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77 Philippines 856 Laurel VS Misa
77 Philippines 856 Laurel VS Misa
Separate Opinions
PERFECTO, J., concurring:
Treason is a war crime. It is not an all-time offense. It cannot be committed in peace time. While
there is peace, there are no traitors. Treason may be incubated when peace reigns. Treasonable
acts may actually be perpetrated during peace, but there are no traitors until war has started.
As treason is basically a war crime, it is punished by the state as a measure of self-defense and self-
preservation. The law of treason is an emergency measure. It remains dormant until the emergency
arises. But as soon as war starts, it is relentlessly put into effect. Any lukewarm attitude in its
enforcement will only be consistent with national harakiri. All war efforts would be of no avail if they
should be allowed to be sabotaged by fifth columnists, by citizens who have sold their country out to
the enemy, or any other kind of traitors, and this would certainly be the case if he law cannot be
enforced under the theory of suspension.
Petitioner's thesis that allegiance to our government was suspended during enemy occupation is
advanced in support of the proposition that, since allegiance is identical with obedience to law, during
the enemy occupation, the laws of the Commonwealth were suspended. Article 114 of the Revised
Penal Code, the law punishing treason, under the theory, was one of the laws obedience to which
was also suspended.
Allegiance has been defined as the obligation for fidelity and obedience which the individual owes to
his government or his sovereign in return for the protection which he receives.
"Allegiance", as the return is generally used, means fealty or fidelity to the government of
which the person is either a citizen or subject. Murray vs. The Charming Betsy, 6 U.S. (2
Cranch), 64, 120; 2 Law. ed., 208.
"Allegiance" was said by Mr. Justice Story to be "nothing more than the tie or duty of
obedience of a subject to the sovereign, under whose protection he is." United
States vs. Wong Kim Ark, 18 S. Ct., 461; 169 U.S., 649; 42 Law. ed., 890.
Allegiance is that duty which is due from every citizen to the state, a political duty binding on
him who enjoys the protection of the Commonwealth, to render service and fealty to the
federal government. It is that duty which is reciprocal to the right of protection, arising from
the political relations between the government and the citizen. Wallace vs. Harmstad, 44 Pa.
(8 Wright), 492, 501.
By "allegiance" is meant the obligation to fidelity and obedience which the individual owes to
the government under which he lives, or to his sovereign, in return for the protection which he
receives. It may be an absolute and permanent obligation, or it may be a qualified and
temporary one. A citizen or subject owes an absolute and permanent allegiance to his
government or sovereign, or at least until, by some open and distinct act, he renounces it and
becomes a citizen or subject of another government or sovereign, and an alien while
domiciled in a country owes it a temporary allegiance, which is continuous during his
residence. Carlisle vs.United States, 83 U.S. (16 Wall.), 147, 154; 21 Law ed., 426.
"Allegiance," as defined by Blackstone, "is the tie or ligament which binds the subject to the
King, in return for that protection which the King affords the subject. Allegiance, both
expressed and implied, is of two sorts, the one natural, the other local, the former being
perpetual, the latter temporary. Natural allegiance is such as is due from all men born within
the King's dominions immediately upon their birth, for immediately upon their birth they are
under the King's protection. Natural allegiance is perpetual, and for this reason, evidently
founded on the nature of government. Allegiance is a debt due from the subject upon an
implied contract with the prince that so long as the one affords protection the other will
demean himself faithfully. Natural-born subjects have a great variety of rights which they
acquire by being born within the King's liegance, which can never be forfeited but by their
own misbehaviour; but the rights of aliens are much more circumscribed, being acquired only
by residence, and lost whenever they remove. If an alien could acquire a permanent property
in lands, he must owe an allegiance equally permanent to the King, which would probably be
inconsistent with that which he owes his natural liege lord; besides, that thereby the nation
might, in time, be subject to foreign influence and feel many other inconveniences." Indians
within the state are not aliens, but citizens owing allegiance to the government of a state, for
they receive protection from the government and are subject to its laws. They are born in
allegiance to the government of the state. Jackson vs. Goodell, 20 Johns., 188, 911. (3
Words and Phrases, Permanent ed., 226-227.)
Allegiance. — Fealty or fidelity to the government of which the person is either a citizen or
subject; the duty which is due from every citizen to the state; a political duty, binding on him
who enjoys the protection of the commonwealth, to render service and fealty to the federal
government; the obligation of fidelity and obedience which the individual owes to the
government or to the sovereign under which he lives in return for the protection he receives;
that duty is reciprocal to the right of protection he receives; that duty which is reciprocal to the
right of protection, arising from the political relations between the government and the citizen.
Classification. — Allegiance is of four kinds, namely: (1) Natural allegiance — that which
arises by nature and birth; (2) acquired allegiance — that arising through some circumstance
or act other than birth, namely, by denization or naturalization; (3) local allegiance-- that
arising from residence simply within the country, for however short a time; and (4) legal
allegiance — that arising from oath, taken usually at the town or leet, for, by the common law,
the oath of allegiance might be tendered to every one upon attaining the age of twelve years.
(3 C.J.S., p.885.)
Allegiance. — the obligation of fidelity and obedience which the individual owes to the
government under which he lives, or to his sovereign in return for the protection he receives.
15 R.C.L., 140. (Ballentine Law Dictionary, p. 68.).
"Allegiance," as its etymology indicates, is the name for the tie which binds the citizen to his
state — the obligation of obedience and support which he owes to it. The state is the political
person to whom this liege fealty is due. Its substance is the aggregate of persons owing this
allegiance. The machinery through which it operates is its government. The persons who
operate this machinery constitute its magistracy. The rules of conduct which the state utters
or enforces are its law, and manifest its will. This will, viewed as legally supreme, is its
sovereignty. (W.W. Willoughby, Citizenship and Allegiance in Constitutional and International
Law, 1 American Journal of International Law, p. 915.).
The obligations flowing from the relation of a state and its nationals are reciprocal in
character. This principle had been aptly stated by the Supreme Court of the United States in
its opinion in the case of Luria vs. United States:
Citizenship is membership in a political society and implies a duty of allegiance on the part of
the member and a duty protection on the part of the society. These are reciprocal obligations,
one being a compensation for the other. (3 Hackworth, Digest of International Law, 1942 ed.,
p.6.)
Allegiance. — The tie which binds the citizen to the government, in return for the protection
which the government affords him. The duty which the subject owes to the sovereign,
correlative with the protection received.
It is a comparatively modern corruption of ligeance (ligeantia), which is derived from liege
(ligius), meaning absolute or unqualified. It signified originally liege fealty, i. e., absolute and
qualified fealty. 18 L. Q. Rev., 47.
x xx xx x xxx
Allegiance may be an absolute and permanent obligation, or it may be a qualified and
temporary one; the citizen or subject owes the former to his government or sovereign, until by
some act he distinctly renounces it, whilst the alien domiciled in the country owes a
temporary and local allegiance continuing during such residence. (Carlisle vs. United States,
16 Wall. [U.S.], 154; 21 Law. ed., 426. (1 Bouvier's Law Dictionary, p. 179.).
The above quotations express ideas that do not fit exactly into the Philippine pattern in view of the
revolutionary insertion in our Constitution of the fundamental principle that "sovereignty resides in the
people and all government authority emanates from them." (Section 1, Article II.) The authorities
above quoted, judges and juridical publicists define allegiance with the idea that sovereignty resides
somewhere else, on symbols or subjects other than the people themselves. Although it is possible
that they had already discovered that the people and only the people are the true sovereign, their
minds were not yet free from the shackles of the tradition that the powers of sovereignty have been
exercised by princes and monarchs, by sultans and emperors, by absolute and tyrannical rules
whose ideology was best expressed in the famous words of one of the kings of France: "L'etat c'est
moi," or such other persons or group of persons posing as the government, as an entity different and
in opposition to the people themselves. Although democracy has been known ever since old Greece,
and modern democracies in the people, nowhere is such principle more imperative than in the
pronouncement embodied in the fundamental law of our people.
To those who think that sovereignty is an attribute of government, and not of the people, there may
be some plausibility in the proposition that sovereignty was suspended during the enemy occupation,
with the consequence that allegiance must also have been suspended, because our government
stopped to function in the country. But the idea cannot have any place under our Constitution. If
sovereignty is an essential attribute of our people, according to the basic philosophy of Philippine
democracy, it could not have been suspended during the enemy occupation. Sovereignty is the very
life of our people, and there is no such thing as "suspended life." There is no possible middle
situation between life and death. Sovereignty is the very essence of the personality and existence of
our people. Can anyone imagine the possibility of "suspended personality" or "suspended existence"
of a people? In no time during enemy occupation have the Filipino people ceased to be what they are.
The idea of suspended sovereignty or suspended allegiance is incompatible with our Constitution.
There is similarity in characteristics between allegiance to the sovereign and a wife's loyalty to her
husband. Because some external and insurmountable force precludes the husband from exercising
his marital powers, functions, and duties and the wife is thereby deprived of the benefits of his
protection, may the wife invoke the theory of suspended loyalty and may she freely share her bed
with the assailant of their home? After giving aid and comfort to the assailant and allowing him to
enjoy her charms during the former's stay in the invaded home, may the wife allege as defense for
her adultery the principle of suspended conjugal fidelity?
Petitioner's thesis on change of sovereignty at the advent of independence on July 4, 1946, is
unacceptable. We have already decided in Brodett vs. De la Rosa and Vda. de Escaler (p. 752, ante)
that the Constitution of the Republic is the same as that of the Commonwealth. The advent of
independence had the effect of changing the name of our Government and the withdrawal by the
United States of her power to exercise functions of sovereignty in the Philippines. Such facts did not
change the sovereignty of the Filipino people. That sovereignty, following our constitutional
philosophy, has existed ever since our people began to exist. It has been recognized by the United
States of America, at least since 1935, when President Roosevelt approved our Constitution. By such
act, President Roosevelt, as spokesman of the American people, accepted and recognized the
principle that sovereignty resides in the people that is, that Philippine sovereignty resides in the
Filipino people.
The same sovereignty had been internationally recognized long before the proclamation of
independence on July 4, 1946. Since the early part of the Pacific war, President Quezon had been
sitting as representative of a sovereign people in the Allied War Council, and in June, 1945, the same
Filipino people took part — outstanding and brilliant, it may be added — in the drafting and adoption
of the charter of the United Nations, the unmistakable forerunner of the future democratic federal
constitution of the world government envisioned by all those who adhere to the principle of unity of all
mankind, the early realization of which is anxiously desired by all who want to be spared the
sufferings, misery and disaster of another war.
Under our Constitution, the power to suspend laws is of legislative nature and is lodged in Congress.
Sometimes it is delegated to the Chief Executive, such as the power granted by the Election Code to
the President to suspend the election in certain districts and areas for strong reasons, such as when
there is rebellion, or a public calamity, but it has never been exercised by tribunals. The Supreme
Court has the power to declare null and void all laws violative of the Constitution, but it has no power,
authority, or jurisdiction to suspend or declare suspended any valid law, such as the one on treason
which petitioner wants to be included among the laws of the Commonwealth which, by his theory of
suspended allegiance and suspended sovereignty, he claims have been suspended during the
Japanese occupation.
Suppose President Quezon and his government, instead of going from Corregidor to Australia, and
later to Washington, had fled to the mountains of Luzon, and a group of Filipino renegades should
have killed them to serve the interests of the Japanese imperial forces. By petitioner's theory, those
renegades cannot be prosecuted for treason or for rebellion or sedition, as the laws punishing them
were suspended. Such absurd result betrays the untenability of the theory.
"The defense of the State is a prime duty of Government, and in the fulfillment of that duty all citizens
may be required by law to render personal, military or civil service." Thus, section 2 of Article II of the
Constitution provides: That duty of defense becomes more imperative in time of war and when the
country is invaded by an aggressor nation. How can it be fulfilled if the allegiance of the citizens to
the sovereign people is suspended during enemy occupation? The framers of the Constitution surely
did not entertain even for the moment the absurdity that when the allegiance of the citizens to the
sovereign people is more needed in the defense of the survival of the state, the same should be
suspended, and that upon such suspension those who may be required to render personal, military
or civil service may claim exemption from the indispensable duty of serving their country in distress.
Petitioner advances the theory that protection in the consideration of allegiance. He argues that the
Commonwealth Government having been incapacitated during enemy occupation to protect the
citizens, the latter were relieved of their allegiance to said government. The proposition is untenable.
Allegiance to the sovereign is an indispensable bond for the existence of society. If that bond is
dissolved, society has to disintegrate. Whether or not the existence of the latter is the result of the
social compact mentioned by Roseau, there can be no question that organized society would be
dissolved if it is not united by the cohesive power of the citizen's allegiance. Of course, the citizens
are entitled to the protection of their government, but whether or not that government fulfills that duty,
is immaterial to the need of maintaining the loyalty and fidelity of allegiance, in the same way that the
physical forces of attraction should be kept unhampered if the life of an individual should continue,
irrespective of the ability or inability of his mind to choose the most effective measures of personal
protection.
After declaring that all legislative, executive, and judicial processes had during and under the
Japanese regime, whether executed by the Japanese themselves or by Filipino officers of the puppet
government they had set up, are null and void, as we have done in our opinions in Co Kim Cham vs.
Valdez Tan Keh and Dizon (75 Phil., 113), in Peralta vs. Director of Prison (75, Phil., 285), and in
several other cases where the same question has been mentioned, we cannot consistently accept
petitioner's theory.
If all laws or legislative acts of the enemy during the occupation were null and void, and as we cannot
imagine the existence of organized society, such as the one constituted by the Filipino people,
without laws of the Commonwealth were the ones in effect during the occupation and the only ones
that could claim obedience from our citizens.
Petitioner would want us to accept the thesis that during the occupation we owed allegiance to the
enemy. To give way to that paradoxical and disconcerting allegiance, it is suggested that we accept
that our allegiance to our legitimate government was suspended. Petitioner's proposition has to fall
by its own weight, because of its glaring absurdities. Allegiance, like its synonyms, loyalty and fidelity,
is based on feelings of attraction, love, sympathy, admiration, respect, veneration, gratitude, amity,
understanding, friendliness. These are the feelings or some of the feelings that bind us to our own
people, and are the natural roots of the duty of allegiance we owe them. The enemy only provokes
repelling and repulsive feelings — hate, anger, vexation, chagrin, mortification, resentment, contempt,
spitefulness. The natural incompatibility of political, social and ethical ideologies between our people
and the Japanese, making impossible the existence of any feeling of attraction between them, aside
from the initial fact that the Japanese invaded our country as our enemy, was aggravated by the
morbid complexities of haughtiness, braggadocio and beastly brutality of the Nippon soldiers and
officers in their dealings with even the most inoffensive of our citizens.
Giving bread to our enemy, and, after slapping one side of our face, offer him the other to be further
slapped, may appear to be divinely charitable, but to make them a reality, it is necessary to change
human nature. Political actions, legal rules and judicial decisions deal with human relations, taking
man as he is, not as he should be. To love the enemy is not natural. As long as human psychology
remains as it is, the enemy shall always be hated. Is it possible to conceive an allegiance based on
hatred?
The Japanese, having waged against us an illegal war condemned by prevailing principles of
international law, could not have established in our country any government that can be legally
recognized as de facto. They came as bandits and ruffians, and it is inconceivable that banditry and
ruffianism can claim any duty of allegiance — even a temporary one — from a decent people.
One of the implications of petitioner's theory, as intimated somewhere, is that the citizens, in case of
invasion, are free to do anything not forbidden by The Hague Conventions. Anybody will notice
immediately that the result will be the doom of small nations and peoples, by whetting the
covetousness of strong powers prone on imperialistic practices. In the imminence of invasion, weak-
hearted soldiers of the smaller nations will readily throw away their arms to rally behind the palladium
of the invaders.
Two of the three great departments of our Government have already rejected petitioner's theory
since September 25, 1945, the day when Commonwealth Act No. 682 took effect. By said act,
creating the People's Court to try and decide all cases of crime against national security "committed
between December 8, 1941 and September 2, 1945," (section 2), the legislative and executive
departments have jointly declared that during the period above mentioned, including the time of
Japanese occupation, all laws punishing crimes against national security, including article 114 of the
Revised Penal Code, punishing treason, had remained in full effect and should be enforced.
That no one raised a voice in protest against the enactment of said act and that no one, at the time
the act was being considered by the Senate and the House of Representatives, ever dared to expose
the uselessness of creating a People's Court to try crime which, as claimed by petitioner, could not
have been committed as the laws punishing them have been suspended, is a historical fact of which
the Supreme Court may take judicial notice. This fact shows universal and unanimous agreement of
our people that the laws of the Commonwealth were not suspended and that the theory of suspended
allegiance is just an afterthought provoked by a desperate effort to help quash the pending treason
cases at any cost.
Among the arguments adduced in favor of petitioner's theory is that it is based on generally accepted
principles of international law, although this argument becomes futile by petitioner's admission that
the theory is advantageous to strong powers but harmful to small and weak nations, thus hinting that
the latter cannot accept it by heart. Suppose we accept at face value the premise that the theories,
urged by petitioner, of suspended allegiance and suspended sovereignty are based on generally
accepted principles of international law. As the latter forms part of our laws by virtue of the provisions
of section 3 of Article II of the Constitution, it seems that there is no alternative but to accept the
theory. But the theory has the effect of suspending the laws, especially those political in nature.
There is no law more political in nature than the Constitution of the Philippines. The result is an
inverted reproduction of the Greek myth of Saturn devouring his own children. Here, under
petitioner's theory, the offspring devours its parent.
Can we conceive of an instance in which the Constitution was suspended even for a moment?
There is conclusive evidence that the legislature, as policy-determining agency of government, even
since the Pacific war started on December 7, 1941, intimated that it would not accept the idea that
our laws should be suspended during enemy occupation. It must be remembered that in the middle
of December, 1941, when Manila and other parts of the archipelago were under constant bombing by
Japanese aircraft and enemy forces had already set foot somewhere in the Philippines, the Second
National Assembly passed Commonwealth Act No. 671, which came into effect on December 16,
1941. When we approved said act, we started from the premise that all our laws shall continue in
effect during the emergency, and in said act we even went to the extent of authorizing the President
"to continue in force laws and appropriations which would lapse or otherwise become inoperative,"
(section 2, [d]), and also to "promulgate such rules and regulations as he may deem necessary to
carry out the national policy," (section 2), that "the existence of war between the United States 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." (Section 1.) To give
emphasis to the intimation, we provided that the rules and regulations provided "shall be in force and
effect until the Congress of the Philippines shall otherwise provide," foreseeing the possibility that
Congress may not meet as scheduled as a result of the emergency, including invasion and
occupation by the enemy. Everybody was then convinced that we did not have available the
necessary means of repelling effectivity the enemy invasion.
Maybe it is not out of place to consider that the acceptance of petitioner's theory of suspended
allegiance will cause a great injustice to those who, although innocent, are now under indictment for
treason and other crimes involving disloyalty to their country, because their cases will be dismissed
without the opportunity for them to revindicate themselves. Having been acquitted upon a mere legal
technicality which appears to us to be wrong, history will indiscriminality classify them with the other
accused who were really traitors to their country. Our conscience revolts against the idea of allowing
the innocent ones to go down in the memory of future generations with the infamous stigma of having
betrayed their own people. They should not be deprived of the opportunity to show through the due
process of law that they are free from all blame and that, if they were really patriots, they acted as
such during the critical period of test.