G.R. No.

118910 November 16, 1995

KILOSBAYAN, INCORPORATED, JOVITO R. SALONGA, CIRILO A. RIGOS, ERME CAMBA, EMILIO C.

CAPULONG, JR., JOSE T. APOLO, EPHRAIM TENDERO, FERNANDO SANTIAGO, JOSE ABCEDE, CHRISTINE
TAN, RAFAEL G. FERNANDO, RAOUL V. VICTORINO, JOSE CUNANAN, QUINTIN S. DOROMAL, SEN.
FREDDIE WEBB, SEN. WIGBERTO TAÑADA, REP. JOKER P. ARROYO, petitioners,
vs.
MANUEL L. MORATO, in his capacity as Chairman of the Philippine Charity Sweepstakes Office, and the
PHILIPPINE GAMING MANAGEMENT CORPORATION, respondents.

RESOLUTION

MENDOZA, J.:

Petitioners seek reconsideration of our decision in this case. They insist that the decision in the first case
has already settled (1) whether petitioner Kilosbayan, Inc. has a standing to sue and (2) whether under
its charter (R.A. No. 1169, as amended) the Philippine Charity Sweepstakes Office can enter into any
form of association or collaboration with any party in operating an on-line lottery. Consequently,
petitioners contend, these questions can no longer be reopened.

Because two members of the Court did not consider themselves bound by the decision in the first case,
petitioners suggest that the two, in joining the dissenters in the first case in reexamining the questions
in the present case, acted otherwise than according to law. They cite the following statement in the
opinion of the Court:

The voting on petitioners' standing in the previous case was a narrow one, with seven (7) members
sustaining petitioners' standing and six (6) denying petitioners' right to bring the suit. The majority was
thus a tenuous one that is not likely to be maintained in any subsequent litigation. In addition, there
have been changes in the membership of the Court, with the retirement of Justices Cruz and Bidin and
the appointment of the writer of this opinion and Justice Francisco. Given this fact it is hardly tenable to
insist on the maintenance of the ruling as to petitioners' standing.

Petitioners claim that this statement "conveys a none too subtle suggestion, perhaps a Freudian slip,
that the two new appointees, regardless of the merit of the Decision in the first Kilosbayan case against
the lotto (Kilosbayan, et al. v. Guingona, 232 SCRA 110 (1994)) must of necessity align themselves with
all the Ramos appointees who were dissenters in the first case and constitute the new majority in the
second lotto case." And petitioners ask, "why should it be so?"

Petitioners ask a question to which they have made up an answer. Their attempt at psychoanalysis,
detecting a Freudian slip where none exists, may be more revealing of their own unexpressed wish to
find motives where there are none which they can impute to some members of the Court.

For the truth is that the statement is no more than an effort to explain — rather than to  justify — the
majority's decision to overrule the ruling in the previous case. It is simply meant to explain that because
the five members of the Court who dissented in the first case (Melo, Quiason, Puno, Vitug and
Kapunan, JJ.) and the two new members (Mendoza and Francisco, JJ.) thought the previous ruling to be
erroneous and its reexamination not to be barred by stare decisis, res judicata  or conclusiveness of
judgment, or law of the case, it was hardly tenable for petitioners to insist on the first ruling.

Consequently to petitioners' question "What is the glue that holds them together," implying some
ulterior motives on the part of the new majority in reexamining the two questions, the answer is: None,
except a conviction on the part of the five, who had been members of the Court at the time they
dissented in the first case, and the two new members that the previous ruling was erroneous. The
eighth Justice (Padilla, J.) on the other hand agrees with the seven Justices that the ELA is in a real sense
a lease agreement and therefore does not violate R.A. No. 1169.

The decision in the first case was a split decision: 7-6. With the retirement of one of the original majority
(Cruz, J.) and one of the dissenters (Bidin, J.) it was not surprising that the first decision in the first case
was later reversed.

It is argued that, in any case, a reexamination of the two questions is barred because the PCSO and the
Philippine Gaming Management Corporation made a "  formal commitment  not to ask for a
reconsideration of the Decision in the first lotto case and instead submit a new agreement that would be
in conformity with the PCSO Charter (R.A. No. 1169, as amended) and with the Decision of the Supreme
Court in the first Kilosbayan case against on-line, hi-tech lotto."

To be sure, a new contract was entered into which the majority of the Court finds has been purged of
the features which made the first contract objectionable. Moreover, what the PCSO said in its
manifestation in the first case was the following:

1. They are no longer filing a motion for reconsideration of the Decision of this Honorable Court dated
May 5, 1994, a copy of which was received on May 6, 1994.

2. Respondents PCSO and PGMC are presently negotiating a new lease agreement consistent with the
authority of PCSO under its charter (R.A. No. 1169, as amended by B.P. Blg. 42) and conformable with
the pronouncements of this Honorable Court in its Decision of May 5, 1995.

The PGMC made substantially the same manifestation as the PCSO.

There was thus no "formal commitment" — but only a manifestation — that the parties were not filing a
motion for reconsideration. Even if the parties made a "formal commitment," the six (6) dissenting
Justices certainly could not be bound thereby not to insist on their contrary view on the question of
standing. Much less were the two new members bound by any "formal commitment" made by the
parties. They believed that the ruling in the first case was erroneous. Since in their view reexamination
was not barred by the doctrine of stare decisis, res judicata or conclusiveness of judgment or law of the
case, they voted the way they did with the remaining five (5) dissenters in the first case to form a new
majority of eight.

Petitioners ask, "Why should this be so?" Because, as explained in the decision, the first decision was
erroneous and  no legal doctrine stood in the way of its reexamination. It can, therefore, be asked "with
equal candor": "Why should this not  be so?"

Nor is this the first time a split decision was tested, if not reversed, in a subsequent case because of
change in the membership of a court. In 1957, this Court, voting 6-5, held in Feliciano v.  Aquinas, G.R.
No. L-10201, Sept. 23, 1957 that the phrase "at the time of the election" in §2174 of the Revised
Administrative Code of 1917 meant that a candidate for municipal elective position must be at least 23
years of age on the date of the election. On the other hand, the dissenters argued that it was enough if
he attained that age on the day he assumed office.

Less than three years later, the same question was before the Court again, as a candidate for municipal
councilor stated under oath in her certificate of candidacy that she was eligible for that position
although she attained the requisite age (23 years) only when she assumed office. The question was
whether she could be prosecuted for falsification. In People v.  Yang, 107 Phi. 888 (1960), the Court ruled
she could not. Justice, later Chief Justice, Benison, who dissented in the first case, Feliciano
v. Aquinas, supra, wrote the opinion of the Court, holding that while the statement that the accused was
eligible was "inexact or erroneous, according to the majority in the Feliciano case," the accused could
not be held liable for falsification, because

the question [whether the law really required candidates to have the required age on the day of the
election or whether it was sufficient that they attained it at the beginning of the term of office] has not
been discussed anew, despite the presence of new members; we simply assume  for the purpose of this
decision that the doctrine stands.

Thus because in the meantime there had been a change in the membership of the Court with the
retirement of two members (Recess and Flex, JJ.) who had taken part in the decision in the first case and
their replacement by new members (Barrera and Gutierrez-David, JJ.) and the fact that the vote in the
first case was a narrow one (6 to 5), the Court allowed that the continuing validity of its ruling in the first
case might well be doubted. For this reason it gave the accused the benefit of the doubt that she had
acted in the good faith belief that it was sufficient that she was 23 years of age when she assumed
office.

In that case, the change in the membership of the Court and the possibility of change in the ruling were
noted without anyone — much less would-be psychoanalysts — finding in the statement of the Court
any Freudian slip. The possibility of change in the rule as a result of change in membership was accepted
as a sufficient reason for finding good faith and lack of criminal intent on the part of the accused.

Indeed, a change in the composition of the Court could prove the means of undoing an erroneous
decision. This was the lesson of Knox v.  Lee, 12 Wall. 457 (1871). The Legal Tender Acts, which were
passed during the Civil War, made U.S. notes (greenbacks) legal tender for the payment of debts, public
or private, with certain exceptions. The validity of the acts, as applied to preexisting debts, was
challenged in Hepburn v.  Griswold, 8 Wall. 603 (1869). The Court was then composed of only eight (8)
Justices because of Congressional effort to limit the appointing power of President Johnson. Voting 5-3,
the Court declared the acts void. Chief Justice Chase wrote the opinion of the Court in which four others,
including Justice Grier, concurred. Justices Miller, Swayne and Davis dissented. A private memorandum
left by the dissenting Justices described how an effort was made "to convince an aged and infirm
member of the court [Justice Grier] that he had not understood the question on which he voted," with
the result that what was originally a 4-4 vote was converted into a majority (5-3) for holding the acts
invalid.

On the day the decision was announced, President Grant nominated to the Court William Strong and
Joseph P. Bradley to fill the vacancy caused by the resignation of Justice Grier and to restore the
membership of the Court to nine. In 1871, Hepburn v.  Griswold was overruled in the Legal Tender Cases,
as Knox v.  Lee  came to be known, in an opinion by Justice Strong, with a dissenting opinion by Chief
Justice Chase and the three other surviving members of the former majority. There were allegations that
the new Justices were appointed for their known views on the validity of the Legal Tender Acts, just as
there were others who defended the character and independence of the new Justices. History has
vindicated the overruling of the Hepburn case by the new majority. The Legal Tender Cases proved to be
the Court's means of salvation from what Chief Justice Hughes later described as one of the Court's
"self-inflicted wounds." 1

We now consider the specific grounds for petitioners' motion for reconsideration.

I. We have held that because there are no genuine issues of constitutionality in this case, the rule
concerning real party in interest, applicable to private litigation rather than the more liberal rule
on standing, applies to petitioners. Two objections are made against that ruling: (1) that the
constitutional policies and principles invoked by petitioners, while not supplying the basis for affirmative
relief from the courts, may nonetheless be resorted to for striking down laws or official actions which
are inconsistent with them and (2) that the Constitution, by guaranteeing to independent people's
organizations "effective and reasonable participation at all levels of social, political and economic
decision-making" (Art. XIII, §16), grants them standing to sue on constitutional grounds.

The policies and principles of the Constitution invoked by petitioner read:

Art. II, §5. The maintenance of peace and order, the protection life, liberty, and property, and
the  promotion of the general welfare are essential for the enjoyment by all the people of the blessings
of democracy.

Id., §12. The natural and primary right and duty of parents in the rearing of the youth for civic efficiency
and the development of moral character  shall receive the support of the Government.

Id., §13. The State recognizes the vital role of the youth in nation-building and shall promote and protect
their physical, moral, spiritual, intellectual, and social well-being. It shall inculcate in the youth
patriotism and nationalism, and encourage their involvement in public and civic affairs.

Id., §17. The State shall give priority to education, science and technology, arts, culture, and sports to
foster patriotism and nationalism, accelerate social progress, and promote total human liberation and
development.

As already stated, however, these provisions are not self-executing. They do not confer rights which can
be enforced in the courts but only provide guidelines for legislative or executive action. By authorizing
the holding of lottery for charity, Congress has in effect determined that consistently with these policies
and principles of the Constitution, the PCSO may be given this authority. That is why we said with
respect to the opening by the PAGCOR of a casino in Cagayan de Oro, "the morality of gambling is not a
justiciable issue. Gambling is not illegal  per se. . . . It is left to Congress to deal with the activity as it sees
fit." (Magtajas v. Pryce Properties Corp., Inc., 234 SCRA 255, 268 [1994]).

It is noteworthy that petitioners do not question the validity of the law allowing lotteries. It is the
contract entered into by the PCSO and the PGMC which they are assailing. This case, therefore, does not
raise issues of constitutionality but only of contract law, which petitioners, not being privies to the
agreement, cannot raise.
Nor does Kilosbayan's status as a people's organization give it the requisite personality to question the
validity of the contract in this case. The Constitution provides that "the State shall respect the role of
independent people's organizations to enable the people to pursue and protect, within the democratic
framework, their legitimate and collective interests and aspirations through peaceful and lawful means,"
that their right to "effective and reasonable participation at all levels of social, political, and economic
decision-making shall not be abridged." (Art. XIII, §§ 15-16)

These provisions have not changed the traditional rule that only real parties in interest  or those with
standing, as the case may be, may invoke the judicial power. The jurisdiction of this Court, even in cases
involving constitutional questions, is limited by the "case and controversy" requirement of Art. VIII, §5.
This requirement lies at the very heart of the judicial function. It is what differentiates decision-making
in the courts from decision-making in the political departments of the government and bars the bringing
of suits by just any party.

Petitioners quote extensively from the speech of Commissioner Garcia before the Constitutional
Commission, explaining the provisions on independent people's organizations. There is nothing in the
speech, however, which supports their claim of standing. On the contrary, the speech points the way to
the legislative and executive branches of the government, rather than to the courts, as the appropriate
fora for the advocacy of petitioners' views.  Indeed, the provisions on independent people's
2

organizations may most usefully be read in connection with the provision on initiative and referendum
as a means whereby the people may propose or enact laws or reject any of those passed by Congress.
For the fact is that petitioners' opposition to the contract in question is nothing more than an opposition
to the government policy on lotteries.

It is nevertheless insisted that this Court has in the past accorded standing to taxpayers and concerned
citizens in cases involving "paramount public interest." Taxpayers, voters, concerned citizens and
legislators have indeed been allowed to sue but then only (1) in cases involving constitutional issues and
(2) under certain conditions. Petitioners do not meet these requirements on standing.

Taxpayers  are allowed to sue, for example, where there is a claim of illegal disbursement of public
funds. (Pascual v. Secretary of Public Works, 110 Phi. 331 (1960); Sanidad v. Comelec, 73 SCRA 333
(1976); Bugnay Const. & Dev. v. Laron, 176 SCRA 240 (1989); City Council of Cebu v. Cuizon, 47 SCRA 325
[1972]) or where a tax measure is assailed as unconstitutional. (VAT Cases [Tolentino v. Secretary of
Finance], 235 SCRA 630 [1994]) Voters are allowed to question the validity of election laws because of
their obvious interest in the validity of such laws. (Gonzales v. Comelec, 21 SCRA 774 [1967]) Concerned
citizens  can bring suits if the constitutional question they raise is of "transcendental importance" which
must be settled early. (Emergency Powers Cases [Araneta v. Dinglasan], 84 Phi. 368 (1949); Iloilo Palay
and Corn Planters Ass'n v. Feliciano, 121 Phi. 358 (1965); Philconsa v. Gimenez, 122 Phi. 894 (1965); CLU
v. Executive Secretary, 194 SCRA 317 [1991]) Legislators  are allowed to sue to question the validity of
any official action which they claim infringes their prerogatives qua  legislators. (Philconsa v. Enriquez,
235 506 (1994); Guingona v. PCGG, 207 SCRA 659 (1992); Gonzales v. Macaraig, 191 SCRA 452 (1990);
Tolentino v. Comelec, 41 SCRA 702 (1971); Tatad v. Garcia, G.R. No. 114222, April 16, 1995 (Mendoza, J.,
concurring))

Petitioners do not have the same kind of interest that these various litigants have. Petitioners assert an
interest as taxpayers, but they do not meet the standing requirement for bringing taxpayer's suits as set
forth in Dumlao v. Comelec, 95 SCRA 392, 403 (1980), to wit:
While, concededly, the elections to be held involve the expenditure of public moneys, nowhere in their
Petition do said petitioners allege that their tax money is  "being extracted and spent in violation of
specific constitutional protections against abuses of legislative power" (Flast v. Cohen, 392 U.S., 83
[1960]), or that there is a misapplication of such funds by respondent COMELEC (see Pascual vs.
Secretary of Public Works, 110 Phil. 331 [1960]), or that public money is being deflected to any improper
purpose. Neither do petitioners seek to restrain respondent from wasting public funds through the
enforcement of an invalid or unconstitutional law. (Philippine Constitution Association vs. Mathay, 18
SCRA 300 [1966]), citing  Philippine Constitution Association vs. Gimenez, 15 SCRA 479 [1965]). Besides,
the institution of a taxpayer's suit, per se, is no assurance of judicial review. As held by this Court in Tan
vs. Macapagal (43 SCRA 677 [1972]), speaking through our present Chief Justice, this Court is vested
with discretion as to whether or not a taxpayer's suit should be entertained. (Emphasis added)

Petitioners' suit does not fall under any of these categories of taxpayers' suits.

Neither do the other cases cited by petitioners support their contention that taxpayers have standing to
question government contracts regardless of whether public funds are involved or not. In Gonzales
v. National Housing, Corp., 94 SCRA 786 (1979), petitioner filed a taxpayer's suit seeking the annulment
of a contract between the NHC and a foreign corporation. The case was dismissed by the trial court. The
dismissal was affirmed by this Court on the grounds of res judicata and pendency of a prejudicial
question, thus avoiding the question of petitioner's standing.

On the other hand, in Gonzales v.  Raquiza, 180 SCRA 254 (1989), petitioner sought the annulment of a
contract made by the government with a foreign corporation for the purchase of road construction
equipment. The question of standing was not discussed, but even if it was, petitioner's standing could be
sustained because he was a minority stockholder of the Philippine National Bank, which was one of the
defendants in the case.

In the other case cited by petitioners, City Council of Cebu v.  Cuizon, 47 SCRA 325 (1972), members of
the city council were allowed to sue to question the validity of a contract entered into by the city
government for the purchase of road construction equipment because their contention was that the
contract had been made without their authority. In addition, as taxpayers they had an interest in seeing
to it that public funds were spent pursuant to an appropriation made by law.

But, in the case at bar, there is an allegation that public funds are being misapplied or misappropriated.
The controlling doctrine is that of Gonzales v. Marcos, 65 SCRA 624 (1975) where it was held that funds
raised from contributions for the benefit of the Cultural Center of the Philippines were not public funds
and petitioner had no standing to bring a taxpayer's suit to question their disbursement by the President
of the Philippines.

Thus, petitioners' right to sue as taxpayers  cannot be sustained. Nor as concerned citizens  can they
bring this suit because no specific injury suffered by them is alleged. As for the petitioners, who are
members of Congress, their right to sue as legislators  cannot be invoked because they do not complain
of any infringement of their rights as legislators.

Finally, in Valmonte v.  PCSO, G.R. No. 78716, September 22, 1987, we threw out a petition questioning
another form of lottery conducted by the PCSO on the ground that petitioner, who claimed to be a
"citizen, lawyer, taxpayer and father of three minor children," had no direct and personal interest in the
lottery. We said: "He must be able to show, not only that the law is invalid, but also that he has
sustained or is in immediate danger of sustaining some direct injury as a result of its enforcement, and
not merely that he suffers thereby in some indefinite way. It must appear that the person complaining
has been or is about to be denied some right or privilege to which he is lawfully entitled or that he is
about to be subjected to some burdens or penalties by reason of the statute complained of." In the case
at bar, petitioners have not shown why, unlike petitioner in the Valmonte case, they should be accorded
standing to bring this suit.

The case of Oposa v.  Factoran, Jr. 224 SCRA 792 (1993) is different. Citizens' standing to bring a suit
seeking the cancellation of timber licenses was sustained in that case because the Court considered Art.
II, §16 a right-conferring provision which can be enforced in the courts. That provision states:

The State shall protect and advance the right of the people to a balanced and healthful ecology in accord
with the rhythm and harmony of nature. (Emphasis)

In contrast, the policies and principles invoked by petitioners in this case do not permit of such
categorization.

Indeed, as already stated, petitioners' opposition is not really to the validity of the ELA but to lotteries
which they regard to be immoral. This is not, however, a legal issue, but a policy matter for Congress to
decide and Congress has permitted lotteries for charity.

Nevertheless, although we have concluded that petitioners do not have standing, we have not stopped
there and dismissed their case. For in the view we take, whether a party has a cause of action and,
therefore, is a real party in interest or one with standing to raise a constitutional question must turn on
whether he has a right which has been violated. For this reason the Court has not ducked the
substantive issues raised by petitioners.

II. R.A. No. 1169, as amended by B.P No . 42, states:

§1. The Philippine Charity Sweepstakes Office. — The Philippine Charity Sweepstakes Office, hereinafter
designated the Office, shall be the principal government agency for raising and providing for funds for
health programs, medical assistance and services and charities of national character, and as such shall
have the general powers conferred in section thirteen of Act Numbered One Thousand Four Hundred
Fifty-Nine, as amended, and shall have the authority:

A. To hold and conduct charity sweepstakes races, lotteries and other similar activities, in such
frequency and manner, as shall be determined, and subject to such rules and regulations as shall be
promulgated by the Board of Directors.

B. Subject to the approval of the Minister of Human Settlements, to engage in health and welfare-
related investments, programs, projects and activities which may be profit-oriented, by itself or in
collaboration, association or joint venture with any person, association, company or entity, whether
domestic or foreign, except for the activities mentioned in the preceding paragraph (A), for the purpose
of providing for permanent and continuing sources of funds for health programs, including the
expansion of existing ones, medical assistance and services, and/or charitable grants: Provided, That
such investments will not compete with the private sector in areas where investments are adequate as
may be determined by the National Economic and Development Authority.
Petitioners insist on the ruling in the previous case that the PCSO cannot hold and conduct charity
sweepstakes, lotteries and other similar activities in collaboration, association or joint venture with any
other party because of the clause "except for the activities mentioned in the preceding paragraph (A)" in
paragraph (B) of §1. Petitioners contend that the ruling is the law of this case because the parties are the
same and the case involves the same issue, i.e., the meaning of this statutory provision.

The "law of the case" doctrine is inapplicable, because this case is not a continuation of the first one.
Petitioners also say that inquiry into the same question as to the meaning of the statutory provision is
barred by the doctrine of res judicata. The general rule on the "conclusiveness of judgment," however, is
subject to the exception that a question may be reopened if it is a legal question and the two actions
involve substantially different claims. This is generally accepted in American law from which our Rules of
Court was adopted. (Montana v. United States, 440 U.S. 59 L.Ed.2d 147, 210 (1979); RESTATEMENT OF
THE LAW 2d, ON JUDGMENTS, §28; P. BATOR, D. MELTZER, P. MISHKIN AND D. SHAPIRO, THE FEDERAL
COURTS AND THE FEDERAL SYSTEM 1058, n.2 [3rd Ed., 1988]) There is nothing in the record of this case
to suggest that this exception is inapplicable in this jurisdiction.

Indeed, the questions raised in this case are legal questions and the claims involved are substantially
different from those involved in the prior case between the parties. As already stated, the ELA is
substantially different from the Contract of Lease declared void in the first case.

Borrowing from the dissenting opinion of Justice Feliciano, petitioners argue that the phrase "by itself or
in collaboration, association or joint venture with any other party" qualifies not only §1 (B) but also §1
(A), because the exception clause ("except for the activities mentioned in the preceding paragraph [A]")
"operates, as it were, as a renvoi  clause which refers back to Section 1(A) and in this manner avoids the
necessity of simultaneously amending the text of Section 1(A)."

This interpretation, however, fails to take into account not only the location of the phrase in paragraph
(B), when it should be in paragraph (A) had that been the intention of the lawmaking authority, but also
the phrase "by itself." In other words, under paragraph (B), the PCSO is prohibited from "engag[ing] in . .
. investments, programs, projects and activities" if these involve sweepstakes races, lotteries and other
similar activities not only "in collaboration, association or joint venture" with any other party but also
"by itself." Obviously, this prohibition cannot apply when the PCSO conducts these activities itself.
Otherwise, what paragraph (A) authorizes the PCSO to do, paragraph (B) would prohibit.

The fact is that the phrase in question does not qualify the authority of the PCSO under paragraph (A),
but rather the authority granted to it by paragraph (B). The amendment of paragraph (B) by B.P. Blg. 42
was intended to enable the PCSO to engage in certain investments, programs, projects and activities for
the purpose of raising funds for health programs and charity. That is why the law provides that such
investments by the PCSO should "not compete with the private sector in areas where investments are
adequate as may be determined by the National Economic and Development Authority." Justice Davide,
then an Assemblyman, made a proposal which was accepted, reflecting the understanding that the bill
they were discussing concerned the authority of the PCSO to invest in the business of others. The
following excerpt from the Record of the Batasan Pambansa shows this to be the subject of the
discussion:

MR. DAVIDE. May I introduce an amendment after "adequate". The intention of the amendment is not
to leave the determination of whether it is adequate or not to anybody. And my amendment is to add
after "adequate" the words AS MAY BE DETERMINED BY THE NATIONAL ECONOMIC AND DEVELOPMENT
AUTHORITY. As a mater of fact, it will strengthen the authority to invest in these areas, provided that the
determination of whether the private sector's activity is already adequate must be determined by the
National Economic and Development Authority.

Mr. ZAMORA. Mr. Speaker, the committee accepts the proposed amendment.

MR. DAVIDE. Thank you, Mr. Speaker.

(2 RECORD OF THE BATASAN PAMBANSA, Sept. 6, 1979,

p. 1007)

Thus what the PCSO is prohibited from doing is from investing in a business engaged in sweepstakes
races, lotteries and other similar activities. It is prohibited from doing so whether  "in collaboration,
association or joint venture"  with others or  "by itself." This seems to be the only possible interpretation
of §1 (A) and (B) in light of its text and its legislative history. That there is today no other entity engaged
in sweepstakes races, lotteries and the like does not detract from the validity of this interpretation.

III. The Court noted in its decision that the provisions of the first contract, which were considered to be
features of a joint venture agreement, had been removed in the new contract. For instance, §5 of the
ELA provides that in the operation of the on-line lottery, the PCSO must employ "its own competent and
qualified personnel." Petitioners claim, however, that the "contemporaneous interpretation" of PGMC
officials of this provision is otherwise. They cite the testimony of Glen Barroga of the PGMC before a
Senate committee to the effect that under the ELA the PGMC would be operating the lottery system
"side by side" with PCSO personnel as part of the transfer of technology.

Whether the transfer of technology would result in a violation of PCSO's franchise should be determined
by facts and not by what some officials of the PGMC state by way of opinion. In the absence of proof to
the contrary, it must be presumed that §5 reflects the true intention of the parties. Thus, Art. 1370 of
the Civil Code says that "If the terms of a contract are clear and leave no doubt upon the intention of the
contracting parties, the literal meaning of its stipulations shall control." The intention of the parties must
be ascertained from their "contemporaneous and subsequent acts." (Art. 1371; Atlantic Gulf Co. v.
Insular Government, 10 Phil. 166 [1908]) It cannot simply be judged from what one of them says. On the
other hand, the claim of third parties, like petitioners, that the clause on upgrading of equipment would
enable the parties after a while to change the contract and enter into something else in violation of the
law is mere speculation and cannot be a basis for judging the validity of the contract.

IV. It is contended that §1 of E.O. No. 301 covers all types of "contract[s] for public services or  for
furnishing of supplies, materials and equipment to the government or to any of its branches, agencies or
instrumentalities" and not only contracts of purchase and sale. Consequently, a lease of equipment, like
the ELA, must be submitted to public bidding in order to be valid. This contention is based on two
premises: (1) that §1 of E.O. No. 301 applies to any contract whereby the government acquires title to or
the use of the equipment and (2) that the words "supplies," "materials," and "equipment" are distinct
from each other so that when an exception in §1 speaks of "supplies," it cannot be construed to mean
"equipment."

Petitioners' contention will not bear analysis. For example, the term "supplies" is used in paragraph (a),
which provides that a contract for the furnishing of "supplies" in order to meet an emergency is exempt
from public bidding. Unless "supplies" is construed to include "equipment," however, the lease of heavy
equipment needed for rescue operations in case of a calamity will have to be submitted to public
bidding before it can be entered into by the government.

In dissent Justice Feliciano says that in such a situation the government can simply resort to
expropriation, paying compensation afterward. This is just like purchasing the equipment through
negotiation when the question is whether the purchase should be by public bidding, not to mention the
fact that the power to expropriate may not be exercised when the government can very well negotiate
with private owners.

Indeed, there are fundamental difficulties in simultaneously contending (1) that E.O. No. 301, §1 covers
both contracts of sale and lease agreements and (2) that the words "supplies,"
"materials" and  "equipment" can not be interchanged. Thus, under paragraph (b) of §1, public bidding is
not required "whenever the supplies are to be used in connection with a project or activity which cannot
be delayed without causing detriment to the public service." Following petitioners' theory, there should
be a public bidding before the government can enter into a contract for the lease of bulldozers and
dredging equipment even if these are urgently needed in areas ravaged by lahar because, first, lease
contracts are covered by the general rule and, second, the exception to public bidding in paragraph (b)
covers only "supplies" but not equipment.

To take still another example. Paragraph (d), which does away with the requirement of public bidding
"whenever the supplies under procurement have been unsuccessfully placed on bid for at least two
consecutive times, either due to lack of bidders or the offers received in each instance were exorbitant
or nonconforming to specifications." Again, following the theory of the petitioners, a contract for the
lease of equipment cannot be entered into even if there are no bids because,  first, lease contracts are
governed by the general rule on public bidding and, second, the exception to public bidding in paragraph
(d) applies only to contracts for the furnishing of "supplies."

Other examples can be given to show the absurdity of interpreting §1 as applicable to any contract for
the furnishing of supplies, materials and equipment and of considering the words "supplies," "materials"
and "equipment" to be not interchangeable. Our ruling that §1 of E.O. No. 301 does not cover the lease
of equipment avoids these fundamental difficulties and is supported by the text  of §1, which is entitled
"Guidelines for Negotiated Contracts" and by the fact that the only provisions of E.O. No. 301 on leases,
namely, §§6 and 7, concern the lease of buildings by or to the government. Thus the text of §1 reads:

§1. Guidelines for Negotiated Contracts.  — Any provision of law, decree, executive order or other
issuances to the contrary notwithstanding, no contract for public services or for furnishing supplies,
materials and equipment to the government or any of its branches, agencies or instrumentalities shall
be renewed or entered into without public bidding, except under any of the following situations:

a. Whenever the supplies are urgently needed to meet an emergency which may involve the loss of, or
danger to, life and/or property;

b. Whenever the supplies are to be used in connection with a project or activity which cannot be
delayed without causing detriment to the public service;
c. Whenever the materials are sold by an exclusive distributor or manufacturer who does not have
subdealers selling at lower prices and for which no suitable substitute can be obtained elsewhere at
more advantageous terms to the government;

d. Whenever the supplies under procurement have been unsuccessfully placed on bid for at least two
consecutive times, either due to lack of bidders or the offers received in each instance were exhorbitant
or non-conforming to specifications;

e. In cases where it is apparent that the requisition of the needed supplies through negotiated
purchase is most advantageous to the government to be determined by the Department Head
concerned; and

f. Whenever the purchase is made from an agency of the government.

Indeed, the purpose for promulgating E.O. No. 301 was merely to decentralize the system of
reviewing negotiated contracts of purchase for the furnishing of supplies, materials and equipment as
well as lease contracts of buildings. Theretofore, E.O. No. 298, promulgated on August 12, 1940,
required consultation with the Secretary of Justice and the Department Head concerned and the
approval of the President of the Philippines before contracts for the furnishing of supplies, materials and
equipment could be made on a negotiated basis, without public bidding. E.O. No. 301 changed this by
providing as follows:

§2. Jurisdiction over Negotiated Contracts. — In line with the principles of decentralization and
accountability, negotiated contracts for public services or for furnishing supplies, materials or
equipment may be entered into by the department or agency head or the governing board of the
government-owned or controlled corporation concerned, without need of prior approval by higher
authorities, subject to availability of funds, compliance with the standards or guidelines prescribed in
Section 1 hereof, and to the audit jurisdiction of the commission on Audit in accordance with existing
rules and regulations.

Negotiated contracts involving P2,000,000 up to P10,000,000 shall be signed by the Secretary and two
other Undersecretaries.

xxx xxx xxx

§7. Jurisdiction Over Lease Contracts. — The heads of agency intending to rent privately-owned
buildings or spaces for their use, or to lease out government-owned buildings or spaces for private use,
shall have authority to determine the reasonableness of the terms of the lease and the rental rates
thereof, and to enter into such lease contracts without need of prior approval by higher authorities,
subject to compliance with the uniform standards or guidelines established pursuant to Section 6 hereof
by the DPWH and to the audit jurisdiction of COA or its duly authorized representative in accordance
with existing rules and regulations.

In sum, E.O. No. 301 applies only to contracts for the purchase of supplies, materials and equipment,
and it was merely to change the system of administrative review of emergency purchases, as
theretofore prescribed by E.O. No. 298, that E.O. No. 301 was issued on July 26, 1987. Part B of this
Executive Order applies to leases of buildings, not of equipment, and therefore does not govern the
lease contract in this case. Even if it applies, it does not require public bidding for entering into it.
Our holding that E.O. No. 301, §1 applies only to contracts of purchase and sale is conformable to P.D.
No. 526, promulgated on August 2, 1974, which is in pari materia. P.D. No. 526 requires local
governments to hold public bidding in the "procurement of supplies." By specifying "procurement of
supplies" and excepting from the general rule "purchases" when made under certain circumstances, P.D.
No. 526, §12 indicates quite clearly that it applies only to contracts of purchase and sale. This provision
reads:

§12. Procurement without public bidding. — Procurement of supplies may be made without the benefit
of public bidding in the following modes:

(1) Personal canvass of responsible merchants;

(2) Emergency purchases;

(3) Direct purchases from manufacturers or exclusive distributors;

(4) Thru the Bureau of Supply Coordination; and

(5) Purchase from other government entities or foreign governments.

Sec. 3 broadly defines the term "supplies" as including —

everything except real estate, which may be needed in the transaction of public business, or in the
pursuit of any undertaking, project, or activity, whether of the nature of equipment, furniture,
stationery, materials for construction, or personal property of any sort, including non-personal or
contractual services such as the repair and maintenance of equipment and furniture, as well as trucking,
hauling, janitorial, security, and related or analogous services.

Thus, the texts of both E.O. No. 301, §1 and of P.D. No. 526, §§1 and 12, make it clear that only
contracts for the purchase and sale of supplies, materials and equipment are contemplated by the rule
concerning public biddings.

Finally, it is contended that equipment leases are attractive and commonly used in place of contracts of
purchase and sale because of "multifarious credit and tax constraints" and therefore could not have
been left out from the requirement of public bidding. Obviously these credit and tax constraints can
have no attraction to the government when considering the advantages of sale over lease of equipment.
The fact that lease contracts are in common use is not a reason for implying that the rule on public
bidding applies not only to government purchases but also to lease contracts. For the fact also is that
the government leases equipment, such as copying machines, personal computers and the like, without
going through public bidding.

FOR THE FOREGOING REASONS, the motion for reconsideration of petitioners is DENIED with finality.

SO ORDERED.

Melo, Puno, Kapunan, Francisco and Hermosisima, Jr., JJ., concur.

Narvasa, C.J. and Panganiban , JJ., took no part.

Padilla and Vitug, JJ., maintained their separate concurring opinion.

Feliciano, Regalado, Davide, Jr., Romero and Bellosillo, JJ., maintained their dissenting opinion.

Footnotes

1 The two other cases were Dred Scott v. Sanford, 19 How. 393 (1857) (which invalidated an act of
Congress forbidding slavery in the South) and Pollack v. Farmers Loan & Trust Co., 157 U.S. 429, 158 U.S.
601 (1895) (which held a tax on income derived from property to be a tax on the property itself which
had to be apportioned according to population under the U.S. Constitution) C. HUGHES, THE SUPREME
COURT OF THE UNITED STATES 50-54 (1928).

2 That is why in the main decision it was pointed out that petitioners might try the Commission on Audit,
the Ombudsman or the Solicitor General (except that in this case the latter has found nothing wrong
with the contract) in airing their grievances, a point apparently overlooked by Davide, J. in his dissent
noting an alleged inconsistency in the majority's ruling that petitioners have no standing in the courts
but that they can complain to the COA, the Ombudsman or the Solicitor General. The rules on standing
do not obtain in these agencies; petitioners can file their complaints there ex relatione.

G.R. No. L-10280             September 30, 1963

QUA CHEE GAN, JAMES UY, DANIEL DY alias  DEE PAC, CHAN TIONG
YU, CUA CHU TIAN, CHUA LIM PAO alias  JOSE CHUA and BASILIO
KING, petitioners-appellants, vs. THE DEPORTATION
BOARD, Respondent-Appellee.
Sabido and Sabido Law Offices and Ramon T. Oben for petitioners-
appellants.
Solicitor General for respondent-appellee.
BARRERA, J.: chanrobles virtual law library

          This is an appeal from the decision of the Court of First

Instance of Manila (in Sp. Proc. No. 20037) denying the petition for
writs of habeas corpus and/or
prohibition, certiorari,  and  mandamus  filed by Qua Chee Gan,
James Uy, Daniel Dy alias  Dee Pac, Chan Tiong Yu, Chua Chu Tian,
Chua Lim Pao alias  Jose Chua, and Basilio King. The facts of the
case, briefly stated, are as follows:. chanroblesvirtualawlibrary chanrobles virtual law library

          On May 12, 1952, Special Prosecutor Emilio L. Galang

charged the above-named petitioners before the Deportation Board,
with having purchased U.S. dollars in the total sum of $130,000.00,
without the necessary license from the Central Bank of the
Philippines, and of having clandestinely remitted the same to
Hongkong and petitioners, Qua Chee Gan, Chua Lim Pao alias  Jose
Chua, and Basilio King, with having attempted to bribe officers of
the Philippine and United States Governments (Antonio Laforteza,
Chief of the Intelligence Division of the Central Bank, and Capt. A.
P. Charak of the OSI, U.S. Air Force) in order to evade prosecution
for said unauthorized purchase of U.S. dollars.1 chanrobles virtual law library

          Following the filing of said deportation charges, a warrant for

the arrest of said aliens was issued by the presiding member of the
Deportation Board. Upon their filing surety bond for P10,000.00 and
cash bond for P10,000.00, herein petitioners-appellants were
provisionally set at liberty. chanroblesvirtualawlibrary chanrobles virtual law library

          On September 22, 1952, petitioners-appellants filed a joint

motion to dismiss the charges presented against them in the
Deportation Board for the reason, among others, that the same do
not constitute legal ground for deportation of aliens from this
country, and that said Board has no jurisdiction to entertain such
charges. This motion to dismiss having been denied by order of the
Board of February 9, 1953, petitioners-appellants filed in this Court
a petition for habeas corpus and/or prohibition, which petition was
given due course in our resolution of July 7, 1953, but made
returnable to the Court of First Instance of Manila (G.R. No. L-
6783). The case was docketed in the lower court as Special
Proceeding No. 20037. chanroblesvirtualawlibrary chanrobles virtual law library

          At the instance of petitioners and upon their filing a bond for

P5,000.00 each, a writ of preliminary injunction was issued by the
lower court, restraining the respondent Deportation Board from
hearing Deportation charges No. R-425 against petitioners, pending
final termination of the  habeas corpus and/or prohibition
proceedings. chanroblesvirtualawlibrary chanrobles virtual law library

          On July 29, 1953, the respondent Board filed its answer to

the original petition, maintaining among others, that the
Deportation Board, as an agent of the President, has jurisdiction
over the charges filed against petitioners and the authority to order
their arrest; and that, while petitioner Qua Chee Gan was acquitted
of the offense of attempted bribery of a public official, he was found
in the same decision of the trial court that he did actually offer
money to an officer of the United States Air Force in order that the
latter may abstain from assisting the Central Bank official in the
investigation of the purchase of $130,000.00 from the Clark Air
Force Base, wherein said petitioner was involved. chanroblesvirtualawlibrary chanrobles virtual law library

          After due trial, the court rendered a decision on January 18,

1956, upholding the validity of the delegation by the president to
the Deportation Board of his power to conduct investigations for the
purpose of determining whether the stay of an alien in this country
would be injurious to the security, welfare and interest of the State.
The court, likewise, sustained the power of the deportation Board to
issue warrant of arrest and fix bonds for the alien's temporary
release pending investigation of charges against him, on the theory
that the power to arrest and fix the amount of the bond of the
arrested alien is essential to and complement the power to deport
aliens pursuant to Section 69 of the Revised Administrative Code.
Consequently, the petitioners instituted the present appeal. . chanroblesvirtualawlibrary chanrobles virtual law library

          It may be pointed out at the outset that after they were

provisionally released on bail, but before the charges filed against
them were actually investigated, petitioners-appellant raised the
question of jurisdiction of the Deportation Board, first before said
body, then in the Court of First Instance, and now before us.
Petitioners-appellants contest the power of the President to deport
aliens and, consequently, the delegation to the Deportation Board of
the ancillary power to investigate, on the ground that such power is
vested in the Legislature. In other words, it is claimed, for the
power to deport to be exercised, there must be a legislation
authorizing the same. chanroblesvirtualawlibrary chanrobles virtual law library

          Under Commonwealth Act No. 613 (Immigration Act of

1940), the Commissioner of Immigration was empowered to effect
the arrest and expulsion of an alien, after previous determination by
the Board of Commissioners of the existence of ground or grounds
therefor (Sec- 37). With the enactment of this law, however, the
legislature did not intend to delimit or concentrate the exercise of
the power to deport on the Immigration Commissioner alone,
because in its Section 52, it provides:.
          SEC. 52. This Act is in substitution for and supersedes all
previous laws relating to the entry of aliens into the Philippines, and
their exclusion, deportation, and repatriation therefrom, with the
exception of section sixty-nine of Act Numbered Twenty-seven
hundred and eleven which shall continue in force and effect: ..."
(Comm. Act No. 613). chanroblesvirtualawlibrary chanrobles virtual law library

          Section 69 of Act No. 2711 (Revised Administrative Code)

referred to above reads:. chanroblesvirtualawlibrary chanrobles virtual law library

          SEC. 69  Deportation of subject to foreign power. - A subject

of a foreign power residing in the Philippines shall not be deported,
expelled, or excluded from said Islands or repatriated to his own
country by the President of the Philippines except upon prior
investigation, conducted by said Executive or his authorized agent,
of the ground upon which Such action is contemplated. In such case
the person concerned shall be informed of the charge or charges
against him and he shall be allowed not less than these days for the
preparation of his defense. He shall also have the right to be heard
by himself or counsel, to produce witnesses in his own behalf, and
to cross-examine the opposing witnesses."
          While it may really be contended that the aforequoted
provision did not expressly confer on the President the authority to
deport undesirable aliens, unlike the express grant to the
Commissioner of Immigration under Commonwealth Act No. 613,
but merely lays down the procedure to be observed should there be
deportation proceedings, the fact that such a procedure was
provided for before the President can deport an alien-which
provision was expressly declared exempted from the repealing
effect of the Immigration Act of 1940-is a clear indication of the
recognition, and inferentially a ratification, by the legislature of the
existence of such power in the Executive. And the, exercise of this
power by the chief Executive has been sanctioned by this Court in
several decisions.2 chanrobles virtual law library

          Under the present and existing laws, therefore, deportation

of an undesirable alien may be effected in two ways: by order of the
President, after due investigation, pursuant to Section 69 of the
Revised Administrative Code, and by the Commissioner of
Immigration, upon recommendation by the Board of
Commissioners, under Section 37 of Commonwealth Act No. 613.
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chanroblesvirtualawlibrary chanrobles

          Petitioners contend, however, that even granting that the

President is invested with power to deport, still he may do so only
upon the grounds enumerated in Commonwealth Act No. 613, as
amended, and on no other, as it would be unreasonable and
undemocratic to hold that an alien may be deported upon an
unstated or undefined ground depending merely on the unlimited
discretion of the Chief Executive. This contention is not without
merit, considering that whenever the legislature believes a certain
act or conduct to be a just cause for deportation, it invariably enacts
a law to that effect. Thus, in a number of amendatory acts, grounds
have been added to those originally contained in Section 37 of
Commonwealth Act No. 613, as justifying deportation of an alien, as
well as other laws which provide deportation as part of the penalty
imposed on aliens committing violation thereof. chanroblesvirtualawlibrary chanrobles virtual law library

          Be this as it may, the charges against the herein petitioners

constitute in effect an act of profiteering, hoarding or
blackmarketing of U.S. dollars, in violation of the Central Bank
regulations - an economic sabotage - which is a ground for
deportation under the provisions of Republic Act 503 amending
Section 37 of the Philippine Immigration Act of 1940. The President
may therefore order the deportation of these petitioners if after
investigation they are shown to have committed the act charged.
law library
chanroblesvirtualawlibrary chanrobles virtual

          There seems to be no doubt that the President's power of

investigation may be delegated. This is clear from a reading of
Section 69 of the Revised Administrative Code which provides for a
"prior investigation, conducted by said Executive (the President)  or
his authorized agent." The first executive order on the subject was
that of Governor General Frank Murphy (No. 494, July 26, 1934),
constituting a board to take action on complaints against foreigners,
to conduct investigations and thereafter make recommendations. By
virtue of Executive Order No. 33 dated May 29, 1936, President
Quezon created the Deportation Board primarily to receive
complaints against aliens charged to be undesirable, to conduct
investigation pursuant to Section 69 of the Revised Administrative
Code and the rules and regulations therein provided, and make the
corresponding recommendation. 3 Since then, the Deportation Board
has been conducting the investigation as the authorized agent of
the President.chanroblesvirtualawlibrary chanrobles virtual law library

          This gives rise to the question regarding the extent of the

power of the President to conduct investigation, i.e., whether such
authority carries with it the power to order the arrest of the alien
complained of, since the Administrative Code is silent on the matter,
and if it does, whether the same may be delegated to the
respondent Deportation Board. chanroblesvirtualawlibrary chanrobles virtual law library

          Let it be noted that Section 69 of the Revised Administrative

Code, unlike Commonwealth Act No. 613 wherein the Commissioner
of Immigration was specifically granted authority, among others, to
make arrests, fails to provide the President with like specific power
to be exercised in connection with such investigation. It must be for
this reason that President Roxas for the first time, saw it necessary
to issue his Executive Order No. 69, dated July 29, 1947, providing
-
          For the purpose of insuring the appearance of aliens charged
before the Deportation Board created under Executive Order No. 37,
dated January 4, 1947, and facilitating the execution of the order of
deportation whenever the President decides the case against the
respondent. I, Manuel Roxas, President of the Philippines, by virtue
of the powers vested in me by law, do hereby order that all
respondents in deportation proceedings shall file a bond with the
Commissioner of Immigration in such amount and containing such
conditions as he may prescribe. .
xxx     xxx     xxx
          Note that the executive order only required the filing of a
bond to secure appearance of the alien under investigation. It did
not authorize the arrest of the respondent. chanroblesvirtualawlibrary chanrobles virtual law library

          It was only on January 5, 1951, when President Quirino

reorganized the Deportation Board by virtue of his Executive Order
No. 398, that the Board was authorized motu proprio  or upon the
filing of formal charges by the Special Prosecutor of the Board, to
issue the warrant for the arrest of the alien complained of and to
hold him under detention during the investigation unless he files a
bond for his provisional release in such amount and under such
conditions as may be prescribed by the Chairman of the Board. chanroblesvirtualawlibrary chanrobles virtual law library

          As has been pointed out elsewhere, Section 69 of the

Revised Administrative Code, upon whose authority the President's
power to deport is predicated, does not provide for the exercise of
the power to arrest. But the Solicitor General argues that the law
could not have denied to the Chief Executive acts which are
absolutely necessary to carry into effect the power of deportation
granted him, such as the authority to order the arrest of the
foreigner charged as undesirable. chanroblesvirtualawlibrary chanrobles virtual law library

          In this connection, it must be remembered that the right of

an individual to be secure in his person is guaranteed by the
Constitution in the following language:.
          3. The right of the People to be secure in their persons,
houses, papers and effects against unreasonable searches and
seizures shall not be violated, and no warrants shall issue but upon
probable cause, to be determined by the judge after examination
under oath or affirmation of the complainant and the witnesses he
may produce, and particularly describing the place to be searched,
and the persons or things to be seized." (Sec 1, Art. III, Bill of
Rights, Philippine Constitution).
          As observed by the late Justice Laurel in his concurring
opinion in the case of Rodriguez, et al. v. Villamiel, et al. (65 Phil.
230, 239), this provision is not the same as that contained in the
Jones Law wherein this guarantee is placed among the rights of the
accused. Under our Constitution, the same is declared a popular
right of the people and, of course, indisputably it equally applies to
both citizens and foreigners in this country. Furthermore, a notable
innovation in this guarantee is found in our Constitution in that it
specifically provides that the probable cause upon which a warrant
of arrest may be issued, must be determined by the judge after
examination under oath, etc., of the complainant and the witnesses
he may produce. This requirement - "to be determined by the
judge" - is not found in the Fourth Amendment of the U.S.
Constitution, in the Philippine Bill or in the Jones Act, all of which do
not specify who will determine the existence of a probable cause.
Hence, under their provisions, any public officer may be authorized
by the Legislature to make such determination, and thereafter issue
the warrant of arrest. Under the express terms of our Constitution,
it is, therefore, even doubtful whether the arrest of an individual
may be ordered by any authority other than the judge if the
purpose is merely to determine the existence of a probable cause,
leading to an administrative investigation. The Constitution does not
distinguish between warrants in a criminal case and administrative
warrants in administrative proceedings. And, if one suspected of
having committed a crime is entitled to a determination of the
probable cause against him, by a judge, why should one suspected
of a violation of an administrative nature deserve less guarantee? Of
course it is different if the order of arrest is issued to carry out a
final finding of a violation, either by an executive or legislative
officer or agency duly authorized for the purpose, as then the
warrant is not that mentioned in the Constitution which is issuable
only on probable cause. Such, for example, would be a warrant of
arrest to carry out a final order of deportation, or to effect
compliance of an order of contempt. chanroblesvirtualawlibrary chanrobles virtual law library

          The contention of the Solicitor General that the arrest of a

foreigner is necessary to carry into effect the power of deportation
is valid only when, as already stated, there is already an order of
deportation. To carry out the order of deportation, the President
obviously has the power to order the arrest of the deportee. But,
certainly, during the investigation, it is not indispensable that the
alien be arrested. It is enough, as was true before the executive
order of President Quirino, that a bond be required to insure the
appearance of the alien during the investigation, as was authorized
in the executive order of President Roxas. Be that as it may, it is not
imperative for us to rule, in this proceeding - and nothing herein
said is intended to so decide - on whether or not the President
himself can order the arrest of a foreigner for purposes of
investigation only, and before a definitive order of deportation has
been issued. We are merely called upon to resolve herein whether,
conceding without deciding that the President can personally order
the arrest of the alien complained of, such power can be delegated
by him to the Deportation Board. chanroblesvirtualawlibrary chanrobles virtual law library

          Unquestionably, the exercise of the power to order the arrest

of an individual demands the exercise of discretion by the one
issuing the same, to determine whether under specific
circumstances, the curtailment of the liberty of such person is
warranted. The fact that the Constitution itself, as well as the
statute relied upon, prescribe the manner by which the warrant may
be issued, conveys the intent to make the issuance of such warrant
dependent upon conditions the determination of the existence of
which requires the use of discretion by the person issuing the same.
In other words, the discretion of whether a warrant of arrest shall
issue or not is personal to the one upon whom the authority
devolves. And authorities are to the effect that while ministerial
duties may be delegated, official functions requiring the exercise of
discretion and judgment, may not be so delegated. Indeed, an
implied grant of power, considering that no express authority was
granted by the law on the matter under discussion, that would serve
the curtailment or limitation on the fundamental right of a person,
such as his security to life and liberty, must be viewed with caution,
if we are to give meaning to the guarantee contained in the
Constitution. If this is so, then guarantee a delegation of that
implied power, nebulous as it is, must be rejected as inimical to the
liberty of the people. The guarantees of human rights and freedom
can not be made to rest precariously on such a shaky foundation.
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          We are not unaware of the statements made by this Court in

the case of Tan Sin v. Deportation Board  (G.R. No. L-11511, Nov.
28,1958). It may be stated, however, that the power of arrest was
not squarely raised in that proceeding, but only as a consequence of
therein petitioner's proposition that the President had no inherent
power to deport and that the charges filed against him did not
constitute ground for deportation. .chanroblesvirtualawlibrary chanrobles virtual law library

          IN VIEW OF THE FOREGOING, Executive Order No. 398,

series of 1951, insofar as it empowers the Deportation Board to
issue warrant of arrest upon the filing of formal charges against an
alien or aliens and to fix bond and prescribe the conditions for the
temporary release of said aliens, is declared illegal. As a
consequence, the order of arrest issued by the respondent
Deportation Board is declared null and void and the bonds filed
pursuant to such order of arrest, decreed cancelled. With the
foregoing modification, the decision appealed from is hereby
affirmed. No costs. So ordered.
Padilla, Bautista Angelo, Labrador, Concepcion, Paredes, Dizon,
Regala and Makalintal, JJ., concur.
Bengzon, C.J., reserved his vote.
Reyes, J.B.L., J., took no part.

Endnotes:
1
On Jan. 22. 1952, Qua Chee Gan was charged in the Court of First
Instance of Rizal of the crime of attempted bribery (Crim. Case No.
3346) in connection with the alleged offer of P25,000.00 to
Laforteza and Charak in order that the latter may refrain from filing
the corresponding charges against the former, which case was
dismissed by order of the court of March 20, 1952, on the ground
that the aforesaid amount was tendered to Capt. Charak who is not
an officer of the Philippine Government. chanroblesvirtualawlibrary chanrobles virtual law library

2
In re Patterson, 1 Phil. 93; see, also In re McCulloch Dick, 38 Phil.
41; Tan Tong v. Deportation Board, G.R. No. L-7680, April 30,
1955; Ang Beng v. Commissioner of Immigration, G.R. No. L-9621,
January 30, 1957. chanroblesvirtualawlibrary chanrobles virtual law library

3
Amended by Executive Orders Nos. 257, dated March 12, 1940;
No. 7, dated July 18, 1946; No. 37, dated January 4, 1947.
G.R. No. 76180 October 24, 1986

IN RE: SATURNINO V. BERMUDEZ, petitioner.

R E S O L U T IO N

PER CURIAM:

In a petition for declaratory relief impleading no respondents, petitioner, as a lawyer, quotes the first
paragraph of Section 5 (not Section 7 as erroneously stated) of Article XVIII of the proposed 1986
Constitution, which provides in full as follows:

Sec. 5. The six-year term of the incumbent President and Vice-President elected in the February 7, 1986
election is, for purposes of synchronization of elections, hereby extended to noon of June 30, 1992.

The first regular elections for the President and Vice-President under this Constitution shall be held on
the second Monday of May, 1992.

Claiming that the said provision "is not clear" as to whom it refers, he then asks the Court "to declare
and answer the question of the construction and definiteness as to who, among the present incumbent
President Corazon Aquino and Vice-President Salvador Laurel and the elected President Ferdinand E.
Marcos and Vice-President Arturo M. Tolentino being referred to under the said Section 7 (sic) of
ARTICLE XVIII of the TRANSITORY PROVISIONS of the proposed 1986 Constitution refers to, . ...

The petition is dismissed outright for lack of jurisdiction and for lack for cause of action.

Prescinding from petitioner's lack of personality to sue or to bring this action, (Tan vs. Macapagal, 43
SCRA 677), it is elementary that this Court assumes no jurisdiction over petitions for declaratory relief.
More importantly, the petition amounts in effect to a suit against the incumbent President of the
Republic, President Corazon C. Aquino, and it is equally elementary that incumbent Presidents are
immune from suit or from being brought to court during the period of their incumbency and tenure.

The petition furthermore states no cause of action. Petitioner's allegation of ambiguity or vagueness of
the aforequoted provision is manifestly gratuitous, it being a matter of public record and common public
knowledge that the Constitutional Commission refers therein to incumbent President Corazon C. Aquino
and Vice-President Salvador H. Laurel, and to no other persons, and provides for the extension of their
term to noon of June 30, 1992 for purposes of synchronization of elections. Hence, the second
paragraph of the cited section provides for the holding on the second Monday of May, 1992 of the first
regular elections for the President and Vice-President under said 1986 Constitution. In previous cases,
the legitimacy of the government of President Corazon C. Aquino was likewise sought to be questioned
with the claim that it was not established pursuant to the 1973 Constitution. The said cases were
dismissed outright by this court which held that:

Petitioners have no personality to sue and their petitions state no cause of action. For the legitimacy of
the Aquino government is not a justiciable matter. It belongs to the realm of politics where only the
people of the Philippines are the judge. And the people have made the judgment; they have accepted
the government of President Corazon C. Aquino which is in effective control of the entire country so that
it is not merely a de facto government but in fact and law a de jure government. Moreover, the
community of nations has recognized the legitimacy of tlie present government. All the eleven members
of this Court, as reorganized, have sworn to uphold the fundamental law of the Republic under her
government. (Joint Resolution of May 22, 1986 in G.R. No. 73748 [Lawyers League for a Better
Philippines, etc. vs. President Corazon C. Aquino, et al.]; G.R. No. 73972 [People's Crusade for Supremacy
of the Constitution. etc. vs. Mrs. Cory Aquino, et al.]; and G.R. No. 73990 [Councilor Clifton U. Ganay vs.
Corazon C. Aquino, et al.])

For the above-quoted reason, which are fully applicable to the petition at bar, mutatis mutandis, there
can be no question that President Corazon C. Aquino and Vice-President Salvador H. Laurel are the
incumbent and legitimate President and Vice-President of the Republic of the Philippines.or the above-
quoted reasons, which are fully applicable to the petition at bar,

ACCORDINGLY, the petition is hereby dismissed.

Teehankee, C.J., Feria, Yap, Fernan, Narvasa, Alampay and Paras, JJ., concur.

MELENCIO-HERRERA, J.,  concurring:

GUTIERREZ, Jr., J., concurring:

FELICIANO, JJ.,  concurring.

The petitioner asks the Court to declare who are "the incumbent President and Vice President elected in
the February 7, 1986 elections" as stated in Article XVIII, Section 5 of the Draft Constitution adopted by
the Constitutional Commission of 1986.

We agree that the petition deserves outright dismissal as this Court has no original jurisdiction over
petitions for declaratory relief.

As to lack of cause of action, the petitioner's prayer for a declaration as to who were elected President
and Vice President in the February 7, 1986 elections should be addressed not to this Court but to other
departments of government constitutionally burdened with the task of making that declaration.

The 1935 Constitution, the 1913 Constitution as amended, and the 1986 Draft Constitution uniformly
provide 'that boards of canvassers in each province and city shall certified who were elected President
and Vice President in their respective areas. The certified returns are transmitted to the legislature
which proclaims, through the designated Presiding Head, who were duty elected.

Copies of the certified returns from the provincial and city boards of canvassers have not been furnished
this Court nor is there any need to do so. In the absence of a legislature, we cannot assume the function
of stating, and neither do we have any factual or legal capacity to officially declare, who were elected
President and Vice President in the February 7, 1986 elections.

As to who are the incumbent  President and Vice President referred to in the 1986 Draft Constitution, we
agree that there is no doubt the 1986 Constitutional Commission referred to President Corazon C.
Aquino and Vice President Salvador H. Laurel.

Finally, we agree with the Resolution of the Court in G.R. Nos. 73748, 73972, and 73990.

For the foregoing reasons, we vote to DISMISS the instant petition.

CRUZ, J.,  concurring:

I vote to dismiss this petition on the ground that the Constitution we are asked to interpret has not yet
been ratified and is therefore not yet effective. I see here no actual conflict of legal rights susceptible of
judicial determination at this time. (Aetna Life Insurance Co. vs. Haworth, 300 U.S. 227; PACU vs.
Secretary of Education, 97 Phil. 806.)

The Lawphil Project - Arellano Law Foundation

G.R. No. L-49            November 12, 1945

WILLIAM F. PERALTA, petitioner,
vs.
THE DIRECTOR OF PRISONS, respondent.

William F. Peralta in his own behalf.

Office of the Solicitor General Tañada for respondent.
City Fiscal Mabanag as amicus curiae.

FERIA, J.:

Petitioner-defendant, a member of the Metropolitan Constabulary of Manila charged with the

supervision and control of the production, procurement and distribution of goods and other necessaries
as defined in section 1 of Act No. 9 of the National Assembly of the so-called Republic of the Philippines,
was prosecuted for the crime of robbery as defined and penalized by section 2 (a) of Act No. 65 of the
same Assembly. He was found guilty and sentenced to life imprisonment, which he commenced to serve
on August 21, 1944, by the Court of Special and Exclusive Criminal Jurisdiction, created in section 1 of
Ordinance No. 7 promulgated by the President of the so-called Republic of the Philippines, pursuant to
the authority conferred upon him by the Constitution and laws of the said Republic. And the procedure
followed in the trial was the summary one established in Chapter II of Executive Order No. 157 of the
Chairman of the Executive Commission, made applicable to the trial violations of said Act No. 65 by
section 9 thereof and section 5 of said Ordinance No. 7.
The petition for habeas corpus is based on the ground that the Court of Special and Executive Criminal
Jurisdiction created by Ordinance No. 7 "was a political instrumentality of the military forces of the
Japanese Imperial Army, the aims and purposes of which are repugnant to those aims and political
purposes of the Commonwealth of the Philippines, as well as those of the United States of America, and
therefore, null and void ab initio," that the provisions of said Ordinance No. 7 are violative of the
fundamental laws of the Commonwealth of the Philippines and "the petitioner has been deprived of his
constitutional rights"; that the petitioner herein is being punished by a law created to serve the political
purpose of the Japanese Imperial Army in the Philippines, and "that the penalties provided for are much
(more) severe than the penalties provided for in the Revised Penal Code."

The Solicitor General, in his answer in behalf of the respondent, states that, in his own opinion, for the
reasons expressed in his brief in the case of People of the Philippines, plaintiff-appellant, vs. Benedicto
Jose y Santos, defendant-appellee, G. R. No. L-22 (p. 612,  post), the acts and proceedings taken and had
before the said Court of Special and Exclusive Criminal Jurisdiction which resulted in the conviction and
imprisonment of the herein petitioner, should now be denied force and efficacy, and therefore the
petition for habeas corpus should be granted. The reasons advanced by the Solicitor General in said brief
and in his reply memorandum in support of his contention are, that the Court of Special and Exclusive
Criminal Jurisdiction created, and the summary procedure prescribed therefor, by said Ordinance No. 7
in connection with Executive Order No. 157 of the Chairman of the Executive Commission are tinged
with political complexion; that the procedure prescribed in Ordinance No. 7 does not afford a fair trial,
violates the Constitution of the Commonwealth, and impairs the Constitutional rights of accused
persons under their legitimate Constitution. And he cites, in support of this last proposition, the
decisions of the Supreme Court of the United States in the cases of Texas vs. White (7 Wall., 700, 743);
Horn vs. Lockart (17 Wall., 570, 581); United States vs. Home Insurance Co. (22 Wall., 99, 104);
Sprott vs. United States (20 Wall., 459).

The City Fiscal of Manila appeared before this Court as amicus curiae. In his memorandum he submits
that the petition for habeas corpus be denied on the following grounds: That the Court of Special and
Exclusive Criminal Jurisdiction and the Acts, Ordinances and Executive Orders, creating it are not of a
political complexion, for said Court was created, and the crimes and offenses placed under its
jurisdiction were penalized heavily, in response to an urgent necessity, according to the preamble of
Ordinance No. 7; that the right to appeal in a criminal case is not a constitutional right; and that the
summary procedure established in said Ordinance No. 7 is not violative of the provision of Article III,
section 1 (18) of the Constitution of the Commonwealth, to the effect that no person shall be compelled
to be a witness against himself, nor of the provision of section 1 (1) of the same Article that no person
shall be deprived of life, liberty, or property without due process of law.

The features of the summary procedure adopted by Ordinance No. 7, assailed by the petitioner and the
Solicitor General as impairing the constitutional rights of an accused are: that court may interrogate the
accused and witnesses before trial in order to clarify the points in dispute; that the refusal of the
accused to answer the questions may be considered unfavorable to him; that if from the facts admitted
at the preliminary interrogatory it appears that the defendant is guilty, he may be immediately
convicted; and that the sentence of the sentence of the court is not appealable, except in case of death
penalty which cannot be executed unless and until reviewed and affirmed by a special division of the
Supreme Court composed of three Justices.
Before proceeding further, and in order to determine the law applicable to the questions involved in the
present case, it is necessary to bear in mind the nature and status of the government established in
these Islands by the Japanese forces of occupation under the designation of Republic of the Philippines.

In the case of Co Kim Cham vs. Valdez Tan Keh and Dizon  (G. R. No. L-5, pp. 113, 127, ante), recently
decided, this Court, speaking through the Justice who pens this decision, held:

In view of the foregoing, it is evident that the Philippines 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 Tanpico, 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 as 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.

And speaking of the so-called Republic of the Philippines in the same decision, this Court said:

The so-called Republic of the Philippines, apparently established and organized as a sovereign state
independent from any other government by the Filipino people, was, in truth and reality, a government
established by the belligerent occupant or the Japanese forces of occupation. It was of the same
character as the Philippine Executive Commission, and the ultimate source of its authority was the same
— the Japanese military authority and government. As General MacArthur stated in his proclamation of
October 23, 1944, a portion of which has been already quoted, "under enemy duress, a so-called
government styled as the 'Republic of the Philippines' was established on October 14, 1943, based upon
neither the free expression of the peoples" 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.

As the so-called Republic of the Philippines was a de facto government of the second kind (of paramount
force), as the government established in Castine, Maine, during its occupation by the British forces and
as that of Tampico, Mexico, occupied during the war with that the country by the United State Army, the
question involved in the present case cannot be decided in the light of the Constitution of the
Commonwealth Government; because the belligerent occupant was totally independent of the
constitution  of the occupied territory in carrying out the administration over said territory; and the
doctrine laid down by the Supreme Court of the United States in the cases involving the validity of
judicial and legislative acts of the Confederate States, considered as de facto governments of the third
kind, does not apply to the acts of the so-called Republic of the Philippines which is a de
facto government of paramount force. The Constitution of the so-called Republic of the Philippines can
neither be applied, since the validity of an act of a belligerent occupant cannot be tested in the light of
another act of the same occupant, whose criminal jurisdiction is drawn entirely from the law martial as
defined in the usages of nations.

In the case of United States vs. Rice (4 Wheaton, 246), the Supreme Court of the United States held that,
by the military occupation of Castine, Maine, the sovereignty of the United States in the territory was, of
course, suspended, and the laws of the United States could no longer be rightfully enforced there or be
obligatory upon the inhabitants who remained and submitted to the belligerent occupant. By the
surrender the inhabitants passed under a temporary allegiance to the British government, and were
bound by such laws, and such only, as it chose to recognize and impose. And Oppenheim, in his Treatise
on International Law, says that, in carrying out the administration over the occupied territory and its
inhabitants, "the (belligerent) occupant is totally independent of the constitution and the laws of the
territory, since occupation is an aim of warfare, and the maintenance and safety of his forces, and the
purpose of war, stand in the foreground of his interest and must be promoted under all circumstances
or conditions. (Vol. II, Sixth Edition, Revised, 1944, p. 342.)

The doctrine laid down in the decisions of the Supreme Court of the United States (in the cases of
Texas vs. White, 7 Wall., 700; Horn vs. Lockart, 17 Wall., 570; Williams vs. Bruffy, 96 U. S., 176 United
States vs. Home Insurance Co., 20 Wall., 249; Sprott vs. United States, 20 Wall., 459, and others) that the
judicial and legislative acts of the Confederate States which impaired the rights of the citizens under the
Constitution of the United States or of the States, or were in conflict with those constitutions, were null
and void, is not applicable to the present case. Because that doctrine rests on the propositions that "the
concession (of belligerency) made to the Confederate Government . . . sanctioned no hostile legislation .
. . and it impaired in no respect the rights of loyal and citizens as they existed at the commencement of
hostilities" (Williams vs. Bruffy, supra);that the Union is perpetual and indissoluble, and the obligation of
allegiance to the to the estate and obedience to her laws and the estate constitution, subject to the
Constitution of the United States, remained unimpaired during the War of Secession
(Texas vs. White, supra) and that the Confederate States "in most, if not in all instances, merely
transferred the existing state organizations to the support of a new and different national head. the
same constitution, the same laws for the protection of the property and personal rights remained and
were administered by the same officers." (Sprott vs. United States, supra). In fine, because in the case of
the Confederate States, the constitution of each state and that of the United States or the Union
continued in force in those states during the War of Secession; while the Constitution of the
Commonwealth Government was suspended during the occupation of the Philippines by the Japanese
forces of the belligerent occupant at regular war with the United States.

The question which we have to resolve in the present case in the light of the law of nations are, first, the
validity of the creation of the Court of Special and Exclusive Criminal Jurisdiction, and of the summary
procedure adopted for that court; secondly, the validity of the sentence which imprisonment during the
Japanese military occupation; and thirdly, if they were then valid, the effect on said punitive sentence of
the reoccupation of the Philippines and the restoration therein of the Commonwealth Government.

(1) As to the validity of the creation of the Court of Special and Exclusive Criminal Jurisdiction by
Ordinance No. 7, the only factor to be considered is the authority of the legislative power which
promulgated said law or ordinance. It is well established in International Law that "The criminal
jurisdiction established by the invader in the occupied territory finds its source neither in the laws of the
conquering or conquered state, — it is drawn entirely form the law martial as defined in the usages of
nations. The authority thus derived can be asserted either through special tribunals, whose authority
and procedure is defined in the military code of the conquering state, or through the ordinary courts
and authorities of the occupied district." (Taylor, International Public Law, p. 598.) The so-called
Republic of the Philippines, being a governmental instrumentality of the belligerent occupant, had
therefore the power or was competent to create the Court of Special and Exclusive Criminal Jurisdiction.
No question may arise as to whether or not a court is of political complexion, for it is mere a
governmental agency charged with the duty of applying the law to cases falling within its jurisdiction. Its
judgments and sentences may be of political complexion, or not depending upon the nature or
character of the law so applied. There is no room for doubt, therefore, as to the validity of the creation
of the court in question.

With respect to the Summary procedure adopted by Ordinance No. 7, and followed in the trial of the
case which resulted in the conviction of the herein petitioner, there is also no question as to the power
or competence of the belligerent occupant to promulgate the law providing for such procedure. For "the
invader deals freely with the relations of the inhabitants of the occupied territory towards himself . . .
for his security also, he declares certain acts, not forbidden by the ordinary laws of the country, to be
punishable; and he so far suspends the laws which guard personal liberty as is required for the summary
punishment of any one doing such acts." (Hall's International Law, seventh ed., p. 5000). A belligerent
"occupant may where necessary, set up military courts instead of the ordinary courts; and in case, and in
so far as, he admits the administration of justice by the ordinary courts, he may nevertheless, so far as is
necessary for military purposes, or for the maintenance of public order and safety temporarily alter the
laws, especially the Criminal Law, on the basis of which justice is administered as well as the laws
regarding procedure." (Oppenheim's International Law, Vol. II, sixth edition, 1944, p.349.)

No objection can be set up to the legality of its provisions in the light of the precepts of our
Commonwealth Constitution relating to the rights of accused under that Constitution, because the latter
was not in force during the period of the Japanese military occupation, as we have already stated. Nor
may said Constitution be applied upon its revival at the time of the re-occupation of the Philippines by
virtue of the principle of postliminium because "a constitution should operate prospectively only, unless
the words employed show a clear intention that it should have a retrospective effect" (Cooley's
Constitutional Limitations, seventh edition, page 97, and cases quoted and cited in the footnote),
especially as regards laws of procedure applied to cases already terminated completely.

The only restrictions or limitations imposed upon the power of a belligerent occupant to alter the laws
or promulgate new ones, especially the criminal law as well as the laws regarding procedure, so far as it
is necessary for military purposes, that is, for his control of the territory and the safety and protection of
his army, are those imposed by the Hague Regulations, the usages established by civilized nations, the
laws of humanity and the requirements of public conscience. It is obvious that the summary procedure
under consideration does not violate those precepts. It cannot be considered as violating the laws of
humanity and public conscience, for it is less objectionable, even from the point of view of those who
are used to the accusatory system of criminal procedure than the procedural laws based on the semi-
inquisitorial or mixed system prevailing in France and other countries in continental Europe.

(2) The validity of the sentence rendered by the Court of Special and Exclusive Criminal Jurisdiction
which imposes life imprisonment upon the herein petitioner, depends upon the competence or power
of the belligerent occupant to promulgate Act No. 65 which punishes the crime of which said petitioner
was convicted.

Westlake says that Article XLIII, Section III, of the Hague Conventions of 1907 "indicates that the laws to
be enforced by the occupant consist of, first, the territorial law in general, as that which stands to the
public order and social and commercial life of the district in a relation of mutual adaptation, so that any
needless displacement of it would defeat the object which the invader is enjoined to have in view, and
secondly, such variations of the territorial law as may be required by real necessity and are not expressly
prohibited by any of the rules which will come before us. Such variations will naturally be greatest in
what concerns the relation of the communities and individuals within the district to the invading army
and its followers, it being necessary for the protection of the latter, and for the unhindered prosecution
of the war by them, that acts committed to their detriment shall not only lose what justification the
territorial law might give them as committed against enemies, but shall be repressed more severely than
the territorial law would repress acts committed against fellow subjects. Indeed the entire relation
between the invaders and the invaded, so far as it may fall within the criminal department whether by
the intrinsic nature of the acts done or in consequence of the regulations made by the invaders, may be
considered as taken out of the territorial law and referred to what is called martial law." (Westlake,
International Law, Part II, War, p. 96.)

According to Hyde (International Law, Vol. II, p. 386), the term "martial law," in so far as it is used to
describe any fact in relation to belligerent occupation, does not refer to a particular code or system of
law, or to a special agency entrusted with its administration. The term merely signifies that the body of
law actually applied, having the sanction of military authority, is essentially martial. All law, by
whomsoever administered, in an occupied district martial law; and it is none the less so when applied by
civil courts in matters devoid of special interest to the occupant. The words "martial law" are doubtless
suggestive of the power of the occupant to share the law as he sees fit; that is, to determine what shall
be deemed lawful or unlawful acts, to establish tests for ascertaining the guilt of offenders, to fix
penalties, and generally to administer justice through such agencies as the found expedient.

And the United States Rules of Land Warfare provide that the belligerent occupant may promulgate
such new laws and regulations as military necessity demands, and in this class will be included those
laws which come into being as a result of military rule; that is, those which establish new crimes and
offenses incident to a state of war and are necessary for the control of the country and the protection of
the army, for the principal object of the occupant is to provide for the security of the invading army and
to contribute to its support and efficiency and the success of its operations. (Pub. 1940, pp. 76, 77.)

From the above it appears clear that it was within the power and competence of the belligerent
occupant to promulgate, through the National Assembly of the so-called Republic of the Philippines, Act
No. 65 of the said Assembly, which penalizes the crimes of robbery and other offenses by imprisonment
ranging from the maximum period of the imprisonment prescribed by the laws and ordinances
promulgated by the President of the so-called Republic as minimum, to life imprisonment or death as
maximum. Although these crimes are defined in the Revised Penal Code, they were altered and
penalized by said Act No. 65 with different and heavier penalties, as new crimes and offenses demanded
by military necessity, incident to a state of war, and necessary for the control of the country by the
belligerent occupant, the protection and safety of the army of occupation, its support and efficiency,
and the success of its operations.
They are not the same ordinary offenses penalized by the Revised Penal Code. — The criminal acts
penalized by said Act No. 65 are those committed by persons charged or connected with the supervision
and control of the production, procurement and distribution of foods and other necessaries; and the
penalties imposed upon the violators are different from and much heavier than those provided by the
Revised Penal Code for the same ordinary crimes. The acts penalized by said Act were taken out of the
territorial law or Revised Penal Code, and referred to what is called martial law by international jurists,
defined above by Hyde, in order, not only to prevent food and other necessaries from reaching the
"guerrillas" which were harassing the belligerent occupant from every nook and corner of the country,
but also to preserve the food supply and other necessaries in order that, in case of necessity, the
Imperial Japanese forces could easily requisition them, as they did, and as they had the right to do in
accordance with the law of nations for their maintenance and subsistence (Art. LII, Sec. III, Hague
Conventions of 1907). Especially taking into consideration the fact, of which this court may take judicial
notice, that the Imperial Japanese Army had depended mostly for their supply upon the produce of this
country.

The crimes penalized by Act No. 65 — as well as the crimes against national security and the law of
nations, to wit: treason, espionage, inciting war, violation of neutrality, correspondence with hostile
country, flight to enemy's country, piracy; and the crimes against public order, such as rebellion, sedition
and disloyalty, illegal possession of firearms and other, penalized by Ordinance No. 7 and placed under
jurisdiction of the Court of Special and Exclusive Criminal Jurisdiction — are all of a political complexion,
because the acts constituting those offenses were punished, as are all political offenses, for public rather
than private reasons, and were acts in aid or favor of the enemy and against the welfare, safety and
security of the belligerent occupant. While it is true that these offenses, when committed against the
Commonwealth or United States Government, are defined and also penalized by the territorial law
Revised Penal Code, they became inapplicable as crimes against the occupier upon the occupation of the
Islands by the Japanese forces. And they had to be taken out of the territorial law and made punishable
by said Ordinance No. 7, for they were not penalized before under the Revised Penal Code when
committed against the belligerent occupant or the government established by him in these Island. They
are also considered by some writers as war crimes in a broad sense. In this connection Wheaton
observes the following:

"Of 'war crimes' the number is naturally indefinite, depending as they do on the acts from time to time
ordered to be done or forbidden to be done in the martial law proclamation or regulations of the
invading or occupying commander. Thus, in the Anglo-Boer war, the British military authorities
proclaimed the following to be offenses against their martial law; — Being in possession of arms,
ammunition, etc.; traveling without a permit; sending prohibited goods; holding meetings other than
those allowed; using seditious language; spreading alarmist reports; overcharging for goods; wearing
uniforms without due authority; going out of doors between certain hours; injuring military animals or
stores; being in possession, without a permit, of horses, vehicles, cycles, etc.; hindering those in
execution of military orders; trespassing on defense works. Such offenses, together with several others,
were specified in the Japanese regulations made in the Russo-Japanese war." (Wheaton's International
Law, War, seventh edition, 1944, p. 242.)

It is, therefore, evident that the sentence rendered by the Court of Special and Exclusive Criminal
Jurisdiction against the petitioner, imposing upon him the penalty of life imprisonment, was good and
valid, since it was within the admitted power or competence of the belligerent occupant to promulgate
the law penalizing the crime of which petitioner was convicted.

(3) The last question is the legal effect of the reoccupation of the Philippines and restoration of the
Commonwealth Government; that is whether or not, by the principle of postliminy, the punitive
sentence which petitioner is now serving fell through or ceased to be valid from that time.

In order to resolve this last question, it is not necessary to enter into an elaborate discussion on the
matter. It is sufficient to quote the opinion on the subject of several international jurists and our recent
decision in the case of Co Kim Cham vs. Valdez Tan Keh and Dizon, supra.

Hall, commenting on the effect of the principle of postliminy upon sentences of the tribunals continued
or created by the belligerent occupant, opines "that judicial acts done under this control, when they are
not of a political complexion, administrative acts so done, to the extent that they take effect during the
continuance of his control, and the various acts done during the same time by private persons under the
sanction of municipal law, remain good. . . . Political acts on the other hand fall through as of course,
whether they introduce any positive change into the organization of the country, or whether they only
suspend the working of that already in existence. The execution also of punitive sentences ceases as of
course when they have had reference to acts not criminal by the municipal law of the state, such for
example as acts directed against the security or control of the invader." (Hall's International Law,
seventh edition, p. 518.)

Westlake, speaking of the duration of the validity of punitive sentences for offenses such as the one in
question, which is within the admitted power or competence of the belligerent occupant to punish, says
that: "To the extent to which the legal power of the occupant is admitted he can make law for the
duration of his occupation. Like any other legislator he is morally subject to the duty of giving sufficient
notice of his enactments or regulations, not indeed so as to be debarred from carrying out his will
without notice, when required by military necessity and so far as practically carrying out his will can be
distinguished from punishment, but always remembering that to punish for breach of a regulation a
person who was justifiably ignorant of it would be outrageous. But the law made by the occupant within
his admitted power, whether morally justifiable or not, will bind any member of the occupied population
as against any other member of it, and will bind as between them all and their national government, so
far as it produces an effect during the occupation. When the occupation comes to an end the authority
of the national government is restored, either by the progress of operations during the war or by the
conclusion of a peace, no redress can be had for what has been actually carried out but nothing further
can follow from the occupant's legislation. A prisoner detained under it must be released, and no civil
right conferred by it can be further enforced. The enemy's law depends on him for enforcement as well
as for enactment. The invaded state is not subject to the indignity of being obliged to execute his
commands. (Westlake, International Law, Part II, War, pp. 97, 98.)

And Wheaton, who, as above stated, considers as war crimes such offenses as those penalized in
Ordinance No. 7 and Act No. 65, says: "In general, the cast of the occupant possess legal validity, and
under international law should not be abrogated by the subsequent government. But this rule does not
necessarily apply to acts that exceed the occupant's power (e.g., alienation of the domains of the State
or the sovereign), to sentences for 'war treason' and  'war crimes,' to acts of a political character, and to
those that beyond the period of occupation. When occupation ceases, no reparation is legally due for
what has already been carried out." (Wheaton's International Law, supra, p. 245.)
We have already held in our recent decision in the case of Co Kim Cham vs. Valdez Tan Keh and Dizon,
supra, that all judgments of political complexion of the courts during the Japanese regime, ceased to be
valid upon the reoccupation of the islands by virtue of the principle or right of postliminium. Applying
that doctrine to the present case, the sentence which convicted the petitioner of a crime of a political
complexion must be considered as having ceased to be valid ipso facto upon  the reoccupation or
liberation of the Philippines by General Douglas MacArthur.

It may not be amiss to say in this connection that it is not necessary and proper to invoke the
proclamation of General Douglas MacArthur declaring null and void all laws, among them Act No. 65, of
the so-called Republic of the Philippines under which petitioner was convicted, in order to give
retroactive effect to the nullification of said penal act and invalidate sentence rendered against
petitioner under said law, a sentence which, before the proclamation, had already become null and of
no effect.

We therefore hold that the punitive sentence under consideration, although good and valid during the
military occupation of the Philippines by the Japanese forces, ceased to be good and valid ipso
facto  upon the reoccupation of these Island and the restoration therein of the Commonwealth
Government.

In view of all the foregoing, the writ of habeas corpus prayed for is hereby granted and it is ordered that
the petitioner be released forthwith, without pronouncement as to costs. So ordered.

Jaranilla, Pablo and Bengzon, JJ., concur.

Moran, C.J., concurs in the result.

Separate Opinions

OZAETA, J.,  concurring:

Amidst the forest of opinions that have cropped up in this case it would seem unnecessary to plant an
additional tree. To justify our effort — lest we seem intent to bring coal to Newcastle — we ought to
state that the following opinion had been prepared before the others were tendered. It has been
impossible for the Court to reconcile and consolidate the divergent views of its members although they
arrive at practically the same result.

Accused of robbery in the Court of Special and Exclusive Criminal Jurisdiction of Manila, the petitioner
was found guilty and sentenced to life imprisonment. He commenced to serve the sentence on August
21, 1944. He now petitions this Court for the writ of habeas corpus, alleging that Ordinance No. 7, by
which the Court of Special and Exclusive Criminal Jurisdiction was created and which was promulgated
on March 8, 1944, by the President of the "Republic of the Philippines," was null and void ab initio. The
Solicitor General, answering the petition on behalf of the respondent Director of Prisons, expressed the
opinion that "the acts and proceedings taken and before the said Court of Special and Exclusive Criminal
Jurisdiction which resulted in the conviction and imprisonment of the herein prisoner should now be
denied force and efficacy," and recommended "that the writ of habeas corpus prayed for be granted and
that the City Fiscal be instructed to prepare and file the corresponding information for robbery against
the petitioner herein in the Court of First Instance of Manila."

The case was argued before us on September 21 and 22, 1945, by the First Assistant Solicitor General on
behalf of the respondent and the City Fiscal as amicus curiae — the former impugning and the latter
sustaining the validity of said Ordinance No. 7. Section 1 of the ordinance in question reads as follows:

SECTION 1. There is hereby created in every province and city throughout the Philippines one or more
courts of special criminal jurisdiction as the President of the Republic of the Philippines may determine
upon recommendation of the Minister of Justice, which courts shall have exclusive jurisdiction to try and
determine crimes and offenses penalized by Act No. 65 entitled "An Act imposing heavier penalties for
crimes involving robbery, bribery, falsification, frauds, illegal exactions and transactions, malversation of
public funds and infidelity as defined in the Revised Penal Code and violations of food control laws,
when committed by public officers and employees, and for similar offenses when committed by private
individuals or entities, and providing for a summary procedure for the trial of such offenders."

Section 2 confers upon the court mentioned in section 1 exclusive jurisdiction also to try the following
crimes as defined in the Revised Penal Code: crimes against national security and the law of nations,
crimes against public order, brigandage, arson and other crimes involving destruction, illegal detention
committed by private individuals and kidnapping of minors; and illegal possession of firearms, as defined
in an executive order. Section 3 provides for the appointment of one judge of first instance to preside
over the court above mentioned and of a special prosecutor in each special court. Section 4 authorizes
the court to impose a longer term of imprisonment than that fixed by law, or imprisonment for life or
death where not already fixed by law, for the crimes and offenses mentioned in section 2. The remaining
sections read as follows:

SEC. 5. The trial of the cases arising sections 1 and 2 hereof shall be started within two days after the
filing of the corresponding information, shall be summary in procedure, and shall aim at their
expeditious and prompt disposition. Technicalities shall be avoided and all measures calculated to serve
this end shall be taken by the trial judge. Said cases shall be decided within four days after the same are
submitted for decision. The summary procedure provided in Act No. 65 insofar as not inconsistent with
the provisions of this Ordinance, shall govern the trial of the cases enumerated in said sections 1 and 2
hereof.

SEC. 6. The decisions of the special courts herein created shall be final except where the penalty
imposed is death, in which case the records of the particular case shall be elevated en consulta  to a
special division of the Supreme Court composed of the three members to be designated by the
President of the Republic of the Philippines. The clerk of each special court, upon the promulgation of a
decision imposing the death penalty, shall immediately forward the records of the case to the special
division of the Supreme Court herein created, which shall decide the case within fifteen days from the
receipt of the records thereof.

SEC. 7. The interest of public safety so requiring it, the privileges of the writ of habeas corpus are hereby
suspended with respect to persons accused of, or under investigations for, any of the crimes and
offenses enumerated in sections 1 and 2 hereof.
SEC. 8. All laws, rules or orders, or parts thereof, inconsistent with the provisions hereof, are hereby
repealed or modified accordingly.

SEC. 9. This Ordinance shall take effect immediately upon its promulgation.

The summary procedure provided in Act No. 65 of the "Republic," as referred to in section 5 above
quoted, is in turn that established by Chapter II of Executive Order No. 157 of the Chairman of the
Philippine Executive Commission, dated May 18, 1943. Under said procedure (section 17) "search
warrants may be issued by the court or by any prosecuting officer, authorizing peace officers to search
for and seize any articles or objects described in the warrant, including those which may be regarded as
evidence of an offense under this Order even if such articles or objects are not included among those
described in section 2, Rule 122, of the Rules of Court." Section 18 reads as follows:

SEC. 18. The accused or his representative may be examined by the court, and with the permission of
the court, by the fiscal or other prosecuting officer as to any matters favorable or unfavorable to him or
his principal; and either may apply to the judge for the examination of the co-accused or the
representative of the latter in matters related to the defense of the accused. Statements made by the
accused, his co-accused, or the representative of the accused or a person acting in a similar capacity,
irrespective of the circumstances under which they were made, shall be admissible in evidence if
material to the issue.

Section 21 provides for the summary trial in the following manner:

Such trials shall be conducted according to the following rules:

(a) After arraignment and plea, the court shall immediately cause to be explained to the accused the
facts constituting the offenses with which he is charged, and the judge shall interrogate the accused and
the witnesses as to the facts and circumstances of the case in order to clarify the points in dispute and
those which are admitted.

(b) Refusal of the accused to answer any questions made or allowed by the court may be considered
unfavorable to him.

(c) Except for justifiable reasons, the accused shall not be allowed to plead and assert defenses that are
inconsistent with each other.

(d) If from the facts admitted at the preliminary interrogation, it should appear that the accused is guilty
of the crime charged in the information, or in any other information, or in any other information, or in
any other information subsequently filed by the prosecuting officer, a sentence of conviction may be
immediately rendered against the accused. Otherwise, the judge shall dictate an order distinctly
specifying the facts admitted by the accused and those which are in dispute, and the trial shall be limited
to the latter, unless the judge, for special reasons, otherwise directs.

(e) Unjustified absence of an accused who has been released on bail, or of his representative shall not be
a ground for interrupting the proceedings or attacking the validity of the judgment.

The provisions of Rules 115 to 117 of the Rules of Court shall be suppletory to the foregoing insofar as
they are not in conflict therewith.
The records shows that during their existence the courts of special and exclusive criminal jurisdiction
created by the ordinance in question convicted and sentenced a total of 94 individuals, 55 of whom had
been prosecuted for illegal possession of firearms and 15 for robbery; and that of the 94 convicts only 3,
including the herein petitioner, remain in confinement, 21 having escaped, 37 having been released, and
33 having died.

In synthesis, the argument of the Solicitor General is as follows: Acts of the military occupant which
exceed his power tested by the criterion set forth in article 43 of the Hague Regulations, are null and
without effect as against the legitimate government. (Wheaton's International Law, 7th ed., p. 245.) Acts
in furtherance or support of rebellion against the United States, or intended to defeat the just rights of
citizens, and other Acts of like nature, must, in general, be regarded as invalid and void.
(Texas vs. White, 74 U. S., 733; 19 Law. ed., 240.) Judicial or legislative acts in the insurrectionary states
were valid 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. (Horn vs. Lockhart,
17 Wall., 570-581; 21 Law. ed., 660.) All the enactment of the de facto legislatures in the insurrectionary
states during the war, which were not hostile to the Union or to the authority of the General
Government and which were not in conflict with the Constitution of the United States, or of the states,
have the same validity as if they had been enactments of legitimate legislatures. (United States vs. The
Home Insurance Co., 22 Wall., 99-104; 22 Law. ed., 818.) Tested by these principles of international law,
Ordinance No. 7 must be declared void (1) because it favored the forces of occupation and the civilian
Japanese inasmuch as it provided an excessively heavy penalty for the summary trial of possession of
firearms and violations of food control regulations and (2) because it impaired the rights of citizens
under the Constitution inasmuch as the procedure therein prescribed withdrew the privilege of the
accused against self-incrimination and his right to appeal to the Supreme Court even where the penalty
imposed was life imprisonment or death.

In substance, the City Fiscal argues that the heavier penalty for the illegal possession of firearms than
that fixed by the Administrative Code was not directed toward the suppression of underground activities
against the Japanese army, and the rigid enforcement of the food control measures was not intended to
insure the procurement of supplies by said army, because in any event the Japanese military occupant
freely exercised the power to go after and punish his enemies directly without recurring to the agencies
of the "Republic," for there were even cases where the offenders were already in the hands of the police
or courts of the "Republic" but they were unceremoniously taken from said agencies by the Japanese
military police and punished or liquidated by it at Fort Santiago or elsewhere; and as regards food
control, the Japanese forces did not have any need of the measures or agencies established by the
"Republic" because the Japanese forces themselves commandeered what they needed or sent out their
own agents to purchase it for them at prices even much higher than those fixed by the "Republic"; that
the procedure prescribed afforded a fair trial and did not violate any fundamental rights; that the
military occupant was not in duty bound to respect the constitution and the laws of the occupied
territory; that he could abrogate all of them and promulgate new ones if he so chose; that the cases
cited by the Solicitor General are not applicable because they deal with the validity of acts and processes
of the governments of the rebel states during the Civil War and are based upon the indissolubility of the
Union; that the validity or nullity of the ordinance in question should be judged in the light of the
provisions of the Constitution and the laws of the "Republic" and of generally accepted principles of
international law; that even assuming that it should be judged by the standard or the Constitution of the
Commonwealth, the ordinance satisfies all the requirements of said Constitution; that the right to
appeal in a criminal case is not a constitutional but a purely statutory right which may be granted or
withheld at the pleasure of the state; and, finally, that the supposed invalidity of the sentence imposed
against the petitioner cannot be raised by habeas corpus.

There is no question that in virtue of that of the proclamation of General MacArthur of October 23, 1944
(41 Off. Gaz., 147, 148), Ordinance No. 7 is no longer of any force and effect since the restoration of the
Government of the Common wealth of the Philippines. The question before us is whether said ordinance
ever acquired any force and effect or was null and void ab initio.

Invoking decisions of the Supreme Court of the United States in cases involving the validity of Acts of the
Confederacy and of a rebel state as a de facto government during the Civil War, the Solicitor General
maintains that the ordinance in question was null and void because it impaired the rights of citizens
under the Constitution and because it was hostile in its purpose to the United States and the
Commonwealth of the Philippines.

The decisions invoked would be applicable if the so-called Republic of the Philippines should be
considered as a government established by the Filipino people in rebellion against the Commonwealth
and the Sovereignty of the United States. The decisions of the Supreme Court of the United States
declaring invalid Acts of a rebel state or of the Confederacy which were in furtherance or support of
rebellion against the United States or which impaired the rights of citizens under the Constitution, rest
on the proposition that the Union is perpetual and indissoluble and that the obligations of allegiance to
the state, and obedience to her laws, subject to the Constitution of the United States, remained
unimpaired during the War of Secession. (See Texas vs. White, 74 U.S., 700; 19 Law. ed., 227, 237;
William vs. Bruffy, 96 U.S., 176; 24 Law. ed. 716.) Obviously, that proposition does not hold true with
respect to a de facto government established by the enemy in an invaded and occupied territory in the
course of a war between two independent nations. Such territory is possessed temporarily so possessed
temporarily by lawful government at war with the country of which the territory so possessed is a part,
and during that possession the obligations of the inhabitants to their country are suspended, although
not abrogated (United States vs. Rice, 4 Wheat., 253; Fleming vs. Page 9 How., 614; Baldy vs. Hunter,
171 U.S., 388; 43 Law. ed., 208, 210.) In the case of Williams vs. Bruffy, supra, the court, speaking though
Mr. Justice Field, observed: "The rule stated by Vattel, that the justice of the cause between two
enemies being by law of nations reputed to be equal, whatsoever is permitted to the one in virtue of
war is also permitted to the other, applies only to cases of regular war between independent nations. It
has no application to the case of a war between an established government and insurgents seeking to
withdraw themselves from its jurisdiction or to overthrow its authority. The court further stated that the
concession of belligerent rights made to the Confederate Government sanctioned no hostile legislation
and impaired in no respect the rights loyal citizens as they had existed at the commencement of
hostilities.

On the other hand, in a war between independent nations "the rights of the occupant as a law-giver
have broad scope." He many "suspend the existing laws and promulgate new ones when the exigencies
of the military service demand such action. According to the Rules of Land Warfare he will naturally alter
or suspend all laws of a political nature as well as a political privileges, and laws which affect the welfare
and safety of his command." (Hyde on International Law, vol. 2, p. 367.) It will be seen then that in a war
between independent nation the army of occupation has the right to enact laws and take measures
hostile to its enemy, for its purpose was to harass and subdue the latter; and it is not bound to respect
or preserve the rights of the citizens of the occupied territory under their Constitution.

Let us now look into the nature and status of the government styled "Republic of the Philippines "in
order to determined the criterion by which the validity of its enactments should be tested. In the recent
case of Co Kim Cham vs. Valdez Tan Keh Dizon  (G.R. No. L-5, p. 113, ante), this Court speaking through
Justice Feria, had occasion to comment upon the nature of said government in the following words:

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 Philippines Executive Commission, and the ultimate source of its authority was the
same — the Japanese military authority and government. As General McArthur stated in his
proclamation of October 23, 1944, a portion of which had been already quoted, "under enemy duress a
was established on October 14, 1943, base upon neither the free expression of the peoples" 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 State 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 internal law, recognized in the law, recognized in
Article 45 of the Hague Conventions of 1907 (which prohibits compulsion of the population of the
occupied territory to swear allegiance to the hostile power), that belligerent occupation, being
essentially provisional, does not severe 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 of the Filipino people into believing in the
apparent magnanimity of the Japanese gesture of transferring or turning over the rights of governments
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.

We reaffirmed those statements. To show further the fictitious character of much-propagandized

"independence" which Japan purported to grant to the Philippines through the establishment of the
"Republic", we may add that, as matter of contemporary history and of common knowledge, in practice
the Japanese military authorities in the Philippines never treated the "Republic of the Philippines" as an
independent government after its inauguration. They continued to impose their will on its executive
officials when their interests so required. The Japanese military police arrested and punished various
high officials of said government, including the First Assistant Solicitor General, and paid no attention to
the protests and representations made on their behalf by the President of the "Republic." As a climax of
their continual impositions, in December 1944 the Japanese military authorities placed the President
and the members of his Cabinet under the "protective" custody of the military police, and on the 22nd
of the month forced them to leave the seat of the government in Manila and hide with them in the
mountains. The only measure they did not succeed in imposing upon the "Republic" was the
conscription of the Filipino youth into an army to fight with the Japanese against the United States. So,
while in theory and for the purpose of propaganda Japan professed to be a benefactor and liberator of
the Filipinos, hoping thereby to secure their willing cooperation in her war efforts, in practice she
continued to enslave and oppress the Filipinos, as she saw that the latter remained loyal to the United
States. She found that the Filipinos merely feigned cooperation as their only means of self-preservation
and that those who could stay beyond the reach of her army of occupation manifested their hospitality
by harassing and attacking that army. Thus Japan continued to oppress and tyrannize the Filipinos
notwithstanding the former's grant of "independence" to the latter. It would therefore be preposterous
to declare that the "Republic of the Philippines" was a government established by the Filipino people in
rebellion against the Commonwealth and the sovereignty of the United States.

The said government being a mere instrumentality of the Commander in Chief of the Japanese army as
military occupant, the ordinance question promulgated by the President of the "Republic" must be
deemed as an act emanating from the power or authority of said occupant. The question, therefore, is
whether or not it was within the competence of the military occupant to pass such a law.

Article 43 of the Hague Regulations provides as follows:

ART. 43. The authority of the legitimate power having actually passed into the hands of the occupant,
the latter 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.

Commenting upon this article, Hyde in his work on International Law, volume 2, pages 366, 367, 368,
says:

In consequence of his acquisition of the power to control the territory concerned, the occupant enjoys
the right and is burdened with the duty to take all the measures within his power to restore and insure
public order and safety. In so doing he is given great freedom may be partly due to circumstance that
the occupant is obliged to consider as a principal object the security, support, efficiency and success of
his own force in a hostile land inhabited by nationals of the enemy. . . .

xxx           xxx           xxx

The right to legislate is not deemed to be unlimited. According to the Hague Regulations of 1907, the
occupant is called upon to respect, "unless absolutely prevented, the laws in force the ordinary civil and
criminal laws which do not conflict with security of his army or its support, efficiency, and success."

In the exercise of his powers the commander must be guided by his judgment and his experience and a
high sense of justice. (President McKinley, Order to the Secretary of War, July 18, 1898, on the
occupation of Santiago de Cuba by the American forces, Moore, Dig. VII, p. 261.)

Acts of the military occupant which exceed his power tested by the criterion set forth in article 43 of the
Hague Regulations, are null and without effect as against the legitimate government. (Wheaton's
International Law, 7th ed. [1944], p. 245.)

Hall in his Treatise on Internal Law, (7th edition), discussing the extent of the right of a military
occupant, states:

If occupation is merely a phase in military operations, and implies no change in the legal position of the
invader with respect to the occupied territory and its inhabitants, the rights which he possesses over
them are those which in the special circumstances represent his general right to do whatever acts are
necessary for the prosecution of his war; in other words he has the right of exercising such control, and
such control only, within the occupied territory as is required for his safety and the success of his
operations. . . . On occupying a country an invader at once invest himself with absolute authority; and
the fact of occupation draws with it as of course the substitution of his will for previously existing law
whenever such substitution is reasonably needed, and also the replacement of the actual civil judicial
administration by the military jurisdiction. In its exercise however this ultimate authority is governed by
the condition that the invader, having only a right to such control as is necessary for his safety and the
success of his operations, must use his power within the limits defined by the fundamental notion of
occupation, and with due reference to its transient character. He is therefore forbidden as a general rule
to vary or suspend laws affecting property and private personal relations, or which regulate the moral
order of the community. . . . (Pages 498, 499.)

We deduce from the authorities that the power of the occupant is broad and absolute in matters
affecting his safety. But in affairs which do not affect the security, efficacy, and success of his military
operations, his power is qualified by the transient character of his administration. He is forbidden "to
vary or suspend laws affecting property and private personal relations, or which regulate the moral
order of the community." Unless absolutely prevented, he is bound to laws, and civil and criminal, in
force in the country.

Tested by this criterion, was it within the power or competence of the Commander in Chief of the
Japanese army of occupation of the Philippines to promulgate Ordinance No. 7? In so far as said
ordinance created new court of special criminal jurisdiction we think his power to promulgate and
enforce it during the occupation cannot be seriously disputed; but in so far as that ordinance varied
radically our law of criminal procedure and deprived the accused of certain rights which our people have
always treasured and considered inviolate, we are of the that it transcended his power or competence.
We base this opinion upon the following considerations:

1. The occupant was not absolutely prevented from respecting our law of criminal procedure and the
Court of Special and Exclusive Criminal jurisdiction. The application or nonapplication of said law did not
affect the security, efficacy, and success of his military operations. The crimes over which the said court
was vested with jurisdiction were mostly crimes against property penalized in our Revised Penal Code,
which crimes did not affect the army of occupation. As to the illegal possession of firearms the City Fiscal
himself, who the validity of the ordinance, informs us that the occupant did not avail himself of said
court but punished his enemies direct without recurring to the agencies of the "Republic"; and he
further informs us that "as regards food control, the Japanese forces did not have any need of the
measures or agencies established by "Republic", nor did they make use of them.

2. The summary procedure prescribed in Ordinance No. 7 was inquisitorial, repugnant to the
humanitarian method of administering criminal justice adopted by all progressive, democratic, and
freedom-loving countries of the world, and, therefore, devoid of that high sense of justice by which the
military occupant must be guided in the exercise of his powers. This concept is, we think, borne out by
an examination of the following features of said procedure:

(a) Under the rule of procedure embodied in said ordinance any prosecuting officer may, on his own
volition and even without probable cause, issue a search warrant for the seizure of documents and
articles which may be regarded as evidence of an offense — in violation of section 2, Rule 122 of the Bill
of Rights contained in the Constitution of the Commonwealth, which guarantees "the right of the people
to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures,"
and prohibits the issuance of warrants except upon probable cause to be determined by the judge  after
examination under oath or affirmation of the complainant and the witnesses he may produce.

(b) The trial must be commenced within  two days after the filing of the information — in violation of
section 7, Rule 114, which give the accused at least  two days after the plea  of not guilty within which to
prepare fort trial.

(c) The presumption of innocence in favor of the accused in all criminal prosecutions until the contrary is
proved, which is likewise guaranteed by the Bill of Rights, is violated in that, after the arraignment and
before the presentation of any proof for the prosecution, the accused is interrogated by the judge as to
the facts and circumstances of the case, and if from the facts obtained by such interrogation it should
appear (to the judge) that accused is guilty a sentence of conviction may be immediately rendered
against him, thereby also depriving him of his right to meet the witnesses face to face and of his
privilege against self-incrimination.

The City Fiscal justifies this feature of the procedure by giving the following hypothetical case: "In the
house of Juan and under his bed a policeman finds a revolver. Juan is arrested and an information for
illegal possession of firearms is filed against him by the fiscal. He is brought before the judge of the
corresponding special court for the preliminary interrogatory. He is asked whether or not he admits that
the revolver was found in his house. He answers in the affirmative but says that he is not the owner of
the revolver and he does not know how it placed there. Asked whether he knows of anybody who could
have placed the revolver under his bed, he answers that it might have been place there by a guest who
slept on his bed the night previous to its discovery by the polices. He is asked to give the name of the
guest reffered to and his address, but he refuses to answers. Asked if he has other witnesses to support
his claim, he answer that he has none. As may be seen, the evidence of guilt is complete, and there
being no further evidence to be presented that may change the result the accused may be then and
there sentenced by the court. In this case, the conviction of the accused is reasonable and fair, for his
refusal to reveal the identity of his alleged guest may due, either to the fact that there was no such
guest, or that the cause for concealing his identity is worth suffering for. Volente non fit injuria."

But to us that hypothetical case is a good illustration of the injustice of such procedure. There the
accused was convicted not because the prosecution had proved his guilt but because he was unable to
prove his innocence. His inability to prove who the owner of the revolver was, did not to our mind prove
him guilt, beyond reasonable doubt, under the circumstances. He was accused of illegal possession of
firearm, an offense punishable under the ordinance in question with imprisonment for six to twelve
years. He pleaded not guilty, for according to him the revolver was not his and he did not know how it
got into his house. He had no time to investigate and try to find out whether the policeman himself or
some the other person who wished to do him harm had planted it there, sooner was the revolver seized
than he was brought before the court and interrogated about it when he was naturally dazed and in a
state of alarm. If the law of criminal procedure had been followed, he would have had ample time to
reflect and endeavor to unravel the mystery. He could have consulted a lawyer, and he would have been
entitled to at least two days after the information was read to him to investigate the facts and prepare
for the trial. At the trial he would not have been required to answer to any proof in his defense until the
prosecution had presented its witness, principally the policeman. His lawyer could have cross-examined
the policeman and found out from him whether he had any grudge against the accused and how he
happened to search the latter's house. From the testimony of the policeman the accused might have
been enlightened as to how and by whom the revolver was place in his house. Suppose that the
policeman should say that his informant as to the presence of the revolver under the bed of the accused
was a houseboy of the latter, and suppose that houseboy was really the one who planted the revolver
because of some grievance he had against his master but that the latter had not suspected before that
his houseboy had any revolver. In view of the revelation of the policeman he would had been able to
investigate and ascertain that fact. In that he way he could have satisfactory explained how and by
whom the revolver was placed under his bed. But under the procedure in question as outlined by the
City Fiscal, the accused was of course utterly unable to do that and was consequently doomed to at least
six years' imprisonment for a crime he had not committed.

(d) Section 6 of the Ordinance in question provided: "The decisions of the special courts herein created
shall be final except where the penalty imposed is death, in which case the records of the particular case
shall be elevated en consulta  to a special division of the Supreme Court composed of three members to
be designated by the President of the Republic of the Philippines." Under our law of criminal procedure,
which the military occupant was bound to respect unless absolutely prevented, all persons accused of
any offense have the right to appeal to the Court Appeals or to the Supreme Court. It is true that as rule
that right is statutory and may be withdrawn by the legislature except in certain cases where the right to
appeal is provided in the Constitution itself, as in the cases involving life imprisonment and death
penalty; but the question here is not whether the legislative department of the legitimate government
has the power to abrogate that right but whether it was within the competence of the military occupant
to do so.

(e) In the instant case the penalty imposed upon accused by the special court, after a summary trial
was life imprisonment, and he was denied the right to have that sentence reviewed by the Supreme
Court, altho under sub-section 4, section 2, Article VIII of the Constitution of the Commonwealth, he
could not have been deprived by law of that right.

(  f  ) Section 7 of the Ordinance suspended the privilege of the writ of habeas corpus with respect to
persons accused of or under investigation for any of the crimes and offenses enumerated in sections 1
and 2. The Constitution of the Commonwealth prohibit the suspension of that privilege except in cases
of invasion, insurrection, or rebellion when the public safety requires it. The suspension by the
ordinance was not motivated by any one of these cases but by the necessity for waging a campaign
against certain classes of crime; martial law was not declared; and the suspension of habeas corpus did
not apply to all persons living in the specified territory (as should have been done if the public safety
required such suspension) but only to those accused of or investigated for certain specified crimes or
offenses. The result of such partial suspension was that persons accused of or under investigation for
any of the offenses specified in section 1 and 2 could be held in detention indefinitely, whereas person
accused of or under investigation for crimes other than those specified, such for example as theft,
physical injuries, homicide, murder, and parricide, had the right to demand their release by habeas
corpus after the lapse of six hours. The same discrimination holds true with reference to the other
features already noted above, namely, unreasonable searches and seizures, summary trial, denial of the
presumption innocence, self-incrimination, and denial of the right to appeal. Such discrimination was
unwarranted and unjust and was contrary to the concept of justice prevailing in all democratic
countries, where every person is entitled to the equal protection of the laws.
3. It is apparent from the foregoing examination of the main features of the ordinance that while the
methods thus adopted may not be unusual under totalitarian governments like those of the aggressor
nations in the recent global war, they are strange and repugnant to the people of the democratic
countries which united together to defeat said aggressors and "to reaffirm faith in fundamental human
person, in the equal rights of men and women and of nations large and small, . . . and to promote social
progress and better standards of life in larger freedom." (Preamble Charter for Peace adopted by the
United Nations at San Francisco, California, June 26, 1945.) The recent global war was a clash between
two antagonistic ways of life, between facism and democracy. It would be strange indeed if his Court,
which functions under a democratic government that fought with the other democratic nations in that
war, should sanction or approve the way of life, against which that war was fought and won the cost of
million of lives and untold sacrifices.

4. The case involves the interpretation not of constitution but of international law, which "is based on
usage and opinion"; and "he who in such a case bases his reasoning on high considerations of morality
may succeed in resolving the doubt in accordance with humanity and justice." (Principles of
International Lawrence, 7th ed., pp. 12, 13.) We think the contentions for the petitioner against the
validity of the ordinance in question are in accord with humanity and justice.

Before concluding this opinion we deem it pertinent to comment on the remark of the City Fiscal that, as
stated in its preamble, the ordinance in question was promulgated in response to "an urgent necessity
for waging an immediately and relentless campaign against certain classes and expediting the trail and
determination thereof in order to hasten the re-establishment of peace and other throughout the
country and promote a feeling of security among the people conducive to the earlier return of normalcy
in our national life." We concede that the objective of the author of the ordinance was commendable,
but we think — and in this we are supported by the actual result — it was unattainable thru the means
and methods prescribed in said ordinance. Peace and order and normalcy could not be restored unless
the root cause of their disturbance were eliminated first. That cause was the presence in the country of
the Japanese army, which wrecked our political, social, and economic structures, destroyed our means
of communication, robbed the people of their food, clothing, and medicine and other necessities of life,
ejected them from their own homes, punished and tortured innocent men and women, and other wise
made life unbearable. The relative rampancy of the crimes mentioned in said ordinance was but the
effect of that cause. The cornering and hoarding of foodstuffs would not for the scarcity produced by the
Japanese army and the disruption of our commerce and industries on account of the invasion. The
possession of firearms was rendered desirable to many person to defend themselves against or attack
the invader. Robberies and other crimes against property increased as a resulted of hunger and
privation to which the people were subjected by the rapacity of the Japanese. It was a delusion to
expect peace and normalcy to return without eliminating the cause of their disturbance or destruction
of the Japanese army in the Philippines — an objective to which the ordinance was not addressed. So,
even from the point of view of the Filipino people and not of the Japanese army of occupation, the
ordinance in question results untenable.

Having reached the conclusion that the enactment of the procedure embodied in said ordinance for the
special court therein created was beyond the competence of the occupant, inasmuch as that procedure
was inseparable from the first part of the ordinance which creates the special court and prescribes the
jurisdiction thereof, we are constrained to declare the whole ordinance null and void ab initio.
Consequently the proceedings in said court which resulted in the conviction and sentence of the
petitioner are also void.

PARAS, J.,  concurring in the result:

Charged with robbery, the petitioner herein was found guilty and sentence to suffer life imprisonment.
He commenced to serve the term on August 21, 1944. Inasmuch as he was a member of the
Metropolitan Constabulary, the basis of the information was Act No. 65, passed during the Japanese —
sponsored Republic of the Philippines and amending certain articles of the Revised Penal Code. The trial
was held by the then existing Court of Special and Exclusive Criminal Jurisdiction which was authorized
to conduct proceedings in a special manner. Ordinance No. 7 of the "Republic.")

After General of the Army Douglas McArthur had issued the Proclamation dated October 23, 1944, the
Act under which the petitioner was charged and convicted stands nullified, and the original provisions of
the Revised Penal Code restored. By virtue of article 22 of the said Code, "Penal laws shall have a
retroactive effect in so far as they favor the person guilty of a felony, who is not a habitual criminal, as
this term is defined in rule 5 of article 62 of this Code, although at the time of the publication of such
laws a final sentence has been pronounced and the convict is serving the same."

In the absence of other details, it may here be assumed that the offense committed is that defined in
article 294, paragraph 5, which provides as follows:

Any person guilty of robbery with the use of violence against or intimidation of any person shall suffer:

The penalty of prision correccional  to  prision mayor  in its medium period in other cases.

In accordance with the provisions of the Indeterminate Sentence Law (Acts Nos. 4103 and 4225 ), the
maximum penalty that can be imposed is six months of arresto mayor.

This Court has already dismissed cases wherein the defendants were charge with the violation of law in
force at the time of the commission and trial of the crime, after said laws have been repealed by
subsequent legislation, People vs. Moran (Phil., 44 387); People vs. Tamayo (61 Phil., 226 ), and also
repeatedly released on writs of habeas corpus prisoners  who, were given the benefit of subsequent
legislation either repealing statute under which they had been convicted or modifying the same by
imposing lesser penalties, Escalante vs. Santos  (56 Phil., 483); Directo vs. Director of Prisons  (56 Phil.,
692).

Prisoners who behave well are almost always liberated upon the expiration of the minimum penalty
fixed in the judgments of conviction or within a reasonable time thereafter. In the present case, there
being no information that the double the period of the minimum penalty that could be imposed upon
him, he should be released. As this is the effect of the decision of the majority, I concur in the result.

DE, JOYA, J.,  concurring:

The principal question involved in this case is the validity of the judicial proceeding held in criminal case
No. 66 of the Court of Special and Exclusive Criminal Jurisdiction, established in the City of Manila,
during Japanese occupation, under the authority of Ordinance No. 7, issued by the President of the so-
called Philippine Republic, and the effect on said proceeding of the proclamation of General Douglas
McArthur, dated October 23, 1944.

In said criminal case, herein petitioner was accused of the crime of robbery and sentenced to life
imprisonment, on August 21, 1944.

There can be doubt that the government established in this country by the Commander in Chief of the
Japanese Imperial Forces, under the name of the Philippine Executive Commission, was a de
facto government, as already held by this Court in civil case G.R. No. L-5 entitled Co Kim Cham vs. Valdez
Tan Keh and Dizon, decided on September 17, 1945 (p. 133, ante). Said government possessed all the
characteristics of a de facto government as defined by the Supreme Court of the United States, in the
following language:

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 within the territories, and
against the rightful authority of an established and lawful government; and (2), that while it exist 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 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 administrated, also, by civil authority, supported more or less directly by
military force. (MacLeod vs. United States [1913,] 229 U. S., 416.)

Under a de facto government, the courts of the country, under military occupation, should be kept
open, and whenever practicable, the subordinate officers of the local administration should be allowed
to continue in their functions, supported by the military force of the invader, because the responsibility
of maintaining peace and public order, and of punishing crime, falls directly upon the commander in
chief of the occupying forces. And in the performance of this duty, he may proclaim martial law (Davis,
Elements of International Law [3d.], pp. 330-332).

In occupied territory, the conquering power has a right to displace the pre-existing authority, and to
assume to such extent as it may deem proper the exercise by itself of all the powers and functions of
government. It may appoint all the necessary officers and clothe them with designated powers,
according to its pleasure. It may prescribe the revenues to be paid, and apply them to its own use or
otherwise. It may do anything necessary to strengthen itself and weaken the enemy. There is no limit to
the powers that may be exerted in such cases, save those which are found in the laws and customs and
usages of war (Cross vs. Harrison, 16 How., 164 ; Leitensdorfer vs. Webb, 20 Id., 176; The Grapeshot, 9
Wall.[ U.S.], 129; New Orleans vs. Steamship Co., [1874], 20 Wall., [ U.S.], 287.

It is generally the better course for the inhabitants of the territory, under military occupation, that they
should continue to carry on the ordinary administration under the invader; but the latter has no right to
force them to do so. If they decline, his only rights, and it is also his duty, is to replace them by
appointees of his own, so far as necessary for maintaining order and the continuance of the daily life of
the territory: other purposes, as these of the superior judicial offices, can bide their time (Westlake,
International Law, Part II, War, 2d ed., pp. 121-123).

Though the fact of occupation imposes no duties upon the inhabitants of the occupied territory, the
invader himself is not left equally free. As it is a consequence of his acts that the regular government of
the country is suspended, he is bound to take whatever means are required for the security of public
order; and as his presence, so long as it is based upon occupation, is confessedly temporary, and his
rights of control spring only from the necessity of the case, he is also bound to alter or override the
existing laws as little as possible (Hall, International Law, 6th ed., 476).

The government established here under the Philippine Executive Commission was more in consonance
with the general practice among civilized nations, in establishing governments for the maintenance of
peace and order and the administration of justice, in territories of the enemy under military occupation;
because said government was of a temporary character.

The government subsequently established under the so-called Philippine Republic, with a new
constitution, was also of the nature of a de facto government, in accordance with International Law, as it
was established under the authority of the military occupant and supported by the armed forces of the
latter. But it was somewhat different from that established under the Philippine Executive Commission,
because the former apparently, at least, had the semblance of permanency, which however, is unusual
in the practices among civilized nations, under similar circumstances.

Under military occupation, the original national character of the soil and of the inhabitants of the
territory remains unaltered; and although the invader is invested with quasisovereignity, which give him
a claim as of right to the obedience of the conquered population, nevertheless, its exercise is limited by
the qualification which has gradually become established, that he must not, as a general rule, modify the
permanent institutions of the country (Hall, International Law, 6th ed., p. 460).

The Convention Concerning the Laws and Customs of War on Land, adopted at The Hague in 1899, lays
down (Arts. 42, 43) definite rules concerning military authority over the territory of a hostile state. In
addition to codifying the accepted law, it provides that the occupant must respect, unless absolutely
prevented, the laws in force in the country.

It will thus be readily seen that the municipal law of the invaded state continues in force, in so far as it
does not affect the hostile occupant unfavorably. The regular courts of the occupied territory continue
to act in cases not affecting the military occupation; and it is not customary for the invader to take the
whole administration into his own hands, as it is easier to preserve order through the agency of the
native officials, and also because the latter are more competent to administer the laws of the territory;
and the military occupant, therefore, generally keeps in their posts such of the judicial 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. United States, 97 U. S., 39; 24 Law. ed., 992;
Coleman vs. Tennessee, 97 U. S., 509; 24 Law. ed., 1118; MacLeod vs. United States, 229 U. S., 416; 33
Sup. Ct., 955; 57; Law. ed., 1260; Taylor, International Law, secs. 576, 578; Wilson, International Law, pp.
331-337; Hall, International Law, 6th ed. (1909), pp. 464, 465,475,476; Lawrence, International Law, 7th
ed., pp. 421-413; Davis, Elements of International Law, 3rd ed., pp. 330-332, 335; Holland, International
Law, pp. 356-57, 359; Westlake, International Law, Part II, War 2d ed., pp. 121-123).
The judicial proceedings conducted, under the municipal law of the territory, before the court
established by the military occupant are general considered legal and valid, even after the government
established by the invader had been displaced by the legitimate government of said territory.

Thus the judgment rendered by the Confederate courts, during the 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 legal, valid
and binding (Coleman vs. Tennessee, 97 U. S 509., 24 Law. ed., 1118; Williams vs. Bruffy, 96 U. S., 176;
Horn vs. Lockhart, 17 Wall., 570; 21 Law. ed., 660; Sprott vs. United States, 20 Wall., 249; 22 Law. ed.,
371)

When the military forces of the Confederate states were destroyed, their government perished, and
with it all its enactments. But the legislative acts of the several States forming the Confederacy stood on
a different ground, and so far as they did not impair or tend to impair the supremacy of the national
authority, or the just rights of citizens under the Federal constitution, they were considered as legal,
valid and binding (Williams vs. Bruffy, 96 U. S., 177; 24 Law. ed., 716; Ford vs. Surget, 97 U. S., 594; 24
Law. ed., 1018; United States vs. Ins. Co., 22 Wall. [ U. S.], 99; 22 Law. ed., 816; Ketchum vs. Buckley
[1878], 99 U. S.,188; Johnson vs. Atlantic G. & W. I. Transit Co., 156 U. S., 618; 15 Sup. Ct., 520).

In the later case, the Supreme Court of the United States reaffirmed that the judicial and legislative acts
of the rebellious States, as de facto governments, 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 Federal Constitution. (Baldy vs. Hunter, 171 U. S., 388; 18 Sup.
Ct., 890; Law. ed., 208.)

Under the proclamation of General Douglas MacArthur, dated October 23, 1944, declaring null and void
all laws, regulations and processes issued and promulgated by the Philippine Executive Commission and
the Philippine Republic, during Japanese occupation, said Ordinance No. 7 promulgated on March 8,
1944, creating the Court of Special and Exclusive Criminal Jurisdiction, ostensibly for the speedy
reestablishment of peace and order, and Executive Commission, prescribing summary rules of
procedure, and other allied laws, such as Act No. 65 of the puppet republic, prescribing heavier
penalties, became null and void, once the Japanese armies in the Philippines had been defeated, as with
them the de facto governments, successively established under them, perished, and with them all their
enactments and processes of a hostile character.

But there are other considerations equally important why judicial proceedings held and conducted
before the courts established by said de facto governments, under laws promulgated by them, should
be declared null and void, without violating, in the least, settled principles, judicial precedents or public
policy.

Said Ordinance No. 7 adopted as integral parts thereof said Executive Order No. 157, as well as said Act
No. 65 of the National Assembly of the puppet republic, prescribing exceptionally heavy penalties for the
crimes enumerated therein.

The principal crimes mentioned in said Ordinance No. 7 and Act No. 65 of the puppet republic and the
other allied laws are illegal possession of firearms, robbery, violations of food-control laws, falsification
malversation and bribery; and it was under said laws that herein petitioner was prosecuted and
sentenced to life imprisonment for the crime robbery.

The penalty of life imprisonment or death for robbery was aimed principally at the underground forces
resolute and determined to seize and remove stores of food provisions, whenever possible, to prevent
them from falling into the hands of the enemy.

The penalty of twelve years' imprisonment for illegal possession of firearms was directed mainly against
those underground forces, that had been receiving arms from the forces of liberation across the seas.

Violation of food-control laws were included and used as a pretext and justification for the seizure and
confiscation of food provisions so badly needed by the invader.

And the inclusion under said Ordinance No. 7 of the crime of bribery and other was used as a cloak to
conceal its venom and make said law look innocent.

By the imposition of excessive penalties , by the denial of the remedy of habeas corpus, by compelling
the accused to testify against themselves, and by denying them the right of appeal to the highest court
of the land, except where the death penalty was imposed, and by its summary procedure, said
Ordinance No. 7 and the other allied laws impaired and defeated the just and legal rights of Filipino
citizens under the Commonwealth Constitution, and the supremacy of the authority of the legitimate
Government. Under said laws, the persons accused were deprived of liberty without due process of law.

In the language of this Court, "the phrase 'due process of law' used in the Philippine Bill should receive a
comprehensive interpretation, and no procedure should be treated as unconstitutional which makes
due provision for the trial of alleged criminal before a court of competent jurisdiction, for bringing the
accused into court and notifying him of the cause he is required to meet, for giving him an opportunity
to be heard, for the deliberation and judgement of the court, and for an appeal from such judgement to
the highest tribunal" (United States vs. Kennedy, 18 Phil., 122).

In their conception, in their purpose and mode of enforcement and execution said laws were hostile to
the authority of the Commonwealth Government and that of the United States of America; as they had
been promulgated in furtherance of the war aims of the enemy, and they are, therefore, of political
character and complexion.

Those repressive laws were aimed at the men and women who had kept the faith, and whose heroes
and martyrs now lie in graves still unknown and whose names remain unsung; but whose heroic efforts
and sacrifices have made immortal the legends of Filipino resistance, and made possible our
participation in the councils of free and liberty-loving peoples and nations.

Said laws are contrary to the principles of Democracy, championed by North America, whose gigantic
efforts and heroic sacrifices have vindicated human rights, human dignity and human freedom, and
consecrated them anew all over the earth with the generous blood of her children. They violate the
fundamental principles of Justice for which civilized Mankind stands, under the benign leadership of
Totalitarianism and given all the nations of the earth a new birth as well as a new character of freedom,
to enable each and everyone to live a nobler and more worthy life and realize the justice and prosperity
of the future.

For the foregoing reasons, I concur in the dispositive part of the opinion prepared by Mr. Justice Feria.
PERFECTO, J.,  concurring:

On October 21, 1944, petitioner William F. Peralta began to serve, in the Muntinglupa Prison Camp, a
sentence of life imprisonment imposed by the Court of Special and Exclusive Criminal Jurisdiction,
created by Ordinance No. 7 issued by President Laurel of the Republic of the Philippines under the
Japanese regime, and now seeks a writ of habeas corpus in order that his liberty may be restored to him,
contending that said Ordinance No. 7 was null and void ab initio  because it was of a political complexion
and its provisions are violative of the fundamental laws of the Commonwealth of the Philippines.

Petitioner alleges that sometime in the month of September, 1943, he joined the Constabulary forces as
a private, against his will, and before joining it, he was for several times arrested and maltreated as
a guerrilla  member, he being then a minor only 17 years old, and that he was prosecuted, not because
he committed any crime, but because he joined the guerrilla organization, deserted the Constabulary
forces, and followed political and military activities in open allegiance to the Commonwealth
Government and the United States of America.

The Solicitor General, appearing in behalf of respondent Director of Prisons, answered the petition
agreeing that the acts and proceedings taken and had before said Court of Special and Exclusive Criminal
Jurisdiction should be denied force and efficacy, and therefore, recommended that the writ prayed for
be granted.

At the hearing held on September 21, and 22, 1945, there appeared to argue the First Assistant Solicitor
General, impugning the validity of said Ordinance No. 7, and the City Fiscal of Manila, as amicus curiae,
who sustained the validity if the said Ordinance and the proceeding by virtue of which petitioner was
sentenced to life imprisonment.

I. ORDINANCE NO. 7 AND PROCESSES UNDER IT NULLIFIED BY THE OCTOBER PROCLAMATION OF

GENERAL MACARTHUR

On October 23, 1944, General of the Army Douglas MacArthur, Commander in Chief of the Philippine-
American Forces, which fought in Bataan and later liberated the whole Philippines, as an aftermath of
the liberation, issued a proclamation declaring:

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.
It appears that Ordinance No. 7 in question has been issued under the Japanese regime and that the
judicial process under which petitioner has been sentenced to life imprisonment, having been held in a
court not belonging to the Commonwealth of the Philippines but organized and established under the
authority of the enemy, became null and void and without effect since October 23, 1944, by virtue of
the above-quoted October Proclamation of General MacArthur.

We have explained at length our position as to the effects of said October Proclamation in our dissenting
opinion in the case of Co Kim Cham vs. Valdez Tan Keh and Dizon  (G. R. No. L-5, 153, ante), and we
deem it unnecessary to repeat what we stated in said opinion.

It is fortunate that all the members of the Supreme Court arrived at a unanimous conclusion as to the
absolute nullity of the process under which petitioner is now being held in prison.

The shocking character of the provisions of Ordinance No. 7 and the processes held under it show once
more how General MacArthur was absolutely right and justified in issuing the October Proclamation.

There are indications that more processes held under the Japanese regime will come to our knowledge,
revealing strong grounds for their annulment, justifying, like the process here in question, the wisdom of
the decision of General MacArthur in nullifying in a sweeping manner all judicial processes held during
enemy occupation.

The October Proclamation is, in keeping with the following official statement of the President of the
United States:

On the fourteenth of this month, a puppet government was set up in the Philippine Islands with Jose P.
Laurel, formerly a justice of the Philippine Supreme Court as president. Jorge Vargas, formerly a member
of the Philippine 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 hypocritical 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 sympathy 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

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

Putting aside the October Proclamation, by a mere perusal of the ordinance in question, we will see
immediately how such law and the processes held under it are incompatible with the fundamental
principles and essential safeguards in criminal procedure, universally recognized in civilized modern
nations and how such ordinance and processes can only be justified by a retrogressive and reactionary
mentality developed under the social, cultural, and political atmosphere of the era of darkness.

II. VIOLATION OF THE CONSTITUTIONAL GUARANTEE AGAINST UNREASONABLE SEARCHES AND

SEIZURES

Section 5 of Ordinance No. 7 provides that cases arising under it shall follow the summary procedure
provided in Act No. 65 of the Laurel Philippine Republic, which, in turn, is the same as that established
by Chapter II of Executive Order No. 157 of the Chairman of the Vargas Philippine Executive Commission,
dated May 18, 1943.

Under said procedure, "search warrants may be issued by the court or by any prosecuting officer,
authorizing peace officers to search for and seize any articles or objects described in the warrant,
including those which may be regarded as evidence of an offense under this order even if such articles
or objects are not included among those described in section 2, Rule 122, of the Rules of Court." This
provision is repugnant to the Filipino sense of right in the matter of warrants of search and seizure,
sense of right which has been clearly and definitely stereotyped in the following words of our
fundamental law:

The right of the people to be secure in their persons, houses, papers, and effects against unreasonable
searches and seizure shall not be violated, and no warrants shall issue but upon probable cause, to be
determined by the judge after examination under oath or affirmation of the complaint and witnesses he
may produce, and particularly describing the place to be searched, and the persons or things to be
seized. (Art. III, sec. 1, No. 3, Constitution of the Philippines.)

This constitutional provision is violated by the summary, unreasonable, and arbitrary procedure
provided under the authority of the ordinance in question:

(1) By authorizing "any prosecuting officer" to issue search warrants, when under our Constitution such
search warrants should be issued only by a judge;

(2) By trespassing the limits established by section 2, Rule 122, of the Rules of Court, considered as a
necessary element to make the warrant reasonable;

(3) By authorizing the search and seizure of articles or objects not described in warrant, which is the real
meaning of the words "including those which may be regarded as evidence of an offense under this
Ordinance."

III. DISCRIMINATORY AND INIQUITOUS SUSPENSION OF THE WRIT OF HABEAS CORPUS

Section 7 of Ordinance No. 7 in question provides that "the privileges of the writ habeas corpus are
hereby suspended with respect to persons accused of, or under investigation for, any of the crimes and
offenses enumerated in sections 1 and 2 hereof."

This provision is also violative of one of the fundamental guarantees established in the Constitution of
the Philippines, which provides that the writ of habeas corpus may be suspended only in case of
"invasion, insurrection, or rebellion" and only "when the public safety requires it."

The privilege of the writ of habeas corpus shall not be suspended except in cases of invasion,
insurrection, or rebellion, when the public safety requires it, in any of which events the same may be
suspended wherever during such period the necessity for such suspension shall exist. (Art. III, sec. 1, No.
14, Constitution of the Philippines.)

Again, it is evident that the ordinance in question is repugnant to the deep sense of right of our people.
It is so, not only because it suspends the privilege of the writ of habeas corpus, without the
circumstances which can only justify said suspension, but because it flagrantly violates the fundamental
principle of equality before the law, by depriving the accused, in cases falling under the ordinance in
question, of the privilege of the writ of habeas corpus, which is not denied to the accused in all other
cases:

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

IV. VIOLATION OF THE CONSTITUTIONAL GUARANTEE AGAINST SELF- INCRIMINATION

Under section 18 of Executive Order No. 157, above mentioned, "the accused or his representative  may
be examined by the court, and with the permission of the court, by the fiscal or other prosecuting officer
as to any matters favorable or unfavorable to him of his principal." (Emphasis ours.)

It is also provided that "statements made by the accused, his co-accused, or the representative  of the
accused or a person acting in a similar capacity, irrespective of the circumstances under which they were
made shall  be admissible in evidence if material to the issue." (Emphasis ours.)

Under section 21 of Executive Order No. 157, after arraignment and plea, "the judge shall interrogate
the accused . . . as to facts and circumstances of the case in order to clarify the points in dispute and
those which are admitted." In the same section it is also provided that "refusal of the accused to answer
any questions made or allowed by the court may be considered unfavorable to him." (Emphasis ours.)

Under the same section the absence  of an accused or of his representative "shall not be a ground for
interrupting the proceedings or attacking the validity of the judgment."

From the foregoing, it appears:

(1) That the accused may be examined by the court or any prosecuting officer as to any matters
favorable or unfavorable to him;

(2) That the refusal of the accused to answer may be considered unfavorable to him;

(3) That statements made by the accused, "irrespective of the circumstances under which they were
made" (that is, even under third degree procedure, or exacted through brutal kempei tortures), shall be
admissible in evidence;

(4) That not only the accused, but "his representative" (his lawyer, whose personal security was
jeopardized under the Japanese regime), may be examined by the court or by the fiscal or other
prosecuting officer, as if said representative or attorney is facing the same criminal prosecution
instituted against his client;

(5) That the statement made by said representative or attorney, although exacted under duress,
intimidation, or torture, shall be admissible in evidence;
(6) That statements made by any person acting in a similar capacity as a representative of the accused
which may be a relative or a friend or, even an impostor who might pose as a representative to assure
the doom of the accused, "irrespective of the circumstances under which they were made (that is, even
if made in the absence of the accused, or in the same circumstances under which masked spies decreed
the death of innocent citizens pointed by them during zoning concentrations), shall be admissible in
evidence;

(7) That trial shall proceed in the absence of the accused;

(8) That trial shall proceed in the absence of his attorney or other representative.

It is evident that the procedure established violates the following provisions of our fundamental code:

In all criminal prosecutions the accused shall be presumed to be innocent until the contrary is proved,
and shall enjoy the right to be heard by himself and counsel, to be informed of the nature and cause of
the accusation against him, to have a speedy and public trial, to meet the witnesses face to face, and to
have compulsory process to secure the attendance of witnesses in his behalf. (Art. III, sec. 1, No. 17,
Constitution of the Philippines.)

No person shall be compelled to be a witness against himself. (Art. III, sec. 1, No. 18, Idem.)

The procedure is so revolving, so nauseating, and so opposed to human nature, that it takes a real
courage to keep our equanimity while we are compelled to analyze it.

It is beyond our comprehension how a man, endowed with reason, could devise such an execrable
system of judicial procedure, which is but a shameless mockery of the administration of justice.

We must be very careful to retain zealously the constitutional guarantee against self-incrimination. We
must not forget that that constitutional guarantee was acquired as a result of protest against all
inquisitorial and third degree procedures. We must not forget how, not very long ago, in the thirteen
colonies of America, alleged witches were burned at the stake, as a means of compelling them to
confess their fantastic compacts with the devil. We must not forget how an institution created in the
twelfth century was the cause of so much tortures and sufferings, and that the terroristic menace of its
rakes was abolished in Spain, and therefore in Philippines, only in 1834.

We must not forget that during normal times, under the twentieth century lights, just before the last
global war started, in the United States of America and in the Philippines, denunciations of third degree
procedures employed by agents the law were often heard. This very Supreme Court, not only once, had
to deal with cases where such tactics were conclusively proved. Even today, among criminal cases we
have under consideration, there is evidence of confessions exacted through cruel and brutal means.

No matter what merits can be found, from the theoretical point of view, in the arguments of those who
are championing the suppression of the constitutional guarantee against self-incrimination, the
undeniable reality of human experience shows conclusively the absolute need of such guarantee if
justice must be served. Even with the existence of such guarantee, there are officers of the law who
cannot resist temptation of using their power to compel, through third degree methods, innocent or
guilty persons to admit involuntarily real or imaginary offenses. Let us allow changes tending to nullify
the protection against self-incrimination, and no man, however innocent he may be, shall be secure in
his person, in his liberty, in his honor, in his life.
V. THE FUNDAMENTAL RIGHT OF APPEAL TRAMPLED UPON

In section 6 of Ordinance No. 7, it is provided that "the decision of the special courts herein created shall
be final except where the penalty imposed is death, in which case the records of the particular case shall
be elevated en consulta  to a special division of the Supreme Court composed of three members to be
designated by the President of the Republic of the Philippines."

This provision is a clear violation of the fundamental right of appeal, constitutionally guaranteed to all
accused in the Philippines. Under the Constitution of the Philippines, all accused are entitled to appeal
to the Supreme Court:

(1) In all cases in which the constitutionality or validity of any treaty, law, ordinance, or executive order
or regulations is in question. (Art. VIII, sec. 2, No. 1, Constitution of the Philippines.)

(2) In all cases involving the legality of any tax, impost, assessment, or toll, or any penalty imposed in
relation thereto. (Art. VIII, sec 2, No. 2, Idem.)

(3) In all cases in which the jurisdiction of any trial court is in issue. (Art. VIII, sec. 2, No. 3, Idem.)

(4) In all criminal cases in which the penalty imposed is death or life imprisonment. (Art. VIII, sec. 2, No.
4, Idem.)

(5) In all cases in which an error or question of law is involved. (Art. VIII, sec. 2, No. 5, Idem.)

Before the adoption of the Constitution of the Philippines, it was the prevailing theory in judicial
decisions that the right of appeal is not a fundamental one, but it is a mere privilege or mere statutory
grant.

The drafters of our Constitution, taught by the unerring lessons of human experience, came to the
conclusion that mistake is one of the most irretrievable human weaknesses.

The drafters of our Constitution, therefore, considered it necessary to establish constitutional

guarantees to reduce to its minimum the effects of such innate human weakness by providing that the
appeal to the highest tribunal of the land may be enjoyed by any accused, who, under the specific
provisions of the Constitution, believed himself to be the victim of a wrong in any inferior court.

The fact that the provisions of section 2, of Article VIII, of the Constitution, instead of stating that the
accused shall not be denied of the right of appeal in the cases mentioned therein, provide 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 the specified cases, does not impair nor diminish the fundamental
character of the right of appeal of the accused to the Supreme Court.

The provisions of section 2, of Article VIII, of the Constitution, have been enacted by our Constitutional
Convention, not for the benefit and well-being of the people.

In fact, the Supreme Court is just one of the instrumentalities created by the Constitution in the service
of the people. The Supreme Court is not an entity or institution whose rights and privileges must be
constitutionally guaranteed. It is only a means. It is one of the means considered necessary by our
Constitution to better serve the supreme interest of the people.
As a matter of fact, the Supreme Court of the United States itself declared that the elimination of said
tribunal is not incompatible with the existence of a government of laws. In a case of denaturalization
wherein the Government of the United States sought to deprive a person of his American citizenship, on
the ground that the 1928 platform of the Communist Party of the United States, to which the
respondent belonged, advocated the abolition of the supreme Court, of the Senate and the veto power
of the President, and replacement of congressional districts with "councils of workers" in which
legislative and executive powers would be united, the Federal Supreme Court declared:

These would indeed be significant changes in our governmental structure — changes which it is safe to
say are not desired by the majority of the people in this country — but whatever our personal views, as
judges we cannot say that person who advocates their adoption through peaceful and constitutional
means is not in fact attached to the Constitution — those institutions are not enumerated as necessary
in the government's test of "general political philosophy", and it is conceivable that "orderly liberty"
could be maintained without them. The Senate has not gone free of criticism and one object of the
Seventeenth Amendment was to make it more responsive to the popular will. The unicameral legislature
is not unknown in the country. It is that this Court has played a large in the unfolding of the
constitutional plan (sometimes too so in the opinion of some observers), but we be arrogant indeed if
we presume that a government of laws, with protection for minority groups would be impossible
without it. Like other agencies of government, this Court at various lines its existence has not escaped
the shafts of critics whose sincerity and attachment to the Constitution is beyond question — critics who
have accused it of assuming functions of judicial review not intended to be conferred upon it, or of
abusing those function to thwart the popular will, and who advocated various remedies taking a wide
range. (Schneiderman vs. United States of America, June 21, 1943.)

VI. ABRIDGMENT OF THE CONSTITUTIONAL GUARANTEE OF EQUAL PROTECTION OF THE LAWS

The constitutional guarantee of equal protection of the laws is evidently abridged in the summary
procedure in criminal cases under Ordinance No. 7:

(1) By the fact that the accused therein are victims of search warrants specially provided for them,
where the guarantees against unreasonableness in search warrants issued against other accused are
specially eliminated.

(2) By depriving the accused, under the Ordinance No. 7, the privilege of the writ of habeas
corpus enjoyed by the accused in other cases.

(3) By depriving the accused, under Ordinance No. 7 of the fundamental right of appeal in all cases,
except when sentenced of death is imposed.

(4) By discriminating against the accused, under Ordinance No. 7, where the right of appeal is retained
for them, that is, in cases where the sentenced imposed is death, by entrusting the power to revised
said sentence to small minority of the Supreme Court, under the Japanese regime, and a minority of
three justices to be specially called out by the President of the Laurel Philippine Republic, undoubtedly
with the evident purpose of the confirmation of the conviction of the accused, and to make the
appeal en consulta just an empty gesture to make the situation of the accused more pitiful by
lengthening is days of agony.
(5) By placing the accused, in the case in question, under the sword of Damocles of an unfavorable
presumptions, should he refuse to answer any question that the court or any prosecuting officer might
propound to him.

Under our constitution, no one shall be deprived of the "equal protection of the laws". (Art. III, sec. 1,
No. 1, Constitution of the Philippines.)

VII. THE PRESUMPTION OF INNOCENCE OF THE ACCUSED IN ALL CRIMINAL PROSECUTIONS VIOLATED

Since the American flag began to fly over our soil, the fundamental guarantee that in all criminal
prosecution the accused shall be presumed innocent until the contrary is proved beyond all reasonable
doubt, has been implanted in our country to remain forever.

That guarantee was consecrated in our Constitution:

In all criminal prosecution the accused shall be presumed to be innocent until the contrary is proved,
and shall enjoy the right to be heard by himself and counsel, to be informed of the nature and cause of
the accusation against him, to have a speedy and a public trial, to meet the witnesses face to face, and
to have compulsory process to secure the attendance of witnesses in his behalf. (Art. III, sec. 1, No. 17,
Constitution of the Philippines.)

This guarantee is undoubtedly violated when, in the summary procedure established by Ordinance No.
7, it is provided that the refusal of the accused to answer any question, propounded by the court or any
officer, "may raise unfavorable presumption against him."

If we have to keep democracy in our country, we must be vigilant in upholding the constitutional
principle that all persons shall be presumed to be innocent until the contrary is proved beyond all
reasonable doubt.

This principle is the opposite of that prevailing under autocracies, or under facist or totalitarian regimes.
During the Japanese occupation all persons who might fall under the suspicion of any Japanese or their
spies and lackeys, were presumed to be guilty of any imaginary crime until they were able to convince
their victimizers of the contrary, beyond any reasonable doubt. Even then, they were submitted to
preventive tortures and long months of imprisonment, just in case they might think later of committing
any offense against the Japanese or their collaborators.

VIII. ORDINANCE NO. 7 VIOLATED THE HAGUE CONVENTION OF 1899

In the convention concerning the laws and customs of war on land, adopted by the Hague in 1899, it is
provided that the military occupant must respect the laws in force in the occupied country, unless
absolutely prevented. (Arts. 42 and 43.)

The provision of the Convention has been flagrantly violated when, under the enemy occupation the
Laurel Philippine Republic enacted Ordinance No. 7 which suspended our laws, including the
fundamental one, by substantially subverting the judicial procedures in the special criminal cases
instituted under said ordinance.

For this reason, said ordinance, being violative of international law, was null and void ab initio.
Under international law, under the most elemental principles of law, the legitimate government, once
restored to its own territory, after expelling the enemy invader, enjoys the absolute freedom of not
recognizing or of nullifying any and all acts of the invader, including those internationally legal ones. The
situation is exactly the same as that of the owner of the house who can do anything in it that pleases
him, after expelling the bandit who was able to usurp its possession for a while.

General McArthur exercised correctly that power by the sweeping nullification decreed in his October
Proclamation.

But even without the October Proclamation, the judicial process — maybe it is better to say injudicial
process — which resulted in the imprisonment of petitioner, must be shorn of all effects because it had
taken place under the authority of an ordinance which was null and void ab initio.

IX. THE DECISION CONVICTING THE PETITIONER HAVING BEEN RENDERED UNDER FOREIGN AUTHORITY
IS UNENFORCEABLE

The decision by which petitioner William F. Peralta was convicted and is being confined for life having
been rendered by a tribunal created, functioning, and acting under the authority of a foreign State, the
Emperor of the Imperial Government of Japan, is unenforceable.

It has, therefore, the nature of a foreign decision or judgment. For that reason, it is unenforceable
within the Philippines or under the Commonwealth, as we have shown in our opinion in the case of Co
Kim Cham vs. Valdez Tan Keh and Dizon  (G.R. No. 5, p. 153, ante)

Said decision, having been rendered under Ordinance No. 7, which was null and void ab initio, carries
the same vice as the ordinance under which it was rendered.

But even admitting arguendo  that said decision is valid, because it is so under international law, and is
not included in the nullification decreed by General Douglas MacArthur, still it cannot be enforced, being
a foreign decision. A foreign decision can only be enforced through the institution of an action before
our tribunals. Even decisions of a court of the United States or of any of its States or territories can be
enforced in the Philippines only by the institution of an action or special proceeding before our own
courts. This theory is confirmed by sections 47 and 48, Rule 39, of the Rules of Court, which read:

SEC. 47. Effect of record of a court of the United States. — The effect of a judicial record of a court of the
United States or of a court of one of the States or territories of the United States, is the same in the
Philippines as in the United States, or in the States or territory where it was made, except that it can
only be enforced here by an action or special proceeding, and except, also, that the authority of a
guardian, or executor, or administrator does not extend beyond the jurisdiction of the Government
under which he was invested with his authority.

SEC. 48. Effect of foreign judgments. — The effect of a judgement of a tribunal of a foreign country,
having jurisdiction to pronounce the judgement, is as follows:

(a) In case of a judgement against a specific thing, the judgment is conclusive upon the title to the thing;

(b) In case of a judgement against a person, the judgement is presumptive evidence of a right as
between the parties and their successors in interest by a subsequent title; but the judgement may be
repelled by evidence of a want of jurisdiction, want of notice to the party, collusion, fraud, or clear
mistake of law or fact.

X. THE STUNNING FACTS REVEALED IN THE REPORT OF THE DIRECTOR OF PRISONS.

At the hearing of this case, respondent Director of Prisons was required to submit statistical data
concerning the number of prisoners and the various crimes for which they were convicted by the Court
of Special and Exclusive Criminal Jurisdiction.

In submitting said statistical data, the Solicitor General, as counsel for respondent, calls our attention to
the fact that, out of the 92 prisoners committed by said courts to the Bureau of Prisons for confinement,
fifty-five (55), that is more than one-half, were convicted of illegal possession of firearms, and that only
3 are now actually in confinement serving sentences, among them the petitioner in this proceeding, thus
dissipating the unfounded fear entertained by the City Fiscal of Manila, to the effect that a
pronouncement by this Supreme Tribunal that the sentences of the courts in question are null and void,
will signify the release of hundreds of criminals, whose liberty and mixing with society will endanger
public peace and order.

Of the other two remaining prisoners serving sentence, one has been committed for evasion of service
of sentence, and the other for illegal possession of firearms.

Of the 55 prisoners convicted for illegal possession of firearms, 25 died, 23 were released, and 6
escaped, and this is the reason why only one remains in confinement.

It is striking that so many prisoners died, 25 of those convicted for illegal possession of firearms, that is,
almost 50% of them, 33 of the total of 94 prisoners committed, or more than one-third of them. This
unusual and shocking percentage of mortality is worth inquiring into and, certainly, cannot be counted
very favorably to judicial proceedings which eventually lead to such wholesale death, if not outright
massacre.

The fact that a big number of the prisoners, 21 of them, were able to escape, was not explained to us. Is
it reasonable to surmise, from the ruthless cruelty of the proceedings and of the penalties imposed,
which exacted from the mouth of the First Assistant Solicitor General, who appeared to argue the case
in behalf of the respondent, the adjective "ferocious", that the wardens themselves, moved by pity,
directly or indirectly helped the escape?

More than one-third of the prisoners committed by the said courts in confinement to the Bureau of
Prisons, that is, 33 of them died. May we ask if they died because they were executed? Of those who
died, one was convicted of profiteering in rice, one of robbery, one of kidnapping of minor, one of
violation of certain sections of Act No. 66, four of crimes against public order, and 25 of possession of
firearms. If all of them were executed by virtue of sentences rendered by the courts in question, that
fact does not speak very highly of their proceedings. If the accused died by natural death, there must be
something physically or morally fatal in said proceedings.

If a tree must be judged by the fruits it bears, how shall we judge proceedings so deadly, so fatal, so
wantonly inhuman as the proceedings had in the special courts in question?

The City Fiscal of Manila exerted great efforts to show that the fact that in the proceedings in question
"the refusal of the accused to answer any question made or allowed by the court may be considered
unfavorable to him," does not violate the constitutional guarantee against self-incrimination. He even
goes to the extent of maintaining the theory that such constitutional guarantee is not essential for the
protection of the substantial rights of an accused.

His argument centered on the alleged freedom of the accused to refuse to answer any question made or
allowed by the court, alleging that, if the accused chooses to refuse to answer, the court cannot compel
him to answer under menace of punishment for contempt or through any other coercive or minatory
measures.

The City Fiscal seems to labor under the belief that the fact that the silence of the accused "may be
considered unfavorable to him", is of no consequence at all.

Such belief can logically be entertained alone by ignoring completely the lessons of experience in human
conduct.

If the refusal to answer can be considered unfavorably to the accused, is not that the same as placing
him on the hard predicament of choosing between testifying self-incriminating and risking the fatal
effects of a legal presumption of guilt? Is not that the same as placing him between the two steel cages
of a dilemma: self-incrimination or presumption of guilt? Is not that the same as placing him between
Scylla and Charybdis, between a dagger and a wall? Either way, he will always find himself under the
inexorable sword of Damocles of sure punishment, whether he testifies or refuses to testify. It is not
impossible to open a debate upon the abstract question whether the constitutional guarantee against
self-incrimination should not remain. But the value of such a moot question, for purposes of this case, is
nil.

The constitutional guarantee had to be adopted as a protest against inquisitorial method of the past,
when accused and suspects were submitted to the most brutal torture to compel them to confess real
or imaginary crimes. That past is not far away. It seems that we are still smelling the stench of human
flesh burned in the stakes, where suspected witches suffered iniquitous death.

There is no doubt that the procedure in question shows the purpose of pandering to the most flagitious
doctrines in criminal proceedings. The transgressions of the bill of rights in all its phases cannot be
hidden even to a chela in constitutional law. It is the very negation of the administration of justice. Such
procedure has absolutely no place in the framework of our juridical system. We will feel mere whifflers
in our professed convictions, principles, and creed, if we should permit ourselves to fall into the
weakness of abetting it even for a moment, which could only happen once the flambeau of reason has
ceased completely to burn. No one but the truckling lackeys of the arrogant enemy could have the
servility of applauding the implantation of the criminal procedure in question.

All arguments and dissertations are useless to conceal the real fact. Behind and under said criminal
process stealthily crawls and trundles the Nippon psychosis, like a cobra with fangs overflowing with
venom. To ferret it out from the hole where it lurks, waiting for its victims, and crush its head with one
hammer blow, is an imperative measure of national self-defense.

XI. THE PETITIONER IS ENTITLED, AS A MATTER OF ABSOLUTE RIGHT, TO IMMEDIATE RELEASE

After showing the absolute nullity of the judicial process under which petitioner has been convicted to
suffer the penalty of life imprisonment, the inevitable consequence is that he is entitled, as a matter of
absolute right, to be immediately released, so that he can once again enjoy a life of freedom, which is
the natural boon to law-abiding residents of our country, and of which he was unjustly deprived through
means most abhorrent to human conscience.

We must not hesitate for one moment to do our duty in this case. The sooner we comply with it, the
better. The process and judgement under which petitioner has been convicted and is now undergoing an
unjust imprisonment, is one of the hateful vestiges left in our country by the moral savagery of a people
spiritually perverted and debased. The seriousness of this matter cannot be viewed with insouciance.
We must not lose time to wipe out such vestiges if we must protect ourselves against their poisonous
effects in our political, social, and cultural patrimony.

We must erase those vestiges if we want to keep immune from all germs of decay the democratic
institutions which are the pride of our people and country, under which we are enjoying the blessings of
freedom and with which we hope to assure the well-being and happiness of the unending generations
who will succeed us in the enjoyment of the treasures accumulated by a bountiful nature in this Pearl of
the Orient.

If we allow such vestiges to remain we are afraid that some historian may write about Philippine
democracy, Philippine race, and Philippine culture, what, on ancient art, Hegel said in the
"Phenomenology of the Spirit", according to Kohler, the greatest work of genius that the nineteenth
century has produced:

The statues set up are corpses in stone, whence the animating soul has flown; while the hymns of praise
are words from which all belief has gone. The tables of the gods are bereft of spiritual food and drink,
and from his games and festivals, man no more receives the joyful sense of his unity with the Divine
Being. The works of the muse lack the force and energy of the Spirit which derived the certainty and
assurance of itself just from the crushing ruin of goods and men. They are themselves now just what
they are for us — beautiful fruit broken off the tree, a kindly fate has passed on those works to us, as a
maiden might offer such fruit off tree. It is not their actual life as they exist, that is given us, not the tree
that bore them, not the earth and the elements, which constituted their substance, nor the climate that
determined their constitutive character, nor the change of seasons which controlled the process of their
growth. So, too, it is not their living world that fate preserves and gives us with those works of ancient
art, not the spring and summer of that ethical life in which they bloomed and ripened, but the veiled
remembrance alone of this reality.

Our sense of national self-preservation compels us, as an imperative duty, not only to restore
immediately the petitioner to his personal liberty, but, all possible means, to obliterate even the
memory of the inquisitorial summary procedure depicted in the present case.

Such procedure exhibits either inversion, retroversion, subversion, or perversion of elemental human
concepts. It ignores completely and debases the high purposes of a judicial procedure. It represents a
hylistic ideology which proclaims the supremacy of the state force over fundamental human rights. We
must never allow the neck of our people to be haltered by the lethal string of that ideology. It is a virus
that must be eliminated before it produces the logical disaster. Such ideology is a cancerous excrescence
that must be sheared, completely extirpated, from the live tissues of our body politic, if the same must
be saved.
We cannot understand how any one can justify the summary process in question under the principles
embodied in our Constitution. To profess attachment to those principles and, at the same time, to
accept and justify such kind of criminal miscarriage of justice, is just sheer hypocrisy. It is a repetition of
what Seneca did when, after preaching moral virtues, justified without any compunction the act of Nero,
the sanguinary Roman Emperor, of murdering in cold blood his own mother. It is reproducing the
crooked mentality of Torquemada, who, upon the pretext of combating and persecuting heresy to save
souls from hell, conceived the diabolical idea of condemning their victims to an advanced version of hell
in this life, and among those who suffered under the same spirit of intolerance and bigotry which was its
very essence are counted some of the greatest human characters, such as Galileo, Giordano Bruno, and
Girolamo Savonarola. That procedure might find justification in the thick heads of the Avars, Huns,
Vandals, and Teutons, or in the stratified mentality of Japanese cullions, but not in a healthy mind of a
cultured person of modern times. To allow any vestige any vestige of such procedure to remain is
tantamount to reviving the situation during which our citizens endured sleepless nights in constant fear
of the hobnail terror stalking in the darkness, when their personal security and their life were hanging by
the thin of chance.

We wish a way could be found to free completely our people of the sense of shame, which they cannot
help feeling, engendered by members of our race who justified such abhorrent summary procedure and
allowed themselves to become a party to the execution of a scheme only acceptable to the undeveloped
mentalities of the dark ages. It is a shame that makes our blood boil when we think that countrymen of
Father Gomez, of Rizal, of Mabini, could accept procedures representing the brutal ideology which is the
very opposite of the humane, lofty, and dignified ideology that placed said heroes and martyrs among
the purest and noblest specimens that humanity produced in all countries, in all time, for all ones and
light years to come.

It is with joy and pride that we agree with all our brethren in unanimously granting petitioner the
redress he seeks in his petition.

HILADO, J.,  concurring:

I concur in the result, as well as in the reasons stated in the majority opinion not inconsistent with the
views expressed in my dissenting opinion in G. R. No. L-5, Co Kim Cham vs. Valdez Tan Keh and Dizon (p.
199, ante).

However, I would additionally base my conclusion upon broader grounds.

Firstly, I reiterate here by reference the arguments advanced in said dissenting opinion in additional
support of the conclusion that the writ of mandamus herein sought should be granted. Secondly, the
importance and transcendence of the legal principles involved justify further elaboration.

From the allegations of the petition herein, it can be deduced that the petitioner William F. Peralta was
a "guerrillero" when he was arrested, tried and convicted; and that he had never voluntarily submitted
to the Japanese forces in his civil capacity.
No attempt is made in the Solicitor General's answer to controvert the facts alleged in the petition from
which the foregoing deduction flows, and from the record nothing appears which may tend to gainsay
them. Even when he was forced temporarily to join the Constabulary, which had been organized under
orders of the Japanese Army in the Philippines, he did so against his will.

Even granting for the sake of argument, and laying aside for the moment the reasons to the contrary set
forth in my aforesaid dissenting opinion, that the rules of International Law regarding the power of a
belligerent army of occupation to establish a provisional government in an occupied enemy territory,
are still binding upon the United States and the Commonwealth of the Philippines, yet such rules would
not be any avail to bind the herein petitioner by the laws, regulations, process and other acts of the so-
called "Republic of the Philippines", under and by virtue of which said petitioner has been convicted to
life imprisonment by the Court of Special and Exclusive Criminal Jurisdiction of Manila in Criminal Case
No. 66 thereof.

If we analyze the different adjudications and treatises which have been cited in support of the validity or
binding force of the acts of such provisional governments, which have been variously called de
facto governments, or governments of paramount force, with a view to finding the real ground and
philosophical justification for the doctrine therein announced, we will see that reason and that
justification are made to consist in the submission of the inhabitants upon whom the said acts have
been held to be of obligatory or binding force, to the army of occupation. Thus, to cite just a few typical
examples, we quote the following excerpts from three leading cases decided by the Supreme Court of
the United States:

Excerpts from Thorington vs. Smith (8 Wall. [U. S.], 1; 19 Law. ed., 361)

That while it (government of paramount force) 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 (p. 363; Emphasis ours).

The authority of the United States over the territory was suspended, and the laws of the United States
could no longer be rightfully enforced there, or be obligatory upon the inhabitants who remained and
submitted to the conqueror. (P. 364; Emphasis ours.).

Excerpts from Fleming vs. Page (9 Howard. [U. S.], 603; 13 Law. ed., 276):

While it (Tampico) was occupied by our troops, they were in an enemy's country, and not in their own;
the inhabitants were still foreigners and enemies, and owed to the United States nothing more than
the submission  and obedience, sometimes called temporary allegiance, which is due from a conquered
enemy, when he surrenders  to a force which he is unable to resist. (P. 281; Emphasis ours.)

Excerpts from United States vs. Rice (4 Wheat. [U. S.], 246; 4 Law. ed., 562):

The sovereignty of the United States over the territory was, of course, suspended, and the laws of the
United States could no longer be rightfully enforced there, or be obligatory upon the inhabitants
who  remained and submitted to the conquerors. (P. 564; Emphasis ours.)

It results from the above-quoted pronouncements of the Supreme Court of the United States that the
laws, regulations, processes and other acts of the government that the occupying belligerent establishes
are made binding only and precisely upon those inhabitants from whom obedience could be effectively
exacted, namely, those who remain within the effective reach of the occupying forces and submit to
them. This is plain common sense. Those who conceived and developed the doctrine could not logically
have thought of the army of occupation setting upon a civil government for those who still continued
resistance. As to them, further military operations would be necessary to reduce them to submission,
before one could think of civilly governing them.

In the Philippines, during the occupation by the Japanese of Manila and certain other portions of the
Archipelago, the overwhelming majority of the people never submitted to the Japanese invaders, and
never recognized any legality in the invasion of their country, and to the very date of liberation refused
to accept the alleged protection or benefits of the puppet governments of the "Philippine Executive
Commission" and the "Republic of the Philippines." The majority of our people lived in the provinces, in
the farms, hills and other places beyond the effective reach of the Japanese military garrisons. Only a
small minority submitted to the invaders for various reasons, such as their having been caught in Manila
or other parts of the Island occupying government positions, or residing therein without adequate
facilities for escaping from or evading said invaders, reasons of ill health, disabling them from living the
hard life of the mountains, hills, or country places, and the like.

To have bound those of our people who constituted the great majority who never submitted to the
Japanese oppressors, by the laws, regulations, processes and other acts of those two puppet
governments, would not only have been utterly unjust and downright illegal, but would have placed
them in the absurd and impossible condition of being simultaneously submitted to two mutually hostile
governments, with their respective constitutional and legislative enactments and institutions — on the
one hand bound to continue owing allegiance to the United States and the Commonwealth
Government, and, on the other, to owe allegiance, if only temporary, to Japan. Among them we find the
petitioner William F. Peralta. The surrender of the Fil-American forces in Bataan and Corregidor did not
matter so far as this was concerned. Much less did that surrender obligate all the civil population to
submit to the Japanese, and obey all their future dictations. If it did, President Roosevelt and President
Osmeña would not have so heartily commended the Philippine resistance movement and so
enthusiastically extolled the firm stand of those who participated therein, in the former's message of
October 23, 1943, and in the latter's speech of February 27, 1945, cited in the writer's above mentioned
dissenting opinion. If these historic utterances should seem incompatible with any provision of the
Hague Convention, we should understand from them that both Presidents must have considered such
provision as no longer applicable to, or binding upon, the United States and the Philippines. Who knows
but that their attitude was based upon the renunciation of war as an instrument of national policy by
their respective peoples, which renunciation necessarily includes all the "rights" or "powers" which may
be claimed to be delivered from war so employed? Or else, upon the ground that such provisions does
not support the wrongful acts of Japan in the Philippines?

Another reason advanced to justify the creation of a provisional civil government, with its courts and
other departments, in occupied enemy territory, is the alleged convenience of the civil population. It can
immediately be asserted in reply that the convenience of the above-mentioned overwhelming majority
of our people, far from requiring the establishment of such government, was in the very nature of things
positively opposed thereto. They not only did not need the supposed benefits of such a government, but
they actually reputed them as inimical to the larger interest of the very ideology and cause for which
they were continuing their resistance to those who would extend here the brutal power and pernicious
influence of the now exploded "Greater East Asia Co-Prosperity Sphere." They suffered, yes, and
suffered much — but they placed that ideology and that cause high above their private comfort. Let us
not penalize them for it. If this government is democratic, and when it comes to a question of
convenience, whose will and whose convenience should prevail, that of the majority or that of the
minority? Are we going to force those free citizens of this free country to accept the alleged benefits and
assume the burdens of a government they have never consented to own?

I am furthermore, of opinion that there is another important consideration which argues against the
recognition of the said government as a de facto government or government of paramount force during
the Japanese occupation of the Philippine Islands. Japan, in starting and prosecuting this war against the
United States and her allies by breaking the most vital rules of civilized warfare as prescribed by
International Law, must be deemed to have forfeited the right to invoke that law in so far as specific
provisions thereof would favor her or her acts. Japan in treacherously attacking Pearl Harbor and the
Philippines, successively on December 7 and 8, 1941, violated the rule providing for the necessity of
declaring war as established at the Hague Conference of 1907 (Lawrence, Principles of International
Law, 7th ed., pp. 321-322, 325); she has infringed the rule requiring that war prisoners be cared for and
treated with humanity (Ibid, p. 377); the rule imposing the obligation to properly tend the sick and
wounded (Ibid, 384), the rule interdicting bombing of open and defenseless cities (Ibid, 522, 523) when
she bombed Manila after it had been declared an open city and all its military defenses had been
removed; the rule exempting noncombatants from personal injury (Ibid, 397) — her violations of one or
the other of which were matters of daily occurrence, one might say, during her three and a half years of
tyranny and oppression in this country, and were climaxed by the ignominious and indescribable
atrocities of the mass massacre of innocent civilians during the battle for Manila. In the interpretation of
doubtful provisions of International Law, Doctor Lawrence, in his work cited above, has the following to
say:

. . . If a point of Municipal Law is doubtful, men resort to supreme court for a decision, or to a supreme
legislature for an interpreting statute; but if a point of International Law is doubtful, they can resort only
to general reasoning for a convincing argument, unless, indeed, they settle the question by blows. And
International Law in many of its details is peculiarly liable to disputes and doubts, because it is based on
usage and opinion. He who in such a case bases his reasoning on high considerations of morality may
succeed in resolving the doubt in accordance with humanity and justice. (Pp. 12, 13.).

It would seem that to deny Japan benefits, because she has refused to carry the burdens of the law, is to
base our reasoning "on high considerations of morality", and to resolve any doubt, there be, as to the
point in question, "in accordance with humanity and justice." In other words (even if we applied said
rules to the instant case), Japan, under the circumstances of this case, could not be heard to say that the
government which she established here was a de facto government, or a government of paramount
force, as in the cases where such a government was deemed to exist.

In additional to what has been said above, let us see if the Japanese-sponsored "Republic of the
Philippines" did not introduces such fundamental and drastic changes in the political organization of this
country, as it existed upon the date of the Japanese invasion, as to vitiate with invalidity the acts of all its
department, executive, judicial, and legislative. To begin with, the Commonwealth Constitution was
completely overthrown. It was replaced by the so-called constitution of the "Republic." A casual
comparison of these two instruments cannot fail to reveal a most revolutionary transformation of the
political organization of the country. While under the Commonwealth Constitution the retention of
American sovereignty over the Philippines is expressly recognized, for the purposes specified in the
ordinance appended thereto, in the very preamble of the constitution of the "Republic" the
independence " of the Philippines is proclaim. While under the Commonwealth Constitution the
President and Vice-President are elected "by direct vote of the people "Art. VII, sec. 2), under the
constitution of the "Republic" the President (no Vice-President is provided for) was elected "by majority
of all the members of the Assembly" (Art. II, sec. 2). While under Commonwealth Constitution the
legislative power is vested in a bicameral Congress with a Senate and a House of Representatives (Art.
VI, sec. 1), under the constitution of the "Republic" that power was vested in a unicameral National
Assembly (Art. III, sec. 1). While under the Commonwealth Constitution the Senators are chosen at large
by the qualified electors of the Philippines (Art. VI, sec. 2) and the Representatives by the qualified
electors in the respective districts (Art. VI, sec. 2) and the Representative by the qualified electors in the
respective districts (Art. VI, 5), under the constitution of the "Republic" the National Assembly was
composed of the provincial governors and city mayors as members ex-oficio, and of delegate elected
every three years, one from each and every province and chartered city (Art. III, sec. 2), While under the
Commonwealth Constitution, respecting the Judicial Department, the members of Supreme Court and
all judges of inferior courts are appointed by the President with the consent of the Commission on
Appointments of the Congress (Art. VII, sec.), under the constitution of the "Republic" the members of
the Supreme Court were appointed by the President with the advice of the Cabinet, and all judges of
interior courts, by the President with the advice of the Supreme Court (Art. IV, sec. 4).

These changes and innovations can be multiplied many times, but the foregoing will suffice for our
purpose.

It has been said constantly in this discussion that political acts, or acts of a political complexion of a de
facto government of paramount force, are the only ones vitiated with nullity. Of course, I disagree with
those who so hold. But even by this test the "Republic" — or, which is the same, the Imperial Japanese
Forces which gave it birth — in thus introducing such positive changes in the organization of this country
or suspending the working of that already in existence, executed a political act so fundamental and basic
in nature and operation that all subsequent acts of the new government which of course had to be
based thereon, inevitably had to be contaminated by the same vitiating defect.

Thus judicial acts done under his control, when they are not of a political complexion, administrative
acts so done, to the extent that they take effect during the continuance of his control, and various acts
done during the same time by private persons under the sanction of municipal law, remain good..
Political acts on the other hand fall through as of course, whether they introduce any positive change
into the organization of the country, or whether they only suspend the working of that already in
existence. . . . (Hall, International Law, 6th ed., p. 483; Emphasis ours.)

Finally, upon closed scrutiny, we will find that all of the de facto governments or governments of
paramount force which have been cited in all this discussion were at the same time bona
fide governments. The British established such a government in Castine, and ran it is a purely British
organization. The Americans established another such government in Tampico, and ran it as an
American organization. The Confederate States established a like government in the seceding States,
and ran it as the Government of the Confederacy. They were all frank, sincere, and honest in their deeds
as well as in their words. But what happened in this country during the Japanese occupation? When the
"Republic of the Philippines" was established on October 14, 1943, under duress exerted by the
Japanese Army, did the Japanese openly, frankly, and sincerely say that government was being
established under their orders and was to be run subject to their direction and control? Far from it! They
employed all the means they could conceive to deceive the Filipino people and the outside world that
they had given the Filipinos their independence, and that "Republic" thereunder. But behind the curtain,
from beginning to end, there was the Imperial Japanese Army giving orders and instructions and
otherwise directing and controlling the activities of what really was their creature for the furtherance of
their war aims. I cannot believe that those who conceived and developed the doctrine of de
facto government or government of paramount force, ever intended to include therein such a
counterfeit organization as the Japanese contrived here — an organization which, like its counterparts in
Manchukuo, Nanking, Burma, and Vichy, has been appropriately called "puppet" by the civilized
government of the world.

BRIONES, M.,  concurrente:

El mandamiento de habeas corpus que se solicita debe concederse.

La proclama del General McArthur de 23 de Octubre de 1944, lanzada cuatro dias despues de su
desembarco en Leyte con las fuerzas libertadoras, reza en parte lo siguiente:

3. Que todas las leyes, regulaciones y procesos de cualquier otro gobierno en Filipinas que no fuera el
del Commonwealth son nulos e invalidos y carecen de efecto legal en areas de Filipinas liberadas de la
ocupacion y control del enemigo.

Recientemente se ha discutido mucho en esta jurisdiccion sobre si la anulacion de que trata dicha
proclama puede referirse tambien a actuaciones judiciales (  judicial processes). En el asunto de Co Kim
Cham contra Valdez Tan Keh y Dizon, R.G. No. L-5 (pag, 133, ante), he opinado afirmativamente, esto es,
que el alcance de esa proclama puede extenderse a veces a ciertos actos o  procesos judiciales. Reafirmo
ahora mi opinion y con mayor vigor y enfasis si cabe. Porque, a mi juicio, la sentencia de reclusion
perpetua impuesta al recurrente bajo la ocupacion militar japonesa es de aquellos actos judiciales del
passado regimen que por su naturaleza y circunstancias reclaman una decidida y pronta accion de parte
nuestra en el sentido de anularla y dejarla sin efecto. Mis razones se exponen a continuacion.

Parece innegable que la ley procesal bajo la cual fue enjuiciado y convicto el recurrente durante la
ocupacion japonesa era absolutamente incompatible con las salvaguardias y garantias de un proceso
justo, imparcial y ordenado que la constitucion y legislacion procesal del Commonwealth de Filipinas
otorgan a todo acusado en una causa criminal. Hay en dicha ley ciertos aspectos decididamente
repulsivos para una conciencia disciplinada en las normas y pricipios de una democracia constitucional.

Bajo nuestro sistema procesal el acusado tiene derecho a que no se le ponga en situacion de
acriminarse. Tiene a derecho a callarse sin que esto pueda astribuirsele cargo inculpatorio alguno. Este
es un derecho fundamental, garantido por la constitucion.

Empero bajo el sistema procesal que se discute, "la negativa del acusado a constestar cualqueira
pregunta formulada por el tribunal o permitida por el mismo, puede ser considerada en contra de dicho
acusado." (Seccion 21, Orden Ejecutiva No. 157.) Bajo este mismo sistema el caracter sumarisimo del
proceso llega a tal extremo que "una sentencia condenatoria puede dictarse inmediatemente contra el
acusado siempre que los hechos discubiertos en el interrogatorio preliminar  demuestren que el acusado
es culpable."

Bajo el sistema procesal del Commonwealth, cualquier acusado convicto ante el Juzgado de Primera
Instancia tiene el derecho de apelar de la sentencia para ante el Tribunal superior de revision; y en los
casos de condena a reclusion perpetua  o a muerte, el Tribunal Supremo es el llamado a revisar la causa,
siendo compulsoria la revision en el caso de condena a muerte. Esta jurisdiccion del Tribunal Supremo
en los casos de condena a reclusion perpetua  y a muerte no se halla estatuida simplemente por una ley
ordinaria, sino que esta proveida en la misma constitucion del Commonwealth. Asi que el derecho del
condenado a reclusion perpetua o a muerte para que se revise su cuasa por el Tribunal Supremo es
constitucional y, por ende, no puede ser abolido por un simple  fiat  legislativo.

En cambio, bajo el sistema procesal en controversia las sentencias de los tribunales o sumarias eran de
caracter final, excepto cuando la pena impuesta fuera la de muerte, en cuyo caso los autos se elevaban
en consulta a una division especial del Tribunal Supremo compuesta de tres miembros (Ordenanza No. 7
de la llamada Republica de Filipinas por la que se crearon las tribunales especiales o sumarios). De modo
que en esta ordenanza no solo se suprimia de una plumada el derecho de apelar reconocido y
establecido por la legislacion procesal del Commonwealth aun en los casos de delitos y penas ordinarios,
sino que inclusive quedaba abolido el derecho de apelar otorgado por la constitucion del
Commonwealth al acusado condenado a reclusion perpetua. Por este motivo el recurrente, a quien se le
habia impuesto esta pena por el alergado delito de robo, no pudo apelar de al sentencia para ante el
Tribunal Supremo.

La cuestion que ahora tenemos que determinar y resolver es si debemos reconocer validez y eficacia en
la sentencia por la cual el recurrente se halla extinguiendo su condena de reclusion perpetua, o
debemos anularla ahora que esta en nuestras manos el poder hacerlo, restablecida como esta
enteramente la normalidad juridica y constitucional en nuestro pais.

En favor de la validez de dicha sentencia se arguye que fue dictada por un tribunal creado por un
gobierno de jure; que aun admitiendo el caracter inquisitorial, anti democratico de la ley procesal bajo la
cual fue enjuiciado el acusado, el gobierno de facto era dueño de establecer los procedimientos legales
que quisiera; y que, segun las reglas y doctrinas conocidas de derecho international, las sentencias por
"crimenes de guerra" o delitos politicos" generalmente validas aun despues de restablecido el
gobierno de jure. Se alega que en estos casos el derecho no tiene mas remedio que ceder a la fuerza,
aceptando la realidad de los hechos consumados.

Se admite, sin embargo, que la regla tiene sus excepciones. Una de allas esque "los actos del ocupante
militar que rebasen su poder a tenor del criterio establecido en el articulo 43 de las Regulaciones de La
Haya, son nulos y sin efecto con relacion al gobierno legitimo." (Wheaton's International Law, 7th ed.
[1944], p. 245.) Segun esto, las sentencias por "crimenes de guerra" o "delitos politicos" cometidos
durante la ocupacion son, por razones pecfetamente comprensibles, nulas e invalidas al restablecerse la
soberania legitima. Tambien quedan comprendidos bajo esta excepcion los denominados actos de
caracter o complexion politica.
Otra limitacion a los poderes de un gobierno de ocupacion militar es que elejercicio de tales poderes
debe extenderse tan solo hasta donde fuese necesario para su seguridad y el exito de sus operaciones,
teniendo particularmente en cuental el caracter transeunte de su occupacion. Como regla general, al
invasor se le  prohibe alterar o suspender las leyes referentes a la propiedad y a las relaciones personales
privadas, o las leyes que regulan el orden moral de la comunidad. (Hall, Treatise on International Law,
7th ed., 498,499). Lo que se hace fuera de estas limitaciones es en exceso de su competencia y es
generalmente nulo al rstaurarse la soberania legitima.

Otra excepcion es la que se refiere a los actos de un gobierno de facto resultante de una insurreccion,
rebelion, revolucion o guerra civil. A esteefecto se ha declarado, peo ejemplo. que los actos en fomento
o apoyo de unarebelion contra los Estados Unidos, o encaminados a anular los justos derechos de los
ciudadanos, y otros actos de igual indole, deben ser considerados, por lo general, invalidos y
nulos (Texas vs. White, 74 U. S.,733; 19 Law, ed., 240). En otro caso se ha declaro la validez de ciertos
actos judiciales o legislativos en estados insurreccionados, siempre que su proposito o modo de
operacion no fuerte hostil a la autoridad del gobierno nacional, o no conculcaren derechos de los
ciudadanos bajo la Constitucion. — Horn vs. Lockhart, 17 Well, 570-581; 2 Law. ed., 660.)

Visto el caso que nos ocupa a la luz de estas doctrinas, ¿cual de ellas debemos adoptar para determinar
si es o no valida la sentencia por la la cual el recurrente sufre ahora pena de reclusion perpetua y pide
ser liberado mediante peticion de habeas corpus?

Se aservera que no procede aplicar al presente caso la doctrina establecida en la jurisprudencia

americana sobre gobiernos de facto resultantes de una insureccion, revolucion o guerra civil porque
evidentemente la llamada Republica de Filipinas instaurada durante la ocupacion militar japonesa no
tenia este caracter, sino que era mas bien un gobierno establecido mediantefuerza y coaccion por los
mismos invasores para promover ciertos designios politicos relacionados con sus fines de guerra. En
otras palabras, era el mismo gobierno militar de ocupacion con fachada filipina arreglada y arbitrada
coercitivamente.

Mientras estoy conforme con una parte de la asercion, esto es, que la aludida republica no tenia
caracter insurreccional ni revolucionario, en disfrute de plena autonomia, sino que era simple producto
de la coaccion y estaba mediatizada continuamente por el invasor, difiero de la otra parte, aquella que
declara inaplicable la conocida doctrina americana mencionada arriba sobre gobiernos de
facto establecidos en el curso de una insurreccion, revolucion o guerra civil. Y la razon es sencilla. Si a un
gobierno de factode este ultimo tipo — gobierno establecido, despues de todo, por compatriotas,por
conciudadanos — se le coarta con la restriccion de que sus actos legislativos o judiciales, en tanto son
validos, al restaurarse el regimende jure, en cuanto no conculcaren los derechos justos de los
ciudadanos, a los derechos garantidos por la constitucion, parece que no existe ninguna razon por que
no se ha de aplicar la misma restriccion al gobierno de facto establecido como incidente de una guerra
entre dos naciones independientes y enemigas. En realidad, la razon de nulidad es mucho mas poderosa
y fuertecuando, en su caso como el de Filipinas, el enemigo invasor incio la agresion de una manera
inicua y traicionera y la ejecuto luego con vesania y sadismo que llegaron a extremos inconcebibles de
barbarie. En este caso la conculcacion de los justos derechos de los ciudadanos, o de los derechos
garantidos por la constitucion cobra  proporciones de mucha mayor gravedad porque viene a ser tan
solo parte de un vasto plan de rapiña, devastacion y atrocidades de todo genero cometidas contra la
humanidad y contra las leyes y usos de la guerra entre naciones civilizadas. El invasor, en este caso, es
como el foragido que se coloca fuera de toda ley. Por tanto, no hay absolutamente ninguna razon para
no aplicarle una restriccion que se estimabuena para el insurrecto o revolucionario.

La ventaja de extender hasta cierto punto la doctrina sobre gobiernos de facto resultantes de una
insurreccion, rebelion o guerra civil a gobiernos de facto establecidos como incidente en el curso de una
guerra entre dos naciones independeientes enemigas es que, frente a casos de conculcacion de
los  justos derechos de los ciudadanos, o de los garantidos por laconstitucion  para los efectos de
declararlos validos o nulos al restablecerse el gobierno de jure, ya no se hace preciso examinar si los
actos conculcatorios fueron motivados por razones o exigencias de las seguridad y exito de las
operaciones del ocupante militar, sino que la piedra de toque de la validez o nulidad viene a ser tan solo
el acto positivo mismo de la conculcacion.

Esta forma de racioncinio no solo no es heterodoxa a la luz de los pincipiosestablecidos de derecho

internacional, sino parece ser una logica inferenciade los mismos. Ya hemos visto que al ocupante
militar en el curso de unaguerra internacional se le prohibe, como regla general, alterar o suspenderlas
leyes referentes a la propiedad y a las relaciones personales privadas, olas leyes que regulan el orden
moral de la comunidad. (Hall, Treatise on International Law, supra.) Ahora cabe preguntar: ¿Son los
justos derechos de los ciudadanos, o los fundamentales garantidos por la constitucion  inferiores en
categoria a la propiedad, o las relaciones personales privadas, o al ordenmoral de la comunidad? ¿No
son en cierto sentido hasta superiores? Por tanto,a nadie debe chocar que la prohibicion se extienda a
estas materias. Es unainclusion y perfectamente natural, mas que justificada por los avances y
conquistas del moderno derecho internacional. Notese que en las fraguas de esta ultima guerra se han
forjado unas modalidades juridicas harto originalesque denotan el esfuerzo supremo y gigante dela
humanidad por superar la barbarie y por dar al traste con las formulas arcaicas, reaccionarias. Para citar
solamente algunos ejemplos los mas destados, tenemos el enjuiciamento de los llamados criminales de
la guerra, y la responsabilidad que se exige a los jefes militares por las atricidades cometidas por las
tropas bajo su mando.

Mi conclusion, por tanto, es que desde cualquier angulo que se mire la sentencia impuesta al recurrente
por el tribunal sumario de la llamada republica de Filipinas debe ser declarada nula, acotando las
palabras delProcurador General, "no solo por razones fundadas en principios de derecho internacional,
sino tambien por la mas apremiante y poderosa de las razones,la de preservar y salvaguardar a nuestros
ciudadanos de los actos del enemigo."

Dar validez a esa sentencia ahora, en plena atmosfera de libertad que respiran a pulmon lleno de resto
de nuestros conciudadanos menos el recurrente y otras que corrieron su suerte durante la ocupacion
japonesa,equivaldria tanto como prolongar el regimen de opresion bajo el cual se tramito y se dicto la
referida sentencia. Es mas, equivaldria a sancionar laideologia totalitaria, despotica, medieval contra la
cual nuestro pueblo lucho tan heroicamente jugandose todo; vida libertad y bienes materiales.

Ciertamente no nos hemos librado de la opresion para llegar a tan irrisorioresultado.

Concedase el remedio pedido.

G.R. No. L-36084 August 31, 1977

REPUBLIC OF THE PHILIPPINES, petitioner,

vs.
HONORABLE AMANTE P. PURISIMA, the Presiding Judge of the court of first Instance of Manila (Branch
VII), and YELLOW BALL FREIGHT LINES, INC., respondents.

Solicitor General Estelito P. Mendoza, Assistant Solicitor General Santiago M. Kapunan, Solicitor Oscar C.
Fernandez and Special Attorney Renato P. Mabugat for petitioner.

Jose Q. Calingo for private respondent.

FERNANDO, Acting C.J.:

The jurisdictional issued raised by Solicitor General Estelito P. Mendoza on behalf of the Republic of the
Philippines in this certiorari and prohibition proceeding arose from the failure of respondent Judge
Amante P. Purisima of the Court of First Instance of Manila to apply the well-known and of-reiterated
doctrine of the non-suability of a State, including its offices and agencies, from suit without its consent.
it was so alleged in a motion to dismiss filed by defendant Rice and Corn Administration in a pending
civil suit in the sala of respondent Judge for the collection of a money claim arising from an alleged
breach of contract, the plaintiff being private respondent Yellow Ball Freight Lines, Inc. 1 Such a motion to
dismiss was filed on September 7, 1972. At that time, the leading case of Mobil Philippines Exploration, Inc. v.
Customs Arrastre Service, 2 were Justice Bengzon stressed the lack of jurisdiction of a court to pass on the merits of
a claim against any office or entity acting as part of the machinery of the national government unless consent be
shown, had been applied in 53 other decisions. 3 There is thus more than sufficient basis for an allegation of
jurisdiction infirmity against the order of respondent Judge denying the motion to dismiss dated October 4,
1972. 4 What is more, the position of the Republic has been fortified with the explicit affirmation found in this
provision of the present Constitution: "The State may not be sued without its consent." 5

The merit of the petition for certiorari and prohibition is thus obvious.

1. There is pertinence to this excerpt from Switzerland General Insurance Co., Ltd. v. Republic of the
Philippines: 6 "The doctrine of non-suability recognized in this jurisdiction even prior to the effectivity of the
[1935] Constitution is a logical corollary of the positivist concept of law which, to para-phrase Holmes, negates the
assertion of any legal right as against the state, in itself the source of the law on which such a right may be
predicated. Nor is this all. Even if such a principle does give rise to problems, considering the vastly expanded role
lwphl@itç 

of government enabling it to engage in business pursuits to promote the general welfare, it is not obeisance to the
analytical school of thought alone that calls for its continued applicability. Why it must continue to be so, even if
the matter be viewed sociologically, was set forth in Providence Washington Insurance Co. v. Republic thus:
"Nonetheless, a continued adherence to the doctrine of non-suability is not to be deplored for as against the
inconvenience that may be caused private parties, the loss of governmental efficiency and the obstacle to the
performance of its multifarious functions are far greater if such a fundamental principle were abandoned and the
availability of judicial remedy were not thus restricted. With the well-known propensity on the part of our people
to go the court, at the least provocation, the loss of time and energy required to defend against law suits, in the
absence of such a basic principle that constitutes such an effective obstacle, could very well be imagined." 7 It only
remains to be added that under the present Constitution which, as noted, expressly reaffirmed such a doctrine, the
following decisions had been rendered: Del mar v. The Philippine veterans Administration; 8 Republic v.
Villasor; 9 Sayson v. Singson; 10 and Director of the Bureau of Printing v. Francisco. 11

2. Equally so, the next paragraph in the above opinion from the Switzerland General Insurance Company decision is
likewise relevant: "Nor is injustice thereby cause private parties. They could still proceed to seek collection of their
money claims by pursuing the statutory remedy of having the Auditor General pass upon them subject to appeal to
judicial tribunals for final adjudication. We could thus correctly conclude as we did in the cited Provindence
Washington Insurance decision: "Thus the doctrine of non-suability of the government without its consent, as it
has operated in practice, hardly lends itself to the charge that it could be the fruitful parent of injustice,
considering the vast and ever-widening scope of state activities at present being undertaken. Whatever difficulties
for private claimants may still exist, is, from an objective appraisal of all factors, minimal. In the balancing of
interests, so unavoidable in the determination of what principles must prevail if government is to satisfy the public
weal, the verdict must be, as it has been these so many years, for its continuing recognition as a fundamental
postulate of constitutional law." 12

3. Apparently respondent Judge was misled by the terms of the contract between the private respondent, plaintiff
in his sala, and defendant Rice and Corn Administration which, according to him, anticipated the case of a breach
of contract within the parties and the suits that may thereafter arise. 13 The consent, to be effective though, must
come from the State acting through a duly enacted statute as pointed out by Justice Bengzon in Mobil. Thus,
whatever counsel for defendant Rice and Corn Administration agreed to had no binding force on the government.
That was clearly beyond the scope of his authority. At any rate, Justice Sanchez, in Ramos v. Court of Industrial
Relations, 14 was quite categorical as to its "not [being] possessed of a separate and distinct corporate existence.
On the contrary, by the law of its creation, it is an office directly 'under the Office of the President of the
Philippines." 15

WHEREFORE, the petitioner for certiorari is granted and the resolution of October 4, 1972 denying the motion to
dismiss filed by the Rice and Corn Administration nullified and set aside and the petitioner for prohibition is
likewise granted restraining respondent Judge from acting on civil Case No. 79082 pending in his sala except for
the purpose of ordering its dismissal for lack of jurisdiction. The temporary restraining order issued on February 8,
1973 by this Court is made permanent terminating this case. Costs against Yellow Ball Freight Lines, Inc.

Antonio, Aquino, Concepcion, Jr. and Santos, JJ., concur.

Barredo, J., took no part.

Footnotes

1 Petitioner, Annex H.

2 L-23139, December 17 1966, 18 SCRA 1120.

3 Insurance Company of North America v. Republic, L-24520, July 11, 1967, 20 SCRA 648, was the first
case citing Mobil with approval. The last opinion came from the pen of Chief Justice Concepcion deciding
therein the appeals in Union Insurance Society of Canton, Ltd. v. Republic, L-26409, 46 SCRA 120;
Domestic Insurance Company of the Philippines v. Republic, L-26550, 46 SCRA 121; Insurance Company
of North America v. Republic, L-26587, 46 SCRA 121; British Traders Insurance Co., Ltd. v. Barber Line,
Macondray and Co., Inc., L-31157, 46 SCRA 121, the decisions being promulgated on July 31, 1972.

4  Ibid, Annex J.

5 Article XV, Section 16.

6 L-27389, March 30, 1970, 32 SCRA 227.

8 L-27299, June 27, 1973, 51 SCRA 340.

9 L-30671, November 28, 1973, 54 SCRA 83.

10 L-30044, December 19, 1973, 54 SCRA 282.

11 L-31337, December 20, 1973, 54 SCRA 324.

12 32 SCRA 227, 229-230.

13 Petition, Annex J, 2.

14 L-22753, December 18, 1967, 21 SCRA 1283.

15 Ibid, 1287.

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

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

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

LABRADOR, J.:

I. The case and issue, in general

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

II. Pertinent provisions of Republic Act No. 1180

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

III. Grounds upon which petition is based-Answer thereto

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

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

IV. Preliminary consideration of legal principles involved

a. The police power. —

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

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

b. Limitations on police power. —

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

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

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

c. The, equal protection clause. —

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

d. The due process clause. —

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

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

e. Legislative discretion not subject to judicial review. —

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

V. Economic problems sought to be remedied

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

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

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

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

b. The alien retailer's trait. —

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

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

c. Alleged alien control and dominance. —

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

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

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

Assets Gross Sales

Year and No.- Per cent Per cent

Retailers Establishme Pesos Distributi Pesos Distributi
Nationality nts on on

194
1:

Filipin 106,671 200,323,1 55.82 174,181,9 51.74

o ........ 38 24
..

Chines 15,356 118,348,6 32.98 148,813,2 44.21

e ........ 92 39
...

Others 1,646 40,187,09 11.20 13,630,23 4.05

........... 0 9
.

194
7:

Filipin 111,107 208,658,9 65.05 279,583,3 57.03

o ........ 46 33
..

Chines 13,774 106,156,2 33.56 205,701,1 41.96

e ........ 18 34
...

Others 354 8,761,260 .49 4,927,168 1.01

...........

194 (Censu
8: s)

Filipin 113,631 213,342,2 67.30 467,161,6 60.51

o ........ 64 67
..

Chines 12,087 93,155,45 29.38 294,894,2 38.20

e ........
 .. 9 27

Others 422 10,514,67 3.32 9,995,402 1.29

.......... 5

194
9:

Filipin 113,659 213,451,6 60.89 462,532,9 53.47

o ........ 02 01
..

Chines 16,248 125,223,3 35.72 392,414,8 45.36

e ........ 36 75
..

Others 486 12,056,36 3.39 10,078,36 1.17

.......... 5 4

195
1:

Filipin 119,352 224,053,6 61.09 466,058,0 53.07

o ........ 20 52
.

Chines 17,429 134,325,3 36.60 404,481,3 46.06

e ........ 03 84
..

Others 347 8,614,025 2.31 7,645,327 87

..........
Kilosbayan v. Guingona
Facts:

This is a special civil action for prohibition and injunction, with a prayer for a temporary restraining order and
preliminary injunction which seeks to prohibit and restrain the implementation of the Contract of Lease executed
by the PCSO and the Philippine Gaming Management Corporation in connection with the on-line lottery system,
also know as lotto.

Petitioners strongly opposed the setting up of the on-line lottery system on the basis of serious moral and ethical
considerations. It submitted that said contract of lease violated Section 1 of R. A. No. 1169, as amended by B. P.
Blg. 42.

Respondents contended, among others, that, the contract does not violate the Foreign Investment Act of 1991;
that the issues of wisdom, morality and propriety of acts of the executive department are beyond the ambit of
judicial reviews; and that the petitioners have no standing to maintain the instant suit.

ISSUES:
1. Whether or not petitioners have the legal standing to file the instant petition.
2. Whether or not the contract of lease is legal and valid.

RULING: As to the preliminary issue, the Court resolved to set aside the procedural technicality in view of the
importance of the issues raised. The Court adopted the liberal policy on locus standi to allow the ordinary
taxpayers, members of Congress, and even association of planters, and non-profit civic organizations to initiate and
prosecute actions to question the validity or constitutionality of laws, acts, decisions, or rulings of various
government agencies or instrumentalities.

As to the substantive issue, the Court agrees with the petitioners whether the contract in question is one of lease
or whether the PGMC is merely an independent contractor should not be decided on the basis of the title or
designation of the contract but by the intent of the parties, which may be gathered from the provisions of the
contract itself. Animus homini est anima scripti. The intention of the party is the soul of the instrument.

Therefore the instant petition is granted and the challenged Contract of Lease is hereby declared contrary to law
and invalid.

QUA CHEE GAN v. DEPORTATION BOARD (CASE DIGEST)

30 September 1963
GR No. L-10280
TOPIC:
“People” as Inhabitants
FACTS:
The Court of First Instance denied the petition for writs of habeas
corpus, mandamus and certiorari by the petitioners.
On May 12, 1952, Special Prosecutor Emilio L. Galang charged petitioner
before the Deportation Board. The crimes:
•Purchasing $130,000 with license from Central Bank and remitted it to
Hong Kong
•Attempted bribery of Phil and US officials. 
In effect, Deportation Board issued a warrant of arrest for petitioner
(E.O. No 398, series of 1951). Upon fixing of bonds, petitioner was
temporarily set free.
ISSUE/S:
1. Whether or not the President has authority to deport aliens.
2. Whether or not the Deportation Board also has authority to file
warrants of arrest.
HELD:
1. YES
Section 69 of Act NO. 2711 of the Revised Administrative Code –
Deportation of subject to foreign power. — Asubject of a foreign power
residing in the Philippines shall not be deported, expelled, or excluded
from said Islands or repatriated to his own country by the President of
the Philippines EXCEPT UPON PRIOR INVESTIGATION, conducted by
said Executive or his authorized agent, of the ground upon which Such
action is contemplated. In such case the person concerned shall be
informed of the charge or charges against him and he shall be allowed
not less than these days for the preparation of his defense. He shall also
have the right to be heard by himself or counsel, to produce witnesses in
his own behalf, and to cross-examine the opposing witnesses.”
* In effect, the President (Quezon, May 29, 1936) created the Deportation
Board to conduct investigations.
2. Yes but only after investigation has resulted to the actual order of
deportation. Arrest would have been necessary for deportation to take
effect. However, in the case at bar, investigations were still ongoing and
no order for deportation was yet made. Decision: E.O. No 398, series of
1951: declared illegal
Deportation may be effected in 2 ways:
1. by order of President, after due investigation, pursuant to Section 69
of the RAC
2. by Commissioner of Immigration, upon recommendation by the Board
of Commissioners under Section 37 of Commonwealth Act No. 613
Crime was an act profiteering, hoarding or blackmarketing of US dollars.
LAWYERS LEAGUE FOR A BETTER PHILIPPINES AND/OR OLIVER A. LOZANO VS.
PRESIDENT CORAZON C. AQUINO, ET AL.
G.R. No. 73748, May 22, 1986

FACTS:
On February 25, 1986, President Corazon Aquino issued Proclamation No. 1 announcing that she
and Vice President Laurel were taking power. On March 25, 1986, proclamation No.3 was issued
providing the basis of the Aquino government assumption of power by stating that the "new
government was installed through a direct exercise of the power of the Filipino people assisted
by units of the New Armed Forces of the Philippines."

ISSUE: 
Whether or not the government of Corazon Aquino is legitimate.

HELD:
Yes. The legitimacy of the Aquino government is not a justiciable matter but belongs to the
realm of politics where only the people are the judge. The Court further held that the people have
accepted the Aquino government which is in effective control of the entire country. It is not
merely a de facto government but in fact and law a de jure government.  The community of
nations has recognized the legitimacy of the new government.
Peralta vs. Director of Prisons
Facts: Petitioner-defendant, a member of the Metropolitan Constabulary of Manila charged with
the supervision and control of the production, procurement and distribution of goods and other
necessaries was prosecuted for the crime of robbery as defined and penalized by section 2 (a)
of Act No. 65 of the National Assembly of the so-called Republic of the Philippines. He was
found guilty and sentenced to life imprisonment by the Court of Special and Exclusive Criminal
Jurisdiction. The petition for habeas corpus is based on the ground that the Court of Special and
Executive Criminal Jurisdiction created by Ordinance No. 7 “was a political instrumentality of the
military forces of the Japanese Imperial Army, the aims and purposes of which are repugnant to
those aims and political purposes of the Commonwealth of the Philippines, as well as those of
the United States of America, and therefore, null and void ab initio,” that the provisions of said
Ordinance No. 7 are violative of the fundamental laws of the Commonwealth of the Philippines
and “the petitioner has been deprived of his constitutional rights”; that the petitioner herein is
being punished by a law created to serve the political purpose of the Japanese Imperial Army in
the Philippines, and “that the penalties provided for are much (more) severe than the penalties
provided for in the Revised Penal Code.”
The Solicitor General states that, in his own opinion, the acts and proceedings taken before the
said Court of Special and Exclusive Criminal Jurisdiction which resulted in the imprisonment of
the petitioner, should now be denied force and efficacy, and therefore the petition for habeas
corpus should be granted. Reasons are: that the Court of Special and Exclusive Criminal
Jurisdiction created, and the summary procedure prescribed therefor, by said Ordinance No. 7
are tinged with political complexion; that the procedure prescribed in Ordinance No. 7 does not
afford a fair trial, violates the Constitution of the Commonwealth, and impairs the Constitutional
rights of accused persons under their legitimate Constitution.
The features of the summary procedure adopted by Ordinance No. 7, assailed by the petitioner
and the Solicitor General as impairing the constitutional rights of an accused are: that court may
interrogate the accused and witnesses before trial in order to clarify the points in dispute; that
the refusal of the accused to answer the questions may be considered unfavorable to him; that if
from the facts admitted at the preliminary interrogatory it appears that the defendant is guilty, he
may be immediately convicted; and that the sentence of the court is not appealable, except in
case of death penalty which cannot be executed unless and until reviewed and affirmed by a
special division of the Supreme Court composed of three Justices.
Issues:
1)     WON of the creation of the Court of Special and Exclusive Criminal Jurisdiction was valid
2)     WON of the sentence which imprisonment during the Japanese military occupation was
valid
3)     If they were then valid, WON, by the principle of postliminy, the punitive sentence which
petitioner is now serving fell through or ceased to be valid from the time of the reoccupation of
the Philippines and restoration of the Commonwealth Government
Ruling:  Before proceeding further, and in order to determine the law applicable to the
questions involved in the present case, the question involved in the present case cannot be
decided in the light of the Constitution of the Commonwealth Government; because the
belligerent occupant was totally independent of the constitution of the occupied territory in
carrying out the administration over said territory. The Constitution of the so-called Republic of
the Philippines can neither be applied, since the validity of an act of a belligerent occupant
cannot be tested in the light of another act of the same occupant, whose criminal jurisdiction is
drawn entirely from the law martial as defined in the usages of nations.
(1) Yes. Valid. It is well established in International Law that “The criminal jurisdiction
established by the invader in the occupied territory finds its source neither in the laws of the
conquering or conquered state, — it is drawn entirely form the law martial as defined in the
usages of nations. The authority thus derived can be asserted either through special tribunals,
whose authority and procedure is defined in the military code of the conquering state, or through
the ordinary courts and authorities of the occupied district. The so-called Republic of the
Philippines, being a governmental instrumentality of the belligerent occupant, had therefore the
power or was competent to create the Court of Special and Exclusive Criminal Jurisdiction. No
question may arise as to whether or not a court is of political complexion, for it is mere a
governmental agency charged with the duty of applying the law to cases falling within its
jurisdiction.
With respect to the Summary procedure adopted by Ordinance No. 7, there is also no question
as to the power of the belligerent occupant to promulgate the law providing for such procedure.
A belligerent “occupant may where necessary, set up military courts instead of the ordinary
courts; and in case, and in so far as, he admits the administration of justice by the ordinary
courts, he may nevertheless temporarily alter the laws, especially the Criminal Law, on the
basis of which justice is administered as well as the laws regarding procedure. The only
restrictions or limitations imposed upon the power of a belligerent occupant to alter the laws or
promulgate new ones, especially the criminal law as well as the laws regarding procedure are
those imposed by the Hague Regulations, the usages established by civilized nations, the laws
of humanity and the requirements of public conscience. It is obvious that the summary
procedure under consideration does not violate those precepts.
(2) Yes. Valid. Although the crimes covered are defined in the Revised Penal Code, they were
altered and penalized by said Act No. 65 with different and heavier penalties, as new crimes
and offenses demanded by military necessity, incident to a state of war, and necessary for the
control of the country by the belligerent occupant, the protection and safety of the army of
occupation, its support and efficiency, and the success of its operations.
The criminal acts penalized by said Act No. 65 are those committed by persons charged or
connected with the supervision and control of the production, procurement and distribution of
foods and other necessaries; and the penalties imposed upon the violators are different from
and much heavier than those provided by the Revised Penal Code for the same ordinary
crimes. The acts penalized by said Act were taken out of the territorial law or Revised Penal
Code, and referred to what is called martial law by international jurists in order, not only to
prevent food and other necessaries from reaching the “guerrillas” which were harassing the
belligerent occupant but also to preserve the food supply and other necessaries
(3) Yes. It did cease. We have already held in our recent decision in the case of Co Kim Cham
vs. Valdez Tan Keh and Dizon, supra, that all judgments of political complexion of the courts
during the Japanese regime, ceased to be valid upon the reoccupation of the islands by virtue of
the principle or right of postliminium. Applying that doctrine to the present case, the sentence
which convicted the petitioner of a crime of a political complexion must be considered as having
ceased to be valid ipso facto upon the reoccupation or liberation of the Philippines by General
Douglas MacArthur. It may not be amiss to say in this connection that it is not necessary and
proper to invoke the proclamation of General Douglas MacArthur declaring null and void all
laws, among them Act No. 65, of the so-called Republic of the Philippines under which petitioner
was convicted, in order to give retroactive effect to the nullification of said penal act and
invalidate sentence rendered against petitioner under said law, a sentence which, before the
proclamation, had already become null and of no effect.

Republic v. Purisima, G.R. No. L-36084, 31

August 1977
09JAN
Second Division

[FERNANDO, Acting C.J.]

FACTS: The jurisdictional issues raised by Solicitor General Estelito P. Mendoza on behalf of the Republic of the
Philippines in this certiorari and prohibition proceeding arose from the failure of respondent Judge Amante P.
Purisima of the Court of First Instance of Manila to apply the well-known and of-reiterated doctrine of the non-
suability of a State, including its offices and agencies, from suit without its consent. It was so alleged in a motion to
dismiss filed by defendant Rice and Corn Administration in a pending civil suit in the sala of respondent Judge for
the collection of a money claim arising from an alleged breach of contract, the plaintiff being private respondent
Yellow Ball Freight Lines, Inc.

ISSUE: Can an agreement between the Rice and Corn Administration and Yellow Ball Freight Lines, Inc.  operate
as a waiver of the national government from suit?

HELD: NO.

The consent to be sued, to be effective must come from the State thru a statute, not through any
agreement made by counsel for the Rice and Corn Administration.Apparently respondent Judge was
misled by the terms of the contract between the private respondent, plaintiff in his sala, and defendant
Rice and Corn Administration which, according to him, anticipated the case of a breach of contract
within the parties and the suits that may thereafter arise. The consent, to be effective though, must
come from the State acting through a duly enacted statute as pointed out by Justice Bengzon in Mobil.
Thus, whatever counsel for defendant Rice and Corn Administration agreed to had no binding force on
the government. That was clearly beyond the scope of his authority.

ICHONG v. HERNANDEZ
101 PHIL 115
FACTS:
Petitioner, also in behalf of other alien residents’ corporations and partnerships,
brought this action to obtain a judicial declaration that RA 1180 is unconstitutional.
Petitioner contends, among others, that said act violates the equal protection of laws
and that it violates the treaty of the Philippines with China. Solicitor General contends
that the act was a valid exercise of the police power and that not a single treaty was
infringed by said act.

ISSUE:
Whether or not RA 1180 violates the equal protection of laws

HELD:
The equal protection of the law clause is against undue favor and individual or class
privilege, as well as hostile discrimination on the oppression of inequality. The real
question at hand is whether or not the exclusion of the future aliens for the retail trade
unreasonable. The equal protection clause “is not infringed by a specified class if it
applies to all persons within such class and reasonable grounds exist for making a
distinction between those who fall within such class and those who do not”. Aliens are
under no special constitutional protection which forbids a classification otherwise
justified simply because the limitation of the class falls along the lines of nationality.
The difference in status between citizens and aliens constitute a basis for reasonable
classification in the exercise of police power.

Ichong vs Hernandez
FACTS:
The Legislature passed R.A. 1180 (An Act to Regulate the Retail Business). Its purpose was to prevent
persons who are not citizens of the Phil. from having a stranglehold upon the people’s economic life.

 a prohibition against aliens and against associations, partnerships, or corporations the capital of
which are not wholly owned by Filipinos, from engaging directly or indirectly in the retail trade 
 aliens actually engaged in the retail business on May 15, 1954 are allowed to continue their
business, unless their licenses are forfeited in accordance with law, until their death or voluntary
retirement. In case of juridical persons, ten years after the approval of the Act or until the expiration of
term. 
Citizens and juridical entities of the United States were exempted from this Act.
 provision for the forfeiture of licenses to engage in the retail business for violation of the laws on
nationalization, economic control weights and measures and labor and other laws relating to trade,
commerce and industry. 
 provision against the establishment or opening by aliens actually engaged in the retail business of
additional stores or branches of retail business 
Lao Ichong, in his own behalf and behalf of other alien residents, corporations and partnerships affected
by the Act, filed an action to declare it unconstitutional for the ff: reasons:
1. it denies to alien residents the equal protection of the laws and deprives them of their liberty and
property without due process 
2. the subject of the Act is not expressed in the title 
3. the Act violates international and treaty obligations 
4. the provisions of the Act against the transmission by aliens of their retail business thru hereditary
succession 
ISSUE: WON the Act deprives the aliens of the equal protection of the laws.

HELD: The law is a valid exercise of police power and it does not deny the aliens the equal protection of
the laws. There are real and actual, positive and fundamental differences between an alien and a citizen,
which fully justify the legislative classification adopted.

RATIO:
The equal protection clause does not demand absolute equality among residents. It merely requires that
all persons shall be treated alike, under like circumstances and conditions both as to privileges conferred
and liabilities enforced.

The classification is actual, real and reasonable, and all persons of one class are treated alike.

The difference in status between citizens and aliens constitutes a basis for reasonable classification in the
exercise of police power.

Official statistics point out to the ever-increasing dominance and control by alien of the retail trade. It is
this domination and control that is the legislature’s target in the enactment of the Act.

The mere fact of alienage is the root cause of the distinction between the alien and the national as a
trader. The alien is naturally lacking in that spirit of loyalty and enthusiasm for the Phil. where he
temporarily stays and makes his living. The alien owes no allegiance or loyalty to the State, and the State
cannot rely on him/her in times of crisis or emergency.

While the citizen holds his life, his person and his property subject to the needs of the country, the alien
may become the potential enemy of the State.

The alien retailer has shown such utter disregard for his customers and the people on whom he makes
his profit. Through the illegitimate use of pernicious designs and practices, the alien now enjoys a
monopolistic control on the nation’s economy endangering the national security in times of crisis and
emergency.