Module 4

FIRST DIVISION
[ G.R. No. 105364. June 28, 2001 ]

PHILIPPINE VETERANS BANK EMPLOYEES UNION-N.U.B.E. AND
PERFECTO V. FERNANDEZ, PETITIONERS, VS. HONORABLE BENJAMIN
VEGA, PRESIDING JUDGE OF BRANCH 39 OF THE REGIONAL TRIAL
COURT OF MANILA, THE CENTRAL BANK OF THE PHILIPPINES AND THE
LIQUIDATOR OF THE PHILIPPINE VETERANS BANK, RESPONDENTS
D E C I S I O N
KAPUNAN, J.:
May a liquidation court continue with liquidation proceedings of the Philippine

Veterans Bank (PVB) when Congress had mandated its rehabilitation and
reopening?
This is the sole issue raised in the instant Petition for Prohibition with Petition
for Preliminary Injunction and application for Ex Parte Temporary Restraining
Order.
The antecedent facts of the case are as follows:
Sometime in 1985, the Central Bank of the Philippines (Central Bank, for
brevity) filed with Branch 39 of the Regional Trial Court of Manila a Petition
for Assistance in the Liquidation of the Philippine Veterans Bank, the same
docketed as Case No. SP-32311. Thereafter, the Philipppine Veterans Bank
Employees Union-N.U.B.E., herein petitioner, represented by petitioner
Perfecto V. Fernandez, filed claims for accrued and unpaid employee wages
and benefits with said court in SP-32311.[1]
After lengthy proceedings, partial payment of the sums due to the employees
were made. However, due to the piecemeal hearings on the benefits, many
remain unpaid.[2]
On March 8, 1991, petitioners moved to disqualify the respondent judge from

hearing the above case on grounds of bias and hostility towards petitioners.[3]
On January 2, 1992, the Congress enacted Republic Act No. 7169 providing for
the rehabilitation of the Philippine Veterans Bank.[4]
Thereafter, petitioners filed with the labor tribunals their residual claims for
benefits and for reinstatement upon reopening of the bank.[5]
Sometime in May 1992, the Central Bank issued a certificate of authority
allowing the PVB to reopen.[6]
Despite the legislative mandate for rehabilitation and reopening of PVB,

respondent judge continued with the liquidation proceedings of the bank.
Moreover, petitioners learned that respondents were set to order the payment
and release of employee benefits upon motion of another lawyer, while
petitioners' claims have been frozen to their prejudice.
Hence, the instant petition.
Petitioners argue that with the passage of R.A. 7169, the liquidation court
became functus officio, and no longer had the authority to continue with
liquidation proceedings.
In a Resolution, dated June 8, 1992, the Supreme Court resolved to issue a

Temporary Restraining Order enjoining the trial court from further proceeding
with the case.
On June 22, 1992, VOP Security & Detective Agency (VOPSDA) and its 162
security guards filed a Motion for Intervention with prayer that they be
excluded from the operation of the Temporary Restraining Order issued by the
Court. They alleged that they had filed a motion before Branch 39 of the RTC
of Manila, in SP-No. 32311, praying that said court order PVB to pay their
backwages and salary differentials by authority of R.A. No 6727, Wage Orders
No. NCR-01 and NCR-01-Ad and Wage Orders No. NCR-02 and NCR-02-A;
and, that said court, in an Order dated June 5, 1992, approved therein movants'
case and directed the bank liquidator or PVB itself to pay the backwages and
differentials in accordance with the computation incorporated in the order.
Said intervenors likewise manifested that there was an error in the computation
of the monetary benefits due them.
On August 18, 1992, petitioners, pursuant to the Resolution of this Court, dated
July 6, 1992, filed their Comment opposing the Motion for Leave to File
Intervention and for exclusion from the operation of the T.R.O. on the grounds
that the movants have no legal interest in the subject matter of the pending
action; that allowing intervention would only cause delay in the proceedings;
and that the motion to exclude the movants from the T.R.O. is without legal
basis and would render moot the relief sought in the petition.
On September 3, 1992, the PVB filed a Petition-In-Intervention praying for the

issuance of the writs of certiorari and prohibition under Rule 65 of the Rules of
Court in connection with the issuance by respondent judge of several orders
involving acts of liquidation of PVB even after the effectivity of R.A. No.
7169. PVB further alleges that respondent judge clearly acted in excess of or
without jurisdiction when he issued the questioned orders.
We find for the petitioners.
Republic Act No. 7169 entitled "An Act To Rehabilitate The Philippine
Veterans Bank Created Under Republic Act No. 3518, Providing The
Mechanisms Therefor, And For Other Purposes", which was signed into law by
President Corazon C. Aquino on January 2, 1992 and which was published in
the Official Gazette on February 24, 1992, provides in part for the reopening of
the Philippine Veterans Bank together with all its branches within the period of
three (3) years from the date of the reopening of the head office. [7] The law
likewise provides for the creation of a rehabilitation committee in order to
facilitate the implementation of the provisions of the same.[8]
Pursuant to said R.A. No. 7169, the Rehabilitation Committee submitted the
proposed Rehabilitation Plan of the PVB to the Monetary Board for its
approval. Meanwhile, PVB filed a Motion to Terminate Liquidation of
Philippine Veterans Bank dated March 13, 1992 with the respondent judge
praying that the liquidation proceedings be immediately terminated in view of
the passage of R.A. No. 7169.
On April 10, 1992, the Monetary Board issued Monetary Board Resolution No.
348 which approved the Rehabilitation Plan submitted by the Rehabilitaion
Committee.
Thereafter, the Monetary Board issued a Certificate of Authority allowing PVB

to reopen.
On June 3, 1992, the liquidator filed A Motion for the Termination of the
Liquidation Proceedings of the Philippine Veterans Bank with the respondent
judge.
As stated above, the Court, in a Resolution dated June 8, 1992, issued a

temporary restraining order in the instant case restraining respondent judge
from further proceeding with the liquidation of PVB.
On August 3, 1992, the Philippine Veterans Bank opened its doors to the public
and started regular banking operations.
Clearly, the enactment of Republic Act No. 7169, as well as the subsequent
developments has rendered the liquidation court functus officio. Consequently,
respondent judge has been stripped of the authority to issue orders involving
acts of liquidation.
Liquidation, in corporation law, connotes a winding up or settling with

creditors and debtors.[9] It is the winding up of a corporation so that assets are
distributed to those entitled to receive them. It is the process of reducing assets
to cash, discharging liabilities and dividing surplus or loss.
On the opposite end of the spectrum is rehabilitation which connotes a

reopening or reorganization. Rehabilitation contemplates a continuance of
corporate life and activities in an effort to restore and reinstate the corporation
to its former position of successful operation and solvency.[10]
It is crystal clear that the concept of liquidation is diametrically opposed or

contrary to the concept of rehabilitation, such that both cannot be undertaken at
the same time. To allow the liquidation proceedings to continue would
seriously hinder the rehabilitation of the subject bank.
Anent the claim of respondents Central Bank and Liquidator of PVB that R.A.
No. 7169 became effective only on March 10, 1992 or fifteen (15) days after its
publication in the Official Gazette; and, the contention of intervenors VOP
Security, et. al. that the effectivity of said law is conditioned on the approval of
a rehabilitation plan by the Monetary Board, among others, the Court is of the
view that both contentions are bereft of merit.
While as a rule, laws take effect after fifteen (15) days following the
completion of their publication in the Official Gazette or in a newspaper of
general circulation in the Philippines, the legislature has the authority to
provide for exceptions, as indicated in the clause "unless otherwise provided."
In the case at bar, Section 10 of R.A. No. 7169 provides:
Sec. 10. Effectivity. - This Act shall take effect

upon its approval.
Hence, it is clear that the legislature intended to make the law

effective immediately upon its approval. It is undisputed that R.A. No. 7169
was signed into law by President Corazon C. Aquino on January 2, 1992.
Therefore, said law became effective on said date.
Assuming for the sake of argument that publication is necessary for the
effectivity of R.A. No. 7169, then it became legally effective on February 24,
1992, the date when the same was published in the Official Gazette, and not on
March 10, 1992, as erroneously claimed by respondents Central Bank and
Liquidator.
WHEREFORE, in view of the foregoing, the instant petition is

hereby GIVEN DUE COURSE and GRANTED. Respondent Judge is hereby
PERMANENTLY ENJOINED from further proceeding with Civil Case No.
SP- 32311.
SO ORDERED.
Davide, Jr., C.J., (Chairman), Puno, Pardo, and Ynares-Santiago, JJ., concur.
* This case was transferred to the ponente pursuant to the resolution in AM No.
00-9-03-SC. Re: Creation of Special Committee on Case Backlog dated
February 27, 2001.
[1]
Rollo, p. 5.
[2]
Ibid.
[3]
Id.
[4]
Id., at 6.
[5]
Id.
[6]
Id.
[7]
Sec. 5, Republic Act No. 7169, Official Gazette, February 24, 1992, p. 963.
[8]
Sec. 7, Ibid.
[9]
Wilson vs. Superior Court in and for Santa Clara County, 2 Cal.2d 632, 43
P.2d 286, 288.
[10]
Ruby Industrial Corporation vs. Court of Appeals, 284 SCRA 445 (1998).
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III.
220 Phil. 422
EN BANC
[ G.R. No. L-63915. April 24, 1985 ]
LORENZO M. TAÑADA, ABRAHAM F. SARMIENTO, AND MOVEMENT OF
ATTORNEYS FOR BROTHERHOOD, INTEGRITY AND NATIONALISM, INC.
[MABINI], PETITIONERS, VS. HON. JUAN C. TUVERA, IN HIS

CAPACITY AS EXECUTIVE ASSISTANT TO THE PRESIDENT, HON.
JOAQUIN VENUS, IN HIS CAPACITY AS DEPUTY EXECUTIVE ASSISTANT
TO THE PRESIDENT, MELQUIADES P. DE LA CRUZ, IN HIS CAPACITY
AS DIRECTOR, MALACAñANG RECORDS OFFICE, AND FLORENDO S.
PABLO, IN HIS CAPACITY AS DIRECTOR, BUREAU OF PRINTING,
RESPONDENTS.
D E C I S I O N
ESCOLIN, J.:
Invoking the people's right to be informed on matters of public concern, a right

recognized in Section 6, Article IV of the 1973 Philippine Constitution [1], as
well as the principle that laws to be valid and enforceable must be published in
the Official Gazette or otherwise effectively promulgated, petitioners seek a
writ of mandamus to compel respondent public officials to publish, and/or
cause the publication in the Official Gazette of various presidential decrees,
letters of instructions, general orders, proclamations, executive orders, letter of
implementation and administrative orders.
Specifically, the publication of the following presidential issuances is sought:

a] Presidential Decrees Nos: 12, 22, 37, 38, 59, 64,
103, 171, 179, 184, 197, 200, 234, 265, 286, 298, 303,
312, 324, 325, 326, 337, 355, 358, 359, 360, 361, 368,
404, 406, 415, 427, 429, 445, 447, 473, 486, 491, 503,
504, 521, 528, 551, 566, 573, 574, 594, 599, 644, 658,
661, 718, 731, 733, 793, 800, 802, 835, 386, 923, 935,
961, 1017-1030, 1050, 1060-1061, 1085, 1143, 1165, 1166,
1242, 1246, 1250, 1278, 1279, 1300, 1644, 1772, 1808,
1810, 1813-1817, 1819-1826, 1829-1840, 1842-1847.
b] Letter of Instructions Nos.: 10, 39, 49, 72, 107,

108, 116, 130, 136, 141, 150, 153, 155, 161, 173, 180,
187, 188, 192, 193, 199, 202, 204, 205, 209, 211-213,
215-224, 226-228, 231-239, 241-245, 248-251, 253-261,
263-269, 271-273, 275-283, 285-289, 291, 293, 297-299,
301-203, 309, 312-315, 325, 327, 343, 346, 349, 357, 358,
362, 367, 370, 382, 385, 386, 396-397, 405, 438-440, 444-
445, 473, 486, 488, 498, 501, 399, 527, 561, 576, 587,
594, 599, 600, 602, 609, 610, 611, 612, 615, 641, 642,
665, 702, 712-713, 726, 837-839, 878-879, 881, 882, 939-
940, 964, 997, 1149-1178, 1180-1278.
c] General Orders Nos.: 14, 52, 58, 59, 60, 62, 63, 64
& 65.
d] Proclamation Nos.: 1126, 1144, 1147, 1151, 1196,

1270, 1281, 1319-1526, 1529, 1532, 1535, 1538, 1540-1547,
1550-1558, 1561-1588, 1590-1595, 1594-1600, 1606, 1609,
1612-1628, 1630-1649, 1694-1695, 1697-1701, 1705-1723,
1731-1734, 1737-1742, 1744, 1746-1751, 1752, 1754, 1762,
1764-1787, 1789-1795, 1797, 1800, 1802-1804, 1806-1807,
1812-1814, 1816, 1825-1826, 1829, 1831-1832, 1835-1836,
1839-1840, 1843-1844, 1846-1847, 1849, 1853-1858, 1860,
1866, 1868, 1870, 1876-1889, 1892, 1900, 1918, 1923,
1933, 1952, 1963, 1965-1966, 1968-1984, 1986-2028, 2030-
2044, 2046-2145, 2147-2161, 2163-2244.
e] Executive Orders Nos.: 411, 413, 414, 427, 429-454,

457-471, 474-492, 494-507, 509-510, 522, 524-528, 531-
532, 536, 538, 543-544, 549, 551-553, 560, 563, 567-568,
570, 574, 593, 594, 598-604, 609, 611-647, 649-677, 679-
703, 705-707, 712-786, 788-852, 854-857.
f] Letters of Implementation Nos.: 7, 8, 9, 10, 11-22,

25-27, 39, 50, 51, 59, 76, 80-81, 92, 94, 95, 107, 120,
122, 123.
g] Administrative Orders Nos.: 347, 348, 352-354, 360-

378, 380-433, 436-439.
The respondents, through the Solicitor General, would have this case dismissed
outright on the ground that petitioners have no legal personality or standing to
bring the instant petition. The view is submitted that in the absence of any
showing that petitioners are personally and directly affected or prejudiced by
the alleged non-publication of the presidential issuances in question[2] said
petitioners are without the requisite legal personality to institute this mandamus
proceeding, they not being "aggrieved parties" within the meaning of Section 3,
Rule 65 of the Rules of Court, which we quote:
"SEC. 3. Petition for Mandamus. — When any tribunal,
corporation, board, or person unlawfully neglects the
performance of an act which the law specifically enjoins
as a duty resulting from an office, trust, or station, or
unlawfully excludes another from the use and enjoyment of
a right or office to which such other is entitled, and
there is no other plain, speedy and adequate remedy in
the ordinary course of law, the person aggrieved thereby
may file a verified petition in the proper court alleging
the facts with certainty and praying that judgment be
rendered commanding the defendant, immediately or at some
other specified time, to do the act required to be done
to protect the rights of the petitioner, and to pay the
damages sustained by the petitioner by reason of the
wrongful acts of the defendant."
Upon the other hand, petitioners maintain that since the subject of the petition
concerns a public right and its object is to compel the performance of a public
duty, they need not show any specific interest for their petition to be given due
course.
The issue posed is not one of first impression. As early as the 1910 case of
Severino vs. Governor General[3], this Court held that while the general rule is
that "a writ of mandamus would be granted to a private individual only in those
cases where he has some private or particular interest to be subserved, or some
particular right to be protected, independent of that which he holds with the
public at large," and "it is for the public officers exclusively to apply for the
writ when public rights are to be subserved [Mitchell vs. Boardmen, 79 M.e.,
469]," nevertheless, "when the question is one of public right and the object of
the mandamus is to procure the enforcement of a public duty, the people are
regarded as the real party in interest and the relator at whose instigation the
proceedings are instituted need not show that he has any legal or special
interest in the result, it being sufficient to show that he is a citizen and as such
interested in the execution of the laws [High, Extraordinary Legal Remedies,
3rd ed., sec. 431]."
Thus, in said case, this Court recognized the relator Lope Severino, a private
individual, as a proper party to the mandamus proceedings brought to compel
the Governor General to call a special election for the position of municipal
president in the town of Silay, Negros Occidental. Speaking for this Court, Mr.
Justice Grant T. Trent said:
"We are therefore of the opinion that the weight of
authority supports the proposition that the relator is a
proper party to proceedings of this character when a
public right is sought to be enforced. If the general
rule in America were otherwise, we think that it would
not be applicable to the case at bar for the reason 'that
it is always dangerous to apply a general rule to a
particular case without keeping in mind the reason for
the rule, because, if under the particular circumstances
the reason for the rule does not exist, the rule itself
is not applicable and reliance upon the rule may well
lead to error.'
"No reason exists in the case at bar for applying the

general rule insisted upon by counsel for the
respondent. The circumstances which surround this case
are different from those in the United States, inasmuch
as if the relator is not a proper party to these
proceedings no other person could be, as we have seen
that it is not the duty of the law officer of the
Government to appear and represent the people in cases of
this character."
The reasons given by the Court in recognizing a private citizen's legal
personality in the aforementioned case apply squarely to the present petition.
Clearly, the right sought to be enforced by petitioners herein is a public right
recognized by no less than the fundamental law of the land. If petitioners were
not allowed to institute this proceeding, it would indeed be difficult to conceive
of any other person to initiate the same, considering that the Solicitor General,
the government officer generally empowered to represent the people, has
entered his appearance for respondents in this case.
Respondents further contend that publication in the Official Gazette is not

a sine qua non requirement for the effectivity of laws where the laws
themselves provide for their own effectivity dates. It is thus submitted that
since the presidential issuances in question contain special provisions as to the
date they are to take effect, publication in the Official Gazette is not
indispensable for their effectivity. The point stressed is anchored on Article 2
of the Civil Code:
"Art. 2. Laws shall take effect after fifteen days
following the completion of their publication in the
Official Gazette, unless it is otherwise provided, x x x"
The interpretation given by respondent is in accord with this Court's

construction of said article. In a long line of decisions[4], this Court has ruled
that publication in the Official Gazette is necessary in those cases where the
legislation itself does not provide for its effectivity date — for then the date of
publication is material for determining its date of effectivity, which is the
fifteenth day following its publication — but not when the law itself provides
for the date when it goes into effect.
Respondents' argument, however, is logically correct only insofar as it equates

the effectivity of laws with the fact of publication. Considered in the light of
other statutes applicable to the issue at hand, the conclusion is easily reached
that said Article 2 does not preclude the requirement of publication in the
Official Gazette, even if the law itself provides for the date of its effectivity.
Thus, Section 1 of Commonwealth Act 638 provides as follows:
"Section 1. There shall be published in the Official
Gazette [1] all important legislative acts and
resolutions of a public nature of the Congress of the
Philippines; [2] all executive and administrative orders
and proclamations, except such as have no general
applicability; [3] decisions or abstracts of decisions of
the Supreme Court and the Court of Appeals as may be
deemed by said courts of sufficient importance to be so
published; [4] such documents or classes of documents as
may be required so to be published by law; and [5] such
documents or classes of documents as the President of the
Philippines shall determine from time to time to have
general applicability and legal effect, or which he may
authorize so to be published. x x x"
The clear object of the above-quoted provision is to give the general public
adequate notice of the various laws which are to regulate their actions and
conduct as citizens. Without such notice and publication, there would be no
basis for the application of the maxim "ignorantia legis non excusat." It would
be the height of injustice to punish or otherwise burden a citizen for the
transgression of a law of which he had no notice whatsoever, not even a
constructive one.
Perhaps at no time since the establishment of the Philippine Republic has the
publication of laws taken so vital significance than at this time when the people
have bestowed upon the President a power heretofore enjoyed solely by the
legislature. While the people are kept abreast by the mass media of the debates
and deliberations in the Batasan Pambansa — and for the diligent ones, ready
access to the legislative records — no such publicity accompanies the law-
making process of the President. Thus, without publication, the people have no
means of knowing what presidential decrees have actually been promulgated,
much less a definite way of informing themselves of the specific contents and
texts of such decrees. As the Supreme Court of Spain ruled: "Bajo la
denominación genérica de leyes, se comprenden también los reglamentos,
Reales decretos, Instrucciones, Circulares y Reales ordines dictadas de
conformidad con las mismas por el Gobierno en uso de su potestad."[5]
The very first clause of Section 1 of Commonwealth Act 638 reads: "There
shall be published in the Official Gazette x x x." The word "shall" used therein
imposes upon respondent officials an imperative duty. That duty must be
enforced if the Constitutional right of the people to be informed on matters of
public concern is to be given substance and reality. The law itself makes a list
of what should be published in the Official Gazette. Such listing, to our mind,
leaves respondents with no discretion whatsoever as to what must be included
or excluded from such publication.
The publication of all presidential issuances "of a public nature" or "of general
applicability" is mandated by law. Obviously, presidential decrees that provide
for fines, forfeitures or penalties for their violation or otherwise impose a
burden on the people, such as tax and revenue measures, fall within this
category. Other presidential issuances which apply only to particular persons
or class of persons such as administrative and executive orders need not be
published on the assumption that they have been circularized to all concerned.[6]
It is needless to add that the publication of presidential issuances "of a public

nature" or "of general applicability" is a requirement of due process. It is a rule
of law that before a person may be bound by law, he must first be officially and
specifically informed of its contents. As Justice Claudio Teehankee said in
Peralta vs. COMELEC[7]:
"In a time of proliferating decrees, orders and letters
of instructions which all form part of the law of the
land, the requirement of due process and the Rule of Law
demand that the Official Gazette as the official
government repository promulgate and publish the texts of
all such decrees, orders and instructions so that the
people may know where to obtain their official and
specific contents."
The Court therefore declares that presidential issuances of general application,
which have not been published, shall have no force and effect. Some members
of the Court, quite apprehensive about the possible unsettling effect this
decision might have on acts done in reliance of the validity of those
presidential decrees which were published only during the pendency of this
petition, have put the question as to whether the Court's declaration of
invalidity apply to P.D.s which had been enforced or implemented prior to their
publication. The answer is all too familiar. In similar situations in the past this
Court had taken the pragmatic and realistic course set forth in Chicot County
Drainage District vs. Baxter Bank[8] to wit:
"The courts below have proceeded on the theory that the
Act of Congress, having been found to be
unconstitutional, was not a law; that it was inoperative,
conferring no rights and imposing no duties, and hence
affording no basis for the challenged decree. Norton v.
Shelby County, 118 U.S. 425, 442; Chicago, I. & L. Ry.
Co. v. Hackett, 228 U.S. 559, 566. It is quite clear,
however, that such broad statements as to the effect of a
determination of unconstitutionality must be taken with
qualifications. The actual existence of a statute,
prior to such a determination, is an operative fact and
may have consequences which cannot justly be ignored.
The past cannot always be erased by a new judicial
declaration. The effect of the subsequent ruling as to
invalidity may have to be considered in various aspects -
with respect to particular conduct, private and
official. Questions of rights claimed to have become
vested, of status, of prior determinations deemed to have
finality and acted upon accordingly, of public policy in
the light of the nature both of the statute and of its
previous application, demand examination. These
questions are among the most difficult of those which
have engaged the attention of courts, state and federal,
and it is manifest from numerous decisions that an all-
inclusive statement of a principle of absolute
retroactive invalidity cannot be justified."
Consistently with the above principle, this Court in Rutter vs.
Esteban[9] sustained the right of a party under the Moratorium Law, albeit said
right had accrued in his favor before said law was declared unconstitutional by
this Court.
Similarly, the implementation/enforcement of presidential decrees prior to their

publication in the Official Gazette is "an operative fact which may have
consequences which cannot be justly ignored. The past cannot always be
erased by a new judicial declaration x x x that an all-inclusive statement of a
principle of absolute retroactive invalidity cannot be justified."
From the report submitted to the Court by the Clerk of Court, it appears that of
the presidential decrees sought by petitioners to be published in the Official
Gazette, only Presidential Decrees Nos. 1019 to 1030, inclusive, 1278, and
1937 to 1939, inclusive, have not been so published.[10] Neither the subject
matters nor the texts of these PDs can be ascertained since no copies thereof are
available. But whatever their subject matter may be, it is undisputed that none
of these unpublished PDs has ever been implemented or enforced by the
government. In Pesigan vs. Angeles,[11] the Court, through Justice Ramon
Aquino, ruled that "publication is necessary to apprise the public of the
contents of [penal] regulations and make the said penalties binding on the
persons affected thereby." The cogency of this holding is apparently recognized
by respondent officials considering the manifestation in their comment that "the
government, as a matter of policy, refrains from prosecuting violations of
criminal laws until the same shall have been published in the Official Gazette
or in some other publication, even though some criminal laws provide that they
shall take effect immediately."
WHEREFORE, the Court hereby orders respondents to publish in the Official

Gazette all unpublished presidential issuances which are of general application,
and unless so published, they shall have no binding force and effect.
SO ORDERED.
Relova, J., concurs.

Fernando, J., concurs in a separate opinion expressing the view that without
publication, a due process question may arise but that such publication need not
be in the Official Gazette. To that extent he concurs with the opinion of Justice
Plana.
Teehankee, J., files a brief concurrence.
Makasiar and Abad Santos, JJ., concur in the opinion of Chief Justice
Fernando.
Aquino, J., no part.
Concepcion, Jr., J., on leave.
Melencio-Herrera, J., see separate concurring opinion.
Plana, J., see separate opinion.
Gutierrez, Jr., J., concurs insofar as publication is necessary but reserves his
vote as to the necessity of such publication being in the Official Gazette.
De La Fuente, J., insofar as the opinion declares the unpublished decrees and
issuances of a public nature or general applicability ineffective, until due
publication thereof.
Cuevas and Alampay, JJ., concur in the opinion of the Chief Justice and Justice
Plana.
[1]
"SECTION 6. The right of the people to information on matters of public
concern shall be recognized, access to official records, and to documents and
papers pertaining to official acts, transactions, or decisions, shall be afforded
the citizens subject to such limitation as may be provided by law."
[2]
Anti-Chinese League vs. Felix, 77 Phil. 1012; Costas vs. Aldanese, 45 Phil.
345; Almario vs. City Mayor, 16 SCRA 151; Palting vs. San Jose Petroleum,
18 SCRA 924; Dumlao vs. Comelec, 95 SCRA 392.
[3]
16 Phil. 366, 378.
[4]
Camacho vs. Court of Industrial Relations, 80 Phil. 848; Mejia vs. Balolong,
81 Phil. 486; Republic of the Philippines vs. Encarnacion, 87 Phil. 843;
Philippine Blooming Mills, Inc. vs. Social Security System, 17 SCRA 1077;
Askay vs. Cosalan, 46 Phil. 179.
[5]
1 Manresa, Codigo Civil, 7th Ed., p. 146
[6]
People vs. Que Po Lay, 94 Phil. 640; Balbuena et al. vs. Secretary of
Education, et al., 110 Phil. 150.
[7]
82 SCRA 30, dissenting opinion.
[8]
308 U.S. 371, 374
[9]
93 Phil. 68
[10]
The report was prepared by the Clerk of Court after Acting Director
Florendo S. Pablo Jr. of the Government Printing Office, failed to respond to
her letter-request regarding the respective dates of publication in the Official
Gazette of the presidential issuances listed therein. No report has been
submitted by the Clerk of Court as to the publication or non-publication of
other presidential issuances.
[11]
129 SCRA 174
CONCURRING OPINION WITH QUALIFICATION

FERNANDO, C.J.:
There is on the whole acceptance on my part of the views expressed in the ably
written opinion of Justice Escolin. I am unable, however, to concur insofar as
it would unqualifiedly impose the requirement of publication in the Official
Gazette for unpublished "presidential issuances" to have binding force and
effect.
I shall explain why.
1. It is of course true that without the requisite publication, a due process

question would arise if made to apply adversely to a party who is not even
aware of the existence of any legislative or executive act having the force and
effect of law. My point is that such publication required need not be confined
to the Official Gazette. From the pragmatic standpoint, there is an advantage to
be gained. It conduces to certainty. That is to be admitted. It does not follow,
however, that failure to do so would in all cases and under all circumstances
result in a statute, presidential decree or any other executive act of the same
category being bereft of any binding force and effect. To so hold would, for
me, raise a constitutional question. Such a pronouncement would lend itself to
the interpretation that such a legislative or presidential act is bereft of the
attribute of effectivity unless published in the Official Gazette. There is no
such requirement in the Constitution as Justice Plana so aptly pointed out. It is
true that what is decided now applies only to past "presidential issuances."
Nonetheless, this clarification is, to my mind, needed to avoid any possible
misconception as to what is required for any statute or presidential act to be
impressed with binding force or effectivity.
2. It is quite understandable then why I concur in the separate opinion of

Justice Plana. Its first paragraph sets forth what to me is the constitutional
doctrine applicable to this case. Thus: "The Philippine Constitution does not
require the publication of laws as a prerequisite for their effectivity, unlike
some Constitutions elsewhere. It may be said though that the guarantee of due
process requires notice of laws to affected parties before they can be bound
thereby; but such notice is not necessarily by publication in the Official
Gazette. The due process clause is not that precise."[1] I am likewise in
agreement with its closing paragraph: "In fine, I concur in the majority
decision to the extent that it requires notice before laws become effective, for
no person should be bound by a law without notice. This is elementary
fairness. However, I beg to disagree insofar as it holds that such notice shall be
by publication in the Official Gazette."[2]
3. It suffices, as was stated by Judge Learned Hand, that law as the command
of the government "must be ascertainable in some form if it is to be enforced at
all."[3] It would indeed be to reduce it to the level of mere futility, as pointed out
by Justice Cardozo, "if it is unknown and unknowable.”[4] Publication, to
repeat, is thus essential. What I am not prepared to subscribe to is the doctrine
that it must be in the Official Gazette. To be sure once published therein there
is the ascertainable mode of determining the exact date of its effectivity. Still
for me that does not dispose of the question of what is the jural effect of past
presidential decrees or executive acts not so published. For prior thereto, it
could be that parties aware of their existence could have conducted themselves
in accordance with their provisions. If no legal consequences could attach due
to lack of publication in the Official Gazette, then serious problems could
arise. Previous transactions based on such "Presidential Issuances" could be
open to question. Matters deemed settled could still be inquired into. I am not
prepared to hold that such an effect is contemplated by our decision. Where
such presidential decree or executive act is made the basis of a criminal
prosecution, then, of course, its ex post facto character becomes evident.[5] In
civil cases though, retroactivity as such is not conclusive on the due process
aspect. There must still be a showing of arbitrariness. Moreover, where the
challenged presidential decree or executive act was issued under the police
power, the non-impairment clause of the Constitution may not always be
successfully invoked. There must still be that process of balancing to
determine whether or not it could in such a case be tainted by infirmity.[6] In
traditional terminology, there could arise then a question of unconstitutional
application. That is as far as it goes.
4. Let me make clear therefore that my qualified concurrence goes no further

than to affirm that publication is essential to the effectivity of a legislative or
executive act of a general application. I am not in agreement with the view that
such publication must be in the Official Gazette. The Civil Code itself in its
Article 2 expressly recognizes that the rule as to laws taking effect after fifteen
days following the completion of their publication in the Official Gazette is
subject to this exception, "unless it is otherwise provided." Moreover, the Civil
Code is itself only a legislative enactment, Republic Act No. 386. It does not
and cannot have the juridical force of a constitutional command. A later
legislative or executive act which has the force and effect of law can legally
provide for a different rule.
5. Nor can I agree with the rather sweeping conclusion in the opinion of
Justice Escolin that presidential decrees and executive acts not thus previously
published in the Official Gazette would be devoid of any legal character. That
would be, in my opinion, to go too far. It may be fraught, as earlier noted, with
undesirable consequences. I find myself therefore unable to yield assent to
such a pronouncement.
I am authorized to state that Justices Makasiar, Abad Santos, Cuevas, and

Alampay concur in this separate opinion.
[1]
Separate Opinion of Justice Plana, first paragraph. He mentioned in this
connection Article 7, Sec. 21 of the Wisconsin Constitution and State ex rel.
White v. Grand Superior Ct., 71 ALR 1354, citing the Constitution of Indiana,
U.S.A.
[2]
Ibid, closing paragraph.
[3]
Learned Hand, The Spirit of Liberty 104 (1960).
[4]
Cardozo, The Growth of the Law, 3 (1924).
[5]
Cf. Nuñez v. Sandiganbayan, G.R. No. 50581-50617, January 30, 1982, 111
SCRA 433.
[6]
Cf. Alalayan v. National Power Corporation, L-24396, July 29, 1968, 24
SCRA 172.
CONCURRING OPINION
MELENCIO-HERRERA, J.:
I agree. There cannot be any question but that even if a decree provides for a
date of effectivity, it has to be published. What I would like to state in
connection with that proposition is that when a date of effectivity is mentioned
in the decree but the decree becomes effective only fifteen (15) days after its
publication in the Official Gazette, it will not mean that the decree can have
retroactive effect to the date of effectivity mentioned in the decree itself. There
should be no retroactivity if the retroactivity will run counter to constitutional
rights or shall destroy vested rights.
SEPARATE OPINION
PLANA, J.:
The Philippine Constitution does not require the publication of laws as a

prerequisite for their effectivity, unlike some Constitutions elsewhere.* It may
be said though that the guarantee of due process requires notice of laws to
affected parties before they can be bound thereby; but such notice is not
necessarily by publication in the Official Gazette. The due process clause is
not that precise.
Neither is the publication of laws in the Official Gazette required by any

statute as a prerequisite for their effectivity, if said laws already provide for
their effectivity date.
Article 2 of the Civil Code provides that "laws shall take effect after fifteen
days following the completion of their publication in the Official
Gazette, unless it is otherwise provided.” Two things may be said of this
provision: Firstly, it obviously does not apply to a law with a built-in provision
as to when it will take effect. Secondly, it clearly recognizes that each law may
provide not only a different period for reckoning its effectivity date but also a
different mode of notice. Thus, a law may prescribe that it shall be published
elsewhere than in the Official Gazette.
Commonwealth Act No. 638, in my opinion, does not support the proposition
that for their effectivity, laws must be published in the Official Gazette. The
said law is simply "An Act to Provide for the Uniform Publication and
Distribution of the Official Gazette.” Conformably therewith, it authorizes the
publication of the Official Gazette, determines its frequency, provides for its
sale and distribution, and defines the authority of the Director of Printing in
relation thereto. It also enumerates what shall be published in the Official
Gazette, among them, "important legislative acts and resolutions of a public
nature of the Congress of the Philippines" and "all executive and administrative
orders and proclamations, except such as have no general applicability." It is
noteworthy that not all legislative acts are required to be published in the
Official Gazette but only "important" ones "of a public nature". Moreover, the
said law does not provide that publication in the Official Gazette is essential for
the effectivity of laws. This is as it should be, for all statutes are equal and
stand on the same footing. A law, especially an earlier one of general
application such as Commonwealth Act No. 638, cannot nullify or restrict the
operation of a subsequent statute that has a provision of its own as to when and
how it will take effect. Only a higher law, which is the Constitution, can
assume that role.
In fine, I concur in the majority decision to the extent that it requires notice
before laws become effective, for no person should be bound by a law without
notice. This is elementary fairness. However, I beg to disagree insofar as it
holds that such notice shall be by publication in the Official Gazette.
*
See, e.g., Wisconsin Constitution, Art. 7, Sec. 21: "The legislature shall
provide publication of all statute laws ... and no general law shall be in force
until published." See also State ex rel. White vs. Grand Superior Ct., 71 ALR
1354, citing the Constitution of Indiana, U.S.A.
CONCURRING OPINION
TEEHANKEE, J.:
I concur with the main opinion of Mr. Justice Escolin and the concurring
opinion of Mme. Justice Herrera. The Rule of Law connotes a body of norms
and laws published and ascertainable and of equal application to all similarly
circumstanced and not subject to arbitrary change but only under certain set
procedures. The Court has consistently stressed that "it is an elementary rule of
fair play and justice that a reasonable opportunity to be informed must be
afforded to the people who are commanded to obey before they can be
punished for its violation,"[1] citing the settled principle based on due process
enunciated in earlier cases that "before the public is bound by its contents,
especially its penal provisions, a law, regulation or circular must first be
published and the people officially and specially informed of said contents and
its penalties."
Without official publication in the Official Gazette as required by Article 2 of

the Civil Code and the Revised Administrative Code, there would be no basis
nor justification for the corollary rule of Article 3 of the Civil Code (based on
constructive notice that the provisions of the law are ascertainable from the
public and official repository where they are duly published) that "Ignorance of
the law excuses no one from compliance therewith."
Respondents' contention based on a misreading of Article 2 of the Civil Code

that "only laws which are silent as to their effectivity [date] need be published
in the Official Gazette for their effectivity" is manifestly untenable. The plain
text and meaning of the Civil Code is that "laws shall take effect after fifteen
days following the completion of their publication in the Official
Gazette, unless it is otherwise provided,” i.e. a different effectivity date is
provided by the law itself. This proviso perforce refers to a law that has been
duly published pursuant to the basic constitutional requirements of due
process. The best example of this is the Civil Code itself: the same Article 2
provides otherwise that it "shall take effect [only] one year [not 15 days] after
such publication."[2] To sustain respondents' misreading that "most laws or
decrees specify the date of their effectivity and for this reason, publication in
the Official Gazette is not necessary for their effectivity"[3] would be to nullify
and render nugatory the Civil Code's indispensable and essential requirement
of prior publication in the Official Gazette by the simple expedient of
providing for immediate effectivity or an earlier effectivity date in the law
itself before the completion of 15 days following its publication which is the
period generally fixed by the Civil Code for its proper dissemination.
[1]
People vs. de Dios, G.R. No. 11003, Aug. 31, 1959, per the late Chief Justice
Paras.
[2]
Notes in brackets supplied.
[3]
Respondents' comment, pp. 14-15.
Source: Supreme Court E-Library | Date created: November 25, 2014

680 Phil. 681 ← click for PDF copy
SECOND DIVISION
[ G.R. No. 179579. February 01, 2012 ]
COMMISSIONER OF CUSTOMS AND THE DISTRICT COLLECTOR OF THE
PORT OF SUBIC, PETITIONERS, VS. HYPERMIX FEEDS CORPORATION,
RESPONDENT.
D E C I S I O N
SERENO, J.:
Before us is a Petition for Review under Rule 45,[1] assailing the Decision[2] and
the Resolution[3] of the Court of Appeals (CA), which nullified the Customs
Memorandum Order (CMO) No. 27-2003[4] on the tariff classification of wheat
issued by petitioner Commissioner of Customs.
The antecedent facts are as follows:

On 7 November 2003, petitioner Commissioner of Customs issued CMO 27-
2003. Under the Memorandum, for tariff purposes, wheat was classified
according to the following: (1) importer or consignee; (2) country of origin;
and (3) port of discharge.[5] The regulation provided an exclusive list of
corporations, ports of discharge, commodity descriptions and countries of
origin. Depending on these factors, wheat would be classified either as food
grade or feed grade. The corresponding tariff for food grade wheat was 3%, for
feed grade, 7%.
CMO 27-2003 further provided for the proper procedure for protest or
Valuation and Classification Review Committee (VCRC) cases. Under this
procedure, the release of the articles that were the subject of protest required
the importer to post a cash bond to cover the tariff differential.[6]
A month after the issuance of CMO 27-2003, on 19 December 2003,

respondent filed a Petition for Declaratory Relief [7] with the Regional Trial
Court (RTC) of Las Piñas City. It anticipated the implementation of the
regulation on its imported and perishable Chinese milling wheat in transit from
China.[8] Respondent contended that CMO 27-2003 was issued without
following the mandate of the Revised Administrative Code on public
participation, prior notice, and publication or registration with the University of
the Philippines Law Center.
Respondent also alleged that the regulation summarily adjudged it to be a feed

grade supplier without the benefit of prior assessment and examination; thus,
despite having imported food grade wheat, it would be subjected to the 7%
tariff upon the arrival of the shipment, forcing them to pay 133% more than
was proper.
Furthermore, respondent claimed that the equal protection clause of the

Constitution was violated when the regulation treated non-flour millers
differently from flour millers for no reason at all.
Lastly, respondent asserted that the retroactive application of the regulation

was confiscatory in nature.
On 19 January 2004, the RTC issued a Temporary Restraining Order (TRO)

effective for twenty (20) days from notice.[9]
Petitioners thereafter filed a Motion to Dismiss. [10] They alleged that: (1) the
RTC did not have jurisdiction over the subject matter of the case, because
respondent was asking for a judicial determination of the classification of
wheat; (2) an action for declaratory relief was improper; (3) CMO 27-2003 was
an internal administrative rule and not legislative in nature; and (4) the claims
of respondent were speculative and premature, because the Bureau of Customs
(BOC) had yet to examine respondent's products. They likewise opposed the
application for a writ of preliminary injunction on the ground that they had not
inflicted any injury through the issuance of the regulation; and that the action
would be contrary to the rule that administrative issuances are assumed valid
until declared otherwise.
On 28 February 2005, the parties agreed that the matters raised in the
application for preliminary injunction and the Motion to Dismiss would just be
resolved together in the main case. Thus, on 10 March 2005, the RTC rendered
its Decision[11] without having to resolve the application for preliminary
injunction and the Motion to Dismiss.
The trial court ruled in favor of respondent, to wit:
WHEREFORE, in view of the foregoing, the Petition is

GRANTED and the subject Customs Memorandum Order 27-2003
is declared INVALID and OF NO FORCE AND EFFECT.
Respondents Commissioner of Customs, the District
Collector of Subic or anyone acting in their behalf are
to immediately cease and desist from enforcing the said
Customs Memorandum Order 27-2003.
SO ORDERED.[12]
The RTC held that it had jurisdiction over the subject matter, given that the
issue raised by respondent concerned the quasi-legislative powers of
petitioners. It likewise stated that a petition for declaratory relief was the proper
remedy, and that respondent was the proper party to file it. The court
considered that respondent was a regular importer, and that the latter would be
subjected to the application of the regulation in future transactions.
With regard to the validity of the regulation, the trial court found that
petitioners had not followed the basic requirements of hearing and publication
in the issuance of CMO 27-2003. It likewise held that petitioners had
"substituted the quasi-judicial determination of the commodity by a quasi-
legislative predetermination."[13] The lower court pointed out that a
classification based on importers and ports of discharge were violative of the
due process rights of respondent.
Dissatisfied with the Decision of the lower court, petitioners appealed to the
CA, raising the same allegations in defense of CMO 27-2003.[14] The appellate
court, however, dismissed the appeal. It held that, since the regulation affected
substantial rights of petitioners and other importers, petitioners should have
observed the requirements of notice, hearing and publication.
Hence, this Petition.
Petitioners raise the following issues for the consideration of this Court:
1. THE COURT OF APPEALS DECIDED A QUESTION OF
SUBSTANCE WHICH IS NOT IN ACCORD WITH THE LAW AND
PREVAILING JURISPRUDENCE.
2. THE COURT OF APPEALS GRAVELY ERRED IN DECLARING
THAT THE TRIAL COURT HAS JURISDICTION OVER THE
CASE.
The Petition has no merit.
We shall first discuss the propriety of an action for declaratory relief.
Rule 63, Section 1 provides:
Who may file petition. - Any person interested under a

deed, will, contract or other written instrument, or
whose rights are affected by a statute, executive order
or regulation, ordinance, or any other governmental
regulation may, before breach or violation thereof, bring
an action in the appropriate Regional Trial Court to
determine any question of construction or validity
arising, and for a declaration of his rights or duties,
thereunder.
The requirements of an action for declaratory relief are as follows: (1) there
must be a justiciable controversy; (2) the controversy must be between persons
whose interests are adverse; (3) the party seeking declaratory relief must have a
legal interest in the controversy; and (4) the issue involved must be ripe for
judicial determination.[15] We find that the Petition filed by respondent before
the lower court meets these requirements.
First, the subject of the controversy is the constitutionality of CMO 27-2003

issued by petitioner Commissioner of Customs. In Smart Communications v.
NTC,[16] we held:
The determination of whether a specific rule or set of

rules issued by an administrative agency contravenes the
law or the constitution is within the jurisdiction of the
regular courts. Indeed, the Constitution vests the power
of judicial review or the power to declare a law, treaty,
international or executive agreement, presidential
decree, order, instruction, ordinance, or regulation in
the courts, including the regional trial courts. This is
within the scope of judicial power, which includes the
authority of the courts to determine in an appropriate
action the validity of the acts of the political
departments. Judicial power includes the duty of the
courts of justice to settle actual controversies
involving rights which are legally demandable and
enforceable, and to determine whether or not there has
been a grave abuse of discretion amounting to lack or
excess of jurisdiction on the part of any branch or
instrumentality of the Government. (Emphasis supplied)
Meanwhile, in Misamis Oriental Association of Coco Traders, Inc. v.

Department of Finance Secretary,[17] we said:
xxx [A] legislative rule is in the nature of subordinate

legislation, designed to implement a primary legislation
by providing the details thereof. xxx
In addition such rule must be published. On the other

hand, interpretative rules are designed to provide
guidelines to the law which the administrative agency is
in charge of enforcing.
Accordingly, in considering a legislative rule a court is

free to make three inquiries:(i) whether the rule is
within the delegated authority of the administrative
agency; (ii) whether it is reasonable;
and (iii) whether it was issued pursuant to proper
procedure. But the court is not free to substitute its
judgment as to the desirability or wisdom of the rule for
the legislative body, by its delegation of administrative
judgment, has committed those questions to administrative
judgments and not to judicial judgments. In the case of
an interpretative rule, the inquiry is not into the
validity but into the correctness or propriety of the
rule. As a matter of power a court, when confronted with
an interpretative rule, is free to (i) give the force
of law to the rule; (ii) go to the opposite extreme and
substitute its judgment; or (iii) give some
intermediate degree of authoritative weight to the
interpretative rule. (Emphasis supplied)
Second, the controversy is between two parties that have adverse interests.
Petitioners are summarily imposing a tariff rate that respondent is refusing to
pay.
Third, it is clear that respondent has a legal and substantive interest in the
implementation of CMO 27-2003. Respondent has adequately shown that, as a
regular importer of wheat, on 14 August 2003, it has actually made shipments
of wheat from China to Subic. The shipment was set to arrive in December
2003. Upon its arrival, it would be subjected to the conditions of CMO 27-
2003. The regulation calls for the imposition of different tariff rates, depending
on the factors enumerated therein. Thus, respondent alleged that it would be
made to pay the 7% tariff applied to feed grade wheat, instead of the 3% tariff
on food grade wheat. In addition, respondent would have to go through the
procedure under CMO 27-2003, which would undoubtedly toll its time and
resources. The lower court correctly pointed out as follows:
xxx As noted above, the fact that petitioner is precisely

into the business of importing wheat, each and every
importation will be subjected to constant disputes which
will result into (sic) delays in the delivery, setting
aside of funds as cash bond required in the CMO as well
as the resulting expenses thereof. It is easy to see that
business uncertainty will be a constant occurrence for
petitioner. That the sums involved are not minimal is
shown by the discussions during the hearings conducted as
well as in the pleadings filed. It may be that the
petitioner can later on get a refund but such has been
foreclosed because the Collector of Customs and the
Commissioner of Customs are bound by their own CMO.
Petitioner cannot get its refund with the said agency. We
believe and so find that Petitioner has presented such a
stake in the outcome of this controversy as to vest it
with standing to file this petition.[18] (Emphasis
supplied)
Finally, the issue raised by respondent is ripe for judicial determination,

because litigation is inevitable[19] for the simple and uncontroverted reason that
respondent is not included in the enumeration of flour millers classified as food
grade wheat importers. Thus, as the trial court stated, it would have to file a
protest case each time it imports food grade wheat and be subjected to the 7%
tariff.
It is therefore clear that a petition for declaratory relief is the right remedy
given the circumstances of the case.
Considering that the questioned regulation would affect the substantive rights
of respondent as explained above, it therefore follows that petitioners should
have applied the pertinent provisions of Book VII, Chapter 2 of the Revised
Administrative Code, to wit:
Section 3. Filing. - (1) Every agency shall file with

the University of the Philippines Law Center three (3)
certified copies of every rule adopted by it. Rules in
force on the date of effectivity of this Code which are
not filed within three (3) months from that date shall
not thereafter be the bases of any sanction against any
party of persons.
xxx xxx xxx
Section 9. Public Participation. - (1) If not otherwise

required by law, an agency shall, as far as practicable,
publish or circulate notices of proposed rules and afford
interested parties the opportunity to submit their views
prior to the adoption of any rule.
(2) In the fixing of rates, no rule or final order shall

be valid unless the proposed rates shall have been
published in a newspaper of general circulation at least
two (2) weeks before the first hearing thereon.
(3) In case of opposition, the rules on contested cases

shall be observed.
When an administrative rule is merely interpretative in nature, its applicability

needs nothing further than its bare issuance, for it gives no real consequence
more than what the law itself has already prescribed. When, on the other hand,
the administrative rule goes beyond merely providing for the means that can
facilitate or render least cumbersome the implementation of the law but
substantially increases the burden of those governed, it behooves the agency to
accord at least to those directly affected a chance to be heard, and thereafter to
be duly informed, before that new issuance is given the force and effect of law.
[20]
Likewise, in Tañada v. Tuvera,[21] we held:
The clear object of the above-quoted provision is to give

the general public adequate notice of the various laws
which are to regulate their actions and conduct as
citizens. Without such notice and publication, there
would be no basis for the application of the maxim
"ignorantia legis non excusat." It would be the height
of injustice to punish or otherwise burden a citizen for
the transgression of a law of which he had no notice
whatsoever, not even a constructive one.
Perhaps at no time since the establishment of the

Philippine Republic has the publication of laws taken so
vital significance that at this time when the people have
bestowed upon the President a power heretofore enjoyed
solely by the legislature. While the people are kept
abreast by the mass media of the debates and
deliberations in the Batasan Pambansa - and for the
diligent ones, ready access to the legislative records -
no such publicity accompanies the law-making process of
the President. Thus, without publication, the people
have no means of knowing what presidential decrees have
actually been promulgated, much less a definite way of
informing themselves of the specific contents and texts
of such decrees. (Emphasis supplied)
Because petitioners failed to follow the requirements enumerated by the
Revised Administrative Code, the assailed regulation must be struck down.
Going now to the content of CMO 27-3003, we likewise hold that it is

unconstitutional for being violative of the equal protection clause of the
Constitution.
The equal protection clause means that no person or class of persons shall be
deprived of the same protection of laws enjoyed by other persons or other
classes in the same place in like circumstances. Thus, the guarantee of the
equal protection of laws is not violated if there is a reasonable classification.
For a classification to be reasonable, it must be shown that (1) it rests on
substantial distinctions; (2) it is germane to the purpose of the law; (3) it is not
limited to existing conditions only; and (4) it applies equally to all members of
the same class.[22]
Unfortunately, CMO 27-2003 does not meet these requirements. We do not see
how the quality of wheat is affected by who imports it, where it is discharged,
or which country it came from.
Thus, on the one hand, even if other millers excluded from CMO 27-2003 have
imported food grade wheat, the product would still be declared as feed grade
wheat, a classification subjecting them to 7% tariff. On the other hand, even if
the importers listed under CMO 27-2003 have imported feed grade wheat, they
would only be made to pay 3% tariff, thus depriving the state of the taxes due.
The regulation, therefore, does not become disadvantageous to respondent
only, but even to the state.
It is also not clear how the regulation intends to "monitor more closely wheat
importations and thus prevent their misclassification." A careful study of CMO
27-2003 shows that it not only fails to achieve this end, but results in the
opposite. The application of the regulation forecloses the possibility that other
corporations that are excluded from the list import food grade wheat; at the
same time, it creates an assumption that those who meet the criteria do not
import feed grade wheat. In the first case, importers are unnecessarily burdened
to prove the classification of their wheat imports; while in the second, the state
carries that burden.
Petitioner Commissioner of Customs also went beyond his powers when the
regulation limited the customs officer's duties mandated by Section 1403 of the
Tariff and Customs Law, as amended. The law provides:
Section 1403. - Duties of Customs Officer Tasked to

Examine, Classify, and Appraise Imported Articles. - The
customs officer tasked to examine, classify, and appraise
imported articles shall determine whether the packages
designated for examination and their contents are in
accordance with the declaration in the entry, invoice and
other pertinent documents and shall make return in such a
manner as to indicate whether the articles have been
truly and correctly declared in the entry as regard their
quantity, measurement, weight, and tariff classification
and not imported contrary to law. He shall submit
samples to the laboratory for analysis when feasible to
do so and when such analysis is necessary for the proper
classification, appraisal, and/or admission into the
Philippines of imported articles.
Likewise, the customs officer shall determine the unit

of quantity in which they are usually bought and sold,
and appraise the imported articles in accordance with
Section 201 of this Code.
Failure on the part of the customs officer to comply with

his duties shall subject him to the penalties prescribed
under Section 3604 of this Code.
The provision mandates that the customs officer must first assess and
determine the classification of the imported article before tariff may be
imposed. Unfortunately, CMO 23-2007 has already classified the article even
before the customs officer had the chance to examine it. In effect, petitioner
Commissioner of Customs diminished the powers granted by the Tariff and
Customs Code with regard to wheat importation when it no longer required the
customs officer's prior examination and assessment of the proper classification
of the wheat.
It is well-settled that rules and regulations, which are the product of a delegated
power to create new and additional legal provisions that have the effect of law,
should be within the scope of the statutory authority granted by the legislature
to the administrative agency. It is required that the regulation be germane to the
objects and purposes of the law; and that it be not in contradiction to, but in
conformity with, the standards prescribed by law.[23]
In summary, petitioners violated respondent's right to due process in the

issuance of CMO 27-2003 when they failed to observe the requirements under
the Revised Administrative Code. Petitioners likewise violated respondent's
right to equal protection of laws when they provided for an unreasonable
classification in the application of the regulation. Finally, petitioner
Commissioner of Customs went beyond his powers of delegated authority
when the regulation limited the powers of the customs officer to examine and
assess imported articles.
WHEREFORE, in view of the foregoing, the Petition is DENIED.

SO ORDERED.
Carpio, (Chairperson), Brion, Perez, and Reyes, JJ., concur.
[1]
Rollo, pp. 124-142.
[2]
Id. at 33-46.
[3]
Id. at 47.
[4]
Records, pp. 16-18.
[5]
SUBJECT: Tariff Classification of Wheat
In order to monitor more closely wheat importations and thus prevent their
misclassification, the following are hereby prescribed:
1. For tariff purposes, wheat shall be classified as

follows:
1.1 Under HS 1001.9090 (Food Grade) when all the

following elements are present:
1.1.1 the importer/consignee of the imported

wheat is a flour miller as per attached list
(Annex À'), which shall form as integral part
of this Order
1.1.2 the wheat importation consists of any of
those listed in Annex À' according to the
country of origin indicated therein
1.1.3 the wheat importation is entered/unloaded
in the Port of Discharge indicated opposite the
name of the flour miller, as per Annex À'
1.2 Under HS 1001.9010 (Feed Grade)
1.2.1 When any or all of the elements

prescribed under 1.1 above is not present.
1.2.2 All other wheat importations by non-flour

millers, i.e., importers/consignees NOT listed
in Annex À'
[6]
SUBJECT: Tariff Classification of Wheat
xxx xxx xxx
2. Any issue arising from this Order shall be resolved in an appropriate protest
or VCRC case.
3. In case of a VCRC case, the following applies:
3.1 The shipment may qualify for Tentative Release upon payment of the
taxes and duties as per declaration and the posting of cash bond to cover
the tariff differential.
3.2 The Tentative Release granted by the VCRC shall, prior to the release
of the shipment from Customs custody, be subject to representative. For
this purpose, the District/Port Collector concerned shall forward to the
Office of the Commissioner the Tentative Release papers, together with
all pertinent shipping and supporting documents, including, but not
limited to, contract of sale, phytosanitary certificate and certificate of
quality.
In the case of Outports, the required documents shall be faxed to the Office of
the Commissioner of Customs to any of these numbers: 527-1953/527-4573.
3.3 In resolving the classification issue, the VCRC shall consider the
import/consignee, type/source of wheat and port of discharge of the
wheat importation, as indicated in Annex À', and require the
proofs/evidences (sic), including, but not limited to, proofs of sale or
consumption of said wheat importation, certificate of quality issued by
manufacturing country and contract of sale.
3.4 Any VCRC decision adverse to the government shall be subject to

automatic review by the Commissioner of Customs.
[7]
Rollo¸ pp. 158-168.
[8]
Records, p. 12.
[9]
Rollo, pp. 58-59.
[10]
Id. at 60-78.
[11]
Id. at 108-114; penned by Judge Romeo C. De Leon.
[12]
Id. at 114.
[13]
Id. at 112.
[14]
Id. at 117-122.
[15]
Tolentino v. Board of Accountancy, 90 Phil. 83 (1951).
[16]
456 Phil. 145 (2003).
[17]
G.R. No. 108524,10 November 1994, 238 SCRA 63, 69-70.
[18]
Rollo, p. 112.
[19]
Office of the Ombudsman v. Ibay, 416 Phil. 659 (2001).
[20]
CIR v. Michel J. Lhuiller Pawnshop Inc., 453 Phil. 1043 (2003).
[21]
220 Phil. 422 (1985).
[22]
Philippine Rural Electric Cooperatives Association, Inc. v. DILG, 451 Phil.
683 (2003).
[23]
Romulo, Mabanta, Buenaventura, Sayoc & De los Angeles v. Home
Development Mutual Fund, 389 Phil. 296 (2000).
Source: Supreme Court E-Library | Date created: June 10, 2015

453 Phil. 1043

FIRST DIVISION
[ G.R. No. 150947. July 15, 2003 ]
COMMISSIONER OF INTERNAL REVENUE, PETITIONER, VS. MICHEL J.
LHUILLIER PAWNSHOP, INC., RESPONDENT.
D E C I S I O N
DAVIDE JR., C.J.:
Are pawnshops included in the term lending investors for the purpose of
imposing the 5% percentage tax under then Section 116 of the National Internal
Revenue Code (NIRC) of 1977, as amended by Executive Order No. 273?
Petitioner Commissioner of Internal Revenue (CIR) filed the instant petition for
review to set aside the decision[1] of 20 November 2001 of the Court of Appeals
in CA G.R. SP No. 62463, which affirmed the decision of 13 December 2000
of the Court of Tax Appeals (CTA) in CTA Case No. 5690 cancelling the
assessment issued against respondent Michel J. Lhuillier Pawnshop, Inc.
(hereafter Lhuillier) in the amount of P3,360,335.11 as deficiency percentage
tax for 1994, inclusive of interest and surcharges.
The facts are as follows:
On 11 March 1991, CIR Jose U. Ong issued Revenue Memorandum Order

(RMO) No. 15-91 imposing a 5% lending investor's tax on pawnshops; thus:
A restudy of P.D. [No.] 114 shows that the principal
activity of pawnshops is lending money at interest and
incidentally accepting a "pawn" of personal property
delivered by the pawner to the pawnee as security for the
loan.(Sec. 3, Ibid). Clearly, this makes pawnshop
business akin to lending investor's business activity
which is broad enough to encompass the business of
lending money at interest by any person whether natural
or juridical. Such being the case, pawnshops shall be
subject to the 5% lending investor's tax based on their
gross income pursuant to Section 116 of the Tax Code, as
amended.
This RMO was clarified by Revenue Memorandum Circular (RMC) No. 43-91
on 27 May 1991, which reads:
1. RM[O] 15-91 dated March 11, 1991.
This Circular subjects to the 5% lending

investor's tax the gross income of pawnshops
pursuant to Section 116 of the Tax Code, and
it thus revokes BIR Ruling No[]. 6-90, and
VAT Ruling Nos. 22-90 and 67-90. In order to
have a uniform cut-off date, avoid unfairness
on the part of taxpayers if they are
required to pay the tax on past transactions,
and so as to give meaning to the express
provisions of Section 246 of the Tax Code,
pawnshop owners or operators shall become
liable to the lending investor's tax on their
gross income beginning January 1, 1991. Since
the deadline for the filing of percentage tax
return (BIR Form No. 2529A-0) and the payment
of the tax on lending investors covering the
first calendar quarter of 1991 has already
lapsed, taxpayers are given up to June 30,
1991 within which to pay the said tax without
penalty. If the tax is paid after June 30,
1991, the corresponding penalties shall be
assessed and computed from April 21, 1991.
Since pawnshops are considered as lending

investors effective January 1, 1991, they
also become subject to documentary stamp
taxes prescribed in Title VII of the Tax
Code. BIR Ruling No. 325-88 dated July 13,
1988 is hereby revoked.
On 11 September 1997, pursuant to these issuances, the Bureau of Internal
Revenue (BIR) issued Assessment Notice No. 81-PT-13-94-97-9-118 against
Lhuillier demanding payment of deficiency percentage tax in the sum of
P3,360,335.11 for 1994 inclusive of interest and surcharges.
On 3 October 1997, Lhuillier filed an administrative protest with the Office of

the Revenue Regional Director contending that (1) neither the Tax Code nor
the VAT Law expressly imposes 5% percentage tax on the gross income of
pawnshops; (2) pawnshops are different from lending investors, which are
subject to the 5% percentage tax under the specific provision of the Tax Code;
(3) RMO No. 15-91 is not implementing any provision of the Internal Revenue
laws but is a new and additional tax measure on pawnshops, which only
Congress could enact; (4) RMO No. 15-91 impliedly amends the Tax Code and
is therefore taxation by implication, which is proscribed by law; and (5) RMO
No. 15-91 is a "class legislation" because it singles out pawnshops among other
lending and financial operations.
On 12 October 1998, Deputy BIR Commissioner Romeo S. Panganiban issued

Warrant of Distraint and/or Levy No. 81-043-98 against Lhuillier's property for
the enforcement and payment of the assessed percentage tax.
Its protest having been unacted upon, Lhuillier, in a letter dated 3 March 1998,
elevated the matter to the CIR. Still, the protest was not acted upon by the CIR.
Thus, on 11 November 1998, Lhuillier filed a "Notice and Memorandum on
Appeal" with the Court of Tax Appeals invoking Section 228 of Republic Act
No. 8424, otherwise known as the Tax Reform Act of 1997, which provides:
Section 228. Protesting of Assessment. ...
If the protest is denied in whole or in part, or is not

acted upon within one hundred eighty (180) days from
submission of documents, the taxpayer adversely affected
by the decision or inaction may appeal to the Court of
Tax Appeals within thirty (30) days from receipt of the
said decision, or from the lapse of the one hundred
eighty (180)-day period; otherwise, the decision shall
become final, executory and demandable.
The case was docketed as CTA Case No. 5690.
On 19 November 1998, the CIR filed with the CTA a motion to dismiss
Lhuillier's petition on the ground that it did not state a cause of action, as there
was no action yet on the protest.
Lhuillier opposed the motion to dismiss and moved for the issuance of a writ of
preliminary injunction praying that the BIR be enjoined from enforcing the
warrant of distraint and levy.
For Lhuillier's failure to appear on the scheduled date of hearing, the CTA
denied the motion for the issuance of a writ of preliminary injunction.
However, on Lhuillier's motion for reconsideration, said denial was set aside
and a hearing on the motion for the issuance of a writ of preliminary injunction
was set.
On 30 June 1999, after due hearing, the CTA denied the CIR's motion to
dismiss and granted Lhuillier's motion for the issuance of a writ of preliminary
injunction.
On 13 December 2000, the CTA rendered a decision declaring (1) RMO No.
15-91 and RMC No. 43-91 null and void insofar as they classify pawnshops as
lending investors subject to 5% percentage tax; and (2) Assessment Notice No.
81-PT-13-94-97-9-118 as cancelled, withdrawn, and with no force and effect.[2]
Dissatisfied, the CIR filed a petition for review with the Court of Appeals
praying that the aforesaid decision be reversed and set aside and another one be
rendered ordering Lhuillier to pay the 5% lending investor's tax for 1994 with
interests and surcharges.
Upon due consideration of the issues presented by the parties in their respective
memoranda, the Court of Appeals affirmed the CTA decision on 20 November
2001.
The CIR is now before this Court via this petition for review on certiorari,
alleging that the Court of Appeals erred in holding that pawnshops are not
subject to the 5% lending investor's tax. He invokes then Section 116 of the
Tax Code, which imposed a 5% percentage tax on lending investors. He argues
that the legal definition of lending investors provided in Section 157 (u) of the
Tax Code is broad enough to include pawnshop operators. Section 3 of
Presidential Decree No. 114 states that the principal business activity of a
pawnshop is lending money; thus, a pawnshop easily falls under the legal
definition of lending investors. RMO No. 15-91 and RMC No. 43-91, which
subject pawnshops to the 5% lending investor's tax based on their gross
income, are valid. Being mere interpretations of the NIRC, they need not be
published. Lastly, the CIR invokes the case of Commissioner of Internal
Revenue vs. Agencia Exquisite of Bohol, Inc.,[3] where the Court of Appeals'
Special Fourteenth Division ruled that a pawnshop is subject to the 5% lending
investor's tax.[4]
Lhuillier, on the other hand, maintains that before and after the amendment of
the Tax Code by E.O. No. 273, which took effect on 1 January 1988,
pawnshops and lending investors were subjected to different tax treatments.
Pawnshops were required to pay an annual fixed tax of only P1,000, while
lending investors were subject to a 5% percentage tax on their gross income in
addition to their fixed annual taxes. Accordingly, during the period from April
1982 up to December 1990, the CIR consistently ruled that a pawnshop is not a
lending investor and should not therefore be required to pay percentage tax on
its gross income.
Lhuillier likewise asserts that RMO No. 15-91 and RMC No. 43-91 are not
implementing rules but are new and additional tax measures, which only
Congress is empowered to enact. Besides, they are invalid because they have
never been published in the Official Gazette or any newspaper of general
circulation.
Lhuillier further points out that pawnshops are strictly regulated by the Central
Bank pursuant to P.D. No. 114, otherwise known as The Pawnshop Regulation
Act. On the other hand, there is no special law governing lending investors.
Due to the wide differences between the two, pawnshops had never been
considered as lending investors for tax purposes. In fact, in 1994, Congress
passed House Bill No. 11197,[5] which attempted to amend Section 116 of the
NIRC, as amended, to include owners of pawnshops as among those subject to
percentage tax. However, the Senate Bill and the subsequent Bicameral
Committee version, which eventually became the E-VAT Law, did not
incorporate such proposed amendment.
Lastly, Lhuillier argues that following the maxim in statutory

construction "expressio unius est exclusio alterius," it was not the intention of
the Legislature to impose percentage taxes on pawnshops because if it were so,
pawnshops would have been included as among the businesses subject to the
said tax. Inasmuch as revenue laws impose special burdens upon taxpayers, the
enforcement of such laws should not be extended by implication beyond the
clear import of the language used.
We are therefore called upon to resolve the issue of whether pawnshops are
subject to the 5% lending investor's tax. Corollary to this issue are the
following questions: (1) Are RMO No. 15-91 and RMC No. 43-91 valid? (2)
Were they issued to implement Section 116 of the NIRC of 1977, as amended?
(3) Are pawnshops considered "lending investors" for the purpose of the
imposition of the lending investor's tax? (4) Is publication necessary for the
validity of RMO No. 15-91 and RMC No. 43-91.
RMO No. 15-91 and RMC No. 43-91 were issued in accordance with the
power of the CIR to make rulings and opinions in connection with the
implementation of internal revenue laws, which was bestowed by then Section
245 of the NIRC of 1977, as amended by E.O. No. 273.[6] Such power of the
CIR cannot be controverted. However, the CIR cannot, in the exercise of such
power, issue administrative rulings or circulars not consistent with the law
sought to be applied. Indeed, administrative issuances must not override,
supplant or modify the law, but must remain consistent with the law they intend
to carry out. Only Congress can repeal or amend the law.[7]
The CIR argues that both issuances are mere rules and regulations
implementing then Section 116 of the NIRC, as amended, which provided:
SEC. 116. Percentage tax on dealers in securities;
lending investors. - Dealers in securities and lending
investors shall pay a tax equivalent to six (6) per
centum of their gross income. Lending investors shall
pay a tax equivalent to five (5%) percent of their gross
income.
It is clear from the aforequoted provision that pawnshops are not specifically
included. Thus, the question is whether pawnshops are considered lending
investors for the purpose of imposing percentage tax.
We rule in the negative.
Incidentally, we observe that both parties, as well as the Court of Tax Appeals
and the Court of Appeals, refer to the National Internal Revenue Code as the
Tax Code. They did not specify whether the provisions they cited were taken
from the NIRC of 1977, as amended, or the NIRC of 1986, as amended. For
clarity, it must be pointed out that the NIRC of 1977 as renumbered and
rearranged by E.O. No. 273 is a later law than the NIRC of 1986, as amended
by P.D. Nos. 1991, 1994, 2006 and 2031. The citation of the specific Code is
important for us to determine the intent of the law.
Under Section 157(u) of the NIRC of 1986, as amended, the term lending
investor includes "all persons who make a practice of lending money for
themselves or others at interest." A pawnshop, on the other hand, is defined
under Section 3 of P.D. No. 114 as "a person or entity engaged in the business
of lending money on personal property delivered as security for loans and shall
be synonymous, and may be used interchangeably, with pawnbroker or pawn
brokerage."
While it is true that pawnshops are engaged in the business of lending money,
they are not considered "lending investors" for the purpose of imposing the 5%
percentage taxes for the following reasons:
First. Under Section 192, paragraph 3, sub-paragraphs (dd) and (ff), of the
NIRC of 1977, prior to its amendment by E.O. No. 273, as well as Section 161,
paragraph 2, sub-paragraphs (dd) and (ff), of the NIRC of 1986, pawnshops
and lending investors were subjected to different tax treatments; thus:
(3) Other Fixed Taxes. - The following fixed taxes shall
be collected as follows, the amount stated being for the
whole year, when not otherwise specified:
....
(dd) Lending investors -
1. In chartered cities and first class municipalities,

one thousand pesos;
2. In second and third class municipalities, five
hundred pesos;
3. In fourth and fifth class municipalities and
municipal districts, two hundred fifty
pesos: Provided, That lending investors who do
business as such in more than one province shall
pay a tax of one thousand pesos.
....
(ff) Pawnshops, one thousand pesos (underscoring ours)

Second. Congress never intended pawnshops to be treated in the same way as
lending investors. Section 116 of the NIRC of 1977, as renumbered and
rearranged by E.O. No. 273, was basically lifted from Section 175[8] of the
NIRC of 1986, which treated both tax subjects differently. Section 175 of the
latter Code read as follows:
Sec. 175. Percentage tax on dealers in securities,
lending investors. -- Dealers in securities shall pay a
tax equivalent to six (6%) percent of their gross income.
Lending investors shall pay a tax equivalent to five (5%)
percent of their gross income. (As amended by P.D. No.
1739, P.D. No. 1959 and P.D. No. 1994).
We note that the definition of lending investors found in Section 157 (u) of the
NIRC of 1986 is not found in the NIRC of 1977, as amended by E.O. No. 273,
where Section 116 invoked by the CIR is found. However, as emphasized
earlier, both the NIRC of 1986 and the NIRC of 1977 dealt with pawnshops
and lending investors differently. Verily then, it was the intent of Congress to
deal with both subjects differently. Hence, we must likewise interpret the
statute to conform with such legislative intent.
Third. Section 116 of the NIRC of 1977, as amended by E.O. No. 273, subjects
to percentage tax dealers in securities and lending investors only. There is no
mention of pawnshops. Under the maxim expressio unius est exclusio
alterius, the mention of one thing implies the exclusion of another thing not
mentioned. Thus, if a statute enumerates the things upon which it is to operate,
everything else must necessarily and by implication be excluded from its
operation and effect.[9] This rule, as a guide to probable legislative intent, is
based upon the rules of logic and natural workings of the human mind.[10]
Fourth. The BIR had ruled several times prior to the issuance of RMO No. 15-
91 and RMC 43-91 that pawnshops were not subject to the 5% percentage tax
imposed by Section 116 of the NIRC of 1977, as amended by E.O. No. 273.
This was even admitted by the CIR in RMO No. 15-91 itself. Considering that
Section 116 of the NIRC of 1977, as amended, was practically lifted from
Section 175 of the NIRC of 1986, as amended, and there being no change in
the law, the interpretation thereof should not have been altered.
It may not be amiss to state that, as pointed out by the respondent, pawnshops
was sought to be included as among those subject to 5% percentage tax by
House Bill No. 11197 in 1994. Section 13 thereof reads:
Section 13. Section 116 of the National Internal Revenue
Code, as amended, is hereby further amended to read as
follows:
"SEC. 116. Percentage tax on dealers in
securities; lending investors; OWNERS OF
PAWNSHOPS; FOREIGN CURRENCY DEALERS AND/OR
MONEY CHANGERS. - Dealers in securities shall
pay a tax equivalent to Six (6%) per centum
of their gross income. Lending investors,
OWNERS OF PAWNSHOPS AND FOREIGN CURRENCY
DEALERS AND/OR MONEY CHANGERS shall pay a tax
equivalent to Five (5%) percent of their
gross income."
If pawnshops were covered within the term lending investor, there would have
been no need to introduce such amendment to include owners of pawnshops.
At any rate, such proposed amendment was not adopted. Instead, the approved
bill which became R.A. No. 7716[11] repealed Section 116 of NIRC of 1977, as
amended, which was the basis of RMO No. 15-91 and RMC No. 43-91; thus:
SEC. 20. Repealing Clauses. -- The provisions of any
special law relative to the rate of franchise taxes are
hereby expressly repealed. Sections 113, 114 and 116 of
the National Internal Revenue Code are hereby repealed.
Section 21 of the same law provides that the law shall take effect fifteen (15)
days after its complete publication in the Official Gazette or in at least two (2)
national newspapers of general circulation whichever comes earlier. R.A. No.
7716 was published in the Official Gazette on 1 August 1994[12]; in the Journal
and Malaya newspapers, on 12 May 1994; and in the Manila Bulletin, on 5
June 1994. Thus, R.A. No. 7716 is deemed effective on 27 May 1994.
Since Section 116 of the NIRC of 1977, which breathed life on the questioned
administrative issuances, had already been repealed, RMO 15-91 and RMC 43-
91, which depended upon it, are deemed automatically repealed. Hence, even
granting that pawnshops are included within the term lending investors, the
assessment from 27 May 1994 onward would have no leg to stand on.
Adding to the invalidity of the RMC No. 43-91 and RMO No. 15-91 is the
absence of publication. While the rule-making authority of the CIR is not
doubted, like any other government agency, the CIR may not disregard legal
requirements or applicable principles in the exercise of quasi-legislative
powers.
Let us first distinguish between two kinds of administrative issuances:

the legislative rule and the interpretative rule. A legislative rule is in the nature
of subordinate legislation, designed to implement a primary legislation by
providing the details thereof. An interpretative rule, on the other hand, is
designed to provide guidelines to the law which the administrative agency is in
charge of enforcing.[13]
In Misamis Oriental Association of Coco Traders, Inc. vs. Department of

Finance Secretary,[14] this Tribunal ruled:
... In the same way that laws must have the benefit of
public hearing, it is generally required that before a
legislative rule is adopted there must be hearing. In
this connection, the Administrative Code of 1987
provides:
Public Participation. - If not otherwise required by law,

an agency shall, as far as practicable, publish or
circulate notices of proposed rules and afford interested
parties the opportunity to submit their views prior to
the adoption of any rule.
(2) In the fixing of rates, no rule or final order shall be valid unless the proposed
rates shall have been published in a newspaper of general circulation at least
two weeks before the first hearing thereon.
(3) In case of opposition, the rules on contested cases shall be

observed.
In addition, such rule must be published.

When an administrative rule is merely interpretative in nature, its applicability
needs nothing further than its bare issuance, for it gives no real consequence
more than what the law itself has already prescribed. When, on the other hand,
the administrative rule goes beyond merely providing for the means that can
facilitate or render least cumbersome the implementation of the law but
substantially increases the burden of those governed, it behooves the agency to
accord at least to those directly affected a chance to be heard, and thereafter to
be duly informed, before that new issuance is given the force and effect of law.
[15]
RMO No. 15-91 and RMC No. 43-91 cannot be viewed simply as
implementing rules or corrective measures revoking in the process the previous
rulings of past Commissioners. Specifically, they would have been amendatory
provisions applicable to pawnshops. Without these disputed CIR issuances,
pawnshops would not be liable to pay the 5% percentage tax, considering that
they were not specifically included in Section 116 of the NIRC of 1977, as
amended. In so doing, the CIR did not simply interpret the law. The due
observance of the requirements of notice, hearing, and publication should not
have been ignored.
There is no need for us to discuss the ruling in CA-G.R. SP No. 59282

entitled Commissioner of Internal Revenue v. Agencia Exquisite of Bohol Inc.,
which upheld the validity of RMO No. 15-91 and RMC No. 43-91. Suffice it to
say that the judgment in that case cannot be binding upon the Supreme Court
because it is only a decision of the Court of Appeals. The Supreme Court, by
tradition and in our system of judicial administration, has the last word on what
the law is; it is the final arbiter of any justifiable controversy. There is only one
Supreme Court from whose decisions all other courts should take their
bearings.[16]
In view of the foregoing, RMO No. 15-91 and RMC No. 43-91 are hereby
declared null and void. Consequently, Lhuillier is not liable to pay the 5%
lending investor's tax.
WHEREFORE, the petition is hereby DISMISSED for lack of merit. The

decision of the Court of Appeals of 20 November 2001 in CA-G.R. SP No.
62463 is AFFIRMED.
SO ORDERED.
Vitug, Ynarez-Santiago, Carpio, and Azcuna, JJ., concur.
[1]
Rollo, 18-24. Per Associate Justice Edgardo P. Cruz, with then Presiding
Justice (now Supreme Court Associate Justice) Alicia Austria-Martinez and
Associate Justice Hilarion L. Aquino concurring.
[2]
Rollo, 25-33. Per Associate Judge Ramon O. de Veyra, with Presiding Judge
Ernesto D. Acosta and Associate Judge Amancio Q. Saga concurring.
[3]
CA-G.R. SP No. 59282, 23 March 2001.
[4]
Rollo, 35-44.
[5]
Entitled An Act Restructuring the Value-Added Tax (VAT) System to Widen
its Tax Base and Enhance its Administration, Amending for These Purposes
Sections ... 116 of Title V ... of the National Internal Revenue Code, as
Amended.
[6]
Now Sections 244 and 245 of R.A. No. 8424, otherwise known as the Tax
Reform Act of 1997.
[7]
Commissioner of Internal Revenue v. Court of Appeals, G.R. No. 108358, 20
January 1995, 240 SCRA 368, 372; Romulo, Mabanta, Buenaventura, Sayoc &
De los Angeles v. Home Development Mutual Fund, G.R. No. 131082, 19 June
2000; 333 SCRA 777, 786.
[8]
Formerly Section 209 of the NIRC of 1977, as amended by P.D. No. 1739 of
17 September 1980, which read:
Section 209. - Percentage tax on dealers in securities, lending investors. -

Dealers in securities and lending investors shall pay a tax equivalent to five per
centum on their gross income.
[9]
Vera v. Fernandez, L-31364, 30 March 1979; 89 SCRA 199, 203.
[10]
Republic v. Estenzo, L-35376, 11 September 1980; 99 SCRA 651, 656.
[11]
Entitled An Act Restructuring the Value-added Tax (VAT) System, Widening
Its Tax Base and Enhancing Its Administration, and for These Purposes
Amending and Repealing the Relevant Provisions of the National Internal
Revenue Code, as amended, and for Other Purposes.
[12]
90 O.G. 31, 4489.
[13]
Misamis Oriental Association of Coco Traders, Inc. v. Department of
Finance Secretary, G.R. No. 108524, 10 November 1994, 238 SCRA 63, 69.
[14]
Supra.
[15]
Commissioner of Internal Revenue v. Court of Appeals, 329 Phil. 987, 1007
[1996].
[16]
GSIS v. Court of Appeals, 334 Phil. 163, 175 [1997], citing Ang Ping v.
RTC of Manila, Br. 40, G.R. No. L-75860, 17 September 1987, 154 SCRA 77
and Tugade v. Court of Appeals, G.R. L-47772, 31 August 1978, 85 SCRA
226.
Source: Supreme Court E-Library | Date created: December 09, 2014

IV.
354 Phil. 684
FIRST DIVISION
[ G.R. No. 127820. July 20, 1998 ]
MUNICIPALITY OF PARAÑAQUE, PETITIONER, VS. V.M. REALTY
CORPORATION, RESPONDENT.
D E C I S I O N
PANGANIBAN, J.:
A local government unit (LGU), like the Municipality of Parañaque, cannot

authorize an expropriation of private property through a mere resolution of its
lawmaking body. The Local Government Code expressly and clearly requires
an ordinance or a local law for the purpose. A resolution that merely expresses
the sentiment or opinion of the Municipal Council will not suffice. On the other
hand, the principle of res judicata does not bar subsequent proceedings for the
expropriation of the same property when all the legal requirements for its valid
exercise are complied with.
Statement of the Case
These principles are applied by this Court in resolving this petition for review
on certiorari of the July 22, 1996 Decision[1] of the Court of Appeals[2] in CA
GR CV No. 48048, which affirmed in toto[3] the Regional Trial Court’s August
9, 1994 Resolution.[4] The trial court dismissed the expropriation suit as
follows:
“The right of the plaintiff to exercise the power of
eminent domain is not disputed. However, such right may
be exercised only pursuant to an Ordinance (Sec. 19, R.A.
No. 7160). In the instant case, there is no such
ordinance passed by the Municipal Council of Parañaque
enabling the Municipality, thru its Chief Executive, to
exercise the power of eminent domain. The complaint,
therefore, states no cause of action.
Assuming that plaintiff has a cause of action, the same

is barred by a prior judgment. On September 29, 1987, the
plaintiff filed a complaint for expropriation involving
the same parcels of land which was docketed as Civil Case
No. 17939 of this Court (page 26, record). Said case was
dismissed with prejudice on May 18, 1988 (page 39,
record). The order of dismissal was not appealed, hence,
the same became final. The plaintiff can not be allowed
to pursue the present action without violating the
principle of [r]es [j]udicata. While defendant in Civil
Case No. 17939 was Limpan Investment Corporation, the
doctrine of res judicata still applies because the
judgment in said case (C.C. No. 17939) is conclusive
between the parties and their successors-in-interest
(Vda. de Buncio vs. Estate of the late Anita de Leon).
The herein defendant is the successor-in-interest of
Limpan Investment Corporation as shown by the ‘Deed of
Assignment Exchange’ executed on June 13, 1990.
WHEREFORE, defendant’s motion for reconsideration is

hereby granted. The order dated February 4, 1994 is
vacated and set aside.
This case is hereby dismissed. No pronouncement as to

costs.
SO ORDERED.”[5]
Factual Antecedents
Pursuant to Sangguniang Bayan Resolution No. 93-95, Series of 1993,[6] the

Municipality of Parañaque filed on September 20, 1993, a Complaint for
expropriation[7] against Private Respondent V.M. Realty Corporation over two
parcels of land (Lots 2-A-2 and 2-B-1 of Subdivision Plan Psd-17917), with a
combined area of about 10,000 square meters, located at Wakas, San Dionisio,
Parañaque, Metro Manila, and covered by Torrens Certificate of Title No.
48700. Allegedly, the complaint was filed “for the purpose of alleviating the
living conditions of the underprivileged by providing homes for the homeless
through a socialized housing project.”[8] Parenthetically, it was also for this
stated purpose that petitioner, pursuant to its Sangguniang Bayan Resolution
No. 577, Series of 1991,[9] previously made an offer to enter into a negotiated
sale of the property with private respondent, which the latter did not accept.[10]
Finding the Complaint sufficient in form and substance, the Regional Trial
Court of Makati, Branch 134, issued an Order dated January 10, 1994,[11] giving
it due course. Acting on petitioner’s motion, said court issued an Order dated
February 4, 1994,[12] authorizing petitioner to take possession of the subject
property upon deposit with its clerk of court of an amount equivalent to 15
percent of its fair market value based on its current tax declaration.
On February 21, 1994, private respondent filed its Answer containing

affirmative defenses and a counterclaim,[13] alleging in the main that (a) the
complaint failed to state a cause of action because it was filed pursuant to a
resolution and not to an ordinance as required by RA 7160 (the Local
Government Code); and (b) the cause of action, if any, was barred by a prior
judgment or res judicata. On private respondent’s motion, its Answer was
treated as a motion to dismiss.[14] On March 24, 1994,[15] petitioner filed its
opposition, stressing that the trial court’s Order dated February 4, 1994 was in
accord with Section 19 of RA 7160, and that the principle of res judicata was
not applicable.
Thereafter, the trial court issued its August 9, 1994 Resolution[16] nullifying its
February 4, 1994 Order and dismissing the case. Petitioner’s motions for
reconsideration and transfer of venue were denied by the trial court in a
Resolution dated December 2, 1994.[17] Petitioner then appealed to Respondent
Court, raising the following issues:
“1. Whether or not the Resolution of the
Parañaque Municipal Council No. 93-95, Series of 1993 is
a substantial compliance of the statutory requirement of
Section 19, R.A. 7180 [sic] in the exercise of the power
of eminent domain by the plaintiff-appellant.
2. Whether or not the complaint in this case

states no cause of action.
3. Whether or not the strict adherence to the

literal observance to the rule of procedure resulted in
technicality standing in the way of substantial justice.
4. Whether or not the principle of res

judicata is applicable to the present case.”[18]
As previously mentioned, the Court of Appeals affirmed in toto the trial court’s
Decision. Respondent Court, in its assailed Resolution promulgated on January
8, 1997,[19] denied petitioner’s Motion for Reconsideration for lack of merit.
Hence, this appeal.[20]
The Issues
Before this Court, petitioner posits two issues, viz.:

“1. A resolution duly approved by the municipal
council has the same force and effect of an ordinance and
will not deprive an expropriation case of a valid cause
of action.
2. The principle of res judicata as a ground

for dismissal of case is not applicable when public
interest is primarily involved.”[21]
The Court’s Ruling
The petition is not meritorious.
First Issue:
Resolution Different from an Ordinance
Petitioner contends that a resolution approved by the municipal council for the
purpose of initiating an expropriation case “substantially complies with the
requirements of the law”[22] because the terms “ordinance” and “resolution” are
synonymous for “the purpose of bestowing authority [on] the local government
unit through its chief executive to initiate the expropriation proceedings in
court in the exercise of the power of eminent domain.”[23] Petitioner seeks to
bolster this contention by citing Article 36, Rule VI of the Rules and
Regulations Implementing the Local Government Code, which provides: “If
the LGU fails to acquire a private property for public use, purpose, or welfare
through purchase, the LGU may expropriate said property through a resolution
of the Sanggunian authorizing its chief executive to initiate expropriation
proceedings.”[24] (Italics supplied.)
The Court disagrees. The power of eminent domain is lodged in the legislative
branch of government, which may delegate the exercise thereof to LGUs, other
public entities and public utilities.[25] An LGU may therefore exercise the power
to expropriate private property only when authorized by Congress and subject
to the latter’s control and restraints, imposed “through the law conferring the
power or in other legislations.”[26] In this case, Section 19 of RA 7160, which
delegates to LGUs the power of eminent domain, also lays down the
parameters for its exercise. It provides as follows:
“Section 19. Eminent Domain. A local government unit
may, through its chief executive and acting pursuant to
an ordinance, exercise the power of eminent domain for
public use, or purpose, or welfare for the benefit of the
poor and the landless, upon payment of just compensation,
pursuant to the provisions of the Constitution and
pertinent laws: Provided, however, That the power of
eminent domain may not be exercised unless a valid and
definite offer has been previously made to the owner, and
such offer was not accepted: Provided, further, That the
local government unit may immediately take possession of
the property upon the filing of the expropriation
proceedings and upon making a deposit with the proper
court of at least fifteen percent (15%) of the fair
market value of the property based on the current tax
declaration of the property to be expropriated: Provided,
finally, That, the amount to be paid for the expropriated
property shall be determined by the proper court, based
on the fair market value at the time of the taking of the
property.” (Emphasis supplied)
Thus, the following essential requisites must concur before an LGU can
exercise the power of eminent domain:
1. An ordinance is enacted by the local legislative council authorizing the local

chief executive, in behalf of the LGU, to exercise the power of eminent domain
or pursue expropriation proceedings over a particular private property.
2. The power of eminent domain is exercised for public use, purpose or

welfare, or for the benefit of the poor and the landless.
3. There is payment of just compensation, as required under Section 9, Article

III of the Constitution, and other pertinent laws.
4. A valid and definite offer has been previously made to the owner of the
property sought to be expropriated, but said offer was not accepted.[27]
In the case at bar, the local chief executive sought to exercise the power of
eminent domain pursuant to a resolution of the municipal council. Thus, there
was no compliance with the first requisite that the mayor be authorized through
an ordinance. Petitioner cites Camarines Sur vs. Court of Appeals[28] to show
that a resolution may suffice to support the exercise of eminent domain by an
LGU.[29] This case, however, is not in point because the applicable law at that
time was BP 337,[30] the previous Local Government Code, which had provided
that a mere resolution would enable an LGU to exercise eminent domain. In
contrast, RA 7160,[31] the present Local Government Code which was already
in force when the Complaint for expropriation was filed, explicitly required an
ordinance for this purpose.
We are not convinced by petitioner’s insistence that the terms “resolution” and
“ordinance” are synonymous. A municipal ordinance is different from a
resolution. An ordinance is a law, but a resolution is merely a declaration of the
sentiment or opinion of a lawmaking body on a specific matter.[32] An
ordinance possesses a general and permanent character, but a resolution is
temporary in nature. Additionally, the two are enacted differently -- a third
reading is necessary for an ordinance, but not for a resolution, unless decided
otherwise by a majority of all the Sanggunian members.[33]
If Congress intended to allow LGUs to exercise eminent domain through a

mere resolution, it would have simply adopted the language of the previous
Local Government Code. But Congress did not. In a clear divergence from the
previous Local Government Code, Section 19 of RA 7160 categorically
requires that the local chief executive act pursuant to an ordinance. Indeed,
“[l]egislative intent is determined principally from the language of a statute.
Where the language of a statute is clear and unambiguous, the law is applied
according to its express terms, and interpretation would be resorted to only
where a literal interpretation would be either impossible or absurd or would
lead to an injustice.”[34] In the instant case, there is no reason to depart from this
rule, since the law requiring an ordinance is not at all impossible, absurd, or
unjust.
Moreover, the power of eminent domain necessarily involves a derogation of a

fundamental or private right of the people.[35] Accordingly, the manifest change
in the legislative language -- from “resolution” under BP 337 to “ordinance”
under RA 7160 -- demands a strict construction. “No species of property is held
by individuals with greater tenacity, and is guarded by the Constitution and
laws more sedulously, than the right to the freehold of inhabitants. When the
legislature interferes with that right and, for greater public purposes,
appropriates the land of an individual without his consent, the plain meaning of
the law should not be enlarged by doubtful interpretation.”[36]
Petitioner relies on Article 36, Rule VI of the Implementing Rules, which

requires only a resolution to authorize an LGU to exercise eminent domain.
This is clearly misplaced, because Section 19 of RA 7160, the law itself, surely
prevails over said rule which merely seeks to implement it.[37] It is axiomatic
that the clear letter of the law is controlling and cannot be amended by a mere
administrative rule issued for its implementation. Besides, what the
discrepancy seems to indicate is a mere oversight in the wording of the
implementing rules, since Article 32, Rule VI thereof, also requires that, in
exercising the power of eminent domain, the chief executive of the LGU must
act pursuant to an ordinance.
In this ruling, the Court does not diminish the policy embodied in Section 2,
Article X of the Constitution, which provides that “territorial and political
subdivisions shall enjoy local autonomy.” It merely upholds the law as worded
in RA 7160. We stress that an LGU is created by law and all its powers and
rights are sourced therefrom. It has therefore no power to amend or act beyond
the authority given and the limitations imposed on it by law. Strictly speaking,
the power of eminent domain delegated to an LGU is in reality not eminent but
“inferior” domain, since it must conform to the limits imposed by the
delegation, and thus partakes only of a share in eminent domain.[38] Indeed, “the
national legislature is still the principal of the local government units, which
cannot defy its will or modify or violate it.”[39]
Complaint Does Not State a Cause of Action
In its Brief filed before Respondent Court, petitioner argues that its Sanguniang
Bayan passed an ordinance on October 11, 1994 which reiterated its Resolution
No. 93-35, Series of 1993, and ratified all the acts of its mayor regarding the
subject expropriation.[40]
This argument is bereft of merit. In the first place, petitioner merely alleged the
existence of such an ordinance, but it did not present any certified true copy
thereof. In the second place, petitioner did not raise this point before this Court.
In fact, it was mentioned by private respondent, and only in passing.[41] In any
event, this allegation does not cure the inherent defect of petitioner’s Complaint
for expropriation filed on September 23, 1993. It is hornbook doctrine that:
“ x x x in a motion to dismiss based on the ground that
the complaint fails to state a cause of action, the
question submitted before the court for determination is
the sufficiency of the allegations in the complaint
itself. Whether those allegations are true or not is
beside the point, for their truth is hypothetically
admitted by the motion. The issue rather is: admitting
them to be true, may the court render a valid judgment in
accordance with the prayer of the complaint?”[42]
The fact that there is no cause of action is evident from the face of the
Complaint for expropriation which was based on a mere resolution. The
absence of an ordinance authorizing the same is equivalent to lack of cause of
action. Consequently, the Court of Appeals committed no reversible error in
affirming the trial court’s Decision which dismissed the expropriation suit.
Second Issue:
Eminent Domain Not Barred by Res Judicata
As correctly found by the Court of Appeals[43] and the trial court,[44] all the
requisites for the application of res judicata are present in this case. There is a
previous final judgment on the merits in a prior expropriation case involving
identical interests, subject matter and cause of action, which has been rendered
by a court having jurisdiction over it.
Be that as it may, the Court holds that the principle of res judicata, which finds
application in generally all cases and proceedings,[45] cannot bar the right of the
State or its agent to expropriate private property. The very nature of eminent
domain, as an inherent power of the State, dictates that the right to exercise the
power be absolute and unfettered even by a prior judgment or res judicata. The
scope of eminent domain is plenary and, like police power, can “reach every
form of property which the State might need for public use.”[46] “All separate
interests of individuals in property are held of the government under this tacit
agreement or implied reservation. Notwithstanding the grant to individuals, the
eminent domain, the highest and most exact idea of property, remains in the
government, or in the aggregate body of the people in their sovereign capacity;
and they have the right to resume the possession of the property whenever the
public interest requires it.”[47] Thus, the State or its authorized agent cannot be
forever barred from exercising said right by reason alone of previous non-
compliance with any legal requirement.
While the principle of res judicata does not denigrate the right of the State to
exercise eminent domain, it does apply to specific issues decided in a previous
case. For example, a final judgment dismissing an expropriation suit on the
ground that there was no prior offer precludes another suit raising the same
issue; it cannot, however, bar the State or its agent from thereafter complying
with this requirement, as prescribed by law, and subsequently exercising its
power of eminent domain over the same property.[48] By the same token, our
ruling that petitioner cannot exercise its delegated power of eminent domain
through a mere resolution will not bar it from reinstituting similar proceedings,
once the said legal requirement and, for that matter, all others are properly
complied with. Parenthetically and by parity of reasoning, the same is also true
of the principle of “law of the case.” In Republic vs De Knecht,[49] the Court
ruled that the power of the State or its agent to exercise eminent domain is not
diminished by the mere fact that a prior final judgment over the property to be
expropriated has become the law of the case as to the parties. The State or its
authorized agent may still subsequently exercise its right to expropriate the
same property, once all legal requirements are complied with. To rule
otherwise will not only improperly diminish the power of eminent domain, but
also clearly defeat social justice.
WHEREFORE, the petition is hereby DENIED without prejudice to
petitioner’s proper exercise of its power of eminent domain over subject
property. Costs against petitioner.
SO ORDERED.
Davide, Jr., (Chairman), Bellosillo, Vitug, and Quisumbing, JJ., concur.
[1]
Rollo, pp. 21-25.
[2]
Special Sixth Division, composed of J. Antonio M. Martinez (now an
Associate Justice of the Supreme Court), ponente and chairman; and JJ.
Ricardo P. Galvez and Hilarion L. Aquino, concurring.
[3]
See Rollo, p. 25.
[4]
Penned by acting Presiding Judge Paul T. Arcangel.
[5]
Resolution of the Regional Trial Court, p. 2; Rollo, p. 70.
[6]
Rollo, pp. 41-43.
[7]
Ibid., pp. 27-32.
[8]
Petitioner’s Memorandum, p. 1; Rollo, p. 184.
[9]
Rollo, pp. 37-38.
[10]
Complaint, p. 3; Rollo, p. 29.
[11]
Rollo, p. 45.
[12]
Ibid., p. 47.
[13]
Ibid., pp. 48-51.
[14]
Private respondent’s Memorandum, pp. 1-2; Rollo, pp. 197-198.
[15]
Rollo, pp. 66-68.
[16]
Ibid., pp. 69-70.
[17]
Ibid., pp. 71-72.
[18]
Ibid., pp. 78-79.
[19]
Ibid., p. 26.
[20]
The case was deemed submitted for resolution on March 13, 1998, when the
Court received private respondent’s Memorandum.
[21]
[22]
Ibid., p. 4; Rollo, p. 188.
[23]
Ibid.
[24]
Paragraph A.
[25]
Moday vs. Court of Appeals, 268 SCRA 586, 592, February 20, 1997.
[26]
Province of Camarines Sur vs. Court of Appeals, 222 SCRA 173, 179-180,
May 17, 1993, per Quiason, J.
[27]
Senator Aquilino Q. Pimentel, Jr., The Local Government Code of 1991:
The Key To National Development, 1993 ed., p. 110.
[28]
Supra.
[29]
[30]
Approved on February 10, 1983 and published in 79 O.G. No. 7. See Moday
vs. Court of Appeals, supra, p. 593. Sec. 9 of BP 337 reads:
“SEC. 9. Eminent Domain. --- A local government unit may, through its head
and acting pursuant to a resolution of its sanggunian, exercise the right of
eminent domain and institute condemnation proceedings for public use or
purpose.”
[31]
Effective January 1, 1992.
[32]
Mascuñana vs. Provincial Board of Negros Occidental, 79 SCRA 399, 405,
October 18, 1977; cited in private respondent’s Memorandum, p. 5.
[33]
Article 107, pars. a and c, Implementing Rules and Regulations of RA 7160;
cited in Pimentel, Jr., supra, pp. 163-164.
[34]
Azarcon vs. Sandiganbayan, 268 SCRA 747, 762, February 26, 1997, per
Panganiban, J.; citing Ramirez vs. Court of Appeals, 248 SCRA 590, 596,
September 28, 1995.
[35]
City of Manila vs. Chinese Community of Manila, 40 Phil 349, 366 (1919),
and Arriete vs. Director of Public Works, 58 Phil 507, 511 (1933). See also
Bernas, Joaquin G., The 1987 Constitution of the Republic of the Philippines:
A Commentary, 1996 ed., p. 348.
[36]
Justice Isagani A. Cruz, Constitutional Law, 1993 ed., p. 59.
[37]
See Villa vs. Llanes, Jr., 120 SCRA 81, 84, January 21, 1983, and Wise &
Co. vs. Meer, 78 Phil 655, 676 (1947). See also Art. 7, Civil Code of the
Philippines.
[38]
Bernas, supra, pp. 348-349.
[39]
Magtajas vs. Pryce Properties, Corp., Inc., 234 SCRA 255, 272-273, July
20, 1994, per Cruz, J.
[40]
Rollo, pp. 81-82.
[41]
See private respondent’s Memorandum, pp. 5-6; Rollo, pp. 201-202.
[42]
Travel Wide Associated Sales (Phils.), Inc. vs. Court of Appeals, 199 SCRA
205, 210, July 15, 1991, per Cruz, J.; citing The Heirs of Juliana Clavano vs.
Genato, 80 SCRA 217, 222, October 28, 1977.
[43]
Decision, p. 5; Rollo, p. 25.
[44]
Resolution of the Regional Trial Court, p. 2; Rollo, p. 70.
[45]
Republic vs. Director of Lands, 99 SCRA 651, 657, September 11, 1980.
[46]
Bernas, supra, p. 349.
[47]
Ibid.
[48]
See National Power Corporation vs. Court of Appeals, 254 SCRA 577,
March 11, 1996.
[49]
182 SCRA 142, 147-148, February 12, 1990.
Source: Supreme Court E-Library | Date created: October 01, 2014

165 Phil. 909
EN BANC
[ G.R. No. L-41631. December 17, 1976 ]
HON. RAMON D. BAGATSING, AS MAYOR OF THE CITY OF MANILA;
ROMAN G. GARGANTIEL, AS SECRETARY TO THE MAYOR; THE MARKET
ADMINISTRATOR; AND THE MUNICIPAL BOARD OF MANILA,
PETITIONERS, VS. HON. PEDRO A. RAMIREZ, IN HIS CAPACITY AS
PRESIDING JUDGE OF THE COURT OF FIRST INSTANCE OF MANILA,
BRANCH XXX AND THE FEDERATION OF MANILA MARKET VENDORS, INC.,
RESPONDENTS.
D E C I S I O N
MARTIN, J.:
The chief question to be decided in this case is what law shall govern the
publication of a tax ordinance enacted by the Municipal Board of Manila, the
Revised City Charter (R.A. 409, as amended), which requires publication of the
ordinance before its enactment and after its approval, or the Local Tax Code
(P.D. No. 231), which only demands publication after approval.
On June 12, 1974, the Municipal Board of Manila enacted Ordinance No. 7522,
"AN ORDINANCE REGULATING THE OPERATION OF PUBLIC
MARKETS AND PRESCRIBING FEES FOR THE RENTALS OF STALLS
AND PROVIDING PENALTIES FOR VIOLATION THEREOF AND FOR
OTHER PURPOSES." The petitioner City Mayor, Ramon D. Bagatsing,
approved the ordinance on June 15, 1974.
On February 17, 1975, respondent Federation of Manila Market Vendors, Inc.

commenced Civil Case 96787 before the Court of First Instance of Manila,
presided over by respondent Judge, seeking the declaration of nullity of
Ordinance No. 7522 for the reason that (a) the publication requirement under
the Revised Charter of the City of Manila has not been complied with; (b) the
Market Committee was not given any participation in the enactment of the
ordinance, as envisioned by Republic Act 6039; (c) Section 3 (e) of the Anti-
Graft and Corrupt Practices Act has been violated; and (d) the ordinance would
violate Presidential Decree No. 7 of September 30, 1972 prescribing the
collection of fees and charges on livestock and animal products.
Resolving the accompanying prayer for the issuance of a writ of preliminary

injunction, respondent Judge issued an order on March 11, 1975, denying the
plea for failure of the respondent Federation of Manila Market Vendors, Inc. to
exhaust the administrative remedies outlined in the Local Tax Code.
After due hearing on the merits, respondent Judge rendered its decision on
August 29, 1975, declaring the nullity of Ordinance No. 7522 of the City of
Manila on the primary ground of non-compliance with the requirement of
publication under the Revised City Charter. Respondent Judge ruled:
"There is, therefore, no question that the ordinance in

question was not published at all in two daily newspapers
of general circulation in the City of Manila before its
enactment. Neither was it published in the same manner
after approval, although it was posted in the legislative
hall and in all city public markets and city public
libraries. There being no compliance with the mandatory
requirement of publication before and after approval, the
ordinance in question is invalid and, therefore, null and
void."
Petitioners moved for reconsideration of the adverse decision, stressing that (a)
only a post-publication is required by the Local Tax Code; and (b) private res-
pondent failed to exhaust all administrative remedies before instituting an
action in court.
On September 26, 1975, respondent Judge denied the motion.

Forthwith, petitioners brought the matter to Us through the present petition for
review on certiorari.
We find the petition impressed with merits.
1. The nexus of the present controversy is the apparent conflict between the
Revised Charter of the City of Manila and the Local Tax Code on the manner
of publishing a tax ordinance enacted by the Municipal Board of Manila. For,
while Section 17 of the Revised Charter provides:
"Each proposed ordinance shall be published in two daily

newspapers of general circulation in the city, and shall
not be discussed or enacted by the Board until after the
third day following such publication. * * * Each
approved ordiance * * * shall be published in two daily
newspapers of general circulation in the city, within ten
days after its approval; and shall take effect and be in
force on and after the twentieth day following its
publication, if no date is fixed in the ordinance."
Section 43 of the Local Tax Code directs:
"Within ten days after their approval, certified true

copies of all provincial, city, municipal and
barrio ordinances levying or imposing taxes, fees or
other charges shall be published for three consecutive
days in a newspaper or publication widely circulated
within the jurisdiction of the local government, or
posted in the local legislative hall or premises and in
two other conspicuous places within the territorial
jurisdiction of the local government. In either case,
copies of all provincial, city, municipal and barrio
ordinances shall be furnished the treasurers of the
respective component and mother units of a local govern-
ment for dissemination."
In other words, while the Revised Charter of the City of Manila requires
publication before the enactment of the ordinance and after the approval
thereof in two daily newspapers of general circulation in the city, the Local Tax
Code only prescribes for publication after the approval of "ordinances levying
or imposing taxes, fees or other charges" either in a newspaper or publication
widely circulated within the jurisdiction of the local government or by posting
the ordinance in the local legislative hall or premises and in two other
conspicuous places within the territorial jurisdiction of the local government.
Petitioners' compliance with the Local Tax Code rather than with the Revised
Charter of the City spawned this litigation.
There is no question that the Revised Charter of the City of Manila is a special
act since it relates only to the City of Manila, whereas the Local Tax Code is
a general law because it applies universally to all local governments.
Blackstone defines general law as a universal rule affecting the entire
community and special law as one relating to particular persons or things of a
class.[1] And the rule commonly said is that a prior special law is not ordinarily
repealed by a subsequent general law. The fact that one is special and the other
general creates a presumption that the special is to be considered as remaining
an exception to the general, one as a general law of the land, the other as the
law of a particular case.[2] However, the rule readily yields to a situation where
the special statute refers to a subject in general, which the general statute
treats in particular. That exactly is the circumstance obtaining in the case at
bar. Section 17 of the Revised Charter of the City of Manila speaks of
"ordinance" in general, i.e., irrespective of the nature and scope
thereof, whereas, Section 43 of the Local Tax Code relates to "ordinances
levying or imposing taxes, fees or other charges" in particular. In regard,
therefore, to ordinances in general, the Revised Charter of the City of Manila is
doubtless dominant, but, that dominant force loses its continuity when it
approaches the realm of "ordinances levying or imposing taxes, fees or other
charges" in particular. There, the Local Tax Code controls. Here, as always, a
general provision must give way to a particular provision. [3] Special provision
governs.[4] This is especially true where the law containing the particular
provision was enacted later than the one containing the general provision. The
City Charter of Manila was promulgated on June 18, 1949 as against the Local
Tax Code which was decreed on June 1, 1973. The law-making power cannot
be said to have intended the establishment of conflicting and hostile systems
upon the same subject, or to leave in force provisions of a prior law by which
the new will of the legislating power may be thwarted and overthrown. Such a
result would render legislation a useless and idle ceremony, and subject the law
to reproach of uncertainty and unintelligibility.[5]
The case of City of Manila v. Teotico[6] is apposite. In that case, Teotico sued
the City of Manila for damages arising from the injuries he suffered when he
fell inside an uncovered and unlighted catchbasin or manhole on P. Burgos
Avenue. The City of Manila denied liability on the basis of the City Charter
(R.A. 409) exempting the City of Manila from any liability for damages or
injury to persons or property arising from the failure of the city officers to
enforce the provisions of the charter or any other law or ordinance, or from
negligence of the City Mayor, Municipal Board, or other officers while
enforcing or attempting to enforce the provision of the charter or of any other
law or ordinance. Upon the other hand, Article 2189 of the Civil Code makes
cities liable for damages for the death of, or injury suffered by any persons by
reason of the defective condition of roads, streets, bridges, public buildings,
and other public works under their control or supervision. On review, the
Court held the Civil Code controlling. It is true that, insofar as its territorial
application is concerned, the Revised City Charter is a special law and the Civil
Code a general legislation, yet, as regards the subject matter of the two laws,
the Revised City Charter establishes a general rule of liability arising from
negligence, in general, regardless of the object thereof, whereas the Civil Code
constitutes a particular prescription for liability due to defective streets in
particular. In the same manner, the Revised Charter of the City prescribes a
rule for the publication of "ordinance" in general, while the Local Tax Code
establishes a rule for the publication of "ordinances levying or imposing taxes,
fees or other charges" in particular.
In fact, there is no rule which prohibits the repeal even by implication of a

special or specific act by a general or broad one. [7] A charter provision may be
impliedly modified or superseded by a later statute, and where a statute is
controlling, it must be read into the charter notwithstanding any particular
charter provision.[8] A subsequent general law similarly applicable to all cities
prevails over any conflicting charter provision, for the reason that a charter
must not be inconsistent with the general laws and public policy of the state.
[9]
A chartered city is not an independent sovereignty. The state remains
supreme in all matters not purely local. Otherwise stated, a charter must yield
to the constitution and general laws of the state, it is to have read into it that
general law which governs the municipal corporation and which the
corporation cannot set aside but to which it must yield. When a city adopts a
charter, it in effect adopts as part of its charter general law of such character.[10]
2. The principle of exhaustion of administrative remedies is strongly asserted

by petitioners as having been violated by private respondent in bringing a direct
suit in court. This is because Section 47 of the Local Tax Code provides that
any question or issue raised against the legality of any tax ordinance, or portion
thereof, shall be referred for opinion to the city fiscal in the case of tax
ordinance of a city. The opinion of the city fiscal is appealable to the Secretary
of Justice, whose decision shall be final and executory unless contested before
a competent court within thirty (30) days. But, the petition below plainly
shows that the controversy between the parties is deeply rooted in a pure
question of law: whether it is the Revised Charter of the City of Manila or the
Local Tax Code that should govern the publication of the tax ordinance. In
other words, the dispute is sharply focused on the applicability of the Revised
City Charter or the Local Tax Code on the point at issue, and not on the legality
of the imposition of the tax. Exhaustion of administrative remedies before
resort to judicial bodies is not an absolute rule. It admits of exceptions. Where
the question litigated upon is purely a legal one, the rule does not apply. [11] The
principle may also be disregarded when it does not provide a plain, speedy and
adequate remedy. It may and should be relaxed when its application may cause
great and irreparable damage.[12]
3. It is maintained by private respondent that the subject ordinance is not a "tax

ordinance," because the imposition of rentals, permit fees, tolls and other fees
is not strictly a taxing power but a revenue-raising function, so that the
procedure for publication under the Local Tax Code finds no application. The
pretense bears its own marks of fallacy. Precisely, the raising of revenues is
the principal object of taxation. Under Section 5, Article XI of the New
Constitution, "Each local government unit shall have the power to create its
own sources of revenue and to levy taxes, subject to such provisions as may be
provided by law."[13] And one of those sources of revenue is what the Local
Tax Code points to in particular: "Local governments may collect fees or
rentals for the occupancy or use of public markets and premises* * *." [14] They
can provide for and regulate market stands, stalls and privileges, and also, the
sale, lease or occupancy thereof. They can license, or permit the use of, lease,
sell or otherwise dispose of stands, stalls or marketing privileges.[15]
It is a feeble attempt to argue that the ordinance violates Presidential Decree

No. 7, dated September 30, 1972, insofar as it affects livestock and animal
products, because the said decree prescribes the collection of other fees and
charges thereon "with the exception of ante-mortem and post-mortem
inspection fees, as well as the delivery, stockyard and slaughter fees as may be
authorized by the Secretary of Agriculture and Natural Resources." [16] Clearly,
even the exception clause of the decree itself permits the collection of the
proper fees for livestock. And the Local Tax Code (P.D. 231, July 1, 1973)
authorizes in its Section 31: "Local governments may collect fees for the
slaughter of animals and the use of corrals* * *."
4. The non-participation of the Market Committee in the enactment of

Ordinance No. 7522 supposedly in accordance with Republic Act No. 6039, an
amendment to the City Charter of Manila, providing that "the market commitee
shall formulate, recommend and adopt, subject to the ratification of the
municipal board, and approval of the mayor, policies and rules or regulation
repealing or amending existing provisions of the market code" does not infect
the ordinance with any germ of invalidity.[17] The function of the committee is
purely recommendatory as the underscored phrase suggests, its
recommendation is without binding effect on the Municipal Board and the City
Mayor. Its prior acquiescence of an intended or proposed city ordinance is not
a condition sine qua non before the Municipal Board could enact such
ordinance. The native power of the Municipal Board to legislate remains
undisturbed even in the slightest degree. It can move in its own initiative and
the Market Committee cannot demur. At most, the Market Committee may
serve as a legislative aide of the Municipal Board in the enactment of city
ordinances affecting the city markets or, in plain words, in the gathering of the
necessary data, studies and the collection of consensus for the proposal of
ordinances regarding city markets. Much less could it be said that Republic
Act 6039 intended to delegate to the Market Committee the adoption of
regulatory measures for the operation and administration of the city
markets. Potestas delegata non delegare potest.
5. Private respondent bewails that the market stall fees imposed in the disputed
ordinance are diverted to the exclusive private use of the Asiatic Integrated
Corporation since the collection of said fees had been let by the City of Manila
to the said corporation in a "Management and Operating Contract." The
assumption is of course saddled on erroneous premise. The fees collected do
not go direct to the private coffers of the corporation. Ordinance No. 7522 was
not made for the corporation but for the purpose of raising revenues for the
city. That is the object it serves. The entrusting of the collection of the fees
does not destroy the public purpose of the ordinance. So long as the purpose is
public, it does not matter whether the agency through which the money is
dispensed is public or private. The right to tax depends upon the ultimate use,
purpose and object for which the fund is raised. It is not dependent on the
nature or character of the person or corporation whose intermediate agency is
to be used in applying it. The people may be taxed for a public purpose,
although it be under the direction of an individual or private corporation.[18]
Nor can the ordinance be stricken down as violative of Section 3 (e) of the
Anti-Graft and Corrupt Practices Act because the increased rates of market stall
fees as levied by the ordinance will necessarily inure to the unwarranted benefit
and advantage of the corporation.[19] We are concerned only with the issue
whether the ordinance in question is intra vires. Once determined in the
affirmative, the measure may not be invalidated because of consequences that
may arise from its enforcement.[20]
ACCORDINGLY , the decision of the court below is hereby reversed and set
aside. Ordinance No. 7522 of the City of Manila, dated June 15, 1975, is
hereby held to have been validly enacted. No costs.
SO ORDERED.
Barredo and Makasiar, JJ., concur.
Castro, C.J., in the result.
Fernando, J., concurs but qualifies his absent as to an ordinance intra vires not
being open to question "because of consequences that may arise from its
enforcement."
Teehankee, J., reserve his vote.
[1]
Cooley, The Law of Taxation, Vol. 2, 4th ed.
[2]
Butuan Sawmill, Inc. vs. City of Butuan, L-21516, April 29, 1966, 16 SCRA
758, citing State v. Stoll, 17 Wall. 425.
[3]
Lichauco & Co. v. Apostol, 44 Phil. 145 (1922).
[4]
Crawford, Construction of Statutes, 265, citing U.S. v. Jackson, 143 Fed.
783.
[51]
See Separate Opinion of Justice Johns in Lichauco, fn. 3, citing Lewis'
Sutherland Statutory Construction, at 161.
[6]
L-23052, January 29, 1968, 22 SCRA 270.
[7]
See 73 Am Jur 2d 521.
[8]
Mc Quillin, Municipal Corporation, Vol. 6, 3rd ed., 223.
[9]
See Bowyer v. Camden, 11 Atl. 137.
[10]
Mc Quillin, Municipal Corporation, Vol. 6, 3rd ed., 229-230.
[11]
Tapales v. President and Board of Regents of the U.P., L-17523, March 30,
1963, 7 SCRA 553; C.N. Hodges v. Municipal Board of the City of Iloilo, L-
18276, January 12, 1967, 19 SCRA 32-33; Aguilar v. Valencia, L-30396, July
30, 1971, 40 SCRA 214; Mendoza vs. SSC, L-29189, April 11, 1972, 44
SCRA 380.
[12]
Cipriano v. Marcelino, L-27793, February 28, 1972, 43 SCRA 291; Del
Mar v. PVA, L-27299, June 27, 1973, 51 SCRA 346, citing cases.
[13]
See City of Bacolod v. Enriquez, L-27408, July 25, 1975, Second Division,
per Fernando, J., 65 SCRA 384-85.
[14]
Article 5, Section 30, Chapter II.
[15]
McQuillin, Municipal Corporations, Vol. 7, 3rd ed., 275.
[16]
P.D. 7 was amended by P.D. 45 on November 10, 1972, so as to allow local
governments to charge the ordinary fee for the issuance of certificate of
ownership and one peso for the issuance of transfer certificate for livestock.
[17]
The market committee is composed of the market administrator as chairman,
and a representative of each of the city treasurer, the municipal board, the
Chamber of Filipino Retailers, Inc. and the Manila Market Vendors
Association Inc. as members.
[18]
Cooley, The Law of Taxation, Vol. 1, 394-95.
[19]
Section 3 (e); causing any undue injury to any party, including the
government, or giving any private party any unwarranted benefits, advantage or
preference in the discharge of his official administrative or judicial functions
through manifest partiality, evident bad faith or gross inexcusable negligence.*
* *".
[20]
Willoughby, The Constitutional Law of the United States, 668 et seq.

V.
139 Phil. 584
[ G.R. No. L-29131. August 27, 1969 ]

NATIONAL MARKETING CORPORATION, PLAINTIFF-APPELLANT, VS.
MIGUEL D. TECSON, ET AL., DEFENDANTS, MIGUEL D. TECSON,
DEFENDANT-APPELLEE, THE INSURANCE COMMISSIONER, PETITIONER.
D E C I S I O N
CONCEPCION, C.J.:
This appeal has been certified to us by the Court of Appeals, only one question
of law being involved therein.
On November 14, 1955, the Court of First Instance of Manila rendered

judgment, in Civil Case No. 20520 thereof, entitled "Price Stabilization
Corporation vs. Miguel D. Tecson and Alto Surety and Insurance Co.,
Inc.", the dispositive part of which reads as follows:
"For the foregoing consideration, the Court decides this

case:
“(a) Ordering the defendants Miguel D. Tecson and Alto
Surety & Insurance Co. Inc. to pay jointly and severally
plaintiff PRATRA the sum of P7, 200.00 plus 7% interest
from May 25, 1960 until the amount is fully paid, plus
P500. 00 for attorney's fees, and plus costs;
“(b) Ordering defendant Miguel D. Tecson to indemnify
his co-defendant Alto Surety & Insurance Co. Inc. on the
cross-claim for all the amounts it would be made to pay
in this decision, in case defendant Alto Surety &
Insurance Co. Inc. pay the amount adjudged to plaintiff
in this decision. From the date of such payment
defendant Miguel D. Tecson would pay the Alto Surety &
Insurance Co. Inc., interest at 12% per annum until
Miguel D. Tecso has fully reimbursed plaintiff of the
said amount."
Copy of this decision was, on November 21, 1955, served upon the defendants
in said case. On December 21, 1965, the National Marketing Corporation, as
successor to all the properties, assets, rights, and choses in action of the Price
Stabilization Corporation, as plaintiff in that case and judgment creditor
therein, filed, with the same court, a complaint, docketed as Civil Case No.
63701 thereof, against the same defendants, for the revival of the judgment
rendered in said Case No. 20520. Defendant Miguel D. Tecson moved to
dismiss said complaint, upon the ground of lack of jurisdiction over the
subject-matter thereof and prescription of action. Acting upon the motion and
plaintiff's opposition thereto, said Court issued, on February 14, 1966, an order
reading:
"Defendant Miguel Tecson seeks the dismissal of the

complaint on the ground of lack of jurisdiction and
prescription. As for lack of jurisdiction, as the amount
involved is less than P10,000 as actually these proceed-
ings are a revival of a decision issued by this same
court, the matter of jurisdiction must be
admitted. But as for prescription. Plaintiffs admit
the decision of this Court became final on December 21,
1955. This case was filed exactly on December 21,
1965 - but more than ten years have passed a year is a
period of 365 days (Art. 13, CCP). Plaintiff forgot that
1960, 1964 were both leap years so that when this present
case was filed it was filed two days too late.
"The complaint insofar as Miguel Tecson is concerned
is, therefore, dismissed as having prescribed."
The National Marketing Corporation appealed from such order to the Court of
Appeals, which, on March 20, 1969, certified the case to this Court, upon the
ground that the only question therein raised is one of law, namely, whether or
not the present action for the revival of a judgment is barred by the statute of
limitations.
Pursuant to Art. 1144-(3) of our Civil Code, an action upon a judgment "must
be brought within ten years from the time the right of action accrues," which, in
the language of Art. 1152 of the same Code, "commences from the time the
judgment sought to be revived has become final." This, in turn, took place
on December 21, 1955, or thirty (30) days from notice of the judgment - which
was received by the defendants herein on November 21, 1955 - no appeal
having been taken therefrom. The issue is thus confined to the date on which
[1]
ten (10) years from December 21, 1955 expired.
Plaintiff-appellant alleges that it was December 21, 1965,

but appellee Tecson maintains otherwise, because "when the laws speak of
years x x x it shall be understood that years are of three hundred sixty-five days
each" - according to Art. 13 of our Civil Code - and, 1960 and 1964 being leap
years, the month of February in both had 29 days, so that ten (10) years of 365
days each, or an aggregate of 3,650 days, from December 21, 1955, expired
on December 19, 1965. The lower court accepted this view in its appealed
order of dismissal.
Plaintiff-appellant insists that the same "is erroneous, because a year means
a calendar year (Statutory Construction, Interpretation of Laws, by Crowford,
p. 383) and since what is being computed here is the number of years, a
calendar year should be used as the basis of computation. There is no question
that when it is not a leap year, December 21 to December 21 of the following
year is one year, If the extra day in a leap year is not a day of the year, because
it is the 366th day, then to what year does it belong? Certainly, it must belong
to the year where it falls and, therefore, that the 366 days constitute one year.”2
The very conclusion thus reached by appellant shows that its theory
contravenes the explicit provision of Art. 13 of the Civil Code of
the Philippines, limiting the connotation of each "year" - as the term is used in
our laws - to 365 days. Indeed, prior to the approval of the Civil Code of
Spain, the Supreme Court thereof had held, on March 30, 1887, that, when the
law spoke of months, it meant a "natural" month or "solar" month, in the
absence of express provision to the contrary. Such provision was incorporated
into the Civil Code of Spain, subsequently promulgated. Hence, the same
Supreme Court declared3 that, pursuant to Art. 7 of said Code, "whenever
months x x x are referred to in the law, it shall be understood that the months
are of 30 days", not the "natural", "solar" or "calendar" months, unless they are
"designated by name", in which case "they shall be computed by the actual
number of days they have." This concept was,
later, modified in the Philippines, by Section 13 of the Revised Administrative
Code, pursuant to which, "month shall be understood to refer to a calendar
month.”4 In the language of this Court, in People vs. Del Rosario 5, "with the
approval of the Civil Code of the Philippines (Republic Act 386) x x x we
have reverted to the provisions of the Spanish Civil Code in accordance with
which a month is to be considered as the regular 30-day
month x x x and not the solar or civil month," with the particularity that,
whereas the Spanish Code merely mentioned "months, days or nights," ours has
added thereto the term "years" and explicitly ordains that "it shall be
understood that years are of three hundred sixty-five days."
Although some members of the Court are inclined to think that this legislation
is not realistic, for failure to conform with ordinary experience or practice, the
theory of plaintiff-appellant herein cannot be upheld without ignoring, if not
nullifying, Art. 13 of our Civil Code, and reviving Section 13 of the Revised
Administrative Code, thereby engaging in judicial legislation, and, in effect, re-
pealing an act of Congress. If public interest demands a reversion to the policy
embodied in the Revised Administrative Code, this may be done through
legislative process, not by judicial decree.
WHEREFORE, the order appealed from should be, as it is hereby affirmed,

without costs.
IT IS SO ORDERED.
Concepcion, C.J., Dizon, Makalintal, Sanchez, Castro, Fernando,

Capistrano, Teehankee and Barredo, JJ., concur.
Reyes and Zaldivar, JJ., are on official leave abroad.
[1]
Sec. 1, Rule 39, in relation to Sec. 3, Rule 31, Rules of Court.
2 Underscoring ours.
3 Decision of April 6, 1895.
4 Guzman v. Lichauco, 42 Phil. 292; Gutierrez v. Carpio, 53 Phil. 334, 335-336.
5 97 Phil. 70-71.

558 Phil. 182 ← click for PDF copy
FIRST DIVISION
[ G.R. NO. 162155. August 28, 2007 ]
COMMISSIONER OF INTERNAL REVENUE AND ARTURO V. PARCERO IN HIS
OFFICIAL CAPACITY AS REVENUE DISTRICT OFFICER OF REVENUE
DISTRICT NO. 049 (MAKATI), PETITIONERS, VS. PRIMETOWN
PROPERTY GROUP, INC., RESPONDENT.
D E C I S I O N
CORONA, J.:
This petition for review on certiorari [1] seeks to set aside the August 1, 2003
decision[2] of the Court of Appeals (CA) in CA-G.R. SP No. 64782 and its
February 9, 2004 resolution denying reconsideration.[3]
On March 11, 1999, Gilbert Yap, vice chair of respondent Primetown Property
Group, Inc., applied for the refund or credit of income tax respondent paid in
1997. In Yap's letter to petitioner revenue district officer Arturo V. Parcero of
Revenue District No. 049 (Makati) of the Bureau of Internal Revenue (BIR),
[4]
he explained that the increase in the cost of labor and materials and difficulty
in obtaining financing for projects and collecting receivables caused the real
estate industry to slowdown.[5] As a consequence, while business was good
during the first quarter of 1997, respondent suffered losses amounting to
P71,879,228 that year.[6]
According to Yap, because respondent suffered losses, it was not liable for
income taxes.[7] Nevertheless, respondent paid its quarterly corporate income
tax and remitted creditable withholding tax from real estate sales to the BIR in
the total amount of P26,318,398.32.[8] Therefore, respondent was entitled to tax
refund or tax credit.[9]
On May 13, 1999, revenue officer Elizabeth Y. Santos required respondent to

submit additional documents to support its claim.[10] Respondent complied but
its claim was not acted upon. Thus, on April 14, 2000, it filed a petition for
review[11] in the Court of Tax Appeals (CTA).
On December 15, 2000, the CTA dismissed the petition as it was filed beyond
the two-year prescriptive period for filing a judicial claim for tax refund or tax
credit.[12] It invoked Section 229 of the National Internal Revenue Code
(NIRC):
Sec. 229. Recovery of Taxes Erroneously or Illegally
Collected. -- No suit or proceeding shall be maintained
in any court for the recovery of any national internal
revenue tax hereafter alleged to have been erroneously or
illegally assessed or collected, or of any penalty
claimed to have been collected without authority, or of
any sum alleged to have been excessively or in any manner
wrongfully collected, until a claim for refund or credit
has been duly filed with the Commissioner; but such suit
or proceeding may be maintained, whether or not such tax,
penalty, or sum has been paid under protest or duress.
In any case, no such suit or proceeding shall be filed

after the expiration of two (2) years from the date of
payment of the tax or penalty regardless of any
supervening cause that may arise after
payment: Provided, however, That the Commissioner may,
even without a claim therefor, refund or credit any tax,
where on the face of the return upon which payment was
made, such payment appears clearly to have been
erroneously paid. (emphasis supplied)
The CTA found that respondent filed its final adjusted return on April 14,
1998. Thus, its right to claim a refund or credit commenced on that date.[13]
The tax court applied Article 13 of the Civil Code which states:
Art. 13. When the law speaks of years, months, days or
nights, it shall be understood that years are of three
hundred sixty-five days each; months, of thirty days;
days, of twenty-four hours, and nights from sunset to
sunrise.
If the months are designated by their name, they shall be

computed by the number of days which they respectively
have.
In computing a period, the first day shall be excluded,

and the last included. (emphasis supplied)
Thus, according to the CTA, the two-year prescriptive period under Section
229 of the NIRC for the filing of judicial claims was equivalent to 730 days.
Because the year 2000 was a leap year, respondent's petition, which was filed
731 days[14] after respondent filed its final adjusted return, was filed beyond the
reglementary period.[15]
Respondent moved for reconsideration but it was denied.[16] Hence, it filed an

appeal in the CA.[17]
On August 1, 2003, the CA reversed and set aside the decision of the CTA.[18] It
ruled that Article 13 of the Civil Code did not distinguish between a regular
year and a leap year. According to the CA:
The rule that a year has 365 days applies,
notwithstanding the fact that a particular year is a leap
year.[19]
In other words, even if the year 2000 was a leap year, the periods covered by
April 15, 1998 to April 14, 1999 and April 15, 1999 to April 14, 2000 should
still be counted as 365 days each or a total of 730 days. A statute which is clear
and explicit shall be neither interpreted nor construed.[20]
Petitioners moved for reconsideration but it was denied.[21] Thus, this appeal.
Petitioners contend that tax refunds, being in the nature of an exemption,

should be strictly construed against claimants.[22] Section 229 of the NIRC
should be strictly applied against respondent inasmuch as it has been
consistently held that the prescriptive period (for the filing of tax refunds and
tax credits) begins to run on the day claimants file their final adjusted returns.
[23]
Hence, the claim should have been filed on or before April 13, 2000 or
within 730 days, reckoned from the time respondent filed its final adjusted
return.
The conclusion of the CA that respondent filed its petition for review in the
CTA within the two-year prescriptive period provided in Section 229 of the
NIRC is correct. Its basis, however, is not.
The rule is that the two-year prescriptive period is reckoned from the filing of
the final adjusted return.[24] But how should the two-year prescriptive period be
computed?
As already quoted, Article 13 of the Civil Code provides that when the law
speaks of a year, it is understood to be equivalent to 365 days. In National
Marketing Corporation v. Tecson,[25] we ruled that a year is equivalent to 365
days regardless of whether it is a regular year or a leap year.[26]
However, in 1987, EO[27] 292 or the Administrative Code of 1987 was enacted.
Section 31, Chapter VIII, Book I thereof provides:
Sec. 31. Legal Periods. - "Year" shall be understood
to be twelve calendar months; "month" of thirty days,
unless it refers to a specific calendar month in which
case it shall be computed according to the number of days
the specific month contains; "day", to a day of twenty-
four hours and; "night" from sunrise to sunset. (emphasis
supplied)
A calendar month is "a month designated in the calendar without regard to the
number of days it may contain."[28] It is the "period of time running from the
beginning of a certain numbered day up to, but not including, the
corresponding numbered day of the next month, and if there is not a sufficient
number of days in the next month, then up to and including the last day of that
month."[29] To illustrate, one calendar month from December 31, 2007 will be
from January 1, 2008 to January 31, 2008; one calendar month from January
31, 2008 will be from February 1, 2008 until February 29, 2008.[30]
A law may be repealed expressly (by a categorical declaration that the law is
revoked and abrogated by another) or impliedly (when the provisions of a more
recent law cannot be reasonably reconciled with the previous one).[31] Section
27, Book VII (Final Provisions) of the Administrative Code of 1987 states:
Sec. 27. Repealing clause. - All laws, decrees, orders,
rules and regulation, or portions thereof, inconsistent
with this Code are hereby repealed or modified
accordingly.
A repealing clause like Sec. 27 above is not an express repealing clause
because it fails to identify or designate the laws to be abolished. [32] Thus, the
provision above only impliedly repealed all laws inconsistent with the
Administrative Code of 1987.
Implied repeals, however, are not favored. An implied repeal must have been
clearly and unmistakably intended by the legislature. The test is whether the
subsequent law encompasses entirely the subject matter of the former law and
they cannot be logically or reasonably reconciled.[33]
Both Article 13 of the Civil Code and Section 31, Chapter VIII, Book I of the
Administrative Code of 1987 deal with the same subject matter - the
computation of legal periods. Under the Civil Code, a year is equivalent to 365
days whether it be a regular year or a leap year. Under the Administrative Code
of 1987, however, a year is composed of 12 calendar months. Needless to state,
under the Administrative Code of 1987, the number of days is irrelevant.
There obviously exists a manifest incompatibility in the manner of computing

legal periods under the Civil Code and the Administrative Code of 1987. For
this reason, we hold that Section 31, Chapter VIII, Book I of the Administrative
Code of 1987, being the more recent law, governs the computation of legal
periods. Lex posteriori derogat priori.
Applying Section 31, Chapter VIII, Book I of the Administrative Code of 1987
to this case, the two-year prescriptive period (reckoned from the time
respondent filed its final adjusted return[34] on April 14, 1998) consisted of 24
calendar months, computed as follows:
Year 1 1st calendar month April 15, 1998 to May 14, 1998
2nd calendar month May 15, 1998 to June 14, 1998
3rd calendar month June 15, 1998 to July 14, 1998
4th calendar month July 15, 1998 to August 14, 1998
September 14,
5th calendar month August 15, 1998 to
1998
September 15, 1998
6th calendar month October 14, 1998
to
7th calendar month October 15, 1998 to November 14, 1998
November 15, 1998
8th calendar month December 14, 1998
to
December 15, 1998
9th calendar month January 14, 1999
to
10th calendar month January 15, 1999 to February 14, 1999
February 15, 1999
11th calendar month March 14, 1999
to
12th calendar month March 15, 1999 to April 14, 1999
Year 2 13th calendar month April 15, 1999 to May 14, 1999
14th calendar month May 15, 1999 to June 14, 1999
15th calendar month June 15, 1999 to July 14, 1999
16th calendar month July 15, 1999 to August 14, 1999
September 14,
17th calendar month August 15, 1999 to
1999
September 15, 1999
18th calendar month October 14, 1999
to
19th calendar month October 15, 1999 to November 14, 1999
November 15, 1999
20th calendar month December 14, 1999
to
December 15, 1999
21st calendar month January 14, 2000
to
22nd calendar month January 15, 2000 to February 14, 2000
February 15, 2000
23rd calendar month March 14, 2000
to
24th calendar month March 15, 2000 to April 14, 2000
We therefore hold that respondent's petition (filed on April 14, 2000) was filed
on the last day of the 24th calendar month from the day respondent filed its
final adjusted return. Hence, it was filed within the reglementary period.
Accordingly, the petition is hereby DENIED. The case is REMANDED to the

Court of Tax Appeals which is ordered to expeditiously proceed to hear C.T.A.
Case No. 6113 entitled Primetown Property Group, Inc. v. Commissioner of
Internal Revenue and Arturo V. Parcero.
No costs.
SO ORDERED.
Puno, C.J. (Chairperson), Sandoval-Gutierrez, Azcuna and Garcia, JJ., concur.
[1]
Under Rule 45 of the Rules of Court.
[2]
Penned by Associate Justice Marina L. Buzon and concurred in by Associate
Justices Rebecca de Guia- Salvador and Jose C. Mendoza of the Special
Fifteenth Division of the Court of Appeals. Rollo, pp. 21-25.
[3]
Penned by Associate Justice Marina L. Buzon and concurred in by Associate
Justices Rebecca de Guia- Salvador and Jose C. Mendoza of the Former
Special Fifteenth Division of the Court of Appeals. Id., pp. 26-28.
[4]
Id., pp. 37-42.
[5]
Id., pp. 39-40.
[6]
Id. This was the period of economic slowdown known as the "Asian
(Financial) Crisis" which started in mid-1997.
[7]
Id., p. 41.
[8]
Summary of Tax/Payments for 1997:
Corporate Income Creditable

Quarter TOTAL
Tax Withholding Tax
1st P 3,440,082.00 P 687,783.00 P 4,127,865.00

2nd 15,694,502.00 633,175.00 16,327,677.00
3rd 2,419,868.81 3,154,506.51 5,574,375.32
4th 288,481.00 288,481.00
P 21,554,452.81 P 4,763,945.51 P 26,318,398.32
Id., p. 40.
[9]
Id., p. 41.
[10]
Id., pp. 78-79.
[11]
Docketed as C.T.A. Case No. 6113. Id., pp. 192-199.
[12]
Penned by Presiding Judge Ernesto D. Acosta and concurred in by Associate
Judges Amancio Q. Saga (retired) and Ramon O. de Veyra (retired). Dated
December 15, 2000. Id., pp. 187-190.
[13]
CIR v. CA, 361 Phil. 359, 364-365 (1999).
[14]
The computation was as follows:
April 15, 1998 to April 14, 1999 ----------------------- 365 days

April 15, 1999 to April 14, 2000 (leap year) ---------- 366 days
TOTAL 731 days
[15]
Rollo, p. 190.
[16]
Id., p. 191.
[17]
Docketed as CA-G.R. SP No. 64782. Id., pp. 180-186. (This case observes
the procedure in RA 1125 prior to the amendments of RA 9282.)
[18]
Id., pp. 21-25. Under RA 9282 which took effect on April 22, 2004,
decisions of the CTA are now appealable to the Supreme Court.
[19]
Id., p. 24.
[20]
Id.
[21]
Id., pp. 26-28.
[22]
Id., p. 13.
[23]
Id., p. 15.
[24]
Tax Code, Sec. 229 and supra note 12 at 367. See also ACCRA Investments
Corporation v. CA., G.R. No. 96322, 20 December 1991, 204 SCRA 957. See
also CIR v. Philippine American Life Insurance Co., G.R. No. 105208, 29 May
1995, 244 SCRA 446.
[25]
139 Phil. 584 (1969).
[26]
Id., pp. 588-589 citing People v. del Rosario, 97 Phil 70, 71 (1955).
[27]
Executive Order
[28]
Gutierrez v. Carpio, 53 Phil. 334, 335-336 (1929).
[29]
Section 9, Time, 74 AmJur 2d 593 citing Re Lynch's Estate, 123 Utah 57,
254 P2d 454.
[30]
This is pursuant to Article 13(3) of the Civil Code which provides that "[i]n
computing a period, the first day shall be excluded, and the last day included."
Cf. Rules of Court, Rule 22, Sec. 1. The section provides:
Section 1. How to compute time. In computing any period of time prescribed or

allowed by this Rules, or by the order of the court, or by any applicable
statute, the day of the act or event from which the designated period of
time begins to run is to be excluded and the date of performance
included. If the last day of the period, as thus computed, falls on a Saturday, a
Sunday or a legal holiday in the place where the court sits, the time shall not
run until the next working day. (emphasis supplied)
[31]
Jose Jesus G. Laurel, Statutory Construction: Cases and Materials, 1999 ed.,
176 citing Black's Law Dictionary, 4th ed., 1463.
[32]
Agujetas v. Court of Appeals, G.R. No. 106560, 23 August 1996, 261 SCRA
17, 32.
[33]
David v. Commission on Election, G.R. No. 127116, 08 April 1997, 271
SCRA 90, 103.
[34]
Supra note 25.
Source: Supreme Court E-Library | Date created: August 02, 2013

294 Phil. 153
THIRD DIVISION
[ G.R. No. 98382. May 17, 1993 ]
PHILIPPINE NATIONAL BANK, PETITIONER, VS. THE COURT OF
APPEALS AND EPIFANIO DE LA CRUZ, RESPONDENTS.
D E C I S I O N
MELO, J.:
The notices of sale under Section 3 of Act No. 3135, as amended by Act No.
4118, on extra-judicial foreclosure of real estate mortgage are required to be
posted for not less than twenty days in at least three public places of the
municipality or city where the property is situated, and if such property is
worth more than four hundred pesos, such notices shall also be published once
a week for at least three consecutive weeks in a newspaper of general
circulation in the municipality or city.
Respondent court, through Justice Filemon Mendoza with whom Justices

Campos, Jr. and Aldecoa, Jr. concurred, construed the publication of the
notices on March 28, April 11 and 12, 1969 as a fatal announcement and
reversed the judgment appealed from by declaring void, inter alia, the auction
sale of the foreclosed pieces of realty, the final deed of sale, and the
consolidation of ownership (p. 27, Rollo).
Hence, the petition at bar, premised on the following backdrop lifted from the
text of the challenged decision:
The facts of the case as related by the trial court are,

as follows:
"This is a verified complaint brought by the plaintiff for the reconveyance to

him (and resultant damages) of two (2) parcels of land mortgaged by him to the
defendant Philippine National Bank (Manila), which the defendant allegedly
unlawfully foreclosed. The defendant then consolidated ownership unto itself,
and subsequently sold the parcels to third parties. The amended Answer of the
defendant states on the other hand that the extrajudicial foreclosure,
consolidation of ownership, and subsequent sale to the third parties were all
valid, the bank therefore counterclaims for damages and other equitable
remedies.
xxx
From the evidence and exhibits presented by both parties, the Court is of the
opinion that the following facts have been proved: Two lots, located at Bunlo,
Bocaue, Bulacan (the first covered by Torrens Certificate No. 16743 and
possessed of an area of approximately 3,109 square meters: the second covered
by Torrens Certificate No. 5787, possessed of an area of around 610 square
meters, and upon which stood a residential-commercial building were
mortgaged to the defendant Philippine National Bank. The lots were under the
common names of the plaintiff (Epifanio dela Cruz), his brother (Delfin) and
his sister (Maria). The mortgage was made possible because of the grant by the
latter two to the former of a special power of attorney to mortgage the lots to
the defendant. The lots were mortgaged to guarantee the following promissory
notes:
(1) a promissory note for P12,000.00, dated September 2, 1958,

and payable within 69 days (date of maturity - Nov. 10, 1958);
(2) a promissory note for P4,000.00, dated September 22, 1958,

and payable within 49 days (date of maturity - Nov. 10, 1958);
(3) a promissory note for P4,000.00, dated June 30, 1958 1/ and
payable within 120 days (date of maturity-Nov. 10, 1958) See
also Annex C of the complaint itself).
[1/ This date of June 30, 1958 is disputed by the plaintiff who claims that the
correct date is June 30, 1961, which is the date actually mentioned in the
promissory note. It is however difficult to believe the plaintiff's contention
since if it were true and correct, this would mean that nearly three (3) years
elapsed between the second and the third promissory note; that at the time the
third note was executed, the first two had not yet been paid by the plaintiff
despite the fact that the first two were supposed to be payable within 69 and 49
days respectively. This state of affairs would have necessitated the renewal of
said two promissory notes. No such renewal was proved, nor was the renewal
ever alleged. Finally, and this is very significant: the third mentioned
promissory note states that the maturity date is Nov. 10, 1958. Now, then, how
could the loan have been contracted on June 30, 1961? It will be observed that
in the bank records, the third mentioned promissory note was really executed
on June 30, 1958 (See Exhs. 9 and 9-A). The Court is therefore inclined to
believe that the date "June 30, 1961" was a mere clerical error and that the true
and correct date is June 30, 1958. However, even assuming that the true and
correct date is June 30, 1961, the fact still remains that the first two promissory
notes had been guaranteed by the mortgage of the two lots, and therefore, it
was legal and proper to foreclose on the lots for failure to pay said two
promissory notes.]
On September 6, 1961, Atty. Ramon de los Reyes of the bank (PNB) presented
under Act No. 3135 a foreclosure petition of the two mortgaged lots before the
Sheriff's Office at Malolos, Bulacan; accordingly, the two lots were sold or
auctioned off on October 20, 1961 with the defendant PNB as the highest
bidder for P28,908.46. On March 7, 1963, Sheriff Leopoldo Palad executed a
Final Deed of Sale, in response to a letter-request by the Manager of the PNB
(Malolos Branch). On January 15, 1963, a Certificate of Sale in favor of the
defendant was executed by Sheriff Palad. The final Deed of Sale was registered
in the Bulacan Registry of Property on March 19, 1963. Inasmuch as the
plaintiff did not volunteer to buy back from the PNB the two lots, the PNB sold
on June 4, 1970 the same to spouses Conrado de Vera and Marina de Vera in a
"Deed of Conditional Sale". (Decision, pp. 3-5; Amended Record on Appeal,
pp. 96-98).
After due consideration of the evidence, the CFI on

January 22, 1978 rendered its Decision, the dispositive
portion of which reads:
"WHEREFORE, PREMISES CONSIDERED, the instant complaint against the

defendant Philippine National Bank is hereby ordered DISMISSED, with costs
against the plaintiff. The counterclaim against the plaintiff is likewise
DISMISSED, for the Court does not believe that the complaint had been made
in bad faith.
SO ORDERED." (Decision, p. 8; Amended Record on Appeal, p. 100)
Not satisfied with the judgment, plaintiff interposed the

present appeal assigning as errors the following:
"I
THE LOWER COURT ERRED IN HOLDING IN FOOTNOTE 1 OF ITS

DECISION THAT IT IS THEREFORE INCLINED TO BELIEVE THAT
THE DATE "JUNE 30, 1962" WAS A MERE CLERICAL ERROR AND
THAT THE TRUE AND CORRECT DATE IS JUNE 30, 1958. IT ALSO
ERRED IN HOLDING IN THE SAME FOOTNOTE 1 THAT "HOWEVER,
EVEN ASSUMING THAT THE TRUE AND CORRECT DATE IS JUNE 30,
1961, THE FACT STILL REMAINS THAT THE FIRST TWO
PROMISSORY NOTES HAD BEEN GUARANTEED BY THE
MORTGAGE OF THE TWO LOTS, AND THEREFORE, IT WAS LEGAL
AND PROPER TO FORECLOSE ON THE LOTS FOR FAILURE TO PAY
SAID TWO PROMISSORY NOTES". (page 115, Amended Record on
Appeal)
II
THE LOWER COURT ERRED IN NOT HOLDING THAT THE PETITION

FOR EXTRAJUDICIAL FORECLOSURE WAS PREMATURELY FILED
AND IS A MERE SCRAP OF PAPER BECAUSE IT MERELY
FORECLOSED THE ORIGINAL AND NOT THE AMENDED
MORTGAGE.
III
THE LOWER COURT ERRED IN HOLDING THAT "IT IS CLEAR THAT

THE AUCTION SALE WAS NOT PREMATURE". (page 117, Amended
Record on Appeal)
IV
THE LOWER COURT ERRED IN HOLDING THAT "SUFFICE IT TO

STATE THAT ACTUALLY THE POWER OF ATTORNEY GIVEN TO THE
PNB WAS EMBODIED IN THE REAL ESTATE MORTGAGE (EXB. 10)
WHICH WAS REGISTERED IN THE REGISTRY OF PROPERTY OF
BULACAN AND WAS ANNOTATED ON THE TWO TORRENS
CERTIFICATES INVOLVED" (page 118, Amended Record on Appeal).
THE LOWER COURT ERRED IN HOLDING THAT "THE NOTICES

REQUIRED UNDER SEC. 3 OF ACT NO. 3135 WERE ALL COMPLIED
WITH" AND "THAT THE DAILY RECORD x x x IS A NEWSPAPER OF
GENERAL CIRCULATION (pages 117-118, Amended Record on Appeal).
VI
THE LOWER COURT ERRED IN NOT DECLARING THE CERTIFICATE

OF SALE, FINAL DEED OF SALE AND AFFIDAVIT OF
CONSOLIDATION, NULL AND VOID.
VII
THE LOWER COURT ERRED IN NOT ORDERING DEFENDANT TO

RECONVEY TO PLAINTIFF THE PARCELS OF LAND COVERED BY
T.C.T. NOS. 40712 AND 40713 OF BULACAN (page 8, Amended Record on
Appeal)
VIII
THE LOWER COURT ERRED IN NOT ORDERING DEFENDANT TO

PAY TO PLAINTIFF REASONABLE AMOUNTS OF MORAL AND
EXEMPLARY DAMAGES AND ATTORNEY'S FEES (page 8, Amended
Record on Appeal).
IX
THE LOWER COURT ERRED IN DISMISSING THE INSTANT
COMPLAINT AGAINST THE PHILIPPINE NATIONAL BANK, WITH
COSTS AGAINST THE PLAINTIFF. (page 118, Amended Record on
Appeal)." (Brief for Plaintiff-Appellant, pp. 1-4) (pp. 17-21, Rollo)
With reference to the pertinent issue at hand, respondent court opined:
The Notices of Sale of appellant's foreclosed properties

were published on March 28, April 11 and April 12, 1969
issues of the newspaper "Daily Record" (Amended Record on
Appeal, p. 108). The date March 28, 1969 falls on a
Friday while the dates April 11 and 12, 1969 are on a
Friday and Saturday, respectively. Section 3 of Act No.
3135 requires that the notice of auction sale shall be
"published once a week for at least three consecutive
weeks". Evidently, defendant-appellee bank failed to
comply with this legal requirement. The Supreme Court has
held that:
"The rule is that statutory provisions governing publication of notice of

mortgage foreclosure sales must be strictly complied with, and that even slight
deviations therefrom will invalidate the notice and render the sale at least
voidable (Jalandoni vs. Ledesma, 64 Phil. 1058, G.R. No. 42589, August 31,
1937 and October 29, 1937). Interpreting Sec. 457 of the Code of Civil
Procedure (reproduced in Sec. 18(c) of Rule 39, Rules of Court and in Sec. 3 of
Act No. 3135) in Campomanes vs. Bartolome and German & Co. (38 Phil. 808,
G.R. No. 1309, October 18, 1918), this Court held that if a sheriff sells without
the notice prescribed by the Code of Civil Procedure induced thereto by the
judgment creditor, and the purchaser at the sale is the judgment creditor, the
sale is absolutely void and no title passes. This is regarded as the settled
doctrine in this jurisdiction whatever the rule may be elsewhere (Borja vs.
Addison, 14 Phil. 895, G.R. No. 18010, June 21, 1922).
x x x. It has been held that failure to advertise a mortgage foreclosure sale in

compliance with statutory requirements constitutes a jurisdictional defect
invalidating the sale and that a substantial error or omission in a notice of sale
will render the notice insufficient and vitiate the sale (59 C.J.S. 1314)."
(Tambunting vs. Court of Appeals, L-48278, November 8, 1988; 167 SCRA
16, 23-24).
In view of the admission of defendant-appellee in its

pleading showing that there was no compliance of the
notice prescribed in Section 3 of Act No. 3135, as
amended by Act 4118, with respect to the notice of sale
of the foreclosed real properties in this case, we have
no choice but to declare the auction sale as absolutely
void in view of the fact that the highest bidder and
purchaser in said auction sale was defendant-appellee
bank. Consequently, the Certificate of Sale, the Final
Deed of Sale and Affidavit of Consolidation are likewise
of no legal efffect. (pp. 24-25, Rollo)
Before we focus our attention on the subject of whether or not there was valid
compliance in regard to the required publication, we shall briefly discuss the
other observations of respondent court vis-a-vis herein private respondent's
ascriptions raised with the appellate court when his suit for reconveyance was
dismissed by the court of origin even as private respondent does not impugn
the remarks of respondent court along this line.
Although respondent court acknowledged that there was an ambiguity on the

date of execution of the third promissory note (June 30, 1961) and the date of
maturity thereof (October 28, 1958), it was nonetheless established that the
bank introduced sufficient proof to show that the discrepancy was a mere
clerical error pursuant to Section 7, Rule 130 of the Rules of Court. Anent the
second disputation aired by private respondent, the appellate court observed
that inasmuch as the original as well as the subsequent mortgage were
foreclosed only after private respondent's default, the procedure pursued by
herein petitioner in foreclosing the collaterals was thus appropriate albeit the
petition therefor contained only a copy of the original mortgage.
It was only on the aspect of publication of the notices of sale under Act No.
3135, as amended, and attorney's fees where herein private respondent scored
points which culminated in the reversal of the trial court's decision. Respondent
court was of the impression that herein petitioner failed to comply with the
legal requirement and the sale effected thereafter must be adjudged invalid
following the ruling of this Court in Tambunting vs. Court of Appeals (167
SCRA 16 [1988]); p. 8, Decision, p. 24, Rollo). In view of petitioner's so-
called indifference to the rules set forth under Act No. 3135, as amended,
respondent court expressly authorized private respondent to recover attorney's
fees because he was compelled to incur expenses to protect his interest.
Immediately upon the submission of a supplemental petition, the spouses

Conrado and Marina De Vera filed a petition in intervention, claiming that the
two parcels of land involved herein were sold to them on June 4, 1970 by
petitioner for which transfer certificates of title were issued in their favor (p.
40, Rollo). On the other hand, private respondent pressed the idea that the
alleged intervenors have no more interest in the disputed lots in view of the sale
effected by them to Teresa Castillo, Aquilino and Antonio dela Cruz in 1990
(pp. 105-106, Rollo).
On March 9, 1992, the Court resolved to give due course to the petition and
required the parties to submit their respective memoranda (p. 110, Rollo).
Now, in support of the theory on adherence to the conditions spelled in the

preliminary portion of this discourse, the pronouncement of this Court
in Bonnevie vs. Court of Appeals (125 SCRA 122 [1983]; p. 135, Rollo) is
sought to be utilized to press the point that the notice need not be published for
three full weeks. According to petitioner, there is no breach of the proviso since
after the first publication on March 28, 1969, the second notice was published
on April 11, 1969 (the last day of the second week), while the third publication
on April 12, 1969 was announced on the first day of the third week. Petitioner
thus concludes that there was no violation from the mere happenstance that the
third publication was made only a day after the second publication since
it is enough that the second publication be made on any day within the second
week, and the third publication, on any day within the third week. Moreover, in
its bid to rectify its admission in judicio, petitioner asseverates that said
admission alluded to refers only to the dates of publications, not that there was
non-compliance with the publication requirement.
Private respondent, on the other hand, views the legal question from a different
perspective. He believes that the period between each publication must never
be less than seven consecutive days (p. 4, Memorandum; p. 124, Rollo)
We are not convinced by petitioner's submissions because the disquisition in

support thereof rests on the erroneous impression that the day on which the first
publication was made, or on March 28, 1969, should be excluded pursuant to
the third paragraph of Article 13 of the New Civil Code.
It must be conceded that Article 13 is completely silent as to the definition of

what is a "week". In Concepcion vs. Zandueta (36 O.G. 3139 [1938]; Moreno,
Philippine Law Dictionary, Second Ed., 1972, p. 660), this term was
interpreted to mean as a period of time consisting of seven consecutive days - a
definition which dovetails with the ruling
in E.M. Derby and Co. vs. City of Modesto, et al. (38 Pac. Rep. 900 [1984];
1 Paras, Civil Code of the Philippines Annotated, Twelfth Ed., 1989, p. 88;
1 Tolentino, Commentaries and Jurisprudence on the Civil Code, 1990, p.
46). Following the interpretation in Derby as to the publication of an ordinance
for "at least two weeks" in some newspaper that:
. . . here there is no date or event suggesting the

exclusion of the first day's publication from the
computation, and the cases above cited take this
case out of the rule stated in Section 12, Code Civ.
Proc. which excludes the first day and includes the
last;
the publication effected on April 11, 1969 cannot be construed as sufficient

advertisement for the second week because the period for the first week should
be reckoned from March 28, 1969 until April 3, 1969 while the second week
should be counted from April 4, 1969 until April 10, 1969. It is clear that the
announcement on April 11, 1969 was both theoretically and physically
accomplished during the first day of the third week and cannot thus be equated
with compliance in law. Indeed, where the word is used simply as a measure of
duration of time and without reference to the calendar, it means a period of
seven consecutive days without regard to the day of the week on which it
begins (1 Tolentino, supra at p. 467 citing Derby).
Certainly, it would have been absurd to exclude March 28, 1969 as reckoning
point, in line with the third paragraph of Article 13 of the New Civil Code, for
the purpose of counting the first week of publication as to make the last day
thereof fall on April 4, 1969 because this will have the effect of extending the
first week by another day. This incongruous repercussion could not have been
the unwritten intention of the lawmakers when Act No. 3135 was enacted.
Verily, inclusion of the first day of publication is in keeping with the
computation in Bonnevie vs. Court of Appeals (125 SCRA 122 [1983]) where
this Court had occasion to pronounce, through Justice Guerrero, that the
publication of notice on June 30, July 7 and July 14, 1968 satisfied the
publication requirement under Act No. 3135. Respondent court cannot,
therefore, be faulted for holding that there was no compliance with the strict
requirements of publication independently of the so-called
admission in judicio.
WHEREFORE, the petitions for certiorari and intervention are hereby

dismissed and the decision of the Court of Appeals dated April 17, 1991 is
hereby affirmed in toto.
SO ORDERED.
Feliciano, (Chairman), Bidin, Davide, Jr., and Romero, JJ., concur.
Source: Supreme Court E-Library | Date created: June 21, 2019

207 Phil. 615
FIRST DIVISION
[ G.R. No. L-28841. June 24, 1983 ]
RAFAEL YAPDIANGCO, PETITIONER-APPELLANT, VS. THE HON.
CONCEPCION B. BUENCAMINO AND HON. JUSTINIANO CORTEZ,
RESPONDENTS-APPELLEES.
D E C I S I O N
GUTIERREZ, JR., J.:
If the last day in the period of prescription of a felony falls on a Sunday or legal
holiday, may the information be filed on the next working day?
Stated otherwise, the Issue in this appeal from a decision of the Court of First
Instance of Rizal, Branch IX at Quezon City is whether or not a Sunday or a
legal holiday is a legal efficient cause which interrupts the prescription of an
offense.
On February 1, 1965, the City Fiscal of Quezon City filed before the City Court
an information for slight physical injuries allegedly committed by the
petitioner-appellant on December 2, 1964 against Mr. Ang Cho Ching.
On September 10, 1965, the petitioner-appellant moved to quash the criminal

prosecution on the ground that the information having been filed on the sixty
first day following the commission of the offense, the sixty days prescriptive
period had lapsed.
On September 14, 1965, the City Court of Quezon City denied the motion to
quash stating that the 60th day fell on a Sunday and considering the rule that
when the last day for the filing of a pleading falls on a Sunday, the same may
be filed on the next succeeding business day, the action had not prescribed.
After a motion for reconsideration was denied by the City Court, the petitioner-
appellant filed a petition for certiorari and mandamus with preliminary
injunction before the Court of First Instance of Rizal.
On July 11, 1966, the Court of First Instance of Rizal dismissed the petition. A
motion for reconsideration was subsequently denied. Hence, this appeal.
The petitioner-appellant raised the following assignments of errors:
FIRST ASSIGNMENT OF ERROR
THE LOWER COURT ERRED IN FINDING THAT SUNDAY IS A LEGAL

EFFICIENT CAUSE TO INTERRUPT PRESCRIPTION OF AN OFFENSE.
SECOND ASSIGNMENT OF ERROR
THE LOWER COURT ERRED IN FINDING THAT THE PERIOD FIXED BY

LAW WITHIN WHICH TO COMMENCE CRIMINAL PROSECUTION MAY
LEGALLY BE EXTENDED WITH THE INTERVENTION OF A SUNDAY OR
LEGAL HOLIDAY.
THIRD ASSIGNMENT OF ERROR
THE LOWER COURT ERRED IN DENYING THE PETITION FOR

MANDAMUS AND PRELIMINARY INJUNCTION.
Under Article 90 of the Revised Penal Code, light offenses prescribe in two
months. Article 13 of the Civil Code provides that when the law speaks of
months, it shall be understood that months are of thirty days each.
Article 91 of the Revised Penal Code reads:
"ART. 91. Computation of prescription of offenses.— The

period of prescription shall commence to run from the day
on which the crime is discovered by the offended party,
the authorities or their agents, and shall be interrupted
by the filing of the complaint or information, and shall
commence to run again when such proceedings terminate
without the accused being convicted or acquitted, or are
unjustifiably stopped for any reason not imputable to
him.
"The term of prescription shall not run when the offender

is absent from the Philippine Archipelago."
In support of his three assignments of errors which he discusses jointly, the

petitioner-appellant argues:
. . . . . .
. . .
"b) the fact that the 60th day was a Sunday did not
interrupt nor stop the running of the prescriptive
period, for
i) as a matter of statutory articulation a

Sunday or holiday is not recognized as
legally efficient cause to interrupt
prescription;
ii) under the principle of inclusio unius

exclusio alterius, the single exception of
offender's absence specified in Article 91 of
the Revised Penal Code excludes any other
cause sufficient to interrupt prescription;
"iii) under the specific and controlling

jurisprudence of the cases that the last day
of prescriptive period is a Sunday or a
holiday does not interrupt prescription.
"15 AM. Jur., Section 346, page 34:
"'The statute of limitations run from the

time the offense is committed until the
prosecution is commenced. . . .'
"Ibid., Section 357, page 37:
"'The running of the statute of limitation

can be prevented only by the means or for the
reasons specified therein . . . .'
"Ibid., Section 342, page 32:
"'Statutes of limitations in criminal cases

differ from those in civil cases. In civil
cases they are statutes of repose, while in
criminal cases they create a bar to the
prosecution. . . .'
"22 C.J.S., Section 228 (1), 596-597:
"'As a general rule, exceptions will not be

implied to the statutes of limitations of
criminal offenses, and hence, in criminal
prosecutions unless the statute of
limitations contains an exception or
condition that will toll its operation, the
running of the statute is not interrupted,
save only by indictment or other sufficient
procedure commencing the prosecution of the
offense. After the statute has commenced to
run it will not be interrupted by the
happening of any subsequent event or
disability . . ..'
"45 Century Digest, Time, Section 41:
"'When an action would be barred on Sunday,

that day must be excluded from the count and
the action brought on the Saturday preceding,
to save the bar. (Allen vs. Elliot, 67 Ala.
432.)'
"'Where the year in which to begin an action

expires on Sunday, the action must be begun
on the preceding day. (William vs. Lane, 87
Wis. 152, 58 NW 77.)'
"iv) under the pervasive criminal law

principle of liberal construction of penal
statutes in favor of the accused the
conclusion is evident that the exception
clause to the prescriptive rule in Article 91
of the Revised Penal Code should not be
unduly stretched and strained to include
exceptions not specified nor as much as
intimated in the statute.
"U.S. vs. Abad Santos, 36 Phil. 243:
"'Criminal statutes are to be strictly

construed; no persons should be brought
within the terms who is not clearly within
them nor should any act be pronounced
criminal when it is not made so.'
"v) extinctive or acquisitive prescription is

not similar to reglementary periods provided
in the Rules of Court or in any other
statutes, hence, may not be extended under
the 'next business day theory'. Thus, it
cannot be said under our system that a party
has a right to move, and the court the
corresponding authority to grant an extension
of a period of prescription."
As against these arguments of the petitioner-appellant, the respondents cite the

following provision of the Revised Administrative Code to sustain their side:
"SEC. 31. Pretermission of holiday.— Where the day, or

the last day, for doing any act required or permitted by
law falls on a holiday, the act may be done on the next
succeeding business day."
The law requires or permits the filing of the information within two months or
sixty days from the date the crime was discovered by the offended party. Since
the 60th day or last day for the filing of the information in this case fell on a
holiday, according to the respondents-appellees the law should allow the filing
of charges to be done on the next succeeding business day.
If we follow the ordinary rule of time computation, based on the common law,
which, in construing statutes of limitations excludes the first day and includes
the last day unless the last day is dies non in which event the following day is
included, the stand of the respondents-appellees would be correct.
As pointed out by the respondents-appellees, Section 1, Rule 28 of the former

Rules of Court provided:
. . . . . .
. . .
"'How to compute time.— In computing any period of time

prescribed or allowed by these rules, by order of court,
or by any applicable statute, the day of the act, event,
or default after which the designated period of time
begins to run is not to be included. The last day of the
period so computed is to be included, unless it is a
Sunday or a legal holiday, in which event the time shall
run until the end of the next day which is neither a
Sunday nor a holiday.'"
After carefully considering all the foregoing, we find the arguments of the
petitioners-appellants meritorious. We are not dealing in this case with a simple
rule on when a pleading may be filed.
The case at hand does not involve the simple issue of when to do an act. It
deals with the prescription of a criminal action. Under unquestioned authorities,
the question to be resolved is when the State is deemed to have lost or waived
its right to prosecute an act prohibited and punished by law. (People v. Moran,
44 Phil. 387, 406-7; People v. Parel, 44 Phil. 437, 445; People v. Montenegro,
68 Phil. 659). Wharton, in his work on Criminal Pleading and Practice, quoted
in People v. Moran has this to say about the nature of the statute of limitations
in criminal actions:
"We should at first observe that a mistake is sometimes

made in applying to statutes of limitation in criminal
suits the construction that has been given to statutes of
limitation in civil suits. The two classes of statutes,
however, are essentially different. In civil suits the
statute is interposed by the legislature as an impartial
arbiter between two contending parties. In the
construction of the statute, therefore, there is no
intendment to be made in favor of either party. Neither
grants the right to the other; there is therefore no
grantor against whom the ordinary presumptions of
construction are to be made. But it is otherwise when a
statute of limitation is granted by the State. Here the
State is the grantor, surrendering by act of grace its
rights to prosecute, and declaring the offense to be no
longer the subject of prosecution. The statute is not a
statute of process, to be scantily and grudgingly
applied, but an amnesty, declaring that after a certain
time oblivion shall be cast over the offense; that the
offender shall be at liberty to return to his country,
and resume his immunities as a citizen; and that from
henceforth he may cease to preserve the proofs of his
innocence, for the proofs of his guilt are blotted
out. Hence it is that statutes of limitation are to be
liberally construed in favor of the defendant, not only
because such liberality of construction belongs to all
acts of amnesty and grace, but because the very existence
of the statute is a recognition and notification by the
legislature of the fact that time, while it gradually
wears out proofs and innocence, has assigned to it fixed
and positive periods in which it destroys proofs of
guilt. Independently of these views, it must be
remembered that delay in instituting prosecutions is not
only productive of expense to the State, but of peril to
public justice in the attenuation and distortion, even by
mere natural lapse of memory, of testimony. It is the
policy of the law that prosecutions should be prompt and
that statutes enforcing such promptitude should be
vigorously maintained. They are not merely acts of
grace, but checks imposed by the State upon itself, to
exact vigilant activity from its subalterns, and to
secure for criminal trials the best evidence that can be
obtained." (44 Phil. 405-406; italics supplied).
The rules contained in Section 31 of the Revised Administrative Code and

Section 1, Rule 28 of the Old Rules of Court deal with the computation of time
allowed to do a particular act, such as, the filing of tax returns on or before a
definite date, filing an answer to a complaint, taking an appeal, etc. They do not
apply to lengthen the period fixed by the State for it to prosecute those who
committed a crime against it. The waiver or loss of the right to prosecute such
offenders is automatic and by operation of law. Where the sixtieth and last day
to file an information falls on a Sunday or legal holiday, the sixty-day period
cannot be extended up to the next working day. Prescription has automatically
set in. The remedy is for the fiscal or prosecution to file the information on the
last working day before the criminal offense prescribes.
WHEREFORE, the petition for certiorari and mandamus is granted. The

questioned order of the respondent court is SET ASIDE. The motion to quash
is GRANTED and the information before the city court is DISMISSED.
SO ORDERED.
Teehankee (Chairman), Melencio-Herrera, Plana and Vasquez, JJ., concur.

Relova, J., I dissent. Sec. 31 of the Revised Administrative Code provides that
"where the day, or the last day, for doing an act required or permitted by law
falls on holiday, the act may be done on the next succeeding business day." In
the case at bar, since the last day within which to file the complaint or
information in court fell on a Sunday, the filing thereof may be done on the
next succeeding business day.

VI.
75 Phil. 113
[ G.R. No. L-5.[1]. September 17, 1945 ]

CO KIM CHAM (ALIAS CO CHAM), PETITIONER, VS. EUSEBIO VALDEZ
TAN KEH AND ARSENIO P. DIZON, JUDGE OF FIRST INSTANCE OF
MANILA, RESPONDENTS.
FERIA, J.:
This is a petition for mandamus in which petitioner prays that the respondent
judge of the lower court be ordered to continue the proceedings in civil case
No. 3012 of said court, which were initiated under the regime of the so-called
Republic of the Philippines established during the Japanese military occupation
of these Islands.
The respondent judge refused to take cognizance of and continue the

proceedings in said case on the ground that the proclamation issued on October
23, 1944, by General Douglas MacArthur had the effect of invalidating and
nullifying all judicial proceedings and judgments of the courts of the
Philippines under the Philippine Executive Commission and the Republic of
the Philippines established during the Japanese military occupation, and that,
furthermore, the lower courts have no jurisdiction to take cognizance of and
continue judicial proceedings pending in the courts of the defunct Republic of
the Philippines in the absence of an enabling law granting such authority. And
the same respondent, in his answer and memorandum filed in this Court,
contends that the government established in the Philippines during the Japanese
occupation were not de facto governments.
On January 2, 1942, the Imperial Japanese Forces occupied the City of Manila,
and on the next day their Commander in Chief proclaimed "the Military
Administration under martial law over the districts occupied by the Army." In
said proclamation, it was also provided that "so far as the Military
Administration permits, all the laws now inforce in the Commonwealth, as well
as executive and judicial institutions, shall continue to be effective for the time
being as in the past," and "all public officials shall remain in their present posts
and carry on faithfully their duties as before."
A civil government or central administrative organization under the name of

"Philippine Executive Commission" was organized by Order No. 1 issued on
January 23, 1942, by the Commander in Chief of the Japanese Forces1 in the
Philippines, and Jorge B. Vargas, who was appointed Chairman thereof, was
instructed to proceed to the immediate coordination of the existing central
administrative organs and of judicial courts, based upon what had existed
theretofore, with the approval of the said Commander in Chief, who was to
exercise jurisdiction over judicial courts.
The Chairman of the Executive Commission, as head of the central

administrative organization, issued Executive Orders Nos. 1 and 4, dated
January 30 and February 5, 1942, respectively, in which the Supreme Court,
Court of Appeals, Courts of First Instance, and the justices of the peace and
municipal courts under the Commonwealth were continued with the same
jurisdiction, in conformity with the instructions given to the said Chairman of
the Executive Commission by the Commander in Chief of Japanese Forces in
the Philippines in the latter's' Order No. 3 of February 20, 1942, concerning
basic principles to be observed by the Philippine Executive Commission in
exercising legislative, executive and judicial powers. Section 1 of said Order
provided that "activities of the administrative organs and judicial courts in the
Philippines shall be based upon the existing statutes, orders, ordinances and
customs * * *."
On October 14, 1943, the so-called Republic of the Philippines was

inaugurated, but no substantial change was effected thereby in the organization
and jurisdiction of the different courts that functioned during the Philippine
Executive Commission, and in the laws they administered and enforced.
On October 23, 1944, a few days after the historic landing in Leyte, General
Douglas MacArthur issued a proclamation to the People of the Philippines
which declared:
"1. That the Government of the Commonwealth of the
Philippines is, subject to the supreme authority of the
Government of the United States, the sole and only
government having legal and valid jurisdiction over the
people in areas of the Philippines free of enemy
occupation and control;
"2. That the laws now existing on the statute books of

the Commonwealth of the Philippines and the regulations
promulgated pursuant thereto are in full force and effect
and legally binding upon the people in areas of the
Philippines free of enemy occupation and control; and
"3. That all laws, regulations and processes of any other

government in the Philippines than that of the said
Commonwealth are null and void and without legal effect
in areas of the Philippine free of enemy occupation and
control."
On February 3, 1945, the City of Manila was partially liberated and on
February 27, 1945, General MacArthur, on behalf of the Government of the
United States, solemnly declared "the full powers and responsibilities under the
Constitution restored to the Commonwealth whose seat is here re-established as
provided by law.”
In the light of these facts and events of contemporary history, the principal
questions to be resolved in the present case may be reduced to the following:
(1) Whether the judicial acts and proceedings of the court existing in the
Philippines under the Philippine Executive Commission and the Republic of
the Philippines were good and valid and remained so even after the liberation
or reoccupation of the Philippines by the United States and Filipino forces; (2)
Whether the proclamation issued on October 23, 1944, by General Douglas
McArthur, Commander in Chief of the United States Army, in which he
declared “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,” has invalidated all judgments and judicial acts and proceedings of the
said courts; and (3) If the said judicial acts and proceedings have not been
invalidated by said proclamation, whether the present courts of the
Commonwealth, which were the same courts existing prior to, and continued
during, the Japanese military occupation of the Philippines, may continue those
proceedings pending in said courts at the time the Philippines were reoccupied
and liberated by the United States and Filipino forces, and the Commonwealth
of the Philippines were reestablished in the Islands.
We shall now proceed to consider the first question, that is, whether or not
under the rules of international law the judicial acts and proceedings of the
courts established in the Philippines under the Philippine Executive
Commission and the Republic of the Philippines were good and valid and
remained good and valid even after the liberation or reoccupation of the
Philippines by the United States and Filipino forces.
1. It is a legal truism in political and international law that all acts and
proceedings of the legislative, executive, and judicial departments of a de
facto government are good and valid. The question to be determined is whether
or not the governments established in these Islands under the names of
Philippine Executive Commission and Republic of the Philippines during the
Japanese military occupation or regime were de facto governments. If they
were, the judicial acts and proceedings of those governments remain good and
valid even after the liberation or reoccupation of the Philippines by the
American and Filipino forces.
There are several kinds of de facto governments. The first, or government de

facto in a proper legal sense, is that government that gets possession and
control of, or usurps, by force or by the voice of the majority, the rightful legal
government and maintains itself against the will of the latter, such as the
government of England under the Commonwealth, first by Parliament and later
by Cromwell as Protector. The second is that which is established and
maintained by military forces who invade and occupy a territory of the enemy
in the course of war, and which is denominated a government of paramount
force, as the cases of Castine, in Maine, which was reduced to British
possession in the war of 1812, and of Tampico, Mexico, occupied during the
war with Mexico, by the troops of the United States. And the third is that
established as an independent government by the inhabitants of a country who
rise in insurrection against the parent state, such as the government of the
Southern Confederacy in revolt against the Union during the war of secession.
We are not concerned in the present case with the first kind, but only with the
second and third kinds of de facto governments.
Speaking of government "de facto" of the second kind, the Supreme Court of
the United States, in the case of Thorington vs. Smith (8 Wall., 1), said: "But
there is another description of government, called also by publicists a
government de facto, but which might, perhaps, be more aptly denominated a
government of paramount force. Its distinguishing characteristics are (1), that
its existence is maintained by active military power within the territories, and
against the rightful authority of an established and lawful government; and (2),
that while it exists it must necessarily be obeyed in civil matters by private
citizens who, by acts of obedience rendered in submission to such force, do not
become responsible, or wrongdoers, for those acts, though not warranted by the
laws of the rightful government. Actual governments of this sort are established
over districts differing greatly in extent and conditions. They are usually
administered directly by military authority, but they may be administered, also,
by civil authority, supported more or less directly by military force * * *. One
example of this sort government is found in the case of Castine, in Maine,
reduced to British possession in the war of 1812 * * *. U. S. vs. Rice (4
Wheaton, 253). A like example is found in the case of Tampico, occupied
during the war with Mexico, by the troops of the United States * * *.
Fleming vs. Page (9 Howard, 614). These were cases of temporary possession
of territory by lawful and regular governments at war with the country of which
the territory so possessed was part.”
The powers and duties of de facto governments of this description are regulated
in Section III of the Hague Conventions of 1907, which is a revision of the
provisions of the Hague Conventions of 1899 on the same subject of Military
Authority over Hostile Territory. Article 43 of said Section III provides that
"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."
According to these precepts of the Hague Conventions, as the belligerent

occupant has the right and is burdened with the duty to insure public order and
safety during his military occupation, he possesses all the powers of a de
facto government, and he can suspend the old laws and promulgate new ones
and make such changes in the old as he may see fit, but he is enjoined to
respect, unless absolutely prevented by the circumstances prevailing in the
occupied territory, the municipal laws in force in the country, that is, those laws
which enforce public order and regulate the social and commercial life of the
country. On the other hand, laws of a political nature or affecting political
relations, such as, among others, the right of assembly, the right to bear arms,
the freedom of the press, and the right to travel freely in the territory occupied,
are considered as suspended or in abeyance during the military occupation.
Although the local and civil administration of justice is suspended as a matter
of course as soon as a country is militarily occupied, it is not usual for the
invader to take the whole administration into his own hands. In practice, the
local ordinary tribunals are authorized to continue administering justice; and
the judges and other judicial officers are kept in their posts if they accept the
authority of the belligerent occupant or are required to continue in their
positions under the supervision of the military or civil authorities appointed by
the Commander in Chief of the occupant. These principles and practice have
the sanction of all publicists who have considered the subject, and have been
asserted by the Supreme Court and applied by the Presidents of the United
States.
The doctrine upon this subject is thus summed up by Halleck, in his work on
International Law (Vol. 2, p. 444): "The right of one belligerent to occupy and
govern the territory of the enemy while in its military possession, is one of the
incidents of war, and flows directly from the right to conquer. We, therefore,
do not look to the Constitution or political institutions of the conqueror, for
authority to establish a government for the territory of the enemy in his
possession, during its military occupation, nor for the rules by which the
powers of such government are regulated and limited. Such authority and such
rules are derived directly from the laws of war, as established by the usage of
the world, and confirmed by the writings of publicists and decisions of courts
—in fine, from the law of nations * * *. The municipal laws of a conquered
territory, or the laws which regulate private rights, continue in force during
military occupation, except so far as they are suspended or changed by the acts
of the conqueror * * *. He, nevertheless, has all the powers of a de
facto government, and can at his pleasure either change the existing laws or
make new ones."
And applying the principles for the exercise of military authority in an

occupied territory, which were later embodied in the said Hague Conventions,
President McKinley, in his executive order to the Secretary of War of May 19,
1898, relating to the occupation of the Philippines by United States forces, said
in part: "Though the powers of the military occupant are absolute and supreme,
and immediately operate upon the political condition of the inhabitant, the
municipal laws of the conquered territory, such as affect private rights of
person and property and provide for the punishment of crime, are considered as
continuing in force, so far as they are compatible with the new order of things,
until they are suspended or superseded by the occupying belligerent; and in
practice they are not usually abrogated, but are allowed to remain in force and
to be administered by the ordinary tribunals, substantially as they were before
the occupation. This enlightened practice is, so far as possible, to be adhered to
on the present occasion. The judges and the other officials connected with the
administration of justice may, if they accept the authority of the United States,
continue to administer the ordinary law of the land as between man and man
under the supervision of the American Commander in Chief." (Richardson's
Messages and Papers of President, X, p. 209.)
As to "de facto" government of the third kind, the Supreme Court of the United
States, in the same case of Thorington vs. Smith, supra, recognized the
government set up by the Confederate States as a de facto government. In that
case, it was held that "the central government established for the insurgent
States differed from the temporary governments at Castine and Tampico in the
circumstance that its authority did not originate in lawful acts of regular war;
but it was not, on that account, less actual or less supreme. And we think that it
must be classed among the governments of which these are examples * * *."
In the case of William vs. Bruffy (96 U. S. 176, 192), the Supreme Court of the
United States, discussing the validity of the acts of the Confederate States, said:
"The same general form of government, the same general laws for the
administration of justice and the protection of private rights, which had existed
in the States prior to the rebellion, remained during its continuance and
afterwards. As far as the Acts of the States do not impair or tend to impair the
supremacy of the national authority, or the just rights of citizens under the
Constitution, they are, in general, to be treated as valid and binding. As we said
in Horn vs. Lockhart (17 Wall, 570; 21 Law. ed., 657): "The existence of a
state of insurrection and war did not loosen the bonds of society, or do away
with civil government or the regular administration of the laws. Order was to
be preserved, police regulations maintained, crime prosecuted, property
protected, contracts enforced, marriages celebrated, estates settled, and the
transfer and descent of property regulated, precisely as in the time of peace. No
one, that we are aware of, seriously questions the validity of judicial or
legislative Acts in the insurrectionary States touching these and kindred
subjects, where they were not hostile in their purpose or mode of enforcement
to the authority of the National Government, and did not impair the rights of
citizens under the Constitution'. The same doctrine has been asserted in
numerous other cases."
And the same court, in the case of Baldy vs. Hunter (171 U. S., 388, 400), held:
"That what occurred or was done in respect of such matters under the authority
of the laws of these local de facto governments should not be disregarded or
held to be invalid merely because those governments were organized in
hostility to the Union established by the national Constitution; this, because the
existence of war between the United States and the Confederate States did not
relieve those who are within the insurrectionary lines from the necessity of civil
obedience, nor destroy the bonds of society nor do away with civil government
or the regular administration of the laws, and because transactions in the
ordinary course of civil society as organized within the enemy's territory
although they may have indirectly or remotely promoted the ends of the de
facto or unlawful government organized to effect a dissolution of the Union,
were without blame 'except when proved to have been entered into with
actual intent to further invasion or insurrection;'" and "That judicial and
legislative acts in the respective states composing the so-called Confederate
States should be respected by the courts if they were not hostile in their purpose
or mode of enforcement to the authority of the National Government, and did
not impair the rights of citizens under the Constitution.”
In view of the foregoing, it is evident that the Philippine Executive

Commission, which was organized by Order No. 1, issued on January 23, 1942,
by the Commander of the Japanese forces, was a civil government established
by the military forces of occupation and therefore a de facto government of the
second kind. It was not different from the government established by the
British in Castine, Maine, or by the United States in Tampico, Mexico. As
Halleck says, "The government established over an enemy's territory during the
military occupation may exercise all the powers given by the laws of war to the
conqueror over the conquered, and is subject to all restrictions which that code
imposes. It is of little consequence whether such government be called a
military or civil government. Its character is the same and the source of its
authority the same. In either case it is a government imposed by the laws of
war, and so far 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. In 1806, when Napoleon occupied the greater part of
Prussia, he retained the existing administration under the general direction of a
French official (Langfrey History of Napoleon, 1, IV, 25); and, in the same
way, the Duke of Wellington, on invading France, authorized the local
authorities to continue the exercise of their functions, apparently without
appointing an English superior. (Wellington Despatches, XI, 307.) The
Germans, on the other hand, when they invaded France in 1870, appointed their
own officials, at least in Alsace and Lorraine, in every department of
administration and of every rank. (Calvo, pars. 2186-93; Hall, International
Law, 7th ed., p. 505, note 2.)
The so-called Republic of the Philippines, apparently established and organized

as a sovereign state independent from any other government by the Filipino
people, was, in truth and reality, a government established by the belligerent
occupant or the Japanese forces of occupation. It was of the same character as
the Philippine Executive Commission, and the ultimate source of its authority
was the same—the Japanese military authority and government. As General
MacArthur stated in his proclamation of October 23, 1944, a portion of which
has been already quoted, "under enemy duress, a so-called government styled
as the 'Republic of the Philippines’ was established on October 14, 1943,
based upon neither the free expression of the people's will nor the sanction of
the Government of the United States." Japan had no legal power to grant
independence to the Philippines or transfer the sovereignty of the United States
to, or recognize the latent sovereignty of, the Filipino people, before its military
occupation and possession of the Islands had matured into an absolute and
permanent dominion or sovereignty by a treaty of peace or other means
recognized in the law of nations. For it is a well-established doctrine in
International Law, recognized in Article 45 of the 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 serve to transfer sovereignty over the territory
controlled although the de jure government is during the period of occupancy
deprived of the power to exercise its rights as such. (Thirty Hogshead of
Sugar vs. Boyle, 9 Cranch, 191; United States vs. Rice, 4 Wheat., 246;
Fleming vs. Page, 9 Howard, 603; Downes vs. Bidwell, 182 U. S., 345.) The
formation of the Republic of the Philippines was a scheme contrived by Japan
to delude the Filipino people into believing in the apparent magnanimity of the
Japanese gesture of transferring or turning over the rights of government into
the hands of Filipinos. It was established under the mistaken belief that by
doing so, Japan would secure the cooperation or at least the neutrality of the
Filipino people in her war against the United States and other allied nations.
Indeed, even if the Republic of the Philippines had been established by the free
will of the Filipino people who, taking advantage of the withdrawal of the
American forces from the Islands, and the occupation thereof by the Japanese
forces of invasion, had organized an independent government under that name
with the support and backing of Japan, such government would have been
considered as one established by the Filipinos in insurrection or rebellion
against the parent state or the United States. And, as such, it would have been
a de facto government similar to that organized by the confederate states during
the war of secession and recognized as such by the Supreme Court of the
United States in numerous cases, notably those of Thorington vs. Smith,
Williams vs. Bruffy, and Badly vs. Hunter, above quoted; and similar to the
short-lived government established by the Filipino insurgents in the Island of
Cebu during the Spanish-American war, recognized as a de facto government
by the Supreme Court of the United States in the case of McCleod vs. United
States (299 U. S., 416). According to the facts in the last-named case, the
Spanish forces evacuated the Island of Cebu on December 25, 1898, having
first appointed a provisional government, and shortly afterwards, the Filipinos,
formerly in insurrection against Spain, took possession of the Island and
established a republic, governing the Island until possession thereof was
surrendered to the United States on February 22, 1898. And the said Supreme
Court held in that case that "such government was of the class of de
facto governments described in I Moore's International Law Digest, S 20, * * *
'called also by publicists a government de facto, but which might, perhaps, be
more aptly denominated a government of paramount force * * *’." That is to
say, that the government of a country in possession of belligerent forces in
insurrection or rebellion against the parent state, rests upon the same principles
as that of a territory occupied by the hostile army of an enemy at regular war
with the legitimate power.
The governments by the Philippine Executive Commission and the Republic of

the Philippines during the Japanese military occupation being de
facto governments, it necessarily follows that the judicial acts and proceedings
of the courts of justice of those governments, which are not of a political
complexion, were good and valid, and, by virtue of the well-known principle of
postliminy (postliminium) in international law, remained good and valid after
the liberation or reoccupation of the Philippines by the American and Filipino
forces under the leadership of General Douglas MacArthur. According to that
well-known principle in international law, the fact that a territory which has
been occupied by an enemy comes again into the power of its legitimate
government or sovereignty, "does not, except in a very few cases, wipe out the
effects of acts done by an invader, which for one reason or another it is within
his competence to do. Thus judicial acts done under his control, when they are
not of a political complexion, administrative acts so done, to the extent that
they take effect during the continuance of his control, and the various acts done
during the same time by private persons under the sanction of municipal law,
remain good. Were it otherwise, the whole social life of a community would be
paralyzed by an invasion; and as between the state and individuals' the evil
would be scarcely less,—it would be hard for example that payment of taxes
made under duress should be ignored, and it would be contrary to the general
interest that sentences passed upon criminals should be annulled by the
disappearance of the intrusive government." (Hall, International Law, 7th ed.,
p. 518.) And when the occupation and the abandonment have been each an
incident of the same war as in the present case, postliminy applies, even though
the occupant has acted as conqueror and for the time substituted his own
sovereignty, as the Japanese intended to do apparently in granting
independence to the Philippines and establishing the so-called Republic of the
Philippines. (Taylor, International Law, p. 615.)
That not only judicial but also legislative acts of de facto governments, which
are not of a political complexion, are and remain valid after reoccupation of a
territory occupied, by a belligerent occupant, is confirmed by the Proclamation
issued by General Douglas1 MacArthur on October 23, 1944, which declares
null and void all laws, regulations and processes of the governments
established in the Philippines during the Japanese occupation, for it would not
have been necessary for said proclamation to abrogate them if they were
invalid ab initio.
2. The second question hinges upon the interpretation of the phrase "processes
of any other government" as used in the above-quoted proclamation of General
Douglas MacArthur of October 23, 1944—that is, whether it was the intention
of the Commander in Chief of the American Forces to annul and avoid thereby
all judgments and judicial proceedings of the courts established in the
Philippines during the Japanese military occupation.
The phrase "processes of any other government" is broad and may refer not
only to judicial processes, but also to administrative or legislative, as well as
constitutional, processes of the Republic of the Philippines or other
governmental agencies established in the Islands during the Japanese
occupation. Taking into consideration the fact that, as above indicated,
according to the well-known principles of international law all judgments and
judicial proceedings, which are not of a political complexion, of the de
facto governments during the Japanese military occupation were good and
valid before and remained so after the occupied territory had come again into
the power of the titular sovereign, it should be presumed that it was not, and
could not have been, the intention of General Douglas MacArthur, in using the
phrase "processes of any other government" in said proclamation, to refer to
judicial processes, in violation of said principles of international law. The only
reasonable construction of the said phrase is that it refers to governmental
processes other than judicial processes or court proceedings, for according to a
well-known rule of statutory construction, set forth in 25 R. C. L., p. 1028, "a
statute ought never to be construed to violate the law of nations if any other
possible construction remains."
It is true that the commanding general of a belligerent army of occupation, as

an agent of his government, may not unlawfully suspend existing laws and
promulgate new ones in the occupied territory, if and when the exigencies of
the military occupation demand such action. But even assuming that, under the
law of nations, the legislative power of a commander in chief of military forces
who liberates or reoccupies his own territory which has been occupied by an
enemy, during the military and before the restoration of the civil regime, is as
broad as that of the commander in chief of the military forces of invasion and
occupation (although the exigencies of military reoccupation are evidently less
than those of occupation), it is to be presumed that General Douglas
MacArthur, who was acting as an agent or a representative of the Government
and the President of the United States, constitutional commander in chief of the
United States Army, did not intend to act against the principles of the law of
nations asserted by the Supreme Court of the United States from the early
period of its existence, applied by the Presidents of the United States, and later
embodied in the Hague Conventions of 1907, as above indicated. It is not to be
presumed that General Douglas MacArthur, who enjoined in the same
proclamation of October 23, 1944, "upon the loyal citizens of the Philippines
full respect and obedience to the Constitution of the Commonwealth of the
Philippines,” should not only reverse the international policy and practice of his
own government, but also disregard in the same breath the provisions of
section 3, Article II, of our Constitution, which provides that "The Philippines
renounces war as an instrument of national policy, and adopts the generally
accepted principles of international law as part of the law of the Nation."
Moreover, from a contrary construction great inconvenience and public

hardship would result, and great public interests would be endangered and
sacrificed, for disputes or suits already adjudged would have to be again
settled, accrued or vested rights nullified, sentences passed on criminals set
aside, and criminals might easily become immune for evidence against them
may have already disappeared or be no longer available, especially now that
almost all court records in the Philippines have been destroyed by fire as a
consequence of the war. And it is another well-established rule of statutory
construction that where great inconvenience will result from a particular
construction, or great public interests; would be endangered or sacrificed, or
great mischief done, such construction is to be avoided, or the court ought to
presume that such construction was not intended by the makers of the law,
unless required by clear and unequivocal words. (25 R.C. L., pp. 1025, 1027.)
The mere conception or thought of possibility that the titular sovereign or his
representatives who reoccupies a territory occupied by an enemy, may set aside
or annul all the judicial acts or proceedings of the tribunals which the
belligerent occupant had the right and duty to establish in order to insure public
order and safety during military occupation, would be sufficient to paralyze the
social life of the country or occupied territory, for it would have to be expected
that litigants would not willingly submit their litigation to courts whose
judgments or decisions may afterwards be annulled, and criminals would not be
deterred from committing crimes or offenses in the expectancy that they may
escape the penalty if judgments rendered against them may be afterwards set
aside.
That the proclamation has not invalidated all the judgments and proceedings of
the courts of justice during the Japanese regime, is impliedly confirmed by
Executive Order No. 37, which has the force of law, issued by the President of
the Philippines on March 10, 1945, by virtue of the emergency legislative
power vested in him by the Constitution and the laws of the Commonwealth of
the Philippines. Said Executive Order abolished the Court of Appeals, and
provided "that all cases which have heretofore been duly appealed to the Court
of Appeals shall be transmitted to the Supreme Court for final decision." This
provision impliedly recognizes that the judgments and proceedings of the
courts during the Japanese military occupation have not been invalidated by the
proclamation of General MacArthur of October 23, because the said Order does
not say or refer to cases which had been duly appealed to said court prior to the
Japanese occupation, but to cases which had theretofore, that is, up to March
10, 1945, been duly appealed to the Court of Appeals; and it is to be presumed
that almost all, if not all, appealed cases pending in the Court of Appeals prior
to the Japanese military occupation of Manila on January 2, 1942, had been
disposed of by the latter before the restoration of the Commonwealth
Government in 1945; while almost all, if not all, appealed cases pending on
March 10, 1945 in the Court of Appeals were from judgments rendered by the
Court of First Instance during the Japanese regime.
The respondent judge quotes a portion of Wheaton's International Law which

say: "Moreover when it is said that an occupier's acts are valid and under
international law should not be abrogated by the subsequent conqueror, it must
be remembered that no crucial instances exist to show that if his acts should be
reversed, any international wrong would be committed. What does happen is
that most matters are allowed to stand by the restored government, but the
matter can hardly be put further than this." (Wheaton, International Law, War,
7th English edition of 1944, p. 245.) And from this quotation the respondent
judge "draws the conclusion that whether the acts of the occupant should be
considered valid or not, is a question that is up to the restored government to
decide; that there is no rule of international law that denies to the restored
government the right to exercise its discretion on the matter, imposing upon it
in its stead the obligation of recognizing and enforcing the acts of the
overthrown government.”
There is no doubt that the subsequent conqueror has the right to abrogate most
of the acts of the occupier, such as the laws, regulations and processes other
than judicial of the government established by the belligerent occupant. But in
view of the fact that the proclamation uses the words "processes of any other
government" and not "judicial processes" precisely, it is not necessary to
determine whether or not General Douglas MacArthur had power to annul and
set aside all judgments and proceedings of the courts during the Japanese
occupation. The question to be determined is whether or not it was his
intention, as representative of the President of the United States, to avoid or
nullify them. If the proclamation had, expressly or by necessary implication,
declared null and void the judicial processes of any other government, it would
be necessary for this court to decide in the present case whether or not General
Douglas MacArthur had authority to declare them null and void. But the
proclamation did not so provide, undoubtedly because the author thereof was
fully aware of the limitations of his powers as Commander in Chief of the
Military Forces of liberation or subsequent conqueror.
Not only the Hague Regulations, but also the principles of international law, as
they result from the usages established between civilized nations, the laws of
humanity and the requirements of the public conscience, constitute or form the
law of nations, (Preamble of the Hague Conventions; Westlake, International
Law, 2d ed., Part II, p. 61.) Article 43, section III, of the Hague Regulations or
Conventions which we have already quoted in discussing the first question,
imposes upon the occupant the obligation to establish courts; and Article 23
(h), section II, of the same Conventions, which prohibits the belligerent
occupant "to declare * * * suspended * * * in a Court of Law the rights and
action of the nationals of the hostile party," forbids him to make any
declaration preventing the inhabitants from using their courts to assert or
enforce their civil rights. (Decision of the Court of Appeals of England in the
case of Porter vs. Fruedenburg, L. R. [1915], 1 K. B., 857.) If a belligerent
occupant is required to establish courts of justice in the territory occupied, and
forbidden to prevent the nationals thereof from asserting or enforcing therein
their civil rights, by necessary implication, the military commander of the
forces of liberation or the restored government is restrained from nullifying or
setting aside the judgments rendered by said courts in their litigation during the
period of occupation. Otherwise, the purpose of these precepts of the Hague
Conventions would be thwarted, for to declare them null and void would be
tantamount to suspending in said courts the rights and action of the nationals of
the territory during the military occupation thereof by the enemy. It goes
without saying that a law that enjoins a person to do something will not at the
same time empower another to undo the same. Although the question whether
the President or commanding officer of the United States Army has violated
restraints imposed by the constitution and laws of his country is obviously of a
domestic nature, yet, in construing and applying limitations imposed on the
executive authority, the Supreme Court of the United States, in the case of
Ochoa vs. Hernandez (230 U. S., 139), has declared that they "arise from
general rules of international law and from fundamental principles known
wherever the American flag flies."
In the case of Raymond vs. Thomas (91 U. S., 712), a special order issued by
the officer in command of the forces of the United States in South Carolina
after the end of the Civil War, wholly annulling a decree rendered by a court of
chancery in that state in a case within its jurisdiction, was declared void, and
not warranted by the acts approved respectively March 2, 1867 (14 Stat., 428),
and July 19 of the same year (15 id., 14), which denned the powers and duties
of military officers in command of the several states then lately in rebellion. In
the course of its decision the court said: "We have looked carefully through the
acts of March 2, 1867 and July 19, 1867. They give very large governmental
powers to the military commanders designated, within the States committed
respectively to their jurisdiction; but we have found nothing to warrant the
order here in question * * *. The clearest language would be necessary to
satisfy us that Congress intended that the power given by these acts should be
so exercised * * *. It was an arbitrary stretch of authority, needful to no good
end that can be imagined. Whether Congress could have conferred the power to
do such an act is a question we are not called upon to consider. It is an
unbending rule of law that the exercise of military power, where the rights of
the citizen are concerned, shall never be pushed beyond what the exigency
requires. (Mitchell vs. Harmony, 13 How., 115; Warden vs. Bailey, 4 Taunt.,
67; Fabrigas vs. Moysten, 1 Cowp., 161; s. C., 1 Smith's L. C., pt. 2, p. 934.)
Viewing the subject before us from the standpoint indicated, we hold that the
order was void."
It is, therefore, evident that the proclamation of General MacArthur of October

23, 1944, which declared that "all laws, regulations and processes of any other
government in the Philippines than that of the said Commonwealth are null and
void without legal effect in areas of the Philippines free of enemy occupation
and control," has not invalidated the judicial acts and proceedings, which are
not of a political complexion, of the courts of justice in the Philippines that
were continued by the Philippine Executive Commission and the Republic of
the Philippines during the Japanese military occupation, and that said judicial
acts and proceedings were good and valid before and are now good and valid
after the reoccupation or liberation of the Philippines by the American and
Filipino forces.
3. The third and last question is whether or not the courts of the
Commonwealth, which are the same as those existing prior to, and continued
during, the Japanese military occupation by the Philippine Executive
Commission and by the so-called Republic of the Philippines, have jurisdiction
to continue now the proceedings in actions pending in said courts at the time
the Philippine Islands were reoccupied or liberated by the American and
Filipino forces, and the Commonwealth Government was restored.
Although in theory the authority of the local civil and judicial administration is
suspended as a matter of course as soon as military occupation takes place, in
practice the invader does not usually take the administration of justice into his
own hands, but continues the ordinary courts or tribunals to administer the laws
of the country which he is enjoined, unless absolutely prevented, to respect. As
stated in the above-quoted Executive Order of President McKinley to the
Secretary of War on May 19, 1898, "in practice, they (the municipal laws) are
not usually abrogated but are allowed to remain in force and to be administered
by the ordinary tribunals substantially as they were before the occupation. This
enlightened practice is, so far as possible, to be adhered to on the present
occasion." And Taylor in this connection says: "From a theoretical point of
view it may be said that the conqueror is armed with the right to substitute his
arbitrary will for all pre-existing forms of government, legislative, executive
and judicial. From the stand-point of actual practice such arbitrary will is
restrained by the provision of the law of nations which compels the conqueror
to continue local laws and institutions so far as military necessity will permit."
(Taylor, International Public Law, p. 596.) Undoubtedly, this practice has been
adopted in order that the ordinary pursuits and business of society may not be
unnecessarily deranged, inasmuch as belligerent occupation is essentially
provisional, and the government established by the occupant of transient
character.
Following these practice and precepts of the law of nations, the Commander in
Chief of the Japanese Forces proclaimed on January 3, 1942, when Manila was
occupied, the military administration under martial law over the territory
occupied by the army, and ordered that "all the laws now in force in the
Commonwealth, as well as executive and judicial institutions, shall continue to
be effective for the time being as in the past," and "all public officials shall
remain in their present posts and carry on faithfully their duties as before."
When the Philippine Executive Commission was organized by Order No. 1 of
the Japanese Commander in Chief, on January 23, 1942, the Chairman of the
Executive Commission, by Executive Orders Nos. 1 and 4 of January 30 and
February 5, respectively, continued the Supreme Court, Court of Appeals,
Court of First Instance, and justices of the peace courts, with the same
jurisdiction, in conformity with the instructions given by the Commander in
Chief of the Imperial Japanese Army in Order No. 3 of February 20, 1942. And
on October 14, 1943 when the so-called Republic of the Philippines was
inaugurated, the same courts were continued with no substantial change in the
organization and jurisdiction thereof.
If the proceedings pending in the different courts of the Islands prior to the
Japanese military occupation had been continued during the Japanese military
administration, the Philippine Executive Commission, and the so-called
Republic of the Philippines, it stands to reason that the same courts, which have
become reestablished and conceived of as having been in continued
existence upon the reoccupation and liberation of the Philippines by virtue of
the principle of postliminy (Hall, International Law, 7th ed., p. 516), may
continue the proceedings in cases then pending in said courts, without necessity
of enacting a law conferring jurisdiction upon them to continue said
proceedings. As Taylor graphically points out in speaking of said principle "a
state or other governmental entity, upon the removal of a foreign military force,
resumes its old place with its right and duties substantially unimpaired * * *.
Such political resurrection is the result of a law analogous to that which enables
elastic bodies to regain their original shape upon the removal of the external
force,—and subject to the same exception in case of absolute crushing of the
whole fibre and content." (Taylor, International Public Law, p. 615.)
The argument advanced by the respondent judge in his resolution in support of

his conclusion that the Court of First Instance of Manila presided over by him
"has no authority to take cognizance of, and continue said proceedings (of this
case) to final judgment until and unless the Government of the Commonwealth
of the Philippines * * * shall have provided for the transfer of the jurisdiction
of the courts of the now defunct Republic of the Philippines, and the cases
commenced and left pending therein," is "that said courts were of a government
alien to the Commonwealth Government. The laws they enforced were, true
enough, laws of the Commonwealth prior to Japanese occupation, but they had
become the laws—and the courts had become the institutions—of Japan by
adoption (U. S. vs. Reiter, 27 F. Cases, No. 16146), as they became later on the
laws and institutions of the Philippine Executive Commission and the Republic
of the Philippines.”
The court in the said case of U. S. vs. Reiter did not and could not say that the
laws and institutions of the country occupied, if continued by the conqueror or
occupant, become the laws and the courts, by adoption, of the sovereign nation
that is militarily occupying the territory. Because, as already shown, belligerent
or military occupation is essentially provisional and does not serve to transfer
the sovereignty over the occupied territory to the occupant. What the court said
was that, if such laws and institutions are continued in use by the occupant,
they become his and derive their force from him, in the sense that he may
continue or set them aside. The laws and institutions or courts so continued
remain the laws and institutions or courts of the occupied territory. The laws
and courts of the Philippines, therefore, did not become, by being continued
as1 required by the law of nations, laws and courts of Japan. The provision of
Article 45, section III, of the Hague Conventions of 1907 which prohibits any
compulsion of the population of occupied territory to swear allegiance to the
hostile power, "extends to prohibit everything which would assert or imply a
change made by the invader in the legitimate sovereignty. This duty is neither
to innovate in the political- life of the occupied districts, nor needlessly to
break the continuity of their legal life. Hence, so far as the courts of justice are
allowed to continue administering the territorial laws, they must be allowed to
give their sentences in the name of the legitimate sovereign" (Westlake, Int.
Law, Part II, second ed., p. 102). According to Wheaton, however, the victor
need not allow the use of that of the legitimate government. When in 1870, the
Germans in France attempted to violate that rule by ordering, after the fall of
the Emperor Napoleon, the courts of Nancy to administer justice in the name of
the "High German Powers occupying Alsace and Lorraine," upon the ground
that the exercise of their powers in the name of the French people and
government was at least an implied recognition of the Republic, the courts
refused to obey and suspended their sitting. Germany originally ordered the use
of the name of "High German Powers occupying Alsace and Lorraine," but
later offered to allow the use of the name of the Emperor or a compromise.
(Wheaton, International Law, War, 7th English ed. 1944, p. 244.)
Furthermore, it is a legal maxim, that excepting that of a political nature, "Law

once established continues until changed by some competent legislative power.
It is not changed merely by change of sovereignty." (Joseph H. Beale, Cases on
Conflict of Laws, III, Summary Section 9, citing Commonwealth vs. Chapman,
13 Met., 68.) As the same author says, in his Treatise on the Conflict of Laws
(Cambridge, 1916, Section 131): "There can be no break or interregnum in law.
From the time the law comes into existence with the first-felt corporateness of
a primitive people it must last until the final disappearance of human society.
Once created, it persists until a change takes place, and when changed it
continues in such changed condition until the next change, and so forever.
Conquest or colonization is impotent to bring law to an end; in spite of change
of constitution, the law continues unchanged until the new sovereign by
legislative act creates a change."
As courts are creatures of statutes and their existence depends upon that of the
laws which create and confer upon them their jurisdiction, it is evident that
such laws, not being of a political nature, are not abrogated by a change of
sovereignty, and continue in force "ex proprio vigore" unless and until repealed
by legislative acts. A proclamation that said laws and courts are expressly
continued is not necessary in order that they may continue in force. Such
proclamation, if made, is but a declaration of the intention of respecting and not
repealing those laws. Therefore, even assuming that Japan had legally acquired
sovereignty over these Islands, which she had afterwards transferred to the so-
called Republic of the Philippines, and that the laws and the courts of these
Islands had become the courts of Japan, as the said courts and the laws creating
and conferring jurisdiction upon them have continued in force until now, it
necessarily follows that the same courts may continue exercising the same
jurisdiction over cases pending therein before the restoration of the
Commonwealth Government, unless and until they are abolished or the laws
creating and conferring jurisdiction upon them are repealed by the said
government.
As a consequence, enabling laws or acts providing that proceedings pending in

one court be continued by or transferred to another court, are not required by
the mere change of government or sovereignty. They are necessary only in case
the former courts are abolished or their jurisdiction so changed that they can no
longer continue taking cognizance of the cases and proceedings commenced
therein, in order that the new courts or the courts having jurisdiction over said
cases may continue the proceedings. When the Spanish sovereignty in the
Philippine Islands ceased and the Islands came into the possession of the
United States, the "Audiencia" or Supreme Court was continued and did not
cease to exist, and proceeded to take cognizance of the actions pending therein
upon the cessation of the Spanish sovereignty until the said "Audiencia" or
Supreme Court was abolished, and the Supreme Court created in Chapter II of
Act No. 136 was substituted in lieu thereof. And the Courts of First Instance of
the Islands during the Spanish regime continued taking cognizance of cases
pending therein upon the change of sovereignty, until section 65 of the same
Act No. 136 abolished them and created in its Chapter IV the present Courts of
First Instance in substitution of the former. Similarly, no enabling acts were
enacted during the Japanese occupation, but a mere proclamation or order that
the courts in the Islands were continued.
On the other hand, during the American regime, when section 78 of Act No.
136 was enacted abolishing the civil jurisdiction of the provost courts created
by the military government of occupation in the Philippines during the
Spanish-American War of 1898, the same section 78 provided for the transfer
of all civil actions then pending in the said provost courts to the proper
tribunals, that is, to the justices of the peace courts, Court of First Instance, or
Supreme Court having jurisdiction over them according to law. And later on,
when the criminal jurisdiction of provost courts in the City of Manila was
abolished by section 3 of Act No. 186, the same section provided that criminal
cases pending therein within the jurisdiction of the municipal courts created by
Act No. 183 were transferred to the latter.
That the present courts are the same courts which had been functioning during
the Japanese regime and, therefore, can continue the proceedings in cases
pending therein prior to the restoration of the Commonwealth of the
Philippines, is confirmed by Executive Order No. 37 which we have already
quoted in support of our conclusion in connection with the second question.
Said Executive Order provides "(1) that the Court of Appeals, created and
established under Commonwealth Act No. 3, as amended, be abolished, as it is
hereby abolished,” and "(2) that all cases which have heretofore been duly
appealed to the Court of Appeals shall be transmitted to the Supreme Court for
final decision. * * *" In so providing, the said Order considers that the Court of
Appeals abolished was the same that existed prior to, and continued after, the
restoration of the Commonwealth Government; for, as we have stated in
discussing the previous question, almost all, if not all, of the cases pending
therein, or which had theretofore (that is, up to March 10, 1945) been duly
appealed to said court, must have been cases coming from the Courts of First
Instance during the so-called Republic of the Philippines. If the Court of
Appeals abolished by the said Executive Order was not the same one which
had been functioning during the Republic, but that which had existed up to the
time of the Japanese occupation, it would have provided that all the cases
which had, prior to and up to that occupation on January 2, 1942, been duly
appealed to the said Court of Appeals shall be transmitted to the Supreme
Court for final decision.
It is, therefore, obvious that the present courts have jurisdiction to continue, to
final judgment, the proceedings in cases, not of political complexion, pending
therein at the time of the restoration of the Commonwealth Government.
Having arrived at the above conclusions, it follows that the Court of First
Instance of Manila has jurisdiction to continue to final judgment the
proceedings in civil case No. 3012, which involves civil rights of the parties
under the laws of the Commonwealth Government, pending in said court at the
time of the restoration of the said Government; and that the respondent judge of
that court, having refused to act and continue the said proceedings, which the
law specifically enjoins him to do as a duty resulting from his office as
presiding judge of that court, mandamus is the speedy and adequate remedy in
the ordinary course of law, especially taking into consideration the fact that the
question of jurisdiction herein involved does affect not only this particular case,
but many other cases now pending in all the courts of these Islands.
In view of all the foregoing, it is adjudged and decreed that a writ of mandamus
issue, directed to the respondent judge of the Court of First Instance of Manila,
ordering him to take cognizance of and continue to final judgment the
proceedings in civil case No. 3012 of said court. No pronouncement as to costs.
So ordered.
Moran, C. J., Ozaeta, Paras, Jaranilla, and Pablo, JJ., concur.
[1]
Resolution on motion for reconsideration, see p. 371, post.
CONCURRING OPINION
DE JOYA, J.:
The principal question involved in this case is the validity of the proceedings
held in civil case No. 3012, in the Court of First Instance of the City of Manila,
under the now defunct Philippine Republic, during Japanese occupation; and
the effect on said proceedings of the proclamation of General Douglas
MacArthur, dated October 23, 1944. The decision of this question requires the
application of principles of International Law, in connection with the municipal
law in force in this country, before and during Japanese occupation.
Questions of International Law must be decided as matters of general law

(Juntington vs. Attril, 146 U. S., 657; 13 Sup. Ct., 224; 36 Law. ed., 1123); and
International Law is no alien in this Tribunal, as, under the Constitution of the
Commonwealth of the Philippines, it is a part of the fundamental law of the
land (Article II, section 3).
As International Law is an integral part of our laws, it must be ascertained and

administered by this Court, whenever questions of right depending upon it are
presented for our determination, sitting as an international as well as a domestic
Tribunal (Kansas vs. Colorado, 185 U. S., 146; 22 Sup. Ct., 552; 46 Law. Ed.,
838).
Since International Law is a body of rules actually accepted by nations as

regulating their mutual relations, the proof of the existence of a given rule is to
be found in the consent of nations to abide by that rule; and this consent is
evidenced chiefly by the usages and customs of nations, and to ascertain what
these usages and customs are, the universal practice is to turn to the writings of
publicists and to the decisions of the highest courts of the different countries of
the world (The Habana, 175 U. S., 677; 20 Sup. Cit., 290; 44 Law. ed., 320).
But while usage is the older and original source of International Law, great
international treaties are a later source of increasing importance, such as The
Hague Conventions of 1899 and 1907.
The Hague Convention of 1899, respecting laws and customs of war on land,
expressly declares that:
"Article XLII. Territory is considered occupied when it
is actually placed under the authority of the hostile
army.
"The occupation applies only to the territory where such

authority is established, and in a position to assert
itself.
"Article XLIII. The authority of the legitimate power

having actually passed into the hands of the occupant,
the 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." (32 Stat.
II, 1821.)
The above provisions of The Hague Convention have been adopted by the
nations giving adherence to them, among which is the United States of
America (32 Stat. II, 1821).
The commander in chief of the invading forces or military occupant may
exercise governmental authority, but only when in actual possession of the
enemy's territory, and this authority will be exercised upon principles of
International Law (New Orleans vs. Steamship Co. [1874], 20 Wall., 387;
Kelly vs. Sanders [1878], 99 U. S., 441; MacLeod vs. U. S., 229 U. S., 416; 33
Sup. Ct., 955; 57 Law. ed., 1260; II Oppenheim on International Law, section
167).
There can be no question that the Philippines was under Japanese military
occupation, from January, 1942, up to the time of the reconquest by the armed
forces of the United States of the Island of Luzon, in February, 1945.
It will thus be readily seen that the civil laws of the invaded State continue in
force, in so far as they do not affect the hostile occupant unfavorably. The
regular judicial Tribunals of the occupied territory continue to act in cases not
affecting the military occupation, and it is not usual for the invader to take the
whole administration into his own hands, partly because it is easier to preserve
order through the agency of the native officials, and partly because the latter
are more competent to administer the laws in force within the territory and the
military occupant generally keeps in their posts such of the judicial and
administrative officers as are willing to serve under him, subjecting them only
to supervision by the military authorities, or by superior civil authorities
oppointed by him. (Young vs. U. S., 97 U. S., 39; 24 Law. ed., 992;
Coleman vs. Tennessee, 97 U. S., 509; 24 Law. ed., 1118; MacLeod vs. U. S.,
229 U. S., 416; 33 Sup. Ct., 955; 57 Law. ed., 1260; Taylor on International
Law, sections 576, 578; Wilson on International Law, pp. 331-37; Hall on
International Law, 6th Edition [1909], pp. 464, 465, 475, 476; Lawrence on
International Law, 7th ed., pp. 412, 413; Davis, Elements of International Law,
3d ed., pp. 330-332, 335; Holland on International Law, pp. 356, 357, 359;
Westlake on International Law, 2d ed., pp. 121-23.)
It is, therefore, evident that the establishment of the government under the so-
called Philippine Republic, during Japanese occupation, respecting the laws in
force in the country, and permitting the local courts to function and administer
such laws, as proclaimed in the City of Manila, by the Commander in Chief of
the Japanese Imperial Forces, on January 3, 1942, was in accordance with the
rules and principles of International Law.
If the military occupant is thus in duty bound to establish in the territory under
military occupation governmental agencies for the preservation of peace and
order and for the proper administration of justice, in accordance with the laws
in force within said territory, it must necessarily follow that the judicial
proceedings conducted before the courts established by the military occupant
must be considered legal and valid, even after said government established by
the military occupant has been displaced by the legitimate government of the
territory.
Thus the judgments rendered by the Confederate Courts, during the American
Civil War, merely settling the rights of private parties actually within their
jurisdiction, not tending to defeat the legal rights of citizens of the United
States, nor in furtherance of laws passed in aid of the rebellion, had been
declared valid and binding (Cock vs. Oliver, 1 Woods, 437; Fed. Cas., No. 3,
164; Coleman vs. Tennessee, 97 U. S., 509; 24 Law. ed., 118;
Williams vs. Bruffy, 96 U. S., 176; Horn vs. Lockhart, 17 Wall., 570;
Sprott vs. United States, 20 id., 459; Texas vs. White, 7 id., 700;
Ketchum vs. Buckley [1878], 99 U. S., 188); and the judgment of a court of
Georgia rendered in November, 1861, for the purchase money of slaves was
held valid judgment when entered, and enforceable in 1871 (French vs. Tumlin,
10 Am. Law. Reg. [N. S.], 641; Fed. Case, No. 5104).
Said judgments rendered by the courts of the states constituting the

Confederate States of America were considered legal and valid and
enforceable, even after the termination of the American Civil War, because
they had been rendered by the courts of a de facto government. The
Confederate States were a de facto government in the sense that its citizens
were bound to render the government obedience in civil matters, and did not
become responsible, as wrong-doers, for such acts of obedience
(Thorington vs. Smith, 8 Wall. [U. S.], 9; 19 Law. ed., 361).
In the case of Ketchum vs. Buckley ([1878], 99 U. S., 188), the Court held—"It
is now settled law in this court that during the late civil war the same general
form of government, the same general law for the administration of justice and
the protection of private rights, which had existed in the States prior to the
rebellion, remained during its continuance and afterwards. As far as the acts of
the States did not impair or tend to impair the supremacy of the national
authority, or the just and legal rights of the citizens, under the Constitution,
they are in general to be treated as valid and binding." (Williams vs. Bruffy, 96
U. S., 176; Horn vs. Lockhart, 17 Wall., 570; Sprott vs. United States, 20 id.,
459; Texas vs. White, 7 id., 700.)
The government established in the Philippines, during Japanese occupation,

would seem to fall under the following definition of de facto government given
by the Supreme Court of the United States:
"But there is another description of government, called

also by publicists, a government de facto, but which
mighty 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 exists it must necessarily be obeyed in
civil matters by private citizens who, by acts of
obedience rendered in submission to such force, do not
become responsible, as wrong doers, for those acts,
though not warranted by the laws of the rightful
government. Actual governments of this sort are
established over districts differing greatly in extent
and conditions. They are usually administered directly by
military authority, but they may be administered, also,
by civil authority, supported more or less directly by
military force." (Macleod vs. United States [1913], 229
U. S., 416.)
The government established in the Philippines, under the so-called Philippine
Republic, during Japanese occupation, was and should be considered as a de
facto government; and that the judicial proceedings conducted before the courts
which had been established in this country, during said Japanese occupation,
are to be considered legal and valid and enforceable, even after the liberation of
this country by the American forces, as long as the said judicial proceedings
had been conducted, under the laws of the Commonwealth of the Philippines.
The judicial proceedings involved in the case under consideration merely refer
to the settlement of property rights, under the provisions of the Civil Code, in
force in this country under the Commonwealth government, before and during
Japanese occupation.
Now, petitioner contends that the judicial proceedings in question are null and
void, under the provisions of the proclamation issued by General Douglas
MacArthur, dated October 23, 1944; as said proclamation "nullifies all the
laws, regulations and processes of any other government in the Philippines than
that of the Commonwealth of the Philippines."
In other words, petitioner demands a literal interpretation of said proclamation

issued by General Douglas MacArthur, a contention which, in our opinion, is
untenable, as it would inevitably produce judicial chaos and uncertainties.
When an act is susceptible of two or more constructions, one of which will

maintain and the others destroy it, the courts will always adopt the former (U.
S. vs. Coombs [1838], 12 Pet., 72; 9 Law. ed., 1004; Board of Supervisors of
Granada County vs. Brown [1884], 112 U. S., 261; 28 Law. ed., 704; 5 Sup. Ct.
Rep., 125; In re Guariña [1913], 24 Phil., 37; Fuentes vs. Director of Prisons
[1924], 46 Phil., 22; Yu Cong Eng vs. Trinidad [1925], 47 Phil., 385). The
judiciary, always alive to the dictates of national welfare, can properly incline
the scales of its decisions in favor of that solution which will most effectively
promote the public policy (Smith, Bell & Co., Ltd. vs. Natividad [1919], 40
Phil., 136). All laws should receive a sensible construction. General terms
should be so limited in their application as not to lead to injustice, oppression
or an absurd consequence. It will always, therefore, be presumed that the
legislature intended exceptions to its language, which would avoid results of
this character. The reason of the law in such cases should prevail over its letter
(U. S. vs. Kirby, 7 Wall. [U. S.], 482; 19 Law. ed., 278; Church of Holy
Trinity vs. U. S., 143 U. S. 461; 12 Sup. Ct., 511; 36 Law. ed., 226;
Jacobson vs. Massachussetts, 197 U. S., 39; 25 Sup. Ct., 358; 49 Law. ed., 643;
3 Ann. Cas., 765; In re Allen, 2 Phil., 630). The duty of the court in construing
a statute, which is reasonably susceptible of two constructions to adopt that
which saves its constitutionality, includes the duty of avoiding a construction
which raises grave and doubtful constitutional questions, if it can be avoided
(U. S. vs. Delaware & Hudson Co., 213 U. S., 366; 29 Sup. Ct., 527; 53 Law.
ed., 836).
According to the rules and principles of International Law, and the legal
doctrines cited above, the judicial proceedings conducted before the courts of
justice, established here during Japanese military occupation, merely applying
the municipal law of the territory, such as the provisions of our Civil Code,
which have no political or military significance, should be considered legal,
valid and binding.
It is to be presumed that General Douglas MacArthur is familiar with said rules

and principles, as International Law is an integral part of the fundamental law
of the land, in accordance with the provisions of the Constitution of the United
States. And it is' also to be presumed that General MacArthur has acted, in
accordance with said rules and principles of International Law, which have
been sanctioned by the Supreme Court of the United States, as the nullification
of all judicial proceedings conducted before our courts, during Japanese
occupation would lead to injustice and absurd results, and would be highly
detrimental to public interests.
For the foregoing reasons, I concur in the majority opinion.
DISSENTING OPINION
PERFECTO, J.:
Law must be obeyed. To keep the bonds of society, it must not be evaded. On
its supremacy depends the stability of states and nations. No government can
prevail without it. The preservation of the human race itself hinges on law.
Since time immemorial, man has relied on law as an essential means of

attaining his purposes, his objectives, his mission in life. More than twenty-two
centuries before the Christian Era, on orders of the Assyrian King Hammurabi,
the first known code was engraved in black diorite with cuneiform characters.
Nine centuries later Emperor Hung Wu, in the cradle of the most ancient
civilization, compiled the Code of the Great Ming. The laws of Manu were
written in the vedic India. Moses received at Sinai the ten commandments.
Draco, Lycurgus, Solon made laws in Greece. Even ruthless Genghis Khan
used laws to keep discipline among the nomad hordes with which he conquered
the greater part of the European and Asiastic continents.
Animal and plant species must follow the mendelian heredity rules and other
biological laws to survive. Thanks to them, the chalk cliffs of the infusoria
show the marvel of an animal so tiny as to be imperceptible to the naked eye
creating a whole mountain. Even the inorganic world has to conform to law.
Planets and stars follow the laws discovered by Kepler, known as the law-
maker of heavens. If, endowed with rebellious spirit, they should happen to
challenge the law of universal gravity, the immediate result would be cosmic
chaos. The tiny and twinkling points of light set above us on the velvet
darkness of the night will cease to inspire us with dreams of more beautiful and
happier worlds.
Again we are called upon to do our duty. Here is a law that we must apply.
Shall we shrink? Shall we circumvent it? Can we ignore it?
The laws enacted by the legislators shall be useless if courts are not ready to
apply them. It is actual application to real issues which gives laws the breath of
life.
In the varied and confused market of human endeavour there are so many
things that might induce us to forget the elementals. There are so many events,
so many problems, so many preoccupations that are pushing among themselves
to attract our attention, and we might miss the nearest and most familiar things,
like the man who went around his house to look for a pencil perched on one of
his ears.
THE OCTOBER PROCLAMATION
In October, 1944, the American Armed Forces of Liberation landed

successfully in Leyte.
When victory in the island was accomplished, after the most amazing and
spectacular war operations, General of the Army Douglas MacArthur, as
Commander in Chief of the American Army, decided to reestablish, in behalf
of the United States, the Commonwealth Government.
Then he was confronted with the question as to what policy to adopt in regards
to the official acts of the governments established in the Philippines by the
Japanese regime. He might have thought of recognizing the validity of some of
said acts, but, certainly, there were acts which he should declare null and void,
whether against the policies of the American Government, whether inconsistent
with military strategy and operations, whether detrimental to the interests of the
American or Filipino peoples, whether for any other strong or valid reasons.
But, which to recognize, and which not? He was not in a position to gather
enough information for a safe basis to distinguished and classify which acts
must be nullified, and which must be validated. At the same time he had to take
immediate action. More pressing military matters were requiring his immediate
attention. He followed the safer course: to nullify all the legislative, executive,
and judicial acts and processes under the Japanese regime. After all, when the
Commonwealth Government is already functioning, with proper information,
he will be in a position to declare by law, through its Congress, which acts and
processes must be revived and validated in the public interest.
So on October 23, 1944, the Commander in Chief issued the following

proclamation:
"GENERAL HEADQUARTERS
"SOUTHWEST PACIFIC AREA
"OFFICE OF THE COMMANDER IN CHIEF
"PROCLAMATION
"To the People of the Philippines:
"Whereas, the military forces under my

command have landed in Philippine soil as a
prelude to the liberation of the entire
territory of the Philippines; and
"Whereas, the seat of the Government of the Commonwealth

of the Philippines has been re-established in the
Philippines under President Sergio Osmeña and the members
of his cabinet; and
"Whereas, under enemy duress, a so-called government

styled as the 'Republic of the Philippines' was
established on October 14, 1943, based upon neither the
free expression of the people's will nor the sanction of
the Government of the United States, and is purporting to
exercise Executive, Judicial and Legislative powers of
government over the people;
"Now, therefore, I, Douglas MacArthur, General, United

States Army, as Commander in Chief of the military forces
committed to the liberation of the Philippines, do hereby
proclaim and declare:
"1. That the Government of the Commonwealth

of the Philippines is, subject to the supreme
authority of the Government of the United
States, the sole and only government having
legal and valid jurisdiction over the people
in areas, of the Philippines free of enemy
"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
control; and
"I do hereby announce my purpose progressively to restore
and extend to the people of the Philippines the sacred
right of government by constitutional process under the
regularly constituted Commonwealth Government as rapidly
as the several occupied areas are liberated and the
military situation will otherwise permit;
"I do enjoin upon all loyal citizens of the Philippines

full respect for and obedience to the Constitution of the
Commonwealth of the Philippines and the laws, regulations
and other acts of their duly constituted government whose
seat is now firmly re-established on Philippine soil.
"October 23, 1944.
"Douglas MacArthur
"General, U. S. Army
"Commander in Chief"
IS THE OCTOBER PROCLAMATION A LAW?
In times of war the Commander in Chief of an army is vested with

extraordinary inherent powers, as a natural result of the nature of the military
operations aimed to achieve the purposes of his country in the war, victory
being paramount among them.
Said Commander in Chief may establish in the occupied or reoccupied

territory, under his control, a complete system of government; he may appoint
officers and employees to manage the affairs of said government; he may issue
proclamations, instructions, orders, all with the full force of laws enacted by a
duly constituted legislature; he may set the policies that should be followed by
the public administration organized by him; he may abolish the said agencies.
In fact, he is the supreme ruler and law-maker of the territory under his control,
with powers limited only by the receipts of the fundamental laws of his
country.
"California, or the port of San Francisco, had been
conquered by the arms of the United States as early as
1846. Shortly afterward the United States had military
possession of all upper California. Early in 1847 the
President, as constitutional commander in chief of the
army and navy, authorized the military and naval
commander of our forces in California to exercise the
belligerent rights of a conqueror, and to form a civil
government for the conquered country, and to impose
duties on imports and tonnage as military contributions
for the support of the government, and of the army which
has the conquest in possession * * *" (Cross vs.
Harrison, 16 Howard, 164, 189.)
"In May, 1862, after the capture of New Orleans by the

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

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

to review it, the controlling question is whether the
commanding general of the army which captured New Orleans
and held it in May 1862, had authority after the capture
of the city to establish a court and appoint a judge with
power to try and adjudicate civil causes. Did the
Constitution of the United States prevent the creation of
civil courts in captured districts during the war of the
rebellion, and their creation by military authority?
"This cannot be said to be an open question. The subject

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

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

that the Constitution did not prohibit the creation by
military authority of courts for the trial of civil
causes during the civil war in conquered portions of the
insurgent States. The establishment of such courts is but
the exercise of the ordinary rights of conquest. The
plaintiffs in error, therefore, had no constitutional
immunity against subjection to the judgments of such
courts. They argue, however, that if this be conceded,
still General Butler had no authority to establish such a
court; that the President alone, as Commander in Chief,
had such authority. We do not concur in this view.
General Butler was in command of the conquering and
occupying army. He was commissioned to carry on the war
in Louisiana. He was, therefore, invested with all the
powers of making war, except so far as they were denied
to him by the Commander in Chief, and among these powers,
as we have seen, was that of establishing courts in
conquered territory. It must be presumed that he acted
under the orders of his superior officer, the President,
and that his acts, in the prosecution of the war, were
the acts of his commander in chief." (Mechanics' etc.
Bank vs. Union Bank, 89 U. S. [22 Wall.], 276-298.)
There is no question, therefore, that when General of the Army Douglas
MacArthur issued the October Proclamation, he did it in the legitimate exercise
of his powers. He did it as the official representative of the supreme authority
of the United States of America. Consequently, said proclamation is legal,
valid, and binding.
Said proclamation has the full force of a law. In fact, of a paramount law.
Having been issued in the exercise of the American sovereignty, in case of
conflict, it can even supersede, not only the ordinary laws of the
Commonwealth of the Philippines, but also our Constitution itself while we
remain under the American flag.
"PROCESSES" IN THE OCTOBER PROCLAMATION
In the third section of the dispositive part of the October Proclamation, it is

declared that all laws, regulations, and processes of any other government in
the Philippines than that of the Commonwealth, are null and void.
Does the word "processes" used in the proclamation include judicial processes?
In its broadest sense, process is synonymous with proceedings or procedures

and embraces all the steps and proceedings in a judicial cause from its
commencement to its conclusion.
"PROCESS. In Practice.—The means of compelling a
defendant to appear in court after suing out the original
writ, in civil, and after indictment, in criminal cases.
"The method taken by law to compel a compliance with the

original writ or command as of the court.
"A writ, warrant, subpoena, or other formal writing

issued by authority of law; also the means of
accomplishing an end, including judicial proceedings;
Gollobitch vs. Rainbow, 84 la., 567; 51 N. W., 48; the
means or method pointed out by a statute, or used to
acquire jurisdiction of the defendants, whether by writ
or notice. Wilson vs. R. Co. (108 Mo., 588; 18 S. W.,
286; 32 Am. St. Rep., 624)." (8 Bouvier's Law Dictionary,
p. 2731.)
"A.Process generally. 1. Definition.—As a legal term,

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

'process' varies according to the context, subject
matter, and spirit of the statute in which it occurs.
In some jurisdictions codes or statutes variously define
'process' as signifying or including: A writ or summons
issued in the course of judicial proceedings; all writs,
warrants, summonses, and orders of courts of justice or
judicial officers; or any writ, declaration, summons,
order, or subpoena whereby any action, suit, or
proceeding1 shall be commenced, or which shall be issued
in or upon any action, suit or proceeding. (50 C. J., pp.
441, 442.)
"The definition of 'process' given by Lord Coke

comprehends any lawful warrant, authority, or proceeding
by which a man may be arrested. He says: 'Process of law
is twofold, namely, by the King's writ, or by due
proceeding and warrant, either in deed or in law, without
writ' (People vs. Nevins [N. Y.], 1 Hill, 154, 169,
170; State vs. Shaw, 50 A., 863, 869; 73 Vt., 149.)
"Baron Comyn says that process, in a large acceptance,

comprehends the whole proceedings after the original and
before judgment; but generally it imports the writs which
issue out of any court to bring the party to answer, or
for doing execution, and all process out of the King's
courts ought to be in the name of the King. It is
called 'process' because it proceeds or goes out upon
former matter, either original or judicial.
Gilmer vs. Bird, 15 Fla., 410, 421." (34 Words and
Phrases, permanent edition, 1940 edition, p. 147.)
"In a broad sense the word 'process' includes the means

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

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

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

with 'proceedings,' and means the entire proceedings in
an action, from the beginning to the end. In a stricter
sense, it is applied to the several judicial writs issued
in an action. Hanna vs. Russell, 12 Minn,, 80, 86
(Gil., 43, 45)." (34 Words and Phrases, permanent
edition, 1940 edition, 149.)
"The term 'process' as commonly applied, intends that

proceeding by which a party is called into court, but it
has a more enlarged signification, and covers all the
proceedings in a court, from the beginning to the end of
the suit; and, in this view, all proceedings which may be
had to bring testimony into court, whether viva voce or
in writing, may be considered the process of the court.
Rich vs. Trimble, Vt., 2 Tyler, 349, 350." Id.
"'Process' in its broadest sense comprehends all

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

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

from the beginning of the proceeding to its end, and in a
narrower sense is the means of compelling a defendant to
appear in court after suing out the original writ in
civil cases and after the indictment in criminal cases,
and in every sense is the act of the court and includes
any means of acquiring jurisdiction and includes
attachment, garnishment, or execution, and also a writ.
Blair vs. Maxbass Security Bank of Maxbass, 176 N. W.,
98, 199; 44 N. D. 12." (23 Words and Phrases, permanent
edition, 1940 edition, p. 328.)
There is no question that the word process, as used in the October
Proclamation, includes all judicial processes or proceedings.
The intention of the author of the proclamation of including judicial processes

appears clearly in the preamble of the document.
The second "Whereas," states that a so-called government styled as the

"Republic of the Philippines," based upon neither the free expression of the
people's will nor the sanction of the Government of the United States, and is
"purporting to exercise Executive, Judicial, and Legislative powers of
government over the people."
It is evident from the above-mentioned words that it was the purpose of

General MacArthur to declare null and void all acts of government under the
Japanese regime, and he used, in section 3 of the dispositive part, the word
laws, as pertaining to the legislative branch, the word regulations, as pertaining
to the executive branch, and lastly, the word processes, as pertaining to the
judicial branch of the government which functioned under the Japanese regime.
It is reasonable to assume that he might include in the word "processes,"

besides those of judicial character, those of executive or administrative
character. At any rate, judicial processes cannot be excluded.
THE WORDS OP THE PROCLAMATION EXPRESS UNMISTAKABLY

THE INTENTION OF THE AUTHOR
The October Proclamation is written in such a way that it is impossible to make

a mistake as to the intention of its author.
Oliver Wendell Holmes, perhaps the wisest man who had ever sat in the
Supreme Court of the United States, stated the following:
"When the words in their literal sense have a plain
meaning, courts must be very cautious in allowing their
imagination to give them a different one."
Guild vs. Walter, 182 Mass., 225, 226 (1902).
Upon questions of construction when arbitrary rule is

involved, it is always more important to consider the
words and the circumstances than even strong analogies in
earlier decisions. The successive neglect of a series
of small distinctions, in the effort to follow precedent,
is very liable to end in perverting instruments from
their plain meaning. In no other branch of the law
(trusts) is so much discretion required in dealing with
authority. * * * There is a strong presumption in favor
of giving them words their natural meaning, and against
reading them as if they said something else, which they
are not fitted to express." Merrill vs. Preston, 135
Mass., 451, 455 (1883).
When the words of an instrument are free from ambiguity and doubt, and
express plainly, clearly and distinctly the sense of the framer, there is no
occasion to resort to other means of interpretation. It is not allowable to
interpret what needs no interpretation.
Very strong expressions have been used by the courts to emphasize the
principle that they are to derive their knowledge of the legislative intention
from the words or language of the statute itself which the legislature has used
to express it. The language of a statute is its most natural guide. We are not at
liberty to imagine an intent and bind the letter to that intent.
The Supreme Court of the United States said: "The primary and general rule of
statutory construction is that the intent of the law-maker is to be found in the
language that he has used. He is presumed to know the meaning of words and
the rules of grammar. The courts have no function of legislation, and simply
seek to ascertain the will of the legislator. It is true that there are cases in which
the letter of the statute is not deemed controlling, but the cases are few and
exceptional, and only arise where there are cogent reasons for believing that the
letter does not fully and accurately disclose the intent. No mere omission, no
mere failure to provide for contingencies, which it may seem wise should have
specifically provided for will justify any judicial addition to the language of the
statute," (United States vs. Goldenberg, 168 U. S., 95, 102, 103; 18 S. C. Rep.,
3; 42 Law. ed., 394.)
That the Government of the Commonwealth of the Philippines shall be the sole
and only government in our country; that our laws are in full force and effect
and legally binding; that "all laws, regulations and processes of any other
government are null and void and without legal effect", are provisions clearly,
distinctly, unmistakably expressed in the October Proclamation, as to which
there is no possibility of error, and there is absolutely no reason in trying to
find different meanings of the plain words employed in the document.
As we have already seen, the annulled processes are precisely judicial
processes, procedures and proceedings, including the one which is under our
consideration.
THE OCTOBER PROCLAMATION ESTABLISHES A CLEAR POLICY
Although, as we have already stated, there is no possible mistakes as to the

meaning of the words employed in the October Proclamation, and the text of
the document expresses, in clear-cut sentences, the true purposes of its author,
it might not be amiss to state here what was the policy intended to be
established by said proclamation.
It is a matter of judicial knowledge that in the global war just ended on

September 2, 1945, by the signatures on the document of unconditional
surrender affixed by representatives of the Japanese government, the
belligerents on both sides resorted to what we may call war weapons of
psychological character.
So Japan, since its military forces occupied Manila, had waged an intensive
campaign of propaganda, intended to destroy the faith of the Filipino people in
America, to wipe out all manifestations of American or occidental civilization,
to create interest in all things Japanese, which the imperial officers tried to
present as the acme of oriental culture, and to arouse racial prejudice among
oriental and occidentals, to induce the Filipinos to rally to the cause of Japan,
which she tried to make us believe is the cause of the inhabitants of all East
Asia.
It is, then, natural that General MacArthur should take counter-measures to

neutralize or annul completely all vestiges of Japanese influence, specially
those which might jeopardize in any way his military operations and his means
of achieving the main objective of the campaign of liberation, that is, to restore
in our country constitutional processes and the high ideals which constitute the
very essence of democracy.
It was necessary to free, not only our territory, but also our spiritual patrimony.
It was necessary, not only to restore to us the opportunity of enjoying the
physical treasures which a beneficent Providence accumulated on this bountiful
land, the true paradise in the western Pacific, but to restore the full play of our
ideology, that wonderful admixture of sensible principles of human conduct,
bequeathed to us by our Malayan ancestors, the moral principles of Christianity
assimilated by our people from teachers of Spain, and the common-sense rules
of the American democratic way of life.
It was necessary to free that ideology from any Japanese impurity.
Undoubtedly, the author of the proclamation thought that the laws, regulations,
and processes of all the branches of the governments established under the
Japanese régime, if allowed to continue and to have effect, might be a means of
keeping and spreading in our country the Japanese influence, with the same
deadly effect as the mines planted by the retreating enemy.
The government offices and agencies which functioned during the Japanese
occupation represented a sovereignty and ideology antagonistic to the
sovereignty and ideology which MacArthur’s forces sought to restore in our
country.
Under Chapter I of the Japanese Constitution, it is, declared that Japan shall be
reigned and governed by a line of Emperors unbroken for ages eternal (Article
1); that the Emperor is sacred and inviolable (Article 3); that he is the head of
the Empire, combining in himself the rights of sovereignty (Article 4); that he
exercises the legislative power (Article 5); that he gives sanction to laws, and
orders to be promulgated and executed (Article 6); that he has the supreme
command of the Army and Navy (Article 11); that he declares war, makes
peace, and concludes treaties (Article 13).
There is no reason for allowing to remain any vestige of Japanese ideology, the
ideology of a people which, as confessed in a book we have at our desk, written
by a Japanese, insists in doing many things precisely in a way opposite to that
followed by the rest of the world.
It is the ideology of a people which insists in adopting the policy of self-

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

repugnant form of suicide, and on September 13, 1912, on the occasion of the
funeral of Emperor Meiji, induced General Maresuke Nogi and his wife to
practice the abhorrent "junshi", and example of which is offered to us in the
following words of a historian :
"When the Emperor's brother Yamato Hiko, died in 2 B. C,
we are told that, following the occasion, his attendants
were assembled to form the hito-bashira (pillar-men) to
gird the grave. They were buried alive in a circle up
to the neck around the tomb and 'for several days they
died not, but wept and wailed day and night. At last
they died and rotted. Dogs and cows gathered and ate
them.'" (Gowen, an Outline of History of Japan, p. 50.)
The practice shows that the Japanese are the spiritual descendants of the
Sumerians, the ferocious inhabitants of Babylonia who, 3500 years B. C,
appeared in history as the first human beings to honor their patesis by killing
and entombing with him his widow, his ministers, and notable men and women
of his kingdom, selected by the priests to partake of such abominable honor.
(Brodeur, The Pageant of Civilization, pp. 62-66.)
General MacArthur sought to annul completely the official acts of the

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

anachronism of a modern world power which seems to be the re-incarnation of
one of those primitive social types of pre-history, whose proper place must be
found in an archeological collection. It represents a backward jump in the
evolution of ethical and juridical concepts, a reversion that, more than a simple
pathological state, represents a characteristic and well denned case of
sociological teratology.
Since they entered the threshold of our capital, the Japanese had announced
that for every one of them killed they would kill ten prominent Filipinos. They
promised to respect our rights by submitting us to wholesale and indiscriminate
slapping, tortures, and atrocious massacres. Driving nails in the cranium,
extraction of teeth and eyes, burning of organs, hangings, diabolical zonings,
looting of properties, establishment of redlight districts, machine-gunning of
women and children, interment of alive persons, they are just mere preludes of
the promised paradise that they called 'Greater East Asia Co-Prosperity
Sphere."
They promised religious liberty by compelling all protestant sects to unite,

against the religious scruples and convictions of their members, in one group,
and by profaning convents, seminaries, churches, and other cult centers of the
Catholics, utilizing them as military barracks, munition dumps, artillery bases,
deposits of bombs and gasoline, torture chambers and zones, and by
compelling the government officials and employees to face and to bow in
adoration before that caricature of divinity in the imperial palace of Tokyo.
The Japanese offered themselves to be our cultural mentors by depriving us of
the use of our schools and colleges, by destroying our books and other means
of culture, by falsifying the contents of school texts, by eliminating free press,
the radio, all elemental principles of civilized conduct, by establishing classes
of rudimentary Japanese so as to reduce the Filipinos to the mental level of the
rude Japanese guards, and by disseminating all kinds of historical, political, and
cultural falsehoods.
Invoking our geographical propinquity and race affinity, they had the insolence
of calling us their brothers, without the prejudice of placing us in the category
of slaves, treating the most prominent Filipinos in a much lower social and
political category than that of the most ignorant and brutal subject of the
Emperor.
The civil liberties of the citizens were annulled. Witnesses and litigants were
slapped and tortured during investigations. In the prosecuting attorney's
offices, no one was safe. When the Japanese arrested a person, the lawyer who
dared to intercede was also placed under arrest. Even courts were not free from
their despotic members. There were judges who had to trample laws and shock
their conscience in order not to disgust a Nipponese.
The most noble of all professions, so much so that the universities of the world
could not conceive of a higher honor that may be conferred than that of Doctor
of Laws, became the most despised. It was dangerous to practice the
profession by which faith in the effectiveness of law is maintained; citizens feel
confident in the protection of their liberties, honor, and dignity; the weak may
face the powerful; the lowest citizen is not afraid of the highest official; civil
equality becomes a reality; justice is administered with more efficiency; and
democracy becomes the best system of government and the best guaranty for
the welfare and happiness of the individual human being. In fact, the
profession of law was annulled, and the best lawyers for the unfortunate
prisoners in Fort Santiago and other centers of torture were the military police,
concubines, procurers, and spies, the providers of war materials and shameful
pleasures, and the accomplices in fraudulent transactions, which were the
specialty of many naval and military Japanese officers.
The courts and the Filipino government officials were completely helpless in
the question of protecting the constitutional liberties and fundamental rights of
the citizens who happen to be unfortunate enough to fall under the dragnet of
the hated kempei. Even the highest government officials were not safe from
arrest and imprisonment in the dreaded military dungeons, where torture or
horrible death were always awaiting the defenseless victim of Japanese
brutality.
May any one be surprised if General MacArthur decided to annul all the
judicial processes?
The evident policy of the author of the October Proclamation can be seen if we
take into consideration the following provisions of the Japanese Constitution:
"ART. 57. The Judicature shall be exercised by the Courts
of Law according to' law, in the name of the Emperor.
"ART. 61. No suit at law, which relates to rights alleged

to have been infringed by the illegal measures of the
executive authority * * * shall be taken cognizance of by
a Court of Law."
INTERNATIONAL LAW
Nobody dared challenge the validity of the October Proclamation.
Nobody dared challenge the authority of the military Commander in Chief who
issued it.
Certainly not because of the awe aroused by the looming figure of General of
the Army Douglas MacArthur, the Allied Supreme Commander, the military
hero, the greatest American general, the Liberator of the Philippines, the
conqueror of Japan, the gallant soldier under whose authority the Emperor of
Japan, who is supposed to rule supreme for ages as a descendant of gods, is
receiving orders with the humility of a prisoner of war.
No challenge has been hurled against the proclamation or the authority of the
author to issue it, because everybody acknowledges the full legality of its
issuance.
But because the proclamation will affect the interest and rights of a group of
individuals, and to protect the same, a way is being sought to neutralize the
effect of the proclamation.
The way found is to invoke international law. The big and resounding word is
considered as a shibboleth powerful enough to shield the affected persons from
the annulling impact.
Even then, international law is not invoked to challenge the legality or

authority of the proclamation, but only to construe it in a convenient way so
that judicial processes during the Japanese occupation, through an exceptional
effort of the imagination, might be segregated from the processes mentioned in
the proclamation.
An author said that the law of nations, the "jus gentiun", is not a fixed nor
immutable science. On the contrary, it is developing incessantly, it is
perpetually changing in forms. In each turn it advances or recedes, according
to the vicissitudes of history, and following the monotonous rythm of the ebb
and rise of the tide of the sea.
"Le droit des gens, en effet, n'est point une science
fixe est immuable: bien au contraire, il se developpe
sans cesse, il change eternellement de formes; tour a
tour il avance et il recule, selon less vicissitudes de
l'histoire et suivan un rhythme monotone qui est comme le
flux et le reflux d'un mer." (M. Revon, De l'existence du
droit international sous la republique romain.)
Another author has this to say:
"International law, if it is or pan be a science at all,
or can be, at most, a regulative science, dealing with
the conduct of States, that is, human beings in a certain
capacity; and its principles and prescriptions are not,
like those of science proper, final and unchanging. The
substance of science proper is already made for man; the
substance of international is actually made by man,—and
different ages make differently." (Coleman Philippson,
The International Law and Custom of Ancient Greece and
Rome, Vol. I, p. 50.)
"Law must be stable, and yet it cannot stand still." (Pound, Interpretations of
Legal History, p. 1.) Justice Cardozo adds: "Here is the great antinomy
confronting us at every turn. Rest and motion, unrelieved and unchecked, are
equally destructive. The law, like human kind, if life is to continue, must find
some path of compromise." (The Growth of Law, p. 2.) Law is just one of the
manifestations of human life, and "Life has relations not capable of division
into inflexible compartments. The moulds expand and shrink."
(Glanzer vs. Shepard, 233 N. Y., 236, 241.)
The characteristic plasticity of law is very noticeable, much more than in any
other department, in international law.
"In certain matter's it is clear we have made substantial
progress, but in other points, he (M. Revon) maintains,
we have retrograded; for example, in the middle ages the
oath was not always respected as faithfully as in ancient
Rome; and nearer our own times, in the seventeenth
century, Grotius proclaims the unquestioned right of
belligerents to massacre the women and children of the
enemy; and in our more modern age the due declaration of
war which Roman always conformed to has not been
invariably observed." (Coleman Philippson, The
International Law and Custom of Ancient Greece and Rome,
Vol. I, p. 209.)
Now let us see if any principle of international law may affect the enforcement
of the October Proclamation.
In this study we should be cautioned not to allow ourselves to be deluded by

generalities and vagueness which are likely to lead us easily to error, in view of
the absence of codification and statutory provisions.
Our Constitution provides:
"The Philippines renounces war as an instrument of
national policy, and adopts the generally accepted
principles of international law as part of the law of the
Nation." (Sec. 3, Art. II.)
There being no codified principles of international law, or enactments of its
rules, we cannot rely on merely legal precepts.
With the exception of international conventions and treaties and, just recently,
the Charter of the United Nations, adopted in the San Francisco Conference on
June 26, 1945, we have to rely on unsystematized judicial pronouncements and
reasonings and on theories, theses, and propositions that we may find in the
works of authors and publicists.
Due to that characteristic pliability and imprecision of international law, the

drafters of our Constitution had to content themselves with "generally accepted
principles."
We must insist, therefore, that the principles should be specific and

unmistakably defined, and that there is definite and conclusive evidence to the
effect that they are generally accepted among the civilized nations of the world
and that they belong to the current era and no other epochs of history.
The temptation of assuming the role of a legislator is greater in international

law than in any other department of law, since there are no parliaments,
congresses, legislative assemblies which can enact laws and specific statutes on
the subject. It must be our concern to avoid falling in so a great temptation, as
its dangers are incalculable. It would be like building castles in the thin air, or
trying to find an exit in the thick dark forest where we are irretrievably lost. We
must also be very careful in our logic. In so vast a field as international law,
the fanciful wanderings of the imagination often impair the course of dialectics.
THE OCTOBER PROCLAMATION AND INTERNATIONAL LAW
Is there any principle of international law that may affect the October
Proclamation?
We tried in vain to find out in the majority opinion anything as to the existence
of any principle of international law under which the authority of General
MacArthur to issue the proclamation can effectively be challenged.
No principle of international law has been, or could be, invoked as a basis for
denying the author of the document legal authority to issue the same or any part
thereof.
We awaited in vain for any one to dare deny General MacArthur the authority,
under international law, to declare null and void and without effect, not only
the laws and regulations of the governments under the Japanese regime, but all
the processes of said governments, including judicial processes.
If General MacArthur, as Commander in Chief of the American Armed Forces

of Liberation, had authority, full and legal, to issue the proclamation, the
inescapable result will be the complete voidance and nullity of all judicial
processes, procedures, and proceedings of all courts under the Japanese régime.
But those who are sponsoring the cause of said judicial processes try to achieve
their aim, not by direct means, but by following a tortuous side-road.
They accept and recognize the full authority of the author of the proclamation
to issue it and all its parts, but they maintain that General MacArthur did not
and could not have in mind the idea of nullifying the judicial processes during
the Japanese occupation, because that will be in violation of the principles of
international law.
If we follow the reasoning of the majority opinion we will have to reach the
conclusion that the word "processes" does not appear at all in the October
Proclamation.
It is stated more than once, and reiterated with dogmatic emphasis, that under
the principles of international law the judicial processes under an army of
occupation cannot be invalidated.
But we waited in vain for the specific principle of international law, only one
of those alluded to, to be pointed out to us.
If the law exists, it can be pointed out. If the principle exists, it can be stated
specifically. The word is being used very often in plural, principles, but we
need only one to be convinced.
The imagined principles are so shrouded in a thick maze of strained analogies

and reasoning, that we confess our inability even to have a fleeting glimpse at
them through their thick and invulnerable wrappers.
At every turn international law, the blatant words, are haunting us with the
deafening bray of a trumpet, but after the transient sound has fled away,
absorbed by the resiliency of the vast atmosphere, the announced principles,
which are the very soul of international law, would disappear too with the
lightning speed of a vanishing dream.
WEAKNESS OF THE MAJORITY POSITION
In the majority opinion three questions are propounded: first, whether judicial
acts and proceedings during the Japanese occupation are valid even after
liberation; second, whether the October Proclamation has invalidated all
judgments and judicial proceedings under the Japanese regime; and third,
whether the present courts of the Commonwealth may continue the judicial
proceedings pending at the time of liberation.
As regards the first question, it is stated that it is a legal truism in political and
international law that all acts of a de facto government are good and valid, that
the governments established during the Japanese occupation, that is, the
Philippine Executive Commission and the Republic of the Philippines, were de
facto governments, and that it necessarily follows that the judicial acts and
proceedings of the courts of those governments, "which are not of a political
complexion," were good and valid, and, by virtue of the principle
of postlindnum, remain good and valid after the liberation.
In the above reasoning we will see right away how the alleged legal truism in
political and international law, stated as a premise in a sweeping way, as an
absolute rule, is, immediately qualified by the exception as to judicial acts and
proceedings which are of a "political complexion."
So it is the majority itself which destroys the validity of what it maintains as a

legal truism in political and international law, by stating from the beginning of
the absolute proposition that all acts and proceedings of the legislative,
executive, and judicial departments of a de facto government are good and
valid.
It is to be noted that no authority, absolutely no authority, has been cited to

support the absolute and sweeping character of the majority proposition as
stated in their opinion.
No authority could be cited, because the majority itself loses faith in the
validity of such absolute and sweeping proposition, by establishing an
unexplained exception as regards the judicial acts and proceedings of a
"political complexion."
Besides, it is useless to try to find in the arguments of the majority anything

that may challenge the power, the authority of a de jure government to annul
the official acts of a de facto government, or the legal and indisputable
authority of the restored legitimate government to refuse to recognize the
official acts, legislative, executive and judicial, of the usurping government,
once the same is ousted
As to the second question, the majority argues that, the judicial proceedings
and judgments of the de facto governments under the Japanese regime being
good and valid, "it should be presumed that it was not, and could not have
been, the intention of General Douglas MacArthur to refer to judicial
processes, when he used the last word in the October Proclamation, and that it
only refers to governmental processes other than judicial processes or court
proceedings."
The weakness and absolute ineffectiveness of the argument are self-evident.
It is maintained that when General MacArthur declared the processes of the

governments under the Japanese regime null and void, he could not refer to
judicial processes, because the same are valid and remained so under the legal
truism announced by the majority to the effect that, under political and
international law, all official acts of a de facto government, legislative,
executive or judicial, are valid.
But we have seen already how the majority excepted from said legal truism the
judicial processes of "political complexion."
And now it is stated that in annulling the processes of the governments under
Japanese occupation, General MacArthur referred to "processes other than
judicial processes."
That is, the legislative and executive processes.
But, did not the majority maintain that all acts and proceedings of legislative
and executive departments of a de facto government are good and valid? Did it
not maintain that they are so as a "legal truism in political and international
law? "
Now, of the reasoning of the majority to the effect that General MacArthur
could not refer to judicial processes because they are good and valid in
accordance with international law, why should the same reasoning not apply to
legislative and executive processes?
Why does the majority maintain that, notwithstanding the fact that, according
to said legal truism, legislative and executive official acts of de
facto governments are good and valid, General MacArthur referred to the latter
in his annulling proclamation, but not to judicial processes?
If the argument is good so as to exclude judicial processes from the effect the
effect of the October Proclamation, we can see no logic in considering it bad
with respect to legislative and executive processes.
If the argument is bad with respect to legislative and executive processes, there
is no logic in holding that it is not good with respect to judicial processes.
Therefore, if the argument of the majority opinion is good, the inevitable

conclusion is that General MacArthur did not declare null and void any
processes at all, whether legislative processes, executive processes, or judicial
processes, and that the word “processes” used by him in the October
Proclamation is a mere surplusage or an ornamental literary appendix.
The absurdity of the conclusion unmasks the utter futility of the position of the
majority, which is but a mere legal pretense that cannot stand the least analysis
or the test of logic.
A great legal luminary admonished that we must have courage to unmask

pretense if we are to reach a peace that will abide beyond the fleeting hour.
It is admitted that the commanding general of a belligerent army of occupation

as an agent of his government, "may not unlawfully suspend existing laws and
promulgate new ones in the occupied territory if and when exigencies of the
military occupation demand such action," but it is doubted whether the
commanding general of the army of the restored legitimate government can
exercise the same broad legislative powers.
We beg to disagree with a theory so unreasonable and subversive.
We cannot accept that the commanding general of an army of occupation, of a

rebellious army, of an invading army, or of a usurping army, should enjoy
greater legal authority during the illegal, and in the case of the Japanese,
iniquitous and bestial occupation, than the official representative of the
legitimate government, once restored in the territory wrested from the brutal
invaders and aggressors. We cannot agree with such legal travesty.
Broad and unlimited powers are granted and recognized in the commanding
general of an army of invasion, but the shadow of the vanishing alleged
principle of international law is being brandished to gag, manacle, and make
completely powerless the commander of an army of liberation to wipe out the
official acts of the government of usurpation, although said acts might impair
the military operation or neutralize the public policies of the restored legitimate
government.
We are not unmindful of the interests of the persons who might be adversely
affected by the annulment of the judicial processes of the governments under
the Japanese regime, but we cannot help smiling when we hear that chaos will
reign or that the world will sink.
It is possible that some criminals will be let loose unpunished, but nobody has
ever been alarmed that the President, in the exercise of his constitutional
powers of pardon and amnesty, had in the past released many criminals from
imprisonment. And let us not forget that, due to human limitations, in all
countries, under all governments, in peace or in war, there were, there are, and
there will always be unpunished criminals, and that situation never caused
despair to any one.
We can conceive of inconveniences and hardships, but they are necessary

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

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

fact that it had to resort to Executive Order No. 37, issued on March 10, 1945,
providing "that all cases that have heretofore been appealed to the Court of
Appeals shall be transmitted to the Supreme Court for final decision." The far-
fetched theory is advanced that this provision impliedly recognizes the court
processes during the Japanese military occupation, on the false assumption that
it refers to the Court of Appeals existing during the Japanese regime. It is self-
evident that the Executive Order could have referred only to the
Commonwealth Court of Appeals, which is the one declared abolished in said
order. Certainly no one will entertain the absurd idea that the President of the
Philippines could have thought of abolishing the Court of Appeals under the
government during the Japanese occupation. Said Court of Appeals
disappeared with the ouster of the Japanese military administration from which
it derived its existence and powers. The Court of Appeals existing on March
10, 1945, at the time of the issuance of Executive Order No. 37, was the
Commonwealth Court of Appeals and it was the only one that could be
abolished.
Without discussing the correctness of the principle stated, the majority opinion
quotes from Wheaton the following: "Moreover when it is said that an
occupier's acts are valid and under international law should not be abrogated by
the subsequent conqueror, it must be remembered that on crucial instances exist
to show that if his acts should be reversed, any international wrong would be
committed. What does happen is that most matters are allowed to stand by the
restored government, but the matter can hardly be put further than this."
(Wheaton, International Law, War, 7th English edition of 1944, p. 245.)
Then it says that there is no doubt that the subsequent conqueror has the right
to abrogate most of the acts of the occupier, such as the laws, regulations and
processes other than judicial of the government established by the belligerent
occupant.
It is evident that the statement just quoted is a complete diversion from the
principle stated in an unmistakable way by Wheaton, who says in definite
terms that "it must be remembered that no crucial instances exist to show that if
his acts (the occupant's) should be reversed, any international wrong would be
committed."
It can be clearly seen that Wheaton does not make any distinction or point out
any exception.
But in the majority opinion the principle is qualified, without stating any reason
therefor, by limiting the right of the restored government' to annul "most of the
acts of the occupier" and "processes other than judicial."
The statement made by the respondent judge after quoting the above-mentioned
principle, as stated by Wheaton, to the effect that whether the acts of the
military occupant should be considered valid or not, is a question that is up to
the restored government to decide, and that there is no rule of international law
that denies to the restored government the right to exercise its discretion on the
matter, is quoted without discussion in the majority opinion.
As the statement is not disputed, we are entitled to presume that it is concurred

in and, therefore, the qualifications made in the statement in the majority
opinion seem to be completely groundless.
THE DUTIES IMPOSED ON OCCUPANT ARMY ARE NOT

LIMITATIONS TO THE RIGHTS OF THE LEGITIMATE GOVERNMENT
The majority opinion is accumulating authorities to show the many duties

imposed by international law on the military occupant of an invaded country.
And from said duties it is deduced that the legitimate government, once
restored in his own territory, is bound to respect all the official acts of the
government established by the usurping army, except judicial processes of
political complexion.
The reasoning calls for immediate opposition. It is absolutely contrary to all

principles of logic.
Between the duties imposed on the military occupant and the legal prerogatives
of the legitimate government there are no logical relationship or connection
that might bind the ones with the others.
The military occupant is duty bound to protect the civil rights of the
inhabitants, but why should the legitimate government necessarily validate the
measures adopted by said occupant in the performance of this duty, if the
legitimate government believes his duty to annul them for weighty reasons?
The military occupant is duty bound to establish courts of justice. Why should
the legitimate government validate the acts of said courts, if it is convinced that
said courts were absolutely powerless, as was the case during the Japanese
occupation, to stop the horrible abuses of the military police, to give relief to
the victims of zoning and Fort Santiago tortures, to protect the fundamental
human rights of the Filipinos—life, property, and personal freedom?
The majority opinion recognizes in the military occupant the power to annul
the official acts of the ousted and supplanted legitimate government, a privilege
which is inversely denied to the last. This preference and predilection in favor
of the military occupant, that is in favor of the invader and usurper, and against
the legitimate government, is simply disconcerting, if we have to say the least.
PRESUMPTIONS AND SUPPOSITIONS AGAINST TRUTH AND FACTS
The invading military occupant is duty bound to establish and maintain courts
of justice in the invaded territory, for the protection of the inhabitants thereof.
It is presumed that the restored legitimate government will respect the acts of
said courts of the army of occupation. Therefore, it is a principle of
international law that said acts are valid and should be respected by the
legitimate government. It is presumed that General MacArthur is acquainted
with such principle, discovered or revealed through presumptive operations,
and it is presumed that he had not the intention of declaring null and void the
judicial processes of the government during the Japanese regime. Therefore,
his October Proclamation, declaring null and void and without effect "all
processes" of said governments, in fact, did not annul the Japanese regime
judicial processes.
So runs the logic of the majority.
They don't mind that General MacArthur speaks in the October Proclamation
as follows:
"NOW, THEREFORE, I, Douglas MacArthur, General, United States Army, as

Commander-in-Chief of the military forces committed to the liberation of the
Philippines, do hereby proclaim and declare:
* * * * * * * * * *
"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."
(Italics supplied.)
General MacArthur says categorically "all processes", but the majority insists
on reading differently, that is: "NOT ALL processes."
The majority presume, suppose, against the unequivocal meaning of simple and
well known words, that when General MacArthur said "all processes", in fact,
he said "not all processes", because it is necessary, by presumption, by
supposition, to exclude judicial processes.
If where General MacArthur says "all", the majority shall insist on reading "not
all", it is impossible to foresee the consequences of such so stubborn attitude,
but it is possible to understand how they reached the unacceptable conclusion
which we cannot avoid opposing and exposing.
Are we to adopt and follow the policy of deciding cases submitted to our
consideration, by presumptions and suppositions putting aside truths and facts?
Are we to place in the documents presented to us, such as the October
Proclamation, different words than what are written therein? Are we to read
"not all", where it is written "all"?
We are afraid that such procedure is not precisely the most appropriate to keep
public confidence in the effectiveness of the administration of justice.
That is why we must insist that in the October Proclamation should be read
what General MacArthur has written in it, that is, that, besides laws and
regulations, he declared and proclaimed null and void "ALL processes",
including naturally judicial processes, of the governments under the Japanese
regime.
THE COMMONWEALTH COURTS HAVE NO JURISDICTION TO

CONTINUE JAPANESE REGIME JUDICIAL PROCESSES
Now we come to the third and last question propounded in the majority
opinion.
The jurisdiction of the Commonwealth tribunals is denned, prescribed, and

apportioned by legislative act.
It is provided so in our Constitution. (Section 2, Article VIII.)
The Commonwealth courts of justice are continuations of the courts established

before the inauguration of the Commonwealth and before the Constitution took
effect on November 15, 1935. And their jurisdiction is the same as provided by
existing laws at the time of the inauguration of the Commonwealth
Government.
Act No. 136 of the Philippine Commission, known as the Organic Act of the
courts of justice of the Philippines, is the one that defines the jurisdiction of
justice of the peace and municipal courts, Courts of First Instance, and the
Supreme Court. It is not necessary to mention here the jurisdiction of the Court
of Appeals, because the same has been abolished by Executive Order No. 37.
No provision may be found in Act No. 136, nor in any other law of the
Philippines, conferring on the Commonwealth tribunals jurisdiction to continue
the judicial processes or proceedings of tribunals belonging to other
governments, such as the governments established during the Japanese
occupation.
The jurisdiction of our justice of the peace and municipal courts is provided in
section 68, Chapter V, of Act No. 136. The original and appellate jurisdiction
of the Courts of First Instance is provided in sections 56 and 57, Chapter IV, of
Act No. 136. The original and appellate jurisdiction of the Supreme Court is
provided in sections 17 and 18, Chapter II, of the same Act. The provisions of
the above-cited sections do not authorize, even implicitly, any of, the said
tribunals to execute or order the execution of the decisions and judgments of
tribunals of other governments, nor to continue the processes or proceedings of
said tribunals.
NECESSITY OF ENABLING ACT UNDER THE LEGAL DOCTRINE

PREVAILING IN THE PHILIPPINES AND IN
THE UNITED STATES
Taking aside the question as to whether the judicial processes of the
government established during the Japanese occupation should be considered
valid or not, in order that said processes could be continued and the
Commonwealth tribunals could exercise proper jurisdiction to continue them,
under a well-established legal doctrine, prevailing not only in the Philippines,
but also in the United States, it is necessary to that effect to enact the proper
enabling law.
Almost half a century ago, in the instructions given by President McKinley on

April 7, 1900, for the guidance of the Philippine Commission, it was stated
that, in all the forms of the government and administrative provisions which
they were authorized to prescribe, the Commission should bear in mind that the
government which they were establishing was designed not for the satisfaction
of the Americans or for the expression of their theoretical views, but for the
happiness, peace, and prosperity of the people of the Philippines, and the
measures adopted should be made to conform to their customs, their habits, and
even their prejudices, to the fullest extent consistent with the accomplishment
of the indispensable requisites of just and effective government.
Notwithstanding the policy so outlined, it was not enough for the Philippine
Commission to create and establish the courts of justice provided in Act No.
136, in order that said tribunals could take cognizance and continue the judicial
proceedings of the tribunals existing in the Philippines at the time of the
American occupation.
It needed specific enabling provisions in order that the new tribunals might
continue the processes pending in the tribunals established by the Spaniards,
and which continued to function until they were substituted by the courts
created by the Philippine Commission.
So it was done in regards to the transfer of the cases pending before the
Spanish Audiencia to the newly created Supreme Court, in sections 38 and 39
of Act No. 136, quoted as follows:
"SEC. 38. Disposition of causes, actions, proceedings,
appeals, records, papers, and so forth, pending in the
existing Supreme Court and in the 'Contencioso
Administrative.'—All records, books, papers, causes,
actions, proceedings, and appeals lodged, deposited, or
pending in the existing Audiencia or Supreme Court, or
pending by appeal before the Spanish tribunal called
'Contencioso Administrativo,' are transferred to the
Supreme Court above provided for, which has the same
power and jurisdiction over them as if they had been in
the first instance lodged, filed, or pending therein, or,
in case of appeal, appealed thereto.
"SEC. 39. Abolition of existing Supreme Court.—The
existing Audiencia or Supreme Court is hereby abolished,
and the Supreme Court provided by this Act is substituted
in place thereof."
Sections 64 and 65 of the same Act followed the same procedure as regards the
transfer of cases and processes pending in the abolished Spanish Courts of First
Instance to the tribunals of the same name established by the Philippine
Commission.
"SEC. 64. Disposition of records, papers, causes, and
appeals, now pending in the existing Courts of First
Instance.—All records, books, papers, actions,
proceeding's, and appeals lodged, deposited, or pending
in the Court of First Instance as now constituted of or
in any province, are transferred to the Court of First
Instance of such province hereby established, which shall
have the same power and jurisdiction over them as if they
had been primarily lodged, deposited, filed, or commenced
therein, or in cases of appeal, appealed thereto.
"SEC. 65. Abolition of existing Courts of First

Instance.—The existing Courts of First Instance are
hereby abolished, and the Courts of First Instance
provided by this Act are substituted in place thereof."
The same procedure has been fallowed by the Philippine Commission even
though the courts of origin of the judicial processes to be transferred and
continued belonged to the same government and sovereignty of the courts
which are empowered to continue said processes.
So section 78 of Act No. 136, after the repeal of all acts conferring upon
American provost courts in the Philippines jurisdiction over civil actions,
expressly provided that said civil actions shall be transferred to the newly
created tribunals.
And it provided specifically that "the Supreme Court, Courts of the First
Instance and courts of the justice of the peace established by this Act (No. 136)
are authorized to try and determine the actions so transferred to them
respectively from the provost courts, in the same manner and with the same
legal effect as though such actions had originally been commenced in the
courts created" by virtue of said Act.
MUNICIPAL COURTS UNDER ACT NO. 183
On July 30 1901, the Philippine Commission enacted the Organic Act of the
City of Manila, No. 183.
Two municipal courts for the city were created by section 40 of said Act, one
for the northern side of Pasig River and the other for the southern side.
They were courts with criminal jurisdiction on identical cases under the
jurisdiction of the justices of the peace then existing in Manila. Although both
courts were of the same jurisdiction, in order that the criminal cases belonging
to the justice of the peace courts may be transferred to the municipal courts just
created, and the proceedings may be continued by the same, the Philippine
Commission considered it necessary to pas the proper enabling act.
So on August 5, 1901, it enacted Act No. 186, section 2 of which provides that
all criminal cases and proceedings pending in the justices of the peace of
Manila are transferred to the municipal courts, which are conferred the
jurisdiction to continue said cases and proceedings.
THE CABANTAG CASE
On August 1, 1901, Narciso Cabantag was convicted of murder by a military

commission. (Cabantag vs. Wolfe, 6 Phil., 273.) The decision was confirmed
on December 10, 1901, and his execution by hanging was set for January 12,
1902.
On December 26, 1901, he fled, but surrendered to the authorities on July 18,
1902. The Civil Governor on December 2, 1903, commuted the death penalty
to 20 years imprisonment. The commutation was approved by the Secretary of
War, following instructions of the President.
Cabantag filed later a writ of habeas corpus on the theory that, with the
abolition of the military commission which convicted him, there was no
existing tribunal which could order the execution of the penalty of
imprisonment.
The Supreme Court denied the writ, but stated that, if the petitioner had filed
the writ before the enactment of Act No. 865, the question presented to the
Supreme Court would have been different.
Act No. 865, enacted on September 3, 1903, is an enabling law, wherein it is

provided that decisions rendered by provost courts and military commission
shall be ordered executed by Courts of First Instance in accordance with the
procedure outlined in said Act.
It is evident from the foregoing that this Supreme Court has accepted and
confirmed the doctrine of the necessity of an enabling act in order that our
Courts of First Instance could exercise jurisdiction to execute the decision of
the abolished provost courts and military commission.
It is evident that the doctrine is applicable, with more force, to the judicial
processes coming from governments deriving their authority from a foreign
enemy state.
THE DOCTRINE IN THE UNITED STATES
It is also evident that the Congres of the United States, by enacting the Bill of
the Philippines on July 1, 1902, confirmed also the same doctrine.
In effect, in section 9 of said Act, the Congress approved what the Philippine
Commission did as to the jurisdiction of the courts established and transfer of
cases and judicial processes, as provided in Acts Nos. 136, 186, and 865.
The same doctrine was adopted by the United States government as part of its
international policy, as could be seen in Article XII of the Treaty concluded
with Spain on December 10, 1898, in Paris.
Even in 1866 the Congress of the United States followed the same doctrine.
"The suit, shown by the record, was originally instituted
in the District Court of the United States for the
District of Louisiana, where a decree was rendered for
the libellant. From the decree an appeal was taken to the
Circuit Court, where the case was pending, when, in 1861,
the proceedings of the court were interrupted "by the
civil war. Louisiana had become involved in the
rebellion, and the courts and officers of the United
States were excluded from its limits. In 1862, however,
the National authority had been partially re-established
in the State, though still liable to be overthrown by the
vicissitudes of war. The troops of the Union occupied New
Orleans, and held military possession of the city and
such other portions of the State as had submitted to the
General Government. The nature of this occupation and
possession was fully explained in the case of The Venice.
"Whilst it continued, on the 20th of October, 1862,

President Lincoln, by proclamation, instituted a
Provisional Court of the State of Louisiana, with
authority, among other powers, to hear, try, and
determine all causes in admiralty. Subsequently, by
consent of parties, this cause was transferred into the
Provisional Court thus constituted, and was heard, and a
decree was again rendered in favor of the libellants.
Upon the restoration of civil authority in the State, the
Provincial Court, limited in duration, according to the
terms of the proclamation, by that event, ceased to
exist.
"On the 28th of July, 1866, Congress enacted that all

suits, causes, and proceedings in the Provisional Court,
proper for the jurisdiction of the Circuit Court of the
United States for the Eastern District of Louisiana,
should be transferred to that court, and heard and
determined therein; and. that all judgments, orders, and
decrees of the Provisional Court in causes transferred to
the Circuit Court should at once become the orders,
judgments, and decrees of that court, and might be
enforced, pleaded, and proved accordingly.
"It is questioned upon these facts whether the

establishment by the President of a Provisional Court was
warranted by the Constitution.
* *
* *
* *
* *
* *
"We have no doubt that the Provisional Court of Louisiana

was properly established by the President in the exercise
of this constitutional authority during war; or that
Congress had power, upon the close of the war, and the
dissolution of the Provisional Court, to provide for the
transfer of cases pending in that court, and of its
judgments and decrees, to the proper courts of the United
States." (U. S. Reports, Wallace, Vol. 9, The
Grapeshot, 131-133.)
JUDGMENTS OP REBEL COURTS IN LOUISIANA WERE VALIDATED

BY CONSTITUTIONAL PROVISION
During the civil war in 1861, the prevailing rebel forces established their own
government in Louisiana.
When the rebel forces were overpowered by the Union Forces and the de
facto government was replaced by the de jure government, to give effect to the
judgments and other judicial acts of the rebel government, from January 26,
1861, up to the date of the adoption of the State Constitution, a provision to
said effect was inserted in said document.
Section 149 of the Louisiana Constitution reads as follows :

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

JUDGMENTS ARE NOT EXECUTORY
The member states of the United States of America belong to the same nation,
to the same country, and are under the same sovereignty.
But judgments rendered in one state are not executor in other states.
To give them effect in other states it is necessary to initiate an original judicial

proceedings, and therein the defendants in the domestic suit may plead in bar
the sister state judgment puis darrien continuace. (Wharton, on the Conflict of
Laws, Vol. II, p. 1411.)
"Under the Constitution of the United States, when a
judgment of one state in the Union is offered in a court
of a sister state as the basis of a suit nil
debet cannot be pleaded. The only proper plea is nul
tiel record." (Id., p. 1413.)
"It is competent for the defendant, however, to an action

on a judgment of a sister state, as to an action on a
foreign judgment, to set up as a defense, want of
jurisdiction of the court rendering the judgment; and, as
indicating such want of jurisdiction, to aver by plea
that the defendant was not an inhabitant of the state
rendering the judgment, and had not been served with
process, and did not enter his appearance; or that the
attorney was without authority to appear." (Id., pp.
1414-1415.)
The inevitable consequence is that the courts of the Commonwealth of the
Philippines, in the absence of an enabling set or of an express legislative grant,
have no jurisdiction to take cognizance and continue the judicial processes,
procedures, and proceedings of the tribunals which were created by the
Japanese Military Administration and functioned under the Vargas Philippine
Executive Commission or the Laurel Republic of the Philippines, deriving their
authority from the Emperor, the absolute ruler of Japan, the invading enemy,
and not from the Filipino people in whom, according to the Constitution,
sovereignty resides, and from whom all powers of government emanate.
The position of Honorable Arsenio P. Dizon, the respondent judge of the Court
of First Instance of Manila, in declaring himself without jurisdiction nor
authority to continue the proceedings which provoked the present controversy,
being a judicial process of a Japanese sponsored government, is absolutely
correct, under the legal doctrines established by the United States and the
Philippine Government, and consistently, invariably, and without exception,
followed by the same.
If we accept, for the sake of argument, the false hypothesis that the
Commonwealth tribunals have jurisdiction to continue the judicial processes
left pending by the courts of the governments established under the Japanese
régime, the courts which disappeared and, automatically, ceased to function
with the ouster of the enemy, the position of Judge Dizon, in declining to
continue the case, is still unassailable, because, for all legal purposes, it is the
same as if the judicial processes in said case were not taken at all, as an
inevitable result of the sweeping and absolute annulment declared by General
MacArthur in the October Proclamation.
In said proclamation it is declared in unmistakable and definite terms that

"ALL PROCESSES" of the Japanese sponsored governments "ARE NULL
AND VOID AND WITHOUT LEGAL EFFECT", and they shall remain so
until the Commonwealth, through its legislative power, decides otherwise in a
proper validating act.
The fact that the Japanese invaders, under international law, were in duty
bound to establish courts of justice during the occupation, although they made
them completely powerless to safeguard the constitutional rights of the citizens,
and mere figureheads as regards the fundamental liberties of the helpless men,
women and children of our people, so much so that said courts could not offer
even the semblance of protection when the life, the liberty, the honor and
dignity of our individual citizens were wantonly trampled by any Japanese,
military or civilian, does not change the situation. "ALL PROCESSES" of said
court are declared "NULL AND VOID AND WITHOUT LEGAL EFFECT" in
the October Proclamation, and we do not have any other alternative but to
accept the law, as said proclamation ,has the full force of a law.
The fact that in the past, the legitimate governments, once restored in their own
territory, condescended in many cases to recognize and to give effect to
judgments rendered by courts under the governments set up by an invading
military occupant or by a rebel army, does not elevate such condescension to
the category of a principle of international law. It cannot be a principle, when
Wheaton declares that no international wrong is done if the acts of the invader
are reversed.
Many irrelevant authorities were cited to us as to the duties imposed by

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

MacArthur thought, as the wisest course, of declaring "NULL AND VOID
AND WITHOUT EFFECT," by official proclamation, "ALL PROCESSES"
under the Japanese regime, that is, legislative, executive and judicial processes,
which fall under the absolute adjective "ALL".
That declaration is a law. It is a law that everybody is bound to accept and

respect, as all laws must be accepted and respected. It is a law that the
tribunals are duty bound to give effect and apply.
We are not unmindful of the adverse consequences to some individuals of the

annulment of all the judicial processes under the Japanese regime, as provided
in the October Proclamation, but the tribunals are not the guardians of the
legislative authorities, either an army commander in chief, during war, or a
normal legislature, in peace time. The tribunals are not called upon to guide
the legislative authorities as to the wisdom of the laws to be enacted. That is
the legislative responsibility. Our duty and our responsibility is to see to it that
the law, once enacted, be applied and complied with.
No matter the consequences, no matter who might be adversely affected, a

judge must have the firm resolve and the courage to do his duty, as, in the
present case, Judge Dizon did, without fear nor favor. We cannot see any
reason why we should not uphold him in his stand in upholding the law.
It is our official duty, national and international duty. Yes. Because this
Supreme Court is sitting, not only as a national court, but as an international
court, as is correctly stated in the concurring opinion of Justice De Joya, and
we should feel the full weight of the corresponding responsibility, as the
American courts with admiralty jurisdiction and the Prize Courts of England
did feel. In fact, it is in the judiciary where, more than in any other department
of the government, the international point of view is more pressing, more
imperative, more unavoidable. Justice has no country. It is of all countries.
The horizon of justice cannot be limited by the scene where our tribunals are
functioning and moving. That horizon is boundless. That is why in our
Constitution the bill of rights has been written not for Filipinos, but for all
persons. They are rights that belong to men, not as Filipinos, Americans,
Russians, Chinese, or Malayan, but as members of humanity. The international
character of our duty to administer justice has become more specific by the
membership of our country in the United Nations. And let us not forget, as an
elemental thing, that our primary duty is to uphold and apply the law, as it is;
that we must not replace the words of the law with what we might be inclined
to surmise; that what is clearly and definitely provided should not be
substituted with conjectures and suppositions; that we should not try to deduce
a contrary intention to that which is unequivocally stated in the law; that we
should not hold valid what is conclusively declared null and void.
The October Proclamation declared "ALL PROCESSES" under the Japanese

regime "NULL AND VOID AND WITHOUT EFFECT", so they must stand.
There is no possible way of evasion. "ALL PROCESSES", in view of the
meaning of the absolute adjective "ALL", include "JUDICIAL
PROCESSES". Allegatio contra factum non est admittenda.
CONCLUSION
For all the foregoing reasons we conclude:
1. That General MacArthur had full legal authority to issue the October
Proclamation, and that no principle of international law is violated by said
proclamation, no international wrong being committed by the reversal by the
legitimate government of the acts of the military invader.
2. That said proclamation was issued in full conformity with the official
policies to which the United States and Philippine Governments were
committed, and the annulment of all the acts of the governments under the
Japanese regime, legislative, executive, and judicial, is legal, and justified by
the wrongs committed by the Japanese.
3. That when General MacArthur proclaimed and declared in the October

Proclamation "That all laws, regulations and processes" of the Japanese
sponsored governments, during enemy occupation, "are null and void and
without effect", he meant exactly what he said.
4. That where General MacArthur said "all processes", we must read and
understand precisely and exactly "all processes", and not "some processes".
"All" and "some" have incompatible meanings and are not interchangeable.
5. That the word "processes" includes judicial procedures, proceedings,

processes, and cases. Therefore, "all processes" must include "all judicial
processes."
6. That we have no right to attribute to General MacArthur an intention

different from what he has plainly, clearly, unmistakably expressed in
unambiguous words with familiar meaning generally understood by the
common man.
7. That the judicial proceedings here in question are included among those
adversely affected by the October Proclamation.
8. That the Commonwealth tribunals have no jurisdiction to take cognizance of

nor to continue the judicial proceedings under the Japanese regime.
9. That to exercise said jurisdiction an enabling act of Congress is necessary.
10. That respondent Judge Dizon did not commit the error complained of in the
petition, and that the petition has no merits at all.
We refuse to follow the course of action taken by the majority in the present
case. It is a course based on a mistaken conception of the principles of
international law and their interpretation and application, and on a pinchbeck
and self-contradicting logic in support of a baseless surmise. It is a course
based on misconstruction or misunderstanding of the October Proclamation, in
utter disregard of the most elemental principles of legal hermeneutics. It is a
course that leads to nowhere, except to the brink of disaster, because it is
following the dangerous path of ignoring or disobeying the law.
Let us not allow ourselves to be deceived. The issue confronting us is not of

passing importance. It is an issue of awesome magnitude and transcendency.
It goes to and reaches the very bottom. It is simple. Lacking in com plexities.
But it may shake the very foundation of society, the cornerstone of the state,
the primary pillar of the nation. It may dry the very foundation of social life,
the source of the vitalizing sap that nurtures the body politic. The issue is
between the validity of one or more Japanese-régime processes and the sanctity
of the law.
That is the question, reduced to its ultimate terms. It is a simple dilemma that
is facing us. It is the alpha and omega of the whole issue. Either the processes,
or the law. We have to select between two, which to uphold. It is a dilemma
that does not admit of middle terms, or of middle ways where we can loiter
with happy unconcern. We are in the crossroad: which way shall we follow?
The processes and the law are placed in the opposite ends of the balance. Shall
we incline the balance of justice to uphold the processes and defeat law, or vice
versa?
We feel jittery because some judicial processes might be rescinded or annulled,

but we do not tremble with sincere alarm at the thought of putting the law
under the axe, of sentencing law to be executed by the guillotine. We feel
uneasy, fancying chaos and paralyzation of social life, because some litigants
in cases during the Japanese regime will be affected in their private interests,
with the annulment of some judicial processes, but we adopt an attitude of
complete nonchalance in throwing law overboard. This baffling attitude is a
judicial puzzle that nobody will understand. So it is better that we should shift
to a more understandable way, that which is conformable to the standard that
the world expects in judicial action.
No amount of arguments and elucubrations, no amount of speculative

gymnastics, no amount of juggling of immaterial principles of international
law, no amount of presumptions and suppositions, surmises and conjectures, no
amount of dexterity in juridical exegesis can divert our attention from the real,
simple, looming hypostasis of the issue before us: Law. It is Law with all its
majestic grandeur which we are defying and intending to overthrow from the
sacred pedestal where the ages had placed her as a goddess, to be enshrined,
obeyed, and venerated by men, forever. Let us not dare to lay our profaning
hands on her vestal virginity, lest the oracle should fling at us the thunder of his
prophetic anathema.
We cannot therefore vote except for the denial of the petition.
HILADO, J., dissenting:
I dissent from the opinion of the majority and, pursuant to the Constitution,
proceed to state the reason for my dissent.
The proceedings involved in the case at bar were commenced by a complaint

filed by the instant petitioner, as plaintiff, on November 18, 1944, in civil case
No. 3012 of the so-called Court of First Instance of Manila, the complaint
bearing this heading and title: "The Republic of the Philippines—In the Court
of First Instance of Manila" (Annex X of Exhibit A of petition for mandamus).
The farthest that said proceedings had gone before the record was burned or
destroyed during the battle for Manila, was the filing by counsel for plaintiff
therein of their opposition to a motion for dismissal filed by opposing counsel.
It is, therefore, plain that the case had not been heard on the merits when the
record was burned or destroyed.
The respondent judge, in his order dated June 6, 1945, disposing of the petition
dated May 25, 1945 filed by petitioner, as plaintiff in said case, and of the
petition filed by respondent Eusebio Valdez Tan Keh, as defendant therein, on
May 31, 1945, held: "first, that by virtue of the proclamation of General
MacArthur quoted above, all laws, regulations and processes of any other
government in the Philippines than that of the Commonwealth became null and
void and without legal effect in. Manila on February 3, 1945 or, at the latest, on
February 27 of the same year; second that the proceedings and processes had in
the present case having been before a court of the Republic of the Philippines
and in accordance with the laws and regulations of said Republic, the same are
now void and without legal effect; third, that this Court, as one of the different
courts of general jurisdiction of the Commonwealth of the Philippines, has no
authority to take cognizance of and continue said proceedings to final
judgment, until and unless the Government of the Commonwealth of the
Philippines, in the manner and form provided by law, shall have provided for
the transfer of the jurisdiction of the courts of the now defunct Republic of the
Philippines, and the causes commenced and left pending therein, to the courts
created and organized by virtue of the provisions of Act No. 4007, as revived
by Executive Order No, 36, or for the validation of all proceedings had in said
courts."
Petitioner prays that this Court declare that the respondent judge should not
have ordered the suspension of the proceedings in civil case No. 3012 and
should continue and dispose of all the incidents in said case till its complete
termination. In my opinion, the petition should be denied.
In stating the reasons for this dissent, we may divide the arguments under the
following propositions:
1. The proceedings in said civil case No. 3012 are null and void under General
of the Army MacArthur's proclamation of October 23, 1944 (41 Off. Gaz., 147,
148);
2. (a) The government styled as, first, the "Philippine Executive Commission"
and later as the "Republic of the Philippines", established here by the
Commander in Chief of the Imperial Japanese Forces or by his order was not
a de facto government—the so-called Court of First Instance of Manila was not
a de facto court, and the judge who presided it was not a de facto judge; (b) the
rules of International Law regarding the establishment of a de
facto Government in territory belonging to a belligerent but occupied or
controlled by an opposing belligerent are inapplicable to the governments thus
established here by Japan;
3. The courts of those governments were entirely different from our

Commonwealth courts before and after the Japanese occupation;
4. The question boils down to whether the Commonwealth (Government, as

now restored, is to be bound by the acts of either or both of those Japanese-
sponsored governments;
5. Even consideration of policy or practical convenience militate against

petitioner's contention.
I
The proceedings in said civil case No. 3012

are null and void under General of the Army
MacArthur's proclamation of October 23, 1944
(41 Off. Gaz., 147, 148).
In this proclamation, after reciting certain now historic facts, among which was
that the so-called government styled as the "Republic of the Philippines" was
established on October 14, 1943 "under enemy duress, * * * based upon neither
the free expression of the people's will nor the sanction of the Government of
the United States," the great Commander-in-Chief proclaimed and declared:
* *
* *
* *
* *
* *
"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
control; and
* *
* *
* *
* *
* *
"I do enjoin upon all loyal citizens of the Philippines

full respect for and obedience to the Constitution of the
Commonwealth of the Philippines and the laws, regulations
and other acts of their duly constituted government whose
seat is now firmly re-established on Philippine soil."
The evident meaning and effect of the 3rd paragraph above quoted is, I think,
that as the different areas of the Philippines were progressively liberated, the
declaration of nullity therein contained shall attach to the laws, regulations and
processes thus condemned in so far as said areas were concerned. Mark that the
proclamation did not provide that such laws, regulations and processes shall be
or are annulled, but that they are null and void. Annulment implies some
degree of effectiveness in the act annulled previous to the annulment, but a
declaration of nullity denotes that the act is null and void ab initio—the nullity
precedes the declaration. The proclamation speaks in the present tense, not in
the future. If so, the fact that the declaration of nullity as to the condemned
laws, regulations and processes in areas not yet free from enemy occupation
and control upon the date of the proclamation, would attach thereto at a later
date, is no argument for giving them validity or effectiveness in
the interregnum. By the very terms of the proclamation itself, that nullity had
to date back from the inception of such laws, regulations and processes; and to
dispel any shadow of doubt which may still remain, we need only consider the
concluding paragraph of the proclamation wherein the Commander in Chief of
the army of liberation solemnly enjoined upon all loyal citizens of the
Philippines full respect for and obedience to the Constitution of the
Commonwealth of the Philippines and the laws, regulations and other acts of
their duly constituted government. This is all-inclusive—it comprises not only
the loyal citizens in the liberated areas but also those in areas still under enemy
occupation and control. It will be noticed that the complaint in said civil case
No. 3012 was filed twenty-six days after the above-quoted proclamation of
General of the Army MacArthur. If the parties to said case were to consider
the proceedings therein up to the date of the liberation of Manila valid and
binding, they would hardly be complying with the severe injunction to render
full respect for and obedience to our Constitution and the laws, regulations and
other acts of our duly constituted government from October 23,
1944, onwards. Indeed, to my mind, in choosing between these two courses of
action, they would be dangerously standing on the dividing line between
loyalty and disloyalty to this country and its government.
The proceedings in question, having been had before the liberation of Manila,
were unquestionably "processes" of the Japanese-sponsored government in the
Philippines within the meaning of the aforesaid proclamation of General of the
Army MacArthur and, consequently, fall within the condemnation of the
proclamation. Being processes of a branch of a government which had been
established in hostility to the Commonwealth Government, as well as the
United States Government, they could not very well be considered by the
parties to be valid and binding, at least after October 23, 1944, without said
parties incurring in disobedience and contempt of the proclamation which
enjoins them to render full respect for and obedience to our Constitution and
the laws, regulations and other acts of our duly constituted government. Nine
days after the inauguration of the so-called "Republic of the Philippines,"
President Franklin Delano Roosevelt of the United States declared in one of his
most memorable pronouncements about the activities of the enemy in the
Philippines, as follows:
"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"
(Prom U. S. Naval War College International Law

Documents, 1943, pp. 93, 94.)
It is a fact of contemporary history that while President Manuel L. Quezon of
the Philippines was in Washington, D. C., with his exiled government, he also
repeatedly condemned both the "Philippine Executive Commission" and the
"Philippine Republic" as they had been established by or under orders of the
Commander in Chief of the Imperial Japanese Forces. With these two heads of
the Governments of the United States and the Commonwealth of the
Philippines condemning the "puppet régime" from its very inception, it is
beyond my comprehension to see how the proceedings in question could be
considered valid and binding without adopting an attitude incompatible with
theirs. As President Roosevelt said in his above quoted message, "Our
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.
The most that I can concede is that while the Japanese Army of occupation was
in control in the Islands and their paramount military strength gave those of our
people who were within their reach no other alternative, these had to obey their
orders and decrees, but the only reason for such obedience would be that
paramount military strength and not any intrinsic legal validity in the enemy's
orders and decrees. And once that paramount military strength disappeared,
the reason for the obedience vanished, and obedience should likewise cease.
As was stated by the Supreme Court of the United States in the case of
Williams vs. Bruffy (96 U. S., 176; 24 Law. ed., 719), "In the face of
an overwhelming force, obedience in such matters may often be a necessity
and, in the interest of order, a duty. No concession is thus made to the
rightfulness of the authority exercised" (Italics ours.) The court there refers to
its own former decision in Thorington vs. Smith, and makes it clear that the
doctrine in the Thorington case, so far as the effects of the acts of the
provisional government maintained by the British in Castine, from September,
1814 to the Treaty of Peace in 1815, and the consideration of Tampico as
United States territory, were concerned, was limited to the period during which
the British, in the first case, retained possession of Castine, and the United
States, in the second, retained possession of Tampico. In referring to the
Confederate Government during the Civil War, as mentioned in the Thorington
case, the court again says in effect that the actual supremacy of the Confederate
Government over a portion of the territory of the Union was the only reason for
holding that its inhabitants could not but obey its authority. But the court was
careful to limit this to the time when that actual supremacy existed, when it
said: "* * * individual resistance to its authority then would have been futile
and, therefore, unjustifiable." (Italics ours.)
Because of its pertinence, we beg leave to quote the following paragraph from
that leading decision:
"There is nothing in the language used in
Thorington vs. Smith (supra), which conflicts with
these views. In that case, the Confederate Government
is characterized as one of paramount force, and classed
among the governments of which the one maintained by
great Britain in Castine, from September, 1814, to the
Treaty of Peace in 1815, and the one maintained by the
United States in Tampico, during our War with Mexico, are
examples. Whilst the British retained possession of
Castine, the inhabitants were held to be subject to such
laws as the British Government chose to recognise and
impose. Whilst the United
States retained possession of Tampico, it was held that
it must be regarded and respected as their territory. The
Confederate Government, the court observed, differed from
these temporary governments in the circumstance that its
authority did not originate in lawful acts of regular
war; but it was not, on that account, less actual or less
supreme; and its supremacy, while not justifying acts of
hostility to the United States, 'Made obedience to its
authority in civil and local matters not only a
necessity, but a duty.' All that was meant by this
language was, that as the actual supremacy of the
Confederate Government existed over certain territory,
individual resistance to its authority then would have
been futile and, therefore, unjustifiable. In the face
of an overwhelming force, obedience in such matters may
often be a necessity and, in the interest of order, a
duty. No concession is thus made to the rightfulness
of the authority exercised." (Williams vs. Bruffy, 24
Law ed., 719; italics ours.)
The majority opinion, in considering valid the proceedings in question, invokes
the rule that when a belligerent army occupies a territory belonging to the
enemy, the former, through its Commander in Chief, has the power to establish
thereon what the decisions and treaties have variously denominated provisional
or military government, and the majority holds that the Japanese-sponsored
government in the Philippines was such a government. Without prejudice to
later discussing the effects which the renunciation of war as an instrument of
national policy contained in our Commonwealth Constitution, as well as in the
Briand-Kellog Pact, must have produced in this rule in so far as the Philippines
is concerned, let us set forth some considerations apropos of this conclusion of
the majority. If the power to establish here such a provisional government is
recognized in the Commander in Chief of the invasion army, why should we
not recognize at least an equal power in the Commander in Chief of the
liberation army to overthrow that government with all of its acts, at least those
of an executory nature upon the time of liberation? Considering the theory
maintained by the majority, it would seem that they would recognize in the
Japanese Commander in Chief the power to overthrow the Commonwealth
Government, and all of its acts and institutions if he had chosen to. Why
should at least an equal power be denied the Commander in Chief of the United
States Army to overthrow the substitute government thus erected by the enemy
with all of its acts and institutions which are still not beyond retrieve? Hereafter
we shall have occasion to discuss the aspects of this question from the point of
view of policy or the practical convenience of the inhabitants. If the Japanese
Commander in Chief represented the sovereignty of Japan, the American
Commander in Chief represented the sovereignty of the United States, as well
as the Government of the Commonwealth. If Japan had won this war, her
paramount military supremacy would have continued to be exerted upon the
Filipino people, and out of sheer physical compulsion this country would have
had to bow to the continuance of the puppet regime that she had set up here for
an indefinite time. In such a case, we admit that, not because the acts of that
government would have intrinsically been legal and valid, but simply because
of the paramount military force to which our people would then have continued
to be subjected, they would have had to recognize as binding and obligatory the
acts of the different departments of that government. But fortunately for the
Filipinos and for the entire civilized world, Japan was defeated. And I now
ask: Now that Japan has been defeated, why should the Filipinos be still bound
to respect or recognize validity in the acts of the Japanese-sponsored
government which has been so severely condemned by both the heads of the
United States and our Commonwealth Government throughout the duration of
the war? If we were to draw a parallel between that government and that which
was established by the Confederate States during the American Civil War, we
will find that both met with ultimate failure. And, in my opinion, the
conclusion to be drawn should be the same in both cases.
As held by the United States Supreme Court in Williams vs. Bruffy (supra),
referring to the Confederate Government, its failure carried with it the
dissipation of its pretentions and the breaking down in pieces of the whole
fabric of its government. The Court said among other things:
"The immense power exercised by the government of the
Confederate States for nearly four years, the territory
over which it extended, the vast resources it wielded,
and the millions who acknowledged its authority, present
an imposing spectacle well fitted to mislead the mind in
considering the legal character of that organization.
It claimed to represent an independent nation and to
possess sovereign powers; and as such to displace the
jurisdiction and authority of the United States from
nearly half of their territory and, insted of their laws,
to subtitute and enforce those of its own enactment.
Its prentensions being resisted, they were submitted to
the arbitrament of war. In that contest the Confederacy
failed; and in Us failure its pretensions were
dissipated, its armies scattered, and the whole fabric of
its government broken in pieces." (24 Law, ed., 719;
italics ours.)
By analogy, if the Japanese invasion and occupation of the Philippines had
been lawful—which, however, is not the case—and if Japan had succeeded in
permanently maintaining the government that she established in the
Philippines, which would have been the case had victory been hers, there
would be more reason forholding the acts of that government valid, but because
Japan has lost the war and, therefore, failed in giving permanence to that
government, the contrary conclusion should legitimately follow.
The validity of legislation exercised by either contestant "depends not upon the
existence of hostilities but upon the ultimate success of the party by which it is
adopted" (italics ours.) And, referring to the overthrow of the Confederacy, the
Court, said, "when its military forces were overthrown, it utterly perished, and
with it all its enactments" (italics ours).
The majority cite on pages 9-10 of their opinion a passage from the same case
of William vs. Bruffy, supra, which is a mere obiter dictum. The majority
opinion says that in this passage the Court was "discussing the validity of the
acts of the Confederate States". In the first place, an examination of the
decision will reveal that the controversy dealt with an act of the Confederate
Government, not of the Confederate States individually; and in the second
place, the quoted passage refers to someting which was not in issue in the case,
namely, the acts of the individual States composing the Confederacy. But even
this passage clearly places the case at bar apart from the Court's pronouncement
therein. The quoted passage commences by stating that "The same general
form of government, the same general laws for the administration of justice and
the protection of private rights, which has existed in the States prior to the
rebellion, remanded during the (its) continuance and afterwards." In the case at
bar, the same general form of the Commonwealth Government did not continue
under the Japanese, for the simple reason that one of the first acts of the
invaders was to overthrow the Commonwealth Constitution and, therefore, the
constitutional government which existed thereunder, as an effect of the
following acts and decrees of the Commander in Chief of the Imperial Japanese
Forces;
1. Order No. 3, dated February 20, 1942 of the Commander in Chief of the
Imperial Japanese Forces to the Chairman of the Philippine Executive
Commission directed that, in the exercise of legislative, executive and judicial
powers in the Philippines, the "activities" of the "administrative organs and
judicial courts in the Philippines shall be based upon the existing status, orders,
ordinances and the Commonwealth Constitution (1 Official Journal of the
Japanese Military Administration, page 34). Under the frame of government
existing in this Commonwealth upon the date of the Japanese invasion, the
Constitution was the very fountain-head of the validity and effects of all the
"status, orders, and ordinances" mentioned by the Japanese Commander in
Chief, and in overthrowing the Constitution he, in effect, overthrew all of them.
2. Instruction No. 6 of the Japanese Military Administration (Vol. 1, uages

36 et seq., Official Gazette, edited at the Office of the Executive Commision)
gave the "Detailed Instruction Based on Guiding Principle of Administration,"
and among other things required "The entire personnel shall be required to
pledge their loyalty to the Imperial Japanese Forces * * *." (This, of course,
was repugnant to the frame of government existing here under the
Commonwealth Constitution upon the date of invasion.)
3. Proclamation dated January 3, 1942 of the Japanese Commander in Chief

provided in paragraph 3 that "The Authorities and the People of the
Commonwealth should sever their relations with the U. S. ó * *" (This is,
likewise, repugnant to the Commonwealth Constitution and to the Government
of that Commonwealth which was expressly made subject to the supreme
sovereignty of the United States until complete independence is granted, not by
the mere will of the United States, but by virtue of an agreement between that
Government and ours, under the Tydings-McDuffie Act.)
The individual States of the Confederate and their governments existed prior to
the Civil War and had received the sanction and recognition of the Union
Government, for which the Federal Supreme Court was speaking in the
Williams-Bruffy case; while the Japanese-sponsored governments of the
"Philippine Executive Commission" and the Republic of the Philippines"
neither existed here before the war nor had received the recognition or sanction
of either the United States or the Commonwealth Government—nay, they had
received the most vigorous condemnation of both.
The Court further says in Williams vs. Bruffy (supra):

"No case has been cited in argument, and we think
unsuccessfully attempting to establish a separate
revolutionary government have been sustained as a matter
of legal right. As justly observed by the late Chief
Justice in the case of Shortridge vs. Macon, I Abb. U.
S., 68, decided at the circut, and, in all material
respects like the one at bar, 'Those who engage in
rebellion must consider the consequences. If
they succeed, rebellion becomes revolution, and the new
government will justify is founders. If they fail, all
their acts hostile to the rightful government are
violations of law, and originate no rights which can be
recognized by the courts of the nation whose authority
and existence have been alike assailed.' S. C, Chase,
Dec, 136." (Williams vs. Bruffy, 96 U. S., 176; 24 Law.
ed., 716, 718.) (Italics ours.)
I am of opinion that the principles thus enunciated for the case of an
unsuccessful rebellion should be applied with greater force to the case of a
belligerent who loss the war. And since the founding of the Japanese-
sponsored government in the Philippines was designed to supplant and did
actually supplant the rightful government and since all its acts could not but be
hostile to the latter (however blameless the officials who acted under enemy
duress might be), and since Japan failed, all said acts, particularly those of the
Japanese-sponsored court in said civil case No. 3012, "are violations of law,
and originate no rights which can be recognized by the courts of the nation
whose authority and existence have been alike assailed", quoting the language
of the court in Shortridge vs. Macon, cited by Mr. Justice Field in
Williams vs. Bruffy, supra (24 Law. ed., 718).
II
(a) The government styled as, first, the "Philippine
Executive Commission" and later as the "Republic of the
Philippines", established here by the Commander in Chief
of the Imperial Japanese Forces or by his order was not
a de facto government—the so-called Court of First
Instance of Manila was not a de facto court, and the
judge who presided it was not a de facto judge;
(b) The rules of International Law regarding the

establishment of a de facto government in territory
belonging to a belligerent but occupied or controlled by
an opposing belligerent are inapplicable to the
governments thus established here by Japan.
Under the doctrine of Williams vs. Bruffy, supra, and the pertinent cases
therein cited, the short-lived provisional government thus established by the
Japanese in the Philippines should be classified, at best, as a government of
paramount force. But this is not all. The Constitution of this Commonwealth
which has been expressly approved by the United States Government, in
Article II, section 3, under the heading "Declaration of Principles", renounces
war as an instrument of national policy. This renunciation of war as an
instrument of national policy follows an equal renunciation in the Briand-
Kellog Pact. The rules of International Law, cited in support of the power or
right of a belligerent army of Occupation to set up a provisional government on
occupied enemy territory, were evolved prior to the first World War, but the
horrors and devastations of that war convinced, at least the governments of the
United States and France, that they should thereafter renounce war as an
instrument of national policy, and they consequently subscribed the Briand-
Kellog Pact. Those horrors and devastations were increased a hundredfold, if
not more, in this second World War, but even before this war occurred, our
own people, through our Constitutional delegates, who framed the
Commonwealth Constitution also adopted the same doctrine, and embodied an
express renunciation of war as an instrument of national policy in the
instrument that they drafted. It is true that in section 3, Article II, above-cited,
our Constitution adopts the generally accepted principles of International Law
as a part of the law of the Nation. But, of course, this adoption is exclusive of
those principles of International Law which might involve recognition of war
as an instrument of national policy. It is plain that on the side of the Allies, the
present war is purely defensive. When Japan started said war, treacherously
and without previous declaration, and attacked Pearl Harbor and the
Philippines on those two fateful days of December 7 and 8, 1941, she
employed war as an instrument of her national policy. Under the Briand-
Kellog Pact and our Commonwealth Constitution, the United States and the
Commonwealth Government could not possibly have recognized in Japan any
right, as against them, to employ that war as an instrument of her national
policy, and, consequently, they could not have recognized in Japan the power
to set up in the Philippines the puppet government that she later set up, because
such power would be a mere incident or consequence of the war itself. The
authorities agree that such a power, under the cited rules, is said to be a right
derived from war. (67 C. J. p. 421, sec. 171.) There can be no question that
the United States and the Commonwealth Governments were free to refuse to
be bound by those rules when they made their respective renunciations above
referred to. Indeed, all the United Nations have exercised this free right in their
Charter recently signed at San Francisco.
As a necessary consequence of this, those rules of International Law were no

longer applicable to the Philippines and to the United States at the time of the
Japanese invasion and as a corollary, it follows that we have no legal
foundation on which to base the proposition that the acts of that Japanese-
sponsored government in the Philippines were valid and binding. Moreover, I
am of opinion, that although at the time of the Japanese invasion and up to the
present, the United States retains over the Philippines, a certain measure of
sovereignty, it is only for certain specified purposes enumerated in the
Tydings-McDuffie Act and the Commonwealth Constitution. (Ordinance
appended to the Constitution.) And our territory was at the time of the
Japanese invasion not a territory of the United States, within the meaning of the
laws of war governing war-like operations on enemy territory. Our territory is
significantly called "The National Territory" in Article I of our Constitution
and this bears the stamp of express approval of the United States Government.
The Philippines has been recognized and admitted as a member of the United
Nations. We, therefore, had our own national and territorial identity previous
to that invasion. Our nation was not at war with Japan arid has never been.
The Japanese, themselves, were proclaiming to the world that they were not at
war with the Filipinos. And in line with this, the Japanese army, in time,
released Filipino war prisoners captured in Bataan. Lt. Gen. Maeda, Chief of
Staff, Imperial Japanese Forces, in his speech of January 2, 1942, said:
"* * * we had not the slightest intentions to make your
people our enemy; rather we considered them as our
friends who will join us hand-in-hand in the
establishment of an orderly Greater East Asia * * *."
(Official Gazette, edited at the Office of the Executive
Commission, Vol, I, p. 65.)
If the Philippines was a neutral territory when invaded by the Japanese, the
following principles from Lawrence, International Law (7th ed.), p. 603, are
pertinent:
"The Duties of Belligerent States Towards Neutral States.
—* * * To refrain from carrying on hostilities within
neutral territory.—We have already seen that, though
this obligation was recognized in theory during the
infancy of International law, it was often very
imperfectly observed in practice. But in modern times it
has been strictly enforced, and any State which knowingly
ordered warlike operations to be carried on in neutral
territory, * * * would bring down upon itself the
reprobation of civilized mankind. Hostilities may be
carried on in the territory of either belligerent, on the
high seas, and in territory belonging to no one.
Neutral land and neutral territorial waters are
sacred. No acts of warfare may lawfully take place
within them. * * *" (Italics ours.)
In all the cases and authorities supporting the power or right to set up a
provisional government, the belligerent had the right to invade or occupy the
territory in the first instance. Such was not the case with the Philippines.
President Roosevelt, in his message to the Filipino people, soon after the
landing of American Forces in Leyte, on October 20, 1944, characterized
Japan's invasion and occupation of the Philippines as "the barbarous,
unprovoked and treacherous attack upon the Philippines," and he announced
the American people's "firm determination to punish the guilty," (41 Off. Gaz.,
149.) (Italic ours.) The illustrious leader of the United Nations could not have
declared in more unmistakable terms the utter illegality of that invasion and
occupation. If the establishment of a provisional government in occupied
territory by a belligerent is "a mere application or extension of the force by
which the invasion or occupation was effected" (67 C. J., p. 421, sec. 171), the
illegality of the invasion, would necessarily permeate the government, which
was its mere application or extention.
The fact that shortly before December 8, 1941, the date of the "barbarous,
unprovoked and treacherous attack," the meager and almost untrained forces of
the Philippine Army had been inducted into the American Army, did not
change the neutral status of the Philippines. That military measure had been
adopted for purely defensive purposes. Nothing could be farther from the
minds of the government and military leaders of the United States and the
Philippines in adopting it than to embark upon any aggressive or warlike
enterprise against any other nation. It is an old and honored rule dating as far
back as the 18th century that even solemn promises of assistance made before
the war by a neutral to a nation which later becomes a belligerent, would not
change the status of the neutral even if such promises were carried out, so long
as they were made for purely defensive purposes. In the words of Vattel "when
a sovereign furnishes the succor due in virtue of a former defensive alliance, he
does not associate himself in the war. Therefore he may fulfill his
engagements and yet preserve an exact neutrality." (Lawrence, Principles of
International Law [7th ed.], pp, 585, 586.)
If the Filipinos had, from contemptible cowardice and fear, allowed their
shores to be invaded, and their territory occupied by the Japanese without
resistance, such invasion and occupation would undoubtedly have been
considered in violation of International Law. Should the Filipinos be punished
for having had the patriotism, bravery, and heroism to fight in defense of the
sacredness of their land, the sanctity of their homes, and the honor and dignity
of their government, by giving validity, in whatever limited measure, to the
lawless acts of the ruthless enemy who thus overran their country, and robbed
them of the tranquility and happiness of their daily lives? And yet, to my mind,
to give any measure of validity or binding effect to the proceedings of the
Japanese-sponsored Court of First Instance of Manila, involved herein, would
be to give that much validity or effect to the acts of those same invaders. To
equalize the consequences of a lawful and a wrongful invasion of occupation,
would be to equalize right and wrong, uphold the creed that might makes right,
and adopt "the law of the jungle."
If said Japanese-sponsored government was not a de facto government, it

would seem clearly to follow that its "Court of First Instance of Manila" was
not a de facto court. But it should additionally be stated that for it to be a de
facto court, its judge had to be a de facto judge, which he could not be, as
presently demonstrated.
As said by President Osmeña, in replying to the speech of General of the Army

MacArthur when the latter turned over to him the full powers and
responsibilities of the Commonwealth Government, on February 27, 1945:
* *
* *
* *
* *
* *
"The time has come when the world should know

that when our forces surrendered in Bataan
and Corregidor, resistance to the enemy was
taken up by the people itself—resistance
which was inarticulate and disorganized in
its inception but which grew from day to day
and from island to island, until it broke out
into an open warfare against the enemy.
"The fight against the enemy was1 truly a

people's war because it counted with the
wholehearted support of the masses. From
the humble peasant to the barrio school
teacher, from the volunteer guard to the
women's auxiliary service units, from the
loyal local official to the barrio folk—each
and every one of those contributed his share
in the great crusade for liberation.
"The guerrillas knew that without the support

of the civilian population, they could not
survive. Whole towns and villages dared
enemy reprisal to oppose the hated invader
openly or give assistance to the underground
movement * * *." (41 Off. Gaz., 88, 89.)
Under these facts, taken together with General of the Army MacArthur's
accurate statement that the "Republic of the Philippines" had been established
under enemy duress, it must be presumed—to say the least—that the judge
who presided over the proceedings in question during the Japanese occupation,
firstly, accepted his appointment under duress; and secondly, acted by virtue of
that appointment under the same duress. In such circumstances he could not
have acted in the bona fide belief that the new "courts" created by or under the
orders of the Japanese Military Commander in Chief had been legally created
—among them the "Court of First Instance of Manila,"—that the Chairman of
the "Philippine Executive Commission" or the President of the "Republic of the
Philippines", whoever appointed him, had conferred upon him a valid title to
his office and a legitimate jurisdiction to act as such judge. Good faith is
essential for the existence of a de facto judge (Tayko vs. Capistrano, 53 Phil.,
866, 872). The very idea of enemy duress would necessarily imply that but for
the duress exerted upon him by the enemy he would have refused to accept the
appointment and to act thereunder. And why? Because he must be presumed to
know that the office to which he was thus appointed had been created by the
enemy in open defiance of the Commonwealth Constitution and the laws and
regulations promulgated by our Commonwealth Government, and that his
acceptance of said office and his acting therein, if willfully done, would have
been no less than an open hostility to the very sovereignty of the United States
and to the Commonwealth Government, and a renunciation of his allegiance to
both. There is no middle ground here. Either the judge acted purely under
duress, in which case his acts would be null and void; or maliciously in
defiance of said governments, in which case his acts would be null and void for
more serious reasons.
The courts created here by the Japanese government had to look for the source
of their supposed authority to the orders of the Japanese Military Commander
in Chief and the so-called Constitution of the "Republic of the Philippines,"
which had been adopted in a manner which would shock the conscience of
democratic peoples, and which was designed to supplant the Constitution
which had been duly adopted by the Filipino people in a Constitutional
Convention of their duly elected Constitutional Delegates. And it was decreed
that the Commander in Chief of the Imperial Japanese Forces "shall exercise
jurisdiction over judicial courts." (Vol. 1, p. 7, Official Journal of the Japanese
Military Administration, cited on pp. 2, 3, of the order of the respondent judge
complained of and marked Exhibit H of the petition for mandamus.) How can
our present courts legitimately recognize any efficacy in the proceedings of
such an exotic judicial system, wherein the Commander in Chief of the
Imperial Japanese Forces possessed the highest judicial jurisdiction?
III
The courts of those governments were entirely

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

were not the same Commonwealth courts, the conclusion is unavoidable that
any jurisdiction possessed by the former and any cases left pending therein,
were not and could not be automatically transferred to the Commonwealth
courts which were re-established under Executive Order No. 36. For this
purpose, a special legislation was necessary.
Executive Order No. 37, in my humble opinion, does not, as held by the
majority, imply that the President recognized as valid the proceedings in all
cases appealed to the Court of Appeals. Section 2 of that order simply provides
that all cases which have been duly appealed to the Court of Appeals shall be
transmitted to the Supreme Court for final decision. The adverb "duly" would
indicate that the President foresaw the possibility of appeals not having been
duly taken. All cases appealed to the Court of Appeals before the war and
otherwise duly appealed, would come under the phrase "duly appealed" in this
section of the Executive Order. But considering the determined and firm
attitude of the Commonwealth Government towards those Japanese-sponsored
governments since the beginning, it would seem inconceivable that President
Osmeña, in section 2 of Executive Order No. 37, intended to include therein
appeals taken to the Japanese-sponsored Court of Appeals, or from the
Japanese-sponsored inferior courts. It should be remembered that in the
Executive Order immediately preceding and issued on the same date, the said
President speaks of re-establishing the courts as fast as provinces were
liberated from the Japanese occupation.
IV
The question boils down to whether the

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

convenience militate against petitioner's
contention.
In this connection, the respondent judge, in his order of June 6, 1945,
complained of, has the following to say:
"It is contended, however, that the judicial system
implanted by the Philippine Executive Commission and the
Republic was the same as that of the Commonwealth prior
to Japanese occupation; that the laws administered and
enforced by said courts during the existence of said
regime were the same laws on the statute books of the
Commonwealth before Japanese occupation, and that even
the judges who presided them were, in many instances, the
same persons who held the position prior to Japanese
occupation. All this may be true, but other facts are
just as stubborn and pitiless. One of them is that said
courts were of a government alien to the Commonwealth
Government. The laws they enforced were, true enough,
laws of the Commonwealth prior to Japanese occupation,
but they had become the laws—and the Courts had become
the institutions—of Japan by adoption (U.
S. vs. Reiter, 27 F. Case No. 16, 146), as they became
later on the laws and institutions) of the Philippine.
Executive Commission and the Republic of the
Philippines. No amount of argument or legal fiction can
obliterate this fact."
Besides, I am of the opinion that the validity of the acts of the courts in the
"judicial system implanted by the Philippine Executive Commission and the
Republic" would not depend upon the laws that they "administered and
enforced", but upon the authority by virtue of which they acted. If the
members of this Court were to decide the instant case in strict accordance with
the Constitution and laws of the Commonwealth but not by the authority that
they possess in their official capacity as the Supreme Court of the Philippines,
but merely as lawyers, their decision would surely be null and void. And yet, I
am firmly of opinion that whoever was the "judge" of the Japanese-sponsored
Court of First Instance of Manila who presided over the said court when the
proceedings and processes in dispute were had, in acting by virtue of the
supposed authority which he was supposed to have received from that
government, did so with no more legal power than if he had acted as a mere
lawyer applying the same laws to the case. If duplication of work or effort, or
even if confusion, should be alleged to possibly arise from a declaration of
nullity of judicial proceedings had before those Japanese-sponsored courts, it
should suffice to answer that the party so complaining in voluntarily resorting
to such courts should be prepared to assume the consequences of his voluntary
act. On the other hand, his convenience should not be allowed to visit upon the
majority of the inhabitants of this country, the dire consequences of a sweeping
and wholesale validation of judicial proceedings in those courts. Let us set
forth a few considerations apropos of this assertion. It is a fact of general
knowledge that during the Japanese occupation of the Philippines, the
overwhelming majority of our people and other resident inhabitants were
literally afraid to go to any place where there were Japanese sentries, soldiers
or even civilians, and that these sentries were posted at the entrance into cities
and towns and at government offices; that the feared Japanese "M.P.'s " or
"Kempeitai's" were a constant terror to them; and lastly, that the greater number
who lived or had evacuated to places far from the Japanese, were also afraid of
the fifth columnists who, unfortunately, were found precisely in the cities and
towns where the courts were located; and as a consequence, the great majority
of the people were very strongly averse to traveling any considerable distance
from their homes and were, one might say, in constant hiding. Add to these
circumstances, the fact of the practical absence of transportation facilities and
the no less important fact of the economic structure having been so dislocated
as to have impoverished the many in exchange for the enrichment of the few—
and we shall have a fair picture of the practical difficulties which the ordinary
litigant would in those days have encountered in defending his rights against
anyone of the favored few who would bring him to court. It should be easy to
realize how hard it was for instance, to procure the attendance of witnesses,
principally because of the fact that most of them were in hiding or, at least,
afraid to enter the cities and towns, and also because of the generally difficult
and abnormal conditions prevailing. Under such conditions, cases of denial of a
party's day in court, as known in our constitutional government, were to be
expected. Such denial might arise from many a cause. It might be the party's
fear to appear before the court because in doing so, he would have had to get
near the feared Japanese. It might be because he did not recognize any legal
authority in that court, or it might be his down-right repugnance of the hated
enemy. And I dare say that among such people would be found more than
seventeen million of the eighteen million Filipinos. These are but a few of
countless causes. So that if some form of validation of such judicial
proceedings were to be attempted, all necessary safeguards should be provided
to avoid that in any particular case the validation should violate any litigant's
constitutional right to his day in court, within the full meaning of the phrase, or
any other constitutional or statutory right of his. More people, I am afraid,
would be prejudiced than would be benefited by a wholesale validation of said
proceedings.
Much concern has been shown for the possible confusion which might result
from a decision declaring null and void the acts processes of the Japanese-
sponsored governments in the Philippines. I think, this aspect of the question
has been unduly stressed. The situation is not without remedy, but the remedy
lies with the legislature and not with the courts. As tie courts cannot create a
new or special jurisdiction for themselves, which is a legislative function, and
as the situation demands such new or special jurisdiction, let the legislature act
in the premises. For instance, the Congress may enact a law conferring a
special jurisdiction upon the courts of its selection, whereby said courts may,
after hearing all the parties interested, and taking all the necessary safeguards,
so that, a party's day in court or other constitutional or statutory right under the
Commonwealth Government should not be prejudiced by any of said acts,
processes or proceeding's, particularly, those in the Japanese-sponsored courts,
and subject to such other conditions as the special law, may provide, validate
the corresponding acts, processes or proceedings. This, to my mind, would be
more conducive to a maximum of benefit and a minimum of prejudice to the
inhabitants of this country, rather than the procedure favored by the majority.
Finally, let us not equalize the conditions then prevailing in Manila to that
prevailing in the provinces, where the greater number of the people were then
living outside the towns, in the farms and the hills. These people constitute the
great majority of the eighteen million Filipinos. To them the semblance of an
administration of justice which the Japanese allowed, was practically
unknown. But they constituted the majority of loyal citizens to whom
President Roosevelt's message of October 23, 1943 refers. They—the majority
of our people—had an unshaken faith in the arrival of American aid here and
the final triumph of the Allied cause. They were willing to wait for the
restoration of their rightful government, with its courts and other institutions,
for the settlement of their differences. Nay, in their common hardships and
sufferings under the yoke of foreign oppression, they had not much time to
think of such differences, if they did not utterly forget them. Their undoubted
hatred of the invader was enough to keep them away from the judicial system
that said invader allowed them to have. Those who voluntarily went to the
courts in those tragic days belong to the small minority.
As to public order—why! any public order which then existed was not due to
the courts or other departments of the puppet government. It was maintained at
the point of the bayonet by the Japanese army, and in their own unique fashion.
Writ granted.
Source: Supreme Court E-Library | Date created: February 03, 2015

75 Phil. 285
[ G.R. No. L-49. November 12, 1945 ]

WILLIAM F. PERALTA, PETITIONER, VS. THE DIRECTOR OF PRISONS,
RESPONDENT.
D E C I S I O N
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 denned 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 denned 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. Lockhart
(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 curiæ. 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 the 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.
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

Philippine Executive Commission, which was organized by
Order No. 1, issued on January 23, 1942, by the Commander
of the Japanese forces, was a civil government
established by the military forces of occupation and
therefore a de facto government of the second kind.
It was not different from the government established by
the British in Castine, Maine, or by the United
States in Tampico, Mexico. As Halleck says, 'the
government established over an enemy's territory during
the military occupation may exercise all the powers given
by the laws of war to the conqueror over the conquered,
and is subject to all restrictions which that
code imposes. It is of little consequence whether
vsuch 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 country by the United States
Army, the questions 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. Lockhart, 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 citizens as they had existed at the
commencement of tilities" (Williams vs. Bruffy, supra) ; that the Union is
perpetual and indissoluble, and the obligation of allegiance to the state and
obedience to her laws and state 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 or ganizations to the support
of a new and different national head. The same constitutions, the same laws for
the protection of 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 or the belligerent occupant at regular war with the United States.
The questions 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 imposes
upon the petitioner the penalty of life 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
from the law martial as denned 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 a political complexion, for it is mere governmental agency charged
with the duty of applying the law to cases falling within its jurisdiction. Its
judgments and sentences may be of a 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." (Halls International Law,
seventh ed., p. 500). 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'si 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 Jose
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 is martial law; and it is none the less so when applied by the 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 are 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. Ill, 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 to 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 the 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 directed 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 denned and also penalized ,
by the territorial law or 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 Islands. They are also conr
sidered 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 Ken and Dizon, supra.
Hall, commenting on the effect of the principle of postiiminy 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 and 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 operate 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 the punitive
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 Islands 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.: I concur in the result.
CONCURRING
OZAETA, J.,
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 had
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 curiæ—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 under 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 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 ar 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 tmay 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 he 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 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 Kules of

Court shall be suppletory to the foregoing insofar as
they are not in conflict therewith."
The record 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 enactments 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 iby 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
and 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 put 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
of 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 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
Commonwealth 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;
Williams 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 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 through Mr. Justice Field,
observed: "The rule stated by Vattel, that the justice of the cause between two
enemies being by the 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 of 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 may "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 political
privileges, and all 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 nations 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 determine the criterion by which the validity of
its enactments should be tested. In the recent case of Co Kim
Cham vs. Valdez Tan Keh and 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 Kepublic 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 had 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. For it
is a well-established doctrine in international 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 serve to transfer
sovereignty over the territory controlled although
the de jure government is during the period of
occupancy deprived of the power to exercise its rights
as such. (Thirty Hogshead of Sugar vs. Boyle, 9
Cranch, 191; United States vs. Rice, 4 Wheat., 246;
Fleming vs. Page, 9 Howard, 603; Downes vs. Bidwell,
182 U. S., 345.) The formation of the Republic of the
Philippines was a scheme contrived by Japan to delude the
Filipino people into believing in the apparent
magnanimity of the Japanese gesture of transferring or
turning over the rights of government into the hands of
Filipinos. It was established under the mistaken
belief that, by doing so, Japan would secure the
cooperation or at least the neutrality of the
Filipino people in her war against the United States and
other allied nations."
We reaffirmed those statements. To show further the fictitious character of

the much-propagandized "independence" which Japan purported to grant to
the Philippines through the establishment of the "Republic," we may add that,
as a 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 that month forced them to leave the seat
of 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 hostility 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 sovereignly 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 in 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 aB 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 latitude with respect to choice of means and mode
of procedure. This freedom may be partly due to the
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.
* * *
* * * *
* * *
"The right to legislate is not deemed to be unlimited.

According to the Hague Eegulations of 1907, the
occupant is called upon to respect, 'unless absolutely
prevented, the laws in force in the country Thus in
restoring public order and safety he appears to be
bound to make serious endeavor to continue in force the
ordinary civil and criminal laws which do not conflict
with the security of his army or its support,
efficacy, 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 International 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 invests 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 and judicial administration by 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 respect the laws, 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 opinion 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 applying it in 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 sustains 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.
3. The
summary
procedure
prescribed
in
Ordinance
No. 7 was
inquisitori
al,
repugnant
to the
humanitar
ian
method of
administer
ing
criminal
justice
adopted
by all
progressiv
e,
democrati
c, 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
examinati
on of the
following
features
of said
procedure
:
4.
(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 Rules of Court and 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.
5.
(b) The trial must be commenced within two days after the filing of the
information—in violation of section 7, Rule 114, which gives the
accused at least two days after the plea of not guilty within which to
prepare for trial.
6.
(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 the 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.
7.
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
was placed there. Asked whether he knows of anybody who could have
placed the revolver under his bed, he answers that it might have been
placed there by a guest who slept on his bed the night previous to its
discovery by the police. He is asked to give the name of the guest
referred to and his address, but he refuses to answer. Asked if he has
other witnesses to support his claim, he answers 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 be due, either to the fact that there
was no such guest, or that the cause for concealing his identity is worth
suffering for. Volenti non fit injuria."
8.
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 guilty ibeyond 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 other person who wished to do him harm had planted it
there, for no 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 any question or present any proof in his
defense until the prosecution had presented its witnesses, 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 placed 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 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 have been able to investigate
and ascertain that fact. In that way he cpuld have satisfactorily
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.
9.
(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 of Appeals or to the Supreme Court. It is true that as a 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.
10.
(e) In the instant case the penalty imposed upon the 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 subsection 4, section 2, Article VIII of the Constitution of
the Commonwealth, he could not have been deprived by law of that
right.
11.
(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 prohibits th§ 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 crimes; 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 sections 1 and 2
could be held in detention indefinitely, whereas persons 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 if 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.
12.
13. 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 rights, in the dignity and worth of the 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 this 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 at
the cost of millions of lives and untold sacrifices.
14.
15. The case involves the interpretation not of constitutional 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 Law,
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.
16.
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
immediate and relentless campaign against certain classes of crimes and
offenses and expediting the trial and determination thereof in order to hasten
the re-establishment of peace and order 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 otherwise 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 have
occurred were it not for the scarcity produced by the seizures and requisitions
made 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 persons to defend themselves against or attack the
invader. Robberies and other crimes against property increased as a result
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; and the elimination of that cause
meant the expulsion 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 inseperable 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.
CONCURRING IN THE RESULT
PARAS, J.,
Charged with robbery, the petitioner herein was found guilty and sentenced 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 MacArthur 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 correctional 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 of the minimum penalty that can be
imposed is six months of arresto mayor.
This Court has already dismissed cases wherein the defendants were charged
with the violation of laws in force at the time of the commission and trial of
the crime, after said laws had been repealed by subsequent legislation,
People vs. Moran (44 Phil., 387); People vs. Tamayo (61 Phil., 226), and also
repeatedly released on writs of habeas corpus prisoners who, although
sentenced to suffer long terms of imprisonment, 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 petitioner has acted otherwise, and having served more than 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.
CONCURRING
DE JOYA, J.,
The principal question involved in this case is the validity of the judicial
proceedings 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
proceedings of the proclamation of General Douglas MacArthur, 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 no 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. 113, 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 administered, also, by
civil authority, supported more or less directly hy
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 wherever 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 make use of the local courts, wholly or in
part; or he may proclaim martial law (Davis, Elements of International Law
[3d ed.], 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., p. 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 quasi-sovereignity, which gives 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, sees. 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. 412-413; 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 a 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; 43 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 Order No. 157 of the Chairman of the 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 of 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.
Violations 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 penatly 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 nim an opportunity to be heard, for the deliberation and
judgment of the court, and for an appeal from such judgment 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 charter 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.
CONCURRING
PERFECTO, J.,
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 intio 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 of
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 Mac-Arthur, 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
"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 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 McArthur in nullifying in a sweeping manner all judicial processes
held during enemy occupation.
The October Proclamation is, besides, 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 ihe 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 de-Scribed 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 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." (Art. Ill, 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 of 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. Ill, 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 Jhe equal protection of the laws." (Art. Ill, 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 or his principal." (Italics 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 toere made shall
be admissible in evidence if material to the issue." (Italics 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." (italics 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 proaecuting officer
as to any matters favorable or un favorable 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 un der 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 bo 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, perhaps,
just a mere acquaintance, 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 at torney 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 heai'd 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. Ill, sec. 1, No. 17, Constitution
of the Philippines.)
"No person shall be compelled to be a witness against

himself." (Art. Ill, 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 of 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 OP 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, Con stitution 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 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 of the Supreme
Court, but 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 of 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 true that this Court has played a large
part in the unfolding of the constitutional plan
(sometimes too much so m the opinion of some
observers), but we would 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 in 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
functions to thwart the popular will, and who have
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 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 sentence 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 sentence
imposed is death, by entrusting the power to revise said sentence to a 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 assuring 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 his days of agony.
(5) By placing the accused, in the cases in question, under the sword of
Damocles of an unfavorable presumption, 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. Ill, 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 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. Ill, 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 prosecuting officer,
"may raise unfavorable presumption against him."
If we have to keep democracy in our countryt we must be vigilant in

upholding the constitutional principle that all persons shall be presumed to be
innocent until the contrary is proved beyond ail 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 OP 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.)
This 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 a 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 MacArthur 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. L-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 State 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

judgment of a tribunal of a foreign country, having
jurisdiction to pronounce the judgment, is as follows:
"(a) In case of a judgment against a specific thing,

the judgment is conclusive upon the title to the thing;
"(b) In case of a judgment against a person, the judgment

is presumptive evidence of a right as between the
parties and their successors in interest by a
subsequent title; but the judgment 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 STUNNTNG 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, and 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 or not 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- incriminatingly 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 or 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 steal-thily 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 judgment 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 a 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 principies 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 virtue's, 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 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
fibre 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 heores
and martyrs among the purest and noblest specimens that humanity produced in
all countries, in all time, and 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.
CONCURRING
HILADO, J.,
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 iof
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 of any avail to bind the herein
petitioner by the laws, regulations, processes 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
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; italics 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; italics 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; italics 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; italics 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 Islands
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 Osmeiia 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 Febuary 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
derived from war so employed? Or else, upon the ground that such provision
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 a 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 an
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 the 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, if 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 addition to what has been said above, let us see if the Japanese-
sponsored "Republic of the Philippines" did not introduce 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 departments, 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 proclaimed. 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 National Assembly" (Art. II, sec. 2). While
under the 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. 3). 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. 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 delegates
elected every three years, one from each and every province and chartered city
(Art. Ill, sec. 2). While under the Commonwealth Constitution, respecting the
Judicial Department, the members of the 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. VIII, sec. 5), 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
inferior 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 or a 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 the 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 tinder 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 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. * * *" (Hall,
International Law, 6th ed., p. 483; italics ours.)
Finally, upon close 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 as 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, und 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 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 the Filipino people had drafted their own constitution and established
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 governments of the world.
CONCURRENTE
BRIONES, M.,
El mandamiento de habeas corpus que se solicita debe concederse.
La proclama del General MacArthur 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 caxecen de ef ecto
legal en areas de Filipinas liberadas de la ocupacion y
control del enemigo."
Recienteimente 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. 113, 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 pasado regimen que por su naturaleza y
circunstancias reclaman una decidida y pronta accion de parte nuestra en el
sentido de aziularla 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
constitucidn 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 principios de una democracia constitucional Bajo nuestro sistema
procesal el acusado tiene derecho a que no se le ponga en situacion de
acriminarse. Tiene derecho a callarse sin que por esto pueda atribuirsele cargo
inculpatorio alguno. Este es un derecho fundamental, ga- rantido por la
constitucion.
Empero bajo el sistema procesal que se discute, "la negativa del acusado a
contestar cualquiera 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 sumarlsimo
del proceso llega a tal extremo qne "una sentencia condenatoria puede
dictarse inmediatamente contra el acusado siempre que los hechos
descubiertos 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 en apelacion 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 constitution del Commonwealth.
Asi que el derecho del condenado a reclusion perpetua o a muerte para que se
revise su causa por el Tribunal Supremo es constitucional y, por ende, no puede
ser abolido por un simple fiat legislativo.
En camibio, bajo el sistema procesal en controversia las sentencias de los
tribunales especiales o sumarias eran de caracter final, excepto cuando la pena
impuesta fuera la de muerte, en cuyo easo los autos se elevaban en consulta a
una division especial del Tribunal Supremo compuesta de tres miembros
(Ordenanza No. 7 de la llaniada Republica de Filipinas por la que se crearon las
tribunales especiaies 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
ordinaries, sino que inclusive quedaba abolido el derecho de apelar otorgado
por la constitution del Commonwealth al acusado condenado a reclusion
perpetua. Por este motivo el recurrente, a quien se le habia impuesto esta pena
por el alegado delito de robo, no pudo apelar de la 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 facto; que aun admitiendo el caracter
inquisitorial, anti-democratico de la ley procesal bajo la cual fue enjuiciado el
acusado, el gobierno de facto era dueno de establecer los procedimientos
legates que quisiera; y que, segun las reglas y doctrinas conocidas de derecho
internacional, 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,
aeeptando la realidad de los heehos consumados.
Se admite, sin embargo, que la regla tiene sus excepciones. Una de ellas es
que "los actos del ocupante militar que rebasen su poder a tenor del criterio
establecido en el articulo 43 de las Regulaeiones de La Haya, son nulos y sin
efecto con relacion al gobierno legitimo." (Wheaton's International Law, 7th
ed. [1944], p. 245.) Segiin esto, ias sentencias por "crimenes de guerra" o
"delitos politicos" cometidos durante la ocupacion son, por razones
perfectamente comprensibles, nulas e invalidas al restablecerse Ja 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 el

ejercicio de tales poderes debe extenderse tan solo hasta donde fuese necesario
para su seguridad y el exito de sus operaciones, teniendo particularmente en
cuenta el caracter transeunte de su ocupacion. Como regla general, al invasor se
le prohibe alterar o suspender las leyes referentes a la propiedad y a las
relaeiones personates privadas, o las leyes que regulan el orden moral de la
comunidad. (Hall, Treatise on International Law, 7th ed., pp. 498, 499). Lo
que se hace fuera de estas limitaciones es en exceso de su competencia y es
generalmente nulo al restaurarse la soberania legitima.
Otra excepcion es la que se refiere a los actos de un gobierno de faoto

resultante de una insurreccion, rebelion, revolucion o guerra civil. A este
efecto se ha declarado, por ejemplo, que los actos en fomento o apoyo de una
rebelion contra los Estados Unidos, o encaminados a anular los jusios dereehos
de los ciudadanos, y otros actos de igual indole, deben ser considerados, por lo
general, invdlidos y nulos (Texas vs. White, 74 U. S., 733; 19 Law, edv 240).
En otro caso se ha declarado la validez de ciertos actos judiciales o legislatives
en estados insurreccionados, siempre, que su proposito o modo de operation no
fwere hostil a la autoridad del gobierno national, o no eonculcaren derechos de
los ciudademos bajo la Constitution.—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 cual el recurrente
sufre ahora pena de reclusion perpetua y pide ser liberado mediante peticion
de habeas corpus?
Se asevera que no procede aplicar al presente caso la doctrina establecida en

la jurisprudencia americana sobre gobiernos de facto resultantes de una
insurreccion, revolucion o guerra civil porque evidentemente la llamada
Reptiblica de Filipinas instaurada durante la ocupacion militar japonesa no
tenia este caracter, sino que era mas bien un gobierno establecido mediante
fuerza 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
repiiblica no tenia caracter insurreccional ni revolucionario, en disfrute de
plena autonomia, sino que era simple pro duct o de la coaccion y estaba
mediatizada continuamente por el invasor, dinero 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 facto de este ultimo
tipo—gobierno establecido, despues de todo, por compatriotas, por
conciudadanos—se le coarta con la restriecion de que sus actos legislativos o
judiciales, en tanto son validos, al restaurarse el regimen de jure, en cuanto no
conculcaren los derechos justos de los civdadanos, a los derechos garantidos
por la constitution, pareee que no existe ninguna razon por que no se ha de
aplicar la misma restriceion 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 fuerte cuando, en su caso como el de
Filipinas, el enemigo invasor inicio 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 condulcacion 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 rapina, devastation 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 restriceion que se estima buena para el insurrecto o
revolucionario.
La ventaja de extender hasta cierto punto la doctrina sobre gobiernos de

facto resultantes de una insurrection, rebelion o guerra civil a gobiernos de
facto establecidos como incidente en el curso de una guerra entre dos naciones
independientes enemigas es que, frente a casos de conculcacion de los justos
derechos de los ciudadanos, o de los derechos garantidos por la
constitucion 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 la 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 raciocinio no solo no es heterodoxa a la luz de los principios

establecidos de derecho international, sino pareee ser una Mgica inferencia de
los mismos. Ya hemos visto que al ocupante militar en el curso de una
guerra international se le prohibe, como regla general, alterar o suspender las
leyes references a la propiedad y a las relaciones personates privadas, o las
leyes que regulan el or den moral de la eomunidad. (Hall, Treatise on
International Law, supra.) Ahora cabe preguntar: ¿Son los justos derechos de
los ciudadanos, b los fundamentals garantidos por la eonstitucion inferiores
en categoria a la propiedad, o a las relaeiones personates privadas, o al orden
moral de la eomunidad? ¿No son en cierto sentido hasta superiores? Por
tanto, a nadie debe chocar que la prohibieion se extienda a estas materias. Es
una inclusion 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 originales
que denotan el esfuerzo supremo y gigante de la humanidad por superar la
banbarie y por dar al traste con las formulas arcaicas, reaccionarias. Para
citar solamente algunos ejemplos los mas destacados, tenemos el
enjuiciamiento de los llamados criminales de la guerra, y la responsabilidad
que se exige a los jefes militares por las atrocidades 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 del
Procurador 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 opresidn bajo el cual se tramitd y se dicto la
referida sentencia. Es mas, equivaldrfa a sancionar la ideologia totalitaria,
despotica, medieval contra la cual nuestro pueblo lucho tan lieroicamente
jugandose todo: vida, libertad y bienes materiales.
Ciertamente no nos hemos librado de la opresion para llegar a tan irrisorio

resultado.
Concedase el remedio pedido.

77 Phil. 856
[ G.R. No. 409. January 30, 1947 ]

ANASTACIO LAUREL, PETITIONER, VS. ERIBERTO MISA, RESPONDENT.
R E S O L U T I O N
"In G. R. No. L-409, Anastacio Laurel vs. Eriberto

Misa, etc., the Court, acting on the petition for habeas
corpus filed by Anastacio Laurel and based on the theory
that a Filipino citizen who adhered to the enemy giving
the latter aid and comfort during the Japanese occupation
cannot be prosecuted for the crime of treason defined and
penalized by article 114 of the Revised Penal Code, for
the reason (1) that the sovereignty of the legitimate
government in the Philippines and, consequently, the
correlative allegiance of Filipino citizens thereto was
then suspended; and (2) that there was a change of
sovereignty over these Islands upon the proclamation of
the Philippine Republic:
"(1) Considering that a citizen or subject owes, not a

qualified and temporary, but an absolute and permanent
allegiance, which consists in the obligation of fidelity
and obedience to his government or sovereign; and that
this absolute and permanent allegiance should not be
confused with the qualified and temporary allegiance
which a foreigner owes to the government or sovereign of
the territory wherein he resides, so long as he remains
there, in return for the protection he receives, and
which consists in the obedience to the laws of the
government or sovereign. (Carlisle vs. United States, 21
Law. ed., 429; Secretary of State Webster Report to the
President of the United States in the case of Thraser, 6
Web. Works, 526);
"Considering that the absolute and permanent allegiance

of the inhabitants of a territory occupied by the enemy
to their legitimate government or sovereign is not
abrogated or severed by the enemy occupation, because the
sovereignty of the government or sovereign de jure is
not transferred thereby to the occupier, as we have held
in the cases of Co Kim Cham vs. Valdez Tan Keh and Dizon
(75 Phil., 113) and of Peralta vs. Director of Prisons
(75 Phil., 285), and if it is not transferred to the
occupant it must necessarily remain vested in the
legitimate government; that the sovereignty vested in the
titular government (which is the supreme power which
governs a body politic or society which constitute the
state) must be distinguished from the exercise of the
rights inherent thereto, and may be destroyed, or severed
and transferred to another, but it cannot be suspended
because the existence of sovereignty cannot be suspended
without putting it out of existence or divesting the
possessor thereof at least during the so-called period of
suspension; that what may be suspended is the exercise of
the rights of sovereignty with the control and government
of the territory occupied by the enemy passes temporarily
to the occupant; that the subsistence of the sovereignty
of the legitimate government in a territory occupied by
the military forces of the enemy during the war,
'although the former is in fact prevented from exercising
the supremacy over them' is one of the 'rules of
international law of our times'; (II Oppenheim, 6th
Lauterpacht ed., 1944, p. 482), recognized, by necessary
implication, in articles 23, 44, 45, and 52 of Hague
Regulation; and that, as a corollary of the conclusion
that the sovereignty itself is not suspended and subsists
during the enemy occupation, the allegiance of the
inhabitants to their legitimate government or sovereign
subsists, and therefore there is no such thing as
suspended allegiance, the basic theory on which the whole
fabric of the petitioner's contention rests;
"Considering that the conclusion that the sovereignty of

the United States was suspended in Castine, set forth in
the decision in the case of United States vs. Rice, 4
Wheaton, 246, 253, decided in 1819, and quoted in our
decision in the cases of Co Kim Cham vs. Valdez Tan Keh
and Dizon and Peralta vs. Director of Prisons, supra,
in connection with the question, not of sovereignty, but
of the existence of a government de facto therein and
its power to promulgate rules and laws in the occupied
territory, must have been based, either on the theory
adopted subsequently in the Hague Convention of 1907,
that the military occupation of an enemy territory does
not transfer the sovereignty, or on the old theory that
such occupation transfers the sovereignty to the
occupant; that, in the first case, the word 'sovereignty'
used therein should be construed to mean the exercise of
the rights of sovereignty, because as this remains vested
in the legitimate government and is not transferred to
the occupier, it cannot be suspended without putting it
out of existence or divesting said government thereof;
and that in the second case, that is, if the said
conclusion or doctrine, refers to the suspension of the
sovereignty itself, it has become obsolete after the
adoption of the Hague Regulations in 1907, and therefore
it can not be applied to the present case;
"Considering that even adopting the words 'temporary

allegiance,' repudiated by Oppenheim and other
publicists, as descriptive of the relations borne by the
inhabitants of the territory occupied by the enemy toward
the military government established over them, such
allegiance may, at most, be considered similar to the
temporary allegiance which a foreigner owes to the
government or sovereign of the territory wherein he
resides in return for the protection he receives as above
described, and does not do away with the absolute and
permanent allegiance which the citizen residing in a
foreign country owes to his own government or sovereign;
that just as a citizen or subject of a government or
sovereign may be prosecuted for and convicted of treason
committed in a foreign country, in the same way an
inhabitant of a territory occupied by the military forces
of the enemy may commit treason against his own
legitimate government or sovereign if he adheres to the
enemies of the latter by giving them aid and comfort; and
that if the allegiance of a citizen or subject to his
government or sovereign is nothing more than obedience to
its laws in return for the protection he receives, it
would necessarily follow that a citizen who resides in a
foreign country or state would, on one hand, ipso
facto acquire the citizenship thereof since he has to
obey, with certain exceptions, the laws of that country
which enforce public order and regulate the social and
commercial life, in return for the protection he
receives, and would, on the other hand, lose his original
citizenship, because he would not be bound to obey most
of the laws of his own government or sovereign, and would
not receive, while in a foreign country, the protection
he is entitled to in his own;
"Considering that, as a corollary of the suspension of

the exercise of the rights of sovereignty by the
legitimate government in the territory occupied by the
enemy military forces, because the authority of the
legitimate power to govern has passed into the hands of
the occupant (Article 43, Hague Regulations), the
political laws which prescribe the reciprocal rights,
duties and obligation of government and citizens, are
suspended or in abeyance during military occupation (Co
Kim Cham vs. Valdez Tan Keh and Dizon, supra), for the
only reason that as they exclusively bear relation to the
ousted legitimate government, they are inoperative or not
applicable to the government established by the occupant;
that the crimes against national security, such as
treason and espionage, inciting to war, correspondence
with hostile country, flight to enemy's country, as well
as those against public order, such as rebellion,
sedition, and disloyalty, illegal possession of firearms,
which are of political complexion because they bear
relation to, and are penalized by our Revised Penal Code
as crimes against the legitimate government, are also
suspended or become inapplicable as against the occupant,
because they can not be committed against the latter
(Peralta vs. Director of Prisons, supra); and that,
while the offenses against public order to be preserved
by the legitimate government were inapplicable as
offenses against the invader for the reason above stated,
unless adopted by him, were also inoperative as against
the ousted government for the latter was not responsible
for the preservation of the public order in the occupied
territory, yet article 114 of the said Revised Penal
Code, was applicable to treason committed against the
national security of the legitimate government, because
the inhabitants of the occupied territory were still
bound by their allegiance to the latter during" the enemy
occupation;
"Considering that, although the military occupant is

enjoined to respect or continue in force, unless
absolutely prevented by the circumstances, those laws
that enforce public order and regulate the social and
commercial life of the country, he has, nevertheless, all
the powers of a de facto government and may, at his
pleasure, either change the existing laws or make new
ones when the exigencies of the military service demand
such action, that is, when it is necessary for the
occupier to do so for the control of the country and the
protection of his army, subject to the restrictions or
limitations imposed by the Hague Regulations, the usages
established by civilized nations, the laws of humanity
and the requirements of public conscience (Peralta vs.
Director of Prisons, supra; 1940 United States Rules of
Land Warfare 76, 77); and that, consequently, all acts of
the military occupant dictated within these limitations
are obligatory upon the inhabitants of the territory, who
are bound to obey them, and the laws of the legitimate
government which have not been adopted, as well and those
which, though continued in force, are in conflict with
such laws and orders of the occupier, shall be considered
as suspended or not in force and binding upon said
inhabitants;
"Considering that, since the preservation of the

allegiance or the obligation of fidelity and obedience of
a citizen or subject to his government or sovereign does
not demand from him a positive action, but only passive
attitude or forbearance from adhering to the enemy by
giving the latter aid and comfort, the occupant has no
power, as a corollary of the preceding consideration, to
repeal or suspend the operation of the law of treason,
essential for the preservation of the allegiance owed by
the inhabitants to their legitimate government, or compel
them to adhere and give aid and comfort to him; because
it is evident that such action is not demanded by the
exigencies of the military service or not necessary for
the control of the inhabitants and the safety and
protection of his army, and because it is tantamount to
practically transfer temporarily to the occupant their
allegiance to the titular government or sovereign; and
that, therefore, if an inhabitant of the occupied
territory were compelled illegally by the military
occupant, through force, threat or intimidation, to give
him aid and comfort, the former may lawfully resist and
die if necessary as a hero, or submit thereto without
becoming a traitor;
"Considering that adoption of the petitioner's theory of

suspended allegiance would lead to disastrous
consequences for small and weak nations or states, and
would be repugnant to the laws of humanity and
requirements of public conscience, for it would allow
invaders to legally recruit or enlist the Quisling
inhabitants of the occupied territory to fight against
their own government without the latter incurring the
risk of being prosecuted for treason, and even compel
those who are not to aid them in their military operation
against the resisting enemy forces in order to completely
subdue and conquer the whole nation, and thus deprive
them all of their own independence or sovereignty—such
theory would sanction the action of invaders in forcing
the people of a free and sovereign country to be a party
in the nefarious task of depriving themselves of their
own freedom and independence and repressing the exercise
by them of their own sovereignty; in other words, to
commit a political suicide;
"(2) Considering that the crime of treason against the
government of the Philippines defined and penalized in
article 114 of the Penal Code, though originally intended
to be a crime against said government as then organized
by authority of the sovereign people of the United
States, exercised through their authorized
representative, the Congress and the President of the
United States, was made, upon the establishment of the
Commonwealth Government in 1935, a crime against the
Government of the Philippines established by authority of
the people of the Philippines, in whom the sovereignty
resides according to section 1, Article II, of the
Constitution of the Philippines, by virtue of the
provision of section 2, Article XVI thereof, which
provides that 'All laws of the Philippine Islands * * *
shall remain operative, unless inconsistent with this
Constitution * * * and all references in such laws to the
Government or officials of the Philippine Islands, shall
be construed, in so far as applicable, to refer to the
Government and corresponding officials under this
Constitution;'
"Considering that the Commonwealth of the Philippines was

a sovereign government, though not absolute but subject
to certain limitations imposed in the Independence Act
and incorporated as Ordinance appended to our
Constitution, was recognized not only by the Legislative
Department or Congress of the United States in approving
the Independence Law above quoted and the Constitution of
the Philippines, which contains the declaration that
'Sovereignty resides in the people and all government
authority emanates from them' (section 1, Article II),
but also by the Executive Department of the United
States; that the late President Roosevelt in one of his
messages to Congress said, among others, 'As I stated on
August 12, 1943, the United States in practice regards
the Philippines as having now the status as a government
of other independent nations—in fact all the attributes
of complete and respected nationhood' (Congressional
Record, Vol. 29, part 6, page 8173); and that it is a
principle upheld by the Supreme Court of the United
States in many cases, among them in the case of
Jones vs. United States (137 U. S., 202; 34 Law. ed.,
691, 696) that the question of sovereignty is 'a purely
political question, the determination of which by the
legislative and executive departments of any government
conclusively binds the judges, as well as all ofher
officers, citizens and subjects of the country.'
"Considering that section I (1) of the Ordinance appended
to the Constitution which provides that pending the final
and complete withdrawal of the sovereignty of the United
States 'All citizens of the Philippines shall owe
allegiance to the United States', was one of the few
limitations of the sovereignty of the Filipino people
retained by the United States, but these limitations do
not do away or are not inconsistent with said
sovereignty, in the same way that the people of each
State of the Union preserves its own sovereignty although
limited by that of the United States conferred upon the
latter by the States; that just as to reason may be
committed against the Federal as well as against the
State Government, in the same way treason may have been
committed during the Japanese occupation against the
sovereignty of the United States as well as against the
sovereignty of the Philippine Commonwealth; and that 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, for Article
XVIII of our Constitution provides that 'The government
established by this Constitution shall be known as the
Commonwealth of the Philippines. Upon the final and
complete withdrawal of the sovereignty of the United
States and the proclamation of Philippine independence,
the Commonwealth of the Philippines shall thenceforth be
known as the Republic of the Philippines';
"This Court resolves, without prejudice to

write later on a more extended opinion, to
deny the petitioner's petition, as it is
hereby denied, for the reasons above set
forth and for others to be stated in the said
opinion, without prejudice to concurring
opinion therein, if any. Messrs. Justices
Paras and Hontiveros dissent in a separate
opinion. Mr. Justice Perfecto concurs in a
separate opinion."
CONCURRING
PERFECTO, J.:
Treason is a war crime. It is not an all-time offense. It cannot be committed in
peace time. While there is peace, there are no traitors. Treason may be
incubated when peace reigns. Treasonable acts may actually be perpetrated
during peace, but there are no traitors until war has started.
As treason is basically a war crime, it is punished by the state as a measure of

self-defense and self-preservation. The law of treason is an emergency
measure. It remains dormant until the emergency arises. But as soon as war
starts, it is relentlessly put into effect. Any lukewarm attitude in its enforcement
will only be consistent with national harakiri. All war efforts would be of no
avail if they should be allowed to be sabotaged by fifth columnists, by citizens
who have sold their country out to the enemy, or any other kind of traitors, and
this would certainly be the case if the law cannot be enforced under the theory
of suspension.
Petitioner's thesis that allegiance to our government was suspended during

enemy occupation is advanced in support of the proposition that, since
allegiance is identical with obedience to law, during the enemy occupation, the
laws of the Commonwealth were suspended. Article 114 of the Revised Penal
Code, the law punishing treason, under the theory, was one of the laws
obedience to which was also suspended.
Allegiance has been defined as the obligation for fidelity and obedience which
the individual owes to his government or his sovereign in return for the
protection which he receives.
"'Allegiance,' as the term is generally used, means

fealty or fidelity to the government of which the person
is either a citizen or subject. Murray vs. The Charming
Betsy, 6 U. S. (2 Cranch), 64, 120; 2 Law. ed., 208.
"'Allegiance' was said by Mr. Justice Story to be

'nothing more than the tie or duty of obedience of a
subject to the sovereign, under whose protection he is.'
United States vs. Wong Kim Ark, 18 S. Ct., 456, 461; 169
U. S., 649; 42 Law. ed., 890.
"Allegiance is that duty which is due from every citizen

to the state, a political duty binding on him who enjoys
the protection of the Commonwealth, to render service and
fealty to the federal government. It is that duty which
is reciprocal to the right of protection, arising from
the political relations between the government and the
citizen. Wallace vs. Harmstad, 44 Pa. (8 Wright), 492,
501.
"By 'allegiance' is meant the obligation to fidelity and

obedience which the individual owes to the government
under which he lives, or to his sovereign, in return for
the protection which he receives. It may be an absolute
and permanent obligation, or it may be a qualified and
temporary one. A citizen or subject owes an absolute and
permanent allegiance to his government or sovereign, or
at least until, by some open and distinct act, he
renonunces it and becomes a citizen or subject of another
government or sovereign, and an alien while domiciled in
a country owes it a temporary allegiance, which is
continuous during his residence. Carlisle vs. United
States, 83 U. S. (16 Wall.), 147, 154; 21 Law ed., 426.
"'Allegiance,' as defined by Blackstone, 'is the tie or

ligament which binds the subject to the King, in return
for that protection which the King affords the subject.
Allegiance, both expressed and implied, is of two sorts,
the one natural, the other local, the former being
perpetual, the latter temporary. Natural allegiance is
such as is due from all men born within the King's
dominions immediately upon their birth, for immediately
upon their birth they are under the King's protection.
Natural allegiance is perpetual, and for this reason,
evidently founded on the nature of government. Allegiance
is a debt due from the subject upon an implied contract
with the prince that so long as the one affords
protection the other will demean himself faithfully.
Natural-born subjects have a great variety of rights
which they acquire by being born within the King's
liegance, which can never be forfeited but by their own
misbehaviour; but the rights of aliens are much more
circumscribed, being acquired only by residence, and lost
whenever they remove. If an alien could acquire a
permanent property in lands, he must owe an allegiance
equally permanent to the King, which would probably be
inconsistent with that which he owes his natural liege
lord; besides, that thereby the nation might, in time, be
subject to foreign influence and feel many other
inconveniences.' Indians within the state are not aliens,
but citizens owing allegiance to the government of a
state, for they receive protection from the government
and are subject to its laws. They are born in allegiance
to the government of the state. Jackson vs. Goodell, 20
Johns., 188, 911." (3 Words and Phrases, Permanent ed.,
pp. 226-227.)
"Allegiance.—Fealty or fidelity to the government of

which the person is either a citizen or subject; the duty
which is due from every citizen to the state; a political
duty, binding on him who enjoys the protection of the
commonwealth, to render service and fealty to the federal
government; the obligation of fidelity and obedience
which the individual owes to the government or to the
sovereign under which he lives in return for the
protection he receives; that duty which is reciprocal to
the right of protection, arising from the political
relations between the government and the citizen.
"Classification.—Allegiance is of four kinds, namely:

(1) Natural allegiance—that which arises by nature and
birth; (2) acquired allegiance—that arising through some
circumstance or act other than birth, namely, by
denization or naturalization; (3) local allegiance—that
arising from residence simply within the country, for
however short a time; and (4) legal allegiance—that
arising from oath, taken usually at the town or leet,
for, by the common law, the oath of allegiance might be
tendered to every one upon attaining the age of twelve
years." (3 C. J. S., p. 885.)
"Allegiance.—The obligation of fidelity and obedience

which the individual owes to the government under which
he lives, or to his sovereign in return for the
protection he receives. 15 R. C. L., 140." (Ballentine,
Law Dictionary, p. 68.)
"'Allegiance,' as its etymology indicates, is the name

for the tie which binds the citizen to his state—the
obligation of obedience and support which he owes to it.
The state is the political person to whom this liege
fealty is due. Its substance is the aggregate of persons
owing this allegiance. The machinery through which it
operates is its government. The persons who operate this
machinery constitute its magistracy. The rules of conduct
which the state utters or enforces are its law, and
manifest its will. This will, viewed as legally supreme,
is its sovereignty." (W. W. Willoughby, Citizenship and
Allegiance in Constitutional and International Law, 1
American Journal of International Law, p. 915.)
"The obligations flowing from the relation of a state and

its nationals are reciprocal in character. This principle
had been aptly stated by the Supreme Court of the United
States in its opinion in the case of Luria vs. United
States:
"Citizenship is membership in a political society and

implies a duty of allegiance on the part of the member
and a duty of protection on the part of the society.
These are reciprocal obligations, one being a
compensation for the other." (3 Hackworth, Digest of
International Law, 1942 ed., p. 6.)
"Allegiance.—The tie which binds the citizen to the

government, in return for the protection which the
government affords him. The duty which the subject owes
to the sovereign, correlative with the protection
received.
"It is a comparatively modern corruption of ligeance

(ligeantia), which is derived from liege (ligius),
meaning absolute or unqualified. It signified originally
liege fealty, i. e., absolute and unqualified fealty. 18
L. Q. Rev., 47.
* *
* *
* *
*
"Allegiance may be an absolute and permanent obligation,

or it may be a qualified and temporary one; the citizen
or subject owes the former to his government or
sovereign, until by some act he distinctly renounces it,
whilst the alien domiciled in the country owes a
temporary and local allegiance continuing during such
residence. (Carlisle vs. United States, 16 Wall. [U.
S.], 154; 21 Law. ed., 426." (1 Bouvier's Law Dictionary,
p. 179.)
The above quotations express ideas that do not fit exactly into the Philippine
pattern in view of the revolutionary insertion in our Constitution of the
fundamental principle that "sovereignty resides in the people and all
government authority emanates from them." (Section 1, Article II.) The
authorities above quoted, judges and juridical publicists define allegiance with
the idea that sovereignty resides somewhere else, on symbols or subjects other
than the people themselves. Although it is possible that they had already
discovered that the people and only the people are the true sovereign, their
minds were not yet free from the shackles of the tradition that the powers of
sovereignty have been exercised by princes and monarchs, by sultans and
emperors, by absolute and tyrannical rules whose ideology was best expressed
in the famous words of one of the kings of France: "L'etat c'est moi," or such
other persons or group of persons posing as the government, as an entity
different and in opposition to the people themselves. Although domocracy has
been known ever since old Greece, and modern democracies function on the
assumption that sovereignty resides in the people, nowhere is such principle
more imperative than in the pronouncement embodied in the fundamental law
of our people.
To those who think that sovereignty is an attribute of government, and not of
the people, there may be some plausibility in the proposition that sovereignty
was suspended during the enemy occupation, with the consequence that
allegiance must also have been suspended, because our government stopped to
function in the country. But the idea cannot have any place under our
Constitution. If sovereignty is an essential attribute of our people, according to
the basic philosophy of Philippine democracy, it could not have been
suspended during the enemy occupation. Sovereignty is the very life of our
people, and there is no such thing as "suspended life." There is no possible
middle situation between life and death. Sovereignty is the very essence of the
personality and existence of our people. Can anyone imagine the possibility of
"suspended personality" or "suspended existence" of a people? In no time
during enemy occupation have the Filipino people ceased to be what they are.
The idea of suspended sovereignty or suspended allegiance is incompatible

with our Constitution.
There is similarity in characteristics between allegiance to the sovereign and a

wife's loyalty to her husband. Because some external and insurmountable force
precludes the husband from exercising his marital powers, functions, and
duties, and the wife is thereby deprived of the benefits of his protection, may
the wife invoke the theory of suspended loyalty and may she freely share her
bed with the assailant of their home? After giving aid and comfort to the
assailant and allowing him to enjoy her charms during the former's stay in the
invaded home, may the wife allege as defense for her adultery the principle of
suspended conjugal fidelity?
Petitioner's thesis on change of sovereignty at the advent of independence on

July 4, 1946, is unacceptable. We have already decided in Brodett vs. De la
Rosa and Vda. de Escaler (p. 752, ante) that the Constitution of the Republic is
the same as that of the Commonwealth. The advent of independence had the
effect of changing the name of our Government and the withdrawal by the
United States of her power to exercise functions of sovereignty in the
Philippines. Such facts did not change the sovereignty of the Filipino people.
That sovereignty, following our constitutional philosophy, has existed ever
since our people began to exist. It has been recognized by the United States of
America, at least since 1935, when President Roosevelt approved our
Constitution. By such act, President Roosevelt, as spokesman of the American
people, accepted and recognized the principle that sovereignty resides in the
people that is, that Philippine sovereignty resides in the Filipino people.
The same sovereignty had been internationally recognized long before the
proclamation of independence on July 4, 1946. Since the early part of the
Pacific war, President Quezon had been sitting as representative of a sovereign
people in the Allied War Council, and in June, 1945, the same Filipino people
took part—outstanding and brilliant, it may be added—in the drafting and
adoption of the charter of the United Nations, the unmistakable forerunner of
the future democratic federal constitution of the world government envisioned
by all those who adhere to the principle of unity of all mankind, the early
realization of which is anxiously desired by all who want to be spared the
sufferings, misery and disaster of another war.
Under our Constitution, the power to suspend laws is of legislative nature and
is lodged in Congress. Sometimes it is delegated to the Chief Executive, such
as the power granted by the Election Code to the President to suspend the
election in certain districts and areas for strong reasons, such as when there is
rebellion, or a public calamity, but it has never been exercised by tribunals. The
Supreme Court has the power to declare null and void all laws violative of the
Constitution, but it has no power, authority, or jurisdiction to suspend or
declare suspended any valid law, such as the one on treason which petitioner
wants to be included among the laws of the Commonwealth which, by his
theory of suspended allegiance and suspended sovereignty, he claims have
been suspended during the Japanese occupation.
Suppose President Quezon and his government, instead of going from

Corregidor to Australia, and later to Washington, had fled to the mountains of
Luzon, and a group of Filipino renegades should have killed them to serve the
interests of the Japanese imperial forces. By petitioner's theory, those renegades
cannot be prosecuted for treason or for rebellion or sedition, as the laws
punishing them were suspended. Such absurd result betrays the untenability of
the theory.
"The defense of the State is a prime duty of Government, and in the fulfillment
of that duty all citizens may be required by law to render personal, military or
civil service." Thus, section 2 of Article II of the Constitution provides: That
duty of defense becomes more imperative in time of war and when the country
is invaded by an aggressor nation. How can it be fulfilled if the allegiance of
the citizens to the sovereign people is suspended during enemy occupation?
The framers of the Constitution surely did not entertain even for a moment the
absurdity that when the allegiance of the citizens to the sovereign people is
more needed in the defense of the survival of the state, the same should be
suspended, and that upon such suspension those who may be required to render
personal, military or civil service may claim exemption from the indispensable
duty of serving their country in distress.
Petitioner advances the theory that protection is the consideration of allegiance.

He argues that the Commonwealth Government having been incapacitated
during enemy occupation to protect the citizens, the latter were relieved of their
allegiance to said government. The proposition is untenable. Allegiance to the
sovereign is an indispensable bond for the existence of society. If that bond is
dissolved, society has to disintegrate. Whether or not the existence of the latter
is the result of the social compact mentioned by Roseau, there can be no
question that organized society would be dissolved if it is not united by the
cohesive power of the citizen's allegiance. Of course, the citizens are entitled to
the protection of their government, but whether or not that government fulfills
that duty, is immaterial to the need of maintaining the loyalty and fidelity of
allegiance, in the same way that the physical forces of attraction should be kept
unhampered if the life of an individual should continue, irrespective of the
ability or inability of his mind to choose the most effective measures of
personal protection.
After declaring that all legislative, executive, and judicial processes had during
and under the Japanese regime, whether executed by the Japanese themselves
or by Filipino officers of the puppet government they had set up, are null and
void, as we have done in our opinions in Co Kim Cham vs. Valdez Tan Keh
and Dizon (75 Phil., 113), in Peralta vs. Director of Prison (75, Phil., 285), and
in several other cases where the same question has been mentioned, we cannot
consistently accept petitioner's theory.
If all laws or legislative acts of the enemy during the occupation were null and
void, and as we cannot imagine the existence of organized society, such as the
one constituted by the Filipino people, without laws governing it, necessarily
we have to conclude that the laws of the Commonwealth were the ones in
effect during the occupation and the only ones that could claim obedience from
our citizens.
Petitioner would want us to accept the thesis that during the occupation we
owed allegiance to the enemy. To give way to that paradoxical and
disconcerting allegiance, it is suggested that we accept that our allegiance to
our legitimate government was suspended. Petitioner's proposition has to fall
by its own weight, because of its glaring absurdities. Allegiance, like its
synonyms, loyalty and fidelity, is based on feelings of attraction, love,
sympathy, admiration, respect, veneration, gratitude, amity, understanding,
friendliness. These are the feelings or some of the feelings that bind us to our
own people, and are the natural roots of the duty of allegiance we owe them.
The enemy only provokes repelling and repulsive feelings—hate, anger,
vexation, chagrin, mortification, resentment, contempt, spitef ulness. The
natural incompatibility of political, social and ethical ideologies, between our
people and the Japanese, making impossible the existence of any feeling of
attraction between them, aside from the initial fact that the Japanese invaded
our country as our enemy, was aggravated by the morbid complexities of
haughtiness, braggadocio and beastly brutality of the Nippon soldiers and
officers in their dealings with even the most inoffensive of our citizens.
Giving bread to our enemy, and, after slapping one side of our face, offer him
the other to be further slapped, may appear to be divinely charitable, but to
make them a reality, it is necessary to change human nature. Political actions,
legal rules, and judicial decisions deal with human relations, taking man as he
is, not as he should be. To love the enemy is not natural. As long as human
psychology remains as it is, the enemy shall always be hated. Is it possible to
conceive an allegiance based on hatred?
The Japanese, having waged against us an illegal war condemned by prevailing

principles of international law, could not have established in our country any
government that can be legally recognized as de facto. They came as bandits
and ruffians, and it is inconceivable that banditry and ruffianism can claim any
duty of allegiance—even a temporary one—from a decent people.
One of the implications of petitioner's theory, as intimated somewhere, is that

the citizens, in case of invasion, are free to do anything not forbidden by the
Hague Conventions. Anybody will notice immediately that the result will be
the doom of small nations and peoples, by whetting the covetousness of strong
powers prone on imperialistic practices. In the imminence of invasion, weak-
hearted soldiers of the smaller nations will readily throw away their arms to
rally behind the paladium of the invaders.
Two of the three great departments of our Government have already rejected
petitioner's theory since September 25, 1945, the day when Commonwealth Act
No. 682 took effect. By said act, creating the People's Court to try and decide
all cases of crime against national security "committed between December 8,
1941 and September 2, 1945," (section 2), the legislative and executive
departments have jointly declared that during the period above mentioned,
including the time of Japanese occupation, all laws punishing crimes against
national security, including article 114 of the Revised Penal Code, punishing
treason, had remained in full effect and should be enforced.
That no one raised a voice in protest against the enactment of said act and that
no one, at the time the act was being considered by the Senate and the House of
Representatives, ever dared to expose the uselessness of creating a People's
Court to try crimes which, as claimed by petitioner, could not have been
committed as the laws punishing them have been suspended, is a historical fact
of which the Supreme Court may take judicial notice. This fact shows universal
and unanimous agreement of our people that the laws of the Commonwealth
were not suspended and that the theory of suspended allegiance is just an
afterthought provoked by a desperate effort to help quash the pending treason
cases at any cost.
Among the arguments adduced in favor of petitioner's theory is that it is based

on generally accepted principles of international law, although this argument
becomes futile by petitioner's admission that the theory is advantageous to
strong powers but harmful to small and weak nations, thus hinting that the
latter cannot accept it by heart. Suppose we accept at face value the premise
that the theories, urged by petitioner, of suspended allegiance and suspended
sovereignty are based on generally accepted principles of international law. As
the latter forms part of our laws by virtue of the provisions of section 3 of
Article II of the Constitution, it seems that there is no alternative but to accept
the theory. But the theory has the effect of suspending the laws, especially
those political in nature. There is no law more political in nature than the
Constitution of the Philippines. The result is an inverted reproduction of the
Greek myth of Saturn devouring his own children. Here, under petitioner's
theory, the offspring devours its parent.
Can we conceive of an instance in which tlje Constitution was suspended even

for a moment?
There is conclusive evidence that the legislature, as policy-determining agency

of government, even since the Pacific war started on December 7, 1941,
intimated that it would not accept the idea that our laws should be suspended
during enemy occupation. It must be remembered that in the middle of
December, 1941, when Manila and other parts of the archipelago were under
constant bombing by Japanese aircraft and enemy forces had already set foot
somewhere in the Philippines, the Second National Assembly passed
Commonwealth Act No. 671, which came into effect on December 16, 1941.
When we approved said act, we started from the premise that all our laws shall
continue in effect during the emergency, and in said act we even went to the
extent of authorizing the President "to continue in force laws and
appropriations which would lapse or otherwise become inoperative," (section 2,
[d]), and also to "promulgate such rules and regulations as he may deem
necessary to carry out the national policy," (section 2), that "the existence of
war between the United States and other countries of Europe and Asia, which
involves the Philippines, makes it necessary to invest the President with
extraordinary powers in order to meet the resulting emergency." (Section 1.) To
give more emphasis to the intimation, we provided that the rules and
regulations provided "shall be in force and effect until the Congress of the
Philippines shall otherwise provide," foreseeing the possibility that Congress
may not meet as scheduled as a result of the emergency, including invasion and
occupation by the enemy. Everybody was then convinced that we did not have
available the necessary means of repelling effectively the enemy invasion.
Maybe it is not out of place to consider that the acceptance of petitioner's

theory of suspended allegiance will cause a great injustice to those who,
although innocent, are now under indictment for treason and other crimes
involving disloyalty to their country, because their cases will be dismissed
without the opportunity for them to revindicate themselves. Having been
acquitted upon a mere legal technicality which appears to us to be wrong,
history will indiscriminately classify them with the other accused who were
really traitors to their country. Our conscience revolts against the idea of
allowing the innocent ones to go down in the memory of future generations
with the infamous stigma of having betrayed their own people. They should not
be deprived of the opportunity to show through the due process of law that they
are free from all blame and that, if they were really patriots, they acted as such
during the critical period of test.
CONCURRING
HILADO, J.:
I concur in the result reached in the majority opinion to the effect that during
the so-called Japanese occupation of tfie Philippines (which was nothing more
than the occupation of Manila and certain other specific regions of the Islands
which constituted the minor area of the Archipelago) the allegiance of the
citizens of this country to their legitimate government and to the United States
was not suspended, as well as the ruling that during the same period there was
no change of sovereignty here; but my reasons are different and I proceed to set
them forth:
I. SUSPENDED ALLEGIANCE
(a) Before the horror and atrocities of World War I, which were multiplied
more than a hundred-fold in World War II, the nations had evolved certain
rules and principles which came to be known as International Law, governing
their conduct with each other and toward their respective citizens and
inhabitants, in the armed forces or in civilian life, in time of peace or in time of
war. During the ages which preceded that first world conflict the civilized
governments ha.d no realization of the potential excesses of which "men's
inhumanity to man" could be capable. Up to that time war was, at least under
certain conditions, considered as sufficiently justified, and the nations had not
on that account, proscribed nor renounced it as an instrument of national
policy, or as a means of settling international disputes. It is not for us now to
dwell upon the reasons accounting for this historical fact. Suffice it to
recognize its existence in history.
But when in World War I civilized humanity saw that war could be, as it
actually was, employed for entirely different reasons and from entirely
different motives, compared to previous wars, and the instruments and methods
of warfare had been so materially changed as not only to involve the
contending armed forces on well defined battlefields or areas, on land, in the
sea, and in the air, but to spread death and destruction to the innocent civilian
populations and to their properties, not only in the countries engaged in the
conflict but also in neutral ones, no less than 61 civilized nations and
governments, among them Japan, had to formulate and solemnly subscribe to
the now famous Briand-Kellogg Pact in the year 1928. As said by Justice
Jackson of the United States Supreme Court, as chief counsel for the United
States in the prosecution of "Axis war criminals," in his report to President
Truman of June 7, 1945:
"International law is not capable of development by

legislation, for there is no continuously sitting
international legislature. Innovations and revisions in
international law are brought about by the action of
governments designed to meet a change in circumstances.
It grows, as did the common law, through decisions
reached from time to time in adopting settled principles
to new situations.
* *
* *
* *
*
"After the shock to civilization of the war of 1914-1918,

however, a marked reversion to the earlier and sounder
doctrines of international law took place. By the time
the Nazis came to power it was thoroughly established
that launching: an aggressive war or the institution of
war by treachery was illegal and that the defense of
legitimate warfare was no longer available to those who
engaged in such an enterprise. It is high time that we
act on the juridical principle that aggressive war-making
is illegal and criminal.
"The re-establishment of the principle of justifiable war

is traceable in many steps. One of the most significant
is the Briand-Kellogg Pact of 1928 by which Germany,
Italy, and Japan, in common with the United States and
practically all the nations of the world, renounced war
as an instrument of national policy, bound themselves to
seek the settlement of disputes only by pacific means,
and condemned recourse to war for the solution of
international controversies.
"Unless this Pact altered the legal status of wars of

aggression, it has no meaning at all and comes close to
being an act of deception. In 1932 Mr. Henry L. Stimson,
as United States Secretary of State, gave voice to the
American concept of its effect. He said, 'war between
nations was renounced by the signatories of the Briand-
Kellogg Treaty. This means that it has
become illegal throughout practically the entire
world It is no longer to be the source and subject of
rights. It is no longer to be the principle around which
the duties, the conduct, and the rights of nations
revolve. It is an illegal thing * * *. By that very act
we have made obsolete many legal precedents and have
given the legal profession the task of re-examining many
of its Codes and treaties.'
"This Pact constitutes only one reversal of the

viewpoint that all war is legal and has brought
international law into harmony with the common sense of
mankind—that unjustifiable war is a crime.
"Without attempting an exhaustive catalogue, we may

mention the Geneva Protocol of 1924 for the Pacific
Settlement of International Disputes, signed by the
representatives of forty-eight governments, which
declared that 'a war of aggression constitutes * * * an
international crime.'
"The Eighth Assembly of the League of Nations in 1927, on

unanimous resolution of the representatives of forty-
eight member-nations, including Germany, declared that a
war of aggression constitutes an international crime. At
the Sixth Pan-American Conference of 1928, the twenty-one
American Republics unanimously adopted a resolution
stating that 'war of aggression constitutes
an international crime against the human species.'
* *
* *
* *
*
"We therefore propose to charge that a war of aggression

is a crime, and that modern international law has
abolished the defense that those who incite or wage it
are engaged in legitimate business. Thus may the forces
of the law be mobilized on the side of peace." ("U. S. A.
—An American Review," published by the United States
Office of War Information, Vol. 2, No. 10; italics
supplied.)
When Justice Jackson speaks of "a marked reversion to the earlier and sounder
doctrines of international law" and "the re-establishment of the principle of
justifiable war," he has in mind no other than "the doctrine taught by Grotius,
the father of international law, that there is a distinction between the just and
the unjust war—the war of defense and the war of aggression" to which he
alludes in an earlier paragraph of the same report.
In the paragraph of said report immediately preceding the one last above
mentioned Justice Jackson says that "international law as taught in the 19th and
the early part of the 20th century generally declared that war-making was not
illegal and no crime at law." But, as he says in one of the paragraphs
hereinabove quoted from that report, the Briand-Kellogg Pact constitutes a
reversal of the viewpoint that all war is legal and has brought international law
into harmony with the common sense of mankind—that unjustifiable war is a
crime. Then he mentions as other reversals of the same viewpoint, the Geneva
Protocol of 1924 for the Pacific Settlement of International Disputes, declaring
that a war of aggression constitutes an international crime; the 8th assembly of
the League of Nations in 1927, declaring that a war of aggression constitutes an
international crime; and the 6th Pan-American Conference of 1928, which
unanimously adopted a resolution stating that war of aggression constitutes an
international crime against the human species: which enumeration, he says, is
not an attempt at an exhaustive catalogue.
It is not disputed that the war started by Japan in the Pacific, first, against the
United States', and later, in rapid succession, against other allied nations, was a
war of aggression and utterly unjustifiable. More aggressive still, and more
unjustifiable, as admitted on all sides, was its attack against the Philippines-
and its consequent invasion and occupation of certain areas thereof.
Some of the rules and principles of international law which have been cited for
petitioner herein in support of his theory of suspended allegiance, have been
evolved and accepted during those periods of the history of nations when all
war was considered legal, as stated by Justice Jackson, and the others have
reference to military occupation in the course of really justifiable war.
Japan in subscribing the Briand-Kellogg Pact thirteen years before she started
the aggressive war which threw the entire Pacific area into a seething cauldron
from the last month of 1941 to the first week of September, 1945, expressly
agreed to outlaw, proscribe and renounce war as an instrument of national
policy, and bound herself to seek the settlement of her disputes with other
nations only by pacific means. Thus she expressly gave her consent to that
modification of the then existing rules and principles of international law
governing the matter. With that modification, all the signatories to the pact
necessarily accepted and bound themselves to abide by all its implications,
among them the outlawing, proscription and renunciation of military
occupation of another nation's territory in the course of a war thus outlawed,
proscribed and renounced. This is only one way of saying that the rules and
principles of international law therefore existing on the subject of military
occupation were automatically abrogated and rendered ineffective in all future
cases of war coming under the ban and condemnation of the pact.
If an unjustifiable war is a crime; if a war of aggression constitutes an

international crime; if such a war is an international crime against the human
species: a nation which occupies a foreign territory in the course of such a war
cannot possibly, under any principle of natural or positive law, acquire or
possess any legitimate power or right growing out or incident to such
occupation. Concretely, Japan in criminally invading the Philippines and
occupying certain portions1 of its territory during the Pacific war, could not
have nor exercise, in the legal sense—and only in this sense should we speak
here—with respect to this country and its citizens, any more than could a
burglar breaking through a man's house pretends to have or to exercise any
legal power or right within that house with respect either to the person of the
owner or to his property. To recognize in the first instance any legal power or
right on the part of the invader, and in the second any legal power or right on
the part of the burglar, the same as in case of a military occupant in the ctfurse
of a justifiable war, would be nothing short of legalizing the crime itself. It
would be the most monstrous and unpardonable contradiction to prosecute,
condemn and hang the appropriately called war criminals of Germany, Italy,
and Japan, and at the same time recognize any lawfulness in their occupation of
territories they have so barbarously and feloniously invaded. And let it not be
forgotten that the Philippines is a member of the United Nations who have
instituted and conducted the so-called war crimes trials. Neither should we lose
sight of the further fact that this government has a representative in the
international commission currently trying the Japanese war criminals in Tokyo.
These facts leave no room for doubt that this government is in entire accord
with the other United Nations in considering the Pacific war started by Japan as
a crime. Not only this, but this country had six years before the outbreak of the
Pacific war already renounced war as an instrument of national policy
(Constitution, Article II, section 2), thus in consequence adopting the doctrine
of the Briand-Kellogg Pact.
Consequently, it is submitted that it would be absolutely wrong and improper

for this Court to apply to the occupation by Japan of certain areas of the
Philippines during that war the rules and principles of international law which
might be applicable to a military occupation occurring in the course of a
justifiable war. How can this Court recognize any lawfulness or validity in that
occupation when our own government has sent a representative to said
international commission in Tokyo trying the Japanese "war criminals"
precisely for the "crimes against humanity and peace" committed by them
during World War II of which said occupation was but part and parcel? In such
circumstances how could such occupation produce no less an effect than the
suspension of the allegiance of our people to their country and government?
(b) But even in the hypothesis—and not more than a mere hypothesis—that
when Japan occupied the City of Manila and certain other areas of the
Philippines she was engaged in a justifiable war, still the theory of suspended
allegiance would not hold good. The continuance of the allegiance owed to a
nation by its citizens is one of those high privileges of citizenship which the
law of nations denies to the occupant the power to interfere with.
"* * * His (of occupant) rights are not, however,

commensurate with his power. He is thus forbidden to take
certain measures which he may be able to apply, and that
irrespective of their efficacy. The restrictions imposed
upon him are in theory designed to protect the individual
in the enjoyment of some highly impoi^tant
privileges. These concern his allegiance to the de jure
sovereign, his family honor and domestic relations,
religious convictions, personal service, and connection
with or residence in the occupied territory.
"The Hague Regulations declare that the occupant is

forbidden to compel the inhabitants to swear allegiance
to the hostile power. * * *" (III Hyde, International
Law, 2d revised ed., pp. 1898-1899.)
"* * * Nor may he (occupant) compel them (inhabitants) to

take an oath of allegiance. Since the authority of the
occupant is not sovereignty, the inhabitants owe no
temporary allegiance to him. * * *" (II Oppenheim,
International Law, pp. 341-344.)
The occupant's lack of authority to exact an oath of allegiance from the

inhabitants of the occupied territory is but a corollary of the continuance of
their allegiance to their own lawful sovereign. This allegiance does not consist
merely in obedience to the laws of the lawful sovereign, but more essentially
consists in loyalty or fealty to him. In the same volume and pages of
Oppenheim's work above cited, after the passage to the effect that the
inhabitants of the occupied territory owe no temporary allegiance to the
occupant it is said that "On the other hand, he may compel them to take an oath
—sometimes called an 'oath of neutrality'—* * * willingly to submit to his
'legitimate commands.' Since, naturally, such "legitimate commands" include
the occupant's laws, it follows that said occupant, where the rule is applicable,
has the right to compel the inhabitants to take an oath of obedience to his laws;
and since, according to the same rule, he cannot exact from the inhabitants an
oath of allegiance, it follows that obedience to his laws, which he can exact
from them, does not constitute allegiance.
(c) The theory of suspended allegiance is unpatriotic to the last degree. To say
that when one's country is unable to afford him its protection, he ceases to be
bound to it by the sacred ties of allegiance, is to advocate the doctrine that
precisely when his country is in such distress, and therefore most needs his
loyalty, he is absolved from that loyalty. Love of country should be something
permanent and lasting, ending only in death; loyalty should be its worthy
offspring. The outward manifestation of one or the other may for a time be
prevented or thwarted by the irresistible action of the occupant; but this should
not in the least extinguish nor obliterate the invisible feelings, and promptings
of the spirit. And beyond the unavoidable consequences of the enemy's
irresistible pressure, those invisible feelings and promptings of the spirit of the
people should never allow them to act, to speak, nor even to think a whit
contrary to their love and loyalty to the Fatherland. For them, indicted, to face
their country and say to it that, because when it was overrun and vanquished by
the barbarous invader and, in consequence, was disabled from affording them
protection, they were released from their sacred obligation of allegiance and
loyalty, and could therefore freely adhere to its enemy, giving him aid and
comfort, incurring no criminal responsibility therefor, would only tend to
aggravate their crime.
II. CHANGE OF SOVEREIGNTY
Article II, section 1, of the Constitution provides that "Sovereignty resides in

the people and all government authority emanates from them." The Filipino
people are the self-same people before and after Philippine Independence,
proclaimed on July 4, 1946, During the life of the Commonwealth sovereignty
resided in them under the Constitution; after the proclamation of independence
that sovereignty remained with them under the very same fundamental law.
Article XVIII of the said Constitution stipulates that the government
established thereby shall be known as the Commonwealth of the Philippines;
and that upon the final and complete withdrawal of the sovereignty of the
United States and the proclamation of Philippine independence, "The
Commonwealth of the Philippines shall thenceforth be known as the Republic
of the Philippines." Under this provision the Government of the Philippines
immediately prior to independence was essentially to be the identical
government thereafter—only the name of that government was to be changed.
Both before and after the adoption of the Philippine Constitution the people of
the Philippines were and are always the plaintiff in all criminal prosecutions,
the case being entitled: "The People of the Philippines vs. (the defendant or
defendants)." This was already true in prosecutions under the'Revised Penal
Code containing the law of treason. "The Government of the Philippines"
spoken of in article 114 of said Code merely represents the people of the
Philippines. Said code was continued, along with the other laws, by Article
XVI, section 2, of the Constitution, which constitutional provision further
directs that "all references in such laws to the Government or officials of the
Philippine Islands shall be construed, in so far as applicable, to refer to the
Government and corresponding officials under this Constitution"—of course,
meaning the Commonwealth of the Philippines before, and the Republic of the
Philippines after, independence (Article XVIII). Under both governments
sovereignty resided and resides in the people (Article II, section 1). Said
sovereignty was never transferred from that people—they are the same people
who preserve it to this day. There has never been any change in this respect.
If one committed treason against the people of the Philippines before July 4,
1946, he continues to be criminally liable for the crime to the same people now.
And if, following the literal wording of the Revised Penal Code, as continued
by the Constitution, that accused owed allegiance upon the commission of the
crime to the "Government of the Philippines," in the textual words of the
Constitution (Articles XVI, section 2, and XVIII) that was the same
government which after independence became known as the "Republic of the
Philippines." The most that can be said is that the sovereignty of the people
became complete and absolute after independence—that they became,
politically, fully of age, to use a metaphor. But if the responsibility for a crime
against a minor is not extinguished by the mere fact of his becoming of age,
why should the responsibility for the crime of treason committed against the
Filipino people when they were not fully politically independent be
extinguished after they acquire this status? The offended party continues to be
the same—only his status has changed.
DISSENTING
PARAS, J.:
During the long period of Japanese occupation, all the political laws of the
Philippines were suspended. This is in full harmony with the generally
accepted principles of international law adopted by our Constitution (Article II,
section 3) as a part of the law of the Nation. Accordingly, we have on more
than one occasion already stated that "laws of a political nature or affecting
political relations, * * * are considered as suspended or in abeyance during the
military occupation" (Co Kim Cham vs. Valdez Tan Keh and Dizon, 75 Phil.,
113, 124), and that the rule "that laws of political nature or affecting political
relations are considered suspended or in abeyance during the military
occupation, is intended for the governing of the civil inhabitants of the
occupied territory." (Ruffy vs. Chief of Staff, Philippine Army, 75, Phil.,
875,881.)
The principle is recognized by the United States of America, which admits that
the occupant will naturally suspend all laws of a political nature and all laws
which affect the welfare and safety of his command, such action to be made
known to the inhabitants. (United States Rules of Land Warfare, 1940, Article
287.) As allegiance to the United States is an essential element in the crime of
treason under article 114 of the Revised Penal Code, and in view of its position
in our political structure prior to the independence of the Philippines, the rule
as interpreted and practiced in the United States necessarily has a binding force
and effect in the Philippines, to the exclusion of any other construction
followed elsewhere, such as may be inferred, rightly or wrongly, from the
isolated cases[1] brought to our attention, which, moreover, have entirely
different factual bases.
Corresponding notice was given by the Japanese occupying army, first, in the
proclamation of its Commander in chief of January 2, 1942, to the effect that as
a "result of the Japanese Military operations, the sovereignty of the United
States of America over the Philippines has completely disappeared and the
Army hereby proclaims the Military Administration under martial law over the
districts occupied by the Army;" secondly, in Order No. 3 of the said
Commander in Chief of February 20, 1942, providing that "activities of the
administrative organs and judicial courts in the Philippines shall be based upon
the existing statutes, orders, ordinances and customs until further orders
provided that they are not inconsistent with the present circumstances under the
Japanese Military Administration;" and, thirdly, in the explanations to Order
No. 3 reminding that "all laws and regulations of the Philippines have been
suspended since Japanese occupation," and excepting the application of "laws
and regulations which are not proper to act under the present situation of the
Japanese Military Administration," especially those "provided with some
political purposes."
The suspension of political laws during enemy occupation is logical, wise and
humane. The latter phase outweighs all other aspects of the principle aimed
more or less at promoting the necessarily selfish motives and purposes of a
military occupant. It is thus consoling to note that the powers instrumental in
the crystallization of the Hague Conventions of 1907 did not forget to declare
that they were "animated by the desire to serve * * * the interests of humanity
and the over progressive needs of civilization," and that "in cases not included
in the Regulations adopted by them, the inhabitants and the belligerents remain
under the protection and the rule of the principles of international law, as they
result from the usages established among civilized peoples, from the laws of
humanity, and the dictates of the public conscience." These saving statements
come to the aid of the inhabitants in the occupied territory in a situation
wherein, even before the belligerent occupant "takes a further step and by
appropriate affirmative action undertakes to acquire the right of sovereignty for
himself, * * * the occupant is likely to regard himself as clothed with freedom
to endeavor to impregnate the people who inhabit the area concerned with his
own political ideology, and to make that endeavor successful by various forms
of pressure exerted upon enemy officials who are permitted to retain the
exercise of normal governmental functions." (Hyde, International Law, Vol. III,
Second Revised Edition, 1945, p. 1879.)
The inhabitants of the occupied territory should necessarily be bound to the

sole authority of the invading power, whose interests and requirements are
naturally in conflict with those of the displaced government, if it is legitimate
for the military occupant to demand and enforce from the inhabitants such
obedience as may be necessary for the security of his forces, for the
maintenance of law and order, and for the proper administration of the country
(United States Rules of Land Warfare, 1940, article 297), and to demand all
kinds of services "of such a nature as not to involve the population in the
obligation of taking part in military operations against their own country"
(Hague Regulations, article 52); and if, as we have in effect said, by the
surrender the inhabitants pass under a temporary allegiance to the government
of the occupant and are bound by such laws, and such only, as it chooses to
recognize and impose, and 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." (Peralta vs. Director of Prisons, 75 Phil., 285,
295), citing United States vs. Rice, 4 Wheaton, 246, and quoting Oppenheim,
International Law, Vol. II, Sixth Edition, Revised, 1944, p. 432.)
He would be a bigot who cannot or would refuse to see the cruel result if the
people in an occupied territory were required to obey two antagonistic and
opposite powers. To emphasize our point, we would adopt the argument, in a
reverse order, of Mr. Justice Hilado in Peralta vs. Director of Prisons (75 Phil.,
285, 358), contained in the following passage:
"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."
The only sensible purpose of the treason law—which is of political complexion

and taken out of the territorial law and penalized as a new offense committed
against the belligerent occupant, incident to a state of war and necessary for the
control of the occupant (Alcantara vs. Director of Prisons, 75 Phil., 494),—
must be the preservation of the nation, certainly not its destruction or
extermination. And yet the latter is unwittingly wished by those who are fond
of the theory that what is suspended is merely the exercise of sovereignty by
the de jure government or the latter's authority to impose penal sanctions or
that, otherwise stated, the suspension refers only to the military occupant. If
this were to be the only effect, the rule would be a meaningless and superfluous
optical illusion, since it is obvious that the fleeing or displaced government
cannot, even if it should want, physically assert its authority in a territory
actually beyond its reach, and that the occupant, on the other hand, will not
take the absurd step of prosecuting and punishing the inhabitants for adhering
to and aiding it. If we were to believe the opponents of the rule in question, we
have to accept the absurd proposition that the guerrillas can all be prosecuted
with illegal possession of firearms. It should be borne in mind that "the
possession by the belligerent occupant of the right to control, maintain or
modify the laws that are to obtain within the occupied area is an exclusive one.
The territorial sovereign driven therefrom, can not compete with it on an even
plane. Thus, if the latter attempts interference, its action is a mere manifestation
of belligerent effort to weaken the enemy. It has no bearing upon the legal
quality of what the occupant exacts, while it retains control. Thus if the absent
territorial sovereign, through some quasi-legislative decree, forbids its nationals
to comply with what the occupant has ordained obedience to such command
within the occupied territory would not safeguard the individual,from
prosecution by the occupant." (Hyde, International Law, Vol. III, Second
Revised Edition, 1945, p. 1886.)
As long as we have not outlawed the right of the belligerent occupant to

prosecute and punish the inhabitants for "war treason" or "war crimes," as an
incident of the state of war and necessity for the control of the occupied
territory and the protection of the army of the occupant, against which
prosecution and punishment such inhabits ants cannot obviously be protected
by their native sovereign, it is hard to understand how we can justly rule that
they may at the same time be prosecuted and punished for an act penalized by
the Revised Penal Code, but already taken out of the territorial law and
penalized as a new offense committed against the belligerent occupant.
In Peralta vs. Director of Prisons. 75 Phil., 285, 296), we held that "the
Constitution of the Commonwealth Government was suspended during the
occupation of the Philippines by the Japanese forces or the belligerent occupant
at regular war with the United States," and the meaning of the term
"suspended" is very plainly expressed in the folliwing passage (page 298):
"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 a case quoted
and cited in the foot-note), especially as regards laws
of procedure applied to cases already terminated
completely."
In much the same way, we should hold that no treason could have been
committed during the Japanese military occupation against the United States or
the Commonwealth Government, because article 114 of the Revised Penal
Code was not then in force. Nor may this penal provision be applied upon its
revival at the time of the reoccupation of the Philippines by virtue of the
principle of postliminium, because of the constitutional inhibition against
any ex post facto law and because, under article 22 of the Revised Penal Code,
criminal laws shall have a retroactive effect only in so far as they favor the
accused. Why did we refuse to enforce the Constitution, more essential to
sovereignty than article 114 of the Revised Penal Code in the aforesaid case of
Peralta vs. Director of Prisons if, as alleged by the majority, the suspension was
good only as to the military occupant?
The decision in United States vs. Rice (4 Wheaton, 246), conclusively supports
our position. As analyzed and described in United States vs. Reiter (27 Fed.
Cas., 773), that case "was decided by the Supreme Court of the United States—
the court of highest human authority on that subject—and as the decision was
against the United States, and in favor of the authority of Great Britain, its
enemy in the war, and was made shortly after the occurrence of the war out of
which it grew; and while no department of this Government was inclined to
magnify the rights of Great Britain or disparage those of its own government,
there can be no suspicion of bias in the mind of the court in favor of the
conclusion at which it arrived, and no doubt that the law seemed to the court to
warrant and demand such a decision. That case grew out of the war of 1812,
between the United States and Great Britain. It appeared that in September,
1814, the British forces had taken the port of Castine, in the State of Maine,
and held it in military occupation; and that while it was so held, foreign goods,
by the laws of the United States subject to duty, had been introduced into that
port without paying duties to the United States. At the close of the war the
place was by treaty restored to the United States, and after that was done the
Government of the United States sought to recover from the persons so
introducing" the goods there while in possession of the British, the duties to
which by the laws of the United States, they would have been liable. The claim
of the United States was that its laws were properly in force there, although the
place was at the time held by the British forces in hostility to the United States,
and the laws, therefore, could not at the time be enforced there; and that a court
of the United States (the power of that government there having since been
restored) was bound so to decide. But this illusion of the prosecuting officer
there was dispelled by the court in the most summary manner. Mr. Justice
Story, that great luminary of the American bench, being the organ of the court
in delivering its opinion, said: 'The single question is whether goods imported
into Castine during its occupation by the enemy are liable to the duties imposed
by the revenue laws upon goods imported into the United States. * * * We are
all of opinion that the claim for duties cannot be sustained. * * * 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. By the surrender the inhabitants passed under a temporary
allegiance of the British Government, and were bound by such laws, and such
only, as it chose to recognize and impose. From the nature of the case no other
laws could be obligatory upon them. * * * Castine was therefore, during this
period, as far as respected our revenue laws, to be deemed a foreign port, and
goods imported into it by the inhabitants were subjects to such duties only as
the British Government chose to require. Such goods were in no correct sense
imported into the United States.' The court then proceeded to say, that the case
is the same as if the port of Castine had been foreign territory, ceded by treaty
to the United States, and the goods had been imported there previous to its
cession. In this case they say there would be no pretense to say that American
duties could be demanded; and upon principles of public or municipal law, the
cases are not distinguishable. They add at the conclusion of the opinion: 'The
authorities cited at the bar would, if there were any doubt, be decisive of the
question. But we think it too clear to require any aid from authority.' Does this
case leave room for a doubt whether a country held as this was in armed
belligerent occupation, is to be governed by him who holds it, and by him
alone? Does it not so decide in terms as plain as can be stated? It is asserted by
the Supreme Court of the United States with entire unanimity, the great and
venerated Marshall presiding, and the erudite and accomplished Story
delivering the opinion of the court, that such is the law, and it is so adjudged in
this case. Nay, more: it is even adjudged that no other laws could be obligatory;
that such country, so held, is for the purpose of the application of the law off its
former government to be deemed foreign territory, and that goods imported
there (and by parity of reasoning other acts done there) are in no correct sense
done within the territory of its former sovereign, the United States."
But it is alleged by the majority that the sovereignty spoken of in the decision
of the United States vs. Rice should be construed to refer to the exercise of
sovereignty, and that, if sovereignty itself was meant, the doctrine has become
obsolete after the adoption of the Hague Regulations in 1907. In answer, we
may state that sovereignty can have any important significance only when it
may be exercised; and, to our way of thinking, it is immaterial whether the
thing held in abeyance is the sovereignty itself or its exercise, because the point
cannot nullify, vary, or otherwise vitiate the plain meaning of the doctrinal
words "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." We cannot accept the theory of the majority, without in effect
violating the rule of international law, hereinabove adverted to, that the
possession by the belligerent occupant of the right to control, maintain or
modify the laws that are to obtain within the occupied area is an exclusive one,
and that the territorial sovereign driven therefrom cannot compete with it on an
even plane. Neither may the doctrine in United States vs. Rice be said to have
become obsolete, without repudiating the actual rule prescribed and followed
by the United States, allowing the military occupant to suspend all laws of a
political nature and even require public officials and the inhabitants to take an
oath of fidelity (United States Rules of Land Warfare, 1940, article 309). In
fact, it is a recognized doctrine of American Constitutional Law that mere
conquest or military occupation of a territory of another State does not operate
to annex such territory to the occupying State, but that the inhabitants of the
occupied district, no longer receiving the protection of their native State, for the
time being owe no allegiance to it, and, being under the control and protection
of the victorious power, owe to that power fealty and obedience. (Willoughby,
The Fundamental Concepts of Public Law [1931], p. 364.)
The majority have resorted to distinctions, more apparent than real, if not
immaterial, in trying to argue that the law of treason was obligatory on the
Filipinos during the Japanese occupation. Thus it is insisted that a citizen or
subject owes not a qualified and temporary, but an absolute and permanent
allegiance, and that "temporary allegiance" to the military occupant may be
likened to the temporary allegiance which a foreigner owes to the government
or sovereign of the territory wherein he resides in return for the protection he
receives therefrom. The comparison is most unfortunate. Said foreigner is in
the territory of a power not hostile to or in actual war with his own
government; he is in the territory of a power which has not suspended, under
the rules of international law, the laws of political nature of his own
government; and the protections received by him from that friendly or neutral
power is real, not the kind of protection which the inhabitants of an occupied
territory can expect from a belligerent army. "It is but reasonable that States,
when they concede to other States the right to exercise jurisdiction over such of
their own nationals as are within the territorial limits of such other States,
should insist that those States should provide system of law and of courts, and
in actual practice, so administer them, as to furnish substantial legal justice to
alien residents. This does not mean that a State must or should extend to aliens
within its borders all the civil, or much less, all the political rights or privileges
which it grants to its own citizens; but it does mean that aliens must or should
be given adequate opportunity to have such legal rights as are granted to them
by the local law impartially and judicially determined, and, when thus
determined, protected." (Willoughby, The Fundamental Concepts of Public
Law [1931], p. 360.)
When it is therefore said that a citizen of a sovereign may be prosecuted for

and convicted of treason committed in a foreign country or, in the language of
article 114 of the Revised Penal Code, "elsewhere," a territory other than one
under belligerent occupation must have been contemplated. This would make
sense, because treason is a crime "the direct or indirect purpose of which is the
delivery, in whole or in part, of the country to a foreign power, or to pave the
way for the enemy to obtain dominion over the national territory" (Albert, The
Revised Penal Code, citing 3 Groizard, 14); and, very evidently, a territory
already under occupation can no longer be "delivered."
The majority likewise argue that the theory of suspended sovereignty or

allegiance will enable the military occupant to legally recruit the inhabitants to
fight against their own government, without said inhabitants being liable for
treason. This argument is not correct, because the suspension does not exempt
the occupant from complying with the Hague Regulation (article 52) that
allows it to demand all kinds of services provided that they do not involve the
population "in the obligation of taking part in military operations against their
own country." Neither does the suspension prevent the inhabitants from
assuming a passive attitude, much less from dying and becoming heroes if
compelled by the occupant to fight against their own country. Any imperfection
in the present state of international law should be corrected by such world
agency as the United Nations organization.
It is of common knowledge that even with the alleged cooperation imputed to

the collaborators, an alarming number of Filipinos were killed or otherwise
tortured by the ruthless, or we may say savage, Japanese Army. Which leads to
the conclusion that if the Filipinos did not obey the Japanese commands and
feign cooperation, there would not be any Filipino nation that could have been
liberated. Assuming that the entire population could go to and live in the
mountains, or otherwise fight as guerrillas—after the formal surrender of our
and the American regular fighting forces,—they would have faced certain
annihilation by the Japanese, considering the Iatter's military strength at the
time and the long period during which they were left militarily unmolested by
America. In this connection, we hate to make reference to the atomic bomb as a
possible means of destruction.
If a substantial number of guerrillas were able to survive and ultimately help in

the liberation of the Philippines, it was because the feigned cooperation of their
countrymen enabled them to get food and other aid necessary in the resistance
movement. If they were able to survive, it was because they could camouflage
themselves in the midst of the civilian population in cities and towns. It is easy
to argue now that the people could have merely followed their ordinary pursuits
of life or otherwise be indifferent to the occupant. The fundamental defect of
this line of thought is that the Japanese are assumed to be so stupid and dumb
as not to notice any such attitude. During belligerent occupation, "the
outstanding fact to be reckoned with is the sharp opposition between the
inhabitants of the occupied areas and the hostile military force exercising
control over them. At heart they remain at war with each other. Fear for their
own safety may not serve to deter the inhabitants from taking advantage of
opportunities to interfere with the safety and success of the occupant, and in so
doing they may arouse its passions and cause it to take vengeance in cruel
fashion. Again, even when it is untainted by such conduct, the occupant as a
means of attaining ultimate success in its major conflict may, under plea of
military necessity, and regardless of conventional or customary prohibitions,
proceed to utilize the inhabitants within its grip as a convenient means of
military achievement." (Hyde, International Law, Vol. III, Second Revised
Edition [1945], p. 1912.) It should be stressed that the Japanese occupation was
not a matter of a few months; it extended over a little more than three years.
Said occupation was a fact, in spite of the "presence of guerrilla bands in
barrios and mountains, and even in towns of the Philippines whenever these
towns were left by Japanese garrisons or by the detachments of troops sent on
patrol to those places." (Co Kim Cham vs. Valdez Tan Keh and Dizon, 75 Phil.,
371, 373.) The law of nations accepts belligerent occupation as a fact to be
reckoned with, regardless of the merits of the occupant's cause. (Hyde,
International Law, Second Revised Edition [1945], Vol. III, p. 1879.)
Those who contend or fear that the doctrine herein adhered to will lead to an
over-production of traitors, have a wrong and low conception of the
psychology and patriotism of their countrymen. Patriots are such after their
birth in the first place, and no amount of laws or judicial decisions can make or
unmake them. On the other hand, the Filipinos are not so base as to be
insensitive to the thought that the real traitor is cursed everywhere and in all
ages. Our patriots who fought and died during the last war, and the brave
guerrillas who have survived, were undoubtedly motivated by their inborn love
of country, and not by such a thing as the treason law. The Filipino people, as a
whole, passively opposed the Japanese regime, not out of fear of the treason
statute but because they preferred and will prefer the democratic and civilized
way of life and American altruism to Japanese barbaric and totalitarian designs.
Of course, there are those who might at heart have been pro-Japanese; but they
met and will unavoidably meet the necessary consequences. The regular
soldiers faced the risks of warfare; the spies and informers subjected
themselves to the perils of military operations, likely received summary
liquidation or punishments from the guerri las and the parties injured by their
acts, and may be prosecuted as war spies by the military authorities of the
returning sovereign; those who committed other common crimes, directly or
through the Japanese army, may be prosecuted under the municipal law, and
under this group, even the spies and informers, Makapili or otherwise, are
included, for they can be made answerable for any act offensive to person or
property; the buy-and-sell opportunists have the war profits tax to reckon with.
We cannot close our eyes to the conspicuous fact that, in the majority of cases,
those responsible'for the death cf, or injury to, any Filipino or American at the
hands of the Japanese, were prompted more by personal motives than by a
desire to levy war against the United States or to adhere to the occupant. The
alleged,spies and informers found in the Japanese occupation the royal road to
vengeance against personal or political.enemies. The recent amnesty granted to
the guerrillas for acts, otherwise criminal, committed in the furtherance of their
resistance movement has in a way legalized the penal sanctions imposed by
them upon the real traitors.
It is only from a realistic, practical and common-sense point of view, and by

remembering that the obedience and cooperation of the Filipinos were effected
while the Japanese were in complete control and occupation of the Philippines,
when their mere physical presence implied force and pressure—and not after
the American forces of liberation had restored the Philippine Government—
that we will come to realize that, apart from any rule of international law, it
was necessary to release the Filipinos temporarily from the old political tie in
the sense indicated herein. Otherwise, one is prone to dismiss the reason for
such cooperation and obedience. If there were those who did not in any wise
cooperate or obey, they can be counted by the fingers, and let their names
adorn the pages of Philippine history. Essentially, however, everybody who
took advantage, to any extent and degree, of the peace and order prevailing
during the occupation, for the safety and survival of himself and his family,
gave aid and comfort to the enemy.
Our great liberator himself, General Douglas MacArthur, had considered the
laws of the Philippines ineffective during the occupation, and restored to their
full vigor and force only after the liberation. Thus, in his proclamation of
October 23, 1944, he ordained that "the laws now existing on the statute books
of the Commonwealth of the Philippines * * * are in full force and effect and
legally binding upon the people in areas of the Philippines free of enemy
occupation and control," and that "all laws * * * 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." Repeating what we have said in Co Kim Cham vs. Valdez Tan Keh
and Dizon (75 Phil., 113, 133), "it is to be presumed that General Douglas
MacArthur, who was acting as an agent or a representative of the Government
and the President of the United States, constitutional Commander-in-Chief of
the United States Army, did not intend to act against the principles of the law
of nations asserted by the Supreme Court of the United States from the early
period of its existence, applied by the President of the United States, and later
embodied in theHague Conventions of 1907."
The prohibition in the Hague Conventions (Article 45) against "any pressure on
the population to take oath to the hostile power," was inserted for the moral
protection and benefit of the inhabitants, and does not necessarily carry the
implication that the latter continue to be bound to the political laws of the
displaced government. The United States, a signatory to the Hague
Conventions, has made the point clear, by admitting that the military occupant
can suspend all laws of a political nature and even require public officials and
the inhabitants to take an oath of fidelity (United States Rules of Land Warfare,
1940, article 309), and as already stated, it is a doctrine of American
Constitutional Law that the inhabitants, no longer receiving the protection of
their native state, for the time being owe no allegiance to it, and, being under
the control and protection of the victorious power, owe to that power fealty and
obedience. Indeed, what is prohibited is the application of force by the
occupant, from which it is fair to deduce that the Conventions do not altogether
outlaw voluntary submission by the population. The only strong reason for this
is undoubtedly the desire of the authors of the Conventions to give as much
freedom and allowance to the inhabitants as are necessary for their survival
This is wise and humane, because the people should be in a better position to
know what will save them during the military occupation than any exile
government.
"Before he was appointed prosecutor, Justice Jackson made a speech in which
he warned against the use of the judicial process for nonjudicial ends, and
attacked cynics who 'see no reason why courts, just like other agencies, should
not be policy weapons. If we want to shoot Germans as a matter of policy, let it
be done as such, said he, but don't hide the deed behind a court. If you are
determined to execute a man in any case there is no occasion for a trial; the
world yields no respect for courts that are merely organized to convict.'
Mussolini may have got his just desserts, but nobody supposes he got a fair
trial. * * * Let us bear that in mind as we go about punishing criminals. There
are enough laws on the books to convict guilty Nazis without risking the
prestige of our legal system. It is far, far better that some guilty men escape
than that the idea of law be endangered. In the long run the idea of law is our
best defense against Nazism in all its forms." These passages were taken from
the editorial appearing in the Life, May 28, 1945, page 34, and convey ideas
worthy of some reflection.
If the Filipinos in fact committed any errors in feigning cooperation and

obedience during the Japanese military occupation, they were at most—
borrowing the famous and significant words of President Roxas—errors of the
mind and not of the heart. We advisedly said "feigning" not as an admission of
the fallacy of the theory of suspended allegiance or sovereignty, but as an
affirmation that the Filipinos, contrary to their outward attitude, had always
remained loyal by feeling and conscience to their country.
Assuming that article 114 of the Revised Penal Code was in force during the
Japanese military occupation, the present Republic of the Philippines has no
right to prosecute treason committed against the former sovereignty existing
during the Commonwealth Government which was none other than the
sovereignty of the United States. This court has already held that, upon a
change of sovereignty, the provisions of the Penal Code having to do with such
subjects as treason, rebellion and sedition are no longer in force (People vs.
Perfecto, 43 Phil., 887). It is true that, as contended by the majority, section 1
of Article II of tHe Constitution of the Philippines provides that "sovereignty
resides in the people," but this did not make the Commonwealth Government
or the Filipino people sovereign, because said declaration of principle, prior to
the independence of the Philippines, was subservient to and controlled by the
Ordinance appended to the Constitution under which, in addition to its many
provisions essentially destructive of the concept of sovereignty, it is expressly
made clear that the sovereignty of the United States over the Philippines had
not then been withdrawn. The framers of the Constitution had to make said
declaration of principle because the document was ultimately intended for the
independent Philippines. Otherwise, the Preamble should not have announced
that one of the purposes of the Constitution is to secure to the Filipino people
and their posterity the "blessings of independence." No one, we suppose, will
dare allege that the Philippines was an independent country under the
Commonwealth Government.
The Commonwealth Government might have been more autonomous than that
existing under the Jones Law, but its non-sovereign status nevertheless
remained unaltered; and what was enjoyed was the exercise of sovereignty
delegated by the United States whose sovereignty over the Philippines
continued to be complete.
"The exercise of Sovereignty May be Delegated.—It has

already been seen that the exercise of sovereignty is
conceived of as delegated by a State to the various
organs which, collectively, constitute the Government.
For practical political reasons which can be easily
appreciated, it is desirable that the public policies of
a State should be formulated and executed by governmental
agencies of its own creation and which are not subject to
the control of other States. There is, however, nothing
in a nature of sovereignty or of State life which
prevents one State from entrusting the exercise of
certain powers to the governmental agencies of another
State. Theoretically, indeed, a sovereign State may go to
any extent in the delegation of the exercise of its power
to the governmental agencies of other States, those
governmental agencies thus becoming quoad hoc parts of
the governmental machinery of the State whose sovereignty
is exercised. At the same time these agencies do not
cease to be instrumentalities for the expression of the
will of the State by which they were originally created.
"By this delegation the agent State is authorized to

express the will of the delegating State, and the legal
hypothesis is that this State possesses the legal
competence again to draw to itself the exercise, through
organs of its own creation, of the powers it has granted.
Thus, States may concede to colonies almost complete
autonomy of government and reserve to themselves a right
of control of so slight and so negative a character as to
make its exercise a rare and improbable occurrence; yet,
so Wg as such right of control is recognized to exist,
and the autonomy of the colonies is conceded to be
founded upon a grant and the continuing consent of the
mother countries the sovereignty of those mother
countries over them is complete and they are to be
considered as possessing only administrative autonomy and
not political independence. Again, as will be more fully
discussed in a later chapter, in the so-called
Confederate or Composite State, the cooperating States
may yield to the central Government the exercise of
almost all of their powers of Government and yet retain
their several sovereignties. Or, on the other hand, a
State may, without parting with its sovereignty of
lessening its territorial application, yield to the
governing organs of particular areas such an amplitude of
powers as to create of them bodies-politic endowed with
almost all of the characteristics of independent States.
In all States, indeed, when of any considerable size,
efficiency of administration demands that certain
autonomous powers of local self-government be granted to
particular districts." (Willoughby, The Fundamental
Concepts of Public Law [1931], pp. 74, 75.)
The majority have drawn an analogy between the Commonwealth Government

and the States of the American Union which, it is alleged, preserve their own
sovereignty although limited by the United States. This is not true for it has
been authoritatively stated that the Constituent States have no sovereignty of
their own, that such autonomous powers as they now possess are had and
exercised by the express will or by the constitutional forbearance of the
national sovereignty, and that the sovereignty of the United States and the non-
sovereign status of the individual States is no longer contested.
"It is therefore plain that the constituent States have

no sovereignty of their own, and that such autonomous
powers as they now possess are had and exercised by the
express will or by the constitutional forbearance of the
national sovereignty. The Supreme Court of the United
States has held that, even when selecting members for the
national legislature, or electing the President, or
ratifying proposed amendments to the federal
Constitution, the States act, ad hoc, as agents of the
National Government." (Willoughby, The Fundamental
Concepts of Public Law [1931], p. 250.)
"This is the situation at the present time. The

sovereignty of the United States and the non-sovereign
status of the individual States is no longer contested."
(Willoughby, The Fundamental Concepts of Public Law
[1931], pp. 251, 252.)
Article XVIII of the Constitution provides that "The government established by

this Constitution shall be known as the Commonwealth of the Philippines.
Upon the final and complete withdrawal of the sovereignty of the United States
and the proclamation of Philippine independence, the Commonwealth of the
Philippines shall thenceforth be known as the Republic of the Philippines."
From this, the deduction is made that the Government under the Republic of
the Philippines and under the Commonwealth is the same. We cannot agree.
While the Commonwealth Government possessed administrative autonomy and
exercised the sovereignty delegated by the United States and did not cease to
be an instrumentality of the latter (Willoughby, The Fundamental Concepts of
Public Law [1931], pp. 74, 75), the Republic of the Philippines is an
independent State not receiving its power or sovereignty from the United
States. Treason committed against the United States or against its
instrumentality, the Commonwealth Government, which exercised, but did not
possess, sovereignty (id., p. 49), is therefore not treason against the sovereign
and independent Republic of the Philippines. Article XVIII was inserted in
order, merely, to make the Constitution applicable to the Republic.
Reliance is also placed on section 2 of the Constitution which provides that all
laws of the Philippine Islands shall remain operative, unless inconsistent
therewith, until amended, altered, modified or repealed by the Congress of the
Philippines, and on section 3 which is to the effect that all cases pending in
courts shall be heard, tried, and determined under the laws then in force,
thereby insinuating that these constitutional provisions authorize the Republic
of the Philippines to enforce article 114 of the Revised Penal Code. The error is
obvious. The latter article can remain operative under the present regime if it is
not inconsistent with the Constitution. The fact remains, however, that said
penal provision is fundamentally incompatible with the Constitution, in that
those liable for treason thereunder should owe allegiance to the United States
or the Government of the Philippines, the latter being, as we have already
pointed out, a mere instrumentality of the former, whereas under the
Constitution of the present Republic, the citizens of the Philippines do not and
are not required to owe allegiance to the United States. To contend that article
114 must be deemed to have been modified in the sense that allegiance to the
United States is deleted, and, as thus modified, should be applied to prior acts,
would be to sanction the enactment and application of an ex post facto law.
In reply to the contention of the respondent that the Supreme Court of the
United States has held in the case of Bradford vs. Chase National Bank (24
Fed. Supp., 38), that the Philippines had a sovereign status, though with
restrictions, it is sufficient to state that said case must be taken in the light of a
subsequent decision of the same court in Cincinnati Soap Co. vs. United States
(301 U. S., 308), rendered in May, 1937, wherein it was affirmed that the
sovereignty of the United States over the Philippines had not been withdrawn,
with the result that the earlier case can only be interpreted to refer to the
exercise of sovereignty by the Philipines as delegated by the mother country,
the United States.
No conclusiveness may be conceded to the statement of President Roosevelt on

August 12, 1943, that "the United States in practice regards the Philippines as
having now the status as a government of other independent nations—in fact all
the attributes of complete and respected nationhood," since said statement was
not meant as having accelerated the date, much less as a formal proclamation
of, the Philippine Independence as contemplated in the Tydings-McDuffie
Law, it appearing that (1) no less also than the President of the United States
had to issue the proclamation of July 4, 1946, withdrawing the sovereignty of
the United States and recognizing Philippine Independence; (2) it was General
MacArthur, and not President Osmeña who was with him, that proclaimed on
October 23, 1944, the restoration of the Commonwealth Government; (3) the
Philippines was not given official participation in the signing of the Japanese
surrender; (4) the United States Congress, and not the Commonwealth
Government, extended the tenure of office of the President and Vice-President
of the Philippines.
The suggestion that as treason may be committed against the Federal as well as
against the State Government, in the same way treason may have been
committed against the sovereignty of the United States as well as against the
sovereignty of the Philippine Commonwealth, is immaterial because, as we
have already explained, treason against either is not and cannot be treason
against the new and different sovereignty of the Republic of the Philippines.
[1]
English case of De Jager vs. Attorney General of Naval; Belgian case of
Auditeur Militaires vs. Van Dieren; cases of Petain, Laval and Quisling.


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FIRST DIVISION

[ G.R. No. 105364. June 28, 2001 ]

May a liquidation court continue with liquidation proceedings of the Philippine

The antecedent facts of the case are as follows:

On March 8, 1991, petitioners moved to disqualify the respondent judge from

Despite the legislative mandate for rehabilitation and reopening of PVB,

Hence, the instant petition.

In a Resolution, dated June 8, 1992, the Supreme Court resolved to issue a

On September 3, 1992, the PVB filed a Petition-In-Intervention praying for the

Thereafter, the Monetary Board issued a Certificate of Authority allowing PVB

As stated above, the Court, in a Resolution dated June 8, 1992, issued a

Liquidation, in corporation law, connotes a winding up or settling with

On the opposite end of the spectrum is rehabilitation which connotes a

It is crystal clear that the concept of liquidation is diametrically opposed or

In the case at bar, Section 10 of R.A. No. 7169 provides:

Sec. 10. Effectivity. - This Act shall take effect

Hence, it is clear that the legislature intended to make the law

WHEREFORE, in view of the foregoing, the instant petition is

Source: Supreme Court E-Library | Date created: December 17, 2014

[MABINI], PETITIONERS, VS. HON. JUAN C. TUVERA, IN HIS

Invoking the people's right to be informed on matters of public concern, a right

Specifically, the publication of the following presidential issuances is sought:

b] Letter of Instructions Nos.: 10, 39, 49, 72, 107,

d] Proclamation Nos.: 1126, 1144, 1147, 1151, 1196,

e] Executive Orders Nos.: 411, 413, 414, 427, 429-454,

f] Letters of Implementation Nos.: 7, 8, 9, 10, 11-22,

g] Administrative Orders Nos.: 347, 348, 352-354, 360-

"No reason exists in the case at bar for applying the

Respondents further contend that publication in the Official Gazette is not

The interpretation given by respondent is in accord with this Court's

Respondents' argument, however, is logically correct only insofar as it equates

It is needless to add that the publication of presidential issuances "of a public

Similarly, the implementation/enforcement of presidential decrees prior to their

WHEREFORE, the Court hereby orders respondents to publish in the Official

Relova, J., concurs.

CONCURRING OPINION WITH QUALIFICATION

I shall explain why.

1. It is of course true that without the requisite publication, a due process

2. It is quite understandable then why I concur in the separate opinion of

4. Let me make clear therefore that my qualified concurrence goes no further

I am authorized to state that Justices Makasiar, Abad Santos, Cuevas, and

The Philippine Constitution does not require the publication of laws as a

Neither is the publication of laws in the Official Gazette required by any

Without official publication in the Official Gazette as required by Article 2 of

Respondents' contention based on a misreading of Article 2 of the Civil Code

Source: Supreme Court E-Library | Date created: November 25, 2014

680 Phil. 681 ← click for PDF copy

The antecedent facts are as follows:

A month after the issuance of CMO 27-2003, on 19 December 2003,

Respondent also alleged that the regulation summarily adjudged it to be a feed

Furthermore, respondent claimed that the equal protection clause of the

Lastly, respondent asserted that the retroactive application of the regulation

On 19 January 2004, the RTC issued a Temporary Restraining Order (TRO)

The trial court ruled in favor of respondent, to wit:

WHEREFORE, in view of the foregoing, the Petition is

Hence, this Petition.

The Petition has no merit.

We shall first discuss the propriety of an action for declaratory relief.

Rule 63, Section 1 provides:

Who may file petition. - Any person interested under a

First, the subject of the controversy is the constitutionality of CMO 27-2003

The determination of whether a specific rule or set of

Meanwhile, in Misamis Oriental Association of Coco Traders, Inc. v.

xxx [A] legislative rule is in the nature of subordinate