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.

MELO, J.:

The individual citizen is but a speck of particle or molecule vis-à-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 citizen's basic due process rights, or the government's 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);

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 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 preliminary, 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 respondent's 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

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 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
Department's 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 petitioner's 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.

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 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 o'clock 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.

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 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 respondent's 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;

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 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.

(Sec. 4. Presidential Decree No. 1069.)

Sec. 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.)

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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). 1âw phi1.nêt

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

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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 body's quasi-judicial power.

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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 or 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 or 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 agency's 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 body's 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).

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Clearly, there is an impending threat to a prospective extraditee's 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 one's 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 one's 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.

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Petitioner's reliance on Wright vs. Court of Appeals (235 SCRA 241 [1992]) (p. 8, petitioner's
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 petitioner's 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 preserved 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 Owner's 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 respondent's 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.

11
These twin rights may, however, be considered dispensable in certain instances, such as:

1. In proceeding 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 government of the asylum state to effect
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).

12
In petitioner's 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 provincial 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 person's
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

13
extradition documents in the beginning, and, in the person of the Secretary of State, the power to act
or not to act on the court's 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 petitioner's primary concern is the possible delay in the evaluation process.

We agree with private respondent's 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 Respondent's Memorandum.)

In the Philippine context, this Court's 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 individual's 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 petitioner's 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."

14
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 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 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

15
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 respondent's 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 concerns 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 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-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

16
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 nations." Under the doctrine of
incorporation, rules of international law form part of the law of the and land 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
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 pined 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.

17
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
petitioner's 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 petitioner's 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 or habeas corpus shall not be
suspended except in cases of invasion or rebellion when the public safety requires it"? Petitioner's
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 proceeding is an opportunity to explain one's 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. Petitioner's fears that the Requesting State may have valid objections
to the Requested State's 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?

18
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 petitioner's favorable action on the extradition request and the
deprivation of private respondent's liberty is easily comprehensible.

We have ruled time and again that this Court's 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 respondent's 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.

19
SO ORDERED.

Bellosillo, Purisima, Buena and De Leon, Jr., JJ., concur.

Davide, Jr., C.J., I join Mr. Justice Puno in his dissent.
Puno, J., please see dissent.
Vitug, J., see separate opinion.
Kapunan, J., see separate concurring opinion.
Panganiban, J., please see my dissenting opinion.
Mendoza, J., I join the dissents of Puno and Panganiban, JJ.
Quisumbing, J., with concurring opinion.
Pardo, J., I join J. Puno & J. Panganiban.
Gonzaga-Reyes, J., I join the dissent of Justices Puno & Panganiban.
Ynares-Santiago, J., please see separate concurring opinion.

Separate Opinions

VITUG, J., separate opinion;

The only real issue before the Court, I would take it, is whether or not private respondent can validly
ask for copies of pertinent documents while the application for extradition against him is still
undergoing process by the Executive Department.

There is, I agree with the majority, a right of access to such extradition documents conformably with
the provisions of Article III, Section 7, of the Philippine Constitution.1 The constitutional right to free
access to information of public concern is circumscribed only by the fact that the desired information
is not among the species exempted by law from the operation of the constitutional guaranty and that
the exercise of the right conforms with such reasonable conditions as may be prescribed by law.

There is no hornbook rule to determine whether or not an information is of public concern. The term
"public concern" eludes exactitude, and it can easily embrace a broad spectrum of matters which the
public may want to know either because the subject thereof can affect their lives or simply because it
arouses concern.2

I am not convinced that there is something so viciously wrong with, as to deny, the request of private
respondent to be furnished with copies of the extradition documents.

I add. The constitutional right to due process secures to everyone an opportunity to be heard,
presupposing foreknowledge of what he may be up against, and to submit any evidence that he may
wish to proffer in an effort to clear himself. This right is two-pronged — substantive and procedural
due process — founded, in the first instance, on Constitutional or statutory provisions, and in the
second instance, on accepted rules of procedure.3 Substantive due process looks into the extrinsic
and intrinsic validity of the law that figures to interfere with the right of a person to his life, liberty and
property. Procedural due process — the more litigated of the two — focuses on the rules that are
established in order to ensure meaningful adjudication in the enforcement and implementation of the
law. Like "public concern," the term due process does not admit of any restrictive definition. Justice
Frankfurter has viewed this flexible concept, aptly I believe, as being ". . . compounded by history,
reason, the past course of decisions, and stout confidence in the democratic faith."4 The framers of
our own Constitution, it would seem, have deliberately intended, to make it malleable to the ever-
changing milieu of society. Hitherto, it is dynamic and resilient, adaptable to every situation calling

20
for its application that makes it appropriate to accept an enlarged concept of the term as and when
there is a possibility that the right of an individual to life, liberty and property might be
diffused.5 Verily, whenever there is an imminent threat to the life, liberty or property of any person in
any proceeding conducted by or under the auspices of the State, his right to due process of law,
when demanded, must not be ignored.

A danger to the liberty of the extraditee, the private respondent, is real. Article 9 of the Extradition
Treaty between the Government of the Republic of the Philippines and the Government of the United
States of America provides that in case of urgency, a Contracting Party may request the provisional
arrest of the person prior to the presentation of the request for extradition. I see implicit in this
provision that even after the request for extradition is made and before a petition for extradition is
filed with the courts, the possibility of an arrest being made on the basis of a mere evaluation by the
Executive on the request for extradition by the foreign State cannot totally be discounted.

The conclusion reached by the majority, I hasten to add, does not mean that the Executive
Department should be impeded in its evaluation of the extradition request. The right of the extraditee
to be furnished, upon request, with a copy of the relevant documents and to file his comment
thereon is not necessarily anathema to the proceedings duly mandated by the treaty to be made.

I vote to deny the petition.

KAPUNAN, J., separate concurring opinion;

I vote to dismiss the petition, both on technical and substantial grounds.

The petition in the case at bar raises one and only issue, which is the validity of the Temporary
Restraining Order (TRO) issued by respondent Judge Ralph C. Lantion on August 9, 1999 in Civil
Case No. 99-94684. The TRO directed respondents in said case 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
the Regional Trial Court; and from performing any act directed to the extradition of the
petitioner to the United States, for a period of twenty days from the service on respondents of
this Order, pursuant to Section 5, Rule 58 of the 1997 Rules of Court.1 (Emphasis ours.)

The petition itself categorically states that "(t)he issue sought to be presented and litigated here is
solely-the validity of the TRO."2

Notably, there is no allegation in the petition that respondent Judge is without jurisdiction to hear the
case below or that he has exceeded his jurisdiction in hearing the same. Nor is there any other act,
ruling, order, or decision, apart from the TRO already mentioned, of respondent Judge that is being
challenged in the petition before us.

Since, as alleged in the petition, a copy of the TRO was served on respondents below on August 10,
1999, the TRO ceased to be effective on August 30, 1999; consequently, the instant petition has
become moot and academic. This Court does not exercise jurisdiction over cases which are
moot and academic or those not ripe for judicial consideration.3

21
Assuming that the present case has not become moot and academic, still, it should be dismissed for
lack of merit.

The substantive issues raised in this case are: (a) whether a person whose extradition is sought by a
foreign state has due process rights under Section 2, Article III of the 1997 Constitution before the
Department of Justice as the request for extradition is being evaluated, or whether due process
rights maybe invoked only upon the filing of a petition for extradition before a regional trial court; and
(b) whether or not private respondent has a right of access to extradition documents under Section
7, Article III of the 1997 Constitution.

Petitioner contends that due process rights such as the right to be informed of the basis of the
request for extradition and to have an opportunity to controvert are not provided in the extradition
treaty or in P.D. 1069 and therefore does not exist in this stage of the proceedings. Further, he
argues that the documents sought to be furnished to private respondent only involve private
concerns, and not matters of public concern to which the people have a constitutional right to
access.

While the evaluation process conducted by the Department of Justice is not exactly a preliminary
investigation of criminal cases, it is akin to a preliminary investigation because it involves the basic
constitutional rights of the person sought to be extradited. A person ordered extradited is arrested,
forcibly taken from his house, separated from his family and delivered to a foreign state. His rights of
abode, to privacy, liberty and pursuit of happiness are taken away from him — a fate as harsh and
cruel as a conviction of a criminal offense. For this reason, he is entitled to have access to the
evidence against him and the right to controvert them.

While the extradition treaty and P.D. 1069 do not provide for a preliminary investigation, neither does
either prohibit it. The right to due process is a universal basic right which is deemed written into our
laws and treaties with foreign countries.

Like a preliminary investigation, the evaluation by the Department of Justice of the extradition
request and its accompanying documents is to establish probable cause and to secure the innocent
against hasty, malicious and oppressive prosecution.

In this connection, it should be stressed that the evaluation procedure of the extradition request and
its accompanying documents by the Department of Justice cannot be characterized as a mere "ex-
parte technical assessment of the sufficiency" thereof. The function and responsibilities of the
Department of Justice in evaluating the extradition papers involve the exercise of judgment. They
involve a determination whether the request for extradition conforms fully to the requirements of the
extradition treaty and whether the offense is extraditable. These include, among others, whether the
offense for which extradition is requested is a political or military offense (Article 3); whether the
documents and other informations required under Article 7(2) have been provided (Article 7); and
whether the extraditable offense is punishable under the laws of both contracting parties by
deprivation of liberty for a period of more than one year (Article 2). Consequently, to arrive at a
correct judgment, the parties involved are entitled to be heard if the requirements of due process and
equal protection are to be observed.

With respect to petitioner's claim that private respondent has no right to demand access to the
documents relating to the request for extradition, suffice it to say, that any document used in a
proceeding that would jeopardize a person's constitutional rights is matter of public concern. As
Martin Luther King said, "injustice anywhere is a threat to justice everywhere," so any violation of
one's rights guaranteed by the Bill of Rights is everybody's concern because they, one way or
another, directly or indirectly, affect the rights of life and liberty of all the citizens as a whole.

22
Due process rights in a preliminary investigation is now an established principle. The respondent has
a right of access to all of the evidence. He has the right to submit controverting evidence. The
prosecuting official who conducts the preliminary investigation is required to be neutral, objective,
and impartial in resolving the issue of probable cause. I see no reason why the same rights may not
be accorded a person sought to be extradited at the stage where the Department of Justice
evaluates whether a petition for extradition would be filed before a regional trial court. If denied such
rights, not only denial of due process rights but of equal protection may be raised.

It is suggested that after a petition for extradition is filed with a regional trial court, the person sought
to be extradited may exercise all due process rights. He may then have access to all the records on
the basis of which the request for extradition has been made. He may controvert that evidence and
raise all defenses he may consider appropriate. That, it is urged, meets the due process
requirement.

But why must he wait until the petition for extradition is filed? As succinctly expressed, if the right to
notice and hearing is to serve its full purpose, then, it is clear that it must be granted at a time when
the deprivation can still be prevented.4 Like the filing of an information in a criminal case, the mere
filing of a petition for extradition causes immediate impairment of the liberty of the person sought to
be extradited and a substantial curtailment of other rights. His arrest may be immediately ordered by
the regional trial court. He would be compelled to face an open and public trial. He will be
constrained to seek the assistance of counsel and incur other expenses of litigation. The public eye
would be directed at him with all the concomitant intrusions to his right to privacy. Where the liberty
of a person is at risk, and extradition strikes at the very core of liberty, invocation of due process
rights can never be too early.

QUISUMBING, J., concurring opinion;

As I concur in the result reached by the ponencia of Justice Melo, may I just add my modest
observations.

The human rights of person, whether citizen or alien, and the rights of the accused guaranteed in our
Constitution should take precedence over treaty rights claimed by a contracting state. Stated
otherwise, the constitutionally mandated duties of our 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.

For this primordial reason, I vote to DENY the petition.

Moreover, considering that the Extradition Treaty between the USA and Philippines appears mute on
the specific issue before us, the Court — in the exercise of its judicial power to find and state what
the law is — has this rare opportunity of setting a precedent that enhances respect for human rights
and strengthens due process of law.

As both majority and dissenting colleagues in the Court will recognize, American authorities follow
two tracks in extradition proceedings: (1) the interstate practice where, pursuant to statute, the state
Executive upon demand furnishes the would be extraditee or counsel copies of pertinent documents
as well as the request for extradition; and (2) the international practice where the Executive
department need not initially grant notice and hearing at all. Rules of reciprocity and comity,

23
however, should not bar us from applying internationally now what appears the more reasonable and
humane procedure, that is, the interstate practice among Americans themselves. For in this case the
American people should be among the most interested parties.

Truly, what private respondent is asking our Executive department (notice, copies of documents, and
the opportunity to protect himself at the earliest time against probable peril) does not, in my view,
violate our Extradition Treaty with the USA. His request if granted augurs well for transparency in
interstate or intergovernmental relations rather than secrecy which smacks of medieval diplomacy
and the inquisition discredited long ago.

That private respondent is a Filipino citizen is not decisive of the issue here, although it is obviously
pertinent. Even if he were a resident alien (other than American perhaps), he is, in my view, entitled
to our full protection against the hazards of extradition (or deportation, similarly) from the very start.
More so because, looking at the facts adduced at the hearing and on the record of this case, the
charges against him involve or are co-mingled with, if not rooted in, certain offenses of a political
nature or motivation such as the ones involving alleged financial contributions to a major American
political party. If so, long established is the principle that extradition could not be utilized for political
offenses or politically motivated charges.

There may, of course, be other charges against private respondent in the USA. But then they are, in
my view, already tainted there with political color due to the highly charged partisan campaign
atmosphere now prevailing. That private respondent's cases will be exploited as political fodder
there is not far-fetched, hence the need here for cautious but comprehensive deliberation on the
matter at bar. For, above all, it is not only a Treaty provision we are construing; it is about
constitutional and human rights we are most concerned.

YNARES-SANTIAGO, J., concurring opinion;

I concur in the ponencia of Mr. Justice Jose A.R. Melo with its conceptive analysis of a citizen's right
to be given what is due to him. I join in his exposition of this Court's constitutional duty to strike the
correct balance between overwhelming Government power and the protection of individual rights
where only one person is involved.

However, I am constrained to write this short concurrence if only to pose the question of why there
should be any debate at all on a plea for protection of one's liberty which, if granted, will not result in
any meaningful impediment of thwarting any state policy and objectives.

I see no reason why respondent Mark Jimenez, or other citizens not as controversial or talked about,
should first be exposed to the indignity, expense, and anxiety of a public denunciation in court before
he may be informed of what the contracting states in an extradition treaty have against him. There is
no question that everything which respondent Jimenez now requests will be given to him during trial.
Mr. Jimenez is only petitioning that, at this stage, he should be informed why he may be deported
from his own country.

I see no ill effects which would arise if the extradition request and supporting documents are shown
to him now, instead of later.

24
Petitioner Secretary of Justice states that his action on the extradition request and its supporting
documents will merely determine whether or not the Philippines is complying with its treaty
obligations. He adds that, therefore, the constitutional rights of an accused in all criminal
prosecutions are not available to the private respondent.

The July 13, 1999 reply-letter from petitioner states the reasons why he is denying respondent
Jimenez's requests. In short, the reasons are:

1. In evaluating the documents, the Department merely determines whether the procedures
and requirements under the relevant law and treaty have been complied with by the
Requesting Government. The constitutional rights of the accused in all criminal prosecutions
are, therefore, not available.

2. The United States Government has requested the Philippine Government to prevent
unauthorized disclosure of certain grand jury information.

3. The petitioner cannot hold in abeyance proceedings in connection with an extradition

request. For extradition to be an effective tool of criminal law enforcement, requests for
surrender of accused or convicted persons must be processed expeditiously.

I respectfully submit that any apprehensions in the Court arising from a denial of the petition —
"breach of an international obligation, rupture of states relations, forfeiture of confidence, national
embarrassment, and a plethora of other equally undesirable consequences" — are more illusory
than real. Our country is not denying the extradition of a person who must be extradited. Not one
provision of the extradition treaty is violated. I cannot imagine the United States taking issue over
what, to it, would be a minor concession, perhaps a slight delay, accorded in the name of human
rights. On the other hand, the issue is fundamental in the Philippines. A citizen is invoking the
protection, in the context of a treaty obligation, of rights expressly guaranteed by the Philippine
Constitution.

Until proved to be a valid subject for extradition, a person is presumed innocent or not covered by
the sanctions of either criminal law or international treaty. At any stage where a still prospective
extraditee only seeks to know so that he can prepare and prove that he should not be extradited,
there should be no conflict over the extension to him of constitutional protections guaranteed to
aliens and citizens alike.

Petitioner cites as a reason for the denial of respondent's requests, Article 7 of the Treaty. Article 7
enumerates the required documents and establishes the procedures under which the documents
shall be submitted and admitted as evidence. There is no specific provision on how that Secretary of
Foreign Affairs should conduct his evaluation. The Secretary of Justice is not even in the picture at
this stage. Under petitioner's theory, silence in the treaty over a citizen's rights during the evaluation
stage is interpreted as deliberate exclusion by the contracting states of the right to know. Silence is
interpreted as the exclusion of the right to a preliminary examination or preliminary investigation
provided by the laws of either one of the two states.

The right to be informed of charges which may lead to court proceedings and result in a deprivation
of liberty is ordinarily routine. It is readily available to one against whom the state's coercive power
has already been focused. I fail to see how silence can be interpreted as exclusion. The treaty is
silent because at this stage, the preliminary procedure is still an internal matter. And when a law or
treaty is silent, it means a right or privilege may be granted. It is not the other way around.

25
The second reason alleging the need for secrecy and confidentiality is even less convincing. The
explanation of petitioner is self-contradictory. On one hand, petitioner asserts that the United States
Government requested the Philippine Government to prevent unauthorized disclosure of certain
information. On the other hand, petitioner declares that the United States has already secured
orders from concerned District Courts authorizing the disclosure of the same grand jury information
to the Philippine Government and its law enforcement personnel.

Official permission has been given. The United States has no cause to complain about the
disclosure of information furnished to the Philippines.

Moreover, how can grand jury information and documents be considered confidential if they are
going to be introduced as evidence in adversely proceedings before a trial court? The only issue is
whether or not Mr. Jimenez should be extradited. His innocence or guilt of any crime will be
determined in an American court. It is there where prosecution strategies will be essential. If the
Contracting States believed in a total non-divulging of information prior to court hearings, they would
have so provided in the extradition treaty. A positive provision making certain rights unavailable
cannot be implied from silence.

I cannot believe that the United States and the Philippines with identical constitutional provisions on
due process and basic rights should sustain such a myopic view in a situation where the grant of a
right would not result in any serious setbacks to criminal law enforcement.

It is obvious that any prospective extraditee wants to know if his identity as the person indicated has
been established. Considering the penchant of Asians to adopt American names when in America,
the issue of whether or not the prospective extraditee truly is the person charged in the United
States becomes a valid question. It is not only identity of the person which is involved. The crimes
must also be unmistakably identified and their essential elements clearly stated.

There are other preliminary matters in which respondent is interested. I see nothing in our laws or in
the Treaty which prohibits the prospective extraditee from knowing until after the start of trial whether
or not the extradition treaty applies to him.

Paraphrasing Hasmin vs. Boncan, 71 Phil. 216; Trocio vs. Manta, 118 SCRA 241 (1941);
and Salonga vs. Hon. Paño, 134 SCRA 438 (1985), the purpose of a preliminary evaluation is to
secure an innocent person against hasty, faulty and, therefore, oppressive proceedings; to protect
him from an open and extensively publicized accusation of crimes; to spare him the trouble,
expense, and anxiety of a public trial; and also to protect the state from useless and expensive trails.
Even if the purpose is only to determine whether or not the respondent is a proper subject for
extradition, he is nonetheless entitled to the guarantees of fairness and freedom accorded to those
charged with ordinary crimes in the Philippines.

The third reason given by petitioner is the avoidance of delay. Petitioner views the request to be
informed as part of undesirable delaying tactics. This is most unfortunate. Any request for extradition
must be viewed objectively and impartially without any predisposition to granting it and, therefore,
hastening the extradition process.

In the first place, any assistance which the evaluating official may get from the participation of
respondent may well point out deficiencies and insufficiencies in the extradition documents. It would
incur greater delays if these are discovered only during court trial. On the other hand, if, from
respondent's participation, the evaluating official discovers a case of mistaken identity, insufficient
pleadings, inadequate complaints, or any ruinous shortcoming, there would be no delays during trial.
An unnecessary trial with all its complications would be avoided.

26
The right to be informed is related to the constitutional right to a speedy trial. The constitutional
guarantee extends to the speedy disposition of cases before all quasi-judicial and administrative
bodies (Constitution, Art. III, Sec. 16). Speedy disposition, however, does not mean the deliberate
exclusion of the defendant or respondent from the proceedings. As this Court rules in Acebedo vs.
Sarmiento, 36 SCRA 247 (1970), "the right to a speedy trial, means one free from vexatious,
capricious and oppressive delays, its salutary objective being to assure that an innocent person may
be free from the anxiety and expense of a court litigation or, if otherwise, of having his guilt (in this
case, his being extradited) determined within the shortest possible time compatible with the
presentation and consideration of whatsoever legitimate defense he may interpose."

The right to be informed and the right to a preliminary hearing are not merely for respondent. They
also serve the interests of the State.1âw phi 1.nêt

In closing, I maintain that the paramount consideration of guaranteeing the constitutional rights of
individual respondent override the concerns of petitioner. There should be no hurried or indifferent
effort to routinely comply with all requests for extradition. I understand that this is truer in the United
States than in other countries. Proposed extraditees are given every legal protection available from
the American justice system before they are extradited. We serve under a government of limited
powers and inalienable rights. Hence, this concurrence.

PUNO, J., dissenting opinion;

If the case at bar was strictly a criminal case which involves alone the right of an accused to due
process, I would have co-signed the ponencia of our esteemed colleague, Mr. Justice Jose A.R.
Melo, without taking half a pause. But the case at bar does not involve the guilt or innocence of an
accused but the interpretation of an extradition treaty where at stake is our government's
international obligation to surrender to a foreign state a citizen of its own so he can be tried for an
alleged offense committed within that jurisdiction. The issues are of first impression and the majority
opinion dangerously takes us to unknown shoals in constitutional and international laws, hence this
dissenting opinion.

Extradition is a well-defined concept and is more a problem in international law. It is the "process by
which persons charged with or convicted of crime against the law of a State and found in a foreign
State are returned by the latter to the former for trial or punishment. It applies to those who are
merely charged with an offense but have not been brought to trial; to those who have been tried and
convicted and have subsequently escaped from custody; and those who have been convicted in
absentia. It does not apply to persons merely suspected of having committed an offense but against
who no charge has been laid or to a person whose presence is desired as a witness or for obtaining
or enforcing a civil judgment."1 The definition covers the private respondent who is charged with two
(2) counts of conspiracy to commit offense or to defraud the United States, four (4) counts of attempt
to evade or defeat tax, two (2) counts of fraud by wire, radio or television, six (6) counts of false
statements or entries and thirty-three (33) counts of election contributions in the name of another.
There is an outstanding warrant of arrest against the private respondent issued by the US District
Court, Southern District of Florida.

A brief review of the history of extradition law will illumine our labor. Possibly the most authoritative
commentator on extradition today, M. Cherif Bassiouni, divides the history of extradition into four (4)
periods: "(1) ancient times to seventeenth century — a period revealing almost exclusive concern for
political and religious offenders; (2) the eighteenth century and half of the nineteenth century — a
period of treaty-making chiefly concerned with military offenders characterizing the condition of

27
Europe during that period; (3) from 1833 to 1948 — a period of collective concern in suppressing
common criminality; and (4) post-1948 developments which ushered in a greater concern for
protecting the human rights of persons and revealed an awareness of the need to have international
due process of law regulate international relations."2

It is also rewarding to have a good grip on the changing slopes in the landscape of extradition during
these different periods. Extradition was first practiced by the Egyptians, Chinese, Chaldeans and
Assyro-Babylonians but their basis for allowing extradition was unclear. Sometimes, it was granted
due to pacts; at other times, due to plain good will.3 The classical commentators on international law
thus focused their early views on the nature of the duty to surrender an extraditee — whether the
duty is legal or moral in character. Grotius and de Vattel led the school of thought that international
law imposed a legal duty called civitas maxima to extradite criminals.4 In sharp contrast, Puffendorf
and Billot led the school of thought that the so-called duty was but an "imperfect obligation which
could become enforceable only by a contract or agreement between states.5

Modern nations tilted towards the view of Puffendorf and Billot that under international law there is
no duty to extradite in the absence of treaty, whether bilateral or multilateral. Thus, the US Supreme
Court in US v. Rauscher,6 held: ". . . . it is only in modern times that the nations of the earth have
imposed upon themselves the obligation of delivering up these fugitives from justice to the states
where their crimes were committed, for trial and punishment. This has been done generally by
treaties . . . Prior to these treaties, and apart from them there was no well-defined obligation on one
country to deliver up such fugitives to another; and though such delivery was often made it was upon
the principle of comity . . ."

Then came the long and still ongoing debate on what should be the subject of international law. The
20th century saw the dramatic rise and fall of different types and hues of authoritarianism — the
fascism of Italy's Mussolini and Germany's Hitler, the militarism of Japan's Hirohito and the
communism of Russia's Stalin, etc. The sinking of these isms led to the elevation of the rights of the
individual against the state. Indeed, some species of human rights have already been
accorded universal recognition.7 Today, the drive to internationalize rights of women and children is
also on high gear.8 The higher rating given to human rights in the hierarchy of values necessarily led
to the re-examination of rightful place of the individual in international law. Given the harshest eye is
the moss-covered doctrine that international law deals only with States and that individuals are not
its subject. For its undesirable corrally is the sub-doctrine that an individual's right in international law
is a near cipher. Translated in extradition law, the view that once commanded a consensus is that
since a fugitive is a mere object and not a subject of international law, he is bereft of rights. An
extraditee, so it was held, is a mere "object transported from one state to the other as an exercise of
the sovereign will of the two states involved."9 The re-examination consigned this pernicious doctrine
to the museum of ideas.10 The new thinkers of international law then gave a significant shape to the
role and rights of the individual in state-concluded treaties and other international agreements. So it
was declared by then US Ambassador Philip C. Jessup in audible italics: "A very large part of
international affairs and, thus, of the process of international accommodation, concerns the relations
between legal persons known as states. This is necessarily so. But it is no longer novel for the
particular interest of the human being to break through the mass of interstate relationship."11 The
clarion call to re-engineer a new world order whose dominant interest would transcend the parochial
confines of national states was not unheeded. Among the world class scholars who joined the
search for the elusive ideological underpinnings of a new world order were Yale Professor Myres
McDougal and Mr. Justice Florentino Feliciano. In their seminal work. Law and Minimum World
Public Order, they suggested that the object of the new world should be "to obtain in particular
situations and in the aggregate flow of situations the outcome of a higher degree of conformity with
the security goals of preservation, deterrence, restoration, rehabilitation and reconstruction of all
societies comprising the world community."12 Needless to stress, all these prescient theses
accelerated the move to recognize certain rights of the individual in international law.

28
We have yet to see the final and irrevocable place of individual rights, especially the rights of an
extraditee, in the realm of international law. In careful language, Bassiouni observes that today,
"institutionalized conflicts between states are still rationalized in terms of sovereignty, national
interest, and national security, while human interests continue to have limited, though growing
impact on the decision-making processes which translate national values and goals into specific
national and international policy."13

I belabor the international law aspect of extradition as the majority opinion hardly gives it a
sideglance. It is my humble submission that the first consideration that should guide us in the case at
bar is that a bilateral treaty — the RP-US Extradition Treaty — is the subject matter of the litigation.
In our constitutional scheme, the making of a treaty belongs to the executive and legislative
departments of our government. Between these two departments, the executive has a greater say in
the making of a treaty. Under Section 21, Article VII of our Constitution, the President has the sole
power to negotiate treaties and international agreements although to be effective, they must be
concurred in by at least two thirds of all the members of the Senate. Section 20 of the same Article
empowers the President to contract or guarantee foreign loans with the prior concurrence of the
Monetary Board. Section 16 of the same Article gives the President the power to appoint
ambassadors, other public ministers and consuls subject to confirmation by the Commission on
Appointments. In addition, the President has the power to deport undesirable aliens. The
concentration of these powers in the person of the President is not without a compelling
consideration. The conduct of foreign relations is full of complexities and consequences, sometimes
with life and death significance to the nation especially in times of war. It can only be entrusted to
that department of government which can act on the basis of the best available information and can
decide with decisiveness. Beyond debate, the President is the single most powerful official in our
land for Section 1 of Article VII provides that "the executive power shall be vested in the President of
the Philippines," whereas Section 1 of Article VI states that "the legislative power shall be vested in
the Congress of the Philippines which shall consist of a Senate and a House of Representatives . . .
except to the extent reserved to the people by the provision on initiative and referendum," while
Section 1 of Article VIII provides that "judicial power shall be vested in one Supreme Court and in
such lower courts as may be established by law." Thus, we can see that executive power is vested
in the President alone whereas legislative and judicial powers are shared and scattered. It is also the
President who possesses the most comprehensive and the most confidential information about
foreign countries for our diplomatic and consular officials regularly brief him on meaningful events all
over the world. He has also unlimited access to ultra-sensitive military intelligence data.14 In fine, the
presidential role in foreign affairs is dominant and the President is traditionally accorded a wider
degree of discretion in the conduct of foreign affairs. The regularity, nay, validity of his actions are
adjudged under less stringent standards, lest their judicial repudiation lead to breach of an
international obligation, rupture of state relations, forfeiture of confidence, national embarrassment
and a plethora of other problems with equally undesirable consequences.

These are some of the dominant policy considerations in international law that the Court must
balance against the claim of the private respondent that he has a right to be given the extradition
documents against him and to comment thereon even while they are still at the evaluation stage by
the petitioner Secretary of Justice, an alter ego of the President. The delicate questions of what
constitutional rights and to what degree they can be claimed by an extraditee do not admit of easy
answers and have resulted in discrete approaches the world over.15 On one end of the pole is the
more liberal European approach. The European Court of Human Rights embraces the view that an
extraditee is entitled to the benefit of all relevant provisions of the European Convention for the
Protection of Human Rights and Fundamental Freedoms. It has held that ". . . in so far as a measure
of the extradition has consequences adversely affecting the enjoyment of a convention right, it may,
assuming that the consequences are not too remote, attract the obligations of a Contracting State
under the relevant convention guarantee."16 At the other end of the pole is the more cautious
approach of the various Courts of Appeal in the United States. These courts have been more

29
conservative in light of the principle of separation of powers and their faith in the presumptive validity
of executive decisions. By and large, they adhere to the rule of non-inquiry under which
the extraditing court refuses to examine the requesting country's criminal justice system or consider
allegations that the extraditee will be mistreated or denied a fair trial in that country.17

The case at bar, I respectfully submit, does not involve an irreconcilable conflict between the RP-US
Extradition Treaty and our Constitution where we have to choose one over the other. Rather, it calls
for a harmonization between said treaty and our Constitution. To achieve this desirable objective, the
Court should consider whether the constitutional rights invoked by the private respondent have truly
been violated and even assuming so, whether he will be denied fundamental fairness. It is only when
their violation will destroy the respondent's right to fundamental fairness that his constitutional claims
should be given primacy.

Given this balancing approach, it is my humble submission that considering all the facts and facets
of the case, the private respondent has not proved entitlement to the right he is claiming.
The majority holds that the Constitution, the RP-US extradition and P.D. No. 1069 do not prohibit
respondent's claims, hence, it should be allowed. This is too simplistic an approach. Rights do not
necessarily arise from a vacuum. Silence of the law can even mean an implied denial of a right.
Also, constitutional litigations do not always involve a clear cut choice between right and wrong.
Sometimes, they involve a difficult choice between right against right. In these situations, there is
need to balance the contending rights and primacy is given to the right that will serve the interest of
the nation at that particular time. In such instances, the less compelling right is subjected to soft
restraint but without smothering its essence. Proceeding from this premise of relativism of rights, I
venture the view that even assuming arguendo respondent's weak claim, still, the degree of denial of
private respondent's rights to due process and to information is too slight to warrant the interposition
of judicial power. As admitted in the ponencia itself, an extradition proceeding is sui generis. It is,
thus, futile to determine what it is. What is certain is that it is not a criminal proceeding where there is
an accused who claim the entire array of rights guaranteed by the Bill of Rights. Let it be stressed
that in an extradition proceeding, there is no accused and the guilt or innocence of the extraditee will
not be passed upon by our executive officials nor by the extradition judge. Hence, constitutional
rights that are only relevant do determine the guilt or innocence of an accused cannot be invoked by
an extraditee. Indeed, an extradition proceeding is summary in nature which is untrue of criminal
proceedings.18 Even the rules of evidence are different in an extradition proceeding. Admission of
evidence is less stringent, again because the guilt of the extraditee is not under litigation.19 It is not
only the quality but even the quantum of evidence in extradition proceeding is different. In a criminal
case, an accused can only be convicted by proof beyond reasonable doubt.20 In an extradition
proceeding, an extraditee can be ordered extradited "upon showing of the existed of a prima
facie case."21 If more need be said, the nature of an extradition decision is different from a judicial
decision whose finality cannot be changed by executive fiat. Our courts22 may hold an individual
extraditable but the ultimate decision to extradite the individual lies in the hands of the Executive.
Section 3, Article 3 of the RP-US Extradition Treaty specifically provides that "extradition shall not be
granted if the executive authority of the Requested State determined that the request was politically
motivated, or that the offense is a military offense which is not punishable under non-military penal
legislation." In the United States, the Secretary of State exercises this ultimate power and is
conceded considerable discretion. He balances the equities of the case and the demands of the
nation's foreign relations.23 In sum, he is not straitjacketed by strict legal considerations like an
ordinary court.

The type of issue litigated in extradition proceedings which does not touch on the guilt or innocence
of the extraditee, the limited nature of the extradition proceeding, the availability of adequate
remedies in favor of the extraditee, and the traditional leeway given to the Executive in the conduct
of foreign affairs have compelled courts to put a high threshold before considering claims of
individuals that enforcement of an extradition treaty will violate their constitutional rights.

30
Exemplifying such approach is the Supreme Court of Canada which has adopted a highly deferential
standard that emphasizes international comity and the executive's experience in international
matters.24 It continues to deny Canada's charter protection to extraditees unless the violation can be
considered shocking to the conscience.

In the case, at bar and with due respect, the ponencia inflates with too much significance the threat
to liberty of the private respondent to prop us its thesis that his constitutional rights to due process
and access to information must immediately be vindicated. Allegedly, respondent Jimenez stands
in danger of provisional arrest, hence, the need for him to be immediately furnished copies of
documents accompanying the request for his extradition. Respondent's fear of provisional arrest is
not real. It is a self-imagined fear for the realities on the ground show that the United States
authorities have not manifested any desire to request for his arrest. On the contrary, they filed the
extradition request through the regular channel and, even with the pendency of the case at bar, they
have not moved for respondent's arrest on the ground of probable delay in the proceedings. To be
sure, the issue of whether respondent Jimenez will be provisionally arrested is now moot. Under
Section 1 of Article 9 of the RP-US Extradition Treaty, in relation to Section 20(a) of PD No. 1069,
the general principle is enunciated that a request for provisional arrest must be made pending
receipt of the request for extradition. By filing the request for extradition, the US authorities have
implicitly decided not to move for respondent's provisional arrest. But more important, a request for
respondent's arrest does not mean he will be the victim of an arbitrary arrest. He will be given due
process before he can be arrested. Article 9 of the treaty provides:

PROVISIONAL ARREST

1. In case of urgency, a Contracting Party may request the provisional arrest of the person
sought pending presentation of the request for extradition. A request for provisional arrest
may be transmitted through the diplomatic channel or directly between the Philippine
Department of Justice and the United States Department of Justice.

2. The application for provisional arrest shall contain:

a) a description of the person sought;

b) the location of the person sought, if known;

c) a brief statements of the facts of the case, including, if possible, the time and
location of the offense;

d) a description of the laws violated;

e) a statement of the existence of a warrant of a warrant of arrest or finding of guilt or

judgment of conviction against the person sought; and

f) a statement that a request for extradition for the person sought will follow.

3. The Requesting State shall be notified without delay of the disposition of its application
and the reasons for any denial.

4. A person who is provisionally arrested may be discharged from custody upon the
expiration of sixty (60) days from the date of arrest pursuant to this Treaty if the executive

31
 authority of the Requested State has not received the formal request for extradition and the
supporting documents required in Article 7.

In relation to the above, Section 20 of P.D. No. 1069 provides:

Sec. 20. Provisional Arrest. — (a) In case of urgency, the requesting state may, pursuant to
the relevant treaty or convention and while the same remains in force, request for the
provisional arrest of the accused, pending receipt of the request for extradition made in
accordance with Section 4 of this Decree.

(b) A request for provisional arrest shall be sent to the Director of the National Bureau of
Investigation, Manila, either through the diplomatic channels or direct by post or telegraph.

(c) The Director of the National Bureau of Investigation or any official acting on his behalf
shall upon receipt of the request immediately secure a warrant for the provisional arrest of
the accused from the presiding judge of the Court of First Instance of the province or city
having jurisdiction of the place, who shall issue the warrant for the provisional arrest of the
accused. The Director of the National Bureau of Investigation through the Secretary of
Foreign Affairs shall inform the requesting state of the result of its request.

(d) If within a period of 20 days after the provisional arrest, the Secretary of Foreign Affairs
has not received the request for extradition and the documents mentioned in Section 4 of this
Decree, the accused shall be released from custody.

The due process protection of the private-respondent against arbitrary arrest is written in cyrillic
letters in these two (2) related provisions. It is self-evident under these provisions that a request for
provisional arrest does not mean it will be granted ipso facto. The request must comply with certain
requirements. It must be based on an "urgent" factor. This is subject to verification and evaluation by
our executive authorities. The request can be denied if not based on a real exigency of if the
supporting documents are insufficient. The protection of the respondent against arbitrary provisional
arrest does not stop on the administrative level. For even if the Director of the National Bureau of
Investigation agrees with the request for the provisional arrest of the respondent, still he has to apply
for a judicial warrant from the "presiding judge of the Court of First Instance (now RTC) of the
province of city having jurisdiction of the place. . . . ." It is a judge who will issue a warrant for the
provisional arrest of the respondent. The judge has comply with Section 2, Article III of the
Constitution which provides that "no . . . warrant of arrest shall issue except upon probable cause to
be determined personally by the judge after examination under oath or affirmation of the complainant
and the witnesses he may produce, and particularly describing the . . . persons or things to be
seized." The message that leaps to the eye is that compliance with this requirements precludes any
arbitrary arrest.

In light of all these considerations, I respectfully submit that denying respondent's constitutional
claim to be furnished all documents relating to the request for his extradition by the US authorities
during their evaluation stage will not subvert his right to fundamental fairness. It should be stressed
that this is not a case where the respondent will not be given an opportunity to know the basis of the
request for his extradition. In truth, and contrary to the impression of the majority, P.D. No. 1069
fixes the specific time when he will be given the papers constituting the basis for his extradition. The
time is when he is summoned by the extradition court and required to answer the petition for
extradition. Thus, Section 6 of P.D. No. 1069 provides:

Sec. 6. Issuance of Summons; Temporary Arrest; Hearing, Service of Notices. — (1)

Immediately upon receipt of the petition, the presiding judge of the court shall, as soon as

32
 practicable, summon the accused to appear and to answer the petition on the day and hour
fixed in the order. He may issue a warrant for the immediate arrest of the accused which may
be served anywhere within the Philippines if it appears to the presiding judge that the
immediate arrest and temporary detention of the accused will best serve the ends of justice.
Upon receipt of the answer within the time fixed, the presiding judge shall hear the case or
set another date for the hearing thereof.

(2) The order and notice as well as a copy of the warrant of arrest, if issued, shall be
promptly served each upon the accused and the attorney having charge of the case.

Upon receipt of the summons and the petition, respondent is free to foist all defense available to
him. Such an opportunity does not deny him fairness which is the essence of due process of law.

Thus, with due respect, I submit that the ponencia failed to accord due importance to the
international law aspect of an extradition treaty as it unduly stressed its constitutional law dimension.
This goes against the familiar learning that in balancing the clashing interests involved in extradition
treaty, national interest is more equal than the others. While lately, humanitarian considerations are
being factored in the equation, still the concept of extradition as a national act is the guiding idea.
Requesting and granting extradition remains a power and prerogative of the national government of
a State. The process still involves relations between international personalities.25 Needless to state, a
more deferential treatment should be given to national interest than to individual interest. Our
national interest in extraditing persons who have committed crimes in a foreign country are
succinctly expressed in the whereas clauses of P.D. No. 1069, viz:

WHEREAS, the Constitution of the Philippines adopts the generally accepted principles of
international law as part of law of the land, and adheres to the policy of peace, equality,
justice, freedom, cooperation and amity with all nations;

WHEREAS, the suppression of crime is the concern not only of the state where it is
committed but also of any other state to which the criminal may have escaped, because it
saps the foundation of social life and is an outrage upon humanity at large, and it is in the
interest of civilized communities that crimes should not go unpunished. . . . .

The increasing incidence of international and transnational crimes, the development of new
technologies of death, and the speed and scale of improvement of communication are factors which
have virtually annihilated time and distance. They make more compelling the vindication of national
interest to insure that the punishment of criminals should not be frustrated by the frontiers of
territorial sovereignty. This overriding national interest must be upheld as against respondent's weak
constitutional claims which in no way amount to denial of fundamental fairness.

At bottom, this case involves the respect that courts should accord to the Executive that concluded
the RP-US Extradition Treaty in the conduct of our foreign affairs. As early as 1800, the legendary
John Marshall, then a congressman, has opined that the power to extradite pursuant to a treaty rests
in the executive branch as part of its power to conduct foreign affairs.26 Courts have validated this
forward-looking opinion in a catena of unbroken cases. They defer to the judgment of the Executive
on the necessities of our foreign affairs and on its view of the requirements of international comity.
The deferential attitude is dictated by the robust reality that of the three great branches of our
government, it is the Executive that is most qualified to guide the ship of the state on the known and
unknown continents of foreign relations. It is also compelled by considerations of the principle
of separation of powers for the Constitution has clearly allocated the power to conduct our foreign
affairs to the Executive. I respectfully submit that the majority decision has weakened the Executive
by allowing nothing less than an unconstitutional headbutt on the power of the Executive to conduct

33
our foreign affairs. The majority should be cautions in involving this Court in the conduct of the
nation's foreign relations where the inviolable rule dictated by necessity is that the nation should
speak with one voice. We should not overlook the reality that courts by their nature, are ill-equipped
to fully comprehend the foreign policy dimension of a treaty, some of which are hidden in shadows
and silhouettes.

I vote to grant the petition.

PANGANIBAN, J., dissenting opinion;

With due respect, I dissent.

The main issue before us is whether Private Respondent Mark B. Jimenez is entitled to the due
process rights of notice and hearing during the preliminary or evaluation stage of the extradition
proceeding against him.

Two Staged in Extradition

There are essentially two stages in extradition proceedings: (1) the preliminary or evaluation stage,
whereby the executive authority of the requested state ascertains whether the extradition request is
supported by the documents and information required under the Extradition Treaty; and (2) the
extradition hearing, whereby the petition for extradition is heard before a court of justice, which
determines whether the accused should be extradited.

The instant petition refers only to the first stage. Private respondent claims that he has a right to be
notified and to be heard at this early stage. However, even the ponencia admits that neither the RP-
US Extradition Treaty nor PD 1069 (the Philippine Extradition Law) expressly requires the Philippine
government, upon receipt of the request for extradition, to give copies thereof and its supporting
documents to the prospective extraditee, much less to give him an opportunity to be heard prior to
the filing of the petition in court.

Notably, international extradition proceedings in the United States do not include the grant by the
executive authority of notice and hearing to the prospective extraditee at this initial stage. It is the
judge or magistrate who is authorized to issue a warrant of arrest and to hold a hearing to consider
the evidence submitted in support of the extradition request. In contrast, in interstate rendition, the
governor must, upon demand, furnish the fugitive or his attorney copies of the request and its
accompanying documents, pursuant to statutory provisions.1 In the Philippines, there is no similar
statutory provision.

Evaluation Stage Essentially Ministerial

The evaluation stage simply involves the ascertainment by the foreign affairs secretary of whether
the extradition request is accompanied by the documents stated in paragraphs 2 and 3, Article 7 of
the Treaty, relating to the identity and the probable location of the fugitive; the facts of the offense
and the procedural history of the case; provisions of the law describing the essential elements of the
offense charged and the punishment therefor; its prescriptive period; such evidence as would
provide probable cause for the arrest and the committal for trial of the fugitive; and copies of the
warrant or order of arrest and charging document. The foreign affairs secretary also sees to it that

34
these accompanying documents have been certified by the principal diplomatic or consular officer of
the Philippines in the United States, and that they are in English language or have English
translations. Pursuant to Article 3 of the Treaty, he also determines whether the request is politically
motivated, and whether the offense charged is a military offense not punishable under non-military
penal legislation.2

Upon a finding of 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
justice secretary, who shall immediately designate and authorize an attorney in his office to take
charge of the case. The lawyer designated shall then file a written petition with the proper regional
trial court, with a prayer that the court take the extradition request under consideration.3

When the Right to Notice and Hearing Becomes Available

According to private Respondent Jimenez, his right to due process during the preliminary stage
emanates from our Constitution, particularly Section 1, Article III thereof, which provides:

No person shall be deprived of life, liberty or property without due process of law.

He claims that this right arises immediately, because of the possibility that he may be provisionally
arrested pursuant to Article 9 of the RP-US Treaty, which reads:

In case of urgency, a Contracting Party may request the provisional arrest of the person
sought pending presentation of the request for extradition. A request for provisional arrest
may be transmitted through the diplomatic channel or directly between the Philippine
Department of Justice and the United States Department of Justice.

xxx xxx xxx

Justice Melo's ponencia supports private respondent's contention. It states that there are two
occasions wherein the prospective extraditee may be deprived of liberty: (1) in case of a provisional
arrest pending the submission of the extradition request and (2) his temporary arrest during the
pendency of the extradition petition in court.4 The second instance is not in issue here, because no
petition has yet been filed in court.

However, the above-quoted Article 9 on provisional arrest is not automatically operative at all times,
and in enforcement does not depend solely on the discretion of the requested state. From the
wordings of the provision itself, there are at least three requisites: (1) there must be an urgency, and
(2) there is a corresponding request (3) which must be made prior to the presentation of the request
for extradition.

In the instant case, there appears to be no urgency characterizing the nature of the extradition of
private respondent. Petitioner does not claim any such urgency. There is no request from the United
States for the provisional arrest of Mark Jimenez either. And the secretary of justice states during the
Oral Argument that he had no intention of applying for the provisional arrest of private
respondent.5 Finally, the formal request for extradition has already been made; therefore, provisional
arrest is not likely, as it should really come before the extradition request.6

Mark Jimenez Not in Jeopardy of Arrest

35
Under the outlined facts of this case, there is no open door for the application of Article 9, contrary to
the apprehension of private respondent. In other words, there is no actual danger that Jimenez will
be provisionally arrested or deprived of his liberty. There is as yet no threat that his rights would be
trampled upon, pending the filing in court of the petition for his extradition. Hence, there is no
substantial gain to be achieved in requiring the foreign affairs (or justice) secretary to notify and hear
him during the preliminary stage, which basically involves only the exercise of the ministerial power
of checking the sufficiency of the documents attached to the extradition request.

It must be borne in mind that during the preliminary stage, the foreign affairs secretary's
determination of whether the offense charged is extraditable or politically motivated is
merely preliminary. The same issue will be resolved by the trial court.7 Moreover, it is also the power
and the duty of the court, not the executive authority, to determine whether there is sufficient
evidence to establish probable cause that the extraditee committed the crimes charged.8 The
sufficiency of the evidence of criminality is to be determined based on the laws of the requested
state.9 Private Respondent Jimenez will, therefore, definitely have his full opportunity before the
court, in case an extradition petition will indeed be filed, to be heard on all issues including the
sufficiency of the documents supporting the extradition request.10

Private respondent insists that the United States may still request his provisional arrest at any time.
That is purely speculative. It is elementary that this Court does not declare judgments or grant reliefs
based on speculations, surmises or conjectures.

In any event, even granting that the arrest of Jimenez is sought at any time despite the assurance of
the justice secretary that no such measure will be undertaken, our local laws and rules of procedure
respecting the issuance of a warrant of arrest will govern, there being no specific provision under the
Extradition Treaty by which such warrant should issue. Therefore, Jimenez will be entitled to all the
rights accorded by the Constitution and the laws to any person whose arrest is being sought. 1âwphi 1.nêt

The right of one state to demand from another the return of an alleged fugitive from justice and the
correlative duty to surrender the fugitive to the demanding country exist only when created by a
treaty between the two countries. International law does not require the voluntary surrender of a
fugitive to a foreign government, absent any treaty stipulation requiring it.11 When such a treaty does
exist, as between the Philippines and the United States, it must be presumed that the contracting
states perform their obligations under it with uberrimae fidei, treaty obligations being essentially
characterized internationally by comity and mutual respect.

The Need for Respondent Jimenez to Face Charges in the US

One final point. Private respondent also claims that from the time the secretary of foreign affairs
gave due course to the request for his extradition, incalculable prejudice has been brought upon him.
And because of the moral injury caused, he should be given the opportunity at the earliest possible
time to stop his extradition. I believe that any moral injury suffered by private respondent had not
been caused by the mere processing of the extradition request. And it will not cease merely by
granting him the opportunity to be heard by the executive authority. The concrete charges that he
has allegedly committed certain offenses already exist. These charges have been filed in the United
States and are part of public and official records there. Assuming the existence of moral injury, the
only means by which he can restore his good reputation is to prove before the proper judicial
authorities in the US that the charges against him are unfounded. Such restoration cannot be
accomplished by simply contending that the documents supporting the request for his extradition are
insufficient.

Conclusion

36
In the context of the factual milieu of private respondent, there is really no threat of any deprivation
of his liberty at the present stage of the extradition process. Hence, the constitutional right to due
process — particularly the right to be heard — finds no application. To grant private respondent's
request for copies of the extradition documents and for an opportunity to comment thereon will
constitute "over-due process" and unnecessarily delay the proceedings.

WHEREFORE, I vote to grant the Petition.

37
.R. No. 139465 October 17, 2000

SECRETARY OF JUSTICE, petitioner,

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

RESOLUTION

PUNO, J.:

On January 18, 2000, by a vote of 9-6, we dismissed the petition at bar and ordered the petitioner 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.1

On February 3, 2000, the petitioner timely filed an Urgent Motion for Reconsideration. He assails the
decision on the following grounds:

"The majority decision failed to appreciate the following facts and points of substance and of value
which, if considered, would alter the result of the case, thus:

I. There is a substantial difference between an evaluation process antecedent to the filing of

an extradition petition in court and a preliminary investigation.

II. Absence of notice and hearing during the evaluation process will not result in a denial of
fundamental fairness.

III. In the evaluation process, instituting a notice and hearing requirement satisfies no higher
objective.

IV. The deliberate omission of the notice and hearing requirement in the Philippine
Extradition Law is intended to prevent flight.

V. There is a need to balance the interest between the discretionary powers of government
and the rights of an individual.

VI. The instances cited in the assailed majority decision when the twin rights of notice and
hearing may be dispensed with in this case results in a non sequitur conclusion.

VII. Jimenez is not placed in imminent danger of arrest by the Executive Branch
necessitating notice and hearing.

VIII. By instituting a 'proceeding' not contemplated by PD No. 1069, the Supreme Court has
encroached upon the constitutional boundaries separating it from the other two co-equal
branches of government.

IX. Bail is not a matter of right in proceedings leading to extradition or in extradition

proceedings."2

On March 28, 2000, a 58-page Comment was filed by the private respondent Mark B. Jimenez,
opposing petitioner’s Urgent Motion for Reconsideration.

38
On April 5, 2000, petitioner filed an Urgent Motion to Allow Continuation and Maintenance of Action
and Filing of Reply. Thereafter, petitioner filed on June 7, 2000 a Manifestation with the attached
Note 327/00 from the Embassy of Canada and Note No. 34 from the Security Bureau of the
Hongkong SAR Government Secretariat. On August 15, 2000, private respondent filed a
Manifestation and Motion for Leave to File Rejoinder in the event that petitioner's April 5, 2000
Motion would be granted. Private respondent also filed on August 18, 2000, a Motion to Expunge
from the records petitioner's June 7, 2000 Manifestation with its attached note verbales. Except for
the Motion to Allow Continuation and Maintenance of Action, the Court denies these pending
motions and hereby resolves petitioner's Urgent Motion for Reconsideration.

The jugular issue is whether or not the private respondent is entitled to the due process right to
notice and hearing during the evaluation stage of the extradition process.

We now hold that private respondent is bereft of the right to notice and hearing during
the evaluation stage of the extradition process.

First. P.D. No. 10693 which implements the RP-US Extradition Treaty provides the time when an
extraditee shall be furnished a copy of the petition for extradition as well as its supporting
papers, i.e., after the filing of the petition for extradition in the extradition court, viz:

"Sec. 6. Issuance of Summons; Temporary Arrest; Hearing; Service of Notices. - (1) Immediately
upon receipt of the petition, the presiding judge of the court shall, as soon as practicable, summon
the accused to appear and to answer the petition on the day and hour fixed in the order . . . Upon
receipt of the answer, or should the accused after having received the summons fail to answer within
the time fixed, the presiding judge shall hear the case or set another date for the hearing thereof.

(2) The order and notice as well as a copy of the warrant of arrest, if issued, shall be promptly
served each upon the accused and the attorney having charge of the case."

It is of judicial notice that the summons includes the petition for extradition which will be answered by
the extraditee.

There is no provision in the RP-US Extradition Treaty and in P.D. No. 1069 which gives an
extraditee the right to demand from the petitioner Secretary of Justice copies of the extradition
request from the US government and its supporting documents and to comment thereon while the
request is still undergoing evaluation. We cannot write a provision in the treaty giving private
respondent that right where there is none. It is well-settled that a "court cannot alter, amend, or add
to a treaty by the insertion of any clause, small or great, or dispense with any of its conditions and
requirements or take away any qualification, or integral part of any stipulation, upon any motion of
equity, or general convenience, or substantial justice."4

Second. All treaties, including the RP-US Extradition Treaty, should be interpreted in light of their
intent. Nothing less than the Vienna Convention on the Law of Treaties to which the Philippines is a
signatory provides that "a treaty shall be interpreted in good faith in accordance with the ordinary
meaning to be given to the terms of the treaty in their context and in light of its object and
purpose."5 (emphasis supplied) The preambular paragraphs of P.D. No. 1069 define its intent, viz:

"WHEREAS, under the Constitution[,] the Philippines 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;

39
WHEREAS, the suppression of crime is the concern not only of the state where it is committed but
also of any other state to which the criminal may have escaped, because it saps the foundation of
social life and is an outrage upon humanity at large, and it is in the interest of civilized communities
that crimes should not go unpunished;

WHEREAS, in recognition of this principle the Philippines recently concluded an extradition treaty
with the Republic of Indonesia, and intends to conclude similar treaties with other interested
countries;

x x x." (emphasis supplied)

It cannot be gainsaid that today, countries like the Philippines forge extradition treaties to arrest the
dramatic rise of international and transnational crimes like terrorism and drug trafficking. Extradition
treaties provide the assurance that the punishment of these crimes will not be frustrated by the
frontiers of territorial sovereignty. Implicit in the treaties should be the unbending commitment that
the perpetrators of these crimes will not be coddled by any signatory state.

It ought to follow that the RP-US Extradition Treaty calls for an interpretation that will minimize if not
prevent the escape of extraditees from the long arm of the law and expedite their trial. The
submission of the private respondent, that as a probable extraditee under the RP-US Extradition
Treaty he should be furnished a copy of the US government request for his extradition and its
supporting documents even while they are still under evaluation by petitioner Secretary of Justice,
does not meet this desideratum. The fear of the petitioner Secretary of Justice that the demanded
notice is equivalent to a notice to flee must be deeply rooted on the experience of the executive
branch of our government. As it comes from the branch of our government in charge of the faithful
execution of our laws, it deserves the careful consideration of this Court. In addition, it cannot be
gainsaid that private respondent’s demand for advance notice can delay the summary process of
executive evaluation of the extradition request and its accompanying papers. The foresight of Justice
Oliver Wendell Holmes did not miss this danger. In 1911, he held:

"It is common in extradition cases to attempt to bring to bear all the factitious niceties of a criminal
trial at common law. But it is a waste of time . . . if there is presented, even in somewhat
untechnical form according to our ideas, such reasonable ground to suppose him guilty as to make it
proper that he should be tried, good faith to the demanding government requires his
surrender."6 (emphasis supplied)

We erode no right of an extraditee when we do not allow time to stand still on his prosecution.
Justice is best served when done without delay.

Third. An equally compelling factor to consider is the understanding of the parties themselves to
the RP-US Extradition Treaty as well as the general interpretation of the issue in question by
other countries with similar treaties with the Philippines. The rule is recognized that while courts
have the power to interpret treaties, the meaning given them by the departments of government
particularly charged with their negotiation and enforcement is accorded great weight.7 The reason for
the rule is laid down in Santos III v. Northwest Orient Airlines, et al.,8 where we stressed that a
treaty is a joint executive-legislative act which enjoys the presumption that "it was first carefully
studied and determined to be constitutional before it was adopted and given the force of law in the
country."

Our executive department of government, thru the Department of Foreign Affairs (DFA) and the
Department of Justice (DOJ), has steadfastly maintained that the RP-US Extradition Treaty and P.D.
No. 1069 do not grant the private respondent a right to notice and hearing during the evaluation

40
stage of an extradition process.9 This understanding of the treaty is shared by the US
government, the other party to the treaty.10 This interpretation by the two governments cannot be
given scant significance. It will be presumptuous for the Court to assume that both governments did
not understand the terms of the treaty they concluded.

Yet, this is not all. Other countries with similar extradition treaties with the Philippines have
expressed the same interpretation adopted by the Philippine and US
governments. Canadian11 and Hongkong12 authorities, thru appropriate note verbales communicated
to our Department of Foreign Affairs, stated in unequivocal language that it is not an international
practice to afford a potential extraditee with a copy of the extradition papers during the evaluation
stage of the extradition process. We cannot disregard such a convergence of views unless it is
manifestly erroneous.

Fourth. Private respondent, however, peddles the postulate that he must be afforded the right to
notice and hearing as required by our Constitution. He buttresses his position by likening an
extradition proceeding to a criminal proceeding and the evaluation stage to a preliminary
investigation.

We are not persuaded. An extradition proceeding is sui generis. It is not a criminal

proceeding which will call into operation all the rights of an accused as guaranteed by the Bill of
Rights. To begin with, the process of extradition does not involve the determination of the guilt
or innocence of an accused.13 His guilt or innocence will be adjudged in the court of the state where
he will be extradited. Hence, as a rule, constitutional rights that are only relevant to determine the
guilt or innocence of an accused cannot be invoked by an extraditee especially by one whose
extradition papers are still undergoing evaluation.14 As held by the US Supreme Court in United
States v. Galanis:

"An extradition proceeding is not a criminal prosecution, and the constitutional safeguards that
accompany a criminal trial in this country do not shield an accused from extradition pursuant to a
valid treaty."15

There are other differences between an extradition proceeding and a criminal proceeding. An
extradition proceeding is summary in nature while criminal proceedings involve a full-blown trial.16 In
contradistinction to a criminal proceeding, the rules of evidence in an extradition proceeding allow
admission of evidence under less stringent standards.17 In terms of the quantum of evidence to be
satisfied, a criminal case requires proof beyond reasonable doubt for conviction18 while a fugitive may
be ordered extradited "upon showing of the existence of a prima facie case."19 Finally, unlike in a
criminal case where judgment becomes executory upon being rendered final, in an extradition
proceeding, our courts may adjudge an individual extraditable but the President has the final
discretion to extradite him.20 The United States adheres to a similar practice whereby the Secretary of
State exercises wide discretion in balancing the equities of the case and the demands of the nation's
foreign relations before making the ultimate decision to extradite.21

As an extradition proceeding is not criminal in character and the evaluation stage in an

extradition proceeding is not akin to a preliminary investigation, the due process safeguards
in the latter do not necessarily apply to the former. This we hold for the procedural due process
required by a given set of circumstances "must begin with a determination of the precise nature of
the government function involved as well as the private interest that has been affected by
governmental action."22 The concept of due process is flexible for "not all situations calling for
procedural safeguards call for the same kind of procedure."23

41
Fifth. Private respondent would also impress upon the Court the urgency of his right to notice and
hearing considering the alleged threat to his liberty "which may be more priceless than life."24 The
supposed threat to private respondent’s liberty is perceived to come from several provisions of the
RP-US Extradition Treaty and P.D. No. 1069 which allow provisional arrest and temporary detention.

We first deal with provisional arrest. The RP-US Extradition Treaty provides as follows:

"PROVISIONAL ARREST

1. In case of urgency, a Contracting Party may request the provisional arrest of the person
sought pending presentation of the request for extradition. A request for provisional
arrest may be transmitted through the diplomatic channel or directly between the Philippine
Department of Justice and the United States Department of Justice.

2. The application for provisional arrest shall contain:

a) a description of the person sought;

b) the location of the person sought, if known;

c) a brief statement of the facts of the case, including, if possible, the time and
location of the offense;

d) a description of the laws violated;

e) a statement of the existence of a warrant of arrest or finding of guilt or judgment of

conviction against the person sought; and

f) a statement that a request for extradition for the person sought will follow.

3. The Requesting State shall be notified without delay of the disposition of its application
and the reasons for any denial.

4. A person who is provisionally arrested may be discharged from custody upon the
expiration of sixty (60) days from the date of arrest pursuant to this Treaty if the executive
authority of the Requested State has not received the formal request for extradition and the
supporting documents required in Article 7." (emphasis supplied)

In relation to the above, Section 20 of P.D. No. 1069 provides:

"Sec. 20. Provisional Arrest.- (a) In case of urgency, the requesting state may, pursuant to the
relevant treaty or convention and while the same remains in force, request for the provisional arrest
of the accused, pending receipt of the request for extradition made in accordance with Section 4
of this Decree.

(b) A request for provisional arrest shall be sent to the Director of the National Bureau of
Investigation, Manila, either through the diplomatic channels or direct by post or telegraph.

(c) The Director of the National Bureau of Investigation or any official acting on his behalf
shall upon receipt of the request immediately secure a warrant for the provisional arrest of
the accused from the presiding judge of the Court of First Instance of the province or city

42
 having jurisdiction of the place, who shall issue the warrant for the provisional arrest of the
accused. The Director of the National Bureau of Investigation through the Secretary of
Foreign Affairs shall inform the requesting state of the result of its request.

(d) If within a period of 20 days after the provisional arrest the Secretary of Foreign Affairs
has not received the request for extradition and the documents mentioned in Section 4 of this
Decree, the accused shall be released from custody." (emphasis supplied)

Both the RP-US Extradition Treaty and P.D. No. 1069 clearly provide that private respondent may
be provisionally arrested only pending receipt of the request for extradition. Our DFA has long
received the extradition request from the United States and has turned it over to the DOJ. It is
undisputed that until today, the United States has not requested for private respondent’s provisional
arrest. Therefore, the threat to private respondent’s liberty has passed. It is more imagined than
real.

Nor can the threat to private respondent’s liberty come from Section 6 of P.D. No. 1069, which
provides:

"Sec. 6. Issuance of Summons; Temporary Arrest; Hearing, Service of Notices.- (1) Immediately
upon receipt of the petition, the presiding judge of the court shall, as soon as practicable, summon
the accused to appear and to answer the petition on the day and hour fixed in the order. [H]e may
issue a warrant for the immediate arrest of the accused which may be served anywhere within
the Philippines if it appears to the presiding judge that the immediate arrest and temporary
detention of the accused will best serve the ends of justice. . .

(2) The order and notice as well as a copy of the warrant of arrest, if issued, shall be promptly
served each upon the accused and the attorney having charge of the case." (emphasis supplied)

It is evident from the above provision that a warrant of arrest for the temporary detention of the
accused pending the extradition hearing may only be issued by the presiding judge of the extradition
court upon filing of the petition for extradition. As the extradition process is still in the evaluation
stage of pertinent documents and there is no certainty that a petition for extradition will be filed in the
appropriate extradition court, the threat to private respondent’s liberty is merely hypothetical.

Sixth. To be sure, private respondent’s plea for due process deserves serious consideration
involving as it does his primordial right to liberty. His plea to due process, however, collides with
important state interests which cannot also be ignored for they serve the interest of the
greater majority. The clash of rights demands a delicate balancing of interests approach which is a
"fundamental postulate of constitutional law."25 The approach requires that we "take conscious and
detailed consideration of the interplay of interests observable in a given situation or type of
situation."26 These interests usually consist in the exercise by an individual of his basic freedoms on
the one hand, and the government’s promotion of fundamental public interest or policy objectives on
the other.27

In the case at bar, on one end of the balancing pole is the private respondent’s claim to due process
predicated on Section 1, Article III of the Constitution, which provides that "No person shall be
deprived of life, liberty, or property without due process of law . . ." Without a bubble of doubt,
procedural due process of law lies at the foundation of a civilized society which accords paramount
importance to justice and fairness. It has to be accorded the weight it deserves.

This brings us to the other end of the balancing pole. Petitioner avers that the Court should give
more weight to our national commitment under the RP-US Extradition Treaty to expedite the

43
extradition to the United States of persons charged with violation of some of its laws. Petitioner also
emphasizes the need to defer to the judgment of the Executive on matters relating to foreign affairs
in order not to weaken if not violate the principle of separation of powers.

Considering that in the case at bar, the extradition proceeding is only at its evaluation stage,
the nature of the right being claimed by the private respondent is nebulous and the degree of
prejudice he will allegedly suffer is weak, we accord greater weight to the interests espoused
by the government thru the petitioner Secretary of Justice. In Angara v. Electoral
Commission, we held that the "Constitution has blocked out with deft strokes and in bold lines,
allotment of power to the executive, the legislative and the judicial departments of the
government."28 Under our constitutional scheme, executive power is vested in the President of the
Philippines.29 Executive power includes, among others, the power to contract or guarantee foreign
loans and the power to enter into treaties or international agreements.30 The task of safeguarding
that these treaties are duly honored devolves upon the executive department which has the
competence and authority to so act in the international arena.31 It is traditionally held that the
President has power and even supremacy over the country’s foreign relations.32 The executive
department is aptly accorded deference on matters of foreign relations considering the President’s
most comprehensive and most confidential information about the international scene of which he is
regularly briefed by our diplomatic and consular officials. His access to ultra-sensitive military
intelligence data is also unlimited.33 The deference we give to the executive department is dictated by
the principle of separation of powers. This principle is one of the cornerstones of our democratic
government. It cannot be eroded without endangering our government.

The Philippines also has a national interest to help in suppressing crimes and one way to do it is to
facilitate the extradition of persons covered by treaties duly entered by our government. More and
more, crimes are becoming the concern of one world. Laws involving crimes and crime prevention
are undergoing universalization. One manifest purpose of this trend towards globalization is to deny
easy refuge to a criminal whose activities threaten the peace and progress of civilized countries. It is
to the great interest of the Philippines to be part of this irreversible movement in light of its
vulnerability to crimes, especially transnational crimes.

In tilting the balance in favor of the interests of the State, the Court stresses that it is not
ruling that the private respondent has no right to due process at all throughout the length
and breadth of the extrajudicial proceedings. Procedural due process requires a determination of
what process is due, when it is due, and the degree of what is due. Stated otherwise, a prior
determination should be made as to whether procedural protections are at all due and when
they are due, which in turn depends on the extent to which an individual will be "condemned
to suffer grievous loss."34 We have explained why an extraditee has no right to notice and hearing
during the evaluation stage of the extradition process. As aforesaid, P.D. No. 1069 which
implements the RP-US Extradition Treaty affords an extraditee sufficient opportunity to meet the
evidence against him once the petition is filed in court. The time for the extraditee to know the
basis of the request for his extradition is merely moved to the filing in court of the formal petition for
extradition. The extraditee's right to know is momentarily withheld during the evaluation stage of
the extradition process to accommodate the more compelling interest of the State to prevent escape
of potential extraditees which can be precipitated by premature information of the basis of the
request for his extradition. No less compelling at that stage of the extradition proceedings is the
need to be more deferential to the judgment of a co-equal branch of the government, the Executive,
which has been endowed by our Constitution with greater power over matters involving our foreign
relations. Needless to state, this balance of interests is not a static but a moving balance which
can be adjusted as the extradition process moves from the administrative stage to the judicial stage
and to the execution stage depending on factors that will come into play. In sum, we rule that
the temporary hold on private respondent's privilege of notice and hearing is a soft restraint on his
right to due process which will not deprive him of fundamental fairness should he decide to resist

44
the request for his extradition to the United States. There is no denial of due process as long as
fundamental fairness is assured a party.

We end where we began. A myopic interpretation of the due process clause would not suffice to
resolve the conflicting rights in the case at bar. With the global village shrinking at a rapid pace,
propelled as it is by technological leaps in transportation and communication, we need to push
further back our horizons and work with the rest of the civilized nations and move closer to the
universal goals of "peace, equality, justice, freedom, cooperation and amity with all nations."35 In the
end, it is the individual who will reap the harvest of peace and prosperity from these efforts.

WHEREFORE, the Urgent Motion for Reconsideration is GRANTED. The Decision in the case at bar
promulgated on January18, 2000 is REVERSED. The assailed Order issued by the public
respondent judge on August 9, 1999 is SET ASIDE. The temporary restraining order issued by this
Court on August 17, 1999 is made PERMANENT. The Regional Trial Court of Manila, Branch 25 is
enjoined from conducting further proceedings in Civil Case No. 99-94684.

SO ORDERED.

Davide, Jr., C.J., Mendoza, Purisima, Pardo, Gonzaga-Reyes, and De Leon, Jr., JJ., concur.
Bellosillo, and Kapunan, JJ., joined the dissent of J. Melo & J. Ynares-Santiago.
Melo, J., see dissent.
Vitug, J., I join in the dissent and reiterate my separate opinion in the original ponencia.
Quisumbing, J., in the result.
Buena, J., I join the dissent of Justice Consuelo Y-Santiago.
Ynares-Santiago, J., see separate dissent.

45
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.

46
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. . . .

47
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.

48
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.

49
(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

50
(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.

51
(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.

52
(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

53
 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.

54
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:

55
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.

56
 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.

57
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.

58
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.

59
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

60
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.

61
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

62
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

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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

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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

65
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

66
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

67
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. . . .

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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

69
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.)

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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

71
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.

Separate Opinions

DE JOYA, J., concurring:

The principal question involved in this case is the validity of the proceedings held in civil case No.
3012, in the Court of First Instance of the City of Manila, under the now defunct Philippine Republic,
during Japanese occupation; and the effect on said proceedings of the proclamation of General
Douglas MacArthur, dated October 23, 1944. The decision of this question requires the application
of principles of International Law, in connection with the municipal law in force in this country, before
and during Japanese occupation.

Questions of International Law must be decided as matters of general law (Juntington vs. Attril, 146
U.S., 657; 13 Sup. Ct. 224; 36 Law. ed., 1123); and International Law is no alien in this Tribunal, as,

72
under the Constitution of the Commonwealth of the Philippines, it is a part of the fundamental law of
the land (Article II, section 3).

As International Law is an integral part of our laws, it must be ascertained and administered by this
Court, whenever questions of right depending upon it are presented for our determination, sitting as
an international as well as a domestic Tribunal (Kansas vs. Colorado, 185 U.S., 146; 22 Sup. Ct.
552; 46 Law. Ed., 838).

Since International Law is a body of rules actually accepted by nations as regulating their mutual
relations, the proof of the existence of a given rule is to be found in the consent of nations to abide
by that rule; and this consent is evidenced chiefly by the usages and customs of nations, and to
ascertain what these usages and customs are, the universal practice is to turn to the writings of
publicists and to the decisions of the highest courts of the different countries of the world (The
Habana, 175 U.S., 677; 20 Sup. Cit., 290; 44 Law. ed., 320).

But while usage is the older and original source of International Law, great international treaties are
a later source of increasing importance, such as The Hague Conventions of 1899 and 1907.

The Hague Conventions of 1899, respecting laws and customs of war on land, expressly declares
that:

ARTICLE XLII. Territory is considered occupied when it is actually placed under the authority
of the hostile army.

The occupation applies only to be territory where such authority is established, and in a
position to assert itself.

ARTICLE XLIII. The authority of the legitimate power having actually passed into the hands
of the occupant, the later shall take all 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. (32 Stat. II, 1821.)

The above provisions of the Hague Convention have been adopted by the nations giving adherence
to them, among which is United States of America (32 Stat. II, 1821).

The commander in chief of the invading forces or military occupant may exercise governmental
authority, but only when in actual possession of the enemy's territory, and this authority will be
exercised upon principles of international Law (New Orleans vs. Steamship Co, [1874], 20 Wall.,
387; Kelly vs. Sanders [1878], 99 U.S., 441; MacLeod vs. U.S., 229 U.S. 416; 33 Sup. Ct., 955; 57
Law Ed., 1260; II Oppenheim of International Law, section 167).

There can be no question that the Philippines was under Japanese military occupation, from
January, 1942, up to the time of the reconquest by the armed forces of the United States of the
Island of Luzon, in February, 1945.

It will thus be readily seen that the civil laws of the invaded State continue in force, in so far as they
do not affect the hostile occupant unfavorably. The regular judicial Tribunals of the occupied territory
continue usual for the invader to take the whole administration into his own hands, partly because it
is easier to preserve order through the agency of the native officials, and partly because it is easier
to preserve order through the agency of the native officials, and partly because the latter are more
competent to administer the laws in force within the territory and the military occupant generally

73
keeps in their posts such of the judicial and administrative officers as are willing to serve under him,
subjecting them only to supervision by the military authorities, or by superior civil authorities
appointed by him.(Young vs. U.S., 39; 24 Law, ed., 992; Coleman vs. Tennessee, 97 U.S., 509; 24
Law ed., 1118; MacLeod vs. U.S., 229 U.S., 416; 33 Sup. Ct., 955; 57 Law. ed., 1260; Taylor on
International Law, sections 576. 578; Wilson on International Law; pp. 331-37; Hall on International
Law, 6th Edition [1909], pp. 464, 465, 475, 476; Lawrence on International Law, 7th ed., pp. 412,
413; Davis, Elements of International Law, 3rd ed., pp. 330-332 335; Holland on International Law
pp. 356, 357, 359; Westlake on International Law, 2d ed., pp. 121-23.)

It is, therefore, evident that the establishment of the government under the so-called Philippine
Republic, during Japanese occupation, respecting the laws in force in the country, and permitting the
local courts to function and administer such laws, as proclaimed in the City of Manila, by the
Commander in Chief of the Japanese Imperial Forces, on January 3, 1942, was in accordance with
the rules and principles of International Law.

If the military occupant is thus in duly bound to establish in the territory under military occupation
governmental agencies for the preservation of peace and order and for the proper administration of
justice, in accordance with the laws in force within territory it must necessarily follow that the judicial
proceedings conducted before the courts established by the military occupant must be considered
legal and valid, even after said government establish by the military occupant has been displaced by
the legitimate government of the territory.

Thus the judgments rendered by the Confederate Courts, during the American Civil War, merely
settling the rights of private parties actually within their jurisdiction, not tending to defeat the legal
rights of citizens of the United States, nor in furtherance of laws passed in aid of the rebellion had
been declared valid and binding (Cock vs. Oliver, 1 Woods, 437; Fed. Cas., No. 3, 164;
Coleman vs. Tennessee, 97 U. S., 509; 24 Law. ed., 118; Williams vs. Bruffy, 96 U. S., 176;
Horn vs. Lockhart, 17 Wall., 570; Sprott vs. United States, 20 id., 459; Texas vs. White, 7 id., 700;
Ketchum vs. Buckley [1878], 99 U.S., 188); and the judgment of a court of Georgia rendered in
November, 1861, for the purchase money of slaves was held valid judgment when entered, and
enforceable in 1871(French vs. Tumlin, 10 Am. Law. Reg. [N.S.], 641; Fed. Case, No. 5104).

Said judgments rendered by the courts of the states constituting the Confederate States of America
were considered legal and valid and enforceable, even after the termination of the American Civil
War, because they had been rendered by the courts of a de facto government. The Confederate
States were a de facto government in the sense that its citizens were bound to render the
government obedience in civil matters, and did not become responsible, as wrong-doers, for such
acts of obedience (Thorington vs. Smith, 8 Wall. [U.S.], 9; 19 Law. ed., 361).

In the case of Ketchum vs. Buckley ([1878], 99 U.S., 188), the Court held — "It is now settled law in
this court that during the late civil war the same general form of government, the same general law
for the administration of justice and the 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 did not impair or tend to impair the supremacy of the national authority, or the just and legal
rights of the citizens, under the Constitution, they are in general to be treated as valid and binding."
(William vs. Bruffy, 96 U.S., 176; Horn vs. Lockhart, 17 Wall., 570; Sprott vs. United States, 20 id.,
459; Texas vs. White, 7 id., 700.)

The government established in the Philippines, during Japanese occupation, would seem to fall
under the following definition of de facto government given by the Supreme Court of the United
States:

74
 But there is another description of government, called also by publicists, a government de
facto, but which might, perhaps, be more aptly denominateda government of paramount
force. Its distinguishing characteristics are (1) that its existence is maintained by active
military power within the territories, and against the rightful authority of an established and
lawful government; and (2) that while it exists it must necessarily be obeyed in civil matters
by private citizens who, by acts of obedience rendered in submission to such force, do not
become responsible, as wrong doers, for those acts, though not warranted by the laws of the
rightful government. Actual government 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, by civil authority, supported more or less directly by
military force. (Macleod vs. United States [1913] 229 U.S., 416.)

The government established in the Philippines, under the so-called Philippine Republic, during
Japanese occupation, was and should be considered as a de facto government; and that the judicial
proceedings conducted before the courts which had been established in this country, during said
Japanese occupation, are to be considered legal and valid and enforceable, even after the liberation
of this country by the American forces, as long as the said judicial proceedings had been conducted,
under the laws of the Commonwealth of the Philippines.

The judicial proceedings involved in the case under consideration merely refer to the settlement of
property rights, under the provisions of the Civil Code, in force in this country under the
Commonwealth government, before and during Japanese occupation.

Now, petitioner contends that the judicial proceedings in question are null and void, under the
provisions of the proclamation issued by General Douglas MacArthur, dated October 23, 1944; as
said proclamation "nullifies all the laws, regulations and processes of any other government of the
Philippines than that of the Commonwealth of the Philippines."

In other words, petitioner demands a literal interpretation of said proclamation issued by General
Douglas MacArthur, a contention which, in our opinion, is untenable, as it would inevitably produce
judicial chaos and uncertainties.

When an act is susceptible of two or more constructions, one of which will maintain and the others
destroy it, the courts will always adopt the former (U. S. vs. Coombs [1838], 12 Pet., 72; 9 Law. ed.,
1004; Board of Supervisors of Granada County vs. Brown [1884], 112 U.S., 261; 28 Law. ed., 704; 5
Sup. Ct. Rep., 125; In re Guarina [1913], 24 Phil., 37; Fuentes vs. Director of Prisons [1924], 46
Phil., 385). The judiciary, always alive to the dictates of national welfare, can properly incline the
scales of its decisions in favor of that solution which will most effectively promote the public policy
(Smith, Bell & Co., Ltd. vs. Natividad [1919], 40 Phil., 136). All laws should receive a sensible
construction. General terms should be so limited in their application as not lead to injustice,
oppression or an absurd consequence. It will always, therefore, be presumed that the legislature
intended exceptions to its language, which would avoid results of this character. The reason of the
law in such cases should prevail over its letter (U. S. vs. Kirby, 7 Wall. [U.S.], 482; 19 Law. ed., 278;
Church of Holy Trinity vs. U. S., 143 U. S. 461; 12 Sup. Ct., 511; 36 Law. ed., 226;
Jacobson vs. Massachussetts, 197 U. S., 39; 25 Sup. Ct., 358; 49 Law. ed., 643; 3 Ann. Cas., 765;
In re Allen, 2 Phil., 630). The duty of the court in construing a statute, which is reasonably
susceptible of two constructions to adopt that which saves is constitutionality, includes the duty of
avoiding a construction which raises grave and doubtful constitutional questions, if it can be avoided
(U. S. vs. Delaware & Hudson Co., U.S., 366; 29 Sup. Ct., 527; 53 Law. ed., 836).

According to the rules and principles of International Law, and the legal doctrines cited above, the
judicial proceedings conducted before the courts of justice, established here during Japanese

75
military occupation, merely applying the municipal law of the territory, such as the provisions of our
Civil Code, which have no political or military significance, should be considered legal, valid and
binding.

It is to be presumed that General Douglas MacArthur is familiar with said rules and principles, as
International Law is an integral part of the fundamental law of the land, in accordance with the
provisions of the Constitution of the United States. And it is also to be presumed that General
MacArthur his acted, in accordance with said rules and principles of International Law, which have
been sanctioned by the Supreme Court of the United States, as the nullification of all judicial
proceedings conducted before our courts, during Japanese occupation would lead to injustice and
absurd results, and would be highly detrimental to the public interests.

For the foregoing reasons, I concur in the majority opinion.

PERFECTO, J., dissenting:

Law must be obeyed. To keep the bonds of society, it must not be evaded. On its supremacy
depends the stability of states and nations. No government can prevail without it. The preservation of
the human race itself hinges in law.

Since time immemorial, man has relied on law as an essential means of attaining his purposes, his
objectives, his mission in life. More than twenty-two centuries before the Christian Era, on orders of
the Assyrian King Hammurabi, the first code was engrave in black diorite with cunie form characters.
Nine centuries later Emperor Hung Wu, in the cradle of the most ancient civilization, compiled the
Code of the Great Ming. The laws of Manu were written in the verdic India. Moses received at Sinai
the ten commandments. Draco, Lycurgus, Solon made laws in Greece. Even ruthless Genghis Khan
used laws to keep discipline among the nomad hordes with which he conquered the greater part of
the European and Asiastic continents.

Animal and plants species must follow the mendelian heredity rules and other biological laws to
survive. Thanks to them, the chalk cliffs of the infusoria show the marvel of an animal so tiny as to
be imperceptible to the naked eye creating a whole mountain. Even the inorganic world has to
conform the law. Planets and stars follow the laws discovered by Kepler, known as the law-maker of
heavens. If, endowed with rebellious spirit, they should happen to challenge the law of universal
gravity, the immediate result would be cosmic chaos. The tiny and twinkling points of light set above
us on the velvet darkness of the night will cease to inspire us with dreams of more beautiful and
happier worlds.

Again we are called upon to do our duty. Here is a law that we must apply. Shall we shrink? Shall we
circumvent it ? Can we ignore it?

The laws enacted by the legislators shall be useless if courts are not ready to apply them. It is actual
application to real issues which gives laws the breath of life.

In the varied and confused market of human endeavor there are so many things that might induce us
to forget the elementals. There are so many events, so many problem, so many preoccupations that
are pushing among themselves to attract our attention, and we might miss the nearest and most

76
familiar things, like the man who went around his house to look for a pencil perched on one of his
ears.

THE OCTOBER PROCLAMATION

In October, 1944, the American Armed Forces of Liberation landed successfully in Leyte.

When victory in islands was accomplished, after the most amazing and spectacular war operations,
General of the Army Douglas MacArthur as a commander in Chief of the American Army, decided to
reestablish, in behalf of the United States, the Commonwealth Government.

Then he was confronted with the question as to what policy to adopt in regards to the official acts of
the governments established in the Philippines by the Japanese regime. He might have thought of
recognizing the validity of some of said acts, but, certainly, there were acts which he should declare
null and void, whether against the policies of the American Government, whether inconsistent with
military strategy and operations, whether detrimental to the interests of the American or Filipino
peoples, whether for any other strong or valid reasons.

But, which to recognize, and which not? He was not in a position to gather enough information for a
safe basis to distinguished and classify which acts must be nullified, and which must validated. At
the same time he had to take immediate action. More pressing military matters were requiring his
immediate attention. He followed the safe course: to nullify all the legislative, executive, and judicial
acts and processes under the Japanese regime. After all, when the Commonwealth Government is
already functioning, with proper information, he will be in a position to declare by law, through its
Congress, which acts and processes must be revived and validated in the public interest.

So on October 23, 1944, the Commander in Chief issued the following proclamation:

GENERAL HEADQUARTERS

SOUTHWEST PACIFIC AREA

OFFICE OF THE COMMANDER IN CHIEF

PROCLAMATION

To the People of the Philippines:

WHEREAS, the military forces under my command have landed in the Philippines soil as a
prelude to the liberation of the entire territory of the Philippines; and

WHEREAS, the seat of the Government of the Commonwealth of the Philippines has been
re-established in the Philippines under President Sergio Osmeña and the members of his
cabinet; and

WHEREAS, 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, and is purporting
to exercise Executive, Judicial and Legislative powers of government over the people;

77
 Now, therefore, I, Douglas MacArthur, General, United States Army, as Commander in Chief
of the military forces committed to the liberation of the Philippines, do hereby proclaim and
declare:

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 the only
government having legal and valid jurisdiction over the people in areas of the
Philippines free of enemy occupation and control;

2. The laws now existing on the statute books of the Commonwealth of the
Philippines and the regulation 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 enemy occupation and control; and

I do hereby announce my purpose progressively to restore and extend to the people of the
Philippines the sacred right of government by constitutional process under the regularly
constituted Commonwealth Government as rapidly as the several occupied areas are
liberated to the military situation will otherwise permit;

I do enjoin upon all loyal citizens of the Philippines full respect for and obedience to the
Constitution of the Commonwealth of the Philippines and the laws, regulations and other acts
of their duly constituted government whose seat is now firmly re-established on Philippine
soil.

October 23, 1944.

DOUGLAS MACARTHUR
General U. S. Army
Commander in Chief

IS THE OCTOBER PROCLAMATION LAW?

In times of war the Commander in Chief of an army is vested with extraordinary inherent powers, as
a natural result of the nature of the military operations aimed to achieve the purposes of his country
in the war, victory being paramount among them.

Said Commander in Chief may establish in the occupied or reoccupied territory, under his control, a
complete system of government; he may appoint officers and employees to manage the affairs of
said government; he may issue proclamations, instructions, orders, all with the full force of laws
enacted by a duly constituted legislature; he may set policies that should be followed by the public
administration organized by him; he may abolish the said agencies. In fact, he is the supreme ruler
and law-maker of the territory under his control, with powers limited only by the receipts of the
fundamental laws of his country.

California, or the port of San Francisco, had been conquered by the arms of the United
States as early as 1846. Shortly afterward the United States had military possession of all
upper California. Early in 1847 the President, as constitutional commander in chief of the

78
army and navy, authorized the military and naval commander of our forces in California to
exercise the belligerent rights of a conqueror, and form a civil government for the conquered
country, and to impose duties on imports and tonnage as military contributions for the
support of the government, and of the army which has the conquest in possession. . . Cross
of Harrison, 16 Howard, 164, 189.)

In May, 1862, after the capture of New Orleans by the United States Army, General Butler,
then in command of the army at that place, issued a general order appointing Major J. M.
Bell, volunteer aide-de-camp, of the division staff, provost judge of the city, and directed that
he should be obeyed and respected accordingly. The same order appointed Capt. J. H.
French provost marshal of the city, the Capt. Stafford deputy provost marshal. A few days
after this order the Union Bank lent to the plaintiffs the sum of $130,000, and subsequently,
the loan not having been repaid, brought suit before the provost judge to recover the debt.
The defense was taken that the judge had no jurisdiction over the civil cases, but judgement
was given against the borrowers, and they paid the money under protest. To recover it back
is the object of the present suit, and the contention of the plaintiffs is that the judgement was
illegal and void, because the Provost Court had no jurisdiction of the case. The judgement of
the District Court was against the plaintiffs, and this judgement was affirmed by the Supreme
Court of the State. To this affirmance error is now assigned.

The argument of the plaintiffs in error is that the establishment of the Provost Court, the
appointment of the judge, and his action as such in the case brought by the Union Bank
against them were invalid, because in violation of the Constitution of the United States, which
vests the judicial power of the General government in one Supreme Court and in such
inferior courts as Congress may from time to time ordain and establish, and under this
constitutional provision they were entitled to immunity from liability imposed by the judgment
of the Provost Court. Thus, it is claimed, a Federal question is presented, and the highest
court of the State having decided against the immunity claimed, our jurisdiction is invoked.

Assuming that the case is thus brought within our right to review it, the controlling question is
whether the commanding general of the army which captured New Orleans and held it in
May 1862, had authority after the capture of the city to establish a court and appoint a judge
with power to try and adjudicate civil causes. Did the Constitution of the United States
prevent the creation of the civil courts in captured districts during the war of the rebellion, and
their creation by military authority?

This cannot be said to be an open question. The subject came under the consideration by
this court in The Grapeshot, where it was decided that when, during the late civil war,
portions of the insurgent territory were occupied by the National forces, it was within the
constitutional authority of the President, as commander in chief, to establish therein
provisional courts for the hearing and determination of all causes arising under the laws of
the States or of the United States, and it was ruled that a court instituted by President Lincoln
for the State of Louisiana, with authority to hear, try, and determine civil causes, was lawfully
authorized to exercise such jurisdiction. Its establishment by the military authority was held to
be no violation of the constitutional provision that "the judicial power of the United States
shall be vested in one Supreme Court and in such inferior courts as the Congress may form
time to time ordain and establish." That clause of the Constitution has no application to the
abnormal condition of conquered territory in the occupancy of the conquering, army. It refers
only to courts of United States, which military courts are not. As was said in the opinion of
the court, delivered by Chief Justice Chase, in The Grapeshot, "It became the duty of the
National government, wherever the insurgent power was overthrown, and the territory which
had been dominated by it was occupied by the National forces, to provide, as far as possible,
so long as the war continued, for the security of the persons and property and for the

79
 administration of justice. The duty of the National government in this respect was no other
than that which devolves upon a regular belligerent, occupying during war the territory of
another belligerent. It was a military duty, to be performed by the President, as Commander
in Chief, and instructed as such with the direction of the military force by which the
occupation was held."

Thus it has been determined that the power to establish by military authority courts for the
administration of civil as well as criminal justice in portions of the insurgent States occupied
by the National forces, is precisely the same as that which exists when foreign territory has
been conquered and is occupied by the conquerors. What that power is has several times
been considered. In Leitensdorfer & Houghton vs. Webb, may be found a notable illustration.
Upon the conquest of New Mexico, in 1846, the commanding officer of the conquering army,
in virtue of the power of conquest and occupancy, and with the sanction and authority of the
President, ordained a provisional government for the country. The ordinance created courts,
with both civil and criminal jurisdiction. It did not undertake to change the municipal laws of
the territory, but it established a judicial system with a superior or appellate court, and with
circuit courts, the jurisdiction of which declared to embrace, first, all criminal causes that
should not otherwise provided for by law; and secondly, original and exclusive cognizance of
all civil cases not cognizable before the prefects and alcades. But though these courts and
this judicial system were established by the military authority of the United States, without
any legislation of Congress, this court ruled that they were lawfully established. And there
was no express order for their establishment emanating from the President or the
Commander in Chief. The ordinance was the act of the General Kearney the commanding
officer of the army occupying the conquered territory.

In view of these decisions it is not to be questioned that the Constitution did not prohibit the
creation by the military authority of court for the trial of civil causes during the civil war in
conquered portions of the insurgent States. The establishment of such courts is but the
exercise of the ordinary rights of conquest. The plaintiffs in error, therefore, had no
constitutional immunity against subjection to the judgements of such courts. They argue,
however, that if this be conceded, still General Butler had no authority to establish such a
court; that the President alone, as a Commander in Chief, had such authority. We do not
concur in this view. General Butler was in command of the conquering and the occupying
army. He was commissioned to carry on the war in Louisina. He was, therefore, invested
with all the powers of making war, so far as they were denied to him by the Commander in
Chief, and among these powers, as we have seen, was of establishing courts in conquered
territory. It must be presumed that he acted under the orders of his superior officer, the
President, and that his acts, in the prosecution of the war, were the acts of his commander in
chief. (Mechanics' etc. Bank vs. Union Bank, 89 U. S. [22 Wall.], 276-298.)

There is no question, therefore, that when General of the Army Douglas MacArthur issued on
October Proclamation, he did it in the legitimate exercise of his powers. He did it as the official
representative of the supreme authority of the United States of America. Consequently, said
proclamation is legal, valid, and binding.

Said proclamation has the full force of a law. In fact, of a paramount law. Having been issued in the
exercise of the American sovereignty, in case of conflict, it can even supersede, not only the
ordinary laws of the Commonwealth of the Philippines, but also our Constitution itself while we
remain under the American flag.

"PROCESS" IN THE OCTOBER PROCLAMATION

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In the third section of the dispositive part of the October Proclamation, it is declared that all laws,
regulations and processes of any other government in the Philippines than that of the
Commonwealth, are null and void.

Does the word "processes" used in the proclamation include judicial processes?

In its broadest sense, process is synonymous with proceedings or procedures and embraces all the
steps and proceedings in a judicial cause from it commencement to its conclusion.

PROCESS. In Practice. — The means of compelling a defendant to appear in court after

suing out the original writ, in civil, and after indictment, in criminal cases.

The method taken by law to compel a compliance with the original writ or command as of the
court.

A writ, warrant, subpoena, or other formal writing issued by authority law; also the means of
accomplishing an end, including judicial proceedings; Gollobitch vs. Rainbow, 84 la., 567; 51
N. W., 48; the means or method pointed out by a statute, or used to acquire jurisdiction of
the defendants, whether by writ or notice. Wilson vs. R. Co. (108 Mo., 588; 18 S. W., 286; 32
Am. St. Rep., 624). (3 Bouvier's Law Dictionary, p. 2731.)

A. Process generally. 1. Definition. — As a legal term process is a generic word of every

comprehensive signification and many meanings. It is broadest sense it is equivalent to, or
synonymous with, "proceedings" or "procedure," and embraces all the steps and
proceedings in a cause from its commencement to its conclusion. Sometimes the term is
also broadly defined as the means whereby a court compels a compliance with it demands.
"Process" and "writ" or "writs" are synonymous in the sense that every writ is a process, and
in a narrow sense of the term "process" is limited to judicial writs in an action, or at least to
writs or writings issued from or out of court, under the seal thereof, and returnable thereto;
but it is not always necessary to construe the term so strictly as to limit it to a writ issued by a
court in the exercise of its ordinary jurisdiction; the term is sometimes defined as a writ or
other formal writing issued by authority of law or by some court, body, or official having
authority to issue it; and it is frequently used to designate a means, by writ or otherwise , of
acquiring jurisdiction of defendant or his property, or of bringing defendant into, or compelling
him to appear in, court to answer.

As employed in the statutes the legal meaning of the word "process" varies according to the
context, subject matter, and spirit of the statute in which it occurs. In some jurisdictions
codes or statutes variously define "process" as signifying or including: A writ or summons
issued in the course of judicial proceedings; all writs, warrants, summonses, and orders of
courts of justice or judicial officers; or any writ, declaration, summons, order, or subpoena
whereby any action, suit or proceeding shall be commenced, or which shall be issued in or
upon any action, suit or proceeding. (50 C. J., PP. 441, 442.)

The definition of "process" given by Lord Coke comprehends any lawful warrant, authority, or
proceeding by which a man may be arrested. He says: "Process of law is two fold, namely,
by the King's writ, or by proceeding and warrant, either in deed or in law, without writ."
(People vs. Nevins [N. Y.] Hill, 154, 169, 170; State vs. Shaw, 50 A., 869; 73 Vt., 149.)

Baron Comyn says that process, in a large acceptance, comprehends the whole proceedings
after the original and before judgement; but generally it imports the writs which issue out of
any court to bring the party to answer, or for doing execution, and all process out of the

81
King's court ought to be in the name of the King. It is called "process" because it proceeds or
goes upon former matter, either original or judicial. Gilmer, vs. Bird 15 Fla., 410, 421. (34
Words and Phrases, permanent edition, 1940 edition, p. 147.)

In a broad sense the word "process" includes the means whereby a court compels the
appearance of the defendant before it, or a compliance with it demands, and any every writ,
rule order, notice, or decree, including any process of execution that may issue in or upon
any action, suit, or legal proceedings, and it is not restricted to mesne process. In a narrow
or restricted sense it is means those mandates of the court intending to bring parties into
court or to require them to answer proceedings there pending. (Colquitt Nat.
Bank vs. Poitivint, 83 S. E., 198, 199; 15 Ga. App., 329. (34 Words and Phrases, permanent
edition, 1940 edition, p. 148.)

A "process" is an instrument in an epistolary from running in the name of the sovereign of a

state and issued out of a court of justice, or by a judge thereof, at the commencement of an
action or at any time during its progress or incident thereto, usually under seal of the court,
duly attested and directed to some municipal officer or to the party to be bound by it,
commanding the commission of some act at or within a specified time, or prohibiting the
doing of some act. The cardinal requisites are that the instrument issue from a court of
justice, or a judge thereof; that it run in the name of the sovereign of the state; that it be duly
attested, but not necessarily by the judge, though usually, but not always, under seal; and
that it be directed to some one commanding or prohibiting the commission of an act.
Watson vs. Keystone Ironworks Co., 74 P., 272, 273; 70 Kan., 43. (34 Words and Phrases,
permanent edition, 1940 edition, p. 148.)

Jacobs in his Law Dictionary says: "Process" has two qualifications: First, it is largely taken
for all proceedings in any action or prosecution, real or personal, civil or criminal, from the
beginning to the end; secondly, that is termed the "process" by which a man is called into
any temporal court, because the beginning or principal part thereof, by which the rest is
directed or taken. Strictly, it is a proceeding after the original, before the judgement. A policy
of fire insurance contained the condition that if the property shall be sold or transferred, or
any change takes place in title or possession, whether by legal process or judicial decree or
voluntary transfer or convenience, then and in every such case the policy shall be void. The
term "legal process," as used in the policy, means what is known as a writ; and, as
attachment or execution on the writs are usually employed to effect a change of title to
property, they are or are amongst the processes contemplated by the policy. The words
"legal process" mean all the proceedings in an action or proceeding. They would necessarily
embrace the decree, which ordinarily includes the proceedings. Perry vs. Lorillard Fire Ins.
Co., N. Y., 6 Lans., 201, 204. See, also, Tipton vs. Cordova, 1 N. M., 383, 385. (34 Words
and Phrases, permanent edition, 1940 edition, p. 148.)

"Process" in a large acceptation, is nearly synonymous with "proceedings," and means the
entire proceedings in an action, from the beginning to the end. In a stricter sense, it is
applied to the several judicial writs issued in an action. Hanna vs. Russell, 12 Minn., 80, 86
(Gil., 43, 45). (34 Words and Phrases, permanent edition, 1940, edition 149.)

The term "process" as commonly applied, intends that proceeding by which a party is called
into court, but it has more enlarged signification, and covers all the proceedings in a court,
from the beginning to the end of the suit; and, in this view, all proceedings which may be had
to bring testimony into court, whether viva voce or in writing, may be considered the process
of the court. Rich vs. Trimple, Vt., 2 Tyler, 349, 350. Id.

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 "Process" in its broadest sense comprehends all proceedings to the accomplishment of an
end, including judicial proceedings. Frequently its signification is limited to the means of
bringing a party in court. In the Constitution process which at the common law would have
run in the name of the king is intended. In the Code process issued from a court is meant.
McKenna vs. Cooper, 101 P., 662, 663; 79 Kan., 847, quoting Hanna vs. Russel, 12 Minn.,
80. (Gil., 43 ); Black Com. 279; Bou vs. Law. Dict. (34 Words and Phrases, permanent
edition 1940 edition, p. 149.)

"Judicial process" includes the mandate of a court to its officers, and a means whereby
courts compel the appearance of parties, or compliance with its commands, and includes a
summons. Ex parte Hill, 51 So., 786, 787; 165 Ala., 365.

"Judicial process" comprehends all the acts of then court from the beginning of the
proceeding to its end, and in a narrower sense is the means of compelling a defendant to
appear in court after suing out the original writ in civil case and after the indictment in
criminal cases, and in every sense is the act of the court and includes any means of
acquiring jurisdiction and includes attachment, garnishment, or execution, and also a writ.
Blair vs. Maxbass Security Bank of Maxbass, 176 N. W., 98, 199; 44 N. D. 12 (23 Words and
Phrases, permanent edition 1940 edition, p. 328.)

There is no question that the word process, as used in the October Proclamation, includes all judicial
processes or proceedings.

The intention of the author of the proclamation of including judicial processes appears clearly in the
preamble of the document.

The second "Whereas," states that so-called government styled as the "Republic of the Philippines,"
based upon neither the free expression of the people's will nor the sanction of the Government of the
United States, and is purporting to the exercise Executive, Judicial, and Legislative powers of
government over the people."

It is evident from the above-mentioned words that it was the purpose of General MacArthur to
declare null and void all acts of government under the Japanese regime, and he used, in section 3 of
he dispositive part, the word laws, as pertaining to the legislative branch, the word regulations, as
pertaining to the executive branch, and lastly, the word processes, as pertaining to the judicial
branch of the government which functioned under the Japanese regime.

It is reasonable to assume that he might include in the word "process." besides those judicial
character, those of executive or administrative character. At any rate, judicial processes cannot be
excluded.

THE WORDS OF PROCLAMATION EXPRESS UNMISTAKABLY

THE INTENTION OF THE AUTHOR

The October Proclamation is written in such a way that it is impossible to make a mistake as to the
intention of its author.

Oliver Wendell Holmes, perhaps the wisest man who had ever sat in the Supreme Court of the
United States, the following:

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 When the words in their literal sense have a plain meaning, courts must be very cautious in
allowing their imagination to give them a different one. Guild vs. Walter, 182 Mass., 225, 226
(1902)

Upon questions of construction when arbitrary rule is involved, it is always more important to
consider the words and the circumstances than even strong analogies decisions. The
successive neglect of a series of small distinctions, in the effort to follow precedent, is very
liable to end in perverting instruments from their plain meaning. In no other branch of the law
(trusts) is so much discretion required in dealing with authority. . . . There is a strong
presumption in favor of giving them words their natural meaning, and against reading them
as if they said something else, which they are not fitted to express. (Merrill vs. Preston, 135
Mass., 451, 455 (1883).

When the words of an instrument are free from ambiguity and doubt, and express plainly, clearly and
distinctly the sense of the framer, there is no occasion to resort to other means of interpretation. It is
not allowable to interpret what needs no interpretation.

Very strong expression have been used by the courts to emphasize the principle that they are to
derive their knowledge of the legislative intention from the words or language of the statute itself
which the legislature has used to express it. The language of a statute is its most natural guide. We
are not liberty to imagine an intent and bind the letter to the intent.

The Supreme Court of the United States said: "The primary and general rule of statutory
construction is that the intent of the law-maker is to be found in the language that he has used. He is
presumed to know the meaning of the words and the rules of grammar. The courts have no function
of legislation, and simply seek to ascertain the will of the legislator. It is true that there are cases in
which the letter of the statute is not deemed controlling, but the cases are few and exceptional and
only arise where there are cogent reasons for believing that the letter does not fully and accurately
disclose the intent. No mere ommission, no mere failure to provide for contingencies, which it may
seem wise should have specifically provided for will justify any judicial addition to the language of the
statute." (United States vs. Goldenberg, 168 U. S., 95, 102, 103; 18 S. C. Rep., 3; 42 Law. ed., 394.)

That the Government of the Commonwealth of the Philippines shall be the sole and only government
in our country; that our laws are in full force and effect and legally binding; that "all laws, regulations
and processes of any other government are null and void and without legal effect", are provisions
clearly, distinctly, unmistakably expressed in the October Proclamation, as to which there is no
possibility of error, and there is absolutely no reason in trying to find different meanings of the plain
words employed in the document.

As we have already seen, the annulled processes are precisely judicial processes, procedures and
proceedings, including the one which is under our consideration.

THE OCTOBER PROCLAMATION ESTABLISHES A CLEAR POLICY

Although, as we have already stated, there is no possible mistakes as to the meaning of the words
employed in the October Proclamation, and the text of the document expresses, in clear-cut
sentences, the true purposes of its author, it might not be amiss to state here what was the policy
intended to be established by said proclamation.

It is a matter of judicial knowledge that in the global war just ended on September 2, 1945, by the
signatures on the document of unconditional surrender affixed by representatives of the Japanese

84
government, the belligerents on both sides resorted to what may call war weapons of psychological
character.

So Japan, since its military forces occupied Manila, had waged an intensive campaign propaganda,
intended to destroy the faith of the Filipino people in America, to wipe out all manifestations of
American or occidental civilization, to create interest in all things Japanese, which the imperial
officers tried to present as the acme of oriental culture, and to arouse racial prejudice among
orientals and occidentals, to induce the Filipinos to rally to the cause of Japan, which she tried to
make us believe is the cause of the inhabitants of all East Asia.

It is, then, natural that General MacArthur should take counter-measures to neutralize or annul
completely all vestiges of Japanese influence, specially those which might jeopardize in any way his
military operations and his means of achieving the main objective of the campaign of the liberation,
that is, to restore in our country constitutional processes and the high ideals constitute the very
essence of democracy.

It was necessary to free, not only our territory, but also our spiritual patrimony. It was necessary, not
only to restore to us the opportunity of enjoying the physical treasures which a beneficent
Providence accumulated on this bountiful land, the true paradise in the western Pacific, but to
restore the full play of our ideology, that wonderful admixture of sensible principles of human
conduct, bequeathed to us by our Malayan ancestors, the moral principles of the Christianity
assimilated by our people from teachers of Spain, and the common-sense rules of the American
democratic way of life.

It was necessary to free that ideology from any Japanese impurity.

Undoubtedly, the author of the proclamation thought that the laws, regulations, and processes of all
the branches of the governments established under the Japanese regime, if allowed to continue and
to have effect, might be a means of keeping and spreading in our country the Japanese influence,
with the same deadly effects as the mines planted by the retreating enemy.

The government offices and agencies which functioned during the Japanese occupation represented
a sovereignty and ideology antagonistic to the sovereignty and ideology which MacArthur's forces
sought to restore in our country.

Under chapter I of the Japanese Constitution, it is declared that Japan shall reigned and governed
by a line Emperors unbroken for ages eternal (Article 1); that the Emperor is sacred and inviolable
(Article 3); that he is the head of the Empire, combining in himself the rights of the sovereignty
(Article 4); that he exercises the legislative power (Article 5); that he gives sanction to laws, and
orders to be promulgated and executed (Article 6);that he has the supreme command of the Army
and Navy (Article 11); that he declares war, makes peace, and concludes treaties (Article 13).

There is no reason for allowing to remain any vestige of Japanese ideology, the ideology of a people
which as confessed in a book we have at our desk, written by a Japanese, insists in doing many
things precisely in a way opposite to that followed by the rest of the world.

It is the ideology of a people which insists in adopting the policy of self-delusion; that believes that
their Emperor is a direct descendant of gods and he himself is a god, and that the typhoon which
occured on August 14, 1281, which destroyed the fleet with which Kublai Khan tried to invade Japan
was the divine wind of Ise; that defies the heinous crime of the ronin, the 47 assassins who, in order
to avenge the death of their master Asano Naganori, on February 3, 1703, entered stealthily into the
house of Yoshinaka Kiro and killed him treacherously.

85
It is an ideology which dignifies harakiri or sepukku, the most bloody and repugnant from suicide,
and on September 13, 1912, on the occasion of the funeral of Emperor Meiji, induced General
Maresuke Nogi and his wife to practice the abhorrent "junshi", and example of which is offered to us
in the following words of a historian:

When the Emperor's brother Yamato Hiko, died in 2 B. C., we are told that, following the
occasion, his attendants were assembled to from the hito-bashira (pillar-men) to gird the
grave. They were buried alive in circle up to the neck around the thomb and "for several days
they died not, but wept and wailed day night. At last they died not, but wept and wailed day
night. At last they did not rotted. Dogs and cows gathered and ate them." (Gowen, an Outline
of History of Japan, p. 50.)

The practice shows that the Japanese are the spiritual descendants of the Sumerians, the ferocious
inhabitants of Babylonia who, 3500 years B. C., appeared in history as the first human beings to
honor their patesis by killing and entombing with him his window, his ministers, and notable men and
women of his kingdom, selected by the priests to partake of such abominable honor. (Broduer, The
Pageant of Civilization, pp. 62-66.)

General MacArthur sought to annul completely the officials acts of the governments under the
Japanese occupation, because they were done at the shadow of the Japanese dictatorship, the
same which destroyed the independence of Korea, the "Empire of Morning Frehsness"; they violated
the territorial integrity of China, invaded Manchuria, and initiated therein the deceitful system of
puppet governments, by designating irresponsible Pu Yi as Emperor of Manchukuo; they violated
the trusteeship granted by the Treaty of Versailles by usurping tha mandated islands in the Pacific;
they initiated that they call China Incident, without war declaration, and, therefore, in complete
disregard of an elemental international duty; they attacked Pearl Harbor treacherously, and
committed a long series of the flagrant violations of international law that have logically bestowed on
Japan the title of the bandit nation in the social world.

The conduct of the Japanese during the occupation shows a shocking an anchronism of a modern
world power which seems to be re-incarnation of one whose primitive social types of pre-history,
whose proper place must be found in an archeological collection. It represents a backward jump in
the evolution of ethical and juridical concepts, a reversion that, more than a simple pathological
state, represents a characteristics and well defined case of sociological teratology.

Since they entered the threshold of our capital, the Japanese had announced that for every one of
them killed they would kill ten prominent Filipinos. They promised to respect our rights by submitting
us to the wholesale and indiscriminate slapping, tortures, and atrocious massacres. Driving nails in
the cranium, extraction of teeth and eyes, burnings of organs, hangings, diabolical zonings, looting
of properties, establishments of redlight districts, machine gunning of women and children, interment
of alive persons, they are just mere preludes of the promised paradised that they called "Greater
East Asia Co-Prosperity Sphere".

They promised religious liberty by compelling all protestant sects to unite, against the religious
scruples and convictions of their members, in one group, and by profaning convents, seminaries,
churches, and other cult centers of the Catholics, utilizing them as military barracks, munitions
dumps, artillery base, deposits of bombs and gasoline, torture chambers and zone, and by
compelling the government officials and employees to face and to bow in adoration before that
caricature of divinity in the imperial palace of Tokyo.

The Japanese offered themselves to be our cultural mentors by depriving us of the use of our
schools and colleges, by destroying our books and other means of culture, by falsifying the contents

86
of school texts, by eliminating free press, the radio, all elemental principles of civilized conduct, by
establishing classes of rudimentary Japanese so as to reduce the Filipinos to the mental level of the
rude Japanese guards, and by disseminating all kinds of historical, political, and cultural falsehoods.

Invoking our geographical propinquity and race affinity, they had the insolence of calling us their
brothers, without the prejuce of placing of us in the category of slaves, treating the most prominent
Filipinos in a much lower social and political category than that of the most ignorant and brutal
subject of the Emperor.

The civil liberties of the citizens were annulled. Witnesses and litigants were slapped and tortured
during investigations. In the prosecuting attorney's offices, no one was safe. When the Japanese
arrested a person, the lawyer who dared to intercede was also placed under arrest. Even courts
were not free from their dispotic members. There were judges who had to trample laws and shock
their conscience in order not to disgust a Nipponese.

The most noble of all professions, so much so that the universities of the world could not conceive of
higher honor that may be conferred than that of Doctor of Laws, became the most despised. It was
dangerous to practice the profession by which faith in the effectiveness of law is maintained; citizens
feel confident in the protection of their liberties, honor, and dignity; the weak may face the powerful;
the lowest citizen is not afraid of the highest official; civil equality becomes reality; justice is
admnistered with more efficiency; and democracy becomes the best system of government and the
best guaranty for the welfare and happiness of the individual human being. In fact, the profession of
law was annulled, and the best lawyers for the unfortunate prisoners in Fort Santiago and other
centers of torture were the military police, concubines, procurers, and spies, the providers of war
materials and shameful pleasures, and the accomplices in fraudulent transactions, which were the
specialty of many naval and military Japanese officers.

The courts and Filipino government officials were completely helpless in the question of protecting
the constitutional liberties and fundamental rights of the citizens who happen to be unfortunate
enough to fall under the dragnet of the hated kempei. Even the highest government officials were not
safe from arrest and imprisonment in the dreaded military dungeons, where torture or horrible death
were always awaiting the defenseless victim of the Japanese brutality.

May any one be surprised if General MacArthur decided to annul all the judicial processes?

The evident policy of the author of the October Proclamation can be seen if we take into
consideration the following provisions of the Japanese Constitution:

ART. 57. The Judicature shall be exercised by the Courts of Law according to law, in the
name of the Emperor.

ART. 61. No suit at law, which relates to rights alleged to have been infringed by the illegal
measures of the executive authority .. shall be taken cognizance of by a Court of Law.

INTERNATIONAL LAW

Nobody dared challenge the validity of the October Proclamation.

Nobody dared challenge the authority of the military Commander in Chief who issued it.

87
Certainly not because of the awe aroused by the looming figure of General of the Army Douglas
MacArthur, the Allied Supreme Commander, the military hero, the greatest American general, the
Liberator of the Philippines, the conqueror of Japan, the gallant soldier under whose authority the
Emperor of the Japan, who is supposed to rule supreme for ages as a descendant of gods, is
receiving orders with the humility of a prisoner of war.

No challenge has been hurled against the proclamation or the authority of the author to issue it,
because everybody acknowledges the full legality of its issuance.

But because the proclamation will affect the interest and the rights of a group of individuals, and to
protect the same, a way is being sought to neutralize the effect of the proclamation.

The way found is to invoke international law. The big and resounding word is considered as a
shibboleth powerful enough to shield the affected persons from the annulling impact.

Even then, international law is not invoked to challenge the legality or authority of the proclamation,
but only to construe it in a convenient way so that judicial processes during the Japanese
occupation, through an exceptional effort of the imagination, might to segregated from the processes
mentioned in the proclamation.

An author said that the law of nations, the "jus gentiun", is not a fixed nor immutable science. On the
country, it is developing incessantly, it is perpetually changing in forms. In each turn it advances or
recedes, according to the vicissitudes of history, and following the monotonous rythm of the ebb and
rise of the tide of the sea.

Le driot des gens, en effet, n'est point une science fixe est immuable: bein au contraire, il se
developpe sans cesse, il change eternellement de formes; tour il avance et il recule, selon
less vicissitudes de histoire et suivan un rhythm monotone qui est comme le flux et le reflux
d'un mer. (M. Revon, De l'existence du driot international sous la republique romain.)

Another author has this to say:

International law, if it is or can be a science at all, or can be, at most a regulative science,
dealing with the conduct of States, that is, human beings in a certain capacity; and its
principles and prescriptions are not, like those of science proper, final and unchanging. The
substance of science proper is already made for man; the substance of international is
actually made by man, — and different ages make differently." (Coleman Philippson, The
International Law and Custom of Ancient Greece of Rome, Vol. I, p. 50.)

"Law must be stable, and yet it cannot stand still." (Pound, Interpretations of Legal History., p. 1. )
Justice Cardozo adds: "Here is the great antimony confronting us at every turn. Rest and motion,
unrelieved and unchecked, are equally destructive. The law, like human kind, if life is to continue,
must find some path compromise." (The Growth of Law p. 2.) Law is just one of the manifestations of
human life, and "Life has relations not capable of division into inflexible compartments. The moulds
expand and shrink," (Glanzer vs. Shepard, 233 N.Y., 236, 241.)

The characteristic plasticity of law is very noticeable, much more than in any other department, in
international law.

In a certain matters it is clear we have made substantial progress, but in other points, he (M.
Revon) maintains, we have retrograded; for example, in the middle ages the oath was not

88
 always respected as faithfully as in ancient Rome; and nearer our own times, in the
seventeenth century, Grotius proclaims the unquestioned right of the belligerents to
massacre the women and the children of the enemy; and in our more modern age the due
declaration of war which Roman always conformed to has not been invariably observed.
(Coleman Philippson, The International Law and Custom of Ancient Greece and Rome, Vol.
I, p. 209.)

Now let us see if any principle of international law may effect the enforcement of the October
Proclamation.

In this study we should be cautioned not to allow ourselves to be deluded by generalities and
vagueness which are likely to lead us easily to error, in view of the absence of codification and
statutory provisions.

Our Constitution provides:

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. (Sec. 3, Art. II.)

There being no codified principles of international law, or enactments of its rules, we cannot rely on
merely legal precepts.

With the exception of international conventions and treaties and, just recently, the Charter of the
United Nations, adopted in San Francisco Conference on June 26, 1945, we have to rely on
unsystemized judicial pronouncements and reasonings and on theories, theses, and propositions
that we may find in the works of authors and publicists.

Due to that characteristic pliability and imprecision of international law, the drafters of our
Constitution had to content themselves with "generally accepted principles."

We must insists, therefore, that the principles should be specific and unmistakably defined and that
there is definite and conclusive evidence to the effect that they generally accepted among the
civilized nations of the world and that they belong to the current era and no other epochs of history.

The temptation of assuming the role of a legislator is greater in international law than in any other
department of law, since there are no parliaments, congresses, legislative assemblies which can
enact laws and specific statutes on the subject. It must be our concern to avoid falling in so a great
temptation, as its, dangers are incalculable. It would be like building castles in the thin air, or trying to
find an exit in the thick dark forest where we are irretrievably lost. We must also be very careful in
our logic. In so vast a field as international law, the fanciful wandering of the imagination often impair
the course of dialistics.

THE OCTOBER PROCLAMATION AND INTERNATIONAL LAW

Is there any principle of international law that may effect the October Proclamation?

We tried in vain to find out in the majority opinion anything as to the existence of any principle of
international law under which the authority of General MacArthur to issue the proclamation can
effectively be challenged.

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No principle of international law has been, or could be invoked as a basis for denying the author of
the document legal authority to issue the same or any part thereof.

We awaited in vain for any one to dare deny General MacArthur the authority, under international
law, to declare null and void and without effect, not only the laws and regulations of the governments
under the Japanese regime, but all the processes of said governments, including judicial processes.

If General MacArthur, as commander in Chief of the American Armed Forces of Liberation, had
authority, full and legal, to issue the proclamation, the inescapable result will be the complete
viodance and nullity of all judicial processes, procedures, and proceedings of all courts under the
Japanese regime.

But those who are sponsoring the cause of said judicial processes try to achieve their aim, not by
direct means, but by following a tortuous side-road.

They accept and recognize the full authority of the author of the proclamation to issue it and all its
parts, but they maintain that General MacArthur did not and could not have in mind the idea of
nullifying the judicial processes during the Japanese occupation, because that will be in violation of
the principles of international law.

If we follow the reasoning of the majority opinion we will have to reach the conlusion that the world
"processes" does not appear at all in the October Proclamation.

It is stated more than once, and reiterated with dogmatic emphasis, that under the principles of
international law the judicial processes under an army occupation cannot be invalidated.

But we waited in vain for the specific principle of international law, only one of those alluded to, to be
pointed out to us.

If the law exist, it can be pointed out. If the principle exists, it can stated specifically. The word is
being used very often in plural, principles, but we need only one to be convinced.

The imagined principles are so shrouded in a thick maze of strained analogies and reasoning, that
we confess our inability even to have a fleeting glimpse at them through their thick and invulnerable
wrappers.

At every turn international law, the blatant words, are haunting us with the deafening bray of a
trumpet, but after the transient sound has fled away, absorbed by the resiliency of the vast
atmosphere, the announced principles, which are the very soul of international law, would disappear
too with the lighting speed of a vanishing dream.

WEAKNESS OF THE MAJORITY POSITION

In the majority opinion three questions are propounded: first, whether judicial acts and proceedings
during the Japanese occupation are valid even after liberation; second whether the October
Proclamation had invalidated all judgement and judicial proceedings under the Japanese regime;
and third, whether the present courts of the Commonwealth may continue the judicial proceedings
pending at the time of liberation.

As regards the first question, it is stated that it is a legal tourism in political and international law that
all acts of a de facto government are good and valid, that the governments established during the

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Japanese occupation. that is, the Philippine Executive Commission and the Republic of the
Philippines, were de facto governments, and that it necessarily follows that the judicial acts and
proceedings of the courts of those governments, "which are not of a political complexion," were good
and valid, and by virtue of the principle of postliminium, remain good and valid after the liberation.

In the above reasoning we will see right away how the alleged legal truism in political and
international law, stated as a premise in a sweeping way, as an absolute rule, is immediately
qualified by the exception as to judicial acts and proceedings which are of a "political complexion."

So it is the majority itself which destroys the validity of what it maintains as a legal truism in political
and international law, by stating from the beginning of the absolute proposition that all acts and
proceedings of the legislative, executive, and judicial departments of a de facto governments are
good and valid.

It is be noted that no authority, absolutely no authority, has been cited to support the absolute and
sweeping character of the majority proposition as stated in their opinion.

No authority could be cited, because the majority itself loses faith in the validity of such absolute and
sweeping proposition, by establishing an unexplained exception as regards the judicial acts and
proceedings of a "political complexion."

Besides, it is useless to try to find in the arguments of the majority anything that may challenge the
power, the authority of a de jure government to annul the official acts of a de facto government, or
the legal and indisputable authority of the restored legitimate government to refuse to recognize the
official acts, legislative, executive and judicial, of the usurping government, once the same is ousted.

As to the second question, the majority argues that the judicial proceedings and judgments of the de
facto governments under the Japanese regime being good and valid, "it should be presumed that it
was not, and could not have been, the intention of General Douglas MacArthur to refer to judicial
processes, when he used the last word in the October Proclamation, and that it only refers to
government processes other than judicial processes or court proceedings."

The weakness and absolute ineffectiveness of the argument are self-evident.

It is maintained that when General MacArthur declared the processes of the governments under the
Japanese regime null and void, he could not refer to judicial processes, because the same are valid
and remained so under the legal truism announced by the majority to the effect that, under political
and international law, all official acts of a de facto government, legislative, executive or judicial, are
valid.

But we have seen already how the majority excepted from said legal truism the judicial processes of
"political complexion."

And now it is stated that in annulling the processes of the governments under Japanese occupation,
General MacArthur referred to "processes other than judicial processes."

That is, the legislative and executive processes.

But, did not the majority maintain that all acts and proceedings of legislative and executive
departments of a de facto governments are good and valid? Did it not maintain that they are so as a
"legal truism in political and international law?"

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Now if the reasoning of the majority to the effect that General MacArthur could not refer to judicial
processes because they are good and valid in accordance with international law, why should the
same reasoning not apply to legislative and executive processes?

Why does the majority maintain that, notwithstanding the fact that, according that said legal truism,
legislative and executive official acts of de facto governments are good and valid, General
MacArthur referred to the latter in his annulling proclamation, but not to judicial processes?

If the argument is good so as to exclude judicial processes from the effect of the October
Proclamation, we can see no logic in considering it bad with respect to legislative and executive
processes.

If the argument is bad with respect to legislative and executive processes, there is no logic in holding
that it is not good with respect to judicial processes.

Therefore, if the argument of the majority opinion is good, the inevitable conclusion is that General
MacArthur did not declare null and void any processes, at all, whether legislative processes,
executive processes, or judicial processes, and that the word "processes" used by him in the
October Proclamation is a mere surplusage or an ornamental literary appendix.

The absurdity of the conclusion unmasks the utter futility of the position of the majority, which is but
a mere legal pretense that cannot stand the least analysis or the test of logic.

A great legal luminary admonished that we must have courage to unmasks pretense if we are to
reach a peace that will abide beyond the fleeting hour.

It is admitted 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 exigencies of the military occupation demand such action," but it is doubted
whether the commanding general of the army of the restored legitimate government can exercise the
same broad legislative powers.

We beg to disagree with a theory so unreasonable and subversive.

We cannot accept that the commanding general of an army of occupation, of a rebellious army, of an
invading army, or of a usurping army, should enjoy greater legal authority during the illegal, and in
the case of the Japanese, iniquitous and bestial occupation, than the official representative of the
legitimate government, once restored in the territory wrested from the brutal invaders and
aggressors. We cannot agree with such legal travesty.

Broad and unlimited powers are granted and recognized in the commanding general of an army of
invasion, but the shadow of the vanishing alleged principle of international law is being brandished to
gag, manacle, and make completely powerless the commander of an army of liberation to wipe out
the official acts of the government for usurpation, although said acts might impair the military
operation or neutralize the public policies of the restored legitimate government.

We are not unmindful of the interest of the persons who might be adversely affected by the
annulment of the judicial processes of the governments under the Japanese regime, but we cannot
help smiling when we hear that chaos will reign or that the world will sink.

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It is possible that some criminals will be let loose unpunished, but nobody has ever been alarmed
that the President, in the exercise of his constitutional powers of pardon and amnesty, had in the
past released many criminals from imprisonment. And let us not forget that due to human limitations,
in all countries, under all governments, in peace or in war, there were, there are, and there will
always be unpunished criminals, and that situation never caused despair to any one.

We can conceive of inconveniences and hardships, but they are necessary contributions to great
and noble purposes. Untold sacrifices were always offered to attain high ideals and in behalf of
worthy causes.

We cannot refrain from feeling a paternal emotion for those who are trembling with all sincerity
because of the belief that the avoidance of judicial proceedings of the governments under the
Japanese regime "would paralyze the social life of the country." To allay such fear we must remind
them that the country that produced many great hereos and martyrs; that contributed some of
highest morals figures that humanity has ever produced in all history; which inhabited by a race
which was able to traverse in immemorial times the vast expanses of the Indian Ocean and the
Pacific with inadequate means of navigation, and to inhabit in many islands so distantly located, from
Madagascar to the eastern Pacific; which made possible the wonderful resistance of Bataan and
Corregidor, can not have a social life so frail as to be easily paralyzed by the annulment of some
judicial proceedings. The Japanese vandalisms during the last three years of nightmares and bestial
oppression, during the long period of our national slavery, and the wholesale massacres and
destructions in Manila and many other cities and municipalities and populated areas, were not able
to paralyze the social life of our people. Let us not loss faith so easily in the inherent vitality of the
social life of the people and country of Rizal and Mabini.

It is insinuated that because of the thought that the representative of the restored sovereign power
may set aside all judicial processes of the army of occupation, in the case to courts of a future
invasions, litigants will not summit their cases to courts whose judgement may afterwards be
annulled, and criminals would not be deterred from committing offenses in the expectancy that they
may escape penalty upon liberation of the country. We hope that Providence will never allow the
Philippines to fall again under the arms of an invading army, but if such misfortune will happen, let
the October Proclamation serve as a notice to the ruthless invaders that the official acts of the
government of occupation will not merit any recognition from the legitimate government, especially if
they should not conduct themselves, as exemplified by the Japanese, in accordance with the rules of
action of a civilized state.

One conclusive evidence of the untenableness of the majority position is the fact that it had to resort
to Executive Order No. 37, issued on March 10, 1945, providing "that all cases that have heretofore
been appealed to the Court of Appeals shall be transmitted to the Supreme Court for final decision."
The far-fetched theory is advanced that this provision impliedly recognizes the court processes
during the Japanese military occupation, on the false assumption that it refers to the Court of
Appeals existing during the Japanese regime. It is self-evident that the Executive Order could have
referred only to the Commonwealth Court of Appeals, which is the one declared abolished in said
order. Certainly no one will entertain the absurd idea that the President of the Philippines could have
thought of abolishing the Court of Appeals under the government during the Japanese occupation.
Said Court of Appeals disappeared with the ouster of the Japanese military administration from
which it derived its existence and powers. The Court of Appeals existing on March 10, 1945, at the
time of the issuance of Executive Order No. 37, was the Commonwealth Court of Appeals and it was
the only one that could be abolished.

Without discussing the correctness of principle stated the majority opinion quotes from Wheaton the
following: "Moreover when it is said that occupier's acts are valid and under international law should

93
not be abrogated by the subsequent conqueror, it must be remembered that on 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 stored government, but the matter can
hardly be put further than this." (Wheaton, International Law, War, 7th English edition of 1944, p.
245)

Then it says that there is no 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 the judicial of the
government established by the belligerent occupant.

It is evident that the statement just quoted is a complete diversion from the principle stated in the in
an unmistakable way by Wheaton, who says in definite terms that "it must be remembered that no
crucial instances exist to show that if his acts (the occupant's) should be reversed, any international
wrong would be committed."

It can be clearly seen that Wheaton does not make any distinction or point out any exception.

But in the majority opinion the principle is qualified, without stating any reason therefore, by limiting
the right of the restored government to annul "most of the acts of the occupier" and "processes other
than judicial."

The statement made by the respondent judge after quoting the above-mentioned principle, as stated
by Wheaton, to the effect that whether the acts of military occupant should be considered valid or
not, is a question that is up to the restored government to decide, and that there is no rule of
international law that denies to the restored government the right to exercise its discretion on the
matter, is quoted without discussion in the majority opinion.

As the statement is not disputed, wee are entitled to presume that it is concurred in and, therefore,
the qualifications made in the statement in the majority opinion seem to completely groundless.

THE DUTIES IMPOSED ON OCCUPANT ARMY ARE NOT LIMITATIONS TO THE RIGHTS OF
THE LEGITIMATE GOVERNMENT

The majority opinion is accumulating authorities to show the many duties imposed by international
law on the military occupant of an invaded country.

And from said duties it is deduced that the legitimate government, once restored in his own territory,
is bound to respect all the official acts of the government established by the usurping army, except
judicial processes political complexion.

The reasoning calls for immediate opposition. It is absolutely contrary to all principles of logic.

Between the duties imposed in the military occupant and the legal prerogatives of the legitimate
government there are no logical relationship or connection that might bind the ones with the others.

The military occupants is duty bound to protect the civil rights of the inhabitants, but why should the
legitimate government necessarily validate the measures adopted by the said occupant in the
performance of this duty, if the legitimate government believes his duty to annul them for weighty
reasons?

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The military occupant is duty bound to establish courts of justice. Why should the legitimate
government validate the acts of said courts, if it is convinced that said courts were absolutely
powerless, as was the case during the Japanese occupation, to stop the horrible abuses of the
military police, to give relief to the victims of zoning and Fort Santiago tortures, to protect the
fundamental human rights of the Filipinos — life, property, and personal freedom?

The majority opinion recognizes in the military occupant the power to annul the official acts of the
ousted and supplanted legitimate government, a privilege which is inversely denied to the last. This
preference and predilection in favor of the military occupant, that is in favor of the invader and
usurper, and against the legitimate government, is simply disconcerting, if we have to say the least.

PRESUMPTIONS AND SUPPOSITIONS AGAINST TRUTH AND FACTS

The invading military occupant is duty bound to establish and maintain courts of justice in the
invaded territory, for the protection of the inhabitants thereof. It is presumed that the restored
legitimate government will respect the acts of said courts of the army of occupation. Therefore, it is a
principle of international law that said acts are valid and should be respected by the legitimate
government. It is presumed that General MacArthur is acquainted with such principle, discovered or
revealed through presumptive operations, and it is presumed that he had not the intention of
declaring null and void the judicial processes of the government during the Japanese regime.
Therefore, his October Proclamation, declaring null and void and without effect "all processes" of
said governments, in fact, did not annul the Japanese regime judicial processes.

So run the logic of the majority.

They don't mind the that General MacArthur speaks in the October Proclamation as follows:

NOW, THEREFORE, I, Douglas MacArthur, General, United States Army, as Commander-in-Chief

of the military forces committed to the liberation of the Philippines, do hereby proclaim and declare:

xxx xxx xxx

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. (emphasis supplied.)

General MacArthur says categorically "all processes", but the majority insists on reading differently,
that, is: "NOT ALL processes." The majority presume, suppose, against the unequivocal meaning of
simple and well known words, that when General MacArthur said "all processes", in fact, he said "not
all processes", because it is necessary, by presumption, by supposition, to exclude judicial
processes.

If where General MacArthur says "all", the majority shall insist on reading "not all", it is impossible to
foresee the consequences of such so stubborn attitude, but it is possible to understand how they
reached the unacceptable possible conclusion which we cannot be avoid opposing and exposing.

Are we to adopt and follow the policy of deciding cases submitted to our consideration, by
presumption and suppositions putting aside truths and facts? Are we to place in the documents
presented to us, such as the October Proclamation, different words than what are written therein?
Are we to read "not all", where it is written "all"?

95
We are afraid to such procedure is not precisely the most appropriate to keep public confidence in
the effectiveness of the administration of justice.

That is why we must insists that in the October Proclamation should be read what General
MacArthur has written in it, that is, that, besides laws and regulations, he declared and proclaimed
null and void "ALL PROCESSES", including naturally judicial processes, of the governments under
the Japanese regime.

THE COMMONWEALTH COURTS HAVE NO JURISDICTION TO CONTINUE JAPANESE REGIME

JUDICIAL PROCESSES

Now we come to the third and last question propounded in the majority opinion.

The jurisdiction of the Commonwealth tribunals is defined, prescribed, and apportioned by legislative
act.

It is provided so in our Constitution. (Section 2, Article VIII.)

The Commonwealth courts of justice are continuations of the courts established before the
inauguration of the Commonwealth and before the Constitution took effect on November 15, 1935.
And their jurisdiction is the same as provided by existing laws at the time of inauguration of the
Commonwealth Government.

Act No. 136 of the Philippine Commission, known as the Organic Act of the courts of justice of the
Philippines, is the one that defines the jurisdiction of justice of the peace and municipal courts,
Courts of First Instance, and the Supreme Court. It is not necessary to mention here the jurisdiction
of the Court of Appeals, because the same has been abolished by Executive Order No. 37.

No provision may be found in Act. No. 136, nor in any other law of the Philippines, conferring on the
Commonwealth tribunals jurisdiction to continue the judicial processes or proceedings of tribunals
belonging to other governments, such as the governments established during the Japanese
occupation.

The jurisdiction of our justice of the peace and municipal courts is provided in section 68, chapter V,
of Act No. 136. The original and appellate jurisdiction of the Courts of First Instance is provided in
the sections 56, 57, Chapter IV, of Act No. 136. The original and appellate jurisdiction of the
Supreme Court is provided in 17 and 18, Chapter II, of the same Act. The provisions of the above-
cited do not authorize, even implicitly, any of the decisions and judgements of tribunals of the
governments, nor to continue the processes or proceedings of said tribunals.

NECESSITY OF ENABLING ACT UNDER THE LEGAL DOCTRINE PREVAILING IN THE

PHILIPPINES AND IN THE UNITED STATES

Taking aside the question as to whether the judicial processes of the government established during
the Japanese occupation should be considered valid or not, in order that said processes could be
continued and the Commonwealth tribunals could exercise proper jurisdiction to continue them,
under the well- established legal doctrine, prevailing not only in the Philippines, but also in the proper
enabling law.

Almost a half a century ago, in the instructions given by President McKinley on April 7, 1900, for the
guidance of the Philippine Commission, it was stated that, in all the forms of the govenment and

96
administrative provisions which they were authorized to prescribed, the Commission should bear in
mind that the government which they were establishing was designed not for the satisfaction of the
Americans or for the expression of their of their theoretical views, but for the happiness, peace and
prosperity of the people of the Philippines, and the measures adopted should be made to conform to
their customs, their habits, and even their prejudices, to the fullest extent consistent with the
accomplishment of the indispensable requisites of just and effective government.

Notwithstanding the policy so outlined, it was not enough for the Philippine Commission to create
and establish the courts of justice provided in Act No. 136, in order that said tribunals could take
cognizance and continue the judicial proceedings of the tribunals existing in the Philippines at the
time the American occupation.

It needed specific enabling provisions in order that the new tribunals might continue the processes
pending in the tribunals established by the Spaniards, and which continued to function until they
were substituted by the courts created by the Philippine Commission.

So it was done in regards to the transfer of the cases pending before the Spanish Audiencia to the
newly created Supreme Court, in sections 38 and 39 of Act No. 136 quoted as follows:

SEC. 38. Disposition of causes, actions, proceedings, appeals, records, papers, and so forth,
pending in the existing Supreme Court and in the "Contencioso Administravo." — All records,
books, papers, causes, actions, proceedings, and appeals logged, deposited, or pending in
the existing Audiencia or Supreme Court, or pending by appeal before the Spanish tribunal
called "Contencioso Administravo," are transferred to the Supreme Court above provided for
which, has the same power and jurisdiction over them as if they had been in the first instance
lodged, filed, or pending therein, or, in case of appeal, appealed thereto.

SEC. 39. Abolition of existing Supreme Court. — The existing Audiencia or Supreme Court is
hereby abolished, and the Supreme Court provided by this Act is substituted in place thereof.

Sections 64 and 65 of the same Act allowed the same procedure as regards the transfer of cases
and processes pending in the abolished Spanish Courts of First Instance to the tribunals of the same
name established by the Philippine Commission.

SEC. 64. Disposition of records, papers, causes, and appeals, now pending in the existing
Courts of First Instance. — All records, books, papers, actions, proceedings, and appeals
lodged, deposited, or pending in the Court of First Instance as now constituted of or any
province are transferred to the Court of First Instance of such province hereby established,
which shall have the same power and jurisdiction over them as if they had been primarily
lodged, deposited, filed, or commenced therein, or in case of appeal, appealed thereto.

SEC. 65. Abolition of existing Courts of First Instance. — The existing Courts First Instance
are hereby abolished, and the Courts of First Instance provided by this Act are substituted in
place thereof.

The same procedure has been followed by the Philippine Commission eventhough the courts of
origin of the judicial processes to be transferred and continued belonged to the same government
and sovereignty of the courts which are empowered to continue said processes.

So section 78 of Act No. 136, after the repeal of all acts conferring upon American provost courts in
the Philippines jurisdiction over civil actions, expressly provided that said civil actions shall be
transferred to the newly created tribunals.

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And it provided specifically that "the Supreme Court, Courts of the First Instance and courts of the
justice of the peace established by this Act (No. 136) are authorized to try and determine the actions
so transferred to them respectively from the provost courts, in the same manner and with the same
legal effect as though such actions had originally been commenced in the courts created" by virtue
of said Act.

MUNICIPAL COURTS UNDER ACT NO. 183

On July 30, 1901, the Philippine Commission enacted the Organic Act of the City of Manila, No. 183.

Two municipal courts for the city were created by section 40 of said Act, one for the northern side of
Pasig River and the other for the southern side.

They were courts with criminal jurisdiction or identical cases under the jurisdiction of the justices of
the peace then existing in Manila. Although both courts were of the same jurisdiction, in order that
the criminal cases belonging to the justice of the peace courts may be transferred to the municipal
courts just created, and the proceedings may be continued by the same, the Philippine Commission
considered it necessary to pas the proper enabling act.

So on August 5, 1901, it enacted Act No. 186, section 2 of which provides that all criminal cases and
proceedings pending in the justices of the peace of Manila are transferred to the municipal courts,
which are conferred the jurisdiction to continue said cases and proceedings.

THE CABANTAG CASE

On August 1, 1901, Narciso Cabantag was convicted of murder by a military commission.

(Cabantag vs. Wolfe, 6 Phil., 273.) The decision was confirmed on December 10, 1901, and his
execution by hanging was set for January 12,1902. .

On December 26, 1901, he fled, but surrendered to the authorities on July 18, 1902. The Civil
Governor on December 2, 1903, commuted the death penalty to 20 years imprisonment. The
commutation was approved by the Secretary of War, following instructions of the President.

Cabantag filed later a writ of habeas corpus on the theory that, with the abolition of the military
commission which convicted him, there was no existing tribunal which could order the execution of
the penalty of imprisonment.

The Supreme Court denied the writ, but stated that, if the petitioner had filed the writ before the
enactment of Act No. 865, the question presented to the Supreme Court would have been different.

Act No. 865, enacted on September 3, 1903, is enabling law, wherein it is provided that decisions
rendered by the provost courts and military commission shall be ordered executed by the Courts of
First Instance in accordance with the procedure outlined in said Act.

It is evident from the foregoing that this Supreme Court has accepted and confirmed the doctrine of
the necessity of an enabling act in order that our Courts of First Instance could exercise jurisdiction
to execute the decision of the abolished provost courts and military commission.

It is evident that the doctrine is applicable, with more force, to the judicial processes coming from
governments deriving their authority from a foreign enemy state.

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 THE DOCTRINE IN THE UNITED STATES

It is also evident that the Congress of the United States, by enacting the Bill of the Philippines on
July 1, 1902, confirmed also the same doctrine.

In effect, in section 9 of said Act, the Congress approved what the Philippine Commission did as to
the jurisdiction of the courts established and transfer of cases and judicial processes, as provided in
Acts Nos. 136, 186, and 865.

The same doctrine was adopted by the United States government as part of its international policy,
as could be seen in Article XII of the Treaty concluded with Spain on December 10, 1898, in Paris.

Even in 1866 the Congress of the United States followed the same doctrine.

The suit, shown by the record, was originally instituted in the District Court of the United
States for the District of Louisiana, where a decree was rendered for the libellant. From the
decree an appeal was taken to the Circuit Court, where the case was pending, when in 1861,
the proceedings of the court were interrupted by the civil war. Louisiana had become
involved in the rebellion, and the courts and officers of the United States were excluded from
its limits. In 1862, however, the National authority had been partially reestablished in the
State, though still liable to the overthrown by the vicissitudes of war. The troops of the Union
occupied New Orleans, and held military possession of the city and such other portions of
the State as had submitted to the General Government. The nature of this occupation and
possession was fully explained in the case of The Vinice.

Whilst it continued, on the 20th of October, 1862, President Lincoln, by proclamation,

instituted a Provisional Court of the State of Louisiana, with authority, among other powers,
to hear, try, and determine all causes in admiralty. Subsequently, by consent of parties, this
cause was transferred into the Provisional Court thus, constituted, and was heard, and a
decree was again rendered in favor of the libellants. Upon the restoration of civil authority in
the State, the Provincial Court, limited in duration, according to the terms of the
proclamation, by the event, ceased to exist.

On the 28th of July, 1866, Congress enacted that all suits, causes and proceedings in the
Provisional Court, proper for the jurisdiction of the Circuit Court of the United States for the
Eastern District of Louisiana, should be transferred to that court, and heard, and determined
therein; and that all judgements, orders, and decrees of the Provisional Court in causes
transferred to the Circuit Court should at once become the orders, judgements, and decrees
of that court, and might be enforced, pleaded, and proved accordingly.

It is questioned upon these facts whether the establishment by the President of a Provisional
Court was warranted by the Constitution.

xxx xxx xxx

We have no doubt that the Provisional Court of Louisiana was properly established by the
President in the exercise of this constitutional authority during war; or that Congress had
power, upon the close of the war, and the dissolution of the Provisional Court, to provide for
the transfer of cases pending in that court, and of its judgement and decrees, to the proper
courts of the United States. (U. S. Reports, Wallace, Vol. 9, The Grapeshot, 131-133.)

99
 JUDGEMENTS OF THE REBEL COURTS IN LOUISIANA WERE VALIDATED BY
CONSTITUTIONAL PROVISION

During the civil war in 1861, the prevailing rebel forces established their own government in
Louisiana.

When the rebel forces were overpowered by the Union Forces and the de facto government was
replaced by the de jure government, to give effect to the judgments and other judicial acts of the
rebel government, from January 26, 1861, up to the date of the adoption of the State Constitution, a
provision to said effect was inserted in said document.

Section 149 of the Louisiana Constitution reads as follows:

All the rights, actions, prosecutions, claims, contracts, and all laws in force at the time of the
adoption of this Constitution, and not inconsistent therewith, shall continue as if it had not
been adopted; all judgments and judicial sales, marriages, and executed contracts made in
good faith and in accordance with existing laws in this State rendered, made, or entered into,
between the 26th day of January, 1861, and the date when this constitution shall be adopted,
are hereby declared to be valid, etc. (U. S. Report, Wallace, Vol. 22, Mechanics' etc.
Bank vs. Union Bank, 281.)

EVEN AMONG SISTERS STATES OF THE UNITED STATES JUDGEMENTS ARE NOT
EXECUTORY

The member states of the United States of America belong to the same nation, to the country, and
are under the same sovereignty.

But judgements rendered in one state are not executory in other states.

To give them effect in other states it is necessary to initiate an original judicial proceedings, and
therein the defendants in the domestic suit may plead bar the sister state judgement puis darrien
continuance. (Wharton, on the Conflict of Laws, Vol. II, p. 1411.)

Under the Constitution of the United States, when a judgement of one state in the Union is
offered in a court of a sister state as the basis of a suit nil debet cannot be pleaded. The only
proper plea is nul tiel record. (Id., p. 1413.).

It is competent for the defendant, however, to an action on a judgement of a sister state, as

to an action on a foreign judgement, to set up as a defense, want of jurisdiction of the court
rendering the judgement; and, as indicating such want of jurisdiction, to aver by plea that the
defendant was not an inhabitant of the state rendering the judgement, and had not been
served with process, and did not enter his appearance; or that the attorney was without
authority to appear. (Id., pp. 1414-1415.)

The inevitable consequence is that the courts of the Commonwealth of the Philippines, in the
absence of an enabling act or of an express legislative grant, have no jurisdiction to take cognizance
and continue the judicial processes, procedures, and proceedings of the tribunals which were
created by the Japanese Military Administration and functioned under the Vargas Philippine
Executive Commission of the Laurel Republic of the Philippines, deriving their authority from the
Emperor, the absolute ruler of Japan, the invading enemy, and not from the Filipino people in whom,

100
according to the Constitution, sovereignty resides, and from whom all powers of government
emanate.

The position of Honorable Asenio P. Dizon, the respondent judge of the Court of the First Instance of
Manila in declaring himself without jurisdiction nor authority to continue the proceedings which
provoked the present controversy, being a judicial process of a Japanese sponsored government, is
absolutely correct, under the legal doctrines established by the United States and the Philippine
Government, and consistently, invariably, and without exception, followed by the same.

If we accept, for the sake of argument, the false hypothesis that the Commonwealth tribunals have
jurisdiction to continue the judicial processes left pending by the courts of the governments
established under the Japanese regime, the courts which disappeared and, automatically, ceased to
function with the ouster of the enemy, the position of the Judge Dizon, in declining to continue the
case, is still unassailable, because, for all legal purposes, it is the same as if the judicial processes in
said case were not taken at all, as inevitable result of the sweeping and absolute annulment
declared by the General MacArthur in the October Proclamation.

In said proclamation it is declared in unmistakable and definite terms that "ALL PROCESSES" of the
Japanese sponsored governments "ARE NULL AND VOID AND WITHOUT LEGAL EFFECT", and
they shall remain so until the Commonwealth, through its legislative power, decides otherwise in a
proper validating act.

The fact that the Japanese invaders, under international law, were in duty bound to establish courts
of justice during the occupation, although they made them completely powerless to safeguard the
constitutional rights of the citizens, and mere figureheads as regards the fundamental liberties of the
helpless men, women and children of our people, so much so that said courts could not offer even
the semblance of protection when the life, the liberty, the honor and dignity of our individual citizens
were wantonly trampled by any Japanese, military or civilian, does not change the situation. "ALL
PROCESSES" of said court are declared "NULL AND VOID AND WITHOUT LEGAL EFFECT" in the
October proclamation, and we do not have any other alternative but to accept the law, as said
proclamation has the full force of a law.

The fact that in the past, the legitimate governments, once restored in their own territory,
condescended in many cases to recognize and to give effect to judgments rendered by courts under
the governments set up by an invading military occupant or by a rebel army, does not elevate such
condescension to the category of a principle, when Wheaton declares that no international wrong is
done if the acts of the invader are reversed.

Many irrelevant authorities were cited to us as to the duties imposed by the international law on
military occupants, but no authority has been cited to the effect that the representative of the
restored legitimate government is a bound to recognize and accept as valid the acts and processes
of said occupants. On the contrary, Wheaton says that if the occupant's acts are reversed "no
international wrong would be committed."

Following the authority of Wheaton, undisputed by the majority, General MacArthur thought, as the
wisest course, of declaring "NULL AND VOID AND WITHOUT EFFECT," by official proclamation,
"ALL PROCESSES" under the Japanese regime, that is legislative, executive and judicial processes,
which fall under the absolute adjective "ALL".

That declaration is a law. It is a law that everybody bound to accept and respect, as all laws must be
accepted and respected. It is a law that the tribunals are duty bound to give effect and apply.

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We are not unmindful of the adverse consequences to some individuals of the annullment of all the
judicial processes under the Japanese regime, as provided in the October Proclamation, but the
tribunals are not guardians of the legislative authorities, either an army commander in chief, during
war, or a normal legislature, in peace time. The tribunals are not called upon to guide the legislative
authorities to the wisdom of the laws to be enacted. That is the legislative responsibility. Our duty
and our responsibility is to see to it that the law, once enacted, be applied and complied with.

No matter the consequences, no matter who might be adversely affected, a judge must have the firm
resolve and the courage to do his duty, as, in the present case, Judge Dizon did, without fear nor
favor. We cannot see any reason why we should not uphold him in his stand in upholding the law.

It is our official duty, national and international duty. Yes. Because this Supreme Court is sitting, not
only as a national court, but as an international court, as is correctly stated in the concurring opinion
of Justice De Joya, and we should feel the full weight of the corresponding responsibility, as the
American courts with admiralty jurisdiction and the Prize Courts of England did feel. In fact, it is in
the judiciary where, more than in any point of view is more pressing, more imperative, more
unavoidable. Justice has no country. It is of all countries. The horizon of justice cannot be limited by
the scene where our tribunals are functioning and moving. That horizon is boundless. That is why in
our constitution the bill of rights has been written not for Filipinos, but for all persons. They are rights
that belong to men, not as Filipinos, Americans, Russians, Chinese or Malayan, but as a members
of humanity. The international character of our duty to administer justice has become more specific
by the membership of our country in the United Nations. And let us not forget, as an elemental thing,
that our primary duty is to uphold and apply the law, as it is; that we must not replace the words of
the law with what we might be inclined to surmise; that what is clearly and definitely provided should
not be substituted with conjectures and suppositions; that we should not try to deduce a contrary
intention to that which is unequivocally stated in the law; that we should not hold valid what is
conclusively declared null and void.

The October Proclamation declared "ALL PROCESSES" under the Japanese regime "AND VOID
WITHOUT EFFECT", so they must stand. There is no possible way of evasion. "ALL PROCESSES",
in view of the meaning of the absolute adjective "ALL", include "JUDICIAL PROCESSES". Allegatio
contra factum non est admittenda.

CONCLUSION

For all the foregoing reasons we conclude:

1. That General MacArthur had full legal authority to issue the October Proclamation, and that no
principle of the international law is violated by said proclamation, no international wrong being
committed by the reversal by the legitimate government of the acts of the military invader.

2. That said proclamation was issued in full conformity with the official policies to which the United
States and Philippine Governments were committed, and the annulment of all the facts of the
governments under the Japanese regime, legislative, executive, and judicial, is legal, and justified by
the wrongs committed by the Japanese.

3. That when General MacArthur proclaimed and declared in the October Proclamation "That all
laws, regulations and processes" of the Japanese sponsored governments, during enemy
occupation, "are null and void and without effect", he meant exactly what he said.

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4. That where General MacArthur said "all processes" we must read and understand precisely and
exactly "all processes", and not "some processes". "All" and "some" have incompatible meanings
and are not interchangeable.

5. That the word "processes" includes judicial procedures, proceedings, processes, and cases.
Therefore, "all processes" must include "all judicial processes.".

6. That we have no right to attribute General MacArthur an intention different from what he has
plainly, clearly, unmistakably expressed in unambiguous words with familiar meaning generally
understood by the common man.

7. That the judicial proceedings here in question are included among those adversely affected by the
October Proclamation.

8. That the Commonwealth tribunals have no jurisdiction to take cognizance of nor to continue the
judicial proceedings under the Japanese regime.

9. That to exercise said jurisdiction an enabling act of the Congress is necessary.

10. That respondent Judge Dizon did not commit the error complained of in the petition, and that the
petition has no merits at all.

We refuse to follow the course of action taken by the majority in the present case. It is a course
based on a mistaken conception of the principles of international law and their interpretation and
application, and on a pinchbeck. It is a course based on misconstruction or misunderstanding of the
October Proclamation, in utter disregard of the most elemental principles of legal here meneutics. It
is a course that leads to nowhere, except to the brink of disaster, because it is following the
dangerous path of ignoring or disobeying the law.

Let us not allow ourselves to be deceived. The issue confronting us is not of passing importance. It
is an issue of awesome magnitude and transcendency. It goes to and reaches the very bottom. It is
simple. Lacking in complexities. But it may shake the very foundation of society, the cornerstone of
the state, the primary pillar of the nation. It may dry the very foundation of social life, the source of
vitalizing sap that nurtures the body politic. The issue is between the validity of one or more
Japanese regime processes and the sanctity of the law.

That is the question, reduced to its ultimate terms. it is a simple dilemma that is facing us. It is the
alpha and the omega of the whole issue. Either the processes, or the law. We have to select
between two, which to uphold. It is a dilemma that does not admit of middle terms, or of middle ways
where we can loiter with happy unconcern . We are in the cross road: which way shall we follow?
The processes and the law are placed in the opposite ends of the balance. Shall we inclined the
balance of justice to uphold the processes and defeat law, or vice versa?

We feel jittery because some judicial processes might be rescinded or annulled, but we do not
tremble with sincere alarm at the thought of putting the law under the axe, of sentencing law to be
executed by the guillotine. We feel uneasy, fancying chaos and paralyzation of social life, because
some litigants in cases during the Japanese regime will be affected in their private interests, with the
annulment of some judicial processes, but we adopt an attitude of complete nonchalance in throwing
law overboard. This baffling attitude is a judicial puzzle that nobody will understand. So it is better
that we should shift to a more understandable way, that which is conformable to the standard that
the world expects in judicial action.

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No amount of arguments and lucubration's, no amount of speculative gymnastics, no amount of
juggling of immaterial principles of international law, no amount of presumptions and suppositions,
surmises and conjectures, no amount of dexterity in juridical exegesis can divert our attention from
the real, simple, looming, hypostasis of the issue before us: Law. It is Law with all its majestic
grandeur which we are defying and intending to overthrow from the sacred pedestal where the ages
had placed her as a goddess, to be enshrined, obeyed, and venerated by men, forever. Let us not
dare to lay our profaning hands on her vestal virginity, lest the oracle should fling at us the thunder of
his prophetic anathema.

We cannot therefore vote except for the denial of the petition.

HILADO, J., dissenting:

I dissent from the opinion of the majority and, pursuant to the Constitution, proceed to state the
reason for my dissent.

The proceeding involved in the case at bar were commenced by a complaint filed by the instant
petitioner, as plaintiff, on November 18, 1944, in civil case No. 3012 of the so-called Court of First
Instance of Manila, the complaint bearing this heading and title: "The Republic of the Philippines —
In the Court of First Instance of Manila" (Annex X of Exhibit A of petition for mandamus). The farthest
that said proceedings had gone before the record was burned or destroyed during the battle for
Manila, was the filing by counsel for plaintiff therein of their opposition to a motion for dismissal filed
by opposing counsel.

It is, therefore, plain that the case had not been heard on the merits when the record was burned or
destroyed.

The respondent judge, in his order dated June 6, 1945, disposing of the petition dated May 25, 1945
filed by petitioner, as a plaintiff in said case, and of the petition filed by respondent Eusebio Valdez
Tan Keh, as defendant therein, on May 31, 19045, held: " first, that by virtue of the proclamation of
General MacArthur quoted above, all laws, regulations and processes of any other government in
the Philippines than that of the Commonwealth became null and void and without legal effect in
Manila on February 3, 1945 or, at the lates, on February 27 of the same year; second that the
proceedings and processes had in the present case having been before a court of the Republic of
the Philippines and in accordance with the laws and regulations of said Republic, the same are now
void and without legal effect; third, that this Court as one of the different courts of general jurisdiction
of the Commonwealth of the Philippines, has no authority to take cognizance of and continue said
proceedings to final judgement, until and unless the Government of the Commonwealth of the
Philippines, in the manner and form provided by law, shall have provided for the transfer of the
jurisdiction of the courts of the now defunct Republic of the Philippines, and the causes commenced
and left pending therein, to the courts created and organized by virtue of the provisions of Act No.
4007, as revived by Executive Order No. 36, or for the validation of all proceedings had in said
courts."

Petitioner prays that this Court declare that the respondent judge should not have ordered the
suspension of the proceedings in civil case No. 3012 and should continue and dispose of all the
incidents in said case till its complete termination. In my opinion, the petition should denied.

In stating the reasons for this dissent, we may divide the arguments under the following propositions:

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1. The proceedings in said civil case No. 3012 are null and void under General of the Army
MacArthur's proclamation of October 23, 1944 (41 Off. Gaz., 147, 148);

2. (a) The government styled as, first, the "Philippine Executive Commission "and later as the
Republic of the Philippines", established here by the Commander in Chief of the Imperial Japanese
Forces or by his order was not a de-facto government — the so-called Court of First Instance of
Manila was not a de facto court, and the judge who presided it was not a de facto judge; (b) the rules
of International Law regarding the establishment of a de facto Government in territory belonging to a
belligerent but occupied or controlled by an opposing belligerent are inapplicable to the governments
thus established here by Japan;

3. The courts of those governments were entirely different from our Commonwealth courts before
and after the Japanese occupation;

4. The question boils down to whether the Commonwealth Government, as now restored, is to be
bound by the acts of either or both of those Japanese-sponsored governments;

5. Even consideration of policy of practical convenience militate against petitioner's contention.

The proceedings in said civil case No. 3012 are null and void under General of the Army
MacArthur's proclamation of October 23, 1944 (41 Off. Gaz., 147, 148).

In this proclamation, after reciting certain now historic facts, among which was that the so-called
government styled as the "Republic of the Philippines" was established on October 14, 1943 "under
enemy duress, . . . based upon neither the free expression of the people's will nor the sanction of the
Government of the United States," the great Commander-in-Chief proclaimed and declared:

xxx xxx xxx

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; and

xxx xxx xxx

I do enjoin upon all loyal citizens of the Philippines full respect for and obedience to the
Constitution of the Commonwealth of the Philippines and the laws, regulations and other acts
of their duly constituted government whose seat is now firmly re-established on Philippine
soil.

The evident meaning and effect of the 3rd paragraph above quoted is, I think, that as the different
areas of the Philippines were progressively liberated, the declaration of nullity therein contained shall
attach to the laws, regulations and processes thus condemned in so far as said areas were
concerned. Mark that the proclamation did not provide that such laws, regulations and processes
shall be or are annulled, but that they are null and void. Annulment implies some degree of the
effectiveness in the act annulled previous to the annulment, but a declaration of nullity denotes that
the act is null and void ab initio — the nullity precedes the declaration. The proclamation speaks in
the present tense, not in the future. If so, the fact that the declaration of nullity as to the condemned
laws, regulations, and processes in areas not yet free from enemy occupation and control upon the

105
date of the proclamation, would attach thereto at a later date, is no argument for giving them validity
or effectiveness in the interregnum. By the very terms of the proclamation itself, that nullity had to
date back from the inception of such laws, regulations and processes; and to dispel any shadow of
doubt which may still remain, we need only consider the concluding paragraph of the proclamation
wherein the Commander in Chief of the army liberation solemnly enjoined upon all loyal citizens of
the Philippines full respect for and obedience to the Constitution of the Commonwealth of the
Philippines and the laws, regulations and other acts of their duly constituted government. This is all-
inclusive — it comprises not only the loyal citizens in the liberated areas but also those in areas still
under enemy occupation and control. It will be noticed that the complaint in said civil case No. 3012
was filed twenty-six days after the above-quoted proclamations of General of the Army MacArthur. If
the parties to said case were to consider the proceedings therein up to the date of the liberation of
Manila valid and binding, they would hardly be complying with the severe injunction to render full
respect for and obedience to our Constitution and the laws, regulations and other acts of our duly
constituted government from October 23, 1944, onwards. Indeed, to my mind, in choosing between
these two courses of action, they would be dangerously standing on the dividing line between loyalty
and disloyalty to this country and its government.

The proceeding in question, having been had before the liberation of Manila, were unquestionably
"processes" of the Japanese-sponsored government in the Philippines within the meaning of the
aforesaid proclamation of General of the Army MacArthur and, consequently, fall within the
condemnation of the proclamation. Being processes of a branch of a government which had been
established in the hostility to the Commonwealth Government, as well as the United States
Government, they could not very well be considered by the parties to be valid and binding, at least
after October 23, 1944, without said parties incurring in disobedience and contempt of the
proclamation which enjoins them to render full respect for the obedience to our Constitution and the
laws, regulations and other acts of our duly constituted government. Nine days after the inauguration
of the so-called "Republic of the Philippines," President Franklin Delano Roosevelt of the United
States declared in one of his most memorable pronouncements about the activities of the enemy in
the Philippines, as follows:

One of the fourtheenth of this month, a puppet government was set up in the Philippine
Island with Jose P. Laurel, formerly a justice of the Philippine Supreme Court, as "president."
Jorge Vargas, formerly as a member of the Commonwealth Cabinet, and Benigno Aquino,
also formerly a member of that cabinet, were closely associated with Laurel in this
movement. The first act of the new puppet regime was to sign a military alliance with Japan.
The second act was a hyphocritical appeal for American sympathy which was made in fraud
and deceit, and was designed to confuse and mislead the Filipino people.

I wish to make it clear that neither the former collaborationist "Philippine Executive
Commission" nor the present "Philippine Republic " has the recognition or sympathy of the
Government of the United States. . . .

Our symphaty goes out to those who remain loyal to the United States and the
Commonwealth — that great majority of the Filipino people who have not been deceived by
the promises of the enemy.

October 23, 1943.

FRANKLIN DELANO ROOSEVELT

President of the United States

(Form U.S. Naval War College International Law Documents, 1943, pp. 93, 94.).

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It is a fact of contemporary history that while President Manuel L. Quezon of the Philippines was in
Washington, D.C., with his exiled government, he also repeatedly condemned both the "Philippine
Executive Commission" and the "Philippine Republic," as they had been established by or under
orders of the Commander in Chief of the Imperial Japanese Forces. With these two heads of the
Governments of the United States and the Commonwealth of the Philippines condemning the
"puppet regime" from its very inception, it is beyond my comprehension to see how the proceedings
in question could be considered valid and binding without adopting an attitude incompatible with
theirs. As President Roosevelt said in his above quoted message, "Our symphaty goes out to those
remain loyal to the United States and the Commonwealth — that great majority of the Filipino people
who have not been deceived by the promises of the enemy.

The most that I can concede is that while the Japanese Army of occupation was in control in the
Islands and their paramount military strength gave those of our people who were within their reach
no other alternative, these had to obey their orders and decrees, but the only reason for such
obedience would be that paramount military strength and not any intrinsic legal validity in the
enemy's orders and decrees. And once that paramount military strength disappeared, the reason for
the obedience vanished, and obedience should likewise cease.

As was stated by the Supreme Court of the United States in the case of Williams vs. Bruffy (96 U.S.,
176; 24 Law. ed., 719), "In the face of an overwhelming force, obedience in such matters may often
be a necessity and, in the interest of order, a duty. No concession is thus made to the rightfulness of
the authority exercised." (Emphasis ours.) The court there refers to its own former decision in
Thorington vs. Smith, and makes it clear that the doctrine in the Thorington case, so far as the
effects of the acts of the provisional government maintained by the British in Casetine, from
September, 1814 to the Treaty of Peace in 1815, and the consideration of Tampico as United States
territory, were concerned, was limited to the period during which the British, in the first case, retained
possession of Castine, and the United States, in the second, retained possession of Tampico. In
referring to the Confederate Government during the Civil War, as mentioned in the Thorington case,
the court again says in effect that the actual supremacy of the Confederate Government over a
portion of the territory of the Union was the only reason for holding that its inhabitants could not but
obey its authority. But the court was careful to limit this to the time when that actual supremacy
existed, when it said: . . . individual resistance to its authority then would have been futile and,
therefore, unjustifiable." (Emphasis ours.)

Because of its pertinence, we beg leave to quote the following paragraph from that leading decision:

There is nothing in the language used in Thorington vs. Smith (supra), which conflicts with
these views. In that case, the Confederate Government is characterized as one of
paramount force, and classed among the governments of which the one maintained by great
Britain in Castine, from September 1814, to the Treaty of Peace in 1815, and the one
maintained by the United States in Tampico, during our War with Mexico, are examples.
Whilst the British retained possession of Castine, the inhabitants were held to be subject to
such laws as the British Government chose to recognize and impose. Whilst the United
States retained possession of Tampico, it was held that it must regarded and respected as
their territory. The Confederate Government, the court observed, differed from these
temporary governments in the circumstance that its authority did not justifying acts of hostility
to the United States, "Made obedience to its authority in civil and local matters not only a
necessity, but a duty." All that was meant by this language was, that as the actual
supremancy of the Confederate Government existed over certain territory, individual
resistance to its authority then would have been futile and, therefore, unjustifiable. In the face
of an overwhelming force, obedience in such matters may often be a necessity and, in the
interest of order, a duty. No concession is thus made to the rightfulness of the authority
exercised. (Williams vs. Bruffy, 24 Law ed., 719; emphasis ours.)

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The majority opinion, in considering valid the proceedings in question, invokes the rule that when a
belligerent army occupies a territory belonging to the enemy, the former through its Commander in
Chief, has the power to establish thereon what the decisions and treaties have variously
denominated provisional or military government, and the majority holds that the Japanese-
sponsored government in the Philippines was such a government. Without prejudice to later
discussing the effects which the renunciation of war as an instrument of national policy contained in
our Commonwealth Constitution, as well as in the Briand-Kellog Pact, must have produced in this
rule in so far as the Philippines is concerned, let us set forth some considerations apropos of this
conclusion of the majority. If the power to establish here such a provisional government is
recognized in the Commander in Chief of the invasion army, why should we not recognize at least
an equal power in the Commander in Chief of the liberation army to overthrow that government will
all of its acts, at least of those of an executory nature upon the time of liberation? Considering the
theory maintained by the majority, it would seem that they would recognize in the Japanese
Commander in Chief the power to overthrow the Commonwealth Government, and all of its acts and
institutions if he had choosen to. Why should at least an equal power be denied the Commander in
Chief of the United States Army to overthrow the substitute government thus erected by the enemy
with all of its acts and institutions which are still not beyond retrieve? Hereafter we shall have
occasion to discuss the aspects of this question from the point of view of policy or the practical
convenience of the inhabitants. If the Japanese Commander in Chief represented sovereignty of
Japan, the American Commander in Chief represented the sovereignty of the United States, as well
as the Government of the Commonwealth. If Japan had won this war, her paramount military
supremacy would have continued to be exerted upon the Filipino people, and out of sheer physical
compulsion this country would have had to bow to the continuance of the puppet regime that she
had set up here for an indefinite time. In such a case, we admit that, not because the acts of that
government would then have intrinsically been legal and valid, but simply because of the paramount
military force to which our people would then have continued to be subjected, they would have had
to recognize as binding and obligatory the acts of the different departments of that government. But
fortunately for the Filipinos and for the entire civilized world, Japan was defeated. And I now ask:
Now that Japan has been defeated, why should the Filipinos be still bound to respect or recognize
validity in the acts of the Japanese-sponsored government which has been so severely condemned
by both the heads of the United States and our Commonwealth Government throughout the duration
of the war? If we were to draw a parallel between that government and that which was established
by the Confederate States during the American Civil War, we will find that both met with ultimate
failure. And, in my opinion, the conclusion to be drawn should be the same in both cases.

As held by the United States Supreme Court in Williams vs. Bruffy (supra), referring to the
Confederate Government, its failure carried with it the dissipation of its pretentions and the breaking
down in pieces of the whole fabric of its government. The Court said among other things:

The immense power exercised by the government of the Confederate States for nearly four
years, the territory over which it extended, the vast resources it wielded, and the millions who
acknowledged its authority, present an imposing spectacle well fitted to mislead the mind in
considering the legal character of that organization. It claimed to represent an independent
nation and to posses sovereign powers; as such to displace to jurisdiction and authority of
the United States from nearly half of their territory and, instead of their laws, to substitute and
enforce those of its own enactment. Its pretentions being resisted, they were submitted to the
arbitrament of war. In that contest the Confederacy failed; and in its failure its pretentions
were dissipated, its armies scattered, and the whole fabric of its government broken in
pieces. (24 Law, ed., 719; emphasis ours.)

By analogy, if the Japanese invasion and occupation of the Philippines had been lawful — which,
however, is not the case — and if Japan had succeeded in permanently maintaining the government
that she established in the Philippines, which would have been the case had victory been hers, there

108
would be more reason for holding the acts of that government valid, but because Japan has lost the
war and, therefore, failed in giving permanence to that government, the contrary conclusion should
legitimately follow.

The validity of legislation exercised by either contestant "depends not upon the existence of
hostilities but upon the ultimate success of the party which it is adopted" (emphasis ours). And,
referring to the overthrow of the of the Confederacy, the Court, said, "when its military forces were
overthrown, it utterly perished, and with it all its enactments" (emphasis ours)

The majority cite on page 9-10 of their opinion a passage from the same case of
Williams vs. Bruffy, supra, which is a mere obiter dictum. The majority opinion says that in this
passage the Court was "discussing the validity of the acts of the Confederate States." In the first
place, an examination of the decision will reveal that the controversy dealt with an act of
the Confederate Government, not of the Confederate States individually; and in the second place,
the quoted passage refers to something which was not in issue in the case, namely, the acts of the
individual States composing the Confederacy. But even this passage clearly places the case at bar
apart from the Court's pronouncement therein. The quoted passage commences by stating that "The
same general form of government the same general laws for the administration of justice and the
protection of private rights, which has existed in the States prior to the rebellion, remanded during
(its) continuance and afterwards. "In the case at bar, the same general form of the Commonwealth
Government did not continue under the Japanese, for the simple reason that one of the first acts of
the invaders was to overthrow the Commonwealth Constitution and, therefore, the constitutional
government which existed thereunder, as an effect of the following acts and decrees of the
Commander in Chief of the Imperial Japanese Forces:

1. Order No. 3, dated February 20, 1942 of the Commander in Chief of the Imperial Japanese
Forces to the Chairman of the Philippine Executive Commission directed that, in the exercise of
legislative, executive and judicial powers in the Philippines, the "activities" of the "administrative
organs and judicial courts in the Philippines shall be based upon the existing status, order,
ordinances and the Commonwealth Constitution (1 Official Journal of the Japanese Military
Administration, page 34). Under the frame of government existing in this Commonwealth upon the
date of the Japanese invasion, the Constitution was the very fountain-head of the validity and effects
of all the "status, orders, and ordinances" mentioned by the Japanese Commander in Chief, and in
overthrowing the Constitution he, in effect, overthrew all of them.

2. Instruction No. 6 of the Japanese Military Administration (Vol. 1, usages 36 et seq., Official
Gazette, edited at the Office of the Executive Commission) gave the "Detailed Instruction Based on
Guiding Principle of the Administration," and among other things required "The entire personnel shall
be required to pledge their loyalty to the Imperial Japanese Forces. . . ." (This, of course, was
repugnant to the frame of government existing here under the Commonwealth Constitution upon the
date of invasion.)

3. Proclamation dated January 3, 19452 of the Japanese Commander in Chief provided in

paragraph 3 that "The Authorities and the People of the Commonwealth should sever their relations
with the U.S. o . . ." (This is, likewise, repugnant to the Commonwealth Constitution and the to the
Government of that Commonwealth Constitution and to the Government of that Commonwealth
which was expressly made subject to the supreme sovereignty of the United States until complete
independence is granted, not by the mere will of the United States, but by virtue of an agreement
between that Government and ours, under the Tydings-McDuffie Act.)

The individual States of the Confederate and their governments existed prior to the Civil War and
had received the sanction and recognition of the Union Government, for which the Federal Supreme

109
Court was speaking in the Williams-Bruffy case; while the Japanese-sponsored governments of the
"Philippine Executive Commission" and the Republic of the Philippines" neither existed here before
the war nor had received the recognition or sanction of either the United States or the
Commonwealth Government — nay, they had received the most vigorous condemnation of both.

The Court further says in Williams vs. Bruffy (supra):

No case has been cited in argument, and we think unsuccesfully attempting to establish a
separate revolutionary government have been sustained as a matter of legal right. As justly
observed by the late Chief Justice in the case of Shortridge vs. Macon, I Abb. U.S., 58,
decided at the circuit, and, in all material respects like the one at bar, "Those who engage in
rebellion must consider the consequences. If they succeed, rebellion becomes revolution,
and the new government will justify is founders. If they fail, all their acts hostile to the rightful
government are violations of law, and originate no rights which can be recognized by the
courts of the nation whose authority and existence have been alike assailed. S.C., Chase,
Dec., 136. (Williams vs. Bruffy, 96 U.S., 176; 24 Law. ed., 716, 718.) (Emphasis ours.)

I am of opinion that the principles thus enunciated for the case of an unsuccessful rebellion should
be applied with greater force to the case of a belligerent who loss the war. And since the founding of
the Japanese-sponsored government in the Philippines was designed to supplant and did actually
supplant the rightful government and since all its acts could not but a hostile to the latter (however
blameless the officials who acted under enemy duress might be), and since Japan failed, all said
acts, particularly those of the Japanese-sponsored court in said civil case No. 3012, "are violations
of law, and originate no rights which can be recognized by the courts of the nation whose authority
and existence have been alike assailed", quoting the language of the court in Shortridge vs. Macon,
cited by Mr. Justice Field in Williams vs. Bruffy, supra (24 Law. ed., 718).

II

(a) The government styled as, first, the "Philippine Executive Commission" and later as the
Republic of the Philippines", established here by the Commander in Chief of the Imperial
Japanese Forces or by the his order was not a de facto government--the so-called Court of
First Instance of Manila was not a de facto court and the who presided it was not a de
facto judge;

(b) The rules of International Law regarding the establishment of a de facto government in
territory belonging to a belligerent but occupied or controlled by an opposing belligerent are
inapplicable to the governments thus established here by Japan.

Under the doctrine of Williams vs. Bruffy, supra, and the pertinent cases therein cited, the short-lived
provisional government thus established by the Japanese in the Philippines should be classified, at
best, as a government of paramount force. But this is not all. The Constitution of this Commonwealth
which has been expressly approved by the United States Government, in Article II, section 3, under
the heading "Declaration of Principles", renounces war as an instrument of national policy. This
renunciation of war as an instruments of national policy follows an equal renunciation in the Briand-
Kellog Pact. The rules of International Law , cited in support of the power or right of a belligerent
army of occupation to set up a provisional government on occupied enemy territory, were evolved
prior to the first World War, but the horrors and devastations of that war convinced, at least the
governments of the United States and France, that they should thereafter renounce war as an
instrument of national policy, and they consequently subscribed the Briand-Kellog Pact. Those
horrors and devastations were increased a hundred fold, if not more, in this second World War, but
even before this war occurred, our own people, through our Constitutional delegates, who framed

110
the Commonwealth Constitution also adopted the same doctrine, and embodied an express
renunciation of war as an instrument of national policy in the instrument that they drafted. It is true
that in section 3, Article II, above-cited, our Constitution adopts the generally accepted principles of
International Law as a part of the law of the Nation. But, of course, this adoption is exclusive of those
principles of International Law which might involve recognition of war as an instrument of national
policy. It is plain that on the side of the Allies, the present war is purely defensive. When Japan
started said war, treacherously and without previous declaration, and attacked Pearl Harbor and the
Philippines on those two fateful days of December 7 and 8, 1941, she employed war as an
instrument of the national policy. Under the Briand-Kellog Pact and our Commonwealth Constitution,
the United States and the Commonwealth Government could not possibly have recognized in Japan
any right, as against them, to employ that war as an instrument of her national policy, and,
consequently, they could not have recognized in Japan power to set up in the Philippines the puppet
government that she later set up, because such power would be a mere incident or consequence of
the war itself. The authorities agree that such a power, under the cited rules, is said to a right derived
from war. (67 C.J., p. 421, sec. 171.) There can be no question that the United States and the
Commonwealth Governments were free to refuse to be bound by those rules when they made their
respective renunciations above referred to. Indeed, all the United Nations have exercised this free
right in their Charter recently signed at San Francisco.

As necessary consequence of this, those rules of International Law were no longer applicable to the
Philippines and to the United States at the time of the Japanese invasion as a corollary, it follows
that we have no legal foundation on which to base the proposition that the acts of that Japanese-
sponsored government in the Philippines were valid and binding. Moreover, I am of opinion, that
although at the time of the Japanese invasion and up to the present, the United States retains over
the Philippines, a certain measure of sovereignty, it is only for certain specified purposes
enumerated in the Tydings-McDufie Act of the Commonwealth Constitution. (Ordinance appended to
the Constitution.) And our territory was at the time of the Japanese invasion not a territory of the
United States, within the meaning of the laws of war governing war-like operations on enemy
territory. Our territory is significantly called "The National Territory" in Article I of our Constitution and
this bears the stamps of express approval of the United States Government. The Philippines has
been recognized and admitted as a member of the United Nations. We, therefore, had our own
national and territorial identity previous to that invasion. Our nation was not at war with the Filipinos.
And line with this, the Japanese army, in time, released Filipino war prisoners captured in Bataan. Lt.
Gen. Maeda, Chief of Staff, Imperial Japanese Forces, in his speech of January 2, 1942, said:

. . . we had not the slighest intensions to make your people our enemy; rather we considered
them as our friends who will join us has hand-in-hand in the establishment of an orderly
Greater East Asia. . . ., (Official Gazette, edited at the Office of the Executive Commission,
Vol. I, p. 55.)

If the Philippines was a neutral territory when invaded by the Japanese, the following principles from
Lawrence, International Law (7th ed.), p. 603, are pertinent:

The Duties of Belligerent States Towards Neutral States. — . . . To refrain from carrying on
hostilities within neutral territory. — We have already seen that, though this obligation was
recognized in theory during the infancy of International law, it was often very imperfectly
observed in practice. But in modern times it has been strickly enforced, and any State which
knowingly ordered warlike operations to be carried on in neutral territory . . . would bring
down upon itself the reprobation of civilized mankind. Hostilities may be carried on in the
territory of either belligerent, on the high seas, and in territory belonging to no one. Neutral
land and neutral territorial waters are sacred. No acts of warfare may lawfully take place
within them. . . . (Emphasis ours.)

111
In all the cases and authorities supporting the power or right to set up a provisional government, the
belligerent had the right to invade or occupy the territory in the first instance. Such was not the case
with the Philippines. President Roosevelt, in his message to the Filipino people, soon after the
landing of American Forces in Leyte, on October 20, 1944, characterized Japan's invasion and
occupation of the Philippines as "the barbarous, unprovoked and treacherous attack upon the
Philippines," and he announced the American people's "firm determination to punish the guilty." (41
Off. Gaz., 149.) (Emphasis ours.) The illustrious leader of the United Nations could not have in more
unmistakable terms the utter illegality of that invasion and occupation. If the establishment of a
provinsional government in occupied territory by a belligerent is "a mere application or extension of
the force by which the invasion or occupation was effected" (67 C.J., p. 421, sec 171), the illegality
of the invasion, would necessarily permeate the government, which was its mere application or
extention.

The fact that shortly before December 8, 1941, the date of the "barbarous, unprovoked and
treacherous attack," the meager and almost untrained forces of the Philippine Army had been
inducted into the American Army, did not change the neutral status of the Philippines. That military
measure had been adopted for purely defensive purposes. Nothing could be farther from the minds
of the government and military leaders of the United States and the Philippines in adopting it than to
embark upon any aggressive or warlike enterprise against any other nation. It is an old and honored
rule dating as far back as the 18th century that even solemn promises of assistance made before the
war by a neutral to a nation which later becomes a belligerent, would not change the status of the
neutral even if such promises were carried out, so long as they were made for purely defensive
purposes. In the words of Vattel "when a sovereign furnishes the succor due in virtue of a former
defensive alliance, he does not associate himself in the war. Therefore he may fulfill his
engagements and yet preserve an exact neutrality." (Lawrence, Principles of International Law [7th
ed.], pp. 585, 586.)

If the Filipinos had, from contemptible cowardice and fear, allowed their shores to be invaded, and
their territory occupied by the Japanese without resistance, such invasion occupation would
undoubtedly have been considered in violation of International Law. Should the Filipinos be
punished for having had the patriotism, bravery, and heroism to fight in defense of the sacredness of
their land, the sanctity of their homes, and the honor and dignity of their government by giving
validity, in whatever limited measure, to the lawless acts of the ruthless enemy who thus overran
their country, and robbed them of the tranquility and happiness of their daily lives? And yet, to my
mind, to give any measure of validity or binding effect to the proceedings of the Japanese-sponsored
Court of First Instance of Manila, involved herein, would be to give that much validity or effect to the
acts of those same invaders. To equalize the consequences of a lawful and a wrongful invasion of
occupation, would be to equalize right and wrong, uphold the creed that might makes right, and
adopt "the law of the jungle."

If said Japanese-sponsored government was not a de facto government, it would seem clearly to
follow that its "Court of First Instance of Manila" was not a de facto court. But it should additionally be
stated that for it be a de facto court, its judge had to be a de facto judge, which he could not be, as
presently demonstrated.

As said by President Osmeña, in replying to the speech of General of the Army MacArthur when the
latter turned over to him the full powers and responsibilities of the Commonwealth Government, on
February 27, 1945:

xxx xxx xxx

112
 The time has come when the world should know that when our forces surrendered in Bataan
and Corregidor, resistance to the enemy was taken up by the people itself — resistance
which was inarticulate and disorganized in its inception but which grew from the day to day
and from island until it broke out into an open warfare against the enemy.

The fight against the enemy was truly a people's war because it counted with the
wholehearted support of the masses. From the humble peasant to the barrio school teacher,
from the volunteer guard to the women's auxilliary service units, from the loyal local official to
the barrio folk — each and every one of those contributed his share in the great crusade for
liberation.

The guerrillas knew that without the support of the civilian population, they could not survive.
Whole town and villages dared enemy reprisal to oppose the hated invader openly or give
assistance to the underground movement. . . . (41 Off. Gaz., 88, 89.)

Under these facts, taken together with the General of the Army MacArthur's accurate statement that
the "Republic of the Philippines" had been established under enemy duress, it must be presumed —
to say the least — that the judge who presided over the proceedings in question during the
Japanese occupation, firstly, accepted his appointment under duress; and secondly, acted by virtue
of that appointment under the same duress. In such circumstances he could not have acted in
the bona fide belief that the new "courts" created by or under the orders of the Japanese Military
Commander in chief had been legally created--among them the "Court of first Instance of Manila," —
that the Chairman of the "Philippine Executive Commission" or the President of the "Republic of the
Philippines", whoever appointed him, and conferred upon him a valid title to his office and a
legitimate jurisdiction to act as such judge. Good faith is essential for the existence of a de
facto judge (Tayko vs. Capistrano, 53 Phil., 866, 872). The very idea of enemy duress would
necessarily imply that but for the duress exerted upon him by the enemy he would have refused to
accept the appointment and to act thereunder. And why? Because he must be presumed to know
that the office to which he was thus appointed had been created by the enemy in open defiance of
the Commonwealth Constitution and the laws and regulation promulgated by our Commonwealth
Government, and that his acceptance of said office and his acting therein, if willfully done, would
have been no less than an open hostility to the very sovereignty of the United Sates and to the
Commonwealth Government, and a renunciation of his allegiance to both. There is no middle ground
here. Either the judge acted purely under duress, in which case his acts would be null and void; or
maliciously in defiance of said governments, in which case his acts would be null and void for more
serious reasons.

The courts created here by the Japanese government had to look for the source of their supposed
authority to the orders of the Japanese Military Commander in chief and the so-called Constitution of
the "Republic of the Philippines," which had been adopted in a manner which would shock the
conscience of democratic peoples, and which was designed to supplant the Constitution which had
been duly adopted by the Filipino people in a Constitutional Convention of their duly elected
Constitutional Delegates. And it was decreed that the Commander in chief of the Imperial Japanese
Forces "shall exercise jurisdiction over judicial courts." (Vol. 1, p. 7, Official Journal of the Japanese
Military Administration, cited on pp. 2, 3, of the order of the respondent judge complained of and
marked Exhibit H of the petition for mandamus.) How can our present courts legitimately recognize
any efficacy in the proceedings of such an exotic judicial system, wherein the Commander in Chief
of the Imperial Japanese Forces possessed the highest judicial jurisdiction?

III

113
 The courts of those governments were entirely different from our Commonwealth courts
before and after the Japanese occupation.

Executive Order No. 36 of the President of the Philippines, dated March 10, 1945, in its very first
paragraph, states the prime concern of the government "to re-establish the courts as fast as
provinces are liberated from the Japanese occupation." If the courts under the Japanese-sponsored
government of the "Republic of the Philippines" were the same Commonwealth courts that existed
here under the Constitution at the time of the Japanese invasion, President Osmeña would not be
speaking of re-establishing those courts in his aforesaid Executive Order. For soothe, how could
those courts under the "Republic of the Philippines" be the courts of the Commonwealth of the
Philippines when they were not functioning under the Constitution of the Commonwealth and the
laws enacted in pursuance of said Constitution? The jurisdiction of the Commonwealth courts was
defined and conferred under the Commonwealth Constitution and the pertinent legislation enacted
thereunder, that of the Japanese-sponsored courts was defined and conferred by the orders and
decrees of the Japanese Commander in Chief, and, perhaps, the decrees of the "Philippine
Executive Commission" and the laws of the so-called Legislature under the Republic, which was not
composed of the elected representatives of the people. The Justices and Judges of the
Commonwealth courts had to be appointed by the President of the Commonwealth with confirmation
by the Commission on Appointments, pursuant to the Commonwealth Constitution. The Chief
Justice of the Supreme Court, under the "Philippine Executive Commission" was appointed by the
Commander in Chief of the Imperial Japanese Forces, and the Associate Justices of the Supreme
Court, the Presiding Justice and Associate Justices of the Court of Appeals, the Judges of first
Instance and of all inferior courts were appointed by the Chairman of the Executive Commission, at
first, and later, by the President of the Republic, of course, without confirmation by the Commission
on Appointments under the Commonwealth Constitution. The Chief Justice and Associate Justices
of the Supreme Court, the President and Associate Justices of the Court of Appeals, and the Judges
of First Instance and of all inferior courts in the Commonwealth judicial system, had to swear to
support and defend the Commonwealth Constitution, while this was impossible under the Japanese-
sponsored government. In the Commonwealth judicial system, if a Justice or Judge should die or
incapacitated to continue in the discharge of his official duties, his successor was appointed by the
Commonwealth President with confirmation by the Commission on Appointments, and said
successor had to swear to support and defend the Commonwealth Constitution; in the exotic judicial
system implanted here by the Japanese, if a Justice or Judge should die or incapacitated, his
successor would be appointed by the Japanese Commander in Chief, if the dead or incapacitated
incumbent should be the Chief Justice of the Supreme Court, or otherwise, by the Chairman of the
"Executive Commission" or the President of the "Republic", of course without confirmation by the
Commission on Appointments of the Commonwealth Congress, and, of course, without the
successor swearing to support and defend the Commonwealth Constitution.

If, as we believe having conclusively shown, the Japanese-sponsored courts were not the same
Commonwealth courts, the conclusion is unavoidable that any jurisdiction possessed by the former
and any cases left pending therein, were not and could not be automatically transfered to the
Commonwealth courts which we re-established under Executive Order No. 36. For the purpose, a
special legislation was necessary.

Executive Order No. 37, in my humble opinion, does not, as held by the majority, imply that the
President recognized as valid the proceedings in all cases appealed to the Court of Appeals. Section
2 of that order simply provides that all cases which have been duly appealed to the Court of Appeals
shall be transmitted to the Supreme Court for final decision. The adverb "duly" would indicate that
the President foresaw the possibility of appeals not having been duly taken. All cases appealed to
the Court of Appeals before the war and the otherwise duly appealed, would come under the phrase
"duly appealed" in this section of the Executive Order. But considering the determined and firm
attitude of the Commonwealth Government towards those Japanese-sponsored governments since

114
the beginning, it would seem inconceivable that the President Osmeña, in section 2 of Executive
Order No. 37, intended to include therein appeals taken to the Japanese-sponsored Court of
Appeals, or from the Japanese-sponsored inferior courts. It should be remembered that in the
Executive Order immediately preceeding and issued on the same date, the President speaks of re-
establishing the courts as fast as provinces were liberated from the Japanese occupation.

IV

The question boils down to whether the Commonwealth Government, as now restored, is to
be bound by the acts of either or both of those Japanese-sponsored governments.

In the last analysis, in deciding the question of validity or nullity of the proceedings involved herein,
we are confronted with the necessity to decide whether the Court of first Instance of Manila and this
Supreme Court, as re-established under the Commonwealth Constitution, and the entire
Commonwealth Government, are to be bound by the acts of the said Japanese-sponsored court and
government. To propound this question is, to my mind, to answer it most decidedly in the negative,
not only upon the ground of the legal principles but also for the reasons of national dignity and
international decency. To answer the question in the affirmative would be nothing short for legalizing
the Japanese invasion and occupation of the Philippines. Indeed, it would be virtual submission to
the dictation of an invader our people's just hatred of whom gave rise to the epic Philippine
resistance movement, which has won the admiration of the entire civilized world.

Even considerations of policy or practical convenience militate against petitioner's

contention.

In this connection, the respondent judge, in his order of June 6, 1945, complained of, has the
following to say:

It is contended, however, that the judicial system implanted by the Philippine Executive
Commission and the Republic was the same as that of the Commonwealth prior to Japanese
occupation; that the laws administered and enforced by said courts during the existence of
said regime were the same laws on the statute books of Commonwealth before Japanese
occupation, and that even the judges who presided them were, in many instances, the same
persons who held the position prior to the Japanese occupation. All this may be true, but
other facts are just as stubborn and pitiless. One of them is that said courts were of 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. Case No. 16,146), as they became later on the laws and institution of the Philippine
Executive Commission and the Republic of the Philippines. No amount of argument or legal
fiction can obliterate this fact.

Besides, I am of the opinion that the validity of the acts of the courts in the "judicial system implanted
by the Philippine Executive Commission and the Republic "would not depend upon the laws that
they "administered and enforced", but upon the authority by virtue of which they acted. If the
members of this Court were to decide the instant case in strict accordance with the Constitution and
the laws of the Commonwealth but not by the authority that they possess in their official capacity as
the Supreme Court of the Philippines, but merely as lawyers, their decision would surely be null and
void. And yet, I am firmly of opinion that whoever was the "judge" of the Japanese sponsored Court
of First Instance of Manila who presided over the said court when the proceedings and processes in

115
the dispute were had, in acting by virtue of the supposed authority which he was supposed to have
received from that government, did so with no more legal power than if he had acted as a mere
lawyer applying the same laws to the case. If duplication of work or effort, or even if confussion,
should be alleged to possibly arise from a declaration of nullity or judicial proceedings had before
those Japanese-sponsored courts, it should suffice to answer that the party so complaining in
voluntarily resorting to such courts should be prepared to assume the consequences of his voluntary
act. On the other hand, his convenience should not be allowed to visit upon the majority of the
inhabitants of this country, the dire consequences of a sweeping and wholesale validation of judicial
proceedings in those courts. Let us set forth a few considerations apropos of this assertion. It is a
fact of general knowledge that during the Japanese occupation of the Philippines, the overwhelming
majority of our people and other resident inhabitants were literally afraid to go any place where there
were Japanese sentries, soldiers or even civilians, and that these sentries were posted at the
entrance into cities and towns and at government offices; that the feared Japanese "M. P.'s" or
Kempeitai's" were a constant terror to them; and lastly, that the greater number who lived or had
evacuated to places for from the Japanese, were found precisely in the cities and towns where the
courts were located; and as a consequence, the great majority of the people were very strongly
adverse to traveling any considerable distance from their homes and were, one might say, in
constant hiding. Add to these circumstances, the fact of the practical absence of transportation
facilities and the no less important fact of the economic structure having been so dislocated as to
have impoverished the many in exchange for the enrichment of the few — and we shall have a fair
picture of the practical difficulties which the ordinary litigant would in those days have encountered in
defending his rights against anyone of the favored few who would bring him to court. It should be
easy to realize how hard it was for instances, to procure the attendance of witnesses, principally
because of the fact that most of them were in hiding or, at least, afraid to enter the cities and towns,
and also because of then generally difficult and abnormal conditions prevailing. Under such
conditions, cases or denial of a party's day in court expected. Such denial might arise from many a
cause. It might be party's fear to appear before the court because in doing so, he would have had to
get near the feared Japanese. It might be because he did not recognize any legal authority in that
court, or it might be his down-right repugnance of the hated enemy. And I dare say that among such
people would be found more than seventeen million Filipinos. These are but a few of countless
cause. So that if some form of validation of such judicial proceedings were to be attempted, all
necessary safeguards should be provided to avoid that in any particular case the validation should
violate any litigant's constitutional right to his day in court, within the full meaning of the phrase, or
any other constitutional or statutory right of his. More people, I am afraid, would be prejudiced than
would be benefited by a wholesale validation of said proceedings.

Much concern has been shown for the possible confusion which might result from a decision
declaring null and void the acts processes of the Japanese-sponsored governments in the
Philippines. I think, this aspect of the question has been unduly stressed. The situation is not without
remedy, but the remedy lies with the legislature and not with the courts. As the courts cannot create
a new or special jurisdiction for themselves, which is a legislative function, and as the situation
demands such new or special jurisdiction, let the legislature act in the premises. For instance, the
Congress may enact a law conferring a special jurisdiction upon the courts of its selection, whereby
said courts may, after hearing all the parties interested, and taking all the necessary safeguards, so
that, a party's day in court or other constitutional or statutory right under the Commonwealth
Government should not be prejudiced by any of said acts, processes or proceedings, particullarly,
those in Japanese-sponsored courts, and subject to such other conditions as the special law may
provide, validate the corresponding acts, processes or proceedings. This, to my mind, would be
more conducive to a maximum of benefit and a minimum of prejudice to the inhabitants of this
country, rather than the procedure favored by the majority.

Finally, let us not equalize the conditions then prevailing in Manila to that prevailing in the provinces,
where the greater number of the people where then living outside the towns, in the farms and the

116
hills. These people constitute the great majority of the eighteen million Filipinos. To them the
semblance of an administration of justice which Japanese allowed, was practically unknown. But
they constituted the majority of loyal citizens to whom President Roosevelt's message of October 23,
1943 refers. They — the majority of our people — had an unshaken faith in the arrival of American
aid here and the final triumph of the Allied cause. They were willing to wait for the restoration of their
rightful government, with its courts and other institutions, for the settlement of their differences. May
in their common hardship and sufferings under yoke of foreign oppression, they had not much time
to think of such differences, if they did not utterly forget them. Their undoubted hatred of the invader
was enough to keep them away from the judicial system that said invader allowed to have. Those
who voluntarily went to the courts in those tragic days belong to the small minority.

As to the public order — why! any public order which then existed was not due to the courts or other
departments of the puppet government. It was maintained at the point of the bayonet by the
Japanese army, and in their own unique fashion.

117
G.R. No. L-4254 September 26, 1951

BORIS MEJOFF, petitioner,

vs.
THE DIRECTOR OF PRISONS, respondent.

Ambrosio T. Dollete for petitioner.

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

TUASON, J.:

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

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

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

118
Mr. Justice Paras, now Chief Justice, Mr. Justice Feria, Mr. Justice Perfecto, and the writer of this
decision dissented. Mr. Justice Feria and Mr. Justice Perfecto voted for outright discharge of the
prisoner from custody. Mr. Justice Paras qualified his dissent by stating that he might agree "to
further detention of the herein petitioner, provided that he be released if after six months, the
Government is still unable to deport him." This writer joined in the latter dissent but thought that two
months constituted reasonable time.

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

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

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

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

The most recent case, as far as we have been able to find, was that of Staniszewski vs. Watkins
(1948), 90 Fed. Supp., 132, which is nearly foursquare with the case at hand. In that case a
stateless person, formerly a Polish national, resident in the United States since 1911 and many

119
times serving as a seaman on American vessels both in peace and in war, was ordered excluded
from the United States and detained at Ellis Island at the expense of the steamship company, when
he returned from a voyage on which he had shipped from New York for one or more European ports
and return to the United States. The grounds for his exclusion were that he had no passport or
immigration visa, and that in 1937 had been convicted of perjury because in certain documents he
presented himself to be an American citizen. Upon his application for release on habeas corpus, the
Court released him upon his own recognizance. Judge Leibell, of the United States District Court for
the Southern District of New York, said in part:

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

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

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

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

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

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

120
If we grant, for the sake of argument, that such a possibility exists, still the petitioner's unduly
prolonged detention would be unwarranted by law and the Constitution, if the only purpose of the
detention be to eliminate a danger that is by no means actual, present, or uncontrolable. After all, the
Government is not impotent to deal with or prevent any threat by such measure as that just outlined.
The thought eloquently expressed by Mr. Justice Jackson of the United States Supreme Court in
connection with the appliccation for bail of ten Communists convicted by a lower court of advocacy
of violent overthrow of the United States Government is, in principle, pertinent and may be availed of
at this juncture. Said the learned Jurist:

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

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

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

xxx xxx xxx 1âw phïl.nêt

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

If that case is not comparable with ours on the issues presented, its underlying principle is of
universal application. In fact, its ratio decidendi applies with greater force to the present petition,
since the right of accused to bail pending apppeal of his case, as in the case of the ten Communists,
depends upon the discretion of the court, whereas the right to be enlarged before formal charges are

121
instituted is absolute. As already noted, not only are there no charges pending against the petitioner,
but the prospects of bringing any against him are slim and remote.

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

No costs will be charged.

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

Separate Opinions

PABLO, M., disidente:

Disiento

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

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

122
El solicitante sostiene que no tiene estado. Eso no es razon para que tenga derecho a permanecer
aqui. Puede ser departado a Rusio o a Shanghai de donde vino. Si todos los rusos que, por alguno
que otro motivo, o por odio al comunisomo, dejasen su pais y emigrasen aqui reclamando igual
derecho, no habria territorio suficiente para ellos. Se puede decir otro tanto de los chinos que, so
pretexto de no querer someterse al regimen comunista, optasen por resider para siempre aqui. Y si
los mismos communistas chinos viniesen clandestinamente y despues reclamasen igual proteccion
como la concedida a Mejoff, ¿tendreos que darles por el gusto?

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

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

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

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

William Martin Jurgans fue arrestado en 9 de enero de 1920, en 20 de mayo se decreto su

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

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

123
 What constitutes a reasonable time for the detention of the petitioner in custody for
deportation depends upon the facts and circumstances of particular cases. This court cannot
shut its eyes to the vitally important interests of this country at this time with respect to the
bottleneck of shipping, when every available ship, domestic and foreign, must be utilized to
the utmost without delay consequent upon the lack of avilable seamen. Under these present
conditions the court should be liberal indeed in aiding the executive branch of the govenment
in the strict enforcement of laws so vitally necessary in the common defns. There is sound
authority for this view in United States ex. rel. Schlimm vs. Howe, D C.N. U Y. 222 F. 96, 97,
where Circuit Judge Lacombe refused to release an alien who had come here from Germany
and was ordered deported in 1915 when, by reason of the then existing war between
Germany and England, his deportation to Germany was not possible. It was said:

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

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

No es arbitraria la detencion de Mejoff. Esta jutificada por las circunstancias anormales.

La proposicion de vigilar al recurrente hasta que el gobierno encuentre transporte para su

deportacion, supon un gasto innecesario.

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G.R. No. L-24294 May 3, 1974

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

Sycip, Salazar, Luna Manalo & Feliciano for petitioner.

A. E. Dacanay for private respondent.

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

FERNANDO, J.:p

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

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

125
permits.8 The above notwithstanding, respondent Judge, on January 12, 1965, issued an order
granting respondent Gener's application for the issuance of a writ of preliminary injunction and
denying petitioner's motion to dismiss the opposition to the application for a writ of preliminary
injunction.9

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

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

1. The invocation of the doctrine of immunity from suit of a foreign state without its consent is
appropriate. More specifically, insofar as alien armed forces is concerned, the starting point
is Raquiza v. Bradford, a 1945 decision.14 In dismissing a habeas corpus petition for the release of
petitioners confined by American army authorities, Justice Hilado, speaking for the Court, cited
from Coleman v. Tennessee,15 where it was explicitly declared: "It is well settled that a foreign army,
permitted to march through a friendly country or to be stationed in it, by permission of its government
or sovereign, is exempt from the civil and criminal jurisdiction of the place."16 Two years later, in Tubb
and Tedrow v. Griess,17 this Court relied on the ruling in Raquiza v. Bradford and cited in support
thereof excerpts from the works of the following authoritative writers: Vattel, Wheaton, Hall,
Lawrence, Oppenhein, Westlake, Hyde, and McNair and Lauterpacht.18 Accuracy demands the
clarification that after the conclusion of the Philippine-American Military Bases Agreement, the treaty
provisions should control on such matter, the assumption being that there was a manifestation of the
submission to jurisdiction on the part of the foreign power whenever appropriate.19 More to the point
is Syquia v. Almeda Lopez,20 where plaintiffs as lessors sued the Commanding General of the United
States Army in the Philippines, seeking the restoration to them of the apartment buildings they
owned leased to United States armed forces stationed in the Manila area. A motion to dismiss on the
ground of non-suability was filed and upheld by respondent Judge. The matter was taken to this
Court in a mandamus proceeding. It failed. It was the ruling that respondent Judge acted correctly
considering that the "action must be considered as one against the U.S. Government."21 The opinion
of Justice Montemayor continued: "It is clear that the courts of the Philippines including the Municipal
Court of Manila have no jurisdiction over the present case for unlawful detainer. The question of lack
of jurisdiction was raised and interposed at the very beginning of the action. The U.S. Government
has not given its consent to the filing of this suit which is essentially against her, though not in name.
Moreover, this is not only a case of a citizen filing a suit against his own Government without the
latter's consent but it is of a citizen filing an action against a foreign government without said
government's consent, which renders more obvious the lack of jurisdiction of the courts of his
country. The principles of law behind this rule are so elementary and of such general acceptance
that we deem it unnecessary to cite authorities in support thereof."22 Then came Marvel Building

126
Corporation v. Philippine War Damage Commission,23 where respondent, a United States agency
established to compensate damages suffered by the Philippines during World War II was held as
falling within the above doctrine as the suit against it "would eventually be a charge against or
financial liability of the United States Government because ..., the Commission has no funds of its
own for the purpose of paying money judgments."24 The Syquia ruling was again explicitly relied
upon in Marquez Lim v. Nelson,25 involving a complaint for the recovery of a motor launch, plus
damages, the special defense interposed being "that the vessel belonged to the United States
Government, that the defendants merely acted as agents of said Government, and that the United
States Government is therefore the real party in interest."26 So it was in Philippine Alien Property
Administration v. Castelo,27 where it was held that a suit against the Alien Property Custodian and the
Attorney General of the United States involving vested property under the Trading with the Enemy
Act is in substance a suit against the United States. To the same effect is Parreno v. McGranery,28 as
the following excerpt from the opinion of Justice Tuason clearly shows: "It is a widely accepted
principle of international law, which is made a part of the law of the land (Article II, Section 3 of the
Constitution), that a foreign state may not be brought to suit before the courts of another state or its
own courts without its consent."29 Finally, there is Johnson v. Turner,30 an appeal by the defendant,
then Commanding General, Philippine Command (Air Force, with office at Clark Field) from a
decision ordering the return to plaintiff of the confiscated military payment certificates known as scrip
money. In reversing the lower court decision, this Tribunal, through Justice Montemayor, relied
on Syquia v. Almeda Lopez,31 explaining why it could not be sustained.

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

2. There should be no misinterpretation of the scope of the decision reached by this Court.
Petitioner, as the Commander of the United States Naval Base in Olongapo, does not possess
diplomatic immunity. He may therefore be proceeded against in his personal capacity, or when the
action taken by him cannot be imputed to the government which he represents. Thus, after the
Military Bases Agreement, in Miquiabas v. Commanding General33 and Dizon v. The Commanding
General of the Philippine-Ryukus Command,34 both of them being habeas corpus petitions, there was
no question as to the submission to jurisdiction of the respondents. As a matter of fact, in Miquiabas
v. Commanding General,35 the immediate release of the petitioner was ordered, it being apparent
that the general court martial appointed by respondent Commanding General was without
jurisdiction to try petitioner. Thereafter, in the cited cases of Syquia, Marquez Lim, and Johnson, the
parties proceeded against were American army commanding officers stationed in the Philippines.
The insuperable obstacle to the jurisdiction of respondent Judge is that a foreign sovereign without

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its consent is haled into court in connection with acts performed by it pursuant to treaty provisions
and thus impressed with a governmental character.

3. The infirmity of the actuation of respondent Judge becomes even more glaring when it is
considered that private respondent had ceased to have any right of entering within the base area.
This is made clear in the petition in these words: "In 1962, respondent Gener was issued by the
Bureau of Forestry an ordinary timber license to cut logs in Barrio Mabayo, Morong, Bataan. The
license was renewed on July 10, 1963. In 1963, he commenced logging operation inside the United
States Naval Base, Subic Bay, but in November 1963 he was apprehended and stopped by the
Base authorities from logging inside the Base. The renewal of his license expired on July 30, 1964,
and to date his license has not been renewed by the Bureau of Forestry. .. In July 1964, the Mutual
Defense Board, a joint Philippines-United States agency established pursuant to an exchange of
diplomatic notes between the Secretary of Foreign Affairs and the United States Ambassador to
provide "direct liaison and consultation between appropriate Philippine and United States authorities
on military matters of mutual concern,' advised the Secretary of Foreign Affairs in writing that: "The
enclosed map shows that the area in which Mr. Gener was logging definitely falls within the
boundaries of the base. This map also depicts certain contiguous and overlapping areas whose
functional usage would be interfered with by the logging operations.'"36 Nowhere in the answer of
respondents, nor in their memorandum, was this point met. It remained unrefuted.

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

Zaldivar, Antonio, Fernandez and Aquino, JJ., concur.

Barredo, J., took no part.

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G.R. No. 118295 May 2, 1997

WIGBERTO E. TAÑADA and ANNA DOMINIQUE COSETENG, as members of the Philippine

Senate and as taxpayers; GREGORIO ANDOLANA and JOKER ARROYO as members of the
House of Representatives and as taxpayers; NICANOR P. PERLAS and HORACIO R.
MORALES, both as taxpayers; CIVIL LIBERTIES UNION, NATIONAL ECONOMIC
PROTECTIONISM ASSOCIATION, CENTER FOR ALTERNATIVE DEVELOPMENT INITIATIVES,
LIKAS-KAYANG KAUNLARAN FOUNDATION, INC., PHILIPPINE RURAL RECONSTRUCTION
MOVEMENT, DEMOKRATIKONG KILUSAN NG MAGBUBUKID NG PILIPINAS, INC., and
PHILIPPINE PEASANT INSTITUTE, in representation of various taxpayers and as non-
governmental organizations, petitioners,
vs.
EDGARDO ANGARA, ALBERTO ROMULO, LETICIA RAMOS-SHAHANI, HEHERSON
ALVAREZ, AGAPITO AQUINO, RODOLFO BIAZON, NEPTALI GONZALES, ERNESTO
HERRERA, JOSE LINA, GLORIA. MACAPAGAL-ARROYO, ORLANDO MERCADO, BLAS
OPLE, JOHN OSMEÑA, SANTANINA RASUL, RAMON REVILLA, RAUL ROCO, FRANCISCO
TATAD and FREDDIE WEBB, in their respective capacities as members of the Philippine
Senate who concurred in the ratification by the President of the Philippines of the Agreement
Establishing the World Trade Organization; SALVADOR ENRIQUEZ, in his capacity as
Secretary of Budget and Management; CARIDAD VALDEHUESA, in her capacity as National
Treasurer; RIZALINO NAVARRO, in his capacity as Secretary of Trade and Industry;
ROBERTO SEBASTIAN, in his capacity as Secretary of Agriculture; ROBERTO DE OCAMPO,
in his capacity as Secretary of Finance; ROBERTO ROMULO, in his capacity as Secretary of
Foreign Affairs; and TEOFISTO T. GUINGONA, in his capacity as Executive
Secretary, respondents.

PANGANIBAN, J.:

The emergence on January 1, 1995 of the World Trade Organization, abetted by the membership
thereto of the vast majority of countries has revolutionized international business and economic
relations amongst states. It has irreversibly propelled the world towards trade liberalization and
economic globalization. Liberalization, globalization, deregulation and privatization, the third-
millennium buzz words, are ushering in a new borderless world of business by sweeping away as
mere historical relics the heretofore traditional modes of promoting and protecting national
economies like tariffs, export subsidies, import quotas, quantitative restrictions, tax exemptions and
currency controls. Finding market niches and becoming the best in specific industries in a market-
driven and export-oriented global scenario are replacing age-old "beggar-thy-neighbor" policies that
unilaterally protect weak and inefficient domestic producers of goods and services. In the words of
Peter Drucker, the well-known management guru, "Increased participation in the world economy has
become the key to domestic economic growth and prosperity."

Brief Historical Background

To hasten worldwide recovery from the devastation wrought by the Second World War, plans for the
establishment of three multilateral institutions — inspired by that grand political body, the United
Nations — were discussed at Dumbarton Oaks and Bretton Woods. The first was the World Bank
(WB) which was to address the rehabilitation and reconstruction of war-ravaged and later developing
countries; the second, the International Monetary Fund (IMF) which was to deal with currency
problems; and the third, the International Trade Organization (ITO), which was to foster order and
predictability in world trade and to minimize unilateral protectionist policies that invite challenge,
even retaliation, from other states. However, for a variety of reasons, including its non-ratification by
the United States, the ITO, unlike the IMF and WB, never took off. What remained was only GATT

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— the General Agreement on Tariffs and Trade. GATT was a collection of treaties governing access
to the economies of treaty adherents with no institutionalized body administering the agreements or
dependable system of dispute settlement.

After half a century and several dizzying rounds of negotiations, principally the Kennedy Round, the
Tokyo Round and the Uruguay Round, the world finally gave birth to that administering body — the
World Trade Organization — with the signing of the "Final Act" in Marrakesh, Morocco and the
ratification of the WTO Agreement by its members.1

Like many other developing countries, the Philippines joined WTO as a founding member with the
goal, as articulated by President Fidel V. Ramos in two letters to the Senate (infra), of improving
"Philippine access to foreign markets, especially its major trading partners, through the reduction of
tariffs on its exports, particularly agricultural and industrial products." The President also saw in the
WTO the opening of "new opportunities for the services sector . . . , (the reduction of) costs and
uncertainty associated with exporting . . . , and (the attraction of) more investments into the country."
Although the Chief Executive did not expressly mention it in his letter, the Philippines — and this is
of special interest to the legal profession — will benefit from the WTO system of dispute settlement
by judicial adjudication through the independent WTO settlement bodies called (1) Dispute
Settlement Panels and (2) Appellate Tribunal. Heretofore, trade disputes were settled mainly through
negotiations where solutions were arrived at frequently on the basis of relative bargaining strengths,
and where naturally, weak and underdeveloped countries were at a disadvantage.

The Petition in Brief

Arguing mainly (1) that the WTO requires the Philippines "to place nationals and products of
member-countries on the same footing as Filipinos and local products" and (2) that the WTO
"intrudes, limits and/or impairs" the constitutional powers of both Congress and the Supreme Court,
the instant petition before this Court assails the WTO Agreement for violating the mandate of the
1987 Constitution to "develop a self-reliant and independent national economy effectively controlled
by Filipinos . . . (to) give preference to qualified Filipinos (and to) promote the preferential use of
Filipino labor, domestic materials and locally produced goods."

Simply stated, does the Philippine Constitution prohibit Philippine participation in worldwide trade
liberalization and economic globalization? Does it proscribe Philippine integration into a global
economy that is liberalized, deregulated and privatized? These are the main questions raised in this
petition for certiorari, prohibition and mandamus under Rule 65 of the Rules of Court praying (1) for
the nullification, on constitutional grounds, of the concurrence of the Philippine Senate in the
ratification by the President of the Philippines of the Agreement Establishing the World Trade
Organization (WTO Agreement, for brevity) and (2) for the prohibition of its implementation and
enforcement through the release and utilization of public funds, the assignment of public officials and
employees, as well as the use of government properties and resources by respondent-heads of
various executive offices concerned therewith. This concurrence is embodied in Senate Resolution
No. 97, dated December 14, 1994.

The Facts

On April 15, 1994, Respondent Rizalino Navarro, then Secretary of The Department of Trade and
Industry (Secretary Navarro, for brevity), representing the Government of the Republic of the
Philippines, signed in Marrakesh, Morocco, the Final Act Embodying the Results of the Uruguay
Round of Multilateral Negotiations (Final Act, for brevity).

By signing the Final Act,2 Secretary Navarro on behalf of the Republic of the Philippines, agreed:

130
 (a) to submit, as appropriate, the WTO Agreement for the consideration of their
respective competent authorities, with a view to seeking approval of the Agreement
in accordance with their procedures; and

(b) to adopt the Ministerial Declarations and Decisions.

On August 12, 1994, the members of the Philippine Senate received a letter dated August 11, 1994
from the President of the Philippines,3 stating among others that "the Uruguay Round Final Act is
hereby submitted to the Senate for its concurrence pursuant to Section 21, Article VII of the
Constitution."

On August 13, 1994, the members of the Philippine Senate received another letter from the
President of the Philippines4 likewise dated August 11, 1994, which stated among others that "the
Uruguay Round Final Act, the Agreement Establishing the World Trade Organization, the Ministerial
Declarations and Decisions, and the Understanding on Commitments in Financial Services are
hereby submitted to the Senate for its concurrence pursuant to Section 21, Article VII of the
Constitution."

On December 9, 1994, the President of the Philippines certified the necessity of the immediate
adoption of P.S. 1083, a resolution entitled "Concurring in the Ratification of the Agreement
Establishing the World Trade Organization."5

On December 14, 1994, the Philippine Senate adopted Resolution No. 97 which "Resolved, as it is
hereby resolved, that the Senate concur, as it hereby concurs, in the ratification by the President of
the Philippines of the Agreement Establishing the World Trade Organization."6 The text of the WTO
Agreement is written on pages 137 et seq. of Volume I of the 36-volume Uruguay Round of
Multilateral Trade Negotiations and includes various agreements and associated legal instruments
(identified in the said Agreement as Annexes 1, 2 and 3 thereto and collectively referred to as
Multilateral Trade Agreements, for brevity) as follows:

ANNEX 1

Annex 1A: Multilateral Agreement on Trade in Goods

General Agreement on Tariffs and Trade 1994
Agreement on Agriculture
Agreement on the Application of Sanitary and
Phytosanitary Measures
Agreement on Textiles and Clothing
Agreement on Technical Barriers to Trade
Agreement on Trade-Related Investment Measures
Agreement on Implementation of Article VI of he
General Agreement on Tariffs and Trade
1994
Agreement on Implementation of Article VII of the
General on Tariffs and Trade 1994
Agreement on Pre-Shipment Inspection
Agreement on Rules of Origin
Agreement on Imports Licensing Procedures
Agreement on Subsidies and Coordinating
Measures
Agreement on Safeguards

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 Annex 1B: General Agreement on Trade in Services and Annexes

Annex 1C: Agreement on Trade-Related Aspects of Intellectual

Property Rights

ANNEX 2

Understanding on Rules and Procedures Governing

the Settlement of Disputes

ANNEX 3

Trade Policy Review Mechanism

On December 16, 1994, the President of the Philippines signed7 the Instrument of Ratification,
declaring:

NOW THEREFORE, be it known that I, FIDEL V. RAMOS, President of the Republic

of the Philippines, after having seen and considered the aforementioned Agreement
Establishing the World Trade Organization and the agreements and associated legal
instruments included in Annexes one (1), two (2) and three (3) of that Agreement
which are integral parts thereof, signed at Marrakesh, Morocco on 15 April 1994, do
hereby ratify and confirm the same and every Article and Clause thereof.

To emphasize, the WTO Agreement ratified by the President of the Philippines is composed of the
Agreement Proper and "the associated legal instruments included in Annexes one (1), two (2) and
three (3) of that Agreement which are integral parts thereof."

On the other hand, the Final Act signed by Secretary Navarro embodies not only the WTO
Agreement (and its integral annexes aforementioned) but also (1) the Ministerial Declarations and
Decisions and (2) the Understanding on Commitments in Financial Services. In his Memorandum
dated May 13, 1996,8 the Solicitor General describes these two latter documents as follows:

The Ministerial Decisions and Declarations are twenty-five declarations and

decisions on a wide range of matters, such as measures in favor of least developed
countries, notification procedures, relationship of WTO with the International
Monetary Fund (IMF), and agreements on technical barriers to trade and on dispute
settlement.

The Understanding on Commitments in Financial Services dwell on, among other

things, standstill or limitations and qualifications of commitments to existing non-
conforming measures, market access, national treatment, and definitions of non-
resident supplier of financial services, commercial presence and new financial
service.

On December 29, 1994, the present petition was filed. After careful deliberation on respondents'
comment and petitioners' reply thereto, the Court resolved on December 12, 1995, to give due
course to the petition, and the parties thereafter filed their respective memoranda. The court also
requested the Honorable Lilia R. Bautista, the Philippine Ambassador to the United Nations
stationed in Geneva, Switzerland, to submit a paper, hereafter referred to as "Bautista Paper,"9 for
brevity, (1) providing a historical background of and (2) summarizing the said agreements.

132
During the Oral Argument held on August 27, 1996, the Court directed:

(a) the petitioners to submit the (1) Senate Committee Report on the matter in
controversy and (2) the transcript of proceedings/hearings in the Senate; and

(b) the Solicitor General, as counsel for respondents, to file (1) a list of Philippine
treaties signed prior to the Philippine adherence to the WTO Agreement, which
derogate from Philippine sovereignty and (2) copies of the multi-volume WTO
Agreement and other documents mentioned in the Final Act, as soon as possible.

After receipt of the foregoing documents, the Court said it would consider the case submitted for
resolution. In a Compliance dated September 16, 1996, the Solicitor General submitted a printed
copy of the 36-volume Uruguay Round of Multilateral Trade Negotiations, and in another
Compliance dated October 24, 1996, he listed the various "bilateral or multilateral treaties or
international instruments involving derogation of Philippine sovereignty." Petitioners, on the other
hand, submitted their Compliance dated January 28, 1997, on January 30, 1997.

The Issues

In their Memorandum dated March 11, 1996, petitioners summarized the issues as follows:

A. Whether the petition presents a political question or is otherwise not justiciable.

B. Whether the petitioner members of the Senate who participated in the

deliberations and voting leading to the concurrence are estopped from impugning the
validity of the Agreement Establishing the World Trade Organization or of the validity
of the concurrence.

C. Whether the provisions of the Agreement Establishing the World Trade

Organization contravene the provisions of Sec. 19, Article II, and Secs. 10 and 12,
Article XII, all of the 1987 Philippine Constitution.

D. Whether provisions of the Agreement Establishing the World Trade Organization

unduly limit, restrict and impair Philippine sovereignty specifically the legislative
power which, under Sec. 2, Article VI, 1987 Philippine Constitution is "vested in the
Congress of the Philippines";

E. Whether provisions of the Agreement Establishing the World Trade Organization

interfere with the exercise of judicial power.

F. Whether the respondent members of the Senate acted in grave abuse of

discretion amounting to lack or excess of jurisdiction when they voted for
concurrence in the ratification of the constitutionally-infirm Agreement Establishing
the World Trade Organization.

G. Whether the respondent members of the Senate acted in grave abuse of

discretion amounting to lack or excess of jurisdiction when they concurred only in the
ratification of the Agreement Establishing the World Trade Organization, and not with
the Presidential submission which included the Final Act, Ministerial Declaration and
Decisions, and the Understanding on Commitments in Financial Services.

133
On the other hand, the Solicitor General as counsel for respondents "synthesized the several issues
raised by petitioners into the following": 10

1. Whether or not the provisions of the "Agreement Establishing the World Trade
Organization and the Agreements and Associated Legal Instruments included in
Annexes one (1), two (2) and three (3) of that agreement" cited by petitioners directly
contravene or undermine the letter, spirit and intent of Section 19, Article II and
Sections 10 and 12, Article XII of the 1987 Constitution.

2. Whether or not certain provisions of the Agreement unduly limit, restrict or impair
the exercise of legislative power by Congress.

3. Whether or not certain provisions of the Agreement impair the exercise of judicial
power by this Honorable Court in promulgating the rules of evidence.

4. Whether or not the concurrence of the Senate "in the ratification by the President
of the Philippines of the Agreement establishing the World Trade Organization"
implied rejection of the treaty embodied in the Final Act.

By raising and arguing only four issues against the seven presented by petitioners, the Solicitor
General has effectively ignored three, namely: (1) whether the petition presents a political question
or is otherwise not justiciable; (2) whether petitioner-members of the Senate (Wigberto E. Tañada
and Anna Dominique Coseteng) are estopped from joining this suit; and (3) whether the respondent-
members of the Senate acted in grave abuse of discretion when they voted for concurrence in the
ratification of the WTO Agreement. The foregoing notwithstanding, this Court resolved to deal with
these three issues thus:

(1) The "political question" issue — being very fundamental and vital, and being a matter that probes
into the very jurisdiction of this Court to hear and decide this case — was deliberated upon by the
Court and will thus be ruled upon as the first issue;

(2) The matter of estoppel will not be taken up because this defense is waivable and the
respondents have effectively waived it by not pursuing it in any of their pleadings; in any event, this
issue, even if ruled in respondents' favor, will not cause the petition's dismissal as there are
petitioners other than the two senators, who are not vulnerable to the defense of estoppel; and

(3) The issue of alleged grave abuse of discretion on the part of the respondent senators will be
taken up as an integral part of the disposition of the four issues raised by the Solicitor General.

During its deliberations on the case, the Court noted that the respondents did not question the locus
standi of petitioners. Hence, they are also deemed to have waived the benefit of such issue. They
probably realized that grave constitutional issues, expenditures of public funds and serious
international commitments of the nation are involved here, and that transcendental public interest
requires that the substantive issues be met head on and decided on the merits, rather than skirted or
deflected by procedural matters. 11

To recapitulate, the issues that will be ruled upon shortly are:

(1) DOES THE PETITION PRESENT A JUSTICIABLE CONTROVERSY?

OTHERWISE STATED, DOES THE PETITION INVOLVE A POLITICAL QUESTION
OVER WHICH THIS COURT HAS NO JURISDICTION?

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 (2) DO THE PROVISIONS OF THE WTO AGREEMENT AND ITS THREE
ANNEXES CONTRAVENE SEC. 19, ARTICLE II, AND SECS. 10 AND 12, ARTICLE
XII, OF THE PHILIPPINE CONSTITUTION?

(3) DO THE PROVISIONS OF SAID AGREEMENT AND ITS ANNEXES LIMIT,

RESTRICT, OR IMPAIR THE EXERCISE OF LEGISLATIVE POWER BY
CONGRESS?

(4) DO SAID PROVISIONS UNDULY IMPAIR OR INTERFERE WITH THE

EXERCISE OF JUDICIAL POWER BY THIS COURT IN PROMULGATING RULES
ON EVIDENCE?

(5) WAS THE CONCURRENCE OF THE SENATE IN THE WTO AGREEMENT AND
ITS ANNEXES SUFFICIENT AND/OR VALID, CONSIDERING THAT IT DID NOT
INCLUDE THE FINAL ACT, MINISTERIAL DECLARATIONS AND DECISIONS,
AND THE UNDERSTANDING ON COMMITMENTS IN FINANCIAL SERVICES?

The First Issue: Does the Court

Have Jurisdiction Over the Controversy?

In seeking to nullify an act of the Philippine Senate on the ground that it contravenes the
Constitution, the petition no doubt raises a justiciable controversy. Where an action of the legislative
branch is seriously alleged to have infringed the Constitution, it becomes not only the right but in fact
the duty of the judiciary to settle the dispute. "The question thus posed is judicial rather than political.
The duty (to adjudicate) remains to assure that the supremacy of the Constitution is upheld." 12 Once
a "controversy as to the application or interpretation of a constitutional provision is raised before this
Court (as in the instant case), it becomes a legal issue which the Court is bound by constitutional
mandate to decide." 13

The jurisdiction of this Court to adjudicate the matters 14 raised in the petition is clearly set out in the
1987 Constitution, 15 as follows:

Judicial power includes the duty of the courts of justice to settle actual controversies
involving rights which are legally demandable and enforceable, and to determine
whether or not there has been a grave abuse of discretion amounting to lack or
excess of jurisdiction on the part of any branch or instrumentality of the government.

The foregoing text emphasizes the judicial department's duty and power to strike down grave abuse
of discretion on the part of any branch or instrumentality of government including Congress. It is an
innovation in our political law. 16 As explained by former Chief Justice Roberto Concepcion, 17 "the
judiciary is the final arbiter on the question of whether or not a branch of government or any of its
officials has acted without jurisdiction or in excess of jurisdiction or so capriciously as to constitute an
abuse of discretion amounting to excess of jurisdiction. This is not only a judicial power but a duty to
pass judgment on matters of this nature."

As this Court has repeatedly and firmly emphasized in many cases, 18 it will not shirk, digress from or
abandon its sacred duty and authority to uphold the Constitution in matters that involve grave abuse
of discretion brought before it in appropriate cases, committed by any officer, agency, instrumentality
or department of the government.

As the petition alleges grave abuse of discretion and as there is no other plain, speedy or adequate
remedy in the ordinary course of law, we have no hesitation at all in holding that this petition should

135
be given due course and the vital questions raised therein ruled upon under Rule 65 of the Rules of
Court. Indeed, certiorari, prohibition and mandamus are appropriate remedies to raise constitutional
issues and to review and/or prohibit/nullify, when proper, acts of legislative and executive officials.
On this, we have no equivocation.

We should stress that, in deciding to take jurisdiction over this petition, this Court will not review
the wisdom of the decision of the President and the Senate in enlisting the country into the WTO, or
pass upon the merits of trade liberalization as a policy espoused by said international body. Neither
will it rule on the propriety of the government's economic policy of reducing/removing tariffs, taxes,
subsidies, quantitative restrictions, and other import/trade barriers. Rather, it will only exercise its
constitutional duty "to determine whether or not there had been a grave abuse of discretion
amounting to lack or excess of jurisdiction" on the part of the Senate in ratifying the WTO Agreement
and its three annexes.

Second Issue: The WTO Agreement

and Economic Nationalism

This is the lis mota, the main issue, raised by the petition.

Petitioners vigorously argue that the "letter, spirit and intent" of the Constitution mandating
"economic nationalism" are violated by the so-called "parity provisions" and "national treatment"
clauses scattered in various parts not only of the WTO Agreement and its annexes but also in the
Ministerial Decisions and Declarations and in the Understanding on Commitments in Financial
Services.

Specifically, the "flagship" constitutional provisions referred to are Sec 19, Article II, and Secs. 10
and 12, Article XII, of the Constitution, which are worded as follows:

Article II

DECLARATION OF PRINCIPLES
AND STATE POLICIES

xxx xxx xxx

Sec. 19. The State shall develop a self-reliant and independent national economy
effectively controlled by Filipinos.

xxx xxx xxx

Article XII

NATIONAL ECONOMY AND PATRIMONY

xxx xxx xxx

Sec. 10. . . . The Congress shall enact measures that will encourage the formation
and operation of enterprises whose capital is wholly owned by Filipinos.

In the grant of rights, privileges, and concessions covering the national economy and
patrimony, the State shall give preference to qualified Filipinos.

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 xxx xxx xxx

Sec. 12. The State shall promote the preferential use of Filipino labor, domestic
materials and locally produced goods, and adopt measures that help make them
competitive.

Petitioners aver that these sacred constitutional principles are desecrated by the following WTO
provisions quoted in their memorandum: 19

a) In the area of investment measures related to trade in goods (TRIMS, for brevity):

Article 2

National Treatment and Quantitative Restrictions.

1. Without prejudice to other rights and obligations under GATT 1994,

no Member shall apply any TRIM that is inconsistent with the
provisions of Article II or Article XI of GATT 1994.

2. An illustrative list of TRIMS that are inconsistent with the

obligations of general elimination of quantitative restrictions provided
for in paragraph I of Article XI of GATT 1994 is contained in the
Annex to this Agreement." (Agreement on Trade-Related Investment
Measures, Vol. 27, Uruguay Round, Legal Instruments, p. 22121,
emphasis supplied).

The Annex referred to reads as follows:

ANNEX

Illustrative List

1. TRIMS that are inconsistent with the obligation of national treatment provided for
in paragraph 4 of Article III of GATT 1994 include those which are mandatory or
enforceable under domestic law or under administrative rulings, or compliance with
which is necessary to obtain an advantage, and which require:

(a) the purchase or use by an enterprise of products of domestic

origin or from any domestic source, whether specified in terms of
particular products, in terms of volume or value of products, or in
terms of proportion of volume or value of its local production; or

(b) that an enterprise's purchases or use of imported products be

limited to an amount related to the volume or value of local products
that it exports.

2. TRIMS that are inconsistent with the obligations of general elimination of

quantitative restrictions provided for in paragraph 1 of Article XI of GATT 1994
include those which are mandatory or enforceable under domestic laws or under
administrative rulings, or compliance with which is necessary to obtain an advantage,
and which restrict:

137
 (a) the importation by an enterprise of products used in or related to
the local production that it exports;

(b) the importation by an enterprise of products used in or related to

its local production by restricting its access to foreign exchange
inflows attributable to the enterprise; or

(c) the exportation or sale for export specified in terms of particular

products, in terms of volume or value of products, or in terms of a
preparation of volume or value of its local production. (Annex to the
Agreement on Trade-Related Investment Measures, Vol. 27, Uruguay
Round Legal Documents, p. 22125, emphasis supplied).

The paragraph 4 of Article III of GATT 1994 referred to is quoted as follows:

The products of the territory of any contracting party imported into the
territory of any other contracting party shall be accorded treatment no
less favorable than that accorded to like products of national origin in
respect of laws, regulations and requirements affecting their internal
sale, offering for sale, purchase, transportation, distribution or use,
the provisions of this paragraph shall not prevent the application of
differential internal transportation charges which are based
exclusively on the economic operation of the means of transport and
not on the nationality of the product." (Article III, GATT 1947, as
amended by the Protocol Modifying Part II, and Article XXVI of GATT,
14 September 1948, 62 UMTS 82-84 in relation to paragraph 1(a) of
the General Agreement on Tariffs and Trade 1994, Vol. 1, Uruguay
Round, Legal Instruments p. 177, emphasis supplied).

(b) In the area of trade related aspects of intellectual property rights (TRIPS, for
brevity):

Each Member shall accord to the nationals of other Members

treatment no less favourable than that it accords to its own
nationals with regard to the protection of intellectual property. . . (par.
1 Article 3, Agreement on Trade-Related Aspect of Intellectual
Property rights, Vol. 31, Uruguay Round, Legal Instruments, p. 25432
(emphasis supplied)

(c) In the area of the General Agreement on Trade in Services:

National Treatment

1. In the sectors inscribed in its schedule, and subject to any

conditions and qualifications set out therein, each Member shall
accord to services and service suppliers of any other Member, in
respect of all measures affecting the supply of services, treatment no
less favourable than it accords to its own like services and service
suppliers.

2. A Member may meet the requirement of paragraph I by according

to services and service suppliers of any other Member, either formally

138
 suppliers of any other Member, either formally identical treatment or
formally different treatment to that it accords to its own like services
and service suppliers.

3. Formally identical or formally different treatment shall be

considered to be less favourable if it modifies the conditions of
completion in favour of services or service suppliers of the Member
compared to like services or service suppliers of any other Member.
(Article XVII, General Agreement on Trade in Services, Vol. 28,
Uruguay Round Legal Instruments, p. 22610 emphasis supplied).

It is petitioners' position that the foregoing "national treatment" and "parity provisions" of the WTO
Agreement "place nationals and products of member countries on the same footing as Filipinos and
local products," in contravention of the "Filipino First" policy of the Constitution. They allegedly
render meaningless the phrase "effectively controlled by Filipinos." The constitutional conflict
becomes more manifest when viewed in the context of the clear duty imposed on the Philippines as
a WTO member to ensure the conformity of its laws, regulations and administrative procedures with
its obligations as provided in the annexed agreements. 20 Petitioners further argue that these
provisions contravene constitutional limitations on the role exports play in national development and
negate the preferential treatment accorded to Filipino labor, domestic materials and locally produced
goods.

On the other hand, respondents through the Solicitor General counter (1) that such Charter
provisions are not self-executing and merely set out general policies; (2) that these nationalistic
portions of the Constitution invoked by petitioners should not be read in isolation but should be
related to other relevant provisions of Art. XII, particularly Secs. 1 and 13 thereof; (3) that read
properly, the cited WTO clauses do not conflict with Constitution; and (4) that the WTO Agreement
contains sufficient provisions to protect developing countries like the Philippines from the harshness
of sudden trade liberalization.

We shall now discuss and rule on these arguments.

Declaration of Principles
Not Self-Executing

By its very title, Article II of the Constitution is a "declaration of principles and state policies." The
counterpart of this article in the 1935 Constitution 21 is called the "basic political creed of the nation"
by Dean Vicente Sinco. 22 These principles in Article II are not intended to be self-executing
principles ready for enforcement through the courts. 23 They are used by the judiciary as aids or as
guides in the exercise of its power of judicial review, and by the legislature in its enactment of laws.
As held in the leading case of Kilosbayan, Incorporated vs. Morato, 24 the principles and state policies
enumerated in Article II and some sections of Article XII are not "self-executing provisions, the
disregard of which can give rise to a cause of action in the courts. They do not embody judicially
enforceable constitutional rights but guidelines for legislation."

In the same light, we held in Basco vs. Pagcor 25 that broad constitutional principles need legislative
enactments to implement the, thus:

On petitioners' allegation that P.D. 1869 violates Sections 11 (Personal Dignity) 12

(Family) and 13 (Role of Youth) of Article II; Section 13 (Social Justice) of Article XIII
and Section 2 (Educational Values) of Article XIV of the 1987 Constitution, suffice it
to state also that these are merely statements of principles and policies. As such,

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 they are basically not self-executing, meaning a law should be passed by Congress
to clearly define and effectuate such principles.

In general, therefore, the 1935 provisions were not intended to be

self-executing principles ready for enforcement through the courts.
They were rather directives addressed to the executive and to the
legislature. If the executive and the legislature failed to heed the
directives of the article, the available remedy was not judicial but
political. The electorate could express their displeasure with the
failure of the executive and the legislature through the language of
the ballot. (Bernas, Vol. II, p. 2).

The reasons for denying a cause of action to an alleged infringement of board constitutional
principles are sourced from basic considerations of due process and the lack of judicial authority to
wade "into the uncharted ocean of social and economic policy making." Mr. Justice Florentino P.
Feliciano in his concurring opinion in Oposa vs. Factoran, Jr., 26 explained these reasons as follows:

My suggestion is simply that petitioners must, before the trial court, show a more
specific legal right — a right cast in language of a significantly lower order of
generality than Article II (15) of the Constitution — that is or may be violated by the
actions, or failures to act, imputed to the public respondent by petitioners so that the
trial court can validly render judgment grating all or part of the relief prayed for. To
my mind, the court should be understood as simply saying that such a more specific
legal right or rights may well exist in our corpus of law, considering the general policy
principles found in the Constitution and the existence of the Philippine Environment
Code, and that the trial court should have given petitioners an effective opportunity
so to demonstrate, instead of aborting the proceedings on a motion to dismiss.

It seems to me important that the legal right which is an essential component of a

cause of action be a specific, operable legal right, rather than a constitutional or
statutory policy, for at least two (2) reasons. One is that unless the legal right claimed
to have been violated or disregarded is given specification in operational terms,
defendants may well be unable to defend themselves intelligently and effectively; in
other words, there are due process dimensions to this matter.

The second is a broader-gauge consideration — where a specific violation of law or

applicable regulation is not alleged or proved, petitioners can be expected to fall back
on the expanded conception of judicial power in the second paragraph of Section 1
of Article VIII of the Constitution which reads:

Sec. 1. . . .

Judicial power includes the duty of the courts of justice to settle actual
controversies involving rights which are legally demandable and
enforceable, and to determine whether or not there has been a grave
abuse of discretion amounting to lack or excess of jurisdiction on the
part of any branch or instrumentality of the Government. (Emphasis
supplied)

When substantive standards as general as "the right to a balanced and healthy

ecology" and "the right to health" are combined with remedial standards as broad
ranging as "a grave abuse of discretion amounting to lack or excess of jurisdiction,"

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 the result will be, it is respectfully submitted, to propel courts into the uncharted
ocean of social and economic policy making. At least in respect of the vast area of
environmental protection and management, our courts have no claim to special
technical competence and experience and professional qualification. Where no
specific, operable norms and standards are shown to exist, then the policy making
departments — the legislative and executive departments — must be given a real
and effective opportunity to fashion and promulgate those norms and standards, and
to implement them before the courts should intervene.

Economic Nationalism Should Be Read with

Other Constitutional Mandates to Attain
Balanced Development of Economy

On the other hand, Secs. 10 and 12 of Article XII, apart from merely laying down general principles
relating to the national economy and patrimony, should be read and understood in relation to the
other sections in said article, especially Secs. 1 and 13 thereof which read:

Sec. 1. The goals of the national economy are a more equitable distribution of
opportunities, income, and wealth; a sustained increase in the amount of goods and
services produced by the nation for the benefit of the people; and an expanding
productivity as the key to raising the quality of life for all especially the
underprivileged.

The State shall promote industrialization and full employment based on sound
agricultural development and agrarian reform, through industries that make full and
efficient use of human and natural resources, and which are competitive in both
domestic and foreign markets. However, the State shall protect Filipino enterprises
against unfair foreign competition and trade practices.

In the pursuit of these goals, all sectors of the economy and all regions of the country
shall be given optimum opportunity to develop. . . .

xxx xxx xxx

Sec. 13. The State shall pursue a trade policy that serves the general welfare and
utilizes all forms and arrangements of exchange on the basis of equality and
reciprocity.

As pointed out by the Solicitor General, Sec. 1 lays down the basic goals of national economic
development, as follows:

1. A more equitable distribution of opportunities, income and wealth;

2. A sustained increase in the amount of goods and services provided by the nation for the benefit of
the people; and

3. An expanding productivity as the key to raising the quality of life for all especially the
underprivileged.

With these goals in context, the Constitution then ordains the ideals of economic nationalism (1) by
expressing preference in favor of qualified Filipinos "in the grant of rights, privileges and concessions

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covering the national economy and patrimony" 27 and in the use of "Filipino labor, domestic materials
and locally-produced goods"; (2) by mandating the State to "adopt measures that help make them
competitive; 28 and (3) by requiring the State to "develop a self-reliant and independent national
economy effectively controlled by Filipinos." 29 In similar language, the Constitution takes into
account the realities of the outside world as it requires the pursuit of "a trade policy that serves the
general welfare and utilizes all forms and arrangements of exchange on the basis of equality ad
reciprocity"; 30 and speaks of industries "which are competitive in both domestic and foreign markets"
as well as of the protection of "Filipino enterprises against unfair foreign competition and trade
practices."

It is true that in the recent case of Manila Prince Hotel vs. Government Service Insurance System, et
al., 31 this Court held that "Sec. 10, second par., Art. XII of the 1987 Constitution is a mandatory,
positive command which is complete in itself and which needs no further guidelines or implementing
laws or rule for its enforcement. From its very words the provision does not require any legislation to
put it in operation. It is per se judicially enforceable." However, as the constitutional provision itself
states, it is enforceable only in regard to "the grants of rights, privileges and concessions covering
national economy and patrimony" and not to every aspect of trade and commerce. It refers to
exceptions rather than the rule. The issue here is not whether this paragraph of Sec. 10 of Art. XII is
self-executing or not. Rather, the issue is whether, as a rule, there are enough balancing provisions
in the Constitution to allow the Senate to ratify the Philippine concurrence in the WTO Agreement.
And we hold that there are.

All told, while the Constitution indeed mandates a bias in favor of Filipino goods, services, labor and
enterprises, at the same time, it recognizes the need for business exchange with the rest of the
world on the bases of equality and reciprocity and limits protection of Filipino enterprises only
against foreign competition and trade practices that are unfair. 32 In other words, the Constitution did
not intend to pursue an isolationist policy. It did not shut out foreign investments, goods and services
in the development of the Philippine economy. While the Constitution does not encourage the
unlimited entry of foreign goods, services and investments into the country, it does not prohibit them
either. In fact, it allows an exchange on the basis of equality and reciprocity, frowning only on foreign
competition that is unfair.

WTO Recognizes Need to

Protect Weak Economies

Upon the other hand, respondents maintain that the WTO itself has some built-in advantages to
protect weak and developing economies, which comprise the vast majority of its members. Unlike in
the UN where major states have permanent seats and veto powers in the Security Council, in the
WTO, decisions are made on the basis of sovereign equality, with each member's vote equal in
weight to that of any other. There is no WTO equivalent of the UN Security Council.

WTO decides by consensus whenever possible, otherwise, decisions of the

Ministerial Conference and the General Council shall be taken by the majority of the
votes cast, except in cases of interpretation of the Agreement or waiver of the
obligation of a member which would require three fourths vote. Amendments would
require two thirds vote in general. Amendments to MFN provisions and the
Amendments provision will require assent of all members. Any member may
withdraw from the Agreement upon the expiration of six months from the date of
notice of withdrawals. 33

Hence, poor countries can protect their common interests more effectively through the WTO than
through one-on-one negotiations with developed countries. Within the WTO, developing countries

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can form powerful blocs to push their economic agenda more decisively than outside the
Organization. This is not merely a matter of practical alliances but a negotiating strategy rooted in
law. Thus, the basic principles underlying the WTO Agreement recognize the need of developing
countries like the Philippines to "share in the growth in international trade commensurate with the
needs of their economic development." These basic principles are found in the preamble 34 of the
WTO Agreement as follows:

The Parties to this Agreement,

Recognizing that their relations in the field of trade and economic endeavour should
be conducted with a view to raising standards of living, ensuring full employment and
a large and steadily growing volume of real income and effective demand, and
expanding the production of and trade in goods and services, while allowing for the
optimal use of the world's resources in accordance with the objective of sustainable
development, seeking both to protect and preserve the environment and to enhance
the means for doing so in a manner consistent with their respective needs and
concerns at different levels of economic development,

Recognizing further that there is need for positive efforts designed to ensure that
developing countries, and especially the least developed among them, secure
a share in the growth in international trade commensurate with the needs of their
economic development,

Being desirous of contributing to these objectives by entering into reciprocal and

mutually advantageous arrangements directed to the substantial reduction of tariffs
and other barriers to trade and to the elimination of discriminatory treatment in
international trade relations,

Resolved, therefore, to develop an integrated, more viable and durable multilateral

trading system encompassing the General Agreement on Tariffs and Trade, the
results of past trade liberalization efforts, and all of the results of the Uruguay Round
of Multilateral Trade Negotiations,

Determined to preserve the basic principles and to further the objectives underlying
this multilateral trading system, . . . (emphasis supplied.)

Specific WTO Provisos

Protect Developing Countries

So too, the Solicitor General points out that pursuant to and consistent with the foregoing basic
principles, the WTO Agreement grants developing countries a more lenient treatment, giving their
domestic industries some protection from the rush of foreign competition. Thus, with respect to tariffs
in general, preferential treatment is given to developing countries in terms of the amount of tariff
reduction and the period within which the reduction is to be spread out. Specifically, GATT requires
an average tariff reduction rate of 36% for developed countries to be effected within a period of six
(6) years while developing countries — including the Philippines — are required to effect an average
tariff reduction of only 24% within ten (10) years.

In respect to domestic subsidy, GATT requires developed countries to reduce domestic support to
agricultural products by 20% over six (6) years, as compared to only 13% for developing countries to
be effected within ten (10) years.

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In regard to export subsidy for agricultural products, GATT requires developed countries to reduce
their budgetary outlays for export subsidy by 36% and export volumes receiving export subsidy
by 21% within a period of six (6) years. For developing countries, however, the reduction rate is
only two-thirds of that prescribed for developed countries and a longer period of ten (10) years within
which to effect such reduction.

Moreover, GATT itself has provided built-in protection from unfair foreign competition and trade
practices including anti-dumping measures, countervailing measures and safeguards against import
surges. Where local businesses are jeopardized by unfair foreign competition, the Philippines can
avail of these measures. There is hardly therefore any basis for the statement that under the WTO,
local industries and enterprises will all be wiped out and that Filipinos will be deprived of control of
the economy. Quite the contrary, the weaker situations of developing nations like the Philippines
have been taken into account; thus, there would be no basis to say that in joining the WTO, the
respondents have gravely abused their discretion. True, they have made a bold decision to steer the
ship of state into the yet uncharted sea of economic liberalization. But such decision cannot be set
aside on the ground of grave abuse of discretion, simply because we disagree with it or simply
because we believe only in other economic policies. As earlier stated, the Court in taking jurisdiction
of this case will not pass upon the advantages and disadvantages of trade liberalization as an
economic policy. It will only perform its constitutional duty of determining whether the Senate
committed grave abuse of discretion.

Constitution Does Not

Rule Out Foreign Competition

Furthermore, the constitutional policy of a "self-reliant and independent national economy" 35 does
not necessarily rule out the entry of foreign investments, goods and services. It contemplates neither
"economic seclusion" nor "mendicancy in the international community." As explained by
Constitutional Commissioner Bernardo Villegas, sponsor of this constitutional policy:

Economic self-reliance is a primary objective of a developing country that is keenly

aware of overdependence on external assistance for even its most basic needs. It
does not mean autarky or economic seclusion; rather, it means avoiding mendicancy
in the international community. Independence refers to the freedom from undue
foreign control of the national economy, especially in such strategic industries as in
the development of natural resources and public utilities. 36

The WTO reliance on "most favored nation," "national treatment," and "trade without discrimination"
cannot be struck down as unconstitutional as in fact they are rules of equality and reciprocity that
apply to all WTO members. Aside from envisioning a trade policy based on "equality and
reciprocity," 37 the fundamental law encourages industries that are "competitive in both domestic and
foreign markets," thereby demonstrating a clear policy against a sheltered domestic trade
environment, but one in favor of the gradual development of robust industries that can compete with
the best in the foreign markets. Indeed, Filipino managers and Filipino enterprises have shown
capability and tenacity to compete internationally. And given a free trade environment, Filipino
entrepreneurs and managers in Hongkong have demonstrated the Filipino capacity to grow and to
prosper against the best offered under a policy of laissez faire.

Constitution Favors Consumers,

Not Industries or Enterprises

The Constitution has not really shown any unbalanced bias in favor of any business or enterprise,
nor does it contain any specific pronouncement that Filipino companies should be pampered with a

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total proscription of foreign competition. On the other hand, respondents claim that WTO/GATT aims
to make available to the Filipino consumer the best goods and services obtainable anywhere in the
world at the most reasonable prices. Consequently, the question boils down to whether WTO/GATT
will favor the general welfare of the public at large.

Will adherence to the WTO treaty bring this ideal (of favoring the general welfare) to reality?

Will WTO/GATT succeed in promoting the Filipinos' general welfare because it will — as promised
by its promoters — expand the country's exports and generate more employment?

Will it bring more prosperity, employment, purchasing power and quality products at the most
reasonable rates to the Filipino public?

The responses to these questions involve "judgment calls" by our policy makers, for which they are
answerable to our people during appropriate electoral exercises. Such questions and the answers
thereto are not subject to judicial pronouncements based on grave abuse of discretion.

Constitution Designed to Meet

Future Events and Contingencies

No doubt, the WTO Agreement was not yet in existence when the Constitution was drafted and
ratified in 1987. That does not mean however that the Charter is necessarily flawed in the sense that
its framers might not have anticipated the advent of a borderless world of business. By the same
token, the United Nations was not yet in existence when the 1935 Constitution became effective. Did
that necessarily mean that the then Constitution might not have contemplated a diminution of the
absoluteness of sovereignty when the Philippines signed the UN Charter, thereby effectively
surrendering part of its control over its foreign relations to the decisions of various UN organs like the
Security Council?

It is not difficult to answer this question. Constitutions are designed to meet not only the vagaries of
contemporary events. They should be interpreted to cover even future and unknown circumstances.
It is to the credit of its drafters that a Constitution can withstand the assaults of bigots and infidels but
at the same time bend with the refreshing winds of change necessitated by unfolding events. As one
eminent political law writer and respected jurist 38 explains:

The Constitution must be quintessential rather than superficial, the root and not the
blossom, the base and frame-work only of the edifice that is yet to rise. It is but the
core of the dream that must take shape, not in a twinkling by mandate of our
delegates, but slowly "in the crucible of Filipino minds and hearts," where it will in
time develop its sinews and gradually gather its strength and finally achieve its
substance. In fine, the Constitution cannot, like the goddess Athena, rise full-grown
from the brow of the Constitutional Convention, nor can it conjure by mere fiat an
instant Utopia. It must grow with the society it seeks to re-structure and march apace
with the progress of the race, drawing from the vicissitudes of history the dynamism
and vitality that will keep it, far from becoming a petrified rule, a pulsing, living law
attuned to the heartbeat of the nation.

Third Issue: The WTO Agreement and Legislative Power

The WTO Agreement provides that "(e)ach Member shall ensure the conformity of its laws,
regulations and administrative procedures with its obligations as provided in the annexed
Agreements." 39 Petitioners maintain that this undertaking "unduly limits, restricts and impairs

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Philippine sovereignty, specifically the legislative power which under Sec. 2, Article VI of the 1987
Philippine Constitution is vested in the Congress of the Philippines. It is an assault on the sovereign
powers of the Philippines because this means that Congress could not pass legislation that will be
good for our national interest and general welfare if such legislation will not conform with the WTO
Agreement, which not only relates to the trade in goods . . . but also to the flow of investments and
money . . . as well as to a whole slew of agreements on socio-cultural matters . . . 40

More specifically, petitioners claim that said WTO proviso derogates from the power to tax, which is
lodged in the Congress. 41 And while the Constitution allows Congress to authorize the President to
fix tariff rates, import and export quotas, tonnage and wharfage dues, and other duties or imposts,
such authority is subject to "specified limits and . . . such limitations and restrictions" as Congress
may provide, 42 as in fact it did under Sec. 401 of the Tariff and Customs Code.

Sovereignty Limited by
International Law and Treaties

This Court notes and appreciates the ferocity and passion by which petitioners stressed their
arguments on this issue. However, while sovereignty has traditionally been deemed absolute and all-
encompassing on the domestic level, it is however subject to restrictions and limitations voluntarily
agreed to by the Philippines, expressly or impliedly, as a member of the family of nations.
Unquestionably, the Constitution did not envision a hermit-type isolation of the country from the rest
of the world. In its Declaration of Principles and State Policies, the Constitution "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." 43 By the doctrine of
incorporation, the country is bound by generally accepted principles of international law, which are
considered to be automatically part of our own laws. 44 One of the oldest and most fundamental rules
in international law is pacta sunt servanda — international agreements must be performed in good
faith. "A treaty engagement is not a mere moral obligation but creates a legally binding obligation on
the parties . . . A state which has contracted valid international obligations is bound to make in its
legislations such modifications as may be necessary to ensure the fulfillment of the obligations
undertaken." 45

By their inherent nature, treaties really limit or restrict the absoluteness of sovereignty. By their
voluntary act, nations may surrender some aspects of their state power in exchange for greater
benefits granted by or derived from a convention or pact. After all, states, like individuals, live with
coequals, and in pursuit of mutually covenanted objectives and benefits, they also commonly agree
to limit the exercise of their otherwise absolute rights. Thus, treaties have been used to record
agreements between States concerning such widely diverse matters as, for example, the lease of
naval bases, the sale or cession of territory, the termination of war, the regulation of conduct of
hostilities, the formation of alliances, the regulation of commercial relations, the settling of claims, the
laying down of rules governing conduct in peace and the establishment of international
organizations. 46 The sovereignty of a state therefore cannot in fact and in reality be considered
absolute. Certain restrictions enter into the picture: (1) limitations imposed by the very nature of
membership in the family of nations and (2) limitations imposed by treaty stipulations. As aptly put by
John F. Kennedy, "Today, no nation can build its destiny alone. The age of self-sufficient nationalism
is over. The age of interdependence is here." 47

UN Charter and Other Treaties

Limit Sovereignty

Thus, when the Philippines joined the United Nations as one of its 51 charter members, it consented
to restrict its sovereign rights under the "concept of sovereignty as auto-limitation."47-A Under Article

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2 of the UN Charter, "(a)ll members shall give the United Nations every assistance in any action it
takes in accordance with the present Charter, and shall refrain from giving assistance to any state
against which the United Nations is taking preventive or enforcement action." Such assistance
includes payment of its corresponding share not merely in administrative expenses but also in
expenditures for the peace-keeping operations of the organization. In its advisory opinion of July 20,
1961, the International Court of Justice held that money used by the United Nations Emergency
Force in the Middle East and in the Congo were "expenses of the United Nations" under Article 17,
paragraph 2, of the UN Charter. Hence, all its members must bear their corresponding share in such
expenses. In this sense, the Philippine Congress is restricted in its power to appropriate. It is
compelled to appropriate funds whether it agrees with such peace-keeping expenses or not. So too,
under Article 105 of the said Charter, the UN and its representatives enjoy diplomatic privileges and
immunities, thereby limiting again the exercise of sovereignty of members within their own territory.
Another example: although "sovereign equality" and "domestic jurisdiction" of all members are set
forth as underlying principles in the UN Charter, such provisos are however subject to enforcement
measures decided by the Security Council for the maintenance of international peace and security
under Chapter VII of the Charter. A final example: under Article 103, "(i)n the event of a conflict
between the obligations of the Members of the United Nations under the present Charter and their
obligations under any other international agreement, their obligation under the present charter shall
prevail," thus unquestionably denying the Philippines — as a member — the sovereign power to
make a choice as to which of conflicting obligations, if any, to honor.

Apart from the UN Treaty, the Philippines has entered into many other international pacts — both
bilateral and multilateral — that involve limitations on Philippine sovereignty. These are enumerated
by the Solicitor General in his Compliance dated October 24, 1996, as follows:

(a) Bilateral convention with the United States regarding taxes on income, where the
Philippines agreed, among others, to exempt from tax, income received in the
Philippines by, among others, the Federal Reserve Bank of the United States, the
Export/Import Bank of the United States, the Overseas Private Investment
Corporation of the United States. Likewise, in said convention, wages, salaries and
similar remunerations paid by the United States to its citizens for labor and personal
services performed by them as employees or officials of the United States are
exempt from income tax by the Philippines.

(b) Bilateral agreement with Belgium, providing, among others, for the avoidance of
double taxation with respect to taxes on income.

(c) Bilateral convention with the Kingdom of Sweden for the avoidance of double
taxation.

(d) Bilateral convention with the French Republic for the avoidance of double
taxation.

(e) Bilateral air transport agreement with Korea where the Philippines agreed to
exempt from all customs duties, inspection fees and other duties or taxes aircrafts of
South Korea and the regular equipment, spare parts and supplies arriving with said
aircrafts.

(f) Bilateral air service agreement with Japan, where the Philippines agreed to
exempt from customs duties, excise taxes, inspection fees and other similar duties,
taxes or charges fuel, lubricating oils, spare parts, regular equipment, stores on
board Japanese aircrafts while on Philippine soil.

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 (g) Bilateral air service agreement with Belgium where the Philippines granted
Belgian air carriers the same privileges as those granted to Japanese and Korean air
carriers under separate air service agreements.

(h) Bilateral notes with Israel for the abolition of transit and visitor visas where the
Philippines exempted Israeli nationals from the requirement of obtaining transit or
visitor visas for a sojourn in the Philippines not exceeding 59 days.

(i) Bilateral agreement with France exempting French nationals from the requirement
of obtaining transit and visitor visa for a sojourn not exceeding 59 days.

(j) Multilateral Convention on Special Missions, where the Philippines agreed that
premises of Special Missions in the Philippines are inviolable and its agents can not
enter said premises without consent of the Head of Mission concerned. Special
Missions are also exempted from customs duties, taxes and related charges.

(k) Multilateral convention on the Law of Treaties. In this convention, the Philippines
agreed to be governed by the Vienna Convention on the Law of Treaties.

(l) Declaration of the President of the Philippines accepting compulsory jurisdiction of

the International Court of Justice. The International Court of Justice has jurisdiction in
all legal disputes concerning the interpretation of a treaty, any question of
international law, the existence of any fact which, if established, would constitute a
breach "of international obligation."

In the foregoing treaties, the Philippines has effectively agreed to limit the exercise of its sovereign
powers of taxation, eminent domain and police power. The underlying consideration in this partial
surrender of sovereignty is the reciprocal commitment of the other contracting states in granting the
same privilege and immunities to the Philippines, its officials and its citizens. The same reciprocity
characterizes the Philippine commitments under WTO-GATT.

International treaties, whether relating to nuclear disarmament, human rights, the

environment, the law of the sea, or trade, constrain domestic political sovereignty
through the assumption of external obligations. But unless anarchy in international
relations is preferred as an alternative, in most cases we accept that the benefits of
the reciprocal obligations involved outweigh the costs associated with any loss of
political sovereignty. (T)rade treaties that structure relations by reference to durable,
well-defined substantive norms and objective dispute resolution procedures reduce
the risks of larger countries exploiting raw economic power to bully smaller countries,
by subjecting power relations to some form of legal ordering. In addition, smaller
countries typically stand to gain disproportionately from trade liberalization. This is
due to the simple fact that liberalization will provide access to a larger set of potential
new trading relationship than in case of the larger country gaining enhanced success
to the smaller country's market. 48

The point is that, as shown by the foregoing treaties, a portion of sovereignty may be waived without
violating the Constitution, based on the rationale that the Philippines "adopts the generally accepted
principles of international law as part of the law of the land and adheres to the policy of . . .
cooperation and amity with all nations."

Fourth Issue: The WTO Agreement and Judicial Power

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Petitioners aver that paragraph 1, Article 34 of the General Provisions and Basic Principles of the
Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) 49 intrudes on the
power of the Supreme Court to promulgate rules concerning pleading, practice and procedures. 50

To understand the scope and meaning of Article 34, TRIPS, 51 it will be fruitful to restate its full text as
follows:

Article 34

Process Patents: Burden of Proof

1. For the purposes of civil proceedings in respect of the infringement of the rights of
the owner referred to in paragraph 1 (b) of Article 28, if the subject matter of a patent
is a process for obtaining a product, the judicial authorities shall have the authority to
order the defendant to prove that the process to obtain an identical product is
different from the patented process. Therefore, Members shall provide, in at least
one of the following circumstances, that any identical product when produced without
the consent of the patent owner shall, in the absence of proof to the contrary, be
deemed to have been obtained by the patented process:

(a) if the product obtained by the patented process is new;

(b) if there is a substantial likelihood that the identical product was

made by the process and the owner of the patent has been unable
through reasonable efforts to determine the process actually used.

2. Any Member shall be free to provide that the burden of proof indicated in
paragraph 1 shall be on the alleged infringer only if the condition referred to in
subparagraph (a) is fulfilled or only if the condition referred to in subparagraph (b) is
fulfilled.

3. In the adduction of proof to the contrary, the legitimate interests of defendants in

protecting their manufacturing and business secrets shall be taken into account.

From the above, a WTO Member is required to provide a rule of disputable (not the words "in the
absence of proof to the contrary") presumption that a product shown to be identical to one produced
with the use of a patented process shall be deemed to have been obtained by the (illegal) use of the
said patented process, (1) where such product obtained by the patented product is new, or (2) where
there is "substantial likelihood" that the identical product was made with the use of the said patented
process but the owner of the patent could not determine the exact process used in obtaining such
identical product. Hence, the "burden of proof" contemplated by Article 34 should actually be
understood as the duty of the alleged patent infringer to overthrow such presumption. Such burden,
properly understood, actually refers to the "burden of evidence" (burden of going forward) placed on
the producer of the identical (or fake) product to show that his product was produced without the use
of the patented process.

The foregoing notwithstanding, the patent owner still has the "burden of proof" since, regardless of
the presumption provided under paragraph 1 of Article 34, such owner still has to introduce evidence
of the existence of the alleged identical product, the fact that it is "identical" to the genuine one
produced by the patented process and the fact of "newness" of the genuine product or the fact of
"substantial likelihood" that the identical product was made by the patented process.

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The foregoing should really present no problem in changing the rules of evidence as the present law
on the subject, Republic Act No. 165, as amended, otherwise known as the Patent Law, provides a
similar presumption in cases of infringement of patented design or utility model, thus:

Sec. 60. Infringement. — Infringement of a design patent or of a patent for utility

model shall consist in unauthorized copying of the patented design or utility model for
the purpose of trade or industry in the article or product and in the making, using or
selling of the article or product copying the patented design or utility model. Identity
or substantial identity with the patented design or utility model shall constitute
evidence of copying. (emphasis supplied)

Moreover, it should be noted that the requirement of Article 34 to provide a disputable presumption
applies only if (1) the product obtained by the patented process in NEW or (2) there is a substantial
likelihood that the identical product was made by the process and the process owner has not been
able through reasonable effort to determine the process used. Where either of these two provisos
does not obtain, members shall be free to determine the appropriate method of implementing the
provisions of TRIPS within their own internal systems and processes.

By and large, the arguments adduced in connection with our disposition of the third issue —
derogation of legislative power — will apply to this fourth issue also. Suffice it to say that the
reciprocity clause more than justifies such intrusion, if any actually exists. Besides, Article 34 does
not contain an unreasonable burden, consistent as it is with due process and the concept of
adversarial dispute settlement inherent in our judicial system.

So too, since the Philippine is a signatory to most international conventions on patents, trademarks
and copyrights, the adjustment in legislation and rules of procedure will not be substantial. 52

Fifth Issue: Concurrence Only in the WTO Agreement and

Not in Other Documents Contained in the Final Act

Petitioners allege that the Senate concurrence in the WTO Agreement and its annexes — but not in
the other documents referred to in the Final Act, namely the Ministerial Declaration and Decisions
and the Understanding on Commitments in Financial Services — is defective and insufficient and
thus constitutes abuse of discretion. They submit that such concurrence in the WTO
Agreement alone is flawed because it is in effect a rejection of the Final Act, which in turn was the
document signed by Secretary Navarro, in representation of the Republic upon authority of the
President. They contend that the second letter of the President to the Senate 53 which enumerated
what constitutes the Final Act should have been the subject of concurrence of the Senate.

"A final act, sometimes called protocol de cloture, is an instrument which records the winding up of
the proceedings of a diplomatic conference and usually includes a reproduction of the texts of
treaties, conventions, recommendations and other acts agreed upon and signed by the
plenipotentiaries attending the conference." 54 It is not the treaty itself. It is rather a summary of the
proceedings of a protracted conference which may have taken place over several years. The text of
the "Final Act Embodying the Results of the Uruguay Round of Multilateral Trade Negotiations" is
contained in just one page 55 in Vol. I of the 36-volume Uruguay Round of Multilateral Trade
Negotiations. By signing said Final Act, Secretary Navarro as representative of the Republic of the
Philippines undertook:

(a) to submit, as appropriate, the WTO Agreement for the consideration of their
respective competent authorities with a view to seeking approval of the Agreement in
accordance with their procedures; and

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 (b) to adopt the Ministerial Declarations and Decisions.

The assailed Senate Resolution No. 97 expressed concurrence in exactly what the Final Act
required from its signatories, namely, concurrence of the Senate in the WTO Agreement.

The Ministerial Declarations and Decisions were deemed adopted without need for ratification. They
were approved by the ministers by virtue of Article XXV: 1 of GATT which provides that
representatives of the members can meet "to give effect to those provisions of this Agreement which
invoke joint action, and generally with a view to facilitating the operation and furthering the objectives
of this Agreement." 56

The Understanding on Commitments in Financial Services also approved in Marrakesh does not
apply to the Philippines. It applies only to those 27 Members which "have indicated in their
respective schedules of commitments on standstill, elimination of monopoly, expansion of operation
of existing financial service suppliers, temporary entry of personnel, free transfer and processing of
information, and national treatment with respect to access to payment, clearing systems and
refinancing available in the normal course of business."57

On the other hand, the WTO Agreement itself expresses what multilateral agreements are deemed
included as its integral parts, 58 as follows:

Article II

Scope of the WTO

1. The WTO shall provide the common institutional frame-work for the conduct of
trade relations among its Members in matters to the agreements and associated
legal instruments included in the Annexes to this Agreement.

2. The Agreements and associated legal instruments included in Annexes 1, 2, and

3, (hereinafter referred to as "Multilateral Agreements") are integral parts of this
Agreement, binding on all Members.

3. The Agreements and associated legal instruments included in Annex 4

(hereinafter referred to as "Plurilateral Trade Agreements") are also part of this
Agreement for those Members that have accepted them, and are binding on those
Members. The Plurilateral Trade Agreements do not create either obligation or rights
for Members that have not accepted them.

4. The General Agreement on Tariffs and Trade 1994 as specified in annex 1A

(hereinafter referred to as "GATT 1994") is legally distinct from the General
Agreement on Tariffs and Trade, dated 30 October 1947, annexed to the Final Act
adopted at the conclusion of the Second Session of the Preparatory Committee of
the United Nations Conference on Trade and Employment, as subsequently rectified,
amended or modified (hereinafter referred to as "GATT 1947").

It should be added that the Senate was well-aware of what it was concurring in as shown by the
members' deliberation on August 25, 1994. After reading the letter of President Ramos dated August
11, 1994, 59 the senators
of the Republic minutely dissected what the Senate was concurring in, as follows: 60

151
THE CHAIRMAN: Yes. Now, the question of the validity of the submission came up
in the first day hearing of this Committee yesterday. Was the observation made by
Senator Tañada that what was submitted to the Senate was not the agreement on
establishing the World Trade Organization by the final act of the Uruguay Round
which is not the same as the agreement establishing the World Trade Organization?
And on that basis, Senator Tolentino raised a point of order which, however, he
agreed to withdraw upon understanding that his suggestion for an alternative solution
at that time was acceptable. That suggestion was to treat the proceedings of the
Committee as being in the nature of briefings for Senators until the question of the
submission could be clarified.

And so, Secretary Romulo, in effect, is the President submitting a new . . . is he

making a new submission which improves on the clarity of the first submission?

MR. ROMULO: Mr. Chairman, to make sure that it is clear cut and there should be
no misunderstanding, it was his intention to clarify all matters by giving this letter.

THE CHAIRMAN: Thank you.

Can this Committee hear from Senator Tañada and later on Senator Tolentino since
they were the ones that raised this question yesterday?

Senator Tañada, please.

SEN. TAÑADA: Thank you, Mr. Chairman.

Based on what Secretary Romulo has read, it would now clearly appear that what is
being submitted to the Senate for ratification is not the Final Act of the Uruguay
Round, but rather the Agreement on the World Trade Organization as well as the
Ministerial Declarations and Decisions, and the Understanding and Commitments in
Financial Services.

I am now satisfied with the wording of the new submission of President Ramos.

SEN. TAÑADA. . . . of President Ramos, Mr. Chairman.

THE CHAIRMAN. Thank you, Senator Tañada. Can we hear from Senator
Tolentino? And after him Senator Neptali Gonzales and Senator Lina.

SEN. TOLENTINO, Mr. Chairman, I have not seen the new submission actually
transmitted to us but I saw the draft of his earlier, and I think it now complies with the
provisions of the Constitution, and with the Final Act itself . The Constitution does not
require us to ratify the Final Act. It requires us to ratify the Agreement which is now
being submitted. The Final Act itself specifies what is going to be submitted to with
the governments of the participants.

In paragraph 2 of the Final Act, we read and I quote:

By signing the present Final Act, the representatives agree: (a) to submit as
appropriate the WTO Agreement for the consideration of the respective competent

152
 authorities with a view to seeking approval of the Agreement in accordance with their
procedures.

In other words, it is not the Final Act that was agreed to be submitted to the
governments for ratification or acceptance as whatever their constitutional
procedures may provide but it is the World Trade Organization Agreement. And if
that is the one that is being submitted now, I think it satisfies both the Constitution
and the Final Act itself .

Thank you, Mr. Chairman.

THE CHAIRMAN. Thank you, Senator Tolentino, May I call on Senator Gonzales.

SEN. GONZALES. Mr. Chairman, my views on this matter are already a matter of
record. And they had been adequately reflected in the journal of yesterday's session
and I don't see any need for repeating the same.

Now, I would consider the new submission as an act ex abudante cautela.

THE CHAIRMAN. Thank you, Senator Gonzales. Senator Lina, do you want to make
any comment on this?

SEN. LINA. Mr. President, I agree with the observation just made by Senator
Gonzales out of the abundance of question. Then the new submission is, I believe,
stating the obvious and therefore I have no further comment to make.

Epilogue

In praying for the nullification of the Philippine ratification of the WTO Agreement, petitioners are
invoking this Court's constitutionally imposed duty "to determine whether or not there has been grave
abuse of discretion amounting to lack or excess of jurisdiction" on the part of the Senate in giving its
concurrence therein via Senate Resolution No. 97. Procedurally, a writ of certiorari grounded on
grave abuse of discretion may be issued by the Court under Rule 65 of the Rules of Court when it is
amply shown that petitioners have no other plain, speedy and adequate remedy in the ordinary
course of law.

By grave abuse of discretion is meant such capricious and whimsical exercise of judgment as is
equivalent to lack of jurisdiction. 61 Mere abuse of discretion is not enough. It must be grave abuse of
discretion as when the power is exercised in an arbitrary or despotic manner by reason of passion or
personal hostility, and must be so patent and so gross as to amount to an evasion of a positive duty
or to a virtual refusal to perform the duty enjoined or to act at all in contemplation of law. 62 Failure on
the part of the petitioner to show grave abuse of discretion will result in the dismissal of the petition. 63

In rendering this Decision, this Court never forgets that the Senate, whose act is under review, is
one of two sovereign houses of Congress and is thus entitled to great respect in its actions. It is itself
a constitutional body independent and coordinate, and thus its actions are presumed regular and
done in good faith. Unless convincing proof and persuasive arguments are presented to overthrow
such presumptions, this Court will resolve every doubt in its favor. Using the foregoing well-accepted
definition of grave abuse of discretion and the presumption of regularity in the Senate's processes,
this Court cannot find any cogent reason to impute grave abuse of discretion to the Senate's

153
exercise of its power of concurrence in the WTO Agreement granted it by Sec. 21 of Article VII of the
Constitution. 64

It is true, as alleged by petitioners, that broad constitutional principles require the State to develop an
independent national economy effectively controlled by Filipinos; and to protect and/or prefer Filipino
labor, products, domestic materials and locally produced goods. But it is equally true that such
principles — while serving as judicial and legislative guides — are not in themselves sources of
causes of action. Moreover, there are other equally fundamental constitutional principles relied upon
by the Senate which mandate the pursuit of a "trade policy that serves the general welfare and
utilizes all forms and arrangements of exchange on the basis of equality and reciprocity" and the
promotion of industries "which are competitive in both domestic and foreign markets," thereby
justifying its acceptance of said treaty. So too, the alleged impairment of sovereignty in the exercise
of legislative and judicial powers is balanced by the adoption of the generally accepted principles of
international law as part of the law of the land and the adherence of the Constitution to the policy of
cooperation and amity with all nations.

That the Senate, after deliberation and voting, voluntarily and overwhelmingly gave its consent to the
WTO Agreement thereby making it "a part of the law of the land" is a legitimate exercise of its
sovereign duty and power. We find no "patent and gross" arbitrariness or despotism "by reason of
passion or personal hostility" in such exercise. It is not impossible to surmise that this Court, or at
least some of its members, may even agree with petitioners that it is more advantageous to the
national interest to strike down Senate Resolution No. 97. But that is not a legal reason to attribute
grave abuse of discretion to the Senate and to nullify its decision. To do so would constitute grave
abuse in the exercise of our own judicial power and duty. Ineludably, what the Senate did was a
valid exercise of its authority. As to whether such exercise was wise, beneficial or viable is outside
the realm of judicial inquiry and review. That is a matter between the elected policy makers and the
people. As to whether the nation should join the worldwide march toward trade liberalization and
economic globalization is a matter that our people should determine in electing their policy makers.
After all, the WTO Agreement allows withdrawal of membership, should this be the political desire of
a member.

The eminent futurist John Naisbitt, author of the best seller Megatrends, predicts an Asian
Renaissance 65 where "the East will become the dominant region of the world economically,
politically and culturally in the next century." He refers to the "free market" espoused by WTO as the
"catalyst" in this coming Asian ascendancy. There are at present about 31 countries including China,
Russia and Saudi Arabia negotiating for membership in the WTO. Notwithstanding objections
against possible limitations on national sovereignty, the WTO remains as the only viable structure for
multilateral trading and the veritable forum for the development of international trade law. The
alternative to WTO is isolation, stagnation, if not economic self-destruction. Duly enriched with
original membership, keenly aware of the advantages and disadvantages of globalization with its on-
line experience, and endowed with a vision of the future, the Philippines now straddles the
crossroads of an international strategy for economic prosperity and stability in the new millennium.
Let the people, through their duly authorized elected officers, make their free choice.

WHEREFORE, the petition is DISMISSED for lack of merit.

SO ORDERED.

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.R. No. 151445 April 11, 2002

ARTHUR D. LIM and PAULINO R. ERSANDO, petitioners,

vs.
HONORABLE EXECUTIVE SECRETARY as alter ego of HER EXCELLENCEY GLORIA
MACAPAGAL-ARROYO, and HONORABLE ANGELO REYES in his capacity as Secretary of
National Defense, respondents.

----------------------------------------

SANLAKAS and PARTIDO NG MANGGAGAWA, petitioners-intervenors,

vs.
GLORIA MACAPAGA-ARROYO, ALBERTO ROMULO, ANGELO REYES, respondents.

DISSENTING OPINION

SEPARATE OPINION

DE LEON, JR., J.:

This case involves a petition for certiorari and prohibition as well as a petition-in-intervention, praying
that respondents be restrained from proceeding with the so-called "Balikatan 02-1" and that after due
notice and hearing, that judgment be rendered issuing a permanent writ of injunction and/or
prohibition against the deployment of U.S. troops in Basilan and Mindanao for being illegal and in
violation of the Constitution.

The facts are as follows:

Beginning January of this year 2002, personnel from the armed forces of the United States of
America started arriving in Mindanao to take part, in conjunction with the Philippine military, in
"Balikatan 02-1." These so-called "Balikatan" exercises are the largest combined training operations
involving Filipino and American troops. In theory, they are a simulation of joint military maneuvers
pursuant to the Mutual Defense Treaty,1 a bilateral defense agreement entered into by the
Philippines and the United States in 1951.

Prior to the year 2002, the last "Balikatan" was held in 1995. This was due to the paucity of any
formal agreement relative to the treatment of United States personnel visiting the Philippines. In the
meantime, the respective governments of the two countries agreed to hold joint exercises on a
reduced scale. The lack of consensus was eventually cured when the two nations concluded the
Visiting Forces Agreement (V FA) in 1999.

The entry of American troops into Philippine soil is proximately rooted in the international anti-
terrorism campaign declared by President George W. Bush in reaction to the tragic events that
occurred on September 11, 2001. On that day, three (3) commercial aircrafts were hijacked, flown
and smashed into the twin towers of the World Trade Center in New York City and the Pentagon
building in Washington, D.C. by terrorists with alleged links to the al-Qaeda ("the Base"), a Muslim
extremist organization headed by the infamous Osama bin Laden. Of no comparable historical

155
parallels, these acts caused billions of dollars worth of destruction of property and incalculable loss
of hundreds of lives.

On February 1, 2002, petitioners Arthur D. Lim and Paulino P. Ersando filed this petition for certiorari
and prohibition, attacking the constitutionality of the joint exercise.2 They were joined subsequently by
SANLAKAS and PARTIDO NG MANGGAGAWA, both party-Iist organizations, who filed a petition-
in-intervention on February 11, 2002.

Lim and Ersando filed suit in their capacities as citizens, lawyers and taxpayers. SANLAKAS and
PARTIDO, on the other hand, aver that certain members of their organization are residents of
Zamboanga and Sulu, and hence will be directly affected by the operations being conducted in
Mindanao. They likewise pray for a relaxation on the rules relative to locus standi citing the
unprecedented importance of the issue involved.

On February 71 2002 the Senate conducted a hearing on the "Balikatan" exercise wherein Vice-
President Teofisto T. Guingona, Jr., who is concurrently Secretary of Foreign. Affairs, presented the
Draft Terms of Reference (TOR).3 Five days later, he approved the TOR, which we quote hereunder:

I. POLICY LEVEL

1. The Exercise shall be consistent with the Philippine Constitution and all its activities shall
be in consonance with the laws of the land and the provisions of the RP-US Visiting Forces
Agreement (VFA).

2. The conduct of this training Exercise is in accordance with pertinent United Nations
resolutions against global terrorism as understood by the respective parties.

3. No permanent US basing and support facilities shall be established. Temporary structures

such as those for troop billeting, classroom instruction and messing may be set up for use by
RP and US Forces during the Exercise.

4. The Exercise shall be implemented jointly by RP and US Exercise Co-Directors under the
authority of the Chief of Staff, AFP. In no instance will US Forces operate independently
during field training exercises (FTX). AFP and US Unit Commanders will retain command
over their respective forces under the overall authority of the Exercise Co-Directors. RP and
US participants shall comply with operational instructions of the AFP during the FTX.

5. The exercise shall be conducted and completed within a period of not more than six
months, with the projected participation of 660 US personnel and 3,800 RP Forces. The
Chief of Staff, AFP shall direct the Exercise Co-Directors to wind up and terminate the
Exercise and other activities within the six month Exercise period.

6. The Exercise is a mutual counter-terrorism advising, assisting and training Exercise

relative to Philippine efforts against the ASG, and will be conducted on the Island of Basilan.
Further advising, assisting and training exercises shall be conducted in Malagutay and the
Zamboanga area. Related activities in Cebu will be for support of the Exercise.

7. Only 160 US Forces organized in 12-man Special Forces Teams shall be deployed with
AFP field, commanders. The US teams shall remain at the Battalion Headquarters and,
when approved, Company Tactical headquarters where they can observe and assess the
performance of the AFP Forces.

156
8. US exercise participants shall not engage in combat, without prejudice to their right of self-
defense.

9. These terms of Reference are for purposes of this Exercise only and do not create
additional legal obligations between the US Government and the Republic of the Philippines.

II. EXERCISE LEVEL

1. TRAINING

a. The Exercise shall involve the conduct of mutual military assisting, advising and
training of RP and US Forces with the primary objective of enhancing the operational
capabilities of both forces to combat terrorism.

b. At no time shall US Forces operate independently within RP territory.

c. Flight plans of all aircraft involved in the exercise will comply with the local air
traffic regulations.

2. ADMINISTRATION & LOGISTICS

a. RP and US participants shall be given a country and area briefing at the start of
the Exercise. This briefing shall acquaint US Forces on the culture and sensitivities of
the Filipinos and the provisions of the VF A. The briefing shall also promote the full
cooperation on the part of the RP and US participants for the successful conduct of
the Exercise.

b. RP and US participating forces may share, in accordance with their respective

laws and regulations, in the use of their resources, equipment and other assets. They
will use their respective logistics channels.

c. Medical evaluation shall be jointly planned and executed utilizing RP and US

assets and resources.

d. Legal liaison officers from each respective party shall be appointed by the
Exercise Directors.

3. PUBLIC AFFAIRS

a. Combined RP-US Information Bureaus shall be established at the Exercise

Directorate in Zamboanga City and at GHQ, AFP in Camp Aguinaldo, Quezon City.

b. Local media relations will be the concern of the AFP and all public affairs
guidelines shall be jointly developed by RP and US Forces.

c. Socio-Economic Assistance Projects shall be planned and executed jointly by RP

and US Forces in accordance with their respective laws and regulations, and in
consultation with community and local government officials.

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Contemporaneously, Assistant Secretary for American Affairs Minerva Jean A. Falcon and United
States Charge d' Affaires Robert Fitts signed the Agreed Minutes of the discussion between the
Vice-President and Assistant Secretary Kelly.4

Petitioners Lim and Ersando present the following arguments:

THE PHILIPPINES AND THE UNITED STATES SIGNED THE MUTUAL DEFENSE
TREATY (MDT) in 1951 TO PROVIDE MUTUAL MILITARY ASSIST ANCE IN
ACCORDANCE WITH THE 'CONSTITUTIONAL PROCESSE-S' OF EACH COUNTRY
ONLY IN THE CASE OF AN ARMED ATTACK BY AN EXTERNAL AGGRESSOR,
MEANING A THIRD COUNTRY AGAINST ONE OF THEM.

BY NO STRETCH OF THE IMAGINA TION CAN IT BE SAID THAT THE ABU SAYYAF
BANDITS IN BASILAN CONSTITUTE AN EXTERNAL ARMED FORCE THAT HAS
SUBJECT THE PHILIPPINES TO AN ARMED EXTERNAL ATTACK TO WARRANT U.S.
MILITARY ASSISTANCE UNDER THE MDT OF 1951.

II

NEITHER DOES THE VFA OF 1999 AUTHORIZE AMERICAN SOLDIERS TO ENGAGE IN

COMBAT OPERATIONS IN PHILIPPINE TERRITORY, NOT EVEN TO FIRE BACK "IF
FIRED UPON".

Substantially the same points are advanced by petitioners SANLAKAS and PARTIDO.

In his Comment, the Solicitor General points to infirmities in the petitions regarding, inter alia, Lim
and Ersando's standing to file suit, the prematurity of the action, as well as the impropriety of availing
of certiorari to ascertain a question of fact. Anent their locus standi, the Solicitor General argues
that first, they may not file suit in their capacities as, taxpayers inasmuch as it has not been shown
that "Balikatan 02-1 " involves the exercise of Congress' taxing or spending powers. Second, their
being lawyers does not invest them with sufficient personality to initiate the case, citing our ruling
in Integrated Bar of the Philippines v. Zamora.5 Third, Lim and Ersando have failed to demonstrate
the requisite showing of direct personal injury. We agree.

It is also contended that the petitioners are indulging in speculation. The Solicitor General is of the
view that since the Terms of Reference are clear as to the extent and duration of "Balikatan 02-1,"
the issues raised by petitioners are premature, as they are based only on a fear of future violation of
the Terms of Reference. Even petitioners' resort to a special civil action for certiorari is assailed on
the ground that the writ may only issue on the basis of established facts.

Apart from these threshold issues, the Solicitor General claims that there is actually no question of
constitutionality involved. The true object of the instant suit, it is said, is to obtain an interpretation of
the V FA. The Solicitor General asks that we accord due deference to the executive determination
that "Balikatan 02-1" is covered by the VFA, considering the President's monopoly in the field of
foreign relations and her role as commander-in-chief of the Philippine armed forces.

Given the primordial importance of the issue involved, it will suffice to reiterate our view on this point
in a related case:

158
 Notwithstanding, in view of the paramount importance and the constitutional
significance of the issues raised in the petitions, this Court, in the exercise of its
sound discretion, brushes aside the procedural barrier and takes cognizance of the
petitions, as we have done in the early Emergency Powers Cases, where we had
occasion to rule:

'x x x ordinary citizens and taxpayers were allowed to question the constitutionality of
several executive orders issued by President Quirino although they were involving
only an indirect and general interest shared in common with the public. The Court
dismissed the objection that they were not proper parties and ruled
that 'transcendental importance to the public of these cases demands that they
be settled promptly and definitely, brushing aside, if we must, technicalities of
procedure.' We have since then applied the exception in many other cases. [citation
omitted]

This principle was reiterated in the subsequent cases of Gonzales vs. COMELEC, Daza vs.
Singson, and Basco vs. Phil, Amusement and Gaming Corporation, where we
emphatically held:

Considering however the importance to the public of the case at bar, and in keeping
with the Court's duty, under the 1987 Constitution, to determine whether or not the
other branches of the government have kept themselves within the limits of the
Constitution and the laws that they have not abused the discretion given to them, the
Court has brushed aside technicalities of procedure and has taken cognizance of this
petition. xxx'

Again, in the more recent case of Kilosbayan vs. Guingona, Jr., this Court ruled that in
cases of transcendental importance, the Court may relax the standing requirements and
allow a suit to prosper even where there is no direct injury to the party claiming the
right of judicial review.

Although courts generally avoid having to decide a constitutional question based on the
doctrine of separation of powers, which enjoins upon the department of the government a
becoming respect for each other's act, this Court nevertheless resolves to take cognizance
of the instant petition.6

Hence, we treat with similar dispatch the general objection to the supposed prematurity of the action.
At any rate, petitioners' concerns on the lack of any specific regulation on the latitude of activity US
personnel may undertake and the duration of their stay has been addressed in the Terms of
Reference.

The holding of "Balikatan 02-1" must be studied in the framework of the treaty antecedents to which
the Philippines bound itself. The first of these is the Mutual Defense Treaty (MDT, for brevity). The
MDT has been described as the "core" of the defense relationship between the Philippines and its
traditional ally, the United States. Its aim is to enhance the strategic and technological capabilities of
our armed forces through joint training with its American counterparts; the "Balikatan" is the largest
such training exercise directly supporting the MDT's objectives. It is this treaty to which the V FA
adverts and the obligations thereunder which it seeks to reaffirm.

The lapse of the US-Philippine Bases Agreement in 1992 and the decision not to renew it created a
vacuum in US-Philippine defense relations, that is, until it was replaced by the Visiting Forces
Agreement. It should be recalled that on October 10, 2000, by a vote of eleven to three, this Court

159
upheld the validity of the VFA.7 The V FA provides the "regulatory mechanism" by which "United
States military and civilian personnel [may visit] temporarily in the Philippines in connection with
activities approved by the Philippine Government." It contains provisions relative to entry and
departure of American personnel, driving and vehicle registration, criminal jurisdiction, claims,
importation and exportation, movement of vessels and aircraft, as well as the duration of the
agreement and its termination. It is the VFA which gives continued relevance to the MDT despite the
passage of years. Its primary goal is to facilitate the promotion of optimal cooperation between
American and Philippine military forces in the event of an attack by a common foe.

The first question that should be addressed is whether "Balikatan 02-1" is covered by the Visiting
Forces Agreement. To resolve this, it is necessary to refer to the V FA itself: Not much help can be
had therefrom, unfortunately, since the terminology employed is itself the source of the problem. The
VFA permits United States personnel to engage, on an impermanent basis, in "activities," the exact
meaning of which was left undefined. The expression is ambiguous, permitting a wide scope of
undertakings subject only to the approval of the Philippine government.8 The sole encumbrance
placed on its definition is couched in the negative, in that United States personnel must "abstain from
any activity inconsistent with the spirit of this agreement, and in particular, from any political
activity."9 All other activities, in other words, are fair game.

We are not left completely unaided, however. The Vienna Convention on the Law of Treaties, which
contains provisos governing interpretations of international agreements, state:

SECTION 3. INTERPRETATION OF TREATIES

Article 31

General rule of interpretation

1. A treaty shall be interpreted in good faith ill accordance with the ordinary meaning to be
given to the tenus of the treaty in their context and in the light of its object and purpose.

2. The context for the purpose of the interpretation of a treaty shall comprise, in addition to
the text, including its preamble and annexes:

(a) any agreement relating to the treaty which was made between all the parties in
connexion with the conclusion of the treaty;

(b) any instrument which was made by one or more parties in connexion with the
conclusion of the treaty and accepted by the other parties as an instrument related to
the party .

3. There shall be taken into account, together with the context:

(a) any subsequent agreement between the parties regarding the interpretation of the
treaty or the application of its provisions;

(b) any subsequent practice in the application of the treaty which establishes the
agreement of the parties regarding its interpretation;

(c) any relevant rules of international law applicable in the relations between the
parties.

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 4. A special meaning shall be given to a term if it is established that the parties so intended.

Article 32

Supplementary means of interpretation

Recourse may be had to supplementary means of interpretation, including the preparatory

work of the treaty and the circumstances of its conclusion, in order to confirm the meaning
resulting from the application of article 31, or to determine the meaning when the
interpretation according to article 31 :

(a) leaves the meaning ambiguous or obscure; or

(b) leads to a result which is manifestly absurd unreasonable.

It is clear from the foregoing that the cardinal rule of interpretation must involve an examination of
the text, which is presumed to verbalize the parties' intentions. The Convention likewise dictates
what may be used as aids to deduce the meaning of terms, which it refers to as the context of the
treaty, as well as other elements may be taken into account alongside the aforesaid context. As
explained by a writer on the Convention ,

[t]he Commission's proposals (which were adopted virtually without change by the
conference and are now reflected in Articles 31 and 32 of the Convention) were clearly
based on the view that the text of a treaty must be presumed to be the authentic expression
of the intentions of the parties; the Commission accordingly came down firmly in favour of the
view that 'the starting point of interpretation is the elucidation of the meaning of the text, not
an investigation ab initio into the intentions of the parties'. This is not to say that
the travauxpreparatoires of a treaty , or the circumstances of its conclusion, are relegated to
a subordinate, and wholly ineffective, role. As Professor Briggs points out, no rigid temporal
prohibition on resort to travaux preparatoires of a treaty was intended by the use of the
phrase 'supplementary means of interpretation' in what is now Article 32 of the Vienna
Convention. The distinction between the general rule of interpretation and the supplementary
means of interpretation is intended rather to ensure that the supplementary means do not
constitute an alternative, autonomous method of interpretation divorced from the general
rule.10

The Terms of Reference rightly fall within the context of the VFA.

After studied reflection, it appeared farfetched that the ambiguity surrounding the meaning of the
word .'activities" arose from accident. In our view, it was deliberately made that way to give both
parties a certain leeway in negotiation. In this manner, visiting US forces may sojourn in Philippine
territory for purposes other than military. As conceived, the joint exercises may include training on
new techniques of patrol and surveillance to protect the nation's marine resources, sea search-and-
rescue operations to assist vessels in distress, disaster relief operations, civic action projects such
as the building of school houses, medical and humanitarian missions, and the like.

Under these auspices, the VFA gives legitimacy to the current Balikatan exercises. It is only logical
to assume that .'Balikatan 02-1," a "mutual anti- terrorism advising, assisting and training exercise,"
falls under the umbrella of sanctioned or allowable activities in the context of the agreement. Both
the history and intent of the Mutual Defense Treaty and the V FA support the conclusion
that combat-related activities -as opposed to combat itself -such as the one subject of the instant
petition, are indeed authorized.

161
That is not the end of the matter, though. Granted that "Balikatan 02-1" is permitted under the terms
of the VFA, what may US forces legitimately do in furtherance of their aim to provide advice,
assistance and training in the global effort against terrorism? Differently phrased, may American
troops actually engage in combat in Philippine territory? The Terms of Reference are explicit
enough. Paragraph 8 of section I stipulates that US exercise participants may not engage
in combat "except in self-defense." We wryly note that this sentiment is admirable in the abstract
but difficult in implementation. The target of "Balikatan 02-1 I" the Abu Sayyaf, cannot reasonably be
expected to sit idly while the battle is brought to their very doorstep. They cannot be expected to pick
and choose their targets for they will not have the luxury of doing so. We state this point if only to
signify our awareness that the parties straddle a fine line, observing the honored legal maxim "Nemo
potest facere per alium quod non potest facere per directum."11 The indirect violation is actually
petitioners' worry, that in reality, "Balikatan 02-1 " is actually a war principally conducted by the
United States government, and that the provision on self-defense serves only as camouflage to
conceal the true nature of the exercise. A clear pronouncement on this matter thereby becomes
crucial.

In our considered opinion, neither the MDT nor the V FA allow foreign troops to engage in an
offensive war on Philippine territory. We bear in mind the salutary proscription stated in the Charter
of the United Nations, to wit:

Article 2

The Organization and its Members, in pursuit of the Purposes stated in Article 1, shall act in
accordance with the following Principles.

xxx xxx xxx xxx

4. All Members shall refrain in their international relations from the threat or use of force
against the territorial integrity or political independence of any state, or in any other manner
inconsistent with the Purposes of the United Nations.

xxx xxx xxx xxx

In the same manner, both the Mutual Defense Treaty and the Visiting Forces Agreement, as in all
other treaties and international agreements to which the Philippines is a party, must be read in the
context of the 1987 Constitution. In particular, the Mutual Defense Treaty was concluded way before
the present Charter, though it nevertheless remains in effect as a valid source of international
obligation. The present Constitution contains key provisions useful in determining the extent to which
foreign military troops are allowed in Philippine territory. Thus, in the Declaration of Principles and
State Policies, it is provided that:

xxx xxx xxx xxx

SEC. 2. The 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.

xxx xxx xxx xxx

162
 SEC. 7. The State shall pursue an independent foreign policy. In its relations with other
states the paramount consideration shall be national sovereignty, territorial integrity, national
interest, and the right to self- determination.

SEC. 8. The Philippines, consistent with the national interest, adopts and pursues a policy of
freedom from nuclear weapons in the country.

xxx xxx xxx xxx

The Constitution also regulates the foreign relations powers of the Chief Executive when it provides
that "[n]o treaty or international agreement shall be valid and effective unless concurred in by at least
two-thirds of all the members of the Senate."12 Even more pointedly, the Transitory Provisions state:

Sec. 25. After the expiration in 1991 of the Agreement between the Republic of the
Philippines and the United States of America concerning Military Bases, foreign military
bases, troops or facilities shall not be allowed in the Philippines except under a treaty duly
concurred in by the Senate and, when the Congress so requires, ratified by a majority of the
votes cast by the people in a national referendum held for that purpose, and recognized as a
treaty by the other contracting state.

The aforequoted provisions betray a marked antipathy towards foreign military presence in the
country, or of foreign influence in general. Hence, foreign troops are allowed entry into the
Philippines only by way of direct exception. Conflict arises then between the fundamental law and
our obligations arising from international agreements.

A rather recent formulation of the relation of international law vis-a-vis municipal law was expressed
in Philip Morris, Inc. v. Court of Appeals,13 to wit:

xxx Withal, the fact that international law has been made part of the law of the land does not
by any means imply the primacy of international law over national law in the municipal
sphere. Under the doctrine of incorporation as applied in most countries, rules of
international law are given a standing equal, not superior, to national legislation.

This is not exactly helpful in solving the problem at hand since in trying to find a middle ground, it
favors neither one law nor the other, which only leaves the hapless seeker with an unsolved
dilemma. Other more traditional approaches may offer valuable insights.

From the perspective of public international law, a treaty is favored over municipal law pursuant to
the principle of pacta sunt servanda. Hence, "[e]very treaty in force is binding upon the parties to it
and must be performed by them in good faith."14 Further, a party to a treaty is not allowed to "invoke
the provisions of its internal law as justification for its failure to perform a treaty."15

Our Constitution espouses the opposing view. Witness our jurisdiction as I stated in section 5 of
Article VIII:

The Supreme Court shall have the following powers:

xxx xxx xxx xxx

(2) Review, revise, reverse, modify, or affirm on appeal or certiorari, as the law or the Rules
of Court may provide, final judgments and order of lower courts in:

163
 (A) All cases in which the constitutionality or validity of any treaty, international or executive
agreement, law, presidential decree, proclamation, order, instruction, ordinance, or
regulation is in question.

xxx xxx xxx xxx

In Ichong v. Hernandez,16 we ruled that the provisions of a treaty are always subject to qualification
or amendment by a subsequent law, or that it is subject to the police power of the State.
In Gonzales v. Hechanova,17

xxx 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 -( I) 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 foregoing premises leave us no doubt that US forces are prohibited / from engaging in an
offensive war on Philippine territory.

Yet a nagging question remains: are American troops actively engaged in combat alongside Filipino
soldiers under the guise of an alleged training and assistance exercise? Contrary to what petitioners
would have us do, we cannot take judicial notice of the events transpiring down south,18 as reported
from the saturation coverage of the media. As a rule, we do not take cognizance of newspaper or
electronic reports per se, not because of any issue as to their truth, accuracy, or impartiality, but for
the simple reason that facts must be established in accordance with the rules of evidence. As a
result, we cannot accept, in the absence of concrete proof, petitioners' allegation that the Arroyo
government is engaged in "doublespeak" in trying to pass off as a mere training exercise an
offensive effort by foreign troops on native soil. The petitions invite us to speculate on what is really
happening in Mindanao, to issue I make factual findings on matters well beyond our immediate
perception, and this we are understandably loath to do.

It is all too apparent that the determination thereof involves basically a question of fact. On this point,
we must concur with the Solicitor General that the present subject matter is not a fit topic for a
special civil action for certiorari. We have held in too many instances that questions of fact are not
entertained in such a remedy. The sole object of the writ is to correct errors of jurisdiction or grave
abuse of discretion: The phrase "grave abuse of discretion" has a precise meaning in law, denoting
abuse of discretion "too patent and gross as to amount to an evasion of a positive duty, or a virtual
refusal to perform the duty enjoined or act in contemplation of law, or where the power is exercised
in an arbitrary and despotic manner by reason of passion and personal hostility."19

In this connection, it will not be amiss to add that the Supreme Court is not a trier of facts.20

Under the expanded concept of judicial power under the Constitution, courts are charged with the
duty "to determine whether or not there has been a grave abuse of discretion amounting to lack or
excess of jurisdiction on the part of any branch or instrumentality of the government."21 From the facts
obtaining, we find that the holding of "Balikatan 02-1" joint military exercise has not intruded into that
penumbra of error that would otherwise call for correction on our part. In other words, respondents in

164
the case at bar have not committed grave abuse of discretion amounting to lack or excess of
jurisdiction.

WHEREFORE, the petition and the petition-in-intervention are hereby DISMISSED without prejudice
to the filing of a new petition sufficient in form and substance in the proper Regional Trial Court.

SO ORDERED.

Bellosillo, Melo, Mendoza, Quisumbing, Carpio, JJ., concur.

Kapunan, dissenting opinion.

Ynares-Santiago, join the dissenting opinion.

Panganiban, separate opinion.

Davide., Jr., C.J., Puno, Sandoval-Gutierrez, join the main and separate opinion of J. Panganiban.

Footnotes

1
For ready reference, the text of the treaty is reproduced herein:

"MUTUAL DEFENSE TREATY

BETWEEN THE REPUBLIC OF THE PHILIPPINES

AND THE UNITED STATES OF AMERICA

30 August 1951

"The parties to this Treaty,

'"Reaffirming their faith in the purposes and principles of the Charter of the United Nations
and their desire to live in peace with all peoples and all Governments, and desiring to
strengthen the fabric of peace in the Pacific Area,

"Recalling with mutual pride the historic relationship which brought their two peoples together
in a common bond of sympathy and mutual ideals to fight side-by-side against imperialist
aggression during the last war,

"Desiring to declare publicly and formally their sense of unity and their common
determination to defend themselves against external armed attack, so that no potential
aggressor could be under the illusion that either of them stands alone in the Pacific Area,

"Desiring further to strengthen their present efforts for collective defense for the preservation
of peace and security pending the development of a more comprehensive system of regional
security in the Pacific Area,

165
"Agreeing that nothing in this present instrument shall be considered or interpreted as in any
way , or sense altering or diminishing any existing agreements or understandings between
the United States of America and the Republic of the Philippines,

"Have agreed as follows:

"ARTICLE I.

"The Parties undertake, as set forth in the Charter of the United Nations, to settle any
international disputes in which they may be involved by peaceful means in such a manner
that international peace and security and justice are not endangered and to refrain in their
international relations from the threat or use of force in any manner inconsistent with the
purpose of the United Nations.

"ARTICLE II.

"In order more effectively to achieve the objective of this Treaty, the Parties separately and
jointly by self-help and mutual aid will maintain and develop their individual and collective
capacity to resist armed attack.

"ARTICLE III.

"The Parties, through their Foreign Ministers or their deputies, will consult together from time
to time regarding the implementation of this Treaty and whenever in the opinion of either of
them the territorial integrity, political independence or security of either of the Parties is
threatened by external.'

I armed attack in the Pacific.

"ARTICLE IV.

"Each Party recognizes that an armed attack in the Pacific Area on either of the Parties
would be dangerous to its own peace and safety and declares that it would act to meet the
common dangers in accordance with its constitutional processes.

" Any such armed attack and all measures taken as a result thereof shall be immediately
reported to the Security Council of the United Nations. Such measures shall be terminated
when the Security Council has taken the measures necessary to restore and maintain
international peace and security.

"ARTICLE V.

"For the purpose of Article IV, an armed attack on either of the Parties is deemed to include
an attack on the metropolitan territory of either of the Parties, or on the island territories
under its jurisdiction in the Pacific or on its armed forces, public vessels or aircraft used in
the Pacific.

"ARTICLE VI.

166
"This Treaty does not affect and shall not be interpreted as affecting in any way the rights
and obligations of the Parties under the Charter of the United Nations or the responsibility of
the United Nations for the maintenance of international peace and security.

"ARTICLE VII.

"This Treaty shall be ratified by the United States of America and the Republic of the
Philippines in accordance with their respective constitutional processes and will come into
force when instruments of ratification thereof have been exchanged by them at Manila.

"ARTICLE VIII.

"This Treaty shall remain in force indefinitely. Either Party may terminate it one year after
notice has been given to the other party.

"IN WITNESS WHEREOF the undersigned Plenipotentiaries have signed this Treaty.

"DONE in duplicate at Washington this thirtieth day of August, 1951."

xxx xxx xxx xxx

2
The day before, the first petition in connection with the joint military enterprise was filed --
G.R. No.151433, entitled "In the Matter of Declaration as Constitutional and Legal the
'Balikatan' RP- US Military Exercises." Petitioner therein Atty. Eduardo B. Inlayo manifested
that he would be perfectly "comfortable" should the Court merely "note" his petition. We did
not oblige him; in a Resolution dated February 12, 2002, we dismissed his petition on the
grounds of insufficiency in form and substance and lack of jurisdiction. After extending a
hearty Valentine's greeting to the Court en banc, Atty. Inlayo promised to laminate the
aforesaid resolution as a testimonial of his "once upon a time" participation in an issue of
national consequence.

3
Annex 1 of the Comment.

4
Annex 2 of the Comment. The Minutes state:

"Secretary Guingona and Assistant Secretary Kelly welcomed the holding of Balikatan 02-1
exercise ('the Exercise") and the conclusion of the Terms of Reference for the Exercise.
Assistant Secretary Kelly thanked Secretary Guingona for Secretary Guingona's personal
approval of the Terms of Reference.

"Both Secretary Guingona and Assistant Secretary Kelly emphasized the importance of
cooperating, within the bounds provided for by their respective constitutions and laws, in the
fight against international terrorism.

"Both Secretary Guingona and Assistant Secretary Kelly expressed the belief that the
Exercise shall not in any way contribute to any escalation of other conflicts in Mindanao,
shall not adversely affect the progress of ongoing peace negotiations between the
Government of the Philippines and other parties, and shall not put at risk the friendly
relations between the Philippines and its neighbors as well as with other states. Secretary
Guingona stated that he had in mind the ongoing peace negotiations with the NDF and the

167
MILF and he emphasized that it is important to make sure that the Exercsie shall not in any
way hinder those negotiations.

"Both Secretary Guingona and Assistant Secretary Kelly stated that they look forward to the
realization of the nearly US$100 million in security assistance for fiscal years 2001-2002
agreed upon between H.E. President Gloria Macapagal-Arroyo and H.E. President George
W. Bush last November 2001.

"Secretary Guingona stated that the Philippines welcomes the assistance that the U.S. will
be providing, saying that while Filipino soldier does not lack experience, courage and
determination, they could benefit from additional knowledge and updated military
technologies.

"Assistant Secretary Kelly said that he is glad the U.S. is able to provide advice, assistance
and training and reiterated the policy position expressed by H.E. President George W. Bush
during his State of the Nation Address that U.S. forces are in the Philippines to advise, assist
and train Philippine military forces.

"Both Secretary Guingona and Assistant Secretary Kelly reiterated that, as provided in the
Terms of Reference, U.S. Forces shall not engage in combat during the Exercise, except in
accordance with their right to act in self-defense.

Both Secretary Guingona and Assistant Secretary Kelly reiterated that, pursuant to Article II
of the Visiting Forces Agreement, U.S. forces are bound to respect the laws of the
Philippines during the Exercise.

"Both Secretary Guingona and Assistant Secretary Kelly recognized that, pursuant to Article
VI of the Visiting Forces Agreement, both the U.S. and Philippine Governments waive any
and all claims against the other for any deaths or injuries to their military and civilian
personnel from the Exercise.

"Secretary Guingona and Assistant Secretary Kelly designated Ambassador Minerva Falcon
and Charge d' Affaires, a.i. Robert Fitts to initial these minutes.

"Both Secretary Guingona and Assistant Secretary Kelly agreed to consult from time to time
on matters relating to the Exercise as well as on other matters."

Notwithstanding, in view of the paramount importance and the constitutional

significance of the issues raised in the petitions, this Court, in the exercise of its
sound discretion, brushes aside the procedural barrier and takes cognizance of the
petitions, as we have done in the early Emergency Powers Cases, where we had
occasion to rule:

5
338 SCRA 81, 100-101 (2000).

'x x x ordinary citizens and taxpayers were allowed to question the

constitutionality of several executive orders issued by President Quirino
although they were involving only an indirect and general interest shared in
common with the public. The Court dismissed the objection that they were
not proper parties and ruled that 'transcendental importance to the public of
these cases demands that they be settled promptly and definitely, brushing

168
 aside, if we must, technicalities of procedure. ' We have since then applied
the exception in many other cases. [ citation omitted]

This principle was reiterated in the subsequent cases of Gonzales vs. COMELEC,
Daza vs. Singson, and Basco vs. Phil. Amusement and Gaming Corporation, where
we emphatically held:

'Considering however the importance to the public of the case at bar, and in
keeping with the Court's duty, under the 1987 Constitution, to detemine
whether or not the other branches of the governrnent have kept themselves
within the limits of the Constitution and the laws that that they have not
abused the discretion given to them, the Court has brushed aside
technicalities of procedure and has taken cognizance of this petition.xxx

Again, in the more recent case of Kilosbayan vs. Guingona, Jr., this Court ruled that
in cases of i transcendental importance, the Court may relax the standing
requirements and allow a suit to prosper even , where there is no direct injury to the
party claiming the right of judicial review.

Although courts generally avoid having to decide a constitutional question based on

the doctrine of separation, of powers, which enjoins upon the departments of the
government a becoming respect for each others' acts, this Court nevertheless
resolves to take cognizance of the instant petitions.6

6 BAYAN, et. al. Y. Zamora, 342 SCRA 449 (2000).

7
BAYAN, et. al. v. Zamora, et. al., 342 SCRA 449 (2000).

8
Article I [Definitions], VFA.

9
Article II [Respect for Law], VFA.

10
l.M. SINCLA1R, THE VIENNA CONVENTION ON THE LAW OF TREATIES 71-72 (1973).

"No one is allowed to do indirectly what he is prohibited to do directly." 12 Sec. . 12 SEC.21,

II

Art. VII.

13
224 SCRA 576, 593 (1993).

14
Vienna Convention on the Law of Treaties, art. 26.

Id, art. 27. However, this is without prejudice to the provisions of art. 46 of the Convention,
15

which provides:

"1. A State may not invoke the fact that its consent to be bound by a treaty has been
expressed in violation of a provision of its internal law regarding competence to conclude
treaties as invalidating its consent unless that violation was manifest and concerned a rule of
its internal law of fundamental importance.

"2. A violation is manifest if it would be objectively evident to any State conducting itself in
the manner in accordance with normal practice and in good faith."

169
 16 101 Phil. 1155, 1191 (1957).

17
9 SCRA 230,242 (1963).

18
Pertinent sections of Rule 129 provide: "SECTION I. Judicial notice, when mandatory.-
A court shall take judicial notice, without the introduction of evidence, of the existence and
territorial extent of states, their political history , forms of government and symbols of
nationality, the law of nations, the admiralty and maritime courts of the world and their seals,
the political constitution and history of the Philippines, the official acts of the legislative,
executive and judicial departments of the Philippines, the laws of nature, the measure of
time, and the geographical divisions." Likewise, it is also provided in the next succeeding
section: "SEC. 2. Judicial notice, when discretionary.-A court may take judicial notice of
matters which are of public knowledge, or are capable of unquestionable demonstration, or
ought to be known to judges because of their judicial functions."

19
Sanchez v. National Labor Relations Commission, 312 SCRA 727 ( 1999).

Hervas v. Court of Appeals, 319 SCRA 776 (1999); Valmonte v. Court of Appeals, 303
20

SCRA 278 ( 1999). 1âw phi 1.nêt

21
Article VIII, section 1.

The Lawphil Project - Arellano Law Foundation

EN BANC

G.R. No. 151445 April 11, 2002

ARTHUR D. LIM and PAULINO R. ERSANDO, petitioners,

vs.
HONORABLE EXECUTIVE SECRETARY as alter ego of HER EXCELLENCY PRESIDENT
GLORIA MACAPAGAL-ARROYO and HONORABLE ANGELO REYES in his official capacity as
Secretary of National Defense, respondents.
SANLAKAS and PARTIDO NG MANGGAGAWA, intervenors.

DISSENTING OPINION

KAPUNAN, J.:

170
On September 11, 2001, terrorists, with the use of hijacked commercial airplanes, attacked the
World Trade Center Building in New York City and the Pentagon Building in Washington D.C.,
U.S.A., killing thousands of people.

Following the attacks, the United States declared a "global war" against terrorism and started to
bomb and attack Afghanistan to topple the Taliban regime and capture Osama bin Laden, the
suspected mastermind of the September 11, 2001 attacks. With the Northern Alliance mainly
providing the ground forces, the Taliban regime fell in a few months, without Osama bin Laden
having been captured. He is believed either to be still in Afghanistan or has crossed the border into
Pakistan.

In line with President Gloria Macapagal-Arroyo's pledge to render all-out aid to the US in its
campaign against "global terrorism," an arrangement for a. joint military exercises known as "RP-
US Balikatan 02-1 Exercises" was entered into between the US and Philippine authorities, allegedly
within the ambit of the Visiting Forces Agreement (V FA) with the main objective of enhancing the
operational capabilities of the countries in combating terrorism. The US government has identified
the Abu Sayyaf Group (ASG) in the Philippines as a terrorist group forming part of a "terrorist
underground" linked to the al-Qaeda network of Osama bin Laden.

Beginning January 21, 2002, American troops started arriving in Mindanao as part of the total
contingent force of 660 soldiers, 160 to be stationed in Basilan, 200 to 250 in Zamboanga, and 250
in the Air Force base in Mactan, Cebu.

The salient features of the joint military exercises as embodied in the Terms of Reference (TOR) are
summarized as follows:

(a) The exercise shall be consistent with the Constitution and other Philippine laws,
particularly the RP-US Visiting Forces Agreement;

(b) No permanent US bases and support facilities will be established;

(c) The exercise shall be implemented jointly by RP and US Exercise Co-Directors under the
direction of the Chief of Staff of the AFP and in no instance will US Forces operate
independently during field training exercises;

(d) It shall be conducted and completed within a period of not more than six months, with the
projected participation of 660 US personnel and 3,800 RP forces, and the Chief of Staff of
the AFP shall direct the Exercise Co-Directors to wind up the Exercise and other activities
and the withdrawal of US forces within the six-month period;

(e) The exercise "is a mutual counter-terrorism advising, assisting and training exercise"
relative to Philippine efforts against the Abu Sayyaf Group and will be conducted on the
Island of Basilan. Further advising, assisting and training exercises shall be conducted in
Malagutay and the Zamboanga area. Related activities in Cebu will also be conducted in
support of the Exercise;

(f) Only 160 US troops organized in 12-man Special Forces Teams shall be deployed in
Basilan, with the US Team remaining at the Company Tactical Headquarters where they can
observe and assess the performance of the troops; and

171
 (g) US exercise participants shall not engage in combat, without prejudice to their right to
self-defense.

Petitioners now seek the issuance of a writ of prohibition/injunction to prevent US troops from
participating in areas of armed conflict on the ground that such is in gross violation of the
Constitution. They argue that:

THE PHILIPPINES AND THE UNITED STATES SIGNED THE MUTUAL DEFENSE
TREATY (MDT) IN 1951 TO PROVIDE MUTUAL MILITARY ASSISTANCE IN
ACCORDANCE WITH THE CONSTITUTIONAL PROCESSES" OF EACH COUNTRY ONLY
IN THE CASE OF AN ARMED ATTACK BY AN EXTERNAL AGGRESSOR, MEANING A
THIRD COUNTRY AGAINST ONE OF THEM.

BY NO STRETCH OF THE IMAGINATION CAN IT BE SAID THAT THE ABU SAYYAF

BANDITS IN BASILAN CONSTITUTE AN EXTERNAL ARMED FORCE THAT HAS
SUBJECTED THE PHILIPPINES TO AN ARMED EXTERNAL ATTACK TO WARRANT US
MILITARY ASSISTANCE UNDER THE MDT OF 1951.

II

NEITHER DOES THE VFA OF 1999 AUTHORIZED AMERICAN SOLDIERS TO ENGAGE

IN COMBAT OPERATIONS IN PHILIPPINE TERRITORY, NOT EVEN TO FIRE BACK "IF
FIRED UPON."

Sanlakas and Partido ng Manggagawa as intervenors seek the same relief as petitioners, stressing
that the Constitution prohibits the presence of foreign military troops or facilities in the country,
except under a treaty duly concurred in by the Senate and recognized as a treaty by the other state.

The petition is impressed with merit.

There is no treaty allowing

US troops to engage in combat.

The Constitution prohibits foreign military bases, troops or facilities unless a treaty permits the same.
Section 25, Article XVIII of the Constitution provides:

After the expiration in 1991 of the Agreement between the Republic of the Philippines and
the United States of America concerning Military Bases, foreign military bases, troops, or
facilities shall not be allowed in the Philippines except under a treaty duly concurred in by the
Senate and, when the Congress so requires, ratified by a majority of the votes cast by the
people in a national referendum held for that purpose, and recognized as a treaty by the
other contracting State.

There is no treaty allowing foreign military troops to engage in combat with internal elements.

The Mutual Defense Treaty (MDT) between the Republic of the Philippines and the United States of
America does not authorize US military troops to engage the ASG in combat. The MDT
contemplates only an "external armed attack." Article III of the treaty cannot be more explicit:

172
 The Parties, through their Foreign Ministers or their deputies, will consult together from time
to time regarding the implementation of this treaty and whenever in the opinion of either of
them the territorial integrity, political independence or security of either of the Parties is
threatened by external armed attack in the Pacific. [Emphasis supplied.]

Supporting this conclusion is the third paragraph of the MDT preamble where the parties express
their desire

to declare publicly and formally their sense of unity and their common determination to
defend themselves against external armed attack, so that no potential aggressor could be
under the illusion that either of them stands alone in the Pacific area. [Emphasis supplied.]

There is no evidence that

the ASG is connected with
"global terrorism."

There is no empirical basis for the allegation that the "terrorism" which the ASG is accused of
constitutes an "external armed attack." The ASG has committed mostly crimes of kidnapping for
ransom and murder - common crimes that are punishable under the penal code but which, by
themselves, hardly constitute "terrorism."

Parenthetically, there is lack of agreement as to the precise definition of terrorism. Indeed, one
man's terrorist may be another man's freedom fighter. The divergent interests of States have caused
contradicting definitions and conflicting perceptions of what constitutes "terrorist acts" that make it
difficult for the United Nations to reach a decision on the definition of terrorism. Because of this
"definitional predicament," the power of definition is easily exercised by a superpower which, by
reason of its unchallenged hegemony, could draw lists of what it considers terrorist organizations or
states sponsoring terrorism based on criteria determined by the hegemon's own strategic interests.1

In any case, ties between the ASG and so-called international "terrorist" organizations have not been
established.2 Even assuming that such ties do exist, it does not necessarily make the "attacks" by the
ASG "external" as to fall within the ambit of the MDT.

Balikatan exercises are

not covered by VFA as
US troops are not
allowed to engage in combat.

Neither is the present situation covered by the so-called Visiting Forces Agreement (VFA). The V FA
was concluded after the removal of the US military bases, troops and facilities in the aftermath of the
termination of the treaty allowing the presence of American military bases in the Philippines. The VF
A is nothing more than what its formal name suggests: an "Agreement between the Government of
the Republic of the Philippines and the Government of the United States of America regarding
the Treatment of United States Armed Forces Visiting the Philippines. "The last paragraph of the V
FA preamble also "recogniz[es] the desirability of defining the treatment of United States personnel
visiting the Republic of the Philippines."

The VFA was entered into to enable American troops to enter the country again after the removal of
the American military bases so they can participate in military exercises under the auspices of the
Mutual Defense Treaty. It provided the legal framework under which American soldiers will be
treated while they remain in the country.

173
The military exercises contemplated in the VFA are those in accordance with the National Defense
Plan (NDP) of the Philippines. The NDP was previously approved and adopted by the Mutual
Defense Board, jointly chaired by the Chief of Staff of the Armed Forces of the Philippines and the
Commander in the Pacific of the United States Armed Forces.

The NDP is directed against potential foreign aggressors, not designed to deal with internal
disorders. This was what the Senate understood when it ratified the VFA in Senate Resolution No.
18, which reads:

The VFA shall serve as the legal mechanism to promote defense cooperation between the
two countries, enhancing the preparedness of the Armed Forces of the Philippines against
external threats; and enabling the Philippines to bolster the stability of the Pacific Area in a
shared effort with its neighbor states.

The VFA's ambiguous reference to "activities"3 is not a loophole that legitimizes the presence of US
troops in Basilan. In the treaty's preamble, the parties "reaffirm their obligations under the Mutual
Defense Treaty of August 30, 1951." As the preamble comprises part of a treaty's context for the
purpose of interpretation, the VFA must be read in light of the provisions of the MDT. As stated
earlier, the MDT contemplates only an external armed attack; consequently, the "activities" referred
to in the V FA cannot thus be interpreted to include armed confrontation with or suppression of the
ASG members who appear to be mere local bandits, mainly engaged in kidnapping for ransom and
murder -even arson, extortion and illegal possession of firearms, all of which are common offenses
under our criminal laws. These activities involve purely police matters and domestic law and order
problems; they are hardly "external" attacks within the contemplation of the MDT and the V FA. To
construe the vagueness of the term "activities" in the V FA as authorizing American troops to
confront the ASG in armed conflict would, therefore, contravene both spirit and letter of the MDT.

Respondents maintain that the American troops are not here to fight the ASG but merely to engage
in "training exercises." To allay fears that the American troops are here to engage the ASG in
combat, the TOR professes that the present exercise "is a mutual counter-terrorism advising,
assisting and training Exercise relative to Philippine efforts against the ASG, and will be conducted
on the Island of Basilan." The TOR further provides that the "exercise" shall involve the conduct of
"mutual military assisting, advising and training of RP and US Forces with the primary objective of
enhancing the operational capabilities of both forces to combat terrorism."

These avowals of assistance, advice, and training, however, fly in the face of the presence of US
troops in the heart of the ASG's stronghold. Such presence is an act of provocation that makes an
armed confrontation between US soldiers and ASG members inevitable.

The US troops in Basilan have been described as being "on a slippery slope between training
and fighting." Their very presence makes them a target for terrorist and for the local Moslem
populace, which has been bitterly anti-American since colonial times. Though they are called
advisers, the Americans win be going on risky missions deep into the jungle. A former Green Beret
who is an analyst of Washington's Center for Strategies and Budgetary Assessments notes that
"when troops go out on patrol, they come as close as they can to direct combat."4

"Advising" or "training" Filipino soldiers hardly describes the involvement of US troops

(unaccompanied by Filipino counterparts) on board combat helicopters which land on the
battlegrounds to evacuate Filipino soldiers wounded while fighting the ASG. For example, on April
5,2002, US troops on board a Pave Hawk helicopter flew to the scene of a night battle on Basilan
Island to evacuate a wounded Filipino soldier. This was reportedly the third time in recent weeks that
chopper-borne US forces had evacuated Filipino soldiers fighting the ASG.5

174
Whatever euphemisms may be conjured to characterize American involvement, the RP-US
Balikatan 02-1 Exercises are aimed at seeking out the ASG and exterminating it.

The prohibition contained in the TOR against US exercise participants from engaging in combat but
"without prejudice to their right to self- defense" provides little consolation. Combat muddles the
distinction between aggression and self-defense. US troops can always say they did not fire first and
no one would dare say otherwise. The ASG has been so demonized that no one cares how it is
exorcised. Significantly, the TOR does not define the parameters of "self-defense." Militarily, a pre-
emptive strike could be interpreted as an act of self -defense.

What I fear most is that the country would be dragged into a more devastating and protracted conflict
as a result of the continued presence of US military troops in Basilan. A single ASG sniper's bullet
felling an American soldier could be used as an excuse for massive retaliation by US ground and air
forces to attack and bomb out every suspected ASG lair, all in the name of "self -defense.

Apprehensions over possible catastrophic consequence of US military involvement in our country

are not without historical basis.

The US experience in Vietnam, for example, began as an expression of support for the
establishment of South Vietnam under Bao Dai's leadership in 1949 to. counteract the support given
by communist China and the Soviet Union to North Vietnam. In 1950, the US began providing
military assistance in fighting North Vietnam by sending military advisors as well as US tanks,
planes, artillery and other supplies. The US became more involved in the Vietnam conflict when in
1961, it sent the first 400 Green Beret "Special Advisors" to South Vietnam to train the latter's
soldiers in methods of counter-insurgency against the Viet Cong guerillas. It clarified that the
American soldiers were not in Vietnam to engage in combat.6

However, due to the increased success of the Viet Cong guerillas, assisted by the Northern
Vietnamese Army, the US eventually began to run covert operations using South Vietnamese
commandos in speed boats to harass radar sites along the coastline of North Vietnam. In 1964, after
an alleged torpedo attack by North Vietnam of the American destroyers USS. Maddox and USS. C.
Turner Joy in the Gulf of Tonkin, the US decided to retaliate by conducting bombing raids in North
Vietnam.7

The Vietnam War resulted in the death of two million Vietnamese and injuries to three million others.
Twelve million Vietnamese became refugees and thousands of children became orphaned.8 Millions
of acres of Vietnam's forests were defoliated by a herbicide called Agent Orange, dropped from the
air. Millions of mines and unexploded bombs and artillery shells are still scattered in the countryside,
posing constant danger to life and limb.

US militarv presence is
essentially indefinite
and open-ended.

Already, there are indications that the US intends to reestablish a more enduring presence in
the country. Defense Secretary Angelo Reyes was quoted to have declared on March 20, 2002 that
2,665 US soldiers will take part in the RP-US Balikatan 02-2 starting next month in Central Luzon
and that 10 more military exercises will be held this year.9 How many more war exercises are needed
for "training and advising" Filipino soldiers? What conditions must be satisfied for the United States
to consider the "war against terrorism" in Mindanao terminated? The endless frequency and
successive repetition of the war exercises covering the two largest islands of the country amount, in

175
a real sense, to the permanent presence of foreign military troops here sans a treaty in blatant
violation of the constitutional proscription.

US President George w. Bush in his January 30, 2002 speech declared:

The men and women of our armed-forces have delivered a message to every enemy of the
United States. You shall not escape the justice of this nation. x x x.

Should any country be timid in the face of terror, if they do not act, America will.

President Arroyo, in a speech at the Regis Hotel in New York City on February 1, 2002, pledged her
"full support" to US President George W. Bush in the fight against international terrorism. She
declared that "the Philippines will continue to be a partner of the United States in the war to end
terrorism" and that "(t)he anti-terrorism partnership will continue after the whole world is secure
against the terrorist."10

In his speech on the White House Laws on March 11, 2002, President Bush exhorted:

America encourages and expects governments everywhere to help remove the terrorist
parasites that threaten their own countries and the peace of the world. x x x. We are helping
right now in the Philippines, where terrorist with links to Al Qaeda are trying to seize the
southern part of the country to establish a military regime.

They are oppressing local peoples, and have kidnapped both American and Filipino
citizens."11

The Philippine Daily Inquirer in its March 17, 2002 issue carried the following report:

The United States wants to bring in more troops for the controversial Balikatan 02-1 training
exercise aimed at wiping out the Abu Sayyaf bandits in Basilan.

The US military last week began calling the war-games "Operation Enduring Freedom-
Philippines," giving credence to claims that the country has become, after Afghanistan, the
second front of the US-led global war on terrorism.

Today's issue of April 1, 2002 reporting as its source New York News Service, quoted a senior Bush
administration official as saying:

We are looking at prolonged training. x x x. It takes more to build up capabilities than saying
here are some night vision goggles.

The declarations of the two Presidents on the war against terrorism and their avowal to secure the
world against the terrorists would ineluctably suggest a long-drawn conflict without a foreseeable
end. Worse, it is not unlikely that this war could expand and escalate to include as
protagonists the Moro Islamic Liberation Front and the Moro National Liberation Front and -
not improbably -the National People's Army, all lumped-up as "terrorists" in a unilateral
characterization.

No less than US Deputy Defense Secretary Paul Wolfowitz declared that the proposed $48-billion
increase to the US defense budget for 2003 is intended to sustain the war on terrorism,12 including
that fought in this country, thus: .

176
 Deputy Defense Secretary Paul Wolfowitz on Wednesday said the Pentagon needs a big
budget increase next year on terrorism, which has expanded from Afghanistan to the
Philippines and now appears to be moving to Georgia.13

The Court can take judicial notice of the foregoing pronouncements as they are of public
knowledge,14 having been widely circulated in all channels of the media. Neither have they been
denied.

US military intervention
is not the solution to the
Mindanao problem.

Assuming that the ASG is a terrorist organization, U.S. military intervention is not the solution to
achieve peace. The annihilation of the rebel bandits would be a futile quest so long at the root
causes of their criminality are not addressed. A study15 by the United Nations Secretariat, however,
acknowledges that international terrorism springs from "misery, frustration, grievance and 'despair,"
elements which, many believe, are present in Basilan. Two veteran Philippine journalists have
described the province as Mindanao's "war laboratory," where lawlessness, government neglect,
religious strife, poverty, and power struggle are rampant.16

If indeed acts of terrorism are cries of desperation, if terrorism is but a symptom of the greater
maladies of "misery, frustration, grievance and despair," then it cannot be remedied alone by ASG's
physical extermination, which appears to be the object of President Bush and President Macapagal-
Arroyo's joint campaign against global terrorism." Admittedly, the State has the right to use force as
a means of self-preservation. But perhaps we should all consider that a military solution is but a first-
aid measure, not the prescription to these diseases. It has been opined that:

The issue of terrorism in the Philippines should be dealt with not from the perspective of
Manila-Washington ties but from a serious study of how terrorism figures in the minds of
leaders and armed men belonging to the large but deeply factionalized guerrilla movements
in the country. Terrorism can never be dissociated from guerrilla warfare and the separatist
movement in Mindanao. From these movements would arise religious extremists or
millennarian groups. With the right resources and the right agenda, these movements will
continue to attract men-skilled, intelligent, and experienced-who will come to grasp the
practical realities of waging a war with the minimum of resources but maximum public
impact.

The government does not have to look for foreign connections-and be motivated by the
desire to help foreign friends to address a problem that has been and will be the making of
its own home grown armies.17

The presence of US troops in Basilan, whether from the legal, philosophical-or even from the
practical perspective cannot be justified, On the contrary, it is counterproductive. It serves to fuel an
already volatile situation. US troops are likely less able, if not less willing, to distinguish between the
innocent and the enemy. The inevitable "collateral damage," the killing of women and children,
Muslims and Christians, the destruction of homes, schools and hospitals would fan the flames of
fanaticism and transform mere rogues into martyrs.

The Filipino soldier has proven himself brave, courageous, fearless and tenacious in the field of
battle as shown in Bataan and Corregidor, in the four long years of guerilla warfare thereafter
against the Japanese, and in the struggle for independence against Spain and the United States at
the turn of the last century. The local army and police have successfully battled in the past against

177
Communist and other insurgents which were more organized and numerous, operating in larger
parts of the country and fighting for their political beliefs. If our troops need training by us advisers or
have to conduct joint exercises with US troops to improve their fighting capability, these could be
more effectively achieved if done outside Basilan or away from the danger zones. Instead of bringing
troops to the combat zones, the US can do more by supplying our soldiers with modern and high
tech weaponry.

Prescinding from the foregoing disquisitions, it is totally erroneous to argue that petitioners do not
have legal standing or that the issues raised by them are premature and not based on sufficient
facts. The issues raised are of transcendental importance.18 The Balikatan exercises pose direct
injury to some of the petitioners (intervenors) who live in the affected areas. The presence of us
troops in the combat zones "assisting" and "advising" our troops in combat against the ASG is a
blatant violation of the Constitutional proscription against the stationing of foreign troops to fight a
local insurgency and puts the country in peril of becoming a veritable killing field. If the time is not
ripe to challenge the continuing affront against the Constitution and the safety of the people, when is
the right time? When the countryside has been devastated and numerous lives lost?

I therefore vote to give due course to the petition.

sgd. SANTIAGO M. KAPUNAN

Associate Justice

Footnotes

1
In a Lecture delivered on March 12, 2002 as part of the Supreme Court Centenary Lecture
Series, Hans Koechler, Professor of Philosophy at the University of Innsbruck (Austria) and
President of the International Progress Organization, speaking on "The United Nations, The
International Rule of Law and Terrorism, " noted;

In the actual unipolar context of international relations, the "fight against terrorism"
has become one of the basic slogans when it comes to the justification of the use of
force against certain states and against groups operating internationally. Lists of
states "sponsoring terrorism" and of terrorist organizations are set up and constantly
being updated according to criteria that are not always known to the public, but are
clearly determined by strategic interests.

The basic problem underlying all these military actions -or threats of the use of force
as the most recent by the United States against Iraq- consists in the absence of an
agreed definition of terrorism.

Remarkable confusion persists in regard to the legal categorization of acts of

violence either by states, by armed groups such as liberation movements, or by
individuals.

The dilemma can be summarized in the saying '"One country's terrorist is another
country's freedom fighter." The apparent contradiction or lack of consistency in the
use of the term "'terrorism" may further be demonstrated by the historical fact that

178
leaders of national liberation movements such as Nelson Mandela in South Africa,
Habib Bourgouiba in Tunisia, or Ahmed Ben Bella in Algeria, to mention only a few,
were originally labeled as terrorists by those who controlled the territory at the time,
but later became internationally respected statesmen.

What, then, is the defining creterion for terrorist acts -the differentia
specifica distinguishing those acts from eventually legitimate acts of national
resistance or self-defense?

Since the times of the Cold War the United Nations Organization has been trying in
vain to reach a consensus on the basic issue of definition. The organization has
intensified its efforts recently, but has been unable to bridge the gap between those
who associate "'terrorism" with any violent act by non-state groups against civilians,
state functionaries or infrastructure or military installations, and those who believe in
the concept of the legitimate use of force when resistance against foreign occupation
or against systematic oppression of ethnic and/or religious groups within a state is
concerned

The dilemma facing the international community can best be illustrated by reference
to the contradicting categorization of organizations and movements such as
Palestine Liberation Organization (PLO) -which is a terrorist group for Israel and a
liberation movement for Arabs and Muslims -the Kashmiri resistance groups -who
are terrorists in the perception of India, liberation fighters in that of Pakistan -the
earlier Contras in Nicaragua -freedom fighters for the United States, terrorists for the
Socialist camp -or, most drastically, the Afhani Mujahedeen (later to become
the Taliban movement): during the Cold War period they were a group of freedom
fighters for the West, nurtured by the United States, and a terrorist gang for the
Soviet Union. One could go on and on in enumerating examples of conflicting
categorizations that cannot be reconciled in any way -because of opposing political
interests that are at the roots of those perceptions.

How, then, can those contradicting definitions and conflicting perceptions and
evaluations of one and the same group and its actions be explained? In our analysis,
the basic r.eason for these striking inconsistencies lies in the divergent interests of
states. Depending on whether a state is in the position of an occupying power or in
that of a rival, or adversary, of an occupying power in a given territory, the defmition
of terrorism will "fluctuate" accordingly. A state may eventually see itself as protector
of the rights of a certain ethnic group outside its territory and will therefore speak of a
"liberation struggle," not of "terrorism" when acts of violence by this group are
concerned, and vice-versa. 1âwphi1.nêt

The United Nations Organization has been unable to reach a decision on the
definition of terrorism exactly because of these i. conflicting interests of sovereign
states that determine in each and every ! instance how a particular armed movement
(i.e. a non-state actor) is r labeled in regard to the terrorist-freedom fighter
dichotomy. A "policy of double standards" on this vital issue of international affairs
has been the unavoidable consequence.

This "defmitional predicament" of an organization consisting of ~ sovereign states -

and not of peoples, in spite of the emphasis in the I! Preamble to the United Nations
Charter! -has become even more serious ~ in the present global power constellation:
~ superpower exercises the :1 decisive role in the Security Council, former great

179
 powers of the Cold ill i War era as well as medium powers are increasingly being
marginalized; and the problem has become even more acute since the terrorist
attacks of 11 September 2001 in the United States. "

Koechler adds, however, that this failure to distinguish between terrorist acts and acts of
national liberation did not prevent the international community from arriving at an implicit or
11, "operative" definition. For example, in Article of the International Convention for
Suppression of Terrorist Bombings, terrorist acts are referred to as "criminal acts ..., in
particular where they are intended or calculated to provoke a state of terror in the general i ~
public or in a group of persons or particular persons" that are under no circumstances
justifiable considerations of a political, philosophical, ideological, racial, ethnic, religious or ti
~ other similar nature."

2
The following excerpts from "Under the Crescent Moon: Rebellion in Mindanao" by Marites
Dafiguilan Vitug and Glenda M. Gloria (Ateneo Center for Social Policy and Public Affairs
and Institute for Popular Democracy, 2000) demonstrate the obscurity of the ASG's raison d.
etre:

...for all the warring [the Abu Sayyaf] it has done supposedly in the name of Islam,
there is much confusion and mistrust surrounding the Abu Sayyaf, whose leaders
had flaunted their ties with the police and the military. Even veterans of the Mindanao
war find it hard to identify the Abu Sayyaf's political direction-where it really wants to
go, or what it wants to achieve as an organization. (At pp. 204205.)

The military had long been divided on how to view the Abu Sayyaf. The dominant
view held the group as a genuine extremist organization driven by an extreme view
of Islam. But there are military strategists who have downplayed the ideological
component of Janjalani's cause, arguing that he merely wanted to steal the thunder
from the MNLF and the MILF - and in the process also hijack their financial
connections to the Arab World. (At p. 206.)

….[Basilan Bishop Romeo] [de] la Cruz said he didn't think the Abu Sayyaf was truly
espousing fundamentalism. "Initially I thought this was a religious conflict because of
the so-called resurgence of Islam. For awhile the Church even attributed the spate of
kidnappings in Basilan to Islamic fundamentalism. "Later on we realized this was not
the case. Islam was being used as a mere cover of these people.

Abdulgani "Gerry" Salappudin, governor of Basilan for 10 years, shares this view.
The Abu Sayyaf was being used to destroy the image of Islam. He cited the fact that
Janjalani's mother was a Christian. Was he out, therefore, the destroy Islam? "I am
not saying that... It's just that he's not pure Muslim."

Thus, how and why exactly the Abu Sayyaf was founded is a question for which
neither the military nor Janjalani had a solid answer. The group remains as nebulous
as its beginning, and as shadowy as its charismatic founder. There is absolutely no
doubt that it has been infiltrated by the military. What is uncertain is whether or not
Janjalani, who was admired by many in the Muslim community, formed the Abu
Sayyafprecisely to work for the military or if he had simply lost control over his own
men. (At pp. 210-211.)

3
Article III (1) on Entry and Departure, for example, imposes upon the Philippine Government
the duty to "facilitate the admission of United States personnel and their departure from the

180
Philippines in connection with activities covered by this agreement." Article VI (1) also
mentions "claims... from activities to which this agreement applies." The same reference to
"activities to which this agreement applies" is found in Article VII on Importation and
Exportation. Article I, in defining "United States personnel" as "United States military and
civilian personnel temporarily in the Philippines in connection with activities approved by the
Philippine Government," does not limit the scope of the "activities" that the Philippine
Government may "approve."

4
McGeary, Next Stop Mindanao, Time Magazine, January 28, 2002, p. 22.

5
Philippine Daily Inquirer, April 6, 2002.

6
See www.historyplace.com, Also Ambrose, Stephen, Rise to Globalism: American Foreign
Policy since 1938 (Fifth Rev, Ed.),

7
Id.

8
Microsoft Encyclopedia Encarta (2000).

9
Philippine Daily Inquirer, March 21,2002.

10
Manila Bulletin, February 2, 2002.

11
Philippine Star, March 13,2002.

12
"Democratic Senate Majority Leader Tom Daschle criticized the US administration's war
terrorism yesterday, charging that it has undergone an expansion without at least a clear
direction."

"How long can we stand this kind of pressure on our treasury?.. We seem to be good at
developing enhance strategies, not so good at developing exit strategies, he charged." (The
Philippine Star, March 2, 2002).

13
The Philippine Star, March 2, 2002.

14
Sec. 1, Rule 129, RULES OF COURT.

15
Entitled "Measures to Prevent International Terrorism which Endangers or Takes Innocent
Human Lives or Jeopardizes Fundamental Freedoms and Study of the Underlying Causes of
Those Forms of Terrorism and Acts of Violence which Lie in Misery, Frustration, Grievance
and Despair and which Cause Some People to Sacrifice Human Lives, including Their Own,
in an Attempt to Effect Radical Changes." 2 November 1972, 27th Session. The pertinent
portions of the study state:

13. Man is one of the few species that frequently uses violence against its own kind.
He has done so since the dawn of history. In the past, periods in which violence has
been especially conspicuous have been those of rapid social change. During the
years of the existence of the United Nations, when in most parts of the world, and in
both the

181
developed and the developing countries, the patters of society are changing with
almost unprecedented speed, violence has been frequent.

14. The interlinked growth of technology and growth of population have tended to
create new hopes, expectations and needs in many social groups. These new
attitudes mark a departure from the resignation and passivity with which most men in
the past accepted the ills of life. The United Nations Charter is the voice of the
aspirations of mankind when it contemplates the establishment of a world in which
aggression and the threat or use of force in international relations would be
effectively outlawed, friendly relations would exist among nations on the basis of
respect for the principles of equal rights and self- determination of peoples,
international disputes would be settled justly be peaceful, and international co-
operation would solve international economic and social problems and promote
respect for human rights and fundamental freedoms for all.

15. The period of the existence of the United Nations, however, has shown very
incomplete and uneven progress towards these goals. While major wars involving
the great Power have not occurred, force has often been resorted to, and has
inflicted suffering and exile upon peoples. While progress has been made against
colonialism and racism, those evils have not yet been completely eliminated. Even
where political independence has been established, in many cases much remains to
be done in assisting the populations to attain the minimum level necessary for decent
conditions of life. Few advances have been made towards the peaceful settlement of
some major international disputes, which are too often left to fester and poison
international relations. Among groups where economic and social progress has been
relatively slow, conditions have been unfavourable to the exercise of and the respect
for human rights and fundamental freedom.

16. The lack of slowness of advance towards these goals has contributed toward the
"misery, frustration, grievance and despair" which, while not themselves causes of
terrorism, are psychological conditions or states of being which sometimes lead,
directly or indirectly, to the commission of acts of violence. While in the United
Nations context it is perhaps appropriate to give special attention to the international
factor that contribute to violence, there are also many situations in individual nations
which may give rise to the grievance of a particular group or person, leading to acts
having international repercussions. Purely personal circumstances can also often
have the same result. There are also cases in which there is no genuine grievance at
all, and a violent crime affecting more than one country seems to have been
committed from mere cupidity, or a desire to escape criminal prosecution. The
General Assembly, however, in stressing "misery, frustration, grievance and despair,
seems to have singled out for special attention those situations which have the
common characteristic of calling for redress.

17. Why is it that violence resulting from these circumstances takes with increasing
frequency the form of international terrorism, threatening, endangering or killing
innocent victims? As the peoples of the world grow more interdependent the solution
of many problems no longer hangs on any local ruler or government, but on actions
and decisions taken thousands of miles away. Men think their ills have been
produced by some vast impersonal force, which is deaf to their pleas for justice or
impotent to find solutions, rather than by other men, striving for similar although
opposed ends and bound to them by the claims of a common humanity. Modem
communications and the growth of the public information media have transformed
local incidents into world events, especially when the incidents have an international

182
 character. A terrorist act focuses world attention upon the terrorist and upon any
cause he may claim to represent. In these circumstances, some such acts - which,
as has already been said, cannot possibly by themselves effect radical social
changes -are really acts of communication. They are intended to show the world that
the determination and devotion of the terrorists are sufficient to compensate in the
long run for their apparent inferiority in strength; that their cause is more holy to them
than life itself, must be taken seriously, and is worthy of support; and that neither
their foe nor the world at-Iarge is able to prevent their success in their purpose, or
ensure punishment of their deeds and those of their associates.

18. Other such acts, however, seem to be more the result of blind fanaticism, or of
the adoption of an extremist ideology which subordinates morality and all other
human values to a single aim. In either case, the result is the same; modern life and
modern weapons bring more and more strangers and foreigners within the reach of
the terrorist, and he uses them as instruments for his purpose. As violence breeds
violence, so terrorism begets counter-terrorism, which in turn leads to more terrorism
in an ever-increasing spiral,

xxx

20. It thus appears that the "misery, frustration, grievance and despair" which lead to
terrorism have many roots in international and national political, economic and social
situations affecting the terrorist, as well as in his personal circumstances. The
precise chain of causation of particular acts cannot be traced with scientific
exactitude. Nevertheless, the General Assembly may wish to identify types of
situations which, if a remedy could be found to bring them more into accord with
justice, will cease to contribute to the spreading terrorism which has shocked the
world.

Dañguilan Vitug and Gloria (Under the Crescent Moon: Rebellion in Mindanao,
16

supra.) write:

Indeed, a man is inspired by his belief but is constrained by his environment. And
Basilan, where Janjalani grew up, is a place where the laws set by men are flouted
daily. It is a place where people of weak resolve could give in to the challenges
posed by power, either the lack or possession of it. It certainly is not a place
conducive for reflection or reinforcing pure religious thoughts.

Mindanao's best war laboratory, Basilan is one of the Country's poorest provinces
where all sorts of armed groups dominate a populace long neglected by government.
Local rulers compete for legitimacy with armed rebel groups, bandits, Muslim
preachers, Catholic volunteers, loggers legal and illegal, the Marines, the Army. In
this sense, the Abu Sayyaf was ripe for growth. Modern history has proven that
whenever the legitimacy of the state suffers and the economy goes down, other
forces come to fore as alternative. Janjalani had offered solace to those who
bothered to listen to him. The reality of Basilan, after all, is its deadly environment:
grinding poverty, the absence of the rule of law, and the proliferation of arms and of
men who thrive on them. It is no coincidence that a group with such amorphous
beginnings as the Abu Sayyaf was established in a province that remains poor
despite its fertile, lushly forested land and its proximity to Zamboanga City. It didn't
matter that Janjalani went to the Catholic-run Clarest school. Janjalani, or any local

183
 leader for that matter, would have found it difficult to detach himself from this
environment.

Former MNLF members in Basilan who have known little more than how to was
kidnapping, and it gave Abu Sayaff away. No group espousing a true Islamic state
would have resorted to kidnapping in such a random, blatant style as the Abu Sayyaf
did in its heyday.

It also didn't help that the governrnent and the media unfairly lumped Islamic
fundamentalism and terrorism together because the Abu Sayyaf, which espouses the
former, has been suing the latter as a means to fight for its cause. (At 206-207.)

17
DANGUILAN VITUG AND GLORIA, at 244-245.

18
Bayan vs. Zamora, 342 SCRA 449 (2002).

EN BANC

G.R. No. 151445 APRIL 11, 2002

ARTHUR D. LIM, ET AL., petitioners,

vs.
HONORABLE EXECUTIVE SECRETARY, ETC., ET AL., respondents.
SANLAKAS, ET AL., intervenors.

SEPARATE OPINION*

PANGANIBAN, J:

Through their "Petition for Certiorari and, Prohibition," Arthur D. Lim and Paulino R. Ersanda -- joined
by Intervenors Sanlakas and Partido ng Manggagawa -- plead for the issuance of an order
"restraining the respondents from proceeding or continuing and completing the so-called 'Balikatan
02-1'" on the ground that the exercise is not sanctioned by any treaty and is, therefore, allegedly
unconstitutional.

Agreeing with the Comment of the Office of the Solicitor General (OSG), the ponencia of Mr. Justice
Sabino R. de Leon Jr. dismisses the Petition essentially on these procedural grounds:

1. As taxpayers, petitioners do not have legal standing or locus standi, because Balikatan
02-1 "does not involve the exercise by Congress of its taxing or spending power."

2. Certiorari and prohibition are improper remedies, because petitioners have not alleged
sufficient facts upon which grave abuse of discretion or excess/lack of jurisdiction could be
argued from.

3. The Petition is premature because the alleged violation of the Constitution is merely
speculative, not actual or imminent.

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 4. Though entitled "Certiorari and Prohibition," the Petition is really one for declaratory relief
which merely seeks an advice or opinion, not a decision. The Supreme Court has no
jurisdiction to issue opinions or advices.

Ordinarily, the above reasons would indeed be sufficient to cause the dismissal of a petition.
However, because of the "transcendental importance" of the main question raised - the
constitutionality of the Balikatan exercise - the Court, I believe, could have exempted this case from
these procedural requirements and tackled the case on the merits, if only to put to rest the legality of
this major event of public interest ill our country and even ill the world. I, for one, would have voted to
set aside these legalistic obstacles, had the Petition presented enough factual moorings upon which
to base an intelligent discussion and disposition of the legal issues.

For instance, this Court cannot be called upon to decide the factual issues of whether the US forces
are actually engaging the Abu Sayyaf Group ill combat and whether they will stay ill our country
permanently. This Court has no authority to conduct a trial, which can establish these factual
antecedents. Knowing what these antecedents are is necessary to determine whether the Balikatan
violates the Constitution or the Mutual Defense Treaty (MDT) of 1951 or the Visiting Forces
Agreement (VFA) of 1999. Verily, the Petition has not even alleged that the American troops have
indeed been unconstitutionally engaged ill actual offensive combat. The contention that they would
necessarily and surely violate the Constitution by participating ill the joint exercise in Basilan is
merely speculative. Petitioners aver:

"American soldiers with high-tech weaponry, disguised as trainers or advisers to Filipino

troops, will go to the war zones of Basilan. Hence, while dubbed as a military exercise, it is in
reality a continuing combat operation by the AFP against the Abu Sayyaf to be participated in
this time by U.S. troops. It has been admitted that U.S. 'advisers' will accompany Filipino
soldiers on patrol in the combat zones.

Also, a base of operation will be in the Sampinit complex which is in the heartland of the Abu
Sayyaf's 'territorial domain' in Basilan island. A shooting war, not just an exercise, is
unavoidable."

That a "shooting war is unavoidable" is conjectural; at best, a conclusion that is not borne by solid
factual moorings. Cases cannot be decided on mere speculation or prophecy .The Petition claims
that while the us troops are "disguised" as "advisers" or "trainors" or "chaperons," they are actually
combatants engaged in an offensive war against local insurgents. Again, there is no solid factual
basis for this statement. It may or may not be true. The Petition also alleges, again without firm
factual support, that the American forces will stay here indefinitely "for a year or even more
depending on the need of the AFP for them."

On the other hand, the OSG assures that petitioners' "apprehensions are belied" by the Terms of
Reference (TOR) approved by both the Philippines and the United States, which "expressly limit. the
conduct and completion of the exercise within a period not exceeding six " (6) months and prohibits
the American participants from engaging in combat, without prejudice to their right to self-defense."

I stress that cases cannot be decided by this Court on the basis of speculative or hypothetical
assumptions like "If the facts were these, then our decision would be this; on the other hand, if the
facts change, then our ruling would be modified as follows. " Decisions of this Court especially in
certiorari and prohibition cases are issued only if the facts are clear and definite. As a rule, courts
may not consider or judge facts or matters unless they are alleged in the pleadings and proven by
the parties. Our duty is to apply the law to facts that are not in dispute.

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In the absence of firm factual findings that the Americans "will stay indefinitely" in our country or "are
engaged in actual offensive combat with local insurgents" as alleged by petitioners, respondent
Philippine officials who are hosting the Balikatan exercise cannot possibly be imputed with grave
abuse of discretion - an indispensable element of certiorari. 1âwphi 1.nêt

True, there are some questions that may genuinely be raised in regard to the Balikatan 02-1 vis-a-
vis our Constitution, the MDT and the VFA, like the following:

(1) Is the Abu Sayyaf Group composed of "international terrorists" whose acts and practices
violate the United Nations Charter to such an extent as to pose a threat to international
peace and security?

(2) Is there an "external armed attack" against the Philippines sufficient in force and
magnitude as to justify an invocation of the MDT?

(3) Are the size, the kind, and the location of the Balikatan deployment justified by the nature,
the scope, the duration, and the kind of "activities" allowed under the VFA?

(4) Is it true that the real American objective is the rescue of ASG hostages Martin and
Gracia Burnham, who are both American citizens? If so, is such rescue legally justified?

(5) Does the Balikatan pose a "political question " which the Supreme Court has no authority
to rule upon, and which may only be decided by our people directly or through their I elected
representatives?

Unfortunately, the foregoing and other similar nagging questions cannot be judicially taken up and
answered until a petition, sufficient in form and substance, is properly presented to the appropriate
court.

FOR THE FOREGOING REASONS, I vote to DISMISS the present Petition.

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