EN  BANC  

[G.R.  No.  L-­‐9657.    November  29,  1956.]  

LEOPOLDO  T.  BACANI  and  MATEO  A.  MATOTO,  Plaintiffs-­‐Appellees,  vs.  NATIONAL  COCONUT  CORPORATION,  ET  AL.,  Defendants,  NATIONAL  COCONUT  CORPORATION  and  BOARD  OF  

LIQUIDATORS,  Defendants-­‐Appellants.  

   

D  E  C  I  S  I  O  N  

BAUTISTA  ANGELO,  J.:  

Plaintiffs  herein  are  court  stenographers  assigned  in  Branch  VI  of  the  Court  of  First   Instance  of  Manila.  During   the   pendency   of   Civil   Case  No.   2293  of   said   court,   entitled   Francisco   Sycip   vs.  National   Coconut   Corporation,   Assistant   Corporate   Counsel   Federico   Alikpala,   counsel  forDefendant,   requested   said   stenographers   for   copies   of   the   transcript   of   the   stenographic  notes   taken   by   them   during   the   hearing.  Plaintiffs  complied  with   the   request   by   delivering   to  Counsel  Alikpala   the  needed   transcript   containing  714  pages  and   thereafter   submitted   to  him  their  bills  for  the  payment  of  their  fees.  The  National  Coconut  Corporation  paid  the  amount  of  P564  to  Leopoldo  T.  Bacani  and  P150  to  Mateo  A.  Matoto  for  said  transcript  at  the  rate  of  P1  per  page.  

Upon  inspecting  the  books  of  this  corporation,  the  Auditor  General  disallowed  the  payment  of  these   fees   and   sought   the   recovery   of   the   amounts   paid.   On   January   19,   1953,   the   Auditor  General   required   the  Plaintiffs  to   reimburse   said   amounts   on   the   strength   of   a   circular   of   the  Department   of   Justice   wherein   the   opinion   was   expressed   that   the   National   Coconut  Corporation,  being  a  government  entity,  was  exempt  from  the  payment  of  the  fees  in  question.  On   February   6,   1954,   the   Auditor   General   issued   an   order   directing   the   Cashier   of   the  Department  of  Justice  to  deduct  from  the  salary  of  Leopoldo  T.  Bacani  the  amount  of  P25  every  payday   and   from   the   salary   of  Mateo   A.  Matoto   the   amount   of   P10   every   payday   beginning  March   30,   1954.   To   prevent   deduction   of   these   fees   from   their   salaries   and   secure   a   judicial  ruling  that  the  National  Coconut  Corporation  is  not  a  government  entity  within  the  purview  of  section  16,  Rule  130  of  the  Rules  of  Court,  this  action  was  instituted  in  the  Court  of  First  Instance  of  Manila.  

Defendants  set  up  as  a  defense   that   the  National  Coconut  Corporation   is  a  government  entity  within   the   purview   of   section   2   of   the   Revised   Administrative   Code   of   1917   and,   hence,   it   is  exempt   from  paying   the   stenographers’   fees  under  Rule  130  of   the  Rules  of  Court.  After   trial,  the  court  found  for  the  Plaintiffs  declaring  (1)  “that  Defendant  National  Coconut  Corporation  is  not  a  government  entity  within  the  purview  of  section  16,  Rule  130  of  the  Rules  of  Court;  chan  roblesvirtualawlibrary(2)  that  the  payments  already  made  by  said  Defendant  to  Plaintiffs  herein  and  received  by  the  latter  from   the   former   in   the   total   amount   of   P714,   for   copies   of   the   stenographic   transcripts   in  question,  are  valid,   just  and   legal;  chan  roblesvirtualawlibraryand   (3)   that  Plaintiffs  are  under  no  obligation  whatsoever  to  make   a   refund   of   these   payments   already   received   by   them.”   This   is   an   appeal   from   said  decision.  

Under  section  16,  Rule  130  of  the  Rules  of  Court,  the  Government  of  the  Philippines  is  exempt  from   paying   the   legal   fees   provided   for   therein,   and   among   these   fees   are   those   which  stenographers  may  charge  for  the  transcript  of  notes  taken  by  them  that  may  be  requested  by  any   interested   person   (section   8).   The   fees   in   question   are   for   the   transcript   of   notes   taken  

during   the  hearing  of  a  case   in  which   the  National  Coconut  Corporation   is   interested,  and   the  transcript  was  requested  by  its  assistant  corporate  counsel  for  the  use  of  said  corporation.  

On  the  other  hand,  section  2  of  the  Revised  Administrative  Code  defines  the  scope  of  the  term  “Government  of  the  Republic  of  the  Philippines”  as  follows:chanroblesvirtuallawlibrary  

“‘The   Government   of   the   Philippine   Islands’   is   a   term   which   refers   to   the   corporate  governmental  entity  through  which  the  functions  of  government  are  exercised  throughout  the  Philippine   Islands,   including,   save   as   the   contrary   appears   from   the   context,   the   various   arms  through  which   political   authority   is  made   effective   in   said   Islands,   whether   pertaining   to   the  central   Government   or   to   the   provincial   or   municipal   branches   or   other   form   of   local  government.”  

The   question   now   to   be   determined   is   whether   the   National   Coconut   Corporation   may   be  considered   as   included   in   the   term   “Government   of   the   Republic   of   the   Philippines”   for   the  purposes  of  the  exemption  of  the  legal  fees  provided  for  in  Rule  130  of  the  Rules  of  Court.  

As   may   be   noted,   the   term   “Government   of   the   Republic   of   the   Philippines”   refers   to   a  government   entity   through   which   the   functions   of   government   are   exercised,   including   the  various   arms   through   which   political   authority   is   made   effective   in   the   Philippines,   whether  pertaining  to  the  central  government  or  to  the  provincial  or  municipal  branches  or  other  form  of  local   government.   This   requires   a   little   digression   on   the   nature   and   functions   of   our  government  as  instituted  in  our  Constitution.  

To   begin   with,   we   state   that   the   term   “Government”   may   be   defined   as   “that   institution   or  aggregate  of  institutions  by  which  an  independent  society  makes  and  carries  out  those  rules  of  action  which  are  necessary  to  enable  men  to   live   in  a  social  state,  or  which  are   imposed  upon  the   people   forming   that   society   by   those  who   possess   the   power   or   authority   of   prescribing  them”  (U.S.  vs.  Dorr,  2  Phil.,  332).  This   institution,  when  referring  to  the  national  government,  has  reference  to  what  our  Constitution  has  established  composed  of  three  great  departments,  the   legislative,   executive,   and   the   judicial,   through   which   the   powers   and   functions   of  government   are   exercised.   These   functions   are   twofold:chanroblesvirtuallawlibrary  constitute   and   ministrant.   The  former   are   those  which   constitute   the   very   bonds   of   society   and   are   compulsory   in   nature;  chan  

roblesvirtualawlibrarythe   latter   are   those   that   are   undertaken   only   by  way   of   advancing   the   general   interests   of  society,   and   are   merely   optional.   President   Wilson   enumerates   the   constituent   functions   as  follows:chanroblesvirtuallawlibrary  

“‘(1)    The   keeping   of   order   and   providing   for   the   protection   of   persons   and   property   from  violence  and  robbery.  

‘(2)    The  fixing  of  the  legal  relations  between  man  and  wife  and  between  parents  and  children.  

‘(3)    The   regulation   of   the   holding,   transmission,   and   interchange   of   property,   and   the  determination  of  its  liabilities  for  debt  or  for  crime.  

‘(4)    The  determination  of  contract  rights  between  individuals.  

‘(5)    The  definition  and  punishment  of  crime.  

‘(6)    The  administration  of  justice  in  civil  cases.  

‘(7)    The  determination  of  the  political  duties,  privileges,  and  relations  of  citizens.  

‘(8)    Dealings   of   the   state  with   foreign   powers:chanroblesvirtuallawlibrary  the   preservation   of   the   state   from   external  danger   or   encroachment   and   the   advancement   of   its   international   interests.’“   (Malcolm,   The  Government  of  the  Philippine  Islands,  p.  19.)  

The  most   important   of   the  ministrant   functions   are:chanroblesvirtuallawlibrary  public   works,   public   education,   public  charity,  health  and  safety  regulations,  and  regulations  of  trade  and  industry.  The  principles  deter  mining  whether  or  not  a  government  shall  exercise  certain  of  these  optional  functions  are:chanroblesvirtuallawlibrary  (1)  that  a  government  should  do  for  the  public  welfare  those  things  which  private  capital  would  not  naturally  undertake  and  (2)  that  a  government  should  do  these  things  which  by  its  very  nature  it  is  better  equipped  to  administer  for  the  public  welfare  than  is  any  private  individual  or  group  of  individuals.  (Malcolm,  The  Government  of  the  Philippine  Islands,  pp.  19-­‐20.)  

From  the  above  we  may  infer  that,  strictly  speaking,  there  are  functions  which  our  government  is  required  to  exercise  to  promote  its  objectives  as  expressed  in  our  Constitution  and  which  are  exercised   by   it   as   an   attribute   of   sovereignty,   and   those   which   it   may   exercise   to   promote  merely   the   welfare,   progress   and   prosperity   of   the   people.   To   this   latter   class   belongs   the  organization  of  those  corporations  owned  or  controlled  by  the  government  to  promote  certain  aspects  of  the  economic  life  of  our  people  such  as  the  National  Coconut  Corporation.  These  are  what  we  call   government-­‐owned  or   controlled   corporations  which  may   take  on   the   form  of  a  private   enterprise   or   one   organized   with   powers   and   formal   characteristics   of   a   private  corporations  under  the  Corporation  Law.  

The   question   that   now   arises   is:chanroblesvirtuallawlibrary  Does   the   fact   that   these   corporation   perform   certain  functions  of  government  make  them  a  part  of  the  Government  of  the  Philippines?  

The  answer  is  simple:chanroblesvirtuallawlibrary  they  do  not  acquire  that  status  for  the  simple  reason  that  they  do  not  come  under  the  classification  of  municipal  or  public  corporation.  Take  for  instance  the  National  Coconut   Corporation.   While   it   was   organized   with   the   purpose   of   “adjusting   the   coconut  industry  to  a  position  independent  of  trade  preferences  in  the  United  States”  and  of  providing  “Facilities   for   the   better   curing   of   copra   products   and   the   proper   utilization   of   coconut   by-­‐products”,   a   function  which   our   government   has   chosen   to   exercise   to   promote   the   coconut  industry,  however,  it  was  given  a  corporate  power  separate  and  distinct  from  our  government,  for   it   was   made   subject   to   the   provisions   of   our   Corporation   Law   in   so   far   as   its   corporate  existence  and  the  powers  that  it  may  exercise  are  concerned  (sections  2  and  4,  Commonwealth  Act  No.  518).  It  may  sue  and  be  sued  in  the  same  manner  as  any  other  private  corporations,  and  in   this   sense   it   is   an   entity   different   from  our   government.   As   this   Court   has   aptly   said,   “The  mere  fact  that  the  Government  happens  to  be  a  majority  stockholder  does  not  make  it  a  public  corporation”   (National   Coal   Co.   vs.   Collector   of   Internal   Revenue,   46   Phil.,   586-­‐587).   “By  becoming   a   stockholder   in   the   National   Coal   Company,   the   Government   divested   itself   of   its  sovereign   character   so   far   as   respects   the   transactions   of   the   corporation  cralaw  .   Unlike   the  Government,   the  corporation  may  be  sued  without   its  consent,  and   is   subject   to   taxation.  Yet  the  National  Coal  Company  remains  an  agency  or  instrumentality  of  government.”  (Government  of  the  Philippine  Islands  vs.  Springer,  50  Phil.,  288.)  

To  recapitulate,  we  may  mention  that  the  term  “Government  of  the  Republic  of  the  Philippines”  used   in   section   2   of   the   Revised   Administrative   Code   refers   only   to   that   government   entity  through  which  the  functions  of  the  government  are  exercised  as  an  attribute  of  sovereignty,  and  in  this  are  included  those  arms  through  which  political  authority  is  made  effective  whether  they  be  provincial,  municipal  or  other   form  of   local   government.   These  are  what  we  call  municipal  corporations.  They  do  not  include  government  entities  which  are  given  a  corporate  personality  separate   and   distinct   from   the   government   and  which   are   governed   by   the   Corporation   Law.  

Their  powers,  duties  and   liabilities  have   to  be  determined   in   the   light  of   that   law  and  of   their  corporate   charters.   They   do   not   therefore   come   within   the   exemption   clause   prescribed   in  section  16,  Rule  130  of  our  Rules  of  Court.  

“Public   corporations   are   those   formed   or   organized   for   the   government   of   a   portion   of   the  State.”  (Section  3,  Republic  Act  No.  1459,  Corporation  Law).  

“‘The   generally   accepted   definition   of   a   municipal   corporation   would   only   include   organized  cities  and  towns,  and   like  organizations,  with  political  and   legislative  powers   for   the   local,  civil  government   and  police   regulations  of   the   inhabitants  of   the  particular   district   included   in   the  boundaries  of  the  corporation.’  Heller  vs.  Stremmel,  52  Mo.  309,  312.”  

“In   its   more   general   sense   the   phrase   ‘municipal   corporation’   may   include   both   towns   and  counties,   and   other   public   corporations   created   by   government   for   political   purposes.   In   its  more  common  and  limited  signification,  it  embraces  only  incorporated  villages,  towns  and  cities.  Dunn   vs.   Court   of   County   Revenues,   85   Ala.   144,   146,   4   So.   661.”   (McQuillin,   Municipal  Corporations,  2nd  ed.,  Vol.  1,  p.  385.)  

“We  may,   therefore,  define  a  municipal   corporation   in   its  historical  and  strict   sense   to  be   the  incorporation,   by   the   authority   of   the   government,   of   the   inhabitants   of   a   particular   place   or  district,   and   authorizing   them   in   their   corporate   capacity   to   exercise   subordinate   specified  powers  of  legislation  and  regulation  with  respect  to  their  local  and  internal  concerns.  This  power  of   local   government   is   the   distinctive   purpose   and   the   distinguishing   feature   of   a   municipal  corporation  proper.”  (Dillon,  Municipal  Corporations,  5th  ed.,  Vol.  I,  p.  59.)  

It  is  true  that  under  section  8,  Rule  130,  stenographers  may  only  charge  as  fees  P0.30  for  each  page  of  transcript  of  not  less  than  200  words  before  the  appeal  is  taken  and  P0.15  for  each  page  after  the  filing  of  the  appeal,  but  in  this  case  the  National  Coconut  Corporation  has  agreed  and  in  fact  has  paid  P1.00  per  page  for  the  services  rendered  by  the  Plaintiffs  and  has  not  raised  any  objection   to   the   amount   paid   until   its   propriety   was   disputed   by   the   Auditor   General.   The  payment  of  the  fees  in  question  became  therefore  contractual  and  as  such  is  valid  even  if  it  goes  beyond  the  limit  prescribed  in  section  8,  Rule  130  of  the  Rules  of  Court.  

As   regards   the   question   of   procedure   raised   by  Appellants,   suffice   it   to   say   that   the   same   is  insubstantial,  considering  that  this  case  refers  not  to  a  money  claim  disapproved  by  the  Auditor  General   but   to   an   action   of   prohibition   the   purpose   of   which   is   to   restrain   the   officials  concerned   from  deducting   from  Plaintiffs’   salaries   the  amount  paid   to   them  as  stenographers’  fees.  This  case  does  not  come  under  section  1,  Rule  45  of  the  Rules  of  Court  relative  to  appeals  from  a  decision  of  the  Auditor  General.  

Wherefore,  the  decision  appealed  from  is  affirmed,  without  pronouncement  as  to  costs.  

Paras,  C.J.,  Bengzon,  Padilla,  Montemayor,  Labrador,  Concepcion,  Reyes,  J.  B.  L.,  Endencia  and  Felix,  JJ.,  concur.  

   

Republic of the Philippines SUPREME COURT

Manila

EN BANC

G.R. No. L-21484 November 29, 1969

THE AGRICULTURAL CREDIT and COOPERATIVE FINANCING ADMINISTRATION (ACCFA), petitioner, vs. ACCFA SUPERVISORS' ASSOCIATION, ACCFA WORKERS' ASSOCIATION, and THE COURT OF INDUSTRIAL RELATIONS, respondents.

Deogracias E. Lerma and Esmeraldo U. Guloy for petitioner Agricultural Credit and Cooperative Financing Administration. Office of the Agrarian Counsel, Department of Justice for petitioner Agricultural Credit Administration J. C. Espinas and Associates for respendents Confederation of Unions in Government Corporations Offices, et al. Mariano B. Tuason for respondent Court of Industrial Relations.

MAKALINTAL, J.:

These are two separate appeals by certiorari from the decision dated March 25, 1963 (G.R. No. L-21484) and the order dated May 21, 1964 (G.R. No. L-23605) as affirmed by the resolutions en banc, of the Court of Industrial Relations, in Cases Nos. 3450-ULP and 1327-MC, respectively. The parties, except the Confederation of Unions in Government Corporations and Offices (CUGCO), being practically the same and the principal issues involved related, only one decision is now rendered in these two cases.

The Agricultural Credit and Cooperative Financing Administration (ACCFA) was a government agency created under Republic Act No. 821, as amended. Its administrative machinery was reorganized and its name changed to Agricultural Credit Administration (ACA) under the Land Reform Code (Republic Act No. 3844). On the other hand, the ACCFA Supervisors' Association (ASA) and the ACCFA Workers' Association (AWA), hereinafter referred to as the Unions, are labor organizations composed of the supervisors and the rank-and-file employees, respectively, in the ACCFA (now ACA).

G.R. No. L-21484

On September 4, 1961 a collective bargaining agreement, which was to be effective for a period of one (1) year from July 1, 1961, was entered into by and between the Unions and the ACCFA. A few months thereafter, the Unions started protesting against alleged violations and non-implementation of said agreement. Finally, on October 25, 1962 the Unions declared a strike, which was ended when the strikers voluntarily returned to work on November 26, 1962.

On October 30, 1962 the Unions, together with its mother union, the Confederation of Unions in Government Corporations and Offices (CUGCO), filed a complaint with the Court of Industrial Relations against the ACCFA (Case No. 3450-ULP) for having allegedly committed acts of unfair labor practice, namely: violation of the collective bargaining agreement in order to discourage the members of the Unions in the exercise of their right to self-organization, discrimination against said members in the matter of promotions, and refusal to bargain. The ACCFA denied the charges and interposed as affirmative and special defenses lack of jurisdiction of the CIR over the case, illegality of the bargaining contract, expiration of said contract and lack of approval by the office of the President of the fringe benefits provided for therein. Brushing aside the foregoing defenses, the CIR in its decision dated March 25, 1963 ordered the ACCFA:

1. To cease and desist from committing further acts tending to discourage the members of complainant unions in the exercise of their right to self-organization;

2. To comply with and implement the provision of the collective bargaining contract executed on September 4, 1961, including the payment of P30.00 a month living allowance;

3. To bargain in good faith and expeditiously with the herein complainants.

The ACCFA moved to reconsider but was turned down in a resolution dated April 25, 1963 of the CIR en banc. Thereupon it brought this appeal by certiorari.

The ACCFA raises the following issues in its petition, to wit:

1. Whether or not the respondent court has jurisdiction over this case, which in turn depends on whether or not ACCFA exercised governmental or proprietary functions.

2. Whether or not the collective bargaining agreement between the petitioner and the respondent union is valid; if valid, whether or not it has already lapsed; and if not, whether or not its (sic) fringe benefits are already enforceable.

3. Whether or not there is a legal and/or factual basis for the finding of the respondent court that the petitioner had committed acts of unfair labor practice.

4. Whether or not it is within the competence of the court to enforce the collective bargaining agreement between the petitioner and the respondent unions, the same having already expired.

G.R. No. L-23605

During the pendency of the above mentioned case (G.R. No. L-21484), specifically on August 8, 1963, the President of the Philippines signed into law the Agricultural Land Reform Code (Republic Act No. 3844), which among other things required the reorganization of the administrative machinery of the Agricultural Credit and Cooperative Financing Administration (ACCFA) and changed its name to Agricultural Credit Administration (ACA). On March 17, 1964 the ACCFA Supervisors' Association and the ACCFA Workers' Association filed a petition for certification election with the Court of Industrial Relations (Case No. 1327-MC) praying that they be certified as the exclusive bargaining agents for the supervisors and rank-and-file employees, respectively, in the ACA. The trial Court in its order dated March 30, 1964 directed the Manager or Officer-in-Charge of the ACA to allow the posting of said order "for the information of all employees and workers thereof," and to answer the petition. In compliance therewith, the ACA, while admitting most of the allegations in the petition, denied that the Unions represented the majority of the supervisors and rank-and-file workers, respectively, in the ACA. It further alleged that the petition was premature, that the ACA was not the proper party to be notified and to answer the petition, and that the employees and supervisors could not lawfully become members of the Unions, nor be represented by them. However, in a joint manifestation of the Unions dated May 7, 1964, with the conformity of the ACA Administrator and of the Agrarian Counsel in his capacity as such and as counsel for the National Land Reform Council, it was agreed "that the union petitioners in this case represent the majority of the employees in their respective bargaining units" and that only the legal issues raised would be submitted for the resolution of the trial Court.

Finding the remaining grounds for ACA's opposition to the petition to be without merit, the trial Court in its order dated May 21, 1964 certified "the ACCFA Workers' Association and the ACCFA Supervisors' Association as the sole and exclusive bargaining representatives of the rank-and-file employees and supervisors, respectively, of the Agricultural Credit Administration." Said order was affirmed by the CIR en banc in its resolution dated August 24, 1964.

On October 2, 1964 the ACA filed in this Court a petition for certiorari with urgent motion to stay the CIR order of May 21, 1964. In a resolution dated October 6, 1964, this Court dismissed the petition for "lack of adequate allegations," but the dismissal was later reconsidered when the ACA complied with the formal requirement stated in said resolution. As prayed for, this Court ordered the CIR to stay the execution of its order of May 21, 1964.

In this appeal, the ACA in effect challenges the jurisdiction of the CIR to entertain the petition of the Unions for certification election on the ground that it (ACA) is engaged in governmental functions. The Unions join the issue on this single point, contending that the ACA forms proprietary functions.

Under Section 3 of the Agricultural Land Reform Code the ACA was established, among other governmental agencies,1 to extend credit and similar assistance to agriculture, in pursuance of the policy enunciated in Section 2 as follows:

SEC. 2. Declaration of Policy. — It is the policy of the State:

(1) To establish owner-cultivatorships and the economic family-size farm as the basis of Philippine agriculture and, as a consequence, divert landlord capital in agriculture to industrial development;

(2) To achieve a dignified existence for the small farmers free from pernicious institutional restraints and practices;

(3) To create a truly viable social and economic structure in agriculture conducive to greater productivity and higher farm incomes;

(4) To apply all labor laws equally and without discrimination to both industrial and agricultural wage earners;

(5) To provide a more vigorous and systematic land resettlement program and public land distribution; and

(6) To make the small farmers more independent, self-reliant and responsible citizens, and a source of genuine strength in our democratic society.

The implementation of the policy thus enunciated, insofar as the role of the ACA therein is concerned, is spelled out in Sections 110 to 118, inclusive, of the Land Reform Code. Section 110 provides that "the administrative machinery of the ACCFA shall be reorganized to enable it to align its activities with the requirements and objective of this Code and shall be known as the Agricultural Credit Administration." Under Section 112 the sum of P150,000,000 was appropriated out of national funds to finance the additional credit functions of the ACA as a result of the land reform program laid down in the Code. Section 103 grants the ACA the privilege of rediscounting with the Central Bank, the Development

Bank of the Philippines and the Philippine National Bank. Section 105 directs the loaning activities of the ACA "to stimulate the development of farmers' cooperatives," including those "relating to the production and marketing of agricultural products and those formed to manage and/or own, on a cooperative basis, services and facilities, such as irrigation and transport systems, established to support production and/or marketing of agricultural products." Section 106 deals with the extension by ACA of credit to small farmers in order to stimulate agricultural production. Sections 107 to 112 lay down certain guidelines to be followed in connection with the granting of loans, such as security, interest and supervision of credit. Sections 113 to 118, inclusive, invest the ACA with certain rights and powers not accorded to non-governmental entities, thus:

SEC. 113. Auditing of Operations. — For the effective supervision of farmers' cooperatives, the head of the Agricultural Credit Administration shall have the power to audit their operations, records and books of account and to issue subpoena and subpoena duces tecum to compel the attendance of witnesses and the production of books, documents and records in the conduct of such audit or of any inquiry into their affairs. Any person who, without lawful cause, fails to obey such subpoena or subpoena duces tecum shall, upon application of the head of Agricultural Credit Administration with the proper court, be liable to punishment for contempt in the manner provided by law and if he is an officer of the Association, to suspension or removal from office.

SEC. 114. Prosecution of officials. — The Agricultural Credit Administration, through the appropriate provincial or city fiscal, shall have the power to file and prosecute any and all actions which it may have against any and all officials or employees of farmers' cooperatives arising from misfeasance or malfeasance in office.

SEC. 115. Free Notarial Service. — Any justice of the peace, in his capacity as notary ex-officio, shall render service free of charge to any person applying for a loan under this Code either in administering the oath or in the acknowledgment of instruments relating to such loan.

SEC. 116. Free Registration of Deeds. — Any register of deeds shall accept for registration, free of charge any instrument relative to a loan made under this Code.

SEC. 117. Writing-off Unsecured and Outstanding Loans. — Subject to the approval of the President upon recommendation of the Auditor General, the Agricultural Credit Administration may write-off from its books, unsecured and outstanding loans and accounts receivable which may become uncollectible by reason of the death or disappearance of the debtor, should there be no visible means of collecting the same in the foreseeable future, or where the debtor has been verified to have no income or property whatsoever with which to effect payment. In all cases, the writing-off shall be after five years from the date the debtor defaults.

SEC. 118. Exemption from Duties, Taxes and Levies. — The Agricultural Credit Administration is hereby exempted from the payment of all duties, taxes, levies, and fees, including docket and sheriff's fees, of whatever nature or kind, in the performance of its functions and in the exercise of its powers hereunder.

The power to audit the operations of farmers' cooperatives and otherwise inquire into their affairs, as given by Section 113, is in the nature of the visitorial power of the sovereign,

which only a government agency specially delegated to do so by the Congress may legally exercise.

On March 19, 1964 Executive Order No. 75 was promulgated. It is entitled: "Rendering in Full Force and Effect the Plan of Reorganization Proposed by the Special Committee on Reorganization of Agencies for Land Reform for the Administrative Machinery of the Agricultural Land Reform Code," and contains the following pertinent provisions:

Section 3. The Land Reform Project Administration2 shall be considered a single organization and the personnel complement of the member agencies including the legal officers of the Office of the Agrarian Counsel which shall provide legal services to the LRPA shall be regarded as one personnel pool from which the requirements of the operations shall be drawn and subject only to the civil service laws, rules and regulations, persons from one agency may be freely assigned to positions in another agency within the LRPA when the interest of the service so demands.

Section 4. The Land Reform Project Administration shall be considered as one organization with respect to the standardization of job descriptions position classification and wage and salary structures to the end that positions involving the same or equivalent qualifications and equal responsibilities and effort shall have the same remuneration.

Section 5. The Civil Service laws, rules and regulations with respect to promotions, particularly in the consideration of person next in rank, shall be made applicable to the Land Reform Project Administration as a single agency so that qualified individuals in one member agency must be considered in considering promotion to higher positions in another member agency.

The implementation of the land reform program of the government according to Republic Act No. 3844 is most certainly a governmental, not a proprietary, function; and for that purpose Executive Order No. 75 has placed the ACA under the Land Reform Project Administration together with the other member agencies, the personnel complement of all of which are placed in one single pool and made available for assignment from one agency to another, subject only to Civil Service laws, rules and regulations, position classification and wage structures.

The appointing authority in respect of the officials and employees of the ACA is the President of the Philippines, as stated in a 1st indorsement by his office to the Chairman of the National Reform Council dated May 22, 1964, as follows:

Appointments of officials and employees of the National Land Reform Council and its agencies may be made only by the President, pursuant to the provisions of Section 79(D) of the Revised Administrative Code. In accordance with the policy and practice, such appointments should be prepared for the signature of the Executive Secretary, "By Authority ofthe President".3

When the Agricultural Reform Code was being considered by the Congress, the nature of the ACA was the subject of the following exposition on the Senate floor:

Senator Tolentino: . . . . "The ACA is not going to be a profit making institution. It is supposed to be a public service of the government to the lessees and farmer-owners of the lands that may be bought after expropriation from owners. It is the government

here that is the lender. The government should not exact a higher interest than what we are telling a private landowner now in his relation to his tenants if we give to their farmers a higher rate of interest . . . ." (pp. 17 & 18, Senate Journal No. 16, July 3, 1963)

The reason is obvious, to pinpoint responsibility for many losses in the government, in order to avoid irresponsible lending of government money — to pinpoint responsibility for many losses . . . .

Senator Manglapus: ". . . But assuming that hypothesis, that is the reason why we are appropriating P150,000,000.00 for the Agricultural Credit Administration which will go to intensified credit operations on the barrio level . . ." (p. 3, Senate Journal No. 7).

That it is the reason why we are providing for the expansion of the ACCFA and the weeding out of the cooperative activity of the ACCFA and turning this over to the Agricultural Productivity Commission, so that the Agricultural Credit Administration will concentrate entirely on the facilitation of credit on the barrio level with the massive support of 150 million provided by the government. . . . (pp. 4 & 5 of Senate Journal No. 7, July 3, 1963)

. . . But by releasing them from this situation, we feel that we are putting them in a much better condition than that in which they are found by providing them with a business-like way of obtaining credit, not depending on a paternalistic system but one which is business-like — that is to say, a government office, which on the barrio level will provide them that credit directly . . . . (p. 40, Senate Journal No. 7, July 3, 1963) (emphasis supplied).

The considerations set forth above militate quite strongly against the recognition of collective bargaining powers in the respondent Unions within the context of Republic Act No. 875, and hence against the grant of their basic petition for certification election as proper bargaining units. The ACA is a government office or agency engaged in governmental, not proprietary functions. These functions may not be strictly what President Wilson described as "constituent" (as distinguished from "ministrant"),4 such as those relating to the maintenance of peace and the prevention of crime, those regulating property and property rights, those relating to the administration of justice and the determination of political duties of citizens, and those relating to national defense and foreign relations. Under this traditional classification, such constituent functions are exercised by the State as attributes of sovereignty, and not merely to promote the welfare, progress and prosperity of the people — these letter functions being ministrant he exercise of which is optional on the part of the government.

The growing complexities of modern society, however, have rendered this traditional classification of the functions of government quite unrealistic, not to say obsolete. The areas which used to be left to private enterprise and initiative and which the government was called upon to enter optionally, and only "because it was better equipped to administer for the public welfare than is any private individual or group of individuals,"5 continue to lose their well-defined boundaries and to be absorbed within activities that the government must undertake in its sovereign capacity if it is to meet the increasing social challenges of the times. Here as almost everywhere else the tendency is undoubtedly towards a greater socialization of economic forces. Here of course this development was envisioned, indeed adopted as a national policy, by the Constitution itself in its declaration of principle concerning the promotion of social justice.

It was in furtherance of such policy that the Land Reform Code was enacted and the various agencies, the ACA among them, established to carry out its purposes. There can be no dispute as to the fact that the land reform program contemplated in the said Code is beyond the capabilities of any private enterprise to translate into reality. It is a purely governmental function, no less than, say, the establishment and maintenance of public schools and public hospitals. And when, aside from the governmental objectives of the ACA, geared as they are to the implementation of the land reform program of the State, the law itself declares that the ACA is a government office, with the formulation of policies, plans and programs vested no longer in a Board of Governors, as in the case of the ACCFA, but in the National Land Reform Council, itself a government instrumentality; and that its personnel are subject to Civil Service laws and to rules of standardization with respect to positions and salaries, any vestige of doubt as to the governmental character of its functions disappears.

In view of the foregoing premises, we hold that the respondent Unions are not entitled to the certification election sought in the Court below. Such certification is admittedly for purposes of bargaining in behalf of the employees with respect to terms and conditions of employment, including the right to strike as a coercive economic weapon, as in fact the said unions did strike in 1962 against the ACCFA (G.R. No. L-21824).6 This is contrary to Section 11 of Republic Act No. 875, which provides:

SEC. 11. Prohibition Against Strike in the Government — The terms and conditions of employment in the Government, including any political subdivision or instrumentality thereof, are governed by law and it is declared to be the policy of this Act that employees therein shall not strike for the purposes of securing changes or modification in their terms and conditions of employment. Such employees may belong to any labor organization which does not impose the obligation to strike or to join in strike: Provided, However, that this section shall apply only to employees employed in governmental functions of the Government including but not limited to governmental corporations.7

With the reorganization of the ACCFA and its conversion into the ACA under the Land Reform Code and in view of our ruling as to the governmental character of the functions of the ACA, the decision of the respondent Court dated March 25, 1963, and the resolution en banc affirming it, in the unfair labor practice case filed by the ACCFA, which decision is the subject of the present review in G. R. No. L-21484, has become moot and academic, particularly insofar as the order to bargain collectively with the respondent Unions is concerned.

What remains to be resolved is the question of fringe benefits provided for in the collective bargaining contract of September 4, 1961. The position of the ACCFA in this regard is that the said fringe benefits have not become enforceable because the condition that they should first be approved by the Office of the President has not been complied with. The Unions, on the other hand, contend that no such condition existed in the bargaining contract, and the respondent Court upheld this contention in its decision.

It is to be listed that under Section 3, Article XIV, of the agreement, the same "shall not become effective unless and until the same is duly ratified by the Board of Governors of the Administration." Such approval was given even before the formal execution of the agreement, by virtue of "Resolution No. 67, Regular Meeting No. 7, FY 1960-61, held on August 17, 1961," but with the proviso that "the fringe benefits contained therein shall take effect only if approved by the office of the President." The condition is, therefore, deemed to be incorporated into the agreement by reference.

On October 23, 1962 the Office of the President, in a letter signed by the Executive Secretary, expressed its approval of the bargaining contract "provided the salaries and benefits therein fixed are not in conflict with applicable laws and regulations, are believed to be reasonable considering the exigencies of the service and the welfare of the employees, and are well within the financial ability of the particular corporation to bear."

On July 1, 1963 the ACCFA management and the Unions entered into an agreement for the implementation of the decision of the respondent Court concerning the fringe benefits, thus:

In the meantime, only Cost of Living Adjustment, Longevity Pay, and Night Differential Benefits accruing from July 1, 1961 to June 30, 1963 shall be paid to all employees entitled thereto, in the following manner:

A) The sum of P180,000 shall be set aside for the payment of:

1) Night differential benefits for Security Guards.

2) Cost of Living Adjustment and Longevity Pay.

3) The unpaid balance due employees on Item A (1) and (2) this paragraph shall be paid in monthly installments as finances permit but not beyond December 20, 1963.

3. All benefits accruing after July 1, 1963, shall be allowed to accumulate but payable only after all benefits accruing up to June 30, 1963, as per CIR decision hereinabove referred to shall have been settled in full; provided, however, that commencing July 1, 1963 and for a period of only two (2) months thereafter (during which period the ACCFA and the Unions shall negotiate a new Collective Bargaining Agreement) the provisions of the September 4, 1961 Collective Bargaining Agreement shall be temporarily suspended, except as to Cost of Living Adjustment and "political" or non-economic privileges and benefits thereunder.

On July 24, 1963 the ACCFA Board of Governors ratified the agreement thus entered into, pursuant to the provision thereof requiring such ratification, but with the express qualification that the same was "without prejudice to the pending appeal in the Supreme Court . . . in Case No. 3450-ULP." The payment of the fringe benefits agreed upon, to our mind, shows that the same were within the financial capability of the ACCFA then, and hence justifies the conclusion that this particular condition imposed by the Office of the President in its approval of the bargaining contract was satisfied.

We hold, therefore, that insofar as the fringe benefits already paid are concerned, there is no reason to set aside the decision of the respondent Court, but that since the respondent Unions have no right to the certification election sought by them nor, consequently, to bargain collectively with the petitioner, no further fringe benefits may be demanded on the basis of any collective bargaining agreement.

The decisions and orders appealed from are set aside and/or modified in accordance with the foregoing pronouncements. No costs.

Concepcion, C.J., Reyes, J.B.L., Dizon, Sanchez, Castro, Teehankee and Barredo, JJ., concur. Zaldivar, J., concurs in the result.

Separate Opinions

FERNANDO, J., concurring:

The decision reached by this Court so ably given expression in the opinion of Justice Makalintal, characterized with vigor, clarity and precision, represents what for me is a clear tendency not to be necessarily bound by our previous pronouncements on what activities partake of a nature that is governmental.1 Of even greater significance, there is a definite rejection of the "constituent-ministrant" criterion of governmental functions, followed in Bacani v. National Coconut Corporation.2 That indeed is cause for gratification. For me at least, there is again full adherence to the basic philosophy of the Constitution as to the extensive and vast power lodged in our government to cope with the social and economic problems that even now sorely beset us. There is therefore full concurrence on my part to the opinion of the Court, distinguished by its high quality of juristic craftsmanship. I feel however that the matter is of such vital importance that a separate concurring opinion is not inappropriate. It will also serve to give expression to my view, which is that of the Court likewise, that our decision today does not pass upon the rights of labor employed in instrumentalities of the state discharging governmental functions.

1. In the above Bacani decision, governmental functions are classified into constituent and ministrant. "The former are those which constitute the very bonds of society and are compulsory in nature; the latter are those that are undertaken only by way of advancing the general interests of society, and are merely optional. President Wilson enumerates the constituent functions as follows: '(1) The keeping of order and providing for the protection of persons and property from violence and robbery. (2) The fixing of the legal relations between man and wife and between parents and children. (3) The regulation of the holding, transmission, and interchange of property, and the determination of its liabilities for debt or for crime. (4) The determination of contract rights between individuals. (5) The definition and punishment of crime. (6) The administration of justice in civil cases. (7) The determination of the political duties, privileges, and relations of citizens. (8) Dealings of the state with foreign powers: the preservation of the state from external danger or encroachment and the advancement of its international interests.' "3

The ministrant functions were then enumerated, followed by a statement of the basis that would justify engaging in such activities. Thus: "The most important of the ministrant functions are: public works, public education, public charity, health and safety regulations, and regulations of trade and industry. The principles determining whether or not a government shall exercise certain of these optional functions are: (1) that a government should do for the public welfare those things which private capital would not naturally undertake and (2) that a government should do these things which by its very nature it is better equipped to administer for the public welfare than is any private individual or group of individuals."4

Reference is made in the Bacani decision to the first of the many publications of Justice Malcolm on the Philippine government, which appeared in 1916,5 adopting the formulation of the then Professor, later President, Woodrow Wilson of the United States, in a textbook on political science the first edition of which was published in 1898. The Wilson classification reflected the primacy of the dominant laissez-faire concept carried into the sphere of government.

A most spirited defense of such a view was given by former President Hadley of Yale in a series of three lectures delivered at Oxford University in 1914. According to President Hadley: "I shall begin with a proposition which may sound somewhat startling, but which I believe to be literally true. The whole American political and social system is based on industrial property right, far more completely than has ever been the case in any European country. In every nation of Europe there has been a certain amount of traditional opposition between the government and the industrial classes. In the United States no such tradition exists. In the public law of European communities industrial freeholding is a comparatively recent development. In the United States, on the contrary, industrial freeholding is the foundation on which the whole social order has been established and built up."6

The view is widely accepted that such a fundamental postulate did influence American court decisions on constitutional law. As was explicitly stated by Justice Cardozo, speaking of that era: "Laissez-faire was not only a counsel of caution which statesmen would do well to heed. It was a categorical imperative which statesmen as well as judges, must obey."7 For a long time, legislation tending to reduce economic inequality foundered on the rock that was the due process clause, enshrining as it did the liberty of contract. To cite only one instance, the limitation of employment in bakeries to sixty hours a week and ten hours a day under a New York statute was stricken down for being tainted with a due process objection in Lochner v. New York.8 It provoked one of the most vigorous dissents of Justice Holmes, who was opposed to the view that the United States Constitution did embodylaissez-faire. Thus: "General propositions do not decide concrete cases. The decision will depend on a judgment or intuition more subtle than any articulate major premise. But I think that the proposition just stated, if it is accepted, will carry us far toward the end. Every opinion tends to become a law. I think that the word 'liberty,' in the 14th Amendment, is perverted when it is held to prevent the natural outcome of a dominant opinion, unless it can be said that a rational and fair man necessarily would admit that the statute proposed would infringe fundamental principles as they have been understood by the traditions of our people and our law. It does not need research to show that no such sweeping condemnation can be passed upon the statute before us. A reasonable man might think it a proper measure on the score of health. Men whom I certainly could not pronounce unreasonable would uphold it as a first installment of a general regulation of the hours of work. Whether in the latter aspect it would be open to the charge of inequality I think it unnecessary to discuss." It was not until 1908, in Muller v. Oregon,9 that the American Supreme Court held valid a ten-hour maximum for women workers in laundries and not until 1917 in Bunting v. Oregon10 that such a regulatory ten-hour law applied to men and women passed the constitutional test.

Similarly, state legislation fixing minimum wages was deemed offensive to the due process clause in a 1923 decision in Adkins v. Children's Hospital.11 Only in 1937, in the leading case of West Coast Hotel v. Parrish,12 was the Adkins case overruled and a minimum wage law New York statute upheld. The same unsympathetic attitude arising from the laissez-faire concept was manifest in decisions during such period, there being the finely-spun distinctions in the Wolff Packing Co. v. Court of Industrial Relations13 decision, as to when certain businesses could be classified as affected with public interest to justify state regulation as to prices. After eleven years, in 1934, in Nebbia v. New York,14 the air of unreality was swept away by this explicit pronouncement from the United States Supreme Court: "The phrase 'affected with a public interest' can, in the nature of things, mean no more than that an industry, for adequate reason, is subject to control for the public good."

It is thus apparent that until the administration of President Roosevelt, the laissez-faire principle resulted in the contraction of the sphere where governmental entry was permissible. The object was to protect property even if thereby the needs of the general public would be left unsatisfied. This was emphatically put forth in a work of former Attorney

General, later Justice, Jackson, citing an opinion of Judge Van Orsdel. Thus: "It should be remembered that of the three fundamental principles which underlie government, and for which government exists, the protection of life, liberty, and property, the chief of these is property . . . ."15 The above excerpt from Judge Van Orsdel forms part of his opinion in Children's Hospital v. Adkins, when decided by the Circuit Court of Appeals.16

Nonetheless, the social and economic forces at work in the United States to which the new deal administration of President Roosevelt was most responsive did occasion, as of 1937, greater receptivity by the American Supreme Court to a philosophy less rigid in its obeisance to property rights. Earlier legislation deemed offensive to thelaissez-faire concept had met a dismal fate. Their nullity during his first term could, more often than not, be expected.17

As a matter of fact, even earlier, in 1935, Professor Coker of Yale, speaking as a historian, could already discern a contrary drift. Even then he could assert that the range of governmental activity in the United States had indeed expanded. According to him: "Thus both liberals and conservatives approve wide and varied governmental intervention; the latter condemning it, it is true, when the former propose it, but endorsing it, after it has become a fixed part of the status quo, as so beneficial in its effects that no more of it is needed. Our history for the last half-century shows that each important governmental intervention we have adopted has been called socialistic or communistic by contemporary conservatives, and has later been approved by equally conservative men who now accept it both for its proved benefits and for the worthy traditions it has come to represent. Both liberal and conservative supporters of our large-scale business under private ownership advocate or concede the amounts and kinds of governmental limitation and aid which they regard as necessary to make the system work efficiently and humanely. Sooner or later, they are willing to have government intervene for the purpose of preventing the system from being too oppressive to the masses of the people, protecting it from its self-destructive errors, and coming to its help in other ways when it appears not to be able to take care of itself."18

At any rate, by 1943, the United States was reconciled to laissez-faire having lost its dominance. In the language of Justice Jackson in the leading case of West Virginia State Board of Education v. Barnette:19 "We must transplant these rights to a soil in which the laissez-faire concept or principle of non-interference has withered at least as to economic affairs, and social advancements are increasingly sought through closer integration of society and through expanded and strengthened governmental controls."

2. The influence exerted by American constitutional doctrines unavoidable when the Philippines was still under American rule notwithstanding, an influence that has not altogether vanished even after independence, thelaissez-faire principle never found full acceptance in this jurisdiction, even during the period of its full flowering in the United States. Moreover, to erase any doubts, the Constitutional Convention saw to it that our fundamental law embodies a policy of the responsibility thrust on government to cope with social and economic problems and an earnest and sincere commitment to the promotion of the general welfare through state action. It would thus follow that the force of any legal objection to regulatory measures adversely affecting property rights or to statutes organizing public corporations that may engage in competition with private enterprise has been blunted. Unless there be a clear showing of any invasion of rights guaranteed by the Constitution, their validity is a foregone conclusion. No fear need be entertained that thereby spheres hitherto deemed outside government domain have been enchroached upon. With our explicit disavowal of the "constituent-ministrant" test, the ghost of the laissez-faire concept no longer stalks the juridical stage.

As early as 1919, in the leading case of Rubi V. Provincial Board of Mindoro,20 Justice Malcolm already had occasion to affirm: "The doctrines of laissez-faire and of unrestricted freedom of the individual, as axioms of economic and political theory, are of the past. The modern period has shown a widespread belief in the amplest possible demonstration of governmental activity. The Courts unfortunately have sometimes seemed to trail after the other two branches of the Government in this progressive march."

It was to be expected then that when he spoke for the Court in Government of the Philippine Islands v. Springer,21 a 1927 decision, he found nothing objectionable in the government itself organizing and investing public funds in such corporations as the National Coal Co., the Phil. National Bank, the National Petroleum Co., the National Development Co., the National Cement Co. and the National Iron Co. There was not even a hint that thereby the laissez-faire concept was not honored at all. It is true that Justice Malcolm concurred with the majority in People v. Pomar,22 a 1924 opinion, which held invalid under the due process clause a provision providing for maternity leave with pay thirty days before and thirty days after confinement. It could be that he had no other choice as the Philippines was then under the United States, and only recently the year before, the above-cited case of Adkins v. Children's Hospital,23 in line with the laissez-faire principle, did hold that a statute providing for minimum wages was constitutionally infirm on the same ground.

Our constitution which took effect in 1935, upon the inauguration of the Commonwealth of the Philippines, erased whatever doubts there might be on that score. Its philosophy is antithetical to the laissez-faire concept. Delegate, later President, Manuel Roxas, one of the leading members of the Constitutional Convention, in answer precisely to an objection of Delegate Jose Reyes of Sorsogon, who noted the "vast extensions in the sphere of governmental functions" and the "almost unlimited power to interfere in the affairs of industry and agriculture as well as to compete with existing business" as "reflections of the fascination exerted by [the then] current tendencies" in other jurisdictions,24 spoke thus: "My answer is that this constitution has a definite and well defined philosophy, not only political but social and economic. A constitution that in 1776 or in 1789 was sufficient in the United States, considering the problems they had at that time, may not now be sufficient with the growing and ever-widening complexities of social and economic problems and relations. If the United States of America were to call a constitutional convention today to draft a constitution for the United States, does any one doubt that in the provisions of that constitution there will be found definite declarations of policy as to economic tendencies; that there will be matters which are necessary in accordance with the experience of the American people during these years when vast organizations of capital and trade have succeeded to a certain degree to control the life and destiny of the American people? If in this constitution the gentleman will find declarations of economic policy, they are there because they are necessary to safeguard the interests and welfare of the Filipino people because we believe that the days have come when in self-defense, a nation may provide in its constitution those safeguards, the patrimony, the freedom to grow, the freedom to develop national aspirations and national interests, not to be hampered by the artificial boundaries which a constitutional provision automatically imposes."25

Delegate Roxas continued further: "The government is the creature of the people and the government exercises its powers and functions in accordance with the will and purposes of the people. That is the first principle, the most important one underlying this document. Second, the government established in this document is, in its form, in our opinion, the most adapted to prevailing conditions, circumstances and the political outlook of the Filipino people. Rizal said, 'Every people has the kind of government that they deserve.' That is just another form of expressing the principle in politics enunciated by the French philosophers when they said: 'Every people has the right to establish the form of government which they

believe is most conducive to their welfare and their liberty.' Why have we preferred the government that is established in this draft? Because it is the government with which we are familiar. It is the form of government fundamentally such as it exists today; because it is the only kind of government that our people understand; it is the kind of government we have found to be in consonance with our experience, with the necessary modification, capable of permitting a fair play of social forces and allowing the people to conduct the affairs of that government."26

One of the most prominent delegates, a leading intellectual, former President Rafael Palma of the University of the Philippines, stressed as a fundamental principle in the draft of the Constitution the limitation on the right to property. He pointed out that the then prevailing view allowed the accumulation of wealth in one family down to the last remote descendant, resulting in a grave disequilibrium and bringing in its wake extreme misery side by side with conspicuous luxury. He did invite attention to the few millionaires at one extreme with the vast masses of Filipinos deprived of the necessities of life at the other. He asked the Convention whether the Filipino people could long remain indifferent to such a deplorable situation. For him to speak of a democracy under such circumstances would be nothing but an illusion. He would thus emphasize the urgent need to remedy the grave social injustice that had produced such widespread impoverishment, thus recognizing the vital role of government in this sphere.27

Another delegate, Tomas Confesor of Iloilo, was quite emphatic in his assertion for the need of a social justice provision which is a departure from the laissez-faire principle. Thus: "Take the case of the tenancy system in the Philippines. You have a tenant. There are hundreds of thousands of tenants working day in and day out, cultivating the fields of their landlords. He puts all his time, all his energy, the labor and the assistance of his wife and children, in cultivating a piece of ground for his landlord but when the time comes for the partition of the products of his toil what happens? If he produces 25 cavanes of rice, he gets only perhaps five and the twenty goes to the landlord. Now can he go to court? Has he a chance to go to court in order to secure his just share of the products of his toil? No. Under our present regime of law, under our present regime of justice, you do not give that to the poor tenant. Gentlemen, you go to the Cagayan Valley and see the condition under which those poor farmers are being exploited day in and day out. Can they go to court under our present regime of justice, of liberty, or democracy? The other day, workmen were shot by the police just because they wanted to increase or they desired that their wages be increased from thirty centavos a day to forty or fifty centavos. Is it necessary to spill human blood just to secure an increase of ten centavos in the daily wages of an ordinary laborer? And yet under our present regime of social justice, liberty and democracy, these things are happening; these things, I say, are happening. Are those people getting any justice? No. They cannot get justice now from our courts. For this reason, I say it is necessary that we insert 'social justice' here and that social justice must be established by law. Proper legal provisions, proper legal facilities must be provided in order that there be a regime not of justice alone, because we have that now and we are seeing the oppression arising from such a regime. Consequently, we must emphasize the term 'social justice'."28

Delegate Ventenilla of Pangasinan reflected the attitude of the Convention as to why laissez-faire was no longer acceptable. After speaking of times having changed, he proceeded: "Since then new problems have arisen. The spiritual mission of government has descended to the level of the material. Then its function was primarily to soothe the aching spirit. Now, it appears, it must also appease hunger. Now that we may read history backwards, we know for instance, that the old theory of 'laissez-faire' has degenerated into 'big business affairs' which are gradually devouring the rights of the people — the same rights intended to be guarded and protected by the system of constitutional guaranties. Oh, if the Fathers were

now alive to see the changes that the centuries have wrought in our life! They might contemplate the sad spectacle of organized exploitation greedily devouring the previous rights of the individual. They might also behold the gradual disintegration of society, the fast disappearance of the bourgeois — the middle class, the backbone of the nation — and the consequent drifting of the classes toward the opposite extremes — the very rich and the very poor."29

Shortly after the establishment of the Commonwealth, the then Justice Jose P. Laurel, himself one of the foremost delegates of the Constitutional Convention, in a concurring opinion, later quoted with approval in the leading case of Antamok Goldfields Mining Co. v. Court of Industrial Relations,30 decided in 1940, explained clearly the need for the repudiation of the laissez-faire doctrine. Thus: "It should be observed at the outset that our Constitution was adopted in the midst of surging unrest and dissatisfaction resulting from economic and social distress which was threatening the stability of governments the world over. Alive to the social and economic forces at work, the framers of our Constitution boldly met the problems and difficulties which faced them and endeavored to crystallize, with more or less fidelity, the political, social and economic propositions of their age, and this they did, with the consciousness that the political and philosophical aphorism of their generation will, in the language of a great jurist, 'be doubted by the next and perhaps entirely discarded by the third.' . . . Embodying the spirit of the present epoch, general provisions were inserted in the Constitution which are intended to bring about the needed social and economic equilibrium between component elements of society through the application of what may be termed as the justitia communis advocated by Grotius and Leibnits many years ago to be secured through the counterbalancing of economic and social forces and opportunities which should be regulated, if not controlled, by the State or placed, as it were, in custodia societatis. 'The promotion of social justice to insure the well-being and economic security of all the people' was thus inserted as vital principle in our Constitution. ... ."31 In the course of such concurring opinion and after noting the changes that have taken place stressing that the policy of laissez-faire had indeed given way to the assumption by the government of the right to intervene although qualified by the phrase "to some extent", he made clear that the doctrine in People v. Pomar no longer retain, "its virtuality as a living principle."32

3. It must be made clear that the objection to the "constituent-ministrant" classification of governmental functions is not to its formulation as such. From the standpoint of law as logic, it is not without merit. It has neatness and symmetry. There are hardly any loose ends. It has the virtue of clarity. It may be said in its favor likewise that it reflects all-too-faithfully the laissez-faire notion that government cannot extend its operation outside the maintenance of peace and order, protection against external security, and the administration of justice, with private rights, especially so in the case of property, being safeguarded and a hint that the general welfare is not to be entirely ignored.

It must not be lost sight of though that logic and jural symmetry while undoubtedly desirable are not the prime consideration. This is especially so in the field of public law. What was said by Holmes, almost nine decades ago, carry greater conviction now. "The life of the law has not been logic; it has been experience. The felt necessities of the time, the prevalent moral and political theories, intuitions of public policy avowed or unconscious, even the prejudices which judges share with their fellow-men, have had a good deal more to do than the syllogism in determining the rules by which men should be governed."33 Then too, there was the warning of Geny cited by Cardozo that undue stress or logic may result in confining the entire system of positive law, "within a limited number of logical categories, predetermined in essence, immovable in basis, governed by inflexible dogmas," thus rendering it incapable of responding to the ever varied and changing exigencies of life.34,

It is cause enough for concern if the objection to the Bacani decision were to be premised on the score alone that perhaps there was fidelity to the requirements of logic and jural symmetry carried to excess. What appears to me much more deplorable is that it did fail to recognize that there was a repudiation of the laissez-faire concept in the Constitution. As was set forth in the preceding pages, the Constitution is distinguished precisely by a contrary philosophy. The regime of liberty if provided for, with the realization that under the then prevalent social and economic conditions, it may be attained only through a government with its sphere of activity ranging far and wide, not excluding matters hitherto left to the operation of free enterprise. As rightfully stressed in our decision today in line with what was earlier expressed by Justice Laurel, the government that we have established has as a fundamental principle the promotion of social justice.35 The same jurist gave it a comprehensive and enduring definition as the "promotion of the welfare of all the people, the adoption by the government of measures calculated to insure economic stability of all the component elements of society, through the maintenance of a proper economic and social equilibrium in the interrelations of the members of the community, constitutionally, through the adoption of measures legally justifiable, or extra-constitutionally, through the exercise of powers underlying the existence of all governments in the time honored principle of salus populi estsuprema lex."36

There is thus from the same distinguished pen, this time writing for the Court, a reiteration of the view of thelaissez-faire doctrine being repugnant to the fundamental law. It must be added though that the reference to extra-constitutional measures being allowable must be understood in the sense that there is no infringement of specific constitutional guarantees. Otherwise, the judiciary will be hard put to sustain their validity if challenged in an appropriate legal proceeding.

The regime of liberty contemplated in the Constitution with social justice as a fundamental principle to reinforce the pledge in the preamble of promoting the general welfare reflects traditional concepts of a democratic policy infused with an awareness of the vital and pressing need for the government to assume a much more active and vigorous role in the conduct of public affairs. The framers of our fundamental law were as one in their strongly-held belief that thereby the grave and serious infirmity then confronting our body-politic, on the whole still with us now, of great inequality of wealth and mass poverty, with the great bulk of our people ill-clad, ill-housed, ill-fed, could be remedied. Nothing else than communal effort, massive in extent and earnestly engaged in, would suffice.

To paraphrase Laski, with the necessary modification in line with such worthy constitutional ends, we look upon the state as an organization to promote the happiness of individuals, its authority as a power bound by subordination to that purpose, liberty while to be viewed negatively as absence of restraint impressed with a positive aspect as well to assure individual self-fulfillment in the attainment of which greater responsibility is thrust on government; and rights as boundary marks defining areas outside its domain.37 From which it would follow as Laski so aptly stated that it is the individual's "happiness and not its well-being [that is] the criterion by which its behavior [is] to be judged. His interests, and not its power, set the limits to the authority it [is] entitled to exercise."38 We have under such a test enlarged its field of competence. 4. With the decision reached by us today, the government is freed from the compulsion exerted by the Bacani doctrine of the "constituent-ministrant" test as a criterion for the type of activity in which it may engage. Its constricting effect is consigned to oblivion. No doubts or misgivings need assail us that governmental efforts to promote the public weal, whether through regulatory legislation of vast scope and amplitude or through the undertaking of business activities, would have to face a searching and rigorous scrutiny. It is clear that their legitimacy cannot be challenged on the ground alone of their being offensive to the implications of the laissez-faire concept. Unless there be a

repugnancy then to the limitations expressly set forth in the Constitution to protect individual rights, the government enjoys a much wider latitude of action as to the means it chooses to cope with grave social and economic problems that urgently press for solution. For me, at least, that is to manifest deference to the philosophy of our fundamental law. Hence my full concurrence, as announced at the outset.

5. The opinion of Justice Makalintal contains this footnote: "It must be stated, however, that we do not here decide the question — not at issue in this case — of whether or not a labor organization composed employees discharging governmental functions, which is allowed under the legal provision just quoted, provided such organization does not impose the obligation to strike or to join in strike, may petition for a certification election and compel the employer to bargain collectively with it for purposes other than to secure changes or conditions in the terms and conditions of employment."

With such an affirmation as to the scope of our decision there being no holding on the vexing question of the effects on the rights of labor in view of the conclusion reached that the function engaged in is governmental in character, I am in full agreement. The answer to such a vital query must await another day.

Footnotes

1 Land Authority, Land Bank, Agricultural Productivity Commission; Office of the Agrarian Counsel.

2 The Land Reform Project Administration is the organization through which the field operations of member agencies (of which the ACA is one) shall be undertaken by their respective personnel under a unified administration. (Section 2 of Article 1, Executive Order No. 75)

3 Section 79 (D) of the Revised Administrative Code provides in part: "The Department Head, upon the recommendation of the Chief of bureaus or office concerned, shall appoint all subordinate officers and employees whose appointment is not expressly vested by law in the President of the Philippines. . . . ."

4 Bacani vs. National Coconut Corporation, G.R. No. L-9657, Nov. 29, 1956, 53 O.G. p. 2800.

5 Malcolm, The Government of the Philippines, pp. 19-20; Bacani vs. National Coconut Corporation, supra.

6 It must be stated, however, that we do not here decide the question — not at issue in this case — of whether or not a labor organization composed of employees discharging governmental functions, which is allowed under the legal provision just quoted provided such organization does not impose the obligation to strike or to join in strike, may petition for a certification election and compel the employer to bargain collectively with it for purposes other than to secure changes or modifications in the terms and conditions of their employment. Withal, it may not be amiss to observe, albeit obiter, that the right to organize thus allowed would be meaningless unless there is a correlative right on the part of the organization to be recognized as the

proper representative of the employees and to bargain in their behalf in relation to matters outside the limitations imposed by the statute, such as those provided for in Section 28 (b) of Republic Act No. 2260, concerning complaints and grievances of the employees.

7 Reenacted in Sec. 28 (c) of the Civil Service Act of 1959, R.A. No. 2260.

FERNANDO, J., CONCURRING:

   

Republic of the Philippines SUPREME COURT

Manila

EN BANC

G.R. No. L-32052 July 25, 1975

PHILIPPINE VIRGINIA TOBACCO ADMINISTRATION, petitioner, vs. COURT OF INDUSTRIAL RELATIONS, REUEL ABRAHAM, MILAGROS ABUEG, AVELINO ACOSTA, CAROLINA ACOSTA, MARTIN AGSALUD, JOSEFINA AGUINALDO, GLORIA ALBANO, ANTONIO ALUNING, COSME ALVAREZ, ISABEL ALZATE, AURORA APUSEN, TOMAS ARCANGEL, LOURDES ARJONELLO, MANUEL AROMIN, DIONISIO ASISTIN, JOSE AURE, NICASIO AZNAR, EUGENIO AZURIN, CLARITA BACUGAN, PIO BALAGOT, HEREDIO BALMACEDA, ESTHER BANAAG, JOVENCIO BARBERO, MONICO BARBADILLO, HERNANDO BARROZO, FILIPINA BARROZO, REMEDIO BARTOLOME, ANGELINA BASCOS, JOSE BATALLA, ALMARIO BAUTISTA, EUGENIO BAUTISTA, JR., HERMALO BAUTISTA, JUANITO BAUTISTA, SEVERINO BARBANO, CAPPIA BARGONIA, ESMERALDA BERNARDEZ, RUBEN BERNARDEZ, ALFREDO BONGER, TOMAS BOQUIREN, ANGELINA BRAVO, VIRGINIA BRINGA, ALBERTO BUNEO, SIMEON CABANAYAN, LUCRECIA CACATIAN, LEONIDES CADAY, ANGELINA CADOTTE, IGNACIO CALAYCAY, PACIFICO CALUB, RUFINO CALUZA, CALVIN CAMBA, ALFREDO CAMPOSENO, BAGUILITA CANTO, ALFREDO CARRERA, PEDRO CASES, CRESCENTE CASIS, ERNESTO CASTANEDA, HERMINIO CASTILLO, JOSE CASTRO, LEONOR CASTRO, MADEO CASTRO, MARIA PINZON CASTRO, PABLO CATURA, RESTITUTO CESPADES, FLORA CHACON, EDMUNDO CORPUZ, ESTHER CRUZ, CELIA CUARESMA, AQUILINO DACAYO, DIONISIA DASALLA, SOCORRO DELFIN, ABELARDO DIAZ, ARTHUR DIAZ, CYNTHIA DIZON, MARCIA DIZON, ISABELO DOMINGO, HONORATA DOZA, CAROLINA DUAD, JUSTINIANO EPISTOLA, ROMEO ENCARNACION, PRIMITIVO ESCANO, ELSA ESPEJO, JUAN ESPEJO, RIZALINA ESQUILLO, YSMAEL FARINAS, LORNA FAVIS, DAN FERNANDEZ, JAIME FERNANDEZ, ALFREDO FERRER, MODESTO FERRER, JR., EUGENIO FLANDEZ, GUILLERMO FLORENDO, ALFREDO FLORES, DOMINGA FLORES, ROMEO

FLORES, LIGAYA FONTANILLA, MELCHOR GASMEN, LEILA GASMENA, CONSUELO GAROLAGA, ALFONSO GOROSPE, CESAR GOROSPE, RICARDO GOROSPE, JR., CARLITO GUZMAN, ERNESTO DE GUZMAN, THELMA DE GUZMAN, FELIX HERNANDEZ, SOLIVEN HERNANDO, FRANCISCO HIDALGO, LEONILO INES, SIXTO JAQUIES, TRINIDAD JAVIER, FERMIN LAGUA, GUALBERTO LAMBINO, ROMAN LANTING, OSCAR LAZO, ROSARIO LAZO, JOSEFINA DE LARA, AMBROSIO LAZOL, NALIE LIBATIQUE, LAMBERTO LLAMAS, ANTONIO LLANES, ROMULA LOPEZ, ADRIANO LORENZANA, ANTONIO MACARAEG, ILDEFONSO MAGAT, CECILIO MAGHANOY, ALFONSO MAGSANOC, AVELINA MALLARE, AUGUSTO MANALO, DOMINADOR MANASAN, BENITO MANECLANG, JR., TIRSO MANGUMAY, EVELIA MANZANO, HONORANTE MARIANO, DOMINGO MEDINA, MARTIN MENDOZA, PERFECTO MILANA, EMILIO MILLAN, GREGORIO MONEGAS, CONSOLACION NAVALTA, NOLI OCAMPO, VICENTE CLEGARIO, ELPIDIO PALMONES, ARACELI PANGALANGAN, ISIDORO PANLASIGUI, JR., ARTEMIO PARIS, JR., FEDERICO PAYUMO, JR., NELIA PAYUMO, BITUEN PAZ, FRANCISCO PENGSON, OSCAR PERALTA, PROCORRO PERALTA, RAMON PERALTA, MINDA PICHAY, MAURO PIMENTEL, PRUDENCIO PIMENTEL, LEOPOLDO PUNO, REYNALDO RABE, ROLANDO REA, CONSTANTINO REA, CECILIA RICO, CECILIO RILLORAZA, AURORA ROMAN, MERCEDES RUBIO, URSULA RUPISAN, OLIVIA SABADO, BERNARDO SACRAMENTO, LUZ SALVADOR, JOSE SAMSON, JR., ROMULA DE LOS SANTOS, ANTONIO SAYSON, JR., FLORANTE SERIL, MARIO SISON, RUDY SISON, PROCEDIO TABIN, LUCENA TABISULA, HANNIBAL TAJANO, ENRIQUE TIANGCO, JR., JUSTINIANO TOBIAS, NYMIA TOLENTINO, CONSTANTE TOLENTINO, TEODORO TOREBIO, FEDERICO TRINIDAD, JOVENCINTO TRINIDAD, LAZARO VALDEZ, LUDRALINA VALDEZ, MAXIMINA VALDEZ, FRANCISCO VELASCO, JR., ROSITA VELASCO, SEVERO VANTANILLA, VENANCIO VENTIGAN, FELICITAS VENUS, NIEVES DE VERA, ELISEO VERSOZA, SILVESTRE VILA, GLORIA VILLAMOR, ALEJANDRO VELLANUEVA, DAVID VILLANUEVA, CAROLINA VILLASENOR ORLANDO VILLASTIQUE, MAJELLA VILORIN, ROSARIO VILORIA, MAY VIRATA, FEDERICO VIRAY, MELBA YAMBAO, MARIO ZAMORA, AUTENOR ABUEG, SOTERO ACEDO, HONRADO ALBERTO, FELIPE ALIDO, VICENTE ANCHUELO, LIBERTAD APEROCHO, MARIANO BALBAGO, MARIO BALMACEDA, DAISY BICENIO, SYLVIA BUSTAMANTE, RAYMUNDO GEMERINO, LAZARO CAPURAS, ROGELIO CARUNGCONG, ZACARIAS CAYETANO, JR., LILY CHUA, ANDRES CRUZ, ARTURO CRUZ, BIENVENIDO ESTEBAN, PABLO JARETA, MANUEL JOSE, NESTORIA KINTANAR, CLEOPATRIA LAZEM. MELCHOR LAZO, JESUS LUNA, GASPAR MARINAS, CESAR MAULSON, MANUEL MEDINA, JESUS PLURAD, LAKAMBINI RAZON, GLORIA IBANEZ, JOSE SANTOS, ELEAZAR SQUI, JOSE TAMAYO, FELIPE TENORIO, SILVINO UMALI, VICENTE ZARA, SATURNINO GARCIA, WILLIAM GARCIA, NORMA GARINGARAO, ROSARIO ANTONIO, RUBEN BAUTISTA, QUIRINO PUESTO, NELIA M. GOMERI, OSCAR R. LANUZA, AURORA M. LINDAYA, GREGORIO MOGSINO, JACRM B. PAPA, GREGORIO R. RIEGO, TERESITA N. ROZUL, MAGTANGOL SAMALA, PORFIRIO AGOCOLIS, LEONARDO MONTE, HERMELINO PATI, ALFREDO PAYOYO, PURIFICACION ROJAS, ODANO TEANO, RICARDO SANTIAGO, and MARCELO MANGAHAS, respondents.

Gov't. Corp. Counsel Leopoldo M. Abellera, Trial Attorneys Manuel M. Lazaro and Vicente Constantine, Jr., for petitioner.

Renato B. Kare and Simeon C. Sato for private respondents.

FERNANDO, J.:

The principal issue that calls for resolution in this appeal by certiorari from an order of respondent Court of Industrial Relations is one of constitutional significance. It is concerned with the expanded role of government necessitated by the increased responsibility to provide for the general welfare. More specifically, it deals with the question of whether petitioner, the Philippine Virginia Tobacco Administration, discharges governmental and not proprietary functions. The landmark opinion of the then Justice, row Chief Justice, Makalintal in Agricultural Credit and Cooperative Financing Administration v. Confederation of Unions in Government Corporations and offices, points the way to the right answer. 1 It interpreted the then fundamental law as hostile to the view of a limited or negative state. It is antithetical to the laissez faire concept. For as noted in an earlier decision, the welfare state concept "is not alien to the philosophy of [the 1935] Constitution." 2 It is much more so under the present Charter, which is impressed with an even more explicit recognition of social and economic rights. 3 There is manifest, to recall Laski, "a definite increase in the profundity of the social conscience," resulting in "a state which seeks to realize more fully the common good of its members." 4 It does not necessarily follow, however, just because petitioner is engaged in governmental rather than proprietary functions, that the labor controversy was beyond the jurisdiction of the now defunct respondent Court. Nor is the objection raised that petitioner does not come within the coverage of the Eight-Hour Labor Law persuasive. 5 We cannot then grant the reversal sought. We affirm.

The facts are undisputed. On December 20, 1966, claimants, now private respondents, filed with respondent Court a petition wherein they alleged their employment relationship, the overtime services in excess of the regular eight hours a day rendered by them, and the failure to pay them overtime compensation in accordance with Commonwealth Act No. 444. Their prayer was for the differential between the amount actually paid to them and the amount allegedly due them. 6 There was an answer filed by petitioner Philippine Virginia Tobacco Administration denying the allegations and raising the special defenses of lack of a cause of action and lack of jurisdiction. 7 The issues were thereafter joined, and the case set for trial, with both parties presenting their evidence. 8 After the parties submitted the case for decision, the then Presiding Judge Arsenio T. Martinez of respondent Court issued an order sustaining the claims of private respondents for overtime services from December 23, 1963 up to the date the decision was rendered on March 21, 1970, and directing petitioner to pay the same, minus what it had already paid. 9 There was a motion for reconsideration, but respondent Court en banc denied the same. 10 Hence this petition for certiorari.

Petitioner Philippine Virginia Tobacco Administration, as had been noted, would predicate its plea for the reversal of the order complained of on the basic proposition that it is beyond the jurisdiction of respondent Court as it is exercising governmental functions and that it is exempt from the operation of Commonwealth Act No. 444. 11While, to repeat, its submission as to the governmental character of its operation is to be given credence, it is not a necessary consequence that respondent Court is devoid of jurisdiction. Nor could the challenged order be set aside on the additional argument that the Eight-Hour Labor Law is not applicable to it. So it was, at the outset, made clear.

1. A reference to the enactments creating petitioner corporation suffices to demonstrate the merit of petitioner's plea that it performs governmental and not proprietary functions. As originally established by Republic Act No. 2265, 12 its purposes and objectives were set forth thus: "(a) To promote the effective merchandising of Virginia tobacco in the domestic and foreign markets so that those engaged in the industry will be placed on a basis of economic security; (b) To establish and maintain balanced production and consumption of Virginia tobacco and its manufactured products, and such marketing conditions as will insure and stabilize the price of a level sufficient to cover the cost of production plus reasonable profit both in the local as well as in the foreign market; (c) To create, establish, maintain, and operate processing, warehousing and

marketing facilities in suitable centers and supervise the selling and buying of Virginia tobacco so that the farmers will enjoy reasonable prices that secure a fair return of their investments; (d) To prescribe rules and regulations governing the grading, classifying, and inspecting of Virginia tobacco; and (e) To improve the living and economic conditions of the people engaged in the tobacco industry." 13 The amendatory statute, Republic Act No. 4155, 14renders even more evident its nature as a governmental agency. Its first section on the declaration of policy reads: "It is declared to be the national policy, with respect to the local Virginia tobacco industry, to encourage the production of local Virginia tobacco of the qualities needed and in quantities marketable in both domestic and foreign markets, to establish this industry on an efficient and economic basis, and, to create a climate conducive to local cigarette manufacture of the qualities desired by the consuming public, blending imported and native Virginia leaf tobacco to improve the quality of locally manufactured cigarettes." 15 The objectives are set forth thus: "To attain this national policy the following objectives are hereby adopted: 1. Financing; 2. Marketing; 3. The disposal of stocks of the Agricultural Credit Administration (ACA) and the Philippine Virginia Tobacco Administration (PVTA) at the best obtainable prices and conditions in order that a reinvigorated Virginia tobacco industry may be established on a sound basis; and 4. Improving the quality of locally manufactured cigarettes through blending of imported and native Virginia leaf tobacco; such importation with corresponding exportation at a ratio of one kilo of imported to four kilos of exported Virginia tobacco, purchased by the importer-exporter from the Philippine Virginia Tobacco Administration." 16

It is thus readily apparent from a cursory perusal of such statutory provisions why petitioner can rightfully invoke the doctrine announced in the leading Agricultural Credit and Cooperative Financing Administration decision 17and why the objection of private respondents with its overtones of the distinction between constituent and ministrant functions of governments as set forth in Bacani v. National Coconut Corporation 18 if futile. The irrelevance of such a distinction considering the needs of the times was clearly pointed out by the present Chief Justice, who took note, speaking of the reconstituted Agricultural Credit Administration, that functions of that sort "may not be strictly what President Wilson described as "constituent" (as distinguished from "ministrant"),such as those relating to the maintenance of peace and the prevention of crime, those regulating property and property rights, those relating to the administration of justice and the determination of political duties of citizens, and those relating to national defense and foreign relations. Under this traditional classification, such constituent functions are exercised by the State as attributes of sovereignty, and not merely to promote the welfare, progress and prosperity of the people — these latter functions being ministrant, the exercise of which is optional on the part of the government." 19 Nonetheless, as he explained so persuasively: "The growing complexities of modern society, however, have rendered this traditional classification of the functions of government quite unrealistic, not to say obsolete. The areas which used to be left to private enterprise and initiative and which the government was called upon to enter optionally, and only "because it was better equipped to administer for the public welfare than is any private individual or group of individuals", continue to lose their well-defined boundaries and to be absorbed within activities that the government must undertake in its sovereign capacity if it is to meet the increasing social challenges of the times. Here as almost everywhere else the tendency is undoubtedly towards a greater socialization of economic forces. Here of course this development was envisioned, indeed adopted as a national policy, by the Constitution itself in its declaration of principle concerning the promotion of social justice." 20 Thus was laid to rest the doctrine in Bacani v. National Coconut Corporation,21 based on the Wilsonian classification of the tasks incumbent on government into constituent and ministrant in accordance with the laissez faire principle. That concept, then dominant in economics, was carried into the governmental sphere, as noted in a textbook on political science, 22 the first edition of which was published in 1898, its author being the then Professor, later American President, Woodrow Wilson. He took pains to emphasize that what was categorized by him as constituent functions had its basis in a recognition of what was demanded by the "strictest [concept of] laissez faire, [as they] are indeed the very bonds of society." 23 The other functions he would minimize as ministrant or optional.

It is a matter of law that in the Philippines, the laissez faire principle hardly commanded the authoritative position which at one time it held in the United States. As early as 1919, Justice Malcolm in Rubi v. Provincial Board 24could affirm: "The doctrines of laissez faire and of unrestricted freedom of the individual, as axioms of economic and political theory, are of the past. The modern period has shown a widespread belief in the amplest possible demonstration of government activity." 25 The 1935 Constitution, as was indicated earlier, continued that approach. As noted in Edu v. Ericta: 26 "What is more, to erase any doubts, the Constitutional Convention saw to it that the concept of laissez-faire was rejected. It entrusted to our government the responsibility of coping with social and economic problems with the commensurate power of control over economic affairs. Thereby it could live up to its commitment to promote the general welfare through state action." 27 Nor did the opinion in Edu stop there: "To repeat, our Constitution which took effect in 1935 erased whatever doubts there might be on that score. Its philosophy is a repudiation of laissez-faire. One of the leading members of the Constitutional Convention, Manuel A. Roxas, later the first President of the Republic, made it clear when he disposed of the objection of Delegate Jose Reyes of Sorsogon, who noted the "vast extensions in the sphere of governmental functions" and the "almost unlimited power to interfere in the affairs of industry and agriculture as well as to compete with existing business" as "reflections of the fascination exerted by [the then] current tendencies' in other jurisdictions. He spoke thus: "My answer is that this constitution has a definite and well defined philosophy, not only political but social and economic.... If in this Constitution the gentlemen will find declarations of economic policy they are there because they are necessary to safeguard the interest and welfare of the Filipino people because we believe that the days have come when in self-defense, a nation may provide in its constitution those safeguards, the patrimony, the freedom to grow, the freedom to develop national aspirations and national interests, not to be hampered by the artificial boundaries which a constitutional provision automatically imposes." 28

It would be then to reject what was so emphatically stressed in the Agricultural Credit Administration decision about which the observation was earlier made that it reflected the philosophy of the 1935 Constitution and is even more in consonance with the expanded role of government accorded recognition in the present Charter if the plea of petitioner that it discharges governmental function were not heeded. That path this Court is not prepared to take. That would be to go backward, to retreat rather than to advance. Nothing can thus be clearer than that there is no constitutional obstacle to a government pursuing lines of endeavor, formerly reserved for private enterprise. This is one way, in the language of Laski, by which through such activities, "the harsh contract which [does] obtain between the levels of the rich and the poor" may be minimized. 29 It is a response to a trend noted by Justice Laurel in Calalang v. Williams 30 for the humanization of laws and the promotion of the interest of all component elements of society so that man's innate aspirations, in what was so felicitously termed by the First Lady as "a compassionate society" be attained. 31

2. The success that attended the efforts of petitioner to be adjudged as performing governmental rather than proprietary functions cannot militate against respondent Court assuming jurisdiction over this labor dispute. So it was mentioned earlier. As far back as Tabora v. Montelibano, 32 this Court, speaking through Justice Padilla, declared: The NARIC was established by the Government to protect the people against excessive or unreasonable rise in the price of cereals by unscrupulous dealers. With that main objective there is no reason why its function should not be deemed governmental. The Government owes its very existence to that aim and purpose — to protect the people." 33 In a subsequent case, Naric Worker's Union v. Hon. Alvendia, 34 decided four years later, this Court, relying on Philippine Association of Free Labor Unions v. Tan, 35 which specified the cases within the exclusive jurisdiction of the Court of Industrial Relations, included among which is one that involves hours of employment under the Eight-Hour Labor Law, ruled that it is precisely respondent Court and not ordinary courts that should pass upon that particular labor controversy. For Justice J. B. L. Reyes, the ponente, the fact that there were judicial as well as administrative and executive pronouncements to the effect that the Naric was performing governmental functions did not suffice to confer competence on the

then respondent Judge to issue a preliminary injunction and to entertain a complaint for damages, which as pointed out by the labor union, was connected with an unfair labor practice. This is emphasized by the dispositive portion of the decision: "Wherefore, the restraining orders complained of, dated May 19, 1958 and May 27, 1958, are set aside, and the complaint is ordered dismissed, without prejudice to the National Rice and Corn Corporation's seeking whatever remedy it is entitled to in the Court of Industrial Relations." 36 Then, too, in a case involving petitioner itself, Philippine Virginia Tobacco Administration, 37 where the point in dispute was whether it was respondent Court or a court of first instance that is possessed of competence in a declaratory relief petition for the interpretation of a collective bargaining agreement, one that could readily be thought of as pertaining to the judiciary, the answer was that "unless the law speaks clearly and unequivocally, the choice should fall on the Court of Industrial Relations." 38 Reference to a number of decisions which recognized in the then respondent Court the jurisdiction to determine labor controversies by government-owned or controlled corporations lends to support to such an approach. 39 Nor could it be explained only on the assumption that proprietary rather than governmental functions did call for such a conclusion. It is to be admitted that such a view was not previously bereft of plausibility. With the aforecited Agricultural Credit and Cooperative Financing Administration decision rendering obsolete the Bacani doctrine, it has, to use a Wilsonian phrase, now lapsed into "innocuous desuetude." 40 Respondent Court clearly was vested with jurisdiction.

3. The contention of petitioner that the Eight-Hour Labor Law 41 does not apply to it hardly deserves any extended consideration. There is an air of casualness in the way such an argument was advanced in its petition for review as well as in its brief. In both pleadings, it devoted less than a full page to its discussion. There is much to be said for brevity, but not in this case. Such a terse and summary treatment appears to be a reflection more of the inherent weakness of the plea rather than the possession of an advocate's enviable talent for concision. It did cite Section 2 of the Act, but its very language leaves no doubt that "it shall apply to all persons employed in any industry or occupation, whether public or private ... ." 42 Nor are private respondents included among the employees who are thereby barred from enjoying the statutory benefits. It cited Marcelo v. Philippine National Red Cross 43 and Boy Scouts of the Philippines v. Araos. 44 Certainly, the activities to which the two above public corporations devote themselves can easily be distinguished from that engaged in by petitioner. A reference to the pertinent sections of both Republic Acts 2265 and 2155 on which it relies to obtain a ruling as to its governmental character should render clear the differentiation that exists. If as a result of the appealed order, financial burden would have to be borne by petitioner, it has only itself to blame. It need not have required private respondents to render overtime service. It can hardly be surmised that one of its chief problems is paucity of personnel. That would indeed be a cause for astonishment. It would appear, therefore, that such an objection based on this ground certainly cannot suffice for a reversal. To repeat, respondent Court must be sustained.

WHEREFORE, the appealed Order of March 21, 1970 and the Resolution of respondent Court en banc of May 8, 1970 denying a motion for reconsideration are hereby affirmed. The last sentence of the Order of March 21, 1970 reads as follows: "To find how much each of them [private respondents] is entitled under this judgment, the Chief of the Examining Division, or any of his authorized representative, is hereby directed to make a reexamination of records, papers and documents in the possession of respondent PVTA pertinent and proper under the premises and to submit his report of his findings to the Court for further disposition thereof." Accordingly, as provided by the New Labor Code, this case is referred to the National Labor Relations Commission for further proceedings conformably to law. No costs.

Makalintal, C.J., Castro, Barredo, Antonio, Esguerra, Aquino, Concepcion Jr. and Martin, JJ., concur.

Makasiar, Muñoz Palma, JJ., took no part.

Teehankee J., is on leave.

   

Republic of the Philippines SUPREME COURT

Manila

EN BANC

G.R. No. L-18967 January 31, 1966

REPUBLIC OF THE PHILIPPINES, plaintiff-appellant, vs. GREGORIO RODRIGUEZ, defendant-appellee.

Office of the Solicitor General for the plaintiff and appellant. C. Teehankee for the defendant and appellee.

BENGZON, C.J.:

This is an appeal from the order of the Court of First Instance of Negros Occidental dismissing, on the ground of prescription, the plaintiff's complaint.

The material facts are as follows: On June 30, 1943, defendant Gregorio Rodriguez obtained a loan of P172.00 from the Bank of Taiwan, Ltd. payable on June 30, 1944; and on November 1, 1943, he obtained another loan of P150.00 from the same bank without maturity date (hence payable on demand). These two loans are evidenced by two promissory notes, the payment of which was secured by a chattel mortgage.

On January 21, 1946, the aforesaid two loans which remained unpaid became vested in the United States of America, thru its Alien Property Custodian, pursuant to the United States Trading with the Enemy Act, as amended, and under its Vesting Order No. P-4. On July 20, 1954, these unpaid accounts were together with other assets of said banks "transferred, conveyed and assigned to the Government of the Philippines by virtue of the Transfer Agreement executed on that date between the United States and the Philippine governments.1äwphï1.ñët

On October 1, 1954 and November 17, 1958, the plaintiff Republic made written demands upon defendant for payment. Upon his failure, plaintiff filed this complaint before the justice of the peace court of La Carlota, Negros Occidental, in June, 1960, to recover the two sums and attorney's fees and costs. A few days later, the defendant moved to dismiss on the ground that plaintiff's cause of action had already prescribed; but said motion was denied. However, after a hearing on the merits, said justice of the peace court rendered judgment dismissing the complaint on the ground of prescription. Plaintiff then appealed to the Court of First Instance of Negros Occidental. Therein the defendant again filed a motion to dismiss on the ground of prescription; and that court, upholding the motion, dismissed the case. Hence this appeal, directly to this Court because only questions of law are involved.

Has the action prescribed? We have recently held in Republic vs. Grijaldo, G.R. No. L-20240, December 31, 1965, that these notes of the Bank of Taiwan, Ltd. are being enforced by the Republic in its sovereign role, and that the statute of limitations does not run against it (Government of P.I. vs. Monte de Piedad, 35 Phil. 738-751). But as this Republic became the owner of the notes on July 20, 1954, the real question arises whether on that date, action on the notes had already prescribed; because if they had, the Republic got nothing — notes that had already become unenforceable.

As stated, the first note matured on June 30, 1944; and the second became payable on November 1, 1943. So at the time the Government of the Republic got ownership of the credit (1954), more than ten years had already elapsed. The Civil Code and Act 190 fix ten years as the prescriptive period for this kind of obligation and action.

At first glance, the period of prescription has lapsed. However, the Government argues that from the period of 1943-1954, must be deducted the time when the Moratorium Law was in force, because it tolled or suspended the running of the statute of limitations. The other side replies that as the Moratorium did not bind the Republic of the Philippines or the Government of the United States, the running of the prescriptive period was never interrupted, and therefore, more than ten years having elapsed, the notes prescribed.

It will be recalled that the Moratorium Law was established by Executive Orders Nos. 25 and 32, dated November 18, 1944, and March 10, 1945, respectively. At that time, these credits belonged to the Bank of Taiwan. The Moratorium Law bound it. Therefore, as to it, the prescriptive period was tolled. As it was only on January 21, 1946, that it lost ownership to the United States Government, more than one year must be deducted from the period from November, 1943 to July, 1954; with the result that, for purposes of prescription, less than ten years had elapsed when (in July, 1954) the Republic became the owner of the promissory notes. It must be remembered that from that time (July, 1954), the prescriptive period stopped to run against the Republic of the Philippine Islands.

Prescription does not run against the State (Art. 1108, New Civil Code).

It may be added in this connection that after Independence in July, 1946, the United States Government became a foreign country, lost its sovereignty over these Islands, and therefore, could not sue, by reason of the Moratorium Law, which lost its force only on May 18, 1953.1 So the period between July, 1946 to May, 1953 (about 7 years) should be deducted in computing the period of prescription. This is practically what we held in the Grijaldo case, supra.

For the foregoing reasons, we are of the opinion, and so hold, that this action of the Republic has not prescribed. The order is reversed and the record remanded for further proceedings. So ordered.

Bautista Angelo, Concepcion, Reyes, J.B.L., Barrera, Dizon, Regala, Bengzon, J.P. and Zaldivar, concur. Makalintal and Sanchez, JJ., took no part.

   

Republic of the Philippines SUPREME COURT

Manila

EN BANC

G.R. No. L-9959 December 13, 1916

THE GOVERNMENT OF THE PHILIPPINE ISLANDS, represented by the Treasurer of the Philippine Islands,plaintiff-appellee, vs. EL MONTE DE PIEDAD Y CAJA DE AHORRAS DE MANILA, defendant-appellant.

William A. Kincaid and Thomas L. Hartigan for appellant. Attorney-General Avanceña for appellee.

TRENT, J.:

About $400,000, were subscribed and paid into the treasury of the Philippine Islands by the inhabitants of the Spanish Dominions of the relief of those damaged by the earthquake which took place in the Philippine Islands on June 3, 1863. Subsequent thereto and on October 6 of that year, a central relief board was appointed, by authority of the King of Spain, to distribute the moneys thus voluntarily contributed. After a thorough investigation and consideration, the relief board allotted $365,703.50 to the various sufferers named in its resolution, dated September 22, 1866, and, by order of the Governor-General of the Philippine Islands, a list of these allotments, together with the names of those entitled thereto, was published in the Official Gazette of Manila dated April 7, 1870. There was later distributed, inaccordance with the above-mentioned allotments, the sum of $30,299.65, leaving a balance of S365,403.85 for distribution. Upon the petition of the governing body of the Monte de Piedad, dated February 1, 1833, the Philippine Government, by order dated the 1st of that month, directed its treasurer to turn over to the Monte de Piedad the sum of $80,000 of the relief fund in installments of $20,000 each. These amounts were received on the following dates: February 15, March 12, April 14, and June 2, 1883, and are still in the possession of the Monte de Piedad. On account of various petitions of the persons, and heirs of others to whom the above-mentioned allotments were made by the central relief board for the payment of those amounts, the Philippine Islands to bring suit against the Monte de Piedad a recover, "through the Attorney-General and in representation of the Government of the Philippine Islands," the $80.000, together with interest, for the benefit of those persons or their heirs appearing in the list of names published in the Official Gazette instituted on May 3, 1912, by the Government of the Philippine Islands, represented by the Insular Treasurer, and after due trial, judgment was entered in favor of the plaintiff for the sum of $80,000 gold or its equivalent in Philippine currency, together with legal interest from February 28, 1912, and the costs of the cause. The defendant appealed and makes the following assignment of errors:

1. The court erred in not finding that the eighty thousand dollars ($80,000), give to the Monte de Piedad y Caja de Ahorros, were so given as a donation subject to one condition, to wit: the return of such sum of money to the Spanish Government of these Islands, within eight days following the day when claimed, in case the Supreme Government of Spain should not approve the action taken by the former government.

2. The court erred in not having decreed that this donation had been cleared; said eighty thousand dollars ($80,000) being at present the exclusive property of the appellant the Monte de Piedad y Caja de Ahorros.

3. That the court erred in stating that the Government of the Philippine Islands has subrogated the Spanish Government in its rights, as regards an important sum of money resulting from a national subscription opened by reason of the earthquake of June 3, 1863, in these Island.

4. That the court erred in not declaring that Act Numbered 2109, passed by the Philippine Legislature on January 30, 1912, is unconstitutional.

5. That the court erred in holding in its decision that there is no title for the prescription of this suit brought by the Insular Government against the Monte de Piedad y Caja de Ahorros for the reimbursement of the eighty thousand dollars ($80,000) given to it by the late Spanish Government of these Islands.

6. That the court erred in sentencing the Monte de Piedad y Caja de Ahorros to reimburse the Philippine Government in the sum of eighty thousand dollars ($80,000) gold coin, or the equivalent thereof in the present legal tender currency in circulation, with legal interest thereon from February 28th, 1912, and the costs of this suit.

In the royal order of June 29, 1879, the Governor-General of the Philippine Islands was directed to inform the home Government in what manner the indemnity might be paid to which, by virtue of the resolutions of the relief board, the persons who suffered damage by the earthquake might be entitled, in order to perform the sacred obligation which the Government of Spain had assumed toward the donors.

The next pertinent document in order is the defendant's petition, dated February 1, 1883, addressed to the Governor-General of the Philippine Islands, which reads:

Board of Directors of the Monte de Piedad of Manila Presidencia.

Excellency: The Board of Directors of the Monte de Piedad y Caja de Ahorros of Manila informs your Excellency, First: That the funds which it has up to the present been able to dispose of have been exhausted in loans on jewelry, and there only remains the sum of one thousand and odd pesos, which will be expended between to-day and day after tomorrow. Second: That, to maintain the credit of the establishment, which would be greatly injured were its operations suspended, it is necessary to procure money. Third: That your Excellency has proposed to His Majesty's Government to apply to the funds of theMonte de Piedad a part of the funds held in the treasury derived form the national subscription for the relief of the distress caused by the earthquake of 1863. Fourth: That in the public treasury there is held at the disposal of the central earthquake relief board over $1090,000 which was deposited in the said treasury by order of your general Government, it having been transferred thereto from the Spanish-Filipino Bank where it had been held. fifth: That in the straightened circumstances of the moment, your Excellency can, to avert impending disaster to the Monte de Piedad, order that, out of that sum of one hundred thousand pesos held in the Treasury at the disposal of the central relief board, there be transferred to the Monte de Piedadthe sum of $80,000, there to be held under the same conditions as at present in the Treasury, to wit, at the disposal of the Relief Board. Sixth: That should this transfer not be approved for any reason,

either because of the failure of His Majesty's Government to approve the proposal made by your Excellency relative to the application to the needs of the Monte de Piedad of a pat of the subscription intended to believe the distress caused by the earthquake of 1863, or for any other reason, the board of directors of the Monte de Piedad obligates itself to return any sums which it may have received on account of the eighty thousand pesos, or the whole thereof, should it have received the same, by securing a loan from whichever bank or banks may lend it the money at the cheapest rate upon the security of pawned jewelry. — This is an urgent measure to save the Monte de Piedad in the present crisis and the board of directors trusts to secure your Excellency's entire cooperation and that of the other officials who have take part in the transaction.

The Governor-General's resolution on the foregoing petition is as follows:

GENERAL GOVERNMENT OF THE PHILIPPINES. MANILA, February 1, 1883.

In view of the foregoing petition addressed to me by the board of directors of the Monte de Piedad of this city, in which it is stated that the funds which the said institution counted upon are nearly all invested in loans on jewelry and that the small account remaining will scarcely suffice to cover the transactions of the next two days, for which reason it entreats the general Government that, in pursuance of its telegraphic advice to H. M. Government, the latter direct that there be turned over to said Monte de Piedad $80,000 out of the funds in the public treasury obtained from the national subscription for the relief of the distress caused by the earthquake of 1863, said board obligating itself to return this sum should H. M. Government, for any reason, not approve the said proposal, and for this purpose it will procure funds by means of loans raised on pawned jewelry; it stated further that if the aid so solicited is not furnished, it will be compelled to suspend operations, which would seriously injure the credit of so beneficient an institution; and in view of the report upon the matter made by the Intendencia General de Hacienda; and considering the fact that the public treasury has on hand a much greater sum from the source mentioned than that solicited; and considering that this general Government has submitted for the determination of H. M. Government that the balance which, after strictly applying the proceeds obtained from the subscription referred to, may remain as a surplus should be delivered to the Monte de Piedad, either as a donation, or as a loan upon the security of the credit of the institution, believing that in so doing the wishes of the donors would be faithfully interpreted inasmuch as those wishes were no other than to relieve distress, an act of charity which is exercised in the highest degree by the Monte de Piedad, for it liberates needy person from the pernicious effects of usury; and

Considering that the lofty purposes that brought about the creation of the pious institution referred to would be frustrated, and that the great and laudable work of its establishment, and that the great and laudable and valuable if the aid it urgently seeks is not granted, since the suspension of its operations would seriously and regrettably damage the ever-growing credit of the Monte de Piedad; and

Considering that if such a thing would at any time cause deep distress in the public mind, it might be said that at the present juncture it would assume the nature of a disturbance of public order because of the extreme poverty of the poorer classes

resulting from the late calamities, and because it is the only institution which can mitigate the effects of such poverty; and

Considering that no reasonable objection can be made to granting the request herein contained, for the funds in question are sufficiently secured in the unlikely event that H> M. Government does not approve the recommendation mentioned, this general Government, in the exercise of the extraordinary powers conferred upon it and in conformity with the report of the Intendencia de Hacienda, resolves as follows:

First. Authority is hereby given to deliver to the Monte de Piedad, out of the sum held in the public treasury of these Islands obtained from the national subscription opened by reason of the earthquakes of 1863, amounts up to the sum $80,000, as its needs may require, in installments of $20,000.

Second. The board of directors of the Monte de Piedad is solemnly bound to return, within eight days after demand, the sums it may have so received, if H. M. Government does not approve this resolution.

Third. The Intendencia General de Hacienda shall forthwith, and in preference to all other work, proceed to prepare the necessary papers so that with the least possible delay the payment referred to may be made and the danger that menaces the Monte de Piedad of having to suspend its operations may be averted.

H. M. Government shall be advised hereof.lawphi1.net (Signed) P. DE RIVERA.

By the royal order of December 3, 1892, the Governor-General of the Philippine Islands was ordered to "inform this ministerio what is the total sum available at the present time, taking into consideration the sums delivered to the Monte de Piedad pursuant to the decree issued by your general Government on February 1, 1883," and after the rights of the claimants, whose names were published in the Official Gazette of Manila on April 7, 1870, and their heirs had been established, as therein provided, as such persons "have an unquestionable right to be paid the donations assigned to them therein, your general Government shall convoke them all within a reasonable period and shall pay their shares to such as shall identify themselves, without regard to their financial status," and finally "that when all the proceedings and operations herein mentioned have been concluded and the Government can consider itself free from all kinds of claims on the part of those interested in the distribution of the funds deposited in the vaults of the Treasury, such action may be taken as the circumstances shall require, after first consulting the relief board and your general Government and taking account of what sums have been delivered to the Monte de Piedad and those that were expended in 1888 to relieve public calamities," and "in order that all the points in connection with the proceedings had as a result of the earthquake be clearly understood, it is indispensable that the offices hereinbefore mentioned comply with the provisions contained in paragraphs 2 and 3 of the royal order of June 25, 1879." On receipt of this Finance order by the Governor-General, the Department of Finance was called upon for a report in reference to the $80,000 turned over to the defendant, and that Department's report to the Governor-General dated June 28, 1893, reads:

Intendencia General de Hacienda de Filipinas (General Treasury of the Philippines) — Excellency. — By Royal Order No. 1044 of December 3, last, it is provided that the persons who sustained losses by the earthquakes that occurred in your capital in the year 1863 shall be paid the amounts allotted to them out of the sums sent from

Spain for this purpose, with observance of the rules specified in the said royal order, one of them being that before making the payment to the interested parties the assets shall be reduced to money. These assets, during the long period of time that has elapsed since they were turned over to the Treasury of the Philippine Islands, were used to cover the general needs of the appropriation, a part besides being invested in the relief of charitable institutions and another part to meet pressing needs occasioned by public calamities. On January 30, last, your Excellency was please to order the fulfillment of that sovereign mandate and referred the same to this Intendencia for its information and the purposes desired (that is, for compliance with its directions and, as aforesaid, one of these being the liquidation, recovery, and deposit with the Treasury of the sums paid out of that fund and which were expended in a different way from that intended by the donors) and this Intendencia believed the moment had arrived to claim from the board of directors of the Monte de Piedad y Caja de Ahorros the sum of 80,000 pesos which, by decree of your general Government of the date of February 1, 1883, was loaned to it out of the said funds, the (Monte de Piedad) obligating itself to return the same within the period of eight days if H. M. Government did not approve the delivery. On this Intendencia's demanding from the Monte de Piedad the eighty thousand pesos, thus complying with the provisions of the Royal Order, it was to be supposed that no objection to its return would be made by the Monte de Piedad for, when it received the loan, it formally engaged itself to return it; and, besides, it was indisputable that the moment to do so had arrived, inasmuch as H. M. Government, in ordering that the assets of the earthquake relief fund should he collected, makes express mention of the 80,000 pesos loaned to the Monte de Piedad, without doubt considering as sufficient the period of ten years during which it has been using this large sum which lawfully belongs to their persons. This Intendencia also supposed that the Monte de Piedad no longer needed the amount of that loan, inasmuch as, far from investing it in beneficient transactions, it had turned the whole amount into the voluntary deposit funds bearing 5 per cent interests, the result of this operation being that the debtor loaned to the creditor on interest what the former had gratuitously received. But the Monte de Piedad, instead of fulfilling the promise it made on receiving the sum, after repeated demands refused to return the money on the ground that only your Excellency, and not the Intendencia (Treasury), is entitled to order the reimbursement, taking no account of the fact that this Intendencia was acting in the discharge of a sovereign command, the fulfillment of which your Excellency was pleased to order; and on the further ground that the sum of 80,000 pesos which it received from the fund intended for the earthquake victims was not received as a loan, but as a donation, this in the opinion of this Intendencia, erroneously interpreting both the last royal order which directed the apportionment of the amount of the subscription raised in the year 1863 and the superior decree which granted the loan, inasmuch as in this letter no donation is made to the Monte de Piedad of the 80,000 pesos, but simply a loan; besides, no donation whatever could be made of funds derived from a private subscription raised for a specific purpose, which funds are already distributed and the names of the beneficiaries have been published in the Gaceta, there being lacking only the mere material act of the delivery, which has been unduly delayed. In view of the unexpected reply made by the Monte de Piedad, and believing it useless to insist further in the matter of the claim for the aforementioned loan, or to argue in support thereof, this Intendencia believes the intervention of your Excellency necessary in this matter, if the royal Order No. 1044 of December 3, last, is to be complied with, and for this purpose I beg your Excellency kindly to order the Monte de Piedad to reimburse within the period of eight days the 80,000 which it owes, and that you give this Intendencia power to carry out the provisions of the said royal order. I must call to the attention of your

Excellency that the said pious establishment, during the last few days and after demand was made upon it, has endorsed to the Spanish-Filipino Bank nearly the whole of the sum which it had on deposit in the general deposit funds.

The record in the case under consideration fails to disclose any further definite action taken by either the Philippine Government or the Spanish Government in regard to the $80,000 turned over to the Monte de Piedad.

In the defendant's general ledger the following entries appear: "Public Treasury: February 15, 1883, $20,000; March 12, 1883, $20,000; April 14, 1883, $20,000; June 2, 1883, $20,000, total $80,000." The book entry for this total is as follows: "To the public Treasury derived from the subscription for the earthquake of 1863, $80,000 received from general Treasury as a returnable loan, and without interest." The account was carried in this manner until January 1, 1899, when it was closed by transferring the amount to an account called "Sagrada Mitra," which latter account was a loan of $15,000 made to the defendant by the Archbishop of Manila, without interest, thereby placing the "Sagrada Mitra" account at $95,000 instead of $15,000. The above-mentioned journal entry for January 1, 1899, reads: "Sagrada Mitra and subscription, balance of these two account which on this date are united in accordance with an order of the Exmo. Sr. Presidente of the Council transmitted verbally to the Presidente Gerente of these institutions, $95,000."

On March 16, 1902, the Philippine government called upon the defendant for information concerning the status of the $80,000 and received the following reply:

MANILA, March 31, 1902.

To the Attorney-General of the Department of Justice of the Philippine Islands.

SIR: In reply to your courteous letter of the 16th inst., in which you request information from this office as to when and for what purpose the Spanish Government delivered to the Monte de Piedad eighty thousand pesos obtained from the subscription opened in connection with the earthquake of 1863, as well as any other information that might be useful for the report which your office is called upon to furnish, I must state to your department that the books kept in these Pious Institutions, and which have been consulted for the purpose, show that on the 15th of February, 1883, they received as a reimbursable loan and without interest, twenty thousand pesos, which they deposited with their own funds. On the same account and on each of the dates of March 12, April 14 and June 2 of the said year, 1883, they also received and turned into their funds a like sum of twenty thousand pesos, making a total of eighty thousand pesos. — (Signed) Emilio Moreta.

I hereby certify that the foregoing is a literal copy of that found in the letter book No. 2 of those Pious Institutions.

Manila, November 19, 1913 (Sgd.) EMILIO LAZCANOTEGUI, Secretary

(Sgd.) O. K. EMILIO MORETA, Managing Director.

The foregoing documentary evidence shows the nature of the transactions which took place between the Government of Spain and the Philippine Government on the one side and the Monte de Piedad on the other, concerning the $80,000. The Monte de Piedad, after setting forth in its petition to the Governor-General its financial condition and its absolute necessity for more working capital, asked that out of the sum of $100,000 held in the Treasury of the Philippine Islands, at the disposal of the central relief board, there be transferred to it the sum of $80,000 to be held under the same conditions, to wit, "at the disposal of the relief board." The Monte de Piedad agreed that if the transfer of these funds should not be approved by the Government of Spain, the same would be returned forthwith. It did not ask that the $80,000 be given to it as a donation. The Governor-General, after reciting the substance of the petition, stated that "this general Government has submitted for the determination of H. M. Government that the balance which, after strictly applying the proceeds obtained from the subscription referred to, may remain as a surplus, should be delivered to the Monte de Piedad, either as a donation, or as a loan upon the security of the credit of the institution," and "considering that no reasonable objection can be made to granting the request herein contained," directed the transfer of the $80,000 to be made with the understanding that "the Board of Directors of the Monte de Piedad is solemnly bound to return, within eight days after demand, the sums it may have so received, if H. M. Government does not approve this resolution." It will be noted that the first and only time the word "donation" was used in connection with the $80,000 appears in this resolution of the Governor-General. It may be inferred from the royal orders that the Madrid Government did tacitly approve of the transfer of the $80,000 to the Monte de Piedad as a loan without interest, but that Government certainly did not approve such transfer as a donation for the reason that the Governor-General was directed by the royal order of December 3, 1892, to inform the Madrid Government of the total available sum of the earthquake fund, "taking into consideration the sums delivered to the Monte de Piedadpursuant to the decree issued by your general Government on February 1, 1883." This language, nothing else appearing, might admit of the interpretation that the Madrid Government did not intend that the Governor-General of the Philippine Islands should include the $80,000 in the total available sum, but when considered in connection with the report of the Department of Finance there can be no doubt that it was so intended. That report refers expressly to the royal order of December 3d, and sets forth in detail the action taken in order to secure the return of the $80,000. The Department of Finance, acting under the orders of the Governor-General, understood that the $80,000 was transferred to the Monte de Piedad well knew that it received this sum as a loan interest." The amount was thus carried in its books until January, 1899, when it was transferred to the account of the "Sagrada Mitra" and was thereafter known as the "Sagrada Mitra and subscription account." Furthermore, the Monte de Piedad recognized and considered as late as March 31, 1902, that it received the $80,000 "as a returnable loan, and without interest." Therefore, there cannot be the slightest doubt the fact that the Monte de Piedad received the $80,000 as a mere loan or deposit and not as a donation. Consequently, the first alleged error is entirely without foundation.

Counsel for the defendant, in support of their third assignment of error, say in their principal brief that:

The Spanish nation was professedly Roman Catholic and its King enjoyed the distinction of being deputy ex officio of the Holy See and Apostolic Vicar-General of the Indies, and as such it was his duty to protect all pious works and charitable institutions in his kingdoms, especially those of the Indies; among the latter was the Monte de Piedad of the Philippines, of which said King and his deputy the Governor-General of the Philippines, as royal vice-patron, were, in a special and peculiar manner, the protectors; the latter, as a result of the cession of the Philippine Islands, Implicitly renounced this high office and tacitly returned it to the Holy See,

now represented by the Archbishop of Manila; the national subscription in question was a kind of foundation or pious work, for a charitable purpose in these Islands; and the entire subscription not being needed for its original purpose, the royal vice-patron, with the consent of the King, gave the surplus thereof to an analogous purpose; the fulfillment of all these things involved, in the majority, if not in all cases, faithful compliance with the duty imposed upon him by the Holy See, when it conferred upon him the royal patronage of the Indies, a thing that touched him very closely in his conscience and religion; the cessionary Government though Christian, was not Roman Catholic and prided itself on its policy of non-interference in religious matters, and inveterately maintained a complete separation between the ecclesiastical and civil powers.

In view of these circumstances it must be quite clear that, even without the express provisions of the Treaty of Paris, which apparently expressly exclude such an idea, it did not befit the honor of either of the contracting parties to subrogate to the American Government in lieu of the Spanish Government anything respecting the disposition of the funds delivered by the latter to the Monte de Piedad. The same reasons that induced the Spanish Government to take over such things would result in great inconvenience to the American Government in attempting to do so. The question was such a delicate one, for the reason that it affected the conscience, deeply religious, of the King of Spain, that it cannot be believed that it was ever his intention to confide the exercise thereof to a Government like the American. (U. S. vs. Arredondo, 6 Pet. [U. S.], 711.)

It is thus seen that the American Government did not subrogate the Spanish Government or rather, the King of Spain, in this regard; and as the condition annexed to the donation was lawful and possible of fulfillment at the time the contract was made, but became impossible of fulfillment by the cession made by the Spanish Government in these Islands, compliance therewith is excused and the contract has been cleared thereof.

The contention of counsel, as thus stated, in untenable for two reason, (1) because such contention is based upon the erroneous theory that the sum in question was a donation to the Monte de Piedad and not a loan, and (2) because the charity founded by the donations for the earthquake sufferers is not and never was intended to be an ecclesiastical pious work. The first proposition has already been decided adversely to the defendant's contention. As to the second, the record shows clearly that the fund was given by the donors for a specific and definite purpose — the relief of the earthquake sufferers — and for no other purpose. The money was turned over to the Spanish Government to be devoted to that purpose. The Spanish Government remitted the money to the Philippine Government to be distributed among the suffers. All officials, including the King of Spain and the Governor-General of the Philippine Islands, who took part in the disposal of the fund, acted in their purely civil, official capacity, and the fact that they might have belonged to a certain church had nothing to do with their acts in this matter. The church, as such, had nothing to do with the fund in any way whatever until the $80,000 reached the coffers of the Monte de Piedad (an institution under the control of the church) as a loan or deposit. If the charity in question had been founded as an ecclesiastical pious work, the King of Spain and the Governor-General, in their capacities as vicar-general of the Indies and as royal vice-patron, respectively, would have disposed of the fund as such and not in their civil capacities, and such functions could not have been transferred to the present Philippine Government, because the right to so act would have arisen out of the special agreement between the Government of Spain and the Holy See, based on the union of the church and state which was completely separated with the change of sovereignty.

And in their supplemental brief counsel say:

By the conceded facts the money in question is part of a charitable subscription. The donors were persons in Spain, the trustee was the Spanish Government, the donees, the cestuis que trustent, were certain persons in the Philippine Islands. The whole matter is one of trusteeship. This is undisputed and indisputable. It follows that the Spanish Government at no time was the owner of the fund. Not being the owner of the fund it could not transfer the ownership. Whether or not it could transfer its trusteeship it certainly never has expressly done so and the general terms of property transfer in the Treaty of Paris are wholly insufficient for such a purpose even could Spain have transferred its trusteeship without the consent of the donors and even could the United States, as a Government, have accepted such a trust under any power granted to it by the thirteen original States in the Constitution, which is more than doubtful. It follows further that this Government is not a proper party to the action. The only persons who could claim to be damaged by this payment to the Monte, if it was unlawful, are the donors or the cestuis que trustent, and this Government is neither.

If "the whole matter is one of trusteeship," and it being true that the Spanish Government could not, as counsel say, transfer the ownership of the fund to the Monte de Piedad, the question arises, who may sue to recover this loan? It needs no argument to show that the Spanish or Philippine Government, as trustee, could maintain an action for this purpose had there been no change of sovereignty and if the right of action has not prescribed. But those governments were something more than mere common law trustees of the fund. In order to determine their exact status with reference to this fund, it is necessary to examine the law in force at the time there transactions took place, which are the law of June 20, 1894, the royal decree of April 27. 1875, and the instructions promulgated on the latter date. These legal provisions were applicable to the Philippine Islands (Benedicto vs. De la Rama, 3 Phil. Rep., 34)

The funds collected as a result of the national subscription opened in Spain by royal order of the Spanish Government and which were remitted to the Philippine Government to be distributed among the earthquake sufferers by the Central Relief Board constituted, under article 1 of the law of June 20, 1894, and article 2 of the instructions of April 27, 1875, a special charity of a temporary nature as distinguished from a permanent public charitable institution. As the Spanish Government initiated the creation of the fund and as the donors turned their contributions over to that Government, it became the duty of the latter, under article 7 of the instructions, to exercise supervision and control over the moneys thus collected to the end that the will of the donors should be carried out. The relief board had no power whatever to dispose of the funds confided to its charge for other purposes than to distribute them among the sufferers, because paragraph 3 of article 11 of the instructions conferred the power upon the secretary of the interior of Spain, and no other, to dispose of the surplus funds, should there be any, by assigning them to some other charitable purpose or institution. The secretary could not dispose of any of the funds in this manner so long as they were necessary for the specific purpose for which they were contributed. The secretary had the power, under the law above mentioned to appoint and totally or partially change the personnel of the relief board and to authorize the board to defend the rights of the charity in the courts. The authority of the board consisted only in carrying out the will of the donors as directed by the Government whose duty it was to watch over the acts of the board and to see that the funds were applied to the purposes for which they were contributed .The secretary of the interior, as the representative of His Majesty's Government, exercised these powers and duties through the Governor-General of the Philippine Islands. The Governments of Spain and of the Philippine Islands in complying with their duties conferred upon them by law,

acted in their governmental capacities in attempting to carry out the intention of the contributors. It will this be seen that those governments were something more, as we have said, than mere trustees of the fund.

It is further contended that the obligation on the part of the Monte de Piedad to return the $80,000 to the Government, even considering it a loan, was wiped out on the change of sovereignty, or inn other words, the present Philippine Government cannot maintain this action for that reason. This contention, if true, "must result from settled principles of rigid law," as it cannot rest upon any title to the fund in the Monte de Piedad acquired prior to such change. While the obligation to return the $80,000 to the Spanish Government was still pending, war between the United States and Spain ensued. Under the Treaty of Paris of December 10, 1898, the Archipelago, known as the Philippine Islands, was ceded to the United States, the latter agreeing to pay Spain the sum of $20,000,000. Under the first paragraph of the eighth article, Spain relinquished to the United States "all buildings, wharves, barracks, forts, structures, public highways, and other immovable property which, in conformity with law, belonged to the public domain, and as such belonged to the crown of Spain." As the $80,000 were not included therein, it is said that the right to recover this amount did not, therefore, pass to the present sovereign. This, in our opinion, does not follow as a necessary consequence, as the right to recover does not rest upon the proposition that the $80,000 must be "other immovable property" mentioned in article 8 of the treaty, but upon contractual obligations incurred before the Philippine Islands were ceded to the United States. We will not inquire what effect his cession had upon the law of June 20, 1849, the royal decree of April 27, 1875, and the instructions promulgated on the latter date. In Vilas vs. Manila (220 U. S., 345), the court said:

That there is a total abrogation of the former political relations of the inhabitants of the ceded region is obvious. That all laws theretofore in force which are in conflict with the political character, constitution, or institutions of the substituted sovereign, lose their force, is also plain. (Alvarez y Sanchez vs. United States, 216 U. S., 167.) But it is equally settled in the same public law that the great body of municipal law which regulates private and domestic rights continues in force until abrogated or changed by the new ruler.

If the above-mentioned legal provisions are in conflict with the political character, constitution or institutions of the new sovereign, they became inoperative or lost their force upon the cession of the Philippine Islands to the United States, but if they are among "that great body of municipal law which regulates private and domestic rights," they continued in force and are still in force unless they have been repealed by the present Government. That they fall within the latter class is clear from their very nature and character. They are laws which are not political in any sense of the word. They conferred upon the Spanish Government the right and duty to supervise, regulate, and to some extent control charities and charitable institutions. The present sovereign, in exempting "provident institutions, savings banks, etc.," all of which are in the nature of charitable institutions, from taxation, placed such institutions, in so far as the investment in securities are concerned, under the general supervision of the Insular Treasurer (paragraph 4 of section 111 of Act No. 1189; see also Act No. 701).

Furthermore, upon the cession of the Philippine Islands the prerogatives of he crown of Spain devolved upon he United States. In Magill vs. Brown (16 Fed. Cas., 408), quoted with approval in Mormon Charch vs. United States (136 U. S.,1, 57), the court said:

The Revolution devolved on the State all the transcendent power of Parliament, and the prerogative of the crown, and gave their Acts the same force and effect.

In Fontain vs. Ravenel (17 Hw., 369, 384), Mr. Justice McLean, delivering the opinion of the court in a charity case, said:

When this country achieved its independence, the prerogatives of the crown devolved upon the people of the States. And this power still remains with them except so fact as they have delegated a portion of it to the Federal Government. The sovereign will is made known to us by legislative enactment. The State as a sovereign, is the parens patriae.

Chancelor Kent says:

In this country, the legislature or government of the State, as parens patriae, has the right to enforce all charities of public nature, by virtue of its general superintending authority over the public interests, where no other person is entrusted with it. (4 Kent Com., 508, note.)

The Supreme Court of the United States in Mormon Church vs. United States, supra, after approving also the last quotations, said:

This prerogative of parens patriae is inherent in the supreme power of every State, whether that power is lodged in a royal person or in the legislature, and has no affinity to those arbitrary powers which are sometimes exerted by irresponsible monarchs to the great detriment of the people and the destruction of their liberties. On the contrary, it is a most beneficient functions, and often necessary to be exercised in the interest of humanity, and for the prevention of injury to those who cannot protect themselves.

The court in the same case, after quoting from Sohier vs. Mass. General Hospital (3 Cush., 483, 497), wherein the latter court held that it is deemed indispensible that there should be a power in the legislature to authorize the same of the estates of in facts, idiots, insane persons, and persons not known, or not in being, who cannot act for themselves, said:

These remarks in reference to in facts, insane persons and person not known, or not in being, apply to the beneficiaries of charities, who are often in capable of vindicating their rights, and justly look for protection to the sovereign authority, acting as parens patriae. They show that this beneficient functions has not ceased t exist under the change of government from a monarchy to a republic; but that it now resides in the legislative department, ready to be called into exercise whenever required for the purposes of justice and right, and is a clearly capable of being exercised in cases of charities as in any other cases whatever.

In People vs. Cogswell (113 Cal. 129, 130), it was urged that the plaintiff was not the real party in interest; that the Attorney-General had no power to institute the action; and that there must be an allegation and proof of a distinct right of the people as a whole, as distinguished from the rights of individuals, before an action could be brought by the Attorney-General in the name of the people. The court, in overruling these contentions, held that it was not only the right but the duty of the Attorney-General to prosecute the action, which related to charities, and approved the following quotation from Attorney-General vs. Compton (1 Younge & C. C., 417):

Where property affected by a trust for public purposes is in the hands of those who hold it devoted to that trust, it is the privilege of the public that the crown should be

entitled to intervene by its officers for the purpose of asserting, on behalf on the public generally, the public interest and the public right, which, probably, no individual could be found effectually to assert, even if the interest were such as to allow it. (2 Knet's Commentaries, 10th ed., 359; Lewin on Trusts, sec. 732.)

It is further urged, as above indicated, that "the only persons who could claim to be damaged by this payment to the Monte, if it was unlawful, are the donors or the cestuis que trustent, and this Government is neither. Consequently, the plaintiff is not the proper party to bring the action." The earthquake fund was the result or the accumulation of a great number of small contributions. The names of the contributors do not appear in the record. Their whereabouts are unknown. They parted with the title to their respective contributions. The beneficiaries, consisting of the original sufferers and their heirs, could have been ascertained. They are quite numerous also. And no doubt a large number of the original sufferers have died, leaving various heirs. It would be impracticable for them to institute an action or actions either individually or collectively to recover the $80,000. The only course that can be satisfactorily pursued is for the Government to again assume control of the fund and devote it to the object for which it was originally destined.

The impracticability of pursuing a different course, however, is not the true ground upon which the right of the Government to maintain the action rests. The true ground is that the money being given to a charity became, in a measure, public property, only applicable, it is true, to the specific purposes to which it was intended to be devoted, but within those limits consecrated to the public use, and became part of the public resources for promoting the happiness and welfare of the Philippine Government. (Mormon Church vs. U. S., supra.) To deny the Government's right to maintain this action would be contrary to sound public policy, as tending to discourage the prompt exercise of similar acts of humanity and Christian benevolence in like instances in the future.

As to the question raised in the fourth assignment of error relating to the constitutionality of Act No. 2109, little need be said for the reason that we have just held that the present Philippine Government is the proper party to the action. The Act is only a manifestation on the part of the Philippine Government to exercise the power or right which it undoubtedly had. The Act is not, as contended by counsel, in conflict with the fifth section of the Act of Congress of July 1, 1902, because it does not take property without due process of law. In fact, the defendant is not the owner of the $80,000, but holds it as a loan subject to the disposal of the central relief board. Therefor, there can be nothing in the Act which transcends the power of the Philippine Legislature.

In Vilas vs. Manila, supra, the plaintiff was a creditor of the city of Manila as it existed before the cession of the Philippine Islands to the United States by the Treaty of Paris of December 10, 1898. The action was brought upon the theory that the city, under its present charter from the Government of the Philippine Islands, was the same juristic person, and liable upon the obligations of the old city. This court held that the present municipality is a totally different corporate entity and in no way liable for the debts of the Spanish municipality. The Supreme Court of the United States, in reversing this judgment and in holding the city liable for the old debt, said:

The juristic identity of the corporation has been in no wise affected, and, in law, the present city is, in every legal sense, the successor of the old. As such it is entitled to the property and property rights of the predecessor corporation, and is, in law, subject to all of its liabilities.

In support of the fifth assignment of error counsel for the defendant argue that as the Monte de Piedad declined to return the $80,000 when ordered to do so by the Department of Finance in June, 1893, the plaintiff's right of action had prescribed at the time this suit was instituted on May 3, 1912, citing and relying upon article 1961, 1964 and 1969 of the Civil Code. While on the other hand, the Attorney-General contends that the right of action had not prescribed (a) because the defense of prescription cannot be set up against the Philippine Government, (b) because the right of action to recover a deposit or trust funds does not prescribe, and (c) even if the defense of prescription could be interposed against the Government and if the action had, in fact, prescribed, the same was revived by Act No. 2109.

The material facts relating to this question are these: The Monte de Piedad received the $80,000 in 1883 "to be held under the same conditions as at present in the treasury, to wit, at the disposal of the relief board." In compliance with the provisions of the royal order of December 3, 1892, the Department of Finance called upon the Monte de Piedad in June, 1893, to return the $80,000. The Monte declined to comply with this order upon the ground that only the Governor-General of the Philippine Islands and not the Department of Finance had the right to order the reimbursement. The amount was carried on the books of the Monte as a returnable loan until January 1, 1899, when it was transferred to the account of the "Sagrada Mitra." On March 31, 1902, the Monte, through its legal representative, stated in writing that the amount in question was received as a reimbursable loan, without interest. Act No. 2109 became effective January 30, 1912, and the action was instituted on May 3rd of that year.

Counsel for the defendant treat the question of prescription as if the action was one between individuals or corporations wherein the plaintiff is seeking to recover an ordinary loan. Upon this theory June, 1893, cannot be taken as the date when the statute of limitations began to run, for the reason that the defendant acknowledged in writing on March 31, 1902, that the $80,000 were received as a loan, thereby in effect admitting that it still owed the amount. (Section 50, Code of Civil Procedure.) But if counsels' theory is the correct one the action may have prescribed on May 3, 1912, because more than ten full years had elapsed after March 31, 1902. (Sections 38 and 43, Code of Civil Procedure.)

Is the Philippine Government bound by the statute of limitations? The Supreme Court of the United States in U. S.vs. Nashville, Chattanooga & St. Louis Railway Co. (118 U. S., 120, 125), said:

It is settled beyond doubt or controversy — upon the foundation of the great principle of public policy, applicable to all governments alike, which forbids that the public interests should be prejudiced by the negligence of the officers or agents to whose care they are confided — that the United States, asserting rights vested in it as a sovereign government, is not bound by any statute of limitations, unless Congress has clearly manifested its intention that it should be so bound. (Lindsey vs. Miller, 6 Pet. 666; U. S. vs.Knight, 14 Pet., 301; Gibson vs. Chouteau, 13 Wall., 92; U. S. vs. Thompson, 98 U. S., 486; Fink vs. O'Neil, 106 U. S., 272, 281.)

In Gibson vs. Choteau, supra, the court said:

It is a matter of common knowledge that statutes of limitation do not run against the State. That no laches can be imputed to the King, and that no time can bar his rights, was the maxim of the common laws, and was founded on the principle of public policy, that as he was occupied with the cares of government he ought not to suffer

from the negligence of his officer and servants. The principle is applicable to all governments, which must necessarily act through numerous agents, and is essential to a preservation of the interests and property of the public. It is upon this principle that in this country the statutes of a State prescribing periods within which rights must be prosecuted are not held to embrace the State itself, unless it is expressly designated or the mischiefs to be remedied are of such a nature that it must necessarily be included. As legislation of a State can only apply to persons and thing over which the State has jurisdiction, the United States are also necessarily excluded from the operation of such statutes.

In 25 Cyc., 1006, the rule, supported by numerous authorities, is stated as follows:

In the absence of express statutory provision to the contrary, statute of limitations do not as a general rule run against the sovereign or government, whether state or federal. But the rule is otherwise where the mischiefs to be remedied are of such a nature that the state must necessarily be included, where the state goes into business in concert or in competition with her citizens, or where a party seeks to enforces his private rights by suit in the name of the state or government, so that the latter is only a nominal party.

In the instant case the Philippine Government is not a mere nominal party because it, in bringing and prosecuting this action, is exercising its sovereign functions or powers and is seeking to carry out a trust developed upon it when the Philippine Islands were ceded to the United States. The United States having in 1852, purchased as trustee for the Chickasaw Indians under treaty with that tribe, certain bonds of the State of Tennessee, the right of action of the Government on the coupons of such bonds could not be barred by the statute of limitations of Tennessee, either while it held them in trust for the Indians, or since it became the owner of such coupons. (U. S.vs. Nashville, etc., R. Co., supra.) So where lands are held in trust by the state and the beneficiaries have no right to sue, a statute does not run against the State's right of action for trespass on the trust lands. (Greene Tp. vs.Campbell, 16 Ohio St., 11; see also Atty.-Gen. vs. Midland R. Co., 3 Ont., 511 [following Reg. vs. Williams, 39 U. C. Q. B., 397].)

These principles being based "upon the foundation of the great principle of public policy" are, in the very nature of things, applicable to the Philippine Government.

Counsel in their argument in support of the sixth and last assignments of error do not question the amount of the judgment nor do they question the correctness of the judgment in so far as it allows interest, and directs its payment in gold coin or in the equivalent in Philippine currency.

For the foregoing reasons the judgment appealed from is affirmed, with costs against the appellant. So ordered.

Torres, Johnson and Araullo, JJ., concur. Moreland, J., did not sign.

   

Republic of the Philippines SUPREME COURT

Manila

SECOND DIVISION

G.R. No. L-25843 July 25, 1974

MELCHORA CABANAS, plaintiff-appellee, vs. FRANCISCO PILAPIL, defendant-appellant.

Seno, Mendoza & Associates for plaintiff-appellee.

Emilio Benitez, Jr. for defendant-appellant.

FERNANDO, J.:p

The disputants in this appeal from a question of law from a lower court decision are the mother and the uncle of a minor beneficiary of the proceeds of an insurance policy issued on the life of her deceased father. The dispute centers as to who of them should be entitled to act as trustee thereof. The lower court applying the appropriate Civil Code provisions decided in favor of the mother, the plaintiff in this case. Defendant uncle appealed. As noted, the lower court acted the way it did following the specific mandate of the law. In addition, it must have taken into account the principle that in cases of this nature the welfare of the child is the paramount consideration. It is not an unreasonable assumption that between a mother and an uncle, the former is likely to lavish more care on and pay greater attention to her. This is all the more likely considering that the child is with the mother. There are no circumstances then that did militate against what conforms to the natural order of things, even if the language of the law were not as clear. It is not to be lost sight of either that the judiciary pursuant to its role as an agency of the State as parens patriae, with an even greater stress on family unity under the present Constitution, did weigh in the balance the opposing claims and did come to the conclusion that the welfare of the child called for the mother to be entrusted with such responsibility. We have to affirm.

The appealed decision made clear: "There is no controversy as to the facts. " 1 The insured, Florentino Pilapil had a child, Millian Pilapil, with a married woman, the plaintiff, Melchora Cabanas. She was ten years old at the time the complaint was filed on October 10, 1964. The defendant, Francisco Pilapil, is the brother of the deceased. The deceased insured himself and instituted as beneficiary, his child, with his brother to act as trustee during her minority. Upon his death, the proceeds were paid to him. Hence this complaint by the mother, with whom the child is living, seeking the delivery of such sum. She filed the bond required by the Civil Code. Defendant would justify his claim to the retention of the amount in question by invoking the terms of the insurance policy. 2

After trial duly had, the lower court in a decision of May 10, 1965, rendered judgment ordering the defendant to deliver the proceeds of the policy in question to plaintiff. Its main reliance was on Articles 320 and 321 of the Civil Code. The former provides: "The father, or

in his absence the mother, is the legal administrator of the property pertaining to the child under parental authority. If the property is worth more than two thousand pesos, the father or mother shall give a bond subject to the approval of the Court of First Instance." 3 The latter states: "The property which the unemancipated child has acquired or may acquire with his work or industry, or by any lucrative title, belongs to the child in ownership, and in usufruct to the father or mother under whom he is under parental authority and whose company he lives; ... 4

Conformity to such explicit codal norm is apparent in this portion of the appealed decision: "The insurance proceeds belong to the beneficiary. The beneficiary is a minor under the custody and parental authority of the plaintiff, her mother. The said minor lives with plaintiff or lives in the company of the plaintiff. The said minor acquired this property by lucrative title. Said property, therefore, belongs to the minor child in ownership, and in usufruct to the plaintiff, her mother. Since under our law the usufructuary is entitled to possession, the plaintiff is entitled to possession of the insurance proceeds. The trust, insofar as it is in conflict with the above quoted provision of law, is pro tanto null and void. In order, however, to protect the rights of the minor, Millian Pilapil, the plaintiff should file an additional bond in the guardianship proceedings, Sp. Proc. No. 2418-R of this Court to raise her bond therein to the total amount of P5,000.00." 5

It is very clear, therefore, considering the above, that unless the applicability of the two cited Civil Code provisions can be disputed, the decision must stand. There is no ambiguity in the language employed. The words are rather clear. Their meaning is unequivocal. Time and time again, this Court has left no doubt that where codal or statutory norms are cast in categorical language, the task before it is not one of interpretation but of application. 6So it must be in this case. So it was in the appealed decision.

1. It would take more than just two paragraphs as found in the brief for the defendant-appellant 7 to blunt the force of legal commands that speak so plainly and so unqualifiedly. Even if it were a question of policy, the conclusion will remain unaltered. What is paramount, as mentioned at the outset, is the welfare of the child. It is in consonance with such primordial end that Articles 320 and 321 have been worded. There is recognition in the law of the deep ties that bind parent and child. In the event that there is less than full measure of concern for the offspring, the protection is supplied by the bond required. With the added circumstance that the child stays with the mother, not the uncle, without any evidence of lack of maternal care, the decision arrived at can stand the test of the strictest scrutiny. It is further fortified by the assumption, both logical and natural, that infidelity to the trust imposed by the deceased is much less in the case of a mother than in the case of an uncle. Manresa, commenting on Article 159 of the Civil Code of Spain, the source of Article 320 of the Civil Code, was of that view: Thus "El derecho y la obligacion de administrar el Patrimonio de los hijos es una consecuencia natural y lógica de la patria potestad y de la presunción de que nadie cuidará de los bienes de acquéllos con mas cariño y solicitude que los padres. En nuestro Derecho antiguo puede decirse que se hallaba reconocida de una manera indirecta aquelia doctrina, y asi se desprende de la sentencia del Tribunal Supremeo de 30 de diciembre de 1864, que se refiere a la ley 24, tit. XIII de la Partida 5. De la propia suerte aceptan en general dicho principio los Codigos extranjeros, con las limitaciones y requisitos de que trataremos mis adelante." 8

2. The appealed decision is supported by another cogent consideration. It is buttressed by its adherence to the concept that the judiciary, as an agency of the State acting as parens patriae, is called upon whenever a pending suit of litigation affects one who is a minor to accord priority to his best interest. It may happen, as it did occur here, that family relations may press their respective claims. It would be more in consonance not only with the natural order of things but the tradition of the country for a parent to be preferred. it could have been different if the conflict were between father and mother. Such is not the case at all. It is a mother asserting priority. Certainly the judiciary as the instrumentality of the State

in its role of parens patriae, cannot remain insensible to the validity of her plea. In a recent case, 9 there is this quotation from an opinion of the United States Supreme Court: "This prerogative of parens patriae is inherent in the supreme power of every State, whether that power is lodged in a royal person or in the legislature, and has no affinity to those arbitrary powers which are sometimes exerted by irresponsible monarchs to the great detriment of the people and the destruction of their liberties." What is more, there is this constitutional provision vitalizing this concept. It reads: "The State shall strengthen the family as a basic social institution." 10 If, as the Constitution so wisely dictates, it is the family as a unit that has to be strengthened, it does not admit of doubt that even if a stronger case were presented for the uncle, still deference to a constitutional mandate would have led the lower court to decide as it did.

WHEREFORE, the decision of May 10, 1965 is affirmed. Costs against defendant-appellant.

Zaldivar (Chairman), Antonio, Fernandez and Aquino, JJ., concur.

Barredo, J., took no part.

   

Republic of the Philippines SUPREME COURT

Manila

EN BANC

G.R. No. L-5 September 17, 1945

CO KIM CHAM (alias CO KIM CHAM), petitioner, vs. EUSEBIO VALDEZ TAN KEH and ARSENIO P. DIZON, Judge of First Instance of Manila, respondents.1

Marcelino Lontok for petitioner. P. A. Revilla for respondent Valdez Tan Keh. Respondent Judge Dizon in his own behalf.

FERIA, J.:

This 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 judgements of the court of the Philippines under the Philippine Executive Commission and the Republic of the Philippines established during the Japanese military occupation, and 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 no 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 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 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."

A civil government or central administration 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 Forces 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 judicial courts, based upon what had existed therefore, with 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 administration 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 Philippines 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 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 MacArthur, Commander in Chief of the United States Army, in which he declared "that all laws, regulations and processes of any of the government in the Philippines than that of the said Commonwealth are null and void and without legal effect in areas of the Philippines free of enemy occupation and control," has invalidated all judgements and judicial acts and proceedings of the said courts; 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 court existing prior to, and continued during, the Japanese military occupation of the Philippines, may continue those proceedings pending in said courts at the time the Philippines were reoccupied and liberated by the United States and Filipino forces, and the Commonwealth of the Philippines were reestablished in the Islands.

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 the Philippine Executive Commission and Republic of the Philippines during the Japanese military occupation or regime were de facto governments. If they were, the judicial acts and proceedings of those governments remain good and valid even after the liberation or reoccupation of the Philippines by the American and Filipino forces.

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 governments and maintains itself against the will of the latter, such as the government of England under the Commonwealth, first by Parliament and later by Cromwell as Protector. 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 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 of such as the government of the

Southern Confederacy in revolt not concerned in the present case with the first kind, but only with the second and third kinds of de factogovernments.

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 with the territories, and against the rightful authority of an established and lawful government; and (2), that while it exists it 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, civil authority, supported more or less directly by military force. . . . One example of this sort of government is found in the case of Castine, in Mine, 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 possessions of territory by lawfull 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 said Section III provides "the authority of the legislative power having actually passed into the hands of the occupant, the latter shall take 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 the 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 suspended 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 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 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 President 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 war, as established by the usage of the 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, excepts so far as they are suspended or changed by the acts of 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 inhabitants, 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 factogovernment. 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 no originate in lawful acts of regular war; but it was not, on the 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 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 kindered 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 occured 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 intowith 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 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 Willington, 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 Hauge Conventions of 1907 (which prohibits compulsion of the population of the occupied territory to swear allegiance to the hostile power), the 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 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 the name with the support and backing of Japan, such government would have been considered as one established by the Filipinos in insurrection or rebellion against the parent state or the Unite 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 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 Islands and established a republic, governing the Islands 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 of 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 the 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 the 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 Douglas MacArthur on October 23, 1944, which declares null and void all laws, regulations and processes of the governments established in the Philippines during the Japanese occupation, for it would not have been necessary for said proclamation to abrogate them if they were invalid ab initio.

2. The second question 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 void 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 the 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 judgements 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 of 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 judgements or decisions may afterwards be annulled, and criminals would not be deterred from committing crimes or offenses in the expectancy that they may escaped the penalty if judgments rendered against them may be afterwards set aside.

That the proclamation has not invalidated all the judgements 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 case which have heretofore been duly appealed to the Court of Appeals shall be transmitted to the Supreme Court 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 have been duly appealed to said court prior to the Japanese occupation, but to cases which had therefore, 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 quotion 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 to decide; that there is no rule of international law that denies to the restored government the right of 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 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" prisely, 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 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 of conscience, constitute or from 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 right 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 defined 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. (Mithell 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 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 now good and valid after the reoccupation of 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 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 preexisting 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 institution 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, 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 affective for the time being as in the past," and "all public officials shall remain in their present post 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 of 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 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 had become reestablished and conceived of as having 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 principles "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 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 in his conclusion that the Court of First Instance of Manila presided over by him "has no authority to take cognizance of, and continue said proceedings (of this case) to final judgment until and unless the Government of the Commonwealth of the Philippines . . . shall have provided for the transfer of the jurisdiction of the courts of the now defunct Republic of the Philippines, and the cases commenced and the left pending therein," is "that said courts were a government alien to the Commonwealth Government. The 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 institution or courts so continued remain the laws

and institutions or courts of the occupied territory. The laws and the courts of the Philippines, therefore, did not become, by being continued as 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 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 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 the some competent legislative power. It is not change 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 on Laws (Cambridge, 1916, Section 131): "There can 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 take 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 acts creates a change."

As courts are creatures of statutes and their existence defends upon that of the laws which create and confer upon them their jurisdiction, it is evident that such laws, not being 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 of 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 change 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 Island 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 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 court created by Act No. 183 were transferred to the latter.

That the present courts as 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 dully appealed to the said Court of Appeals shall be transmitted to the Supreme Court for final decision.

It is, therefore, obvious that the present courts have jurisdiction to continue, to final judgment, the proceedings in cases, not of political complexion, pending therein at the time of the restoration of the Commonwealth Government.

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 the court, having refused to act and continue him does 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.

Separate Opinions

DE JOYA, J., concurring:

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 Conventions 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 be 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 later 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 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 of 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 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 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 appointed by him.(Young vs. 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, 3rd 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 duly 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 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 establish 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; Williamsvs. Bruffy, 96 U. S., 176; Horn vs. Lockhart, 17 Wall., 570; Sprott vs. United States, 20 id., 459; Texas vs. White, 7id., 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." (William 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 might, perhaps, be more aptly denominateda 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 government 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 of 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 Guarina [1913], 24 Phil., 37; Fuentes vs. Director of Prisons [1924], 46 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 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 is 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., 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 his 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 the public interests.

For the foregoing reasons, I concur in the majority opinion.

PERFECTO, J., dissenting:

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 in 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 code was engrave in black diorite with cunie form 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 verdic 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 plants 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 the 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 endeavor there are so many things that might induce us to forget the elementals. There are so many events, so many problem, 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 islands was accomplished, after the most amazing and spectacular war operations, General of the Army Douglas MacArthur as a 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 validated. At the same time he had to take immediate action. More pressing military matters were requiring his immediate attention. He followed the safe 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 the Philippines 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 the only government having legal and valid jurisdiction over the people in areas of the Philippines free of enemy occupation and control;

2. The laws now existing on the statute books of the Commonwealth of the Philippines and the regulation promulgated pursuant thereto are in full force and effect and legally binding upon the people in areas of the Philippines free of enemy occupation and control; and

3. That all laws, regulations and processes of any other government in the Philippines than that of the said Commonwealth are null and void and without legal effect in areas of the Philippines free enemy occupation and 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 to 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 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 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 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 of 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, the 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 judgement 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 judgement was illegal and void, because the Provost Court had no jurisdiction of the case. The judgement 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 under this constitutional provision they were entitled to immunity from 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 the 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 the 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 the 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 form 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 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 the 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 instructed 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 declared to embrace, first, all criminal causes that should not otherwise provided for by law; and secondly, original and exclusive cognizance of all civil cases not cognizable before the prefects and alcades. 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 the 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 the military authority of court 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 judgements 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 a Commander in Chief, had such authority. We do not concur in this view. General Butler was in command of the conquering and the occupying army. He was commissioned to carry on the war in Louisina. He was, therefore, invested with all the powers of making war, so far as they were denied to him by the Commander in Chief, and among these powers, as we have seen, was 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 on 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.

"PROCESS" 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 it 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 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). (3 Bouvier's Law Dictionary, p. 2731.)

A. Process generally. 1. Definition. — As a legal term process is a generic word of every comprehensive signification and many meanings. It is 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 defined as the means whereby a court compels a compliance with it 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 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 the 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 proceeding 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 two fold, namely, by the King's writ, or by proceeding and warrant, either in deed or in law, without writ." (People vs. Nevins [N. Y.] Hill, 154, 169, 170; State vs. Shaw, 50 A., 869; 73 Vt., 149.)

Baron Comyn says that process, in a large acceptance, comprehends the whole proceedings after the original and before judgement; 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 court ought to be in the name of the King. It is called "process" because it proceeds or goes 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 it demands, and any 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 it is not restricted to mesne process. In a narrow or restricted sense it is 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 from 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 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 a proceeding after the original, before the judgement. A policy of fire insurance contained the condition that if the property shall be sold or transferred, or any change takes place in 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 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. Trimple, 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 in 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; Bou vs. Law. Dict. (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 then 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 case 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 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 the 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 he 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 "process." besides those judicial character, those of executive or administrative character. At any rate, judicial processes cannot be excluded.

THE WORDS OF 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, 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 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 expression 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 liberty to imagine an intent and bind the letter to the 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 the 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 ommission, 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 may call war weapons of psychological character.

So Japan, since its military forces occupied Manila, had waged an intensive campaign 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 orientals 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 the liberation, that is, to restore in our country constitutional processes and the high ideals 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 the 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 regime, 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 effects 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 reigned and governed by a line 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 the 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 occured 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 harakiri or sepukku, the most bloody and repugnant from 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 from the hito-bashira (pillar-men) to gird the grave. They were buried alive in circle up to the neck around the thomb and "for several days they died not, but wept and wailed day night. At last they died not, but wept and wailed day night. At last they did not 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 window, his ministers, and notable men and women of his kingdom, selected by the priests to partake of such abominable honor. (Broduer, The Pageant of Civilization, pp. 62-66.)

General MacArthur sought to annul completely the officials 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 Frehsness"; 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 tha mandated islands in the Pacific; they initiated that 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 the 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 an anchronism of a modern world power which seems to be re-incarnation of one whose 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 characteristics and well defined 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 the wholesale and indiscriminate slapping, tortures, and atrocious

massacres. Driving nails in the cranium, extraction of teeth and eyes, burnings of organs, hangings, diabolical zonings, looting of properties, establishments of redlight districts, machine gunning of women and children, interment of alive persons, they are just mere preludes of the promised paradised 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, munitions dumps, artillery base, deposits of bombs and gasoline, torture chambers and zone, 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 prejuce of placing of 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 dispotic 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 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 reality; justice is admnistered 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 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 the 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 the 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 the 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 to 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 country, 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 driot des gens, en effet, n'est point une science fixe est immuable: bein au contraire, il se developpe sans cesse, il change eternellement de formes; tour il avance et il recule, selon less vicissitudes de histoire et suivan un rhythm monotone qui est comme le flux et le reflux d'un mer. (M. Revon, De l'existence du driot international sous la republique romain.)

Another author has this to say:

International law, if it is or can 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 of 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 antimony 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 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 a certain matters 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 the belligerents to massacre the women and the 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 effect 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 San Francisco Conference on June 26, 1945, we have to rely on unsystemized 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 insists, therefore, that the principles should be specific and unmistakably defined and that there is definite and conclusive evidence to the effect that they 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 wandering of the imagination often impair the course of dialistics.

THE OCTOBER PROCLAMATION AND INTERNATIONAL LAW

Is there any principle of international law that may effect 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 viodance and nullity of all judicial processes, procedures, and proceedings of all courts under the Japanese regime.

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 conlusion that the world "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 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 exist, it can be pointed out. If the principle exists, it can 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 lighting 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 had invalidated all judgement 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 tourism in political and international law that all acts of ade 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 postliminium, 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 governments are good and valid.

It is 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 factogovernments 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 government 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 governments are good and valid? Did it not maintain that they are so as a "legal truism in political and international law?"

Now if 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 that 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 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 unmasks 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 for 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 interest 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 regime "would paralyze the social life of the country." To allay such fear we must remind them that the country that produced many great hereos and martyrs; that contributed some of highest morals figures that humanity has ever produced in all history; which 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 to courts of a future invasions, litigants will not summit their cases to courts whose judgement 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, especially 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 principle stated the majority opinion quotes from Wheaton the following: "Moreover when it is said that 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 stored 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 the 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 the 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 therefore, 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 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, wee are entitled to presume that it is concurred in and, therefore, the qualifications made in the statement in the majority opinion seem to 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 political complexion.

The reasoning calls for immediate opposition. It is absolutely contrary to all principles of logic.

Between the duties imposed in 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 occupants is duty bound to protect the civil rights of the inhabitants, but why should the legitimate government necessarily validate the measures adopted by the 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 run the logic of the majority.

They don't mind the 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:

xxx xxx xxx

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. (emphasis 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 possible conclusion which we cannot be avoid opposing and exposing.

Are we to adopt and follow the policy of deciding cases submitted to our consideration, by presumption 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 to 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 insists 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 defined, 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 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 the sections 56, 57, Chapter IV, of Act No. 136. The original and appellate jurisdiction of the Supreme Court is provided in 17 and 18, Chapter II, of the same Act. The provisions of the above-cited do not authorize, even implicitly, any of the decisions and judgements of tribunals of the 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 the well- established legal doctrine, prevailing not only in the Philippines, but also in the proper enabling law.

Almost a 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 govenment and administrative provisions which they were authorized to prescribed, 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 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 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 Administravo." — All records, books, papers, causes, actions, proceedings, and appeals logged, deposited, or pending in the existing Audiencia or Supreme Court, or pending by appeal before the Spanish tribunal called "Contencioso Administravo," 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 allowed 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, proceedings, and appeals lodged, deposited, or pending in the Court of First Instance as now constituted of or 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 case of appeal, appealed thereto.

SEC. 65. Abolition of existing Courts of First Instance. — The existing Courts 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 followed by the Philippine Commission eventhough 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 or 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 enabling law, wherein it is provided that decisions rendered by the provost courts and military commission shall be ordered executed by the 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 Congress 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 reestablished in the State, though still liable to the 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 Vinice.

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 the 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 judgements, orders, and decrees of the Provisional Court in causes transferred to the Circuit Court should at once become the orders, judgements, 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.

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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 judgement and decrees, to the proper courts of the United States. (U. S. Reports, Wallace, Vol. 9, The Grapeshot, 131-133.)

JUDGEMENTS OF THE 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 the 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. Report, Wallace, Vol. 22, Mechanics' etc. Bank vs. Union Bank, 281.)

EVEN AMONG SISTERS STATES OF THE UNITED STATES JUDGEMENTS ARE NOT EXECUTORY

The member states of the United States of America belong to the same nation, to the country, and are under the same sovereignty.

But judgements rendered in one state are not executory 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 bar the sister state judgement puis darrien continuance. (Wharton, on the Conflict of Laws, Vol. II, p. 1411.)

Under the Constitution of the United States, when a judgement 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 tielrecord. (Id., p. 1413.).

It is competent for the defendant, however, to an action on a judgement of a sister state, as to an action on a foreign judgement, to set up as a defense, want of jurisdiction of the court rendering the judgement; and, as indicating such want of jurisdiction, to aver by plea that the defendant was not an inhabitant of the state rendering the judgement, 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 act 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 of 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 Asenio P. Dizon, the respondent judge of the Court of the 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 regime, the courts which disappeared and, automatically, ceased to function with the ouster of the enemy, the position of the 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 inevitable result of the sweeping and absolute annulment declared by the 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, 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 the international law on military occupants, but no authority has been cited to the effect that the representative of the restored legitimate government is a 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 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 annullment of all the judicial processes under the Japanese regime, as provided in the October Proclamation, but the tribunals are not 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 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 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 a 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 "AND VOID 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 the 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 facts 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 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 the 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. It is a course based on misconstruction or misunderstanding of the October Proclamation, in utter disregard of the most elemental principles of legal here meneutics. 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 complexities. 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 vitalizing sap that nurtures the body politic. The issue is between the validity of one or more Japanese regime 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 the 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 cross road: which way shall we follow? The processes and the law are placed in the opposite ends of the

balance. Shall we inclined 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 lucubration's, 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 proceeding 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 a plaintiff in said case, and of the petition filed by respondent Eusebio Valdez Tan Keh, as defendant therein, on May 31, 19045, 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 lates, 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 judgement, 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 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 ade 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 of 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:

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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; and

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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 the 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 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 proclamations 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 proceeding 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 the 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 the 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:

One of the fourtheenth of this month, a puppet government was set up in the Philippine Island with Jose P. Laurel, formerly a justice of the Philippine Supreme Court, as "president." Jorge Vargas, formerly as a member of the 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 hyphocritical 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 symphaty 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

(Form 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 regime" 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 symphaty goes out to those 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." (Emphasis 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 Casetine, 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." (Emphasis 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 recognize and impose. Whilst the United Statesretained possession of Tampico, it was held that it must 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 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 supremancy 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; emphasis 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 will all of its acts, at least of 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 choosen 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 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 then 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 posses sovereign powers; as such to displace to jurisdiction and authority of the United States from nearly half of their territory and, instead of their laws, to substitute and enforce those of its own enactment. Its pretentions being resisted, they were submitted to the arbitrament of war. In that contest the Confederacy failed; and in its failure its pretentions were dissipated, its armies scattered, and the whole fabric of its government broken in pieces. (24 Law, ed., 719; emphasis 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 for holding 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 which it is adopted" (emphasis ours). And, referring to the overthrow of the of the Confederacy, the Court, said, "when its military forces were overthrown, it utterly perished, and with it all its enactments" (emphasis ours)

The majority cite on page 9-10 of their opinion a passage from the same case of Williams 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 something 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 (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, order, 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, usages 36 et seq., Official Gazette, edited at the Office of the Executive Commission) gave the "Detailed Instruction Based on Guiding Principle of the 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, 19452 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. o . . ." (This is, likewise, repugnant to the Commonwealth Constitution and the to the Government of that 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 unsuccesfully 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., 58, decided at the circuit, and, in all material respects like the one at bar, "Those who engage in rebellion must consider the consequences. If theysucceed, 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.) (Emphasis 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 a 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 Shortridgevs. 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 the his order was not a de facto government--the so-called Court of First Instance of Manila was not a de factocourt and the 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 instruments 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 hundred fold, 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 the 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 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 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 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 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-McDufie Act of 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 stamps 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 the Filipinos. And 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 slighest intensions to make your people our enemy; rather we considered them as our friends who will join us has 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. 55.)

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 strickly 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. . . . (Emphasis 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.) (Emphasis ours.) The illustrious leader of the United Nations could not have in more unmistakable terms the utter illegality of that invasion and occupation. If the establishment of a provinsional 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 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 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:

xxx xxx xxx

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 the day to day and from island until it broke out into an open warfare against the enemy.

The fight against the enemy was 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 auxilliary 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 town 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 the 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, and 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 regulation 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 Sates 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 10, 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. For soothe, 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 thereunder, 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 the Japanese-sponsored government. In the Commonwealth judicial system, if a Justice or Judge should die or 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 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 transfered to the Commonwealth courts which we re-established under Executive Order No. 36. For the 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 the 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 the 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 preceeding and issued on the same date, the 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 the legal principles but also for the reasons of national dignity and international decency. To answer the question in the affirmative would be nothing short for 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.

V

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 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 the 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 institution 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 the 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 the 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 confussion, should be alleged to possibly arise from a declaration of nullity or 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 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 for from the Japanese, 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 adverse 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 instances, 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 then generally difficult and abnormal conditions prevailing. Under such conditions, cases or denial of a party's day in court expected. Such denial might arise from many a cause. It might be 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 Filipinos. These are but a few of countless cause. 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 the 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 proceedings, particullarly, those in 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 where 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 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. May in their common hardship and sufferings under 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 to have. Those who voluntarily went to the courts in those tragic days belong to the small minority.

As to the 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.

   

Republic of the Philippines SUPREME COURT

Manila

EN BANC

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

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

William F. Peralta in his own behalf. Office of the Solicitor General Tañada for respondent. City Fiscal Mabanag as amicus curiae.

FERIA, J.:

Petitioner-defendant, a member of the Metropolitan Constabulary of Manila charged with the supervision and control of the production, procurement and distribution of goods and other necessaries as defined in section 1 of Act No. 9 of the National Assembly of the so-called Republic of the Philippines, was prosecuted for the crime of robbery as defined and penalized by section 2 (a) of Act No. 65 of the same Assembly. He was found guilty and sentenced to life imprisonment, which he commenced to serve on August 21, 1944, by the Court of Special and Exclusive Criminal Jurisdiction, created in section 1 of Ordinance No. 7 promulgated by the President of the so-called Republic of the Philippines, pursuant to the authority conferred upon him by the Constitution and laws of the said Republic. And the procedure followed in the trial was the summary one established in Chapter II of Executive Order No. 157 of the Chairman of the Executive Commission, made applicable to the trial violations of said Act No. 65 by section 9 thereof and section 5 of said Ordinance No. 7.

The petition for habeas corpus is based on the ground that the Court of Special and Executive Criminal Jurisdiction created by Ordinance No. 7 "was a political instrumentality of the military forces of the Japanese Imperial Army, the aims and purposes of which are repugnant to those aims and political purposes of the Commonwealth of the Philippines, as well as those of the United States of America, and therefore, null and void ab initio," that the provisions of said Ordinance No. 7 are violative of the fundamental laws of the Commonwealth of the Philippines and "the petitioner has been deprived of his constitutional rights"; that the petitioner herein is being punished by a law created to serve the political purpose of the Japanese Imperial Army in the Philippines, and "that the penalties provided for are much (more) severe than the penalties provided for in the Revised Penal Code."

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

The City Fiscal of Manila appeared before this Court as amicus curiae. In his memorandum he submits that the petition for habeas corpus be denied on the following grounds: That the Court of Special and Exclusive Criminal Jurisdiction and the Acts, Ordinances and Executive Orders, creating it are not of a political complexion, for said Court was created, and the crimes and offenses placed under its jurisdiction were penalized heavily, in response to an urgent necessity, according to the preamble of Ordinance No. 7; that the right to appeal in a criminal case is not a constitutional right; and that the summary procedure established in said Ordinance No. 7 is not violative of the provision of Article III, section 1 (18) of the Constitution of the Commonwealth, to the effect that no person shall be compelled to be a

witness against himself, nor of the provision of section 1 (1) of the same Article that no person shall be deprived of life, liberty, or property without due process of law.

The features of the summary procedure adopted by Ordinance No. 7, assailed by the petitioner and the Solicitor General as impairing the constitutional rights of an accused are: that court may interrogate the accused and witnesses before trial in order to clarify the points in dispute; that the refusal of the accused to answer the questions may be considered unfavorable to him; that if from the facts admitted at the preliminary interrogatory it appears that the defendant is guilty, he may be immediately convicted; and that the sentence of the sentence of the court is not appealable, except in case of death penalty which cannot be executed unless and until reviewed and affirmed by a special division of the Supreme Court composed of three Justices.

Before proceeding further, and in order to determine the law applicable to the questions involved in the present case, it is necessary to bear in mind the nature and status of the government established in these Islands by the Japanese forces of occupation under the designation of Republic of the Philippines.

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

In view of the foregoing, it is evident that the Philippines Executive Commission, which was organized by Order No. 1, issued on January 23, 1942, by the Commander of the Japanese forces, was a civil government established by the military forces of occupation and therefore a de facto government of the second kind. It was not different from the government established by the British in Castine, Maine, or by the United States in Tanpico, Mexico. As Halleck says, "the government established over an enemy's territory during the military occupation may exercise all the powers given by the laws of war to the conqueror over the conquered, and is subject to all restrictions which that code imposes. It is of little consequence whether such government be called a military or civil government. Its character is the same and the source of its authority the same. In either case it is a government imposed by the laws of war and so far as it concerns the inhabitants of such territory or the rest of the world those laws alone determine the legality or illegality of its acts." (vol. 2 p. 466.) The fact that the Philippine Executive Commission was a civil and not a military government and was run by Filipinos and not by Japanese nationals is of no consequence.

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

The so-called Republic of the Philippines, apparently established and organized as a sovereign state independent from any other government by the Filipino people, was, in truth and reality, a government established by the belligerent occupant or the Japanese forces of occupation. It was of the same character as the Philippine Executive Commission, and the ultimate source of its authority was the same — the Japanese military authority and government. As General MacArthur stated in his proclamation of October 23, 1944, a portion of which has been already quoted, "under enemy duress, a so-called government styled as the 'Republic of the Philippines' was established on October 14, 1943, based upon neither the free expression of the peoples" will nor the sanction of the Government of the United

States.' Japan had no legal power to grant independence to the Philippines or transfer the sovereignty of the United States to, or recognize the latent sovereignty of the Filipino people, before its military occupation and possession of the Islands had matured into an absolute and permanent dominion or sovereignty by a treaty of peace or other means recognized in the law of nations.

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

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

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

Commonwealth Government was suspended during the occupation of the Philippines by the Japanese forces of the belligerent occupant at regular war with the United States.

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

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

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

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

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

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

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

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

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

From the above it appears clear that it was within the power and competence of the belligerent occupant to promulgate, through the National Assembly of the so-called Republic of the Philippines, Act No. 65 of the said Assembly, which penalizes the crimes of robbery and other offenses by imprisonment ranging from the maximum period of the imprisonment prescribed by the laws and ordinances promulgated by the President of the so-called Republic as minimum, to life imprisonment or death as maximum. Although these crimes are defined in the Revised Penal Code, they were altered and penalized by said Act No. 65 with different and heavier penalties, as new crimes and offenses demanded by military necessity, incident to a state of war, and necessary for the control of the country by the belligerent occupant, the protection and safety of the army of occupation, its support and efficiency, and the success of its operations.

They are not the same ordinary offenses penalized by the Revised Penal Code. — The criminal acts penalized by said Act No. 65 are those committed by persons charged or connected with the supervision and control of the production, procurement and distribution of foods and other necessaries; and the penalties imposed upon the violators are different from and much heavier than those provided by the Revised Penal Code for the same ordinary crimes. The acts penalized by said Act were taken out of the territorial law or Revised Penal Code, and referred to what is called martial law by international jurists, defined above by Hyde, in order, not only to prevent food and other necessaries from reaching the "guerrillas" which were harassing the belligerent occupant from every nook and corner of the country, but also to preserve the food supply and other necessaries in order that, in case of necessity, the Imperial Japanese forces could easily requisition them, as they did, and as they had the right to do in accordance with the law of nations for their maintenance and subsistence (Art. LII, Sec. III, Hague Conventions of 1907). Especially taking into consideration the fact, of which this court may take judicial notice, that the Imperial Japanese Army had depended mostly for their supply upon the produce of this country.

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

"Of 'war crimes' the number is naturally indefinite, depending as they do on the acts from time to time ordered to be done or forbidden to be done in the martial law proclamation or regulations of the invading or occupying commander. Thus, in the Anglo-Boer war, the British military authorities proclaimed the following to be offenses against their martial law; — Being in possession of arms, ammunition, etc.; traveling without a permit; sending prohibited goods; holding meetings other than those allowed; using seditious language; spreading alarmist reports; overcharging for goods; wearing uniforms without due authority; going out of

doors between certain hours; injuring military animals or stores; being in possession, without a permit, of horses, vehicles, cycles, etc.; hindering those in execution of military orders; trespassing on defense works. Such offenses, together with several others, were specified in the Japanese regulations made in the Russo-Japanese war." (Wheaton's International Law, War, seventh edition, 1944, p. 242.)

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

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

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

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

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

And Wheaton, who, as above stated, considers as war crimes such offenses as those penalized in Ordinance No. 7 and Act No. 65, says: "In general, the cast of the occupant possess legal validity, and under international law should not be abrogated by the subsequent government. But this rule does not necessarily apply to acts that exceed the occupant's power (e.g., alienation of the domains of the State or the sovereign), to sentences for 'war treason' and 'war crimes,' to acts of a political character, and to those that beyond the period of occupation. When occupation ceases, no reparation is legally due for what has already been carried out." (Wheaton's International Law, supra, p. 245.)

We have already held in our recent decision in the case of Co Kim Cham vs. Valdez Tan Keh and Dizon, supra, that all judgments of political complexion of the courts during the Japanese regime, ceased to be valid upon the reoccupation of the islands by virtue of the principle or right of postliminium. Applying that doctrine to the present case, the sentence which convicted the petitioner of a crime of a political complexion must be considered as having ceased to be valid ipso facto upon the reoccupation or liberation of the Philippines by General Douglas MacArthur.

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

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

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

Jaranilla, Pablo and Bengzon, JJ., concur. Moran, C.J., concurs in the result.

Separate Opinions

OZAETA, J., concurring:

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

Accused of robbery in the Court of Special and Exclusive Criminal Jurisdiction of Manila, the petitioner was found guilty and sentenced to life imprisonment. He commenced to serve the sentence on August 21, 1944. He now petitions this Court for the writ of habeas corpus,

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

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

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

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

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

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

imposing the death penalty, shall immediately forward the records of the case to the special division of the Supreme Court herein created, which shall decide the case within fifteen days from the receipt of the records thereof.

SEC. 7. The interest of public safety so requiring it, the privileges of the writ of habeas corpus are hereby suspended with respect to persons accused of, or under investigations for, any of the crimes and offenses enumerated in sections 1 and 2 hereof.

SEC. 8. All laws, rules or orders, or parts thereof, inconsistent with the provisions hereof, are hereby repealed or modified accordingly.

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

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

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

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

Such trials shall be conducted according to the following rules:

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

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

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

(d) If from the facts admitted at the preliminary interrogation, it should appear that the accused is guilty of the crime charged in the information, or in any other information, or in any other information, or in any other information subsequently filed by the

prosecuting officer, a sentence of conviction may be immediately rendered against the accused. Otherwise, the judge shall dictate an order distinctly specifying the facts admitted by the accused and those which are in dispute, and the trial shall be limited to the latter, unless the judge, for special reasons, otherwise directs.

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

The provisions of Rules 115 to 117 of the Rules of Court shall be suppletory to the foregoing insofar as they are not in conflict therewith.

The records shows that during their existence the courts of special and exclusive criminal jurisdiction created by the ordinance in question convicted and sentenced a total of 94 individuals, 55 of whom had been prosecuted for illegal possession of firearms and 15 for robbery; and that of the 94 convicts only 3, including the herein petitioner, remain in confinement, 21 having escaped, 37 having been released, and 33 having died.

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

In substance, the City Fiscal argues that the heavier penalty for the illegal possession of firearms than that fixed by the Administrative Code was not directed toward the suppression of underground activities against the Japanese army, and the rigid enforcement of the food control measures was not intended to insure the procurement of supplies by said army, because in any event the Japanese military occupant freely exercised the power to go after and punish his enemies directly without recurring to the agencies of the "Republic," for there were even cases where the offenders were already in the hands of the police or courts of the "Republic" but they were unceremoniously taken from said agencies by the Japanese military police and punished or liquidated by it at Fort Santiago or elsewhere; and as regards food control, the Japanese forces did not have any need of the measures or agencies established by the "Republic" because the Japanese forces themselves commandeered what they needed or sent out their own agents to purchase it for them at prices even much

higher than those fixed by the "Republic"; that the procedure prescribed afforded a fair trial and did not violate any fundamental rights; that the military occupant was not in duty bound to respect the constitution and the laws of the occupied territory; that he could abrogate all of them and promulgate new ones if he so chose; that the cases cited by the Solicitor General are not applicable because they deal with the validity of acts and processes of the governments of the rebel states during the Civil War and are based upon the indissolubility of the Union; that the validity or nullity of the ordinance in question should be judged in the light of the provisions of the Constitution and the laws of the "Republic" and of generally accepted principles of international law; that even assuming that it should be judged by the standard or the Constitution of the Commonwealth, the ordinance satisfies all the requirements of said Constitution; that the right to appeal in a criminal case is not a constitutional but a purely statutory right which may be granted or withheld at the pleasure of the state; and, finally, that the supposed invalidity of the sentence imposed against the petitioner cannot be raised by habeas corpus.

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

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

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

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

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

The so-called Republic of the Philippines, apparently established and organized as a sovereign state independent from any other government by the Filipino people, was, in truth and reality, a government established by the belligerent occupant or the Japanese forces of occupation. It was of the same character as the Philippines Executive Commission, and the ultimate source of its authority was the same — the Japanese military authority and government. As General McArthur stated in his proclamation of October 23, 1944, a portion of which had been already quoted, "under enemy duress a was established on October 14, 1943, base upon neither the free expression of the peoples" will nor the sanction of the Government of the United States.' Japan had no legal power to grant independence to the Philippines or transfer the sovereignty of the United State to, or recognize the latent sovereignty of, the Filipino people, before its military occupation and possession of the Islands had matured into an absolute and permanent dominion or sovereignty by a treaty of peace or other means recognized in the law of nations. For it is a well-established doctrine in internal law, recognized in the law, recognized in Article 45 of the Hague Conventions of 1907 (which prohibits compulsion of the population of the occupied territory to swear allegiance to the hostile power), that belligerent occupation, being essentially provisional, does not severe to transfer sovereignty over the territory controlled although the de jure government is during the period of occupancy deprived of the power to exercise its rights as such. (Thirty Hogshead of Sugar vs. Boyle, 9 Cranch, 191; United Statesvs. Rice, 4 Wheat., 246; Fleming vs. Page, 9 Howard, 603; Downes vs. Bidwell, 182 U.S., 345.) The formation of the Republic of the Philippines was a scheme contrived by Japan to delude of the Filipino people into believing in the apparent magnanimity of the Japanese gesture of transferring or turning over the rights of governments into the hands of Filipinos. It was established under the mistaken belief that, by doing so, Japan would secure the cooperation or at least the neutrality of the Filipino people in her war against the United States and other allied nations.

We reaffirmed those statements. To show further the fictitious character of much-propagandized "independence" which Japan purported to grant to the Philippines through the establishment of the "Republic", we may add that, as matter of contemporary history and of common knowledge, in practice the Japanese military authorities in the Philippines never treated the "Republic of the Philippines" as an independent government after its inauguration. They continued to impose their will on its executive officials when their interests so required. The Japanese military police arrested and punished various high officials of said government, including the First Assistant Solicitor General, and paid no attention to the

protests and representations made on their behalf by the President of the "Republic." As a climax of their continual impositions, in December 1944 the Japanese military authorities placed the President and the members of his Cabinet under the "protective" custody of the military police, and on the 22nd of the month forced them to leave the seat of the government in Manila and hide with them in the mountains. The only measure they did not succeed in imposing upon the "Republic" was the conscription of the Filipino youth into an army to fight with the Japanese against the United States. So, while in theory and for the purpose of propaganda Japan professed to be a benefactor and liberator of the Filipinos, hoping thereby to secure their willing cooperation in her war efforts, in practice she continued to enslave and oppress the Filipinos, as she saw that the latter remained loyal to the United States. She found that the Filipinos merely feigned cooperation as their only means of self-preservation and that those who could stay beyond the reach of her army of occupation manifested their hospitality by harassing and attacking that army. Thus Japan continued to oppress and tyrannize the Filipinos notwithstanding the former's grant of "independence" to the latter. It would therefore be preposterous to declare that the "Republic of the Philippines" was a government established by the Filipino people in rebellion against the Commonwealth and the sovereignty of the United States.

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

Article 43 of the Hague Regulations provides as follows:

ART. 43. The authority of the legitimate power having actually passed into the hands of the occupant, the latter shall take all steps in his power to reestablish and insure, as far as possible, public order and safety, while respecting, unless absolutely prevented, the laws in force in the country.

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

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

xxx xxx xxx

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

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

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

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

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

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

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

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

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

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

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

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

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

But to us that hypothetical case is a good illustration of the injustice of such procedure. There the accused was convicted not because the prosecution had proved his guilt but because he was unable to prove his innocence. His inability to prove who the owner of the revolver was, did not to our mind prove him guilt, beyond reasonable doubt, under the circumstances. He was accused of illegal possession of firearm, an offense punishable under the ordinance in question with imprisonment for six to twelve years. He pleaded not guilty, for according to him the revolver was not his and he did not know how it got into his house. He had no time to

investigate and try to find out whether the policeman himself or some the other person who wished to do him harm had planted it there, sooner was the revolver seized than he was brought before the court and interrogated about it when he was naturally dazed and in a state of alarm. If the law of criminal procedure had been followed, he would have had ample time to reflect and endeavor to unravel the mystery. He could have consulted a lawyer, and he would have been entitled to at least two days after the information was read to him to investigate the facts and prepare for the trial. At the trial he would not have been required to answer to any proof in his defense until the prosecution had presented its witness, principally the policeman. His lawyer could have cross-examined the policeman and found out from him whether he had any grudge against the accused and how he happened to search the latter's house. From the testimony of the policeman the accused might have been enlightened as to how and by whom the revolver was place in his house. Suppose that the policeman should say that his informant as to the presence of the revolver under the bed of the accused was a houseboy of the latter, and suppose that houseboy was really the one who planted the revolver because of some grievance he had against his master but that the latter had not suspected before that his houseboy had any revolver. In view of the revelation of the policeman he would had been able to investigate and ascertain that fact. In that he way he could have satisfactory explained how and by whom the revolver was placed under his bed. But under the procedure in question as outlined by the City Fiscal, the accused was of course utterly unable to do that and was consequently doomed to at least six years' imprisonment for a crime he had not committed.

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

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

( f ) Section 7 of the Ordinance suspended the privilege of the writ of habeas corpus with respect to persons accused of or under investigation for any of the crimes and offenses enumerated in sections 1 and 2. The Constitution of the Commonwealth prohibit the suspension of that privilege except in cases of invasion, insurrection, or rebellion when the public safety requires it. The suspension by the ordinance was not motivated by any one of these cases but by the necessity for waging a campaign against certain classes of crime; martial law was not declared; and the suspension of habeas corpus did not apply to all persons living in the specified territory (as should have been done if the public safety required such suspension) but only to those accused of or investigated for certain specified crimes or offenses. The result of such partial suspension was that persons accused of or under investigation for any of the offenses specified in section 1 and 2 could be held in detention indefinitely, whereas person accused of or under investigation for crimes other than those specified, such for example as theft, physical injuries, homicide, murder, and

parricide, had the right to demand their release byhabeas corpus after the lapse of six hours. The same discrimination holds true with reference to the other features already noted above, namely, unreasonable searches and seizures, summary trial, denial of the presumption innocence, self-incrimination, and denial of the right to appeal. Such discrimination was unwarranted and unjust and was contrary to the concept of justice prevailing in all democratic countries, where every person is entitled to the equal protection of the laws.

3. It is apparent from the foregoing examination of the main features of the ordinance that while the methods thus adopted may not be unusual under totalitarian governments like those of the aggressor nations in the recent global war, they are strange and repugnant to the people of the democratic countries which united together to defeat said aggressors and "to reaffirm faith in fundamental human person, in the equal rights of men and women and of nations large and small, . . . and to promote social progress and better standards of life in larger freedom." (Preamble Charter for Peace adopted by the United Nations at San Francisco, California, June 26, 1945.) The recent global war was a clash between two antagonistic ways of life, between facism and democracy. It would be strange indeed if his Court, which functions under a democratic government that fought with the other democratic nations in that war, should sanction or approve the way of life, against which that war was fought and won the cost of million of lives and untold sacrifices.

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

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

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

PARAS, J., concurring in the result:

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

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

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

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

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

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

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

Prisoners who behave well are almost always liberated upon the expiration of the minimum penalty fixed in the judgments of conviction or within a reasonable time thereafter. In the present case, there being no information that the double the period of the minimum penalty

that could be imposed upon him, he should be released. As this is the effect of the decision of the majority, I concur in the result.

DE, JOYA, J., concurring:

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

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

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

But there is another description of government, called also by publicists a government de facto, but which might, perhaps, be more aptly denominated a government of paramount force. Its distinguishing characteristics are (1), that its existence is maintained by active military power within the territories, and against the rightful authority of an established and lawful government; and (2), that while it exist it must necessarily be obeyed in civil matters by private citizens who, by acts of obedience rendered in submission to such force, do not become responsible, as wrongdoers, for those acts, though not warranted by the laws of the rightful government. Actual governments of this sort are established over districts differing greatly in extent and conditions. They are usually administered directly by military authority, but they may be administrated, also, by civil authority, supported more or less directly by military force. (MacLeod vs. United States [1913,] 229 U. S., 416.)

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

In occupied territory, the conquering power has a right to displace the pre-existing authority, and to assume to such extent as it may deem proper the exercise by itself of all the powers and functions of government. It may appoint all the necessary officers and clothe them with designated powers, according to its pleasure. It may prescribe the revenues to be paid, and apply them to its own use or otherwise. It may do anything necessary to strengthen itself and weaken the enemy. There is no limit to the powers that may be exerted in such cases, save those which are found in the laws and customs and usages of war (Cross vs. Harrison, 16

How., 164 ; Leitensdorfer vs. Webb, 20 Id., 176; The Grapeshot, 9 Wall.[ U.S.], 129; New Orleans vs. Steamship Co., [1874], 20 Wall., [ U.S.], 287.

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

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

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

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

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

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

It will thus be readily seen that the municipal law of the invaded state continues in force, in so far as it does not affect the hostile occupant unfavorably. The regular courts of the occupied territory continue to act in cases not affecting the military occupation; and it is not customary for the invader to take the whole administration into his own hands, as it is easier to preserve order through the agency of the native officials, and also because the latter are more competent to administer the laws of the territory; and the military occupant, therefore, generally keeps in their posts such of the judicial officers as are willing to serve under him, subjecting them only to supervision by the military authorities, or by superior civil authorities

appointed by him (Young vs. United States, 97 U. S., 39; 24 Law. ed., 992; Coleman vs. Tennessee, 97 U. S., 509; 24 Law. ed., 1118; MacLeod vs. United States, 229 U. S., 416; 33 Sup. Ct., 955; 57; Law. ed., 1260; Taylor, International Law, secs. 576, 578; Wilson, International Law, pp. 331-337; Hall, International Law, 6th ed. (1909), pp. 464, 465,475,476; Lawrence, International Law, 7th ed., pp. 421-413; Davis, Elements of International Law, 3rd ed., pp. 330-332, 335; Holland, International Law, pp. 356-57, 359; Westlake, International Law, Part II, War 2d ed., pp. 121-123).

The judicial proceedings conducted, under the municipal law of the territory, before the court established by the military occupant are general considered legal and valid, even after the government established by the invader had been displaced by the legitimate government of said territory.

Thus the judgment rendered by the Confederate courts, during the Civil War, merely settling the rights of private parties actually within their jurisdiction, not tending to defeat the legal rights of citizens of the United States, nor in furtherance of laws passed in aid of the rebellion, had been declared legal, valid and binding (Coleman vs.Tennessee, 97 U. S 509., 24 Law. ed., 1118; Williams vs. Bruffy, 96 U. S., 176; Horn vs. Lockhart, 17 Wall., 570; 21 Law. ed., 660; Sprott vs. United States, 20 Wall., 249; 22 Law. ed., 371)

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

In the later case, the Supreme Court of the United States reaffirmed that the judicial and legislative acts of the rebellious States, as de facto governments, should be respected by the courts, if they were not hostile in their purpose or mode of enforcement to the authority of the national government, and did not impair the rights of citizens under the Federal Constitution. (Baldy vs. Hunter, 171 U. S., 388; 18 Sup. Ct., 890; Law. ed., 208.)

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

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

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

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

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

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

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

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

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

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

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

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

Said laws are contrary to the principles of Democracy, championed by North America, whose gigantic efforts and heroic sacrifices have vindicated human rights, human dignity and

human freedom, and consecrated them anew all over the earth with the generous blood of her children. They violate the fundamental principles of Justice for which civilized Mankind stands, under the benign leadership of Totalitarianism and given all the nations of the earth a new birth as well as a new character of freedom, to enable each and everyone to live a nobler and more worthy life and realize the justice and prosperity of the future.

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

PERFECTO, J., concurring:

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

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

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

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

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

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

1. That the Government of the Commonwealth of the Philippines is, subject to the supreme authority of the Government of the United States, the sole and only government having legal and valid jurisdiction over the people in areas of the Philippines free of enemy occupation and control;

2. That the laws now existing on the statute books of the Commonwealth of the Philippines and the regulations promulgated pursuant thereto are in full force and effect and legally binding upon the people in areas of the Philippines free of enemy occupation and control; and

3. That all laws, regulations and processes of any other government in the Philippines than that of the said Commonwealth are null and void and without legal effect in areas of the Philippines free of enemy occupation and control.

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

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

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

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

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

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

On the fourteenth of this month, a puppet government was set up in the Philippine Islands with Jose P. Laurel, formerly a justice of the Philippine Supreme Court as president. Jorge Vargas, formerly a member of the Philippine Commonwealth Cabinet and Benigno Aquino, also formerly a member of that cabinet, were closely associated with Laurel in this movement. The first act of the new puppet regime was to sign a military alliance with Japan. The second act was a hypocritical appeal for American sympathy which was made in fraud and deceit, and was designed to confuse and mislead the Filipino people.

I wish to make it clear that neither the former collaborationist "Philippine Executive Commission" nor the present Philippine Republic has the recognition or sympathy of the Government of the United States. . . .

Our sympathy goes out to those who remain loyal to the United States and the Commonwealth — that great majority of the Filipino people who have not been deceived by the promises of the enemy. . . .

October 23, 1943

FRANKLIN DELANO ROOSEVELT President of the United States

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

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

II. VIOLATION OF THE CONSTITUTIONAL GUARANTEE AGAINST UNREASONABLE SEARCHES AND SEIZURES

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

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

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

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

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

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

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

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

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

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

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

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

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

IV. VIOLATION OF THE CONSTITUTIONAL GUARANTEE AGAINST SELF- INCRIMINATION

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

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

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

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

From the foregoing, it appears:

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

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

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

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

(5) That the statement made by said representative or attorney, although exacted under duress, intimidation, or torture, shall be admissible in evidence;

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

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

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

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

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

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

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

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

We must be very careful to retain zealously the constitutional guarantee against self-incrimination. We must not forget that that constitutional guarantee was acquired as a result of protest against all inquisitorial and third degree procedures. We must not forget how, not

very long ago, in the thirteen colonies of America, alleged witches were burned at the stake, as a means of compelling them to confess their fantastic compacts with the devil. We must not forget how an institution created in the twelfth century was the cause of so much tortures and sufferings, and that the terroristic menace of its rakes was abolished in Spain, and therefore in Philippines, only in 1834.

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

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

V. THE FUNDAMENTAL RIGHT OF APPEAL TRAMPLED UPON

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

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

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

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

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

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

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

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

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

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

The fact that the provisions of section 2, of Article VIII, of the Constitution, instead of stating that the accused shall not be denied of the right of appeal in the cases mentioned therein, provide that the Supreme Court may not be deprived of its jurisdiction to review, revise, reverse, modify, or affirm on appeal, certiorari, or writ of error as the law or the rules of court may provide, final judgments and decrees of inferior courts, in the specified cases, does not impair nor diminish the fundamental character of the right of appeal of the accused to the Supreme Court.

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

In fact, the Supreme Court is just one of the instrumentalities created by the Constitution in the service of the people. The Supreme Court is not an entity or institution whose rights and privileges must be constitutionally guaranteed. It is only a means. It is one of the means considered necessary by our Constitution to better serve the supreme interest of the people.

As a matter of fact, the Supreme Court of the United States itself declared that the elimination of said tribunal is not incompatible with the existence of a government of laws. In a case of denaturalization wherein the Government of the United States sought to deprive a person of his American citizenship, on the ground that the 1928 platform of the Communist Party of the United States, to which the respondent belonged, advocated the abolition of the supreme Court, of the Senate and the veto power of the President, and replacement of congressional districts with "councils of workers" in which legislative and executive powers would be united, the Federal Supreme Court declared:

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

attachment to the Constitution is beyond question — critics who have accused it of assuming functions of judicial review not intended to be conferred upon it, or of abusing those function to thwart the popular will, and who advocated various remedies taking a wide range. (Schneiderman vs. United States of America, June 21, 1943.)

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

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

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

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

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

(4) By discriminating against the accused, under Ordinance No. 7, where the right of appeal is retained for them, that is, in cases where the sentenced imposed is death, by entrusting the power to revised said sentence to small minority of the Supreme Court, under the Japanese regime, and a minority of three justices to be specially called out by the President of the Laurel Philippine Republic, undoubtedly with the evident purpose of the confirmation of the conviction of the accused, and to make the appeal en consulta just an empty gesture to make the situation of the accused more pitiful by lengthening is days of agony.

(5) By placing the accused, in the case in question, under the sword of Damocles of an unfavorable presumptions, should he refuse to answer any question that the court or any prosecuting officer might propound to him.

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

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

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

That guarantee was consecrated in our Constitution:

In all criminal prosecution the accused shall be presumed to be innocent until the contrary is proved, and shall enjoy the right to be heard by himself and counsel, to be informed of the nature and cause of the accusation against him, to have a speedy and a public trial, to meet the witnesses face to face, and to have compulsory

process to secure the attendance of witnesses in his behalf. (Art. III, sec. 1, No. 17, Constitution of the Philippines.)

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

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

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

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

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

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

For this reason, said ordinance, being violative of international law, was null and void ab initio.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

the sentences of the courts in question are null and void, will signify the release of hundreds of criminals, whose liberty and mixing with society will endanger public peace and order.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

We must erase those vestiges if we want to keep immune from all germs of decay the democratic institutions which are the pride of our people and country, under which we are enjoying the blessings of freedom and with which we hope to assure the well-being and

happiness of the unending generations who will succeed us in the enjoyment of the treasures accumulated by a bountiful nature in this Pearl of the Orient.

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

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

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

Such procedure exhibits either inversion, retroversion, subversion, or perversion of elemental human concepts. It ignores completely and debases the high purposes of a judicial procedure. It represents a hylistic ideology which proclaims the supremacy of the state force over fundamental human rights. We must never allow the neck of our people to be haltered by the lethal string of that ideology. It is a virus that must be eliminated before it produces the logical disaster. Such ideology is a cancerous excrescence that must be sheared, completely extirpated, from the live tissues of our body politic, if the same must be saved.

We cannot understand how any one can justify the summary process in question under the principles embodied in our Constitution. To profess attachment to those principles and, at the same time, to accept and justify such kind of criminal miscarriage of justice, is just sheer hypocrisy. It is a repetition of what Seneca did when, after preaching moral virtues, justified without any compunction the act of Nero, the sanguinary Roman Emperor, of murdering in cold blood his own mother. It is reproducing the crooked mentality of Torquemada, who, upon the pretext of combating and persecuting heresy to save souls from hell, conceived the diabolical idea of condemning their victims to an advanced version of hell in this life, and among those who suffered under the same spirit of intolerance and bigotry which was its very essence are counted some of the greatest human characters, such as Galileo, Giordano Bruno, and Girolamo Savonarola. That procedure might find justification in the thick heads of the Avars, Huns, Vandals, and Teutons, or in the stratified mentality of Japanese cullions, but not in a healthy mind of a cultured person of modern times. To allow any vestige any vestige of such procedure to remain is tantamount to reviving the situation during which our citizens endured sleepless nights in constant fear of the hobnail terror stalking in the darkness, when their personal security and their life were hanging by the thin of chance.

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

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

HILADO, J., concurring:

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

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

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

From the allegations of the petition herein, it can be deduced that the petitioner William F. Peralta was a "guerrillero" when he was arrested, tried and convicted; and that he had never voluntarily submitted to the Japanese forces in his civil capacity.

No attempt is made in the Solicitor General's answer to controvert the facts alleged in the petition from which the foregoing deduction flows, and from the record nothing appears which may tend to gainsay them. Even when he was forced temporarily to join the Constabulary, which had been organized under orders of the Japanese Army in the Philippines, he did so against his will.

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

If we analyze the different adjudications and treatises which have been cited in support of the validity or binding force of the acts of such provisional governments, which have been variously called de facto governments, or governments of paramount force, with a view to

finding the real ground and philosophical justification for the doctrine therein announced, we will see that reason and that justification are made to consist in the submission of the inhabitants upon whom the said acts have been held to be of obligatory or binding force, to the army of occupation. Thus, to cite just a few typical examples, we quote the following excerpts from three leading cases decided by the Supreme Court of the United States:

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

That while it (government of paramount force) exists, it must necessarily be obeyed in civil matters by private citizens who, by acts of obedience, rendered in submission to such force, do not become responsible, as wrong-doers, for those acts, though not warranted by the laws of the rightful government (p. 363; Emphasis ours).

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

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

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

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

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

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

In the Philippines, during the occupation by the Japanese of Manila and certain other portions of the Archipelago, the overwhelming majority of the people never submitted to the Japanese invaders, and never recognized any legality in the invasion of their country, and to the very date of liberation refused to accept the alleged protection or benefits of the puppet governments of the "Philippine Executive Commission" and the "Republic of the Philippines." The majority of our people lived in the provinces, in the farms, hills and other places beyond the effective reach of the Japanese military garrisons. Only a small minority submitted to the invaders for various reasons, such as their having been caught in Manila or other parts of the

Island occupying government positions, or residing therein without adequate facilities for escaping from or evading said invaders, reasons of ill health, disabling them from living the hard life of the mountains, hills, or country places, and the like.

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

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

I am furthermore, of opinion that there is another important consideration which argues against the recognition of the said government as a de facto government or government of paramount force during the Japanese occupation of the Philippine Islands. Japan, in starting and prosecuting this war against the United States and her allies by breaking the most vital rules of civilized warfare as prescribed by International Law, must be deemed to have forfeited the right to invoke that law in so far as specific provisions thereof would favor her or her acts. Japan in treacherously attacking Pearl Harbor and the Philippines, successively on December 7 and 8, 1941, violated the rule providing for the necessity of declaring war as established at the Hague Conference of 1907 (Lawrence, Principles of International Law, 7th ed., pp. 321-322, 325); she has infringed the rule requiring that war prisoners be cared for

and treated with humanity (Ibid, p. 377); the rule imposing the obligation to properly tend the sick and wounded (Ibid, 384), the rule interdicting bombing of open and defenseless cities (Ibid, 522, 523) when she bombed Manila after it had been declared an open city and all its military defenses had been removed; the rule exempting noncombatants from personal injury (Ibid, 397) — her violations of one or the other of which were matters of daily occurrence, one might say, during her three and a half years of tyranny and oppression in this country, and were climaxed by the ignominious and indescribable atrocities of the mass massacre of innocent civilians during the battle for Manila. In the interpretation of doubtful provisions of International Law, Doctor Lawrence, in his work cited above, has the following to say:

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

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

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

constitution of the "Republic" the members of the Supreme Court were appointed by the President with the advice of the Cabinet, and all judges of interior courts, by the President with the advice of the Supreme Court (Art. IV, sec. 4).

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

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

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

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

BRIONES, M., concurrente:

El mandamiento de habeas corpus que se solicita debe concederse.

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

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

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

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

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

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

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

En cambio, bajo el sistema procesal en controversia las sentencias de los tribunales o sumarias eran de caracter final, excepto cuando la pena impuesta fuera la de muerte, en cuyo caso los autos se elevaban en consulta a una division especial del Tribunal Supremo compuesta de tres miembros (Ordenanza No. 7 de la llamada Republica de Filipinas por la que se crearon las tribunales especiales o sumarios). De modo que en esta ordenanza no solo se suprimia de una plumada el derecho de apelar reconocido y establecido por la

legislacion procesal del Commonwealth aun en los casos de delitos y penas ordinarios, sino que inclusive quedaba abolido el derecho de apelar otorgado por la constitucion del Commonwealth al acusado condenado a reclusion perpetua. Por este motivo el recurrente, a quien se le habia impuesto esta pena por el alergado delito de robo, no pudo apelar de al sentencia para ante el Tribunal Supremo.

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

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

Se admite, sin embargo, que la regla tiene sus excepciones. Una de allas esque "los actos del ocupante militar que rebasen su poder a tenor del criterio establecido en el articulo 43 de las Regulaciones de La Haya, son nulos y sin efecto con relacion al gobierno legitimo." (Wheaton's International Law, 7th ed. [1944], p. 245.) Segun esto, las sentencias por "crimenes de guerra" o "delitos politicos" cometidos durante la ocupacion son, por razones pecfetamente comprensibles, nulas e invalidas al restablecerse la soberania legitima. Tambien quedan comprendidos bajo esta excepcion los denominados actos de caracter o complexion politica.

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

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

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

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

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

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

Esta forma de racioncinio no solo no es heterodoxa a la luz de los pincipiosestablecidos de derecho internacional, sino parece ser una logica inferenciade los mismos. Ya hemos visto que al ocupante militar en el curso de unaguerra internacional se le prohibe, como regla general, alterar o suspenderlas leyes referentes a la propiedad y a las relaciones personales privadas, olas leyes que regulan el orden moral de la comunidad. (Hall, Treatise on International Law, supra.) Ahora cabe preguntar: ¿Son los justos derechos de los ciudadanos, o los fundamentales garantidos por la constitucion inferiores en categoria a la propiedad, o las relaciones personales privadas, o al ordenmoral de la comunidad? ¿No son en cierto sentido hasta superiores? Por tanto,a nadie debe chocar que la prohibicion se extienda a estas materias. Es unainclusion y perfectamente natural, mas que justificada por los avances y conquistas del moderno derecho internacional. Notese que en las fraguas de

esta ultima guerra se han forjado unas modalidades juridicas harto originalesque denotan el esfuerzo supremo y gigante dela humanidad por superar la barbarie y por dar al traste con las formulas arcaicas, reaccionarias. Para citar solamente algunos ejemplos los mas destados, tenemos el enjuiciamento de los llamados criminales de la guerra, y la responsabilidad que se exige a los jefes militares por las atricidades cometidas por las tropas bajo su mando.

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

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

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

Concedase el remedio pedido.

   

Republic of the Philippines SUPREME COURT

Manila

EN BANC

G.R. No. L-6 November 29, 1945

ANICETO ALCANTARA, petitioner, vs. DIRECTOR OF PRISONS, respondent.

Buenaventura B. Martinez for petitioner. Office of the Solicitor General Tañada for respondent.

FERIA, J.:

This is a petition for the issuance of a writ of habeas corpus and for the release of the petitioner on the ground that the latter is unlawfully imprisoned and restrained of his liberty by the respondent Director of Prison in the provincial jail at Vigan, Ilocos Sur.

Petitioner was convicted by the Court First Instance of Ilocos Sur (Criminal case No. 23) of the crime of illegal discharge of firearms with less serious physical injuries. Upon appeal, the Court of Appeals of Northern Luzon at Baguio modified said sentence (CA- G.R. No.

790)and sentence the petitioner to an indeterminate penalty of from four months four months and twenty-one days of arresto mayor to three years, nine months and three days ofprison correccional. The sentence as modified became final on September 12, 1944, and June 23, 1945, petitioner commenced serving his sentence.

Petitioner now questions the validity of the decision of the Court of Appeals of Northern Luzon, on the sole ground that said court was only a creation of the so-called Republic of the Philippines during the Japanese military occupation of the Islands; that the Court of Appeals was not authorized by Commonwealth Act No. 3 to hold sessions in Baguio, and that only the two Justices constituted the majority which promulgated the decision in question. The petitioner does not question the validity of said decision on the strength of the Proclamation of General Douglas McArthur of October 23, 1944, which according to our decision in the case of Co Kim Cham vs. Valdez Tan Keh and Dizon, G.R. No. L-5 (p. 113, ante), does not refer to judicial processes.

In the said case of Co Kim Cham vs. Valdez Tan Keh and Dizon, this Court ruled that the so-called Republic of the Philippines and the Philippine Executive Commission established in the Philippines during the Japanese regime were governments de facto organized by the belligerent occupant by the judicial acts thereof were good and valid and remained good and valid after the restoration of the Commonwealth Government, except those a political complexion. In that the same case this Court held that the Court of Appeals which was continued throughout the Japanese occupation, was the same Court of Appeals existed prior to the Japanese occupation and was lately abolished by Executive Order No. 37. The division of the Court of Appeals into several District Court of Appeals, and the reduction of the number of Justices sitting in each division, the regime of the so-called Republic effected no substantial change in its nature and jurisdiction.

Even assuming that the Court of Appeals of Northern Luzon was a new court created by the belligerent occupant or the de facto governments established by him, the judgments of such court, like those of the court which were continued during the Japanese occupation, were good and valid and remain good and valid, and therefore enforceable now after the liberation or occupation of the Philippines, provided that such judgments do not have a political complexion, as this court held in its decision in the abovementioned case of Co Kim Cham vs. Valdez Tan Keh and Dizon supra, in accordance with the authorities therein cited.

Obviously, the sentence which petitioner is now serving has no political complexion. He was charged with and convicted of an offense punishable under the municipal law of the Commonwealth, the Revised Penal Code. Therefore, the sentence of the Court of First Instance of Ilocos Sur, as modified by the Court of Appeals of Northern Luzon, is valid and enforceable.

A punitive or penal sentence is said to of a political complexion when it penalizes either a new act not defined in the municipal laws, or acts already penalized by the latter as a crime against the legitimate government, but taken out of the territorial law and penalized as a new offenses committed against belligerent occupant, incident to a state of a war and necessary for the control of the occupied territory and the protection of the army of the occupier. They are acts penalized for public rather than private reasons, acts which tend, directly or indirectly, to aid or favor the enemy and are directed against the welfare, safety and security, of the belligerent occupant. As example, the crimes against national security , such as treason, espionage, etc., and against public order, such as rebellion, sedition, etc., were crimes against the Commonwealth or United States Government under the Revised Penal Code, which were made crimes against the belligerent occupant.

In view of the foregoing, the petitioner for the writ of habeas corpus is denied.

Moran, C.J., Ozaeta, Paras, Jaranilla, Pablo and Bengzon, JJ., concur.

Separate Opinions

DE JOYA, J., concurring:

The principal question involved in this habeas corpus case is the validity of the judicial proceedings held, during the Japanese occupation, in the Court First Instance of Ilocos Sur, in which herein petitioner was accused of frustrated murder, and in the Court of Appeals of Northern Luzon, in which, on appeal, said petitioner was found guilty of illegal discharge of firearms with less serious physical injuries, and sentenced to a term of imprisonment ranging from four moths and twenty-one days of arresto mayor to three years, and nine months and three days ofprison correccional; and the effect on said proceedings of the proclamation of General Douglas McArthur, dated October 24 1944. The decision of this questions requires the application of principles of International Law, in connection with the municipal law of this country.

Under the Constitution Commonwealth of the Philippines, International Law is part of the Fundamental law of the land (Article II, sec. 3). As International Law is an integral part of our law, it must be ascertained and administered by this Court, whenever question of right depending upon it are presented for our determination (Kansas vs.Colorado, 185 U.S. 146; 22 Sup. Ct., 552; 46 Law. ed., 838).

Since International Law is a body of rules accepted by nations as regulating their mutual relations, the proof of their existence is to be found in the consent of the nations to abide by them; and this consent is evidenced chiefly by the usages and customs of nation, as found in the writings of publicist and in the decisions of the highest courts of the different countries of the world (The Habana, 175 U. S., 677; 20 Sup. Ct., 290; 44 Law. ed., 320.).

But while usages and customs are the older original source of International Law, great international treaties are a latter source of increasing importance, such as The Hogue Conventions of 1899 and 1907.

The Hague Conventions of 1899, respecting laws and customs of war on land, expressly declare 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.

ART. XLII. 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 Conventions 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. United States 229 U.S. 416; 33 Sup Ct., 955; 57 Law. ed., 1260; II Oppenheim on International Law, sec. 167).

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 is not usual for the invader to take the whole administration into his own hands, because 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 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 appointed by him (Young vs. United States, 97 U.S. 39; 24 Law. ed 992; Coleman vs. Tennessee, 97 U.S. 509; 24 Law ed., 1118; MacLeod vs. United States, 229 U.S. 416; 33 Sup Ct., 955; 57 Law. ed., 1260 Taylor, International Law, secs. 576, 578; Wilson, International Law, pp. 331-337; Hall, International Law, 6th ed. [1909], pp. 464, 465, 475, 476; Lawrence, International Law, 7th ed., 412, 413; Davis, Elements of International Law, 3d ed., pp. 330-332, 335; Holland, International Law, pp. 356, 357, 359; Westlake, International Law, Part II, 2d ed., pp. 121-123).

In 1811, during the occupation of Catalonia, Spain, by the French army, a Frenchman, accused of the murder of a Catalan in that province, was tried and convicted by the assize Court of the Department of the Pyrenees Orientales, France. Upon appeal to the French Court of Cassation, the conviction was quashed, on the ground that the courts of the territory within which the crime had been committed had exclusive jurisdiction to try the case and that "the occupation of Catalonia by French troops and its government by the French authorities had not communicated to its inhabitants the character of French citizens, nor to their territory the character of French territory, and that such character could only be acquired by a solemn act of incorporation which had not been gone through." (Hall, International Law, 6th ed., p. 461.)

It is, therefore, evident that the establishment of the government under the name of the Philippine Executive Commission, or the so-called Philippine Republic, afterwards, during Japanese occupation, respecting the laws in force in the country, and permitting our courts to function and administer said laws, as proclaim 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 local laws, it must necessarily follow that the judicial proceeding conducted before the courts established by the military occupant must be considered legal and valid, even after said government established by the military occupant had been displaced by the legitimate government of the territory.

Thus the judgments rendered by the Confederate Courts, during the American Civil War, merely setting the rights of private parties actually within their jurisdiction, not only 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 (Cook vs.Oliver, 1 Woods, 437; Fed. Cas., No. 3, 164; Coleman vs. Tennessee, 97 U.S., 509;24 Law. ed., 1118; Williamsvs. Bruffy, 96 U.S. 176; Horn vs. Lockhart, 17 Wall., 570; Sprott vs. United States, 20 Wall., 459; Texas vs. White, 7 Wall., 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 slaves was held valid judgment when entered, and enforceable in 1871 (French vs. Tumllin, 10 Am. Law. Reg. [N.S.], 641; Fed. Case, No. 5104).

The judgments by the courts of the states constituting the Confederate States of the 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 act of obedience (Thorington vs. Smith, 8 Wall. [U.S.] 9; 19 Law ed., 361).

In the more recent case of Ketchum vs. Buckley ([1878], 99 U.S., 188), the Supreme Court of the United States held-- "It is now settled law in this court that during the late civil war 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 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 Wall., 459; Texas vs. White 7 Wall., 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 de facto, called also by publicists a government de facto, but which might, perhaps, he more aptly denominated a government of paramount force. Its distinguishing characteristics (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 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. (MacLeod vs. United States [1913], 229 U.S., 416.)

The government established in the Philippines, under the Philippine Executive Commission or under the so-called Philippine Republic, during Japanese occupation, was and should, therefor, be considered as a de factogovernment; and that the judicial proceedings conducted before the courts has been established in this country, during said Japanese occupation, and are should be considered as legal and valid enforceable, even after the

liberation of this country by the American forces, as a long a said judicial proceedings had been conducted, in accordance with the law of the Commonwealth of the Philippines.

The judicial proceedings involved in the case under consideration merely refer to the prosecution of the petitioner in this case, for the crime of frustrated murder, which was reduced to illegal discharge of firearms with less serious physical injuries, under the provisions of the Revised Penal 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, and that the accused should be immediately released from the custody, under the provisions of the proclamation issued by General Douglas McArthur 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 petition demands a literal interpretation of said proclamation issued by the General Douglas McArthur, 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 (United States vs. Coombs [1838]], 12 Pet., 72; 9 Law. ed., 1004; Board of Supervisors of Grenada 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 as not to lead it injustice, oppression or an absurd consequence. It will always, therefore, be presumed that the legislature intended exception to its language, which would avoid results of this character. The reason of the law in such cases should prevail over its letter (United States vs. Kirby, 7 Wall [U.S.], 482; 19 Law. ed, 278; Church of Holy Trinity vs. United States, 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 a avoiding a construction which raises grave and doubtful constitutional questions, if it can be avoided (United States 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 court of the justice, established here during Japanese military occupation, merely applying the provisions of the municipal law of the territory, as the provisions of the Revised Penal Code in the instant case which have no political or military significance, are and should be considered legal, valid and binding. It is to be presumed that General Douglas McArthur knows said rules and principles of International Law, 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 Douglas McArthur has acted, in accordance with said principles of International Law, which have been sanction by the Supreme Court of the United States, as the nullification of all judicial proceedings conducted before our courts, during the Japanese occupation would be highly detrimental to public interests.

For the forgoing reasons, I concur in the majority opinion, and the petition for habeas corpus filed in this case should, therefore, be denied.

PERFECTO, J., dissenting:

Following our opinions in this cases of Co Kim Cham vs. Valdez Tan Keh and Dizon (p. 153, ante), and Peralta vs. Director of Prisons (p. 334, ante), G.R. No. L-5 and G.R. No. L-49 respectively, the proceedings attacked by petitioner belong to the judicial processes declared null and void in the proclamation issued by General McArthur on October 23, 1944, and therefore, we vote the granting of the writ of habeas corpus prayed for.

HILADO, J., dissenting:

Upon the grounds stated my main dissenting opinion, in G.R. No. L-5 Co Kim Cham vs. Valdez Tan Keh and Dizon (p. 199, ante), and in my concurring opinion in G.R. No. L-49, Peralta vs. Director of Prisons (p. 355, ante), I dissent from the opinion of the majority herein. The writ of habeas corpus sought by petitioner should be granted because the nullity of the judgment and proceedings under which he has been imprisoned and restrained of his liberty. As stated in the majority opinion, the sentence against him became final on September 122, 1944, and had been pronounced by the Japanese-sponsored Court of Appeals of Northern Luzon upon appeal from a judgment of conviction by the Japanese sponsored Court of First Instance of Ilocos Sur.