the party to arbitration wishing to have an arbitral award recognized and enforced in the Philippines must petition the proper regional trial court (a) where the assets to be attached or levied upon is located.

B. but between Northrail and CNMEG. and the Contract Agreement is not an executive agreement. the fact that Amb. Neither can it be said that CNMEG acted as agent of the Chinese government. The Contract Agreement is to be governed by Philippine law. That label was only descriptive of its nature as a state-owned corporation. It is merely an ordinary commercial contract that can be questioned before the local courts. Article 2 of the Conditions of Contract.[51] By the terms of the Contract Agreement. WHEREFORE.[54] which under Article 1. Petitioner China National Machinery & Equipment Corp. (Group) is not entitled to immunity from suit. the instant Petition is DENIED. All correspondence and other documents pertaining to the Contract which are exchanged by the parties shall be written in English language. while CNMEG is a corporation duly organized and created under the laws of the Peoples Republic of China. The Contract Agreement was not concluded between the Philippines and China.[52] Thus.1 of the Contract Agreement is an integral part of the latter. Wang. the parties have effectively conceded that their rights and obligations thereunder are not governed by international law. This case is REMANDED to theRegional . Northrail is a government-owned or -controlled corporation. states: APPLICABLE LAW AND GOVERNING LANGUAGE The contract shall in all respects be read and construed in accordance with the laws of the Philippines. The contract shall be written in English language. As previously discussed. in his letter dated 1 October 2003. Since the Contract Agreement explicitly provides that Philippine law shall be applicable. both Northrail and CNMEG entered into the Contract Agreement as entities with personalities distinct and separate from the Philippine and Chinese governments. It is therefore clear from the foregoing reasons that the Contract Agreement does not partake of the nature of an executive agreement.[53] described CNMEG as a state corporation and declared its designation as the Primary Contractor in the Northrail Project did not mean it was to perform sovereign functions on behalf of China. and did not preclude it from engaging in purely commercial or proprietary ventures. respectively. CNMEGs prayer for the issuance of a TRO and/or Writ of Preliminary Injunction is DENIED for being moot and academic.

BRION Associate Justice Associate Justice DIOSDADO M. JR. MARIA LOURDES P. SERENO Associate Justice WE CONCUR: RENATO C. No pronouncement on costs of suit. Associate Justice Associate Justice TERESITA J. CORONA Chief Justice ANTONIO T. for further proceedings as regards the validity of the contracts subject of Civil Case No. CARPIO PRESBITERO J. 06-203. PERALTA LUCAS P. Branch 145. LEONARDO-DE CASTRO ARTURO D.Trial Court of Makati. SO ORDERED. BERSAMIN Associate Justice Associate Justice (ON LEAVE) . A. VELASCO.

R No. MAGALLONA. I certify that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Court. DEL CASTILLO ROBERTO A. HARRY C. MENDOZA BIENVENIDO L. Article VIII of the Constitution. JOSE PORTUGAL PEREZ Associate Justice Associate Justice JOSE C. RENATO C. VILLARAMA. Present: . CORONA Chief Justice EN BANC PROF. G. MERLIN M. 187167 AKBAYAN PARTY-LIST REP. REYES Associate Justice Associate Justice ESTELA M. RISA HONTIVEROS.MARIANO C. JR. PROF. ABAD Associate Justice Associate Justice MARTIN S. PERLAS-BERNABE Associate Justice CERTIFICATION Pursuant to Section 13.

BARRACA. JJ. PAGASA BUENAVENTURA. SHERYL BALOT. ENRIK FORT REVILLAS. ANNA MARIE CECILIA GO.ROQUE. BRION. IRISH KAY KALAW. MARICAR RAMOS. CARLA REGINA GREPO. JR... MARRI CAETE. RODRIGO FAJARDO III. PAULYN MAY DUMAN. EDAN ABAD. ALFERES.. BARBARA ACAS. JR. JR. CZARINA MAY LEONARDO-DE CASTRO. WILLIAM RAGAMAT.. RENE DELORINO. RAOULLE OSEN FERRER. SHARON MENDOZA. AND UNIVERSITY OF THE PHILIPPINES COLLEGE OF CORONA. C. MARY ANN JOY LEE. MIGUEL RAFAEL MUSNGI. RUBY AMOR PERALTA. VALERIE DEL CASTILLO. JAKLYN HANNA PINEDA. SERENO. DELA CRUZ. VOLTAIRE VELASCO. ALTEZ. MARIA LUISA MANALAYSAY. and ESCOTO. LAW STUDENTS. JOSE JAVIER BAUTISTA. MICHAEL OCAMPO. FRANCIS ALVIN ASILO. BERSAMIN. ALITHEA CARPIO. JAMES MARK TERRY . VANN ALLEN VILLARAMA. ROMINA BERNARDO.J. GIRLIE FERRER. PEREZ.

DIANNE MARIE ROA. CRISTINE MAE TABING. MARIA ESTER VANGUARDIA. DIONY VENTURA. JOHANN FRANTZ RIVERA IV. EDUARDO ERMITA. HILARIO DAVIDE. HON. and MARCELINO VELOSO III. Petitioners. ROLANDO ANDAYA.. and HON. VANESSA ANNE TORNO.RIDON. HON. HON. NICHOLAS SANTIZO. IN HIS CAPACITY AS . IN HIS CAPACITY AS EXECUTIVE SECRETARY. . ALBERTO ROMULO. IN HIS CAPACITY AS SECRETARY OF THE DEPARTMENT OF FOREIGN AFFAIRS.versus - HON. IN HIS CAPACITY AS ADMINISTRATOR OF THE NATIONAL MAPPING & RESOURCE INFORMATION AUTHORITY. IN HIS CAPACITY AS SECRETARY OF THE DEPARTMENT OF BUDGET AND MANAGEMENT. CHRISTIAN RIVERO. JR. MELISSA CHRISTINA SANTOS.

Respondents. The Antecedents In 1961. J. 9522 (RA 9522) adjusting the countrys archipelagic baselines and classifying the 1 baseline regime of nearby territories. July 16.REPRESENTATIVE OF THE PERMANENT MISSION OF THE REPUBLIC OF THE PHILIPPINES Promulgated: TO THE UNITED NATIONS. This law followed the framing of the Convention on the 3 . Congress passed Republic Act No.: The Case This original action for the writs of certiorari and prohibition assails the constitutionality of Republic Act No. 3046 (RA 3046) demarcating the maritime baselines 2 of the Philippines as an archipelagic State. 2011 x -----------------------------------------------------------------------------------------x DECISION CARPIO.

RA 3046 remained unchanged for nearly five decades. however. petitioners contend that RA 9522s treatment of the KIG as regime of islands not only results in the loss of a large maritime area but also prejudices the livelihood of subsistence fishermen. . and logically. Complying with these requirements. embodying the terms of the Treaty of Paris and ancillary treaties. namely: (1) RA 9522 reduces Philippine maritime territory. which the Philippines ratified on 27 5 February 1984. and contour of 6 baselines of archipelagic States like the Philippines and sets the deadline for the filing of 7 application for the extended continental shelf. law students and a legislator. professors of law. length. optimized the location of some basepoints around the Philippine archipelago and classified adjacent territories. Attempts to fill this void during the second round of negotiations in Geneva in 1960 (UNCLOS II) proved futile. the breadth of which. and damaging marine resources. Thus. 5446 [RA 5446]) correcting typographical errors and reserving the drawing of baselines around Sabah in North Borneo. the 4 sovereign right of States parties over their territorial sea. was left undetermined. petitioners facially attack RA 9522 14 for what it excluded and included its failure to reference either the Treaty of Paris or Sabah and its use of UNCLOS IIIs framework of regime of islands to determine the maritime zones of the KIG and the Scarborough Shoal. In March 2009. Petitioners. Congress amended RA 3046 by enacting RA 9522. contravening the countrys nuclear-free policy. domestically. the reach of the Philippine states sovereign power. save for legislation passed in 1968 (Republic Act No. The change was prompted by the need to make RA 3046 compliant with the terms of the United Nations Convention on the Law of the Sea (UNCLOS III). as regimes of islands whose islands generate their own applicable maritime zones.Territorial Sea and the Contiguous Zone in 1958 (UNCLOS I). the statute now under scrutiny. and (2) RA 9522 10 11 12 opens the countrys waters landward of the baselines to maritime passage by all vessels and aircrafts. codifying. Among others. assail the constitutionality of RA 9522 on two 9 principal grounds. RA 9522 8 shortened one baseline. undermining Philippine sovereignty and national security. in violation of relevant constitutional provisions.13 In addition. as the case may be. namely. To buttress their argument of territorial diminution. among others. taxpayers or x x x legislators. the Kalayaan Island Group (KIG) and the Scarborough Shoal. UNCLOS III prescribes the water-land ratio. in their respective capacities as citizens. in violation of Article 1 of the 1987 Constitution.

Commenting on the petition. respondents defended RA 9522 as the countrys compliance with the terms of UNCLOS III. Whether petitioners possess locus standi to bring this suit. respondent officials raised threshold issues questioning (1) the petitions compliance with the case or controversy requirement for judicial review grounded on petitioners alleged lack of locus standi and (2) the propriety of the writs of certiorari and prohibition to assail the constitutionality of RA 9522. On the merits. whether RA 9522 is unconstitutional. Respondents add that RA 9522 does not undermine the countrys security. Whether the writs of certiorari and prohibition are the proper remedies to assail the constitutionality of RA 9522. Respondents also question the normative force. 2. environment and economic interests or relinquish the Philippines claim over Sabah. and 2. of petitioners assertion that what Spain ceded to the United States under the Treaty of Paris were the islands andall the waters found within the boundaries of the rectangular area drawn under the Treaty of Paris. On the merits. preserving Philippine territory over the KIG or Scarborough Shoal. Preliminarily 1. . under international law. We left unacted petitioners prayer for an injunctive writ. The Issues The petition raises the following issues: 1.

it is understandably difficult to find other litigants possessing a more direct and specific interest to bring the suit. thus satisfying one of the requirements for granting citizenship standing. we recognize 16 petitioners locus standi as citizens with constitutionally sufficient interest in the resolution of the merits of the case which undoubtedly raises issues of national significance necessitating urgent resolution. we hold that (1) petitioners possess locus standi to bring this suit as citizens and (2) the writs of certiorari and prohibition are proper remedies to test the constitutionality of RA 9522.The Ruling of the Court On the threshold issues. 17 The Writs of Certiorari and Prohibition Are Proper Remedies to Test the Constitutionality of Statutes . On the merits. On the Threshold Issues Petitioners Possess Locus Standi as Citizens Petitioners themselves undermine their assertion of locus standi as legislators and taxpayers because the petition alleges neither infringement of legislative prerogative nor misuse of public 15 funds. Nonetheless. Indeed. occasioned by the passage and implementation of RA 9522. we find no basis to declare RA 9522 unconstitutional. owing to the peculiar nature of RA 9522.

Philippine sovereignty over . Petitioners argue that from the Treaty of Paris technical description. 18 Respondents submission holds true in ordinary civil proceedings. of acts of other branches of government. not to Delineate Philippine Territory Petitioners submit that RA 9522 dismembers a large portion of the national territory because it 21 discards the pre-UNCLOS III demarcation of Philippine territory under the Treaty of Paris and related treaties. Petitioners theorize that this constitutional definition trumps any treaty or statutory provision denying the Philippines sovereign control over waters. viewed the writs of certiorari and prohibition as proper remedial vehicles to test the constitutionality of statutes. respondents seek a strict observance of the offices of the writs of certiorari and prohibition. successively encoded in the definition of national territory under the 1935. while having no bearing on the personal interests of the petitioners. The statute sought to be reviewed here is one such law.In praying for the dismissal of the petition on preliminary grounds. noting that the writs cannot issue absent any showing of grave abuse of discretion in the exercise of judicial. Issues of constitutional import are sometimes 20 crafted out of statutes which. 1973 and 1987 Constitutions. When this Court exercises its constitutional power of judicial review. carry such relevance in the life of this nation that the Court inevitably finds itself constrained to take cognizance of the case and pass upon the issues raised. RA 9522 is Not Unconstitutional RA 9522 is a Statutory Tool to Demarcate the Countrys Maritime Zones and Continental Shelf Under UNCLOS III. however. beyond the territorial sea recognized at the time of the Treaty of Paris. quasi-judicial or ministerial powers on the part of respondents and resulting prejudice on the part of petitioners. by tradition. non-compliance with the letter of procedural rules notwithstanding. and 19 indeed. that Spain supposedly ceded to the United States. we have.

sea-use rights over maritime zones (i. contiguous zone [24 nautical miles from the baselines]. immigration. the exclusive economic zone and the continental shelf. The breadth of the territorial sea. baselines laws are nothing but statutory mechanisms for UNCLOS III States parties to delimit with precision the extent of their maritime zones and continental shelves. UNCLOS III has nothing to do with the acquisition (or loss) of territory. Measurement of the breadth of the territorial sea. On the other hand. It is a multilateral treaty regulating. (Emphasis supplied) Thus. recognizing coastal and archipelagic States graduated authority over a limited span of waters and submarine lands along their coasts. the exercise of sovereignty over territorial waters (Article 2). In turn. exclusive economic zone [200 nautical miles from the baselines]). among others. either straight or contoured.e. embracing the rectangular area delineated in the Treaty of Paris.. . Article 48 of UNCLOS III on archipelagic States like ours could not be any clearer: Article 48. this gives notice to the rest of the international community of the scope of the maritime space and submarine areas within which States parties exercise treaty-based rights.territorial waters extends hundreds of nautical miles around the Philippine archipelago. the territorial waters [12 nautical miles from the baselines]. the jurisdiction to enforce customs. the exclusive economic zone and the continental shelf shall be measured from archipelagic baselines drawn in accordance with article 47. and sanitation laws in the contiguous zone (Article 33). 22 Petitioners theory fails to persuade us. UNCLOS III was the culmination of decades-long negotiations among 23 United Nations members to codify norms regulating the conduct of States in the worlds oceans and submarine areas. the contiguous zone. and the right to exploit the living and non-living resources in the exclusive economic zone (Article 56) and continental shelf (Article 77). fiscal. the contiguous zone. to serve as geographic starting points to measure the breadth of the maritime zones and continental shelf. namely. and continental shelves that UNCLOS III delimits. baselines laws such as RA 9522 are enacted by UNCLOS III States parties to mark-out specific basepoints along their coasts from which baselines are drawn.

vis--vis the Philippines obligations under UNCLOS III. coupled with a reading of the text of RA 9522 and its congressional deliberations. The baselines cannot be drawn from the boundaries or other portions of the rectangular area delineated in the Treaty of Paris. Under traditional international law typology. prejudicing the livelihood of subsistence fishermen. Even under petitioners theory that the Philippine territory embraces the islands and all the waters within the rectangular area delimited in the Treaty of Paris. the baselines of the Philippines would still have to be drawn in accordance with RA 9522 because this is the only way to draw the baselines in conformity with UNCLOS III. not Inconsistent with the Philippines Claim of Sovereignty Over these Areas Petitioners next submit that RA 9522s use of UNCLOS IIIs regime of islands framework to draw the baselines.000 square nautical miles of territorial waters. States acquire (or conversely.24 UNCLOS III and its ancillary baselines laws play no role in the acquisition. but from the outermost islands and drying reefs of the archipelago. diminution of territory. as petitioners claim. belie this view. accretion. . and to measure the breadth of the applicable maritime zones of the KIG. Territorial claims to land features are outside UNCLOS III. and are instead governed by the rules on general international law. cession and prescription.26 RA 9522s Use of the Framework of Regime of Islands to Determine the Maritime Zones of the KIG and the Scarborough Shoal. not 25 by executing multilateral treaties on the regulations of sea-use rights or enacting statutes to comply with the treatys terms to delimit maritime zones and continental shelves. weakens our territorial claim over that area. Petitioners add that the KIGs (and Scarborough Shoals) exclusion 27 from the Philippine archipelagic baselines results in the loss of about 15. lose) territory through occupation. A comparison of the 28 configuration of the baselines drawn under RA 3046 and RA 9522 and the extent of maritime space encompassed by each law. enlargement or.

RA 9522. by optimizing the location of basepoints. as shown in the table below:29 Extent of maritime area Extent of maritime using RA 3046. increased the Philippines total maritime space (covering its internal waters.435 waters Territorial 274. save for at least nine basepoints that RA 9522 skipped to optimize the location of basepoints and adjust the length of one baseline (and thus comply with UNCLOS IIIs limitation on the maximum length of baselines). This undeniable cartographic fact takes the wind out of petitioners argument branding RA 9522 as a statutory renunciation of the Philippines claim over the KIG. taking into taking into account account the Treaty of Paris UNCLOS III (in delimitation (in square square nautical nautical miles) miles) Internal or archipelagic 166. assuming that baselines are relevant for this purpose.858 171.216 square nautical miles.136 32. territorial sea and exclusive economic zone) by 145. amended. On the contrary.106 Sea .The configuration of the baselines drawn under RA 3046 and RA 9522 shows that RA 9522 merely followed the basepoints mapped by RA 3046. the KIG and the Scarborough Shoal lie outside of the baselines drawn around the Philippine archipelago. Under RA 3046. as area using RA 9522.000 square nautical miles of territorial waters under RA 9522 is similarly unfounded both in fact and law. Petitioners assertion of loss of about 15. as under RA 9522.

Article 47 (3) of UNCLOS III requires that [t]he drawing of such baselines shall not depart to any appreciable extent from the general configuration of the archipelago. adverse legal effects would have ensued. Of course. 30 Further. Article 47 (2) of UNCLOS III requires that the . where there are overlapping exclusive economic zones of opposite or adjacent States. Exclusive Economic 382. the reach of the exclusive economic zone drawn under RA 9522 even extends way beyond the waters covered by the rectangular demarcation under the Treaty of Paris.669 Zone TOTAL 440. 1596 and b) Bajo de Masinloc. The baselines in the following areas over which the Philippines likewise exercises sovereignty and jurisdiction shall be determined as Regime of Islands under the Republic of the Philippines consistent with Article 121 of the United Nations Convention on the Law of the Sea (UNCLOS): a) The Kalayaan Island Group as constituted under Presidential Decree No. 2.210 Thus. there will have to be a delineation of maritime boundaries in accordance with UNCLOS III. as the map below shows. First. (Emphasis supplied) Had Congress in RA 9522 enclosed the KIG and the Scarborough Shoal as part of the Philippine archipelago. petitioners argument that the KIG now lies outside Philippine territory because the baselines that RA 9522 draws do not enclose the KIG is negated by RA 9522 itself. The Philippines would have committed a breach of two provisions of UNCLOS III. also known as Scarborough Shoal. Section 2 of the law commits to text the Philippines continued claim of sovereignty and jurisdiction over the KIG and the Scarborough Shoal: SEC.994 586. Second.

that is Scarborough Shoal. We see that our archipelago is defined by the orange line which [we] call[] archipelagic baseline. to optimize the location of basepoints using current maps. and in addition. the length of one baseline that RA 3046 drew exceeded UNCLOS IIIs limits. dapat magkalapit ang mga islands. Malayo na sila sa ating archipelago kaya kung ilihis pa natin ang dating archipelagic baselines para lamang masama itong dalawang circles. So sa loob ng ating baseline. that is Kalayaan Group or the Spratlys. 31 Although the Philippines has consistently claimed sovereignty over the KIG and the 32 Scarborough Shoal for several decades. itong malaking circle sa ibaba. (Emphasis supplied) 34 Similarly. Senator Miriam Defensor-Santiago. tingnan ninyo ang maliit na circle doon sa itaas. This is called contested islands outside our configuration. Dahil malayo ang Scarborough Shoal. save for three per cent (3%) of the total number of baselines which can reach up to 125 nautical miles.length of the baselines shall not exceed 100 nautical miles. The need to shorten this baseline. these outlying areas are located at an appreciable distance from the nearest shoreline of the Philippine archipelago. Ngayon. hindi natin masasabing malapit sila sa atin although we are still allowed by international law to claim them as our own. took pains to emphasize the foregoing during the Senate deliberations: What we call the Kalayaan Island Group or what the rest of the world call[] the Spratlys and the Scarborough Shoal are outside our archipelagic baseline because if we put them inside our baselines we might be accused of violating the provision of international law which states: The drawing of such baseline shall not depart to any appreciable extent from the general configuration of the archipelago. The principal sponsor of RA 9522 in the Senate. became imperative as discussed by respondents: . hindi na sila magkalapit at baka hindi na tatanggapin ng United Nations because of the rule that it should follow the natural configuration of the archipelago. such that any straight baseline loped 33 around them from the nearest basepoint will inevitably depart to an appreciable extent from the general configuration of the archipelago.

the basepoints were drawn from maps existing in 1968. to wit: 1.06 nautical miles x x x. At least 9 basepoints can be skipped or deleted from the baselines system. As defined by R. 3. and not established by geodetic survey methods. Under Article 121 of UNCLOS III. qualifies under the category of regime of islands. particularly along the west coasts of Luzon down to Palawan were later found to be located either inland or on water. which states that The length of such baselines shall not exceed 100 nautical miles. whose islands generate their own applicable maritime zones. any naturally formed area of land. This exceeds the maximum length allowed under Article 47(2) of the [UNCLOS III]. up to a maximum length of 125 nautical miles. 3046. 35 Hence. Congress decision to classify the KIG and the Scarborough Shoal as Regime[s] of Islands under the Republic of the Philippines consistent with Article 121 of UNCLOS III manifests the Philippine 36 States responsible observance of its pacta sunt servanda obligation under UNCLOS III. 2. [T]he amendment of the baselines law was necessary to enable the Philippines to draw the outer limits of its maritime zones including the extended continental shelf in the manner provided by Article 47 of [UNCLOS III]. The length of the baseline across Moro Gulf (from Middle of 3 Rock Awash to Tongquil Point) is 140. far from surrendering the Philippines claim over the KIG and the Scarborough Shoal. The selection of basepoints is not optimal. such as portions of the KIG.195 nautical miles of water. not on low-water line and drying reefs as prescribed by Article 47. 5446. the baselines suffer from some technical deficiencies. which is above water at high tide. as amended by R. except that up to 3 per cent of the total number of baselines enclosing any archipelago may exceed that length. This will enclose an additional 2.A. Finally. surrounded by water. 37 Statutory Claim Over Sabah under . some of the points.A. Accordingly.

RA 5446 Retained Petitioners argument for the invalidity of RA 9522 for its failure to textualize the Philippines claim over Sabah in North Borneo is also untenable. hence subjecting these waters to the right of innocent and sea lanes passage under UNCLOS III. including the air space over it and the submarine areas underneath. UNCLOS III affirms this: . Section 2 of RA 5446. including overflight. keeps open the door for drawing the baselines of Sabah: Section 2. situated in North Borneo. the Philippines exercises sovereignty over the body of water lying landward of the baselines. over which the Republic of the Philippines has acquired dominion and sovereignty.38 Whether referred to as Philippine internal waters under Article I of the Constitution or as 39 archipelagic waters under UNCLOS III (Article 49 [1]). (Emphasis supplied) UNCLOS III and RA 9522 not Incompatible with the Constitutions Delineation of Internal Waters As their final argument against the validity of RA 9522. The definition of the baselines of the territorial sea of the Philippine Archipelago as provided in this Act is without prejudice to the delineation of the baselines of the territorial sea around the territory of Sabah. in violation of the Constitution. petitioners contend that the law unconstitutionally converts internal waters into archipelagic waters. which RA 9522 did not repeal. Petitioners extrapolate that these passage rights indubitably expose Philippine internal waters to nuclear and maritime pollution hazards.

(Emphasis supplied) The fact of sovereignty. does not preclude the operation of municipal and international law norms subjecting the territorial sea or archipelagic waters to necessary. of the air space over archipelagic waters and of their bed and subsoil. thus automatically incorporated in the corpus of Philippine 43 law. bills drawing nautical highways for sea lanes passage are now pending in 40 Congress. 1. or the exercise by the archipelagic State of its sovereignty over such waters and their air space. in the competent discharge of their constitutional powers. The regime of archipelagic sea lanes passage established in this Part shall not in other respects affect the status of the archipelagic waters. as well as to their bed and subsoil. The sovereignty of an archipelagic State extends to the waters enclosed by the archipelagic baselines drawn in accordance with article 47. operate to grant innocent passage rights over the territorial sea or archipelagic waters. burdens in the interest of maintaining unimpeded. including the sea lanes. may pass legislation designating routes within the archipelagic waters to regulate innocent and sea lanes passage. the political branches of the Philippine government. 2. bed and subsoil. Thus. international law norms. 41 In the absence of municipal legislation. Indeed. described as archipelagic waters. expeditious international navigation. if not marginal. and the resources contained therein. Significantly. subject to the treatys limitations and conditions for their exercise. This sovereignty extends to the air space over the archipelagic waters. Legal status of archipelagic waters. the right of innocent passage 42 is a customary international law. their archipelagic waters are subject to both the right of innocent passage and sea lanes passage does not place them in lesser footing vis--viscontinental 45 . domestically. The fact that for archipelagic States. regardless of their depth or distance from the coast. consistent with the international law principle of freedom of navigation. however. xxxx 4. now codified in UNCLOS III. Article 49. and the resources contained therein. No modern State can validly invoke its sovereignty to absolutely forbid innocent passage that 44 is exercised in accordance with customary international law without risking retaliatory measures from the international community.

absent enabling legislation. UNCLOS III grants new rights to coastal States to exclusively exploit the resources found within this zone up to 200 nautical miles. paragraph 2 ) and subsistence 51 fishermen (Article XIII. The imposition of these passage rights through archipelagic waters under UNCLOS III was a concession by archipelagic States. preserves the traditional freedom 53 . Factoran treated the right to a healthful and 50 balanced ecology under Section 16 of Article II as an exception. Separate islands generate their own maritime zones. relating to the protection of marine wealth (Article XII. regardless of their depth or distance from the coast. UNCLOS III creates a sui generis maritime space the exclusive economic zone in waters previously part of the high seas. 47 Petitioners invocation of non-executory constitutional provisions in Article II (Declaration of Principles and State Policies) must also fail. UNCLOS III favors States with a long coastline like the Philippines. Section 2. Article II provisions serve as guides in 49 formulating and interpreting implementing legislation. 52 In fact. which. placing the waters between islands 46 separated by more than 24 nautical miles beyond the States territorial sovereignty. as archipelagic waters subject to their territorial sovereignty. are not violated by RA 9522. in their territorial sea. Although Oposa v. More importantly. the recognition of archipelagic States archipelago and the waters enclosed by their baselines as one cohesive entity prevents the treatment of their islands as separate islands under UNCLOS III. as well as in interpreting executory provisions of the Constitution. do not embody judicially enforceable constitutional rights x x x. however. the demarcation of the baselines enables the Philippines to delimit its exclusive economic zone. in exchange for their right to claim all the waters landward of their baselines. Section 7 ). the international community will of course reject it and will refuse to be bound by it. UNCLOS III.coastal States which are subject. Such a maritime delineation binds the international community since the delineation is in strict observance of UNCLOS III. to the right of innocent passage and the right of transit passage through international straits. subjecting these waters to the rights of other States under UNCLOS III. the present petition lacks factual basis to substantiate the claimed constitutional violation. If the maritime delineation is contrary to UNCLOS III. The other provisions petitioners cite. Our present state of jurisprudence considers the 48 provisions in Article II as mere legislative guides. reserving solely to the Philippines the exploitation of all living and non-living resources within such zone.

we DISMISS the petition. and second. SO ORDERED. Absent an UNCLOS III compliant baselines law. allows an internationally-recognized delimitation of the breadth of the Philippines maritime zones and continental shelf. Republic of the Philippines SUPREME COURT Manila . it weakens the countrys case in any international dispute over Philippine maritime space. The enactment of UNCLOS III compliant baselines law for the Philippine archipelago and adjacent areas. We have looked at the relevant provision of UNCLOS III and we 54 55 find petitioners reading plausible. the prerogative of choosing this option belongs to Congress. This is recipe for a two-fronted disaster: first. the luxury of choosing this option comes at a very steep price. Moreover. RA 9522 is therefore a most vital step on the part of the Philippines in safeguarding its maritime zones. consistent with the Constitution and our national interest. These are consequences Congress wisely avoided. based on the permissive text of UNCLOS III. Congress was not bound to pass RA 9522. as embodied in RA 9522. it sends an open invitation to the seafaring powers to freely enter and exploit the resources in the waters and submarine areas around our archipelago. Nevertheless. not to this Court. WHEREFORE. an archipelagic State like the Philippines will find itself devoid of internationally acceptable baselines from where the breadth of its maritime zones and continental shelf is measured.of navigation of other States that attached to this zone beyond the territorial sea before UNCLOS III. RA 9522 and the Philippines Maritime Zones Petitioners hold the view that.

EN BANC

G.R. No. L-18463 October 4, 1922

THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee,
vs.
GREGORIO PERFECTOR, defendant-appellant.

Alfonso E. Mendoza and the appellant in behalf of the latter.
Attorney-General Villa-Real for appellee.

MALCOLM, J.:

The important question is here squarely presented of whether article 256 of the Spanish Penal Code, punishing
"Any person who, by . . . writing, shall defame, abuse, or insult any Minister of the Crown or other person in authority
. . .," is still in force.

About August 20, 1920, the Secretary of the Philippine Senate, Fernando M. Guerrero, discovered that certain
documents which constituted the records of testimony given by witnesses in the investigation of oil companies, had
disappeared from his office. Shortly thereafter, the Philippine Senate, having been called into special session by the
Governor-General, the Secretary for the Senate informed that body of the loss of the documents and of the steps
taken by him to discover the guilty party. The day following the convening of the Senate, September 7, 1920, the
newspaper La Nacion, edited by Mr. Gregorio Perfecto, published an article reading as follows:

Half a month has elapsed since the discovery, for the first time, of the scandalous robbery of records which
were kept and preserved in the iron safe of the Senate, yet up to this time there is not the slightest indication
that the author or authors of the crime will ever be discovered.

To find them, it would not, perhaps, be necessary to go out of the Sente itself, and the persons in charge of
the investigation of the case would not have to display great skill in order to succeed in their undertaking,
unless they should encounter the insuperable obstacle of offical concealment.

In that case, every investigation to be made would be but a mere comedy and nothing more.

After all, the perpetration of the robbery, especially under the circumstances that have surrounded it, does
not surprise us at all.

The execution of the crime was but the natural effect of the environment of the place in which it was
committed.

How many of the present Senators can say without remorse in their conscience and with serenity of mind,
that they do not owe their victory to electoral robbery? How may?

The author or authors of the robbery of the records from the said iron safe of the Senate have, perhaps, but
followed the example of certain Senators who secured their election through fraud and robbery.

The Philippine Senate, in its session of September 9, 1920, adopted a resolution authorizing its committee on
elections and privileges to report as to the action which should be taken with reference to the article published in La
Nacion. On September 15, 1920, the Senate adopted a resolution authorizing the President of the Senate to indorse
to the Attorney-General, for his study and corresponding action, all the papers referring to the case of the
newspaper La Nacion and its editor, Mr. Gregorio Perfecto. As a result, an information was filed in the municipal
court of the City of Manila by an assistant city fiscal, in which the editorial in question was set out and in which it was
alleged that the same constituted a violation of article 256 of the Penal Code. The defendant Gregorio Perfecto was
found guilty in the municipal court and again in the Court of First Instance of Manila.

During the course of the trial in the Court of First Instance, after the prosecution had rested, the defense moved for
the dismissal of the case. On the subject of whether or not article 256 of the Penal Code, under which the
information was presented, is in force, the trial judge, the Honorable George R. Harvey, said:

This antiquated provision was doubtless incorporated into the Penal Code of Spain for the protection of the
Ministers of the Crown and other representatives of the King against free speech and action by Spanish
subjects. A severe punishment was prescribed because it was doubtless considered a much more serious
offense to insult the King's representative than to insult an ordinary individual. This provision, with almost all
the other articles of that Code, was extended to the Philippine Islands when under the dominion of Spain
because the King's subject in the Philippines might defame, abuse or insult the Ministers of the Crown or
other representatives of His Majesty. We now have no Ministers of the Crown or other persons in authority in
the Philippines representing the King of Spain, and said provision, with other articles of the Penal Code, had
apparently passed into "innocuous desuetude," but the Supreme Corut of the Philippine Islands has, by a
majority decision, held that said article 256 is the law of the land to-day. . . .

The Helbig case is a precedent which, by the rule of stare decisis, is binding upon this court until otherwise
determined by proper authority.

In the decision rendered by the same judge, he concluded with the following language:

In the United States such publications are usually not punishable as criminal offense, and little importance is
attached to them, because they are generally the result of political controversy and are usually regarded as
more or less colored or exaggerated. Attacks of this character upon a legislative body are not punishable,
under the Libel Law. Although such publications are reprehensible, yet this court feels some aversion to the
application of the provision of law under which this case was filed. Our Penal Code has come to us from the
Spanish regime. Article 256 of that Code prescribes punishment for persons who use insulting language
about Ministers of the Crown or other "authority." The King of Spain doubtless left the need of such
protection to his ministers and others in authority in the Philippines as well as in Spain. Hence, the article
referred to was made applicable here. Notwithstanding the change of sovereignty, our Supreme Court, in a
majority decision, has held that this provision is still in force, and that one who made an insulting remark
about the President of the United States was punishable under it. (U.S. vs. Helbig, supra.) If it applicable in
that case, it would appear to be applicable in this case. Hence, said article 256 must be enforced, without
fear or favor, until it shall be repealed or superseded by other legislation, or until the Supreme Court shall
otherwise determine.

In view of the foregoing considerations, the court finds the defendant guilty as charged in the information
and under article 256 of their Penal Code sentences him to suffer two months and one day of arresto
mayor and the accessory penalties prescribed by law, and to pay the costs of both instances.

The fifteen errors assigned by the defendant and appellant, reenforced by an extensive brief, and eloquent oral
argument made in his own behalf and by his learned counsel, all reduce themselves to the pertinent and decisive
question which was announced in the beginning of this decision.

It will be noted in the first place that the trial judge considered himself bound to follow the rule announced in the
case of United States vs. Helbig (R. G. No. 14705, 1 not published). In that case, the accused was charged with
having said, "To hell with the President and his proclamations, or words to that effect," in violation of article 256 of
the Penal Code. He was found guilty in a judgment rendered by the Court of First Instance of Manila and again on
appeal to the Supreme Court, with the writer of the instant decision dissenting on two principal grounds: (1) That the
accused was deprived of the constitutional right of cross-examination, and (2) that article 256 of the Spanish Penal
Code is no longer in force. Subsequently, on a motion of reconsideration, the court, being of the opinion that the
Court of First Instance had committed a prejudicial error in depriving the accused of his right to cross-examine a
principal witness, set aside the judgment affirming the judgment appealed from and ordered the return of the record
to the court of origin for the celebration of a new trial. Whether such a trial was actually had, is not known, but at
least, the record in the Helbig case has never again been elevated to this court.

There may perchance exist some doubt as to the authority of the decision in the Helbig case, in view of the
circumstances above described. This much, however, is certain: The facts of the Helbig case and the case before
us, which we may term the Perfecto case, are different, for in the first case there was an oral defamation, while in

the second there is a written defamation. Not only this, but a new point which, under the facts, could not have been
considered in the Helbig case, is, in the Perfecto case, urged upon the court. And, finally, as is apparent to all, the
appellate court is not restrained, as was the trial court, by strict adherence to a former decision. We much prefer to
resolve the question before us unhindered by references to the Helbig decision.

This is one of those cases on which a variety of opinions all leading to the same result can be had. A majority of the
court are of the opinion that the Philippine Libel Law, Act No. 277, has had the effect of repealing so much of article
256 of the Penal Code as relates to written defamation, abuse, or insult, and that under the information and the
facts, the defendant is neither guilty of a violation of article 256 of the Penal Code, nor of the Libel Law. The view of
the Chief Justice is that the accused should be acquitted for the reason that the facts alleged in the information do
not constitute a violation of article 156 of the Penal Code. Three members of the court believe that article 256 was
abrogated completely by the change from Spanish to American sovereignty over the Philippines and is inconsistent
with democratic principles of government.

Without prejudice to the right of any member of the court to explain his position, we will discuss the two main points
just mentioned.

1. Effect of the Philippine Libel Law, Act No. 277, on article 256 of the Spanish Penal Code. — The Libel
Law, Act No. 277, was enacted by the Philippine Commission shortly after organization of this legislative
body. Section 1 defines libel as a "malicious defamation, expressed either in writing, printing, or by signs or
pictures, or the like, or public theatrical exhibitions, tending to blacken the memory of one who is dead or to
impeach the honesty, virtue, or reputation, or publish the alleged or natural deffects of one who is alive, and
thereby expose him to public hatred, contempt or ridicule." Section 13 provides that "All laws and parts of
laws now in force, so far as the same may be in conflict herewith, are hereby repealed. . . ."

That parts of laws in force in 1901 when the Libel Law took effect, were in conflict therewith, and that the Libel Law
abrogated certain portion of the Spanish Penal Code, cannot be gainsaid. Title X of Book II of the Penal Code,
covering the subjects of calumny and insults, must have been particularly affected by the Libel Law. Indeed, in the
early case of Pardo de Tavera vs. Garcia Valdez ([1902], 1. Phil., 468), the Supreme Court spoke of the Libel Law
as "reforming the preexisting Spanish law on the subject of calumnia and injuria." Recently, specific attention was
given to the effect of the Libel Law on the provisions of the Penal Code, dealing with calumny and insults, and it was
found that those provisions of the Penal Code on the subject of calumny and insults in which the elements of writing
an publicity entered, were abrogated by the Libel Law. (People vs. Castro [1922], p. 842, ante.)

The Libel Law must have had the same result on other provisions of the Penal Code, as for instance article 256.

The facts here are that the editor of a newspaper published an article, naturally in writing, which may have had the
tendency to impeach the honesty, virtue, or reputation of members of the Philippine Senate, thereby possibly
exposing them to public hatred, contempt, or ridicule, which is exactly libel, as defined by the Libel Law. Sir J. F.
Stephen is authority for the statement that a libel is indictable when defaming a "body of persons definite and small
enough for individual members to be recognized as such, in or by means of anything capable of being a libel."
(Digest of Criminal Law, art. 267.) But in the United States, while it may be proper to prosecute criminally the author
of a libel charging a legislator with corruption, criticisms, no matter how severe, on a legislature, are within the range
of the liberty of the press, unless the intention and effect be seditious. (3 Wharton's Criminal Law, p. 2131.) With
these facts and legal principles in mind, recall that article 256 begins: Any person who, by . . . writing, shall defame,
abuse, or insult any Minister of the Crown or other person in authority," etc.

The Libel Law is a complete and comprehensive law on the subject of libel. The well-known rule of statutory
construction is, that where the later statute clearly covers the old subject-matter of antecedent acts, and it plainly
appears to have been the purpose of the legislature to give expression in it to the whole law on the subject, previous
laws are held to be repealed by necessary implication. (1 Lewis' Sutherland Statutory Construction, p. 465.) For
identical reasons, it is evident that Act No. 277 had the effect so much of this article as punishes defamation, abuse,
or insults by writing.

Act No. 292 of the Philippine Commission, the Treason and Sedition Law, may also have affected article 256, but as
to this point, it is not necessary to make a pronouncement.

and crimes committed on the occasion of the exercise of rights guaranteed by the fundamental laws of the state. the laws of the country in support of an established religion or abridging the freedom of the press. insults. shall suffer the penalty of arresto mayor. — Appellant's main proposition in the lower court and again energetically pressed in the appellate court was that article 256 of the Spanish Penal Code is not now in force because abrogated by the change from Spanish to American sovereignty over the Philippines and because inconsistent with democratic principles of government. by treaty or otherwise. or insult of anyMinister of the Crown of the Monarchy of Spain (for there could not be a Minister of the Crown in the United States of America). assaults upon persons in authority. or threathen a minister of the crown. This view was indirectly favored by the trial judge. by treaty or otherwise. 1898. and is consistent with the Constitution and laws of the United States and the characteristics and institutions of the American Government.. deed. or authorizing cruel and unusual punishments. and contempts. Title III of the same Book. or. or any person in authority. and threats against persons in authority. is a determination of whether article 256 has met the same fate. Title I of Book II punishes the crimes of treason. shall defame. 1 Pet. are not longer in force. religion and worship.. and not according to those of the government ceding it. or other person in authority in the Monarchy of Spain. all laws. abuse. ordinances and regulations in conflict with the political character. the defamation. and by proclamation of the latter. Our present task. McGlinn. more specifically stated. Effect of the change from Spanish to Amercian sevoreignty over the Philippine son article 256 of the Spanish Penal Code. abuse. must hold it subject to the Constitution and laws of its own government. S. was careful to say: "The first effect of the military occupation of the enemy's territory is the severance of the former political relation of the inhabitants and the establishment of a new political power. 3 Hos. is the opinion of three members of this court. Chicago. Hagan [1845]. It cannot admit of doubt that all those provisions of the Spanish Penal Code having to do with such subjects as treason. or the offensive writing be not addressed to him. It is a general principle of the public law that on acquisition of territory the previous political relations of the ceded region are totally abrogated." To quote again from the United States Supreme Court: "It cannot be admitted that the King of Spain could. Canter [1828]. 542.S. he said: "As a matter of course." (Pollard vs. United States ([1910]. punishes the crimes of rebellion. the last being the title to Chapter V. or writing. crimes against the form of government. 23 Phil. sedition. lese majeste. Justice Field of the United States Supreme Court stated the obvious when in the course of his opinion in the case of Chicago. and the crime of piracy. vs. while engaged in the performance of official duties. now being weighed in the balance. therefore." — that is. as before stated. and threats against their agents and other public officers. a careful consideration of the codal provisions and a determination of the extent to which they accorded with or were repugnant to the "'great principles of liberty and law' . and insults." From that day to this. abuse. injurias. and their agents. and he like. Title II of the same book punishes the crimes of lese majeste. or insult any Minister of the Crown or other person in authority. institutions and Constitution of the new government are at once displaced. comes article 256. and contempts of ministers of the crown. vs. vs. injurias. supra. would at once cease to be of obligatory force without any declaration to that effect. in which article 256 is found. crimes against international law. Rock Island and Pacific Railway Co.. or by reason of such performance.) Mr. 217 U. 210. crimes against the Cortes and its members and against the council of ministers. rebellion. provided that the offensive minister or person. crimes that endanger the peace or independence of the state. 511. Thus.. Every nation acquiring territory. 315. upon a cession of political jurisdiction and legislative power — and the latter is involved in the former — to the United States. Collector of Customs [1912]. The first two articles in Chapter V define and punish the offense of contempt committed by any one who shall be word or deed defame. McGlinn [1885]. 114 U. "Political" is here used to denominate the laws regulating the relations sustained by the inhabitants to the sovereign. the municipal laws of the conquered territory affecting private rights of person and property and providing for the punishment of crime were nominally continued in force in so far as they were compatible with the new order of things. But President McKinley. whether it is in the nature of a municipal law or political law. and much less can it be admitted that they have capacity to receive or power to exercise them. To paraphrase the language of the United States Supreme Court in Weems vs. 2. and. impart to the United States any of his royal prerogatives. by word. The with an article condemning challenges to fight duels intervening. the ordinarily it has been taken for granted that the provisions under consideration were still effective. by instructions of the President to the Military Commander dated May 28. except as precise questions were presented..) On American occupation of the Philippines. in his instructions to General Merritt. Rock Island and Pacific Railway Co. Roa vs. 349). (American Insurance Co. insult. sedition. It reads as follows: "Any person who. including crime against religion and worship. there was not and could not be. Article 256 is found in Chapter V of title III of Book II of the Spanish Penal Code.

Caesar. however much they may conflict with the customs or laws of procedure with which they are familiar. supra. so long as it is not malum in se or malum prohibitum or does not infringe upon the qually sacred rights of others. on the individual citizen are likewise different. and has equal rights with every other man. Justice Elliott. without proof of any special damage. It was in no sense a continuation of the old. as for instance. We have no rank or station. except that of respectability and intelligence as opposed to indecency and ignorance. Weems vs. their habits.. however. 7).S. U. The demands which the new government made. that it was soon repealed. that there are certain great principles of government which have been made the basis of our governmental system. article 256 of the Spanish Penal Code was enacted by the Government of Spain to protect Spanish officials who were the representatives of the King. if he is qualified. 25 Phil. but the law met with so much popular disapproval. and in practice a person . U. been denied the experience possessed by us. a ruler and a freeman. 624... and of which they have. it has come with somewhat of a shock to hear the statement made that the happiness. peace. 15 Phil. "In this country no distinction as to persons is recognized. making it an offense to libel the Government. the Commission should bear in mind that he government which they are establishing is designed not for our satisfaction or for the expression of our theoretical views. as set up in the Philippines." Therefore. vs. and Tiberius.) The nature of the government which has been set up in the Philippines under American sovereignty was outlined by President McKinley in that Magna Charta of Philippine liberty. 1 Phil. or the President of the United States.) It is true that in England. while in the United States. but for the happiness.. the Emperors Augustus. vs. Balcorta [1913]. S. which we deem essential to the rule of law and the maintenance of individual freedom. Bull ([1910]. of April 7. and the people of the Islands should be made plainly to understand.' " But when the question has been squarely raised. from which so many of the laws and institutions of the United States are derived. vs.S. Every man may lawfully do what he will. that there are also certain practical rules of government which we have found to be essential to the preservation of these great principles of liberty and law. No longer is there a Minister of the Crown or a person in authority of such exalted position that the citizen must speak of him only with bated breath. said: "The President and Congress framed the government on the model with which American are familiar. peace. the Congress. 177 Mo. At the same time the Commission should bear in mind. and makes. (U. R. and prosperity of the people of the Philippine Islands. 1900. Balcorta [1913]. the offense of scandalum magnatum is not known. and whether he is qualified or not depends upon the life and character and attainments and conduct of each person for himself. In part. and the door to this rank stands open to every man to freely enter and abide therein. and which has proven best adapted for the advancement of the public interests and the protection of individual rights and privileges. the President said: In all the forms of government and administrative provisions which they are authorized to prescribe. Sweet [1901].S. and royal protection for that authority. Shepherd [1903]. become obsolete. a new government. unfortunately. demand obeisance to authority.which had been 'made the basis of our governmental system. and that these principles and these rules of government must be established and maintained in their islands for the sake of their liberty and happiness.. 205. unfortunately. The courts have naturally taken the same view. With the change of sovereignty. and the measures adopted should be made to conform to their customs.. 18. to the fullest extent consistent with the accomplishment of the indispensable requisites of just and effective government. to follow the language of President McKinley. in the case of United States vs. although merely for convenience certain of the existing institutions and laws were continued. habits. "In the eye of our Constitution and laws. every man is a sovereign. It is evident that the most enligthened thought of the Philippine Islands fully appreciates the importance of these principles and rules. Mr. long since. U. took a view less tolerant that that of other sovereigns. and prejudices. 273. the appellate court has been forced on occasion to hold certain portions of the Spanish codes repugnant t democratic institutions and American constitutional principles. The Crown of England. 533.. In the early days of the American Republic. speaking for our Supreme Court. and a new theory of government. and prosperity of the people of the Philippine Islands and their customs. 99 A. there were once statutes of scandalum magnatum. and even their prejudices.S. his instructions to the Commission. and they will inevitably within a short time command universal assent. According to our view." (State vs. 25 Phil. These English statutes have. under which words which would not be actionable if spoken of an ordinary subject were made actionable if spoken of a peer of the realm or of any of the great officers of the Crown. a sedition law was enacted.

against an authority in the performance of his duties or by reason thereof. J. 151 Mass. an agent of some authority greater than the people but it is an agent and servant of the people themselves.. that is. I am of the opinion that article 256 of the Penal Code is still in force. ROMUALDEZ. This article was crowded out by implication as soon as the United States established its authority in the Philippine Islands. it must be noted that this article punishes contempts against executive officials. Ministers of the Crown have no place under the American flag. So ordered. These officials are only entitled to respect and obedience when they are acting within the scope of their authority and jurisdiction. concur. Johnson. 50. although its terms are broad enough to cover the entire official class. C." whom we do not have in our Government. 680. 3d ed. is as wide as that which separates a monarchy from a democratic Republic like that of the United States." (Newell. The gulf which separates this article from the spirit which inspires all penal legislation of American origin. the result is.holding a high office is regarded as a target at whom any person may let fly his poisonous words. Ostrand and Johns. Sillars vs. have been obliterated by the present system of government in the Islands. with costs de officio.. which calls for drastic punishment for contemptuous remarks. The crime of lese majeste disappeared in the Philippines with the ratification of the Treaty of Paris. Street. 6 L.. Avanceña and Villamor. instead of affording immunity from slanderous and libelous charges. seems rather to be regarded as making his character free plunder for any one who desires to create a senation by attacking it. by deed or word.R. although for different reasons. JJ. with the acquittal of the accused. as was that inserted in the said information. as in monarchies.. for although that article is in force with respect to calumny.A. committed against an authority in the performance of his duties or by reason thereof. . Separate Opinions ARAULLO.. To summarize.) Article 256 of the Penal Code is contrary to the genius and fundamental principles of the American character and system of government. 1awph!l. grounded in a distorted monarchical conception of the nature of political authority. which portion was repealed by the Libel Law. I believe that the responsibility of the accused has not been shown either under article 256 of the Penal Code or under the Libel Law.net From an entirely different point of view. or insult. Punishment for contempt of non- judicial officers has no place in a government based upon American principles. or insult committed against an authority by writing or printing. Our official class is not. injuria. JJ. concurring: I concur with the result. except as it refers to "Ministers of the Crown.. that all the members of the court are of the opinion. injuria. or insult. by writing or printing. that the judgment should be reversed and the defendant and appellant acquitted. it is repealed by the Libel Law in so far as it refers to calumny. Penalties out of all proportion to the gravity of the offense. Collier [1890]. but never does it place around the individual who happens to occupy an official position by mandate of the people any official halo. as opposed to the American conception of the protection of the interests of the public. p. 245. Slander and Libel. outside of his presence. injuria. High official position. for the sole reason that the facts alleged in the information do not constitute a violation of article 256 of the Penal Code. concurring: I concur with the dispositive part of the foregoing decision..J. and to calumny. The American system of government is calculated to enforce respect and obedience where such respect and obedience is due. concur.