Article II, Section II – Treaties and

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KURODA v. JALANDONI Agreements (IHL and GAPIL)
GR L-2662 March 26, 1949 C.J. Moran Queen
Petitioner/s: Respondent/s:
Shigenori Kuroda Major General Rafael Jalandoni, Brigadier General
Calixto Duque, Colonel Margarito Toralba, Colonel
ireneo Buenconsejo, Colonel Peduro Tabuena, Major
Federico Aranas, Melville S. Hussey, and Robert Port
Recit Ready Summary

Former Lt. Gen. and Commanding General of the Japanese Imperial Army, Kuroda is being charged
with war crimes before the Military Commission for committing atrocities and other high crimes against
civilians and its prisoners during its occupation. Kuroda is now challenging the legality of EO no. 68
which establishes a National War Crimes Office and prescribes the rules and regulations governing trial
of accused war criminals.

Kuroda contends that the EO is illegal because the PH is neither a signatory nor a State Party of the
Hague Convention. Moreover, it only signed the Geneva Convention in 1947, after the atrocities has
ended. Thus, it alleges the following: (1) Kuroda is charged with a crime not based on the PH’s national
or international law and (2) since the Military Commission was empaneled by virtue of an
unconstitutional law, it has no jurisdiction to try its case.

I: Is EO no. 68 constitutional? YES

EO no. 68 is constitutional. Although the PH is neither a signatory nor a State party of the Hague and
Geneva Convention, they are part of the generally accepted principle of international law (GAPIL)
which is adopted by the PH pursuant to Art. II, Sec. 3 of the Constitution. Thus, in enforcing EO no. 68,
the PH President is acting in conformity of with the GAPIL which are part of our Constitution.

The promulgation of the EO is an exercise by the President of his powers as commander-in-chief of all
our armed forces. It is fully empowered to consummate this unfinished aspect of war, namely, the trial
and punishment of war criminals through the issuance of enforcement of EO 68.

It cannot be denied that the rules and regulations of the Hague and Geneva Conventions form part of
and are wholly based on the GAPIL. In fact, they were accepted by the two belligerent nations (US and
JPN). Thus, they form part of the law of our nation even if the PH was not a signatory to the
conventions. Our Constitution has been deliberately general and extensive in scope. It is not confined
to the recognition of rules and principles of international law as contained in treaties to which the PH is
a signatory.

Furthermore, when the crimes were committed, the PH was under the US sovereignty so it is equally
bound by the Conventions of the belligerent states. These rights and obligations were not erased by the
PH’s assumption of full sovereignty. Thus, the war crimes committed against our people and
government while we were a Commonwealth are triable and punishable by the present Republic.
Facts
1. Shigenori Kuroda (Petitioner Kuroda) is the former Lieutenant-General of the Japanese Imperial
Army and Commanding General of the Japanese Imperial Forces in PH (1943-1944). He is now
charged before a military commission convened by the AFP Chief of Staff for unlawfully
disregarding and failing to discharge his duties as Lt. Gen. and Commanding Gen. and permitting
his men to commit brutal atrocities and other high crimes against PH civilians and its prisoners.
2. Kuroda comes before the SC seeking for the following:
a. To establish the illegality of EO no. 68 of the PH President;
b. To enjoin and prohibit respondents Attys. Hussey and Port from participating in the
prosecution of his case before the Military Commission; and
c. To permanently prohibit respondents from proceeding with his case.

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 3. EO no. 68 establishes a National War Crimes Office and prescribes the rules and regulations
governing trial of accused war criminals. It was issued by the PH President.
Point/s of Contention

Kuroda’s Arguments:
1. On illegality of EO no. 68: EO 68 is illegal because it violates the provision of our constitutional
and local laws which says nothing about our adherence to the Hague Convention. The PH is
neither a signatory nor a State Party of the Hague Convention on Rules and Regulations covering
Land Warfare (Hague). Moreover, the Geneva Convention was only signed by the PH in 1947,
after the atrocities have ended. Thus:
a. Kuroda is charged with a crime not based on national or international law.
b. Since the Military Commission was empaneled by virtue of an unconstitutional law, it has no
jurisdiction to try its case.
2. On participation of Attys. Hussey and Port: Attys. Hussey and Port cannot participate in the
proceedings in behalf of US before the Commission because they are not authorized to practice
law in the PH in accordance with the Rules of Court. It is a diminution of the PH’s personality as
an independent state and their appointment as prosecutor is a violation of our Constitution.
3. On Attys. Hussey and Port proceeding the case: Attys. Hussey and Port have no personality
as prosecutors because the US is not a party-in-interest in the case.
Issue/s Ruling
1. W/N EO no. 68 is constitutional? 1. Yes
2. W/N Attys. Hussey and Port can participate in the proceedings of the Military 2. Yes
Commission?
Rationale
1. EO no. 68 is constitutional. Although the PH is neither a signatory nor a State party of the
Hague and Geneva Convention, they are part of the generally accepted principle of
international law (GAPIL) which is adopted by the PH pursuant to Art. II, Sec. 3 of the
Constitution.

EO no. 68 is constitutional. Art. II, Sec. 3 of the Constitution provides:

“The Philippines renounces war as an instrument of national policy, and adopts the generally accepted
principles of international law as part of the law of the nation.”

All persons (military/civilian) who are guilty of planning, preparing, or waging a war of aggression
and consequently committing crimes of offenses in violation of the law and the customs of war,
humanity, and civilization are held accountable in accordance with the generally accepted
principles of international law (GAPIL) which includes the Hague Convention, the Geneva
Convention, and the significant precedents of international jurisprudence established by UN. Thus,
in enforcing EO no. 68, the PH President is acting in conformity of with the GAPIL which are part
of our Constitution.

The promulgation of the EO is an exercise by the President of his powers as commander-in-chief

of all our armed forces. This is upheld by the SC in the case of Yamashita v. Styler.
“War is not ended simply because hostilities have ceased. After cessation of armed hostilities, incidents of
war may remain pending which should be disposed of as in time of war. 'An important incident to a
conduct of war is the adoption of measures by the military command not only to repel and defeat the
enemies but to seize and subject to disciplinary measures those enemies who in their attempt to thwart or
impede our military effort have violated the law of war.”

Thus, the President is fully empowered to consummate this unfinished aspect of war, namely, the
trial and punishment of war criminals through the issuance of enforcement of EO 68.

It cannot be denied that the rules and regulations of the Hague and Geneva conventions form part
of and are wholly based on the GAPIL. In fact, they were accepted by the two belligerent nations
(US and JPN) who are signatories of the Conventions. Thus, they form part of the law of our
nation even if the Ph was not a signatory to the conventions. Our Constitution has been
deliberately general and extensive in scope. It is not confined to the recognition of rules and

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 principles of international law as contained in treaties to which the PH is a signatory.

Furthermore, when the crimes were committed, the PH was under the US sovereignty so it is
equally bound by the Conventions of the belligerent states. These rights and obligations were not
erased by the PH’s assumption of full sovereignty. As stated in Laurel v. Misa:
“The change of our form of government from Commonwealth to Republic does not affect the prosecution
of those charged with the crime of treason committed during the Commonwealth, because it is an offense
against the same government and the same sovereign people.”

Thus, the war crimes committed against our people and government while we were a
Commonwealth are triable and punishable by the present Republic.

2. The participation of Attys. Hussey and Port cannot be excluded in the proceedings before
the Military Commission.

First, the Military Commission is a special military tribunal governed by a special law and not by
the Rules of Court. There is nothing in EO 68 which requires that counsels appearing before such
must be attorneys qualified to practice law in the PH in accordance with the Rules of Court . In fact,
it is common in military tribunals that the parties’ counsel are usually military personnel ––neither
attorneys nor possessed of legal training.

Second, the appointment of the attorneys does not violate our national sovereignty. It is only fair
and proper that US should be allowed representation in the trial because it has submitted the
vindication of crimes against its government and people to a PH tribunal. It is actually the US who
relinquished sovereignty and yielded to us for the trial and punishment of its enemies. Pursuant to
the spirit of comity, it should be allowed representation.
Disposition
The Military Commission, having been convened by virtue of a valid law, with jurisdiction over the
crimes charged which fall under the provisions of EO No. 68, and having jurisdiction over the person of
the petitioner by having said petitioner in its custody, SC will not interfere with the due processes of
such Military Commission.
Separate Opinion/s

1. J. Perfecto, dissenting

EO no. 68 is a legislative measure issued solely by the PH President without the benefit of
congressional enactment. It is null and void because, through it, the President usurped powers
expressly vested by the Constitution in Congress and SC.
1. It establishes a National War Crimes Office and the power to establish a government office
is essentially legislative.
2. It provides that persons accused as war criminals shall be tried by military commissions. It
confers upon military commissions jurisdiction to try all persons charged with war crimes.
The power to define and allocate jurisdiction for the prosecution of persons accused of any
crime is exclusively vested by the Constitution in Congress.
3. It provides rules of procedure for the conduct of trials. This is a usurpation of the SC’s rule-
making power as vested by the Constitution.
4. It authorizes military commissions to adopt additional rules of procedure. If the President of
the Philippines cannot exercise the rule-making power vested by the Constitution in the
Supreme Court, he cannot, with more reason, delegate that power to military commissions.
5. It appropriates the sum of P700,000 for the expenses of the National War Crimes Office
established by the said Executive Order No. 68. This constitutes another usurpation of
legislative power as the power to vote appropriations belongs to Congress.

To justify the President’s legal authority to issue the EO, respondents invoked the President’s
emergency powers under Commonwealth Act (CA) nos. 600 and 671. However, they cannot be
validly invoked because it ceased to have effect even before the issuance of EO 68. They elapsed

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 upon the PH’s liberation from Japanese forces.

Notwithstanding such, CAs 600 and 671 were enacted by the National Assembly for the purpose
of facing the emergency of an impending war that finally broke out with the attack of Pearl Harbor.
It is not the Assembly’s intention to extent the delegation beyond the emergency created by the
war.

EO no. 68 also violates due process and equal protection. It permits the admission of many kinds
of evidence by which no innocent person can afford to get acquittal and by which it is impossible
to determine whether an accused is guilty or not beyond all reasonable doubt.

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