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.

CASE DIGEST:

Kuroda vs Jalandoni 83 Phil 171

Facts

Shinegori Kuroda, a former Lieutenant-General of the Japanese Imperial Army and Commanding
General of the Japanese Imperial Forces in the Philippines was charged before the Philippine Military
Commission for war crimes. As he was the commanding general during such period of war, he was
tried for failure to discharge his duties and permitting the brutal atrocities and other high crimes
committed by his men against noncombatant civilians and prisoners of the Japanese forces, in
violation of of the laws and customs of war.

Kuroda, in his petition, argues that the Military Commission is not a valid court because the law that
created it, Executive Order No. 68, is unconstitutional. He further contends that using as basis the
Hague Convention’s Rules and Regulations covering Land Warfare for the war crime committed
cannot stand ground as the Philippines was not a signatory of such rules in such convention.
Furthermore, he alleges that the United States is not a party of interest in the case and that the two
US prosecutors cannot practice law in the Philippines.

Issue

1.Whether or not Executive Order No. 68 is constitutional

2.Whether or not the US is a party of interest to this case

Ruling

The Supreme Court ruled that Executive Order No. 68, creating the National War Crimes Office and
prescribing rules on the trial of accused war criminals, is constitutional as it is aligned with Sec
3,Article 2 of the Constitution which states that “The Philippines renounces war as an instrument of
national policy and adopts the generally accepted principles of international law as part of the law of
the nation.” The generally accepted principles of international law includes those formed during the
Hague Convention, the Geneva Convention and other international jurisprudence established by
United Nations. These include the principle that all persons, military or civilian, who have been guilty
of planning, preparing or waging a war of aggression and of the commission of crimes and offenses in
violation of laws and customs of war, are to be held accountable. In the doctrine of incorporation, the
Philippines abides by these principles and therefore has a right to try persons that commit such crimes
and most especially when it is committed againsts its citizens. It abides with it even if it was not a
signatory to these conventions by the mere incorporation of such principles in the constitution.

The United States is a party of interest because the country and its people have been equally, if not
more greatly, aggrieved by the crimes with which the petitioner is charged for. By virtue of Executive
Order No. 68, the Military Commission is a special military tribunal and that the rules as to parties and
representation are not governed by the rules of court but by the very provisions of this special law.
 [G.R. No. 139465. January 18, 2000]

SECRETARY OF JUSTICE, petitioner, vs. HON. RALPH C. LANTION,

Presiding Judge, Regional Trial Court of Manila, Branch 25, and MARK B.
JIMENEZ, respondents.

DECISION

MELO, J.:

The individual citizen is but a speck of particle or molecule vis--vis the vast and overwhelming
powers of government. His only guarantee against oppression and tyranny are his fundamental
liberties under the Bill of Rights which shield him in times of need. The Court is now called to
decide whether to uphold a citizens basic due process rights, or the governments ironclad duties
under a treaty. The bugle sounds and this Court must once again act as the faithful guardian of
the fundamental writ.

The petition at our doorstep is cast against the following factual backdrop:

On January 13, 1977, then President Ferdinand E. Marcos issued Presidential Decree No. 1069
"Prescribing the Procedure for the Extradition of Persons Who Have Committed Crimes in a
Foreign Country". The Decree is founded on: the doctrine of incorporation under the
Constitution; the mutual concern for the suppression of crime both in the state where it was
committed and the state where the criminal may have escaped; the extradition treaty with the
Republic of Indonesia and the intention of the Philippines to enter into similar treaties with other
interested countries; and the need for rules to guide the executive department and the courts in
the proper implementation of said treaties.

On November 13, 1994, then Secretary of Justice Franklin M. Drilon, representing the
Government of the Republic of the Philippines, signed in Manila the "Extradition Treaty
Between the Government of the Republic of the Philippines and the Government of the United
States of America" (hereinafter referred to as the RP-US Extradition Treaty). The Senate, by way
of Resolution No. 11, expressed its concurrence in the ratification of said treaty. It also expressed
its concurrence in the Diplomatic Notes correcting Paragraph (5)(a), Article 7 thereof (on the
admissibility of the documents accompanying an extradition request upon certification by the
principal diplomatic or consular officer of the requested state resident in the Requesting
State).

On June 18, 1999, the Department of Justice received from the Department of Foreign Affairs U.
S. Note Verbale No. 0522 containing a request for the extradition of private respondent Mark
Jimenez to the United States. Attached to the Note Verbale were the Grand Jury Indictment, the
warrant of arrest issued by the U.S. District Court, Southern District of Florida, and other
supporting documents for said extradition. Based on the papers submitted, private respondent
appears to be charged in the United States with violation of the following provisions of the
United States Code (USC):
 A)......18 USC 371 (Conspiracy to commit offense or to defraud the United States;
two [2] counts; Maximum Penalty 5 years on each count);

B)......26 USC 7201 (Attempt to evade or defeat tax; four [4] counts; Maximum
Penalty 5 years on each count);

C)......18 USC 1343 (Fraud by wire, radio, or television; two [2] counts;
Maximum Penalty 5 years on each count);

D)......18 USC 1001 (False statement or entries; six [6] counts; Maximum Penalty
5 years on each count);

E)......2 USC 441f (Election contributions in name of another; thirty-three [33]

counts; Maximum Penalty less than one year).

(p. 14, Rollo.)

On the same day, petitioner issued Department Order No. 249 designating and authorizing a
panel of attorneys to take charge of and to handle the case pursuant to Section 5(1) of
Presidential Decree No. 1069. Accordingly, the panel began with the "technical evaluation and
assessment" of the extradition request and the documents in support thereof. The panel found
that the "official English translation of some documents in Spanish were not attached to the
request and that there are some other matters that needed to be addressed" (p. 15,
Rollo).

Pending evaluation of the aforestated extradition documents, private respondent, through

counsel, wrote a letter dated July 1, 1999 addressed to petitioner requesting copies of the official
extradition request from the U. S. Government, as well as all documents and papers submitted
therewith; and that he be given ample time to comment on the request after he shall have
received copies of the requested papers. Private respondent also requested that the proceedings
on the matter be held in abeyance in the meantime.

Later, private respondent requested that preliminarily, he be given at least a copy of, or access to,
the request of the United States Government, and after receiving a copy of the Diplomatic Note,
a period of time to amplify on his request.

In response to private respondents July 1, 1999 letter, petitioner, in a reply-letter dated July 13,
1999 (but received by private respondent only on August 4, 1999), denied the foregoing requests
for the following reasons:

1. We find it premature to furnish you with copies of the extradition request and
supporting documents from the United States Government, pending evaluation by
this Department of the sufficiency of the extradition documents submitted in
accordance with the provisions of the extradition treaty and our extradition law.
Article 7 of the Extradition Treaty between the Philippines and the United States
enumerates the documentary requirements and establishes the procedures under
 which the documents submitted shall be received and admitted as evidence.
Evidentiary requirements under our domestic law are also set forth in Section 4 of
P.D. No. 1069.

Evaluation by this Department of the aforementioned documents is not a

preliminary investigation nor akin to preliminary investigation of criminal cases.
We merely determine whether the procedures and requirements under the relevant
law and treaty have been complied with by the Requesting Government. The
constitutionally guaranteed rights of the accused in all criminal prosecutions are
therefore not available.

It is only after the filing of the petition for extradition when the person sought to
be extradited will be furnished by the court with copies of the petition, request
and extradition documents and this Department will not pose any objection to a
request for ample time to evaluate said documents.

2. The formal request for extradition of the United States contains grand jury
information and documents obtained through grand jury process covered by strict
secrecy rules under United States law. The United States had to secure orders
from the concerned District Courts authorizing the United States to disclose
certain grand jury information to Philippine government and law enforcement
personnel for the purpose of extradition of Mr. Jimenez. Any further disclosure of
the said information is not authorized by the United States District Courts. In this
particular extradition request the United States Government requested the
Philippine Government to prevent unauthorized disclosure of the subject
information. This Departments denial of your request is consistent with Article 7
of the RP-US Extradition Treaty which provides that the Philippine Government
must represent the interests of the United States in any proceedings arising out of
a request for extradition. The Department of Justice under P.D. No. 1069 is the
counsel of the foreign governments in all extradition requests.

3. This Department is not in a position to hold in abeyance proceedings in

connection with an extradition request. Article 26 of the Vienna Convention on
the Law of Treaties, to which we are a party provides that "[E]very treaty in force
is binding upon the parties to it and must be performed by them in good faith".
Extradition is a tool of criminal law enforcement and to be effective, requests for
extradition or surrender of accused or convicted persons must be processed
expeditiously.

(pp. 77-78, Rollo.)

Such was the state of affairs when, on August 6, 1999, private respondent filed with the Regional
Trial Court of the National Capital Judicial Region a petition against the Secretary of Justice, the
Secretary of Foreign Affairs, and the Director of the National Bureau of Investigation, for
mandamus (to compel herein petitioner to furnish private respondent the extradition documents,
to give him access thereto, and to afford him an opportunity to comment on, or oppose, the
extradition request, and thereafter to evaluate the request impartially, fairly and objectively);
certiorari (to set aside herein petitioners letter dated July 13, 1999); and prohibition (to restrain
petitioner from considering the extradition request and from filing an extradition petition in
court; and to enjoin the Secretary of Foreign Affairs and the Director of the NBI from
performing any act directed to the extradition of private respondent to the United States), with an
application for the issuance of a temporary restraining order and a writ of preliminary injunction
(pp. 104-105, Rollo).

The aforementioned petition was docketed as Civil Case No. 99-94684 and thereafter raffled to
Branch 25 of said regional trial court stationed in Manila which is presided over by the
Honorable Ralph C. Lantion.

After due notice to the parties, the case was heard on August 9, 1999. Petitioner, who appeared
in his own behalf, moved that he be given ample time to file a memorandum, but the same was
denied.

On August 10, 1999, respondent judge issued an order dated the previous day, disposing:

WHEREFORE, this Court hereby Orders the respondents, namely: the Secretary
of Justice, the Secretary of Foreign Affairs and the Director of the National
Bureau of Investigation, their agents and/or representatives to maintain the status
quo by refraining from committing the acts complained of; from conducting
further proceedings in connection with the request of the United States
Government for the extradition of the petitioner; from filing the corresponding
Petition with a Regional Trial court; and from performing any act directed to the
extradition of the petitioner to the United States, for a period of twenty (20) days
from service on respondents of this Order, pursuant to Section 5, Rule 58 of the
1997 Rules of Court.

The hearing as to whether or not this Court shall issue the preliminary injunction,
as agreed upon by the counsels for the parties herein, is set on August 17, 1999 at
9:00 oclock in the morning. The respondents are, likewise, ordered to file their
written comment and/or opposition to the issuance of a Preliminary Injunction on
or before said date.

SO ORDERED.

(pp. 110-111, Rollo.)

Forthwith, petitioner initiated the instant proceedings, arguing that:

PUBLIC RESPONDENT ACTED WITHOUT OR IN EXCESS OF

JURISDICTION OR WITH GRAVE ABUSE OF DISCRETION AMOUNTING
TO LACK OR EXCESS OF JURISDICTION IN ISSUING THE TEMPORARY
RESTRAINING ORDER BECAUSE: 
 I.

BY ORDERING HEREIN PETITIONER TO REFRAIN FROM COMMITTING

THE ACTS COMPLAINED OF, I. E., TO DESIST FROM REFUSING
PRIVATE RESPONDENT ACCESS TO THE OFFICIAL EXTRADITION
REQUEST AND DOCUMENTS AND FROM DENYING PRIVATE
RESPONDENT AN OPPORTUNITY TO FILE A COMMENT ON, OR
OPPOSITION TO, THE REQUEST, THE MAIN PRAYER FOR A WRIT OF
MANDAMUS IN THE PETITION FOR MANDAMUS, CERTIORARI AND
PROHIBITION WAS, IN EFFECT, GRANTED SO AS TO CONSTITUTE AN
ADJUDICATION ON THE MERITS OF THE MANDAMUS ISSUES;

II.

PETITIONER WAS UNQUALIFIEDLY PREVENTED FROM PERFORMING

LEGAL DUTIES UNDER THE EXTRADITION TREATY AND THE
PHILIPPINE EXTRADITION LAW;

III.

THE PETITION FOR (MANDAMUS), CERTIORARI AND PROHIBITION IS,

ON ITS FACE, FORMALLY AND SUBSTANTIALLY DEFICIENT; AND

IV.

PRIVATE RESPONDENT HAS NO RIGHT IN ESSE THAT NEEDS

PROTECTION AND ENFORCEMENT, AND WILL NOT SUFFER ANY
IRREPARABLE INJURY.

(pp. 19-20, Rollo.)

On August 17, 1999, the Court required private respondent to file his comment. Also issued, as
prayed for, was a temporary restraining order (TRO) providing:

NOW, THEREFORE, effective immediately and continuing until further orders

from this Court, You, Respondent Judge Ralph C. Lantion, your agents,
representatives or any person or persons acting in your place or stead are hereby
ORDERED to CEASE and DESIST from enforcing the assailed order dated
August 9, 1999 issued by public respondent in Civil Case No. 99-94684.

GIVEN by the Honorable HILARIO G. DAVIDE, JR., Chief Justice, Supreme

Court of the Philippines, this 17th day of August 1999.

(pp. 120-121, Rollo.)

The case was heard on oral argument on August 31, 1999, after which the parties, as directed,
filed their respective memoranda.
From the pleadings of the opposing parties, both procedural and substantive issues are patent.
However, a review of these issues as well as the extensive arguments of both parties, compel us
to delineate the focal point raised by the pleadings: During the evaluation stage of the extradition
proceedings, is private respondent entitled to the two basic due process rights of notice and
hearing? An affirmative answer would necessarily render the proceedings at the trial court, moot
and academic (the issues of which are substantially the same as those before us now), while a
negative resolution would call for the immediate lifting of the TRO issued by this Court dated
August 24, 1999, thus allowing petitioner to fast-track the process leading to the filing of the
extradition petition with the proper regional trial court. Corollarily, in the event that private
respondent is adjudged entitled to basic due process rights at the evaluation stage of the
extradition proceedings, would this entitlement constitute a breach of the legal commitments and
obligations of the Philippine Government under the RP-US Extradition Treaty? And assuming
that the result would indeed be a breach, is there any conflict between private respondents basic
due process rights and the provisions of the RP-US Extradition Treaty?

The issues having transcendental importance, the Court has elected to go directly into the
substantive merits of the case, brushing aside peripheral procedural matters which concern the
proceedings in Civil Case No. 99-94684, particularly the propriety of the filing of the petition
therein, and of the issuance of the TRO of August 17, 1999 by the trial
court.

To be sure, the issues call for a review of the extradition procedure. The RP-US Extradition
Treaty which was executed only on November 13, 1994, ushered into force the implementing
provisions of Presidential Decree No. 1069, also called as the Philippine Extradition Law.
Section 2(a) thereof defines extradition as "the removal of an accused from the Philippines with
the object of placing him at the disposal of foreign authorities to enable the requesting state or
government to hold him in connection with any criminal investigation directed against him or the
execution of a penalty imposed on him under the penal or criminal law of the requesting state or
government." The portions of the Decree relevant to the instant case which involves a charged
and not convicted individual, are abstracted as follows:

The Extradition Request

The request is made by the Foreign Diplomat of the Requesting State, addressed to the Secretary
of Foreign Affairs, and shall be accompanied by:

1. The original or an authentic copy of the criminal charge and the warrant of arrest issued by the
authority of the Requesting State having jurisdiction over the matter, or some other instruments
having equivalent legal force;

2. A recital of the acts for which extradition is requested, with the fullest particulars as to the
name and identity of the accused, his whereabouts in the Philippines, if known, the acts or
omissions complained of, and the time and place of the commission of these
acts;
3. The text of the applicable law or a statement of the contents of said law, and the designation or
description of the offense by the law, sufficient for evaluation of the request; and

4. Such other documents or information in support of the request.

(Section 4, Presidential Decree No. 1069.)

Section 5 of the Presidential Decree, which sets forth the duty of the Secretary of Foreign
Affairs, pertinently provides:

. . . (1) Unless it appears to the Secretary of Foreign Affairs that the request fails
to meet the requirements of this law and the relevant treaty or convention, he shall
forward the request together with the related documents to the Secretary of
Justice, who shall immediately designate and authorize an attorney in his office to
take charge of the case.

The above provision shows only too clearly that the executive authority given the task of
evaluating the sufficiency of the request and the supporting documents is the Secretary of
Foreign Affairs. What then is the coverage of this task?

In accordance with Paragraphs 2 and 3, Article 7 of the RP-US Extradition Treaty, the executive
authority must ascertain whether or not the request is supported by:

1. Documents, statements, or other types of information which describe the identity and probable
location of the person sought;

2. A statement of the facts of the offense and the procedural history of the case;

3. A statement of the provisions of the law describing the essential elements of the offense for
which extradition is requested;

4. A statement of the provisions of law describing the punishment for the

offense;

5. A statement of the provisions of the law describing any time limit on the prosecution or the
execution of punishment for the offense;

6. Documents, statements, or other types of information specified in paragraph 3 or paragraph 4

of said Article, as applicable.

(Paragraph 2, Article 7, Presidential Decree No. 1069.)

7. Such evidence as, according to the law of the Requested State, would provide probable cause
for his arrest and committal for trial if the offense had been committed there;

8. A copy of the warrant or order of arrest issued by a judge or other competent authority; and
9. A copy of the charging document.

(Paragraph 3, ibid.)

The executive authority (Secretary of Foreign Affairs) must also see to it that the accompanying
documents received in support of the request had been certified by the principal diplomatic or
consular officer of the Requested State resident in the Requesting State (Embassy Note No. 052
from U. S. Embassy; Embassy Note No. 951309 from the Department of Foreign Affairs).

In this light, Paragraph 3, Article 3 of the Treaty provides that "[e]xtradition shall not be granted
if the executive authority of the Requested State determines that the request is politically
motivated, or that the offense is a military offense which is not punishable under non-military
penal legislation."

The Extradition Petition

Upon a finding made by the Secretary of Foreign Affairs that the extradition request and its
supporting documents are sufficient and complete in form and substance, he shall deliver the
same to the Secretary of Justice, who shall immediately designate and authorize an attorney in
his office to take charge of the case (Paragraph [1], Section 5, P. D. No. 1069). The lawyer
designated shall then file a written petition with the proper regional trial court of the province or
city, with a prayer that the court take the extradition request under consideration (Paragraph [2],
ibid.).

The presiding judge of the regional trial court, upon receipt of the petition for extradition, shall,
as soon as practicable, issue an order summoning the prospective extraditee to appear and to
answer the petition on the day and hour fixed in the order. The judge may issue a warrant of
arrest if it appears that the immediate arrest and temporary detention of the accused will best
serve the ends of justice (Paragraph [1], Section 6, ibid.), particularly to prevent the flight of the
prospective extraditee.

The Extradition Hearing

The Extradition Law does not specifically indicate whether the extradition proceeding is
criminal, civil, or a special proceeding. Nevertheless, Paragraph [1], Section 9 thereof provides
that in the hearing of the extradition petition, the provisions of the Rules of Court, insofar as
practicable and not inconsistent with the summary nature of the proceedings, shall apply. During
the hearing, Section 8 of the Decree provides that the attorney having charge of the case may,
upon application by the Requesting State, represent the latter throughout the proceedings.

Upon conclusion of the hearing, the court shall render a decision granting the extradition and
giving the reasons therefor upon a showing of the existence of a prima facie case, or dismiss the
petition (Section 10, ibid.). Said decision is appealable to the Court of Appeals, whose decision
shall be final and immediately executory (Section 12, ibid.). The provisions of the Rules of Court
governing appeal in criminal cases in the Court of Appeals shall apply in the aforementioned
appeal, except for the required 15-day period to file brief (Section 13, ibid.).
The trial court determines whether or not the offense mentioned in the petition is extraditable
based on the application of the dual criminality rule and other conditions mentioned in Article 2
of the RP-US Extradition Treaty. The trial court also determines whether or not the offense for
which extradition is requested is a political one (Paragraph [1], Article 3, RP-US Extradition
Treaty).

With the foregoing abstract of the extradition proceedings as backdrop, the following query
presents itself: What is the nature of the role of the Department of Justice at the evaluation stage
of the extradition proceedings?

A strict observance of the Extradition Law indicates that the only duty of the Secretary of Justice
is to file the extradition petition after the request and all the supporting papers are forwarded to
him by the Secretary of Foreign Affairs. It is the latter official who is authorized to evaluate the
extradition papers, to assure their sufficiency, and under Paragraph [3], Article 3 of the Treaty, to
determine whether or not the request is politically motivated, or that the offense is a military
offense which is not punishable under non-military penal legislation. Ipso facto, as expressly
provided in Paragraph [1], Section 5 of the Extradition Law, the Secretary of Justice has the
ministerial duty of filing the extradition papers.

However, looking at the factual milieu of the case before us, it would appear that there was
failure to abide by the provisions of Presidential Decree No. 1069. For while it is true that the
extradition request was delivered to the Department of Foreign Affairs on June 17, 1999, the
following day or less than 24 hours later, the Department of Justice received the request,
apparently without the Department of Foreign Affairs discharging its duty of thoroughly
evaluating the same and its accompanying documents. The statement of an assistant secretary at
the Department of Foreign Affairs that his Department, in this regard, is merely acting as a post
office, for which reason he simply forwarded the request to the Department of Justice, indicates
the magnitude of the error of the Department of Foreign Affairs in taking lightly its
responsibilities. Thereafter, the Department of Justice took it upon itself to determine the
completeness of the documents and to evaluate the same to find out whether they comply with
the requirements laid down in the Extradition Law and the RP-US Extradition Treaty. Petitioner
ratiocinates in this connection that although the Department of Justice had no obligation to
evaluate the extradition documents, the Department also had to go over them so as to be able to
prepare an extradition petition (tsn, August 31, 1999, pp. 24-25). Notably, it was also at this
stage where private respondent insisted on the following: (1) the right to be furnished the request
and the supporting papers; (2) the right to be heard which consists in having a reasonable period
of time to oppose the request, and to present evidence in support of the opposition; and (3) that
the evaluation proceedings be held in abeyance pending the filing of private respondent's
opposition to the request.

The two Departments seem to have misread the scope of their duties and authority, one
abdicating its powers and the other enlarging its commission. The Department of Foreign
Affairs, moreover, has, through the Solicitor General, filed a manifestation that it is adopting the
instant petition as its own, indirectly conveying the message that if it were to evaluate the
extradition request, it would not allow private respondent to participate in the process of
evaluation.
Plainly then, the record cannot support the presumption of regularity that the Department of
Foreign Affairs thoroughly reviewed the extradition request and supporting documents and that it
arrived at a well-founded judgment that the request and its annexed documents satisfy the
requirements of law. The Secretary of Justice, eminent as he is in the field of law, could not
privately review the papers all by himself. He had to officially constitute a panel of attorneys.
How then could the DFA Secretary or his undersecretary, in less than one day, make the more
authoritative determination?

The evaluation process, just like the extradition proceedings proper, belongs to a class by itself.
It is sui generis. It is not a criminal investigation, but it is also erroneous to say that it is purely
an exercise of ministerial functions. At such stage, the executive authority has the power: (a) to
make a technical assessment of the completeness and sufficiency of the extradition papers; (b) to
outrightly deny the request if on its face and on the face of the supporting documents the crimes
indicated are not extraditable; and (c) to make a determination whether or not the request is
politically motivated, or that the offense is a military one which is not punishable under non-
military penal legislation (tsn, August 31, 1999, pp. 28-29; Article 2& and Paragraph [3], Article
3, RP-US Extradition Treaty). Hence, said process may be characterized as an investigative or
inquisitorial process in contrast to a proceeding conducted in the exercise of an administrative
bodys quasi-judicial power.

In administrative law, a quasi-judicial proceeding involves: (a) taking and evaluation of

evidence; (b) determining facts based upon the evidence presented; and (c) rendering an order or
decision supported by the facts proved (De Leon, Administrative Law: Text and Cases, 1993 ed.,
p. 198, citing Morgan vs. United States, 304 U.S. 1). Inquisitorial power, which is also known as
examining or investigatory power, is one of the determinative powers of an administrative body
which better enables it to exercise its quasi-judicial authority (Cruz, Phil. Administrative Law,
1996 ed., p. 26). This power allows the administrative body to inspect the records and premises,
and investigate the activities, of persons or entities coming under its jurisdiction (Ibid., p. 27), or
to require disclosure of information by means of accounts, records, reports, testimony of
witnesses, production of documents, or otherwise (De Leon, op. cit., p. 64).

The power of investigation consists in gathering, organizing, and analyzing evidence, which is a
useful aid or tool in an administrative agencys performance of its rule-making or quasi-judicial
functions. Notably, investigation is indispensable to prosecution.

In Ruperto v. Torres (100 Phil. 1098 [1957], unreported), the Court had occasion to rule on the
functions of an investigatory body with the sole power of investigation. It does not exercise
judicial functions and its power is limited to investigating the facts and making findings in
respect thereto. The Court laid down the test of determining whether an administrative body is
exercising judicial functions or merely investigatory functions: Adjudication signifies the
exercise of power and authority to adjudicate upon the rights and obligations of the parties before
it. Hence, if the only purpose for investigation is to evaluate evidence submitted before it based
on the facts and circumstances presented to it, and if the agency is not authorized to make a final
pronouncement affecting the parties, then there is an absence of judicial discretion and
judgment.
The above description in Ruperto applies to an administrative body authorized to evaluate
extradition documents. The body has no power to adjudicate in regard to the rights and
obligations of both the Requesting State and the prospective extraditee. Its only power is to
determine whether the papers comply with the requirements of the law and the treaty and,
therefore, sufficient to be the basis of an extradition petition. Such finding is thus merely initial
and not final. The body has no power to determine whether or not the extradition should be
effected. That is the role of the court. The bodys power is limited to an initial finding of whether
or not the extradition petition can be filed in court.

It is to be noted, however, that in contrast to ordinary investigations, the evaluation procedure is

characterized by certain peculiarities. Primarily, it sets into motion the wheels of the extradition
process. Ultimately, it may result in the deprivation of liberty of the prospective extraditee. This
deprivation can be effected at two stages: First, the provisional arrest of the prospective
extraditee pending the submission of the request. This is so because the Treaty provides that in
case of urgency, a contracting party may request the provisional arrest of the person sought
pending presentation of the request (Paragraph [1], Article 9, RP-US Extradition Treaty), but he
shall be automatically discharged after 60 days if no request is submitted (Paragraph 4).
Presidential Decree No. 1069 provides for a shorter period of 20 days after which the arrested
person could be discharged (Section 20[d]). Logically, although the Extradition Law is silent on
this respect, the provisions only mean that once a request is forwarded to the Requested State, the
prospective extraditee may be continuously detained, or if not, subsequently rearrested
(Paragraph [5], Article 9, RP-US Extradition Treaty), for he will only be discharged if no request
is submitted. Practically, the purpose of this detention is to prevent his possible flight from the
Requested State. Second, the temporary arrest of the prospective extraditee during the pendency
of the extradition petition in court (Section 6, Presidential Decree No. 1069).

Clearly, there is an impending threat to a prospective extraditees liberty as early as during the
evaluation stage. It is not only an imagined threat to his liberty, but a very imminent
one.

Because of these possible consequences, we conclude that the evaluation process is akin to an
administrative agency conducting an investigative proceeding, the consequences of which are
essentially criminal since such technical assessment sets off or commences the procedure for,
and ultimately, the deprivation of liberty of a prospective extraditee. As described by petitioner
himself, this is a "tool" for criminal law enforcement (p. 78, Rollo). In essence, therefore, the
evaluation process partakes of the nature of a criminal investigation. In a number of cases, we
had occasion to make available to a respondent in an administrative case or investigation certain
constitutional rights that are ordinarily available only in criminal prosecutions. Further, as
pointed out by Mr. Justice Mendoza during the oral arguments, there are rights formerly
available only at the trial stage that had been advanced to an earlier stage in the proceedings,
such as the right to counsel and the right against self-incrimination (tsn, August 31, 1999, p. 135;
Escobedo vs. Illinois, 378 U.S. 478; Gideon vs. Wainwright, 372 U.S. 335; Miranda vs. Arizona,
384 U.S. 436).

In Pascual v. Board of Medical Examiners (28 SCRA 344 [1969]), we held that the right against
self-incrimination under Section 17, Article III of the 1987 Constitution which is ordinarily
available only in criminal prosecutions, extends to administrative proceedings which possess a
criminal or penal aspect, such as an administrative investigation of a licensed physician who is
charged with immorality, which could result in his loss of the privilege to practice medicine if
found guilty. The Court, citing the earlier case of Cabal vs. Kapunan (6 SCRA 1059 [1962]),
pointed out that the revocation of ones license as a medical practitioner, is an even greater
deprivation than forfeiture of property.

Cabal vs. Kapunan (supra) involved an administrative charge of unexplained wealth against a
respondent which was filed under Republic Act No. 1379, or the Anti-Graft Law. Again, we
therein ruled that since the investigation may result in forfeiture of property, the administrative
proceedings are deemed criminal or penal, and such forfeiture partakes the nature of a penalty.
There is also the earlier case of Almeda, Sr. vs. Perez (5 SCRA 970 [1962]), where the Court,
citing American jurisprudence, laid down the test to determine whether a proceeding is civil or
criminal: If the proceeding is under a statute such that if an indictment is presented the forfeiture
can be included in the criminal case, such proceeding is criminal in nature, although it may be
civil in form; and where it must be gathered from the statute that the action is meant to be
criminal in its nature, it cannot be considered as civil. If, however, the proceeding does not
involve the conviction of the wrongdoer for the offense charged, the proceeding is civil in
nature.

The cases mentioned above refer to an impending threat of deprivation of ones property or
property right. No less is this true, but even more so in the case before us, involving as it does the
possible deprivation of liberty, which, based on the hierarchy of constitutionally protected rights,
is placed second only to life itself and enjoys precedence over property, for while forfeited
property can be returned or replaced, the time spent in incarceration is irretrievable and beyond
recompense.

By comparison, a favorable action in an extradition request exposes a person to eventual

extradition to a foreign country, thus saliently exhibiting the criminal or penal aspect of the
process. In this sense, the evaluation procedure is akin to a preliminary investigation since both
procedures may have the same result the arrest and imprisonment of the respondent or the person
charged. Similar to the evaluation stage of extradition proceedings, a preliminary investigation,
which may result in the filing of an information against the respondent, can possibly lead to his
arrest, and to the deprivation of his liberty.

Petitioners reliance on Wright vs. Court of Appeals (235 SCRA 241 [1992]) (p. 8, Petitioners
Memorandum) that the extradition treaty is neither a piece of criminal legislation nor a criminal
procedural statute is not well-taken. Wright is not authority for petitioners conclusion that his
preliminary processing is not akin to a preliminary investigation. The characterization of a treaty
in Wright was in reference to the applicability of the prohibition against an ex post facto law. It
had nothing to do with the denial of the right to notice, information, and hearing.

As early as 1884, the United States Supreme Court ruled that "any legal proceeding enforced by
public authority, whether sanctioned by age or custom, or newly devised in the discretion of the
legislative power, in furtherance of the general public good, which regards and preserves these
principles of liberty and justice, must be held to be due process of law" (Hurtado vs. California,
110 U.S. 516). Compliance with due process requirements cannot be deemed non-compliance
with treaty commitments.

The United States and the Philippines share a mutual concern about the suppression and
punishment of crime in their respective jurisdictions. At the same time, both States accord
common due process protection to their respective citizens.

The due process clauses in the American and Philippine Constitutions are not only worded in
exactly identical language and terminology, but more importantly, they are alike in what their
respective Supreme Courts have expounded as the spirit with which the provisions are informed
and impressed, the elasticity in their interpretation, their dynamic and resilient character which
make them capable of meeting every modern problem, and their having been designed from
earliest time to the present to meet the exigencies of an undefined and expanding future. The
requirements of due process are interpreted in both the United States and the Philippines as not
denying to the law the capacity for progress and improvement. Toward this effect and in order to
avoid the confines of a legal straitjacket, the courts instead prefer to have the meaning of the due
process clause "gradually ascertained by the process of inclusion and exclusion in the course of
the decisions of cases as they arise" (Twining vs. New Jersey, 211 U.S. 78). Capsulized, it refers
to "the embodiment of the sporting idea of fair play" (Ermita-Malate Hotel and Motel Owners
Association vs. City Mayor of Manila, 20 SCRA 849 [1967]). It relates to certain immutable
principles of justice which inhere in the very idea of free government (Holden vs. Hardy, 169
U.S. 366).

Due process is comprised of two components substantive due process which requires the
intrinsic validity of the law in interfering with the rights of the person to his life, liberty, or
property, and procedural due process which consists of the two basic rights of notice and
hearing, as well as the guarantee of being heard by an impartial and competent tribunal (Cruz,
Constitutional Law, 1993 Ed., pp. 102-106).

True to the mandate of the due process clause, the basic rights of notice and hearing pervade not
only in criminal and civil proceedings, but in administrative proceedings as well. Non-
observance of these rights will invalidate the proceedings. Individuals are entitled to be notified
of any pending case affecting their interests, and upon notice, they may claim the right to appear
therein and present their side and to refute the position of the opposing parties (Cruz, Phil.
Administrative Law, 1996 ed., p. 64).

In a preliminary investigation which is an administrative investigatory proceeding, Section 3,

Rule 112 of the Rules of Court guarantees the respondents basic due process rights, granting him
the right to be furnished a copy of the complaint, the affidavits, and other supporting documents,
and the right to submit counter-affidavits and other supporting documents within ten days from
receipt thereof. Moreover, the respondent shall have the right to examine all other evidence
submitted by the complainant.

These twin rights may, however, be considered dispensable in certain instances, such as:
1. In proceedings where there is an urgent need for immediate action, like the summary
abatement of a nuisance per se (Article 704, Civil Code), the preventive suspension of a public
servant facing administrative charges (Section 63, Local Government Code, B. P. Blg. 337), the
padlocking of filthy restaurants or theaters showing obscene movies or like establishments which
are immediate threats to public health and decency, and the cancellation of a passport of a person
sought for criminal prosecution;

2. Where there is tentativeness of administrative action, that is, where the respondent is not
precluded from enjoying the right to notice and hearing at a later time without prejudice to the
person affected, such as the summary distraint and levy of the property of a delinquent taxpayer,
and the replacement of a temporary appointee; and

3. Where the twin rights have previously been offered but the right to exercise them had not been
claimed.

Applying the above principles to the case at bar, the query may be asked: Does the evaluation
stage of the extradition proceedings fall under any of the described situations mentioned above?

Let us take a brief look at the nature of American extradition proceedings which are quite
noteworthy considering that the subject treaty involves the U.S. Government.

American jurisprudence distinguishes between interstate rendition or extradition which is based

on the Extradition Clause in the U.S. Constitution (Art. IV, 2 cl 2), and international extradition
proceedings. In interstate rendition or extradition, the governor of the asylum state has the duty
to deliver the fugitive to the demanding state. The Extradition Clause and the implementing
statute are given a liberal construction to carry out their manifest purpose, which is to effect the
return as swiftly as possible of persons for trial to the state in which they have been charged with
crime (31A Am Jur 2d 754-755). In order to achieve extradition of an alleged fugitive, the
requisition papers or the demand must be in proper form, and all the elements or jurisdictional
facts essential to the extradition must appear on the face of the papers, such as the allegation that
the person demanded was in the demanding state at the time the offense charged was committed,
and that the person demanded is charged with the commission of the crime or that prosecution
has been begun in the demanding state before some court or magistrate (35 C.J.S. 406-407). The
extradition documents are then filed with the governor of the asylum state, and must contain such
papers and documents prescribed by statute, which essentially include a copy of the instrument
charging the person demanded with a crime, such as an indictment or an affidavit made before a
magistrate. Statutory requirements with respect to said charging instrument or papers are
mandatory since said papers are necessary in order to confer jurisdiction on the governor of the
asylum state to effect the extradition (35 C.J.S. 408-410). A statutory provision requiring
duplicate copies of the indictment, information, affidavit, or judgment of conviction or
sentence and other instruments accompanying the demand or requisitions be furnished and
delivered to the fugitive or his attorney is directory. However, the right being such a basic one
has been held to be a right mandatory on demand (Ibid., p. 410, citing Ex parte Moore, 256
S.W. 2d 103, 158 Tex. Cr. 407 and Ex parte Tucker, Cr., 324, S.W.2d
853).
In international proceedings, extradition treaties generally provide for the presentation to the
executive authority of the Requested State of a requisition or demand for the return of the alleged
offender, and the designation of the particular officer having authority to act in behalf of the
demanding nation (31A Am Jur 2d 815).

In petitioners memorandum filed on September 15, 1999, he attached thereto a letter dated
September 13, 1999 from the Criminal Division of the U.S. Department of Justice, summarizing
the U.S. extradition procedures and principles, which are basically governed by a combination of
treaties (with special reference to the RP-US Extradition Treaty), federal statutes, and judicial
decisions, to wit:

1. All requests for extradition are transmitted through the diplomatic channel. In urgent cases,
requests for the provisional arrest of an individual may be made directly by the Philippine
Department of Justice to the U.S. Department of Justice, and vice-versa. In the event of a
provisional arrest, a formal request for extradition is transmitted subsequently through the
diplomatic channel.

2. The Department of State forwards the incoming Philippine extradition request to the
Department of Justice. Before doing so, the Department of State prepares a declaration
confirming that a formal request has been made, that the treaty is in full force and effect, that
under Article 17 thereof the parties provide reciprocal legal representation in extradition
proceedings, that the offenses are covered as extraditable offenses under Article 2 thereof, and
that the documents have been authenticated in accordance with the federal statute that ensures
admissibility at any subsequent extradition hearing.

3. A judge or magistrate judge is authorized to issue a warrant for the arrest of the prospective
extraditee (18 U.S.C. 3184). Said judge or magistrate is authorized to hold a hearing to consider
the evidence offered in support of the extradition request (Ibid.)

4. At the hearing, the court must determine whether the person arrested is extraditable to the
foreign country. The court must also determine that (a) it has jurisdiction over the defendant and
jurisdiction to conduct the hearing; (b) the defendant is being sought for offenses for which the
applicable treaty permits extradition; and (c) there is probable cause to believe that the defendant
is the person sought and that he committed the offenses charged (Ibid.)

5. The judge or magistrate judge is vested with jurisdiction to certify extraditability after having
received a "complaint made under oath, charging any person found within his jurisdiction" with
having committed any of the crimes provided for by the governing treaty in the country
requesting extradition (Ibid.) [In this regard, it is noted that a long line of American decisions
pronounce that international extradition proceedings partake of the character of a preliminary
examination before a committing magistrate, rather than a trial of the guilt or innocence of the
alleged fugitive (31A Am Jur 2d 826).]

6. If the court decides that the elements necessary for extradition are present, it incorporates its
determinations in factual findings and conclusions of law and certifies the persons extraditability.
The court then forwards this certification of extraditability to the Department of State for
disposition by the Secretary of State. The ultimate decision whether to surrender an individual
rests with the Secretary of State (18 U.S.C. 3186).

7. The subject of an extradition request may not litigate questions concerning the motives of the
requesting government in seeking his extradition. However, a person facing extradition may
present whatever information he deems relevant to the Secretary of State, who makes the final
determination whether to surrender an individual to the foreign government concerned.

From the foregoing, it may be observed that in the United States, extradition begins and ends
with one entity the Department of State which has the power to evaluate the request and the
extradition documents in the beginning, and, in the person of the Secretary of State, the power to
act or not to act on the courts determination of extraditability. In the Philippine setting, it is the
Department of Foreign Affairs which should make the initial evaluation of the request, and
having satisfied itself on the points earlier mentioned (see pp. 10-12), then forwards the request
to the Department of Justice for the preparation and filing of the petition for extradition. Sadly,
however, the Department of Foreign Affairs, in the instant case, perfunctorily turned over the
request to the Department of Justice which has taken over the task of evaluating the request as
well as thereafter, if so warranted, preparing, filing, and prosecuting the petition for
extradition.

Private respondent asks what prejudice will be caused to the U.S. Government should the person
sought to be extradited be given due process rights by the Philippines in the evaluation stage. He
emphasizes that petitioners primary concern is the possible delay in the evaluation process.

We agree with private respondents citation of an American Supreme Court ruling:

The establishment of prompt efficacious procedures to achieve legitimate state

ends is a proper state interest worthy of cognizance in constitutional adjudication.
But the Constitution recognizes higher values than speed and efficiency. Indeed,
one might fairly say of the Bill of Rights in general, and the Due Process Clause,
in particular, that they were designed to protect the fragile values of a vulnerable
citizenry from the overbearing concern for efficiency and efficacy that may
characterize praiseworthy government officials no less, and perhaps more, than
mediocre ones.

(Stanley vs. Illinois, 404 U.S. 645, 656)

The United States, no doubt, shares the same interest as the Philippine
Government that no right that of liberty secured not only by the Bills of Rights of
the Philippines Constitution but of the United States as well, is sacrificed at the
altar of expediency.

(pp. 40-41, Private Respondents Memorandum.)

In the Philippine context, this Courts ruling is invoked:

 One of the basic principles of the democratic system is that where the rights of the
individual are concerned, the end does not justify the means. It is not enough that
there be a valid objective; it is also necessary that the means employed to pursue
it be in keeping with the Constitution. Mere expediency will not excuse
constitutional shortcuts. There is no question that not even the strongest moral
conviction or the most urgent public need, subject only to a few notable
exceptions, will excuse the bypassing of an individuals rights. It is no
exaggeration to say that a person invoking a right guaranteed under Article III of
the Constitution is a majority of one even as against the rest of the nation who
would deny him that right (Association of Small Landowners in the Philippines,
Inc. vs. Secretary of Agrarian Reform, 175 SCRA 343, 375-376 [1989]).

There can be no dispute over petitioners argument that extradition is a tool of criminal law
enforcement. To be effective, requests for extradition or the surrender of accused or convicted
persons must be processed expeditiously. Nevertheless, accelerated or fast-tracked proceedings
and adherence to fair procedures are, however, not always incompatible. They do not always
clash in discord. Summary does not mean precipitous haste. It does not carry a disregard of the
basic principles inherent in "ordered liberty."

Is there really an urgent need for immediate action at the evaluation stage? At that point, there is
no extraditee yet in the strict sense of the word. Extradition may or may not occur. In interstate
extradition, the governor of the asylum state may not, in the absence of mandatory statute, be
compelled to act favorably (37 C.J.S. 387) since after a close evaluation of the extradition
papers, he may hold that federal and statutory requirements, which are significantly
jurisdictional, have not been met (31 Am Jur 2d 819). Similarly, under an extradition treaty, the
executive authority of the requested state has the power to deny the behest from the requesting
state. Accordingly, if after a careful examination of the extradition documents the Secretary of
Foreign Affairs finds that the request fails to meet the requirements of the law and the treaty, he
shall not forward the request to the Department of Justice for the filing of the extradition petition
since non-compliance with the aforesaid requirements will not vest our government with
jurisdiction to effect the extradition.

In this light, it should be observed that the Department of Justice exerted notable efforts in
assuring compliance with the requirements of the law and the treaty since it even informed the
U.S. Government of certain problems in the extradition papers (such as those that are in Spanish
and without the official English translation, and those that are not properly authenticated). In
fact, petitioner even admits that consultation meetings are still supposed to take place between
the lawyers in his Department and those from the U.S. Justice Department. With the meticulous
nature of the evaluation, which cannot just be completed in an abbreviated period of time due to
its intricacies, how then can we say that it is a proceeding that urgently necessitates immediate
and prompt action where notice and hearing can be dispensed with?

Worthy of inquiry is the issue of whether or not there is tentativeness of administrative action. Is
private respondent precluded from enjoying the right to notice and hearing at a later time without
prejudice to him? Here lies the peculiarity and deviant characteristic of the evaluation procedure.
On one hand, there is yet no extraditee, but ironically on the other, it results in an administrative
determination which, if adverse to the person involved, may cause his immediate incarceration.
The grant of the request shall lead to the filing of the extradition petition in court. The "accused"
(as Section 2[c] of Presidential Decree No. 1069 calls him), faces the threat of arrest, not only
after the extradition petition is filed in court, but even during the evaluation proceeding itself by
virtue of the provisional arrest allowed under the treaty and the implementing law. The prejudice
to the "accused" is thus blatant and manifest.

Plainly, the notice and hearing requirements of administrative due process cannot be dispensed
with and shelved aside.

Apart from the due process clause of the Constitution, private respondent likewise invokes
Section 7 of Article III which reads:

Sec. 7. The right of the people to information on matters of public concern shall
be recognized. Access to official records, and to documents and papers pertaining
to official acts, transactions, or decisions, as well as to government research data
used as basis for policy development, shall be afforded the citizen, subject to such
limitations as may be provided by law.

The above provision guarantees political rights which are available to citizens of the Philippines,
namely: (1) the right to information on matters of public concern, and (2) the corollary right of
access to official records and documents. The general right guaranteed by said provision is the
right to information on matters of public concern. In its implementation, the right of access to
official records is likewise conferred. These cognate or related rights are "subject to limitations
as may be provided by law" (Bernas, The 1987 Phil. Constitution A Reviewer-Primer, 1997 ed.,
p. 104) and rely on the premise that ultimately it is an informed and critical public opinion which
alone can protect the values of democratic government (Ibid.).

Petitioner argues that the matters covered by private respondents letter-request dated July 1, 1999
do not fall under the guarantee of the foregoing provision since the matters contained in the
documents requested are not of public concern. On the other hand, private respondent argues that
the distinction between matters vested with public interest and matters which are of purely
private interest only becomes material when a third person, who is not directly affected by the
matters requested, invokes the right to information. However, if the person invoking the right is
the one directly affected thereby, his right to information becomes absolute.

The concept of matters of public concern escapes exact definition. Strictly speaking, every act of
a public officer in the conduct of the governmental process is a matter of public concern (Bernas,
The 1987 Constitution of the Republic of the Philippines, 1996 ed., p. 336). This concept
embraces a broad spectrum of subjects which the public may want to know, either because these
directly affect their lives or simply because such matters arouse the interest of an ordinary citizen
(Legaspi v. Civil Service Commission, 150 SCRA 530 [1987]). Hence, the real party in interest is
the people and any citizen has "standing".

When the individual himself is involved in official government action because said action has a
direct bearing on his life, and may either cause him some kind of deprivation or injury, he
actually invokes the basic right to be notified under Section 1 of the Bill of Rights and not
exactly the right to information on matters of public concern. As to an accused in a criminal
proceeding, he invokes Section 14, particularly the right to be informed of the nature and cause
of the accusation against him.

The right to information is implemented by the right of access to information within the control
of the government (Bernas, The 1987 Constitution of the Republic of the Philippines, 1996 ed.,
p. 337). Such information may be contained in official records, and in documents and papers
pertaining to official acts, transactions, or decisions.

In the case at bar, the papers requested by private respondent pertain to official government
action from the U. S. Government. No official action from our country has yet been taken.
Moreover, the papers have some relation to matters of foreign relations with the U. S.
Government. Consequently, if a third party invokes this constitutional provision, stating that the
extradition papers are matters of public concern since they may result in the extradition of a
Filipino, we are afraid that the balance must be tilted, at such particular time, in favor of the
interests necessary for the proper functioning of the government. During the evaluation
procedure, no official governmental action of our own government has as yet been done; hence
the invocation of the right is premature. Later, and in contrast, records of the extradition hearing
would already fall under matters of public concern, because our government by then shall have
already made an official decision to grant the extradition request. The extradition of a fellow
Filipino would be forthcoming.

We now pass upon the final issue pertinent to the subject matter of the instant controversy:
Would private respondents entitlement to notice and hearing during the evaluation stage of the
proceedings constitute a breach of the legal duties of the Philippine Government under the RP-
Extradition Treaty? Assuming the answer is in the affirmative, is there really a conflict between
the treaty and the due process clause in the Constitution?

First and foremost, let us categorically say that this is not the proper time to pass upon the
constitutionality of the provisions of the RP-US Extradition Treaty nor the Extradition Law
implementing the same. We limit ourselves only to the effect of the grant of the basic rights of
notice and hearing to private respondent on foreign relations.

The rule of pacta sunt servanda, one of the oldest and most fundamental maxims of international
law, requires the parties to a treaty to keep their agreement therein in good faith. The observance
of our country's legal duties under a treaty is also compelled by Section 2, Article II of the
Constitution which provides that "[t]he Philippines renounces war as an instrument of national
policy, adopts the generally accepted principles of international law as part of the law of the land,
and adheres to the policy of peace, equality, justice, freedom, cooperation and amity with all
nations." Under the doctrine of incorporation, rules of international law form part of the law of
the land and no further legislative action is needed to make such rules applicable in the domestic
sphere (Salonga & Yap, Public International Law, 1992 ed., p. 12).

The doctrine of incorporation is applied whenever municipal tribunals (or local courts) are
confronted with situations in which there appears to be a conflict between a rule of international
law and the provisions of the constitution or statute of the local state. Efforts should first be
exerted to harmonize them, so as to give effect to both since it is to be presumed that municipal
law was enacted with proper regard for the generally accepted principles of international law in
observance of the Incorporation Clause in the above-cited constitutional provision (Cruz,
Philippine Political Law, 1996 ed., p. 55). In a situation, however, where the conflict is
irreconcilable and a choice has to be made between a rule of international law and municipal
law, jurisprudence dictates that municipal law should be upheld by the municipal courts (Ichong
vs. Hernandez, 101 Phil. 1155 [1957]; Gonzales vs. Hechanova, 9 SCRA 230 [1963]; In re:
Garcia, 2 SCRA 984 [1961]) for the reason that such courts are organs of municipal law and are
accordingly bound by it in all circumstances (Salonga & Yap, op. cit., p. 13). The fact that
international law has been made part of the law of the land does not pertain to or imply the
primacy of international law over national or municipal law in the municipal sphere. The
doctrine of incorporation, as applied in most countries, decrees that rules of international law are
given equal standing with, but are not superior to, national legislative enactments. Accordingly,
the principle lex posterior derogat priori takes effect a treaty may repeal a statute and a statute
may repeal a treaty. In states where the constitution is the highest law of the land, such as the
Republic of the Philippines, both statutes and treaties may be invalidated if they are in conflict
with the constitution (Ibid.).

In the case at bar, is there really a conflict between international law and municipal or national
law? En contrario, these two components of the law of the land are not pitted against each other.
There is no occasion to choose which of the two should be upheld. Instead, we see a void in the
provisions of the RP-US Extradition Treaty, as implemented by Presidential Decree No. 1069, as
regards the basic due process rights of a prospective extraditee at the evaluation stage of
extradition proceedings. From the procedures earlier abstracted, after the filing of the extradition
petition and during the judicial determination of the propriety of extradition, the rights of notice
and hearing are clearly granted to the prospective extraditee. However, prior thereto, the law is
silent as to these rights. Reference to the U.S. extradition procedures also manifests this silence.

Petitioner interprets this silence as unavailability of these rights. Consequently, he describes the
evaluation procedure as an "ex parte technical assessment" of the sufficiency of the extradition
request and the supporting documents.

We disagree.

In the absence of a law or principle of law, we must apply the rules of fair play. An application
of the basic twin due process rights of notice and hearing will not go against the treaty or the
implementing law. Neither the Treaty nor the Extradition Law precludes these rights from a
prospective extraditee. Similarly, American jurisprudence and procedures on extradition pose no
proscription. In fact, in interstate extradition proceedings as explained above, the prospective
extraditee may even request for copies of the extradition documents from the governor of the
asylum state, and if he does, his right to be supplied the same becomes a demandable right (35
C.J.S. 410).

Petitioner contends that the United States requested the Philippine Government to prevent
unauthorized disclosure of confidential information. Hence, the secrecy surrounding the action of
the Department of Justice Panel of Attorneys. The confidentiality argument is, however,
overturned by petitioners revelation that everything it refuses to make available at this stage
would be obtainable during trial. The Department of Justice states that the U.S. District Court
concerned has authorized the disclosure of certain grand jury information. If the information is
truly confidential, the veil of secrecy cannot be lifted at any stage of the extradition proceedings.
Not even during trial.

A libertarian approach is thus called for under the premises.

One will search in vain the RP-US Extradition Treaty, the Extradition Law, as well as American
jurisprudence and procedures on extradition, for any prohibition against the conferment of the
two basic due process rights of notice and hearing during the evaluation stage of the extradition
proceedings. We have to consider similar situations in jurisprudence for an application by
analogy.

Earlier, we stated that there are similarities between the evaluation process and a preliminary
investigation since both procedures may result in the arrest of the respondent or the prospective
extraditee. In the evaluation process, a provisional arrest is even allowed by the Treaty and the
Extradition Law (Article 9, RP-US Extradition Treaty; Sec. 20, Presidential Decree No. 1069).
Following petitioners theory, because there is no provision of its availability, does this imply that
for a period of time, the privilege of the writ of habeas corpus is suspended, despite Section 15,
Article III of the Constitution which states that "[t]he privilege of the writ of habeas corpus shall
not be suspended except in cases of invasion or rebellion when the public safety requires it"?
Petitioners theory would also infer that bail is not available during the arrest of the prospective
extraditee when the extradition petition has already been filed in court since Presidential Decree
No. 1069 does not provide therefor, notwithstanding Section 13, Article III of the Constitution
which provides that "[a]ll persons, except those charged with offenses punishable by reclusion
perpetua when evidence of guilt is strong, shall, before conviction, be bailable by sufficient
sureties, or be released on recognizance as may be provided by law. The right to bail shall not be
impaired even when the privilege of the writ of habeas corpus is suspended " Can petitioner
validly argue that since these contraventions are by virtue of a treaty and hence affecting foreign
relations, the aforestated guarantees in the Bill of Rights could thus be subservient
thereto?

The basic principles of administrative law instruct us that "the essence of due process in
administrative proceedings is an opportunity to explain ones side or an opportunity to seek
reconsideration of the actions or ruling complained of (Mirano vs. NLRC, 270 SCRA 96 [1997];
Padilla vs. NLRC, 273 SCRA 457 [1997]; PLDT vs. NLRC, 276 SCRA 1 [1997]; Helpmate, Inc.
vs. NLRC, 276 SCRA 315 [1997]; Aquinas School vs. Magnaye, 278 SCRA 602 [1997]; Jamer
vs. NLRC, 278 SCRA 632 [1997]). In essence, procedural due process refers to the method or
manner by which the law is enforced (Corona vs. United Harbor Pilots Association of the Phils.,
283 SCRA 31 [1997]). This Court will not tolerate the least disregard of constitutional
guarantees in the enforcement of a law or treaty. Petitioners fears that the Requesting State may
have valid objections to the Requested States non-performance of its commitments under the
Extradition Treaty are insubstantial and should not be given paramount consideration.
How then do we implement the RP-US Extradition Treaty? Do we limit ourselves to the four
corners of Presidential Decree No. 1069?

Of analogous application are the rulings in Government Service Insurance System vs. Court of
Appeals (201 SCRA 661 [1991]) and Go vs. National Police Commission (271 SCRA 447
[1997]) where we ruled that in summary proceedings under Presidential Decree No. 807
(Providing for the Organization of the Civil Service Commission in Accordance with Provisions
of the Constitution, Prescribing its Powers and Functions and for Other Purposes), and
Presidential Decree No. 971 (Providing Legal Assistance for Members of the Integrated National
Police who may be charged for Service-Connected Offenses and Improving the Disciplinary
System in the Integrated National Police, Appropriating Funds Therefor and for other purposes),
as amended by Presidential Decree No. 1707, although summary dismissals may be effected
without the necessity of a formal investigation, the minimum requirements of due process still
operate. As held in GSIS vs. Court of Appeals:

... [I]t is clear to us that what the opening sentence of Section 40 is saying is that
an employee may be removed or dismissed even without formal investigation, in
certain instances. It is equally clear to us that an employee must be informed of
the charges preferred against him, and that the normal way by which the
employee is so informed is by furnishing him with a copy of the charges against
him. This is a basic procedural requirement that a statute cannot dispense with and
still remain consistent with the constitutional provision on due process. The
second minimum requirement is that the employee charged with some
misfeasance or malfeasance must have a reasonable opportunity to present his
side of the matter, that is to say, his defenses against the charges levelled against
him and to present evidence in support of his defenses. 

(at p. 671)

Said summary dismissal proceedings are also non-litigious in nature, yet we upheld the due
process rights of the respondent.

In the case at bar, private respondent does not only face a clear and present danger of loss of
property or employment, but of liberty itself, which may eventually lead to his forcible
banishment to a foreign land. The convergence of petitioners favorable action on the extradition
request and the deprivation of private respondents liberty is easily comprehensible.

We have ruled time and again that this Courts equity jurisdiction, which is aptly described as
"justice outside legality," may be availed of only in the absence of, and never against, statutory
law or judicial pronouncements (Smith Bell & Co., Inc. vs. Court of Appeals, 267 SCRA 530
[1997]; David-Chan vs. Court of Appeals, 268 SCRA 677 [1997]). The constitutional issue in the
case at bar does not even call for "justice outside legality," since private respondents due process
rights, although not guaranteed by statute or by treaty, are protected by constitutional guarantees.
We would not be true to the organic law of the land if we choose strict construction over
guarantees against the deprivation of liberty. That would not be in keeping with the principles of
democracy on which our Constitution is premised.
Verily, as one traverses treacherous waters of conflicting and opposing currents of liberty and
government authority, he must ever hold the oar of freedom in the stronger arm, lest an errant
and wayward course be laid.

WHEREFORE, in view of the foregoing premises, the instant petition is hereby DISMISSED
for lack of merit. Petitioner is ordered to furnish private respondent copies of the extradition
request and its supporting papers, and to grant him a reasonable period within which to file his
comment with supporting evidence. The incidents in Civil Case No. 99-94684 having been
rendered moot and academic by this decision, the same is hereby ordered dismissed.

SO ORDERED.

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Secretary of Justice vs Lantion

This entry was posted in Constitutional Law 1 Doctrine of Incorporation and tagged Political Law 1 on
November 3, 2014 by Morrie26

Secretary of Justice vs Lantion

Doctrine of Incorporation
SECRETARY OF JUSTICE VS LANTION

G.R. No. L-139465 January 18, 2000

SECRETARY OF JUSTICE, petitioner,

vs.

HON. RALPH C. LANTION, Presiding Judge, Regional Trial Court of Manila, Branch 25, and MARK B.
JIMENEZ, respondents.

Facts:

This is a petition for review of a decision of the Manila Regional Trial Court (RTC). The Department of
Justice received a request from the Department of Foreign Affairs for the extradition of respondent
Mark Jimenez to the U.S. The Grand Jury Indictment. The warrant for his arrest, and other supporting
documents for said extradition were attached along with the request. Charges include:

Conspiracy to commit offense or to defraud the US

Attempt to evade or defeat tax

Fraud by wire, radio, or television

False statement or entries

Election contribution in name of another

The Department of Justice (DOJ), through a designated panel proceeded with the technical evaluation
and assessment of the extradition treaty which they found having matters needed to be addressed.
Respondent, then requested for copies of all the documents included in the extradition request and
for him to be given ample time to assess it. The Secretary of Justice denied request on the following
grounds:

He found it premature to secure him copies prior to the completion of the evaluation. At that point in
time, the DOJ is in the process of evaluating whether the procedures and requirements under the
relevant law (PD 1069 Philippine Extradition Law) and treaty (RP-US Extradition Treaty) have been
complied with by the Requesting Government. Evaluation by the DOJ of the documents is not a
preliminary investigation like in criminal cases making the constitutionally guaranteed rights of the
accused in criminal prosecution inapplicable.

The U.S. requested for the prevention of unauthorized disclosure of the information in the
documents.
The department is not in position to hold in abeyance proceedings in connection with an extradition
request, as Philippines is bound to Vienna Convention on law of treaties such that every treaty in
force is binding upon the parties.

Mark Jimenez then filed a petition against the Secretary of Justice. RTC presiding Judge Lantion
favored Jimenez. Secretary of Justice was made to issue a copy of the requested papers, as well as
conducting further proceedings. Thus, this petition is now at bar.

Issue/s:

Whether or not respondent’s entitlement to notice and hearing during the evaluation stage of the
proceedings constitute a breach of the legal duties of the Philippine Government under the RP-US
Extradition Treaty.

Discussions:

The doctrine of incorporation is applied whenever municipal tribunals are confronted with situations
in which there appears to be a conflict between a rule of international law and the provisions of the
constitution or statute of a local state. Efforts should be done to harmonize them. In a situation,
however, where the conflict is irreconcilable and a choice has to be made between a rule of
international law and municipal law, jurisprudence dictates that municipal law should be upheld by
the municipal courts. The doctrine of incorporation decrees that rules of international law are given
equal standing, but are not superior to, national legislative enactments.

Ruling/s:

No. The human rights of person, Filipino or foreigner, and the rights of the accused guaranteed in our
Constitution should take precedence over treaty rights claimed by a contracting state. The duties of
the government to the individual deserve preferential consideration when they collide with its treaty
obligations to the government of another state. This is so although we recognize treaties as a source
of binding obligations under generally accepted principles of international law incorporated in our
Constitution as part of the law of the land.
G.R. No. L-5 September 17, 1945

CO KIM CHAM (alias CO KIM CHAM), petitioner,

vs.
EUSEBIO VALDEZ TAN KEH and ARSENIO P. DIZON, Judge of First Instance of Manila,
respondents.1

Marcelino Lontok for petitioner.

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

FERIA, J.:

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

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

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

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

The Chairman of the Executive Commission, as head of the central administrative organization, issued
Executive Orders Nos. 1 and 4, dated January 30 and February 5, 1942, respectively, in which the
Supreme Court, Court of Appeals, Courts of First Instance, and the justices of the peace and municipal
courts under the Commonwealth were continued with the same jurisdiction, in conformity with the
instructions given to the said Chairman of the Executive Commission by the Commander in Chief of
Japanese Forces in the Philippines in the latter's Order No. 3 of February 20, 1942, concerning basic
principles to be observed by the Philippine Executive Commission in exercising legislative, executive
and judicial powers. Section 1 of said Order provided that "activities of the administration organs and
judicial courts in the Philippines shall be based upon the existing statutes, orders, ordinances and
customs. . . ."
On October 14, 1943, the so-called Republic of the Philippines was inaugurated, but no substantial
change was effected thereby in the organization and jurisdiction of the different courts that functioned
during the Philippine Executive Commission, and in the laws they administered and enforced.

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

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

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

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

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

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

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

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

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

Speaking of government "de facto" of the second kind, the Supreme Court of the United States, in the
case of Thorington vs. Smith (8 Wall., 1), said: "But there is another description of government, called
also by publicists a government de facto, but which might, perhaps, be more aptly denominated a
government of paramount force. Its distinguishing characteristics are (1), that its existence is
maintained by active military power with the territories, and against the rightful authority of an
established and lawful government; and (2), that while it exists it necessarily be obeyed in civil matters
by private citizens who, by acts of obedience rendered in submission to such force, do not become
responsible, or wrongdoers, for those acts, though not warranted by the laws of the rightful
government. Actual governments of this sort are established over districts differing greatly in extent
and conditions. They are usually administered directly by military authority, but they may be
administered, also, civil authority, supported more or less directly by military force. . . . One example
of this sort of government is found in the case of Castine, in Mine, reduced to British possession in the
war of 1812 . . . U. S. vs. Rice (4 Wheaton, 253). A like example is found in the case of Tampico,
occupied during the war with Mexico, by the troops of the United States . . . Fleming vs. Page (9
Howard, 614). These were cases of temporary possessions of territory by lawfull and regular
governments at war with the country of which the territory so possessed was part."

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

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

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

And applying the principles for the exercise of military authority in an occupied territory, which were
later embodied in the said Hague Conventions, President McKinley, in his executive order to the
Secretary of War of May 19,1898, relating to the occupation of the Philippines by United States forces,
said in part: "Though the powers of the military occupant are absolute and supreme, and immediately
operate upon the political condition of the inhabitants, the municipal laws of the conquered territory,
such as affect private rights of person and property and provide for the punishment of crime, are
considered as continuing in force, so far as they are compatible with the new order of things, until they
are suspended or superseded by the occupying belligerent; and in practice they are not usually
abrogated, but are allowed to remain in force and to be administered by the ordinary tribunals,
substantially as they were before the occupation. This enlightened practice is, so far as possible, to
be adhered to on the present occasion. The judges and the other officials connected with the
administration of justice may, if they accept the authority of the United States, continue to administer
the ordinary law of the land as between man and man under the supervision of the American
Commander in Chief." (Richardson's Messages and Papers of President, X, p. 209.)

As to "de facto" government of the third kind, the Supreme Court of the United States, in the same
case of Thorington vs. Smith, supra, recognized the government set up by the Confederate States as
a de facto government. In that case, it was held that "the central government established for the
insurgent States differed from the temporary governments at Castine and Tampico in the circumstance
that its authority did no originate in lawful acts of regular war; but it was not, on the account, less actual
or less supreme. And we think that it must be classed among the governments of which these are
examples. . . .

In the case of William vs. Bruffy (96 U. S. 176, 192), the Supreme Court of the United States,
discussing the validity of the acts of the Confederate States, said: "The same general form of
government, the same general laws for the administration of justice and protection of private rights,
which had existed in the States prior to the rebellion, remained during its continuance and afterwards.
As far as the Acts of the States do not impair or tend to impair the supremacy of the national authority,
or the just rights of citizens under the Constitution, they are, in general, to be treated as valid and
binding. As we said in Horn vs. Lockhart (17 Wall., 570; 21 Law. ed., 657): "The existence of a state
of insurrection and war did not loosen the bonds of society, or do away with civil government or the
regular administration of the laws. Order was to be preserved, police regulations maintained, crime
prosecuted, property protected, contracts enforced, marriages celebrated, estates settled, and the
transfer and descent of property regulated, precisely as in the time of peace. No one, that we are
aware of, seriously questions the validity of judicial or legislative Acts in the insurrectionary States
touching these and kindered subjects, where they were not hostile in their purpose or mode of
enforcement to the authority of the National Government, and did not impair the rights of citizens under
the Constitution'. The same doctrine has been asserted in numerous other cases."

And the same court, in the case of Baldy vs. Hunter (171 U. S., 388, 400), held: "That what occured
or was done in respect of such matters under the authority of the laws of these local de facto
governments should not be disregarded or held to be invalid merely because those governments were
organized in hostility to the Union established by the national Constitution; this, because the existence
of war between the United States and the Confederate States did not relieve those who are within the
insurrectionary lines from the necessity of civil obedience, nor destroy the bonds of society nor do
away with civil government or the regular administration of the laws, and because transactions in the
ordinary course of civil society as organized within the enemy's territory although they may have
indirectly or remotely promoted the ends of the de facto or unlawful government organized to effect a
dissolution of the Union, were without blame 'except when proved to have been entered into with
actual intent to further invasion or insurrection:'" and "That judicial and legislative acts in the respective
states composing the so-called Confederate States should be respected by the courts if they were not
hostile in their purpose or mode of enforcement to the authority of the National Government, and did
not impair the rights of citizens under the Constitution."

In view of the foregoing, it is evident that the Philippine Executive Commission, which was organized
by Order No. 1, issued on January 23, 1942, by the Commander of the Japanese forces, was a civil
government established by the military forces of occupation and therefore a de facto government of
the second kind. It was not different from the government established by the British in Castine, Maine,
or by the United States in Tampico, Mexico. As Halleck says, "The government established over an
enemy's territory during the military occupation may exercise all the powers given by the laws of war
to the conqueror over the conquered, and is subject to all restrictions which that code imposes. It is of
little consequence whether such government be called a military or civil government. Its character is
the same and the source of its authority the same. In either case it is a government imposed by the
laws of war, and so far it concerns the inhabitants of such territory or the rest of the world, those laws
alone determine the legality or illegality of its acts." (Vol. 2, p. 466.) The fact that the Philippine
Executive Commission was a civil and not a military government and was run by Filipinos and not by
Japanese nationals, is of no consequence. In 1806, when Napoleon occupied the greater part of
Prussia, he retained the existing administration under the general direction of a french official (Langfrey
History of Napoleon, 1, IV, 25); and, in the same way, the Duke of Willington, on invading France,
authorized the local authorities to continue the exercise of their functions, apparently without
appointing an English superior. (Wellington Despatches, XI, 307.). The Germans, on the other hand,
when they invaded France in 1870, appointed their own officials, at least in Alsace and Lorraine, in
every department of administration and of every rank. (Calvo, pars. 2186-93; Hall, International Law,
7th ed., p. 505, note 2.)

The so-called Republic of the Philippines, apparently established and organized as a sovereign state
independent from any other government by the Filipino people, was, in truth and reality, a government
established by the belligerent occupant or the Japanese forces of occupation. It was of the same
character as the Philippine Executive Commission, and the ultimate source of its authority was the
same — the Japanese military authority and government. As General MacArthur stated in his
proclamation of October 23, 1944, a portion of which has been already quoted, "under enemy duress,
a so-called government styled as the 'Republic of the Philippines' was established on October 14,
1943, based upon neither the free expression of the people's will nor the sanction of the Government
of the United States." Japan had no legal power to grant independence to the Philippines or transfer
the sovereignty of the United States to, or recognize the latent sovereignty of, the Filipino people,
before its military occupation and possession of the Islands had matured into an absolute and
permanent dominion or sovereignty by a treaty of peace or other means recognized in the law of
nations. For it is a well-established doctrine in International Law, recognized in Article 45 of the Hauge
Conventions of 1907 (which prohibits compulsion of the population of the occupied territory to swear
allegiance to the hostile power), the belligerent occupation, being essentially provisional, does not
serve to transfer sovereignty over the territory controlled although the de jure government is during
the period of occupancy deprived of the power to exercise its rights as such. (Thirty Hogshead of
Sugar vs. Boyle, 9 Cranch, 191; United States vs. Rice, 4 Wheat., 246; Fleming vs. Page, 9 Howard,
603; Downes vs. Bidwell, 182 U. S., 345.) The formation of the Republic of the Philippines was a
scheme contrived by Japan to delude the Filipino people into believing in the apparent magnanimity
of the Japanese gesture of transferring or turning over the rights of government into the hands of
Filipinos. It was established under the mistaken belief that by doing so, Japan would secure the
cooperation or at least the neutrality of the Filipino people in her war against the United States and
other allied nations.

Indeed, even if the Republic of the Philippines had been established by the free will of the Filipino who,
taking advantage of the withdrawal of the American forces from the Islands, and the occupation thereof
by the Japanese forces of invasion, had organized an independent government under the name with
the support and backing of Japan, such government would have been considered as one established
by the Filipinos in insurrection or rebellion against the parent state or the Unite States. And as such, it
would have been a de facto government similar to that organized by the confederate states during the
war of secession and recognized as such by the by the Supreme Court of the United States in
numerous cases, notably those of Thorington vs. Smith, Williams vs. Bruffy, and Badly vs. Hunter,
above quoted; and similar to the short-lived government established by the Filipino insurgents in the
Island of Cebu during the Spanish-American war, recognized as a de facto government by the
Supreme Court of the United States in the case of McCleod vs. United States (299 U. S., 416).
According to the facts in the last-named case, the Spanish forces evacuated the Island of Cebu on
December 25, 1898, having first appointed a provisional government, and shortly afterwards, the
Filipinos, formerly in insurrection against Spain, took possession of the Islands and established a
republic, governing the Islands until possession thereof was surrendered to the United States on
February 22, 1898. And the said Supreme Court held in that case that "such government was of the
class of de facto governments described in I Moore's International Law Digest, S 20, . . . 'called also
by publicists a government de facto, but which might, perhaps, be more aptly denominated a
government of paramount force . . '." That is to say, that the government of a country in possession of
belligerent forces in insurrection or rebellion against the parent state, rests upon the same principles
as that of a territory occupied by the hostile army of an enemy at regular war with the legitimate power.

The governments by the Philippine Executive Commission and the Republic of the Philippines during
the Japanese military occupation being de facto governments, it necessarily follows that the judicial
acts and proceedings of the courts of justice of those governments, which are not of a political
complexion, were good and valid, and, by virtue of the well-known principle of postliminy (postliminium)
in international law, remained good and valid after the liberation or reoccupation of the Philippines by
the American and Filipino forces under the leadership of General Douglas MacArthur. According to
that well-known principle in international law, the fact that a territory which has been occupied by an
enemy comes again into the power of its legitimate government of sovereignty, "does not, except in a
very few cases, wipe out the effects of acts done by an invader, which for one reason or another it is
within his competence to do. Thus judicial acts done under his control, when they are not of a political
complexion, administrative acts so done, to the extent that they take effect during the continuance of
his control, and the various acts done during the same time by private persons under the sanction of
municipal law, remain good. Were it otherwise, the whole social life of a community would be paralyzed
by an invasion; and as between the state and the individuals the evil would be scarcely less, — it
would be hard for example that payment of taxes made under duress should be ignored, and it would
be contrary to the general interest that the sentences passed upon criminals should be annulled by
the disappearance of the intrusive government ." (Hall, International Law, 7th ed., p. 518.) And when
the occupation and the abandonment have been each an incident of the same war as in the present
case, postliminy applies, even though the occupant has acted as conqueror and for the time
substituted his own sovereignty as the Japanese intended to do apparently in granting independence
to the Philippines and establishing the so-called Republic of the Philippines. (Taylor, International Law,
p. 615.)

That not only judicial but also legislative acts of de facto governments, which are not of a political
complexion, are and remain valid after reoccupation of a territory occupied by a belligerent occupant,
is confirmed by the Proclamation issued by General Douglas MacArthur on October 23, 1944, which
declares null and void all laws, regulations and processes of the governments established in the
Philippines during the Japanese occupation, for it would not have been necessary for said
proclamation to abrogate them if they were invalid ab initio.

2. The second question hinges upon the interpretation of the phrase "processes of any other
government" as used in the above-quoted proclamation of General Douglas MacArthur of October 23,
1944 — that is, whether it was the intention of the Commander in Chief of the American Forces to
annul and void thereby all judgments and judicial proceedings of the courts established in the
Philippines during the Japanese military occupation.

The phrase "processes of any other government" is broad and may refer not only to the judicial
processes, but also to administrative or legislative, as well as constitutional, processes of the Republic
of the Philippines or other governmental agencies established in the Islands during the Japanese
occupation. Taking into consideration the fact that, as above indicated, according to the well-known
principles of international law all judgements and judicial proceedings, which are not of a political
complexion, of the de facto governments during the Japanese military occupation were good and valid
before and remained so after the occupied territory had come again into the power of the titular
sovereign, it should be presumed that it was not, and could not have been, the intention of General
Douglas MacArthur, in using the phrase "processes of any other government" in said proclamation, to
refer to judicial processes, in violation of said principles of international law. The only reasonable
construction of the said phrase is that it refers to governmental processes other than judicial processes
of court proceedings, for according to a well-known rule of statutory construction, set forth in 25 R. C.
L., p. 1028, "a statute ought never to be construed to violate the law of nations if any other possible
construction remains."

It is true that the commanding general of a belligerent army of occupation, as an agent of his
government, may not unlawfully suspend existing laws and promulgate new ones in the occupied
territory, if and when the exigencies of the military occupation demand such action. But even assuming
that, under the law of nations, the legislative power of a commander in chief of military forces who
liberates or reoccupies his own territory which has been occupied by an enemy, during the military
and before the restoration of the civil regime, is as broad as that of the commander in chief of the
military forces of invasion and occupation (although the exigencies of military reoccupation are
evidently less than those of occupation), it is to be presumed that General Douglas MacArthur, who
was acting as an agent or a representative of the Government and the President of the United States,
constitutional commander in chief of the United States Army, did not intend to act against the principles
of the law of nations asserted by the Supreme Court of the United States from the early period of its
existence, applied by the Presidents of the United States, and later embodied in the Hague
Conventions of 1907, as above indicated. It is not to be presumed that General Douglas MacArthur,
who enjoined in the same proclamation of October 23, 1944, "upon the loyal citizens of the Philippines
full respect and obedience to the Constitution of the Commonwealth of the Philippines," should not
only reverse the international policy and practice of his own government, but also disregard in the
same breath the provisions of section 3, Article II, of our Constitution, which provides that "The
Philippines renounces war as an instrument of national policy, and adopts the generally accepted
principles of international law as part of the law of the Nation."
Moreover, from a contrary construction great inconvenience and public hardship would result, and
great public interests would be endangered and sacrificed, for disputes or suits already adjudged
would have to be again settled accrued or vested rights nullified, sentences passed on criminals set
aside, and criminals might easily become immune for evidence against them may have already
disappeared or be no longer available, especially now that almost all court records in the Philippines
have been destroyed by fire as a consequence of the war. And it is another well-established rule of
statutory construction that where great inconvenience will result from a particular construction, or great
public interests would be endangered or sacrificed, or great mischief done, such construction is to be
avoided, or the court ought to presume that such construction was not intended by the makers of the
law, unless required by clear and unequivocal words. (25 R. C. L., pp. 1025, 1027.)

The mere conception or thought of possibility that the titular sovereign or his representatives who
reoccupies a territory occupied by an enemy, may set aside or annul all the judicial acts or proceedings
of the tribunals which the belligerent occupant had the right and duty to establish in order to insure
public order and safety during military occupation, would be sufficient to paralyze the social life of the
country or occupied territory, for it would have to be expected that litigants would not willingly submit
their litigation to courts whose judgements or decisions may afterwards be annulled, and criminals
would not be deterred from committing crimes or offenses in the expectancy that they may escaped
the penalty if judgments rendered against them may be afterwards set aside.

That the proclamation has not invalidated all the judgements and proceedings of the courts of justice
during the Japanese regime, is impliedly confirmed by Executive Order No. 37, which has the force of
law, issued by the President of the Philippines on March 10, 1945, by virtue of the emergency
legislative power vested in him by the Constitution and the laws of the Commonwealth of the
Philippines. Said Executive order abolished the Court of Appeals, and provided "that all case which
have heretofore been duly appealed to the Court of Appeals shall be transmitted to the Supreme Court
final decision." This provision impliedly recognizes that the judgments and proceedings of the courts
during the Japanese military occupation have not been invalidated by the proclamation of General
MacArthur of October 23, because the said Order does not say or refer to cases which have been duly
appealed to said court prior to the Japanese occupation, but to cases which had therefore, that is, up
to March 10, 1945, been duly appealed to the Court of Appeals; and it is to be presumed that almost
all, if not all, appealed cases pending in the Court of Appeals prior to the Japanese military occupation
of Manila on January 2, 1942, had been disposed of by the latter before the restoration of the
Commonwealth Government in 1945; while almost all, if not all, appealed cases pending on March 10,
1945, in the Court of Appeals were from judgments rendered by the Court of First Instance during the
Japanese regime.

The respondent judge quotes a portion of Wheaton's International Law which say: "Moreover when it
is said that an occupier's acts are valid and under international law should not be abrogated by the
subsequent conqueror, it must be remembered that no crucial instances exist to show that if his acts
should be reversed, any international wrong would be committed. What does happen is that most
matters are allowed to stand by the restored government, but the matter can hardly be put further than
this." (Wheaton, International Law, War, 7th English edition of 1944, p. 245.) And from this quotion the
respondent judge "draws the conclusion that whether the acts of the occupant should be considered
valid or not, is a question that is up to the restored government to decide; that there is no rule of
international law that denies to the restored government to decide; that there is no rule of international
law that denies to the restored government the right of exercise its discretion on the matter, imposing
upon it in its stead the obligation of recognizing and enforcing the acts of the overthrown government."

There is doubt that the subsequent conqueror has the right to abrogate most of the acts of the occupier,
such as the laws, regulations and processes other than judicial of the government established by the
belligerent occupant. But in view of the fact that the proclamation uses the words "processes of any
other government" and not "judicial processes" prisely, it is not necessary to determine whether or not
General Douglas MacArthur had power to annul and set aside all judgments and proceedings of the
courts during the Japanese occupation. The question to be determined is whether or not it was his
intention, as representative of the President of the United States, to avoid or nullify them. If the
proclamation had, expressly or by necessary implication, declared null and void the judicial processes
of any other government, it would be necessary for this court to decide in the present case whether or
not General Douglas MacArthur had authority to declare them null and void. But the proclamation did
not so provide, undoubtedly because the author thereof was fully aware of the limitations of his powers
as Commander in Chief of Military Forces of liberation or subsequent conqueror.

Not only the Hague Regulations, but also the principles of international law, as they result from the
usages established between civilized nations, the laws of humanity and the requirements of the public
of conscience, constitute or from the law of nations. (Preamble of the Hague Conventions; Westlake,
International Law, 2d ed., Part II, p. 61.) Article 43, section III, of the Hague Regulations or Conventions
which we have already quoted in discussing the first question, imposes upon the occupant the
obligation to establish courts; and Article 23 (h), section II, of the same Conventions, which prohibits
the belligerent occupant "to declare . . . suspended . . . in a Court of Law the rights and action of the
nationals of the hostile party," forbids him to make any declaration preventing the inhabitants from
using their courts to assert or enforce their civil rights. (Decision of the Court of Appeals of England in
the case of Porter vs. Fruedenburg, L.R. [1915], 1 K.B., 857.) If a belligerent occupant is required to
establish courts of justice in the territory occupied, and forbidden to prevent the nationals thereof from
asserting or enforcing therein their civil rights, by necessary implication, the military commander of the
forces of liberation or the restored government is restrained from nullifying or setting aside the
judgments rendered by said courts in their litigation during the period of occupation. Otherwise, the
purpose of these precepts of the Hague Conventions would be thwarted, for to declare them null and
void would be tantamount to suspending in said courts the right and action of the nationals of the
territory during the military occupation thereof by the enemy. It goes without saying that a law that
enjoins a person to do something will not at the same time empower another to undo the same.
Although the question whether the President or commanding officer of the United States Army has
violated restraints imposed by the constitution and laws of his country is obviously of a domestic
nature, yet, in construing and applying limitations imposed on the executive authority, the Supreme
Court of the United States, in the case of Ochoa, vs. Hernandez (230 U.S., 139), has declared that
they "arise from general rules of international law and from fundamental principles known wherever
the American flag flies."

In the case of Raymond vs. Thomas (91 U.S., 712), a special order issued by the officer in command
of the forces of the United States in South Carolina after the end of the Civil War, wholly annulling a
decree rendered by a court of chancery in that state in a case within its jurisdiction, was declared void,
and not warranted by the acts approved respectively March 2, 1867 (14 Stat., 428), and July 19 of the
same year (15 id., 14), which defined the powers and duties of military officers in command of the
several states then lately in rebellion. In the course of its decision the court said; "We have looked
carefully through the acts of March 2, 1867 and July 19, 1867. They give very large governmental
powers to the military commanders designated, within the States committed respectively to their
jurisdiction; but we have found nothing to warrant the order here in question. . . . The clearest language
would be necessary to satisfy us that Congress intended that the power given by these acts should
be so exercised. . . . It was an arbitrary stretch of authority, needful to no good end that can be
imagined. Whether Congress could have conferred the power to do such an act is a question we are
not called upon to consider. It is an unbending rule of law that the exercise of military power, where
the rights of the citizen are concerned, shall never be pushed beyond what the exigency requires.
(Mithell vs. Harmony, 13 How., 115; Warden vs. Bailey, 4 Taunt., 67; Fabrigas vs. Moysten, 1 Cowp.,
161; s.c., 1 Smith's L.C., pt. 2, p. 934.) Viewing the subject before us from the standpoint indicated,
we hold that the order was void."
It is, therefore, evident that the proclamation of General MacArthur of October 23, 1944, which
declared that "all laws, regulations and processes of any other government in the Philippines than that
of the said Commonwealth are null and void without legal effect in areas of the Philippines free of
enemy occupation and control," has not invalidated the judicial acts and proceedings, which are not a
political complexion, of the courts of justice in the Philippines that were continued by the Philippine
Executive Commission and the Republic of the Philippines during the Japanese military occupation,
and that said judicial acts and proceedings were good and valid before and now good and valid after
the reoccupation of liberation of the Philippines by the American and Filipino forces.

3. The third and last question is whether or not the courts of the Commonwealth, which are the same
as those existing prior to, and continued during, the Japanese military occupation by the Philippine
Executive Commission and by the so-called Republic of the Philippines, have jurisdiction to continue
now the proceedings in actions pending in said courts at the time the Philippine Islands were
reoccupied or liberated by the American and Filipino forces, and the Commonwealth Government was
restored.

Although in theory the authority the authority of the local civil and judicial administration is suspended
as a matter of course as soon as military occupation takes place, in practice the invader does not
usually take the administration of justice into his own hands, but continues the ordinary courts or
tribunals to administer the laws of the country which he is enjoined, unless absolutely prevented, to
respect. As stated in the above-quoted Executive Order of President McKinley to the Secretary of War
on May 19, 1898, "in practice, they (the municipal laws) are not usually abrogated but are allowed to
remain in force and to be administered by the ordinary tribunals substantially as they were before the
occupation. This enlightened practice is, so far as possible, to be adhered to on the present occasion."
And Taylor in this connection says: "From a theoretical point of view it may be said that the conqueror
is armed with the right to substitute his arbitrary will for all preexisting forms of government, legislative,
executive and judicial. From the stand-point of actual practice such arbitrary will is restrained by the
provision of the law of nations which compels the conqueror to continue local laws and institution so
far as military necessity will permit." (Taylor, International Public Law, p.596.) Undoubtedly, this
practice has been adopted in order that the ordinary pursuits and business of society may not be
unnecessarily deranged, inasmuch as belligerent occupation is essentially provisional, and the
government established by the occupant of transient character.

Following these practice and precepts of the law of nations, Commander in Chief of the Japanese
Forces proclaimed on January 3, 1942, when Manila was occupied, the military administration under
martial law over the territory occupied by the army, and ordered that "all the laws now in force in the
Commonwealth, as well as executive and judicial institutions, shall continue to be affective for the time
being as in the past," and "all public officials shall remain in their present post and carry on faithfully
their duties as before." When the Philippine Executive Commission was organized by Order No. 1 of
the Japanese Commander in Chief, on January 23, 1942, the Chairman of the Executive Commission,
by Executive Orders Nos. 1 and 4 of January 30 and February 5, respectively, continued the Supreme
Court, Court of Appeals, Court of First Instance, and justices of the peace of courts, with the same
jurisdiction in conformity with the instructions given by the Commander in Chief of the Imperial
Japanese Army in Order No. 3 of February 20, 1942. And on October 14, 1943 when the so-called
Republic of the Philippines was inaugurated, the same courts were continued with no substantial
change in organization and jurisdiction thereof.

If the proceedings pending in the different courts of the Islands prior to the Japanese military
occupation had been continued during the Japanese military administration, the Philippine Executive
Commission, and the so-called Republic of the Philippines, it stands to reason that the same courts,
which had become reestablished and conceived of as having in continued existence upon the
reoccupation and liberation of the Philippines by virtue of the principle of postliminy (Hall, International
Law, 7th ed., p. 516), may continue the proceedings in cases then pending in said courts, without
necessity of enacting a law conferring jurisdiction upon them to continue said proceedings. As Taylor
graphically points out in speaking of said principles "a state or other governmental entity, upon the
removal of a foreign military force, resumes its old place with its right and duties substantially
unimpaired. . . . Such political resurrection is the result of a law analogous to that which enables elastic
bodies to regain their original shape upon removal of the external force, — and subject to the same
exception in case of absolute crushing of the whole fibre and content." (Taylor, International Public
Law, p. 615.)

The argument advanced by the respondent judge in his resolution in support in his conclusion that the
Court of First Instance of Manila presided over by him "has no authority to take cognizance of, and
continue said proceedings (of this case) to final judgment until and unless the Government of the
Commonwealth of the Philippines . . . shall have provided for the transfer of the jurisdiction of the
courts of the now defunct Republic of the Philippines, and the cases commenced and the left pending
therein," is "that said courts were a government alien to the Commonwealth Government. The laws
they enforced were, true enough, laws of the Commonwealth prior to Japanese occupation, but they
had become the laws — and the courts had become the institutions — of Japan by adoption (U.S. vs.
Reiter. 27 F. Cases, No. 16146), as they became later on the laws and institutions of the Philippine
Executive Commission and the Republic of the Philippines."

The court in the said case of U.S. vs. Reiter did not and could not say that the laws and institutions of
the country occupied if continued by the conqueror or occupant, become the laws and the courts, by
adoption, of the sovereign nation that is militarily occupying the territory. Because, as already shown,
belligerent or military occupation is essentially provisional and does not serve to transfer the
sovereignty over the occupied territory to the occupant. What the court said was that, if such laws and
institutions are continued in use by the occupant, they become his and derive their force from him, in
the sense that he may continue or set them aside. The laws and institution or courts so continued
remain the laws and institutions or courts of the occupied territory. The laws and the courts of the
Philippines, therefore, did not become, by being continued as required by the law of nations, laws and
courts of Japan. The provision of Article 45, section III, of the Hague Conventions of 1907 which
prohibits any compulsion of the population of occupied territory to swear allegiance to the hostile
power, "extends to prohibit everything which would assert or imply a change made by the invader in
the legitimate sovereignty. This duty is neither to innovate in the political life of the occupied districts,
nor needlessly to break the continuity of their legal life. Hence, so far as the courts of justice are
allowed to continue administering the territorial laws, they must be allowed to give their sentences in
the name of the legitimate sovereign " (Westlake, Int. Law, Part II, second ed., p. 102). According to
Wheaton, however, the victor need not allow the use of that of the legitimate government. When in
1870, the Germans in France attempted to violate that rule by ordering, after the fall of the Emperor
Napoleon, the courts of Nancy to administer justice in the name of the "High German Powers
occupying Alsace and Lorraine," upon the ground that the exercise of their powers in the name of
French people and government was at least an implied recognition of the Republic, the courts refused
to obey and suspended their sitting. Germany originally ordered the use of the name of "High German
Powers occupying Alsace and Lorraine," but later offered to allow use of the name of the Emperor or
a compromise. (Wheaton, International Law, War, 7th English ed. 1944, p. 244.)

Furthermore, it is a legal maxim, that excepting that of a political nature, "Law once established
continues until changed by the some competent legislative power. It is not change merely by change
of sovereignty." (Joseph H. Beale, Cases on Conflict of Laws, III, Summary Section 9, citing
Commonwealth vs. Chapman, 13 Met., 68.) As the same author says, in his Treatise on the Conflict
on Laws (Cambridge, 1916, Section 131): "There can no break or interregnum in law. From the time
the law comes into existence with the first-felt corporateness of a primitive people it must last until the
final disappearance of human society. Once created, it persists until a change take place, and when
changed it continues in such changed condition until the next change, and so forever. Conquest or
colonization is impotent to bring law to an end; in spite of change of constitution, the law continues
unchanged until the new sovereign by legislative acts creates a change."

As courts are creatures of statutes and their existence defends upon that of the laws which create and
confer upon them their jurisdiction, it is evident that such laws, not being a political nature, are not
abrogated by a change of sovereignty, and continue in force "ex proprio vigore" unless and until
repealed by legislative acts. A proclamation that said laws and courts are expressly continued is not
necessary in order that they may continue in force. Such proclamation, if made, is but a declaration of
the intention of respecting and not repealing those laws. Therefore, even assuming that Japan had
legally acquired sovereignty over these Islands, which she had afterwards transferred to the so-called
Republic of the Philippines, and that the laws and the courts of these Islands had become the courts
of Japan, as the said courts of the laws creating and conferring jurisdiction upon them have continued
in force until now, it necessarily follows that the same courts may continue exercising the same
jurisdiction over cases pending therein before the restoration of the Commonwealth Government,
unless and until they are abolished or the laws creating and conferring jurisdiction upon them are
repealed by the said government. As a consequence, enabling laws or acts providing that proceedings
pending in one court be continued by or transferred to another court, are not required by the mere
change of government or sovereignty. They are necessary only in case the former courts are abolished
or their jurisdiction so change that they can no longer continue taking cognizance of the cases and
proceedings commenced therein, in order that the new courts or the courts having jurisdiction over
said cases may continue the proceedings. When the Spanish sovereignty in the Philippine Islands
ceased and the Islands came into the possession of the United States, the "Audiencia" or Supreme
Court was continued and did not cease to exist, and proceeded to take cognizance of the actions
pending therein upon the cessation of the Spanish sovereignty until the said "Audiencia" or Supreme
Court was abolished, and the Supreme Court created in Chapter II of Act No. 136 was substituted in
lieu thereof. And the Courts of First Instance of the Islands during the Spanish regime continued taking
cognizance of cases pending therein upon the change of sovereignty, until section 65 of the same Act
No. 136 abolished them and created in its Chapter IV the present Courts of First Instance in
substitution of the former. Similarly, no enabling acts were enacted during the Japanese occupation,
but a mere proclamation or order that the courts in the Island were continued.

On the other hand, during the American regime, when section 78 of Act No. 136 was enacted
abolishing the civil jurisdiction of the provost courts created by the military government of occupation
in the Philippines during the Spanish-American War of 1898, the same section 78 provided for the
transfer of all civil actions then pending in the provost courts to the proper tribunals, that is, to the
justices of the peace courts, Court of First Instance, or Supreme Court having jurisdiction over them
according to law. And later on, when the criminal jurisdiction of provost courts in the City of Manila
was abolished by section 3 of Act No. 186, the same section provided that criminal cases pending
therein within the jurisdiction of the municipal court created by Act No. 183 were transferred to the
latter.

That the present courts as the same courts which had been functioning during the Japanese regime
and, therefore, can continue the proceedings in cases pending therein prior to the restoration of the
Commonwealth of the Philippines, is confirmed by Executive Order No. 37 which we have already
quoted in support of our conclusion in connection with the second question. Said Executive Order
provides"(1) that the Court of Appeals created and established under Commonwealth Act No. 3 as
amended, be abolished, as it is hereby abolished," and "(2) that all cases which have heretofore been
duly appealed to the Court of Appeals shall be transmitted to the Supreme Court for final decision. . .
." In so providing, the said Order considers that the Court of Appeals abolished was the same that
existed prior to, and continued after, the restoration of the Commonwealth Government; for, as we
have stated in discussing the previous question, almost all, if not all, of the cases pending therein, or
which had theretofore (that is, up to March 10, 1945) been duly appealed to said court, must have
been cases coming from the Courts of First Instance during the so-called Republic of the Philippines.
If the Court of Appeals abolished by the said Executive Order was not the same one which had been
functioning during the Republic, but that which had existed up to the time of the Japanese occupation,
it would have provided that all the cases which had, prior to and up to that occupation on January 2,
1942, been dully appealed to the said Court of Appeals shall be transmitted to the Supreme Court for
final decision.

It is, therefore, obvious that the present courts have jurisdiction to continue, to final judgment, the
proceedings in cases, not of political complexion, pending therein at the time of the restoration of the
Commonwealth Government.

Having arrived at the above conclusions, it follows that the Court of First Instance of Manila has
jurisdiction to continue to final judgment the proceedings in civil case No. 3012, which involves civil
rights of the parties under the laws of the Commonwealth Government, pending in said court at the
time of the restoration of the said Government; and that the respondent judge of the court, having
refused to act and continue him does a duty resulting from his office as presiding judge of that court,
mandamus is the speedy and adequate remedy in the ordinary course of law, especially taking into
consideration the fact that the question of jurisdiction herein involved does affect not only this particular
case, but many other cases now pending in all the courts of these Islands.

In view of all the foregoing it is adjudged and decreed that a writ of mandamus issue, directed to the
respondent judge of the Court of First Instance of Manila, ordering him to take cognizance of and
continue to final judgment the proceedings in civil case No. 3012 of said court. No pronouncement as
to costs. So ordered.

Moran, C.J., Ozaeta, Paras, Jaranilla and Pablo, JJ., concur.

CASE DIGEST:

Co Kim Cham vs Valdez Tan Keh

de facto government

CO KIM CHAM VS VALDEZ TAN KEH

G.R. No. L-5 75 Phil 113, 122 September 17, 1945

CO KIM CHAM (alias CO KIM CHAM), petitioner,

vs.

EUSEBIO VALDEZ TAN KEH and ARSENIO P. DIZON, Judge of First Instance of Manila, respondents.

Facts:

Petitioner Co Kim Cham had a pending Civil Case with the Court of First Instance of Manila initiated
during the time of the Japanese occupation.
The respondent judge, Judge Arsenio Dizon, refused to continue hearings on the case which were
initiated during the Japanese military occupation on the ground that the proclamation issued by General
MacArthur that “all laws, regulations and processes of any other government in the Philippines than
that of the said Commonwealth are null and void and without legal effect in areas of the Philippines free
of enemy occupation and control” had the effect of invalidating and nullifying all judicial proceedings
and judgments of the court of the Philippines during the Japanese military occupation, and that the
lower courts have no jurisdiction to take cognizance of and continue judicial proceedings pending in the
courts of the defunct Republic of the Philippines in the absence of an enabling law granting such
authority.

Respondent, additionally contends that the government established during the Japanese occupation
were no de facto government.

Issues:

Whether or not judicial acts and proceedings of the court made during the Japanese occupation were
valid and remained valid even after the liberation or reoccupation of the Philippines by the United
States and Filipino forces.

Whether or not the October 23, 1944 proclamation issued by General MacArthur declaring that “all
laws, regulations and processes of any other government in the Philippines than that of the said
Commonwealth are null and void and without legal effect in areas of the Philippines free of enemy
occupation and control” has invalidated all judgments and judicial acts and proceedings of the courts.

Whether or not those courts could continue hearing the cases pending before them, if the said judicial
acts and proceedings were not invalidated by MacArthur’s proclamation.

Discussions:

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

General MacArthur annulled proceedings of other governments in his proclamation October 23, 1944,
but this cannot be applied on judicial proceedings because such a construction would violate the law of
nations.

If the proceedings pending in the different courts of the Islands prior to the Japanese military occupation
had been continued during the Japanese military administration, the Philippine Executive Commission,
and the so-called Republic of the Philippines, it stands to reason that the same courts, which had
become re-established and conceived of as having in continued existence upon the reoccupation and
liberation of the Philippines by virtue of the principle of postliminy (Hall, International Law, 7th ed., p.
516), may continue the proceedings in cases then pending in said courts, without necessity of enacting a
law conferring jurisdiction upon them to continue said proceedings. As Taylor graphically points out in
speaking of said principles “a state or other governmental entity, upon the removal of a foreign military
force, resumes its old place with its right and duties substantially unimpaired. . . . Such political
resurrection is the result of a law analogous to that which enables elastic bodies to regain their original
shape upon removal of the external force, — and subject to the same exception in case of absolute
crushing of the whole fibre and content.”

Rulings:

The judicial acts and proceedings of the court were good and valid. The governments by the Philippine
Executive Commission and the Republic of the Philippines during the Japanese military occupation being
de facto governments, it necessarily follows that the judicial acts and proceedings of the court of justice
of those governments, which are not of a political complexion, were good and valid. Those not only
judicial but also legislative acts of de facto government, which are not of a political complexion,
remained good and valid after the liberation or reoccupation of the Philippines by the American and
Filipino forces under the leadership of General Douglas MacArthur.

The phrase “processes of any other government” is broad and may refer not only to the judicial
processes, but also to administrative or legislative, as well as constitutional, processes of the Republic of
the Philippines or other governmental agencies established in the Islands during the Japanese
occupation. Taking into consideration the fact that, as above indicated, according to the well-known
principles of international law all judgements and judicial proceedings, which are not of a political
complexion, of the de facto governments during the Japanese military occupation were good and valid
before and remained so after the occupied territory had come again into the power of the titular
sovereign, it should be presumed that it was not, and could not have been, the intention of General
Douglas MacArthur, in using the phrase “processes of any other government” in said proclamation, to
refer to judicial processes, in violation of said principles of international law.

Although in theory the authority of the local civil and judicial administration is suspended as a matter of
course as soon as military occupation takes place, in practice the invader does not usually take the
administration of justice into his own hands, but continues the ordinary courts or tribunals to administer
the laws of the country which he is enjoined, unless absolutely prevented, to respect. An Executive
Order of President McKinley to the Secretary of War states that “in practice, they (the municipal laws)
are not usually abrogated but are allowed to remain in force and to be administered by the ordinary
tribunals substantially as they were before the occupation. This enlightened practice is, so far as
possible, to be adhered to on the present occasion.” And Taylor in this connection says: “From a
theoretical point of view it may be said that the conqueror is armed with the right to substitute his
arbitrary will for all pre-existing forms of government, legislative, executive and judicial. From the stand-
point of actual practice such arbitrary will is restrained by the provision of the law of nations which
compels the conqueror to continue local laws and institution so far as military necessity will permit.”
Undoubtedly, this practice has been adopted in order that the ordinary pursuits and business of society
may not be unnecessarily deranged, inasmuch as belligerent occupation is essentially provisional, and
the government established by the occupant of transient character.
G.R. No. L-7995 May 31, 1957

LAO H. ICHONG, in his own behalf and in behalf of other alien residents, corporations and partnerships adversely
affected. by Republic Act No. 1180, petitioner,
vs.
JAIME HERNANDEZ, Secretary of Finance, and MARCELINO SARMIENTO, City Treasurer of Manila, respondents.

Ozaeta, Lichauco and Picazo and Sycip, Quisumbing, Salazar and Associates for petitioner.
Office of the Solicitor General Ambrosio Padilla and Solicitor Pacifico P. de Castro for respondent Secretary of Finance.
City Fiscal Eugenio Angeles and Assistant City Fiscal Eulogio S. Serrano for respondent City Treasurer.
Dionisio Reyes as Amicus Curiae.
Marcial G. Mendiola as Amicus Curiae.
Emiliano R. Navarro as Amicus Curiae.

LABRADOR, J.:

I. The case and issue, in general

This Court has before it the delicate task of passing upon the validity and constitutionality of a legislative enactment, fundamental
and far-reaching in significance. The enactment poses questions of due process, police power and equal protection of the laws. It
also poses an important issue of fact, that is whether the conditions which the disputed law purports to remedy really or actually
exist. Admittedly springing from a deep, militant, and positive nationalistic impulse, the law purports to protect citizen and country
from the alien retailer. Through it, and within the field of economy it regulates, Congress attempts to translate national aspirations
for economic independence and national security, rooted in the drive and urge for national survival and welfare, into a concrete
and tangible measures designed to free the national retailer from the competing dominance of the alien, so that the country and
the nation may be free from a supposed economic dependence and bondage. Do the facts and circumstances justify the
enactment?

II. Pertinent provisions of Republic Act No. 1180

Republic Act No. 1180 is entitled "An Act to Regulate the Retail Business." In effect it nationalizes the retail trade business. The
main provisions of the Act are: (1) a prohibition against persons, not citizens of the Philippines, and against associations,
partnerships, or corporations the capital of which are not wholly owned by citizens of the Philippines, from engaging directly or
indirectly in the retail trade; (2) an exception from the above prohibition in favor of aliens actually engaged in said business on
May 15, 1954, who are allowed to continue to engaged therein, unless their licenses are forfeited in accordance with the law,
until their death or voluntary retirement in case of natural persons, and for ten years after the approval of the Act or until the
expiration of term in case of juridical persons; (3) an exception therefrom in favor of citizens and juridical entities of the United
States; (4) a provision for the forfeiture of licenses (to engage in the retail business) for violation of the laws on nationalization,
control weights and measures and labor and other laws relating to trade, commerce and industry; (5) a prohibition against the
establishment or opening by aliens actually engaged in the retail business of additional stores or branches of retail business, (6)
a provision requiring aliens actually engaged in the retail business to present for registration with the proper authorities a verified
statement concerning their businesses, giving, among other matters, the nature of the business, their assets and liabilities and
their offices and principal offices of judicial entities; and (7) a provision allowing the heirs of aliens now engaged in the retail
business who die, to continue such business for a period of six months for purposes of liquidation.

III. Grounds upon which petition is based-Answer thereto

Petitioner, for and in his own behalf and on behalf of other alien residents corporations and partnerships adversely affected by
the provisions of Republic Act. No. 1180, brought this action to obtain a judicial declaration that said Act is unconstitutional, and
to enjoin the Secretary of Finance and all other persons acting under him, particularly city and municipal treasurers, from
enforcing its provisions. Petitioner attacks the constitutionality of the Act, contending that: (1) it denies to alien residents the equal
protection of the laws and deprives of their liberty and property without due process of law ; (2) the subject of the Act is not
expressed or comprehended in the title thereof; (3) the Act violates international and treaty obligations of the Republic of the
Philippines; (4) the provisions of the Act against the transmission by aliens of their retail business thru hereditary succession, and
those requiring 100% Filipino capitalization for a corporation or entity to entitle it to engage in the retail business, violate the spirit
of Sections 1 and 5, Article XIII and Section 8 of Article XIV of the Constitution.

In answer, the Solicitor-General and the Fiscal of the City of Manila contend that: (1) the Act was passed in the valid exercise of
the police power of the State, which exercise is authorized in the Constitution in the interest of national economic survival; (2) the
Act has only one subject embraced in the title; (3) no treaty or international obligations are infringed; (4) as regards hereditary
succession, only the form is affected but the value of the property is not impaired, and the institution of inheritance is only of
statutory origin.

IV. Preliminary consideration of legal principles involved

a. The police power. —

There is no question that the Act was approved in the exercise of the police power, but petitioner claims that its exercise in this
instance is attended by a violation of the constitutional requirements of due process and equal protection of the laws. But before
proceeding to the consideration and resolution of the ultimate issue involved, it would be well to bear in mind certain basic and
fundamental, albeit preliminary, considerations in the determination of the ever recurrent conflict between police power and the
guarantees of due process and equal protection of the laws. What is the scope of police power, and how are the due process
and equal protection clauses related to it? What is the province and power of the legislature, and what is the function and duty of
the courts? These consideration must be clearly and correctly understood that their application to the facts of the case may be
brought forth with clarity and the issue accordingly resolved.

It has been said the police power is so far - reaching in scope, that it has become almost impossible to limit its sweep. As it
derives its existence from the very existence of the State itself, it does not need to be expressed or defined in its scope; it is said
to be co-extensive with self-protection and survival, and as such it is the most positive and active of all governmental processes,
the most essential, insistent and illimitable. Especially is it so under a modern democratic framework where the demands of
society and of nations have multiplied to almost unimaginable proportions; the field and scope of police power has become
almost boundless, just as the fields of public interest and public welfare have become almost all-embracing and have
transcended human foresight. Otherwise stated, as we cannot foresee the needs and demands of public interest and welfare in
this constantly changing and progressive world, so we cannot delimit beforehand the extent or scope of police power by which
and through which the State seeks to attain or achieve interest or welfare. So it is that Constitutions do not define the scope or
extent of the police power of the State; what they do is to set forth the limitations thereof. The most important of these are the
due process clause and the equal protection clause.

b. Limitations on police power. —

The basic limitations of due process and equal protection are found in the following provisions of our Constitution:

SECTION 1.(1) No person shall be deprived of life, liberty or property without due process of law, nor any person be denied the
equal protection of the laws. (Article III, Phil. Constitution)

These constitutional guarantees which embody the essence of individual liberty and freedom in democracies, are not limited to
citizens alone but are admittedly universal in their application, without regard to any differences of race, of color, or of nationality.
(Yick Wo vs. Hopkins, 30, L. ed. 220, 226.)

c. The, equal protection clause. —

The equal protection of the law clause is against undue favor and individual or class privilege, as well as hostile discrimination or
the oppression of inequality. It is not intended to prohibit legislation, which is limited either in the object to which it is directed or
by territory within which is to operate. It does not demand absolute equality among residents; it merely requires that all persons
shall be treated alike, under like circumstances and conditions both as to privileges conferred and liabilities enforced. The equal
protection clause is not infringed by legislation which applies only to those persons falling within a specified class, if it applies
alike to all persons within such class, and reasonable grounds exists for making a distinction between those who fall within such
class and those who do not. (2 Cooley, Constitutional Limitations, 824-825.)

d. The due process clause. —

The due process clause has to do with the reasonableness of legislation enacted in pursuance of the police power. Is there
public interest, a public purpose; is public welfare involved? Is the Act reasonably necessary for the accomplishment of the
legislature's purpose; is it not unreasonable, arbitrary or oppressive? Is there sufficient foundation or reason in connection with
the matter involved; or has there not been a capricious use of the legislative power? Can the aims conceived be achieved by the
means used, or is it not merely an unjustified interference with private interest? These are the questions that we ask when the
due process test is applied.

The conflict, therefore, between police power and the guarantees of due process and equal protection of the laws is more
apparent than real. Properly related, the power and the guarantees are supposed to coexist. The balancing is the essence or,
shall it be said, the indispensable means for the attainment of legitimate aspirations of any democratic society. There can be no
absolute power, whoever exercise it, for that would be tyranny. Yet there can neither be absolute liberty, for that would mean
license and anarchy. So the State can deprive persons of life, liberty and property, provided there is due process of law; and
persons may be classified into classes and groups, provided everyone is given the equal protection of the law. The test or
standard, as always, is reason. The police power legislation must be firmly grounded on public interest and welfare, and a
reasonable relation must exist between purposes and means. And if distinction and classification has been made, there must be
a reasonable basis for said distinction.

e. Legislative discretion not subject to judicial review. —

Now, in this matter of equitable balancing, what is the proper place and role of the courts? It must not be overlooked, in the first
place, that the legislature, which is the constitutional repository of police power and exercises the prerogative of determining the
policy of the State, is by force of circumstances primarily the judge of necessity, adequacy or reasonableness and wisdom, of any
law promulgated in the exercise of the police power, or of the measures adopted to implement the public policy or to achieve
public interest. On the other hand, courts, although zealous guardians of individual liberty and right, have nevertheless evinced a
reluctance to interfere with the exercise of the legislative prerogative. They have done so early where there has been a clear,
patent or palpable arbitrary and unreasonable abuse of the legislative prerogative. Moreover, courts are not supposed to override
legitimate policy, and courts never inquire into the wisdom of the law.

V. Economic problems sought to be remedied

With the above considerations in mind, we will now proceed to delve directly into the issue involved. If the disputed legislation
were merely a regulation, as its title indicates, there would be no question that it falls within the legitimate scope of legislative
power. But it goes further and prohibits a group of residents, the aliens, from engaging therein. The problem becomes more
complex because its subject is a common, trade or occupation, as old as society itself, which from the immemorial has always
been open to residents, irrespective of race, color or citizenship.

a. Importance of retail trade in the economy of the nation. —

In a primitive economy where families produce all that they consume and consume all that they produce, the dealer, of course, is
unknown. But as group life develops and families begin to live in communities producing more than what they consume and
needing an infinite number of things they do not produce, the dealer comes into existence. As villages develop into big
communities and specialization in production begins, the dealer's importance is enhanced. Under modern conditions and
standards of living, in which man's needs have multiplied and diversified to unlimited extents and proportions, the retailer comes
as essential as the producer, because thru him the infinite variety of articles, goods and needed for daily life are placed within the
easy reach of consumers. Retail dealers perform the functions of capillaries in the human body, thru which all the needed food
and supplies are ministered to members of the communities comprising the nation.

There cannot be any question about the importance of the retailer in the life of the community. He ministers to the resident's daily
needs, food in all its increasing forms, and the various little gadgets and things needed for home and daily life. He provides his
customers around his store with the rice or corn, the fish, the salt, the vinegar, the spices needed for the daily cooking. He has
cloths to sell, even the needle and the thread to sew them or darn the clothes that wear out. The retailer, therefore, from the lowly
peddler, the owner of a small sari-sari store, to the operator of a department store or, a supermarket is so much a part of day-to-
day existence.

b. The alien retailer's trait. —

The alien retailer must have started plying his trades in this country in the bigger centers of population (Time there was when he
was unknown in provincial towns and villages). Slowly but gradually be invaded towns and villages; now he predominates in the
cities and big centers of population. He even pioneers, in far away nooks where the beginnings of community life appear,
ministering to the daily needs of the residents and purchasing their agricultural produce for sale in the towns. It is an undeniable
fact that in many communities the alien has replaced the native retailer. He has shown in this trade, industry without limit, and the
patience and forbearance of a slave.

Derogatory epithets are hurled at him, but he laughs these off without murmur; insults of ill-bred and insolent neighbors and
customers are made in his face, but he heeds them not, and he forgets and forgives. The community takes note of him, as he
appears to be harmless and extremely useful.

c. Alleged alien control and dominance. —

There is a general feeling on the part of the public, which appears to be true to fact, about the controlling and dominant position
that the alien retailer holds in the nation's economy. Food and other essentials, clothing, almost all articles of daily life reach the
residents mostly through him. In big cities and centers of population he has acquired not only predominance, but apparent control
over distribution of almost all kinds of goods, such as lumber, hardware, textiles, groceries, drugs, sugar, flour, garlic, and scores
of other goods and articles. And were it not for some national corporations like the Naric, the Namarco, the Facomas and the
Acefa, his control over principal foods and products would easily become full and complete.

Petitioner denies that there is alien predominance and control in the retail trade. In one breath it is said that the fear is unfounded
and the threat is imagined; in another, it is charged that the law is merely the result of radicalism and pure and unabashed
nationalism. Alienage, it is said, is not an element of control; also so many unmanageable factors in the retail business make
control virtually impossible. The first argument which brings up an issue of fact merits serious consideration. The others are
matters of opinion within the exclusive competence of the legislature and beyond our prerogative to pass upon and decide.

The best evidence are the statistics on the retail trade, which put down the figures in black and white. Between the constitutional
convention year (1935), when the fear of alien domination and control of the retail trade already filled the minds of our leaders
with fears and misgivings, and the year of the enactment of the nationalization of the retail trade act (1954), official statistics
unmistakably point out to the ever-increasing dominance and control by the alien of the retail trade, as witness the following
tables:

Assets Gross Sales

Year and
No.- Per cent Per cent
Retailers Pesos Pesos
Establishments Distribution Distribution
Nationality
1941:
 Filipino 106,671 200,323,138 55.82 174,181,924 51.74
..........
Chinese 15,356 118,348,692 32.98 148,813,239 44.21
...........
Others 1,646 40,187,090 11.20 13,630,239 4.05
............
1947:
Filipino 111,107 208,658,946 65.05 279,583,333 57.03
..........
Chinese 13,774 106,156,218 33.56 205,701,134 41.96
...........
Others 354 8,761,260 .49 4,927,168 1.01
...........
1948: (Census)
Filipino 113,631 213,342,264 67.30 467,161,667 60.51
..........
Chinese 12,087 93,155,459 29.38 294,894,227 38.20
..........
Others 422 10,514,675 3.32 9,995,402 1.29
..........
1949:
Filipino 113,659 213,451,602 60.89 462,532,901 53.47
..........
Chinese 16,248 125,223,336 35.72 392,414,875 45.36
..........
Others 486 12,056,365 3.39 10,078,364 1.17
..........
1951:
Filipino 119,352 224,053,620 61.09 466,058,052 53.07
.........
Chinese 17,429 134,325,303 36.60 404,481,384 46.06
..........
Others 347 8,614,025 2.31 7,645,327 87
..........

AVERAGE
ASSETS AND GROSS SALES PER ESTABLISHMENT

Item Gross
Year and Retailer's
Assets Sales
Nationality
(Pesos) (Pesos)
 1941:

Filipino ............................................. 1,878 1,633

Chinese 7,707 9,691

..............................................

Others 24,415 8,281

...............................................

1947:

Filipino ............................................. 1,878 2,516

Chinese ........................................... 7,707 14,934

Others .............................................. 24,749 13,919

1948: (Census)

Filipino ............................................. 1,878 4,111

Chinese 7,707 24,398

.............................................

Others .............................................. 24,916 23,686

1949:

Filipino ............................................. 1,878 4,069

Chinese 7,707 24,152

..............................................

Others .............................................. 24,807 20,737

1951:

Filipino ............................................. 1,877 3,905

Chinese 7,707 33,207

.............................................

Others 24,824 22,033

...............................................

(Estimated Assets and Gross Sales of Retail Establishments, By Year and Nationality of Owners, Benchmark: 1948 Census,
issued by the Bureau of Census and Statistics, Department of Commerce and Industry; pp. 18-19 of Answer.)

The above statistics do not include corporations and partnerships, while the figures on Filipino establishments already include
mere market vendors, whose capital is necessarily small..
The above figures reveal that in percentage distribution of assests and gross sales, alien participation has steadily increased
during the years. It is true, of course, that Filipinos have the edge in the number of retailers, but aliens more than make up for the
numerical gap through their assests and gross sales which average between six and seven times those of the very many Filipino
retailers. Numbers in retailers, here, do not imply superiority; the alien invests more capital, buys and sells six to seven times
more, and gains much more. The same official report, pointing out to the known predominance of foreign elements in the retail
trade, remarks that the Filipino retailers were largely engaged in minor retailer enterprises. As observed by respondents, the
native investment is thinly spread, and the Filipino retailer is practically helpless in matters of capital, credit, price and supply.

d. Alien control and threat, subject of apprehension in Constitutional convention. —

It is this domination and control, which we believe has been sufficiently shown to exist, that is the legislature's target in the
enactment of the disputed nationalization would never have been adopted. The framers of our Constitution also believed in the
existence of this alien dominance and control when they approved a resolution categorically declaring among other things, that "it
is the sense of the Convention that the public interest requires the nationalization of the retail trade; . . . ." (II Aruego, The
Framing of the Philippine Constitution, 662-663, quoted on page 67 of Petitioner.) That was twenty-two years ago; and the
events since then have not been either pleasant or comforting. Dean Sinco of the University of the Philippines College of Law,
commenting on the patrimony clause of the Preamble opines that the fathers of our Constitution were merely translating the
general preoccupation of Filipinos "of the dangers from alien interests that had already brought under their control the
commercial and other economic activities of the country" (Sinco, Phil. Political Law, 10th ed., p. 114); and analyzing the concern
of the members of the constitutional convention for the economic life of the citizens, in connection with the nationalistic provisions
of the Constitution, he says:

But there has been a general feeling that alien dominance over the economic life of the country is not desirable and that if such a
situation should remain, political independence alone is no guarantee to national stability and strength. Filipino private capital is
not big enough to wrest from alien hands the control of the national economy. Moreover, it is but of recent formation and hence,
largely inexperienced, timid and hesitant. Under such conditions, the government as the instrumentality of the national will, has to
step in and assume the initiative, if not the leadership, in the struggle for the economic freedom of the nation in somewhat the
same way that it did in the crusade for political freedom. Thus . . . it (the Constitution) envisages an organized movement for the
protection of the nation not only against the possibilities of armed invasion but also against its economic subjugation by alien
interests in the economic field. (Phil. Political Law by Sinco, 10th ed., p. 476.)

Belief in the existence of alien control and predominance is felt in other quarters. Filipino businessmen, manufacturers and
producers believe so; they fear the dangers coming from alien control, and they express sentiments of economic independence.
Witness thereto is Resolution No. 1, approved on July 18, 1953, of the Fifth National convention of Filipino Businessmen, and a
similar resolution, approved on March 20, 1954, of the Second National Convention of Manufacturers and Producers. The man in
the street also believes, and fears, alien predominance and control; so our newspapers, which have editorially pointed out not
only to control but to alien stranglehold. We, therefore, find alien domination and control to be a fact, a reality proved by official
statistics, and felt by all the sections and groups that compose the Filipino community.

e. Dangers of alien control and dominance in retail. —

But the dangers arising from alien participation in the retail trade does not seem to lie in the predominance alone; there is a
prevailing feeling that such predominance may truly endanger the national interest. With ample capital, unity of purpose and
action and thorough organization, alien retailers and merchants can act in such complete unison and concert on such vital
matters as the fixing of prices, the determination of the amount of goods or articles to be made available in the market, and even
the choice of the goods or articles they would or would not patronize or distribute, that fears of dislocation of the national
economy and of the complete subservience of national economy and of the consuming public are not entirely unfounded.
Nationals, producers and consumers alike can be placed completely at their mercy. This is easily illustrated. Suppose an article
of daily use is desired to be prescribed by the aliens, because the producer or importer does not offer them sufficient profits, or
because a new competing article offers bigger profits for its introduction. All that aliens would do is to agree to refuse to sell the
first article, eliminating it from their stocks, offering the new one as a substitute. Hence, the producers or importers of the
prescribed article, or its consumers, find the article suddenly out of the prescribed article, or its consumers, find the article
suddenly out of circulation. Freedom of trade is thus curtailed and free enterprise correspondingly suppressed.

We can even go farther than theoretical illustrations to show the pernicious influences of alien domination. Grave abuses have
characterized the exercise of the retail trade by aliens. It is a fact within judicial notice, which courts of justice may not properly
overlook or ignore in the interests of truth and justice, that there exists a general feeling on the part of the public that alien
participation in the retail trade has been attended by a pernicious and intolerable practices, the mention of a few of which would
suffice for our purposes; that at some time or other they have cornered the market of essential commodities, like corn and rice,
creating artificial scarcities to justify and enhance profits to unreasonable proportions; that they have hoarded essential foods to
the inconvenience and prejudice of the consuming public, so much so that the Government has had to establish the National
Rice and Corn Corporation to save the public from their continuous hoarding practices and tendencies; that they have violated
price control laws, especially on foods and essential commodities, such that the legislature had to enact a law (Sec. 9, Republic
Act No. 1168), authorizing their immediate and automatic deportation for price control convictions; that they have secret
combinations among themselves to control prices, cheating the operation of the law of supply and demand; that they have
connived to boycott honest merchants and traders who would not cater or yield to their demands, in unlawful restraint of freedom
of trade and enterprise. They are believed by the public to have evaded tax laws, smuggled goods and money into and out of the
land, violated import and export prohibitions, control laws and the like, in derision and contempt of lawful authority. It is also
believed that they have engaged in corrupting public officials with fabulous bribes, indirectly causing the prevalence of graft and
corruption in the Government. As a matter of fact appeals to unscrupulous aliens have been made both by the Government and
by their own lawful diplomatic representatives, action which impliedly admits a prevailing feeling about the existence of many of
the above practices.

The circumstances above set forth create well founded fears that worse things may come in the future. The present dominance
of the alien retailer, especially in the big centers of population, therefore, becomes a potential source of danger on occasions of
war or other calamity. We do not have here in this country isolated groups of harmless aliens retailing goods among nationals;
what we have are well organized and powerful groups that dominate the distribution of goods and commodities in the
communities and big centers of population. They owe no allegiance or loyalty to the State, and the State cannot rely upon them
in times of crisis or emergency. While the national holds his life, his person and his property subject to the needs of his country,
the alien may even become the potential enemy of the State.

f. Law enacted in interest of national economic survival and security. —

We are fully satisfied upon a consideration of all the facts and circumstances that the disputed law is not the product of racial
hostility, prejudice or discrimination, but the expression of the legitimate desire and determination of the people, thru their
authorized representatives, to free the nation from the economic situation that has unfortunately been saddled upon it rightly or
wrongly, to its disadvantage. The law is clearly in the interest of the public, nay of the national security itself, and indisputably falls
within the scope of police power, thru which and by which the State insures its existence and security and the supreme welfare of
its citizens.

VI. The Equal Protection Limitation

a. Objections to alien participation in retail trade. — The next question that now poses solution is, Does the law deny the equal
protection of the laws? As pointed out above, the mere fact of alienage is the root and cause of the distinction between the alien
and the national as a trader. The alien resident owes allegiance to the country of his birth or his adopted country; his stay here is
for personal convenience; he is attracted by the lure of gain and profit. His aim or purpose of stay, we admit, is neither illegitimate
nor immoral, but he is naturally lacking in that spirit of loyalty and enthusiasm for this country where he temporarily stays and
makes his living, or of that spirit of regard, sympathy and consideration for his Filipino customers as would prevent him from
taking advantage of their weakness and exploiting them. The faster he makes his pile, the earlier can the alien go back to his
beloved country and his beloved kin and countrymen. The experience of the country is that the alien retailer has shown such
utter disregard for his customers and the people on whom he makes his profit, that it has been found necessary to adopt the
legislation, radical as it may seem.
Another objection to the alien retailer in this country is that he never really makes a genuine contribution to national income and
wealth. He undoubtedly contributes to general distribution, but the gains and profits he makes are not invested in industries that
would help the country's economy and increase national wealth. The alien's interest in this country being merely transient and
temporary, it would indeed be ill-advised to continue entrusting the very important function of retail distribution to his hands.

The practices resorted to by aliens in the control of distribution, as already pointed out above, their secret manipulations of stocks
of commodities and prices, their utter disregard of the welfare of their customers and of the ultimate happiness of the people of
the nation of which they are mere guests, which practices, manipulations and disregard do not attend the exercise of the trade by
the nationals, show the existence of real and actual, positive and fundamental differences between an alien and a national which
fully justify the legislative classification adopted in the retail trade measure. These differences are certainly a valid reason for the
State to prefer the national over the alien in the retail trade. We would be doing violence to fact and reality were we to hold that
no reason or ground for a legitimate distinction can be found between one and the other.

b. Difference in alien aims and purposes sufficient basis for distinction. —

The above objectionable characteristics of the exercise of the retail trade by the aliens, which are actual and real, furnish
sufficient grounds for legislative classification of retail traders into nationals and aliens. Some may disagree with the wisdom of
the legislature's classification. To this we answer, that this is the prerogative of the law-making power. Since the Court finds that
the classification is actual, real and reasonable, and all persons of one class are treated alike, and as it cannot be said that the
classification is patently unreasonable and unfounded, it is in duty bound to declare that the legislature acted within its legitimate
prerogative and it can not declare that the act transcends the limit of equal protection established by the Constitution.

Broadly speaking, the power of the legislature to make distinctions and classifications among persons is not curtailed or denied
by the equal protection of the laws clause. The legislative power admits of a wide scope of discretion, and a law can be violative
of the constitutional limitation only when the classification is without reasonable basis. In addition to the authorities we have
earlier cited, we can also refer to the case of Linsey vs. Natural Carbonic Fas Co. (1911), 55 L. ed., 369, which clearly and
succinctly defined the application of equal protection clause to a law sought to be voided as contrary thereto:

. . . . "1. The equal protection clause of the Fourteenth Amendment does not take from the state the power to classify in the
adoption of police laws, but admits of the exercise of the wide scope of discretion in that regard, and avoids what is done only
when it is without any reasonable basis, and therefore is purely arbitrary. 2. A classification having some reasonable basis does
not offend against that clause merely because it is not made with mathematical nicety, or because in practice it results in some
inequality. 3. When the classification in such a law is called in question, if any state of facts reasonably can be conceived that
would sustain it, the existence of that state of facts at the time the law was enacted must be assumed. 4. One who assails the
classification in such a law must carry the burden of showing that it does not rest upon any reasonable basis but is essentially
arbitrary."

c. Authorities recognizing citizenship as basis for classification. —

The question as to whether or not citizenship is a legal and valid ground for classification has already been affirmatively decided
in this jurisdiction as well as in various courts in the United States. In the case of Smith Bell & Co. vs. Natividad, 40 Phil. 136,
where the validity of Act No. 2761 of the Philippine Legislature was in issue, because of a condition therein limiting the ownership
of vessels engaged in coastwise trade to corporations formed by citizens of the Philippine Islands or the United States, thus
denying the right to aliens, it was held that the Philippine Legislature did not violate the equal protection clause of the Philippine
Bill of Rights. The legislature in enacting the law had as ultimate purpose the encouragement of Philippine shipbuilding and the
safety for these Islands from foreign interlopers. We held that this was a valid exercise of the police power, and all presumptions
are in favor of its constitutionality. In substance, we held that the limitation of domestic ownership of vessels engaged in
coastwise trade to citizens of the Philippines does not violate the equal protection of the law and due process or law clauses of
the Philippine Bill of Rights. In rendering said decision we quoted with approval the concurring opinion of Justice Johnson in the
case of Gibbons vs. Ogden, 9 Wheat., I, as follows:
"Licensing acts, in fact, in legislation, are universally restraining acts; as, for example, acts licensing gaming houses, retailers of
spirituous liquors, etc. The act, in this instance, is distinctly of that character, and forms part of an extensive system, the object of
which is to encourage American shipping, and place them on an equal footing with the shipping of other nations. Almost every
commercial nation reserves to its own subjects a monopoly of its coasting trade; and a countervailing privilege in favor of
American shipping is contemplated, in the whole legislation of the United States on this subject. It is not to give the vessel an
American character, that the license is granted; that effect has been correctly attributed to the act of her enrollment. But it is to
confer on her American privileges, as contra distinguished from foreign; and to preserve the Government from fraud by
foreigners; in surreptitiously intruding themselves into the American commercial marine, as well as frauds upon the revenue in
the trade coastwise, that this whole system is projected."

The rule in general is as follows:

Aliens are under no special constitutional protection which forbids a classification otherwise justified simply because the limitation
of the class falls along the lines of nationality. That would be requiring a higher degree of protection for aliens as a class than for
similar classes than for similar classes of American citizens. Broadly speaking, the difference in status between citizens and
aliens constitutes a basis for reasonable classification in the exercise of police power. (2 Am., Jur. 468-469.)

In Commonwealth vs. Hana, 81 N. E. 149 (Massachusetts, 1907), a statute on the licensing of hawkers and peddlers, which
provided that no one can obtain a license unless he is, or has declared his intention, to become a citizen of the United States,
was held valid, for the following reason: It may seem wise to the legislature to limit the business of those who are supposed to
have regard for the welfare, good order and happiness of the community, and the court cannot question this judgment and
conclusion. In Bloomfield vs. State, 99 N. E. 309 (Ohio, 1912), a statute which prevented certain persons, among them aliens,
from engaging in the traffic of liquors, was found not to be the result of race hatred, or in hospitality, or a deliberate purpose to
discriminate, but was based on the belief that an alien cannot be sufficiently acquainted with "our institutions and our life as to
enable him to appreciate the relation of this particular business to our entire social fabric", and was not, therefore, invalid. In Ohio
ex rel. Clarke vs. Deckebach, 274 U. S. 392, 71 L. ed. 115 (1926), the U.S. Supreme Court had under consideration an
ordinance of the city of Cincinnati prohibiting the issuance of licenses (pools and billiard rooms) to aliens. It held that plainly
irrational discrimination against aliens is prohibited, but it does not follow that alien race and allegiance may not bear in some
instances such a relation to a legitimate object of legislation as to be made the basis of permitted classification, and that it could
not state that the legislation is clearly wrong; and that latitude must be allowed for the legislative appraisement of local conditions
and for the legislative choice of methods for controlling an apprehended evil. The case of State vs. Carrol, 124 N. E. 129 (Ohio,
1919) is a parallel case to the one at bar. In Asakura vs. City of Seattle, 210 P. 30 (Washington, 1922), the business of pawn
brooking was considered as having tendencies injuring public interest, and limiting it to citizens is within the scope of police
power. A similar statute denying aliens the right to engage in auctioneering was also sustained in Wright vs. May, L.R.A., 1915 P.
151 (Minnesota, 1914). So also in Anton vs. Van Winkle, 297 F. 340 (Oregon, 1924), the court said that aliens are judicially
known to have different interests, knowledge, attitude, psychology and loyalty, hence the prohibitions of issuance of licenses to
them for the business of pawnbroker, pool, billiard, card room, dance hall, is not an infringement of constitutional rights. In
Templar vs. Michigan State Board of Examiners, 90 N.W. 1058 (Michigan, 1902), a law prohibiting the licensing of aliens as
barbers was held void, but the reason for the decision was the court's findings that the exercise of the business by the aliens
does not in any way affect the morals, the health, or even the convenience of the community. In Takahashi vs. Fish and Game
Commission, 92 L. ed. 1479 (1947), a California statute banning the issuance of commercial fishing licenses to person ineligible
to citizenship was held void, because the law conflicts with Federal power over immigration, and because there is no public
interest in the mere claim of ownership of the waters and the fish in them, so there was no adequate justification for the
discrimination. It further added that the law was the outgrowth of antagonism toward the persons of Japanese ancestry. However,
two Justices dissented on the theory that fishing rights have been treated traditionally as natural resources. In Fraser vs.
McConway & Tarley Co., 82 Fed. 257 (Pennsylvania, 1897), a state law which imposed a tax on every employer of foreign-born
unnaturalized male persons over 21 years of age, was declared void because the court found that there was no reason for the
classification and the tax was an arbitrary deduction from the daily wage of an employee.

d. Authorities contra explained. —

It is true that some decisions of the Federal court and of the State courts in the United States hold that the distinction between
aliens and citizens is not a valid ground for classification. But in this decision the laws declared invalid were found to be either
arbitrary, unreasonable or capricious, or were the result or product of racial antagonism and hostility, and there was no question
of public interest involved or pursued. In Yu Cong Eng vs. Trinidad, 70 L. ed. 1059 (1925), the United States Supreme Court
declared invalid a Philippine law making unlawful the keeping of books of account in any language other than English, Spanish or
any other local dialect, but the main reasons for the decisions are: (1) that if Chinese were driven out of business there would be
no other system of distribution, and (2) that the Chinese would fall prey to all kinds of fraud, because they would be deprived of
their right to be advised of their business and to direct its conduct. The real reason for the decision, therefore, is the court's belief
that no public benefit would be derived from the operations of the law and on the other hand it would deprive Chinese of
something indispensable for carrying on their business. In Yick Wo vs. Hopkins, 30 L. ed 220 (1885) an ordinance conferring
powers on officials to withhold consent in the operation of laundries both as to persons and place, was declared invalid, but the
court said that the power granted was arbitrary, that there was no reason for the discrimination which attended the administration
and implementation of the law, and that the motive thereof was mere racial hostility. In State vs. Montgomery, 47 A. 165 (Maine,
1900), a law prohibiting aliens to engage as hawkers and peddlers was declared void, because the discrimination bore no
reasonable and just relation to the act in respect to which the classification was proposed.

The case at bar is radically different, and the facts make them so. As we already have said, aliens do not naturally possess the
sympathetic consideration and regard for the customers with whom they come in daily contact, nor the patriotic desire to help
bolster the nation's economy, except in so far as it enhances their profit, nor the loyalty and allegiance which the national owes to
the land. These limitations on the qualifications of the aliens have been shown on many occasions and instances, especially in
times of crisis and emergency. We can do no better than borrow the language of Anton vs. Van Winkle, 297 F. 340, 342, to drive
home the reality and significance of the distinction between the alien and the national, thus:

. . . . It may be judicially known, however, that alien coming into this country are without the intimate knowledge of our laws,
customs, and usages that our own people have. So it is likewise known that certain classes of aliens are of different psychology
from our fellow countrymen. Furthermore, it is natural and reasonable to suppose that the foreign born, whose allegiance is first
to their own country, and whose ideals of governmental environment and control have been engendered and formed under
entirely different regimes and political systems, have not the same inspiration for the public weal, nor are they as well disposed
toward the United States, as those who by citizenship, are a part of the government itself. Further enlargement, is unnecessary. I
have said enough so that obviously it cannot be affirmed with absolute confidence that the Legislature was without plausible
reason for making the classification, and therefore appropriate discriminations against aliens as it relates to the subject of
legislation. . . . .

VII. The Due Process of Law Limitation.

a. Reasonability, the test of the limitation; determination by legislature decisive. —

We now come to due process as a limitation on the exercise of the police power. It has been stated by the highest authority in
the United States that:

. . . . And the guaranty of due process, as has often been held, demands only that the law shall not be unreasonable, arbitrary or
capricious, and that the means selected shall have a real and substantial relation to the subject sought to be attained. . . . .

xxx xxx xxx

So far as the requirement of due process is concerned and in the absence of other constitutional restriction a state is free to
adopt whatever economic policy may reasonably be deemed to promote public welfare, and to enforce that policy by legislation
adapted to its purpose. The courts are without authority either to declare such policy, or, when it is declared by the legislature, to
override it. If the laws passed are seen to have a reasonable relation to a proper legislative purpose, and are neither arbitrary nor
discriminatory, the requirements of due process are satisfied, and judicial determination to that effect renders a court functus
officio. . . . (Nebbia vs. New York, 78 L. ed. 940, 950, 957.)
Another authority states the principle thus:

. . . . Too much significance cannot be given to the word "reasonable" in considering the scope of the police power in a
constitutional sense, for the test used to determine the constitutionality of the means employed by the legislature is to inquire
whether the restriction it imposes on rights secured to individuals by the Bill of Rights are unreasonable, and not whether it
imposes any restrictions on such rights. . . .

xxx xxx xxx

. . . . A statute to be within this power must also be reasonable in its operation upon the persons whom it affects, must not be for
the annoyance of a particular class, and must not be unduly oppressive. (11 Am. Jur. Sec. 302., 1:1)- 1074-1075.)

In the case of Lawton vs. Steele, 38 L. ed. 385, 388. it was also held:

. . . . To justify the state in thus interposing its authority in behalf of the public, it must appear, first, that the interests of the public
generally, as distinguished from those of a particular class, require such interference; and second, that the means are reasonably
necessary for the accomplishment of the purpose, and not unduly oppressive upon individuals. . . .

Prata Undertaking Co. vs. State Board of Embalming, 104 ALR, 389, 395, fixes this test of constitutionality:

In determining whether a given act of the Legislature, passed in the exercise of the police power to regulate the operation of a
business, is or is not constitutional, one of the first questions to be considered by the court is whether the power as exercised has
a sufficient foundation in reason in connection with the matter involved, or is an arbitrary, oppressive, and capricious use of that
power, without substantial relation to the health, safety, morals, comfort, and general welfare of the public.

b. Petitioner's argument considered. —

Petitioner's main argument is that retail is a common, ordinary occupation, one of those privileges long ago recognized as
essential to the orderly pursuant of happiness by free men; that it is a gainful and honest occupation and therefore beyond the
power of the legislature to prohibit and penalized. This arguments overlooks fact and reality and rests on an incorrect assumption
and premise, i.e., that in this country where the occupation is engaged in by petitioner, it has been so engaged by him, by the
alien in an honest creditable and unimpeachable manner, without harm or injury to the citizens and without ultimate danger to
their economic peace, tranquility and welfare. But the Legislature has found, as we have also found and indicated, that the
privilege has been so grossly abused by the alien, thru the illegitimate use of pernicious designs and practices, that he now
enjoys a monopolistic control of the occupation and threatens a deadly stranglehold on the nation's economy endangering the
national security in times of crisis and emergency.

The real question at issue, therefore, is not that posed by petitioner, which overlooks and ignores the facts and circumstances,
but this, Is the exclusion in the future of aliens from the retail trade unreasonable. Arbitrary capricious, taking into account the
illegitimate and pernicious form and manner in which the aliens have heretofore engaged therein? As thus correctly stated the
answer is clear. The law in question is deemed absolutely necessary to bring about the desired legislative objective, i.e., to free
national economy from alien control and dominance. It is not necessarily unreasonable because it affects private rights and
privileges (11 Am. Jur. pp. 1080-1081.) The test of reasonableness of a law is the appropriateness or adequacy under all
circumstances of the means adopted to carry out its purpose into effect (Id.) Judged by this test, disputed legislation, which is not
merely reasonable but actually necessary, must be considered not to have infringed the constitutional limitation of
reasonableness.

The necessity of the law in question is explained in the explanatory note that accompanied the bill, which later was enacted into
law:
This bill proposes to regulate the retail business. Its purpose is to prevent persons who are not citizens of the Philippines from
having a strangle hold upon our economic life. If the persons who control this vital artery of our economic life are the ones who
owe no allegiance to this Republic, who have no profound devotion to our free institutions, and who have no permanent stake in
our people's welfare, we are not really the masters of our destiny. All aspects of our life, even our national security, will be at the
mercy of other people.

In seeking to accomplish the foregoing purpose, we do not propose to deprive persons who are not citizens of the Philippines of
their means of livelihood. While this bill seeks to take away from the hands of persons who are not citizens of the Philippines a
power that can be wielded to paralyze all aspects of our national life and endanger our national security it respects existing
rights.

The approval of this bill is necessary for our national survival.

If political independence is a legitimate aspiration of a people, then economic independence is none the less legitimate. Freedom
and liberty are not real and positive if the people are subject to the economic control and domination of others, especially if not of
their own race or country. The removal and eradication of the shackles of foreign economic control and domination, is one of the
noblest motives that a national legislature may pursue. It is impossible to conceive that legislation that seeks to bring it about can
infringe the constitutional limitation of due process. The attainment of a legitimate aspiration of a people can never be beyond the
limits of legislative authority.

c. Law expressly held by Constitutional Convention to be within the sphere of legislative action. —

The framers of the Constitution could not have intended to impose the constitutional restrictions of due process on the attainment
of such a noble motive as freedom from economic control and domination, thru the exercise of the police power. The fathers of
the Constitution must have given to the legislature full authority and power to enact legislation that would promote the supreme
happiness of the people, their freedom and liberty. On the precise issue now before us, they expressly made their voice clear;
they adopted a resolution expressing their belief that the legislation in question is within the scope of the legislative power. Thus
they declared the their Resolution:

That it is the sense of the Convention that the public interest requires the nationalization of retail trade; but it abstain from
approving the amendment introduced by the Delegate for Manila, Mr. Araneta, and others on this matter because it is convinced
that the National Assembly is authorized to promulgate a law which limits to Filipino and American citizens the privilege to
engage in the retail trade. (11 Aruego, The Framing of the Philippine Constitution, quoted on pages 66 and 67 of the
Memorandum for the Petitioner.)

It would do well to refer to the nationalistic tendency manifested in various provisions of the Constitution. Thus in the preamble, a
principle objective is the conservation of the patrimony of the nation and as corollary the provision limiting to citizens of the
Philippines the exploitation, development and utilization of its natural resources. And in Section 8 of Article XIV, it is provided that
"no franchise, certificate, or any other form of authorization for the operation of the public utility shall be granted except to citizens
of the Philippines." The nationalization of the retail trade is only a continuance of the nationalistic protective policy laid down as a
primary objective of the Constitution. Can it be said that a law imbued with the same purpose and spirit underlying many of the
provisions of the Constitution is unreasonable, invalid and unconstitutional?

The seriousness of the Legislature's concern for the plight of the nationals as manifested in the approval of the radical measures
is, therefore, fully justified. It would have been recreant to its duties towards the country and its people would it view the sorry
plight of the nationals with the complacency and refuse or neglect to adopt a remedy commensurate with the demands of public
interest and national survival. As the repository of the sovereign power of legislation, the Legislature was in duty bound to face
the problem and meet, through adequate measures, the danger and threat that alien domination of retail trade poses to national
economy.

d. Provisions of law not unreasonable. —

A cursory study of the provisions of the law immediately reveals how tolerant, how reasonable the Legislature has been. The law
is made prospective and recognizes the right and privilege of those already engaged in the occupation to continue therein during
the rest of their lives; and similar recognition of the right to continue is accorded associations of aliens. The right or privilege is
denied to those only upon conviction of certain offenses. In the deliberations of the Court on this case, attention was called to the
fact that the privilege should not have been denied to children and heirs of aliens now engaged in the retail trade. Such provision
would defeat the law itself, its aims and purposes. Beside, the exercise of legislative discretion is not subject to judicial review. It
is well settled that the Court will not inquire into the motives of the Legislature, nor pass upon general matters of legislative
judgment. The Legislature is primarily the judge of the necessity of an enactment or of any of its provisions, and every
presumption is in favor of its validity, and though the Court may hold views inconsistent with the wisdom of the law, it may not
annul the legislation if not palpably in excess of the legislative power. Furthermore, the test of the validity of a law attacked as a
violation of due process, is not its reasonableness, but its unreasonableness, and we find the provisions are not unreasonable.
These principles also answer various other arguments raised against the law, some of which are: that the law does not promote
general welfare; that thousands of aliens would be thrown out of employment; that prices will increase because of the elimination
of competition; that there is no need for the legislation; that adequate replacement is problematical; that there may be general
breakdown; that there would be repercussions from foreigners; etc. Many of these arguments are directed against the supposed
wisdom of the law which lies solely within the legislative prerogative; they do not import invalidity.

VIII. Alleged defect in the title of the law

A subordinate ground or reason for the alleged invalidity of the law is the claim that the title thereof is misleading or deceptive, as
it conceals the real purpose of the bill which is to nationalize the retail business and prohibit aliens from engaging therein. The
constitutional provision which is claimed to be violated in Section 21 (1) of Article VI, which reads:

No bill which may be enacted in the law shall embrace more than one subject which shall be expressed in the title of the bill.

What the above provision prohibits is duplicity, that is, if its title completely fails to appraise the legislators or the public of the
nature, scope and consequences of the law or its operation (I Sutherland, Statutory Construction, Sec. 1707, p. 297.) A cursory
consideration of the title and the provisions of the bill fails to show the presence of duplicity. It is true that the term "regulate" does
not and may not readily and at first glance convey the idea of "nationalization" and "prohibition", which terms express the two
main purposes and objectives of the law. But "regulate" is a broader term than either prohibition or nationalization. Both of these
have always been included within the term regulation.

Under the title of an act to "regulate", the sale of intoxicating liquors, the Legislature may prohibit the sale of intoxicating liquors.
(Sweet vs. City of Wabash, 41 Ind., 7; quoted in page 41 of Answer.)

Within the meaning of the Constitution requiring that the subject of every act of the Legislature shall be stated in the tale, the title
to regulate the sale of intoxicating liquors, etc." sufficiently expresses the subject of an act prohibiting the sale of such liquors to
minors and to persons in the habit of getting intoxicated; such matters being properly included within the subject of regulating the
sale. (Williams vs. State, 48 Ind. 306, 308, quoted in p. 42 of Answer.)

The word "regulate" is of broad import, and necessarily implies some degree of restraint and prohibition of acts usually done in
connection with the thing to be regulated. While word regulate does not ordinarily convey meaning of prohibit, there is no
absolute reason why it should not have such meaning when used in delegating police power in connection with a thing the best
or only efficacious regulation of which involves suppression. (State vs. Morton, 162 So. 718, 182 La. 887, quoted in p. 42 of
Answer.)

The general rule is for the use of general terms in the title of a bill; it has also been said that the title need not be an index to the
entire contents of the law (I Sutherland, Statutory Construction, See. 4803, p. 345.) The above rule was followed the title of the
Act in question adopted the more general term "regulate" instead of "nationalize" or "prohibit". Furthermore, the law also contains
other rules for the regulation of the retail trade which may not be included in the terms "nationalization" or "prohibition"; so were
the title changed from "regulate" to "nationalize" or "prohibit", there would have been many provisions not falling within the scope
of the title which would have made the Act invalid. The use of the term "regulate", therefore, is in accord with the principle
governing the drafting of statutes, under which a simple or general term should be adopted in the title, which would include all
other provisions found in the body of the Act.

One purpose of the constitutional directive that the subject of a bill should be embraced in its title is to apprise the legislators of
the purposes, the nature and scope of its provisions, and prevent the enactment into law of matters which have received the
notice, action and study of the legislators or of the public. In the case at bar it cannot be claimed that the legislators have been
appraised of the nature of the law, especially the nationalization and the prohibition provisions. The legislators took active interest
in the discussion of the law, and a great many of the persons affected by the prohibitions in the law conducted a campaign
against its approval. It cannot be claimed, therefore, that the reasons for declaring the law invalid ever existed. The objection
must therefore, be overruled.

IX. Alleged violation of international treaties and obligations

Another subordinate argument against the validity of the law is the supposed violation thereby of the Charter of the United
Nations and of the Declaration of the Human Rights adopted by the United Nations General Assembly. We find no merit in the
Nations Charter imposes no strict or legal obligations regarding the rights and freedom of their subjects (Hans Kelsen, The Law
of the United Nations, 1951 ed. pp. 29-32), and the Declaration of Human Rights contains nothing more than a mere
recommendation or a common standard of achievement for all peoples and all nations (Id. p. 39.) That such is the import of the
United Nations Charter aid of the Declaration of Human Rights can be inferred the fact that members of the United Nations
Organizations, such as Norway and Denmark, prohibit foreigners from engaging in retail trade, and in most nations of the world
laws against foreigners engaged in domestic trade are adopted.

The Treaty of Amity between the Republic of the Philippines and the Republic of China of April 18, 1947 is also claimed to be
violated by the law in question. All that the treaty guarantees is equality of treatment to the Chinese nationals "upon the same
terms as the nationals of any other country." But the nationals of China are not discriminating against because nationals of all
other countries, except those of the United States, who are granted special rights by the Constitution, are all prohibited from
engaging in the retail trade. But even supposing that the law infringes upon the said treaty, the treaty is always subject to
qualification or amendment by a subsequent law (U. S. vs. Thompson, 258, Fed. 257, 260), and the same may never curtail or
restrict the scope of the police power of the State (plaston vs. Pennsylvania, 58 L. ed. 539.)

X. Conclusion

Resuming what we have set forth above we hold that the disputed law was enacted to remedy a real actual threat and danger to
national economy posed by alien dominance and control of the retail business and free citizens and country from dominance and
control; that the enactment clearly falls within the scope of the police power of the State, thru which and by which it protects its
own personality and insures its security and future; that the law does not violate the equal protection clause of the Constitution
because sufficient grounds exist for the distinction between alien and citizen in the exercise of the occupation regulated, nor the
due process of law clause, because the law is prospective in operation and recognizes the privilege of aliens already engaged in
the occupation and reasonably protects their privilege; that the wisdom and efficacy of the law to carry out its objectives appear
to us to be plainly evident — as a matter of fact it seems not only appropriate but actually necessary — and that in any case such
matter falls within the prerogative of the Legislature, with whose power and discretion the Judicial department of the Government
may not interfere; that the provisions of the law are clearly embraced in the title, and this suffers from no duplicity and has not
misled the legislators or the segment of the population affected; and that it cannot be said to be void for supposed conflict with
treaty obligations because no treaty has actually been entered into on the subject and the police power may not be curtailed or
surrendered by any treaty or any other conventional agreement.

Some members of the Court are of the opinion that the radical effects of the law could have been made less harsh in its impact
on the aliens. Thus it is stated that the more time should have been given in the law for the liquidation of existing businesses
when the time comes for them to close. Our legal duty, however, is merely to determine if the law falls within the scope of
legislative authority and does not transcend the limitations of due process and equal protection guaranteed in the Constitution.
Remedies against the harshness of the law should be addressed to the Legislature; they are beyond our power and jurisdiction.
The petition is hereby denied, with costs against petitioner.

Paras, C.J., Bengzon, Reyes, A., Bautista Angelo, Concepcion, Reyes, J.B.L., Endencia and Felix, JJ., concur.

Separate Opinions

PADILLA, J., concurring and dissenting:

I agree to the proposition, principle or rule that courts may not inquire into the wisdom of an the Act passed by the Congress and
duly approved by the President of the Republic. But the rule does not preclude courts from inquiring and determining whether the
Act offends against a provision or provisions of the Constitution. I am satisfied that the Act assailed as violative of the due
process of law and the equal protection of the laws clauses of the Constitution does not infringe upon them, insofar as it affects
associations, partnership or corporations, the capital of which is not wholly owned by the citizens of the Philippines, and aliens,
who are not and have not been engaged in the retail business. I am, however, unable to persuade myself that it does not violate
said clauses insofar as the Act applies to associations and partnerships referred to in the Act and to aliens, who are and have
heretofore been engaged in said business. When they did engage in the retail business there was no prohibition on or against
them to engage in it. They assumed and believed in good faith they were entitled to engaged in the business. The Act allows
aliens to continue in business until their death or voluntary retirement from the business or forfeiture of their license; and
corporations, associations or partnership, the capital of which is not wholly owned by the citizens of the Philippines to continue in
the business for a period of ten years from the date of the approval of the Act (19 June 1954) or until the expiry of term of the
existence of the association or partnership or corporation, whichever event comes first. The prohibition on corporations, the
capital of which is not wholly owned by citizens of the Philippines, to engage in the retail business for a period of more than ten
years from the date of the approval of the Act or beyond the term of their corporate existence, whichever event comes first, is
valid and lawful, because the continuance of the existence of such corporations is subject to whatever the Congress may impose
reasonably upon them by subsequent legislation.1 But the prohibition to engage in the retail business by associations and
partnerships, the capital of which is not wholly owned by citizen of the Philippines, after ten years from the date of the approval of
the Act, even before the end of the term of their existence as agreed upon by the associates and partners, and by alien heirs to
whom the retail business is transmitted by the death of an alien engaged in the business, or by his executor or administrator,
amounts to a deprivation of their property without due process of law. To my mind, the ten-year period from the date of the
approval of the Act or until the expiration of the term of the existence of the association and partnership, whichever event comes
first, and the six-month period granted to alien heirs of a deceased alien, his executor or administrator, to liquidate the business,
do not cure the defect of the law, because the effect of the prohibition is to compel them to sell or dispose of their business. The
price obtainable at such forced sale of the business would be inadequate to reimburse and compensate the associates or
partners of the associations or partnership, and the alien heirs of a deceased alien, engaged in the retail business for the capital
invested in it. The stock of merchandise bought and sold at retail does not alone constitute the business. The goodwill that the
association, partnership and the alien had built up during a long period of effort, patience and perseverance forms part of such
business. The constitutional provisions that no person shall be deprived of his property without due process of law2 and that no
person shall be denied the equal protection of the laws3 would have no meaning as applied to associations or partnership and
alien heirs of an alien engaged in the retail business if they were to be compelled to sell or dispose of their business within ten
years from the date of the approval of the Act and before the end of the term of the existence of the associations and partnership
as agreed upon by the associations and partners and within six months after the death of their predecessor-in-interest.

The authors of the Constitution were vigilant, careful and zealous in the safeguard of the ownership of private agricultural lands
which together with the lands of the public domain constitute the priceless patrimony and mainstay of the nation; yet, they did not
deem it wise and prudent to deprive aliens and their heirs of such lands.4

For these reasons, I am of the opinion that section 1 of the Act, insofar as it compels associations and partnership referred to
therein to wind up their retail business within ten years from the date of the approval of the Act even before the expiry of the term
of their existence as agreed upon by the associates and partners and section 3 of the Act, insofar as it compels the aliens
engaged in the retail business in his lifetime his executor or administrator, to liquidate the business, are invalid, for they violate
the due process of law and the equal protection of the laws clauses of the Constitution.

CASE DIGEST:

Book Cheapest Room

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Ichong vs Hernandez

This entry was posted in Constitutional Law 1 Police Power and tagged Political Law 1 on November 2,
2014 by Morrie26

Ichong vs Hernandez

Conflict with fundamental law; Police power

ICHONG VS HERNANDEZ

G.R. No. L-7995 May 31, 1957

LAO H. ICHONG, in his own behalf and in behalf of other alien residents, corporations and
partnerships adversely affected. by Republic Act No. 1180, petitioner,

vs.

JAIME HERNANDEZ, Secretary of Finance, and MARCELINO SARMIENTO, City Treasurer of Manila,
respondents.
Facts:

Driven by aspirations for economic independence and national security, the Congress enacted Act No.
1180 entitled “An Act to Regulate the Retail Business.” The main provisions of the Act, among others,
are:

(1) Prohibition against persons, not citizens of the Philippines, and against associations, among others,
from engaging directly or indirectly in the retail trade; and

(2) Prohibition against the establishment or opening by aliens actually engaged in the retail business
of additional stores or branches of retail business.

Lao H. Ichong, in his own behalf and on behalf of other alien residents, corporations and partnerships
adversely affected by the said Act, brought an action to obtain a judicial declaration, and to enjoin the
Secretary of Finance, Jaime Hernandez, and all other persons acting under him, particularly city and
municipal treasurers, from enforcing its provisions. Petitioner attacked the constitutionality of the
Act, contending that:

It denies to alien residents the equal protection of the laws and deprives of their liberty and property
without due process of law.

The subject of the Act is not expressed or comprehended in the title thereof.

The Act violates international and treaty obligations of the Republic of the Philippines.

Issue/s:

Whether or not a law may invalidate or supersede treaties or generally accepted principles.

Discussions:

A generally accepted principle of international law, should be observed by us in good faith. If a treaty
would be in conflict with a statute then the statute must be upheld because it represented an exercise
of the police power which, being inherent could not be bargained away or surrendered through the
medium of a treaty.
Ruling/s:

Yes, a law may supersede a treaty or a generally accepted principle. In this case, the Supreme Court
saw no conflict between the raised generally accepted principle and with RA 1180. The equal
protection of the law clause “does not demand absolute equality amongst residents; it merely
requires that all persons shall be treated alike, under like circumstances and conditions both as to
privileges conferred and liabilities enforced”; and, that the equal protection clause “is not infringed by
legislation which applies only to those persons falling within a specified class, if it applies alike to all
persons within such class, and reasonable grounds exist for making a distinction between those who
fall within such class and those who do not.”
G.R. No. L-21897 October 22, 1963

RAMON A. GONZALES, petitioner,

vs.
RUFINO G. HECHANOVA, as Executive Secretary, MACARIO PERALTA, JR., as Secretary of
Defense, PEDRO GIMENEZ, as Auditor General, CORNELIO BALMACEDA, as Secretary of
Commerce and Industry, and SALVADOR MARINO, Secretary of Justice, respondents.

Ramon A. Gonzales in his own behalf as petitioner.

Office of the Solicitor General and Estanislao Fernandez for respondents.

CONCEPCION, J.:

This is an original action for prohibition with preliminary injunction.

It is not disputed that on September 22, 1963, respondent Executive Secretary authorized the
importation of 67,000 tons of foreign rice to be purchased from private sources, and created a rice
procurement committee composed of the other respondents herein1 for the implementation of said
proposed importation. Thereupon, or September 25, 1963, herein petitioner, Ramon A. Gonzales —
a rice planter, and president of the Iloilo Palay and Corn Planters Association, whose members are,
likewise, engaged in the production of rice and corn — filed the petition herein, averring that, in making
or attempting to make said importation of foreign rice, the aforementioned respondents "are acting
without jurisdiction or in excess of jurisdiction", because Republic Act No. 3452 which allegedly repeals
or amends Republic Act No. 220 — explicitly prohibits the importation of rice and corn "the Rice and
Corn Administration or any other government agency;" that petitioner has no other plain, speedy and
adequate remedy in the ordinary course of law; and that a preliminary injunction is necessary for the
preservation of the rights of the parties during the pendency this case and to prevent the judgment
therein from coming ineffectual. Petitioner prayed, therefore, that said petition be given due course;
that a writ of preliminary injunction be forthwith issued restraining respondent their agents or
representatives from implementing the decision of the Executive Secretary to import the
aforementioned foreign rice; and that, after due hearing, judgment be rendered making said injunction
permanent.

Forthwith, respondents were required to file their answer to the petition which they did, and petitioner's
pray for a writ of preliminary injunction was set for hearing at which both parties appeared and argued
orally. Moreover, a memorandum was filed, shortly thereafter, by the respondents. Considering, later
on, that the resolution said incident may require some pronouncements that would be more
appropriate in a decision on the merits of the case, the same was set for hearing on the merits
thereafter. The parties, however, waived the right to argue orally, although counsel for respondents
filed their memoranda.

I. Sufficiency of petitioner's interest.

Respondents maintain that the status of petitioner as a rice planter does not give him sufficient interest
to file the petition herein and secure the relief therein prayed for. We find no merit in this pretense.
Apart from prohibiting the importation of rice and corn "by the Rice and Corn Administration or any
other government agency". Republic Act No. 3452 declares, in Section 1 thereof, that "the policy of
the Government" is to "engage in the purchase of these basic foods directly from those tenants,
farmers, growers, producers and landowners in the Philippines who wish to dispose of their products
at a price that will afford them a fair and just return for their labor and capital investment. ... ." Pursuant
to this provision, petitioner, as a planter with a rice land of substantial proportion,2 is entitled to a
chance to sell to the Government the rice it now seeks to buy abroad. Moreover, since the purchase
of said commodity will have to be effected with public funds mainly raised by taxation, and as a rice
producer and landowner petitioner must necessarily be a taxpayer, it follows that he has sufficient
personality and interest to seek judicial assistance with a view to restraining what he believes to be an
attempt to unlawfully disburse said funds.

II. Exhaustion of administrative remedies.

Respondents assail petitioner's right to the reliefs prayed for because he "has not exhausted all
administrative remedies available to him before coming to court". We have already held, however, that
the principle requiring the previous exhaustion of administrative remedies is not applicable where the
question in dispute is purely a legal one",3 or where the controverted act is "patently illegal" or was
performed without jurisdiction or in excess of jurisdiction,4 or where the respondent is a department
secretary, whose acts as an alter-ego of the President bear the implied or assumed approval of the
latter,5 unless actually disapproved by him,6 or where there are circumstances indicating the urgency
of judicial intervention.7 The case at bar fails under each one of the foregoing exceptions to the general
rule. Respondents' contention is, therefore, untenable.

III. Merits of petitioner's cause of action.

Respondents question the sufficiency of petitioner's cause of action upon the theory that the proposed
importation in question is not governed by Republic Acts Nos. 2207 and 3452, but was authorized by
the President as Commander-in-Chief "for military stock pile purposes" in the exercise of his alleged
authority under Section 2 of Commonwealth Act No. 1;8 that in cases of necessity, the President "or
his subordinates may take such preventive measure for the restoration of good order and maintenance
of peace"; and that, as Commander-in-Chief of our armed forces, "the President ... is duty-bound to
prepare for the challenge of threats of war or emergency without waiting for any special authority".

Regardless of whether Republic Act No. 3452 repeals Republic Act No. 2207, as contended by
petitioner herein - on which our view need not be expressed — we are unanimously of the opinion -
assuming that said Republic Act No. 2207 is still in force — that the two Acts are applicable to the
proposed importation in question because the language of said laws is such as to include within the
purview thereof all importations of rice and corn into the Philippines". Pursuant to Republic Act No.
2207, "it shall be unlawful for any person, association, corporation or government agency to import
rice and corn into any point in the Philippines", although, by way of exception, it adds, that "the
President of the Philippines may authorize the importation of these commodities through any
government agency that he may designate", is the conditions prescribed in Section 2 of said Act are
present. Similarly, Republic Act No. 3452 explicitly enjoins "the Rice and Corn Administration or any
government agency" from importing rice and corn.

Respondents allege, however, that said provisions of Republic Act Nos. 2207 and 3452, prohibiting
the importation of rice and corn by any "government agency", do not apply to importations "made by
the Government itself", because the latter is not a "government agency". This theory is devoid of merit.
The Department of National Defense and the Armed Forces of the Philippines, as well as respondents
herein, and each and every officer and employee of our Government, our government agencies and/or
agents. The applicability of said laws even to importations by the Government as such, becomes more
apparent when we consider that:

1. The importation permitted in Republic Act No. 2207 is to be authorized by the "President of the
Philippines" and, hence, by or on behalf of the Government of the Philippines;
2. Immediately after enjoining the Rice and Corn administration and any other government agency
from importing rice and corn, Section 10 of Republic Act No. 3452 adds "that the importation of rice
and corn is left to private parties upon payment of the corresponding taxes", thus indicating that only
"private parties" may import rice under its provisions; and

3. Aside from prescribing a fine not exceeding P10,000.00 and imprisonment of not more than five (5)
years for those who shall violate any provision of Republic Act No. 3452 or any rule and regulation
promulgated pursuant thereto, Section 15 of said Act provides that "if the offender is a public official
and/or employees", he shall be subject to the additional penalty specified therein. A public official is
an officer of the Government itself, as distinguished from officers or employees of instrumentalities of
the Government. Hence, the duly authorized acts of the former are those of the Government, unlike
those of a government instrumentality which may have a personality of its own, distinct and separate
from that of the Government, as such. The provisions of Republic Act No. 2207 are, in this respect,
even more explicit. Section 3 thereof provides a similar additional penalty for any "officer or employee
of the Government" who "violates, abets or tolerates the violation of any provision" of said Act. Hence,
the intent to apply the same to transactions made by the very government is patent.

Indeed, the restrictions imposed in said Republic Acts are merely additional to those prescribed in
Commonwealth Act No. 138, entitled "An Act to give native products and domestic entities the
preference in the purchase of articles for the Government." Pursuant to Section 1 thereof:

The Purchase and Equipment Division of the Government of the Philippines and other
officers and employees of the municipal and provincial governments and the Government of
the Philippines and of chartered cities, boards, commissions, bureaus, departments, offices,
agencies, branches, and bodies of any description, including government-owned companies,
authorized to requisition, purchase, or contract or make disbursements for articles, materials,
and supplies for public use, public buildings, or public works shall give preference to
materials ... produced ... in the Philippines or in the United States, and to domestic entities,
subject to the conditions hereinbelow specified. (Emphasis supplied.)

Under this provision, in all purchases by the Government, including those made by and/or for the
armed forces, preference shall be given to materials produced in the Philippines. The importation
involved in the case at bar violates this general policy of our Government, aside from the provisions
of Republic Acts Nos. 2207 and 3452.

The attempt to justify the proposed importation by invoking reasons of national security — predicated
upon the "worsening situation in Laos and Vietnam", and "the recent tension created by the Malaysia
problem" - and the alleged powers of the President as Commander-in-Chief of all armed forces in the
Philippines, under Section 2 of the National Defense Act (Commonwealth Act No. 1), overlooks the
fact that the protection of local planters of rice and corn in a manner that would foster and accelerate
self-sufficiency in the local production of said commodities constitutes a factor that is vital to our ability
to meet possible national emergency. Even if the intent in importing goods in anticipation of such
emergency were to bolster up that ability, the latter would, instead, be impaired if the importation were
so made as to discourage our farmers from engaging in the production of rice.

Besides, the stockpiling of rice and corn for purpose of national security and/or national emergency is
within the purview of Republic Act No. 3452. Section 3 thereof expressly authorizes the Rice and Corn
Administration "to accumulate stocks as a national reserve in such quantities as it may deem proper
and necessary to meet any contingencies". Moreover, it ordains that "the buffer stocks held as a
national reserve ... be deposited by the administration throughout the country under the proper
dispersal plans ... and may be released only upon the occurrence of calamities or emergencies ...".
(Emphasis applied.)
Again, the provisions of Section 2 of Commonwealth Act No. 1, upon which respondents rely so much,
are not self-executory. They merely outline the general objectives of said legislation. The means for
the attainment of those objectives are subject to congressional legislation. Thus, the conditions under
which the services of citizens, as indicated in said Section 2, may be availed of, are provided for in
Sections 3, 4 and 51 to 88 of said Commonwealth Act No. 1. Similarly, Section 5 thereof specifies the
manner in which resources necessary for our national defense may be secured by the Government of
the Philippines, but only "during a national mobilization",9 which does not exist. Inferentially, therefore,
in the absence of a national mobilization, said resources shall be produced in such manner as
Congress may by other laws provide from time to time. Insofar as rice and corn are concerned,
Republic Acts Nos. 2207 and 3452, and Commonwealth Act No. 138 are such laws.

Respondents cite Corwin in support of their pretense, but in vain. An examination of the work cited10
shows that Corwin referred to the powers of the President during "war time"11 or when he has placed
the country or a part thereof under "martial law".12 Since neither condition obtains in the case at bar,
said work merely proves that respondents' theory, if accepted, would, in effect, place the Philippines
under martial law, without a declaration of the Executive to that effect. What is worse, it would keep
us perpetually under martial law.

It has been suggested that even if the proposed importation violated Republic Acts Nos. 2207 and
3452, it should, nevertheless, be permitted because "it redounds to the benefit of the people". Salus
populi est suprema lex, it is said.

If there were a local shortage of rice, the argument might have some value. But the respondents, as
officials of this Government, have expressly affirmed again and again that there is no rice shortage.
And the importation is avowedly for stockpile of the Army — not the civilian population.

But let us follow the respondents' trend of thought. It has a more serious implication that appears on
the surface. It implies that if an executive officer believes that compliance with a certain statute will not
benefit the people, he is at liberty to disregard it. That idea must be rejected - we still live under a rule
of law.

And then, "the people" are either producers or consumers. Now — as respondents explicitly admit —
Republic Acts Nos. 2207 and 3452 were approved by the Legislature for the benefit of producers and
consumers, i.e., the people, it must follow that the welfare of the people lies precisely in the compliance
with said Acts.

It is not for respondent executive officers now to set their own opinions against that of the Legislature,
and adopt means or ways to set those Acts at naught. Anyway, those laws permit importation — but
under certain conditions, which have not been, and should be complied with.

IV. The contracts with Vietnam and Burma —

It is lastly contended that the Government of the Philippines has already entered into two (2) contracts
for the Purchase of rice, one with the Republic of Vietnam, and another with the Government of Burma;
that these contracts constitute valid executive agreements under international law; that such
agreements became binding effective upon the signing thereof by representatives the parties thereto;
that in case of conflict between Republic Acts Nos. 2207 and 3452 on the one hand, and
aforementioned contracts, on the other, the latter should prevail, because, if a treaty and a statute are
inconsistent with each other, the conflict must be resolved — under the American jurisprudence — in
favor of the one which is latest in point of time; that petitioner herein assails the validity of acts of the
Executive relative to foreign relations in the conduct of which the Supreme Court cannot interfere; and
the aforementioned contracts have already been consummated, the Government of the Philippines
having already paid the price of the rice involved therein through irrevocable letters of credit in favor
of the sell of the said commodity. We find no merit in this pretense.

The Court is not satisfied that the status of said tracts as alleged executive agreements has been
sufficiently established. The parties to said contracts do not pear to have regarded the same as
executive agreements. But, even assuming that said contracts may properly considered as executive
agreements, the same are unlawful, as well as null and void, from a constitutional viewpoint, said
agreements being inconsistent with the provisions of Republic Acts Nos. 2207 and 3452. Although the
President may, under the American constitutional system enter into executive agreements without
previous legislative authority, he may not, by executive agreement, enter into a transaction which is
prohibited by statutes enacted prior thereto. Under the Constitution, the main function of the Executive
is to enforce laws enacted by Congress. The former may not interfere in the performance of the
legislative powers of the latter, except in the exercise of his veto power. He may not defeat legislative
enactments that have acquired the status of law, by indirectly repealing the same through an executive
agreement providing for the performance of the very act prohibited by said laws.

The American theory to the effect that, in the event of conflict between a treaty and a statute, the one
which is latest in point of time shall prevail, is not applicable to the case at bar, for respondents not
only admit, but, also insist that the contracts adverted to are not treaties. Said theory may be justified
upon the ground that treaties to which the United States is signatory require the advice and consent
of its Senate, and, hence, of a branch of the legislative department. No such justification can be given
as regards executive agreements not authorized by previous legislation, without completely upsetting
the principle of separation of powers and the system of checks and balances which are fundamental
in our constitutional set up and that of the United States.

As regards the question whether an international agreement may be invalidated by our courts, suffice
it to say that the Constitution of the Philippines has clearly settled it in the affirmative, by providing, in
Section 2 of Article VIII thereof, that the Supreme Court may not be deprived "of its jurisdiction to
review, revise, reverse, modify, or affirm on appeal, certiorari, or writ of error as the law or the rules of
court may provide, final judgments and decrees of inferior courts in — (1) All cases in which the
constitutionality or validity of any treaty, law, ordinance, or executive order or regulation is in question".
In other words, our Constitution authorizes the nullification of a treaty, not only when it conflicts with
the fundamental law, but, also, when it runs counter to an act of Congress.

The alleged consummation of the aforementioned contracts with Vietnam and Burma does not render
this case academic, Republic Act No. 2207 enjoins our Government not from entering into contracts
for the purchase of rice, but from importing rice, except under the conditions Prescribed in said Act.
Upon the other hand, Republic Act No. 3452 has two (2) main features, namely: (a) it requires the
Government to purchase rice and corn directly from our local planters, growers or landowners; and (b)
it prohibits importations of rice by the Government, and leaves such importations to private parties.
The pivotal issue in this case is whether the proposed importation — which has not been
consummated as yet — is legally feasible.

Lastly, a judicial declaration of illegality of the proposed importation would not compel our Government
to default in the performance of such obligations as it may have contracted with the sellers of the rice
in question, because, aside from the fact that said obligations may be complied with without importing
the commodity into the Philippines, the proposed importation may still be legalized by complying with
the provisions of the aforementioned laws.

V. The writ of preliminary injunction.

The members of the Court have divergent opinions on the question whether or not respondents herein
should be enjoined from implementing the aforementioned proposed importation. However, the
majority favors the negative view, for which reason the injunction prayed for cannot be granted.

WHEREFORE, judgment is hereby rendered declaring that respondent Executive Secretary had and
has no power to authorize the importation in question; that he exceeded his jurisdiction in granting
said authority; said importation is not sanctioned by law and is contrary to its provisions; and that, for
lack of the requisite majority, the injunction prayed for must be and is, accordingly denied. It is so
ordered.

Bengzon, CJ, Padilla, Labrador, Reyes, J.B.L., Dizon and Makalintal, JJ., concur.
Paredes and Regala, JJ., concur in the result.

CASE DIGEST:

Ramon Gonzales vs Rufino Hechanova

9 SCRA 230 – Political Law – Constitutional Law – Treaty vs Executive Agreements – Statutes Can
Repeal Executive Agreements
During the term of President Diosdado Macapagal, he entered into two executive agreements with
Vietnam and Burma for the importation of rice without complying with the requisite of securing a
certification from the National Economic Council showing that there is a shortage in cereals or rice.
Hence, the then Executive Secretary, Rufino Hechanova, authorized the importation of 67,000 tons of
rice from abroad to the detriment of our local planters. Ramon Gonzales, then president of the Iloilo
Palay and Corn Planters Association assailed the executive agreements. Gonzales averred that
Hechanova is without jurisdiction or in excess of jurisdiction”, because Republic Act 3452 prohibits
the importation of rice and corn by “the Rice and Corn Administration or any other government agency.
ISSUE: Whether or not RA 3452 prevails over the 2 executive agreements entered into by Macapagal.
HELD: Yes. Under the Constitution, the main function of the Executive is to enforce laws enacted by
Congress. The former may not interfere in the performance of the legislative powers of the latter,
except in the exercise of his veto power. He may not defeat legislative enactments that have acquired
the status of laws, by indirectly repealing the same through an executive agreement providing for the
performance of the very act prohibited by said laws. In the event of conflict between a treaty and a
statute, the one which is latest in point of time shall prevail, is not applicable to the case at bar,
Hechanova not only admits, but, also, insists that the contracts adverted to are not treaties. No such
justification can be given as regards executive agreements not authorized by previous legislation,
without completely upsetting the principle of separation of powers and the system of checks and
balances which are fundamental in our constitutional set up.
As regards the question whether an executive or an international agreement may be invalidated by our
courts, suffice it to say that the Constitution of the Philippines has clearly settled it in the affirmative,
by providing that the SC may not be deprived “of its jurisdiction to review, revise, reverse, modify, or
affirm on appeal, certiorari, or writ of error, as the law or the rules of court may provide, final
judgments and decrees of inferior courts in “All cases in which the constitutionality or validity of any
treaty, law, ordinance, or executive order or regulation is in question”. In other words, our Constitution
authorizes the nullification of a treaty, not only when it conflicts with the fundamental law, but, also,
when it runs counter to an act of Congress.
Paquete Habana; The Lola, 175 U.S. 677 (1900), was a landmark United States Supreme Court case
that reversed an earlier court decision allowing the capture of fishing vessels under Prize. Its
importance rests on the fact that it integrated customary international law with American law,
perhaps the quintessential position of those who hold a monist perspective of international law.

Background of the case

In April 1898 two fishing vessels, the Paquete Habana and the Lola, separately left Cuban ports in
Havana in order to fish. The two vessels were eventually captured by US merchant vessels as part of
Admiral William T. Sampson's blockade of Cuba, who was ordered to execute the blockade 'in
pursuance of the laws of the United States, and the law of nations applicable to such cases.' The
vessels were placed within Cuba's territorial waters at the onset of the Spanish–American War and
then taken to Key West, where both vessels were eventually auctioned by the district court. Both
vessels were valued under the price of $2,000(US) and were thus not originally thought to be exempt
from seizure.

Admiral Sampson justified the seizures by stating that most fishing vessels, flying under the Spanish
banner were manned by excellent seamen, "liable for further service" as naval reserves, an asset that
could eventually be used against US interests in the Spanish–American War.

The owners of the vessels however made an appeal to the circuit courts, citing a long-held tradition by
nations of exempting fishing vessels from prize capture in times of war. This "tradition", a primary
example of customary international law, dates back from an order by Henry IV in 1403, and has more
or less been observed by a large majority of States ever since.

At the time of capture both vessels had no evidence of aiding the enemy, and were unaware of the US
naval blockade. No arms were found on board, and no attempts were made to either run the
blockade or resist capture.

The court's decision and merits

The United States Supreme Court cited lengthy legal precedents established to support the existence
of a customary international law that exempted fishing vessels from prize capture, dating all the way
back to ancient times and occurring repeatedly between Great Britain and France. In 1403, King Henry
IV of England issued his officers leave fisherman alone during times of war. He then signed a treaty
with France reaffirming this act between both parties. Again in 1521 between Emperor Charles V and
Francis I of France a treaty was assigned. This treaty was invoked due to a desperate rise in the
markets for herring. With the war between the two countries raging on, fisherman dared not venture
out to sea. Therefore, a treaty was necessary on both accounts to prevent starvation among those
who relied upon cheap herring, namely the lower classes. Situations similar to this continued to crop
up throughout history prior to the Paquete case. Using this as a basis for customary law, the court
then eventually found the capture of both vessels as "unlawful and without probable cause", reversed
the District Court's decision, and ordered the proceeds of the auction as well as any profits made from
her cargo to be restored to the claimant, "with damages and costs".

Fuller's dissent

Justice Fuller delivered a dissenting opinion, which was joined by Justices Harlan and McKenna.
Dissenting opinion

See also

Garcia-Mir v. Meese

List of United States Supreme Court cases, volume 175

References

Works related to The Paquete Habana at Wikisource

Text of The Paquete Habana, 175 U.S. 677 (1900) is available from: Findlaw Justia Library of Congress

The Paquete Habana Case Brief

Abridged version of the case

The Paquete Habana case brief

The Paquete Habana

175 U.S. 677 (1900)

FACTS

-During the Spanish American War, the United States Navy boarded two private fishing vessels that
were flying the Spanish flag, and captured them both as prizes of war. One of which was the Paquete
Habana.

-The owners of the vessels sued in US courts to regain their property.

-Argument: customary international law states that fishing vessels are exempt from being captured in
war.

-They were commercial fishermen and not a military target.

-The US Supreme Court found that the fishing vessels can not be taken as prizes of war.

DISCUSSION

The US Supreme Court found that there was no specific US law defining a prize of war.

However, the Court stated that customary international law made fishing vessels exempt from being
taken as a prize of war.
There are a number of factors that will determine if something is customary international law. In this
case, the Court found that:

There was State practice by a number of different countries that commercial fishing vessels were
exempt.

There was repetition of this practice over a period of time.

There was opinio juris that commercial fishing vessels were exempt.

Opinio juris = a subjective element that is used to judge whether the practice of a state is due to a
belief that it is legally obliged to do a particular act.

This case lays out the important factors that courts use to determine if something has become
customary international law.

Customary international law can be thought of as a kind of international common law. It is not
explicitly defined anywhere, however everyone seems to agree with it.

AUTHOR'S NOTES

One quote from the case that I really liked was: For the purpose where there is no treaty, and no
controlling executive or legislative act or judicial decision, resort must be had to the customs and
usages of civilized nations; and, as evidence of these, to the works of jurists and commentators, who
by years of labor, research and experience, have made themselves peculiarly well acquainted with the
subjects of which they treat. (The Paquete Habana, 175 U.S. 677 1900).