G.R. No.

L-2662 March 26, 1949

SHIGENORI KURODA, petitioner,

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

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

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

MORAN, C.J.:

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

In support of his case petitioner tenders the following principal arguments.

First. — "That Executive Order No. 68 is illegal on the ground that it violates not only the provision of
our constitutional law but also our local laws to say nothing of the fact (that) the Philippines is not a
signatory nor an adherent to the Hague Convention on Rules and Regulations covering Land Warfare
and therefore petitioners is charged of 'crimes' not based on law, national and international." Hence
petitioner argues — "That in view off the fact that this commission has been empanelled by virtue of
an unconstitutional law an illegal order this commission is without jurisdiction to try herein petitioner."

Second. — That the participation in the prosecution of the case against petitioner before the
Commission in behalf of the United State of America of attorneys Melville Hussey and Robert Port
who are not attorneys authorized by the Supreme Court to practice law in the Philippines is a
diminution of our personality as an independent state and their appointment as prosecutor are a
violation of our Constitution for the reason that they are not qualified to practice law in the Philippines.

Third. — That Attorneys Hussey and Port have no personality as prosecution the United State not
being a party in interest in the case.

Executive Order No. 68, establishing a National War Crimes Office prescribing rule and regulation
governing the trial of accused war criminals, was issued by the President of the Philippines on the
29th days of July, 1947 This Court holds that this order is valid and constitutional. Article 2 of our
Constitution provides in its section 3, that —

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

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

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

Consequently, the President as Commander in Chief is fully empowered to consummate this

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

Petitioner argues that respondent Military Commission has no Jurisdiction to try petitioner for acts
committed in violation of the Hague Convention and the Geneva Convention because the Philippines
is not a signatory to the first and signed the second only in 1947. It cannot be denied that the rules
and regulation of the Hague and Geneva conventions form, part of and are wholly based on the
generally accepted principals of international law. In facts these rules and principles were accepted by
the two belligerent nation the United State and Japan who were signatories to the two Convention,
Such rule and principles therefore form part of the law of our nation even if the Philippines was not a
signatory to the conventions embodying them for our Constitution has been deliberately general and
extensive in its scope and is not confined to the recognition of rule and principle of international law
as continued inn treaties to which our government may have been or shall be a signatory.

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

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

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

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

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

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

The Military Commission having been convened by virtue of a valid law with jurisdiction over the crimes
charged which fall under the provisions of Executive Order No. 68, and having said petitioner in its
custody, this Court will not interfere with the due process of such Military commission.

For all the foregoing the petition is denied with costs de oficio.

Paras, Feria, Pablo, Bengzon, Tuason, Montemayor and Reyes, JJ., concur.

Separate Opinions

PERFECTO, J., dissenting:

A military commission was empanelled on December 1, 1948 to try Lt. Gen. Shigenori Kuroda for
Violation of the laws and customs of land warfare.

Melville S. Hussey and Robert Port, American citizens and not authorized by the Supreme Court to
practice law were appointed prosecutor representing the American CIC in the trial of the case.
The commission was empanelled under the authority of Executive Order No. 68 of the President of
the Philippines the validity of which is challenged by petitioner on constitutional grounds. Petitioner
has also challenged the personality of Attorneys Hussey and Port to appear as prosecutors before the
commission.

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

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

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

EXECUTIVE ORDER NO. 68.

ESTABLISHING A NATIONAL WAR CRIMES OFFICE AND PRESCRIBING RULES

AND REGULATION GOVERNING THE TRIAL OF ACCUSED WAR CRIMINAL.

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

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

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

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

ESTABLISHMENT OF MILITARY COMMISSIONS

(a) General. — person accused as war criminal shall be tried by military commission to be
convened by or under the authority of the Philippines.

II. JURISDICTION

(a) Over Person. — Thee military commission appointed hereunder shall have jurisdiction over
all persons charged with war crimes who are in the custody of the convening authority at the
time of the trial.
(b) Over Offenses. — The military commission established hereunder shall have jurisdiction
over all offenses including but not limited to the following:

(1) The planning preparation initiation or waging of a war of aggression or a war in violation of
international treaties agreement or assurance or participation in a common plan or conspiracy
for the accomplishment of any of the foregoing.

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

(3) Murder extermination enslavement deportation and other inhuman acts committed against
civilian population before or during the war or persecution on political racial or religion ground
in executive of or in connection with any crime defined herein whether or not in violation of the
local laws.

III. MEMBERSHIP OF COMMISSIONS

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

(b) Number of Members. — Each commission shall consist of not less than three (3) members.

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

(d) Voting. — Except as to the admissibility of evidence all rulings and finding of the
Commission shall be by majority vote except that conviction and sentence shall be by the
affirmative vote of not less than conviction and sentence shall be by the affirmative vote of not
less than two-thirds (2\3) of the member present.

(e) Presiding Member. — In the event that the convening authority does not name one of the
member as the presiding member, the senior officer among the member of the Commission
present shall preside.

IV. PROSECUTORS

(a) Appointment. — The convening authority shall designate one or more person to conduct
the prosecution before each commission.
(b) Duties. — The duties of the prosecutor are:

(1) To prepare and present charges and specifications for reference to a commission.

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

V. POWER AND PROCEDURE OF COMMISSION

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

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

(2) Deal summarily with any contumacy or contempt, imposing any appropriate punishment
therefor.

(3) Hold public session when otherwise decided by the commission.

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

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

(1) To have in advance of the trial a copy of the charges and specifications clearly worded so
as to apprise the accused of each offense charged.

(2) To be represented, prior to and during trial, by counsel appointed by the convening
authority or counsel of his own choice, or to conduct his own defense.

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

(4) To have the substance of the charges and specifications, the proceedings and any
documentary evidence translated, when he is unable otherwise to understand them.

(c) Witnesses. — The Commission shall have power:

(1) To summon witnesses and require their attendance and testimony; to administer oaths or
affirmations to witnesses and other persons and to question witnesses.

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

(3) To delegate the Prosecutors appointed by the convening authority the powers and duties
set forth in (1) and (2) above.

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

(d) Evidence.

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

(a) Any document, irrespective of its classification, which appears to the commission to have
been signed or issued by any officer, department, agency or member of the armed forces of
any Government without proof of the signature or of the issuance of the document.

(b) Any report which appears to the commission to have been signed or issued by the
International Red Cross or a member of any medical service personnel, or by any investigator
or intelligence officer, or by any other person whom commission considers as possessing
knowledge of the matters contained in the report.

(c) Affidavits, depositions or other signed statements.

(d) Any diary, letter to other document, including sworn statements, appearing to the
commission to contain information relating to the charge.

(e) A copy of any document or other secondary evidence of the contents, if the original is not
immediately available.

(2) The commission shall take judicial notice of facts of common knowledge, official
government documents of any nation, and the proceedings, records and findings of military or
other agencies of any of the United Nation.

(3) A commission may require the prosecution and the defense to make a preliminary offer of
proof whereupon the commission may rule in advance on the admissibility of such evidence.

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

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

(e) Trial Procedure. — The proceedings of each trial shall be conducted substantially as
follows unless modified by the commission to suit the particular circumstances:

(1) Each charge and specification shall be read or its substance stated in open court.

(2) The presiding member shall ask each accused whether he pleads "Guilty" or "Not guilty."
(3) The prosecution shall make its opening statement."(4) The presiding member may at this
or any other time require the prosecutor to state what evidence he proposes to submit to the
commission and the commission thereupon may rule upon the admissibility of such evidence.

(4) The witnesses and other evidence for the prosecution shall be heard or presented. At the
close of the case for the prosecution, the commission may, on motion of the defense for a
finding of not guilty, consider and rule whether he evidence before the commission may defer
action on any such motion and permit or require the prosecution to reopen its case and
produce any further available evidence.

(5) The defense may make an opening statement prior to presenting its case. The presiding
member may, at this any other time require the defense to state what evidence it proposes to
submit to the commission where upon the commission may rule upon the admissibility of such
evidence.

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

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

(8) The commission thereafter shall consider the case in closed session and unless otherwise
directed by the convening authority, announce in open court its judgment and sentence if any.
The commission may state the reason on which judgment is based.

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

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

(g) Sentence. — The commission may sentence an accused, upon conviction to death by
hanging or shooting, imprisonment for life or for any less term, fine or such other punishment
as the commission shall determine to be proper.

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

VI. RULE-MAKING POWER

 Supplementary Rule and Forms. — Each commission shall adopt rules and forms to govern
its procedure, not inconsistent with the provision of this Order, or such rules and forms as may
be prescribed by the convening authority]or by the President of the Philippines.

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

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

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

MANUEL ROXAS
President of the Philippines

By the President:

EMILIO ABELLO
Chief of the Executive Office

EXECUTIVE LEGISLATION

Executive Order No. 68 is a veritable piece of Legislative measure, without the benefit of congressional
enactment.

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

The Constitution provides:

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

While there is no express provision in the fundamental law prohibiting the exercise of legislative power
by agencies other than Congress, a reading of the whole context of the Constitution would dispel any
doubt as to the constitutional intent that the legislative power is to be exercised exclusively by
Congress, subject only to the veto power of the President of the President of the Philippines, to the
specific provision which allow the president of the Philippines to suspend the privileges of the writ of
habeas corpus and to place any part of the Philippines under martial law, and to the rule-making power
expressly vested by the Constitution in the Supreme Court.
There cannot be any question that the member of the Constitutional Convention were believers in the
tripartite system of government as originally enunciated by Aristotle, further elaborated by Montequieu
and accepted and practiced by modern democracies, especially the United State of America, whose
Constitution, after which ours has been patterned, has allocated the three power of government —
legislative, executive, judicial — to distinct and separate department of government.

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

Executive Order No. 68 establishes a National War Crimes Office and the power to establish
government office is essentially legislative.

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

It provides rules of procedure for the conduct of trial of trial. This provision on procedural subject
constitutes a usurpation of the rule-making power vested by Constitution in the Supreme Court.

It authorized military commission to adopt additional rule of procedure. If the President of the
Philippines cannot exercise the rule -making power vested by the Constitution in the Supreme Court,
he cannot, with more reason, delegate that power to military commission.

It appropriates the sum of P7000,000 for the expenses of the National War Crimes office established
by the said Executive Order No. 68. This constitutes another usurpation of legislative power as the
power to vote appropriations belongs to Congress.

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

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

COMMONWEALTH ACT NO. 600.

AN ACT DECLARING A STATE OF EMERGENCY AND AUTHORIZING THE

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

Be it enacted by the National Assembly of the Philippines:

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

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

SEC. 3. Any person, firm, or corporation found guilty of the violation of any provision of this
Act or of this Act or any of the rules or regulations promulgated by the President under the
authority of section one of this Act shall be punished by imprisonment of not more than ten
years or by a fine of not more than ten thousand pesos, or by both. If such violation is
committed by a firm or corporation, the manager, managing director, or person charge with
the management of the business of such firm, or corporation shall be criminally responsible
therefor.

SEC. 4. The President shall report to the national Assembly within the first ten days from the
date of the opening of its next regular session whatever action has been taken by him under
the authority herein granted.

SEC. 5. To carry out the purposed of this Act, the President is authorized to spend such
amounts as may be necessary from the sum appropriated under section five Commonwealth
Act Numbered four hundred and ninety-eight.
 SEC. 6. If any province of this Act shall be declared by any court of competent jurisdiction to
be unconstitutional and void, such declaration shall not invalidate the remainder of this Act.

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

Approved, August 19, 1940.

COMMONWEALTH ACT NO. 671

AN ACT DECLARING A STATE OF TOTAL EMERGENCY AS A RESULT OF WAR

INVOLVING THE PHILIPPINES AND AUTHORIZING THE PRESIDENT TO
PROMULGATE RULE AND REGULATIONS TO MEET SUCH EMERGENCY.

Be it enacted the National Assembly of the Philippines;

SECTION 1. The existed of war between the United State and other countries of Europe and
Asia, which involves the Philippines, makes it necessary to invest the President with
extraordinary powers in order to meet the resulting emergency.

SEC. 2. Pursuant to the provision of Article VI, section 16, of the Constitution, the President is
hereby authorized, during the existence of the emergency, to promulgate such rules and
regulation as he may deem necessary to carry out the national policy declared in section 1
hereof. Accordingly, he is, among other things, empowered (a) to transfer the seat of the
Government or any of its subdivisions, branches, department, offices, agencies or
instrumentalities; (b) to reorganize the Government of the Commonwealth including the
determination of the order of precedence of the heads of the Executive Department; (c) to
create new subdivision, branches, departments, offices, agency or instrumentalities of
government and to abolish any of those already existing; (d) to continue in force laws and
appropriation which would lapse or otherwise became inoperative, and to modify or suspend
the operation or application of those of an administrative character; (e) to imposed new taxes
or to increase, reduce, suspend, or abolish those in existence; (f) to raise funds through the
issuance of bonds or otherwise, and to authorize the expensive of the proceeds thereof; (g) to
authorize the National, provincial, city or municipal governments to incur in overdrafts for
purposes that he may approve; (h) to declare the suspension of the collection of credits or the
payment of debts; and (i) to exercise such other power as he may deem necessary to enable
the Government to fulfill its responsibilities and to maintain and enforce its authority.

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

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

Approved December 16, 1941.

The above Acts cannot validly be invoked, Executive Order No. 68 was issued on July 29, 1947. Said
Acts had elapsed upon the liberation of the Philippines form the Japanese forces or, at the latest, when
the surrender of Japan was signed in Tokyo on September 2, 1945.
When both Acts were enacted by the Second National Assembly, we happened to have taken direct
part in their consideration and passage, not only as one of the members of said legislative body as
chairman of the Committee on Third Reading population Known as the "Little Senate." We are,
therefore in a position to state that said measures were enacted by the second national Assembly for
the purpose of facing the emergency of impending war and of the Pacific War that finally broke out
with the attack of Pearl Harbor on December 7, 1941. We approved said extraordinary measures, by
which under the exceptional circumstances then prevailing legislative power were delegated to the
President of the Philippines, by virtue of the following provisions of the Constitution:

In time of war or other national emergency, the Congress may by law authorize the President,
for a limited period and subject to such restrictions as it may prescribe to promulgate rules and
regulations to carry out declared national policy. (Article VI, section 26.)

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

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

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

Executive Order No. 68 is equally offensive to the Constitution because it violates the fundamental
guarantees of the due process and equal protection of the law. It is especially so, because it permit
the admission of many kinds evidence by which no innocent person can afford to get acquittal and by
which it is impossible to determine whether an accused is guilty or not beyond all reasonable doubt.

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

For all the foregoing, conformably with our position in the Yamashita and Homma cases, we vote to
declare Executive Order No. 68 null and void and to grant petition.
G.R. No. L-4254 September 26, 1951

BORIS MEJOFF, petitioner,

vs.
THE DIRECTOR OF PRISONS, respondent.

Ambrosio T. Dollete for petitioner.

First Assistant Solicitor General Roberto A. Gianson and Solicitor Florencio Villamor for
respondents.

TUASON, J.:

This is a second petition for habeas corpus by Boris Mejoff, the first having been denied in a decision
of this Court of July 30, 1949. The history of the petitioner's detention was thus briefly set forth in that
decision, written by Mr. Justice Bengzon:

The petitioner Boris Mejoff is an alien of Russian descent who was brought to this country from
Shanghai as a secret operative by the Japanese forces during the latter's regime in these
Islands. Upon liberation he was arrested as a Japanese spy, by U.S. Army Counter Intelligence
Corps. Later he was handed to theCommonwealth Government for disposition in accordance
with Commonwealth Act No. 682. Thereafter, the People's Court ordered his release. But the
deportation Board taking his case up, found that having no travel documents Mejoff was
illegally in this country, and consequently referred the matter to the immigration authorities.
After the corresponding investigation, the Board of commissioners of Immigration on April 5,
1948, declared that Mejoff had entered the Philippines illegally in 1944, without inspection and
admission by the immigration officials at a designation port of entry and, therefore, it ordered
that he be deported on the first available transportation to Russia. The petitioner was then
under custody, he having been arrested on March 18, 1948. In May 1948 he was transferred
to the Cebu Provincial Jail together with three other Russians to await the arrival of some
Russian vessels. In July and August of that year two boats of Russian nationality called at the
Cebu Port. But their masters refused to take petitioner and his companions alleging lack of
authority to do so. In October 1948 after repeated failures to ship this deportee abroad, the
authorities removed him to Bilibid Prison at Muntinglupa where he has been confined up to the
present time, inasmuch as the Commissioner of Immigration believes it is for the best interests
of the country to keep him under detention while arrangements for his departure are being
made.

The Court held the petitioner's detention temporary and said that "temporary detention is a necessary
step in the process of exclusion or expulsion of undesirable aliens and that pending arrangements for
his deportation, the Government has the right to hold the undesirable alien under confinement for a
reasonable lenght of time." It took note of the fact, manifested by the Solicitor General's representative
in the course of the of the oral argumment, that "this Government desires to expel the alien, and does
not relish keeping him at the people's expense . . . making efforts to carry out the decree of exclusion
by the highest officer of the land." No period was fixed within which the immigration authorities should
carry out the contemplated deportation beyond the statement that "The meaning of 'reasonable time'
depends upon the circumstances, specially the difficulties of obtaining a passport, the availability of
transportation, the diplomatic arrangements with the governments concerned and the efforts displayed
to send the deportee away;" but the Court warned that "under established precedents, too long a
detention may justify the issuance of a writ of habeas corpus."

Mr. Justice Paras, now Chief Justice, Mr. Justice Feria, Mr. Justice Perfecto, and the writer of this
decision dissented. Mr. Justice Feria and Mr. Justice Perfecto voted for outright discharge of the
prisoner from custody. Mr. Justice Paras qualified his dissent by stating that he might agree "to further
detention of the herein petitioner, provided that he be released if after six months, the Government is
still unable to deport him." This writer joined in the latter dissent but thought that two months constituted
reasonable time.

Over two years having elapsed since the decision aforesaid was promulgated, the Government has
not found way and means of removing the petitioner out of the country, and none are in sight, although
it should be said in justice to the deportation authorities, it was through no fault of theirs that no ship
or country would take the petitioner.

Aliens illegally staying in the Philippines have no right of asylum therein (Sowapadji vs. Wixon, Sept.
18, 1946, 157 F. ed., 289, 290), even if they are "stateless," which the petitioner claims to be. It is no
less true however, as impliedly stated in this Court's decision, supra, that foreign nationals, not enemy
against whom no charge has been made other than that their permission to stay has expired, may not
indefinitely be kept in detention. The protection against deprivation of liberty without due process of
law and except for crimes committed against the laws of the land is not limited to Philippine citizens
but extends to all residents, except enemy aliens, regardless of nationality. Whether an alien who
entered the country in violation of its immigration laws may be detained for as long as the Government
is unable to deport him, is a point we need not decide. The petitioner's entry into the Philippines was
not unlawful; he was brought by the armed and belligerent forces of a de facto government whose
decrees were law furing the occupation.

Moreover, by its Constitution (Art. II, Sec. 3) the Philippines "adopts the generally accepted principles
of international law as part of the law of Nation." And in a resolution entitled "Universal Declaration of
Human Rights" and approved by the General Assembly of the United Nations of which the Philippines
is a member, at its plenary meeting on December 10, 1948, the right to life and liberty and all other
fundamental rights as applied to all human beings were proclaimed. It was there resolved that "All
human beings are born free and equal in degree and rights" (Art. 1); that "Everyone is entitled to all
the rights and freedom set forth in this Declaration, without distinction of any kind, such as race, colour,
sex, language, religion, political or other opinion, nationality or social origin, property, birth, or other
status" (Art. 2): that "Every one has the right to an effective remedy by the competent national tribunals
for acts violating the fundamental rights granted him by the Constitution or by law" (Art. 8); that "No
one shall be subjected to arbitrary arrest, detention or exile" (Art. 9); etc.

In U. S. vs. Nichols, 47 Fed. Supp., 201, it was said that the court "has the power to release from
custody an alien who has been detained an unreasonably long period of time by the Department of
Justice after it has become apparent that although a warrant for his deportation has been issued, the
warrant can not be effectuated;" that "the theory on which the court is given the power to act is that
the warrant of deportation, not having been able to be executed, is functus officio and the alien is being
held without any authority of law." The decision cited several cases which, it said, settled the matter
definitely in that jurisdiction, adding that the same result had reached in innumerable cases elsewhere.
The cases referred to were United States ex rel. Ross vs. Wallis, 2 Cir. 279 F. 401, 404;
Caranica vs. Nagle, 9 Cir., 28 F. 2d 955; Saksagansky vs. Weedin, 9 Cir., 53 F. 2d 13, 16 last
paragraph; Ex parte Matthews, D.C.W.D. Wash., 277 F. 857; Moraitis vs. Delany, D.C. Md. Aug. 28,
1942, 46 F. Supp. 425.

The most recent case, as far as we have been able to find, was that of Staniszewski vs. Watkins
(1948), 90 Fed. Supp., 132, which is nearly foursquare with the case at hand. In that case a stateless
person, formerly a Polish national, resident in the United States since 1911 and many times serving
as a seaman on American vessels both in peace and in war, was ordered excluded from the United
States and detained at Ellis Island at the expense of the steamship company, when he returned from
a voyage on which he had shipped from New York for one or more European ports and return to the
United States. The grounds for his exclusion were that he had no passport or immigration visa, and
that in 1937 had been convicted of perjury because in certain documents he presented himself to be
an American citizen. Upon his application for release on habeas corpus, the Court released him upon
his own recognizance. Judge Leibell, of the United States District Court for the Southern District of
New York, said in part:

When the return to the writ of habeas corpus came before this court, I suggested that all
interested parties . . . make an effort to arrange to have the petitioner ship out of some country
that he would receive him as a resident. He is, a native-born Pole but the Polish Consul has
advised him in writing that he is no longer a Polish subject. This Government does not claim
that he is a Polish citizen. His attorney says he is a stateless. The Government is willing that
he go back to the ship, but if he were sent back aboard a ship and sailed to the Port
(Cherbourg, France) from which he last sailed to the United States, he would probably be
denied permission to land. There is no other country that would take him, without proper
documents.

It seems to me that this is a genuine hardship case and that the petitioner should be released
from custody on proper terms. . . .

What is to be done with the petitioner? The government has had him in custody almost seven
months and practically admits it has no place to send him out of this country. The steamship
company, which employed him as one of a group sent to the ship by the Union, with proper
seaman's papers issued by the United States Coast Guard, is paying $3 a day for petitioner's
board at Ellis Island. It is no fault of the steamship company that petitioner is an inadmissible
alien as the immigration officials describe him. . . .

I intend to sustain the writ of habeas corpus and order the release of the petitioner on his own
recognizance. He will be required to inform the immigration officials at Ellis Island by mail on
the 15th of each month, stating where he is employed and where he can be reached by mail.
If the government does succeed in arranging for petitioner's deportation to a country that will
be ready to receive him as a resident, it may then advise the petitioner to that effect and
arrange for his deportation in the manner provided by law.

Although not binding upon this Court as a precedent, the case aforecited affords a happy solution to
the quandry in which the parties here finds themselves, solution which we think is sensible, sound and
compatible with law and the Constitution. For this reason, and since the Philippine law on immigration
was patterned after or copied from the American law and practice, we choose to follow and adopt the
reasoning and conclusions in the Staniszewski decision with some modifications which, it is believed,
are in consonance with the prevailing conditions of peace and order in the Philippines.

It was said or insinuated at the hearing ofthe petition at bar, but not alleged in the return, that the
petitioner was engaged in subversive activities, and fear was expressed that he might join or aid the
disloyal elements if allowed to be at large. Bearing in mind the Government's allegation in its answer
that "the herein petitioner was brought to the Philippines by the Japanese forces," and the fact that
Japan is no longer at war with the United States or the Philippines nor identified with the countries
allied against these nations, the possibility of the petitioner's entertaining or committing hostile acts
prejudicial to the interest and security of this country seems remote.

If we grant, for the sake of argument, that such a possibility exists, still the petitioner's unduly prolonged
detention would be unwarranted by law and the Constitution, if the only purpose of the detention be to
eliminate a danger that is by no means actual, present, or uncontrolable. After all, the Government is
not impotent to deal with or prevent any threat by such measure as that just outlined. The thought
eloquently expressed by Mr. Justice Jackson of the United States Supreme Court in connection with
the appliccation for bail of ten Communists convicted by a lower court of advocacy of violent overthrow
of the United States Government is, in principle, pertinent and may be availed of at this juncture. Said
the learned Jurist:

The Governmet's alternative contention is that defendants, by misbehavior after conviction,

have forfeited their claim to bail. Grave public danger is said to result from what they may be
expected to do, in addition to what they have done since their conviction. If I assume that
defendants are disposed to commit every opportune disloyal to act helpful to Communist
countries, it is still difficult to reconcile with traditional American law the jailing of persons by
the courts because of anticipated but as yet uncommitted crimes. lmprisonment to protect
society from predicted but unconsummated offenses is so unprecedented in this country and
so fraught with danger of excesses and injustice that I am loath to resort it, even as a
discretionary judicial technique to supplement conviction of such offenses as those of which
defendants stand convicted.

But the right of every American to equal treatment before the law is wrapped up in the same
constitutional bundle with those of these Communists. If an anger or disgust with these
defendants we throw out the bundle, we alsocast aside protection for the liberties of more
worthy critics who may be in opposition to the government of some future day.

xxx xxx xxx 1âw phïl.nêt

If, however, I were to be wrong on all of these abstract or theoretical matters of principle, there
is a very practical aspect of this application which must not be overlooked or underestimated
— that is the disastrous effect on the reputation of American justice if I should now send these
men to jail and the full Court later decide that their conviction is invalid. All experience with
litigation teaches that existence of a substantial question about a conviction implies a more
than negligible risk of reversal. Indeed this experience lies back of our rule permitting and
practice of allowing bail where such questions exist, to avoid the hazard of unjustifiably
imprisoning persons with consequent reproach to our system of justice. If that is prudent
judicial practice in the ordinary case, how much more important to avoid every chance of
handing to the Communist world such an ideological weapon as it would have if this country
should imprison this handful of Communist leaders on a conviction that our highest Court
would confess to be illegal. Risks, of course, are involved in either granting or refusing bail. I
am naive enough to underestimate the troublemaking propensities of the defendants. But, with
the Department of Justice alert to the the dangers, the worst they can accomplish in the short
time it will take to end the litigation is preferable to the possibility of national embarrassment
from a celebrated case of unjustified imprisonment of Communist leaders. Under no
circumstances must we permit their symbolization of an evil force in the world to be hallowed
and glorified by any semblance of martyrdom. The way to avoid that risk is not to jail these
men until it is finally decided that they should stay jailed.

If that case is not comparable with ours on the issues presented, its underlying principle is of universal
application. In fact, its ratio decidendi applies with greater force to the present petition, since the right
of accused to bail pending apppeal of his case, as in the case of the ten Communists, depends upon
the discretion of the court, whereas the right to be enlarged before formal charges are instituted is
absolute. As already noted, not only are there no charges pending against the petitioner, but the
prospects of bringing any against him are slim and remote.

Premises considered, the writ will issue commanding the respondents to release the petitioner from
custody upon these terms: The petitioner shall be placed under the surveillance of the immigration
authorities or their agents in such form and manner as may be deemed adequate to insure that he
keep peace and be available when the Government is ready to deport him. The surveillance shall be
reasonable and the question of reasonableness shall be submitted to this Court or to the Court of First
Instance of Manila for decision in case of abuse. He shall also put up a bond for the above purpose in
the amount of P5,000 with sufficient surety or sureties, which bond the Commissioner of Immigration
is authorized to exact by section 40 of Commonwealth Act No. 613.

No costs will be charged.

Paras, C.J., Feria, Bengzon, Padilla, Reyes and Jugo, JJ., concur.

Separate Opinions

PABLO, M., disidente:

Disiento

En decision disada por este Tribunal en la primera causa de habeas corpus incoada por el solicitante
Boris Mejoff (G.R. No. L-2855, Mejoff vs. Director of Prisons)*, se declaro que el habia venido a
Filipinas procedente de Shanghai como espia japones; en la liberacion, el ejercito americano le arresto
por se espia, habiendo sido mas tarde entregado al Gobierno del Commonwealth para ser tratado de
acuerdo con la ley No.682; pero como bajo el Codgo Penal Revisado, antes de su enmienda por la
Orden Ejecutiva No. 44, (mayo 31, 1945) no se castiga al extranjero que comete traicion, Mejoff fue
puesto en libertad. Despues de una debida investigacion, la Junta de Departacion encontra que el
solicitante no tenia permiso para entrar en Filipinas; fue entregado a la Junta de Inmigacion, la cual
ordeno su deportacion a Rusia por el primer transporte disponible por haber vendo aqui ilegalmente;
fue enviado a Cebu para que alli se embarcase, pero los dos barcos de nacionalidad rusa que llegaron
a dicho puerto en julio y agosto de 1948 rehusaron admitirle. Por no encontrar transportacion para su
departacion, Mejoff fue enviado a la Prison de Muntinglupa, donde esta actualmente de tenido
mientras el Gobierno no encuenra medio de transportarle a Rusia.

La mayoria contiende que "The Petitioner's entry into the Philippines was not unlawful; he was brought
by the armed and belligerent forces of a de facto government whose decrees were law during the
occupation." Es tan ilegal la entrada del solicitante como la del ejercito al que sirvio como espia.
Ninguno tiene derecho a permanecer aqui. Puesto que fue vencido el ejercito invasor que le trajo, el
solicitante no tiene derecho a pemanecer aqui ni un minuto mas. Si desea proteccion, debe acudir al
Gobierno Japones a cuyo ejercito el sirvio; el hecho de que ya esta aqui no le da titulo para
permanecer libre aqui. El que ha venido como espia de enemigo del Pueblo de Filipinas no tiene
derecho a pedir igual trato que aquel ha entrado de buena fe. ¿Es que Filipinos tiene la obligacion de
acoger a un ciudadano indeseable de Rusia? ¿Desde cuando tiene que allanarse una nacion a ser
residencia de una extranjero que entro como enemigo o, peor aun, como espia? Un Estado tiene
indiscutible derecho a deportar y expulsar de su territorio a todo extranjero indeseable.

El solicitante sostiene que no tiene estado. Eso no es razon para que tenga derecho a permanecer
aqui. Puede ser departado a Rusio o a Shanghai de donde vino. Si todos los rusos que, por alguno
que otro motivo, o por odio al comunisomo, dejasen su pais y emigrasen aqui reclamando igual
derecho, no habria territorio suficiente para ellos. Se puede decir otro tanto de los chinos que, so
pretexto de no querer someterse al regimen comunista, optasen por resider para siempre aqui. Y si
los mismos communistas chinos viniesen clandestinamente y despues reclamasen igual proteccion
como la concedida a Mejoff, ¿tendreos que darles por el gusto?

Se invoca la resolucion aprobada por la Asamblea General de las Naciones Unidas, titulada "Universal
Declaration of Human Rights", en la que se establece, entre otras cosas, que "no one shall be
subjected to arbitrary arrest, detention or exile." Yo soy de los que creen firmemente en lo sagrado de
esta resolucion; no puedo permitir que se detenga y se arreste a alguien sin motivo justificado, de una
manera arbitraria; pero el solicitante no esta detenido de esta manera, lo esta de una manera
provisional. Tan pronto como haya barco disponible para su deportacion o tan pronto como pueda
embarcarse en algun barco para el extenjero o para cualquier otro punto a donde quiera ir, dejara de
ser detenido. Conste que no esta preso como un criminal condenado por un delito; esta tratado como
cualquier otro extranjero sujeto a deportacion. Si el solicitante no hubiera sido espia, si no hubiera
venido aqui para ayudar a las hordas japonesas en la subyugacion del pueblo filipino, si hubiera
venido como visitante, por ejemplo, y, por azares de la fortuna, no pudo salir, yo seria el primero en
abogar por su liberacion inmediata.

Se cita el caso de Staniszewski vs. Watkins, (1948 A.M.C. 931, 42 American Journal of International
Law, 732) en el cual el recurrente estuvo detenido ya casi siete meses cuando se decreto su libertad
en un recurso de habeas corpus. En nuestra opinion, dicho caso no tiene simulitud con la causa
presente. Staniszewski era residente de los Estados desde 1911; estuvo sirviendo como marino en
barcos mercantes americanos en tiempo de guerra y se ordeno su detencion en Ellis Island cuando
volvio a America procedente de un viaje a Europa por no tener papeles de inmigracion. Staniszewski
no habia entrado en los Estados Unidos como espia, estuvo residiendo en dicho pais por varios años,
era ya habitante de los Estados unidos. La ocupacion de marino es honrosa, la del espia mercenario,
detestable. El espia es peor que el enemigo. Este lucha cara a cara, y el espia, con disimulo y arte
engañosa, escucha lo que a Staniszewski se le haya puesto en libertad. Poner en libertad a un espia
es poner en peligro la seguridad del Estado.

En cuanto a la duracion de la detencion provisional del recurrente, no hay regla fija, depende de la
cincunstancia de cada caso particular. Es evidente que los medios de comunicacion entre Filipinas y
Rusia o Shanghai, debico a fala de relciones diplomaticas, son completamente anormales. No es
culpa del gobierno el que no encuentre medios de transportacion para el.

La Comision de Inmigracion ha dado pasos para que la International Refugee Organziation of the
United Nations (IRO0 se hiciera cargo del recurrente para que pueda ser repartriado o enviado a otro
pais extranjero, pero el Jefe de dicha organizacion contesto que no estaba en condicines para aceptar
dicha recomendacion.

William Martin Jurgans fue arrestado en 9 de enero de 1920, en 20 de mayo se decreto su deportacion
por el Sub Secretario del Tarabajo por violacion de la Ley de Inmigracion; solicto su libertad bajo el
recurso de Habeas Corpus, y en 16 de febrero de 1927 se denego su peticion; no se le pudo deportar
porque "the necessary arrangements for his deportation could obviously not be made." (District Court
of Minnesota, 17 F. 2nd series, 507). Como se vera, la detencion provisional de William Martin Jurgans
duro mas de seis años; la de Mejoff no ha sido mas que de 31 meses, y no porque el gobierno no
quiere deportarle, sino porque no hay medio disponible para realizarlo.

En Moraitis vs. Delany, 46 F. Supp., 425, se dijo:

What constitutes a reasonable time for the detention of the petitioner in custody for deportation
depends upon the facts and circumstances of particular cases. This court cannot shut its eyes
to the vitally important interests of this country at this time with respect to the bottleneck of
shipping, when every available ship, domestic and foreign, must be utilized to the utmost
without delay consequent upon the lack of avilable seamen. Under these present conditions
the court should be liberal indeed in aiding the executive branch of the govenment in the strict
enforcement of laws so vitally necessary in the common defns. There is sound authority for
this view in United States ex. rel. Schlimm vs. Howe, D C.N. U Y. 222 F. 96, 97, where Circuit
Judge Lacombe refused to release an alien who had come here from Germany and was
ordered deported in 1915 when, by reason of the then existing war between Germany and
England, his deportation to Germany was not possible. It was said:

At the present time there is no regular passenger ocean service to German ports, so the
authorities are unable to forward him, and are holding him until some opportunity of returning
him to Germany may present itself. His continual detention is unfortunate, but certainly is not
illegal. His present condition can be alleviated only by the action of the executive branch of the
government. A federal court would not be justified in discharging him. . . .

If he is not really fit for sea service, it is not probable that he would be forced into it, although
he may be able to serve his government in some other capacity. But however that may be,
while this country has no power under existing legislation to impress him into sea service
against his will, he has no just cause to be relieved from the strict enforcement of our
deportation laws, and to remain at liberty in this country as a sanctuary contrary to our laws.
G.R. No. L-44 September 13, 1945

LILY RAQUIZA, ET AL., petitioners,

vs.
LT. COL. L.J. BRADFORD, ET AL., respondents.

Guillermo B. Guevarra for petitioners.

J.A. Wolfson for respondents.

HILADO, J.:

Alleging in their petition for a writ of habeas corpus, dated August 30, 1945, that they have been and
are being "confined, restrained and deprived" of their liberty in the Correctional Institution for Women,
petitioners, Lily Raquiza, Haydee Tee Han Kee and Emma Link Infante, pray that the officers therein
named, to wit, Lt. Col. L.J. Bradford and Capt. Inez L. Twindle of the CIC, U.S. Army, "or whoever acts
in her place or stead," be directed to appear before this Court and produce the bodies of petitioners,
and to show cause why petitioners should not forthwith be set at liberty.

Respondent Lt. Col., Bradford, having been served with this Court's order to show cause dated August
31, 1945, made return thereto dated September 5, 1945, to which are attached as parts thereof certain
commitment orders marked Schedules A, A-1 and A-2, the first and last emanating from the
Headquarters of the Sixth Army, 306th Counter Intelligence Corps Detachment, and the second from
that of the United States Army Forces in the Far East, 493rd Counter Intelligence Corps Detachment.

Respondent Captain Caroline De Eason, WAC, having been served with this Court's order to show
cause dated September 7, 1945, made return thereto dated on the same day, incorporating therein by
reference Schedules A, A-1 and A-2 of her co-respondents' return above mentioned.

It appears from these returns, as well as from the arguments of counsel, that by virtue of the
proclamation issued by General of the Army MacArthur on December 29, 1944, petitioner Lily Raquiza
was on March 13, 1945, arrested by the 306th Counter Intelligence Corps Detachment of the U.S.
Sixth Army, and detained under Security Commitment Order No. 385 (Schedule A), wherein she was
charged as follows:

Commitment Order. — The person named and described above is deemed a risk to the
security of the U.S. Forces for the reasons set forth above. The commanding officer of any
military stockade, jail, or comparable installation in which this person may be confined is
authorized and directed to detain him in custody until released by competent military authority.

In said Schedule A the specific complaint or charge against complaint or charge against petitioner Lily
Raquiza is "Espionage activity for Japanese."

As to petitioner Haydee Tee Han Kee, it appears that by virtue of the aforesaid proclamation she, on
February 25, 1945, was arrested by the same 306th Counter Intelligence Corps Detachment, and
detained under Security Commitment Order No. 286 (Schedule A-2) wherein the Commitment Order
is in exactly the same terms as in Schedule A. The specific complaint or charge against petitioner Tee
Han Kee in Schedule A-2 is "Active collaboration with the enemy."

With regard to petitioner Emma Link Infante, it appears that by virtue of the same proclamation she,
on April 10, 1945, was arrested by the 493rd Counter Intelligence Corps Detachment of the United
States Army Forces in the Far East, and detained under Commitment of that date (Schedule A-1),
wherein she was charged with "Active collaboration with the Japanese." Her previous association with
the enemy constitutes a present security risk to the United States Armed Forces.

The said proclamation reads:

GENERAL HEADQUARTERS

SOUTHWEST PACIFIC AREA

PROCLAMATION

PROVIDING FOR MILITARY MEASURES TO BE TAKEN UPON THE APPREHENSION OF

CITIZENS OF THE PHILIPPINES WHO VOLUNTARILY HAVE GIVEN AID, COMFORT AND
SUSTENANCE TO THE ENEMY.

WHEREAS evidence is before me that certain citizens of the Philippines voluntarily have given
aid, comfort and sustenance to the enemy in violation of allegiance due the Governments of
the United States and the Commonwealth of the Philippines; and

WHEREAS military necessity requires that such persons be enemy in violation of allegiance
due the Governments of the United States and the Commonwealth of the Philippines; and

NOW, THEREFORE, I, Douglas MacArthur, General of the Army, United States Army, as
Commander-in-Chief Southwest Pacific Area, hereby do publish and declare it to be my
purpose to remove such persons, when apprehended, from any position of political and
economic influence in the Philippines and to hold them in restraint for the duration of the war;
whereafter I shall release them to the Philippine Government for its judgment upon their
respective cases.

Done at General Headquarters, Southwest Pacific Area, in the field, this twenty-ninth day of
December, 1944.

DOUGLAS MACARTHUR
General of the Army
United States Army
Commander-in-Chief

Of course, the power of the Commander in Chief of the United States Army to issue the foregoing
proclamation cannot be seriously questioned. It has not been questioned in this case. Where opinions
are divided as to its interpretation and effects.

General of the Army MacArthur therein published and declared it to be his purpose, among other
things, to hold in restraint the persons referred to, when apprehended, "for the duration of the war;
whereafter, I shall release them to the Philippine Government for its judgment upon their respective
cases." He premised his proclamation upon two grave reasons, to wit, (1) that evidence was before
him "that certain citizens of the Philippines voluntarily have given aid, comfort and sustenance to the
enemy in violation of allegiance due the Government of the United States and the Commonwealth of
the Philippines;" and (2) that "military necessity requires that such persons be removed from any
opportunity to threaten the security of our military forces or the success of our military operations."
In the very nature of things, the Commander in Chief of the Army of liberation at the time of issuing
that proclamation had to act upon the evidence then before him. The exigencies of the mighty military
operations that he had then but recently begun for the destruction or defeat of the powerful enemy
who was at that time occupying the Islands, did not permit of any other procedure. And to deny him
the exclusive power and competency to determine the strength and sufficiency of such evidence would
have been destructive of that military efficieny with which, in the interest of all the citizens of the
Philippines themselves, not excluding the herein petitioners, the operations for their liberation had to
be conducted. And once having apprehended the persons to whom the proclamation referred, the
same exigencies required that the said Commander in Chief be invested with the exclusive power and
authority to decide when he should deliver them to the Commonwealth of the Philippines.

Has the war terminated within the meaning of that part of his proclamation wherein the Commander
in Chief declared his purpose to hold such persons in restraint "for the duration of the war"? We are
of opinion that it has not.

In the case of United States vs. Tubig (3 Phil., 244, 254), this Court said:

From that day the fighting continued, and the insurrection did not end officially until the
President proclaimed it an end, July 4, 1902. It is necessary to refer to a public act of the
Executive Department to fix the date of the closing of the war. (Freeborn vs. The Protector, 79
U.S., 700.)

If it be alleged that, notwithstanding the insurrection, there were no actual hostilities in Nueva
Ecija at the times above mentioned, the answer is that the condition of hostility remained
impressed on the whole island until it was removed by the proclamation of the President. . . .

War, in the legal sense, continues until, and terminates at the time of, some formal
proclamation of peace by an authority competent to proclaim it. It is the province of the political
department, and not of the judicial department, of government to determine when war is at an
end. . . . (67 C.J., 429, sec. 195.)

And even if the war had terminated, we are of opinion that under the aforesaid proclamation the
petitioners, who are held in restraint thereunder, would continue legally under custody of the proper
military authorities of General of the Army MacArthur's or his successors' command, for a reasonable
time after termination of the war.

If General of the Army MacArthur had, in express terms, declared in his aforesaid proclamation that
after termination of the war he will release the persons therein named to the Philippine Government
within a reasonable time, we think that he could have done so within his legitimate powers as
Commander in Chief of the United States Army; and not only this, but that for obvious reasons he
should be the best and, therefore, the only judge of how long or how short that time should be under
the circumstances. And in order to give his proclamation a reasonable construction, we are of opinion
that this should be implied from the context. Otherwise, we would be giving to this solemn document
the irrational interpretation that said Commander in Chief thereby announced a purpose which would
be physically impossible for him to carry out; namely, to make delivery to the Philippine
Government immediately upon termination of the war of persons under restraint whose number he
could not then foresee but which he could reasonably expect to be more or less considerable, with
their respective charges and pertinent evidence, papers, and the like. It was not a matter of delivering
a certain quantity or amount of personal property but human beings who although under custody, had
to be properly housed, maintained and otherwise treated as becoming the "dignity of the human
person," which is one of the cardinal principles of democracy for which the United Nations have fought
in this war.
The fact that, as this Court can take judicial notice of, delivery of certain persons under custody of the
United States Army pursuant to the said proclamation has already begun does not mean that the war
has, in the legal sense, already terminated, which it clearly has not. Such delivery is undoubtedly within
the power of the proper military authorities to make even before the termination of the war. The
existence of the military necessity to which General of the Army MacArthur refers in his proclamation,
as well as its continuance, is a question exclusively for the military authorities to determine, as regards
each and every person under detention. For obvious reasons, the civil courts should not here interfere,
and it is to be presumed that in the judgment of said military authorities that necessity no longer
requires the detention by them of the persons whom they have already delivered to the Philippine
Government.

In the case of Coleman vs. Tennessee (97 U.S., 509), the Supreme Court of the United States, among
other things, said:

It is well settled that a foreign army, permitted to march through a friendly country or to be
stationed in it, by permission of its government or sovereign, is exempt from the civil and the
criminal jurisdiction of the place. The sovereign is understood, said this court in the celebrated
case of The Exchange, 7 Cranch, 139, to cede a portion of his territorial jurisdiction when he
allows the troops of a foreign prince to pass through his dominions: "In such case, without any
express declaration waiving jurisdiction over the army to which this right of passage has been
granted, it would certainly be considered as violating his faith. By exercising it, the purpose for
which the free passage was granted would be defeated, and a portion of the military force of
a foreign independent nation would be diverted from those national objects and duties to which
it was applicable, and would be withdrawn from the control of the sovereign whose power and
whose safety might greatly depend on retaining the exclusive command and disposition of this
force. The grant of a free passage, therefore, implies a waiver of all jurisdiction over the troops
during their passage, and permits the foreign general to use that discipline and to inflict those
punishments which the government of this army may require." (Emphasis ours.)

In the case of the United States Army of liberation, not only has the Commonwealth Government
asked, and the United States Government agreed, that it come and be stationed in the Philippines,
but it is here for the very realization of the overruling and vehement desire and dream of the Filipino
to be freed from the shackles of Japanese tyranny, and to see this was brought to a victorious end. If
a foreign army permitted to be stationed in a friendly country, "by permission of its government or
sovereign," is exempt from the civil and criminal jurisdiction of the place, with much more reason
should the Army of the United States which is not only permitted by the Commonwealth Government
to be stationed here but has come to the islands and stayed in them for the express purpose of
liberating them, and further prosecuting the war to a successful conclusion, be exempt from the civil
and criminal jurisdiction of this place, at least for the time covered by said agreement of the two
Governments. By analogy, an attempt of our civil courts to exercise jurisdiction over the United States
Army before such period expires, would be considered as a violation of this country's faith, which this
Court should not be the last to keep and uphold. By exercising it, paraphrasing the foregoing quotation,
the purpose for which the stationing of the army in the islands was requested or agreed upon may be
hampered or prejudiced, and a portion of said military force would be withdrawn from the control of
the sovereign to whom they belong. And, again, by analogy, the agreement, for the stationing of the
United States Army or a part of its forces in the Philippines implies as a waiver of all jurisdiction over
their troops during the time covered by such agreement, and permits the allied general or commander
in chief to retain that exclusive control and discipline which the government of his army may require.

Chief Justice Marshall, in the case of the Schooner Exchange (7 Cranch, 139), gave the reasons
underlying the doctrine of mutual waiver of jurisdiction between nations in the following paragraphs:
 The world being composed of distinct sovereignties, possessing equal rights and equal
independence, whose mutual benefit is promoted by intercourse with each other, and by an
interchange of those good offices which humanity dictates and its wants require, all sovereigns
have consented to a relaxation in practice, in cases under certain peculiar circumstances, of
that absolute and complete jurisdiction within their respective territories which sovereignty
confers.

xxx xxx xxx

This perfect equality and absolute independence of sovereigns, and this common interest
impelling them to mutual intercourse, and interchange of good offices with each other, have
given rise to a class of cases in which every sovereign is understood to waive the exercise of
a part of that complete exclusive territorial jurisdiction, which has been stated to be the attribute
of every nation.

Furthermore, we are of the opinion that the present petitioners, while under the custody of the United
States military forces, may be considered as prisoners of war. In volume II, Hydee International Law,
page 345, section 676, we read:

. . . It should be borne in mind that an army in the field, in the course of any operation in any
locality . . . may also avail itself, of the right to make civilians prisoners of war.

The author cites from the Rules of Land Warfare which contain an enumeration of civilians who may
be made prisoners of war. This enumeration includes:

(c) Persons whose services are of a particular use and benefit to the hostile army or its
government, such as the higher civil officials, diplomatic agents, couriers, guides, etc. . . .
(Emphasis ours.)

We think that the petitioners would prima facie come within this classification under the charges of
"Espionage activity for Japanese," "Active collaboration with the Japanese," and "Active collaboration
with the enemy."

We are not unmindful of the fact that the detention of the petitioners may have subjected them to
hardships, but this situation is one of those born of all wars where hardships of all description are
visited upon even the most innocent people. At any rate, we do not think that the petitioners are totally
without remedy. We think they may have recourse to the proper military authorities by making due
representation to them.

These military authorities, we can safely presume, will not deny to the petitioners any remedy which
may be available under the military laws and under the prevailing circumstances. The United States
army forces which have come to the Philippines for the express purpose of liberating the Filipinos and
to restore them the blessings of liberty under a democratic government, just as fast as the military
situation would permit, would not be — we can justly assume — the very ones to take from them any
of those liberties without legal reason or justification. But the present state of the world is such that
military exigencies or military necessity may, under certain circumstances, still require some limitation
on the restoration or enjoyment of those liberties. The present case is, in our opinion, one such
situation.

Whether the doctrine here laid down would be applicable to cases arising in time of peace, we do not
decide.
In conclusion, we hold that the petition should be dismissed. No special pronouncement as to costs.
So ordered.

Moran, C. J., Jaranilla, Feria, De Joya and Pablo, JJ., concur.

Separate Opinions

OZAETA, J., dissenting:

We dissent from the majority opinion which sanctions the long-continued deprivation of the petitioners
of their sacred liberty without due process of law.

The petitioners, Lily Raquiza, Haydee Tee Han Kee, and Emma Link Infante, were arrested by an
agent of the Counter Intelligence Corps (CIC) of the United States Army on March 13, 1945, February
25, 1945, and April 10, 1945, respectively, and have since then been confined in the custody of the
respondents. The returns filed by the respondents herein simply say that the petitioners were arrested
and being detained by virtue of the proclamation issued by General MacArthur on December 29, 1944,
which reads as follows:

WHEREAS evidence is before me that certain citizens of the Philippines voluntarily have given
aid, comfort and sustenance to the enemy in violation of allegiance due the Governments of
the United States and the Commonwealth of the Philippines; and

WHEREAS military necessity requires that such persons be removed from any opportunity to
threaten the security of our military forces or the success of our military operations;

NOW, THEREFORE, I, Douglas MacArthur, General of the Army United States Army, as
Commander-in-Chief Southwest Pacific Area, hereby do publish and declare it to be my
purpose to remove such persons, when apprehended, from any position of political and
economic influence in the Philippines and to hold them in restraint for the duration of the war;
whereafter I shall release them to the Philippine Government for its judgment upon their
respective cases.

Done at General Headquarters, Southwest Pacific Area, in the field, this twenty-ninth day of
December, 1944. (41 Off Gaz., 148, 149.)

Attached to the returns as Schedules A, A-1, and A-2 are copies of confidential security commitment
orders which shows: as to the petitioner Lily Raquiza, "Complaint: Espionage activity for Japanese;"
as to the petitioner Emma Link Infante, "Remarks: Active collaboration with the Japanese;" and as to
the petitioner Haydee Tee Han Kee, "Complaint: Active collaboration with the enemy."

Up to this date the petitioners have not been informed of the nature of the accusation against them,
no complaint or information charging them with any specific offense has been filed against them in
any court or tribunal, and they have never been given a summary hearing. They have not been turned
over to the Philippine Government for its judgment upon their respective cases, and no allegation or
intimation is made in the returns as to whether and when the respondents will release the petitioners
to the Philippine Government.
The petitioners now invoke from this Court the writ of habeas corpus to recover the precious liberty of
which they have long been and are still being deprived. The important question before us is whether
this Court has jurisdiction or legal power to afford relief to the petitioners in the sad and sorry plight to
which they have been and are being subjected. Six members of the Court voted for the negative and
three for the affirmative.

Our affirmative and dissenting vote is based on the following considerations:

The guaranty of due process of law found in the Fifth Amendment of the Constitution of the United
States, which declares "that no person shall be deprived of life, liberty, or property without due process
of law," is incorporated in section 1, Article III of the Constitution of the Philippines, which we have
solemnly sworn to support and defend.

"The essential elements of due process of law are notice and an opportunity to be heard and to defend
in an orderly proceeding adapted to the nature of the case before a tribunal having jurisdiction of the
cause. One of the most famous and perhaps the most often quoted definition of due process of law is
that of Daniel Webster in his argument in the Dartmouth College Case, in which he declared that by
due process of law is meant 'a law which hears before it condemns; which proceeds upon inquiry, and
renders judgment only after trial.' Somewhat similar is the statement that it is a rule as old as the law
that no one shall be personally bound until he has been duly cited to appear and has been afforded
an opportunity to be heard. Judgment without such citation and opportunity lacks all the attributes of
a judicial determination; it is judicial usurpation and oppression and can never be upheld where justice
is fairly administered." (12 Am. Jur., Const. Law, sec. 573.)

The right to due process of law is more than a prerogative. It is an immanent and inalienable right of
every man, woman, and child living under a government of laws. It cannot be dispensed with or
brushed aside either in time of war or in time of space. In time of war martial law may be declared. But
even under martial law appropriate tribunals such as courts-martial are set up to hear and decide the
case before anybody can be punished.

General MacArthur's proclamation of December 29, 1944, says that "evidence is before me that certain
citizens of the Philippines voluntarily have given aid, comfort and sustenance to the enemy in violation
of allegiance due the governments of the United States and the Commonwealth of the Philippines;"
that "military necessity requires that such persons be removed from an opportunity to threaten the
security of our military forces or the success of our military operations;" and that it was his purpose "to
remove such persons, when apprehended, from any position of political and economic influence in the
Philippines and to hold them in restraint for the duration of the war; whereafter, I shall release them to
the Philippine Government for its judgment upon their respective cases."

If that proclamation was meant to be a sentence pronounced by General MacArthur against certain
specific persons who, when apprehended, were to be held in restraint for the duration of the war, such
sentence did not constitute, or was totally devoid of, due process of law because those persons had
not been heard before they were condemned; the evidence before him, whatever it was, must have
been taken at the back and without the knowledge of said persons, everyone of whom, under the Bill
of Rights, to the protection of which every person living under the American flag is entitled, had "the
right to be heard by himself and counsel, to be informed of the nature and cause of the accusation
against him, to have a speedy and public trial, to meet the witnesses face to face, and to have
compulsory process to secure the attendance of witnesses in his behalf." Such sentence, moreover,
is void on its face because the persons condemned were not named therein, so that anybody whom
the agents of the Army might apprehend could be held thereunder for the duration of the war; and
even if the persons condemned had been named, the proclamation could not be upheld because, in
so far as it purports to pronounce judgment of treason on "certain citizens" who have not been tried in
the courts, it partakes of the nature of a bill of attainder which is likewise prescribed by the Bill of
Rights. If that proclamation was promulgated and intended as a military law or order whereby those
who had committed treason might be apprehended and held in restraint for the duration of the war,
then the persons affected should have been accused and tried by a military tribunal before they were
consigned to imprisonment for the duration of the war. Otherwise, how could it have been legally and
justly determined that the accused fell within the purview of the proclamation — that they had
voluntarily given aid, comfort, and sustenance to the enemy? In either case there was failure of the
indispensable requisites of due process of law.

We take for granted the military necessity that gave rise to General MacArthur's proclamation — the
Court is not competent to inquire into it. But we understand that military necessity to an army of
liberation like that of General MacArthur was not intended to override law and justice as regards the
lives and liberties of the citizens of the country being liberated; and law and justice required that no
accused be condemned without hearing. Even the most notorious war criminals of Germany and
Japan who are publicly known to have committed horrible, inhuman atrocities during the war have to
be accused before and tried by duly consisted tribunals before punishment can be meted out to them.

To be held in restraint for the duration of the war was in itself a punishment. It may, parenthetically, be
observed here that the petitioners and thousands of other Filipino citizens held in restraint for the
duration of the war by virtue of the proclamation in question have suffered that punishment with
fortitude and abnegation. While the war was in progress they refrained from questioning the legality of
the drastic military measure taken by General MacArthur in order not to place any obstacle to his
titanic task of driving the enemy out of their country. The Filipino people's gratitude to General
MacArthur for their liberation from the clutches of their Japanese oppressors was so great that they
did not mind the hardship suffered by them in connection with his prosecution of the war — even the
restraint of the liberties of thousands of them for the duration of the war.

But now that the enemy has surrendered and the war is over, no one can blame the petitioners for
knocking at the portals of justice and demanding their inalienable right not to be further deprived of
their liberty without due process of law. The majority opinion turns a deaf ear to their pathetic
supplication on the supposition that the war is not yet over, for the final treaty of peace between the
belligerents has not yet been signed and the Congress of the United States has not yet proclaimed
the termination of the war, and that therefore the military necessity to hold the petitioners in restraint
still subsists, for which reason the Court has no jurisdiction to order the respondents to discharge them
from custody. We cannot yield to such supine attitude. It disregards "fundamental human rights" and
"the dignity and worth of the human person" for which this global war has been fought and won.
(See Charter of United Nations.)

We have shown that with or without war the petitioners are entitled to due process of law, and that
without due process of law their confinement by the respondents is illegal. Section 1 of Rule 102 of
the Rules of Court provides that "the writ of habeas corpus shall extend to all cases of illegal
confinement or detention by which any person is deprived of his liberty. . . ." Section 2 of the same
Rule provides that "writ of habeas corpus may be granted by the Supreme Court, or any member
thereof, on any day and at any time, . . . in the instances authorized by law, and if so granted it shall
be enforceable anywhere in the Philippines. . . ."

It is true that section 529 of Act No. 190, as amended by Acts Nos. 272 and 421, provided, among
other things, that it shall be a conclusive answer to a writ of habeas corpus against a military officer or
soldier, and sufficient excuse for not producing the prisoner in all other organized provinces than those
therein named, if the commanding general or any general officer in command of the department or
district shall certify that the prisoner is held by him as a prisoner of war. But when section 529 of the
Code of Civil Procedure was reenacted as section 4 of Rule 102 of the Rules of Court, that provision
was omitted and therefore impliedly abrogated.

The only exceptions, then, to the application of the writ of habeas corpus are those now found in
section 4 of Rule 102, namely: (1) if the person alleged to be restrained of his liberty is in the custody
of an officer under process issued by a court or judge, or by virtue of a judgment or order of a court of
record, and that the court or judge had jurisdiction to issue the process, render the judgment, or make
the order; (2) the case of a person charged with or convicted of an offense in the Philippines or in any
part of the United States, and who ought to be delivered up to the executive power of the United
States, or of any State or territory thereof; and (3) the case of a person suffering imprisonment under
lawful judgment. The case of the petitioners herein does not fall under any of these exceptions.

The majority are of the opinion that the Court has no jurisdiction over the respondents as members of
the United States Army. We do not share that opinion. General MacArthur himself, on the occasion of
the restoration of the Commonwealth Government on February 27, 1945, addressed to the President
of the Philippines the following eloquent words:

. . . God has indeed blessed our arms! The girded and unleashed power of America supported
by our Allies turned the tide of battle in the Pacific and resulted in an unbroken series of
crushing defeats upon the enemy culminating in the redemption of your soil and the liberation
of your people. My country has kept the faith!

These soldiers have come here as an army of free men, dedicated, with your people, to the
cause of human liberty and committed to the task of destroying those evil forces that have
sought to suppress it by brutality of the sword. An army of free men that has brought your
people once again under democracy's banner, to rededicate their churches, long desecrated,
to the glory of God and public worship; to reopen their schools to liberal education; to till the
soil and reap its harvest without fear of confiscation; to reestablish their industries that they
may again enjoy the profit from the sweat of their own toil, and to restore the sanctity and
happiness of their homes unafraid of violent intrusion.

Thus to millions of your now liberated people comes the opportunity to pledge themselves —
their hearts, their minds, and their hands — to the task of building a new and stronger nation
— a nation consecrated in the blood nobly shed that this day might be — a nation dedicated
to making imperishable those sacred liberties for which we have fought and many have died.

On behalf of my Government I now solemnly declare, Mr. President, the full powers and
responsibilities under the Constitution restored to the Commonwealth whose seat is here
reestablished as provided by law.

Your country thus is again at liberty to pursue its destiny to an honored position in the family
of free nations. Your capital city, cruelly punished though it be, has regained its rightful place
— Citadel of democracy in the East. (41 Off. Gaz., 86, 87.)

Thus General MacArthur himself, as Commander in Chief of the United States, Army in this area and
as the representative of the Government of the United states, declared the full powers and
responsibilities under the Constitution restored of the Commonwealth. This Court functions under by
virtue of the Constitution. As the highest court of the land it is the bulwark of civil rights and individual
liberties. It is its inescapable duty to apply the law no matter on whom it falls. It would be an astonishing
manifestation of judicial timidity for the Court to hesitate to subject any person or class of persons to
its mandate in a proper case for fear of lack of physical power to enforce it.
It is the undying glory of our democratic form of government implanted here in America herself, that
no man living under it is above the law. General McArthur himself as the peerless defender of
democracy, would be the first to recognize this fundamental principle, and his "army of free men,
dedicated, with your people, to the cause of human liberty," cannot but graciously obey the law as
interpreted by the courts. We know of no law which places members of the army beyond the power
and jurisdiction of the civil courts in matters affecting civil rights. In the instant case, the fact that in
due time the respondents filed their returns to the order of this Court to show cause is a positive
acknowledgment by them of the Court's jurisdiction over their persons.

The majority are not satisfied with the spontaneous recognition by the respondents themselves of the
Court's jurisdiction over their persons. To justify their stand the majority opinion cites and applies the
rule of the international law mentioned in the case of Coleman vs. Tennesse (97 U.S., 509; 24 Law
ed., 1118), to the effect that a foreign army, permitted to march through a friendly country or to be
stationed in it, by permission of its government or sovereign, is exempt from the civil and criminal
jurisdiction of the place. The case cited has no applicability whatsoever to the case at bar. It appears
in that case that Coleman, while a regular soldier in the military service of the United States, committed
the crime of murder on March 7 1865, in the State of Tennesse and was convicted by a general court-
martial regularly convened for his trial at Knoxville, Tennesse, and sentenced to death by hanging.
Pending the execution of that sentence Coleman was indicted in the Criminal Court for the District of
Knox Country, Tennesse, on the 2d of October, 1874, for the same murder. Under that indictment he
was tried and convicted and sentenced to death, and on appeal to the Supreme Court of the State the
judgment was affirmed. Pending the appeal to the State Supreme Court, the defendant was brought
before the Circuit Court of the United States for the Eastern District of Tennesse on habeas corpus,
upon a petition stating that he was unlawfully restrained of his liberty and imprisoned by the sheriff of
Knox County, upon the charge of murder, for which he had been indicted, tried, and convicted by the
general court-martial. The question brought before the Supreme Court of the United States was
whether the Criminal Court of the State of Tennessee had jurisdiction to try the case.

The Supreme Court of the United States declared that the judgment and conviction in the Criminal
Court should have been set aside and the indictment quashed for want of jurisdiction. It held that the
State of Tennessee, at the time the crime was committed therein, was an enemy territory under the
military occupation of the United States and that the military tribunals had exclusive jurisdiction to try
and punish offenses of every grade committed by persons in the military in the military service. The
court said that "officers and soldiers of the armies of the Union were not subject during the war to the
laws of the enemy, or amenable to his tribunals for offenses committed by them. They were
answerable only to their own government, and only by its laws, as enforced by its armies, could they
be punished." The court then mentioned the rule of international law quoted in the majority opinion
and argued as follows: "If an army marching through a friendly country would thus be exempt from its
civil and criminal jurisdiction, a fortiori would an army invading an enemy's country be exempt?" Thus
it is clear that the rule of international law above mentioned formed no part of the holding of the court
in the said case.

Neither can such rule of international law of itself be applicable to the relation between the Philippines
and the United States, for the reason that the former is still under the sovereignty of the latter. The
United States Army is not foreign to the Philippines. It is here not by permission or invitation of the
Philippine Government but by right of sovereignty of the United States over the Philippines. It has the
same right to be here as it has to be in Hawaii or California. The United States has the same obligation
to defend and protect the Philippines, as it has to defend and protect Hawaii or California, from foreign
invasion. The citizens of the Philippines owe the same allegiance to the United States of America as
the citizens of any territory or the State of the Union.

If instead of the Philippines California had been invaded by Japan, and General MacArthur had issued
the same proclamation in question against certain citizens of that State, we do not doubt, from our
knowledge of the American people and their tradition and jurisprudence, that any of such citizens
apprehended and confined by virtue of said proclamation without due process of law would have been
set at liberty by any competent court there through the issuance of the writ of habeas corpus. If, as
seems to us indisputable, a citizen of the Philippines is entitled to the protection of the same Bill of
Rights, particularly as regards due process of law, as any citizen of the United States, one would be
at a loss to understand why under the same facts and circumstances the latter would be entitled to his
liberty and the former not.

Our Habeas corpus Law is of American origin. It is substantially the same law that reigns in very State
of the Union. If it can be successfully invoked from the courts there under a given set of facts, there is
no reason why it cannot be invoked from the courts here under the same circumstances. The
Philippine courts are vested with the same power and jurisdiction to grant the writ as the American
courts.

The case at bar is not like the Coleman case wherein a member of the United States army of
occupation was indicted by the enemy state for a crime committed against a citizen of the latter after
he had been tried and convicted by a proper court-martial. This is a case wherein nationals of the
United States living under the protection of the army of the United States are being deprived of their
liberty by members of that Army without due process of law, and wherein no conflict of jurisdiction
between the military court and the civil court is involved. In fact, no military court is claiming jurisdiction
over the persons of the petitioners. And yet while sympathizing with the petitioner this court, by the
majority opinion, declares itself impotent to grant them any relief, and suggests that "they may have
recourse to the proper military authorities by making due representations to them" — the very same
military authorities who have long been and are depriving them of their liberty without due process of
law. That is tantamount to throwing a meritorious case out of court on the ground that the plaintiff may
seek his remedy from the defendant himself by making due representations to him. One might wonder
what the court is good for.

Another reason given to support the judgment is that while under the custody of the United States
military forces the petitioners may be considered as prisoners of war, citing Hydee on International
Law to the effect that an army in the field in the course of any operation in any locality, may also avail
itself of the right to make civilians prisoners of war, such for example as of "persons whose services
are of a particular use and benefit to the hostile army or its government, such as higher civil officials,
diplomatic agents, couriers, guides, etc." We do not dispute that rule of international law; but again,
we think it has no application to the case before us. That rule evidently refers to civilians of the enemy
country of whom the hostile army operating in that country may make prisoners of war. The Philippines
is not an enemy of the United States, whose army came here to liberate this country and not to conquer
or invade it. Under the rule cited, as we understand it, the United States Army could not make prisoners
of war of Japanese civilians. It could not make prisoners of war of Filipinos any more than it could
make them of Americans. Of course, if the petitioners were Japanese subjects who were held as
prisoners of war by the United States Army, no one in his right mind would contend that this court
should entertain a petition for habeas corpus from them. But that is clearly not the case, and with all
due respect we think the citation of the rule to support the majority opinion is out of place here.

In the case of Payomo vs. Floyd (42 Phil., 788), it appears that one Calixto Mendigorin, a civilian
resident of Subic, Zambales, was arrested by a naval officer and arraigned and sentenced by the naval
reservation police judge for violation of the laws and regulations which prohibited the cutting of timber
on the naval reservation without a permit from the proper officer. Upon petition for habeas
corpus originally filed in this court by Juliana Payomo in behalf of Mendigorin, this court, speaking
through Mr. Justice Street, held that the Supreme Court and the Courts of First Instance of the
Philippines Islands have jurisdiction to entertain a petition for the writ of habeas corpus to set at liberty
a civilian person who is alleged to have been detained by the naval authorities of the United States;
that in this respect said courts have the same authority as the Federal courts in the United States; and
that the naval authorities of the United States have no authority to establish a tribunal in the Olongapo
Reservation with jurisdiction to try and sentence civilian persons for offenses committed on said
reservation in violation of the penal laws enacted by the Philippine Legislature. The prisoner was
ordered released.

The refusal of this court now to exercise similar jurisdiction over the respondents herein because they
are members of the United States Army constitutes, in our opinion, a reversal of or a retrogression
from the sound and the liberal doctrine laid down by this same court in that case.

We think it is idle to discuss whether the war has terminated as a matter of law or has ended as a
matter of fact. In his proclamation of December 29,1944, General MacArthur announced that after the
war he would release the prisoners to the Philippine Government, and the fact that the CIC has partially
turned over said prisoners to the Philippine Government shows that they themselves recognized that
the war has ended within the purview of said proclamation.

The war having ended as a matter of fact with the unconditional surrender of Japan formalized on
September 2, 1945, the petitioners, who have been deprived of their liberty without due process of law
since they were arrested five or six months ago, are peremptorily entitled now to that due process.
Due process will not commence for them until and unless they are turned over by the CIC to the
Commonwealth Government. Respondents not having intimated in their returns whether and when
they will release the petitioners to the Philippine Government, the court has no alternative but to order
their immediate discharge.

Paras, J., concurs.

PERFECTO, J., dissenting:

The petitioners complain that they are being illegally detained and pray that they be set at liberty
without delay.

They allege that they had been taken from their respective residence in the City of Manila by certain
individuals posing themselves as agents of the Counter Intelligence Corps (CIC), Lily Raquiza on
March 13, 1945; Haydee Tee Han Kee on February 25, 1945; and Emma Link Infante on April 10,
1945; and since then had been restrained and deprived of their liberty in the Correctional Institution
for Women in Mandaluyong.

They allege also that no formal complaint or accusation for any specific, offense had been filed against
them, nor any judicial writ or order for their commitment has at any time been issued so far, and that
they did not commit, either individually or collectively, any offense for which they may be arrested or
deprived of their liberty without any formal charge or judicial warrant, and that, according to reliable
information, they are being unlawfully detained by a temporary warden named Captain Inez L. Twidle,
by order and at the behest of one Lieutenant Colonel L.J. Bradford of the Counter Intelligence Corps,
and that, there being no martial law in the Philippines and the civil government having been formally
delivered to the authorities of the Commonwealth and the Constitution of the Commonwealth being in
full operations, the confinement of the petitioners is illegal..

Respondent, Lieutenant Colonel L. J. Bradford, of the United States Army, alleges in his return that
he is attached on duty in the Counter Intelligence Corps (CIC) of the United States Army; that
petitioners were detained by virtue of the proclamation issued by General MacArthur on December
29, 1944, and were immediately turned over to the Provost Marshall at Bilibid Prison on the dates
specified in Schedules A, A-1 and A-2, attached to the writ, and since then respondent had nothing to
do with petitioners, and has absolutely no connection with the correctional institution for women.

Respondent alleges further that he is not acquainted and has no official connection with Captain Inez
L. Twidle; that Captain Twindle is in no manner connected with the Counter Intelligence Corps and at
the date of petition, August 30, 1945, with the correctional Institution for Women.

In Schedule A it appears that petitioner Lily Raquiza was arrested on March 13, 1945, by Lieutenant
Colonel L. J. Bradford, accused of espionage activities for Japanese and under commitment order
worded as follows:

The person named and described above is deemed a risk to the security of the United States
Forces for the reasons set forth above. The Commanding Officer of any military stockade, jail,
or comparable installation in which this person may be confined is authorized and directed to
detain him in custody until released by competent military authority.

In the same schedule that said petitioner was delivered to Bilibid Prison on March 13, 1945.

In Schedule A-1 it appears that Emma Link Infante has been delivered to the Provost Marshall in Bilibid
Prison on April 10, •1945, pursuant to the authority of the proclamation issued by the Commander in
Chief, GHQ, Southwest Pacific Area, dated 29, December, 1944, accused of active collaboration with
the Japanese and because her previous association with the enemy constitutes security risk to the
United States Armed Forces.

In Schedule A-2 it appears that petitioner Haydee Tee Han kee has been arrested on February 25,
1945, for active collaboration with the enemy under a commitment order identical to what appears in
Schedule A and was delivered on the same day to the Provost Marshall in Bilibid Prison.

There is absolutely no mention in the return of any formal complaint or charge filed against any of the
petitioners nor of any legal proceedings regarding the offenses imputed to them as mentioned in
Schedules A, A-1 and A-2, nor of any judicial order or writ issued by competent authority for the
detention or commitment of petitioners.

Attorney for petitioners filed a reply alleging that, no denial having been made of the essential
allegations of the petition, to the effect that petitioners had been deprived of their liberty, following the
doctrine set in the case Villavicencio vs. Lukban (39 Phil., 778), the Supreme Court should the grant
writ of the habeas corpus and order Lieutenant Colonel L. J. Bradford and Captain Caroline De Eason
or whoever actually is in command of the Women's Detention Centre in Welfareville to appear before
this Court and produce the bodies of petitioners and explain then and there why they should not be
set at liberty immediately.

Lest we forget it is timely to remember that at the hearing of this case it was denounced by counsel
that one of the petitioners, since her custodian received that order of the Supreme Court to show cause
why petition should not be granted, has been subjected to harsh maltreatment, confined into a solitary
cell, and deprived of the opportunity of the verifying the truth of the denunciation by hearing the
testimony of the petitioners, because the writ of habeas corpus was not issued as we have twice
proposed.

The nature and gravity of the charge against, the petitioners, we hope, will not induce us to consider
with prejudice their case. Whatever our feelings are against the enemy and those who helped him as
spies or collaborators, and no matter how sincere and strong those feelings might be, it is our
inescapable duty not allow them to sway our judgment and reasoning. Our position imposes upon us
the responsibility of applying the law above all considerations, and it is one of the great elemental
principles of law that all accused are presumed innocent until, after due legal process, they are finally
found guilty beyond guilty beyond reasonable doubt.

Perhaps it is worthy of note that the United States Army, instead of following the ordinary military
course with regard to spies and collaborators, and of subjecting them to summary trial and immediate
execution, had chosen merely to keep the petitioners restrained of liberty, abstaining completely from
trying them by court-martial, and proposing to deliver them to the Commonwealth Government. That
the might mean that evidence of guilt of the petitioners is not strong enough to justify a drastic action,
and that if they are guilty, they belong to the harmless type, and, therefore, will not endanger the safety
of military personnels and installations nor jeopardize public order.

As a matter of fact, it was authoritatively stated at the hearing of this case that many other persons
placed in identical situation as the petitioners are being turned over to the Government of the
Commonwealth.

Respondent Captain Caroline De Eason, in her return, states that petitioners are detained in the
Women's Correctional Institution, of which she is in charge, by virtue of the proclamation issued by
General MacArthur on December 29, 1944, and the commitments Schedules A, A-1 and A-2.

The proclamation of General MacArthur relied upon by the respondent, it seems, is in conformity with
the statement made by President Franklin D. Roosevelt, upon signing S.J. Resolutions Nos. 93 and
94, on June 29 1944, the first of them laying down a policy for the granting of independence and for
the acquisition of base adequate to provide for the mutual protection of the United States and the
Philippines. President Roosevelt said:

. . . The measure makes it possible to proclaimed independence as soon as practicable after

constitutional process and normal functions of government have been restored in the
Philippines.

It is contemplated that as soon as conditions warrant, civil government will be set up under
constitutional officers. It will be their duty forthwith to take emergency measures to alleviate
the physical and economic hardship of the Philippine people, and to prepare the
Commonwealth to received and exercise the independence which we have promised them.
The latter includes two tasks of great importance: Those who have collaborated with the
enemy must be removed from the authority and influence over the political and economic life
of the country, and the democratic from of government guaranteed in the constitution of the
Philippines must be restored for the benefit of the people of the Islands. (41 Off., Gaz., No. 1,
p. 85.)

The proclamation of General MacArthur, issued in the filed on the 29th of December, 1944, is as
follows:

Whereas evidence is before me that certain citizens of the Philippines voluntarily have given;
comfort and sustenance to the enemy in violation of allegiance due to Governments of the
United States and the Commonwealth of the Philippines; and

Whereas military necessity requires that such persons be removed from any opportunity to
threaten the security of our military forces or the success of our military operations;
 Now, therefore, I, Douglas MacArthur General of the Army, United States Army, as
Commander in Chief, Southwest Pacific Area, hereby do publish and declare it to be my
purpose to remove such persons, when apprehended, from any position of political and
economic influence in the Philippines and to hold them in restraint for the duration of the war;
whereafter I shall release them to the Philippine Government for its judgment upon their
respective cases, (41 Off. Gaz., No. 2, pp. 148, 149.)

It may appear at first blush that the persons whose liberty is restrained under the Proclamation, which
shall hereafter be referred to as the December proclamation, may be considered as military prisoners.

But they are not. They are political prisoners. As a matter of fact, if we delve into the history of the
December proclamation, we will find out that the same has been issued to accommodate the
Commonwealth Government and to relieve it from a difficult position under the circumstances, at the
time it began to function in Leyte, immediately after the landing of the Armed Forces of Liberation,
when many political prisoners were intending to seek habeas corpus relief and the Commonwealth
Government handicapped by lack of the facilities, was not in a position to cope with the extraordinary
situation confronting it.

Of course, General MacArthur had the technical right to issue the December proclamation, under the
extraordinary powers wielded by a military commander in chief during war operation, but let us analyze
carefully the text of the document and we will see that the persons included under it, although they
may also be considered as military prisoners as indicated in the second "Whereas" are in fact civil
prisoners, accused of offense of political character, not emenable to military justice but to the ordinary
administration of the justice in civil courts.

It is true that in the second "Whereas" military necessity is invoked for the removal of affected persons
from any opportunity to threaten the security of the military forces, but in the dispositive part of the
December proclamation, which is the controlling part, it is catergorically stated that it is THE
PURPOSE of General MacArthur "to removed such persons, when apprehended, from any position
of political and economic influence in the Philippines," and just "to hold them in restraint," NOT TO
PROSECUTE, NOR TO TRY, NOR TO PUNISH, "for the duration of the war."

Finally, General MacArthur says: "Whereafter I shall release them to the Philippine Government for its
judgment upon their respectives cases." That is saying in other way that their cases belong to the civil
jurisdiction of the Commonwealth ordinary tribunals, and not the court-martial or other military
tribunal's jurisdiction.

Taking into consideration the December proclamation in conjunction with President Roosevelt's
declaration, the conclusion is inevitable that said document is, in fact, a political proclamation, not
military.

If the petitioners are political prisoners subject to the civil jurisdiction of ordinary courts of justice if they
are to be prosecuted at all, the army has no jurisdiction, nor power, nor authority, from all legal
standpoints, to continue holding them in restraint. They are entitled, as a matter of fundamental right,
to be immediately released, any allegation as to whether the war was ended or not, notwithstanding,
as the Supreme Court of the United States of America, the highest tribunal under the American flag,
has stated that the constitutional guaranties of personal liberty are a shield for the protection "OF ALL
CLASSES, AT ALL TIMES, AND UNDER ALL CIRCUMSTANCES."

The constitutional guaranties of personal liberty are a shield, for the protection of all classes,
at all times, and under all circumstances; and the writ of habeas corpus issues to inquire into
the legality of the detention of an accused. (Ex parte Milligan, 4 Wall., 2.)
It is alleged that petitioners are being held as a measure of military necessity and that the army
Commander in Chief, and not an outsider, including the members of this Supreme Court, is the
competent judge as to the existence of military necessity.

Certainly, the army Commander in Chief is supposed to be the most competent judge as to whether
military necessity requires or not the detention of petitioners, and ordinarily this Court should accept
his judgment as conclusive.

But in this case there is nothing to show that General MacAthur, as the Commander in Chief of the
American Armed Forces, is of the opinion that military necessity requires the detention of petitioners.
The only opinion that we have in the record is the one expressed by respondent Bradford AT THE
TIME OF THE APPREHENSION of petitioners. In his return dated September 5, 1945, said
respondent stated that petitioners "were temporarily detained" by virtue of the December proclamation,
and nothing is said whether military necessity still requires their further detention. In fact said
respondent washes his hands when he alleges that immediately after the apprehension of petitioners,
he ceased to have nothing to do with said persons, while respondent Captain Caroline De Eason, in
cotinuing to restrain the liberty of petitioners, is invoking the authority of the commitment orders of Lt.
Col. Bradford, the other respondent. So it seems that the two respondents are mutually throwing
responsibility to each other's shoulders.

Under the circumstances, we are entitled to opine that no competent or authoritative statement is on
record to the effect that petitioners must remain under restraint as a matter of military necessity. Many
other persons placed in the same situation are being released to the Commonwealth Government.

It is easy to understand the absence of such statement if we take into consideration that the state of
war has ceased to exist.

The contention that, notwithstanding the historical facts leading to the conclusion that war has ended,
we cannot declare that the war has terminated unless and until a treaty of peace has been formally
signed, like the Treaty of Paris which ended the Spanish-American war, or a formal declaration of the
United States Congress to the effect that peace has been restored, as it was done two years after the
termination of hostilities in the First World War, is untenable.

Shall the members of this Supreme Court be blind enough to maintain the existence of a state of war
between the Allied Nations and Japan after Japanese Foreign Minister Mamoru Sigemitsu has signed
on V-J Day, September 2, 1945, the document of unconditional surrender of Japan, by accepting
completely the July 26, 1945, Potsdam declaration?

The following indubitable historical facts are matters of judicial notice, and they are officially recorded
in the Official Gazette:

1. On August 10,1945, the Japanese Government declared its readiness to accept the Potsdam allied
joint declaration "with the understanding that the said declaration does not compromise any demands
which prejudices the prerogatives of his Majesty as a sovereign ruler."

2. On August 11, 1945, the Allies answered that from the moment of surrender "the authority of the
Emperor and the Japanese Government shall be subject to the Supreme Commander of the Allied
Powers."

3. On august 14, 1945, the Japanese Government accepted the Allied counter-proposal. The
Japanese reply was considered by President Truman as "a full acceptance of the Potsdam Declaration
which specifies the unconditional surrender of Japan."
According, on September 2, 1945, the document of formal surrender was signed by the Japanese
representatives at Tokyo Bay, aboard the battleship Missouri, Admiral Halsey's flagship, in the
presence of General MacAthur, as Supreme Allied Commander, of representative of individual allied
nations.

One day after, General Yamashita, the biggest Japanese military figure in the last war, the Conqueror
of Singapore and called as the "Tiger of Malaya," signed the surrender of all his forces in the
Philippines.

We do not believe it right to maintain the existence of war when, as a matter of fact, war is over. The
immediate and main objective of a warring motion is victory. Once attained, war ceases to exist. War
cannot exist without two contending parties. It is a strungle between two opposing nations or
combination of states. No fight can exist if there is only one fighter. In the last war, which ended on
September 2, 1945, there were two opposing parties, the Allied Nations on the hand, and on the other,
Japan. And Japan laid down arms, refused to continue to fight, surrendered completely. If it is
maintained that there is still war, among whom is it being fought? Certainly, it is not between the United
Nations and Japan, because Japan is not willing to put up any fight anymore. It is preposterous to
think that the Allied Nations shall engage in a shadow war.

Therefore, the formality of a treaty of peace or a resolution of the Congress of the United States,
declaring the war is over, is absolutely unnecessary. At most, it is a mere technicality that cannot add
anything to the stark reality which is facing us. With or without congressional declaration, the Supreme
Court cannot close its eyes to the reality of the termination of war which is confronting us with the
same tangibility of a fist blow.

Suppose the Congress of United States of America does not make any formal declaration about the
end of war within two or three years, as it seems improper for the Allied Powers to sign any peace
treaty with vanquished Japan subject to the authority of the Allied Supreme Commander, shall the
Supreme Court of the Philippines declare that war is going on, that war continues to exist that far? To
do that we must lose all sense of truth.

We hope nobody will suppose that we will have to endure the Japanese self-delusion of not accepting
the existence of a state of war between Japan and China in what they used to call a mere incident,
although for years since the Marco Polo bridge action took place in 1937, thousands of soldiers and
millions of Chinese innocent, civilians had died during protracted military hostilities in wide areas of
China, ending only with the unconditional surrender of Japan at the Tokyo Bay.

In considering the case of the petitioners, we believe that instead of the December proclamation, we
must take into consideration what we shall call hereafter the October proclamation, issued by General
Douglas MacArthur on October 23, 1944.

It is declared therein that the Government of the Commonwealth of the Philippines is the "sole and
only Government having legal and fundamental jurisdiction over the people in areas of the Philippines
free of enemy occupation and control," which is the case of the place wherein the petitioners are being
held in restraint; that the "laws now existing in the statute books" and the regulations promulgated
pursuant thereto "are in full force and effect and legally binding," including the Constitution which
guarantees that "no person shall be deprived of liberty without due process of law" (sec. 1 Article III)
and the laws affording the relief of habeas corpus to all who are illegally detained.

It is further announced by General Douglas MacArthur in the October proclamation that it is his
purpose to restore and extend to the people of the Philippines "the sacred right of the government by
constitutional process."
It is not logical to entertain the idea that, with the issuance of the December proclamation, General
MacArthur had the least idea of jeopardizing the personal liberty of any citizen of the Philippines, which
is one of the fundamental human rights guaranteed by our Constitution and laws.

On the morning of February 27, 1945, upon turning over to President Osmeña the full powers and
responsibilities of the Commonwealth Government at a ceremony held at Malacañang Palace,
General MacArthur declared in a stirring speech that his soldiers have come here as an army of free
men, dedicated, with our people, "to the cause of human liberty," and that with our liberation, millions
of our people will have the opportunity to pledge themselves to the task of building a new and stronger
nation "dedicated to making imperishable those sacred liberties for which many have fought and died."

These words are in line with the United Nations' joint declaration made on January 1, 1942, to the
effect that complete victory over the enemies "is essential to defend life, liberty, independence and
religious freedom, and to preserved human rights and justice."

It is again General MacArthur who, in the speech delivered at a special session of our Congress on
July 9, 1945, said:

Since the beginning of the time men have crusaded for freedom and for equality. It was this
passion for liberty which inspired the architects of my own government to proclaim so
immutably and so beautifully that "all men are created equal" and "that they are endowed by
their Creator with certain inalienable rights — that among these are Life, Liberty, and the
pursuit of Happiness." On such rights rest our basic concept of human freedom, in defense of
which we have fought and still continue to fight on the battle fields of the world. These rights
are the very antithesis to the totalitarian doctrine which seeks to regiment the people and
control the human will as the price for presumed efficiency in government.

And as a final declaration, binding to all United Nations, including the United States of America and
the Philippines, it is stated in the Charter adopted in the Conference on June 26, 1945, that it is one
of the main purposes of the organization to promote and encourage "respect for human rights and for
fundamental freedoms for all without distinction as to race, sex, language, or religion." (Sec. 3, Article
I, Chapter I of the Charter of the United Nations.)

It is interesting to note that counsel for respondent is invoking section 4 of Rule 102 and Act No. 190,
as amended by Acts Nos. 272 and 421, to maintain that this Supreme Court is without jurisdiction to
entertain the petition.

We cannot help declaring that they very legal provisions invoked precisely show that petitioners are
entitled to the relief sought in the petition.

The pertinent provision of Act No. 190, as amended, were enacted specifically that relief by habeas
corpus cannot be afforded to military prisoners.

We shown already that petitioner are not military prisoners.

The provisions of Act No. 190, as amended, were enacted specifically for special extraordinary
situations, and said provisions are no longer in effect, as procedural provisions on habeas corpus are
incorporated in the present judicial rules, wherein said provisions are ommited. When the Supreme
Court adopted the rules, by ommitting said provisions, it intended clearly to repeal them, and with good
reason, because they are incompatible with democratic principles and with the provisions of our
Constitution.
It has been argued with energy by those oppose our issuing the order for the release of the petitioners,
that if we decide to issue it, the United State Army might refuse to set them at liberty, with the result
that the order of release will become a mere scrap of paper and the supreme court of the Philippines
will be placed in the unenviable position of utter ridicule. We have to answer in the most definite way
that we cannot agree with such •a narrow point of view.

As Greece was the cradle of democracy in the West, so the Philippines is the cradle of democracy in
the East. If the first occidental democracy was born in Greece centuries before the Christian Era, at
the end of the last century the Philippines gave birth to the first democracy in the Orient, the abode of
more than one-half of all humanity. That first oriental democracy was born with the drafting of the
Malolos Constitution in the most difficult and trying circumstances, under conditions less appropriate
for a healthy and vigorous growth, when our country was enduring the hardships of an uphill bloody
struggle for national independence. But America, the greatest occidental democracy, came to offer us
a helping hand as a second mother. With solicitude she nursed the small child. She reared and cared
for her with the self-sacrificing earnestness of maternal love. The child has grown into a brown girl, full
of the joy of life. The girl learned from the American teacher the full meaning of constitutional
guaranties, of civil liberties, of fundamental human rights. She studied at heart the accomplishments
of Washington, Jefferson, and Lincoln. She followed the teaching of Franklin, Hamilton, and Madison.
She saw how law is really above all men, and how a humble police officer in the discharge of his official
duties, arrested President Grant, and how the Chief Magistrate of that great nation, the United States
of America, submitted to the arrest. That girl has grown into full maturity, the personification of beauty,
bewitching, the sweetheart of one billion lovers, the greatest pride of America in the continent of Asia,
on the shores of the vast Pacific.

Now, who shall dare to lay hands on her? Who shall dare to destroy that most beautiful masterpiece
of the greatest American democratice virtues? Who shall have heart to straggle the neck of Philippine
democracy, the beloved daughter of American democracy? Certainly, not the United States Army, nor
the heroic and glorious Army of Liberation not the gallant warriors who fought thousands of battles to
return to rescue Philippine democracy from the Japanese monsters, with the same romantic courage
of a knight of old in the rescue of the beloved princess in captivation. No, certainly not. the American
Army shall never allow itself to stand indicted before the bar of the whole world as the cold-blooded
murdered of the liberated little daughter of American democracy.

But suppose the most unexpected should happen, that there might be members of the United States
Armed Forces who will be blind to ignore the order of this Supreme court, to make a mockery of the
administration of justice, shall that unthinkable hypothesis deter us from doing our duty? Our answer
is simple. No. no one and nothing whole world, neither the all-powerful army which humbled Germany
and forced the surrender of the "invincible" Japanese Army, nor weapons more dreadful than the
atomic bomb, nor the menace of an imminent catastrophe, shall be powerful enough to make us flinch
from complying with our plain duty as justices of the Supreme court. We must do our duty as justices
of the supreme Court. We must do our consequences. Law and justice might suffer setbacks, endure
eclipses, but at the end they shall reign with all the splendors of real majesty.

Justice Cooley, one of the most distinguished American judges and law-writers, said:

It would be strange indeed if, at this late day, after the eulogiums of six centuries and a half
have been expended upon the Magna Charta, and rivers of blood shed for its establishment;
after its many confirmations, until Coke could in his speech on the petition of right that "Magna
Charta was such a fellow that he will have no sovereign," and after the extension of its benefits
and securities by the petition of right, bill of rights and habeas corpus acts, it should now be
discovered that evasion of that great clause for the protection of personal liberty, which is the
 life and soul of the whole instrument, it so easy as is claimed here. (In the matter of Jackson
[1867], 15 Mich., 416.)

Referring to this opinion of Justice Cooley our Supreme Court said:

The opinion of Judge Cooley has since been accepted as authoritative by other courts.
(Rivers vs. Citchell [1881], 57 Iowa, 193; Breene vs. People [1911], Colo., 117 Pac. Rep.,
1000; Ex parte Young [1892], 50 Fed., 526.) (Villavicencio vs. Lukban 39 Phil., 791-793.)

We have the almost one-fourth-century-old legal doctrine laid down by this Supreme Court to the effect
that this tribunal and the courts of first instance of the Philippines have jurisdiction to set free,
through habeas corpusproceedings, a civilian who has been illegally arrested or is unduly being
detained by military or naval authorities of the United States. (Payomo vs. Floyd [Feb. 17, 1922], 42
Phil., 788.)

We agree that, while war is going on, ordinary civil laws shall remain silent, in order not to impede the
effectiveness of war operations. It is legal maxim that laws are silent amidst arms. Silent leges inter
arma. But when the din of war is over, when the clang of arms has ceased, civil laws are restored with
full effectiveness, and it is the function of tribunals to interpret and apply them. If they fail to apply them
in a proper case submitted to them, they will be recreant to their judicial duties, and are liable to be
marked with a stigma they cannot be proud of. Legem terrae amittentes perpetaum infamiae notam
inde merito incurrunt. Those who do not preserve the law of the land, thence justly incur the
ineffaceable brand of infamy.

It is evident that petitioners are being deprived of their personal liberty without due process of law.

More than three years under the arbitrary rule of the Japanese kempei might have habituated us to
view with some leniency the illegal deprivation of individual freedom. The gestapo procedures of
apprehending indiscriminately our citizens at any time of the day, mostly after midnight, employed by
the ruthless Japanese military police, were a daily occurrence, and it might have deadened our sense
of personal freedom, and might make us insensible to the injustice being done to petitioners, to their
moral sufferings in their involuntary imprisonment, and, therefore, might have closed our eyes to a
situation that requires immediate relief, and our ears to the anguishing clamors of the victims of the
injustice. But the fact that immediately after we assumed jurisdiction in this case, and respondents
have been required to show cause why relief should not be granted to petitioners, one of them has
been subjected to maltreatment, to an inquisitorial procedure hardly justifiable to be used against a
Japanese prisoner, must arouse us to the full realization that here there is a case which needs prompt
relief, if the final victory won by the United Nations at Tokyo Bay on September 2, 1945, must have a
substantial meaning.

With the facts confronting us in this case, we cannot remain indifferent. They present a question that
affects us in the deepest recesses of our being. It is a human freedom which is at stake. It is one of
the fundamental rights which have existed since mankind began to live in this world, much before the
Code of Hammurabi has been written, anterior and superior to any constitutional guarantees, and
recognized before the organization of society and of any government, because they have their roots
in human nature. We cannot remain unmoved when we see how such natural right is disregarded, and
violated by official representatives of a democratic government.

If we allow freely such flagrant trampling of the personal freedom of three of our citizens, we shall
shake the faith of one hundred million fellow malayans in the effectiveness of democratic processes,
and one billion orientals shall cease to look here for the MacArthur's Citadel of Democracy. If the facts
presented to us shall happen to reach such public forums as our Congress and the American
Congress, they will not fail to arouse waves of protest and indignation. This is the first case submitted
to the new Supreme Court of the Philippines, as reconstituted since our liberation, wherein our power
is invoked for the protection of personal liberty, flagrantly violated. Shall we shrink from doing our plain
duty?

If we refuse to grant the redress sought by petitioners, we are afraid we are sanctioning and
perpetuating the same procedure which made Fort Santiago a veritable house of horrors, which
branded with eternal infamy the Axis concentration camps, Buchenwald, Dachau, Maidanak
predicated on the supremacy of the torture among the functions of government, in which case the only
peace possible is the peace of death. And then, what was the use of requiring our boys to fight, to
shed their blood, to die in the battle fields of Bataan? What was the purpose of fighting in the whole
world to crush Germany and Japan, if we are to follow their procedures? What meaning will the gospel
of fundamental freedoms preached by Roosevelt have?

We will not conclude without challenging the applicability of the quotation in the majority opinion of
what has been said by the Supreme Court of the United States of America in the case of Coleman vs.
Tennessee (97 U.S., 509), recognizing the privilege of extraterritoriality in a foreign army, permitted to
march through a friendly country or to be stationed in it.

The American Army of Liberation is not a "foreign army." It represents the same sovereignty of the
United States of America under which the Philippines is placed. That army is waving the same
American flag that waves in the government offices of the Commonwealth. From our point of view, we
must consider it as a domestic army. Is it not the continuation of the Fil-American Army which fought
in Bataan and Corregidor? Did not the American boys and our boys mix their blood in the same
holocaust, in the same battles? Are not the dead American soldiers resting in the same graves with
the dead Filipino soldiers in an eternal embrace of brotherhood, sanctified by the noblest ideals?

There is no analogy between that of a foreign army which is granted free passage in a friendly country
and that of the American Army in the Philippines, which has belonged here since the American flag
began to fly in this country, had to return to vindicate the honor of the American sovereignty, wantonly
insulted in the treacherous attack of Pearl Habor, and shall remain, even after the formal proclamation
of our national independence, to protect that independence, as has been solemnly pledged by
President Roosevelt, and to maintain vigilance in the first line of defense of the United States of
America.

With regards to the privilege of extraterritoriality granted to a foreign army, permitted to march through
a friendly country, it must be understood as limited to the internal matters of said army. That is, it is
exempt from the civil and criminal jurisdiction of the place as far as it does not affect the substantial
rights of the nationals of the friendly country where it is stationed. Those substantial rights, specially if
guaranteed in the Constitution, in proper cases, shall always merit the protection of the courts of the
territory. That official duty of the courts shall be more imperative if we take into consideration the stress
given in the Charter of the United Nations upon the protection of human rights and fundamental
freedoms.

We cannot accept the position of those who maintain that our civil courts should not exercise
jurisdiction over the United States Army, the very army of a country which recognizes no one as being
above the law, no matter how high his position is or how powerful he is, a country wherein a humble
police officer, in the performance of his official duty, may legally arrest the Chief Magistrate of the
nation. Such position is subersive of the fundamental tenets of democracy. We cannot accept it in the
same way that we cannot accept military dictatorship or any other kind of dictatorship. Under the
American Constitution or the Philippine Constitution, the army is always placed under the authority of
civil government, functioning through its legislative, executive and judicial branches. The supreme
commander of the army is the President, a civil officer elected by the people. The army has to obey
the laws. The jurisdiction of the courts is granted by the Constitution and by the laws. We cannot
accept a theory that might revive or reproduce the military tyranny of Himmler or of the Japanese
Kempei. With all our admiration for the gallant American Army, with all our deep gratitude for the
freedom it has restored to us, we cannot recognize in it any power that is above the law of our land.
All tyranny is hateful, even if it be exercised by our own parents, the very persons to whom we owe
our lives and all opportunities and happiness. We must do all we can to show our recognition, respect,
and gratitude to the American Army, but we should never renounce the supremacy of the law. If we
should falter in our national duty of upholding law, we will be unworthy of the efforts and sacrifices
undergone by the American Army to liberate our country. And we can uphold the law by applying it in
the proper case and, if its application requires the exercise of jurisdiction over the American troops,
nothing shall make us hesitate to exercise that jurisdiction. It is the only way of keeping alive the public
faith in the effectiveness of the courts as the bulwark of the rights of the people.

We are, therefore, of the opinion that an order should be issued by this Court without delay for the
immediate release of petitioners.
G.R. No. L-24294 May 3, 1974

DONALD BAER, Commander U.S. Naval Base, Subic Bay, Olongapo, Zambales, petitioner,
vs.
HON. TITO V. TIZON, as Presiding Judge of the Court of First Instance of Bataan, and
EDGARDO GENER, respondents.

Sycip, Salazar, Luna Manalo & Feliciano for petitioner.

A. E. Dacanay for private respondent.

Office of the Solicitor General Camilo D. Quiason as amicus curiae.

FERNANDO, J.:p

There is nothing novel about the question raised in this certiorari proceeding against the then Judge Tito V. Tizon, filed by petitioner Donald
Baer, then Commander of the United States Naval Base, Subic Bay, Olongapo, Zambales, seeking to nullify the orders of respondent Judge
denying his motion to dismiss a complaint filed against him by the private respondent, Edgardo Gener, on the ground of sovereign immunity of
a foreign power, his contention being that it was in effect a suit against the United States, which had not given its consent. The answer given
is supplied by a number of cases coming from this Tribunal starting from a 1945 decision, Raquiza v. Bradford1 to Johnson v.
Turner,2 promulgated in 1954. The doctrine of immunity from suit is of undoubted applicability in this jurisdiction. It cannot be otherwise, for
under the 1935 Constitution, as now, it is expressly made clear that the Philippines "adopts the generally accepted principles of international
law as part of the law of the Nation."3 As will subsequently be shown, there was a failure on the part of the lower court to accord deference and
respect to such a basic doctrine, a failure compounded by its refusal to take note of the absence of any legal right on the part of petitioner.
Hence, certiorari is the proper remedy.

The facts are not in dispute. On November 17, 1964, respondent Edgardo Gener, as plaintiff, filed a
complaint for injunction with the Court of First Instance of Bataan against petitioner, Donald Baer,
Commander of the United States Naval Base in Olongapo. It was docketed as Civil Case No. 2984 of
the Court of First Instance of Bataan. He alleged that he was engaged in the business of logging in an
area situated in Barrio Mabayo, Municipality of Morong, Bataan and that the American Naval Base
authorities stopped his logging operations. He prayed for a writ of preliminary injunction restraining
petitioner from interfering with his logging operations. A restraining order was issued by respondent
Judge on November 23, 1964.4 Counsel for petitioner, upon instructions of the American Ambassador
to the Philippines, entered their appearance for the purpose of contesting the jurisdiction of respondent
Judge on the ground that the suit was one against a foreign sovereign without its consent.5 Then, on
December 12, 1964, petitioner filed a motion to dismiss, wherein such ground was reiterated. It was
therein pointed out that he is the chief or head of an agency or instrumentality of the United States of
America, with the subject matter of the action being official acts done by him for and in behalf of the
United States of America. It was added that in directing the cessation of logging operations by
respondent Gener within the Naval Base, petitioner was entirely within the scope of his authority and
official duty, the maintenance of the security of the Naval Base and of the installations therein being
the first concern and most important duty of the Commander of the Base.6 There was, on December
14, 1964, an opposition and reply to petitioner's motion to dismiss by respondent Gener, relying on
the principle that "a private citizen claiming title and right of possession of certain property may, to
recover possession of said property, sue as individuals, officers and agents of the Government, who
are said to be illegally withholding the same from him, though in doing so, said officers and agents
claim that they are acting for the Government." That was his basis for sustaining the jurisdiction of
respondent Judge.7 Petitioner, thereafter, on January 12, 1965, made a written offer of documentary
evidence, including certified copies of telegrams of the Forestry Director to Forestry personnel in
Balanga, Bataan dated January 8, and January 11, 1965, directing immediate investigation of illegal
timber cutting in Bataan and calling attention to the fact that the records of the office show no new
renewal of timber license or temporary extension permits.8 The above notwithstanding, respondent
Judge, on January 12, 1965, issued an order granting respondent Gener's application for the issuance
of a writ of preliminary injunction and denying petitioner's motion to dismiss the opposition to the
application for a writ of preliminary injunction.9

A motion for reconsideration having proved futile, this petition for certiorari was filed with this Court.
The prayer was for the nullification and setting aside of the writ of preliminary injunction issued by
respondent Judge in the aforesaid Civil Case No. 2984 of the Court of First Instance of Bataan. A
resolution of March 17, 1965 was issued by this Court requiring respondents to file an answer and
upon petitioner's posting a bond of P5,000.00 enjoining them from enforcing such writ of preliminary
injunction. The answer was duly forthcoming. It sought to meet the judicial question raised by the legal
proposition that a private citizen claiming title and right of possession of a certain property may, to
recover the same, sue as individuals officers and agents of the government alleged to be illegally
withholding such property even if there is an assertion on their part that they are acting for the
government. Support for such a view is found in the American Supreme Court decisions of United
States v. Lee10 and Land v. Dollar.11Thus the issue is squarely joined whether or not the doctrine of
immunity from suit without consent is applicable. Thereafter, extensive memoranda were filed both by
petitioner and respondents. In addition, there was a manifestation and memorandum of the Republic
of the Philippines as amicus curiae where, after a citation of American Supreme Court decisions going
back to Schooner Exchange v. M'faddon,12 an 1812 decision, to United States v. Belmont,13 decided in
1937, the plea was made that the petition for certiorari be granted..

A careful study of the crucial issue posed in this dispute yields the conclusion, as already announced,
that petitioner should prevail.

1. The invocation of the doctrine of immunity from suit of a foreign state without its consent is
appropriate. More specifically, insofar as alien armed forces is concerned, the starting point is Raquiza
v. Bradford, a 1945 decision.14In dismissing a habeas corpus petition for the release of petitioners
confined by American army authorities, Justice Hilado, speaking for the Court, cited from Coleman v.
Tennessee,15 where it was explicitly declared: "It is well settled that a foreign army, permitted to march
through a friendly country or to be stationed in it, by permission of its government or sovereign, is
exempt from the civil and criminal jurisdiction of the place."16 Two years later, in Tubb and Tedrow v.
Griess,17 this Court relied on the ruling in Raquiza v. Bradford and cited in support thereof excerpts
from the works of the following authoritative writers: Vattel, Wheaton, Hall, Lawrence, Oppenhein,
Westlake, Hyde, and McNair and Lauterpacht.18 Accuracy demands the clarification that after the
conclusion of the Philippine-American Military Bases Agreement, the treaty provisions should control
on such matter, the assumption being that there was a manifestation of the submission to jurisdiction
on the part of the foreign power whenever appropriate.19More to the point is Syquia v. Almeda
Lopez,20 where plaintiffs as lessors sued the Commanding General of the United States Army in the
Philippines, seeking the restoration to them of the apartment buildings they owned leased to United
States armed forces stationed in the Manila area. A motion to dismiss on the ground of non-suability
was filed and upheld by respondent Judge. The matter was taken to this Court in a mandamus
proceeding. It failed. It was the ruling that respondent Judge acted correctly considering that the "action
must be considered as one against the U.S. Government."21 The opinion of Justice Montemayor
continued: "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. The question of lack of jurisdiction was raised
and interposed at the very beginning of the action. The U.S. Government has not given its consent to
the filing of this suit which is essentially against her, though not in name. Moreover, 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 a
citizen filing an action against a foreign government without said government's consent, which renders
more obvious the lack of jurisdiction of the courts of his country. The principles of law behind this rule
are so elementary and of such general acceptance that we deem it unnecessary to cite authorities in
support thereof."22 Then came Marvel Building Corporation v. Philippine War Damage
Commission,23 where respondent, a United States agency established to compensate damages
suffered by the Philippines during World War II was held as falling within the above doctrine as the
suit against it "would eventually be a charge against or financial liability of the United States
Government because ..., the Commission has no funds of its own for the purpose of paying money
judgments."24 The Syquiaruling was again explicitly relied upon in Marquez Lim v. Nelson,25 involving
a complaint for the recovery of a motor launch, plus damages, the special defense interposed being
"that the vessel belonged to the United States Government, that the defendants merely acted as
agents of said Government, and that the United States Government is therefore the real party in
interest."26 So it was in Philippine Alien Property Administration v. Castelo,27 where it was held that a
suit against the Alien Property Custodian and the Attorney General of the United States involving
vested property under the Trading with the Enemy Act is in substance a suit against the United States.
To the same effect is Parreno v. McGranery,28 as the following excerpt from the opinion of Justice
Tuason clearly shows: "It is a widely accepted principle of international law, which is made a part of
the law of the land (Article II, Section 3 of the Constitution), that a foreign state may not be brought to
suit before the courts of another state or its own courts without its consent."29 Finally, there is Johnson
v. Turner,30 an appeal by the defendant, then Commanding General, Philippine Command (Air Force,
with office at Clark Field) from a decision ordering the return to plaintiff of the confiscated military
payment certificates known as scrip money. In reversing the lower court decision, this Tribunal,
through Justice Montemayor, relied on Syquia v. Almeda Lopez,31 explaining why it could not be
sustained.

The solidity of the stand of petitioner is therefore evident. What was sought by private respondent and
what was granted by respondent Judge amounted to an interference with the performance of the duties
of petitioner in the base area in accordance with the powers possessed by him under the Philippine-
American Military Bases Agreement. This point was made clear in these words: "Assuming, for
purposes of argument, that the Philippine Government, through the Bureau of Forestry, possesses the
"authority to issue a Timber License to cut logs" inside a military base, the Bases Agreement subjects
the exercise of rights under a timber license issued by the Philippine Government to the exercise by
the United States of its rights, power and authority of control within the bases; and the findings of the
Mutual Defense Board, an agency of both the Philippine and United States Governments, that
"continued logging operation by Mr. Gener within the boundaries of the U.S. Naval Base would not be
consistent with the security and operation of the Base," is conclusive upon the respondent Judge. ..
The doctrine of state immunity is not limited to cases which would result in a pecuniary charge against
the sovereign or would require the doing of an affirmative act by it. Prevention of a sovereign from
doing an affirmative act pertaining directly and immediately to the most important public function of
any government - the defense of the state — is equally as untenable as requiring it to do an affirmative
act."32 That such an appraisal is not opposed to the interpretation of the relevant treaty provision by
our government is made clear in the aforesaid manifestation and memorandum as amicus curiae,
wherein it joined petitioner for the grant of the remedy prayed for.

2. There should be no misinterpretation of the scope of the decision reached by this Court. Petitioner,
as the Commander of the United States Naval Base in Olongapo, does not possess diplomatic
immunity. He may therefore be proceeded against in his personal capacity, or when the action taken
by him cannot be imputed to the government which he represents. Thus, after the Military Bases
Agreement, in Miquiabas v. Commanding General33and Dizon v. The Commanding General of the
Philippine-Ryukus Command,34 both of them being habeas corpus petitions, there was no question as
to the submission to jurisdiction of the respondents. As a matter of fact, in Miquiabas v. Commanding
General,35 the immediate release of the petitioner was ordered, it being apparent that the general court
martial appointed by respondent Commanding General was without jurisdiction to try petitioner.
Thereafter, in the cited cases of Syquia, Marquez Lim, and Johnson, the parties proceeded against
were American army commanding officers stationed in the Philippines. The insuperable obstacle to
the jurisdiction of respondent Judge is that a foreign sovereign without its consent is haled into court
in connection with acts performed by it pursuant to treaty provisions and thus impressed with a
governmental character.
3. The infirmity of the actuation of respondent Judge becomes even more glaring when it is considered
that private respondent had ceased to have any right of entering within the base area. This is made
clear in the petition in these words: "In 1962, respondent Gener was issued by the Bureau of Forestry
an ordinary timber license to cut logs in Barrio Mabayo, Morong, Bataan. The license was renewed on
July 10, 1963. In 1963, he commenced logging operation inside the United States Naval Base, Subic
Bay, but in November 1963 he was apprehended and stopped by the Base authorities from logging
inside the Base. The renewal of his license expired on July 30, 1964, and to date his license has not
been renewed by the Bureau of Forestry. .. In July 1964, the Mutual Defense Board, a joint Philippines-
United States agency established pursuant to an exchange of diplomatic notes between the Secretary
of Foreign Affairs and the United States Ambassador to provide "direct liaison and consultation
between appropriate Philippine and United States authorities on military matters of mutual concern,'
advised the Secretary of Foreign Affairs in writing that: "The enclosed map shows that the area in
which Mr. Gener was logging definitely falls within the boundaries of the base. This map also depicts
certain contiguous and overlapping areas whose functional usage would be interfered with by the
logging operations.'"36 Nowhere in the answer of respondents, nor in their memorandum, was this point
met. It remained unrefuted.

WHEREFORE, the writ of certiorari prayed for is granted, nullifying and setting aside the writ of
preliminary injunction issued by respondent Judge in Civil Case No. 2984 of the Court of First Instance
of Bataan. The injunction issued by this Court on March 18, 1965 enjoining the enforcement of the
aforesaid writ of preliminary injunction of respondent Judge is hereby made permanent. Costs against
private respondent Edgardo Gener.
G.R. No. L-49112 February 2, 1979

LEOVILLO C. AGUSTIN, petitioner,

vs.
HON. ROMEO F. EDU, in his capacity as Land Transportation Commissioner; HON. JUAN
PONCE ENRILE, in his capacity as Minister of National Defense; HON. ALFREDO L. JUINIO, in
his capacity as Minister Of Public Works, Transportation and Communications; and HON:
BALTAZAR AQUINO, in his capacity as Minister of Public Highways, respondents.

Leovillo C. Agustin Law Office for petitioner.

Solicitor General Estelito P. Mendoza, Assistant Solicitor General Ruben E. Agpalo and Solicitor
Amado D. Aquino for respondents.

FERNANDO, J.:

The validity of a letter of Instruction 1 providing for an early seaming device for motor vehicles is
assailed in this prohibition proceeding as being violative of the constitutional guarantee of due process
and, insofar as the rules and regulations for its implementation are concerned, for transgressing the
fundamental principle of non- delegation of legislative power. The Letter of Instruction is stigmatized
by petitioner who is possessed of the requisite standing, as being arbitrary and oppressive. A
temporary restraining order as issued and respondents Romeo F. Edu, Land Transportation
Commissioner Juan Ponce Enrile, Minister of National Defense; Alfredo L. Juinio, Minister of Public
Works, Transportation and Communications; and Baltazar Aquino, Minister of Public Highways; were
to answer. That they did in a pleading submitted by Solicitor General Estelito P. Mendoza. 2 Impressed
with a highly persuasive quality, it makes devoid clear that the imputation of a constitutional infirmity
is devoid of justification The Letter of Instruction on is a valid police power measure. Nor could the
implementing rules and regulations issued by respondent Edu be considered as amounting to an
exercise of legislative power. Accordingly, the petition must be dismissed.

The facts are undisputed. The assailed Letter of Instruction No. 229 of President Marcos, issued on
December 2, 1974, reads in full: "[Whereas], statistics show that one of the major causes of fatal or
serious accidents in land transportation is the presence of disabled, stalled or parked motor vehicles
along streets or highways without any appropriate early warning device to signal approaching
motorists of their presence; [Whereas], the hazards posed by such obstructions to traffic have been
recognized by international bodies concerned with traffic safety, the 1968 Vienna Convention on Road
Signs and Signals and the United Nations Organization (U.N.); [Whereas], the said Vienna Convention
which was ratified by the Philippine Government under P.D. No. 207, recommended the enactment of
local legislation for the installation of road safety signs and devices; [Now, therefore, I, Ferdinand E.
Marcos], President of the Philippines, in the interest of safety on all streets and highways, including
expressways or limited access roads, do hereby direct: 1. That all owners, users or drivers of motor
vehicles shall have at all times in their motor vehicles at least one (1) pair of early warning device
consisting of triangular, collapsible reflectorized plates in red and yellow colors at least 15 cms. at the
base and 40 cms. at the sides. 2. Whenever any motor vehicle is stalled or disabled or is parked for
thirty (30) minutes or more on any street or highway, including expressways or limited access roads,
the owner, user or driver thereof shall cause the warning device mentioned herein to be installed at
least four meters away to the front and rear of the motor vehicle staged, disabled or parked. 3. The
Land Transportation Commissioner shall cause Reflectorized Triangular Early Warning Devices, as
herein described, to be prepared and issued to registered owners of motor vehicles, except
motorcycles and trailers, charging for each piece not more than 15 % of the acquisition cost. He shall
also promulgate such rules and regulations as are appropriate to effectively implement this order. 4.
All hereby concerned shall closely coordinate and take such measures as are necessary or
appropriate to carry into effect then instruction. 3 Thereafter, on November 15, 1976, it was amended
by Letter of Instruction No. 479 in this wise. "Paragraph 3 of Letter of Instruction No. 229 is hereby
amended to read as follows: 3. The Land transportation Commissioner shall require every motor
vehicle owner to procure from any and present at the registration of his vehicle, one pair of a
reflectorized early warning device, as d bed of any brand or make chosen by mid motor vehicle . The
Land Transportation Commissioner shall also promulgate such rule and regulations as are appropriate
to effectively implement this order.'" 4 There was issued accordingly, by respondent Edu, the
implementing rules and regulations on December 10, 1976. 5 They were not enforced as President
Marcos on January 25, 1977, ordered a six-month period of suspension insofar as the installation of
early warning device as a pre-registration requirement for motor vehicle was concerned. 6 Then on
June 30, 1978, another Letter of Instruction 7 the lifting of such suspension and directed the immediate
implementation of Letter of Instruction No. 229 as amended. 8 It was not until August 29, 1978 that
respondent Edu issued Memorandum Circular No. 32, worded thus: "In pursuance of Letter of
Instruction No. 716, dated June 30, 1978, the implementation of Letter of Instruction No. 229, as
amended by Letter of Instructions No. 479, requiring the use of Early Warning Devices (EWD) on
motor vehicle, the following rules and regulations are hereby issued: 1. LTC Administrative Order No.
1, dated December 10, 1976; shall now be implemented provided that the device may come from
whatever source and that it shall have substantially complied with the EWD specifications contained
in Section 2 of said administrative order; 2. In order to insure that every motor vehicle , except
motorcycles, is equipped with the device, a pair of serially numbered stickers, to be issued free of
charge by this Commission, shall be attached to each EWD. The EWD. serial number shall be
indicated on the registration certificate and official receipt of payment of current registration fees of the
motor vehicle concerned. All Orders, Circulars, and Memoranda in conflict herewith are hereby
superseded, This Order shall take effect immediately. 9 It was for immediate implementation by
respondent Alfredo L. Juinio, as Minister of Public Works, transportation, and Communications. 10

Petitioner, after setting forth that he "is the owner of a Volkswagen Beetle Car, Model 13035, already
properly equipped when it came out from the assembly lines with blinking lights fore and aft, which
could very well serve as an early warning device in case of the emergencies mentioned in Letter of
Instructions No. 229, as amended, as well as the implementing rules and regulations in Administrative
Order No. 1 issued by the land transportation Commission," 11 alleged that said Letter of Instruction
No. 229, as amended, "clearly violates the provisions and delegation of police power, [sic] * * *: " For
him they are "oppressive, unreasonable, arbitrary, confiscatory, nay unconstitutional and contrary to
the precepts of our compassionate New Society." 12 He contended that they are "infected with
arbitrariness because it is harsh, cruel and unconscionable to the motoring public;" 13 are "one-sided,
onerous and patently illegal and immoral because [they] will make manufacturers and dealers instant
millionaires at the expense of car owners who are compelled to buy a set of the so-called early warning
device at the rate of P 56.00 to P72.00 per set." 14 are unlawful and unconstitutional and contrary to
the precepts of a compassionate New Society [as being] compulsory and confiscatory on the part of
the motorists who could very well provide a practical alternative road safety device, or a better
substitute to the specified set of EWD's." 15 He therefore prayed for a judgment both the assailed
Letters of Instructions and Memorandum Circular void and unconstitutional and for a restraining order
in the meanwhile.

A resolution to this effect was handed down by this Court on October 19, 1978: "L-49112 (Leovillo C.
Agustin v. Hon. Romeo F. Edu, etc., et al.) — Considering the allegations contained, the issues raised
and the arguments adduced in the petition for prohibition with writ of p prohibitory and/or mandatory
injunction, the Court Resolved to (require) the respondents to file an answer thereto within ton (10)
days from notice and not to move to dismiss the petition. The Court further Resolved to [issue] a
[temporary restraining order] effective as of this date and continuing until otherwise ordered by this
Court.16
Two motions for extension were filed by the Office of the Solicitor General and granted. Then on
November 15, 1978, he Answer for respondents was submitted. After admitting the factual allegations
and stating that they lacked knowledge or information sufficient to form a belief as to petitioner owning
a Volkswagen Beetle car," they "specifically deny the allegations and stating they lacked knowledge
or information sufficient to form a belief as to petitioner owning a Volkswagen Beetle Car, 17 they
specifically deny the allegations in paragraphs X and XI (including its subparagraphs 1, 2, 3, 4) of
Petition to the effect that Letter of Instruction No. 229 as amended by Letters of Instructions Nos. 479
and 716 as well as Land transportation Commission Administrative Order No. 1 and its Memorandum
Circular No. 32 violates the constitutional provisions on due process of law, equal protection of law
and undue delegation of police power, and that the same are likewise oppressive, arbitrary,
confiscatory, one-sided, onerous, immoral unreasonable and illegal the truth being that said
allegations are without legal and factual basis and for the reasons alleged in the Special and
Affirmative Defenses of this Answer."18 Unlike petitioner who contented himself with a rhetorical recital
of his litany of grievances and merely invoked the sacramental phrases of constitutional litigation, the
Answer, in demonstrating that the assailed Letter of Instruction was a valid exercise of the police power
and implementing rules and regulations of respondent Edu not susceptible to the charge that there
was unlawful delegation of legislative power, there was in the portion captioned Special and Affirmative
Defenses, a citation of what respondents believed to be the authoritative decisions of this Tribunal
calling for application. They are Calalang v. Williams, 19 Morfe v. Mutuc, 20 and Edu v.
Ericta. 21 Reference was likewise made to the 1968 Vienna Conventions of the United Nations on road
traffic, road signs, and signals, of which the Philippines was a signatory and which was duly
ratified. 22 Solicitor General Mendoza took pains to refute in detail, in language calm and dispassionate,
the vigorous, at times intemperate, accusation of petitioner that the assailed Letter of Instruction and
the implementing rules and regulations cannot survive the test of rigorous scrutiny. To repeat, its
highly-persuasive quality cannot be denied.

This Court thus considered the petition submitted for decision, the issues being clearly joined. As noted
at the outset, it is far from meritorious and must be dismissed.

1. The Letter of Instruction in question was issued in the exercise of the police power. That is conceded
by petitioner and is the main reliance of respondents. It is the submission of the former, however, that
while embraced in such a category, it has offended against the due process and equal protection
safeguards of the Constitution, although the latter point was mentioned only in passing. The broad
and expansive scope of the police power which was originally Identified by Chief Justice Taney of the
American Supreme Court in an 1847 decision as "nothing more or less than the powers of government
inherent in every sovereignty" 23 was stressed in the aforementioned case of Edu v. Ericta thus:
"Justice Laurel, in the first leading decision after the Constitution came into force, Calalang v. Williams,
Identified police power with state authority to enact legislation that may interfere with personal liberty
or property in order to promote the general welfare. Persons and property could thus 'be subjected to
all kinds of restraints and burdens in order to we the general comfort, health and prosperity of the
state.' Shortly after independence in 1948, Primicias v. Fugoso reiterated the doctrine, such a
competence being referred to as 'the power to prescribe regulations to promote the health, morals,
peace, education, good order or safety, and general welfare of the people. The concept was set forth
in negative terms by Justice Malcolm in a pre-Commonwealth decision as 'that inherent and plenary
power in the State which enables it to prohibit all things hurtful to the comfort, safety and welfare of
society. In that sense it could be hardly distinguishable as noted by this Court in Morfe v. Mutuc with
the totality of legislative power. It is in the above sense the greatest and most powerful at. tribute of
government. It is, to quote Justice Malcolm anew, 'the most essential, insistent, and at least table
powers, I extending as Justice Holmes aptly pointed out 'to all the great public needs.' Its scope, ever-
expanding to meet the exigencies of the times, even to anticipate the future where it could be done,
provides enough room for an efficient and flexible response to conditions and circumstances thus
assuring the greatest benefits. In the language of Justice Cardozo: 'Needs that were narrow or
parochial in the past may be interwoven in the present with the well-being of the nation. What is critical
or urgent changes with the time.' The police power is thus a dynamic agency, suitably vague and far
from precisely defined, rooted in the conception that men in organizing the state and imposing upon
its government limitations to safeguard constitutional rights did not intend thereby to enable an
individual citizen or a group of citizens to obstruct unreasonably the enactment of such salutary
measures calculated to communal peace, safety, good order, and welfare." 24

2. It was thus a heavy burden to be shouldered by petitioner, compounded by the fact that the particular
police power measure challenged was clearly intended to promote public safety. It would be a rare
occurrence indeed for this Court to invalidate a legislative or executive act of that character. None has
been called to our attention, an indication of its being non-existent. The latest decision in point, Edu v.
Ericta, sustained the validity of the Reflector Law, 25 an enactment conceived with the same end in
view. Calalang v. Williams found nothing objectionable in a statute, the purpose of which was: "To
promote safe transit upon, and. avoid obstruction on roads and streets designated as national roads
* * *. 26 As a matter of fact, the first law sought to be nullified after the effectivity of the 1935 Constitution,
the National Defense Act, 27 with petitioner failing in his quest, was likewise prompted by the imperative
demands of public safety.

3. The futility of petitioner's effort to nullify both the Letter of Instruction and the implementing rules
and regulations becomes even more apparent considering his failure to lay the necessary factual
foundation to rebut the presumption of validity. So it was held in Ermita-Malate Hotel and Motel
Operators Association, Inc. v. City Mayor of Manila. 28 The rationale was clearly set forth in an excerpt
from a decision of Justice Branders of the American Supreme Court, quoted in the opinion: "The
statute here questioned deals with a subject clearly within the scope of the police power. We are asked
to declare it void on the ground that the specific method of regulation prescribed is unreasonable and
hence deprives the plaintiff of due process of law. As underlying questions of fact may condition the
constitutionality of legislation of this character, the presumption of constitutionality must prevail in the
absence of some factual foundation of record in overthrowing the statute. 29

4. Nor did the Solicitor General as he very well could, rely solely on such rebutted presumption of
validity. As was pointed out in his Answer "The President certainly had in his possession the necessary
statistical information and data at the time he issued said letter of instructions, and such factual
foundation cannot be defeated by petitioner's naked assertion that early warning devices 'are not too
vital to the prevention of nighttime vehicular accidents' because allegedly only 390 or 1.5 per cent of
the supposed 26,000 motor vehicle accidents that in 1976 involved rear-end collisions (p. 12 of
petition). Petitioner's statistics is not backed up by demonstrable data on record. As aptly stated by
this Honorable Court: Further: "It admits of no doubt therefore that there being a presumption of
validity, the necessity for evidence to rebut it is unavoidable, unless the statute or ordinance is void on
its face, which is not the case here"' * * *. But even as g the verity of petitioner's statistics, is that not
reason enough to require the installation of early warning devices to prevent another 390 rear-end
collisions that could mean the death of 390 or more Filipinos and the deaths that could likewise result
from head-on or frontal collisions with stalled vehicles?" 30 It is quite manifest then that the issuance of
such Letter of Instruction is encased in the armor of prior, careful study by the Executive Department.
To set it aside for alleged repugnancy to the due process clause is to give sanction to conjectural
claims that exceeded even the broadest permissible limits of a pleader's well known penchant for
exaggeration.

5. The rather wild and fantastic nature of the charge of oppressiveness of this Letter of Instruction was
exposed in the Answer of the Solicitor General thus: "Such early warning device requirement is not
an expensive redundancy, nor oppressive, for car owners whose cars are already equipped with 1)
blinking lights in the fore and aft of said motor vehicles,' 2) "battery-powered blinking lights inside motor
vehicles," 3) "built-in reflectorized tapes on front and rear bumpers of motor vehicles," or 4) "well-
lighted two (2) petroleum lamps (the Kinke) * * * because: Being universal among the signatory
countries to the said 1968 Vienna Conventions, and visible even under adverse conditions at a
distance of at least 400 meters, any motorist from this country or from any part of the world, who sees
a reflectorized rectangular early seaming device installed on the roads, highways or expressways, will
conclude, without thinking, that somewhere along the travelled portion of that road, highway, or
expressway, there is a motor vehicle which is stationary, stalled or disabled which obstructs or
endangers passing traffic. On the other hand, a motorist who sees any of the aforementioned other
built in warning devices or the petroleum lamps will not immediately get adequate advance warning
because he will still think what that blinking light is all about. Is it an emergency vehicle? Is it a law
enforcement car? Is it an ambulance? Such confusion or uncertainty in the mind of the motorist will
thus increase, rather than decrease, the danger of collision. 31

6. Nor did the other extravagant assertions of constitutional deficiency go unrefuted in the Answer of
the Solicitor General "There is nothing in the questioned Letter of Instruction No. 229, as amended, or
in Administrative Order No. 1, which requires or compels motor vehicle owners to purchase the early
warning device prescribed thereby. All that is required is for motor vehicle owners concerned like
petitioner, to equip their motor vehicles with a pair of this early warning device in question, procuring
or obtaining the same from whatever source. In fact, with a little of industry and practical ingenuity,
motor vehicle owners can even personally make or produce this early warning device so long as the
same substantially conforms with the specifications laid down in said letter of instruction and
administrative order. Accordingly the early warning device requirement can neither be oppressive,
onerous, immoral, nor confiscatory, much less does it make manufacturers and dealers of said devices
'instant millionaires at the expense of car owners' as petitioner so sweepingly concludes * * *.
Petitioner's fear that with the early warning device requirement 'a more subtle racket may be committed
by those called upon to enforce it * * * is an unfounded speculation. Besides, that unscrupulous officials
may try to enforce said requirement in an unreasonable manner or to an unreasonable degree, does
not render the same illegal or immoral where, as in the instant case, the challenged Letter of Instruction
No. 229 and implementing order disclose none of the constitutional defects alleged against it.32

7 It does appear clearly that petitioner's objection to this Letter of Instruction is not premised on lack
of power, the justification for a finding of unconstitutionality, but on the pessimistic, not to say negative,
view he entertains as to its wisdom. That approach, it put it at its mildest, is distinguished, if that is the
appropriate word, by its unorthodoxy. It bears repeating "that this Court, in the language of Justice
Laurel, 'does not pass upon questions of wisdom justice or expediency of legislation.' As expressed
by Justice Tuason: 'It is not the province of the courts to supervise legislation and keep it within the
bounds of propriety and common sense. That is primarily and exclusively a legislative concern.' There
can be no possible objection then to the observation of Justice Montemayor. 'As long as laws do not
violate any Constitutional provision, the Courts merely interpret and apply them regardless of whether
or not they are wise or salutary. For they, according to Justice Labrador, 'are not supposed to override
legitimate policy and * * * never inquire into the wisdom of the law.' It is thus settled, to paraphrase
Chief Justice Concepcion in Gonzales v. Commission on Elections, that only congressional power or
competence, not the wisdom of the action taken, may be the basis for declaring a statute invalid. This
is as it ought to be. The principle of separation of powers has in the main wisely allocated the
respective authority of each department and confined its jurisdiction to such a sphere. There would
then be intrusion not allowable under the Constitution if on a matter left to the discretion of a coordinate
branch, the judiciary would substitute its own. If there be adherence to the rule of law, as there ought
to be, the last offender should be courts of justice, to which rightly litigants submit their controversy
precisely to maintain unimpaired the supremacy of legal norms and prescriptions. The attack on the
validity of the challenged provision likewise insofar as there may be objections, even if valid and cogent
on is wisdom cannot be sustained. 33

8. The alleged infringement of the fundamental principle of non-delegation of legislative power is

equally without any support well-settled legal doctrines. Had petitioner taken the trouble to acquaint
himself with authoritative pronouncements from this Tribunal, he would not have the temerity to make
such an assertion. An exempt from the aforecited decision of Edu v. Ericta sheds light on the matter:
"To avoid the taint of unlawful delegation, there must be a standard, which implies at the very least
that the legislature itself determines matters of principle and lays down fundamental policy. Otherwise,
the charge of complete abdication may be hard to repel A standard thus defines legislative policy,
marks its maps out its boundaries and specifies the public agency to apply it. It indicates the
circumstances under which the legislative command is to be effected. It is the criterion by which
legislative purpose may be carried out. Thereafter, the executive or administrative office designated
may in pursuance of the above guidelines promulgate supplemental rules and regulations. The
standard may be either express or implied. If the former, the non-delegation objection is easily met.
The standard though does not have to be spelled out specifically. It could be implied from the policy
and purpose of the act considered as a whole. In the Reflector Law clearly, the legislative objective is
public safety. What is sought to be attained as in Calalang v. Williams is "safe transit upon the roads.'
This is to adhere to the recognition given expression by Justice Laurel in a decision announced not
too long after the Constitution came into force and effect that the principle of non-delegation "has been
made to adapt itself to the complexities of modern governments, giving rise to the adoption, within
certain limits, of the principle of "subordinate legislation" not only in the United States and England but
in practically all modern governments.' He continued: 'Accordingly, with the growing complexity of
modern life, the multiplication of the subjects of governmental regulation, and the increased difficulty
of administering the laws, there is a constantly growing tendency toward the delegation of greater
powers by the legislature and toward the approval of the practice by the courts.' Consistency with the
conceptual approach requires the reminder that what is delegated is authority non-legislative in
character, the completeness of the statute when it leaves the hands of Congress being assumed." 34

9. The conclusion reached by this Court that this petition must be dismissed is reinforced by this
consideration. The petition itself quoted these two whereas clauses of the assailed Letter of Instruction:
"[Whereas], the hazards posed by such obstructions to traffic have been recognized by international
bodies concerned with traffic safety, the 1968 Vienna Convention on Road Signs and Signals and the
United Nations Organization (U.N.); [Whereas], the said Vionna Convention, which was ratified by the
Philippine Government under P.D. No. 207, recommended the enactment of local legislation for the
installation of road safety signs and devices; * * * " 35 It cannot be disputed then that this Declaration
of Principle found in the Constitution possesses relevance: "The Philippines * * * adopts the generally
accepted principles of international law as part of the law of the land * * *." 36 The 1968 Vienna
Convention on Road Signs and Signals is impressed with such a character. It is not for this country to
repudiate a commitment to which it had pledged its word. The concept of Pacta sunt servanda stands
in the way of such an attitude, which is, moreover, at war with the principle of international morality.

10. That is about all that needs be said. The rather court reference to equal protection did not even
elicit any attempt on the Part of Petitioner to substantiate in a manner clear, positive, and categorical
why such a casual observation should be taken seriously. In no case is there a more appropriate
occasion for insistence on what was referred to as "the general rule" in Santiago v. Far Eastern
Broadcasting Co., 37 namely, "that the constitutionality of a law wig not be considered unless the point
is specially pleaded, insisted upon, and adequately argued." 38 "Equal protection" is not a talismanic
formula at the mere invocation of which a party to a lawsuit can rightfully expect that success will crown
his efforts. The law is anything but that.

WHEREFORE, this petition is dismissed. The restraining order is lifted. This decision is immediately
executory. No costs.

Castro, C.J., Barredo, Antonio, Santos, Fernandez, Guerrero, Abad Santos, De Castro and Melencio-
Herrera, concur.

Makasiar, J, reserves the right to file a separate opinion.

Aquino J., took no part.

Concepcion J., is on leave.

Castro, C.J., certifies that Justice Concepcion concurs in their decision.

Separate Opinions

TEEHANKEE, J., dissenting:

I dissent from the majority's peremptory dismissal of the petition and lifting of the restraining order
issued on October 19, 1978 against the blanket enforcement of the requirement that all motor vehicles
be equipped with the so-called early warning device, without even hearing the parties in oral argument
as generally required by the Court in original cases of far-reaching consequence such as the case at
bar.

Lack of time presents my filing an extended dissent. I only wish to state that the petition advances
grave and serious grounds of assailing "the rules and regulations issued by the Land Transportation
Commission under Administrative Order No. 1 and Memorandum Circular No. 32 [which] do not reflect
the real intent, noble objectives and spirit of Letter of Instructions No. 229, as amended by Letter of
Instructions Nos. 479 and 716, because it is oppressive, unreasonable, arbitrary, confiscatory, nay
unconstitutional and contrary to the precepts of our compassionate New Society," because of the
following considerations, inter alia:

1. It is oppressive, arbitrary and discriminatory to require owners of motor vehicles with built-in and
more effective and efficient E.W.D.'S such as "a) blinking lights in the fore and aft of said motor
vehicles, 1)) battery-powered blinking lights inside motor vehicles, c) built-in reflectorized tapes on
front and rear bumpers of motor vehicles....... to purchase the E.W.D. specified in the challenged
administrative order, whose effectivity and utility have yet to be demonstrated.

2. The public necessity for the challenged order has yet to be shown. No valid refutation has been
made of petitioner's assertion that the "E.W.D.'s are not too vital to the prevention of nighttime
vehicular accidents. Statistics shows that of the 26,000 motor vehicle accidents that occurred in 1976,
only 390 or 1.5 per cent involved rear-end collisions," as to require the purchase and installation of the
questioned E.W.D. for almost 900,000 vehicles throughout the country;

3. The big financial burden to be imposed on all motorists is staggering, and petitioner's assertion that
"as of 1975, there were at least 865,037 motor vehicles all over the country requiring E.W.D.'S and at
the minimum price of 1156.00 per set, this would mean a consumer outlay of P 48,451,872.00, or
close to P 50 million for the questioned E.W.D.'S "stands unchallenged;

4. No real effort has been made to show that there can be practical and less burdensome alternative
road safety devices for stalled vehicles than the prescribed E.W.D., such as the common petroleum
lamps "kinke" which can be placed just as effectively in front of stalled vehicles on the highways; and
5. There is no imperative need for imposing such a bet requirement on all vehicles. The respondents
have not shown that they have availed of the powers and prerogatives vested in their offices such as
ridding the country of dilapidated trucks and vehicles which are the main cause of the deplorable -
highway accidents due to stoned vehicles, establishing an honest and foolproof system of examination
and licensing of motor vehicle drivers so as to ban the reckless and irresponsible and a sustained
education campaign to instill safe driving habits and attitudes that can be carried out for much less
than the P 50 million burden that would be imposed by the challenged order.

I do feel that a greater "degree of receptivity and sympathy" could be extended to the petitioner for his
civic mindedness in having filed the present petition g as capricious and unreasonable the "all
pervading police power" of the State instead of throwing the case out of court and leaving the wrong
impression that the exercise of police power insofar as it may affect the life, liberty and property of any
person is no longer subject to judicial inquiry.

# Separate Opinions

TEEHANKEE, J., dissenting:

I dissent from the majority's peremptory dismissal of the petition and lifting of the restraining order
issued on October 19, 1978 against the blanket enforcement of the requirement that all motor vehicles
be equipped with the so-called early warning device, without even hearing the parties in oral argument
as generally required by the Court in original cases of far-reaching consequence such as the case at
bar.

Lack of time presents my filing an extended dissent. I only wish to state that the petition advances
grave and serious grounds of assailing "the rules and regulations issued by the Land Transportation
Commission under Administrative Order No. 1 and Memorandum Circular No. 32 [which] do not reflect
the real intent, noble objectives and spirit of Letter of Instructions No. 229, as amended by Letter of
Instructions Nos. 479 and 716, because it is oppressive, unreasonable, arbitrary, confiscatory, nay
unconstitutional and contrary to the precepts of our compassionate New Society," because of the
following considerations, inter alia:

1. It is oppressive, arbitrary and discriminatory to require owners of motor vehicles with built-in and
more effective and efficient E.W.D.'S such as "a) blinking lights in the fore and aft of said motor
vehicles, 1)) battery-powered blinking lights inside motor vehicles, c) built-in reflectorized tapes on
front and rear bumpers of motor vehicles....... to purchase the E.W.D. specified in the challenged
administrative order, whose effectivity and utility have yet to be demonstrated.

2. The public necessity for the challenged order has yet to be shown. No valid refutation has been
made of petitioner's assertion that the "E.W.D.'s are not too vital to the prevention of nighttime
vehicular accidents. Statistics shows that of the 26,000 motor vehicle accidents that occurred in 1976,
only 390 or 1.5 per cent involved rear-end collisions," as to require the purchase and installation of the
questioned E.W.D. for almost 900,000 vehicles throughout the country;

3. The big financial burden to be imposed on all motorists is staggering, and petitioner's assertion that
"as of 1975, there were at least 865,037 motor vehicles all over the country requiring E.W.D.'S and at
the minimum price of 1156.00 per set, this would mean a consumer outlay of P 48,451,872.00, or
close to P 50 million for the questioned E.W.D.'S "stands unchallenged;
4. No real effort has been made to show that there can be practical and less burdensome alternative
road safety devices for stalled vehicles than the prescribed E.W.D., such as the common petroleum
lamps "kinke" which can be placed just as effectively in front of stalled vehicles on the highways; and

5. There is no imperative need for imposing such a bet requirement on all vehicles. The respondents
have not shown that they have availed of the powers and prerogatives vested in their offices such as
ridding the country of dilapidated trucks and vehicles which are the main cause of the deplorable -
highway accidents due to stoned vehicles, establishing an honest and foolproof system of examination
and licensing of motor vehicle drivers so as to ban the reckless and irresponsible and a sustained
education campaign to instill safe driving habits and attitudes that can be carried out for much less
than the P 50 million burden that would be imposed by the challenged order.

I do feel that a greater "degree of receptivity and sympathy" could be extended to the petitioner for his
civic mindedness in having filed the present petition g as capricious and unreasonable the "all
pervading police power" of the State instead of throwing the case out of court and leaving the wrong
impression that the exercise of police power insofar as it may affect the life, liberty and property of any
person is no longer subject to judicial inquiry.
G.R. No. L-65366 November 9, 1983

JOSE B.L. REYES, in behalf of the ANTI-BASES COALITION (ABC), petitioner,

vs.
RAMON BAGATSING, as Mayor of the City of Manila, respondent.

Lorenzo M. Tañada Jose W. Diokno and Haydee B. Yorac for petitioner.

The Solicitor General for respondent.

FERNANDO, C.J.: ñé+.£ªwph! 1

This Court, in this case of first impression, at least as to some aspects, is called upon to delineate the
boundaries of the protected area of the cognate rights to free speech and peaceable
assembly, 1 against an alleged intrusion by respondent Mayor Ramon Bagatsing. Petitioner, retired
Justice JB L. Reyes, on behalf of the Anti-Bases Coalition sought a permit from the City of Manila to
hold a peaceful march and rally on October 26, 1983 from 2:00 to 5:00 in the afternoon, starting from
the Luneta, a public park, to the gates of the United States Embassy, hardly two blocks away. Once
there, and in an open space of public property, a short program would be held. 2 During the course of
the oral argument, 3 it was stated that after the delivery of two brief speeches, a petition based on the
resolution adopted on the last day by the International Conference for General Disbarmament, World
Peace and the Removal of All Foreign Military Bases held in Manila, would be presented to a
representative of the Embassy or any of its personnel who may be there so that it may be delivered to
the United States Ambassador. The march would be attended by the local and foreign participants of
such conference. There was likewise an assurance in the petition that in the exercise of the
constitutional rights to free speech and assembly, all the necessary steps would be taken by it "to
ensure a peaceful march and rally." 4

The filing of this suit for mandamus with alternative prayer for writ of preliminary mandatory injunction
on October 20, 1983 was due to the fact that as of that date, petitioner had not been informed of any
action taken on his request on behalf of the organization to hold a rally. On October 25, 1983, the
answer of respondent Mayor was filed on his behalf by Assistant Solicitor General Eduardo G.
Montenegro. 5 It turned out that on October 19, such permit was denied. Petitioner was unaware of
such a fact as the denial was sent by ordinary mail. The reason for refusing a permit was due to police
intelligence reports which strongly militate against the advisability of issuing such permit at this time
and at the place applied for." 6 To be more specific, reference was made to persistent intelligence
reports affirm[ing] the plans of subversive/criminal elements to infiltrate and/or disrupt any assembly
or congregations where a large number of people is expected to attend." 7 Respondent Mayor
suggested, however, in accordance with the recommendation of the police authorities, that "a permit
may be issued for the rally if it is to be held at the Rizal Coliseum or any other enclosed area where
the safety of the participants themselves and the general public may be ensured." 8

The oral argument was heard on October 25, 1983, the very same day the answer was filed. The
Court then deliberated on the matter. That same afternoon, a minute resolution was issued by the
Court granting the mandatory injunction prayed for on the ground that there was no showing of the
existence of a clear and present danger of a substantive evil that could justify the denial of a permit.
On this point, the Court was unanimous, but there was a dissent by Justice Aquino on the ground that
the holding of a rally in front of the US Embassy would be violative of Ordinance No. 7295 of the City
of Manila. The last sentence of such minute resolution reads: "This resolution is without prejudice to a
more extended opinion." 9 Hence this detailed exposition of the Court's stand on the matter.
1. It is thus clear that the Court is called upon to protect the exercise of the cognate rights to free
speech and peaceful assembly, arising from the denial of a permit. The Constitution is quite explicit:
"No law shall be passed abridging the freedom of speech, or of the press, or the right of the people
peaceably to assemble and petition the Government for redress of grievances." 10 Free speech, like
free press, may be Identified with the liberty to discuss publicly and truthfully any matter of public
concern without censorship or punishment. 11 There is to be then no previous restraint on the
communication of views or subsequent liability whether in libel suits, 12 prosecution for sedition, 13 or
action for damages, 14 or contempt proceedings 15 unless there be a clear and present danger of a
substantive evil that [the State] has a right to prevent." 16 Freedom of assembly connotes the right
people to meet peaceably for consultation and discussion of matters Of public concern.17 It is entitled
to be accorded the utmost deference and respect. It is hot to be limited, much less denied, except on
a showing, as 's the case with freedom of expression, of a clear and present danger of a substantive
evil that the state has a right to prevent. 18 Even prior to the 1935 Constitution, Justice Maicolm had
occasion to stress that it is a necessary consequence of our republican institutions and complements
the right of free speech. 19 To paraphrase opinion of Justice Rutledge speaking for the majority of
the American Supreme Court Thomas v. Collins, 20 it was not by accident or coincidence that the right
to freedom of speech and of the press were toupled in a single guarantee with the and to petition the
rights of the people peaceably to assemble and to petition the government for redress of grievances.
All these rights, while not Identical, are inseparable. the every case, therefo re there is a limitation
placed on the exercise of this right, the judiciary is called upon to examine the effects of the challenged
governmental actuation. The sole justification for a limitation on the exercise of this right, so
fundamental to the maintenance of democratic institutions, is the danger, of a character both grave
and imminent, of a serious evil to public safety, public morals, public health, or any other legitimate
public interest. 21

2. Nowhere is the rationale that underlies the freedom of expression and peaceable assembly better
expressed than in this excerpt from an opinion of Justice Frankfurter: "It must never be forgotten,
however, that the Bill of Rights was the child of the Enlightenment. Back of the guaranty of free speech
lay faith in the power of an appeal to reason by all the peaceful means for gaining access to the mind.
It was in order to avert force and explosions due to restrictions upon rational modes of communication
that the guaranty of free speech was given a generous scope. But utterance in a context of violence
can lose its significance as an appeal to reason and become part of an instrument of force. Such
utterance was not meant to be sheltered by the Constitution." 22 What was rightfully stressed is the
abandonment of reason, the utterance, whether verbal or printed, being in a context of violence. It
must always be remembered that this right likewise provides for a safety valve, allowing parties the
opportunity to give vent to their-views, even if contrary to the prevailing climate of opinion. For if the
peaceful means of communication cannot be availed of, resort to non-peaceful means may be the only
alternative. Nor is this the sole reason for the expression of dissent. It means more than just the right
to be heard of the person who feels aggrieved or who is dissatisfied with things as they are. Its value
may lie in the fact that there may be something worth hearing from the dissenter. That is to ensure a
true ferment of Ideas. There are, of course, well-defined limits. What is guaranteed is peaceable
assembly. One may not advocate disorder in the name of protest, much less preach rebellion under
the cloak of dissent. The Constitution frowns on disorder or tumult attending a rally or assembly. resort
to force is ruled out and outbreaks of violence to be avoided. The utmost calm though is not required.
As pointed out in an early Philippine case, penned in 1907 to be precise, United States v. Apurado: 23 "It
is rather to be expected that more or less disorder will mark the public assembly of the people to
protest against grievances whether real or imaginary, because on such occasions feeling is always
wrought to a high pitch of excitement, and the greater the grievance and the more intense the feeling,
the less perfect, as a rule, will be the disciplinary control of the leaders over their irresponsible
followers." 24 It bears repeating that for the constitutional right to be invoked, riotous conduct, injury to
property, and acts of vandalism must be avoided, To give free rein to one's destructive urges is to call
for condemnation. It is to make a mockery of the high estate occupied by intellectual liberty in our
scheme of values.
3. There can be no legal objection, absent the existence of a clear and present danger of a substantive
evil, on the choice of Luneta as the place where the peace rally would start. The Philippines is
committed to the view expressed in the plurality opinion, of 1939 vintage, of Justice Roberts in Hague
v. CIO: 25 Whenever the title of streets and parks may rest, they have immemorially been held in trust
for the use of the public and, time out of mind, have been used for purposes of assembly,
communicating thoughts between citizens, and discussing public questions. Such use of the streets
and public places has, from ancient times, been a part of the privileges, immunities, rights, and liberties
of citizens. The privilege of a citizen of the United States to use the streets and parks for
communication of views on national questions may be regulated in the interest of all; it is not absolute,
but relative, and must be exercised in subordination to the general comfort and convenience, and in
consonance with peace and good order; but it must not, in the guise of regulation, be abridged or
denied. 26 The above excerpt was quoted with approval in Primicias v. Fugoso. 27 Primicias made
explicit what was implicit in Municipality of Cavite v. Rojas," 28 a 1915 decision, where this Court
categorically affirmed that plazas or parks and streets are outside the commerce of man and thus
nullified a contract that leased Plaza Soledad of plaintiff-municipality. Reference was made to such
plaza "being a promenade for public use," 29 which certainly is not the only purpose that it could serve.
To repeat, there can be no valid reason why a permit should not be granted for the or oposed march
and rally starting from a public dark that is the Luneta.

4. Neither can there be any valid objection to the use of the streets, to the gates of the US Embassy,
hardly two block-away at the Roxas Boulevard. Primicias v. Fugoso has resolved any lurking doubt on
the matter. In holding that the then Mayor Fugoso of the City of Manila should grant a permit for a
public meeting at Plaza Miranda in Quiapo, this Court categorically declared: "Our conclusion finds
support in the decision in the case of Willis Cox vs. State of New Hampshire, 312 U.S., 569. In that
case, the statute of New Hampshire P. L. chap. 145, section 2, providing that 'no parade or procession
upon any ground abutting thereon, shall 'De permitted unless a special license therefor shall first be
explained from the selectmen of the town or from licensing committee,' was construed by the Supreme
Court of New Hampshire as not conferring upon the licensing board unfettered discretion to refuse to
grant the license, and held valid. And the Supreme Court of the United States, in its decision (1941)
penned by Chief Justice Hughes affirming the judgment of the State Supreme Court, held that 'a
statute requiring persons using the public streets for a parade or procession to procure a special
license therefor from the local authorities is not an unconstitutional abridgment of the rights of
assembly or of freedom of speech and press, where, as the statute is construed by the state courts,
the licensing authorities are strictly limited, in the issuance of licenses, to a consideration of the time,
place, and manner of the parade or procession, with a view to conserving the public convenience and
of affording an opportunity to provide proper policing, and are not invested with arbitrary discretion to
issue or refuse license, ... " 30 Nor should the point made by Chief Justice Hughes in a subsequent
portion of the opinion be ignored, "Civil liberties, as guaranteed by the Constitution, imply the existence
of an organized society maintaining public order without which liberty itself would be lost in the
excesses of unrestricted abuses. The authority of a municipality to impose regulations in order to
assure the safety and convenience of the people in the use of public highways has never been
regarded as inconsistent with civil liberties but rather as one of the means of safeguarding the good
order upon which they ultimately depend. The control of travel on the streets of cities is the most
familiar illustration of this recognition of social need. Where a restriction of the use of highways in that
relation is designed to promote the public convenience in the interest of all, it cannot be disregarded
by the attempted exercise of some civil right which in other circumstances would be entitled to
protection." 31

5. There is a novel aspect to this case, If the rally were confined to Luneta, no question, as noted,
would have arisen. So, too, if the march would end at another park. As previously mentioned though,
there would be a short program upon reaching the public space between the two gates of the United
States Embassy at Roxas Boulevard. That would be followed by the handing over of a petition based
on the resolution adopted at the closing session of the Anti-Bases Coalition. The Philippines is a
signatory of the Vienna Convention on Diplomatic Relations adopted in 1961. It was concurred in by
the then Philippine Senate on May 3, 1965 and the instrument of ratification was signed by the
President on October 11, 1965, and was thereafter deposited with the Secretary General of the United
Nations on November 15. As of that date then, it was binding on the Philippines. The second paragraph
of the Article 22 reads: "2. The receiving State is under a special duty to take appropriate steps to
protect the premises of the mission against any intrusion or damage and to prevent any disturbance
of the peace of the mission or impairment of its dignity. " 32 The Constitution "adopts the generally
accepted principles of international law as part of the law of the land. ..." 33 To the extent that the Vienna
Convention is a restatement of the generally accepted principles of international law, it should be a
part of the law of the land. 34 That being the case, if there were a clear and present danger of any
intrusion or damage, or disturbance of the peace of the mission, or impairment of its dignity, there
would be a justification for the denial of the permit insofar as the terminal point would be the Embassy.
Moreover, respondent Mayor relied on Ordinance No. 7295 of the City of Manila prohibiting the holding
or staging of rallies or demonstrations within a radius of five hundred (500) feet from any foreign
mission or chancery and for other purposes. Unless the ordinance is nullified, or declared ultra
vires, its invocation as a defense is understandable but not decisive, in view of the primacy accorded
the constitutional rights of free speech and peaceable assembly. Even if shown then to be applicable,
that question the confronts this Court.

6. There is merit to the observation that except as to the novel aspects of a litigation, the judgment
must be confined within the limits of previous decisions. The law declared on past occasions is, on the
whole, a safe guide, So it has been here. Hence, as noted, on the afternoon of the hearing, October
25, 1983, this Court issued the minute resolution granting the mandatory injunction allowing the
proposed march and rally scheduled for the next day. That conclusion was inevitable ill the absence
of a clear and present danger of a substantive, evil to a legitimate public interest. There was no
justification then to deny the exercise of the constitutional rights of tree speech and peaceable
assembly. These rights are assured by our Constitution and the Universal Declaration of Human
Rights. 35 The participants to such assembly, composed primarily of those in attendance at the
International Conference for General Disbarmament, World Peace and the Removal of All Foreign
Military Bases would start from the Luneta. proceeding through Roxas Boulevard to the gates of the
United States Embassy located at the same street. To repeat, it is settled law that as to public places,
especially so as to parks and streets, there is freedom of access. Nor is their use dependent on who
is the applicant for the permit, whether an individual or a group. If it were, then the freedom of access
becomes discriminatory access, giving rise to an equal protection question. The principle under
American doctrines was given utterance by Chief Justice Hughes in these words: "The question, if the
rights of free speech and peaceable assembly are to be preserved, is not as to the auspices under
which the meeting is held but as to its purpose; not as to The relations of the speakers, but whether
their utterances transcend the bounds of the freedom of speech which the Constitution
protects." 36 There could be danger to public peace and safety if such a gathering were marked by
turbulence. That would deprive it of its peaceful character. Even then, only the guilty parties should be
held accountable. It is true that the licensing official, here respondent Mayor, is not devoid of discretion
in determining whether or not a permit would be granted. It is not, however, unfettered discretion.
While prudence requires that there be a realistic appraisal not of what may possibly occur but of what
may probably occur, given all the relevant circumstances, still the assumption — especially so where
the assembly is scheduled for a specific public — place is that the permit must be for the assembly
being held there. The exercise of such a right, in the language of Justice Roberts, speaking for the
American Supreme Court, is not to be "abridged on the plea that it may be exercised in some other
place." 37

7. In fairness to respondent Mayor, he acted on the belief that Navarro v. Villegas 38 and Pagkakaisa
ng Manggagawang Pilipino (PMP.) v. Bagatsing, 39 called for application. While the General rule is that
a permit should recognize the right of the applicants to hold their assembly at a public place of their
choice, another place may be designated by the licensing authority if it be shown that there is a clear
and present danger of a substantive evil if no such change were made. In the Navarro and the
Pagkakaisa decisions, this Court was persuaded that the clear and present danger test was satisfied.
The present situation is quite different. Hence the decision reached by the Court. The mere assertion
that subversives may infiltrate the ranks of the demonstrators does not suffice. Not that it should be
overlooked. There was in this case, however, the assurance of General Narciso Cabrera,
Superintendent, Western Police District, Metropolitan Police Force, that the police force is in a position
to cope with such emergency should it arise That is to comply with its duty to extend protection to the
participants of such peaceable assembly. Also from him came the commendable admission that there
were the least five previous demonstrations at the Bayview hotel Area and Plaza Ferguson in front of
the United States Embassy where no untoward event occurred. It was made clear by petitioner,
through counsel, that no act offensive to the dignity of the United States Mission in the Philippines
would take place and that, as mentioned at the outset of this opinion, "all the necessary steps would
be taken by it 'to ensure a peaceful march and rally.' " 40 Assistant Solicitor General Montenegro
expressed the view that the presence of policemen may in itself be a provocation. It is a sufficient
answer that they should stay at a discreet distance, but ever ready and alert to cope with any
contingency. There is no need to repeat what was pointed out by Chief Justice Hughes in Cox that
precisely, it is the duty of the city authorities to provide the proper police protection to those exercising
their right to peaceable assembly and freedom of expression.

8. By way of a summary The applicants for a permit to hold an assembly should inform the licensing
authority of the date, the public place where and the time when it will take place. If it were a private
place, only the consent of the owner or the one entitled to its legal possession is required. Such
application should be filed well ahead in time to enable the public official concerned to appraise
whether there may be valid objections to the grant of the permit or to its grant but at another public
place. It is an indispensable condition to such refusal or modification that the clear and present danger
test be the standard for the decision reached. If he is of the view that there is such an imminent and
grave danger of a substantive evil, the applicants must be heard on the matter. Thereafter, his
decision, whether favorable or adverse, must be transmitted to them at the earliest opportunity. Thus
if so minded, then, can have recourse to the proper judicial authority. Free speech and peaceable
assembly, along with the other intellectual freedoms, are highly ranked in our scheme of constitutional
values. It cannot be too strongly stressed that on the judiciary, — even more so than on the other
departments — rests the grave and delicate responsibility of assuring respect for and deference to
such preferred rights. No verbal formula, no sanctifying phrase can, of course, dispense with what has
been so felicitiously termed by Justice Holmes "as the sovereign prerogative of judgment."
Nonetheless, the presumption must be to incline the weight of the scales of justice on the side of such
rights, enjoying as they do precedence and primacy. Clearly then, to the extent that there may be
inconsistencies between this resolution and that of Navarro v. Villegas, that case is pro tanto modified.
So it was made clear in the original resolution of October 25, 1983.

9. Respondent Mayor posed the issue of the applicability of Ordinance No. 7295 of the City of Manila
prohibiting the holding or staging of rallies or demonstrations within a radius of five hundred (500) feet
from any foreign mission or chancery and for other purposes. It is to be admitted that it finds support
In the previously quoted Article 22 of the Vienna Convention on Diplomatic Relations. There was no
showing, however, that the distance between the chancery and the embassy gate is less than 500
feet. Even if it could be shown that such a condition is satisfied. it does not follow that respondent
Mayor could legally act the way he did. The validity of his denial of the permit sought could still be
challenged. It could be argued that a case of unconstitutional application of such ordinance to the
exercise of the right of peaceable assembly presents itself. As in this case there was no proof that the
distance is less than 500 feet, the need to pass on that issue was obviated, Should it come, then the
qualification and observation of Justices Makasiar and Plana certainly cannot be summarily brushed
aside. The high estate accorded the rights to free speech and peaceable assembly demands nothing
less.
10. Ordinarily, the remedy in cases of this character is to set aside the denial or the modification of the
permit sought and order the respondent official, to grant it. Nonetheless, as there was urgency in this
case, the proposed march and rally being scheduled for the next day after the hearing, this Court. in
the exercise of its conceded authority, granted the mandatory injunction in the resolution of October
25, 1983. It may be noted that the peaceful character of the peace march and rally on October 26 was
not marred by any untoward incident. So it has been in other assemblies held elsewhere. It is quite
reassuring such that both on the part of the national government and the citizens, reason and
moderation have prevailed. That is as it should be.

WHEREFORE, the mandatory injunction prayed for is granted. No costs.

Concepcion, Jr., Guerrero, Melencio-Herrera, Escolin, Relova and Gutierrez, , Jr.,JJ., concur.

De Castro, J, is on leave.

Separate Opinions

TEEHANKEE, J., concurring:

The Chief Justice's opinion of the Court reaffirms the doctrine of Primicias vs. Fugoso 1 that "the right
to freedom of speech and to peacefully assemble and petition the government for redress of
grievances are fundamental personal rights of the people recognized and guaranteed by the
constitutions of democratic countries" and that the city or town mayors are not conferred "the power
to refuse to grant the permit, but only the discretion, in issuing the permit, to determine or specify the
streets or public places where the parade or procession may pass or the meeting may be held." The
most recent graphic demonstration of what this great right of peaceful assembly and petition for
redress of grievances could accomplish was the civil rights march on Washington twenty years ago
under the late assassinated black leader Martin Luther King, Jr. (whose birthday has now been
declared an American national holiday) which subpoenaed the conscience of the nation," and
awakened the conscience of millions of previously indifferent Americans and eventually (after many
disorders and riots yet to come) was to put an end to segregation and discrimination against the
American Negro.

The procedure for the securing of such permits for peaceable assembly is succintly set forth in the
summary given by the Court Justice in paragraph 8 of the Court's opinion, with the injunction that "the
presumption must be to incline the weight of the scales of justice on the side of such rights, enjoying
as they do, precedence and primacy," The exception of the clear and present danger rule, which alone
would warrant a limitation of these fundamental rights, is therein restated in paragraph 1, thus: "The
sole justification for a limitation on the exercise of this right, so fundamental to the maintenance of
democratic institutions, is the danger, of a character both grave and imminent, of a serious evil to
public safety, public morals, public health, or any other legitimate public interest. "
It bears emphasis that the burden to show the existence of grave and imminent danger that would
justify adverse action on the application lies on the mayor as licensing authority. There must be
objective and convincing, not subjective or conjectural proof of the existence of such clear and present
danger. As stated in our Resolution of October 25, 1983, which granted the mandatory injunction as
prayed for, "It is essential for the validity of a denial of a permit which amounts to a previous restraint
or censorship that the licensing authority does not rely solely on his own appraisal of what public
welfare, peace or safety may require. To justify such a limitation there must be proof of such weight
and sufficiency to satisfy the clear and present danger test. The possibility that subversives may
infiltrate the ranks of the demonstrators is not enough." As stated by Justice Brandeis in his concurring
opinion in Whitney vs. California. 2têñ.£îhqw â£

Fear of serious injury cannot alone justify suppression of free speech and assembly.
Men feared witches and burned women. It is the function of speech to free men from
the bondage of irrational fears. To justify suppression of free speech there must be
reasonable ground to fear that serious evil will result if free speech is practiced. There
must be reasonable ground to believe that the danger apprehended is imminent. There
must be reasonable ground to believe that the evil to be prevented is a serious one *
* *.

Those who won our independence by revolution were not cowards. They did not fear
political change. They did not exalt order at the cost of liberty. * * *

Moreover, even imminent danger cannot justify resort to prohibition of these functions
essential (for) effective democracy, unless the evil apprehended is relatively serious.
Prohibition of free speech and assembly is a measure so stringent that it would be
inappropriate as the means for averting a relatively trivial harm to a society. * * * The
fact that speech is likely to result in some violence or in destruction of property is not
enough to justify its suppression. There must be the probability of serious injury to the
state. Among freemen the deterrents ordinarily to be applied to prevent crimes are
education and punishment for violations of the law, not abridgment of the rights of free
speech and assembly. (Emphasis supplied)

The Court's opinion underscores that the exercise of the right is not to be "abridged on the plea that it
may be exercised in some other place" (paragraph 6), and that "it is the duty of the city authorities to
provide the proper police protection to those exercising their right to peaceable assembly and freedom
of expression," (at page 14) The U.S. Supreme Court's pronouncement in Hague vs. Committee for
Industrial Organization 3 cited in Fugoso is worth repeating: têñ.£îhqw â£

* * * Wherever the title of streets and parks may rest, they have immemorially been
held in trust for the use of the public and, time out of mind, have been used for
purposes of assembly, communicating thoughts between citizens, and discussing
public questions. Such use of the streets and public places has, from ancient times,
been a part of the privileges, immunities, rights, and liberties of citizens. The privilege
of a citizen * * * to use the streets and parks for communication of views on national
questions may be regulated in the interest of all; it is not absolute, but relative, and
must be exercised in subordination to the general comfort and convenience, and in
consonance with peace and good order; but it must not, in the guise of regulation, be
abridged or denied.

We think the court below was right in holding the ordinance quoted in Note I void upon
its face. It does not make comfort or convenience in the use of streets or parks the
standard of official action. It enables the Director of Safety to refuse a permit on his
 mere opinion that such refusal will prevent 'riots, disturbances or disorderly
assemblage. It can thus, as the record discloses, be made the instrument of arbitrary
suppression of free expression of views on national affairs for the prohibition of all
speaking will undoubtedly 'prevent' such eventualities. But uncontrolled official
suppression of the privilege cannot be made a substitute for the duty to maintain order
in connection with the exercise of the right. (Emphasis supplied)

Needless to say, the leaders of the peaceable assembly should take all the necessary measures to
ensure a peaceful march and assembly and to avoid the possibility of infiltrators and troublemakers
disrupting the same, concommitantly with the duty of the police to extend protection to the participants
"staying at a discreet distance, but ever ready and alert to perform their duty." But should any disorderly
conduct or incidents occur, whether provoked or otherwise, it is well to recall former Chief Justice
Ricardo Paras' injunction in his concurring opinion in Fugoso, citing the 1907 case of U.S. vs.
Apurado, 4 that such instances of "disorderly conduct by individual members of a crowd (be not seized)
as an excuse to characterize the assembly as a seditious and tumultuous rising against the authorities"
and render illusory the right of peaceable assembly, thus: têñ.£îhqw â£

It is rather to be expected that more or less disorder will mark the public assembly of
the people to protest against grievances whether real or imaginary, because on such
occasions feeling is always wrought to a high pitch of excitement, and the greater the
grievance and the more intense the feeling, the less perfect, as a rule, will the
disciplinary control of the leaders over their irresponsible followers. But if the
prosecution be permitted to seize upon every instance of such disorderly conduct by
individual members of a crowd as an excuse to characterize the assembly as a
seditious and tumultous rising against the authorities, 'then the right to assemble and
to petition for redress of grievances would become a delusion and snare and the
attempt to exercise it on the most righteous occasion and in the most peaceable
manner would expose all those who took part therein to the severest and most
unmerited punishment, if the purposes which they sought to attain did not happen to
be pleasing to the prosecuting authorities. If instances of disorderly conduct occur on
such occasions, the guilty individuals should be sought out and punished therefor.
(Emphasis supplied).

As it turned out, the demonstration was held on October 26, 1983 peaceably and without any untoward
event or evil result, as pledged by the organizers (like at least five previous peaceful demonstrations
in the area). However, even if there had been any incidents of disorder, this would in no way show the
Court's mandatory injunction to have been wrongfully issued. The salutary desire on the part of
respondent to prevent disorder cannot be pursued by the unjustified denial and suppression of the
people's basic rights, which would thereby turn out to be mere paper rights.

MAKASIAR, J., concurring:

With the justification that in case of conflict, the Philippine Constitution — particularly the Bill of Rights
— should prevail over the Vienna Convention.

ABAD SANTOS, J., concurring:

To add anything to the learned opinion of the Chief Justice is like bringing coal to Newcastle, I just
want to state for the record that I voted for the issuance ex-parte of a preliminary mandatory injunction.

PLANA, J., concurring:

On the whole, I concur in the learned views of the distinguished Chief Justice. I would like however to
voice a reservation regarding Ordinance No. 7295 of the City of Manila which has been invoked by
the respondent.

The main opinion yields the implication that a rally or demonstration made within 500 feet from the
chancery of a foreign embassy would be banned for coming within the terms of the prohibition of the
cited Ordinance which was adopted, so it is said, precisely to implement a treaty obligation of the
Philippines under the 1961 Vienna Convention on Diplomatic Relations.

In my view, without saying that the Ordinance is obnoxious per se to the constitution, it cannot be
validly invoked whenever its application would collide with a constitutionally guaranteed right such as
freedom of assembly and/or expression, as in the case at bar, regardless of whether the chancery of
any foreign embassy is beyond or within 500 feet from the situs of the rally or demonstration.

AQUINO, J., dissenting:

Voted to dismiss the petition on the ground that the holding of the rally in front of the US Embassy
violates Ordinance No. 7295 of the City of Manila.

Separate Opinions

TEEHANKEE, J., concurring:

The Chief Justice's opinion of the Court reaffirms the doctrine of Primicias vs. Fugoso 1 that "the right
to freedom of speech and to peacefully assemble and petition the government for redress of
grievances are fundamental personal rights of the people recognized and guaranteed by the
constitutions of democratic countries" and that the city or town mayors are not conferred "the power
to refuse to grant the permit, but only the discretion, in issuing the permit, to determine or specify the
streets or public places where the parade or procession may pass or the meeting may be held." The
most recent graphic demonstration of what this great right of peaceful assembly and petition for
redress of grievances could accomplish was the civil rights march on Washington twenty years ago
under the late assassinated black leader Martin Luther King, Jr. (whose birthday has now been
declared an American national holiday) which subpoenaed the conscience of the nation," and
awakened the conscience of millions of previously indifferent Americans and eventually (after many
disorders and riots yet to come) was to put an end to segregation and discrimination against the
American Negro.
The procedure for the securing of such permits for peaceable assembly is succintly set forth in the
summary given by the Court Justice in paragraph 8 of the Court's opinion, with the injunction that "the
presumption must be to incline the weight of the scales of justice on the side of such rights, enjoying
as they do, precedence and primacy," The exception of the clear and present danger rule, which alone
would warrant a limitation of these fundamental rights, is therein restated in paragraph 1, thus: "The
sole justification for a limitation on the exercise of this right, so fundamental to the maintenance of
democratic institutions, is the danger, of a character both grave and imminent, of a serious evil to
public safety, public morals, public health, or any other legitimate public interest. "

It bears emphasis that the burden to show the existence of grave and imminent danger that would
justify adverse action on the application lies on the mayor as licensing authority. There must be
objective and convincing, not subjective or conjectural proof of the existence of such clear and present
danger. As stated in our Resolution of October 25, 1983, which granted the mandatory injunction as
prayed for, "It is essential for the validity of a denial of a permit which amounts to a previous restraint
or censorship that the licensing authority does not rely solely on his own appraisal of what public
welfare, peace or safety may require. To justify such a limitation there must be proof of such weight
and sufficiency to satisfy the clear and present danger test. The possibility that subversives may
infiltrate the ranks of the demonstrators is not enough." As stated by Justice Brandeis in his concurring
opinion in Whitney vs. California. 2têñ.£îhqw â£

Fear of serious injury cannot alone justify suppression of free speech and assembly.
Men feared witches and burned women. It is the function of speech to free men from
the bondage of irrational fears. To justify suppression of free speech there must be
reasonable ground to fear that serious evil will result if free speech is practiced. There
must be reasonable ground to believe that the danger apprehended is imminent. There
must be reasonable ground to believe that the evil to be prevented is a serious one *
* *.

Those who won our independence by revolution were not cowards. They did not fear
political change. They did not exalt order at the cost of liberty. * * *

Moreover, even imminent danger cannot justify resort to prohibition of these functions
essential (for) effective democracy, unless the evil apprehended is relatively serious.
Prohibition of free speech and assembly is a measure so stringent that it would be
inappropriate as the means for averting a relatively trivial harm to a society. * * * The
fact that speech is likely to result in some violence or in destruction of property is not
enough to justify its suppression. There must be the probability of serious injury to the
state. Among freemen the deterrents ordinarily to be applied to prevent crimes are
education and punishment for violations of the law, not abridgment of the rights of free
speech and assembly. (Emphasis supplied)

The Court's opinion underscores that the exercise of the right is not to be "abridged on the plea that it
may be exercised in some other place" (paragraph 6), and that "it is the duty of the city authorities to
provide the proper police protection to those exercising their right to peaceable assembly and freedom
of expression," (at page 14) The U.S. Supreme Court's pronouncement in Hague vs. Committee for
Industrial Organization 3 cited in Fugoso is worth repeating: têñ.£îhqw â£

* * * Wherever the title of streets and parks may rest, they have immemorially been
held in trust for the use of the public and, time out of mind, have been used for
purposes of assembly, communicating thoughts between citizens, and discussing
public questions. Such use of the streets and public places has, from ancient times,
been a part of the privileges, immunities, rights, and liberties of citizens. The privilege
 of a citizen * * * to use the streets and parks for communication of views on national
questions may be regulated in the interest of all; it is not absolute, but relative, and
must be exercised in subordination to the general comfort and convenience, and in
consonance with peace and good order; but it must not, in the guise of regulation, be
abridged or denied.

We think the court below was right in holding the ordinance quoted in Note I void upon
its face. It does not make comfort or convenience in the use of streets or parks the
standard of official action. It enables the Director of Safety to refuse a permit on his
mere opinion that such refusal will prevent 'riots, disturbances or disorderly
assemblage. It can thus, as the record discloses, be made the instrument of arbitrary
suppression of free expression of views on national affairs for the prohibition of all
speaking will undoubtedly 'prevent' such eventualities. But uncontrolled official
suppression of the privilege cannot be made a substitute for the duty to maintain order
in connection with the exercise of the right. (Emphasis supplied)

Needless to say, the leaders of the peaceable assembly should take all the necessary measures to
ensure a peaceful march and assembly and to avoid the possibility of infiltrators and troublemakers
disrupting the same, concommitantly with the duty of the police to extend protection to the participants
"staying at a discreet distance, but ever ready and alert to perform their duty." But should any disorderly
conduct or incidents occur, whether provoked or otherwise, it is well to recall former Chief Justice
Ricardo Paras' injunction in his concurring opinion in Fugoso, citing the 1907 case of U.S. vs.
Apurado, 4 that such instances of "disorderly conduct by individual members of a crowd (be not seized)
as an excuse to characterize the assembly as a seditious and tumultuous rising against the authorities"
and render illusory the right of peaceable assembly, thus: têñ.£îhqw â£

It is rather to be expected that more or less disorder will mark the public assembly of
the people to protest against grievances whether real or imaginary, because on such
occasions feeling is always wrought to a high pitch of excitement, and the greater the
grievance and the more intense the feeling, the less perfect, as a rule, will the
disciplinary control of the leaders over their irresponsible followers. But if the
prosecution be permitted to seize upon every instance of such disorderly conduct by
individual members of a crowd as an excuse to characterize the assembly as a
seditious and tumultous rising against the authorities, 'then the right to assemble and
to petition for redress of grievances would become a delusion and snare and the
attempt to exercise it on the most righteous occasion and in the most peaceable
manner would expose all those who took part therein to the severest and most
unmerited punishment, if the purposes which they sought to attain did not happen to
be pleasing to the prosecuting authorities. If instances of disorderly conduct occur on
such occasions, the guilty individuals should be sought out and punished therefor.
(Emphasis supplied).

As it turned out, the demonstration was held on October 26, 1983 peaceably and without any untoward
event or evil result, as pledged by the organizers (like at least five previous peaceful demonstrations
in the area). However, even if there had been any incidents of disorder, this would in no way show the
Court's mandatory injunction to have been wrongfully issued. The salutary desire on the part of
respondent to prevent disorder cannot be pursued by the unjustified denial and suppression of the
people's basic rights, which would thereby turn out to be mere paper rights.

MAKASIAR, J., concurring:

With the justification that in case of conflict, the Philippine Constitution — particularly the Bill of Rights
— should prevail over the Vienna Convention.

ABAD SANTOS, J., concurring:

To add anything to the learned opinion of the Chief Justice is like bringing coal to Newcastle, I just
want to state for the record that I voted for the issuance ex-parte of a preliminary mandatory injunction.

PLANA, J., concurring:

On the whole, I concur in the learned views of the distinguished Chief Justice. I would like however to
voice a reservation regarding Ordinance No. 7295 of the City of Manila which has been invoked by
the respondent.

The main opinion yields the implication that a rally or demonstration made within 500 feet from the
chancery of a foreign embassy would be banned for coming within the terms of the prohibition of the
cited Ordinance which was adopted, so it is said, precisely to implement a treaty obligation of the
Philippines under the 1961 Vienna Convention on Diplomatic Relations.

In my view, without saying that the Ordinance is obnoxious per se to the constitution, it cannot be
validly invoked whenever its application would collide with a constitutionally guaranteed right such as
freedom of assembly and/or expression, as in the case at bar, regardless of whether the chancery of
any foreign embassy is beyond or within 500 feet from the situs of the rally or demonstration.

AQUINO, J., dissenting:

Voted to dismiss the petition on the ground that the holding of the rally in front of the US Embassy
violates Ordinance No. 7295 of the City of Manila.