Types of Government :

De Jure and De Facto Government

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.

Facts:

Petitioner Co Kim Cham has a pending civil case ( Case No. 3012 ) which happened during the
Japanese occupation with the Court of First Instance of Manila. He is petitioning the respondent judge of
the lower court be ordered to continue proceedings for this civil case.

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 furthermore lower courts have no jurisdiction to continue judicial
proceeding. 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 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 the government of the Philippines is subject
to supreme authority of the United States, that the laws existing on the statute of books of the
Commonwealth of the Philippines and regulations are in full effect in the areas free of occupation, and
hat all laws, regulations and processes of any other government in the Philippines than that of the said
Commonwealth are null and void.

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."

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 court resolved Three issues :

1. 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.
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;
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.

There are several kinds of De Facto Government :

1. 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
2. established and maintained by military forces who invade and occupy a territory of the enemy
3. established as an independent government by the inhabitants of a country who rise in insurrection
against the parent state

Even if the Republic of the Philippines had been established by the free will which took 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 United States and as such, it would have been a de
facto government.

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

Also not only judicial but also legislative acts of de facto governments 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, the court said, hinges on the interpretation of the phrase “processes of any other
government” and whether or not he intended it to annul all other judgments and judicial proceedings of
courts during the Japanese military occupation.
IF, according to international law, non-political judgments and judicial proceedings of de facto
governments are valid and remain valid even after the occupied territory has been liberated, then it could
not have been MacArthur’s intention to refer to judicial processes, which would be in violation of
international law.

3. Annulling judgments of courts made during the Japanese occupation would clog the dockets and
violate international law, therefore what MacArthur said should not be construed to mean that judicial
proceedings are included in the phrase “processes of any other governments.”
In the case of US vs Reiter, the court said that if such laws and institutions are continued in use by the
occupant, they become his and derive their force from him. The laws and courts of the Philippines did not
become, by being continued as required by the law of nations, laws and courts of Japan.
It is a legal maxim that, excepting of a political nature, “law once established continues until changed by
some competent legislative power it is not change merely by change of sovereignty.” Until, of course, the
new sovereign by legislative act creates a change.
Therefore, even assuming that Japan legally acquired sovereignty over the Philippines, and the laws and
courts of the Philippines had become courts of Japan, as the said courts and laws creating and
conferring jurisdiction upon them have continued in force until now, it follows that the same courts may
continue exercising the same jurisdiction over cases pending therein before the restoration of the
Commonwealth Government, until abolished or the laws creating and conferring jurisdiction upon them
are repealed by the said government.

Issue :
Whether or not the Court of First Instance of Manila has jurisdiction to continue to final judgment the
proceedings in civil case No. 3012

Held:

1. Yes. With the establishment that the Philippine Executive Commission and the Republic of the
Philippines during the Japanese military occupation being de facto governments, the present courts as
the same courts which had been functioning during the Japanese regime and, therefore, can continue
the proceedings in cases pending. This is prior to the restoration of the Commonwealth of the Philippines
which was confirmed by Executive Order No. 37. The said Order considers that the Court of Appeals
abolished was the same that existed prior to, and continued after, and 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.

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.