Pol Law- Atty. Cabilte (5th Batch)

8/11/2019 Pol Law- Atty. Cabilte (5th Batch)

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A.M. No. 133-J May 31, 1982

BERNARDITA R. MACARIOLA, complainant,

vs.

HONORABLE ELIAS B. ASUNCION, Judge of the C ourt of First Instance of Leyte, respondent.

MAKASIAR, J:

In a verified complaint dated August 6, 1968 Bernardita R. Macariola charged respondent Judge Elias B.

Asuncion of the Court of First Instance of Leyte, now Associate Justice of the Court of Appeals, with "acts

unbecoming a judge."

The factual setting of the case is stated in the report dated May 27, 1971 of then Associate Justice Cecilia Muoz

Palma of the Court of Appeals now retired Associate Justice of the Supreme Court, to whom this case was referredon October 28, 1968 for investigation, thus:

Civil Case No. 3010 of the Court of First Instance of Leyte was a complaint for partition filed by Sinforosa R.

Bales, Luz R. Bakunawa, Anacorita Reyes, Ruperto Reyes, Adela Reyes, and Priscilla Reyes, plaintiffs, against

Bernardita R. Macariola, defendant, concerning the properties left by the deceased Francisco Reyes, the common

father of the plaintiff and defendant.

In her defenses to the complaint for partition, Mrs. Macariola alleged among other things that; a) plaintiffSinforosa R. Bales was not a daughter of the deceased Francisco Reyes; b) the only legal heirs of the deceased

were defendant Macariola, she being the only offspring of the first marriage of Francisco Reyes with Felisa

Espiras, and the remaining plaintiffs who were the children of the deceased by his second marriage with Irene

Ondez; c) the properties left by the deceased were all the conjugal properties of the l atter and his first wife, Felisa

Espiras, and no properties were acquired by the deceased during his second marriage; d) if there was any partitionto be made, those conjugal properties should first be partitioned into two parts, and one part is to be adjudicatedsolely to defendant it being the share of the latter's deceased mother, Felisa Espiras, and the other half which is the

share of the deceased Francisco Reyes was to be divided equally among h is children by his two marriages.

On June 8, 1963, a decision was rendered by respondent Judge Asuncion in Civil Case 3010, the dispositive

portion of which reads:

IN VIEW OF THE FOREGOING CONSIDERATIONS, the Court, upon a preponderance of evidence, finds and

so holds, and hereby renders judgment (1) Declaring the plaintiffs Luz R. Bakunawa, Anacorita Re yes, RupertoReyes, Adela Reyes and Priscilla Reyes as the only children le gitimated by the subsequent marriage of Francisco

Reyes Diaz to Irene Ondez; (2) Declaring the plaintiff Sinforosa R. Bales to have been an illegitimate child of

Francisco Reyes Diaz; (3) Declaring Lots Nos. 4474, 4475, 4892, 5265, 4803, 4581, 4506 and 1/4 of Lot 1145 as

belonging to the conjugal partnership of the spouses Francisco Reyes Diaz and Felisa Espiras; (4) Declaring Lot

No. 2304 and 1/4 of Lot No. 3416 as belonging to the spouses Francisco Reyes Diaz and Irene Ondez in common

partnership; (5) Declaring that 1/2 of Lot No. 1184 as belonging exclusively to the deceased Francisco Reyes

Diaz; (6) Declaring the defendant Bernardita R. Macariola, being the only legal and forced heir of her mother

Felisa Espiras, as the exclusive owner of one-half of each of Lots Nos. 4474, 4475, 4892, 5265, 4803, 4581, 4506;and the remaining one-half (1/2) of each of said Lots Nos. 4474, 4475, 4892, 5265, 4803, 4581, 4506 and one-half

(1/2) of one-fourth (1/4) of Lot No. 1154 as belonging to the estate of Francisco Reyes Diaz; (7) Declaring Irene

Ondez to be the exclusive owner of one-half (1/2) of Lot No. 2304 and one-half (1/2) of one-fourth (1/4) of Lot

No. 3416; the remaining one-half (1/2) of Lot 2304 and the remaining one-half (1/2) of one-fourth (1/4) of Lot No.

3416 as belonging to the estate of Francisco Reyes Diaz; (8) Directing the division or partition of the estate of

Francisco Reyes Diaz in such a manner as to give or grant to Irene Ondez, as surviving widow of Francisco Reyes

Diaz, a hereditary share of. one-twelfth (1/12) of the whole estate of Francisco Reyes Diaz (Art. 996 in re

Art. 892, par 2, New Civil Code), and the remaining portion of the estate to be divided among the plaintif

Sinforosa R. Bales, Luz R. Bakunawa, Anacorita Reyes, Ruperto Reyes, Adela Reyes, Priscilla Reyes an

defendant Bernardita R. Macariola, in such a way that the extent of the total share of plaintiff Sinforosa R

in the hereditary estate shall not exceed the equivalent of two-fifth (2/5) of the total share of any or each oother plaintiffs and the defendant (Art. 983, New Civil Code), each of the latter to receive equal shares fr

hereditary estate, (Ramirez vs. Bautista, 14 Phil. 528; Diancin vs. Bishop of Jaro, O.G. [3rd Ed.] p. 33); (9

Directing the parties, within thirty days after this judgment shall have become final to submit to this court

approval a project of partition of the hereditary estate in the proportion above indicated, and in such mann

parties may, by agreement, deemed convenient and equitable to them taking into consideration the locatio

quality, nature and value of the properties involved; (10) Directing the plaintiff Sinforosa R. Bales and de

Bernardita R. Macariola to pay the costs of this suit, in the proportion of one-third (1/3) by the first named

two-thirds (2/3) by the second named; and (I 1) Dismissing all other claims of the parties [pp 27 -29 of Ex

The decision in civil case 3010 became final for lack of an appeal, and on October 16, 1963, a project of

was submitted to Judge Asuncion which is marked Exh. A. Notwithstanding the fact that the project of pawas not signed by the parties themselves but only by the respective counsel of plaintiffs and defendant, Ju

Asuncion approved it in his Order dated October 23, 1963, which for convenience is quo ted hereunder in

The parties, through their respective counsels, presented to this Court for approval the following project o

partition:

COMES NOW, the plaintiffs and the defendant in the above-entitled ca se, to this Honorable Court respec

submit the following Project of Partition:

l. The whole of Lots Nos. 1154, 2304 and 4506 shall belong exclusively to Bernardita Reyes Mac

2. A portion of Lot No. 3416 consisting of 2,373.49 square meters along the eastern part of the lot shall be

awarded likewise to Bernardita R. Macariola;

3. Lots Nos. 4803, 4892 and 5265 shall be awarded to Sinforosa Reyes Bales;

4. A portion of Lot No. 3416 consisting of 1,834.55 square meters along the western part of the lot shall li

be awarded to Sinforosa Reyes-Bales;

5. Lots Nos. 4474 and 4475 shall be divided equally among Luz Reyes Bakunawa, Anacorita Reyes, Rupe

Reyes, Adela Reyes and Priscilla Reyes in equal shares;

6. Lot No. 1184 and the remaining portion of Lot No. 3416 after taking the portions awarded under item (

(4) above shall be awarded to Luz Reyes Bakunawa, Anacorita Reyes, Ruperto Reyes, Adela Reyes and P

Reyes in equal shares, provided, however that the remaining portion of Lot No. 3416 shall belong exclusi

Priscilla Reyes.

WHEREFORE, it is respectfully prayed that the Project of Partition indicated above which is made in acc

with the decision of the Honorable Court be approved.

Tacloban City, October 16, 1963.

(SGD) BONIFACIO RAMO Atty. for the Defendant Tacloban City

(SGD) ZOTICO A. TOLETE Atty. for the Plaintiff Tacloban City


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While the Court thought it more desirable for all the parties to have signed this Project of Partition, nevertheless,

upon assurance of both counsels of the respective parties to this Court that the Project of Partition, as above-

quoted, had been made after a conference and agreement of the plaintiffs and the defendant approving the above

Project of Partition, and that both lawyers had represented to the Court that they are given full authority to sign by

themselves the Project of Partition, the Court, therefore, finding the above-quoted Project of Partition to be inaccordance with law, hereby approves the same. The parties, therefore, are directed to execute such papers,

documents or instrument sufficient in form and substance for the vesting of the rights, interests and participations

which were adjudicated to the respective parties, as outlined in the Project of Partition and the delivery of the

respective properties adjudicated to each one in view of said Project of Partition, and to perform such other acts as

are legal and necessary to effectuate the said Project of Partition.

SO ORDERED.

Given in Tacloban City, this 23rd day of October, 1963.

(SGD) ELIAS B. ASUNCION Judge

EXH. B.

The above Order of October 23, 1963, was amended on November 11, 1963, only for the purpose of giving

authority to the Register of Deeds of the Province of Leyte to issue the corresponding transfer certificates of title

to the respective adjudicatees in conformity with the project of partition (see Exh. U).

One of the properties mentioned in the project of partition was Lot 1184 or rather one-half thereof with an area of15,162.5 sq. meters. This lot, which according to the decision was the exclusive property of the deceased

Francisco Reyes, was adjudicated in said project of partition to the plaintiffs Luz, Anacorita Ruperto, Adela, and

Priscilla all surnamed Reyes in equal shares, and when the project of partition was approved by the trial court the

adjudicatees caused Lot 1184 to be subdivided into five lots denominated as Lot 1184-A to 1184-E inclusive (Exh.

V).

Lot 1184-D was conveyed to Enriqueta D. Anota, a stenographer in Judge Asuncion's court (Exhs. F, F-1 and V-

1), while Lot 1184-E which had an area of 2,172.5556 sq. meters was sold on July 31, 1964 to Dr. ArcadioGalapon (Exh. 2) who was issued transfer certificate of title No. 2338 of the Register of Deeds of the city of

Tacloban (Exh. 12).

On March 6, 1965, Dr. Arcadio Galapon and his wife Sold a portion of Lot 1184-E with an area of around 1,306

sq. meters to Judge Asuncion and his wife, Victoria S. Asuncion (Exh. 11), which particular portion was declared

by the latter for taxation purposes (Exh. F).

On August 31, 1966, spouses Asuncion and spouses Galapon conveyed their respective shares and interest in Lot

1184-E to "The Traders Manufacturing and Fishing Industries Inc." (Exit 15 & 16). At the time of said sale t he

stockholders of the corporation were Dominador Arigpa Tan, Humilia Jalandoni Tan, Jaime Arigpa Tan, Judge

Asuncion, and the latter's wife, Victoria S. Asuncion, with Judge Asuncion as the President and Mrs. Asuncion as

the secretary (Exhs. E-4 to E-7). The Articles of Incorporation of "The Traders Manufacturing and Fishing

Industries, Inc." which we shall henceforth refer to as "TRADERS" were registered with the Securities and

Exchange Commission only on January 9, 1967 (Exh. E) [pp. 378-385, rec.].

Complainant Bernardita R. Macariola filed on August 9, 1968 the instant complaint dated August 6, 1968 alleging

four causes of action, to wit: [1] that respondent Judge Asuncion violated Article 1491, paragraph 5, of the New

Civil Code in acquiring by purchase a portion of Lot No. 1184-E which was one of those properties involved in

Civil Case No. 3010 decided by him; [2] that he likewise violated Article 14, paragraphs I and 5 of the Code of

Commerce, Section 3, paragraph H, of R.A. 3019, otherwise known as the Anti -Graft and Corrupt Practices Act,

Section 12, Rule XVIII of the Civil Service Rules, and Canon 25 of the Canons of Judicial Ethics, by asso

himself with the Traders Manufacturing and Fishing Industries, Inc., as a stockholder and a ranking office

he was a judge of the Court of First Instance of Leyte; [3] that respondent was guilty of coddling an impo

acted in disregard of judicial decorum by closely fraternizing with a certain Dominador Arigpa Tan who o

and publicly advertised himself as a practising attorney when in truth and in fact his name does not appeaRolls of Attorneys and is not a member of the Philippine Bar; and [4] that there was a culpable defiance o

and utter disregard for ethics by respondent Judge (pp. 1-7, rec.).

Respondent Judge Asuncion filed on September 24, 1968 his answer to which a reply was filed on Octobe

1968 by herein complainant. In Our resolution of October 28, 1968, We referred this case to then Justice

Muoz Palma of the Court of Appeals, for investigation, report and recommendation. After hearing, the s

Investigating Justice submitted her report dated May 27, 1971 recommending that respondent Judge shou

reprimanded or warned in connection with the first cause of action alleged in the complaint, and for the secause of action, respondent should be warned in case of a finding that he is prohibited under the law to en

business. On the third and fourth causes of action, Justice Palma recommended that respondent Judge be

exonerated.

The records also reveal that on or about November 9 or 11, 1968 (pp. 481, 477, rec.), complainant herein

an action before the Court of First Instance of Leyte, entitled "Bernardita R. Macariola, plaintiff, versus S

R. Bales, et al., defendants," which was docketed as Civil Case No. 4235, seeking the annulment of the pr

partition made pursuant to the decision in Civil Case No. 3010 and the two orders issued by respondent Ju

approving the same, as well as the partition of the estate and the subsequent conveyances with damages. Iappears, however, that some defendants were dropped from the civil case. For one, the case against Dr. A

Galapon was dismissed because he was no longer a real party in interest when Civil Case No. 4234 was fhaving already conveyed on March 6, 1965 a portion of lot 1184-E to respondent Judge and on August 31

the remainder was sold to the Traders Manufacturing and Fishing Industries, Inc. Similarly, the case again

defendant Victoria Asuncion was dismissed on the ground that she was no longer a real party in interest a

the aforesaid Civil Case No. 4234 was filed as the portion of Lot 1184 acquired by her and respondent Jud

Dr. Arcadio Galapon was already sold on August 31, 1966 to the Traders Manufacturing and Fishing induInc. Likewise, the cases against defendants Serafin P. Ramento, Catalina Cabus, Ben Barraza Go, Jesus PTraders Manufacturing and Fishing Industries, Inc., Alfredo R. Celestial and Pilar P. Celestial, Leopoldo

and Remedios Petilla, Salvador Anota and Enriqueta Anota and Atty. Zotico A. Tolete were dismissed wiconformity of complainant herein, plaintiff therein, and her counsel.

On November 2, 1970, Judge Jose D. Nepomuceno of the Court of First Instance of Leyte, who was direc

authorized on June 2, 1969 by the then Secretary (now Minister) of Justice and now Minister of National

Juan Ponce Enrile to hear and decide Civil Case No. 4234, rendered a decision, the dispositive portion of

reads as follows:

A. IN THE CASE AGAINST JUDGE ELIAS B. ASUNCION

(1) declaring that only Branch IV of the Court of First Instance of Leyte has jurisdiction to take co

of the issue of the legality and validity of the Project of Partition [Exhibit "B"] and the two Orders [Exhib

and "C- 3"] approving the partition;

(2) dismissing the complaint against Judge Elias B. Asuncion;

(3) adjudging the plaintiff, Mrs. Bernardita R. Macariola to pay defendant Judge Elias B. Asuncion,

(a) the sum of FOUR HUNDRED THOUSAND PESOS [P400,000.00] for moral damages;

(b) the sum of TWO HUNDRED THOUSAND PESOS [P200,000.001 for exemplary damages;


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(c) the sum of FIFTY THOUSAND PESOS [P50,000.00] for nominal damages; and

(d) he sum of TEN THOUSAND PESOS [PI0,000.00] for Attorney's Fees.

B. IN THE CASE AGAINST THE DEFENDANT MARIQUITA VILLASIN, FOR HERSELF AND FOR

THE HEIRS OF THE DECEASED GERARDO VILLASIN

(1) Dismissing the complaint against the defendants Mariquita Villasin and the heirs of the deceased

Gerardo Villasin;

(2) Directing the plaintiff to pay the defendants Mariquita Villasin and the heirs of Gerardo Villasin the cost of the

suit.

C. IN THE CASE AGAINST THE DEFENDANT SINFOROSA R. BALES, ET AL., WHO WERE

PLAINTIFFS IN CIVIL CASE NO. 3010

(1) Dismissing the complaint against defendants Sinforosa R. Bales, Adela R. Herrer, Priscilla R. Solis, Luz R.

Bakunawa, Anacorita R. Eng and Ruperto O. Reyes.

D. IN THE CASE AGAINST DEFENDANT BONIFACIO RAMO

(1) Dismissing the complaint against Bonifacio Ramo;

(2) Directing the plaintiff to pay the defendant Bonifacio Ramo the cost of the suit.

SO ORDERED [pp. 531-533, rec.]

It is further disclosed by the record that the aforesaid decision was elevated to the Court of Appeals uponperfection of the appeal on February 22, 1971.

I

WE find that there is no merit in the contention of complainant Bernardita R. Macariola, under her first cause of

action, that respondent Judge Elias B. Asuncion violated Article 1491, paragraph 5, of the New Civil Code in

acquiring by purchase a portion of Lot No. 1184-E which was one of th ose properties involved in Civil Case No.

3010. 'That Article provides:

Article 1491. The following persons cannot acquire by purchase, even at a public or judicial action, either in

person or through the mediation of another:

xxx xxx xxx

(5) Justices, judges, prosecuting attorneys, clerks of superior and inferior courts, and other officers and

employees connected with the administration of justice, the property and rights in litigation or levied upon anexecution before the court within whose jurisdiction or territory they exercise their respective functions; this

prohibition includes the act of acquiring by assignment and shall apply to lawyers, with respect to the property and

rights which may be the object of any litigation in which they may take part by virtue of their profession

[emphasis supplied].

The prohibition in the aforesaid Article applies only to the sale or assignment of the property which is the subject

of litigation to the persons disqualified therein. WE have already ruled that "... for the prohibition to operate, the

sale or assignment of the property must take place during the pendency of the litigation involving the prop

(The Director of Lands vs. Ababa et al., 88 SCRA 513, 519 [1979], Rosario vda. de Laig vs. Court of App

SCRA 641, 646 [1978]).

In the case at bar, when the respondent Judge purchased on March 6, 1965 a portion of Lot 1184-E, the deCivil Case No. 3010 which he rendered on June 8, 1963 was already final because none of the parties ther

an appeal within the reglementary period; hence, the lot in question was no longer subject of the litigation

Moreover, at the time of the sale on March 6, 1965, respondent's order dated October 23, 1963 and the am

order dated November 11, 1963 approving the October 16, 1963 project of partition made pursuant to the

1963 decision, had long become final for there was no appeal from said orders.

Furthermore, respondent Judge did not buy the lot in question on March 6, 1965 directly from the plaintiff

Civil Case No. 3010 but from Dr. Arcadio Galapon who earlier purchased on July 31, 1964 Lot 1184-E frof the plaintiffs, namely, Priscilla Reyes, Adela Reyes, and Luz R. Bakunawa after the finality of the deciCivil Case No. 3010. It may be recalled that Lot 1184 or more specifically one-half thereof was adjudicat

equal shares to Priscilla Reyes, Adela Reyes, Luz Bakunawa, Ruperto Reyes and Anacorita Reyes in the partition, and the same was subdivided into five lots denominated as Lot 1184-A to 1184-E. As aforestate

1184-E was sold on July 31, 1964 to Dr. Galapon for which he was issued TCT No. 2338 by the Register

of Tacloban City, and on March 6, 1965 he sold a portion of said lot to respondent Judge and his wife who

declared the same for taxation purposes only. The subsequent sale on August 31, 1966 by spouses Asunci

spouses Galapon of their respective shares and interest in said Lot 1184-E to the Traders Manufacturing a

Fishing Industries, Inc., in which respondent was the president and his wife was the secretary, took place after the finality of the decision in Civil Case No. 3010 and of the subsequent two aforesaid orders therein

approving the project of partition.

While it appears that complainant herein filed on or about November 9 or 11, 1968 an action before the C

First Instance of Leyte docketed as Civil Case No. 4234, seeking to annul the project of partition and the t

orders approving the same, as well as the partition of the estate and the subsequent conveyances, the same

however, is of no moment.

The fact remains that respondent Judge purchased on March 6, 1965 a portion of Lot 1184-E from Dr. Ar

Galapon; hence, after the finality of the decision which he rendered on June 8, 1963 in Civil Case No. 30his two questioned orders dated October 23, 1963 and November 11, 1963. Therefore, the property was no

subject of litigation.

The subsequent filing on November 9, or 11, 1968 of Civil Case No. 4234 can no longer alter, change or

aforesaid factsthat the questioned sale to respondent Judge, now Court of Appeals Justice, was effecte

consummated long after the finality of the aforesaid decision or orders.

Consequently, the sale of a portion of Lot 1184-E to respondent Judge having taken place over one year a

finality of the decision in Civil Case No. 3010 as well as the two orders approving the project of partition

during the pendency of the litigation, there was no violation of paragraph 5, Article 1491 of the New Civi

It is also argued by complainant herein that the sale on July 31, 1964 of Lot 1184-E to Dr. Arcadio Galap

Priscilla Reyes, Adela Reyes and Luz R. Bakunawa was only a mere scheme to conceal the illegal and untransfer of said lot to respondent Judge as a consideration for the approval of the project of partition. In thconnection, We agree with the findings of the Investigating Justice thus:

And so we are now confronted with this all-important question whether or not the acquisition by responde

portion of Lot 1184-E and the subsequent transfer of the whole lot to "TRADERS" of which respondent w

President and his wife the Secretary, was intimately related to the Order of respondent approving the proj

partition, Exh. A.


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Respondent vehemently denies any interest or participation in the transactions between the Reyeses and the

Galapons concerning Lot 1184-E, and he insists that there is no evidence whatsoever to show that Dr. Galapon had

acted, in the purchase of Lot 1184-E, in mediation for him and his wife. (See p. 14 of Respondent's

Memorandum).

xxx xxx xxx

On this point, I agree with respondent that there is no evidence in the record showing that Dr. Arcadio Galapon

acted as a mere "dummy" of respondent in acquiring Lot 1184-E from the Reyeses. Dr. Galapon appeared to this

investigator as a respectable citizen, credible and sincere, and I believe him when he testified that he bought Lot

1184-E in good faith and for valuable consideration from the Reyeses without any intervention of, or previous

understanding with Judge Asuncion (pp. 391- 394, rec.).

On the contention of complainant herein that respondent Judge acted illegally in approving the project of partition

although it was not signed by the parties, We quote with approval the findings of the Investigating Justice, asfollows:

1. I agree with complainant that respondent should have required the signature of the parties more

particularly that of Mrs. Macariola on the project of partition submitted to him for approval; however, whatever

error was committed by respondent in that respect was done in good faith as according to Judge Asuncion he was

assured by Atty. Bonifacio Ramo, the counsel of record of Mrs. Macariola, That he was authorized by his client tosubmit said project of partition, (See Exh. B and tsn p. 24, January 20, 1969). While it is true that such written

authority if there was any, was not presented by respondent in evidence, nor did Atty. Ramo appear to corroboratethe statement of respondent, his affidavit being the only one that was presented as respondent's Exh. 10, certain

actuations of Mrs. Macariola lead this investigator to believe that she knew the contents of the project of partition,

Exh. A, and that she gave her conformity thereto. I refer to the following documents:

1) Exh. 9Certified true copy of OCT No. 19520 covering Lot 1154 of the Tacloban Cadastral Survey inwhich the deceased Francisco Reyes holds a "1/4 share" (Exh. 9-a). On tills certificate of title the Order dated

November 11, 1963, (Exh. U) approving the project of partition was duly entered and registered on November 26,

1963 (Exh. 9-D);

2) Exh. 7Certified copy of a deed of absolute sale executed by Bernardita Reyes Macariola on October

22, 1963, conveying to Dr. Hector Decena the one-fourth share of the late Francisco Reyes-Diaz in Lot 1154. In

this deed of sale the vendee stated that she was the absolute owner of said one-fourth share, the same having been

adjudicated to her as her share in the estate of her father Francisco Reyes Diaz as per decision of the Court of First

Instance of Leyte under case No. 3010 (Exh. 7-A). The deed of sale was duly registered and annotated at the backof OCT 19520 on December 3, 1963 (see Exh. 9-e).

In connection with the abovementioned documents it is to be noted that in the project of partition dated October

16, 1963, which was approved by respondent on October 23, 1963, followed by an amending Order on November

11, 1963, Lot 1154 or rather 1/4 thereof was adjudicated to Mrs. Macariola. It is this 1/4 share in Lot 1154 which

complainant sold to Dr. Decena on October 22, 1963, several days after the preparation of the project of partition.

Counsel for complainant stresses the view, however, that the latter sold her one-fourth share in Lot 1154 by virtueof the decision in Civil Case 3010 and not because of the project of partition, Exh. A. Such contention is absurd

because from the decision, Exh. C, it is clear that one-half of one- fourth of Lot 1154 belonged to the estate of

Francisco Reyes Diaz while the other half of said one-fourth was the share of complainant's mother, Felisa

Espiras; in other words, the decision did not adjudicate the whole of the one-fourth of Lot 1154 to the herein

complainant (see Exhs. C-3 & C-4). Complainant became the owner of the entire one-fourth of Lot 1154 only by

means of the project of partition, Exh. A. Therefore, if Mrs. Macariola sold Lot 1154 on October 22, 1963, it was

for no other reason than that she was wen aware of the distribution of the properties of her deceased fathe

Exhs. A and B. It is also significant at this point to state that Mrs. Macariola admitted during the cross-

examination that she went to Tacloban City in connection with the sale of Lot 1154 to Dr. Decena (tsn p.

November 28, 1968) from which we can deduce that she could not have been kept ignorant of the procee

civil case 3010 relative to the project of partition.

Complainant also assails the project of partition because according to her the properties adjudicated to he

insignificant lots and the least valuable. Complainant, however, did not present any direct and positive ev

prove the alleged gross inequalities in the choice and distribution of the real properties when she could ha

done so by presenting evidence on the area, location, kind, the assessed and market value of said properti

Without such evidence there is nothing in the record to show that there were inequalities in the distributio

properties of complainant's father (pp. 386389, rec.).

Finally, while it is. true that respondent Judge did not violate paragraph 5, Article 1491 of the New Civil C

acquiring by purchase a portion of Lot 1184-E which was in litigation in his court, it was, however, improhim to have acquired the same. He should be reminded of Canon 3 of the Canons of Judicial Ethics which

that: "A judge's official conduct should be free from the appearance of impropriety, and his personal beha

only upon the bench and in the performance of judicial duties, but also in his everyday life, should be bey

reproach." And as aptly observed by the Investigating Justice: "... it was unwise and indiscreet on the part

respondent to have purchased or acquired a portion of a piece of property that was or had been in litigatio

court and caused it to be transferred to a corporation of which he and his wife were ranking officers at thesuch transfer. One who occupies an exalted position in the judiciary has the duty and responsibility of ma

the faith and trust of the citizenry in the courts of justice, so that not only must he be truly honest and just,actuations must be such as not give cause for doubt and mistrust in the uprightness of his administration o

In this particular case of respondent, he cannot deny that the transactions over Lot 1184-E are damaging a

render his actuations open to suspicion and distrust. Even if respondent honestly believed that Lot 1184-E

longer in litigation in his court and that he was purchasing it from a third person and not from the parties t

litigation, he should nonetheless have refrained from buying it for himself and transferring it to a corporatwhich he and his wife were financially involved, to avoid possible suspicion that his acquisition was relatway or another to his official actuations in civil case 3010. The conduct of respondent gave cause for the

in civil case 3010, the lawyers practising in his court, and the public in general to doubt the honesty and fahis actuations and the integrity of our courts of justice" (pp. 395396, rec.).

II

With respect to the second cause of action, the complainant alleged that respondent Judge violated paragr

and 5, Article 14 of the Code of Commerce when he associated himself with the Traders Manufacturing aFishing Industries, Inc. as a stockholder and a ranking officer, said corporation having been organized to

business. Said Article provides that:

Article 14The following cannot engage in commerce, either in person or by proxy, nor can they hold a

office or have any direct, administrative, or financial intervention in commercial or industrial companies

the limits of the districts, provinces, or towns in which they discharge their duties:

1. Justices of the Supreme Court, judges and officials of the department of public prosecution in aservice. This provision shall not be applicable to mayors, municipal judges, and municipal prosecuting att

nor to those who by chance are temporarily discharging the functions of judge or prosecuting attorney.

xxx xxx xxx


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5. Those who by virtue of laws or special provisions may not engage in commerce in a determinate

territory.

It is Our considered view that although the aforestated provision is incorporated in the Code of Commerce which

is part of the commercial laws of the Philippines, it, however, partakes of the nature of a political law as itregulates the relationship between the government and certain public officers and employees, like justices and

judges.

Political Law has been defined as that branch of public law which deals with the organization and operation of the

governmental organs of the State and define the relations of the state with the inhabitants of its territory (People

vs. Perfecto, 43 Phil. 887, 897 [1922]). It may be recalled that political law embraces constitutional law, law of

public corporations, administrative law including the law on public officers and elections. Specifically, Article 14

of the Code of Commerce partakes more of the nature of an administrative law because it regulates the conduct ofcertain public officers and employees with respect to engaging in business: hence, political in essence.

It is significant to note that the present Code of Commerce is the Spanish Code of Commerce of 1885, with somemodifications made by the "Commission de Codificacion de las Provincias de Ultramar," which was extended to

the Philippines by the Royal Decree of August 6, 1888, and took effect as law in this jurisdiction on December 1,

1888.

Upon the transfer of sovereignty from Spain to the United States and later on from the United States to the

Republic of the Philippines, Article 14 of this Code of Commerce must be deemed to have been abrogated becausewhere there is change of sovereignty, the political laws of the former sovereign, whether compatible or not with

those of the new sovereign, are automatically abrogated, unless they are expressly re-enacted by affirmative act ofthe new sovereign.

Thus, We held in Roa vs. Collector of Customs (23 Phil. 315, 330, 311 [1912]) that:

By well-settled public law, upon the cession of territory by one nation to another, either following a conquest orotherwise, ... those laws which are political in their nature and pertain to the prerogatives of the formergovernment immediately cease upon the transfer of sovereignty. (Opinion, Atty. Gen., July 10, 1899).

While municipal laws of the newly acquired territory not in conflict with the, laws of the new sovereign continue

in force without the express assent or affirmative act of the conqueror, the political laws do not. (Halleck's Int.

Law, chap. 34, par. 14). However, such political laws of the prior sovereignty as are not in conflict with the

constitution or institutions of the new sovereign, may be continued in force if the conqueror shall so declare by

affirmative act of the commander-in-chief during the war, or by Congress in time of peace. (Ely's Administrator

vs. United States, 171 U.S. 220, 43 L. Ed. 142). In the case of American and Ocean Ins. Cos. vs. 356 Bales ofCotton (1 Pet. [26 U.S.] 511, 542, 7 L. Ed. 242), Chief Justice Marshall said:

On such transfer (by cession) of territory, it has never been held that the relations of the inhabitants with each

other undergo any change. Their relations with their former sovereign are dissolved, and new relations are created

between them and the government which has acquired their territory. The same act which transfers their country,

transfers the allegiance of those who remain in it; and the law which may be denominated political, is necessarily

changed, although that which regulates the intercourse and general conduct of individuals, remains in force, untilaltered by the newly- created power of the State.

Likewise, in People vs. Perfecto (43 Phil. 887, 897 [1922]), this Court stated that: "It is a general principle of the

public law that on acquisition of territory the previous political relations of the ceded region are totally abrogated.

"

There appears no enabling or affirmative act that continued the effectivity of the aforestated provision of

of Commerce after the change of sovereignty from Spain to the United States and then to the Republic of

Philippines. Consequently, Article 14 of the Code of Commerce has no legal and binding effect and cann

to the respondent, then Judge of the Court of First Instance, now Associate Justice of the Court of Appeal

It is also argued by complainant herein that respondent Judge violated paragraph H, Section 3 of Republic

3019, otherwise known as the Anti-Graft and Corrupt Practices Act, which provides that:

Sec. 3. Corrupt practices of public officers.In addition to acts or omissions of public officers already p

by existing law, the following shall constitute corrupt practices of any public officer and are hereby decla

unlawful:

xxx xxx xxx

(h) Directly or indirectly having financial or pecuniary interest in any business, contract or transact

connection with which he intervenes or takes part in his official capacity, or in which he is prohibited by tConstitution or by any Iaw from having any inte rest.

Respondent Judge cannot be held liable under the aforestated paragraph because there is no showing that

respondent participated or intervened in his official capacity in the business or transactions of the Traders

Manufacturing and Fishing Industries, Inc. In the case at bar, the business of the corporation in which resp

participated has obviously no relation or connection with his judicial office. The business of said corporathat kind where respondent intervenes or takes part in his capacity as Judge of the Court of First Instance.

held in one case involving the application of Article 216 of the Revised Penal Code which has a similarprohibition on public officers against directly or indirectly becoming interested in any contract or busines

which it is his official duty to intervene, "(I)t is not enough to be a public official to be subject to this crim

necessary that by reason of his office, he has to intervene in said contracts or transactions; and, hence, the

who intervenes in contracts or transactions which have no relation to his office cannot commit this crime.

vs. Meneses, C.A. 40 O.G. 11th Supp. 134, cited by Justice Ramon C. Aquino; Revised Penal Code, p. 1111 [1976]).

It does not appear also from the records that the aforesaid corporation gained any undue advantage in its boperations by reason of respondent's financial involvement in it, or that the corporation benefited in one w

another in any case filed by or against it in court. It is undisputed that there was no case filed in the differ

branches of the Court of First Instance of Leyte in which the corporation was either party plaintiff or defe

except Civil Case No. 4234 entitled "Bernardita R. Macariola, plaintiff, versus Sinforosa O. Bales, et al.,"

the complainant herein sought to recover Lot 1184-E from the aforesaid corporation. It must be noted, ho

that Civil Case No. 4234 was filed only on November 9 or 11, 1968 and decided on November 2, 1970 byJudge Jose D. Nepomuceno when respondent Judge was no longer connected with the corporation, having

disposed of his interest therein on January 31, 1967.

Furthermore, respondent is not liable under the same paragraph because there is no provision in both the

1973 Constitutions of the Philippines, nor is there an existing law e xpressly prohibiting members of the Ju

from engaging or having interest in any lawful business.

It may be pointed out that Republic Act No. 296, as amended, also known as the Judiciary Act of 1948, docontain any prohibition to that effect. As a matter of fact, under Section 77 of said law, municipal judges

engage in teaching or other vocation not involving the practice of law after office hours but with the perm

the district judge concerned.


6/35

Likewise, Article 14 of the Code of Commerce which prohibits judges from engaging in commerce is, as

heretofore stated, deemed abrogated automatically upon the transfer of sovereignty from Spain to America,

because it is political in nature.

Moreover, the prohibition in paragraph 5, Article 1491 of the New Civil Code against the purchase by judges of aproperty in litigation before the court within whose jurisdiction they perform their duties, cannot apply to

respondent Judge because the sale of the lot in question to him took place after the finality of his decision in Civil

Case No. 3010 as well as his two orders approving the project of partition; hence, the property was no longer

subject of litigation.

In addition, although Section 12, Rule XVIII of the Civil Service Rules made pursuant to the Civil Service Act of

1959 prohibits an officer or employee in the civil service from engaging in any private business, vocation, or

profession or be connected with any commercial, credit, agricultural or industrial undertaking without a writtenpermission from the head of department, the same, however, may not fall within the purview of paragraph h,Section 3 of the Anti-Graft and Corrupt Practices Act because the last portion of said paragraph speaks of a

prohibition by the Constitution or law on any public officer from having any interest in any business and not by amere administrative rule or regulation. Thus, a violation of the aforesaid rule by any officer or employee in the

civil service, that is, engaging in private business without a written permission from the Department Head may not

constitute graft and corrupt practice as defined by law.

On the contention of complainant that respondent Judge violated Section 12, Rule XVIII of the Civil Service

Rules, We hold that the Civil Service Act of 1959 (R.A. No. 2260) and the Civil Service Rules promulgatedthereunder, particularly Section 12 of Rule XVIII, do not apply to the members of the Judiciary. Under said

Section 12: "No officer or employee shall engage directly in any private business, vocation, or profession or beconnected with any commercial, credit, agricultural or industrial undertaking without a written permission from

the Head of Department ..."

It must be emphasized at the outset that respondent, being a member of the Judiciary, is covered by Republi c Act

No. 296, as amended, otherwise known as the Judiciary Act of 1948 and by Section 7, Article X, 1973Constitution.

Under Section 67 of said law, the power to remove or dismiss judges was then vested in the President of thePhilippines, not in the Commissioner of Civil Service, and only on two grounds, namely, serious misconduct and

inefficiency, and upon the recommendation of the Supreme Court, which alone is authorized, upon its own

motion, or upon information of the Secretary (now Minister) of Justice to conduct th e corresponding investigation.

Clearly, the aforesaid section defines the grounds and prescribes the special procedure for the discipline of judges.

And under Sections 5, 6 and 7, Article X of the 1973 Constitution, only the Supreme Court can discipline judgesof inferior courts as well as other personnel of the Judiciary.

It is true that under Section 33 of the Civil Service Act of 1959: "The Commissioner may, for ... violation of the

existing Civil Service Law and rules or of reasonable office regulations, or in the interest of the service, remove

any subordinate officer or employee from the service, demote him in rank, suspend him for not more than one year

without pay or fine him in an amount not exceeding six months' salary." Thus, a violation of Section 12 of Rule

XVIII is a ground for disciplinary action against civil service officers and employees.

However, judges cannot be considered as subordinate civil service officers or employees subject to the

disciplinary authority of the Commissioner of Civil Service; for, certainly, the Commissioner is not the head of the

Judicial Department to which they belong. The Revised Administrative Code (Section 89) and the Civil Service

Law itself state that the Chief Justice is the department head of the Supreme Court (Sec. 20, R.A. No. 2260)

[1959]); and under the 1973 Constitution, the Judiciary is the only other or second branch of the government (Sec.

1, Art. X, 1973 Constitution). Besides, a violation of Section 12, Rule XVIII cannot be considered as a ground for

disciplinary action against judges because to recognize the same as applicable to them, would be adding

ground for the discipline of judges and, as aforestated, Section 67 of the Judiciary Act recognizes only tw

grounds for their removal, namely, serious misconduct and inefficiency.

Moreover, under Section 16(i) of the Civil Service Act of 1959, it is the Commissioner of Civil Service woriginal and exclusive jurisdiction "(T)o decide, within one hundred twenty days, after submission to it, a

administrative cases against permanent officers and employees in the competitive service, and, except as

by law, to have final authority to pass upon their removal, separation, and suspension and upon all matter

to the conduct, discipline, and efficiency of such officers and employees; and prescribe standards, guideli

regulations governing the administration of discipline" (emphasis supplied). There is no question that a j u

belong to the non-competitive or unclassified service of the government as a Presidential appointee and i

therefore not covered by the aforesaid provision. WE have already ruled that "... in interpreting Section 16

Republic Act No. 2260, we emphasized that only permanent officers and employees who belong to the clservice come under the exclusive jurisdiction of the Commissioner of Civil Service" (Villaluz vs. ZaldivaSCRA 710,713 [1965], Ang-Angco vs. Castillo, 9 SCRA 619 [1963]).

Although the actuation of respondent Judge in engaging in private business by joining the Traders Manuf

and Fishing Industries, Inc. as a stockholder and a ranking officer, is not violative of the provissions of Ar

of the Code of Commerce and Section 3(h) of the Anti-Graft and Corrupt Practices Act as well as Section

XVIII of the Civil Service Rules promulgated pursuant to the Civil Service Act of 1959, the impropriety o

same is clearly unquestionable because Canon 25 of the Canons of Judicial Ethics expressly declares that

A judge should abstain from making personal investments in enterprises which are apt to be involved in l

in his court; and, after his accession to the bench, he should not retain such investments previously made,than a period sufficient to enable him to dispose of them without serious loss. It is desirable that he should

as reasonably possible, refrain from all relations which would normally tend to arouse the suspicion that s

relations warp or bias his judgment, or prevent his impartial attitude of mind in the administration of his ju

duties. ...

WE are not, however, unmindful of the fact that respondent Judge and his wife had withdrawn on January1967 from the aforesaid corporation and sold their respective shares to third parties, and it appears also th

aforesaid corporation did not in anyway benefit in any case filed by or against it in court as there was no cin the different branches of the Court of First Instance of Leyte from the time of the drafting of the Article

Incorporation of the corporation on March 12, 1966, up to its incorporation on January 9, 1967, and the ev

withdrawal of respondent on January 31, 1967 from said corporation. Such disposal or sale by respondent

wife of their shares in the corporation only 22 days after the incorporation of the corporation, indicates th

respondent realized that early that their interest in the corporation contravenes the aforesaid Canon 25. Re

Judge and his wife therefore deserve the commendation for their immediate withdrawal from the firm afteincorporation and before it became involved in any court litigation

III

With respect to the third and fourth causes of action, complainant alleged that respondent was guilty of co

an impostor and acted in disregard of judicial decorum, and that there was culpable defiance of the law an

disregard for ethics. WE agree, however, with the recommendation of the Investigating Justice that respoJudge be exonerated because the aforesaid causes of action are groundless, and WE quote the pertinent pher report which reads as follows:

The basis for complainant's third cause of action is the claim that respondent associated and closely frater

with Dominador Arigpa Tan who openly and publicly advertised himsel f as a practising attorney (see Exh

and J) when in truth and in fact said Dominador Arigpa Tan does not appear in the Roll of Attorneys and

member of the Philippine Bar as certified to in Exh. K.


7/35

The "respondent denies knowing that Dominador Arigpa Tan was an "impostor" and claims that all the time he

believed that the latter was a bona fide member of the bar. I see no reason for disbelieving this assertion of

respondent. It has been shown by complainant that Dominador Arigpa Tan represented himself publicly as an

attorney-at-law to the extent of putting up a signboard with his name and the words "Attorney-at Law" (Exh. I and1- 1) to indicate his office, and it was but natural for respondent and any person for that matter to have accepted

that statement on its face value. "Now with respect to the allegation of complainant that respondent is guilty of

fraternizing with Dominador Arigpa Tan to the extent of permitting his wife to be a godmother of Mr. Tan's child

at baptism (Exh. M & M-1), that fact even if true did not render respondent guilty of violating any canon of

judicial ethics as long as his friendly relations with Dominador A. Tan and family did not influence his official

actuations as a judge where said persons were concerned. There is no tangible convincing proof that herein

respondent gave any undue privileges in his court to Dominador Arigpa Tan or that the latter benefitted in his

practice of law from his personal relations with respondent, or that he used his influence, if he had any, on theJudges of the other branches of the Court to favor said Dominador Tan.

Of course it is highly desirable for a member of the judiciary to refrain as much as possible from maintaining closefriendly relations with practising attorneys and litigants in his court so as to avoid suspicion 'that his social or

business relations or friendship constitute an element in determining his judicial course" (par. 30, Canons of

Judicial Ethics), but if a Judge does have social relations, that in itself would not constitute a ground for

disciplinary action unless it be clearly shown that his social relations be clouded his official actuations with bias

and partiality in favor of his friends (pp. 403-405, rec.).

In conclusion, while respondent Judge Asuncion, now Associate Justice of the Court of Appeals, did not violate

any law in acquiring by purchase a parcel of land which was in litigation in his court and in engaging in businessby joining a private corporation during his incumbency as judge of the Court of First Instance of Leyte, he should

be reminded to be more discreet in his private and business activities, because his conduct as a member of the

Judiciary must not only be characterized with propriety but must always be above suspicion.

WHEREFORE, THE RESPONDENT ASSOCIATE JUSTICE OF THE COURT OF APPEALS IS HEREBYREMINDED TO BE MORE DISCREET IN HIS PRIVATE AND BUSINESS ACTIVITIES.

SO ORDERED.

Macariola v. Asuncion, 114 SCRA 77, CASE DIGEST

Political LawAbrogation

On 6 Aug 1968, Macariola filed a complaint against Judge Asuncion with acts unbecoming a judge. The judgeapparently bought a property (formerly owned by Macariola) which was i nvolved in a civil case decided by him;

and on 31 Aug 1966, the Asuncion couples conveyed their share and interest in the said property to The Traders

Manufacturing and Fishing Industries Inc. The act of Asuncion engaging in commerce is said to be a violation of

pars 1 & 5, Art 14 of the Code of Commerce which prohibits judges in active service (among others) to do so

within the limits of the place where they discharge their duties.

HELD: Art 14 (Anti Graft and Corrupt Practices Act, effective Aug 1888) of the Code of Commerce, prohibiting

judges from engaging in commerce was political in nature and so was automatically abrogated with the end ofSpanish rule in the country (Change of Sovereignty to the US by virtue of cession, 1898)


8/35

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

WILLIAM F. PERALTA, petitioner,

vs.

THE DIRECTOR OF PRISONS, respondent.

William F. Peralta in his own behalf.

Office of the Solicitor General Taada for respondent.

City Fiscal Mabanag as amicus curiae.

FERIA, J.:

Petitioner-defendant, a member of the Metropolitan Constabulary of Manila charged with the supervision andcontrol of the production, procurement and distribution of goods and other necessaries as defined in section 1 ofAct No. 9 of the National Assembly of the so-called Republic of the Philippines, was prosecuted for the crime of

robbery as defined and penalized by section 2 (a) of Act No. 65 of the same Assembly. He was found guilty andsentenced 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 CriminalJurisdiction 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 isbeing 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 begranted. The reasons advanced by the Solicitor General in said brief and in his reply memorandum in support of

his contention are, that the Court of Special and Exclusive Criminal Jurisdiction created, and the summary

procedure prescribed therefor, by said Ordinance No. 7 in connection with Executive Order No. 157 of the

Chairman of the Executive Commission are tinged with political complexion; that the procedure prescribed in

Ordinance No. 7 does not afford a fair trial, violates the Constitution of the Commonwealth, and impairs the

Constitutional rights of accused persons under their legitimate Constitution. And he cites, in support of this last

proposition, the decisions of the Supreme Court of the United States in the cases of Texas vs. White (7 Wall., 700,743); Horn vs. Lockart (17 Wall., 570, 581); United States vs. Home Insurance Co. (22 Wall., 99, 104); Sprott vs.United States (20 Wall., 459).

The City Fiscal of Manila appeared before this Court as amicus curiae. In his memorandum he submits that the

petition for habeas corpus be denied on the following grounds: That the Court of Special and Exclusive Criminal

Jurisdiction and the Acts, Ordinances and Executive Orders, creating it are not of a political complexion, for said

Court was created, and the crimes and offenses placed under its jurisdiction were penalized heavily, in response to

an urgent necessity, according to the preamble of Ordinance No. 7; that the right to appeal in a criminal c

a constitutional right; and that the summary procedure established in said Ordinance No. 7 is not violative

provision of Article III, section 1 (18) of the Constitution of the Commonwealth, to the effect that no pers

be compelled to be a witness against himself, nor of the provision of section 1 (1) of the same Article tha

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 So

General as impairing the constitutional rights of an accused are: that court may interrogate the accused an

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 interro

appears that the defendant is guilty, he may be immediately convicted; and that the sentence of the senten

court is not appealable, except in case of death penalty which cannot be executed unless and until reviewe

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 p

case, it is necessary to bear in mind the nature and status of the government established in these Islands byJapanese 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

this Court, speaking through the Justice who pens this decision, held:

In view of the foregoing, it is evident that the P hilippines Executive Commission, which was organized byNo. 1, issued on January 23, 1942, by the Commander of the Japanese forces, was a civil government est

by the military forces of occupation and therefore a de facto government of the second kind. It was not difrom the government established by the British in Castine, Maine, or by the United States in Tanpico, Me

Halleck says, "the government established over an enemy's territory during the military occupation may e

all the powers given by the laws of war to the conqueror over the conquered, and is subject to all restrictio

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 governimposed by the laws of war and so far as it concerns the inhabitants of such territory or the rest of the worlaws alone determine the legality or illegality of its acts." (vol. 2 p. 466.) The fact that the Philippine Exe

Commission was a civil and not a military government and was run by Filipinos and not by Japanese natioof 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 indep

from any other government by the Filipino people, was, in truth and reality, a government established by belligerent occupant or the Japanese forces of occupation. It was of the same character as the Philippine E

Commission, and the ultimate source of its authority was the samethe Japanese military authority and

government. As General MacArthur stated in his proclamation of October 23, 1944, a portion of which ha

already quoted, "under enemy duress, a so-called government styled as the 'Republic of the Philippines' w

established on October 14, 1943, based upon neither the free expression of the peoples" will nor the sanct

the Government of the United States.' Japan had no legal power to grant independence to the Philippines

transfer the sovereignty of the United States to, or recognize the latent sovereignty of the Filipino people,its military occupation and possession of the Islands had matured into an absolute and permanent dominiosovereignty 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

as the government established in Castine, Maine, during its occupation by the British forces and as that o

Tampico, Mexico, occupied during the war with that the country by the United State Army, the question i

in the present case cannot be decided in the light of the Constitution of the Commonwealth Government;


9/35

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 beapplied, 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 undera temporary allegiance to the British government, and were bound by such laws, and such only, as it chose torecognize 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 ofthe constitution and the laws of the territory, since occupation is an aim of warfare, and the maintenance and

safety of his forces, and the purpose of war, stand in the foreground of his interest and must be promoted under all

circumstances or conditions. (Vol. II, Sixth Edition, Revised, 1944, p. 342.)

The doctrine laid down in the decisions of the Supreme Court of the United States (in the cases of Texas vs.

White, 7 Wall., 700; Horn vs. Lockart, 17 Wall., 570; Williams vs. Bruffy, 96 U. S., 176 United States vs. HomeInsurance 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 Statesor of the States, or were in conflict with those constitutions, were null and void, is not applicable to the present

case. Because that doctrine rests on the propositions that "the concession (of belligerency) made to the

Confederate Government . . . sanctioned no hostile legislation . . . and it impaired in no respect the rights of loyal

and citizens as they existed at the commencement of hostilities" (Williams vs. Bruffy, supra);that the Union is

perpetual and indissoluble, and the obligation of allegiance to the to the estate and obedience to her laws and theestate constitution, subject to the Constitution of the United States, remained unimpaired during the War ofSecession (Texas vs. White, supra) and that the Confederate States "in most, if not in all instances, merely

transferred the existing state organizations to the support of a new and different national head. the sameconstitution, the same laws for the protection of the property and personal rights remained and were administered

by the same officers." (Sprott vs. United States, supra). In fine, because in the case of the Confederate States, the

constitution of each state and that of the United States or the Union continued in force in those states during the

War of Secession; while the Constitution of the Commonwealth Government was suspended during the

occupation of the Philippines by the Japanese forces of the belligerent occupant at regular war with the United

States.

The question which we have to resolve in the present case in the light of the law of nations are, first, the validity of

the creation of the Court of Special and Exclusive Criminal Jurisdiction, and of the summary procedure adopted

for that court; secondly, the validity of the sentence which imprisonment during the Japanese military occupation;

and thirdly, if they were then valid, the effect on said punitive sentence of the reoccupation of the Philippines and

the restoration therein of the Commonwealth Government.

(1) As to the validity of the creation of the Court of Special and Exclusive Criminal Jurisdiction byOrdinance No. 7, the only factor to be considered is the authority of the legislative power which promulgated said

law or ordinance. It is well established in International Law that "The criminal jurisdiction established by the

invader in the occupied territory finds its source neither in the laws of the conquering or conquered state,it is

drawn entirely form the law martial as defined in the usages of nations. The authority thus derived can be asserted

either through special tribunals, whose authority and procedure is defined in the military code of the conquering

state, or through the ordinary courts and authorities of the occupied district." (Taylor, International Public Law, p.

598.) The so-called Republic of the Philippines, being a governmental instrumentality of the belligerent o

had therefore the power or was competent to create the Court of Special and Exclusive Criminal Jurisdict

question may arise as to whether or not a court is of political complexion, for it is mere a governmental ag

charged with the duty of applying the law to cases falling within its jurisdiction. Its judgments and senten

be of political complexion, or not depending upon the nature or character of the law so applied. There is nfor 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

resulted in the conviction of the herein petitioner, there is also no question as to the power or competence

belligerent occupant to promulgate the law providing for such procedure. For "the invader deals freely wi

relations of the inhabitants of the occupied territory towards himself . . . for his security also, he declares

acts, not forbidden by the ordinary laws of the country, to be punishable; and he so far suspends the laws

guard personal liberty as is required for the summary punishment of any one doing such acts." (Hall's InteLaw, seventh ed., p. 5000). A belligerent "occupant may where necessary, set up military courts instead oordinary courts; and in case, and in so far as, he admits the administration of justice by the ordinary court

nevertheless, so far as is necessary for military purposes, or for the maintenance of public order and safettemporarily alter the laws, especially the Criminal Law, on the basis of which justice is administered as w

laws regarding procedure." (Oppenheim's International Law, Vol. II, sixth edition, 1944, p.349.)

No objection can be set up to the legality of its provisions in the light of the precepts of our Commonwea

Constitution relating to the rights of accused under that Constitution, because the latter was not in force d

period of the Japanese military occupation, as we have already stated. Nor may said Constitution be appliits revival at the time of the re-occupation of the Philippines by virtue of the principle of postliminium be

constitution should operate prospectively only, unless the words employed show a clear intention that it shhave a retrospective effect" (Cooley's Constitutional Limitations, seventh edition, page 97, and cases quo

cited in the footnote), especially as regards laws of procedure applied to cases already terminated comple

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 nfor military purposes, that is, for his control of the territory and the safety and protection of his army, are imposed by the Hague Regulations, the usages established by civilized nations, the laws of humanity and

requirements of public conscience. It is obvious that the summary procedure under consideration does notthose precepts. It cannot be considered as violating the laws of humanity and public conscience, for it is l

objectionable, even from the point of view of those who are used to the accusatory system of criminal pro

than the procedural laws based on the semi-inquisitorial or mixed system prevailing in France and other c

in continental Europe.

(2) The validity of the sentence rendered by the Court of Special and Exclusive Criminal Jurisdictiimposes life imprisonment upon the herein petitioner, depends upon the competence or power of the belli

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 t

enforced by the occupant consist of, first, the territorial law in general, as that which stands to the public o

social and commercial life of the district in a relation of mutual adaptation, so that any needless displacem

would defeat the object which the invader is enjoined to have in view, and secondly, such variations of thterritorial law as may be required by real necessity and are not expressly prohibited by any of the rules whcome before us. Such variations will naturally be greatest in what concerns the relation of the communitie

individuals within the district to the invading army and its followers, it being necessary for the protection

latter, and for the unhindered prosecution of the war by them, that acts committed to their detriment shall

lose what justification the territorial law might give them as committed against enemies, but shall be repre

more severely than the territorial law would repress acts committed against fellow subjects. Indeed the en

relation between the invaders and the invaded, so far as it may fall within the criminal department whethe


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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 describeany fact in relation to belligerent occupation, does not refer to a particular code or system of law, or to a special

agency entrusted with its administration. The term merely signifies that the body of law actually applied, having

the sanction of military authority, is essentially martial. All law, by whomsoever administered, in an occupied

district martial law; and it is none the less so when applied by civil courts in matters devoid of special interest to

the occupant. The words "martial law" are doubtless suggestive of the power of the occupant to share the law as he

sees fit; that is, to determine what shall be deemed la wful or unlawful acts, to establish tests for ascertaining the

guilt of offenders, to fix penalties, and generally to administer justice through such agencies as the found

expedient.

And the United States Rules of Land Warfare provide that the belligerent occupant may promulgate such new

laws and regulations as military necessity demands, and in this class will be included those laws which come intobeing 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 topromulgate, 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 maximumperiod 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 andefficiency, and the success of its operations.

They are not the same ordinary offenses penalized by the Revised Penal Code.The criminal acts penalized bysaid 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 fromevery nook and corner of the country, but also to preserve the food supply and other necessaries in order that, in

case of necessity, the Imperial Japanese forces could easily requisition them, as they did, and as they had the right

to do in accordance with the law of nations for their maintenance and subsistence (Art. LII, Sec. III, Hague

Conventions of 1907). Especially taking into consideration the fact, of which this court may take judicial notice,

that the Imperial Japanese Army had depended mostly for their supply upon the produce of this country.

The crimes penalized by Act No. 65as well as the crimes against national security and the law of nations, towit: treason, espionage, inciting war, violation of neutrality, correspondence with hostile country, flight to enemy'scountry, piracy; and the crimes against public order, such as rebellion, sedition and disloyalty, illegal possession of

firearms and other, penalized by Ordinance No. 7 and placed under jurisdiction of the Court of Special and

Exclusive Criminal Jurisdictionare all of a political complexion, because the acts constituting those offenses

were punished, as are all political offenses, for public rather than private reasons, and were acts in aid or favor of

the enemy and against the welfare, safety and security of the belligerent occupant. While it is true that these

offenses, when committed against the Commonwealth or United States Government, are defined and also

penalized by the territorial law Revised Penal Code, they became inapplicable as crimes against the occu

the occupation of the Islands by the Japanese forces. And they had to be taken out of the territorial law an

punishable by said Ordinance No. 7, for they were not penalized before under the Revised Penal Code wh

committed against the belligerent occupant or the government established by him in these Island. They ar

considered by some writers as war crimes in a broad sense. In this connection Wheaton observes the follo

"Of 'war crimes' the number is naturally indefinite, depending as they do on the acts from time to time ord

be done or forbidden to be done in the martial law proclamation or regulations of the invading or occupyi

commander. Thus, in the Anglo-Boer war, the British military authorities proclaimed the following to be

against their martial law;Being in possession of arms, ammunition, etc.; traveling without a permit; se

prohibited goods; holding meetings other than those allowed; using seditious language; spreading alarmis

overcharging for goods; wearing uniforms without due authority; going out of doors between certain hour

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 witothers, were specified in the Japanese regulations made in the Russo-Japanese war." (Wheaton's Internati

Law, War, seventh edition, 1944, p. 242.)

It is, therefore, evident that the sentence rendered by the Court of Special and Exclusive Criminal Jurisdic

against the petitioner, imposing upon him the penalty of life imprisonment, was good and valid, since it w

within the admitted power or competence of the belligerent occupant to promulgate the law penalizing th

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 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

sufficient to quote the opinion on the subject of several international jurists and our recent decision in the

Co Kim Cham vs. Valdez Tan Keh and Dizon, supra.

Hall, commenting on the effect of the principle of postliminy upon sentences of the tribunals continued or

by the belligerent occupant, opines "that judicial acts done under this control, when they are not of a politcomplexion, administrative acts so done, to the extent that they take effect during the continuance of his c

and the various acts done during the same time by private persons under the sanction of municipal law, re

good. . . . Political acts on the other hand fall through as of course, whether they introduce any positive ch

into the organization of the country, or whether they only suspend the working of that already in existence

execution also of punitive sentences ceases as of course when they have had reference to act s not crimina

municipal law of the state, such for example as acts directed against the security or control of the invaderInternational Law, seventh edition, p. 518.)

Westlake, speaking of the duration of the validity of punitive sentences for offenses such as the one in qu

which is within the admitted power or competence of the belligerent occupant to punish, says that: "To th

to which the legal power of the occupant is admitted he can make law for the duration of his occupation. L

other legislator he is morally subject to the duty of giving sufficient notice of his enactments or regulation

indeed so as to be debarred from carrying out his will without notice, when required by military necessityfar as practically carrying out his will can be distinguished from punishment, but always remembering tha

punish for breach of a regulation a person who was justifiably ignorant of it would be outrageous. But the

made by the occupant within his admitted power, whether morally justifiable or not, will bind any membe

occupied population as against any other member of it, and will bind as between them all and their nation

government, so far as it produces an effect during the occupation. When the occupation comes to an end t

authority of the national government is restored, either by the progress of operations during the war or by

conclusion of a peace, no redress can be had for what has been actually carried out but nothing further ca


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from the occupant's legislation. A prisoner detained under it must be released, and no civil right conferred by it

can be further enforced. The enemy's law depends on him for enforcement as well as for enactment. The invaded

state is not subject to the indignity of being obliged to execute his commands. (Westlake, International Law, Part

II, War, pp. 97, 98.)

And Wheaton, who, as above stated, considers as war crimes such offenses as those penalized in Ordinance No. 7

and Act No. 65, says: "In general, the cast of the occupant possess legal validity, and under international law

should not be abrogated by the subsequent government. But this rule does not necessarily apply to acts that exceed

the occupant's power (e.g., alienation of the domains of the State or the sovereign), to sentences for 'war treason'

and 'war crimes,' to acts of a political character, and to those that beyond the period of occupation. When

occupation ceases, no reparation is legally due for what has already been carried out." (Wheaton's International

Law, supra, p. 245.)

We have already held in our recent decision in the case of Co Kim Cham vs. Valdez Tan Keh and Dizon, supra,that all judgments of political complexion of the courts during the Japanese regime, ceased to be valid upon the

reoccupation of the islands by virtue of the principle or right of postliminium. Applying that doctrine to thepresent 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 P hilippines 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 Republicof the Philippines under which petitioner was convicted, in order to give retroactive effect to the nullification of

said penal act and invalidate sentence rendered against petitioner under said law, a sentence which, before theproclamation, had already become null and of no effect.

We therefore hold that the punitive sentence under consideration, although good and valid during the military

occupation of the Philippines by the Japanese forces, ceased to be good and valid ipso facto upon the reoccupation

of these Island and the restoration therein of the Commonwealth Government.

In view of all the foregoing, the writ of habeas corpus prayed for is hereby granted and it is ordered that the

petitioner be released forthwith, without pronouncement as to costs. So ordered.

Peralta v. Director of Prisons (1945), CASE DIGEST

Petitioner, a member of the Metropolitan Constabulary, was prosecuted for the crime of robbery as defined by the

National Assembly of the so-called Republic of the Philippines. He was found guilty and sentenced to serve time

by the Court of Special and Exclusive Criminal Jurisdiction created in sec. 1 of Ordinance no. 7 promulgated bythe President of the Republic. The petition for habeas corpus is based on the ground that the Courts existence was

void ab initio because it was created as a political instrumentality under the command of the Japanese Imperial

Army; that the provisions of said ordinance violate his constitutional rights; that the penalties provided for are

much more severe than the RPC. SolGen is of the opinion that the petition should be granted because the

Ordinance mentioned in creating said court is tinged with political complexion, that the procedure does not

afford a fair trial and violates constitutional right of accused persons under a legitimate Constitution. The court is

of the opinion that: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 defined in the usages of nations. The authority thus derived can be asserted either

through Mars Veloso 1C, 2006-2007 Constitutional Law I Digests (P re-Legislative Compilation) v1.5 Page No.6

special tribunals, whose authority and procedure is defined in the military codeof the conquering state, or through

the ordinary courts and authorities of the occupied district." (Taylor, InternationalPublic Law, p. 598.) Th

called Republic of the Philippines, being a governmental instrumentality of the belligerent occupant, had

the power or was competent to create the Court of Special and Exclusive Criminal Jurisdiction. No questi

arise as to whether or not a court is of a political complexion, for it is mere governmental agency charged

duty of applying the law to cases falling within its jurisdiction. Its judgments and sentences may be of a pcomplexion or not depending upon the nature or character of the law so applied. There is no room for dou

therefore, as to the validity of the creation of the court in question. The validity of the sentence rendered

Court of Special and Exclusive Criminal Jurisdiction which imposes life imprisonment upon the herein pe

depends upon the competence or power of the belligerent occupant to promulgate Act No. 65 which puni

crime of which said petitioner was convicted. It appears clear that it was within the power and competenc

belligerent occupant to promulgate, through the National Assembly of the so-called Republic of the Philip

Act No. 65 of the said Assembly, which penalizes the crimes of robbery and other offenses byimprisonme

ranging from the maximum period of the imprisonment prescribed by the laws and ordinances promulgatPresident of the so-called Republic as minimum, to lif

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