Co Kim Cham v.

Valdez Tan Keh, GR L-5 (Case Digest)

Focus Topics: De Facto Government; Government; Elements; State

FACTS

Co Kim Cham had a pending civil case initiated during the Japanese occupation with the CFI of Manila. After the
liberation of the Manila and the American occupation, respondent Judge Dizon refused to continue hearings,
saying that a proclamation issued by General Douglas MacArthur had invalidated and nullified all judicial
proceedings and judgments of the courts of the defunct Republic of the Philippines.

ISSUES

I. Whether or not the judicial acts and proceedings made under Japanese occupation were valid and remained
valid even after the American occupation.
II. Whether or not 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.
III. Whether or not the courts of the Commonwealth have jurisdiction to continue now the proceedings in actions
pending in the courts at the time the Philippine Islands were reoccupied or liberated by the American and Filipino
forces
HELD
I
AFFIRMATIVE. [A]ll acts and proceedings of the legislative, executive, and judicial departments of a de facto
government are good and valid. If [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], 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.
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 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.

II
NEGATIVE. 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.
[I]t 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.

[T]he 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, 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.

III
AFFIRMATIVE. 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.
[I]n the Executive Order of President McKinley to the Secretary of War, “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.”

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.