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G.R. No.

L-200

March 28, 1946

ANASTACIO LAUREL, petitioner, vs. ERIBERTO MISA, as Director of Prisons, respondent. facts: Petitioner, a Filipino citizen, was arrested in Camarines Sur in May, 1945, by t he United States Army, and was interned, under a commitment order "for his activ e collaboration with the Japanese during the Japanese occupation," but in Septem ber, 1945, he was turned over to the Commonwealth Government, and since then has been under the custody of the respondent Director of Prisons. The legality of the prisoner's arrest and detention by the military authorities of the United States is now beyond question.1His present incarceration, which is merely continuation of his previous apprehension, has lasted "more than six hou rs" counted from his delivery to the respondent; but section 19 of Commonwealth Act No. 682 provides in part as follows: Upon delivery by the Commander-in-Chief of the Armed Forces of the United States in the Philippines of the persons detained by him as political prisoners, to th e Commonwealth Government, the Office of Special Prosecutors shall receive all r ecords, documents, exhibits, and such other things as the Government of the Unit ed States may have turned over in connection with and/or affecting said politica l prisoners, examine the aforesaid records, documents, exhibits, etc., and take, as speedily as possible, such action as maybe proper: Provided, however, . . .. And, provided, further, That, in the interest of public security, the provision s of article one hundred twenty-five of the Revised Penal Code, as amended, shal l be deemed, as they are hereby, suspended, insofar as the aforesaid political p risoners are concerned, until the filing of the corresponding information with t he People's Court, but the period of suspension shall not be more than six (6) m onths from the formal delivery of said political prisoners by the Commander-in-C hief of the Armed Forces of the United States in the Philippines to the Commonwe alth Government. On the date the petition was presented the office of the solicitor general had, prepared an information charging herein petitioner with treason, hence we fail t o see how petitioner's release may now be decreed. Issues and Ruling: (a) It is first argued that the suspension is not general in application, it bei ng made operative only to "the political prisoners concerned," that other citize ns are not denied the six-hour limitation in article 125 of the Revised Penal Co de, that such discrimination is unexcusable and amounts to denial of the equal p rotection of the laws. It is accepted doctrine in constitutional law that the "equal protection" clause does not prevent the Legislature from establishing classes of individuals or ob jects upon which different rules shall operate so long as the classification is not unreasonable.2 Instances of valid classification are numerous. The point to be determined then, is whether the differentiation in the case of the political prisoner is unreasonable or arbitrary. One of the proclamations issued by General MacArthur upon his arrival in Leyte ( December 29, 1944), announced his purpose to hold the filipino collaborators in restraint for the duration of the war, "whereafter they shall be turned over to the Philippine Government for its judgment upon their respective cases." 6,000 c ollaborators were turned over to the commonwealth government. Criminal informati

ons against all, or a majority, or even a substantial number of them could not b e properly filed in the six-hour period. They could not obviously be turned loos e, considering the conditions of peace and order, and the safety of the prisoner s themselves. So the President, by virtue of his emergency powers, promulgated E xecutive Order No. 65 suspending article 125 of the Revised Penal Code, for not more than thirty days, with regard to said detainees or internees. Congress lat er approved Commonwealth Act. No. 682, establishing the People's Court and the O ffice of Special Prosecutors for the prosecution and trial of crimes against nat ional security committed during the second World War. It found the thirty-day pe riod too short compared with the facilities available to the prosecution, and se t the limit at six months. In this connection, it must be stated there can really be no substantial ground to assail the six-month extension, in view of the provisions authorizing the rel ease under bail. The political prisoners know, or ought to know, they are being kept for crimes against national security. And they are generally permitted to f urnish bail bonds. (b) There is hardly any merit to the argument that as "the duration of the suspe nsion of article 125 is placed in the hands of the Special Prosecutor's Office," the section constitutes an invalid delegation of legislative powers; for as exp lained by the Solicitor-General, the result some informations filed before, othe rs afterwards is merely the "consequence of the fact that six thousand informati ons could not be filed simultaneously, and that some one had to be first or some one else, necessarily the last." The law, in effect, permitted the Solicitor-Ge neral to file the informations within six months. And statutes permitting office rs to perform their duties within certain periods of time may not surely be decl ared invalid delegations of legislative power. (c) Nor is the position correct that section 19 is retroactive in its operation. It refers to detention after its passage not before. Incidentally, there is no constitutional objection to retroactive statutes where they relate, to remedies or procedure.3 The argument is advanced that when he was arrested, (May, 1945), article 125 of the Revised Penal Code was in force, and petitioner could have a sked for release after six hours and, therefore, Commonwealth Act No. 682 that t akes away that right is ex post facto, retroactive and fundamentally objectionab le. The premises are incorrect. In May, 1945, he could not have asked for release af ter six hours. In other words, he would not have been discharged from the custod y. (Raquiza vs. Branford, supra.) Article 125 of the Revised Penal Code was in f orce, it is true; but not as to him. The laws of the Commonwealth were revived i n Camarines Sur by operation of General MacArthur's proclamation of October 23, 1944, upon its liberation from enemy control; but subject to his reservation to hold active collaborationists in restraint "for the duration of the war." So, pe rsons apprehended under that directive, for treasonable collaboration, could not necessarily invoke the benefits of article 125 of the Revised Penal Code. Undoubtedly the Legislature could validly repeal section 125 of the Revised Pena l Code. Had it done so, herein petitioner would have no ground to protest on con stitutional principles, as he could claim no vested right to the continued enfor cement of said section.4 Therefore, a fortiori he may not complain, if, instead of repealing that section, our lawmaking body merely suspended its operation for a definite period of time. Should he counter that such repeal or suspension mus t be general to be valid, he will be referred to the preceding considerations re garding classification and the equal protection of the laws. Wherefore, we perceive no irreconcilable conflict between the Constitution and t he challenged portions of section 19 of Commonwealth Act No. 682. The other features of the People's Court Act which are the subject of denunciati

on by petitioner do not, in our opinion, require specific elucidation at this ti me, because he has not as yet been held into that court, and the issues appear t o have no important or necessary connection with his current deprivation of libe rty.5 The petition for the writ of habeas corpus will be denied. With costs. Moran, C.J., Jaranilla, Feria, De Joya, Pablo, Hilado, and Briones, JJ., concur. Separate Opinions OZAETA, J., with whom Paras, J., concurring in the result: I concur with the majority in upholding the constitutionality of section 19 of t he People's Court Act. In the view I held in the Raquiza case the detention of t he petitioner by the military authorities was illegal for lack of due process. B ut the same thing cannot be said as to his present detention by the respondent D irector of Prisons, especially now that an information for treason has been file d against him. PERFECTO, J., dissenting: On or about May 6, 1945, petitioner was arrested by the C.I.C., United States Ar my, Camarines Sur. On September 6, 1945 he was turned over to the Commonwealth G overnment by the United States Army and since that date he remained in prison un der the personal custody of the respondent Director of Prisons, and now he comes before us complaining that his arrest and detention are illegal and in violatio n of many of his constitutional rights, in that: "(a) He was arrested and detain ed without a lawful warrant of arrest. (See Constitution, Article III, section 3 .) (b) No information or charge has been lodged against him, informing him of th e nature and cause of his arrest. (See Constitution, Article III, section 17.) ( c) He was not given an opportunity to confront the witnesses who caused his arre st and detention. (See Constitution, Article III, section 17.) (d) He was not ac corded the benefit of compulsory process to secure the attendance of witnesses i n his behalf. (See Constitution, Article III, section 17.) (e) He was and is bei ng denied the right to a prompt, speedy and public trial. (See Constitution, Art icle III, section 17.) (f) His arrest and detention was and is without due proce ss of law. (See Constitution, Article III, section 15.) (g) He was not accorded the equal protection of the laws. (See Constitution, Article III, section 1.) (h ) He was subjected to cruel and unusual punishment. (See Constitution, Article I II, section 19.) (i) He was committed to prison and detained by the respondent u nder a bill of attainder. (See Constitution, Article III, section 11.)" Petitioner also maintains that the People's Court Act No. 682, under which the r espondent herein purports to act, violates not only the spirit but also the lett er of the fundamental law in many ways, in that: "(a) It constitutes an assault upon the independence of the judiciary. (See Tydings-McDuffie Law, section 2, pa r. [a].) (b) It deprives the accused of certain rights already acquired at the t ime of its passage, and therefore is ex-post facto in nature (See Constitution, Article III, section 11.) (c) It partakes of the nature of a bill of attainder. (See Constitution, Article III, section 11.) (d) It denies the equal protection of the laws. (See Constitution, Article III, section 1.) (e) It provides for cru el and unusual punishment. (See Constitution, Article III, section 19.) (f) It d eprives the citizen of his day in court. (See Constitution, Article III, section 21.) (g) It constitutes an unlawful delegation of legislative and executive fun ctions. (See Tydings-McDuffie Law, section 2, par. [a].) (h) It covers more than one subject matter. (See Constitution, Article IV, section 12, par. 1.) (i) It authorizes the charging and multifarious crimes in one complaint or information thereby making it impossible to be informed to the real nature and cause of the accusation against the accused. (See Constitution, Article III, section 17.) (j)

It denies the constitutional right of a person to bail before conviction. (See Constitution, Article III, section 16.)" Consequently, petitioner prays that Commonwealth Act No. 682 be declared unconst itutional and null and void, that his detention, irrespective of the validity of said act, be declared illegal and in violation of many of his constitutional ri ghts, and that an order be issued for his complete and absolute release. Respondent answered that, pursuant to the authority of the proclamation issued b y the Commander in Chief of the American Armed Forces, Southwest Pacific Area, G eneral Douglas MacArthur, dated December 29, 1944, petitioner was arrested and t hereafter detained on May 10, 1945, under a security commitment order, issued by the commanding officer of 904th Counter Intelligence Corps Detachment, United S tates Army, upon the charge of "active collaboration with the Japanese during th e Japanese occupation"; that his subsequent detention as a political prisoner, u pon the transfer of his person to the Commonwealth Government by the United Stat es Army, pursuant to the terms of the proclamation issued by General Douglas Mac Arthur on December 29, 1944, of Executive Order No. 65, issued by the President of the Philippines on September 3, 1945, and pursuant to the provisions of Commo nwealth Act No. 682, approved on September 25, 1945, was a mere logical sequence of his previous commitment and hence equally valid and legal. Respondent alleges also that petitioner has not as yet availed of the benefits o f section 19 of Commonwealth Act No. 682, which confers upon political prisoners the privilege of securing their release on bail upon proper application therefo r with the People's Court; that Commonwealth Act No. 682 does not trench upon, n or contravene any of the provisions of the Constitution; that it is not ex post facto in nature in that it suspends, in the interests of national security, the provision of article 125 of the Revised Penal Code for a period of not more than six months, which is fully justified by the practical necessities of the situat ion, considering the circumstances that there are more than 6,000 political pris oners charged with the grave crime of treason and other offenses against nationa l security; that said law does not materially impair the substantial rights of t he accused to have the question of his guilt determined according to the substan tive law existing at the time of the commission of the offense, that it is not a bill of attainder, since it does not inflict punishment without a judicial tria l; that it neither deprives the citizen of his day in court, nor it provides for cruel and unusual punishment; that it applies equally and uniformly to all pers ons similarly situated; that it complies with the constitutional requisites of d ue process of law as applied in criminal procedure; that it does not contravene the constitutional requirement that the accused must be informed of the nature o f the accusation against him; that instead of suppressing or denying the constit utional right of an accused to bail before conviction, said act recognizes and c oncedes to all accused in section 19 the right to bail, except those charged wit h capital offenses when evidence of guilt is strong; that the information agains t the petitioner, charging him with treason upon ten counts was ready for filing in the People's Court even on the date the petition in this proceeding was pres ented; and that in due deference to this Supreme Court, the filing of the said i nformation has been held in abeyance pending the final disposition of this habea s corpus proceeding. For purposes of this discussion, the discrepancy between petitioner and responde nt as to the correct date when petitioner was arrested, May 6 or May 10, cannot affect the merits of the case. Without a lawful warrant of arrest. Whether the arrest took place on May 6, 1945 , as alleged by petitioner or on May 10, as alleged by respondent, there is abso lutely no question that petitioner was arrested without lawful warrant of arrest .

Section 1:3 of Article III of the Constitution provides that "no warrants shall issue but upon probable cause, to be determined by the judge after examination u nder oath or affirmation of the complaint and the witnesses he may produce, and particularly describing the place to be searched, and the persons or things to b e seized." This provision, considered in connection with the provision of sectio n 1:1 of article III of the Constitution and section 1:15 of the same article th at no person shall be deprived of liberty or be held to answer for a criminal of fense without due process of law, implies necessarily that one of the essential requisites for depriving a person of his liberty, when he is accused of an offen se, is the existence of a warrant of arrest issued in accordance with the provis ions of the Constitution. We are of opinion that the arrest of petitioner was executed in flagrant violati on of the above-mentioned constitutional provisions. No information as to any charge. The Constitution provides that one of the funda mental rights of an accused is "to be informed of the nature and cause of the ac cusation against him." (Section 1:17, Article III of the Constitution.) This constitutional guarantee appears equally to have been violated in petitione r's case. Respondent's allegation that petitioner is detained because of his active collab oration with the Japanese during the Japanese occupation does not inform petitio ner of the nature and cause of the accusation against him, it appearing that the re is no such offense described in any law applicable to petitioner as "active c ollaboration with the Japanese during the Japanese regime." Meeting witnesses face to face. Petitioner complains that he was not given an op portunity to confront his witnesses who caused his arrest detention. The complaint is equally well-taken. There is nothing in the record to show that before, during, or at any time after his arrest, petitioner has ever been accor ded the opportunity of meeting the witnesses "face to face" as provided in secti on 1:17 of Article III of the Constitution. Attendance of witnesses in his behalf. Petitioner complains he was not accorded of the benefit of compulsory process to secure the attendance of the witnesses i n his behalf as provided in section 1:17 of Article III of the Constitution. Thi s allegation has not been disputed. We have, therefore, here another flagrant violation of a constitutional right of petitioner. Speedy and public trial. Petitioner invokes also his constitutional right to "ha ve a speedy and public trial" as provided in section 1:17 of Article III of the Constitution. There is absolutely no question that this constitutional right of petitioner has been equally violated. Equal protection of the laws. Petitioner complains that he was not accorded equa l protection of the laws as provided in section 1:1 of Article III of the Consti tution. Petitioner's allegation is equally well-founded, there being no question as to t he fact that he was and he is being deprived of several of his fundamental right s under the Constitution without any legal process. Cruel and unusual punishment. Petitioner complains that he was subjected to crue

l and unusual punishment in violation of section 1:19 of Article III of the Cons titution. There is no question that petitioner is being deprived of his liberty without an y information or complaint charging him of any specified offense under the laws of the land. So it appears that he is being, in effect, subjected to the punishment of depriv ation of liberty for almost one year, without any definite information as to whe n will it end. This means that he is being subjected to imprisonment for an inde finite term. It is certainly a cruel and unusual punishment, not only because it is not authorized by any law of the land, but because it is meted out to petiti oner for no specific offense at all. The violation of section 1:19 of Article II I of the Constitution is indispensable. Petitioner complains that those responsible for his detention appear to have nev er heard of such trifles as those contained in the Bill of Rights and even if th ey did, they contend that the Constitution was never meant for the "untouchables " known in the contemporary Philippine history as a "collaborators," and that no one can imagine a more glaring case for the granting of a writ of habeas corpus than that of the petitioner, it appearing that the circumstances of his arrest are self-demonstrative of the most scandalous violation of the Bill of Rights ev er perpetrated under the American flag. Petitioner, as has been shown, appears well supported in his complaint. Now, as one of the questions raised in this case, let us determine the validity of that portion of section 19 of Commonwealth Act No. 682, an act creating the P eople's Court, which provides as follows: . . . And, provided, further, That, in the interest of public security, the prov isions of article one hundred twenty-five of the Revised Penal Code, as amended, shall be deemed, as they are hereby, suspended, insofar as the aforesaid politi cal prisoners are concerned, until the filing of the corresponding information w ith the People's Court, but the period of suspension shall not be more than six (6) months from the formal delivery of said political prisoners by the Commander -in-Chief of the Armed Forces of the United States in the Philippines to the Com monwealth Government. The provision of the Revised Penal Code which has been virtually suspended by th is law is: ART. 125. Delay in the delivery of detained persons to the proper judicial autho rities. The penalties provided in the next preceding article shall be imposed up on the public officer or employee who shall detain any person for some legal gro und and shall fail to deliver such person to the proper judicial authorities wit hin the period of six hours. (As amended by Act No. 3940.) The pertinent provisions of our fundamental law which limit the powers of the le gislative branch of our government in the enactment of laws are as follows: ART. III. BILL OF RIGHTS

SECTION 1. (1) 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. x x x x x x x x x

(15) No person shall be held to answer for a criminal offense without due proces

s of law. x x x x x x x x x

(17) In all criminal prosecutions the accused shall be presumed to be innocent u ntil the contrary is proved, and shall enjoy the right to be heard by himself an d 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 h ave compulsory process to secure the attendance of witnesses in his behalf. Development of the Doctrine of Due Process of Law. Though the words "due process of law" have not a long history, the doctrine impl ied by them has a history in Anglo-American law which extends for more than seve n hundred years back, indeed, to the signing of Magna Charta. And yet, notwithst anding this long period during which countless opportunities have presented them selves for its application and judicial definition, the doctrine has not yet rec eived a statement in such a form that its specific applications can, in all case s, be determined. This failure has been due, not to any lack of judicial effort or acumen, but to the very nature of the doctrine which, asserting a fundamental principle of justice rather than a specific rule of law, is not susceptible of more than general statement. The result is, that the meaning of the phrase has t o be sought in the history of its specific applications, and, as the variety of these possible applications is infinite, it will probably never be possible to s ay that the full content of that meaning has been determined. In Twining vs. New Jersey (211 U.S., 78), we find the court saying: "Few phrases in the law are so elusive of exact apprehension as this. This court has always declined to give a comprehensive definition of it, and has preferred that its full meaning should be gradually ascertained by the process of inclusion and exclusion in the course of the decisions of cases as they arise." So also in Davidson vs. New Orleans ( 96 U.S., 97), the court said: "to define what it is for a state to deprive a per son of life, liberty or property without due process of law, in terms which woul d cover every exercise of power thus forbidden to the state, and exclude those w hich are not, no more useful construction could be furnished by this or any othe r court to any part of the fundamental law." And, later in the same opinion: "Th ere is wisdom in the ascertaining of the intent and application of such an impor tant phrase in the Federal Constitution by the gradual process of judicial inclu sion and exclusion as the cases presented for decision shall require, with the r easoning on which such discussions may be founded." In Holden vs. Hardy (169 U.S., 366) the court said: ted to define with precision the words "due process say that there are certain immutable principles of very idea of free government which no member of the "This court has never attemp of law." It is sufficient to justice which inhere in the Union may disregard."

It would appear, then, that a complete knowledge of the meaning of the doctrine of due process of law in American constitutional jurisprudence can be obtained o nly by a study of every case in which its application has been sought. . . . Per Legem Terrae. The historical antecedents of the phrase "due process of law" may be clearly tra ced back to the expression per legem terrae as it occurs in the Charter wrung by the Barons from King John. The 39th chapter of that document provides that "no freeman shall be taken, or imprisoned, or disseized, or outlawed, or exiled, or in any way destroyed; nor shall we go upon him nor send upon him, but by the law ful judgment of his peers or by the law of the land" (per legem terrae). In the later re-issues and reaffirmations of this charter by Henry III, in 1216, 1217 a nd 1225, this provision was repeated, with, however, in the issues of 1217 and 1 225, the addition of the words after disseized, "of his freehold, or liberties,

or free customs," (de libera tenemento suo vel libertatibus, vel liberis consuet udinibus suis). The words of Magna Charta, per legem terrae, probably had at this time the techn ical meaning that no civil or criminal plea should be decided against a freeman until he had been given the opportunity to furnish the customary "proof" which t he law, as it then stood, recognized and permitted him to offer. This proof migh t be by battle, or ordeal, or by compurgation. Whatever form it might assume it was technically known as a law (lex), that is, as a test according to which the defendant's claim was to be upheld or denied. (McKechnie, Magna Charta, 102, 441 , 442; Thayer, Evidence, 200; Bigelow, History of Procedure, 155. Thayer and Big elow are cited by McKechnie.) In the various petitions of the Parliament in the Fourteenth Century against the arbitrary acts of the King's Council, the guaranty of the law of the land was a ppealed to, and these petitions, when assented to by the King, became, of course , statutes of the realm. Thus, in 1331, in Stat. 5 Edw. III, C. 9, it was declar ed that "no man from henceforth shall be attacked by any accusation, nor forejud ged of life or limb, nor his lands, tenements, goods nor chattels seized into th e King's hands against the form of the Great Charter and the law of the land." S o again, in 1351, in Stat. 25, Edw. III, C. 4, it was declared that "from hencef orth none shall be taken by petition or suggestion made to our lord the King or his Council, unless it be by presentment or indictment of his good and lawful pe ople of the same neighborhood, where such deeds be done, in due manner, or by pr ocess made by writ original at the common law, nor that none be ousted of his fr anchises, nor of his household, unless he be fully brought in to answer and fore judged of the same by the courts of the law." Still again, in 1355, in Stat. 28, Edw. III, C. 3, there was a substantially similar provision, and there, for wha t would appear to be the first time, we have the modern phrase employed. "No man ," it was declared, "of what state or condition so ever he be, shall be put out of his lands, or tenements, nor taken, nor imprisoned, nor indicted, nor put to death, without he be brought in to answer by due process of law." (Par due proce ss de lei.) (Cf. McGehee, Due Process of Law, Chap. I.) It is thus apparent that in these petitions and statutes of Edward III, the phra ses "due process of law" and "the law of the land" had come to be synonymous, bo th indicating, as the substance of the petitions shows, that the guaranty insist ed upon was that persons should not be imprisoned except upon due indictment, or without an opportunity on their parts to test the legality of their arrest and detention, and that their property should not be taken except in proceedings con ducted in due form in which fair opportunity was offered to the one claiming own ership or right to possession to appear and show cause, if any, why the seizure should not be made. The Petition of Right of 1628, approved by Charles I, recited various arbitrary acts complained of, and appealed to "the laws and franchises of the realm." Coke , in his Second Institute, defined the phrase per legem terrae as meaning "the c ommon law, statute law or custom of England," and then declared: "For the true s ense and exposition of these words, see the Statute 37, Edw. III, C. 8, where th e words "by the law of the land" are rendered "without due process of law", for there it is said, though it be contained in the Great Charter, that no man be ta ken, imprisoned, or put out of his freehold without due process of law; that is by indictment or presentment of good and lawful men where such deeds be done or by writ original of the common law. It was in this sense as employed in the statutes of Edward III and by Coke, and as relating solely to matters of procedure, that the phrase due process of law w as introduced into, American law. (3 Willoughby on the Constitution of the Unite d States, 2d ed., sections 1113, 1114, pp. 1685, 1688,)

English and American Use of the Phrase "Due Process of Law" Contrasted. Coming now to American practice we find that the exact phrase "due process of la w" was not employed in any of the eleven State constitutions adopted prior to th e Federal Constitution, but that it early found expression in substance, if not in very words, in those instruments. The very words do, however, appear in the D eclaration of Rights of the State of New York, adopted in 1777, and in one of th e amendments proposed by that State to the Federal Constitution as drafted by th e convention of 1787. The first appearance of the express provision in an Americ an instrument of government is in the Fifth Article of Amendment to the Constitu tion of the United States, adopted in 1791. That amendment provides, inter alia, that "nor shall any person . . . be deprived of life, liberty or property, with out due process of law." The Federal imposition of this requirement upon the Sta tes did not come until 1868 when the Fourteenth Amendment was ratified. It is a very remarkable fact that not until our written Constitution was more th an half a century old did the phrase receive an interpretation and application w hich approximates that which it has today, and not, indeed, until a hundred year s had passed away was resort had to it as the usual device of those disapproving of the acts of their legislatures. This, however, is no doubt in a measure expl ainable by the fact that not until the increased complexity of social and indust rial life had led, upon the one hand, to the use by the State and Federal Govern ments of administrative process more or less summary in character and, upon the other hand, to a marked increase in the regulative control of law over private a cts and the use of public property, did there appear the necessity for the appea l to this limitation by those who conceived themselves injured by the exercise o f such administrative powers or by the enforcement of these legislative regulati ons. In two most important respects the application in America of the requirement of due process of law has differed from that which it had received in England prior to 1776, and which, indeed, it still receives in that country. These are: (1) t hat, in the United States, it operates as a limitation upon the legislative as w ell as upon the executive branch of the government, and (2) that it relates to s ubstantive as well as to procedural rights. This second application is, however, one which, as we shall see, was not at first developed. Before the requirement could be recognized as one upon the legislature there had first to be established the doctrine that the courts, when called upon to apply the enactments of the lawmaking branch of the government of which they themselv es constitute the judiciary, may declare the invalidity of enactments which, in their judgment, conflict with the provisions of the written Constitution. This d octrine, as is well known, was not accepted without protest, but may be said to have received final and decisive sanction as a fundamental principle of American constitutional jurisprudence in the great opinion of Marshall, rendered in 1803 , in the case of Marbury vs. Madison (1 Cr., 137). That, as contrasted with English practice, the requirement of due process of law was a limitation upon the legislative power, so far, at least, as to render voi d an enactment authorizing a taking of life, liberty or property by an arbitrary or otherwise defective procedure, seems early to have been held, the argument b eing founded upon the obvious fact that, as contrasted with the English constitu tional documents, American written instruments of government and their accompany ing Bills of Rights have for their primary aim the delimitation of the powers of all the departments of government, of the legislative as well as the executive and judicial. (3 Willoughby, 2d ed., section 1115, pp. 1689, 1690.) The possibility, under a popular form of government, of oppression in the form o f laws enacted by their own representatives, does not appear to have been keenly felt by the people. So far, however, as it was apprehended, the early view seem

s to have been that the restraints of natural law would be operative, according to the doctrine that the law-making branch of every government is inherently wit hout the power arbitrarily and oppressively to invade the sphere of private righ ts of persons and property. This natural law doctrine, though it can never be sa id to have gained a definite establishment, even for a time, nevertheless receiv ed frequent obiter assertion, and its influence was for a long time seen in disc ussions of our higher courts. Thus, for example, in 1875, in Loan Association vs . Topeka the court said: "It must be conceded that there are such rights in ever y free government beyond the control of the state, a government which recognized no such rights, which held the lives, the liberty and the property of its citiz ens subject at all times to the absolute disposition and unlimited control of ev en the most democratic depository of power is, after all, but a despotism .. The theory of our governments, state and municipal, is opposed to the deposit of un limited power anywhere. The executive, the legislative and the judicial branches of these governments are all of limited and defined powers. There are limitatio ns on such power which grow out of the essential nature of all free governments implied reservations of individual rights, without which the social compact coul d not exist, and which are respected by all governments entitled to the name. No court, for instance, would hesitate to declare void a statute which enacted tha t A And B who were husband and wife to each other should be no longer, but that A should thereafter be the husband of C, and B the wife of D, or which should en act that the homestead now owned by A should henceforth be the property of B." 3 Willoughby, United States Constitutional Law, section 1116, pp. 1692, 1693.) There are certain general principles, well settled, however, which narrow the fi eld of discussion, and may serve as helps to correct conclusions. These principl es grow out of the proposition universally accepted by American courts on the au thority of Coke, that the words "due process of law" are equivalent in meaning t o the words "law of the land," contained in that chapter of Magna Charta which p rovides that "no freeman shall be taken, or imprisoned, disseized, or outlawed, or exiled, or any wise destroyed; nor shall we go upon him, nor send upon him, b ut by lawful judgment of his peers, or by the law of the land." In Hagar vs. Reclamation Dist. it was said: "It is sufficient to say that by due process of law is meant one which, following the forms of law, is appropriate t o the case and just to the parties to be affected. It must be pursued in the ord inary mode prescribed by the law, it must be adapted to the end to be attained, and whenever it is necessary for the protection of the parties, it must give the m an opportunity to be heard respecting the justness of the judgment sought. The clause, therefore, means that there can be no proceeding against life, liberty, or property which may result in deprivation of either, without the observance o f those general rules established in our system of jurisprudence for the securit y of private rights." "By the law of the land," said Webster in a much quoted paragraph, "is most clea rly intended the general law which hears before it condemns; which proceeds upon inquiry and renders judgment only after trial. The meaning is that every citize n shall hold his life, liberty and property and immunities under the protection of general rules which govern society. Everything which may pass under the form of an enactment is not law of the land." (3 Willoughby, 2d ed., pp. 1708, 1709.) The fact that the requirement as to due process includes, to a very considerable extent at least, the guarantee of equal protection of the laws, is especially s hown in the opinion of the court in Smyth vs. Ames where it is said: "The equal protection of the laws, which by the Fourteenth Amendment no State can deny to t he individual, forbids legislation, in whatever form it may be enacted, by which the property of an individual is, without compensation, wrested from him for th e benefit of another, or of the public." The possible distinction between the two prohibitions we find touched upon by Ch

ief Justice Taft in his opinion in Truax vs. Corrigan. He there said: "It may be that they (the two prohibitions) overlap, that a violation of one may involve a t times the violation of the other, but the spheres of the protection they offer are not conterminous. . . . The due process clause . . . of course tends to sec ure equality of law in the sense that it makes a required minimum of protection for everyone's right of life, liberty, and property, which the Congress of the l egislature may not withhold. Our whole system of law is predicated on the genera l fundamental principle of equality of application of the law. . . . But the far mers and adopters of this (Fourteenth) Amendment were not content to depend on a mere minimum secured by the due process clause, or upon the spirit of equality which might not be insisted on by local public opinion. They therefore embodied that spirit in a specific guaranty. The guaranty was aimed at undue favor and in dividual or class privilege, on the one hand, and at hostile discrimination or t he oppression of inequality, on the other. It sought an equality of treatment of all persons, even though all enjoyed the protection of due process." Thus, in t he instant case, the Chief Justice pointed out that the State statute under exam ination which prohibited interference by injunctions in disputes between employe rs and employees concerning terms or conditions of employment resulted in the re cognition of one set of actions against ordinary tort feasors and another set ag ainst tort feasors in labor disputes. The contention that no one has a vested ri ght to injunctive relief, he said, did not meet the objection that the granting of equitable relief to one man or set of men, and denying it to others under lik e circumstances and in the same jurisdiction was a denial of the equal protectio n of the laws. In Hayes vs. Missouri the court said of the Fourteenth Amendment that it "does n ot prohibit legislation which is limited either in the objects to which it is di rected or by the territory within which it is to operate. It merely requires tha t all persons subject to such legislation shall be treated alike, under like cir cumstances and conditions both in the privileges conferred and in the liabilitie s imposed." Having quoted this statement, Chief Justice Taft in Truax vs. Corrig an added: "Indeed, protection is not protection unless it does so. Immunity gran ted to a class, however limited, having the effect to deprive another class, how ever limited, of a personal or property right, is just clearly a denial of equal protection of the laws to the latter class as if the immunity were in favor of, or the deprivation of right permitted worked against, a larger class." From what has been said it is clear that, in many cases, laws which have been he ld invalid as denying due process of law might also have been so held as denying equal protection of the laws, or vice versa, and that, in fact, in not a few ca ses the courts have referred to both prohibitions leaving it uncertain which pro hibition was deemed the most pertinent and potent in the premises. "One of the b est general statements of the scope and intent of the provision for the equal pr otection of the laws is that given by Justice Field in his opinion in Barbier vs . Connolly, in which, speaking for the court, he said: "The Fourteenth Amendment in declaring that no State "shall deprive any person o f life, liberty or property without due process of law, nor deny to any person w ithin its jurisdiction the equal protection of the laws," undoubtedly intended, not only that there should be no arbitrary deprivation of life or liberty or arb itrary spoliation of property but that equal protection and security should be g iven to all under like circumstances in the enjoyment of their personal and civi l rights; that all persons should be equally entitled to pursue their happiness and acquire and enjoy property; that they should have like access to the courts of the country for the protection of their persons and property, the prevention and redress of wrongs, and the enforcement of contracts; that no impediment shou ld be interposed to the pursuits by anyone except as applied to the same pursuit s by others under like circumstances; that no greater burdens should be laid upo n one than are laid upon others in the same calling and condition, and that in t he administration of criminal justice no different or higher punishment should b

e imposed upon one that such as is prescribed to all for like offenses." (3 Will oughby 2d ed., pp. 1928, 1930.) The legislature may suspend the operation of the general laws of the State, but when it does so the suspension must be general, and cannot be made for individua l cases or for particular localities. Privileges may be granted to particular in dividuals when by so doing the rights of others are not interferred with; disabi lities may be removed; the legislature as parens patriae, when not forbidden, ma y grant authority to the guardians or trustees of incompetent persons to exercis e a statutory control over their states for their assistance, comfort, or suppor t, or for the discharge of legal or equitable liens upon their property; but eve ry one has a right to demand that he be governed by general rules, and a special statute which, without his consent, singles his case out as one to be regulated by a different law from that which is applied in all similar cases, would not b e legitimate legislation, but would be such an arbitrary mandate as is not withi n the province of free governments. Those make the laws "are to govern by promul gated, established laws, not to be varied in particular cases, but to have one r ule for rich and poor, for the favorite at court and the countryman at plough." This is a maxim in constitutional law, and by it we may test the authority and b inding force of legislative enactments. (Cooley's Constitutional Limitations, 7t h ed., pp. 558, 559.) Equality of rights, privileges, and capacities unquestionably should be the aim of the law; and if special privileges are granted, or special burdens or restric tions imposed in any case, it must be presumed that the legislature designed to depart as little as possible from this fundamental maxim of government. The State, it is to be presumed, has no favors to bestow, and designs to inflict no arbitrary deprivation of rights. Special privileges are always obnoxious, an d discriminations against persons or classes are still more so; and, as a rule o f construction, it is to be presumed they were probably not contemplated or desi gned. (Cooley's Constitutional Limitations, 7th ed., pp. 562, 563.) It is usual for state constitutions and statutes to provide for the accused a sp eedy and public trial. By a speedy trial is meant one that can be had as soon af ter indictment as the prosecution can with reasonable diligence prepare for, reg ard being had to the terms of court; a trial conducted according to fixed rules, regulations, and proceedings of law, free from vexatious, capricious, and oppre ssive delays. The term "speedy" as thus used, being a word of indeterminate mean ing, permits legislative definition to some extent; and the authorities uniforml y hold that such statutes are enacted for the purpose of enforcing the constitut ional right, and that they constitute a legislative construction or definition o f the constitutional provision, and must be construed fairly to the accomplishme nt of that end. Any act of the legislature which infringes the constitutional pr ovision is necessarily nugatory. (16 C. J., pp. 439, 440.) "The purpose of the statute (1) is to prevent continued incarceration without op portunity to the accused, within a reasonable time, to meet the proofs upon whic h the charge is based." (State vs. Miller, 72 Wash., 154, 159, 163; 129 P., 1140 .) (2) "The constitutional privilege of a speedy trial was intended to prevent a n arbitrary, indefinite imprisonment, without any opportunity to the accused to face his accusers in a public trial. It was never intended as furnishing a techn ical means for escaping trial." (State vs. Miller, supra.) (3) "The sole object and purpose of all the laws from first to last, was to ensure the speedy trial t o the accused, and to guard against the a protracted imprisonment or harrassment by a criminal prosecution, an object but little if any less interesting to the public than to him." (Com. vs. Adcock, 8 Grat. [49 Va.], 661, 680.) (Quote Denha m vs. Robinson, 72 W. Va. 243, 255; 77 S. E., 970; 45 L.R.A., N.S., 1123; Ann. C as. 1915D, 997.) (See also Ex parte Santee (2 Va. Cas. [4 Va.], 363, 365) (where the court said: that whilst it has an eye to the solemn duty of protecting the

public against the wrongs of those who are regardless of their obligations to so ciety, and to the delays which the Commonwealth may unavoidably encounter in pro secuting breaches of these obligations, it is studious to shield the accused fro m consequences of the laches of those to whom the duty of conducting the prosecu tion may have been assigned. The public has rights as well as the accused, and o ne of the first of these is, that of redressing, or punishing their wrongs. It w ould not seem reasonable that this right, so necessary for the preservation of s ociety, should be forfeited without its default). "This provision of our constitutions must receive a reasonable interpretation. I t can not be held to mean that in all the possible vicissitudes of human affairs , a person who is accused of a crime shall have a speedy and public trial in due form of law, because there may be times when the civil administration will be s uspended by the force of uncontrollable circumstances. This constitutional provi sion was adopted upon general considerations growing out of the experience of pa st times, and was intended to prevent the government from oppressing the citizen by holding criminal prosecutions suspended over him for an indefinite time; and it was also intended to prevent delays in the customary administration of justi ce, by imposing upon the judicial tribunals an obligation to proceed with reason able dispatch in the trial of criminal accusations." (Ex parte Turman, 26 Tex., 708, 710; 84 Am. D., 598.). (16 C.J., 440, footnote.) In any criminal case, the person accused may not be deprived of life, liberty, o r property except by due process of law, even though he is guilty. The law by wh ich the question of due process is determined is the law of the jurisdiction whe re the offense was committed and the trial is had. Due process of law in a criminal case requires a law creating or defining the of fense, a court of competent jurisdiction, accusation in due form, notice and opp ortunity to defend, trial before an impartial judge or judge and jury according to established criminal procedure, and a right to be discharged unless found gui lty. . . . While the freedom of the state and federal governments to control and regulate t he procedure of their courts for the prosecution of criminal offenses is limited by the requirement of the process of law, and the procedure must not work a den ial of fundamental rights of accused included within the conception of due proce ss, no particular form or method of procedure in criminal cases is required by t he guaranty of due process so long accused as accused has due and sufficient not ice of the charge or accusation and an adequate opportunity to be heard in defen se. (16 C.J.S., pp. 1171-1173.) An emergency existing does not increase constitutional power or diminish constit utional restrictions; hence while emergency legislation may temporarily limit av ailable remedies, it does not contemplate the permanent denial of due process. ( 16 C.J. S., p. 1157.) Although a law is fair on its face and impartial in appearance, yet, if it is ap plied and administered with an evil eye and unequal hand, so as to make unjust a nd illegal discrimination, it is within the prohibition of the Federal Constitut ion. (Chy Lung vs. Freeman, 92 U.S., 275; 23 Law, ed., 550.) The action of a state through its officers charged with the administration of a law fair in appearance may be of such a character as to constitute a denial of t he equal protection of the laws. (Bailey vs. Alabama, 219 U.S., 219; 31 Sup. Ct. Rep., 145; 55 Law. ed., 191.) The clause "due process of law" means that there can be no proceeding against li fe, liberty or property which may result in the deprivation of either, without t he observance of those general rules established in our system of jurisprudence

for the security of private rights. (Turpin vs. Lemon, 187 U.S., 51; 23 Sup. Ct. Rep., 20; 47 Law. ed., 70.) CRIMINAL ACCUSATIONS Perhaps the most important of the protections to personal liberty consist in the mode of trial which is secured to every person accused of crime. At the common law, accusations of felony were made in the form of an indictment by a grand jur y; and this process is still retained in many of the States, while others have s ubstituted in its stead an information filed by the prosecuting officer of the S tate or country. The mode of investigating the facts, however, is the same in al l; and this through a trial by jury, surrounded by certain safeguards which are a well understood part of the system, and which the government cannot dispense w ith. First, we may mention that the humanity of our law always presumes an accused pa rty innocent until he is proved to be guilty. This is a presumption which attend s all the proceedings against him, from their initiation until they result in a verdict, which either finds the party guilty or converts the presumption of inno cence into an adjudged fact. If there were any mode short of confinement which would, with reasonable certain ty, insure the attendance of the accused to answer the accusation, it would not be justifiable to inflict upon him that indignity, when the effect is to subject him, in a greater or less degree, to the punishment of a guilty person, while a s yet it is not determined that he has committed any crime. If the punishment on conviction cannot exceed in severity the forfeiture of a large sum of money, th en it is reasonable to suppose that such a sum of money, or an agreement by resp onsible parties to pay it to the government in case the accused should fail to a ppear, would be sufficient security for his attendance; and therefore, at the co mmon law, it was customary to take security of this character in all cases of mi sdemeanor; one or more friends of the accused undertaking for his appearance for trial, and agreeing that a certain sum of money should be levied of their goods and chattels, lands and tenements, if he made default. . . . The presumption of innocence is an absolute protection against conviction and punishment, except e ither, first on confession in open court; or, second, on proof which places the guilt beyond any reasonable doubt. Formerly, if a prisoner arraigned for felony stood mute wilfully, and refused to plead, a terrible mode was resorted to for t he purpose of compelling him to do so; and this might even end in his death; but a more merciful proceeding is now substituted; the court entering a plea of not guilty for a party who, for any reason, fails to plead for himself. Again, it is required that the trial be speedy; and here also the injunction is addressed to the sense of justice and sound judgment of the court. In this count ry, where officers are specially appointed or elected to represent the people in these prosecutions, their position gives them an immense power for oppression; and it is so to be feared they do not always sufficiently appreciate the respons ibility, and wield the power with due regard to the legal rights and privileges of the accused. When a person charged with crime is willing to proceed at once t o trial, no delay on the part of the prosecution is reasonable, except only that which is necessary for proper preparation and to secure the attendance of witne sses. Very much, however, must be left to the judgment of the prosecuting office r in these cases; and the court would not compel the government to proceed to tr ial at the first term after indictment found or information filed, if the office r who represents it should state, under the responsibility of his official oath, that he was not and could not be ready at that time. But further delay would no t generally be allowed without a more specific showing of the causes which preve nt the State proceeding to trial, including the names of the witnesses, the step s taken to procure them, and the facts expected to be proved by them, in order t hat the court might judge of the reasonableness of the application, and that the

prisoner, might, if he saw fit to take that course, secure an immediate trial b y admitting that the witnesses, if present, would testify to the facts which the prosecution have claimed could be proven by them. (Cooley's Constitutional Limi tations, 7th ed., pp. 436-441.) Section 19 of our Bill of Rights provides that "no citizen of this state shall b e deprived of life, liberty, property, privileges or immunities, or in any manne r disfranchised, except by the due course of the law of the land." "Law of the land" is interpreted to mean a general public law, operating equally upon every member of the community. (Re Jilz, 3 Mo. App., 246.) "No state shall . . . deny to any person within its jurisdiction the equal prote ction of the laws;" "nor shall any state deprive any person of life, liberty, or property without due process of law." . . . U.S. Constitution, section 1, artic le 14. Due process of law under the 14th Amendment and the equal protection of the law are secured if the law operates on all alike and does not subject the individual to the arbitrary exercise of the powers of government. (Duncan vs. Missouri, 15 2 U.S., 382; 38 Law. ed. 487; 14 Sup. Ct. Rep., 570; Hurtado vs. California, 110 U.S., 535; 28 Law. ed., 232; 4 Sup. Ct. Rep., 111, 292.) Do laws operate equally upon the citizens of the Commonwealth of Texas which wil l imprison under like verdicts one man for a month and another for six months? M anifestly not. Section 3 of the Bill of Rights to the State Constitution provides: "All freemen , when they form a social compact, have equal rights." A law which makes different punishments follow the same identical criminal acts in the different political subdivisions of Texas violates both our state and Fed eral Constitutions. It fails to accord equal rights and equal protection of the law, and a conviction under it is not in due course of the "law of the land." Re Jilz (3 Mo. App., 246); Re H.F. Millon (16 Idaho, 737; 22 L.R.A. [N.S.], 1123; 102 Pac., 374), and Jackson vs. State (55 Tex. Crim. Rep., 557; 117 S.W., 818), are cited in support of our view in their reasoning. We think the principles announced in the case of Ex parte Jones (106 Tex. Crim. Rep., 185; 290 S.W., 177), apply in some degree to the instant case. It was ther e held that article 793, Code Crim. Proc., superseded and controlled an ordinanc e of the city of Dallas which allowed only 50 cents per day to be credited upon the fine of a convict for labor performed. Provisions similar to those quoted in our state constitution have been a part of Anglo-Saxon jurisprudence since ther e was wrung from the unwilling hands of King John at Runnymede in 1215 the Magna Charta, which itself provides that a freeman shall not be passed upon or condem ned but "by the lawful judgment of his peers and the law of the land." "Law of t he land" has the same legal meaning as "due process of law," and one of its acce pted meanings is that quoted above. Re Jilz, 3 Mo. App., 243; 3 Words & Phrases, pp. 2227-2232. (Ex parte Sizemore, 59 A.L.R., Annotated, pp. 430, 432.) And in Re Jilz ([1877]), 3 Mo. App., 243), an act of the legislature of Missouri , which, by limiting the power of a court established in a certain county to ass ess punishments, varied the penalties for crimes committed therein from those fi xed by the general law for the whole state, was held to be unconstitutional in s o far as it had that effect, the court saying: "A law which should prescribe dea th as the punishment of murder in one county, and imprisonment as the penalty fo r the same crime in other parts of the state, would be void, because not operati ng equally upon all inhabitants of the state. The general law applicable to the state prescribes, as the punishment for the offense for which the petitioner was

convicted, imprisonment in the county jail not exceeding one year, or fine not exceeding $500, or both such fine imprisonment. . . . A law prescribing a differ ent punishment from this in St. Louis county is clearly unconstitutional. It fol lows that so much of the act referred to, establishing the court of criminal cor rection, as limits the punishment for this misdemeanor in St. Louis county to im prisonment for six months, is void." So, in State vs. Buchardt (Mo.) supra, where the same legislative act was in que stion, the court says: "Under our Constitution, it is not permissible to punish the same offense or violation of some public or general law by one species of pu nishment in one locality, and by a different or more heavy punishment in other l ocalities in the state. A law inflicting such different penalties for the perpet ration of any given crime cannot bear the test of judicial examination." And, in State vs. Gregori ([1928], Mo , 2 S.W. [2d], 747), an act of the legisla ture which made children seventeen years of age in counties of 50,000 population or more subject to the juvenile court act, while in counties of less than 50,00 0 population children seventeen years of age were not subject to the juvenile co urt act, but were subject to full criminal responsibility, was held unconstituti onal as denying equal protection of the laws; the court stating that it was the general doctrine that the law relative to those who might be charged with and co nvicted of crime, as well as to the punishment to be inflicted therefor, should operate equally upon every citizen or inhabitant of the state. And, in State vs. Fowler ([1927], 193 N.C., 290; 136 S.E., 709), an act of the N orth Carolina legislature, applicable to five counties of the state only, which imposed as punishment for a specified offense a fine only, while a statute appli cable to the whole state imposed a fine or imprisonment, was held to be unconsti tutional under both the Federal and State Constitutions as a denial of the equal protection of the laws. The court says: "But the statute under consideration ca nnot be sustained on the ground that it was enacted in the exercise of the polic e power. The question is whether it shall supersede "the law of land" the genera l public law which was designed to operate without exception or partiality throu ghout the state. It is needful to remember that indictment was drafted under the general law, and that the decisive question is whether offenders in the five co unties referred to may lawfully be exempted from the punishment prescribed by th e general law; whether they shall be subject only to a fine when the offenders i n ninety-five other counties may be punished by imprisonment. In our judgment th is part of section 2 is neither equal protection of the laws nor the protection of equal laws. . . . It is the grant of a special exemption from punishment or a n exclusive or separate privilege which is forbidden by the cited provision. . . . The principle of uniformity in the operation of a general law extends to the punishment, and denounces as arbitrary and unreasonable the imposition in one co unty of any kind of punishment which is different from that which is prescribed under the general law to all who may be guilty of the same offense. It follows t hat the provision limiting the punishment for the first offense to a fine must b e regarded as an arbitrary class distinction which cannot be sustained because f orbidden by the fundamental law, and the judgment which was pronounced by author ity of the general law must be upheld. (Annotation, 59 A.L.R., Annotated, p. 434 .) Bills of attainder were prohibited to be passed, either by the Congress or by th e legislatures of the several States. Attainder, in a strict sense, means an ext inction of civil and political rights and capacities; and at the common law it f ollowed, as of course, on conviction and sentence to death for treason; and, in greater or less degree, on conviction and sentence for the different classes of felony. A bill of attainder was legislative conviction for alleged crime, with judgment of death. Such convictions have not been uncommon under other governments, and t

he power to pass these bills has been exercised by the Parliament of England at some periods in its history, under the most oppressive and unjustifiable circums tances, greatly aggravated by an arbitrary course of procedure, which had few of the incidents of a judicial investigation into alleged crime. For some time bef ore the American Revolution, however, no one had attempted to defend it as a leg itimate exercise of power; and if it would be unjustifiable anywhere, there were many reasons why it would be specially obnoxious under a free government, and w hy consequently its prohibition, under the existing circumstances of our country , would be a matter of more than ordinary importance. Every one must concede tha t a legislative body, from its numbers and organization, and from the very intim ate dependence of its members upon the people, which renders them liable to be p eculiarly susceptible to popular clamor, it not properly constituted to try with coolness, caution, and impartiality a criminal charge, especially in those case s in which the popular feeling is strongly excited the very class of cases most likely to be prosecuted by this mode. And although it would be conceded that, if such bills were allowable, they should properly be presented only for offenses against the general laws of the land, and be proceeded with on the same full opp ortunity for investigation and defense which is afforded in the courts of the co mmon law, yet it was remembered that in practice they were often resorted to bec ause an obnoxious person was not subject to punishment under the general law, or because, in proceeding against him this mode, some rule of the common law requi ring a particular species of degree of evidence might be evaded, and a convictio n secured on proofs that a jury would not be suffered to accept as overcoming th e legal presumption of innocence. Whether the accused should necessarily be serv ed with process; what the degree or species of evidence should be required; whet her the rules of law should be followed, either in determining what constituted a crime, or in dealing with the accused after conviction were all questions whic h would necessarily address themselves to the legislative discretion and sense o f justice; and the very qualities which are essential in a court to protect indi viduals on trial before them against popular clamor, or the hate of those in pow ers, were precisely those which were likely to prove weak or wanting in the legi slative body at such a time. And what could be more obnoxious in a free governme nt than the exercise of such a power by a popular body, controlled by a mere maj ority, fresh from the contests of exciting elections, and quite too apt, under t he most favorable circumstances, to suspect the motives of their adversaries, an d to resort to measures of doubtful propriety to secure party ends? Nor were legislative punishments of this severe character the only ones known to parliamentary history; there were others of a milder form, which were only less obnoxious in that the consequences were less terrible. These legislative convic tions which imposed punishments less than that of death were called bills of pai ns and penalties, as distinguished from bills of attainder; but the constitution al provisions we have referred to were undoubtedly aimed at any and every specie s of legislative punishment for criminal or supposed criminal offenses; and the term "bill of attainder" is used in a generic sense, which would include bills o f pains and penalties also. The thoughtful reader will not fail to discover, in the acts of the American Sta tes during the Revolutionary period, sufficient reason for this constitutional p rovision, even if the still more monitory history of the English attainders had not been so freshly remembered. Some of these acts provided for the forfeiture o f the estates, within the Commonwealth, of those British subjects who had withdr awn from the jurisdiction because not satisfied that grievances existed sufficie ntly serious to justify the last resort of an oppressed people, or because of ot her reasons not satisfactory to the existing authorities; and the only investiga tion provided for was an inquiry into the desertion. Others mentioned particular persons by name, adjudged them guilty of adhering to the enemies of the State, and proceeded to inflict punishment upon them so far as the presence of property within the Commonwealth would enable the government to do so. These were the re sorts of a time of extreme peril, and if possible to justify them in a period of

revolution, when everything was staked on success, and when the public safety w ould not permit too much weight to scruples concerning the private rights of tho se who were not aiding the popular cause, the power to repeat such acts under an y conceivable circumstances in which the country could be placed again was felt to be too dangerous to be felt in the legislative hands. So far as proceedings h ad been completed under those acts before the treaty of 1783, by the actual tran sfer of property, they remained valid and effectual afterwards; but so far as th ey were then incomplete, they were put an end to by that treaty. The conviction of the propriety of this constitutional provision has been so uni versal, that it has never been questioned, either in legislative bodies or elsew here. Nevertheless, cases have recently arisen, growing out of the attempt to br eak up and destroy the government of the United States, in which the Supreme Cou rt of the United States has adjudged certain actions of Congress to be in violat ion of this provision and consequently void. The action referred to was designed to exclude from practice in the United States courts all persons who had taken up arms against the government during the recent rebellion, or who had voluntari ly given aid and encouragement to its enemies; and the mode adopted to effect th e exclusion was to require of all persons, before they should be admitted to the bar or allowed to practice, an oath negativing any such disloyal action. This d ecision was not at first universally accepted as sound; and the Supreme Courts o f West Virginia and of the District of Columbia declined to follow it, insisting that permission to practice in the courts is not a right, but a privilege, and that the withholding it for any reason of State policy or personal unfitness cou ld not be regarded as the infliction of criminal punishment. The Supreme Court of the United States has also, upon the same reasoning, held a clause in the Constitution of Missouri, which, among other things, excluded all priests and clergymen from practising or teaching unless they should first take a similar oath of loyalty, to be void, overruling in so doing a decision of the Supreme Court of that State. (Cooley's Constitutional Limitations, 7th ed., pp. 368-372.) The legal problem confronting us is characterized by the fact that we have to av oid the misleading effect resulting from the difference between the text and let ter of the law and their grammatical sense and effect on one side, and as it is interpreted and applied in actual practice. Apparently, there is nothing so harmless as the provision of section 19 of Act N o. 682, suspending for a period of not more than six months the provision of art icle 125 of the Revised Penal Code as amended. Article 125 of the Revised Penal Code punishes the public officer or employee wh o "shall detain any person for some legal ground and shall fail to deliver such person to the proper judicial authorities within the period of six hours." Said article has nothing to show that it bears constitutional sanction. It is on ly a part of the penal laws which are within the full jurisdiction of the legisl ative power to enact or not to enact. The Philippine Legislature which enacted t he Revised Penal Code could have failed to do so without, by that very fact, vio the lating any provision of the Constitution. The succeeding legislative bodies unicameral National Assembly and the Congress may, without question, repeal or s uspend article 125 of the Revised Penal Code, as any other article of the same, or even the whole code. Therefore, as an abstract proposition, as a matter of legal technicality, we bel ieve that there is absolutely no ground for disputing the power of the legislati ve body to suspend or even repeal article 125 of the Revised Penal Code. But the provision is vitiated:

(1) By the fact that it is a class legislation, excluding the political prisoner s concerned from the same benefits and protection afforded all other persons by article 125. (2) By the fact that it is interpreted and applied, not only in a negative sense as a deterrent against public officials or employees bent on encroaching and tr ampling upon the personal freedom of any person, but as a positive authority to said officers and employees to deprive and continue depriving the political pris oners concerned of their personal liberty, without due or any legal process of l aw provided the deprivation of liberty did not exceed six months, but without re ckoning the previous many months of illegal detention they had already suffered before their formal transfer to the Commonwealth Government. For these two radical and incurable defects, section 19 of Act No. 682 runs coun ter to the Constitution when it prohibits that no person shall be deprived of hi s liberty without due process of law nor shall any person be denied the equal pr otection of the laws. (Article III, section 1 [1], Constitution of the Philippin es.) No one can, with candor and fairness, deny the discriminatory character of the p rovision. If all discriminations are abhorrent under any regime of law and justi ce, imperatively more in a democracy such as ours, tribunals must be recreant to their duties if they fail to deny validity to such an odious legal measure, con ceived, adopted, and unhappily enacted by the legislative power in one of its bl undering moods in utter defiance of the fundamental law of the land. Petitioner points out that in the provision there is an unconstitutional delegat ion of legislative powers, because the power to suspend the provision of article 125 of the Revised Penal Code within the maximum period of six months, in fact, is transferred to the Special Prosecutors' Office, which may shorten or lengthe n said suspension by filing the corresponding criminal information at any time i t may deem convenient. The Special Prosecutors' Office may not suspend altogether article 125 of the Re vised Penal Code by filing immediately the information. It may suspend it for 10 days, by filing the information within that time. It may suspend it for one mon th, two months, or three months, by filing the information within the desired ti me. It may suspend it for a maximum period of six months just by mere inaction, by not filing any information at all. The result is, in fact, to place in the ha nds of the Special Prosecutors' Office the power to suspend article 125 for any length of time within the maximum period of six months. And what is worst is tha t the suspension that the Special Prosecutors' Office may decree is individualiz ed, and not of general effect to all the political prisoners concerned, thus mak ing the Special Prosecutors' Office a kind of dictatorship which may dispense it s favors and disfavors to individual prisoners under no other test than its conv enience and whims. Evidently, petitioner's complaint is well-taken, giving additional ground for th e nullity of the provision in question, the legislative power having been reserv ed by the Constitution exclusively to Congress. Lastly, the provision in question appears to legalize the many months of illegal detention already endured by the political prisoners concerned. The legislative power can not legalize illegal detention, much more if that illegal detention h as been perpetrated in utter violation of the Bill of Rights of the Constitution . Petitioner assails the validity of the whole Act No. 682, aside from what has be en already said about section 19 thereof, upon the following grounds:

(1) Because it is an ex post facto law, violating section 1 (11), Article III, o f the Constitution, petitioner having been deprived of his acquired right to be freed, under penalty to his detainers, within six hours after his detention unde r article 125 of the Revised Penal Code. (2) Because section 2 set up a legal trap by which a person, accused in the info rmation of an offense, may be convicted and sentenced for a different one, thus violating his constitutional right "to be informed of the nature and cause of th e accusation against him." (Section 1 [17], Article III, Constitution of the Phi lippines.) (3) Because it creates a special court to try cases arising years before its cre ation, transferring a jurisdiction belonging to courts of first instance to the People's Court, a blunder identical in nature and viciousness to the former prac tice of shuffling judges of first instance, the judicial rigodon resorted to bef ore to suit certain purposes of the government and which was stopped by Judge Bo rromeo's courageous defense of the independence of the judiciary, in a leading c ase before the Supreme Court which made history. (4) Because the creation of the People's Court is a judicial gerrymandering. (5) Because the name "People's Court" suggests a political entity, a popular dis penser of political justice, in contrast with the stable, impartial, cultured na ture of a judiciary, detached from momentary interests and influences. (6) Because the self-extinguishing character of the People's Court makes it an a gency for special mission, more an agency of the legislature than that of the ad ministration of justice. (7) Because it disqualifies members of the judiciary who served under the Japane se regime. We cannot but recognize that strength of the objections, specially objections (1 ), (2) and (7). But we are not ready to support petitioner's contention that the whole act shoul d be declared null and void, considering that the unconstitutional provisions th ereof may be segregated and the remaining portions of the text may stand on thei r own feet. Objection (1) adds only another ground to show the unconstitutionality of the pr ovision of section 19, suspending article 125 of the Revised Penal Code; and obj ection (2) only affects the corresponding provision of section 2 of the act. Obj ection (7), upon which we have already expressed our opinion in the case of De l a Rama vs. Misa (42 off. Gaz., 1544), only affects the provision concerning the disqualification of certain justices of the Supreme Court. Regarding objections (3), (4), (5), and (6), although they are meritorious, we b elieve that they are offset by the collegiate character of the newly created cou rt. We are inclined to believe that the main purpose in creating the the People' s Court was precisely to afford those who will be charged and tried before it a special safeguard, in the fact that more than one judge will have to hear and tr y a case, to counterbalance the prevailing prejudice in the community against th e persons who are accused for having allegedly collaborated with the enemy. For this reason, we are of opinion that the act creating the People's Court must not be invalidated. But it is our hope that its creation will not set a precedent that will sanction a wrong principle. Generally speaking, the creation of temporary tribunals to a

dminister justice in specifically pre-determined existing cases is contrary to t he nature and character of judicial functions and the purposes of the administra tion of justice, which must be characterized by the independence of judicial off icers, independence that cannot be secured without guaranteeing the stability of tenure of office. Judges are not supposed to decide on what may appear right or wrong in the evane scent moment when the voice of passion grows louder in the market of human activ ities. They must not make decisions in the spur of news that make screaming head lines and arouse the uncontrollable emotions of political leaders of the populac e. They must decide between right and wrong by the criterion of universal consci ence, by the judgment, not only of the fleeting instance of evolving history, bu t the unending caravans of generations to come. The inherent justice of their decisions must continue being sensed as the treasu red human heritage long long after they had rendered their inescapable tribute t o death, like the aroma which continues enriching and sweetening the air long af ter the flowers have been crushed in the chemist's retorts to give way to their perfumed essence, like the beauty of the temples and palaces of Palmyra which co ntinues charming our memory millenniums after they have become lust dusty ruins, like the heavenly melodies which continue lingering in our ears long after we h ave heard those musical gems, such as the masterpieces of Bach and the symphonie s of Beethoven, like light emitted by stars which ceased to exist centuries ago still traveling in the immensity of space to attract our admiration and arouse d reams of immortality. In order that judges could render judgments of lasting value which would embody the wisdom of the ages and the moral sense of all time, it is necessary that the y should preside over tribunals which must be looked upon as permanent instituti ons of justice, not temporary makeshifts, more appropriate to serve ephemeral pu rposes than to be the inviolable temples of an eternal goddess. And the judges t hemselves, to acquire the olympic serenity, the awesome and noble austerity, the hieratic aloofness, the majestic equanimity proper of their great mission, ther e being none greater that can be entrusted to a person as the image of God, must feel, by the permanency, stability, and security of their tenure of office, tha t they owe an undivided loyalty, not to any transient idols or to any momentary masters, no matter how powerful they are, but to the inseparable twin divinities of truth and justice. Judge Robert N. Wilkin said that the special function of a judicial officer is t o determine what is right and what is wrong, not only for the clamorous present, but for silent generations yet come. From him we quote these illuminating parag raphs: The guiding force in social evolution is not to be found in the arbitrary will o f groups, nor in a common purpose. It is to be found in the law of our nature, t hat imminent or inherent law founded on the characteristics of human kind. "A la w instilled and not imposed," as Cicero said, "a law in which we are fashioned, not instructed." It is not created by proclamation or legislative fiat. It is di scovered by patient research and spiritual insight. The true judge must have something of the vision of a prophet. He must be able t o see the trends of his time extended, so that principles which he announces may be adjusted to conditions yet to come. The observation of Graham Wallas that a great judge needs a touch of the qualities that make a poet has been quoted with approval by Professor Chafee, Justice Cardozo, and others. Poets, as has been s tated, bear the same relation to society as the antennae of an insect to its bod y; they are "feelers" of the body politic. Their sensibilities are more acute, m ore advanced than those of their contemporaries, and what they feel and express today their fellows will feel and understand tomorrow. Poets, prophets, judges t

hey are Gods elect; we cannot elect them. The great judge cannot be a child of his ages. If his judgments are to be great they must be timeless, or at least timed to the future. The spirit of the law sh ould enable him to transcend the spirit of his times and he should be able to sp eak sub specie aeternitatis. What a desecration of the office to choose its incu mbent by any system which forces him to temporize! Judges in early times were priests, or more accurately stated, the priests perfo rmed the functions of judges. There is still much about the judicial office that is priestly. This has ever seemed quite natural to those who took seriously the ir first legal learning from Blackstone, who stated at the outset that all human laws depend upon divine law. While for a time that teaching seemed out of fashi on, the more recent trend is to acknowledge again our subjection to a law of nat ure, a law divine. Be that as it may, it will not disputed that a proper perform ance of judicial duties requires a devotion quite similar to the consecration of the priest. Judges, like the clergy, should be kept unspotted from the world. A ny personal interest, selfish concern, or party consciousness, corrupts not only the judge but the judicial function. Any want of honest detachment in the judge undermines public faith in judicial administration. As has frequently been stat ed, it is quite as important to the public that judges should be free from the a ppearance of evil as that they should be free from actual evil. The prevalent di srespect for law is prompted not so much by corruption in the courts, as by that system of choosing judges which makes every judge suspect. The taking of judicial office should be much like the taking of holy orders one should not do so who is unwilling to suffer a kind of civil death. The only way in which one can be worthy of the office is by submerging self in the performanc e of the duties of the office. A judge should be only the voice of the law. As C icero said, "While the law is voiceless magistrate, the magistrate is law made v ocal." It is arrogant presumption for a judge to pose as anything more, and gros s indiscretion for him to assert his own voice. The only way in which he can avo id violation of the injunction, "Judge not, that ye be not judged," is by pronou ncing, not his personal will, but the judgment of the law. How otherwise could a judge impose a death sentence and live in peace? If the judgment is his own, th e blood of the condemned is upon him. If his judgment is at the behest of popula r clamor he has given sanction to lynching. But if his judgment is the pronounce ment of the law, the judicial function is fulfilled and his conscience is clear. The judicial robe should submerge personality and make its bearer, like a pries t in vestment, an impersonal part of a divine function. (The Judicial Function a nd the Need of Professional Section of Judges by Robert N. Wilkin, Journal of th e American Judicature Society, Vol. 29, No. 4, Dec., 1945.) The facts of current experience showed the imperative need of an intellectual ov erhauling as part of the work of post-war rehabilitation in all orders of our na tional life. Many elemental tenets and ideals need be restated, if not rediscove red. The worries and psychological shocks caused by the Japanese initial victori es and brutal oppressions concomitant with their occupation of our country, had the effect of warping the mentality and sense of moral values of not a negligibl e number of persons. There are men whose intellectual outlook and views of freed om and fundamental human rights, tethered by defective development of ideology, are not only outmoded, but absolutely incompatible with the trends of the progre ss, whose brains appear not to be completely freed from the embryonic amnion and are in need of allantoic nutrition, who would rather wield the bludgeon of jung le arbitrariness and make a coffle of serfs of free people, than abide by the co nstitutional precepts and the noble doctrines of the UNO Charter, whose juridica l ideas, rather than in the forum of modern democracy, have their proper place a mong the fossils of apteryx, megatheria, and dinosaurs' museum and, notwithstand ing, are being haled in apparently responsible sectors of the press as heroes of progressiveness. Such nonsense and intellectual travesty are inconceivable exce

pt in a topsy-turvy world which has adopted the thyrsus as the choicest emblem o f human happiness, where the frenzied mental processes have been inverted as if in the Corinthian order, the frieze, cornice, and architrave are place at the fo ot of the column and above it the stylobate. Among the basic concepts that must be included in the wholesale intellectual ove rhauling which we need undergo, if we have to follow the mental, social, legal, and moral thread which was cut at the impact of the disastrous invasion of our s oil, is the one we have on personal liberty, upon which the traditional democrat ic principles we had been accepting and following before the enemy occupation, a s part of the nature of our social and political institutions, appear to have be en forgotten, the present case being one of a series of instances evidencing it, as can be seen in our opinions in Raquiza vs. Bradford (75 Phil., 50); Reyes vs . Crisologo (75 Phil., 225); Duran vs. Abad Santos (75 Phil., 410); Herras Teeha nkee vs. Rovira (75 Phil., 634); Herras Teehankee vs. Director of Prisons p. 756 , post; Taada vs. Quirino (42 Off. Gaz., 394), the pronouncements in which we are reiterating here. The moral hiatus in our national life is over, and in this hour of resumption of democratic processes, there is an imperative need, as one of the cornerstones o f our national structure, to redefine and reaffirmed our pre-war concept of huma n freedom. The petitioner is entitled to be immediately set free, and we vote for restoring him to his personal freedom of which he was deprived without any legal process. G.R. No. L-9959 December 13, 1916 THE GOVERNMENT OF THE PHILIPPINE ISLANDS, represented by the Treasurer of the Ph ilippine 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 Avancea for appellee.

TRENT, J.: About $400,000, were subscribed and paid into the treasury of the Philippine Isl ands 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. Su bsequent thereto and on October 6 of that year, a central relief board was appoi nted, by authority of the King of Spain, to distribute the moneys thus voluntari ly contributed. After a thorough investigation and consideration, the relief boa rd 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 Isla nds, a list of these allotments, together with the names of those entitled there to, was published in the Official Gazette of Manila dated April 7, 1870. There w as 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 petit ion of the governing body of the Monte de Piedad, dated February 1, 1833, the Ph ilippine Government, by order dated the 1st of that month, directed its treasure r to turn over to the Monte de Piedad the sum of $80,000 of the relief fund in i nstallments 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 possess ion 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 s uit against the Monte de Piedad a recover, "through the Attorney-General and in representation of the Government of the Philippine Islands," the $80.000, togeth er with interest, for the benefit of those persons or their heirs appearing in t he 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 i nterest from February 28, 1912, and the costs of the cause. The defendant appeal ed and makes the following assignment of errors: 1. The court erred in not finding that the eighty thousand dollars ($80,000), gi ve 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 Govern ment 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 form er government. 2. The court erred in not having decreed that this donation had been cleared; sa id 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 su m of money resulting from a national subscription opened by reason of the earthq uake of June 3, 1863, in these Island. 4. That the court erred in not declaring that Act Numbered 2109, passed by the P hilippine Legislature on January 30, 1912, is unconstitutional. 5. That the court erred in holding in its decision that there is no title for th e 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 r eimburse the Philippine Government in the sum of eighty thousand dollars ($80,00 0) 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 Isla nds was directed to inform the home Government in what manner the indemnity migh t be paid to which, by virtue of the resolutions of the relief board, the person s who suffered damage by the earthquake might be entitled, in order to perform t he 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 rea ds: 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 M anila informs your Excellency, First: That the funds which it has up to the pres ent been able to dispose of have been exhausted in loans on jewelry, and there o nly remains the sum of one thousand and odd pesos, which will be expended betwee n to-day and day after tomorrow. Second: That, to maintain the credit of the est ablishment, which would be greatly injured were its operations suspended, it is

necessary to procure money. Third: That your Excellency has proposed to His Maje sty's Government to apply to the funds of the Monte de Piedad a part of the fund s 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 treasu ry there is held at the disposal of the central earthquake relief board over $10 90,000 which was deposited in the said treasury by order of your general Governm ent, 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 dispo sal of the central relief board, there be transferred to the Monte de Piedad the 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 Ma jesty's Government to approve the proposal made by your Excellency relative to t he 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 ot her reason, the board of directors of the Monte de Piedad obligates itself to re turn 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 fro m whichever bank or banks may lend it the money at the cheapest rate upon the se curity 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 Excellenc y'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 t he 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 th at the small account remaining will scarcely suffice to cover the transactions o f the next two days, for which reason it entreats the general Government that, i n pursuance of its telegraphic advice to H. M. Government, the latter direct tha t there be turned over to said Monte de Piedad $80,000 out of the funds in the p ublic treasury obtained from the national subscription for the relief of the dis tress caused by the earthquake of 1863, said board obligating itself to return t his 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 je welry; 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 s o 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 tr easury has on hand a much greater sum from the source mentioned than that solici ted; and considering that this general Government has submitted for the determin ation of H. M. Government that the balance which, after strictly applying the pr oceeds obtained from the subscription referred to, may remain as a surplus shoul d be delivered to the Monte de Piedad, either as a donation, or as a loan upon t he security of the credit of the institution, believing that in so doing the wis hes 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 h ighest degree by the Monte de Piedad, for it liberates needy person from the per nicious 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 wo rk 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 pu blic mind, it might be said that at the present juncture it would assume the nat ure of a disturbance of public order because of the extreme poverty of the poore r classes resulting from the late calamities, and because it is the only institu tion which can mitigate the effects of such poverty; and Considering that no reasonable objection can be made to granting the request her ein contained, for the funds in question are sufficiently secured in the unlikel y event that H> M. Government does not approve the recommendation mentioned, thi s general Government, in the exercise of the extraordinary powers conferred upon it and in conformity with the report of the Intendencia de Hacienda, resolves a s follows: First. Authority is hereby given to deliver to the Monte de Piedad, out of the s um held in the public treasury of these Islands obtained from the national subsc ription opened by reason of the earthquakes of 1863, amounts up to the sum $80,0 00, as its needs may require, in installments of $20,000. Second. The board of directors of the Monte de Piedad is solemnly bound to retur n, within eight days after demand, the sums it may have so received, if H. M. Go vernment 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 t he 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 I slands 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, 1 883," and after the rights of the claimants, whose names were published in the O fficial 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 th em all within a reasonable period and shall pay their shares to such as shall id entify 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 th e Treasury, such action may be taken as the circumstances shall require, after f irst 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 expe nded 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 un derstood, it is indispensable that the offices hereinbefore mentioned comply wit h 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 Jun e 28, 1893, reads: Intendencia General de Hacienda de Filipinas (General Treasury of the Philippine

s) 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 capita l in the year 1863 shall be paid the amounts allotted to them out of the sums se nt from Spain for this purpose, with observance of the rules specified in the sa id royal order, one of them being that before making the payment to the interest ed parties the assets shall be reduced to money. These assets, during the long p eriod of time that has elapsed since they were turned over to the Treasury of th e Philippine Islands, were used to cover the general needs of the appropriation, a part besides being invested in the relief of charitable institutions and anot her part to meet pressing needs occasioned by public calamities. On January 30, last, your Excellency was please to order the fulfillment of that sovereign mand ate and referred the same to this Intendencia for its information and the purpos es desired (that is, for compliance with its directions and, as aforesaid, one o f these being the liquidation, recovery, and deposit with the Treasury of the su ms paid out of that fund and which were expended in a different way from that in tended by the donors) and this Intendencia believed the moment had arrived to cl aim 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 Febr uary 1, 1883, was loaned to it out of the said funds, the (Monte de Piedad) obli gating itself to return the same within the period of eight days if H. M. Govern ment did not approve the delivery. On this Intendencia's demanding from the Mont e 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 mad e by the Monte de Piedad for, when it received the loan, it formally engaged its elf 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 earth quake 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 peri od of ten years during which it has been using this large sum which lawfully bel ongs to their persons. This Intendencia also supposed that the Monte de Piedad n o longer needed the amount of that loan, inasmuch as, far from investing it in b eneficient transactions, it had turned the whole amount into the voluntary depos it funds bearing 5 per cent interests, the result of this operation being that t he debtor loaned to the creditor on interest what the former had gratuitously re ceived. But the Monte de Piedad, instead of fulfilling the promise it made on re ceiving the sum, after repeated demands refused to return the money on the groun d 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 E xcellency 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 n ot received as a loan, but as a donation, this in the opinion of this Intendenci a, erroneously interpreting both the last royal order which directed the apporti onment of the amount of the subscription raised in the year 1863 and the superio r 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 donat ion whatever could be made of funds derived from a private subscription raised f or 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 me re material act of the delivery, which has been unduly delayed. In view of the u nexpected 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 s upport thereof, this Intendencia believes the intervention of your Excellency ne cessary in this matter, if the royal Order No. 1044 of December 3, last, is to b e 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 t he said royal order. I must call to the attention of your Excellency that the sa id 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 definit e 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 follo ws: "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 i nterest." 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," whic h latter account was a loan of $15,000 made to the defendant by the Archbishop o f Manila, without interest, thereby placing the "Sagrada Mitra" account at $95,0 00 instead of $15,000. The above-mentioned journal entry for January 1, 1899, re ads: "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, $9 5,000." On March 16, 1902, the Philippine government called upon the defendant for infor mation 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 i nformation from this office as to when and for what purpose the Spanish Governme nt delivered to the Monte de Piedad eighty thousand pesos obtained from the subs cription 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 15 th 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 a ccount and on each of the dates of March 12, April 14 and June 2 of the said yea r, 1883, they also received and turned into their funds a like sum of twenty tho usand 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 lette r 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 to ok place between the Government of Spain and the Philippine Government on the on e side and the Monte de Piedad on the other, concerning the $80,000. The Monte d e Piedad, after setting forth in its petition to the Governor-General its financ ial condition and its absolute necessity for more working capital, asked that ou t 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 n

ot 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-Gene ral, after reciting the substance of the petition, stated that "this general Gov ernment has submitted for the determination of H. M. Government that the balance which, after strictly applying the proceeds obtained from the subscription refe rred to, may remain as a surplus, should be delivered to the Monte de Piedad, ei ther as a donation, or as a loan upon the security of the credit of the institut ion," 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 solemnl y bound to return, within eight days after demand, the sums it may have so recei ved, if H. M. Government does not approve this resolution." It will be noted tha t the first and only time the word "donation" was used in connection with the $8 0,000 appears in this resolution of the Governor-General. It may be inferred fro m the royal orders that the Madrid Government did tacitly approve of the transfe r of the $80,000 to the Monte de Piedad as a loan without interest, but that Gov ernment certainly did not approve such transfer as a donation for the reason tha t the Governor-General was directed by the royal order of December 3, 1892, to i nform the Madrid Government of the total available sum of the earthquake fund, " taking into consideration the sums delivered to the Monte de Piedad pursuant 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 Gove rnment 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 connecti on with the report of the Department of Finance there can be no doubt that it wa s so intended. That report refers expressly to the royal order of December 3d, a nd sets forth in detail the action taken in order to secure the return of the $8 0,000. The Department of Finance, acting under the orders of the Governor-Genera l, 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 it s books until January, 1899, when it was transferred to the account of the "Sagr ada Mitra" and was thereafter known as the "Sagrada Mitra and subscription accou nt." 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 inter est." 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. Con sequently, 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 disti nction 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 charitab le institutions in his kingdoms, especially those of the Indies; among the latte r 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 specia l and peculiar manner, the protectors; the latter, as a result of the cession of the Philippine Islands, Implicitly renounced this high office and tacitly retur ned it to the Holy See, now represented by the Archbishop of Manila; the nationa l subscription in question was a kind of foundation or pious work, for a charita ble purpose in these Islands; and the entire subscription not being needed for i ts original purpose, the royal vice-patron, with the consent of the King, gave t he 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 dut y imposed upon him by the Holy See, when it conferred upon him the royal patrona ge of the Indies, a thing that touched him very closely in his conscience and re ligion; the cessionary Government though Christian, was not Roman Catholic and p rided itself on its policy of non-interference in religious matters, and inveter ately maintained a complete separation between the ecclesiastical and civil powe

rs. In view of these circumstances it must be quite clear that, even without the exp ress 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 subr ogate to the American Government in lieu of the Spanish Government anything resp ecting the disposition of the funds delivered by the latter to the Monte de Pied ad. The same reasons that induced the Spanish Government to take over such thing s would result in great inconvenience to the American Government in attempting t o do so. The question was such a delicate one, for the reason that it affected t he conscience, deeply religious, of the King of Spain, that it cannot be believe d 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 Gover nment 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 Spani sh 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) beca use 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 charit y founded by the donations for the earthquake sufferers is not and never was int ended 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 s hows clearly that the fund was given by the donors for a specific and definite p urpose the relief of the earthquake sufferers and for no other purpose. The mone y was turned over to the Spanish Government to be devoted to that purpose. The S panish Government remitted the money to the Philippine Government to be distribu ted among the suffers. All officials, including the King of Spain and the Govern or-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 ha ve 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 th e control of the church) as a loan or deposit. If the charity in question had be en founded as an ecclesiastical pious work, the King of Spain and the Governor-G eneral, in their capacities as vicar-general of the Indies and as royal vice-pat ron, respectively, would have disposed of the fund as such and not in their civi l 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. I t 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 t he general terms of property transfer in the Treaty of Paris are wholly insuffic ient for such a purpose even could Spain have transferred its trusteeship withou t the consent of the donors and even could the United States, as a Government, h ave 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 tha t this Government is not a proper party to the action. The only persons who coul d 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, coul d maintain an action for this purpose had there been no change of sovereignty an d if the right of action has not prescribed. But those governments were somethin g more than mere common law trustees of the fund. In order to determine their ex act status with reference to this fund, it is necessary to examine the law in fo rce at the time there transactions took place, which are the law of June 20, 189 4, the royal decree of April 27. 1875, and the instructions promulgated on the l atter date. These legal provisions were applicable to the Philippine Islands (Be nedicto 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 Relie f 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 a s distinguished from a permanent public charitable institution. As the Spanish G overnment initiated the creation of the fund and as the donors turned their cont ributions over to that Government, it became the duty of the latter, under artic le 7 of the instructions, to exercise supervision and control over the moneys th us collected to the end that the will of the donors should be carried out. The r elief 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 paragra ph 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 th ere be any, by assigning them to some other charitable purpose or institution. T he secretary could not dispose of any of the funds in this manner so long as the y were necessary for the specific purpose for which they were contributed. The s ecretary 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 cons isted 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 t he interior, as the representative of His Majesty's Government, exercised these powers and duties through the Governor-General of the Philippine Islands. The Go vernments 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 fun d. It is further contended that the obligation on the part of the Monte de Piedad t o return the $80,000 to the Government, even considering it a loan, was wiped ou t on the change of sovereignty, or inn other words, the present Philippine Gover nment cannot maintain this action for that reason. This contention, if true, "mu st result from settled principles of rigid law," as it cannot rest upon any titl e to the fund in the Monte de Piedad acquired prior to such change. While the ob ligation 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 Decembe r 10, 1898, the Archipelago, known as the Philippine Islands, was ceded to the U nited 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, pa ss to the present sovereign. This, in our opinion, does not follow as a necessar y consequence, as the right to recover does not rest upon the proposition that t he $80,000 must be "other immovable property" mentioned in article 8 of the trea ty, but upon contractual obligations incurred before the Philippine Islands were ceded to the United States. We will not inquire what effect his cession had upo n the law of June 20, 1849, the royal decree of April 27, 1875, and the instruct ions promulgated on the latter date. In Vilas vs. Manila (220 U. S., 345), the c ourt said: That there is a total abrogation of the former political relations of the inhabi tants of the ceded region is obvious. That all laws theretofore in force which a re in conflict with the political character, constitution, or institutions of th e 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 la w that the great body of municipal law which regulates private and domestic righ ts continues in force until abrogated or changed by the new ruler. If the above-mentioned legal provisions are in conflict with the political chara cter, constitution or institutions of the new sovereign, they became inoperative or lost their force upon the cession of the Philippine Islands to the United St ates, but if they are among "that great body of municipal law which regulates pr ivate and domestic rights," they continued in force and are still in force unles s they have been repealed by the present Government. That they fall within the l atter class is clear from their very nature and character. They are laws which a re not political in any sense of the word. They conferred upon the Spanish Gover nment the right and duty to supervise, regulate, and to some extent control char ities and charitable institutions. The present sovereign, in exempting "providen t institutions, savings banks, etc.," all of which are in the nature of charitab le institutions, from taxation, placed such institutions, in so far as the inves tment 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 c rown 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, a nd 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 op inion of the court in a charity case, said: When this country achieved its independence, the prerogatives of the crown devol ved 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 s overeign will is made known to us by legislative enactment. The State as a sover eign, 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 genera l superintending authority over the public interests, where no other person is e ntrusted 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 Sta te, whether that power is lodged in a royal person or in the legislature, and ha s no affinity to those arbitrary powers which are sometimes exerted by irrespons ible 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 necess ary to be exercised in the interest of humanity, and for the prevention of injur y 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 indispensi ble 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 b eing, 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 aut hority, 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 clear ly capable of being exercised in cases of charities as in any other cases whatev er. 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 instit ute the action; and that there must be an allegation and proof of a distinct rig ht of the people as a whole, as distinguished from the rights of individuals, be fore an action could be brought by the Attorney-General in the name of the peopl e. The court, in overruling these contentions, held that it was not only the rig ht but the duty of the Attorney-General to prosecute the action, which related t o charities, and approved the following quotation from Attorney-General vs. Comp ton (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 cr own 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, w hich, 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 o r the cestuis que trustent, and this Government is neither. Consequently, the pl aintiff is not the proper party to bring the action." The earthquake fund was th e 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 ascertai ned. They are quite numerous also. And no doubt a large number of the original s ufferers have died, leaving various heirs. It would be impracticable for them to institute an action or actions either individually or collectively to recover t he $80,000. The only course that can be satisfactorily pursued is for the Govern ment to again assume control of the fund and devote it to the object for which i t was originally destined.

The impracticability of pursuing a different course, however, is not the true gr ound upon which the right of the Government to maintain the action rests. The tr ue ground is that the money being given to a charity became, in a measure, publi c property, only applicable, it is true, to the specific purposes to which it wa s 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 Gov ernment'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 C hristian benevolence in like instances in the future. As to the question raised in the fourth assignment of error relating to the cons titutionality of Act No. 2109, little need be said for the reason that we have j ust held that the present Philippine Government is the proper party to the actio n. The Act is only a manifestation on the part of the Philippine Government to e xercise the power or right which it undoubtedly had. The Act is not, as contende d 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 a s it existed before the cession of the Philippine Islands to the United States b y the Treaty of Paris of December 10, 1898. The action was brought upon the theo ry that the city, under its present charter from the Government of the Philippin e 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 c orporate 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 holdin g the city liable for the old debt, said: The aw, it on, juristic identity of the corporation has been in no wise affected, and, in l the present city is, in every legal sense, the successor of the old. As such is entitled to the property and property rights of the predecessor corporati 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 pre scribed 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) becau se the defense of prescription cannot be set up against the Philippine Governmen t, (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 again st the Government and if the action had, in fact, prescribed, the same was reviv ed by Act No. 2109. The material facts relating to this question are these: The Monte de Piedad rece ived 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 t he 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-Genera l of the Philippine Islands and not the Department of Finance had the right to o rder the reimbursement. The amount was carried on the books of the Monte as a re turnable loan until January 1, 1899, when it was transferred to the account of t he "Sagrada Mitra." On March 31, 1902, the Monte, through its legal representati ve, 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 wa s one between individuals or corporations wherein the plaintiff is seeking to re cover 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, Co de of Civil Procedure.) But if counsels' theory is the correct one the action ma y have prescribed on May 3, 1912, because more than ten full years had elapsed a fter March 31, 1902. (Sections 38 and 43, Code of Civil Procedure.) Is the Philippine Government bound by the statute of limitations? The Supreme Co urt 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 princ iple of public policy, applicable to all governments alike, which forbids that t he public interests should be prejudiced by the negligence of the officers or ag ents to whose care they are confided that the United States, asserting rights ve sted 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 boun d. (Lindsey vs. Miller, 6 Pet. 666; U. S. vs. Knight, 14 Pet., 301; Gibson vs. C houteau, 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 agains t 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 agent s, and is essential to a preservation of the interests and property of the publi c. It is upon this principle that in this country the statutes of a State prescr ibing 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 stat utes. In 25 Cyc., 1006, the rule, supported by numerous authorities, is stated as foll ows: In the absence of express statutory provision to the contrary, statute of limita tions 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 a re 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 p arty seeks to enforces his private rights by suit in the name of the state or go vernment, so that the latter is only a nominal party. In the instant case the Philippine Government is not a mere nominal party becaus e it, in bringing and prosecuting this action, is exercising its sovereign funct ions or powers and is seeking to carry out a trust developed upon it when the Ph ilippine Islands were ceded to the United States. The United States having in 18 52, 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 o f Tennessee, either while it held them in trust for the Indians, or since it bec ame the owner of such coupons. (U. S. vs. Nashville, etc., R. Co., supra.) So wh ere 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., 39 7].) These principles being based "upon the foundation of the great principle of publ ic policy" are, in the very nature of things, applicable to the Philippine Gover nment. 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 aga inst the appellant. So ordered. Torres, Johnson and Araullo, JJ., concur. Moreland, J., did not sign. G.R. No. 78059 August 31, 1987 ALFREDO M. DE LEON, ANGEL S. SALAMAT, MARIO C. STA. ANA, JOSE C. TOLENTINO, ROGE LIO J. DE LA ROSA and JOSE M. RESURRECCION, petitioners, vs. HON. BENJAMIN B. ESGUERRA, in his capacity as OIC Governor of the Province of Ri zal, HON. ROMEO C. DE LEON, in his capacity as OIC Mayor of the Municipality of Taytay, Rizal, FLORENTINO G. MAGNO, REMIGIO M. TIGAS, RICARDO Z. LACANIENTA, TEO DORO V. MEDINA, ROSENDO S. PAZ, and TERESITA L. TOLENTINO, respondents.

MELENCIO-HERRERA, J.: An original action for Prohibition instituted by petitioners seeking to enjoin r espondents from replacing them from their respective positions as Barangay Capta in and Barangay Councilmen of Barangay Dolores, Municipality of Taytay, Province of Rizal. As required by the Court, respondents submitted their Comment on the Petition, a nd petitioner's their Reply to respondents' Comment. In the Barangay elections held on May 17, 1982, petitioner Alfredo M. De Leon wa s elected Barangay Captain and the other petitioners Angel S. Salamat, Mario C. Sta. Ana, Jose C. Tolentino, Rogelio J. de la Rosa and Jose M. Resurreccion, as Barangay Councilmen of Barangay Dolores, Taytay, Rizal under Batas Pambansa Blg. 222, otherwise known as the Barangay Election Act of 1982. On February 9, 1987, petitioner Alfredo M, de Leon received a Memorandum antedat ed December 1, 1986 but signed by respondent OIC Governor Benjamin Esguerra on F ebruary 8, 1987 designating respondent Florentino G. Magno as Barangay Captain o f Barangay Dolores, Taytay, Rizal. The designation made by the OIC Governor was "by authority of the Minister of Local Government."

Also on February 8, 1987, respondent OIC Governor signed a Memorandum, antedated December 1, 1986 designating respondents Remigio M. Tigas, Ricardo Z. Lacanient a Teodoro V. Medina, Roberto S. Paz and Teresita L. Tolentino as members of the Barangay Council of the same Barangay and Municipality. That the Memoranda had been antedated is evidenced by the Affidavit of responden t OIC Governor, the pertinent portions of which read: xxx xxx xxx That I am the OIC Governor of Rizal having been appointed as such on March 20, 1 986; That as being OIC Governor of the Province of Rizal and in the performance of my duties thereof, I among others, have signed as I did sign the unnumbered memora ndum ordering the replacement of all the barangay officials of all the barangay( s) in the Municipality of Taytay, Rizal; That the above cited memorandum dated December 1, 1986 was signed by me personal ly on February 8,1987; That said memorandum was further deciminated (sic) to all concerned the followin g day, February 9. 1987. FURTHER AFFIANT SAYETH NONE. Pasig, Metro Manila, March 23, 1987. Before us now, petitioners pray that the subject Memoranda of February 8, 1987 b e declared null and void and that respondents be prohibited from taking over the ir positions of Barangay Captain and Barangay Councilmen, respectively. Petition ers maintain that pursuant to Section 3 of the Barangay Election Act of 1982 (BP Blg. 222), their terms of office "shall be six (6) years which shall commence o n June 7, 1982 and shall continue until their successors shall have elected and shall have qualified," or up to June 7, 1988. It is also their position that wit h the ratification of the 1987 Constitution, respondent OIC Governor no longer h as the authority to replace them and to designate their successors. On the other hand, respondents rely on Section 2, Article III of the Provisional Constitution, promulgated on March 25, 1986, which provided: SECTION 2. All elective and appointive officials and employees under the 1973 Co nstitution shall continue in office until otherwise provided by proclamation or executive order or upon the designation or appointment and qualification of thei r successors, if such appointment is made within a period of one year from Febru ary 25,1986. By reason of the foregoing provision, respondents contend that the terms of offi ce of elective and appointive officials were abolished and that petitioners cont inued in office by virtue of the aforequoted provision and not because their ter m of six years had not yet expired; and that the provision in the Barangay Elect ion Act fixing the term of office of Barangay officials to six (6) years must be deemed to have been repealed for being inconsistent with the aforequoted provis ion of the Provisional Constitution. Examining the said provision, there should be no question that petitioners, as e lective officials under the 1973 Constitution, may continue in office but should vacate their positions upon the occurrence of any of the events mentioned. 1 Since the promulgation of the Provisional Constitution, there has been no procla

mation or executive order terminating the term of elective Barangay officials. T hus, the issue for resolution is whether or not the designation of respondents t o replace petitioners was validly made during the one-year period which ended on February 25, 1987. Considering the candid Affidavit of respondent OIC Governor, we hold that Februa ry 8, 1977, should be considered as the effective date of replacement and not De cember 1,1986 to which it was ante dated, in keeping with the dictates of justic e. But while February 8, 1987 is ostensibly still within the one-year deadline, the aforequoted provision in the Provisional Constitution must be deemed to have be en overtaken by Section 27, Article XVIII of the 1987 Constitution reading. SECTION 27. This Constitution shall take effect immediately upon its ratificatio n by a majority of the votes cast in a plebiscite held for the purpose and shall supersede all previous Constitutions. The 1987 Constitution was ratified in a plebiscite on February 2, 1987. By that date, therefore, the Provisional Constitution must be deemed to have been supers eded. Having become inoperative, respondent OIC Governor could no longer rely on Section 2, Article III, thereof to designate respondents to the elective positi ons occupied by petitioners. Petitioners must now be held to have acquired security of tenure specially consi dering that the Barangay Election Act of 1982 declares it "a policy of the State to guarantee and promote the autonomy of the barangays to ensure their fullest development as self-reliant communities. 2 Similarly, the 1987 Constitution ensu res the autonomy of local governments and of political subdivisions of which the barangays form a part, 3 and limits the President's power to "general supervisi on" over local governments. 4 Relevantly, Section 8, Article X of the same 1987 Constitution further provides in part: Sec. 8. The term of office of elective local officials, except barangay official s, which shall be determined by law, shall be three years ... Until the term of office of barangay officials has been determined by law, there fore, the term of office of six (6) years provided for in the Barangay Election Act of 1982 5 should still govern. Contrary to the stand of respondents, we find nothing inconsistent between the t erm of six (6) years for elective Barangay officials and the 1987 Constitution, and the same should, therefore, be considered as still operative, pursuant to Se ction 3, Article XVIII of the 1987 Constitution, reading: Sec. 3. All existing laws, decrees, executive orders, proclamations letters of i nstructions, and other executive issuances not inconsistent, with this Constitut ion shall remain operative until amended, repealed or revoked. WHEREFORE, (1) The Memoranda issued by respondent OIC Governor on February 8, 19 87 designating respondents as the Barangay Captain and Barangay Councilmen, resp ectively, of Barangay Dolores, Taytay, Rizal, are both declared to be of no lega l force and effect; and (2) the Writ of Prohibition is granted enjoining respond ents perpetually from proceeding with the ouster/take-over of petitioners' posit ions subject of this Petition. Without costs. SO ORDERED. Yap, Fernan, Narvasa, Gutierrez, Jr., Paras, Feliciano, Gancayco, Padilla, Bidin and Cortes, JJ., concur.

Separate Opinions

TEEHANKEE, CJ., concurring: The main issue resolved in the judgment at bar is whether the 1987 Constitution took effect on February 2, 1987, the date that the plebiscite for its ratificati on was held or whether it took effect on February 11, 1987, the date its ratific ation was proclaimed per Proclamation No. 58 of the President of the Philippines , Corazon C. Aquino. The Court's decision, with the lone dissent of Mr. Justice Sarmiento, holds that by virtue of the provision of Article XVIII, Section 27 of the 1987 Constitutio n that it "shall take effect immediately upon its ratification by a majority of the votes cast in a plebiscite held for the purpose," the 1987 Constitution took effect on February 2, 1987, the date of its ratification in the plebiscite held on that same date. The thrust of the dissent is that the Constitution should be deemed to "take eff ect on the date its ratification shall have been ascertained and not at the time the people cast their votes to approve or reject it." This view was actually pr oposed at the Constitutional Commission deliberations, but was withdrawn by its proponent in the face of the "overwhelming" contrary view that the Constitution "will be effective on the very day of the plebiscite." The record of the proceedings and debates of the Constitutional Commission fully supports the Court's judgment. It shows that the clear, unequivocal and express intent of the Constitutional Conunission in unanimously approving (by thirty-fi ve votes in favor and none against) the aforequoted Section 27 of Transitory Art icle XVIII of the 1987 Constitution was that "the act of ratification is the act of voting by the people. So that is the date of the ratification" and that "the canvass thereafter [of the votes] is merely the mathematical confirmation of wh at was done during the date of the plebiscite and the proclamation of the Presid ent is merely the official confirmatory declaration of an act which was actually done by the Filipino people in adopting the Constitution when they cast their v otes on the date of the plebiscite." The record of the deliberations and the voting is reproduced hereinbelow: 1 MR. MAAMBONG. Madam President, may we now put to a vote the original formulation of the committee as indicated in Section 12, unless there are other commissione rs who would like to present amendments. MR. DAVIDE. Madam President. THE PRESIDENT. Commissioner Davide is recognized. MR. DAVIDE. May I propose the following amendments. On line 2, delete the words "its ratification" and in lieu thereof insert the fo llowing-. "THE PROCLAMATION BY THE PRESIDENT THAT IT HAS BEEN RATIFIED." And on the last line, after "constitutions," add the following: "AND THEIR AMENDMENTS."

MR. MAAMBONG. Just a moment, Madam President. If Commissioner Davide is going to propose an additional sentence, the committee would suggest that we take up fir st his amendment to the first sentence as originally formulated. We are now read y to comment on that proposed amendment. The proposed amendment would be to delete the words "its ratification and in lie u thereof insert the words "THE PROCLAMATION BY THE PRESIDENT THAT IT HAS BEEN R ATIFIED." And the second amendment would be: After the word "constitutions," add the words" AND THEIR AMENDMENTS," The committee accepts the first proposed amendment. However, we regret that we c annot accept the second proposed amendment after the word "constitutions" becaus e the committee feels that when we talk of all previous Constitutions, necessari ly it includes "AND THEIR AMENDMENTS." MR. DAVIDE. With that explanation, l will not insist on the second. But, Madam P resident, may I request that I be allowed to read the second amendment so the Co mmission would be able to appreciate the change in the first. MR. MAAMBONG. Yes, Madam President, we can now do that. MR. DAVIDE. The second sentence will read: "THE PROCLAMATION SHALL BE MADE WITHI N FIVE DAYS FOLLOWING THE COMPLETION OF THE CANVASS BY THE COMMISSION ON ELECTIO NS OF THE RESULTS OF SUCH PLEBISCITE." MR. MAAMBONG. Madam President, after conferring with our chairman, the committee feels that the second proposed amendment in the form of a new sentence would no t be exactly necessary and the committee feels that it would be too much for us to impose a time frame on the President to make the proclamation. As we would re call, Madam President, in the approved Article on the Executive, there is a prov ision which says that the President shall make certain that all laws shall be fa ithfully complied. When we approve this first sentence, and it says that there w ill be a proclamation by the President that the Constitution has been ratified, the President will naturally comply with the law in accordance with the provisio ns in the Article on the Executive which we have cited. It would be too much to impose on the President a time frame within which she will make that declaration . It would be assumed that the President would immediately do that after the res ults shall have been canvassed by the COMELEC. Therefore, the committee regrets that it cannot accept the second sentence which the Gentleman is proposing, Madam President. MR. DAVIDE. I am prepared to withdraw the same on the assumption that there will be an immediate proclamation of the results by the President. MR. MAAMBONG. With that understanding, Madam President. MR. DAVIDE. I will not insist on the second sentence. FR. BERNAS. Madam President. THE PRESIDENT. Commissioner Bernas is recognized. FR. BERNAS. I would ask the committee to reconsider its acceptance of the amendm ent which makes the effectivity of the new Constitution dependent upon the procl amation of the President. The effectivity of the Constitution should commence on the date of the ratification, not on the date of the proclamation of the Presid ent. What is confusing, I think, is what happened in 1976 when the amendments of 1976 were ratified. In that particular case, the reason the amendments of 1976 were effective upon the proclamation of the President was that the draft present

ed to the people said that the amendment will be effective upon the proclamation made by the President. I have a suspicion that was put in there precisely to gi ve the President some kind of leeway on whether to announce the ratification or not. Therefore, we should not make this dependent on the action of the President since this will be a manifestation of the act of the people to be done under th e supervision of the COMELEC and it should be the COMELEC who should make the an nouncement that, in fact, the votes show that the Constitution was ratified and there should be no need to wait for any proclamation on the part of the Presiden t. MR. MAAMBONG. Would the Gentleman answer a few clarificatory questions? FR. BERNAS. Willingly, Madam President. MR. MAAMBONG. The Gentleman will agree that a date has to be fixed as to exactly when the Constitution is supposed to be ratified. FR. BERNAS. I would say that the ratification of the Constitution is on the date the votes were supposed to have been cast. MR. MAAMBONG. Let us go to the mechanics of the whole thing, Madam President. We present the Constitution to a plebiscite, the people exercise their right to vo te, then the votes are canvassed by the Commission on Elections. If we delete th e suggested amendment which says: "THE PROCLAMATION BY THE PRESIDENT THAT IT HAS BEEN RATIFIED," what would be, in clear terms, the date when the Constitution i s supposed to be ratified or not ratified, as the case may be? FR. BERNAS. The date would be the casting of the ballots. if the President were to say that the plebiscite would be held, for instance, on January 19, 1987, the n the date for the effectivity of the new Constitution would be January 19, 1987 . MR. MAAMBONG. In other words, it would not depend on the actual issuance of the results by the Commission on Elections which will be doing the canvass? That is immaterial Madam President FR. BERNAS. It would not, Madam President, because "ratification" is the act of saying "yes" is done when one casts his ballot. MR. MAAMBONG. So it is the date of the plebiscite itself, Madam President? FR. BERNAS. Yes, Madam President. MR. MAAMBONG. With that statement of Commissioner Bernas, we would like to know from the proponent, Commissioner Davide, if he is insisting on his amendment. MR. DAVIDE. Madam President, I am insisting on the amendment because I cannot su bscribe to the view of Commissioner Bernas, that the date of the ratification is reckoned from the date of the casting of the ballots. That cannot be the date o f reckoning because it is a plebiscite all over the country. We do not split the moment of casting by each of the voters. Actually and technically speaking, it would be all right if it would be upon the announcement of the results of the ca nvass conducted by the COMELEC or the results of the plebiscite held all over th e country. But it is necessary that there be a body which will make the formal a nnouncement of the results of the plebiscite. So it is either the President or t he COMELEC itself upon the completion of the canvass of the results of the plebi scite, and I opted for the President. xxx xxx xxx

MR. NOLLEDO. Madam President. THE PRESIDENT. Commissioner Nolledo is recognized. MR. NOLLEDO. Thank you, Madam President. I beg to disagree with Commissioner Dav ide. I support the stand of Commissioner Bernas because it is really the date of the casting of the "yes" votes that is the date of the ratification of the Cons titution The announcement merely confirms the ratification even if the results a re released two or three days after. I think it is a fundamental principle in po litical law, even in civil law, because an announcement is a mere confirmation T he act of ratification is the act of voting by the people. So that is the date o f the ratification. If there should be any need for presidential proclamation, t hat proclamation will merely confirm the act of ratification. Thank you, Madam President. THE PRESIDENT. Does Commissioner Regalado want to contribute? MR. REGALADO. Madam President, I was precisely going to state the same support f or Commissioner Bernas, because the canvass thereafter is merely the mathematica l confirmation of what was done during the date of the plebiscite and the procla mation of the President is merely the official confirmatory declaration of an ac t which was actually done by the Filipino people in adopting the Constitution wh en they cast their votes on the date of the plebiscite. MR. LERUM. Madam President, may I be recognized. THE PRESIDENT. Commissioner Lerum is recognized. MR. LERUM. I am in favor of the Davide amendment because we have to fix a date f or the effectivity of the Constitution. Suppose the announcement is delayed by, say, 10 days or a month, what happens to the obligations and rights that accrue upon the approval of the Constitution? So I think we must have a definite date. I am, therefore, in favor of the Davide amendment. MR. MAAMBONG. Madam President. THE PRESIDENT. Commissioner Maambong is recognized. MR. MAAMBONG. With the theory of the Commissioner, would there be a necessity fo r the Commission on Elections to declare the results of the canvass? FR. BERNAS. There would be because it is the Commission on Elections which makes the official announcement of the results. MR. MAAMBONG. My next question which is the final one is: After the Commision on Elections has declared the results of the canvass, will there be a necessity fo r the President to make a proclamation of the results of the canvass as submitte d by the Commission on Elections? FR. BERNAS. I would say there would be no necessity, Madam President. MR. MAAMBONG. In other words, the President may or may not make the proclamation whether the Constitution has been ratified or not. FR. BERNAS. I would say that the proclamation made by the President would be imm aterial because under the law, the administration of all election laws is under an independent Commission on Elections. It is the Commission on Elections which announces the results.

MR. MAAMBONG. But nevertheless, the President may make the proclamation. FR. BERNAS. Yes, the President may. And if what he says contradicts what the Com mission on Elections says, it would have no effect. I would only add that when w e say that the date of effectivity is on the day of the casting of the votes, wh at we mean is that the Constitution takes effect on every single minute and ever y single second of that day, because the Civil Code says a day has 24 hours.So t hat even if the votes are cast in the morning, the Constitution is really effect ive from the previous midnight. So that when we adopted the new rule on citizenship, the children of Filipino mo thers or anybody born on the date of effectivity of the 1973 Constitution, which is January 17, 1973, are natural-born citizens, no matter what time of day or n ight. MR. MAAMBONG. Could we, therefore, safely say that whatever date is the publicat ion of the results of the canvass by the COMELEC retroacts to the date of the pl ebiscite? FR. BERNAS. Yes, Madam President. MR. MAAMBONG. I thank the Commissioner. MR. GUINGONA. Madam President. THE PRESIDENT. Commissioner Guingona is recognized. MR. GUINGONA. Mention was made about the need for having a definite date. I thin k it is precisely the proposal of Commissioner Bernas which speaks of the date ( of ratification that would have a definite date, because there would be no defin ite date if we depend upon the canvassing by the COMELEC. Thank you, THE PRESIDENT. Commissioner Concepcion is recognized. MR. CONCEPCION. Thank you, Madam President. Whoever makes the announcement as to the result of the plebiscite, be it the COM ELEC or the President, would announce that a majority of the votes cast on a giv en date was in favor of the Constitution. And that is the date when the Constitu tion takes effect, apart from the fact that the provision on the drafting or ame ndment of the Constitution provides that a constitution becomes effective upon r atification by a majority of the votes cast, although I would not say from the v ery beginning of the date of election because as of that time it is impossible t o determine whether there is a majority. At the end of the day of election or pl ebiscite, the determination is made as of that time-the majority of the votes ca st in a plebiscite held on such and such a date. So that is the time when the ne w Constitution will be considered ratified and, therefore, effective. THE PRESIDENT. May we now hear Vice-President Padilla. MR. PADILLA. Madam President, I am against the proposed amendment of Commissione r Davide and I support the view of Commissioner Bernas and the others because th e ratification of the Constitution is on the date the people, by a majority vote , have cast their votes in favor of the Constitution. Even in civil law, if ther e is a contract, say, between an agent and a third person and that contract is c onfirmed or ratified by the principal, the validity does not begin on the date o f ratification but it retroacts from the date the contract was executed.

Therefore, the date of the Constitution as ratified should retroact to the date that the people have cast their affirmative votes in favor of the Constitution. MR. MAAMBONG. Madam President. THE PRESIDENT. Commissioner Maambong is recognized MR. MAAMBONG. We will now ask once more Commissioner Davide if he is insisting o n his amendment MR. DAVIDE. In view of the explanation and overwhelming tyranny of the opinion t hat it will be effective on the very day of the plebiscite, I am withdrawing my amendment on the assumption that any of the following bodies the Office of the P resident or the COMELEC will make the formal announcement of the results. MR. RAMA. Madam President, we are now ready to vote on the original provision as stated by the committee. MR. MAAMBONG. The committee will read again the formulation indicated in the ori ginal committee report as Section 12. This Constitution shall take effect immediately upon its ratification by a major ity of the votes cast in a plebiscite called for the purpose and shall supersede all previous Constitutions. We ask for a vote, Madam President. V O T I N G THE PRESIDENT. As many as are in favor, please raise their hand. (Several Member s raised their hands.) As many as are against, please raise their hand. (No Member raised his hand.) The results show 35 votes in favor and none against; Section 12 is approved. 2 The Court next holds as a consequence of its declaration at bar that the Constit ution took effect on the date of its ratification in the plebiscite held on Febr uary 2, 1987, that: (1) the Provisional Constitution promulgated on March 25, 19 86 must be deemed to have been superseded by the 1987 Constitution on the same d ate February 2, 1987 and (2) by and after said date, February 2, 1987, absent an y saying clause to the contrary in the Transitory Article of the Constitution, r espondent OIC Governor could no longer exercise the power to replace petitioners in their positions as Barangay Captain and Councilmen. Hence, the attempted rep lacement of petitioners by respondent OIC Governor's designation on February 8, 1987 of their successors could no longer produce any legal force and effect. Whi le the Provisional Constitution provided for a one-year period expiring on March 25, 1987 within which the power of replacement could be exercised, this period was shortened by the ratification and effectivity on February 2, 1987 of the Con stitution. Had the intention of the framers of the Constitution been otherwise, they would have so provided for in the Transitory Article, as indeed they provid ed for multifarious transitory provisions in twenty six sections of Article XVII I, e.g. extension of the six-year term of the incumbent President and Vice-Presi dent to noon of June 30, 1992 for purposes of synchronization of elections, the continued exercise of legislative powers by the incumbent President until the co nvening of the first Congress, etc. A final note of clarification, as to the statement in the dissent that "the appo intments of some seven Court of Appeals Justices, 71 provincial fiscals and 55 c ity fiscals reported extended (by) the President on February 2, 1987 . . . could

be open to serious questions," in view of the provisions of Sections 8 (1) and 9, Article VIII of the Constitution which require prior endorsement thereof by t he Judicial and Bar Council created under the Constitution. It should be stated for the record that the reported date of the appointments, February 2, 1987, is incorrect. The official records of the Court show that the appointments of the s even Court of Appeals Justices were transmitted to this Court on February 1, 198 7 and they were all appointed on or before January 31, 1987. 3 (Similarly, the r ecords of the Department of Justice likewise show that the appointment papers of the last batch of provincial and city fiscals signed by the President in comple tion of the reorganization of the prosecution service were made on January 31, 1 987 and transmitted to the Department on February 1, 1987.) It is also a matter of record that since February 2, 1987, no appointments to the Judiciary have bee n extended by the President, pending the constitution of the Judicial and Bar Co uncil, indicating that the Chief Executive has likewise considered February 2, 1 987 as the effective date of the Constitution, as now expressly declared by the Court. CRUZ, J., concurring. In her quiet and restrained manner, Justice Herrera is able to prove her point w ith more telling effect than the tones of thunder. She has written another persu asive opinion, and I am delighted to concur. I note that it in effect affirms my dissents in the De la Serna, Zamora, Duquing and Bayas cases, where I submitted that the local OICs may no longer be summarily replaced, having acquired securi ty of tenure under the new Constitution. Our difference is that whereas I would make that right commence on February 25, 1987, after the deadline set by the Fre edom Constitution, Justice Herrera would opt for February 2, 1987, when the new Constitution was ratified. I yield to that better view and agree with her ponenc ia completely. SARMIENTO, J., Dissenting. With due respect to the majority I register this dissent. While I agree that the one-year deadline prescribed by Section 2, Article III of the Provisional Constitution with respect to the tenure of government functiona ries, as follows: SECTION 2. All elective and appointive officials and employees under the 1973 Co nstitution shall continue in office until otherwise provided by proclamation or executive order or upon the designation or appointment and qualification of thei r successors, if such appointment is made within a period of one year from Febru ary 25, 1986. was cut short by the ratification of the 1987 Constitution, I entertain serious doubts whether or not that cut-off period began on February 2, 1987, the date of the plebiscite held to approve the new Charter. To my mind the 1987 constitutio n took effect on February 11, 1987, the date the same was proclaimed ratified pu rsuant to Proclamation No. 58 of the President of the Philippines, and not Febru ary 2, 1987, plebiscite day. I rely, first and foremost, on the language of the 1987 Charter itself, thus: Sec. 27. This Constitution shag take effect immediately upon its ratification by a majority of the votes cast in a plebiscite held for the purpose and shall sup ersede all previous Constitutions. It is my reading of this provision that the Constitution takes effect on the dat e its ratification shall have been ascertained, and not at the time the people c ast their votes to approve or reject it. For it cannot be logically said that Co

nstitution was ratified during such a plebiscite, when the will of the people as of that time, had not, and could not have been, vet determined. Other than that, pragmatic considerations compel me to take the view. I have no doubt that between February 2, and February 11, 1987 the government pe rformed acts that would have been valid under the Provisional Constitution but w ould otherwise have been void under the 1987 Charter. I recall, in particular, t he appointments of some seven Court of Appeals Justices, 71 provincial fiscals, and 55 city fiscals the President reportedly extended on February 2, 1987. 1 Und er Sections 8 (1) and 9, Article VIII, of the l987 Constitution, as follows: xxx xxx xxx Sec. 8. (I)A Judicial and Bar Council is hereby created under the supervision of the Supreme Court composed of the Chief Justice as ex officio Chairman, the Sec retary of Justice, and a representative of the Congress as ex oficio Members, a representative of the Integrated Bar, a professor of law, a retired Member of th e Supreme Court, and a representative of the private sector. xxx xxx xxx Sec. 9. The Members of the Supreme Court and judges of lower courts shall be app ointed by the President from a list of at least three nominees prepared by the J udicial and Bar Council for every vacancy, Such appointments need no confirmatio n. xxx xxx xxx such appointments could be open to serious questions. Since 1973, moreover, we have invariably reckoned the effectivity of the Constit ution as well as the amendments thereto from the date it is proclaimed ratified. In Magtoto v. Manguera, 2 we held that the 1973 Constitution became in force and effect on January 17, 1973, the date Proclamation No. 1102, "Announcing the Rat ification by the Filipino People of the Constitution Proposed by the 1971 Consti tutional Convention," was issued, although Mr. Justice, now Chief Justice, Teeha nkee would push its effectivity date further to April 17, 1973, the date our dec ision in Javellana v. Executive Secretary, 3 became final. And this was so notwi thstanding Section 16, Article XVII, of the 1973 Constitution, thus: SEC. 16. This Constitution shall take effect immediately upon its ratification b y a majority of the votes cast in a plebiscite called for the purpose and, excep t as herein provided, shall supersede the Constitution of nineteen-hundred and t hirty- five and all amendments thereto. On October 27, 1976, then President Marcos promulgated Proclamation no. 1595, pr oclaiming the ratification of the 1976 amendments submitted in the plebiscite of October 16- 17, 1976. The Proclamation states, inter alia, that. By virtue-of the powers vested s embodied in this certificate ferendum- plebiscite held Oct. ll force and effect as of this in me by law, I hereby proclaim all the amendment as duly ratified by the Filipino people in the re 16-17, 1976 and are therefore effective and in fu date.

It shall be noted that under Amendment No. 9 of the said 1976 amendments. These amendments shall take effect after the incumbent President shall have proc

laimed that they have been ratified by a majority of the votes cast in the refer endum-plebiscite. On April 1, 1980, the then Chief Executive issued Proclamation no. 1959, "Procla iming the Ratification by the Filipino People of the Amendments of Section 7, Ar ticle X of the Constitution" (lengthening the terms of office of judges and just ices). The Proclamation provides: [t]he above-quoted amendment has been duly ratified by a majority of the votes c ast in the plebiscite held, together with the election for local officials, on J anuary 30, 1980, and that said amendment is hereby declared to take effect immed iately. It shall be noted that under Resolution No. 21, dated December 18, 1979, the pro posed amendment shall take effect on the date the incumbent President/Prime Mini ster shall proclaim its ratification. On April 7, 1981, Proclamation No. 2077 was issued "Proclaiming the Ratification in the Plebiscite of April 7, 1981 of the Amendments to the Constitution Embodi ed in Batas Pambansa Blg. 122 and Declaring Them Therefore Effective and in Full Force and Effect." The Proclamation, in declaring the said amendments duly appr oved, further declared them "[e]ffective and in full force and in effect as of t he date of this Proclamation," It shall be noted, in this connection, that under Resolutions Nos. I and 2 of the Batasang Pambansa, Third Regular Session, Sitti ng as a Constituent Assembly, which parented these amendments, the same: . . .shall become valid as part of the Constitution when approved by a majority of the votes cast in a plebiscite to be held pursuant to Section 2, Article XVI of the Constitution. On the other hand, Batas Pambansa Blg. 122, "An Act to Submit to the Filipino Pe ople, for Ratification or Rejection, the Amendment to the Constitution of the Ph ilippines, Proposed by the Batasang Pambansa, Sitting as a Constituent Assembly, in its Resolutions Numbered Three, Two, and One, and to Appropriate Funds There fore," provides, as follows: SEC. 7. The Commission on Elections, sitting en banc, shad canvass and proclaim the result of the plebiscite using the certificates submitted to it, duly authen ticated and certified by the Board of Canvassers of each province or city. We have, finally, Proclamation No. 2332, "Proclaiming the Ratification in the Pl ebiscite of January 27, 1984, of the Amendments to the Constitution Embodied in Batasang Pambansa Resolutions Nos. 104, 105, 110, 111, 112 and 113." It states t hat the amendments: ....are therefore effective and in full force and effect as of the date of this Proclamation. It carries out Resolution no. 104 itself (as well as Resolutions Nos. 110 and 11 2 and Section 9, Batas Blg. 643), which states, that: The proposed amendments shall take effect on the date the President of the Phili ppines shall proclaim that they have been ratified by a majority of the votes ca st in the plebiscite held for the purpose, but not later than three months from the approval of the amendments. albeit Resolutions Nos. 105, 111, and 113 provide, that: These amendments shall be valid as a part of the Constitution when approved by a majority of the votes cast in an election/plebiscite at which it is submitted t

o the people for their ratification pursuant to Section 2 of Article XVI of the Constitution, as amended. That a Constitution or amendments thereto take effect upon proclamation of their ratification and not at the time of the plebiscite is a view that is not peculi ar to the Marcos era. The Resolution of Both Houses (of Congress) in Joint Session on the March 11, 19 47 plebiscite called pursuant to Republic Act No. 73 and the Resolution of Both Houses (of Congress) adopted on September 18, 1946, was adopted on April 9,1947. The April 9, 1947 Resolution makes no mention of a retroactive application. Accordingly, when the incumbent President (Mrs. Corazon C. Aquino) proclaimed on February 11, 1987, at Malacanang Palace: ... that the Constitution of the Republic of the Philippines adopted by the Cons titutional Commission of 1986, including the Ordinance appended thereto, has bee n duly ratified by the Filipino people and is therefore effective and in full fo rce and effect. 4 the 1987 Constitution, in point of fact, came into force and effect, I hold that it took effect at no other time. I submit that our ruling in Ponsica v. Ignalaga 5 in which we declared, in passi ng, that the new Charter was ratified on February 2, 1987, does not in any way w eaken this dissent. As I stated, the remark was said in passing-we did not resol ve the case on account of a categorical holding that the 1987 Constitution came to life on February 2, 1987. In any event, if we did, I now call for its re-exam ination. I am therefore of the opinion, consistent with the views expressed above, that t he challenged dismissals done on February 8, 1987 were valid, the 1987 Constitut ion not being then as yet in force.

Separate Opinions TEEHANKEE, CJ., concurring: The main issue resolved in the judgment at bar is whether the 1987 Constitution took effect on February 2, 1987, the date that the plebiscite for its ratificati on was held or whether it took effect on February 11, 1987, the date its ratific ation was proclaimed per Proclamation No. 58 of the President of the Philippines , Corazon C. Aquino. The Court's decision, with the lone dissent of Mr. Justice Sarmiento, holds that by virtue of the provision of Article XVIII, Section 27 of the 1987 Constitutio n that it "shall take effect immediately upon its ratification by a majority of the votes cast in a plebiscite held for the purpose," the 1987 Constitution took effect on February 2, 1987, the date of its ratification in the plebiscite held on that same date. The thrust of the dissent is that the Constitution should be deemed to "take eff ect on the date its ratification shall have been ascertained and not at the time the people cast their votes to approve or reject it." This view was actually pr oposed at the Constitutional Commission deliberations, but was withdrawn by its proponent in the face of the "overwhelming" contrary view that the Constitution

"will be effective on the very day of the plebiscite." The record of the proceedings and debates of the Constitutional Commission fully supports the Court's judgment. It shows that the clear, unequivocal and express intent of the Constitutional Conunission in unanimously approving (by thirty-fi ve votes in favor and none against) the aforequoted Section 27 of Transitory Art icle XVIII of the 1987 Constitution was that "the act of ratification is the act of voting by the people. So that is the date of the ratification" and that "the canvass thereafter [of the votes] is merely the mathematical confirmation of wh at was done during the date of the plebiscite and the proclamation of the Presid ent is merely the official confirmatory declaration of an act which was actually done by the Filipino people in adopting the Constitution when they cast their v otes on the date of the plebiscite." The record of the deliberations and the voting is reproduced hereinbelow: 1 MR. MAAMBONG. Madam President, may we now put to a vote the original formulation of the committee as indicated in Section 12, unless there are other commissione rs who would like to present amendments. MR. DAVIDE. Madam President. THE PRESIDENT. Commissioner Davide is recognized. MR. DAVIDE. May I propose the following amendments. On line 2, delete the words "its ratification" and in lieu thereof insert the fo llowing-. "THE PROCLAMATION BY THE PRESIDENT THAT IT HAS BEEN RATIFIED." And on the last line, after "constitutions," add the following: "AND THEIR AMENDMENTS." MR. MAAMBONG. Just a moment, Madam President. If Commissioner Davide is going to propose an additional sentence, the committee would suggest that we take up fir st his amendment to the first sentence as originally formulated. We are now read y to comment on that proposed amendment. The proposed amendment would be to delete the words "its ratification and in lie u thereof insert the words "THE PROCLAMATION BY THE PRESIDENT THAT IT HAS BEEN R ATIFIED." And the second amendment would be: After the word "constitutions," add the words" AND THEIR AMENDMENTS," The committee accepts the first proposed amendment. However, we regret that we c annot accept the second proposed amendment after the word "constitutions" becaus e the committee feels that when we talk of all previous Constitutions, necessari ly it includes "AND THEIR AMENDMENTS." MR. DAVIDE. With that explanation, l will not insist on the second. But, Madam P resident, may I request that I be allowed to read the second amendment so the Co mmission would be able to appreciate the change in the first. MR. MAAMBONG. Yes, Madam President, we can now do that. MR. DAVIDE. The second sentence will read: "THE PROCLAMATION SHALL BE MADE WITHI N FIVE DAYS FOLLOWING THE COMPLETION OF THE CANVASS BY THE COMMISSION ON ELECTIO NS OF THE RESULTS OF SUCH PLEBISCITE." MR. MAAMBONG. Madam President, after conferring with our chairman, the committee feels that the second proposed amendment in the form of a new sentence would no t be exactly necessary and the committee feels that it would be too much for us to impose a time frame on the President to make the proclamation. As we would re

call, Madam President, in the approved Article on the Executive, there is a prov ision which says that the President shall make certain that all laws shall be fa ithfully complied. When we approve this first sentence, and it says that there w ill be a proclamation by the President that the Constitution has been ratified, the President will naturally comply with the law in accordance with the provisio ns in the Article on the Executive which we have cited. It would be too much to impose on the President a time frame within which she will make that declaration . It would be assumed that the President would immediately do that after the res ults shall have been canvassed by the COMELEC. Therefore, the committee regrets that it cannot accept the second sentence which the Gentleman is proposing, Madam President. MR. DAVIDE. I am prepared to withdraw the same on the assumption that there will be an immediate proclamation of the results by the President. MR. MAAMBONG. With that understanding, Madam President. MR. DAVIDE. I will not insist on the second sentence. FR. BERNAS. Madam President. THE PRESIDENT. Commissioner Bernas is recognized. FR. BERNAS. I would ask the committee to reconsider its acceptance of the amendm ent which makes the effectivity of the new Constitution dependent upon the procl amation of the President. The effectivity of the Constitution should commence on the date of the ratification, not on the date of the proclamation of the Presid ent. What is confusing, I think, is what happened in 1976 when the amendments of 1976 were ratified. In that particular case, the reason the amendments of 1976 were effective upon the proclamation of the President was that the draft present ed to the people said that the amendment will be effective upon the proclamation made by the President. I have a suspicion that was put in there precisely to gi ve the President some kind of leeway on whether to announce the ratification or not. Therefore, we should not make this dependent on the action of the President since this will be a manifestation of the act of the people to be done under th e supervision of the COMELEC and it should be the COMELEC who should make the an nouncement that, in fact, the votes show that the Constitution was ratified and there should be no need to wait for any proclamation on the part of the Presiden t. MR. MAAMBONG. Would the Gentleman answer a few clarificatory questions? FR. BERNAS. Willingly, Madam President. MR. MAAMBONG. The Gentleman will agree that a date has to be fixed as to exactly when the Constitution is supposed to be ratified. FR. BERNAS. I would say that the ratification of the Constitution is on the date the votes were supposed to have been cast. MR. MAAMBONG. Let us go to the mechanics of the whole thing, Madam President. We present the Constitution to a plebiscite, the people exercise their right to vo te, then the votes are canvassed by the Commission on Elections. If we delete th e suggested amendment which says: "THE PROCLAMATION BY THE PRESIDENT THAT IT HAS BEEN RATIFIED," what would be, in clear terms, the date when the Constitution i s supposed to be ratified or not ratified, as the case may be? FR. BERNAS. The date would be the casting of the ballots. if the President were to say that the plebiscite would be held, for instance, on January 19, 1987, the

n the date for the effectivity of the new Constitution would be January 19, 1987 . MR. MAAMBONG. In other words, it would not depend on the actual issuance of the results by the Commission on Elections which will be doing the canvass? That is immaterial Madam President FR. BERNAS. It would not, Madam President, because "ratification" is the act of saying "yes" is done when one casts his ballot. MR. MAAMBONG. So it is the date of the plebiscite itself, Madam President? FR. BERNAS. Yes, Madam President. MR. MAAMBONG. With that statement of Commissioner Bernas, we would like to know from the proponent, Commissioner Davide, if he is insisting on his amendment. MR. DAVIDE. Madam President, I am insisting on the amendment because I cannot su bscribe to the view of Commissioner Bernas, that the date of the ratification is reckoned from the date of the casting of the ballots. That cannot be the date o f reckoning because it is a plebiscite all over the country. We do not split the moment of casting by each of the voters. Actually and technically speaking, it would be all right if it would be upon the announcement of the results of the ca nvass conducted by the COMELEC or the results of the plebiscite held all over th e country. But it is necessary that there be a body which will make the formal a nnouncement of the results of the plebiscite. So it is either the President or t he COMELEC itself upon the completion of the canvass of the results of the plebi scite, and I opted for the President. xxx xxx xxx MR. NOLLEDO. Madam President. THE PRESIDENT. Commissioner Nolledo is recognized. MR. NOLLEDO. Thank you, Madam President. I beg to disagree with Commissioner Dav ide. I support the stand of Commissioner Bernas because it is really the date of the casting of the "yes" votes that is the date of the ratification of the Cons titution The announcement merely confirms the ratification even if the results a re released two or three days after. I think it is a fundamental principle in po litical law, even in civil law, because an announcement is a mere confirmation T he act of ratification is the act of voting by the people. So that is the date o f the ratification. If there should be any need for presidential proclamation, t hat proclamation will merely confirm the act of ratification. Thank you, Madam President. THE PRESIDENT. Does Commissioner Regalado want to contribute? MR. REGALADO. Madam President, I was precisely going to state the same support f or Commissioner Bernas, because the canvass thereafter is merely the mathematica l confirmation of what was done during the date of the plebiscite and the procla mation of the President is merely the official confirmatory declaration of an ac t which was actually done by the Filipino people in adopting the Constitution wh en they cast their votes on the date of the plebiscite. MR. LERUM. Madam President, may I be recognized. THE PRESIDENT. Commissioner Lerum is recognized.

MR. LERUM. I am in favor of the Davide amendment because we have to fix a date f or the effectivity of the Constitution. Suppose the announcement is delayed by, say, 10 days or a month, what happens to the obligations and rights that accrue upon the approval of the Constitution? So I think we must have a definite date. I am, therefore, in favor of the Davide amendment. MR. MAAMBONG. Madam President. THE PRESIDENT. Commissioner Maambong is recognized. MR. MAAMBONG. With the theory of the Commissioner, would there be a necessity fo r the Commission on Elections to declare the results of the canvass? FR. BERNAS. There would be because it is the Commission on Elections which makes the official announcement of the results. MR. MAAMBONG. My next question which is the final one is: After the Commision on Elections has declared the results of the canvass, will there be a necessity fo r the President to make a proclamation of the results of the canvass as submitte d by the Commission on Elections? FR. BERNAS. I would say there would be no necessity, Madam President. MR. MAAMBONG. In other words, the President may or may not make the proclamation whether the Constitution has been ratified or not. FR. BERNAS. I would say that the proclamation made by the President would be imm aterial because under the law, the administration of all election laws is under an independent Commission on Elections. It is the Commission on Elections which announces the results. MR. MAAMBONG. But nevertheless, the President may make the proclamation. FR. BERNAS. Yes, the President may. And if what he says contradicts what the Com mission on Elections says, it would have no effect. I would only add that when w e say that the date of effectivity is on the day of the casting of the votes, wh at we mean is that the Constitution takes effect on every single minute and ever y single second of that day, because the Civil Code says a day has 24 hours. So that even if the votes are cast in the morning, the Constitution is really ef fective from the previous midnight. So that when we adopted the new rule on citi zenship, the children of Filipino mothers or anybody born on the date of effecti vity of the 1973 Constitution, which is January 17, 1973, are natural-born citiz ens, no matter what time of day or night. MR. MAAMBONG. Could we, therefore, safely say that whatever date is the publicat ion of the results of the canvass by the COMELEC retroacts to the date of the pl ebiscite? FR. BERNAS. Yes, Madam President. MR. MAAMBONG. I thank the Commissioner. MR. GUINGONA. Madam President. THE PRESIDENT. Commissioner Guingona is recognized. MR. GUINGONA. Mention was made about the need for having a definite date. I thin k it is precisely the proposal of Commissioner Bernas which speaks of the date ( of ratification that would have a definite date, because there would be no defin

ite date if we depend upon the canvassing by the COMELEC. Thank you, THE PRESIDENT. Commissioner Concepcion is recognized. MR. CONCEPCION. Thank you, Madam President. Whoever makes the announcement as to the result of the plebiscite, be it the COM ELEC or the President, would announce that a majority of the votes cast on a giv en date was in favor of the Constitution. And that is the date when the Constitu tion takes effect, apart from the fact that the provision on the drafting or ame ndment of the Constitution provides that a constitution becomes effective upon r atification by a majority of the votes cast, although I would not say from the v ery beginning of the date of election because as of that time it is impossible t o determine whether there is a majority. At the end of the day of election or pl ebiscite, the determination is made as of that time-the majority of the votes ca st in a plebiscite held on such and such a date. So that is the time when the ne w Constitution will be considered ratified and, therefore, effective. THE PRESIDENT. May we now hear Vice-President Padilla. MR. PADILLA. Madam President, I am against the proposed amendment of Commissione r Davide and I support the view of Commissioner Bernas and the others because th e ratification of the Constitution is on the date the people, by a majority vote , have cast their votes in favor of the Constitution. Even in civil law, if ther e is a contract, say, between an agent and a third person and that contract is c onfirmed or ratified by the principal, the validity does not begin on the date o f ratification but it retroacts from the date the contract was executed. Therefore, the date of the Constitution as ratified should retroact to the date that the people have cast their affirmative votes in favor of the Constitution. MR. MAAMBONG. Madam President. THE PRESIDENT. Commissioner Maambong is recognized MR. MAAMBONG. We will now ask once more Commissioner Davide if he is insisting o n his amendment MR. DAVIDE. In view of the explanation and overwhelming tyranny of the opinion t hat it will be effective on the very day of the plebiscite, I am withdrawing my amendment on the assumption that any of the following bodies the Office of the P resident or the COMELEC will make the formal announcement of the results. MR. RAMA. Madam President, we are now ready to vote on the original provision as stated by the committee. MR. MAAMBONG. The committee will read again the formulation indicated in the ori ginal committee report as Section 12. This Constitution shall take effect immediately upon its ratification by a major ity of the votes cast in a plebiscite called for the purpose and shall supersede all previous Constitutions. We ask for a vote, Madam President. V O T I N G THE PRESIDENT. As many as are in favor, please raise their hand. (Several Member

s raised their hands.) As many as are against, please raise their hand. (No Member raised his hand.) The results show 35 votes in favor and none against; Section 12 is approved. 2 The Court next holds as a consequence of its declaration at bar that the Constit ution took effect on the date of its ratification in the plebiscite held on Febr uary 2, 1987, that: (1) the Provisional Constitution promulgated on March 25, 19 86 must be deemed to have been superseded by the 1987 Constitution on the same d ate February 2, 1987 and (2) by and after said date, February 2, 1987, absent an y saying clause to the contrary in the Transitory Article of the Constitution, r espondent OIC Governor could no longer exercise the power to replace petitioners in their positions as Barangay Captain and Councilmen. Hence, the attempted rep lacement of petitioners by respondent OIC Governor's designation on February 8, 1987 of their successors could no longer produce any legal force and effect. Whi le the Provisional Constitution provided for a one-year period expiring on March 25, 1987 within which the power of replacement could be exercised, this period was shortened by the ratification and effectivity on February 2, 1987 of the Con stitution. Had the intention of the framers of the Constitution been otherwise, they would have so provided for in the Transitory Article, as indeed they provid ed for multifarious transitory provisions in twenty six sections of Article XVII I, e.g. extension of the six-year term of the incumbent President and Vice-Presi dent to noon of June 30, 1992 for purposes of synchronization of elections, the continued exercise of legislative powers by the incumbent President until the co nvening of the first Congress, etc. A final note of clarification, as to the statement in the dissent that "the appo intments of some seven Court of Appeals Justices, 71 provincial fiscals and 55 c ity fiscals reported extended (by) the President on February 2, 1987 . . . could be open to serious questions," in view of the provisions of Sections 8 (1) and 9, Article VIII of the Constitution which require prior endorsement thereof by t he Judicial and Bar Council created under the Constitution. It should be stated for the record that the reported date of the appointments, February 2, 1987, is incorrect. The official records of the Court show that the appointments of the s even Court of Appeals Justices were transmitted to this Court on February 1, 198 7 and they were all appointed on or before January 31, 1987. 3 (Similarly, the r ecords of the Department of Justice likewise show that the appointment papers of the last batch of provincial and city fiscals signed by the President in comple tion of the reorganization of the prosecution service were made on January 31, 1 987 and transmitted to the Department on February 1, 1987.) It is also a matter of record that since February 2, 1987, no appointments to the Judiciary have bee n extended by the President, pending the constitution of the Judicial and Bar Co uncil, indicating that the Chief Executive has likewise considered February 2, 1 987 as the effective date of the Constitution, as now expressly declared by the Court. CRUZ, J., concurring. In her quiet and restrained manner, Justice Herrera is able to prove her point w ith more telling effect than the tones of thunder. She has written another persu asive opinion, and I am delighted to concur. I note that it in effect affirms my dissents in the De la Serna, Zamora, Duquing and Bayas cases, where I submitted that the local OICs may no longer be summarily replaced, having acquired securi ty of tenure under the new Constitution. Our difference is that whereas I would make that right commence on February 25, 1987, after the deadline set by the Fre edom Constitution, Justice Herrera would opt for February 2, 1987, when the new Constitution was ratified. I yield to that better view and agree with her ponenc ia completely.

SARMIENTO, J., Dissenting. With due respect to the majority I register this dissent. While I agree that the one-year deadline prescribed by Section 2, Article III of the Provisional Constitution with respect to the tenure of government functiona ries, as follows: SECTION 2. All elective and appointive officials and employees under the 1973 Co nstitution shall continue in office until otherwise provided by proclamation or executive order or upon the designation or appointment and qualification of thei r successors, if such appointment is made within a period of one year from Febru ary 25, 1986. was cut short by the ratification of the 1987 Constitution, I entertain serious doubts whether or not that cut-off period began on February 2, 1987, the date of the plebiscite held to approve the new Charter. To my mind the 1987 constitutio n took effect on February 11, 1987, the date the same was proclaimed ratified pu rsuant to Proclamation No. 58 of the President of the Philippines, and not Febru ary 2, 1987, plebiscite day. I rely, first and foremost, on the language of the 1987 Charter itself, thus: Sec. 27. This Constitution shag take effect immediately upon its ratification by a majority of the votes cast in a plebiscite held for the purpose and shall sup ersede all previous Constitutions. It is my reading of this provision that the Constitution takes effect on the dat e its ratification shall have been ascertained, and not at the time the people c ast their votes to approve or reject it. For it cannot be logically said that Co nstitution was ratified during such a plebiscite, when the will of the people as of that time, had not, and could not have been, vet determined. Other than that, pragmatic considerations compel me to take the view. I have no doubt that between February 2, and February 11, 1987 the government pe rformed acts that would have been valid under the Provisional Constitution but w ould otherwise have been void under the 1987 Charter. I recall, in particular, t he appointments of some seven Court of Appeals Justices, 71 provincial fiscals, and 55 city fiscals the President reportedly extended on February 2, 1987. 1 Und er Sections 8 (1) and 9, Article VIII, of the l987 Constitution, as follows: xxx xxx xxx Sec. 8. (I)A Judicial and Bar Council is hereby created under the supervision of the Supreme Court composed of the Chief Justice as ex officio Chairman, the Sec retary of Justice, and a representative of the Congress as ex oficio Members, a representative of the Integrated Bar, a professor of law, a retired Member of th e Supreme Court, and a representative of the private sector. xxx xxx xxx 2Sec. 9. The Members of the Supreme Court and judges of lower courts shall be ap pointed by the President from a list of at least three nominees prepared by the Judicial and Bar Council for every vacancy, Such appointments need no confirmati on. xxx xxx xxx such appointments could be open to serious questions.

Since 1973, moreover, we have invariably reckoned the effectivity of the Constit ution as well as the amendments thereto from the date it is proclaimed ratified. In Magtoto v. Manguera, 2 we held that the 1973 Constitution became in force and effect on January 17, 1973, the date Proclamation No. 1102, "Announcing the Rat ification by the Filipino People of the Constitution Proposed by the 1971 Consti tutional Convention," was issued, although Mr. Justice, now Chief Justice, Teeha nkee would push its effectivity date further to April 17, 1973, the date our dec ision in Javellana v. Executive Secretary, 3 became final. And this was so notwi thstanding Section 16, Article XVII, of the 1973 Constitution, thus: SEC. 16. This Constitution shall take effect immediately upon its ratification b y a majority of the votes cast in a plebiscite called for the purpose and, excep t as herein provided, shall supersede the Constitution of nineteen-hundred and t hirty- five and all amendments thereto. On October 27, 1976, then President Marcos promulgated Proclamation no. 1595, pr oclaiming the ratification of the 1976 amendments submitted in the plebiscite of October 16- 17, 1976. The Proclamation states, inter alia, that. By virtue-of the powers vested in me by law, I hereby proclaim all the amendment s embodied in this certificate as duly ratified by the Filipino people in the re ferendum plebiscite held Oct. 16-17, 1976 and are therefore effective and in ful l force and effect as of this date. It shall be noted that under Amendment No. 9 of the said 1976 amendments. These amendments shall take effect after the incumbent President shall have proc laimed that they have been ratified by a majority of the votes cast in the refer endum-plebiscite. On April 1, 1980, the then Chief Executive issued Proclamation no. 1959, "Procla iming the Ratification by the Filipino People of the Amendments of Section 7, Ar ticle X of the Constitution" (lengthening the terms of office of judges and just ices). The Proclamation provides: [t]he above-quoted amendment has been duly ratified by a majority of the votes c ast in the plebiscite held, together with the election for local officials, on J anuary 30, 1980, and that said amendment is hereby declared to take effect immed iately. It shall be noted that under Resolution No. 21, dated December 18, 1979, the pro posed amendment shall take effect on the date the incumbent President/Prime Mini ster shall proclaim its ratification. On April 7, 1981, Proclamation No. 2077 was issued "Proclaiming the Ratification in the Plebiscite of April 7, 1981 of the Amendments to the Constitution Embodi ed in Batas Pambansa Blg. 122 and Declaring Them Therefore Effective and in Full Force and Effect." The Proclamation, in declaring the said amendments duly appr oved, further declared them "[e]ffective and in full force and in effect as of t he date of this Proclamation," It shall be noted, in this connection, that under Resolutions Nos. I and 2 of the Batasang Pambansa, Third Regular Session, Sitti ng as a Constituent Assembly, which parented these amendments, the same: ... shall become valid as part of the Constitution when approved by a majority o f the votes cast in a plebiscite to be held pursuant to Section 2, Article XVI o f the Constitution.

On the other hand, Batas Pambansa Blg. 122, "An Act to Submit to the Filipino Pe ople, for Ratification or Rejection, the Amendment to the Constitution of the Ph ilippines, Proposed by the Batasang Pambansa, Sitting as a Constituent Assembly, in its Resolutions Numbered Three, Two, and One, and to Appropriate Funds There fore," provides, as follows: SEC. 7. The Commission on Elections, sitting en banc, shad canvass and proclaim the result of the plebiscite using the certificates submitted to it, duly authen ticated and certified by the Board of Canvassers of each province or city. We have, finally, Proclamation No. 2332, "Proclaiming the Ratification in the Pl ebiscite of January 27, 1984, of the Amendments to the Constitution Embodied in Batasang Pambansa Resolutions Nos. 104, 105, 110, 111, 112 and 113." It states t hat the amendments: ....are therefore effective and in full force and effect as of the date of this Proclamation. It carries out Resolution no. 104 itself (as well as Resolutions Nos. 110 and 11 2 and Section 9, Batas Blg. 643), which states, that: The proposed amendments shall take effect on the date the President of the Phili ppines shall proclaim that they have been ratified by a majority of the votes ca st in the plebiscite held for the purpose, but not later than three months from the approval of the amendments. albeit Resolutions Nos. 105, 111, and 113 provide, that: These amendments majority of the o the people for Constitution, as shall be valid as a part of the Constitution when approved by a votes cast in an election/plebiscite at which it is submitted t their ratification pursuant to Section 2 of Article XVI of the amended.

That a Constitution or amendments thereto take effect upon proclamation of their ratification and not at the time of the plebiscite is a view that is not peculi ar to the Marcos era. The Resolution of Both Houses (of Congress) in Joint Session on the March 11, 19 47 plebiscite called pursuant to Republic Act No. 73 and the Resolution of Both Houses (of Congress) adopted on September 18, 1946, was adopted on April 9,1947. The April 9, 1947 Resolution makes no mention of a retroactive application. Acc ordingly, when the incumbent President (Mrs. Corazon C. Aquino) proclaimed on Fe bruary 11, 1987, at Malacanang Palace: ... that the Constitution of the Republic of the Philippines adopted by the Cons titutional Commission of 1986, including the Ordinance appended thereto, has bee n duly ratified by the Filipino people and is therefore effective and in full fo rce and effect. 4 the 1987 Constitution, in point of fact, came into force and effect, I hold that it took effect at no other time. I submit that our ruling in Ponsica v. Ignalaga 5 in which we declared, in passi ng, that the new Charter was ratified on February 2, 1987, does not in any way w eaken this dissent. As I stated, the remark was said in passing-we did not resol ve the case on account of a categorical holding that the 1987 Constitution came to life on February 2, 1987. In any event, if we did, I now call for its re-exam ination. I am therefore of the opinion, consistent with the views expressed above, that t

he challenged dismissals done on February 8, 1987 were valid, the 1987 Constitut ion not being then as yet in force. Footnotes 1 Topacio, Jr. vs. Pimentel G.R. No. 73770, April 10, 1986. 2 Section 2, BP Blg. 222. 3 Article 11, Section 25 and Article X, Sections 1, 2, 14, among others. 4 Article X, Section 4. 5 Section 3, BP Blg. 222. Teehankee, C.J., concurring: 1 Volume Five, Record of the Constitutional Commission Proceedings and Debates, pages 620-623; emphasis supplied. 2 The entire draft Constitution was approved on October 12, 1986 forty forty-fiv e votes in favor and two against. 3 The seven yo, Minerva ena Jr. and January 9, Court of Appeals Justices referred to are Justices Alfredo L. Benipa G. Reyes, Magdangal B. Elma, Cecilio PE, Jesus Elbinias, Nicolas Lap Justo P. Torres, Jr., and their appointments bear various dates from 1987 to January 31, 1987.

Sarmiento, J., dissenting: 1 Manila Bulletin, Feb. 3, 1987, p. 1, cols. 6-7 Philippine Daily Inquirer, Feb. 3,1987, p. 1, cot 1; Malaya, Feb. 3, 1987, p. 1, col. 1. 2 Nos. 3720102 March 3, 1975, 63 SCRA 4 (1975). 3 Nos. L-36142, March 31, 1973, 50 SCRA 30 (1973). 4 Proclamation No. 58 (1987). 5 G.R. No. 72301. 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 o f 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 o f the Philippines established during the Japanese military occupation of these I slands.

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 judi cial proceedings and judgements of the court of the Philippines under the Philip pine 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 en abling law granting such authority. And the same respondent, in his answer and m emorandum filed in this Court, contends that the government established in the P hilippines during the Japanese occupation were no de facto governments. On January 2, 1942, the Imperial Japanese Forces occupied the City of Manila, an d on the next day their Commander in Chief proclaimed "the Military Administrati on 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 l aws now in force in the Commonwealth, as well as executive and judicial institut ions, shall continue to be effective for the time being as in the past," and "al l public officials shall remain in their present posts and carry on faithfully t heir duties as before." A civil government or central administration organization under the name of "Phi lippine 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 J orge B. Vargas, who was appointed Chairman thereof, was instructed to proceed to the immediate coordination of the existing central administrative organs and ju dicial 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 Februar y 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 Co mmonwealth were continued with the same jurisdiction, in conformity with the ins tructions given to the said Chairman of the Executive Commission by the Commande r 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. S ection 1 of said Order provided that "activities of the administration organs an d 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 jurisdict ion of the different courts that functioned during the Philippine Executive Comm ission, and in the laws they administered and enforced. On October 23, 1944, a few days after the historic landing in Leyte, General Dou glas MacArthur issued a proclamation to the People of the Philippines which decl ared: 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 gov ernment having legal and valid jurisdiction over the people in areas of the Phil ippines free of enemy occupation and control; 2. That the laws now existing on the statute books of the Commonwealth of the Ph ilippines 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 Phili ppines than that of the said Commonwealth are null and void and without legal ef fect 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, s olemnly declared "the full powers and responsibilities under the Constitution re stored 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 qu estions to be resolved in the present case may be reduced to the following:(1) W hether the judicial acts and proceedings of the court existing in the Philippine s 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 procla mation issued on October 23, 1944, by General Douglas MacArthur, Commander in Ch ief 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 Philippi nes free of enemy occupation and control," has invalidated all judgements and ju dicial acts and proceedings of the said courts; and (3) If the said judicial act s and proceedings have not been invalidated by said proclamation, whether the pr esent courts of the Commonwealth, which were the same court existing prior to, a nd continued during, the Japanese military occupation of the Philippines, may co ntinue those proceedings pending in said courts at the time the Philippines were reoccupied and liberated by the United States and Filipino forces, and the Comm onwealth of the Philippines were reestablished in the Islands. We shall now proceed to consider the first question, that is, whether or not und er the rules of international law the judicial acts and proceedings of the court s established in the Philippines under the Philippine Executive Commission and t he Republic of the Philippines were good and valid and remained good and valid e ven 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 pro ceedings of the legislative, executive, and judicial departments of a de facto g overnment are good and valid. The question to be determined is whether or not th e governments established in these Islands under the names of the Philippine Exe cutive Commission and Republic of the Philippines during the Japanese military o ccupation or regime were de facto governments. If they were, the judicial acts a nd proceedings of those governments remain good and valid even after the liberat ion or reoccupation of the Philippines by the American and Filipino forces. There are several kinds of de facto governments. The first, or government de fac to 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 gove rnments and maintains itself against the will of the latter, such as the governm ent of England under the Commonwealth, first by Parliament and later by Cromwell as Protector. The second is that which is established and maintained by militar y forces who invade and occupy a territory of the enemy in the course of war, an d 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 Tampi co, Mexico, occupied during the war with Mexico, by the troops of the United Sta tes. And the third is that established as an independent government by the inhab itants 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 prese nt case with the first kind, but only with the second and third kinds of de fact

o governments. Speaking of government "de facto" of the second kind, the Supreme Court of the U nited 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 para mount force. Its distinguishing characteristics are (1), that its existence is m aintained by active military power with the territories, and against the rightfu l authority of an established and lawful government; and (2), that while it exis ts 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 w rongdoers, for those acts, though not warranted by the laws of the rightful gove rnment. Actual governments of this sort are established over districts differing greatly in extent and conditions. They are usually administered directly by mil itary authority, but they may be administered, also, civil authority, supported more or less directly by military force. . . . One example of this sort of gover nment 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 th e United States . . . Fleming vs. Page (9 Howard, 614). These were cases of temp orary possessions of territory by lawfull and regular governments at war with th e 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 prov isions 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, unles s 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 du ring his military occupation, he possesses all the powers of a de facto governme nt, and he can suspended the old laws and promulgate new ones and make such chan ges in the old as he may see fit, but he is enjoined to respect, unless absolute ly prevented by the circumstances prevailing in the occupied territory, the muni cipal laws in force in the country, that is, those laws which enforce public ord er and regulate social and commercial life of the country. On the other hand, la ws 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 t he right to travel freely in the territory occupied, are considered as suspended or in abeyance during the military occupation. Although the local and civil adm inistration of justice is suspended as a matter of course as soon as a country i s militarily occupied, it is not usual for the invader to take the whole adminis tration into his own hands. In practice, the local ordinary tribunals are author ized to continue administering justice; and judges and other judicial officers a re 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 mili tary or civil authorities appointed, by the Commander in Chief of the occupant. These principles and practice have the sanction of all publicists who have consi dered the subject, and have been asserted by the Supreme Court and applied by th e President of the United States. The doctrine upon this subject is thus summed up by Halleck, in his work on Inte rnational Law (Vol. 2, p. 444): "The right of one belligerent to occupy and gove rn the territory of the enemy while in its military possession, is one of the in cidents 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 aut hority to establish a government for the territory of the enemy in his possessio

n, 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, an d 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 la ws 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 pl easure either change the existing laws or make new ones." And applying the principles for the exercise of military authority in an occupie d 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, relatin g to the occupation of the Philippines by United States forces, said in part: "T hough the powers of the military occupant are absolute and supreme, and immediat ely 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 susp ended or superseded by the occupying belligerent; and in practice they are not u sually abrogated, but are allowed to remain in force and to be administered by t he ordinary tribunals, substantially as they were before the occupation. This en lightened practice is, so far as possible, to be adhered to on the present occas ion. The judges and the other officials connected with the administration of jus tice may, if they accept the authority of the United States, continue to adminis ter 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 Presiden t, X, p. 209.) As to "de facto" government of the third kind, the Supreme Court of the United S tates, in the same case of Thorington vs. Smith, supra, recognized the governmen t set up by the Confederate States as a de facto government. In that case, it wa s held that "the central government established for the insurgent States differe d 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, o n 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, sa id: "The same general form of government, the same general laws for the administ ration of justice and protection of private rights, which had existed in the Sta tes prior to the rebellion, remained during its continuance and afterwards. As f ar as the Acts of the States do not impair or tend to impair the supremacy of th e national authority, or the just rights of citizens under the Constitution, the y are, in general, to be treated as valid and binding. As we said in Horn vs. Lo ckhart (17 Wall., 570; 21 Law. ed., 657): "The existence of a state of insurrect ion and war did not loosen the bonds of society, or do away with civil governmen t or the regular administration of the laws. Order was to be preserved, police r egulations 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, ser iously questions the validity of judicial or legislative Acts in the insurrectio nary States touching these and kindered subjects, where they were not hostile in their purpose or mode of enforcement to the authority of the National Governmen t, and did not impair the rights of citizens under the Constitution'. The same d octrine 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 o

f 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 t he Union established by the national Constitution; this, because the existence o f 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 regul ar administration of the laws, and because transactions in the ordinary course o f civil society as organized within the enemy's territory although they may have indirectly or remotely promoted the ends of the de facto or unlawful government organized to effect a dissolution of the Union, were without blame 'except when proved to have been entered into with actual intent to further invasion or insu rrection:'" and "That judicial and legislative acts in the respective states com posing the so-called Confederate States should be respected by the courts if the y were not hostile in their purpose or mode of enforcement to the authority of t he National Government, and did not impair the rights of citizens under the Cons titution." 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 Command er of the Japanese forces, was a civil government established by the military fo rces of occupation and therefore a de facto government of the second kind. It wa s 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 e stablished 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, an d is subject to all restrictions which that code imposes. It is of little conseq uence whether such government be called a military or civil government. Its char acter 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 lega lity 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 Fi lipinos and not by Japanese nationals, is of no consequence. In 1806, when Napol eon occupied the greater part of Prussia, he retained the existing administratio n 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, ap parently 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 adm inistration and of every rank. (Calvo, pars. 2186-93; Hall, International Law, 7 th 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 peopl e, was, in truth and reality, a government established by the belligerent occupa nt or the Japanese forces of occupation. It was of the same character as the Phi lippine Executive Commission, and the ultimate source of its authority was the s the Japanese military authority and government. As General MacArthur stated ame in his proclamation of October 23, 1944, a portion of which has been already quo ted, "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 ex pression of the people's will nor the sanction of the Government of the United S tates." Japan had no legal power to grant independence to the Philippines or tra nsfer the sovereignty of the United States to, or recognize the latent sovereign ty 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 we ll-established doctrine in International Law, recognized in Article 45 of the Ha uge Conventions of 1907 (which prohibits compulsion of the population of the occ

upied territory to swear allegiance to the hostile power), the belligerent occup ation, being essentially provisional, does not serve to transfer sovereignty ove r 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 Hogsh ead of Sugar vs. Boyle, 9 Cranch, 191; United States vs. Rice, 4 Wheat., 246; Fl eming vs. Page, 9 Howard, 603; Downes vs. Bidwell, 182 U. S., 345.) The formatio n of the Republic of the Philippines was a scheme contrived by Japan to delude t he Filipino people into believing in the apparent magnanimity of the Japanese ge sture 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 fo rces from the Islands, and the occupation thereof by the Japanese forces of inva sion, had organized an independent government under the name with the support an d backing of Japan, such government would have been considered as one establishe d 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 t hat organized by the confederate states during the war of secession and recogniz ed as such by the by the Supreme Court of the United States in numerous cases, n otably those of Thorington vs. Smith, Williams vs. Bruffy, and Badly vs. Hunter, above quoted; and similar to the short-lived government established by the Fili pino insurgents in the Island of Cebu during the Spanish-American war, recognize d 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 la st-named case, the Spanish forces evacuated the Island of Cebu on December 25, 1 898, having first appointed a provisional government, and shortly afterwards, th e Filipinos, formerly in insurrection against Spain, took possession of the Isla nds and established a republic, governing the Islands until possession thereof w as surrendered to the United States on February 22, 1898. And the said Supreme C ourt held in that case that "such government was of the class of de facto govern ments 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 den ominated a government of paramount force . . '." That is to say, that the govern ment of a country in possession of belligerent forces in insurrection or rebelli on against the parent state, rests upon the same principles as that of a territo ry occupied by the hostile army of an enemy at regular war with the legitimate p ower. The governments by the Philippine Executive Commission and the Republic of the P hilippines during the Japanese military occupation being de facto governments, i t necessarily follows that the judicial acts and proceedings of the courts of ju stice of those governments, which are not of a political complexion, were good a nd valid, and, by virtue of the well-known principle of postliminy (postliminium ) in international law, remained good and valid after the liberation or reoccupa tion of the Philippines by the American and Filipino forces under the leadership of General Douglas MacArthur. According to that well-known principle in interna tional 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, exc ept 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, administrat ive 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 u nder the sanction of municipal law, remain good. Were it otherwise, the whole so cial life of a community would be paralyzed by an invasion; and as between the s tate and the individuals the evil would be scarcely less, it would be hard for e xample that payment of taxes made under duress should be ignored, and it would b

e contrary to the general interest that the sentences passed upon criminals shou ld be annulled by the disappearance of the intrusive government ." (Hall, Intern ational 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 h is own sovereignty as the Japanese intended to do apparently in granting indepen dence to the Philippines and establishing the so-called Republic of the Philippi nes. (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 i ssued by General Douglas MacArthur on October 23, 1944, which declares null and void all laws, regulations and processes of the governments established in the P hilippines 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 o f any other government" as used in the above-quoted proclamation of General Doug las MacArthur of October 23, 1944 that is, whether it was the intention of the C ommander in Chief of the American Forces to annul and void thereby all judgments and judicial proceedings of the courts established in the Philippines during th e Japanese military occupation. The phrase "processes of any other government" is broad and may refer not only t o the judicial processes, but also to administrative or legislative, as well as constitutional, processes of the Republic of the Philippines or other government al agencies established in the Islands during the Japanese occupation. Taking in to consideration the fact that, as above indicated, according to the well-known principles of international law all judgements and judicial proceedings, which a re not of a political complexion, of the de facto governments during the Japanes e military occupation were good and valid before and remained so after the occup ied 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 D ouglas MacArthur, in using the phrase "processes of any other government" in sai d proclamation, to refer to judicial processes, in violation of said principles of international law. The only reasonable construction of the said phrase is tha t it refers to governmental processes other than judicial processes of court pro ceedings, for according to a well-known rule of statutory construction, set fort h 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 a n agent of his government, may not unlawfully suspend existing laws and promulga te new ones in the occupied territory, if and when the exigencies of the militar y occupation demand such action. But even assuming that, under the law of nation s, the legislative power of a commander in chief of military forces who liberate s or reoccupies his own territory which has been occupied by an enemy, during th e military and before the restoration of the civil regime, is as broad as that o f the commander in chief of the military forces of invasion and occupation (alth ough the exigencies of military reoccupation are evidently less than those of oc cupation), it is to be presumed that General Douglas MacArthur, who was acting a s 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 in tend 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 t he 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 MacAr thur, 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 t

he Commonwealth of the Philippines," should not only reverse the international p olicy 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 tha t "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 th e Nation." Moreover, from a contrary construction great inconvenience and public hardship w ould result, and great public interests would be endangered and sacrificed, for disputes or suits already adjudged would have to be again settled accrued or ves ted rights nullified, sentences passed on criminals set aside, and criminals mig ht easily become immune for evidence against them may have already disappeared o r be no longer available, especially now that almost all court records in the Ph ilippines have been destroyed by fire as a consequence of the war. And it is ano ther well-established rule of statutory construction that where great inconvenie nce 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 b y 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 o r annul all the judicial acts or proceedings of the tribunals which the belliger ent 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 soci al life of the country or occupied territory, for it would have to be expected t hat litigants would not willingly submit their litigation to courts whose judgem ents or decisions may afterwards be annulled, and criminals would not be deterre d 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 Exec utive Order No. 37, which has the force of law, issued by the President of the P hilippines on March 10, 1945, by virtue of the emergency legislative power veste d 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 ca se which have heretofore been duly appealed to the Court of Appeals shall be tra nsmitted to the Supreme Court final decision." This provision impliedly recogniz es that the judgments and proceedings of the courts during the Japanese military occupation have not been invalidated by the proclamation of General MacArthur o f October 23, because the said Order does not say or refer to cases which have b een duly appealed to said court prior to the Japanese occupation, but to cases w hich had therefore, that is, up to March 10, 1945, been duly appealed to the Cou rt of Appeals; and it is to be presumed that almost all, if not all, appealed ca ses 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 restor ation of the Commonwealth Government in 1945; while almost all, if not all, appe aled cases pending on March 10, 1945, in the Court of Appeals were from judgment s 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 internatio nal law should not be abrogated by the subsequent conqueror, it must be remember ed 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 matter s 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 q uestion that is up to the restored government to decide; that there is no rule o f 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 righ t of exercise its discretion on the matter, imposing upon it in its stead the ob ligation of recognizing and enforcing the acts of the overthrown government." There is doubt that the subsequent conqueror has the right to abrogate most of t he 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 governm ent" and not "judicial processes" prisely, it is not necessary to determine whet her or not General Douglas MacArthur had power to annul and set aside all judgme nts and proceedings of the courts during the Japanese occupation. The question t o 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 h ad, expressly or by necessary implication, declared null and void the judicial p rocesses 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 d eclare 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 C ommander 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 th e law of nations. (Preamble of the Hague Conventions; Westlake, International La w, 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, impo ses upon the occupant the obligation to establish courts; and Article 23 (h), se ction II, of the same Conventions, which prohibits the belligerent occupant "to declare . . . suspended . . . in a Court of Law the rights and action of the nat ionals of the hostile party," forbids him to make any declaration preventing the inhabitants from using their courts to assert or enforce their civil rights. (D ecision 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 nation als 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 rendere d 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 t o declare them null and void would be tantamount to suspending in said courts th e right and action of the nationals of the territory during the military occupat ion thereof by the enemy. It goes without saying that a law that enjoins a perso n to do something will not at the same time empower another to undo the same. Al though the question whether the President or commanding officer of the United St ates Army has violated restraints imposed by the constitution and laws of his co untry is obviously of a domestic nature, yet, in construing and applying limitat ions 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 "ar ise from general rules of international law and from fundamental principles know n 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 th e end of the Civil War, wholly annulling a decree rendered by a court of chancer y in that state in a case within its jurisdiction, was declared void, and not wa rranted by the acts approved respectively March 2, 1867 (14 Stat., 428), and Jul y 19 of the same year (15 id., 14), which defined the powers and duties of milit

ary officers in command of the several states then lately in rebellion. In the c ourse 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 ques tion. . . . The clearest language would be necessary to satisfy us that Congress intended that the power given by these acts should be so exercised. . . . It wa s 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 questio n we are not called upon to consider. It is an unbending rule of law that the ex ercise of military power, where the rights of the citizen are concerned, shall n ever 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 standpoi nt 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 vo id 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 co ntinued by the Philippine Executive Commission and the Republic of the Philippin es during the Japanese military occupation, and that said judicial acts and proc eedings 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 Japane se military occupation by the Philippine Executive Commission and by the so-call ed Republic of the Philippines, have jurisdiction to continue now the proceeding s in actions pending in said courts at the time the Philippine Islands were reoc cupied or liberated by the American and Filipino forces, and the Commonwealth Go vernment was restored. Although in theory the authority the authority of the local civil and judicial a dministration 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 a dminister the laws of the country which he is enjoined, unless absolutely preven ted, to respect. As stated in the above-quoted Executive Order of President McKi nley 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 adm inistered by the ordinary tribunals substantially as they were before the occupa tion. 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, execut ive 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 t o 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 u nnecessarily deranged, inasmuch as belligerent occupation is essentially provisi onal, 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 t ime being as in the past," and "all public officials shall remain in their prese nt post and carry on faithfully their duties as before." When the Philippine Exe cutive Commission was organized by Order No. 1 of the Japanese Commander in Chie f, on January 23, 1942, the Chairman of the Executive Commission, by Executive O rders Nos. 1 and 4 of January 30 and February 5, respectively, continued the Sup reme 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 Febru ary 20, 1942. And on October 14, 1943 when the so-called Republic of the Philipp ines 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 J apanese military occupation had been continued during the Japanese military admi nistration, the Philippine Executive Commission, and the so-called Republic of t he Philippines, it stands to reason that the same courts, which had become reest ablished and conceived of as having in continued existence upon the reoccupation and liberation of the Philippines by virtue of the principle of postliminy (Hal l, International Law, 7th ed., p. 516), may continue the proceedings in cases th en pending in said courts, without necessity of enacting a law conferring jurisd iction upon them to continue said proceedings. As Taylor graphically points out in speaking of said principles "a state or other governmental entity, upon the r emoval of a foreign military force, resumes its old place with its right and dut ies substantially unimpaired. . . . Such political resurrection is the result of a law analogous to that which enables elastic bodies to regain their original s and subject to the same exception in ca hape upon removal of the external force, se 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 hi s conclusion that the Court of First Instance of Manila presided over by him "ha s no authority to take cognizance of, and continue said proceedings (of this cas e) to final judgment until and unless the Government of the Commonwealth of the Philippines . . . shall have provided for the transfer of the jurisdiction of th e 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 t he Commonwealth prior to Japanese occupation, but they had become the laws and t he 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 P hilippine 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 t hat is militarily occupying the territory. Because, as already shown, belligeren t or military occupation is essentially provisional and does not serve to transf er the sovereignty over the occupied territory to the occupant. What the court s aid 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 cont inue or set them aside. The laws and institution or courts so continued remain t he laws and institutions or courts of the occupied territory. The laws and the c ourts of the Philippines, therefore, did not become, by being continued as requi red 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 o f 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 th e invader in the legitimate sovereignty. This duty is neither to innovate in the political life of the occupied districts, nor needlessly to break the continuit

y of their legal life. Hence, so far as the courts of justice are allowed to con tinue administering the territorial laws, they must be allowed to give their sen tences in the name of the legitimate sovereign " (Westlake, Int. Law, Part II, s econd 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 a ttempted to violate that rule by ordering, after the fall of the Emperor Napoleo n, the courts of Nancy to administer justice in the name of the "High German Pow ers occupying Alsace and Lorraine," upon the ground that the exercise of their p owers in the name of French people and government was at least an implied recogn ition of the Republic, the courts refused to obey and suspended their sitting. G ermany originally ordered the use of the name of "High German Powers occupying A lsace and Lorraine," but later offered to allow use of the name of the Emperor o r 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, "La w once established continues until changed by the some competent legislative pow er. It is not change merely by change of sovereignty." (Joseph H. Beale, Cases o n 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 (Cam bridge, 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 primiti ve people it must last until the final disappearance of human society. Once crea ted, it persists until a change take place, and when changed it continues in suc h changed condition until the next change, and so forever. Conquest or colonizat ion 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 ch ange." 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 s uch laws, not being a political nature, are not abrogated by a change of soverei gnty, and continue in force "ex proprio vigore" unless and until repealed by leg islative 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 tho se laws. Therefore, even assuming that Japan had legally acquired sovereignty ov er 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 becom e the courts of Japan, as the said courts of the laws creating and conferring ju risdiction upon them have continued in force until now, it necessarily follows t hat the same courts may continue exercising the same jurisdiction over cases pen ding therein before the restoration of the Commonwealth Government, unless and u ntil they are abolished or the laws creating and conferring jurisdiction upon th em 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 t o another court, are not required by the mere change of government or sovereignt y. They are necessary only in case the former courts are abolished or their juri sdiction so change that they can no longer continue taking cognizance of the cas es and proceedings commenced therein, in order that the new courts or the courts having jurisdiction over said cases may continue the proceedings. When the Span ish sovereignty in the Philippine Islands ceased and the Islands came into the p ossession of the United States, the "Audiencia" or Supreme Court was continued a nd did not cease to exist, and proceeded to take cognizance of the actions pendi ng therein upon the cessation of the Spanish sovereignty until the said "Audienc ia" 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 p ending 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 enacte d during the Japanese occupation, but a mere proclamation or order that the cour ts in the Island were continued. On the other hand, during the American regime, when section 78 of Act No. 136 wa s enacted abolishing the civil jurisdiction of the provost courts created by the military government of occupation in the Philippines during the Spanish-America n War of 1898, the same section 78 provided for the transfer of all civil action s then pending in the provost courts to the proper tribunals, that is, to the ju stices of the peace courts, Court of First Instance, or Supreme Court having jur isdiction over them according to law. And later on, when the criminal jurisdicti on 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 j urisdiction of the municipal court created by Act No. 183 were transferred to th e 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 t herein prior to the restoration of the Commonwealth of the Philippines, is confi rmed by Executive Order No. 37 which we have already quoted in support of our co nclusion 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 transm itted 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 pr ior 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 C ourts 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 whi ch had been functioning during the Republic, but that which had existed up to th e time of the Japanese occupation, it would have provided that all the cases whi ch had, prior to and up to that occupation on January 2, 1942, been dully appeal ed to the said Court of Appeals shall be transmitted to the Supreme Court for fi nal decision. It is, therefore, obvious that the present courts have jurisdiction to continue, to final judgment, the proceedings in cases, not of political complexion, pendi ng therein at the time of the restoration of the Commonwealth Government. Having arrived at the above conclusions, it follows that the Court of First Inst ance 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 restora tion 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 presidi ng judge of that court, mandamus is the speedy and adequate remedy in the ordina ry course of law, especially taking into consideration the fact that the questio n 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 proceedi ngs in civil case No. 3012 of said court. No pronouncement as to costs. So order ed. 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 Manil a, under the now defunct Philippine Republic, during Japanese occupation; and th e effect on said proceedings of the proclamation of General Douglas MacArthur, d ated 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 (Juntin gton vs. Attril, 146 U.S., 657; 13 Sup. Ct. 224; 36 Law. ed., 1123); and Interna tional Law is no alien in this Tribunal, as, under the Constitution of the Commo nwealth of the Philippines, it is a part of the fundamental law of the land (Art icle 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 p resented for our determination, sitting as an international as well as a domesti c Tribunal (Kansas vs. Colorado, 185 U.S., 146; 22 Sup. Ct. 552; 46 Law. Ed., 83 8). Since International Law is a body of rules actually accepted by nations as regul ating their mutual relations, the proof of the existence of a given rule is to b e found in the consent of nations to abide by that rule; and this consent is evi denced 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 pu blicists and to the decisions of the highest courts of the different countries o f 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 int ernational treaties are a later source of increasing importance, such as The Hag ue Conventions of 1899 and 1907. The Hague Conventions of 1899, respecting laws and customs of war on land, expre ssly 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 reest ablish 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, 1 821.) The above provisions of the Hague Convention have been adopted by the nations gi ving adherence to them, among which is United States of America (32 Stat. II, 18 21). 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 territ

ory, and this authority will be exercised upon principles of international Law ( New Orleans vs. Steamship Co, [1874], 20 Wall., 387; Kelly vs. Sanders [1878], 9 9 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 occupa tion, from January, 1942, up to the time of the reconquest by the armed forces o f 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 i n force, in so far as they do not affect the hostile occupant unfavorably. The r egular judicial Tribunals of the occupied territory continue usual for the invad er to take the whole administration into his own hands, partly because it is eas ier to preserve order through the agency of the native officials, and partly bec ause 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 s uch of the judicial and administrative officers as are willing to serve under hi m, subjecting them only to supervision by the military authorities, or by superi or civil authorities appointed by him.(Young vs. U.S., 39; 24 Law, ed., 992; Col eman 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, 6t h 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, 2 d ed., pp. 121-23.) It is, therefore, evident that the establishment of the government under the socalled Philippine Republic, during Japanese occupation, respecting the laws in f orce 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 und er military occupation governmental agencies for the preservation of peace and o rder and for the proper administration of justice, in accordance with the laws i n force within territory it must necessarily follow that the judicial proceeding s conducted before the courts established by the military occupant must be consi dered legal and valid, even after said government establish by the military occu pant 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 jurisd iction, 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 val id and binding (Cock vs. Oliver, 1 Woods, 437; Fed. Cas., No. 3, 164; Coleman vs . Tennessee, 97 U. S., 509; 24 Law. ed., 118; Williams vs. Bruffy, 96 U. S., 176 ; Horn vs. Lockhart, 17 Wall., 570; Sprott vs. United States, 20 id., 459; Texas vs. White, 7 id., 700; Ketchum vs. Buckley [1878], 99 U.S., 188); and the judgm ent 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 t he 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 governme nt 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 f orm of government, the same general law for the administration of justice and th e protection of private rights, which had existed in the States prior to the reb ellion, remained during its continuance and afterwards. As far as the acts of th e States did not impair or tend to impair the supremacy of the national authorit y, or the just and legal rights of the citizens, under the Constitution, they ar e 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; Te xas 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 gov ernment de facto, but which might, perhaps, be more aptly denominateda governmen t of paramount force. Its distinguishing characteristics are (1) that its existe nce is maintained by active military power within the territories, and against t he rightful authority of an established and lawful government; and (2) that whil e it exists it must necessarily be obeyed in civil matters by private citizens w ho, by acts of obedience rendered in submission to such force, do not become res ponsible, as wrong doers, for those acts, though not warranted by the laws of th e rightful government. Actual government of this sort are established over distr icts differing greatly in extent and conditions. They are usually administered d irectly by military authority, but they may be administered, also, by civil auth ority, supported more or less directly by military force. (Macleod vs. United St ates [1913] 229 U.S., 416.) The government established in the Philippines, under the so-called Philippine Re public, during Japanese occupation, was and should be considered as a de facto g overnment; and that the judicial proceedings conducted before the courts which h ad been established in this country, during said Japanese occupation, are to be considered legal and valid and enforceable, even after the liberation of this co untry 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 t o the settlement of property rights, under the provisions of the Civil Code, in force in this country under the Commonwealth government, before and during Japan ese occupation. Now, petitioner contends that the judicial proceedings in question are null and void, under the provisions of the proclamation issued by General Douglas MacArth ur, dated October 23, 1944; as said proclamation "nullifies all the laws, regula tions 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 unt enable, as it would inevitably produce judicial chaos and uncertainties. When an act is susceptible of two or more constructions, one of which will maint ain 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 P

hil., 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 wi ll most effectively promote the public policy (Smith, Bell & Co., Ltd. vs. Nativ idad [1919], 40 Phil., 136). All laws should receive a sensible construction. Ge neral 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 l etter (U. S. vs. Kirby, 7 Wall. [U.S.], 482; 19 Law. ed., 278; Church of Holy Tr inity 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. Del aware & 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 doctri nes cited above, the judicial proceedings conducted before the courts of justice , established here during Japanese military occupation, merely applying the muni cipal 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 bi nding. 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 acco rdance with said rules and principles of International Law, which have been sanc tioned by the Supreme Court of the United States, as the nullification of all ju dicial proceedings conducted before our courts, during Japanese occupation would lead to injustice and absurd results, and would be highly detrimental to the pu blic 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 centurie s 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 lat er 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. Mose s received at Sinai the ten commandments. Draco, Lycurgus, Solon made laws in Gr eece. Even ruthless Genghis Khan used laws to keep discipline among the nomad ho rdes with which he conquered the greater part of the European and Asiastic conti nents. Animal and plants species must follow the mendelian heredity rules and other bio logical 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. I

f, endowed with rebellious spirit, they should happen to challenge the law of un iversal gravity, the immediate result would be cosmic chaos. The tiny and twinkl ing 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 tha t might induce us to forget the elementals. There are so many events, so many pr oblem, so many preoccupations that are pushing among themselves to attract our a ttention, and we might miss the nearest and most familiar things, like the man w ho 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 o f 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 t o the official acts of the governments established in the Philippines by the Jap anese 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, whe ther against the policies of the American Government, whether inconsistent with military strategy and operations, whether detrimental to the interests of the Am erican 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 enoug h 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 a ction. More pressing military matters were requiring his immediate attention. He followed the safe course: to nullify all the legislative, executive, and judici al acts and processes under the Japanese regime. After all, when the Commonwealt h Government is already functioning, with proper information, he will be in a po sition 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 soi

l 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 b een re-established in the Philippines under President Sergio Osmea and the member s of his cabinet; and WHEREAS, under enemy duress, a so-called government styled as the "Republic of t he 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 Unite d States, and is purporting to exercise Executive, Judicial and Legislative powe rs 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 Philipp ines and the regulation promulgated pursuant thereto are in full force and effec t 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 Phili ppines than that of the said Commonwealth are null and void and without legal ef fect in areas of the Philippines free enemy occupation and control; and I do hereby announce my purpose progressively to restore and extend to the peopl e of the Philippines the sacred right of government by constitutional process un der 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 obed ience to the Constitution of the Commonwealth of the Philippines and the laws, r egulations 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 i nherent powers, as a natural result of the nature of the military operations aim ed to achieve the purposes of his country in the war, victory being paramount am ong them. Said Commander in Chief may establish in the occupied or reoccupied territory, u nder his control, a complete system of government; he may appoint officers and e mployees to manage the affairs of said government; he may issue proclamations, i nstructions, orders, all with the full force of laws enacted by a duly constitut ed legislature; he may set policies that should be followed by the public admini stration 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 limi

ted 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 constitutio nal commander in chief of the army and navy, authorized the military and naval c ommander of our forces in California to exercise the belligerent rights of a con queror, and form a civil government for the conquered country, and to impose dut ies on imports and tonnage as military contributions for the support of the gove rnment, and of the army which has the conquest in possession. . . Cross of Harri son, 16 Howard, 164, 189.) In May, 1862, after the capture of New Orleans by the United States Army, Genera l Butler, then in command of the army at that place, issued a general order appo inting 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 according ly. 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 Ba nk lent to the plaintiffs the sum of $130,000, and subsequently, the loan not ha ving 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 th e plaintiffs is that the judgement was illegal and void, because the Provost Cou rt had no jurisdiction of the case. The judgement of the District Court was agai nst 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 Consti tution of the United States, which vests the judicial power of the General gover nment 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 Cour t. Thus, it is claimed, a Federal question is presented, and the highest court o f the State having decided against the immunity claimed, our jurisdiction is inv oked. Assuming that the case is thus brought within our right to review it, the contro lling 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 cau ses. 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 creatio n by military authority? This cannot be said to be an open question. The subject came under the considera tion 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 Nationa l forces, it was within the constitutional authority of the President, as comman der in chief, to establish therein provisional courts for the hearing and determ ination of all causes arising under the laws of the States or of the United Stat es, 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 lawfu lly 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 o

f conquered territory in the occupancy of the conquering, army. It refers only t o courts of United States, which military courts are not. As was said in the opi nion of the court, delivered by Chief Justice Chase, in The Grapeshot, "It becam e the duty of the National government, wherever the insurgent power was overthro wn, and the territory which had been dominated by it was occupied by the Nationa l 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 dev olves upon a regular belligerent, occupying during war the territory of another belligerent. It was a military duty, to be performed by the President, as Comman der 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 co urts 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 t hat which exists when foreign territory has been conquered and is occupied by th e conquerors. What that power is has several times been considered. In Leitensdo rfer & 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 virtu e 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 sy stem with a superior or appellate court, and with circuit courts, the jurisdicti on of which declared to embrace, first, all criminal causes that should not othe rwise provided for by law; and secondly, original and exclusive cognizance of al l civil cases not cognizable before the prefects and alcades. But though these c ourts 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 establishmen t 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 conq uered 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 ci vil causes during the civil war in conquered portions of the insurgent States. T he establishment of such courts is but the exercise of the ordinary rights of co nquest. The plaintiffs in error, therefore, had no constitutional immunity again st subjection to the judgements of such courts. They argue, however, that if thi s 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 oc cupying army. He was commissioned to carry on the war in Louisina. He was, there fore, 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 e stablishing courts in conquered territory. It must be presumed that he acted und er 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 pow ers. He did it as the official representative of the supreme authority of the Un ited States of America. Consequently, said proclamation is legal, valid, and bin ding. Said proclamation has the full force of a law. In fact, of a paramount law. Havi ng 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 Ph ilippines, but also our Constitution itself while we remain under the American f lag. "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 aft er suing out the original writ, in civil, and after indictment, in criminal case s. 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 v s. Rainbow, 84 la., 567; 51 N. W., 48; the means or method pointed out by a stat ute, or used to acquire jurisdiction of the defendants, whether by writ or notic e. Wilson vs. R. Co. (108 Mo., 588; 18 S. W., 286; 32 Am. St. Rep., 624). (3 Bou vier's Law Dictionary, p. 2731.) A. Process generally. 1. Definition. As a legal term process is a generic word o f every comprehensive signification and many meanings. It is broadest sense it i s 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 compel s a compliance with it demands. "Process" and "writ" or "writs" are synonymous i n the sense that every writ is a process, and in a narrow sense of the term "pro cess" is limited to judicial writs in an action, or at least to writs or writing s issued from or out of court, under the seal thereof, and returnable thereto; b ut 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 l aw or by some court, body, or official having authority to issue it; and it is f requently used to designate a means, by writ or otherwise , of acquiring jurisdi ction 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 accor ding to the context, subject matter, and spirit of the statute in which it occur s. In some jurisdictions codes or statutes variously define "process" as signify ing 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 of ficers; 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, a uthority, 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 i n 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 proc eedings after the original and before judgement; but generally it imports the wr its which issue out of any court to bring the party to answer, or for doing exec ution, and all process out of the King's court ought to be in the name of the Ki ng. It is called "process" because it proceeds or goes upon former matter, eithe r original or judicial. Gilmer, vs. Bird 15 Fla., 410, 421. (34 Words and Phrase s, permanent edition, 1940 edition, p. 147.) In a broad sense the word "process" includes the means whereby a court compels t he appearance of the defendant before it, or a compliance with it demands, and a ny 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 t o 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 edit ion, p. 148.) A "process" is an instrument in an epistolary from running in the name of the so vereign 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 mun icipal officer or to the party to be bound by it, commanding the commission of s ome 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 b e duly attested, but not necessarily by the judge, though usually, but not alway s, 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 Ka n., 43. (34 Words and Phrases, permanent edition, 1940 edition, p. 148.) Jacobs in his Law Dictionary says: "Process" has two qualifications: First, it i s largely taken for all proceedings in any action or prosecution, real or person al, civil or criminal, from the beginning to the end; secondly, that is termed t he "process" by which a man is called into any temporal court, because the begin ning 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 transfer red, 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 amongs t the processes contemplated by the policy. The words "legal process" mean all t he proceedings in an action or proceeding. They would necessarily embrace the de cree, which ordinarily includes the proceedings. Perry vs. Lorillard Fire Ins. C o., 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 m eans the entire proceedings in an action, from the beginning to the end. In a st ricter sense, it is applied to the several judicial writs issued in an action. H anna vs. Russell, 12 Minn., 80, 86 (Gil., 43, 45). (34 Words and Phrases, perman ent 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 th e proceedings in a court, from the beginning to the end of the suit; and, in thi

s 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. Tr imple, Vt., 2 Tyler, 349, 350. Id. "Process" in its broadest sense comprehends all proceedings to the accomplishmen t of an end, including judicial proceedings. Frequently its signification is lim ited to the means of bringing a party in court. In the Constitution process whic h at the common law would have run in the name of the king is intended. In the C ode 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. 27 9; 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 co urt and includes any means of acquiring jurisdiction and includes attachment, ga rnishment, or execution, and also a writ. Blair vs. Maxbass Security Bank of Max bass, 176 N. W., 98, 199; 44 N. D. 12 (23 Words and Phrases, permanent edition 1 940 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 o f 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 th e exercise Executive, Judicial, and Legislative powers of government over the pe ople." 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 reg ime, and he used, in section 3 of he dispositive part, the word laws, as pertain ing to the legislative branch, the word regulations, as pertaining to the execut ive 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 Co urt 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. W alter, 182 Mass., 225, 226 (1902) Upon questions of construction when arbitrary rule is involved, it is always mor e important to consider the words and the circumstances than even strong analogi es decisions. The successive neglect of a series of small distinctions, in the e ffort 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 discretio n required in dealing with authority. . . . There is a strong presumption in fav or of giving them words their natural meaning, and against reading them as if th ey said something else, which they are not fitted to express. (Merrill vs. Prest on, 135 Mass., 451, 455 (1883). When the words of an instrument are free from ambiguity and doubt, and express p lainly, 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 n eeds no interpretation. Very strong expression have been used by the courts to emphasize the principle t hat they are to derive their knowledge of the legislative intention from the wor ds or language of the statute itself which the legislature has used to express i t. The language of a statute is its most natural guide. We are not liberty to im agine an intent and bind the letter to the intent. The Supreme Court of the United States said: "The primary and general rule of st atutory construction is that the intent of the law-maker is to be found in the l anguage that he has used. He is presumed to know the meaning of the words and th e 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 whic h 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 th e letter does not fully and accurately disclose the intent. No mere ommission, n o 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. R ep., 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 governme nt are null and void and without legal effect", are provisions clearly, distinct ly, 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 differ ent 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 mea ning of the words employed in the October Proclamation, and the text of the docu ment expresses, in clear-cut sentences, the true purposes of its author, it migh t not be amiss to state here what was the policy intended to be established by s aid proclamation. It is a matter of judicial knowledge that in the global war just ended on Septem ber 2, 1945, by the signatures on the document of unconditional surrender affixe d 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 camp aign propaganda, intended to destroy the faith of the Filipino people in America , to wipe out all manifestations of American or occidental civilization, to crea te 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 neut ralize or annul completely all vestiges of Japanese influence, specially those w hich might jeopardize in any way his military operations and his means of achiev ing 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 es sence of democracy. It was necessary to free, not only our territory, but also our spiritual patrimo ny. It was necessary, not only to restore to us the opportunity of enjoying the physical treasures which a beneficent Providence accumulated on this bountiful l and, the true paradise in the western Pacific, but to restore the full play of o ur ideology, that wonderful admixture of sensible principles of human conduct, b equeathed to us by our Malayan ancestors, the moral principles of the Christiani ty 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 Japan ese regime, if allowed to continue and to have effect, might be a means of keepi ng and spreading in our country the Japanese influence, with the same deadly eff ects as the mines planted by the retreating enemy. The government offices and agencies which functioned during the Japanese occupat ion represented a sovereignty and ideology antagonistic to the sovereignty and i deology which MacArthur's forces sought to restore in our country. Under chapter I of the Japanese Constitution, it is declared that Japan shall re igned and governed by a line Emperors unbroken for ages eternal (Article 1); tha t the Emperor is sacred and inviolable (Article 3); that he is the head of the E mpire, combining in himself the rights of the sovereignty (Article 4); that he e xercises 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 comman d of the Army and Navy (Article 11); that he declares war, makes peace, and conc ludes 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 b y a Japanese, insists in doing many things precisely in a way opposite to that f ollowed by the rest of the world. It is the ideology of a people which insists in adopting the policy of self-delu sion; that believes that their Emperor is a direct descendant of gods and he him self is a god, and that the typhoon which occured on August 14, 1281, which dest royed 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 or der to avenge the death of their master Asano Naganori, on February 3, 1703, ent ered stealthily into the house of Yoshinaka Kiro and killed him treacherously.

It is an ideology which dignifies harakiri or sepukku, the most bloody and repug nant 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 abhorr ent "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, follo wing the occasion, his attendants were assembled to from the hito-bashira (pilla r-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. A t 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 Sumeri ans, the ferocious inhabitants of Babylonia who, 3500 years B. C., appeared in h istory 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, s elected by the priests to partake of such abominable honor. (Broduer, The Pagean t of Civilization, pp. 62-66.) General MacArthur sought to annul completely the officials acts of the governmen ts under the Japanese occupation, because they were done at the shadow of the Ja panese dictatorship, the same which destroyed the independence of Korea, the "Em pire of Morning Frehsness"; they violated the territorial integrity of China, in vaded Manchuria, and initiated therein the deceitful system of puppet government s, by designating irresponsible Pu Yi as Emperor of Manchukuo; they violated the trusteeship granted by the Treaty of Versailles by usurping tha mandated island s in the Pacific; they initiated that they call China Incident, without war decl aration, and, therefore, in complete disregard of an elemental international dut y; they attacked Pearl Harbor treacherously, and committed a long series of the flagrant violations of international law that have logically bestowed on Japan t he 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 archeologic al collection. It represents a backward jump in the evolution of ethical and jur idical concepts, a reversion that, more than a simple pathological state, repres ents 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 prom ised to respect our rights by submitting us to the wholesale and indiscriminate slapping, tortures, and atrocious massacres. Driving nails in the cranium, extra ction of teeth and eyes, burnings of organs, hangings, diabolical zonings, looti ng of properties, establishments of redlight districts, machine gunning of women and children, interment of alive persons, they are just mere preludes of the pr omised paradised that they called "Greater East Asia Co-Prosperity Sphere". They promised religious liberty by compelling all protestant sects to unite, aga inst the religious scruples and convictions of their members, in one group, and by profaning convents, seminaries, churches, and other cult centers of the Catho lics, utilizing them as military barracks, munitions dumps, artillery base, depo sits of bombs and gasoline, torture chambers and zone, and by compelling the gov ernment officials and employees to face and to bow in adoration before that cari cature of divinity in the imperial palace of Tokyo. The Japanese offered themselves to be our cultural mentors by depriving us of th e use of our schools and colleges, by destroying our books and other means of cu

lture, by falsifying the contents of school texts, by eliminating free press, th e 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 catego ry of slaves, treating the most prominent Filipinos in a much lower social and p olitical category than that of the most ignorant and brutal subject of the Emper or. The civil liberties of the citizens were annulled. Witnesses and litigants were slapped and tortured during investigations. In the prosecuting attorney's office s, 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 di spotic members. There were judges who had to trample laws and shock their consci ence 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 i n the protection of their liberties, honor, and dignity; the weak may face the p owerful; the lowest citizen is not afraid of the highest official; civil equalit y becomes reality; justice is admnistered with more efficiency; and democracy be comes the best system of government and the best guaranty for the welfare and ha ppiness of the individual human being. In fact, the profession of law was annull ed, and the best lawyers for the unfortunate prisoners in Fort Santiago and othe r centers of torture were the military police, concubines, procurers, and spies, the providers of war materials and shameful pleasures, and the accomplices in f raudulent transactions, which were the specialty of many naval and military Japa nese officers. The courts and Filipino government officials were completely helpless in the que stion of protecting the constitutional liberties and fundamental rights of the c itizens who happen to be unfortunate enough to fall under the dragnet of the hat ed kempei. Even the highest government officials were not safe from arrest and i mprisonment in the dreaded military dungeons, where torture or horrible death we re 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 t ake 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 issu ed 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 gr eatest American general, the Liberator of the Philippines, the conqueror of Japa n, the gallant soldier under whose authority the Emperor of the Japan, who is su pposed to rule supreme for ages as a descendant of gods, is receiving orders wit h the humility of a prisoner of war. No challenge has been hurled against the proclamation or the authority of the au thor to issue it, because everybody acknowledges the full legality of its issuan ce. 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 con sidered 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 authori ty of the proclamation, but only to construe it in a convenient way so that judi cial processes during the Japanese occupation, through an exceptional effort of the imagination, might to segregated from the processes mentioned in the proclam ation. An author said that the law of nations, the "jus gentiun", is not a fixed nor im mutable science. On the country, it is developing incessantly, it is perpetually changing in forms. In each turn it advances or recedes, according to the viciss itudes 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 i l avance et il recule, selon less vicissitudes de histoire et suivan un rhythm m onotone qui est comme le flux et le reflux d'un mer. (M. Revon, De l'existence d u 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 reg ulative 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 sc ience proper, final and unchanging. The substance of science proper is already m ade for man; the substance of international is actually made by man, and differe nt 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 confro nting us at every turn. Rest and motion, unrelieved and unchecked, are equally d estructive. The law, like human kind, if life is to continue, must find some pat h compromise." (The Growth of Law p. 2.) Law is just one of the manifestations o f human life, and "Life has relations not capable of division into inflexible co mpartments. 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 o ther 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 middl e ages the oath was not always respected as faithfully as in ancient Rome; and n earer our own times, in the seventeenth century, Grotius proclaims the unquestio ned right of the belligerents to massacre the women and the children of the enem y; and in our more modern age the due declaration of war which Roman always conf ormed to has not been invariably observed. (Coleman Philippson, The Internationa l 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 gen eralities 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 th e generally accepted principles of international law as part of the law of the N ation. (Sec. 3, Art. II.) There being no codified principles of international law, or enactments of its ru les, 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 auth ors 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 unmistaka bly defined and that there is definite and conclusive evidence to the effect tha t 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, congres ses, legislative assemblies which can enact laws and specific statutes on the su bject. 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 diali stics. THE OCTOBER PROCLAMATION AND INTERNATIONAL LAW Is there any principle of international law that may effect the October Proclama tion? We tried in vain to find out in the majority opinion anything as to the existenc e of any principle of international law under which the authority of General Mac Arthur to issue the proclamation can effectively be challenged. No principle of international law has been, or could be invoked as a basis for d

enying 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, und er 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 p rocesses of said governments, including judicial processes. If General MacArthur, as commander in Chief of the American Armed Forces of Libe ration, had authority, full and legal, to issue the proclamation, the inescapabl e result will be the complete viodance and nullity of all judicial processes, pr ocedures, 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 o issue it and all its parts, but they maintain that General MacArthur did not nd could not have in mind the idea of nullifying the judicial processes during he Japanese occupation, because that will be in violation of the principles of nternational law. t a t i

If we follow the reasoning of the majority opinion we will have to reach the con lusion that the world "processes" does not appear at all in the October Proclama tion. It is stated more than once, and reiterated with dogmatic emphasis, that under t he principles of international law the judicial processes under an army occupati on 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 ne ed only one to be convinced. The imagined principles are so shrouded in a thick maze of strained analogies an d reasoning, that we confess our inability even to have a fleeting glimpse at th em through their thick and invulnerable wrappers. At every turn international law, the blatant words, are haunting us with the dea fening 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 th e 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 liberat ion; second whether the October Proclamation had invalidated all judgement and j udicial proceedings under the Japanese regime; and third, whether the present co urts of the Commonwealth may continue the judicial proceedings pending at the ti me of liberation. As regards the first question, it is stated that it is a legal tourism in politi cal and international law that all acts of a de facto government are good and va lid, that the governments established during the Japanese occupation. that is, t he Philippine Executive Commission and the Republic of the Philippines, were de

facto governments, and that it necessarily follows that the judicial acts and pr oceedings of the courts of those governments, "which are not of a political comp lexion," were good and valid, and by virtue of the principle of postliminium, re main good and valid after the liberation. In the above reasoning we will see right away how the alleged legal truism in po litical and international law, stated as a premise in a sweeping way, as an abso lute rule, is immediately qualified by the exception as to judicial acts and pro ceedings 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 beginnin g 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 sup port the absolute and sweeping character of the majority proposition as stated i n their opinion. No authority could be cited, because the majority itself loses faith in the vali dity of such absolute and sweeping proposition, by establishing an unexplained e xception as regards the judicial acts and proceedings of a "political complexion ." Besides, it is useless to try to find in the arguments of the majority anything that may challenge the power, the authority of a de jure government to annul the official acts of a de facto government, or the legal and indisputable authority of the restored legitimate government to refuse to recognize the official acts, legislative, executive and judicial, of the usurping government, once the same is ousted. As to the second question, the majority argues that the judicial proceedings and judgments of the de facto governments under the Japanese regime being good and valid, "it should be presumed that it was not, and could not have been, the inte ntion 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 gover nments under the Japanese regime null and void, he could not refer to judicial p rocesses, because the same are valid and remained so under the legal truism anno unced 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 ju dicial processes of "political complexion." And now it is stated that in annulling the processes of the governments under Ja panese 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 n ot maintain that they are so as a "legal truism in political and international l

aw?" 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 wi th 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 th at said legal truism, legislative and executive official acts of de facto govern ments are good and valid, General MacArthur referred to the latter in his annull ing proclamation, but not to judicial processes? If the argument is good so as to exclude judicial processes from the effect of t he 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, ther e 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 concl usion 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 th e majority, which is but a mere legal pretense that cannot stand the least analy sis 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 a s an agent of his government, "may not unlawfully suspend existing laws and prom ulgate new ones in the occupied territory if and when exigencies of the military occupation demand such action," but it is doubted whether the commanding genera l 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 rebe llious army, of an invading army, or of a usurping army, should enjoy greater le gal authority during the illegal, and in the case of the Japanese, iniquitous an d bestial occupation, than the official representative of the legitimate governm ent, once restored in the territory wrested from the brutal invaders and aggress ors. 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 int ernational law is being brandished to gag, manacle, and make completely powerles s the commander of an army of liberation to wipe out the official acts of the go vernment 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 affec ted by the annulment of the judicial processes of the governments under the Japa nese regime, but we cannot help smiling when we hear that chaos will reign or th at 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 powe rs of pardon and amnesty, had in the past released many criminals from imprisonm ent. And let us not forget that due to human limitations, in all countries, unde r all governments, in peace or in war, there were, there are, and there will alw ays be unpunished criminals, and that situation never caused despair to any one. We can conceive of inconveniences and hardships, but they are necessary contribu tions to great and noble purposes. Untold sacrifices were always offered to atta in high ideals and in behalf of worthy causes. We cannot refrain from feeling a paternal emotion for those who are trembling wi th all sincerity because of the belief that the avoidance of judicial proceeding s of the governments under the Japanese regime "would paralyze the social life o f the country." To allay such fear we must remind them that the country that pro duced many great hereos and martyrs; that contributed some of highest morals fig ures that humanity has ever produced in all history; which inhabited by a race w hich was able to traverse in immemorial times the vast expanses of the Indian Oc ean 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 soci al life so frail as to be easily paralyzed by the annulment of some judicial pro ceedings. The Japanese vandalisms during the last three years of nightmares and bestial oppression, during the long period of our national slavery, and the whol esale massacres and destructions in Manila and many other cities and municipalit ies 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 rest ored sovereign power may set aside all judicial processes of the army of occupat ion, in the case to courts of a future invasions, litigants will not summit thei r cases to courts whose judgement may afterwards be annulled, and criminals woul d not be deterred from committing offenses in the expectancy that they may escap e penalty upon liberation of the country. We hope that Providence will never all ow 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 r uthless 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 fac t that it had to resort to Executive Order No. 37, issued on March 10, 1945, pro viding "that all cases that have heretofore been appealed to the Court of Appeal s 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 wil l entertain the absurd idea that the President of the Philippines could have tho ught of abolishing the Court of Appeals under the government during the Japanese occupation. Said Court of Appeals disappeared with the ouster of the Japanese m ilitary 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 tha t could be abolished. Without discussing the correctness of principle stated the majority opinion quot

es from Wheaton the following: "Moreover when it is said that occupier's acts ar e valid and under international law should not be abrogated by the subsequent co nqueror, it must be remembered that on crucial instances exist to show that if h is acts should be reversed, any international wrong would be committed. What doe s 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, W ar, 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 belligere nt occupant. It is evident that the statement just quoted is a complete diversion from the pr inciple stated in the in an unmistakable way by Wheaton, who says in definite te rms 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 c ommitted." It can be clearly seen that Wheaton does not make any distinction or point out a ny exception. But in the majority opinion the principle is qualified, without stating any reas on 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 pri nciple, as stated by Wheaton, to the effect that whether the acts of military oc cupant should be considered valid or not, is a question that is up to the restor ed government to decide, and that there is no rule of international law that den ies to the restored government the right to exercise its discretion on the matte r, is quoted without discussion in the majority opinion. As the statement is not disputed, wee are entitled to presume that it is concurr ed in and, therefore, the qualifications made in the statement in the majority o pinion seem to completely groundless. THE DUTIES IMPOSED ON OCCUPANT ARMY ARE NOT LIMITATIONS TO THE RIGHTS OF THE LEG ITIMATE 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 governme nt established by the usurping army, except judicial processes political complex ion. The reasoning calls for immediate opposition. It is absolutely contrary to all p rinciples of logic. Between the duties imposed in the military occupant and the legal prerogatives o f 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 inhabita nts, 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 t he legitimate government validate the acts of said courts, if it is convinced th at said courts were absolutely powerless, as was the case during the Japanese oc cupation, 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 hum an 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 wh ich is inversely denied to the last. This preference and predilection in favor o f the military occupant, that is in favor of the invader and usurper, and agains t the legitimate government, is simply disconcerting, if we have to say the leas t. 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 o f said courts of the army of occupation. Therefore, it is a principle of interna tional law that said acts are valid and should be respected by the legitimate go vernment. It is presumed that General MacArthur is acquainted with such principl e, discovered or revealed through presumptive operations, and it is presumed tha t 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 Commanderin-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 Phili ppines than that of the said Commonwealth are null and void and without legal ef fect in areas of the Philippines free of enemy occupation and control. (emphasis supplied.) General MacArthur says categorically "all processes", but the majority insists o n reading differently, that, is: "NOT ALL processes." The majority presume, supp ose, against the unequivocal meaning of simple and well known words, that when G eneral MacArthur said "all processes", in fact, he said "not all processes", bec ause it is necessary, by presumption, by supposition, to exclude judicial proces ses. 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 co nclusion which we cannot be avoid opposing and exposing. Are we to adopt and follow the policy of deciding cases submitted to our conside ration, by presumption and suppositions putting aside truths and facts? Are we t o place in the documents presented to us, such as the October Proclamation, diff erent 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 pu blic 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 regulation s, 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 JUDICIA L 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 appor tioned 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 b efore the inauguration of the Commonwealth and before the Constitution took effe ct on November 15, 1935. And their jurisdiction is the same as provided by exist ing 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 just ice 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 App eals, 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 Philippin es, conferring on the Commonwealth tribunals jurisdiction to continue the judici al 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 abovecited do not authorize, even implicitly, any of the decisions and judgements of tribunals of the governments, nor to continue the processes or proceedings of sa id 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, i n order that said processes could be continued and the Commonwealth tribunals co uld exercise proper jurisdiction to continue them, under the well- established l egal doctrine, prevailing not only in the Philippines, but also in the proper en abling 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 wer e authorized to prescribed, the Commission should bear in mind that the governme nt which they were establishing was designed not for the satisfaction of the Ame

ricans or for the expression of their of their theoretical views, but for the ha ppiness, 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 thei r prejudices, to the fullest extent consistent with the accomplishment of the in dispensable requisites of just and effective government. Notwithstanding the policy so outlined, it was not enough for the Philippine Com mission to create and establish the courts of justice provided in Act No. 136, i n order that said tribunals could take cognizance and continue the judicial proc eedings of the tribunals existing in the Philippines at the time the American oc cupation. It needed specific enabling provisions in order that the new tribunals might con tinue the processes pending in the tribunals established by the Spaniards, and w hich 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 Spanis h 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 Admi nistravo." All records, books, papers, causes, actions, proceedings, and appeals logged, deposited, or pending in the existing Audiencia or Supreme Court, or pe nding by appeal before the Spanish tribunal called "Contencioso Administravo," a re 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, fi led, 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 substit uted in place thereof. Sections 64 and 65 of the same Act allowed the same procedure as regards the tra nsfer of cases and processes pending in the abolished Spanish Courts of First In stance to the tribunals of the same name established by the Philippine Commissio n. SEC. 64. Disposition of records, papers, causes, and appeals, now pending in the existing Courts of First Instance. All records, books, papers, actions, proceed ings, and appeals lodged, deposited, or pending in the Court of First Instance a s now constituted of or any province are transferred to the Court of First Insta nce of such province hereby established, which shall have the same power and jur isdiction over them as if they had been primarily lodged, deposited, filed, or c ommenced therein, or in case of appeal, appealed thereto. SEC. 65. Abolition of existing Courts of First Instance. The existing Courts Fir st Instance are hereby abolished, and the Courts of First Instance provided by t his 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 belo nged 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 Ameri can provost courts in the Philippines jurisdiction over civil actions, expressly provided that said civil actions shall be transferred to the newly created trib unals.

And it provided specifically that "the Supreme Court, Courts of the First Instan ce 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 th ough 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 fo r the northern side of Pasig River and the other for the southern side. They were courts with criminal jurisdiction or identical cases under the jurisdi ction 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 th e justice of the peace courts may be transferred to the municipal courts just cr eated, and the proceedings may be continued by the same, the Philippine Commissi on 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 a ll criminal cases and proceedings pending in the justices of the peace of Manila are transferred to the municipal courts, which are conferred the jurisdiction t o continue said cases and proceedings. THE CABANTAG CASE On August 1, 1901, Narciso Cabantag was convicted of murder by a military commis sion. (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, 19 02. The Civil Governor on December 2, 1903, commuted the death penalty to 20 yea rs 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 abolit ion of the military commission which convicted him, there was no existing tribun al 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 Supr eme Court would have been different. Act No. 865, enacted on September 3, 1903, is enabling law, wherein it is provid ed that decisions rendered by the provost courts and military commission shall b e ordered executed by the Courts of First Instance in accordance with the proced ure outlined in said Act. It is evident from the foregoing that this Supreme Court has accepted and confir med 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 aboli shed 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 C ommission did as to the jurisdiction of the courts established and transfer of c ases 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 int ernational 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 o f the United States for the District of Louisiana, where a decree was rendered f or the libellant. From the decree an appeal was taken to the Circuit Court, wher e the case was pending, when in 1861, the proceedings of the court were interrup ted by the civil war. Louisiana had become involved in the rebellion, and the co urts and officers of the United States were excluded from its limits. In 1862, h owever, the National authority had been partially reestablished in the State, th ough still liable to the overthrown by the vicissitudes of war. The troops of th e 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 natu re of this occupation and possession was fully explained in the case of The Vini ce. Whilst it continued, on the 20th of October, 1862, President Lincoln, by proclam ation, instituted a Provisional Court of the State of Louisiana, with authority, among other powers, to hear, try, and determine all causes in admiralty. Subseq uently, by consent of parties, this cause was transferred into the Provisional C ourt 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 Pro vincial 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 proceedin gs 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, order s, and decrees of the Provisional Court in causes transferred to the Circuit Cou rt 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. xxx xxx xxx

We have no doubt that the Provisional Court of Louisiana was properly establishe d 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 th e 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 PRO VISION

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 gove rnment was replaced by the de jure government, to give effect to the judgments a nd 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 ex isting 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 here by declared to be valid, etc. (U. S. Report, Wallace, Vol. 22, Mechanics' etc. B ank 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 judi cial proceedings, and therein the defendants in the domestic suit may plead bar the sister state judgement puis darrien continuance. (Wharton, on the Conflict o f Laws, Vol. II, p. 1411.) Under the Constitution of the United States, when a judgement of one state in th e Union is offered in a court of a sister state as the basis of a suit nil debet cannot be pleaded. The only proper plea is nul tiel record. (Id., p. 1413.). It is competent for the defendant, however, to an action on a judgement of a sis ter 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 wa nt 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 Philipp ines, in the absence of an enabling act or of an express legislative grant, have no jurisdiction to take cognizance and continue the judicial processes, procedu res, and proceedings of the tribunals which were created by the Japanese Militar y Administration and functioned under the Vargas Philippine Executive Commission of the Laurel Republic of the Philippines, deriving their authority from the Em peror, the absolute ruler of Japan, the invading enemy, and not from the Filipin o people in whom, according to the Constitution, sovereignty resides, and from w hom 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 autho rity to continue the proceedings which provoked the present controversy, being a judicial process of a Japanese sponsored government, is absolutely correct, und er the legal doctrines established by the United States and the Philippine Gover

nment, and consistently, invariably, and without exception, followed by the same . If we accept, for the sake of argument, the false hypothesis that the Commonweal th tribunals have jurisdiction to continue the judicial processes left pending b y the courts of the governments established under the Japanese regime, the court s which disappeared and, automatically, ceased to function with the ouster of th e 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 ju dicial 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 Octobe r 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 leg islative 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 c ompletely 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 th e semblance of protection when the life, the liberty, the honor and dignity of o ur individual citizens were wantonly trampled by any Japanese, military or civil ian, 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 n ot have any other alternative but to accept the law, as said proclamation has th e full force of a law. The fact that in the past, the legitimate governments, once restored in their ow n territory, condescended in many cases to recognize and to give effect to judgm ents rendered by courts under the governments set up by an invading military occ upant 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 a cts of the invader are reversed. Many irrelevant authorities were cited to us as to the duties imposed by the int ernational law on military occupants, but no authority has been cited to the eff ect 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 c ontrary, 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 MacArthu r thought, as the wisest course, of declaring "NULL AND VOID AND WITHOUT EFFECT, " by official proclamation, "ALL PROCESSES" under the Japanese regime, that is l egislative, executive and judicial processes, which fall under the absolute adje ctive "ALL". That declaration is a law. It is a law that everybody bound to accept and respec t, as all laws must be accepted and respected. It is a law that the tribunals ar e duty bound to give effect and apply. We are not unmindful of the adverse consequences to some individuals of the annu llment of all the judicial processes under the Japanese regime, as provided in t he October Proclamation, but the tribunals are not guardians of the legislative authorities, either an army commander in chief, during war, or a normal legislat ure, in peace time. The tribunals are not called upon to guide the legislative a uthorities to the wisdom of the laws to be enacted. That is the legislative resp

onsibility. Our duty and our responsibility is to see to it that the law, once e nacted, be applied and complied with. No matter the consequences, no matter who might be adversely affected, a judge m ust have the firm resolve and the courage to do his duty, as, in the present cas e, Judge Dizon did, without fear nor favor. We cannot see any reason why we shou ld not uphold him in his stand in upholding the law. It is our official duty, national and international duty. Yes. Because this Supr eme Court is sitting, not only as a national court, but as an international cour t, as is correctly stated in the concurring opinion of Justice De Joya, and we s hould 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 press ing, more imperative, more unavoidable. Justice has no country. It is of all cou ntries. The horizon of justice cannot be limited by the scene where our tribunal s are functioning and moving. That horizon is boundless. That is why in our cons titution the bill of rights has been written not for Filipinos, but for all pers ons. 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 ou r country in the United Nations. And let us not forget, as an elemental thing, t hat 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 wha t 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 Proclama tion, and that no principle of the international law is violated by said proclam ation, 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 polici es to which the United States and Philippine Governments were committed, and the annulment of all the facts of the governments under the Japanese regime, legisl ative, 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 Proclamati on "That all laws, regulations and processes" of the Japanese sponsored governme nts, during enemy occupation, "are null and void and without effect", he meant e xactly 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 "som e" have incompatible meanings and are not interchangeable.

5. That the word "processes" includes judicial procedures, proceedings, processe s, and cases. Therefore, "all processes" must include "all judicial processes.". 6. That we have no right to attribute General MacArthur an intention different f rom what he has plainly, clearly, unmistakably expressed in unambiguous words wi th familiar meaning generally understood by the common man. 7. That the judicial proceedings here in question are included among those adver sely affected by the October Proclamation. 8. That the Commonwealth tribunals have no jurisdiction to take cognizance of no r to continue the judicial proceedings under the Japanese regime. 9. That to exercise said jurisdiction an enabling act of the Congress is necessa ry. 10. That respondent Judge Dizon did not commit the error complained of in the pe tition, and that the petition has no merits at all. We refuse to follow the course of action taken by the majority in the present ca se. It is a course based on a mistaken conception of the principles of internati onal law and their interpretation and application, and on a pinchbeck. It is a c ourse 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 i s 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 pa ssing 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 m ay shake the very foundation of society, the cornerstone of the state, the prima ry pillar of the nation. It may dry the very foundation of social life, the sour ce of vitalizing sap that nurtures the body politic. The issue is between the va lidity 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 proc esses, or the law. We have to select between two, which to uphold. It is a dilem ma that does not admit of middle terms, or of middle ways where we can loiter wi th happy unconcern . We are in the cross road: which way shall we follow? The pr ocesses and the law are placed in the opposite ends of the balance. Shall we inc lined the balance of justice to uphold the processes and defeat law, or vice ver sa? 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, fa ncying chaos and paralyzation of social life, because some litigants in cases du ring the Japanese regime will be affected in their private interests, with the a nnulment of some judicial processes, but we adopt an attitude of complete noncha lance in throwing law overboard. This baffling attitude is a judicial puzzle tha t nobody will understand. So it is better that we should shift to a more underst andable 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, n o 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, pr oceed to state the reason for my dissent. The proceeding involved in the case at bar were commenced by a complaint filed b y 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 t his heading and title: "The Republic of the Philippines In the Court of First In stance 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 M ay 31, 19045, held: " first, that by virtue of the proclamation of General MacAr thur quoted above, all laws, regulations and processes of any other government i n 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 witho ut legal effect; third, that this Court as one of the different courts of genera l 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 p rovided 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 p rovisions of Act No. 4007, as revived by Executive Order No. 36, or for the vali dation of all proceedings had in said courts." Petitioner prays that this Court declare that the respondent judge should not ha ve ordered the suspension of the proceedings in civil case No. 3012 and should c ontinue and dispose of all the incidents in said case till its complete terminat ion. In my opinion, the petition should denied. In stating the reasons for this dissent, we may divide the arguments under the f ollowing propositions: 1. The proceedings in said civil case No. 3012 are null and void under General o f 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 "an d later as the Republic of the Philippines", established here by the Commander i

n Chief of the Imperial Japanese Forces or by his order was not a de-facto gover nment 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 Interna tional Law regarding the establishment of a de facto Government in territory bel onging to a belligerent but occupied or controlled by an opposing belligerent ar e 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 restor ed, is to be bound by the acts of either or both of those Japanese-sponsored gov ernments; 5. Even consideration of policy of practical convenience militate against petiti oner's contention. I The proceedings in said civil case No. 3012 are null and void under General of t he 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 e stablished 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: xxx xxx xxx

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

I do enjoin upon all loyal citizens of the Philippines full respect for and obed ience to the Constitution of the Commonwealth of the Philippines and the laws, r egulations 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, th at as the different areas of the Philippines were progressively liberated, the d eclaration of nullity therein contained shall attach to the laws, regulations an d 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 decla ration of nullity denotes that the act is null and void ab initio the nullity pr ecedes 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 law s, regulations, and processes in areas not yet free from enemy occupation and co ntrol upon the date of the proclamation, would attach thereto at a later date, i s no argument for giving them validity or effectiveness in the interregnum. By t he 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 obedien ce to the Constitution of the Commonwealth of the Philippines and the laws, regu

lations and other acts of their duly constituted government. This is all-inclusi ve it comprises not only the loyal citizens in the liberated areas but also thos e 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 c ase 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 injunc tion 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, 1 944, onwards. Indeed, to my mind, in choosing between these two courses of actio n, they would be dangerously standing on the dividing line between loyalty and d isloyalty to this country and its government. The proceeding in question, having been had before the liberation of Manila, wer e unquestionably "processes" of the Japanese-sponsored government in the Philipp ines within the meaning of the aforesaid proclamation of General of the Army Mac Arthur and, consequently, fall within the condemnation of the proclamation. Bein g processes of a branch of a government which had been established in the hostil ity to the Commonwealth Government, as well as the United States Government, the y could not very well be considered by the parties to be valid and binding, at l east after October 23, 1944, without said parties incurring in disobedience and contempt of the proclamation which enjoins them to render full respect for the o bedience to our Constitution and the laws, regulations and other acts of our dul y constituted government. Nine days after the inauguration of the so-called "Rep ublic of the Philippines," President Franklin Delano Roosevelt of the United Sta tes 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 Phil ippine Island with Jose P. Laurel, formerly a justice of the Philippine Supreme Court, as "president." Jorge Vargas, formerly as a member of the Commonwealth Ca binet, 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 a ppeal 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 Exe cutive 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 Com monwealth 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 th e Philippines was in Washington, D.C., with his exiled government, he also repea tedly condemned both the "Philippine Executive Commission" and the "Philippine R epublic," as they had been established by or under orders of the Commander in Ch ief 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 p roceedings in question could be considered valid and binding without adopting an

attitude incompatible with theirs. As President Roosevelt said in his above quo ted message, "Our symphaty goes out to those remain loyal to the United States a nd 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 paramo unt 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 for ce, obedience in such matters may often be a necessity and, in the interest of o rder, a duty. No concession is thus made to the rightfulness of the authority ex ercised." (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 cas e, 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, a nd the consideration of Tampico as United States territory, were concerned, was limited to the period during which the British, in the first case, retained poss ession of Castine, and the United States, in the second, retained possession of Tampico. In referring to the Confederate Government during the Civil War, as men tioned in the Thorington case, the court again says in effect that the actual su premacy of the Confederate Government over a portion of the territory of the Uni on was the only reason for holding that its inhabitants could not but obey its a uthority. But the court was careful to limit this to the time when that actual s upremacy existed, when it said: . . . individual resistance to its authority the n would have been futile and, therefore, unjustifiable." (Emphasis ours.) Because of its pertinence, we beg leave to quote the following paragraph from th at leading decision: There is nothing in the language used in Thorington vs. Smith (supra), which con flicts with these views. In that case, the Confederate Government is characteriz ed 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 P eace 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 Castin e, the inhabitants were held to be subject to such laws as the British Governmen t chose to recognize and impose. Whilst the United States retained possession of Tampico, it was held that it must regarded and respected as their territory. Th e Confederate Government, the court observed, differed from these temporary gove rnments in the circumstance that its authority did not justifying acts of hostil ity to the United States, "Made obedience to its authority in civil and local ma tters 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 certa in 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. (Will iams 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 enem y, the former through its Commander in Chief, has the power to establish thereon what the decisions and treaties have variously denominated provisional or milit ary government, and the majority holds that the Japanese-sponsored government in

the Philippines was such a government. Without prejudice to later discussing th e effects which the renunciation of war as an instrument of national policy cont ained in our Commonwealth Constitution, as well as in the Briand-Kellog Pact, mu st 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 Comm ander in Chief of the invasion army, why should we not recognize at least an equ al power in the Commander in Chief of the liberation army to overthrow that gove rnment will all of its acts, at least of those of an executory nature upon the t ime of liberation? Considering the theory maintained by the majority, it would s eem that they would recognize in the Japanese Commander in Chief the power to ov erthrow 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 Ch ief of the United States Army to overthrow the substitute government thus erecte d 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 questi on from the point of view of policy or the practical convenience of the inhabita nts. If the Japanese Commander in Chief represented sovereignty of Japan, the Am erican Commander in Chief represented the sovereignty of the United States, as w ell as the Government of the Commonwealth. If Japan had won this war, her paramo unt military supremacy would have continued to be exerted upon the Filipino peop le, and out of sheer physical compulsion this country would have had to bow to t he continuance of the puppet regime that she had set up here for an indefinite t ime. In such a case, we admit that, not because the acts of that government woul d then have intrinsically been legal and valid, but simply because of the paramo unt 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 dif ferent 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 h as been defeated, why should the Filipinos be still bound to respect or recogniz e validity in the acts of the Japanese-sponsored government which has been so se verely condemned by both the heads of the United States and our Commonwealth Gov ernment throughout the duration of the war? If we were to draw a parallel betwee n that government and that which was established by the Confederate States durin g 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), refer ring 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 go vernment. The Court said among other things: The immense power exercised by the government of the Confederate States for near ly four years, the territory over which it extended, the vast resources it wield ed, and the millions who acknowledged its authority, present an imposing spectac le well fitted to mislead the mind in considering the legal character of that or ganization. It claimed to represent an independent nation and to posses sovereig n 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 a nd enforce those of its own enactment. Its pretentions being resisted, they were submitted to the arbitrament of war. In that contest the Confederacy failed; an d 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 our s.) By analogy, if the Japanese invasion and occupation of the Philippines had been which, however, is not the case and if Japan had succeeded in permanently lawful 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 holdin g the acts of that government valid, but because Japan has lost the war and, the

refore, 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 Confede racy, the Court, said, "when its military forces were overthrown, it utterly per ished, 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, no t of the Confederate States individually; and in the second place, the quoted pa ssage refers to something which was not in issue in the case, namely, the acts o f 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 ri ghts, which has existed in the States prior to the rebellion, remanded during (i ts) continuance and afterwards. "In the case at bar, the same general form of th e Commonwealth Government did not continue under the Japanese, for the simple re ason that one of the first acts of the invaders was to overthrow the Commonwealt h Constitution and, therefore, the constitutional government which existed there under, 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 Imperia l Japanese Forces to the Chairman of the Philippine Executive Commission directe d that, in the exercise of legislative, executive and judicial powers in the Phi lippines, the "activities" of the "administrative organs and judicial courts in the Philippines shall be based upon the existing status, order, ordinances and t he Commonwealth Constitution (1 Official Journal of the Japanese Military Admini stration, page 34). Under the frame of government existing in this Commonwealth upon the date of the Japanese invasion, the Constitution was the very fountain-h ead of the validity and effects of all the "status, orders, and ordinances" ment ioned by the Japanese Commander in Chief, and in overthrowing the Constitution h e, 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) gav e the "Detailed Instruction Based on Guiding Principle of the Administration," a nd among other things required "The entire personnel shall be required to pledge their loyalty to the Imperial Japanese Forces. . . ." (This, of course, was rep ugnant to the frame of government existing here under the Commonwealth Constitut ion upon the date of invasion.) 3. Proclamation dated January 3, 19452 of the Japanese Commander in Chief provid ed in paragraph 3 that "The Authorities and the People of the Commonwealth shoul d sever their relations with the U.S. o . . ." (This is, likewise, repugnant to the Commonwealth Constitution and the to the Government of that Commonwealth Con stitution and to the Government of that Commonwealth which was expressly made su bject to the supreme sovereignty of the United States until complete independenc e is granted, not by the mere will of the United States, but by virtue of an agr eement 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 Governm ent, for which the Federal Supreme Court was speaking in the Williams-Bruffy cas

e; while the Japanese-sponsored governments of the "Philippine Executive Commiss ion" and the Republic of the Philippines" neither existed here before the war no r had received the recognition or sanction of either the United States or the Co mmonwealth Government nay, they had received the most vigorous condemnation of b oth. The Court further says in Williams vs. Bruffy (supra): No case has been cited in argument, and we think unsuccesfully attempting to est ablish a separate revolutionary government have been sustained as a matter of le gal right. As justly observed by the late Chief Justice in the case of Shortridg e vs. Macon, I Abb. U.S., 58, decided at the circuit, and, in all material respe cts like the one at bar, "Those who engage in rebellion must consider the conseq uences. If they succeed, rebellion becomes revolution, and the new government wi ll justify is founders. If they fail, all their acts hostile to the rightful gov ernment are violations of law, and originate no rights which can be recognized b y the courts of the nation whose authority and existence have been alike assaile d. 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 unsuccess ful 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 (howeve r blameless the officials who acted under enemy duress might be), and since Japa n failed, all said acts, particularly those of the Japanese-sponsored court in s aid civil case No. 3012, "are violations of law, and originate no rights which c an be recognized by the courts of the nation whose authority and existence have been alike assailed", quoting the language of the court in Shortridge vs. Macon, cited by Mr. Justice Field in Williams vs. Bruffy, supra (24 Law. ed., 718). II (a) The government styled as, first, the "Philippine Executive Commission" and l ater as the Republic of the Philippines", established here by the Commander in C hief of the Imperial Japanese Forces or by the his order was not a de facto gove rnment--the so-called Court of First Instance of Manila was not a de facto court and the who presided it was not a de facto judge; (b) The rules of International Law regarding the establishment of a de facto gov ernment 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 therei n 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, u nder the heading "Declaration of Principles", renounces war as an instrument of national policy. This renunciation of war as an instruments of national policy f ollows an equal renunciation in the Briand-Kellog Pact. The rules of Internation al Law , cited in support of the power or right of a belligerent army of occupat ion 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 conv inced, at least the governments of the United States and France, that they shoul d thereafter renounce war as an instrument of national policy, and they conseque ntly subscribed the Briand-Kellog Pact. Those horrors and devastations were incr eased a hundred fold, if not more, in this second World War, but even before thi

s war occurred, our own people, through our Constitutional delegates, who framed the Commonwealth Constitution also adopted the same doctrine, and embodied an e xpress 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 C onstitution adopts the generally accepted principles of International Law as a p art of the law of the Nation. But, of course, this adoption is exclusive of thos e principles of International Law which might involve recognition of war as an i nstrument of national policy. It is plain that on the side of the Allies, the pr esent war is purely defensive. When Japan started said war, treacherously and wi thout previous declaration, and attacked Pearl Harbor and the Philippines on tho se 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 Const itution, the United States and the Commonwealth Government could not possibly ha ve recognized in Japan any right, as against them, to employ that war as an inst rument 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 late r 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 questi on that the United States and the Commonwealth Governments were free to refuse t o be bound by those rules when they made their respective renunciations above re ferred to. Indeed, all the United Nations have exercised this free right in thei r Charter recently signed at San Francisco. As necessary consequence of this, those rules of International Law were no longe r applicable to the Philippines and to the United States at the time of the Japa nese invasion as a corollary, it follows that we have no legal foundation on whi ch to base the proposition that the acts of that Japanese-sponsored government i n the Philippines were valid and binding. Moreover, I am of opinion, that althou gh 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 Commonwe alth Constitution. (Ordinance appended to the Constitution.) And our territory w as at the time of the Japanese invasion not a territory of the United States, wi thin the meaning of the laws of war governing war-like operations on enemy terri tory. Our territory is significantly called "The National Territory" in Article I of our Constitution and this bears the stamps of express approval of the Unite d States Government. The Philippines has been recognized and admitted as a membe r of the United Nations. We, therefore, had our own national and territorial ide ntity previous to that invasion. Our nation was not at war with the Filipinos. A nd line with this, the Japanese army, in time, released Filipino war prisoners c aptured 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 w e considered them as our friends who will join us has hand-in-hand in the establ ishment 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 fol lowing principles from Lawrence, International Law (7th ed.), p. 603, are pertin ent: The Duties of Belligerent States Towards Neutral States. . . . To refrain from c arrying on hostilities within neutral territory. We have already seen that, thou gh 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 operat ions to be carried on in neutral territory . . . would bring down upon itself th e reprobation of civilized mankind. Hostilities may be carried on in the territo

ry 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 provi sional government, the belligerent had the right to invade or occupy the territo ry 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 Amer ican Forces in Leyte, on October 20, 1944, characterized Japan's invasion and oc cupation of the Philippines as "the barbarous, unprovoked and treacherous attack upon the Philippines," and he announced the American people's "firm determinati on 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 provinsio nal 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, unpro voked and treacherous attack," the meager and almost untrained forces of the Phi lippine Army had been inducted into the American Army, did not change the neutra l status of the Philippines. That military measure had been adopted for purely d efensive 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 t o 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 sole mn promises of assistance made before the war by a neutral to a nation which lat er becomes a belligerent, would not change the status of the neutral even if suc h promises were carried out, so long as they were made for purely defensive purp oses. In the words of Vattel "when a sovereign furnishes the succor due in virtu e of a former defensive alliance, he does not associate himself in the war. Ther efore he may fulfill his engagements and yet preserve an exact neutrality." (Law rence, 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 patrioti sm, bravery, and heroism to fight in defense of the sacredness of their land, th e sanctity of their homes, and the honor and dignity of their government by givi ng validity, in whatever limited measure, to the lawless acts of the ruthless en emy who thus overran their country, and robbed them of the tranquility and happi ness 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 In stance 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 an d a wrongful invasion of occupation, would be to equalize right and wrong, uphol d 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 se em clearly to follow that its "Court of First Instance of Manila" was not a de f acto 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 demo nstrated. As said by President Osmea, in replying to the speech of General of the Army MacA rthur when the latter turned over to him the full powers and responsibilities of the Commonwealth Government, on February 27, 1945:

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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 itsel f 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 schoo l teacher, from the volunteer guard to the women's auxilliary service units, fro m the loyal local official to the barrio folk each and every one of those contri buted his share in the great crusade for liberation. The guerrillas knew that without the support of the civilian population, they co uld not survive. Whole town and villages dared enemy reprisal to oppose the hate d 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 accur ate 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 o ver the proceedings in question during the Japanese occupation, firstly, accepte d his appointment under duress; and secondly, acted by virtue of that appointmen t under the same duress. In such circumstances he could not have acted in the bo na fide belief that the new "courts" created by or under the orders of the Japan ese Military Commander in chief had been legally created--among them the "Court of first Instance of Manila," that the Chairman of the "Philippine Executive Com mission" or the President of the "Republic of the Philippines", whoever appointe d him, and conferred upon him a valid title to his office and a legitimate juris diction 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 d uress would necessarily imply that but for the duress exerted upon him by the en emy he would have refused to accept the appointment and to act thereunder. And w hy? Because he must be presumed to know that the office to which he was thus app ointed had been created by the enemy in open defiance of the Commonwealth Consti tution and the laws and regulation promulgated by our Commonwealth Government, a nd 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 U nited Sates and to the Commonwealth Government, and a renunciation of his allegi ance to both. There is no middle ground here. Either the judge acted purely unde r duress, in which case his acts would be null and void; or maliciously in defia nce 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 ch ief and the so-called Constitution of the "Republic of the Philippines," which h ad been adopted in a manner which would shock the conscience of democratic peopl es, and which was designed to supplant the Constitution which had been duly adop ted 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." (Vo l. 1, p. 7, Official Journal of the Japanese Military Administration, cited on p p. 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 recogniz e any efficacy in the proceedings of such an exotic judicial system, wherein the Commander in Chief of the Imperial Japanese Forces possessed the highest judici al jurisdiction?

III The courts of those governments were entirely different from our Commonwealth co urts 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 occup ation." If the courts under the Japanese-sponsored government of the "Republic o f the Philippines" were the same Commonwealth courts that existed here under the Constitution at the time of the Japanese invasion, President Osmea would not be speaking of re-establishing those courts in his aforesaid Executive Order. For s oothe, how could those courts under the "Republic of the Philippines" be the cou rts 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 C onstitution? The jurisdiction of the Commonwealth courts was defined and conferr ed under the Commonwealth Constitution and the pertinent legislation enacted the reunder, 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 Legislat ure 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 appoin ted by the President of the Commonwealth with confirmation by the Commission on Appointments, pursuant to the Commonwealth Constitution. The Chief Justice of th e Supreme Court, under the "Philippine Executive Commission" was appointed by th e 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 appoin ted by the Chairman of the Executive Commission, at first, and later, by the Pre sident of the Republic, of course, without confirmation by the Commission on App ointments under the Commonwealth Constitution. The Chief Justice and Associate J ustices 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 C ommonwealth 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 incap acitated to continue in the discharge of his official duties, his successor was appointed by the Commonwealth President with confirmation by the Commission on A ppointments, and said successor had to swear to support and defend the Commonwea lth Constitution; in the exotic judicial system implanted here by the Japanese, if a Justice or Judge should die or incapacitated, his successor would be appoin ted by the Japanese Commander in Chief, if the dead or incapacitated incumbent s hould be the Chief Justice of the Supreme Court, or otherwise, by the Chairman o f the "Executive Commission" or the President of the "Republic", of course witho ut confirmation by the Commission on Appointments of the Commonwealth Congress, and, of course, without the successor swearing to support and defend the Commonw ealth Constitution. If, as we believe having conclusively shown, the Japanese-sponsored courts were not the same Commonwealth courts, the conclusion is unavoidable that any jurisdi ction possessed by the former and any cases left pending therein, were not and c ould not be automatically transfered to the Commonwealth courts which we re-esta blished 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 appea led to the Court of Appeals. Section 2 of that order simply provides that all ca ses which have been duly appealed to the Court of Appeals shall be transmitted t o the Supreme Court for final decision. The adverb "duly" would indicate that th

e President foresaw the possibility of appeals not having been duly taken. All c ases appealed to the Court of Appeals before the war and the otherwise duly appe aled, would come under the phrase "duly appealed" in this section of the Executi ve Order. But considering the determined and firm attitude of the Commonwealth G overnment towards those Japanese-sponsored governments since the beginning, it w ould seem inconceivable that the President Osmea, in section 2 of Executive Order No. 37, intended to include therein appeals taken to the Japanese-sponsored Cou rt of Appeals, or from the Japanese-sponsored inferior courts. It should be reme mbered 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 w ere 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 govern ments. In the last analysis, in deciding the question of validity or nullity of the pro ceedings 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, ar e to be bound by the acts of the said Japanese-sponsored court and government. T o propound this question is, to my mind, to answer it most decidedly in the nega tive, 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 aff irmative would be nothing short for legalizing the Japanese invasion and occupat ion 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 petition er's contention. In this connection, the respondent judge, in his order of June 6, 1945, complain ed of, has the following to say: It is contended, however, that the judicial system implanted by the Philippine E xecutive Commission and the Republic was the same as that of the Commonwealth pr ior to Japanese occupation; that the laws administered and enforced by said cour ts during the existence of said regime were the same laws on the statute books o f 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 t he Japanese occupation. All this may be true, but other facts are just as stubbo rn and pitiless. One of them is that said courts were of a government alien to t he Commonwealth Government. The laws they enforced were, true enough, laws of th e Commonwealth prior to Japanese occupation, but they had become the laws and th e 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 Phil ippine Executive Commission and the Republic of the Philippines. No amount of ar gument 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 Republ ic "would not depend upon the laws that they "administered and enforced", but up on the authority by virtue of which they acted. If the members of this Court wer e 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 off

icial capacity as the Supreme Court of the Philippines, but merely as lawyers, t heir decision would surely be null and void. And yet, I am firmly of opinion tha t whoever was the "judge" of the Japanese sponsored Court of First Instance of M anila 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 su pposed to have received from that government, did so with no more legal power th an if he had acted as a mere lawyer applying the same laws to the case. If dupli cation of work or effort, or even if confussion, should be alleged to possibly a rise from a declaration of nullity or judicial proceedings had before those Japa nese-sponsored courts, it should suffice to answer that the party so complaining in voluntarily resorting to such courts should be prepared to assume the conseq uences of his voluntary act. On the other hand, his convenience should not be al lowed to visit upon the majority of the inhabitants of this country, the dire co nsequences of a sweeping and wholesale validation of judicial proceedings in tho se courts. Let us set forth a few considerations apropos of this assertion. It i s a fact of general knowledge that during the Japanese occupation of the Philipp ines, the overwhelming majority of our people and other resident inhabitants wer e 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 citi es and towns and at government offices; that the feared Japanese "M. P.'s" or Ke mpeitai's" were a constant terror to them; and lastly, that the greater number w ho 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 consid erable distance from their homes and were, one might say, in constant hiding. Ad d to these circumstances, the fact of the practical absence of transportation fa cilities 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 t and we shall have a fair picture of the practical difficulties which the he few ordinary litigant would in those days have encountered in defending his rights a gainst 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 witnesse s, 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 diffi cult 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. I t 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 recogn ize 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 th an 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, al l necessary safeguards should be provided to avoid that in any particular case t he validation should violate any litigant's constitutional right to his day in c ourt, within the full meaning of the phrase, or any other constitutional or stat utory 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 g overnments in the Philippines. I think, this aspect of the question has been und uly 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 specia l jurisdiction for themselves, which is a legislative function, and as the situa tion demands such new or special jurisdiction, let the legislature act in the pr emises. For instance, the Congress may enact a law conferring a special jurisdic tion upon the courts of its selection, whereby said courts may, after hearing al l the parties interested, and taking all the necessary safeguards, so that, a pa rty's day in court or other constitutional or statutory right under the Commonwe alth Government should not be prejudiced by any of said acts, processes or proce

edings, particullarly, those in Japanese-sponsored courts, and subject to such o ther conditions as the special law may provide, validate the corresponding acts, processes or proceedings. This, to my mind, would be more conducive to a maximu m of benefit and a minimum of prejudice to the inhabitants of this country, rath er than the procedure favored by the majority. Finally, let us not equalize the conditions then prevailing in Manila to that pr evailing in the provinces, where the greater number of the people where then liv ing outside the towns, in the farms and the hills. These people constitute the g reat majority of the eighteen million Filipinos. To them the semblance of an adm inistration of justice which Japanese allowed, was practically unknown. But they constituted the majority of loyal citizens to whom President Roosevelt's messag e of October 23, 1943 refers. They the majority of our people had an unshaken fa ith in the arrival of American aid here and the final triumph of the Allied caus e. They were willing to wait for the restoration of their rightful government, w ith its courts and other institutions, for the settlement of their differences. May in their common hardship and sufferings under yoke of foreign oppression, th ey had not much time to think of such differences, if they did not utterly forge t 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 wen t 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 t he courts or other departments of the puppet government. It was maintained at th e point of the bayonet by the Japanese army, and in their own unique fashion.

Footnotes 1 Resolution on motion for reconsideration, see p. 371, post. G.R. No. L-21049 December 22, 1923 THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee, vs. ISAAC PEREZ, defendant-appellant. Mario Guaria for appellant. Attorney-General Villa Real for appellee.

MALCOLM, J.: Isaac Perez, the municipal secretary of Pilar, Sorsogon, and Fortunato Lodovice, a citizen of that municipality, happening to meet on the morning of April 1, 19 92, in the presidencia of Pilar, they became engaged in a discussion regarding t he administration of Governor-General Wood, which resulted in Perez shouting a n umber of times: "The Filipinos, like myself, must use bolos for cutting off Wood 's head for having recommended a bad thing for the Filipinos, for he has killed our independence." Charged in the Court of First Instance of Sorsogon with a vio lation of article 256 of the Penal Code having to do with contempt of ministers of the Crown or other persons in authority, and convicted thereof, Perez has app ealed the case to this court. The question presented for decision is, What crime , if any, did the accused commit? A logical point of departure is the information presented in this case. It reads in translation as follows:

That on or about April 1, 1922, in the municipality of Pilar, Province of Sorsog on, Philippine Islands, the said accused, Isaac Perez, while holding a discussio n with several persons on political matters, did criminally, unlawfully and wilf ully and with knowledge that Honorable Leonard Wood was the Governor-General of the Philippine Islands and in the discharge of his functions as such authority, insult by word, without his presence, said Governor-General, uttering in a loud voice and in the presence of many persons, and in a public place, the following phrases: "Asin an manga filipinos na caparejo co, maninigong gumamit nin sundang asin haleon an payo ni Wood huli can saiyang recomendacion sa pag raot con Filip inas," which in English, is as follows: "And the Filipinos, like myself, must us e bolos for cutting off Wood's head for having recommended a bad thing for the P hilippines. Contrary to article 256 of the Penal Code. At the trial of the case, two witnesses were called on behalf of the prosecution and three witnesses on behalf of the defense. According to the first witness fo r the Government, Juan Lumbao, the municipal president of Pilar, what Perez said on the occasion in question was this: "The Filipinos, like myself, should get a bolo and cut off the head of GovernorGeneral Wood, because he has recommended a bad administration in these Islands a nd has not made a good recommendation; on the contrary, he has assassinated the independence of the Philippines and for this reason, we have not obtained indepe ndence and the head of that Governor-General must be cut off." Higinio J. Angust ia, justice of the peace of Pilar, in a written statement, and Gregorio Cresenci o, another witness for the prosecution, corroborated the testimony of the first witness. Cresencio understood that Perez invited the Filipinos including himself to get their bolos and cut off the head of Governor-General Wood and throw it i nto the sea. The witnesses for the defense did not deny that an altercation took place on the morning of April 1, 1922, in which the accused participated. But they endeavore d to explain that the discussion was between Perez and one Severo Madrid, the la tter maintaining that the fault was due to the Nacionalista Party, while Perez a rgued that the Governor-General was to blame. The accused testified that the dis cussion was held in a peaceful manner, and that what he wished to say was that t he Governor-General should be removed and substituted by another. On the witness stand, he stated that his words were the following: "We are but blaming the Nac ionalista Party which is in power but do not take into account that above the re presentatives there is Governor-General Wood who controls everything, and I told him that the day on which the Democrats may kill that Governor-General, then we , the Filipinos will install the government we like whether you Democratas want to pay or not to pay taxes." The trial judge found as a fact, and we think with abundant reason, that it had been proved beyond a reasonable doubt that the accused made use of the language stated in the beginning of this decision and set out in the information. The que stion of fact thus settled, the question of law recurs as to the crime of which the accused should be convicted. It should be recalled that the fiscal named, in the information, article 256 of the Penal Code as having been infringed and the trial judge so found in his deci sion. The first error assigned by counsel for the appellant is addressed to this conclusion of the lower court and is to the effect that article 256 of the Pena l Code is no longer in force. In the case of United States vs. Helbig ([1920], R. G. No. 14705 1), the accused was charged with having uttered the following language: "To hell with the Presi

dent of the United States and his proclamation!" Mr. Helbig was prosecuted under article 256, and though the case was eventually sent back to the court of origi n for a new trial, the appellate court by majority vote held as a question of la w that article 256 is still in force. In the case of People vs. Perfecto ([1922], 43 Phil., 887), the accused was char ged with having published an article reflecting on the Philippine Senate and its members in violation of article 256 of the Penal Code. In this court, Mr. Perfe cto was acquitted by unanimous vote, with three members of the court holding tha t article 256 was abrogated completely by the change from Spanish to American so vereignty over the Philippines, and with six members holding that the Libel Law had the effect of repealing so much of article 256 as relates to written defamat ion, abuse, or insult, and that under the information and the facts, the defenda nt was neither guilty of a violation of article 256 of the Penal Code nor of the libel Law. In the course of the main opinion in the Perfecto case, is found thi s significant sentence: "Act No. 292 of the Philippine Commission, the Treason a nd Sedition Law, may also have affected article 256, but as to this point, it is not necessary to make a pronouncement." It may therefore be taken as settled doctrine, to which those of us who retain a contrary opinion must bow with as good grace as we can muster, that until other wise decided by higher authority, so much of article 256 of the Penal Code as do es not relate to ministers of the Crown or to writings coming under the Libel La w, exist and must be enforced. To which proposition, can properly be appended a corollary, namely: Seditious words, speeches, or libels, constitute a violation of Act No. 292, the Treason and Sedition Law, and to this extent, both the Penal Code and the Libel Law are modified. Accepting the above statements relative to the continuance and status of article 256 of the Penal Code, it is our opinion that the law infringed in this instanc e is not this article but rather a portion of the Treason and Sedition Law. In o ther words, as will later appear, we think that the words of the accused did not so much tend to defame, abuse, or insult, a person in authority, as they did to raise a disturbance in the community. In criminal law, there are a variety of offenses which are not directed primaril y against individuals, but rather against the existence of the State, the author ity of the Government, or the general public peace. The offenses created and def ined in Act No. 292 are distinctly of this character. Among them is sedition, wh ich is the raising of commotions or disturbances in the State. It is a revolt ag ainst legitimate authority. Though the ultimate object of sedition is a violatio n of the public peace or at least such a course of measures as evidently engende rs it, yet it does not aim at direct and open violence against the laws, or the subversion of the Constitution. (2 Bouvier's Law Dictionary, 974; U.S. vs. Abad [1902], 1 Phil., 437; People vs. Cabrera [1922], 43 Phil., 64.) It is of course fundamentally true that the provisions of Act No. 292 must not b e interpreted so as to abridge the freedom of speech and the right of the people peaceably to assemble and petition the Government for redress of grievances. Cr iticism is permitted to penetrate even to the foundations of Government. Critici sm, no matter how severe, on the Executive, the Legislature, and the Judiciary, is within the range of liberty of speech, unless the intention and effect be sed itious. But when the intention and effect of the act is seditious, the constitut ional guaranties of freedom of speech and press and of assembly and petition mus t yield to punitive measures designed to maintain the prestige of constituted au thority, the supremacy of the constitution and the laws, and the existence of th e State. (III Wharton's Criminal Law, pp. 2127 et seq.; U.S. vs. Apurado [1907], 7 Phil., 422; People vs. Perfecto, supra.) Here, the person maligned by the accused is the Chief Executive of the Philippin

e Islands. His official position, like the Presidency of the United States and o ther high offices, under a democratic form of government, instead, of affording immunity from promiscuous comment, seems rather to invite abusive attacks. But i n this instance, the attack on the Governor-General passes the furthest bounds o f free speech was intended. There is a seditious tendency in the words used, whi ch could easily produce disaffection among the people and a state of feeling inc ompatible with a disposition to remain loyal to the Government and obedient to t he laws. The Governor-General is an executive official appointed by the President of the United States by and with the advice and consent of the Senate of the United Sta tes, and holds in his office at the pleasure of the President. The Organic Act v ests supreme executive power in the Governor-General to be exercised in accordan ce with law. The Governor-General is the representative of executive civil autho rity in the Philippines and of the sovereign power. A seditious attack on the Go vernor-General is an attack on the rights of the Filipino people and on American sovereignty. (Concepcion vs. Paredes [1921], 42 Phil., 599; U.S. vs. Dorr [1903 ], 2 Phil., 332.) Section 8 of Act No. 292 of the Philippine Commission, as amended by Act No. 169 2, appears to have been placed on the statute books exactly to meet such a situa tion. This section reads as follows: Every person who shall utter seditious words or speeches, or who shall write, pu blish or circulate scurrilous libels against the Government of the United States or against the Government of the Philippine Islands, or who shall print, write, publish utter or make any statement, or speech, or do any act which tends to di sturb or obstruct any lawful officer in executing his office or in performing hi s duty, or which tends to instigate others to cabal or meet together for unlawfu l purposes, or which suggests or incites rebellious conspiracies or which tends to stir up the people against the lawful authorities, or which tends to disturb the peace of the community or the safety or order of the Government, or who shal l knowingly conceal such evil practices from the constituted authorities, shall be punished by a fine not exceeding two thousand dollars United States currency or by imprisonment not exceeding two years, or both, in the discretion of the co urt. In the words of the law, Perez has uttered seditious words. He has made a statem ent and done an act which tended to instigate others to cabal or meet together f or unlawful purposes. He has made a statement and done an act which suggested an d incited rebellious conspiracies. He has made a statement and done an act which tended to stir up the people against the lawful authorities. He has made a stat ement and done an act which tended to disturb the peace of the community and the safety or order of the Government. All of these various tendencies can be ascri bed to the action of Perez and may be characterized as penalized by section 8 of Act No. 292 as amended. A judgment and sentence convicting the accused of a violation of section 8 of Ac t No. 292 as amended, is, in effect, responsive to, and based upon, the offense with which the defendant is charged. The designation of the crime by the fiscal is not conclusive. The crime of which the defendant stands charged is that descr ibed by the facts stated in the information. In accordance with our settled rule , an accused may be found guilty and convicted of a graver offense than that des ignated in the information, if such graver offense is included or described in t he body of the information, and is afterwards justified by the proof presented d uring the trial. (Guevarra's Code of Criminal Procedure, p. 9; De Joya's Code of Criminal Procedure, p. 9.) The penalty meted out by the trial court falls within the limits provided by the Treason and Sedition Law, and will, we think, sufficiently punish the accused.

That we have given more attention to this case than it deserves, may be possible . Our course is justified when it is recalled that only last year, Mr. Chief Jus tice Taft of the United States Supreme Court, in speaking of an outrageous libel on the Governor of the Porto Rico, observed: "A reading of the two articles rem oves the slightest doubt that they go far beyond the "exuberant expressions of m eridional speech," to use the expression of this court in a similar case in Gand ia vs. Pettingill (222 U.S. , 452, 456). Indeed they are so excessive and outrag eous in their character that they suggest the query whether their superlative vi lification has not overleapt itself and become unconsciously humorous." (Balzac vs. Porto Rico [1922], 258 U.S., 298.) While our own sense of humor is not entir ely blunted, we nevertheless entertain the conviction that the courts should be the first to stamp out the embers of insurrection. The fugitive flame of disloya lty, lighted by an irresponsible individual, must be dealt with firmly before it endangers the general public peace. The result is to agree with the trial Judge in his findings of fact, and on thes e facts to convict the accused of a violation of section 8 of Act No. 292 as ame nded. With the modification thus indicated, judgment is affirmed, it being under stood that, in accordance with the sentence of the lower court, the defendant an d appellant shall suffer 2 months and 1 day's imprisonment and pay the costs. So ordered. Street, Ostrand, Johns and Romualdez, JJ., concur.

Separate Opinions

JOHNSON, J., concurring: I agree with the opinion of Mr. Justice Villamor. I cannot give assent to a doct rine which permits a complaint to be presented upon one theory and the trial to be carried through upon that theory and then to condemn the defendant upon a the ory which he nor the prosecution ever dreamed of. VILLAMOR, J., concurring and dissenting: I agree in that the accused should be sentenced to suffer two months and one day of arresto mayor with costs, as imposed by the court a quo, under the provision s of article 256 of the Penal Code, but not under section 8 of Act No. 292. The accused, in my opinion, should not be convicted of the crime of sedition because there is no allegation in the complaint nor proof in the record, showing that w hen the accused uttered the words that gave rise to these proceedings, he had th e intention of inciting others to gather for an illicit purpose, or to incite an y conspiracy or rebellion, or to disturb the peace of the community or the safet y and order of the Government which are the acts penalized by section 8 of Act N o. 292. On the contrary, having due regard to the place and time when the discus sion arose between Lodovice and the accused, the political rivalry between them and the difference of opinion that they entertained regarding the administration of the Governor-General, the Honorable Leonard Wood, it would appear evident th at the accused expressed himself in biting and poignant language, unbecoming and improper of a law abiding citizen and highly detrimental and insulting to the a uthority of the Governor-General which is the thing prohibited and punished by a

rticle 256 of the Penal Code. Avancea and Johnson, JJ., concurs. A.M. No. 133-J May 31, 1982 BERNARDITA R. MACARIOLA, complainant, vs. HONORABLE ELIAS B. ASUNCION, Judge of the Court of First Instance of Leyte, resp ondent.

MAKASIAR, J: In a verified complaint dated August 6, 1968 Bernardita R. Macariola charged res pondent Judge Elias B. Asuncion of the Court of First Instance of Leyte, now Ass ociate Justice of the Court of Appeals, with "acts unbecoming a judge." The factual setting of the case is stated in the report dated May 27, 1971 of th en Associate Justice Cecilia Muoz Palma of the Court of Appeals now retired Assoc iate Justice of the Supreme Court, to whom this case was referred on October 28, 1968 for investigation, thus: Civil Case No. 3010 of the Court of First Instance of Leyte was a complaint for partition filed by Sinforosa R. Bales, Luz R. Bakunawa, Anacorita Reyes, Ruperto Reyes, Adela Reyes, and Priscilla Reyes, plaintiffs, against Bernardita R. Maca riola, defendant, concerning the properties left by the deceased Francisco Reyes , the common father of the plaintiff and defendant. In her defenses to the complaint for partition, Mrs. Macariola alleged among oth er things that; a) plaintiff Sinforosa R. Bales was not a daughter of the deceas ed Francisco Reyes; b) the only legal heirs of the deceased were defendant Macar iola, she being the only offspring of the first marriage of Francisco Reyes with Felisa Espiras, and the remaining plaintiffs who were the children of the decea sed by his second marriage with Irene Ondez; c) the properties left by the decea sed were all the conjugal properties of the latter and his first wife, Felisa Es piras, and no properties were acquired by the deceased during his second marriag e; d) if there was any partition to be made, those conjugal properties should fi rst be partitioned into two parts, and one part is to be adjudicated solely to d efendant it being the share of the latter's deceased mother, Felisa Espiras, and the other half which is the share of the deceased Francisco Reyes was to be div ided equally among his children by his two marriages. On June 8, 1963, a decision was rendered by respondent Judge Asuncion in Civil C ase 3010, the dispositive portion of which reads: IN VIEW OF THE FOREGOING CONSIDERATIONS, the Court, upon a preponderance of evid ence, finds and so holds, and hereby renders judgment (1) Declaring the plaintif fs Luz R. Bakunawa, Anacorita Reyes, Ruperto Reyes, Adela Reyes and Priscilla Re yes as the only children legitimated by the subsequent marriage of Francisco Rey es Diaz to Irene Ondez; (2) Declaring the plaintiff Sinforosa R. Bales to have b een an illegitimate child of Francisco Reyes Diaz; (3) Declaring Lots Nos. 4474, 4475, 4892, 5265, 4803, 4581, 4506 and 1/4 of Lot 1145 as belonging to the conj ugal partnership of the spouses Francisco Reyes Diaz and Felisa Espiras; (4) Dec laring Lot No. 2304 and 1/4 of Lot No. 3416 as belonging to the spouses Francisc o Reyes Diaz and Irene Ondez in common partnership; (5) Declaring that 1/2 of Lo t No. 1184 as belonging exclusively to the deceased Francisco Reyes Diaz; (6) De claring the defendant Bernardita R. Macariola, being the only legal and forced h

eir of her mother Felisa Espiras, as the exclusive owner of one-half of each of Lots Nos. 4474, 4475, 4892, 5265, 4803, 4581, 4506; and the remaining one-half ( 1/2) of each of said Lots Nos. 4474, 4475, 4892, 5265, 4803, 4581, 4506 and onehalf (1/2) of one-fourth (1/4) of Lot No. 1154 as belonging to the estate of Fra ncisco Reyes Diaz; (7) Declaring Irene Ondez to be the exclusive owner of one-ha lf (1/2) of Lot No. 2304 and one-half (1/2) of one-fourth (1/4) of Lot No. 3416; the remaining one-half (1/2) of Lot 2304 and the remaining one-half (1/2) of on e-fourth (1/4) of Lot No. 3416 as belonging to the estate of Francisco Reyes Dia z; (8) Directing the division or partition of the estate of Francisco Reyes Diaz in such a manner as to give or grant to Irene Ondez, as surviving widow of Fran cisco Reyes Diaz, a hereditary share of. one-twelfth (1/12) of the whole estate of Francisco Reyes Diaz (Art. 996 in relation to Art. 892, par 2, New Civil Code ), and the remaining portion of the estate to be divided among the plaintiffs Si nforosa R. Bales, Luz R. Bakunawa, Anacorita Reyes, Ruperto Reyes, Adela Reyes, Priscilla Reyes and defendant Bernardita R. Macariola, in such a way that the ex tent of the total share of plaintiff Sinforosa R. Bales in the hereditary estate shall not exceed the equivalent of two-fifth (2/5) of the total share of any or each of the other plaintiffs and the defendant (Art. 983, New Civil Code), each of the latter to receive equal shares from the hereditary estate, (Ramirez vs. Bautista, 14 Phil. 528; Diancin vs. Bishop of Jaro, O.G. [3rd Ed.] p. 33); (9) D irecting the parties, within thirty days after this judgment shall have become f inal to submit to this court, for approval a project of partition of the heredit ary estate in the proportion above indicated, and in such manner as the parties may, by agreement, deemed convenient and equitable to them taking into considera tion the location, kind, quality, nature and value of the properties involved; ( 10) Directing the plaintiff Sinforosa R. Bales and defendant Bernardita R. Macar iola to pay the costs of this suit, in the proportion of one-third (1/3) by the first named and two-thirds (2/3) by the second named; and (I 1) Dismissing all o ther claims of the parties [pp 27-29 of Exh. C]. The decision in civil case 3010 became final for lack of an appeal, and on Octob er 16, 1963, a project of partition was submitted to Judge Asuncion which is mar ked Exh. A. Notwithstanding the fact that the project of partition was not signe d by the parties themselves but only by the respective counsel of plaintiffs and defendant, Judge Asuncion approved it in his Order dated October 23, 1963, whic h for convenience is quoted hereunder in full: The parties, through their respective counsels, presented to this Court for appr oval the following project of partition: COMES NOW, the plaintiffs and the defendant in the above-entitled case, to this Honorable Court respectfully submit the following Project of Partition: l. The whole of Lots Nos. 1154, 2304 and 4506 shall belong exclusively to Bernar dita Reyes Macariola; 2. A portion of Lot No. 3416 consisting of 2,373.49 square meters along the east ern part of the lot shall be awarded likewise to Bernardita R. Macariola; 3. Lots Nos. 4803, 4892 and 5265 shall be awarded to Sinforosa Reyes Bales; 4. A portion of Lot No. 3416 consisting of 1,834.55 square meters along the west ern part of the lot shall likewise be awarded to Sinforosa Reyes-Bales; 5. Lots Nos. 4474 and 4475 shall be divided equally among Luz Reyes Bakunawa, An acorita Reyes, Ruperto Reyes, Adela Reyes and Priscilla Reyes in equal shares; 6. Lot No. 1184 and the remaining portion of Lot No. 3416 after taking the porti ons awarded under item (2) and (4) above shall be awarded to Luz Reyes Bakunawa, Anacorita Reyes, Ruperto Reyes, Adela Reyes and Priscilla Reyes in equal shares

, provided, however that the remaining portion of Lot No. 3416 shall belong excl usively to Priscilla Reyes. WHEREFORE, it is respectfully prayed that the Project of Partition indicated abo ve which is made in accordance with the decision of the Honorable Court be appro ved. Tacloban City, October 16, 1963. (SGD) BONIFACIO RAMO Atty. for the Defendant Tacloban City (SGD) ZOTICO A. TOLETE Atty. for the Plaintiff Tacloban City While the Court thought it more desirable for all the parties to have signed thi s Project of Partition, nevertheless, upon assurance of both counsels of the res pective parties to this Court that the Project of Partition, as above- quoted, h ad been made after a conference and agreement of the plaintiffs and the defendan t approving the above Project of Partition, and that both lawyers had represente d to the Court that they are given full authority to sign by themselves the Proj ect of Partition, the Court, therefore, finding the above-quoted Project of Part ition to be in accordance with law, hereby approves the same. The parties, there fore, are directed to execute such papers, documents or instrument sufficient in form and substance for the vesting of the rights, interests and participations which were adjudicated to the respective parties, as outlined in the Project of Partition and the delivery of the respective properties adjudicated to each one in view of said Project of Partition, and to perform such other acts as are lega l and necessary to effectuate the said Project of Partition. SO ORDERED. Given in Tacloban City, this 23rd day of October, 1963. (SGD) ELIAS B. ASUNCION Judge EXH. B. The above Order of October 23, 1963, was amended on November 11, 1963, only for the purpose of giving authority to the Register of Deeds of the Province of Leyt e to issue the corresponding transfer certificates of title to the respective ad judicatees in conformity with the project of partition (see Exh. U). One of the properties mentioned in the project of partition was Lot 1184 or rath er one-half thereof with an area of 15,162.5 sq. meters. This lot, which accordi ng to the decision was the exclusive property of the deceased Francisco Reyes, w as adjudicated in said project of partition to the plaintiffs Luz, Anacorita Rup erto, Adela, and Priscilla all surnamed Reyes in equal shares, and when the proj ect of partition was approved by the trial court the adjudicatees caused Lot 118 4 to be subdivided into five lots denominated as Lot 1184-A to 1184-E inclusive (Exh. V). Lot 1184-D was conveyed to Enriqueta D. Anota, a stenographer in Judge Asuncion' s court (Exhs. F, F-1 and V-1), while Lot 1184-E which had an area of 2,172.5556 sq. meters was sold on July 31, 1964 to Dr. Arcadio Galapon (Exh. 2) who was is sued transfer certificate of title No. 2338 of the Register of Deeds of the city of Tacloban (Exh. 12). On March 6, 1965, Dr. Arcadio Galapon and his wife Sold a portion of Lot 1184-E with an area of around 1,306 sq. meters to Judge Asuncion and his wife, Victoria S. Asuncion (Exh. 11), which particular portion was declared by the latter for taxation purposes (Exh. F).

On August 31, 1966, spouses Asuncion and spouses Galapon conveyed their respecti ve shares and interest in Lot 1184-E to "The Traders Manufacturing and Fishing I ndustries Inc." (Exit 15 & 16). At the time of said sale the stockholders of the corporation were Dominador Arigpa Tan, Humilia Jalandoni Tan, Jaime Arigpa Tan, Judge Asuncion, and the latter's wife, Victoria S. Asuncion, with Judge Asuncio n as the President and Mrs. Asuncion as the secretary (Exhs. E-4 to E-7). The Ar ticles of Incorporation of "The Traders Manufacturing and Fishing Industries, In c." which we shall henceforth refer to as "TRADERS" were registered with the Sec urities and Exchange Commission only on January 9, 1967 (Exh. E) [pp. 378-385, r ec.]. Complainant Bernardita R. Macariola filed on August 9, 1968 the instant complain t dated August 6, 1968 alleging four causes of action, to wit: [1] that responde nt Judge Asuncion violated Article 1491, paragraph 5, of the New Civil Code in a cquiring by purchase a portion of Lot No. 1184-E which was one of those properti es involved in Civil Case No. 3010 decided by him; [2] that he likewise violated Article 14, paragraphs I and 5 of the Code of Commerce, Section 3, paragraph H, of R.A. 3019, otherwise known as the Anti-Graft and Corrupt Practices Act, Sect ion 12, Rule XVIII of the Civil Service Rules, and Canon 25 of the Canons of Jud icial Ethics, by associating himself with the Traders Manufacturing and Fishing Industries, Inc., as a stockholder and a ranking officer while he was a judge of the Court of First Instance of Leyte; [3] that respondent was guilty of coddlin g an impostor and acted in disregard of judicial decorum by closely fraternizing with a certain Dominador Arigpa Tan who openly and publicly advertised himself as a practising attorney when in truth and in fact his name does not appear in t he Rolls of Attorneys and is not a member of the Philippine Bar; and [4] that th ere was a culpable defiance of the law and utter disregard for ethics by respond ent Judge (pp. 1-7, rec.). Respondent Judge Asuncion filed on September 24, 1968 his answer to which a repl y was filed on October 16, 1968 by herein complainant. In Our resolution of Octo ber 28, 1968, We referred this case to then Justice Cecilia Muoz Palma of the Cou rt of Appeals, for investigation, report and recommendation. After hearing, the said Investigating Justice submitted her report dated May 27, 1971 recommending that respondent Judge should be reprimanded or warned in connection with the fir st cause of action alleged in the complaint, and for the second cause of action, respondent should be warned in case of a finding that he is prohibited under th e law to engage in business. On the third and fourth causes of action, Justice P alma recommended that respondent Judge be exonerated. The records also reveal that on or about November 9 or 11, 1968 (pp. 481, 477, r ec.), complainant herein instituted an action before the Court of First Instance of Leyte, entitled "Bernardita R. Macariola, plaintiff, versus Sinforosa R. Bal es, et al., defendants," which was docketed as Civil Case No. 4235, seeking the annulment of the project of partition made pursuant to the decision in Civil Cas e No. 3010 and the two orders issued by respondent Judge approving the same, as well as the partition of the estate and the subsequent conveyances with damages. It appears, however, that some defendants were dropped from the civil case. For one, the case against Dr. Arcadio Galapon was dismissed because he was no longe r a real party in interest when Civil Case No. 4234 was filed, having already co nveyed on March 6, 1965 a portion of lot 1184-E to respondent Judge and on Augus t 31, 1966 the remainder was sold to the Traders Manufacturing and Fishing Indus tries, Inc. Similarly, the case against defendant Victoria Asuncion was dismisse d on the ground that she was no longer a real party in interest at the time the aforesaid Civil Case No. 4234 was filed as the portion of Lot 1184 acquired by h er and respondent Judge from Dr. Arcadio Galapon was already sold on August 31, 1966 to the Traders Manufacturing and Fishing industries, Inc. Likewise, the cas es against defendants Serafin P. Ramento, Catalina Cabus, Ben Barraza Go, Jesus Perez, Traders Manufacturing and Fishing Industries, Inc., Alfredo R. Celestial

and Pilar P. Celestial, Leopoldo Petilla and Remedios Petilla, Salvador Anota an d Enriqueta Anota and Atty. Zotico A. Tolete were dismissed with the conformity of complainant herein, plaintiff therein, and her counsel. On November 2, 1970, Judge Jose D. Nepomuceno of the Court of First Instance of Leyte, who was directed and authorized on June 2, 1969 by the then Secretary (no w Minister) of Justice and now Minister of National Defense Juan Ponce Enrile to hear and decide Civil Case No. 4234, rendered a decision, the dispositive porti on of which reads as follows: A. IN THE CASE AGAINST JUDGE ELIAS B. ASUNCION (1) declaring that only Branch IV of the Court of First Instance of Leyte has ju risdiction to take cognizance of the issue of the legality and validity of the P roject of Partition [Exhibit "B"] and the two Orders [Exhibits "C" and "C- 3"] a pproving the partition; (2) dismissing the complaint against Judge Elias B. Asuncion; (3) adjudging the plaintiff, Mrs. Bernardita R. Macariola to pay defendant Judge Elias B. Asuncion, (a) the sum of FOUR HUNDRED THOUSAND PESOS [P400,000.00] for moral damages; (b) the sum of TWO HUNDRED THOUSAND PESOS [P200,000.001 for exemplary damages; (c) the sum of FIFTY THOUSAND PESOS [P50,000.00] for nominal damages; and (d) he sum of TEN THOUSAND PESOS [PI0,000.00] for Attorney's Fees. B. IN THE CASE AGAINST THE DEFENDANT MARIQUITA VILLASIN, FOR HERSELF AND FOR THE HEIRS OF THE DECEASED GERARDO VILLASIN (1) Dismissing the complaint against the defendants Mariquita Villasin and the h eirs of the deceased Gerardo Villasin; (2) Directing the plaintiff to pay the defendants Mariquita Villasin and the hei rs of Gerardo Villasin the cost of the suit. C. IN THE CASE AGAINST THE DEFENDANT SINFOROSA R. BALES, ET AL., WHO WERE PLAINT IFFS IN CIVIL CASE NO. 3010 (1) Dismissing the complaint against defendants Sinforosa R. Bales, Adela R. Her rer, Priscilla R. Solis, Luz R. Bakunawa, Anacorita R. Eng and Ruperto O. Reyes. D. IN THE CASE AGAINST DEFENDANT BONIFACIO RAMO (1) Dismissing the complaint against Bonifacio Ramo; (2) Directing the plaintiff to pay the defendant Bonifacio Ramo the cost of the suit. SO ORDERED [pp. 531-533, rec.] It is further disclosed by the record that the aforesaid decision was elevated t o the Court of Appeals upon perfection of the appeal on February 22, 1971. I

WE find that there is no merit in the contention of complainant Bernardita R. Ma cariola, under her first cause of action, that respondent Judge Elias B. Asuncio n violated Article 1491, paragraph 5, of the New Civil Code in acquiring by purc hase a portion of Lot No. 1184-E which was one of those properties involved in C ivil Case No. 3010. 'That Article provides: Article 1491. The following persons cannot acquire by purchase, even at a public or judicial action, either in person or through the mediation of another: xxx xxx xxx (5) Justices, judges, prosecuting attorneys, clerks of superior and inferior cou rts, and other officers and employees connected with the administration of justi ce, the property and rights in litigation or levied upon an execution before the court within whose jurisdiction or territory they exercise their respective fun ctions; this prohibition includes the act of acquiring by assignment and shall a pply to lawyers, with respect to the property and rights which may be the object of any litigation in which they may take part by virtue of their profession [em phasis supplied]. The prohibition in the aforesaid Article applies only to the sale or assignment of the property which is the subject of litigation to the persons disqualified t herein. WE have already ruled that "... for the prohibition to operate, the sale or assignment of the property must take place during the pendency of the litiga tion involving the property" (The Director of Lands vs. Ababa et al., 88 SCRA 51 3, 519 [1979], Rosario vda. de Laig vs. Court of Appeals, 86 SCRA 641, 646 [1978 ]). In the case at bar, when the respondent Judge purchased on March 6, 1965 a porti on of Lot 1184-E, the decision in Civil Case No. 3010 which he rendered on June 8, 1963 was already final because none of the parties therein filed an appeal wi thin the reglementary period; hence, the lot in question was no longer subject o f the litigation. Moreover, at the time of the sale on March 6, 1965, respondent 's order dated October 23, 1963 and the amended order dated November 11, 1963 ap proving the October 16, 1963 project of partition made pursuant to the June 8, 1 963 decision, had long become final for there was no appeal from said orders. Furthermore, respondent Judge did not buy the lot in question on March 6, 1965 d irectly from the plaintiffs in Civil Case No. 3010 but from Dr. Arcadio Galapon who earlier purchased on July 31, 1964 Lot 1184-E from three of the plaintiffs, namely, Priscilla Reyes, Adela Reyes, and Luz R. Bakunawa after the finality of the decision in Civil Case No. 3010. It may be recalled that Lot 1184 or more sp ecifically one-half thereof was adjudicated in equal shares to Priscilla Reyes, Adela Reyes, Luz Bakunawa, Ruperto Reyes and Anacorita Reyes in the project of p artition, and the same was subdivided into five lots denominated as Lot 1184-A t o 1184-E. As aforestated, Lot 1184-E was sold on July 31, 1964 to Dr. Galapon fo r which he was issued TCT No. 2338 by the Register of Deeds of Tacloban City, an d on March 6, 1965 he sold a portion of said lot to respondent Judge and his wif e who declared the same for taxation purposes only. The subsequent sale on Augus t 31, 1966 by spouses Asuncion and spouses Galapon of their respective shares an d interest in said Lot 1184-E to the Traders Manufacturing and Fishing Industrie s, Inc., in which respondent was the president and his wife was the secretary, t ook place long after the finality of the decision in Civil Case No. 3010 and of the subsequent two aforesaid orders therein approving the project of partition. While it appears that complainant herein filed on or about November 9 or 11, 196 8 an action before the Court of First Instance of Leyte docketed as Civil Case N o. 4234, seeking to annul the project of partition and the two orders approving the same, as well as the partition of the estate and the subsequent conveyances, the same, however, is of no moment.

The fact remains that respondent Judge purchased on March 6, 1965 a portion of L ot 1184-E from Dr. Arcadio Galapon; hence, after the finality of the decision wh ich he rendered on June 8, 1963 in Civil Case No. 3010 and his two questioned or ders dated October 23, 1963 and November 11, 1963. Therefore, the property was n o longer subject of litigation. The subsequent filing on November 9, or 11, 1968 of Civil Case No. 4234 can no l onger alter, change or affect the aforesaid facts that the questioned sale to re spondent Judge, now Court of Appeals Justice, was effected and consummated long after the finality of the aforesaid decision or orders. Consequently, the sale of a portion of Lot 1184-E to respondent Judge having tak en place over one year after the finality of the decision in Civil Case No. 3010 as well as the two orders approving the project of partition, and not during th e pendency of the litigation, there was no violation of paragraph 5, Article 149 1 of the New Civil Code. It is also argued by complainant herein that the sale on July 31, 1964 of Lot 11 84-E to Dr. Arcadio Galapon by Priscilla Reyes, Adela Reyes and Luz R. Bakunawa was only a mere scheme to conceal the illegal and unethical transfer of said lot to respondent Judge as a consideration for the approval of the project of parti tion. In this connection, We agree with the findings of the Investigating Justic e thus: And so we are now confronted with this all-important question whether or not the acquisition by respondent of a portion of Lot 1184-E and the subsequent transfe r of the whole lot to "TRADERS" of which respondent was the President and his wi fe the Secretary, was intimately related to the Order of respondent approving th e project of partition, Exh. A. Respondent vehemently denies any interest or participation in the transactions b etween the Reyeses and the Galapons concerning Lot 1184-E, and he insists that t here is no evidence whatsoever to show that Dr. Galapon had acted, in the purcha se of Lot 1184-E, in mediation for him and his wife. (See p. 14 of Respondent's Memorandum). xxx xxx xxx On this point, I agree with respondent that there is no evidence in the record s howing that Dr. Arcadio Galapon acted as a mere "dummy" of respondent in acquiri ng Lot 1184-E from the Reyeses. Dr. Galapon appeared to this investigator as a r espectable citizen, credible and sincere, and I believe him when he testified th at he bought Lot 1184-E in good faith and for valuable consideration from the Re yeses without any intervention of, or previous understanding with Judge Asuncion (pp. 391- 394, rec.). On the contention of complainant herein that respondent Judge acted illegally in approving the project of partition although it was not signed by the parties, W e quote with approval the findings of the Investigating Justice, as follows: 1. I agree with complainant that respondent should have required the signature o f the parties more particularly that of Mrs. Macariola on the project of partiti on submitted to him for approval; however, whatever error was committed by respo ndent in that respect was done in good faith as according to Judge Asuncion he w as assured by Atty. Bonifacio Ramo, the counsel of record of Mrs. Macariola, Tha t he was authorized by his client to submit said project of partition, (See Exh. B and tsn p. 24, January 20, 1969). While it is true that such written authorit y if there was any, was not presented by respondent in evidence, nor did Atty. R amo appear to corroborate the statement of respondent, his affidavit being the o

nly one that was presented as respondent's Exh. 10, certain actuations of Mrs. M acariola lead this investigator to believe that she knew the contents of the pro ject of partition, Exh. A, and that she gave her conformity thereto. I refer to the following documents: 1) Exh. 9 Certified true copy of OCT No. 19520 covering Lot 1154 of the Tacloban Cadastral Survey in which the deceased Francisco Reyes holds a "1/4 share" (Exh . 9-a). On tills certificate of title the Order dated November 11, 1963, (Exh. U ) approving the project of partition was duly entered and registered on November 26, 1963 (Exh. 9-D); 2) Exh. 7 Certified copy of a deed of absolute sale executed by Bernardita Reyes Macariola on October 22, 1963, conveying to Dr. Hector Decena the one-fourth sh are of the late Francisco Reyes-Diaz in Lot 1154. In this deed of sale the vende e stated that she was the absolute owner of said one-fourth share, the same havi ng been adjudicated to her as her share in the estate of her father Francisco Re yes Diaz as per decision of the Court of First Instance of Leyte under case No. 3010 (Exh. 7-A). The deed of sale was duly registered and annotated at the back of OCT 19520 on December 3, 1963 (see Exh. 9-e). In connection with the abovementioned documents it is to be noted that in the pr oject of partition dated October 16, 1963, which was approved by respondent on O ctober 23, 1963, followed by an amending Order on November 11, 1963, Lot 1154 or rather 1/4 thereof was adjudicated to Mrs. Macariola. It is this 1/4 share in L ot 1154 which complainant sold to Dr. Decena on October 22, 1963, several days a fter the preparation of the project of partition. Counsel for complainant stresses the view, however, that the latter sold her one -fourth share in Lot 1154 by virtue of the decision in Civil Case 3010 and not b ecause of the project of partition, Exh. A. Such contention is absurd because fr om the decision, Exh. C, it is clear that one-half of one- fourth of Lot 1154 be longed to the estate of Francisco Reyes Diaz while the other half of said one-fo urth was the share of complainant's mother, Felisa Espiras; in other words, the decision did not adjudicate the whole of the one-fourth of Lot 1154 to the herei n complainant (see Exhs. C-3 & C-4). Complainant became the owner of the entire one-fourth of Lot 1154 only by means of the project of partition, Exh. A. Theref ore, if Mrs. Macariola sold Lot 1154 on October 22, 1963, it was for no other re ason than that she was wen aware of the distribution of the properties of her de ceased father as per Exhs. A and B. It is also significant at this point to stat e that Mrs. Macariola admitted during the cross-examination that she went to Tac loban City in connection with the sale of Lot 1154 to Dr. Decena (tsn p. 92, Nov ember 28, 1968) from which we can deduce that she could not have been kept ignor ant of the proceedings in civil case 3010 relative to the project of partition. Complainant also assails the project of partition because according to her the p roperties adjudicated to her were insignificant lots and the least valuable. Com plainant, however, did not present any direct and positive evidence to prove the alleged gross inequalities in the choice and distribution of the real propertie s when she could have easily done so by presenting evidence on the area, locatio n, kind, the assessed and market value of said properties. Without such evidence there is nothing in the record to show that there were inequalities in the dist ribution of the properties of complainant's father (pp. 386389, rec.). Finally, while it is. true that respondent Judge did not violate paragraph 5, Ar ticle 1491 of the New Civil Code in acquiring by purchase a portion of Lot 1184E which was in litigation in his court, it was, however, improper for him to hav e acquired the same. He should be reminded of Canon 3 of the Canons of Judicial Ethics which requires that: "A judge's official conduct should be free from the appearance of impropriety, and his personal behavior, not only upon the bench an d in the performance of judicial duties, but also in his everyday life, should b

e beyond reproach." And as aptly observed by the Investigating Justice: "... it was unwise and indiscreet on the part of respondent to have purchased or acquire d a portion of a piece of property that was or had been in litigation in his cou rt and caused it to be transferred to a corporation of which he and his wife wer e ranking officers at the time of such transfer. One who occupies an exalted pos ition in the judiciary has the duty and responsibility of maintaining the faith and trust of the citizenry in the courts of justice, so that not only must he be truly honest and just, but his actuations must be such as not give cause for do ubt and mistrust in the uprightness of his administration of justice. In this pa rticular case of respondent, he cannot deny that the transactions over Lot 1184E are damaging and render his actuations open to suspicion and distrust. Even if respondent honestly believed that Lot 1184-E was no longer in litigation in his court and that he was purchasing it from a third person and not from the partie s to the litigation, he should nonetheless have refrained from buying it for him self and transferring it to a corporation in which he and his wife were financia lly involved, to avoid possible suspicion that his acquisition was related in on e way or another to his official actuations in civil case 3010. The conduct of r espondent gave cause for the litigants in civil case 3010, the lawyers practisin g in his court, and the public in general to doubt the honesty and fairness of h is actuations and the integrity of our courts of justice" (pp. 395396, rec.). II With respect to the second cause of action, the complainant alleged that respond ent Judge violated paragraphs 1 and 5, Article 14 of the Code of Commerce when h e associated himself with the Traders Manufacturing and Fishing Industries, Inc. as a stockholder and a ranking officer, said corporation having been organized to engage in business. Said Article provides that: Article 14 The following cannot engage in commerce, either in person or by proxy , nor can they hold any office or have any direct, administrative, or financial intervention in commercial or industrial companies within the limits of the dist ricts, provinces, or towns in which they discharge their duties: 1. Justices of the Supreme Court, judges and officials of the department of publ ic prosecution in active service. This provision shall not be applicable to mayo rs, municipal judges, and municipal prosecuting attorneys nor to those who by ch ance are temporarily discharging the functions of judge or prosecuting attorney. xxx xxx xxx 5. Those who by virtue of laws or special provisions may not engage in commerce in a determinate territory. It is Our considered view that although the aforestated provision is incorporate d in the Code of Commerce which is part of the commercial laws of the Philippine s, it, however, partakes of the nature of a political law as it regulates the re lationship between the government and certain public officers and employees, lik e justices and judges. Political Law has been defined as that branch of public law which deals with the organization and operation of the governmental organs of the State and define t he relations of the state with the inhabitants of its territory (People vs. Perf ecto, 43 Phil. 887, 897 [1922]). It may be recalled that political law embraces constitutional law, law of public corporations, administrative law including the law on public officers and elections. Specifically, Article 14 of the Code of C ommerce partakes more of the nature of an administrative law because it regulate s the conduct of certain public officers and employees with respect to engaging in business: hence, political in essence.

It is significant to note that the present Code of Commerce is the Spanish Code of Commerce of 1885, with some modifications made by the "Commission de Codifica cion de las Provincias de Ultramar," which was extended to the Philippines by th e Royal Decree of August 6, 1888, and took effect as law in this jurisdiction on December 1, 1888. Upon the transfer of sovereignty from Spain to the United States and later on fr om the United States to the Republic of the Philippines, Article 14 of this Code of Commerce must be deemed to have been abrogated because where there is change of sovereignty, the political laws of the former sovereign, whether compatible or not with those of the new sovereign, are automatically abrogated, unless they are expressly re-enacted by affirmative act of the new sovereign. Thus, We held in Roa vs. Collector of Customs (23 Phil. 315, 330, 311 [1912]) th at: By well-settled public law, upon the cession of territory by one nation to anoth er, either following a conquest or otherwise, ... those laws which are political in their nature and pertain to the prerogatives of the former government immedi ately cease upon the transfer of sovereignty. (Opinion, Atty. Gen., July 10, 189 9). While municipal laws of the newly acquired territory not in conflict with the, l aws of the new sovereign continue in force without the express assent or affirma tive act of the conqueror, the political laws do not. (Halleck's Int. Law, chap. 34, par. 14). However, such political laws of the prior sovereignty as are not in conflict with the constitution or institutions of the new sovereign, may be c ontinued in force if the conqueror shall so declare by affirmative act of the co mmander-in-chief during the war, or by Congress in time of peace. (Ely's Adminis trator vs. United States, 171 U.S. 220, 43 L. Ed. 142). In the case of American and Ocean Ins. Cos. vs. 356 Bales of Cotton (1 Pet. [26 U.S.] 511, 542, 7 L. Ed. 242), Chief Justice Marshall said: On such transfer (by cession) of territory, it has never been held that the rela tions of the inhabitants with each other undergo any change. Their relations wit h their former sovereign are dissolved, and new relations are created between th em and the government which has acquired their territory. The same act which tra nsfers their country, transfers the allegiance of those who remain in it; and th e law which may be denominated political, is necessarily changed, although that which regulates the intercourse and general conduct of individuals, remains in f orce, until altered by the newly- created power of the State. Likewise, in People vs. Perfecto (43 Phil. 887, 897 [1922]), this Court stated t hat: "It is a general principle of the public law that on acquisition of territo ry the previous political relations of the ceded region are totally abrogated. " There appears no enabling or affirmative act that continued the effectivity of t he aforestated provision of the Code of Commerce after the change of sovereignty from Spain to the United States and then to the Republic of the Philippines. Co nsequently, Article 14 of the Code of Commerce has no legal and binding effect a nd cannot apply to the respondent, then Judge of the Court of First Instance, no w Associate Justice of the Court of Appeals. It is also argued by complainant herein that respondent Judge violated paragraph H, Section 3 of Republic Act No. 3019, otherwise known as the Anti-Graft and Co rrupt Practices Act, which provides that: Sec. 3. Corrupt practices of public officers. In addition to acts or omissions o

f public officers already penalized by existing law, the following shall constit ute corrupt practices of any public officer and are hereby declared to be unlawf ul: xxx xxx xxx (h) Directly or indirectly having financial or pecuniary interest in any busines s, contract or transaction in connection with which he intervenes or takes part in his official capacity, or in which he is prohibited by the Constitution or by any Iaw from having any interest. Respondent Judge cannot be held liable under the aforestated paragraph because t here is no showing that respondent participated or intervened in his official ca pacity in the business or transactions of the Traders Manufacturing and Fishing Industries, Inc. In the case at bar, the business of the corporation in which re spondent participated has obviously no relation or connection with his judicial office. The business of said corporation is not that kind where respondent inter venes or takes part in his capacity as Judge of the Court of First Instance. As was held in one case involving the application of Article 216 of the Revised Pen al Code which has a similar prohibition on public officers against directly or i ndirectly becoming interested in any contract or business in which it is his off icial duty to intervene, "(I)t is not enough to be a public official to be subje ct to this crime; it is necessary that by reason of his office, he has to interv ene in said contracts or transactions; and, hence, the official who intervenes i n contracts or transactions which have no relation to his office cannot commit t his crime.' (People vs. Meneses, C.A. 40 O.G. 11th Supp. 134, cited by Justice R amon C. Aquino; Revised Penal Code, p. 1174, Vol. 11 [1976]). It does not appear also from the records that the aforesaid corporation gained a ny undue advantage in its business operations by reason of respondent's financia l involvement in it, or that the corporation benefited in one way or another in any case filed by or against it in court. It is undisputed that there was no cas e filed in the different branches of the Court of First Instance of Leyte in whi ch the corporation was either party plaintiff or defendant except Civil Case No. 4234 entitled "Bernardita R. Macariola, plaintiff, versus Sinforosa O. Bales, e t al.," wherein the complainant herein sought to recover Lot 1184-E from the afo resaid corporation. It must be noted, however, that Civil Case No. 4234 was file d only on November 9 or 11, 1968 and decided on November 2, 1970 by CFI Judge Jo se D. Nepomuceno when respondent Judge was no longer connected with the corporat ion, having disposed of his interest therein on January 31, 1967. Furthermore, respondent is not liable under the same paragraph because there is no provision in both the 1935 and 1973 Constitutions of the Philippines, nor is there an existing law expressly prohibiting members of the Judiciary from engagi ng or having interest in any lawful business. It may be pointed out that Republic Act No. 296, as amended, also known as the J udiciary Act of 1948, does not contain any prohibition to that effect. As a matt er of fact, under Section 77 of said law, municipal judges may engage in teachin g or other vocation not involving the practice of law after office hours but wit h the permission of the district judge concerned. Likewise, Article 14 of the Code of Commerce which prohibits judges from engagin g in commerce is, as heretofore stated, deemed abrogated automatically upon the transfer of sovereignty from Spain to America, because it is political in nature . Moreover, the prohibition in paragraph 5, Article 1491 of the New Civil Code aga inst the purchase by judges of a property in litigation before the court within whose jurisdiction they perform their duties, cannot apply to respondent Judge b

ecause the sale of the lot in question to him took place after the finality of h is decision in Civil Case No. 3010 as well as his two orders approving the proje ct of partition; hence, the property was no longer subject of litigation. In addition, although Section 12, Rule XVIII of the Civil Service Rules made pur suant to the Civil Service Act of 1959 prohibits an officer or employee in the c ivil service from engaging in any private business, vocation, or profession or b e connected with any commercial, credit, agricultural or industrial undertaking without a written permission from the head of department, the same, however, may not fall within the purview of paragraph h, Section 3 of the Anti-Graft and Cor rupt Practices Act because the last portion of said paragraph speaks of a prohib ition by the Constitution or law on any public officer from having any interest in any business and not by a mere administrative rule or regulation. Thus, a vio lation of the aforesaid rule by any officer or employee in the civil service, th at is, engaging in private business without a written permission from the Depart ment Head may not constitute graft and corrupt practice as defined by law. On the contention of complainant that respondent Judge violated Section 12, Rule XVIII of the Civil Service Rules, We hold that the Civil Service Act of 1959 (R .A. No. 2260) and the Civil Service Rules promulgated thereunder, particularly S ection 12 of Rule XVIII, do not apply to the members of the Judiciary. Under sai d Section 12: "No officer or employee shall engage directly in any private busin ess, vocation, or profession or be connected with any commercial, credit, agricu ltural or industrial undertaking without a written permission from the Head of D epartment ..." It must be emphasized at the outset that respondent, being a member of the Judic iary, is covered by Republic Act No. 296, as amended, otherwise known as the Jud iciary Act of 1948 and by Section 7, Article X, 1973 Constitution. Under Section 67 of said law, the power to remove or dismiss judges was then ves ted in the President of the Philippines, not in the Commissioner of Civil Servic e, and only on two grounds, namely, serious misconduct and inefficiency, and upo n the recommendation of the Supreme Court, which alone is authorized, upon its o wn motion, or upon information of the Secretary (now Minister) of Justice to con duct the corresponding investigation. Clearly, the aforesaid section defines the grounds and prescribes the special procedure for the discipline of judges. And under Sections 5, 6 and 7, Article X of the 1973 Constitution, only the Supr eme Court can discipline judges of inferior courts as well as other personnel of the Judiciary. It is true that under Section 33 of the Civil Service Act of 1959: "The Commissi oner may, for ... violation of the existing Civil Service Law and rules or of re asonable office regulations, or in the interest of the service, remove any subor dinate officer or employee from the service, demote him in rank, suspend him for not more than one year without pay or fine him in an amount not exceeding six m onths' salary." Thus, a violation of Section 12 of Rule XVIII is a ground for di sciplinary action against civil service officers and employees. However, judges cannot be considered as subordinate civil service officers or em ployees subject to the disciplinary authority of the Commissioner of Civil Servi ce; for, certainly, the Commissioner is not the head of the Judicial Department to which they belong. The Revised Administrative Code (Section 89) and the Civil Service Law itself state that the Chief Justice is the department head of the S upreme Court (Sec. 20, R.A. No. 2260) [1959]); and under the 1973 Constitution, the Judiciary is the only other or second branch of the government (Sec. 1, Art. X, 1973 Constitution). Besides, a violation of Section 12, Rule XVIII cannot be considered as a ground for disciplinary action against judges because to recogn ize the same as applicable to them, would be adding another ground for the disci

pline of judges and, as aforestated, Section 67 of the Judiciary Act recognizes only two grounds for their removal, namely, serious misconduct and inefficiency. Moreover, under Section 16(i) of the Civil Service Act of 1959, it is the Commis sioner of Civil Service who has original and exclusive jurisdiction "(T)o decide , within one hundred twenty days, after submission to it, all administrative cas es against permanent officers and employees in the competitive service, and, exc ept as provided by law, to have final authority to pass upon their removal, sepa ration, and suspension and upon all matters relating to the conduct, discipline, and efficiency of such officers and employees; and prescribe standards, guideli nes and regulations governing the administration of discipline" (emphasis suppli ed). There is no question that a judge belong to the non-competitive or unclassi fied service of the government as a Presidential appointee and is therefore not covered by the aforesaid provision. WE have already ruled that "... in interpret ing Section 16(i) of Republic Act No. 2260, we emphasized that only permanent of ficers and employees who belong to the classified service come under the exclusi ve jurisdiction of the Commissioner of Civil Service" (Villaluz vs. Zaldivar, 15 SCRA 710,713 [1965], Ang-Angco vs. Castillo, 9 SCRA 619 [1963]). Although the actuation of respondent Judge in engaging in private business by jo ining the Traders Manufacturing and Fishing Industries, Inc. as a stockholder an d a ranking officer, is not violative of the provissions of Article 14 of the Co de of Commerce and Section 3(h) of the Anti-Graft and Corrupt Practices Act as w ell as Section 12, Rule XVIII of the Civil Service Rules promulgated pursuant to the Civil Service Act of 1959, the impropriety of the same is clearly unquestio nable because Canon 25 of the Canons of Judicial Ethics expressly declares that: A judge should abstain from making personal investments in enterprises which are apt to be involved in litigation in his court; and, after his accession to the bench, he should not retain such investments previously made, longer than a peri od sufficient to enable him to dispose of them without serious loss. It is desir able that he should, so far as reasonably possible, refrain from all relations w hich would normally tend to arouse the suspicion that such relations warp or bia s his judgment, or prevent his impartial attitude of mind in the administration of his judicial duties. ... WE are not, however, unmindful of the fact that respondent Judge and his wife ha d withdrawn on January 31, 1967 from the aforesaid corporation and sold their re spective shares to third parties, and it appears also that the aforesaid corpora tion did not in anyway benefit in any case filed by or against it in court as th ere was no case filed in the different branches of the Court of First Instance o f Leyte from the time of the drafting of the Articles of Incorporation of the co rporation on March 12, 1966, up to its incorporation on January 9, 1967, and the eventual withdrawal of respondent on January 31, 1967 from said corporation. Su ch disposal or sale by respondent and his wife of their shares in the corporatio n only 22 days after the incorporation of the corporation, indicates that respon dent realized that early that their interest in the corporation contravenes the aforesaid Canon 25. Respondent Judge and his wife therefore deserve the commenda tion for their immediate withdrawal from the firm after its incorporation and be fore it became involved in any court litigation III With respect to the third and fourth causes of action, complainant alleged that respondent was guilty of coddling an impostor and acted in disregard of judicial decorum, and that there was culpable defiance of the law and utter disregard fo r ethics. WE agree, however, with the recommendation of the Investigating Justic e that respondent Judge be exonerated because the aforesaid causes of action are

groundless, and WE quote the pertinent portion of her report which reads as fol lows: The basis for complainant's third cause of action is the claim that respondent a ssociated and closely fraternized with Dominador Arigpa Tan who openly and publi cly advertised himself as a practising attorney (see Exhs. I, I-1 and J) when in truth and in fact said Dominador Arigpa Tan does not appear in the Roll of Atto rneys and is not a member of the Philippine Bar as certified to in Exh. K. The "respondent denies knowing that Dominador Arigpa Tan was an "impostor" and c laims that all the time he believed that the latter was a bona fide member of th e bar. I see no reason for disbelieving this assertion of respondent. It has bee n shown by complainant that Dominador Arigpa Tan represented himself publicly as an attorney-at-law to the extent of putting up a signboard with his name and th e words "Attorney-at Law" (Exh. I and 1- 1) to indicate his office, and it was b ut natural for respondent and any person for that matter to have accepted that s tatement on its face value. "Now with respect to the allegation of complainant t hat respondent is guilty of fraternizing with Dominador Arigpa Tan to the extent of permitting his wife to be a godmother of Mr. Tan's child at baptism (Exh. M & M-1), that fact even if true did not render respondent guilty of violating any canon of judicial ethics as long as his friendly relations with Dominador A. Ta n and family did not influence his official actuations as a judge where said per sons were concerned. There is no tangible convincing proof that herein responden t gave any undue privileges in his court to Dominador Arigpa Tan or that the lat ter benefitted in his practice of law from his personal relations with responden t, or that he used his influence, if he had any, on the Judges of the other bran ches of the Court to favor said Dominador Tan. Of course it is highly desirable for a member of the judiciary to refrain as muc h as possible from maintaining close friendly relations with practising attorney s and litigants in his court so as to avoid suspicion 'that his social or busine ss relations or friendship constitute an element in determining his judicial cou rse" (par. 30, Canons of Judicial Ethics), but if a Judge does have social relat ions, that in itself would not constitute a ground for disciplinary action unles s it be clearly shown that his social relations be clouded his official actuatio ns with bias and partiality in favor of his friends (pp. 403-405, rec.). In conclusion, while respondent Judge Asuncion, now Associate Justice of the Cou rt of Appeals, did not violate any law in acquiring by purchase a parcel of land which was in litigation in his court and in engaging in business by joining a p rivate corporation during his incumbency as judge of the Court of First Instance of Leyte, he should be reminded to be more discreet in his private and business activities, because his conduct as a member of the Judiciary must not only be c haracterized with propriety but must always be above suspicion. WHEREFORE, THE RESPONDENT ASSOCIATE JUSTICE OF THE COURT OF APPEALS IS HEREBY RE MINDED TO BE MORE DISCREET IN HIS PRIVATE AND BUSINESS ACTIVITIES. SO ORDERED. Teehankee, Guerrero, De Castro, Melencio-Herrera, Plana, Vasquez, Relova and Gut ierrez, JJ., concur. Concepcion Jr., J., is on leave. Fernando, C.J., Abad Santos and Esolin JJ., took no part.

Separate Opinions

AQUINO, J., concurring and dissenting: I vote for respondent's unqualified exoneration. BARREDO, J., concurring and dissenting: I vote with Justice Aquino.

Separate Opinions AQUINO, J., concurring and dissenting: I vote for respondent's unqualified exoneration. BARREDO, J., concurring and dissenting: I vote with Justice Aquino. 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 Taada for respondent. FERIA, J.: This is a petition for the issuance of a writ of habeas corpus and for the relea se 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 cas e No. 23) of the crime of illegal discharge of firearms with less serious physic al injuries. Upon appeal, the Court of Appeals of Northern Luzon at Baguio modif ied said sentence (CA- G.R. No. 790)and sentence the petitioner to an indetermin ate penalty of from four months four months and twenty-one days of arresto mayor to three years, nine months and three days of prison correccional. The sentence as modified became final on September 12, 1944, and June 23, 1945, petitioner c ommenced 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 s o-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 m ajority which promulgated the decision in question. The petitioner does not ques tion the validity of said decision on the strength of the Proclamation of Genera l Douglas McArthur of October 23, 1944, which according to our decision in the c ase of Co Kim Cham vs. Valdez Tan Keh and Dizon, G.R. No. L-5 (p. 113, ante), do

es not refer to judicial processes. In the said case of Co Kim Cham vs. Valdez Tan Keh and Dizon, this Court ruled t hat the so-called Republic of the Philippines and the Philippine Executive Commi ssion established in the Philippines during the Japanese regime were governments de facto organized by the belligerent occupant by the judicial acts thereof wer e good and valid and remained good and valid after the restoration of the Common wealth Government, except those a political complexion. In that the same case th is Court held that the Court of Appeals which was continued throughout the Japan ese occupation, was the same Court of Appeals existed prior to the Japanese occu pation and was lately abolished by Executive Order No. 37. The division of the C ourt 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 Republ ic effected no substantial change in its nature and jurisdiction. Even assuming that the Court of Appeals of Northern Luzon was a new court create d by the belligerent occupant or the de facto governments established by him, th e judgments of such court, like those of the court which were continued during t he Japanese occupation, were good and valid and remain good and valid, and there fore enforceable now after the liberation or occupation of the Philippines, prov ided 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 complex ion. He was charged with and convicted of an offense punishable under the munici pal 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 o f Northern Luzon, is valid and enforceable. A punitive or penal sentence is said to of a political complexion when it penali zes either a new act not defined in the municipal laws, or acts already penalize d by the latter as a crime against the legitimate government, but taken out of t he 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 occ upied territory and the protection of the army of the occupier. They are acts pe nalized for public rather than private reasons, acts which tend, directly or ind irectly, to aid or favor the enemy and are directed against the welfare, safety and security, of the belligerent occupant. As example, the crimes against nation al security , such as treason, espionage, etc., and against public order, such a s rebellion, sedition, etc., were crimes against the Commonwealth or United Stat es Government under the Revised Penal Code, which were made crimes against the b elligerent 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 th e judicial proceedings held, during the Japanese occupation, in the Court First Instance of Ilocos Sur, in which herein petitioner was accused of frustrated mur der, and in the Court of Appeals of Northern Luzon, in which, on appeal, said pe titioner was found guilty of illegal discharge of firearms with less serious phy

sical 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 d ays of prison correccional; and the effect on said proceedings of the proclamati on of General Douglas McArthur, dated October 24 1944. The decision of this ques tions 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 par t 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 determ ination (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 the ir 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 us ages and customs of nation, as found in the writings of publicist and in the dec isions 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, expre ssly 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 reestabl ish and insure, as far as possible, public order and safety, while respecting, u nless absolutely prevented, the laws in force in the country. (32 Stat., II, 182 1.). The above provisions of the Hague Conventions have been adopted by the nations g iving 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 territ ory, and this authority will be exercised upon principles of International Law ( New Orleans vs. Steamship Co. [1874], 20 Wall., 387; Kelly vs. Sanders [1878], 9 9 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 i n force, in so far as they do not affect the hostile occupant unfavorably. The r egular 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 mor e competent to administer the laws of the territory; and the military occupant g enerally keeps in their posts such of the judicial and administrative officers a s are willing to serve under him, subjecting them only to supervision by the mil

itary 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; 2 4 Law ed., 1118; MacLeod vs. United States, 229 U.S. 416; 33 Sup Ct., 955; 57 La w. ed., 1260 Taylor, International Law, secs. 576, 578; Wilson, International La w, pp. 331-337; Hall, International Law, 6th ed. [1909], pp. 464, 465, 475, 476; Lawrence, International Law, 7th ed., 412, 413; Davis, Elements of Internationa l 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 French man, accused of the murder of a Catalan in that province, was tried and convicte d 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 gro und that the courts of the territory within which the crime had been committed h ad exclusive jurisdiction to try the case and that "the occupation of Catalonia by French troops and its government by the French authorities had not communicat ed to its inhabitants the character of French citizens, nor to their territory t he 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, Inter national Law, 6th ed., p. 461.) It is, therefore, evident that the establishment of the government under the nam e of the Philippine Executive Commission, or the so-called Philippine Republic, afterwards, during Japanese occupation, respecting the laws in force in the coun try, 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 Force s, on January 3, 1942, was in accordance with the rules and principles of Intern ational Law. If the military occupant is thus in duty bound to establish in the territory und er military occupation governmental agencies for the preservation of peace and o rder and for the proper administration of justice, in accordance with the local laws, it must necessarily follow that the judicial proceeding conducted before t he courts established by the military occupant must be considered legal and vali d, even after said government established by the military occupant had been disp laced 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 jurisdi ction, not only tending to defeat the legal rights of citizens of the United Sta tes, nor in furtherance of laws passed in aid of the rebellion, had been declare d valid and binding (Cook vs. Oliver, 1 Woods, 437; Fed. Cas., No. 3, 164; Colem an vs. Tennessee, 97 U.S., 509;24 Law. ed., 1118; Williams vs. Bruffy, 96 U.S. 1 76; Horn vs. Lockhart, 17 Wall., 570; Sprott vs. United States, 20 Wall., 459; T exas 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 mon ey 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 ter mination 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 ci vil matters, and did not become responsible, as wrong-doers, for such act of obe dience (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 Supre me Court of the United States held-- "It is now settled law in this court that d uring 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 t he 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 au thority, 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; Tex as 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 publicis ts a government de facto, but which might, perhaps, he more aptly denominated a government of paramount force. Its distinguishing characteristics (1) that its e xistence is maintained by active military power within the territories, and agai nst 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 citiz ens 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 di stricts differing greatly in extent and conditions. They are usually administere d directly by military authority, but they may be administered, also, by civil a uthority, 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 Co mmission or under the so-called Philippine Republic, during Japanese occupation, was and should, therefor, be considered as a de facto government; and that the judicial proceedings conducted before the courts has been established in this co untry, during said Japanese occupation, and are should be considered as legal an d valid enforceable, even after the liberation of this country by the American f orces, as a long a said judicial proceedings had been conducted, in accordance w ith the law of the Commonwealth of the Philippines. The judicial proceedings involved in the case under consideration merely refer t o the prosecution of the petitioner in this case, for the crime of frustrated mu rder, which was reduced to illegal discharge of firearms with less serious physi cal injuries, under the provisions of the Revised Penal Code, in force in this c ountry 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, unde r the provisions of the proclamation issued by General Douglas McArthur dated Oc tober 23, 1944; as said proclamation nullifies all the laws, regulations and pro cesses 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 is sued by the General Douglas McArthur, a contention which, in our opinion, is unt enable, 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 v s. Coombs [1838]], 12 Pet., 72; 9 Law. ed., 1004; Board of Supervisors of Grenad a County vs. Brown [1884], 112 U.S., 261; 28 Law. ed., 704; 5 Sup. Ct. Rep., 125 ; In re Guaria [1913], 24 Phil., 37; Fuentes vs. Director of Prisons [1924], 46 P hil., 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 i ts decisions in favor of that solution which will most effectively promote the p ublic policy (Smith, Bell & Co., Ltd. vs. Natividad [1919], 40 Phil., 136). All

laws should receive a sensible construction as not to lead it injustice, oppress ion or an absurd consequence. It will always, therefore, be presumed that the le gislature 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 (U nited States vs. Kirby, 7 Wall [U.S.], 482; 19 Law. ed, 278; Church of Holy Trin ity vs. United States, 143 U.S., 461; 12 Sup. Ct., 511; 36 Law. ed., 226; Jacobs on 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 sta tute, which is reasonably susceptible of two constructions to adopt that which s aves its constitutionality, includes the duty of a avoiding a construction which raises grave and doubtful constitutional questions, if it can be avoided (Unite d 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 doctri nes cited above, the judicial proceedings conducted before the court of the just ice, established here during Japanese military occupation, merely applying the p rovisions of the municipal law of the territory, as the provisions of the Revise d Penal Code in the instant case which have no political or military significanc e, are and should be considered legal, valid and binding. It is to be presumed t hat General Douglas McArthur knows said rules and principles of International La w, 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 Supr eme Court of the United States, as the nullification of all judicial proceedings conducted before our courts, during the Japanese occupation would be highly det rimental 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. L5 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 G eneral 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 o pinion of the majority herein. The writ of habeas corpus sought by petitioner sh ould 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 b een 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 I nstance of Ilocos Sur. EN BANC

[G.R. No. 135385. December 6, 2000] ISAGANI CRUZ and CESAR EUROPA, petitioners, vs. SECRETARY OF ENVIRONMENT AND NAT URAL RESOURCES, SECRETARY OF BUDGET AND MANAGEMENT and CHAIRMAN and COMMISSIONER S OF THE NATIONAL COMMISSION ON INDIGENOUS PEOPLES, respondents. HON. JUAN M .FLAVIER, HON. PONCIANO BENNAGEN, BAYANI ASCARRAGA, EDTAMI MANSAYANG AN, BASILIO WANDAG, EVELYN DUNUAN, YAOM TUGAS, ALFREMO CARPIANO, LIBERATO A. GAB IN, MATERNIDAD M. COLAS, NARCISA M. DALUPINES, BAI KIRAM-CONNIE SATURNO, BAE MLO MO-BEATRIZ T. ABASALA, DATU BALITUNGTUNG-ANTONIO D. LUMANDONG, DATU MANTUMUKAW T EOFISTO SABASALES, DATU EDUAARDO BANDA, DATU JOEL UNAD, DATU RAMON BAYAAN, TIMUA Y JOSE ANOY, TIMUAY MACARIO D. SALACAO, TIMUAY EDWIN B. ENDING, DATU SAHAMPONG M ALANAW VI, DATU BEN PENDAO CABIGON, BAI NANAPNAY-LIZA SAWAY, BAY INAY DAYA-MELIN DA S. REYMUNDO, BAI TINANGHAGA HELINITA T. PANGAN, DATU MAKAPUKAW ADOLINO L. SAW AY, DATU MAUDAYAW-CRISPEN SAWAY, VICKY MAKAY, LOURDES D. AMOS, GILBERT P. HOGGAN G, TERESA GASPAR, MANUEL S. ONALAN, MIA GRACE L. GIRON, ROSEMARIE G. PE, BENITO CARINO, JOSEPH JUDE CARANTES, LYNETTE CARANTES-VIVAL, LANGLEY SEGUNDO, SATUR S. BUGNAY, CARLING DOMULOT, ANDRES MENDIOGRIN, LEOPOLDO ABUGAN, VIRGILIO CAYETANO, CONCHITA G. DESCAGA, LEVY ESTEVES, ODETTE G. ESTEVEZ, RODOLFO C. AGUILAR, MAURO VALONES, PEPE H. ATONG, OFELIA T. DAVI, PERFECTO B. GUINOSAO, WALTER N. TIMOL, M ANUEL T. SELEN, OSCAR DALUNHAY, RICO O. SULATAN, RAFFY MALINDA, ALFREDO ABILLANO S, JESSIE ANDILAB, MIRLANDO H. MANGKULINTAS, SAMIE SATURNO, ROMEO A. LINDAHAY, R OEL S. MANSANG-CAGAN, PAQUITO S. LIESES, FILIPE G. SAWAY, HERMINIA S. SAWAY, JUL IUS S. SAWAY, LEONARDA SAWAY, JIMMY UGYUB, SALVADOR TIONGSON, VENANCIO APANG, MA DION MALID, SUKIM MALID, NENENG MALID, MANGKATADONG AUGUSTO DIANO, JOSEPHINE M. ALBESO, MORENO MALID, MARIO MANGCAL, FELAY DIAMILING, SALOME P. SARZA, FELIPE P. BAGON, SAMMY SALNUNGAN, ANTONIO D. EMBA, NORMA MAPANSAGONOS, ROMEO SALIGA, SR., JERSON P. GERADA, RENATO T. BAGON, JR., SARING MASALONG, SOLEDAD M. GERARDA, EL IZABETH L. MENDI, MORANTE S. TIWAN, DANILO M. MALUDAO, MINORS MARICEL MALID, rep resented by her father CORNELIO MALID, MARCELINO M. LADRA, represented by her fa ther MONICO D. LADRA, JENNYLYN MALID, represented by her father TONY MALID, ARIE L M. EVANGELISTA, represented by her mother LINAY BALBUENA, EDWARD M. EMUY, SR., SUSAN BOLANIO, OND, PULA BATO B LAAN TRIBAL FARMER S ASSOCIATION, INTER-PEOPLE S EXCH ANGE, INC. and GREEN FORUM-WESTERN VISAYAS, intervenors. COMMISSION ON HUMAN RIGHTS, intervenor. IKALAHAN INDIGENOUS PEOPLE and HARIBON FOUNDATION FOR THE CONSERVATION OF NATURA L RESOURCES, INC., intervenor. R E S O L U T I O N PER CURIAM: Petitioners Isagani Cruz and Cesar Europa brought this suit for prohibition and mandamus as citizens and taxpayers, assailing the constitutionality of certain p rovisions of Republic Act No. 8371 (R.A. 8371), otherwise known as the Indigenou s Peoples Rights Act of 1997 (IPRA), and its Implementing Rules and Regulations (Implementing Rules). In its resolution of September 29, 1998, the Court required respondents to comme nt.[1] In compliance, respondents Chairperson and Commissioners of the National Commission on Indigenous Peoples (NCIP), the government agency created under the IPRA to implement its provisions, filed on October 13, 1998 their Comment to th e Petition, in which they defend the constitutionality of the IPRA and pray that the petition be dismissed for lack of merit. On October 19, 1998, respondents Secretary of the Department of Environment and Natural Resources (DENR) and Secretary of the Department of Budget and Managemen

t (DBM) filed through the Solicitor General a consolidated Comment. The Solicit or General is of the view that the IPRA is partly unconstitutional on the ground that it grants ownership over natural resources to indigenous peoples and prays that the petition be granted in part. On November 10, 1998, a group of intervenors, composed of Sen. Juan Flavier, one of the authors of the IPRA, Mr. Ponciano Bennagen, a member of the 1986 Constit utional Commission, and the leaders and members of 112 groups of indigenous peop les (Flavier, et. al), filed their Motion for Leave to Intervene. They join the NCIP in defending the constitutionality of IPRA and praying for the dismissal o f the petition. On March 22, 1999, the Commission on Human Rights (CHR) likewise filed a Motion to Intervene and/or to Appear as Amicus Curiae. The CHR asserts that IPRA is an expression of the principle of parens patriae and that the State has the respon sibility to protect and guarantee the rights of those who are at a serious disad vantage like indigenous peoples. For this reason it prays that the petition be dismissed. On March 23, 1999, another group, composed of the Ikalahan Indigenous People and the Haribon Foundation for the Conservation of Natural Resources, Inc. (Haribon , et al.), filed a motion to Intervene with attached Comment-in-Intervention. T hey agree with the NCIP and Flavier, et al. that IPRA is consistent with the Con stitution and pray that the petition for prohibition and mandamus be dismissed. The motions for intervention of the aforesaid groups and organizations were gran ted. Oral arguments were heard on April 13, 1999. Thereafter, the parties and interv enors filed their respective memoranda in which they reiterate the arguments add uced in their earlier pleadings and during the hearing. Petitioners assail the constitutionality of the following provisions of the IPRA and its Implementing Rules on the ground that they amount to an unlawful depriv ation of the State s ownership over lands of the public domain as well as minerals and other natural resources therein, in violation of the regalian doctrine embo died in Section 2, Article XII of the Constitution: (1) Section 3(a) which defines the extent and coverage of ancestral domains, and Section 3(b) which, in turn, defines ancestral lands; (2) Section 5, in relation to section 3(a), which provides that ancestral domains including inalienable public lands, bodies of water, mineral and other resource s found within ancestral domains are private but community property of the indig enous peoples; (3) Section 6 in relation to section 3(a) and 3(b) which defines the composition of ancestral domains and ancestral lands; (4) Section 7 which recognizes and enumerates the rights of the indigenous people s over the ancestral domains; (5) Section 8 which recognizes and enumerates the rights of the indigenous peopl es over the ancestral lands; (6) Section 57 which provides for priority rights of the indigenous peoples in th e harvesting, extraction, development or exploration of minerals and other natur al resources within the areas claimed to be their ancestral domains, and the rig ht to enter into agreements with nonindigenous peoples for the development and u tilization of natural resources therein for a period not exceeding 25 years, ren

ewable for not more than 25 years; and (7) Section 58 which gives the indigenous peoples the responsibility to maintain, develop, protect and conserve the ancestral domains and portions thereof which are found to be necessary for critical watersheds, mangroves, wildlife sanctuari es, wilderness, protected areas, forest cover or reforestation. [2] Petitioners also content that, by providing for an all-encompassing definition o f ancestral domains and ancestral lands which might even include private lands found within said areas, Sections 3(a) and 3(b) violate the rights of private landown ers.[3] In addition, petitioners question the provisions of the IPRA defining the powers and jurisdiction of the NCIP and making customary law applicable to the settlem ent of disputes involving ancestral domains and ancestral lands on the ground th at these provisions violate the due process clause of the Constitution.[4] These provisions are: (1) sections 51 to 53 and 59 which detail the process of delineation and recognit ion of ancestral domains and which vest on the NCIP the sole authority to deline ate ancestral domains and ancestral lands; (2) Section 52[i] which provides that upon certification by the NCIP that a parti cular area is an ancestral domain and upon notification to the following officia ls, namely, the Secretary of Environment and Natural Resources, Secretary of Int erior and Local Governments, Secretary of Justice and Commissioner of the Nation al Development Corporation, the jurisdiction of said officials over said area te rminates; (3) Section 63 which provides the customary law, traditions and practices of indi genous peoples shall be applied first with respect to property rights, claims of ownership, hereditary succession and settlement of land disputes, and that any doubt or ambiguity in the interpretation thereof shall be resolved in favor of t he indigenous peoples; (4) Section 65 which states that customary laws and practices shall be used to re solve disputes involving indigenous peoples; and (5) Section 66 which vests on the NCIP the jurisdiction over all claims and dispu tes involving rights of the indigenous peoples. [5] Finally, petitioners assail the validity of Rule VII, Part II, Section 1 of the NCIP Administrative Order No. 1, series of 1998, which provides that the administ rative relationship of the NCIP to the Office of the President is characterized as a lateral but autonomous relationship for purposes of policy and program coor dination. They contend that said Rule infringes upon the President s power of cont rol over executive departments under Section 17, Article VII of the Constitution .[6] Petitioners pray for the following: (1) A declaration that Sections 3, 5, 6, 7, 8, 52[I], 57, 58, 59, 63, 65 and 66 a nd other related provisions of R.A. 8371 are unconstitutional and invalid; (2) The issuance of a writ of prohibition directing the Chairperson and Commissio ners of the NCIP to cease and desist from implementing the assailed provisions o f R.A. 8371 and its Implementing Rules; (3) The issuance of a writ of prohibition directing the Secretary of the Departme

nt of Environment and Natural Resources to cease and desist from implementing De partment of Environment and Natural Resources Circular No. 2, series of 1998; (4) The issuance of a writ of prohibition directing the Secretary of Budget and M anagement to cease and desist from disbursing public funds for the implementatio n of the assailed provisions of R.A. 8371; and (5) The issuance of a writ of mandamus commanding the Secretary of Environment an d Natural Resources to comply with his duty of carrying out the State s constituti onal mandate to control and supervise the exploration, development, utilization and conservation of Philippine natural resources. [7] After due deliberation on the petition, the members of the Court voted as follow s: Seven (7) voted to dismiss the petition. Justice Kapunan filed an opinion, whic h the Chief Justice and Justices Bellosillo, Quisumbing, and Santiago join, sust aining the validity of the challenged provisions of R.A. 8371. Justice Puno als o filed a separate opinion sustaining all challenged provisions of the law with the exception of Section 1, Part II, Rule III of NCIP Administrative Order No. 1 , series of 1998, the Rules and Regulations Implementing the IPRA, and Section 5 7 of the IPRA which he contends should be interpreted as dealing with the largescale exploitation of natural resources and should be read in conjunction with S ection 2, Article XII of the 1987 Constitution. On the other hand, Justice Mend oza voted to dismiss the petition solely on the ground that it does not raise a justiciable controversy and petitioners do not have standing to question the con stitutionality of R.A. 8371. Seven (7) other members of the Court voted to grant the petition. Justice Panga niban filed a separate opinion expressing the view that Sections 3 (a)(b), 5, 6, 7 (a)(b), 8, and related provisions of R.A. 8371 are unconstitutional. He rese rves judgment on the constitutionality of Sections 58, 59, 65, and 66 of the law , which he believes must await the filing of specific cases by those whose right s may have been violated by the IPRA. Justice Vitug also filed a separate opini on expressing the view that Sections 3(a), 7, and 57 of R.A. 8371 are unconstitu tional. Justices Melo, Pardo, Buena, Gonzaga-Reyes, and De Leon join in the sep arate opinions of Justices Panganiban and Vitug. As the votes were equally divided (7 to 7) and the necessary majority was not ob tained, the case was redeliberated upon. However, after redeliberation, the vot ing remained the same. Accordingly, pursuant to Rule 56, Section 7 of the Rules of Civil Procedure, the petition is DISMISSED. Attached hereto and made integral parts thereof are the separate opinions of Jus tices Puno, Vitug, Kapunan, Mendoza, and Panganiban. SO ORDERED. Davide, Jr., C.J., Bellosillo, Melo, Quisumbing, Pardo, Buena, Gonzaga-Reyes, Yn ares-Santiago, and De Leon, Jr., JJ., concur. Puno, Vitug, Kapunan, Mendoza and Panganiban JJ., see separate opinion

-------------------------------------------------------------------------------[1] Rollo, p. 114. [2] Petition, Rollo, pp. 16-23.

[3] Id. at 23-25. [4] Section 1, Article III of the Constitution states: No person shall be depriv ed of life, liberty or property without due process of law, nor shall any person be denied the equal protection of the laws. [5] Rollo, pp. 25-27. [6] Id. at 27-28. [7] Transcript of Stenographic Notes of the hearing held on April 13, 1999, pp. 5-6. G.R. No. L-49 November 12, 1945

WILLIAM F. PERALTA, petitioner, vs. THE DIRECTOR OF PRISONS, respondent. William F. Peralta in his own behalf. Office of the Solicitor General Taada for respondent. City Fiscal Mabanag as amicus curiae. FERIA, J.: Petitioner-defendant, a member of the Metropolitan Constabulary of Manila charge d with the supervision and control of the production, procurement and distributi on of goods and other necessaries as defined in section 1 of Act No. 9 of the Na tional 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, whic h he commenced to serve on August 21, 1944, by the Court of Special and Exclusiv e 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 auth ority 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 I I of Executive Order No. 157 of the Chairman of the Executive Commission, made a pplicable to the trial violations of said Act No. 65 by section 9 thereof and se ction 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 a nd purposes of which are repugnant to those aims and political purposes of the C ommonwealth 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 Philippi nes and "the petitioner has been deprived of his constitutional rights"; that th e petitioner herein is being punished by a law created to serve the political pu rpose 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 Revis ed Penal Code." The Solicitor General, in his answer in behalf of the respondent, states that, i n 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, defendantappellee, 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 resul

ted in the conviction and imprisonment of the herein petitioner, should now be d enied 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 an d 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; t hat the procedure prescribed in Ordinance No. 7 does not afford a fair trial, vi olates the Constitution of the Commonwealth, and impairs the Constitutional righ ts of accused persons under their legitimate Constitution. And he cites, in supp ort of this last proposition, the decisions of the Supreme Court of the United S tates 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); Spro tt vs. United States (20 Wall., 459). The City Fiscal of Manila appeared before this Court as amicus curiae. In his me morandum he submits that the petition for habeas corpus be denied on the followi ng grounds: That the Court of Special and Exclusive Criminal Jurisdiction and th e Acts, Ordinances and Executive Orders, creating it are not of a political comp lexion, for said Court was created, and the crimes and offenses placed under its jurisdiction were penalized heavily, in response to an urgent necessity, accord ing to the preamble of Ordinance No. 7; that the right to appeal in a criminal c ase 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 sha ll 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 th e petitioner and the Solicitor General as impairing the constitutional rights of an accused are: that court may interrogate the accused and witnesses before tri al 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 fac ts admitted at the preliminary interrogatory it appears that the defendant is gu ilty, 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 exe cuted unless and until reviewed and affirmed by a special division of the Suprem e Court composed of three Justices. Before proceeding further, and in order to determine the law applicable to the q uestions involved in the present case, it is necessary to bear in mind the natur e and status of the government established in these Islands by the Japanese forc es 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 Commissio n, which was organized by Order No. 1, issued on January 23, 1942, by the Comman der of the Japanese forces, was a civil government established by the military f orces of occupation and therefore a de facto government of the second kind. It w as not different from the government established by the British in Castine, Main e, or by the United States in Tanpico, Mexico. As Halleck says, "the government established over an enemy's territory during the military occupation may exercis e all the powers given by the laws of war to the conqueror over the conquered, a nd is subject to all restrictions which that code imposes. It is of little conse quence whether such government be called a military or civil government. Its cha racter is the same and the source of its authority the same. In either case it i

s a government imposed by the laws of war and so far as it concerns the inhabita nts of such territory or the rest of the world those laws alone determine the le gality 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 F ilipinos 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 peopl e, was, in truth and reality, a government established by the belligerent occupa nt or the Japanese forces of occupation. It was of the same character as the Phi lippine Executive Commission, and the ultimate source of its authority was the s ame the Japanese military authority and government. As General MacArthur stated in his proclamation of October 23, 1944, a portion of which has been already quo ted, "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 ex pression of the peoples" will nor the sanction of the Government of the United S tates.' Japan had no legal power to grant independence to the Philippines or tra nsfer the sovereignty of the United States to, or recognize the latent sovereign ty 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 se cond kind (of paramount force), as the government established in Castine, Maine, during its occupation by the British forces and as that of Tampico, Mexico, occ upied during the war with that the country by the United State Army, the questio n involved in the present case cannot be decided in the light of the Constitutio n of the Commonwealth Government; because the belligerent occupant was totally i ndependent of the constitution of the occupied territory in carrying out the adm inistration 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 legisl ative acts of the Confederate States, considered as de facto governments of the third kind, does not apply to the acts of the so-called Republic of the Philippi nes which is a de facto government of paramount force. The Constitution of the s o-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 la w 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 sove reignty 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 ob ligatory upon the inhabitants who remained and submitted to the belligerent occu pant. By the surrender the inhabitants passed under a temporary allegiance to th e 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 in habitants, "the (belligerent) occupant is totally independent of the constitutio n 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 foreg round 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 State s (in the cases of Texas vs. White, 7 Wall., 700; Horn vs. Lockart, 17 Wall., 57 0; Williams vs. Bruffy, 96 U. S., 176 United States vs. Home Insurance Co., 20 W

all., 249; Sprott vs. United States, 20 Wall., 459, and others) that the judicia l and legislative acts of the Confederate States which impaired the rights of th e 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 conc ession (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. Bruff y, supra);that the Union is perpetual and indissoluble, and the obligation of al legiance to the to the estate and obedience to her laws and the estate constitut ion, subject to the Constitution of the United States, remained unimpaired durin g 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 organiz ations to the support of a new and different national head. the same constitutio n, 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 eac h state and that of the United States or the Union continued in force in those s tates during the War of Secession; while the Constitution of the Commonwealth Go vernment 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 la w of nations are, first, the validity of the creation of the Court of Special an d Exclusive Criminal Jurisdiction, and of the summary procedure adopted for that court; secondly, the validity of the sentence which imprisonment during the Jap anese military occupation; and thirdly, if they were then valid, the effect on s aid 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 Cri minal Jurisdiction by Ordinance No. 7, the only factor to be considered is the a uthority of the legislative power which promulgated said law or ordinance. It is well established in International Law that "The criminal jurisdiction establish ed 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 t he military code of the conquering state, or through the ordinary courts and aut horities 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 govern mental 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 r oom for doubt, therefore, as to the validity of the creation of the court in que stion. With respect to the Summary procedure adopted by Ordinance No. 7, and followed i n the trial of the case which resulted in the conviction of the herein petitione r, there is also no question as to the power or competence of the belligerent oc cupant to promulgate the law providing for such procedure. For "the invader deal s 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 a ny one doing such acts." (Hall's International Law, seventh ed., p. 5000). A bel ligerent "occupant may where necessary, set up military courts instead of the or

dinary courts; and in case, and in so far as, he admits the administration of ju stice by the ordinary courts, he may nevertheless, so far as is necessary for mi litary purposes, or for the maintenance of public order and safety temporarily a lter the laws, especially the Criminal Law, on the basis of which justice is adm inistered as well as the laws regarding procedure." (Oppenheim's International L aw, 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 und er that Constitution, because the latter was not in force during the period of t he Japanese military occupation, as we have already stated. Nor may said Constit ution be applied upon its revival at the time of the re-occupation of the Philip pines by virtue of the principle of postliminium because "a constitution should operate prospectively only, unless the words employed show a clear intention tha t it should have a retrospective effect" (Cooley's Constitutional Limitations, s eventh 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 occ upant to alter the laws or promulgate new ones, especially the criminal law as w ell as the laws regarding procedure, so far as it is necessary for military purp oses, 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 conscien ce. It is obvious that the summary procedure under consideration does not violat e 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 proce dural 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 t erritorial law in general, as that which stands to the public order and social a nd commercial life of the district in a relation of mutual adaptation, so that a ny needless displacement of it would defeat the object which the invader is enjo ined to have in view, and secondly, such variations of the territorial law as ma y be required by real necessity and are not expressly prohibited by any of the r ules which will come before us. Such variations will naturally be greatest in wh at 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 co mmitted to their detriment shall not only lose what justification the territoria l law might give them as committed against enemies, but shall be repressed more severely than the territorial law would repress acts committed against fellow su bjects. 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 m artial 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 occupati on, 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 l

aw actually applied, having the sanction of military authority, is essentially m artial. 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 s pecial interest to the occupant. The words "martial law" are doubtless suggestiv e of the power of the occupant to share the law as he sees fit; that is, to dete rmine what shall be deemed lawful or unlawful acts, to establish tests for ascer taining the guilt of offenders, to fix penalties, and generally to administer ju stice through such agencies as the found expedient. And the United States Rules of Land Warfare provide that the belligerent occupan t may promulgate such new laws and regulations as military necessity demands, an d 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 prote ction of the army, for the principal object of the occupant is to provide for th e 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 t he belligerent occupant to promulgate, through the National Assembly of the so-c alled Republic of the Philippines, Act No. 65 of the said Assembly, which penali zes the crimes of robbery and other offenses by imprisonment ranging from the ma ximum period of the imprisonment prescribed by the laws and ordinances promulgat ed by the President of the so-called Republic as minimum, to life imprisonment o r 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 p enalties, as new crimes and offenses demanded by military necessity, incident to a state of war, and necessary for the control of the country by the belligerent occupant, the protection and safety of the army of occupation, its support and efficiency, and the success of its operations. The They are not the same ordinary offenses penalized by the Revised Penal Code. criminal acts penalized by said Act No. 65 are those committed by persons charg ed 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 Rev ised Penal Code for the same ordinary crimes. The acts penalized by said Act wer e taken out of the territorial law or Revised Penal Code, and referred to what i s called martial law by international jurists, defined above by Hyde, in order, not only to prevent food and other necessaries from reaching the "guerrillas" wh ich were harassing the belligerent occupant from every nook and corner of the co untry, but also to preserve the food supply and other necessaries in order that, in case of necessity, the Imperial Japanese forces could easily requisition the m, as they did, and as they had the right to do in accordance with the law of na tions for their maintenance and subsistence (Art. LII, Sec. III, Hague Conventio ns of 1907). Especially taking into consideration the fact, of which this court may take judicial notice, that the Imperial Japanese Army had depended mostly fo r their supply upon the produce of this country. The crimes penalized by Act No. 65 as well as the crimes against national securi ty and the law of nations, to wit: treason, espionage, inciting war, violation o f neutrality, correspondence with hostile country, flight to enemy's country, pi racy; and the crimes against public order, such as rebellion, sedition and dislo yalty, illegal possession of firearms and other, penalized by Ordinance No. 7 an d placed under jurisdiction of the Court of Special and Exclusive Criminal Juris diction are all of a political complexion, because the acts constituting those o ffenses were punished, as are all political offenses, for public rather than pri vate 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 o ffenses, when committed against the Commonwealth or United States Government, ar

e defined and also penalized by the territorial law Revised Penal Code, they bec ame inapplicable as crimes against the occupier upon the occupation of the Islan ds by the Japanese forces. And they had to be taken out of the territorial law a nd made punishable by said Ordinance No. 7, for they were not penalized before u nder the Revised Penal Code when committed against the belligerent occupant or t he government established by him in these Island. They are also considered by so me writers as war crimes in a broad sense. In this connection Wheaton observes t he 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 martia l 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, ammuniti on, 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 do ors between certain hours; injuring military animals or stores; being in possess ion, without a permit, of horses, vehicles, cycles, etc.; hindering those in exe cution of military orders; trespassing on defense works. Such offenses, together with several others, were specified in the Japanese regulations made in the Rus so-Japanese war." (Wheaton's International Law, War, seventh edition, 1944, p. 2 42.) It is, therefore, evident that the sentence rendered by the Court of Special and Exclusive Criminal Jurisdiction against the petitioner, imposing upon him the p enalty of life imprisonment, was good and valid, since it was within the admitte d power or competence of the belligerent occupant to promulgate the law penalizi ng 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 f ell through or ceased to be valid from that time. In order to resolve this last question, it is not necessary to enter into an ela borate discussion on the matter. It is sufficient to quote the opinion on the su bject of several international jurists and our recent decision in the case of Co Kim Cham vs. Valdez Tan Keh and Dizon, supra. Hall, commenting on the effect of the principle of postliminy upon sentences of the tribunals continued or created by the belligerent occupant, opines "that jud icial 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 con tinuance of his control, and the various acts done during the same time by priva te persons under the sanction of municipal law, remain good. . . . Political act s on the other hand fall through as of course, whether they introduce any positi ve 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 mun icipal 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 off enses such as the one in question, which is within the admitted power or compete nce of the belligerent occupant to punish, says that: "To the extent to which th e legal power of the occupant is admitted he can make law for the duration of hi s occupation. Like any other legislator he is morally subject to the duty of giv ing sufficient notice of his enactments or regulations, not indeed so as to be d

ebarred from carrying out his will without notice, when required by military nec essity 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, w ill 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 th e authority of the national government is restored, either by the progress of op erations during the war or by the conclusion of a peace, no redress can be had f or what has been actually carried out but nothing further can follow from the oc cupant's legislation. A prisoner detained under it must be released, and no civi l 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 th e indignity of being obliged to execute his commands. (Westlake, International L aw, Part II, War, pp. 97, 98.) And Wheaton, who, as above stated, considers as war crimes such offenses as thos e penalized in Ordinance No. 7 and Act No. 65, says: "In general, the cast of th e occupant possess legal validity, and under international law should not be abr ogated 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 S tate 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. Wh en occupation ceases, no reparation is legally due for what has already been car ried out." (Wheaton's International Law, supra, p. 245.) We have already held in our recent decision in the case of Co Kim Cham vs. Valde z Tan Keh and Dizon, supra, that all judgments of political complexion of the co urts 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 doct rine 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 prope r to invoke the proclamation of General Douglas MacArthur declaring null and voi d 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 petiti oner under said law, a sentence which, before the proclamation, had already beco me 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 forc es, 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 gra nted and it is ordered that the petitioner be released forthwith, without pronou ncement 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 un necessary 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 bee n 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 a rrive at practically the same result. Accused of robbery in the Court of Special and Exclusive Criminal Jurisdiction o f 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 Cour t of Special and Exclusive Criminal Jurisdiction was created and which was promu lgated 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 be half of the respondent Director of Prisons, expressed the opinion that "the acts and proceedings taken and before the said Court of Special and Exclusive Crimin al Jurisdiction which resulted in the conviction and imprisonment of the herein prisoner should now be denied force and efficacy," and recommended "that the wri t of habeas corpus prayed for be granted and that the City Fiscal be instructed to prepare and file the corresponding information for robbery against the petiti oner herein in the Court of First Instance of Manila." The case was argued before us on September 21 and 22, 1945, by the First Assista nt Solicitor General on behalf of the respondent and the City Fiscal as amicus c uriae the former impugning and the latter sustaining the validity of said Ordina nce 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 Phi lippines one or more courts of special criminal jurisdiction as the President of the Republic of the Philippines may determine upon recommendation of the Minist er of Justice, which courts shall have exclusive jurisdiction to try and determi ne 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 defi ned in the Revised Penal Code and violations of food control laws, when committe d by public officers and employees, and for similar offenses when committed by p rivate individuals or entities, and providing for a summary procedure for the tr ial of such offenders." Section 2 confers upon the court mentioned in section 1 exclusive jurisdiction a lso to try the following crimes as defined in the Revised Penal Code: crimes aga inst national security and the law of nations, crimes against public order, brig andage, arson and other crimes involving destruction, illegal detention committe d by private individuals and kidnapping of minors; and illegal possession of fir earms, 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 im pose a longer term of imprisonment than that fixed by law, or imprisonment for l ife or death where not already fixed by law, for the crimes and offenses mention ed 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 summ ary in procedure, and shall aim at their expeditious and prompt disposition. Tec hnicalities 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 gove

rn 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 c omposed of the three members to be designated by the President of the Republic o f the Philippines. The clerk of each special court, upon the promulgation of a d ecision imposing the death penalty, shall immediately forward the records of the case to the special division of the Supreme Court herein created, which shall d ecide the case within fifteen days from the receipt of the records thereof. SEC. t of nder and 7. The interest of public safety so requiring it, the privileges of the wri habeas corpus are hereby suspended with respect to persons accused of, or u investigations for, any of the crimes and offenses enumerated in sections 1 2 hereof.

SEC. 8. All laws, rules or orders, or parts thereof, inconsistent with the provi sions 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 i n 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 t he court or by any prosecuting officer, authorizing peace officers to search for and seize any articles or objects described in the warrant, including those whi ch may be regarded as evidence of an offense under this Order even if such artic les 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 wit h 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 app ly to the judge for the examination of the co-accused or the representative of t he latter in matters related to the defense of the accused. Statements made by t he accused, his co-accused, or the representative of the accused or a person act ing in a similar capacity, irrespective of the circumstances under which they we re 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 explaine d to the accused the facts constituting the offenses with which he is charged, a nd 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 w hich 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 an d assert defenses that are inconsistent with each other. (d) If from the facts r that the accused is other information, or equently filed by the admitted at the preliminary interrogation, it should appea guilty of the crime charged in the information, or in any in any other information, or in any other information subs prosecuting officer, a sentence of conviction may be immed

iately 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 spe cial reasons, otherwise directs. (e) Unjustified absence of an accused who has been released on bail, or of his r epresentative shall not be a ground for interrupting the proceedings or attackin g 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 exclusiv e criminal jurisdiction created by the ordinance in question convicted and sente nced a total of 94 individuals, 55 of whom had been prosecuted for illegal posse ssion of firearms and 15 for robbery; and that of the 94 convicts only 3, includ ing the herein petitioner, remain in confinement, 21 having escaped, 37 having b een released, and 33 having died. In synthesis, the argument of the Solicitor General is as follows: Acts of the m ilitary occupant which exceed his power tested by the criterion set forth in art icle 43 of the Hague Regulations, are null and without effect as against the leg itimate government. (Wheaton's International Law, 7th ed., p. 245.) Acts in furt herance 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, b e regarded as invalid and void. (Texas vs. White, 74 U. S., 733; 19 Law. ed., 24 0.) 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 o f the national government, and did not impair the rights of citizens under the C onstitution. (Horn vs. Lockhart, 17 Wall., 570-581; 21 Law. ed., 660.) All the e nactment of the de facto legislatures in the insurrectionary states during the w ar, which were not hostile to the Union or to the authority of the General Gover nment 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 legi timate 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 t he summary trial of possession of firearms and violations of food control regula tions and (2) because it impaired the rights of citizens under the Constitution inasmuch as the procedure therein prescribed withdrew the privilege of the accus ed 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 po ssession 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 t he procurement of supplies by said army, because in any event the Japanese milit ary occupant freely exercised the power to go after and punish his enemies direc tly without recurring to the agencies of the "Republic," for there were even cas es 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 Japanes e 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 t hemselves 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 fundamen tal rights; that the military occupant was not in duty bound to respect the cons

titution and the laws of the occupied territory; that he could abrogate all of t hem and promulgate new ones if he so chose; that the cases cited by the Solicito r General are not applicable because they deal with the validity of acts and pro cesses 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 ordi nance in question should be judged in the light of the provisions of the Constit ution and the laws of the "Republic" and of generally accepted principles of int ernational law; that even assuming that it should be judged by the standard or t he Constitution of the Commonwealth, the ordinance satisfies all the requirement s of said Constitution; that the right to appeal in a criminal case is not a con stitutional 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 senten ce imposed against the petitioner cannot be raised by habeas corpus. There is no question that in virtue of that of the proclamation of General MacAr thur 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 we alth of the Philippines. The question before us is whether said ordinance ever a cquired 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 gover nment during the Civil War, the Solicitor General maintains that the ordinance i n question was null and void because it impaired the rights of citizens under th e Constitution and because it was hostile in its purpose to the United States an d the Commonwealth of the Philippines. The decisions invoked would be applicable if the so-called Republic of the Phili ppines should be considered as a government established by the Filipino people i n rebellion against the Commonwealth and the Sovereignty of the United States. T he 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 reb ellion against the United States or which impaired the rights of citizens under the Constitution, rest on the proposition that the Union is perpetual and indiss oluble and that the obligations of allegiance to the state, and obedience to her laws, subject to the Constitution of the United States, remained unimpaired dur ing 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 proposi tion 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 i ndependent nations. Such territory is possessed temporarily so possessed tempora rily by lawful government at war with the country of which the territory so poss essed is a part, and during that possession the obligations of the inhabitants t o 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, speak ing though Mr. Justice Field, observed: "The rule stated by Vattel, that the jus tice of the cause between two enemies being by law of nations reputed to be equa l, 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 insurg ents seeking to withdraw themselves from its jurisdiction or to overthrow its au thority. 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 occup ant as a law-giver have broad scope." He many "suspend the existing laws and pro mulgate 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 l aws of a political nature as well as a political privileges, and laws which affe ct 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 o f 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 res pect or preserve the rights of the citizens of the occupied territory under thei r 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 Ta n Keh Dizon (G.R. No. L-5, p. 113, ante), this Court speaking through Justice Fe ria, 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 peopl e, was, in truth and reality, a government established by the belligerent occupa nt or the Japanese forces of occupation. It was of the same character as the Phi lippines 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 quo ted, "under enemy duress a was established on October 14, 1943, base upon neithe r 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 Phili ppines or transfer the sovereignty of the United State to, or recognize the late nt sovereignty of, the Filipino people, before its military occupation and posse ssion of the Islands had matured into an absolute and permanent dominion or sove reignty by a treaty of peace or other means recognized in the law of nations. Fo r it is a well-established doctrine in internal law, recognized in the law, reco gnized in Article 45 of the Hague Conventions of 1907 (which prohibits compulsio n of the population of the occupied territory to swear allegiance to the hostile power), that belligerent occupation, being essentially provisional, does not se vere to transfer sovereignty over the territory controlled although the de jure government is during the period of occupancy deprived of the power to exercise i ts rights as such. (Thirty Hogshead of Sugar vs. Boyle, 9 Cranch, 191; United St ates vs. Rice, 4 Wheat., 246; Fleming vs. Page, 9 Howard, 603; Downes vs. Bidwel l, 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 appar ent magnanimity of the Japanese gesture of transferring or turning over the righ ts of governments into the hands of Filipinos. It was established under the mist aken belief that, by doing so, Japan would secure the cooperation or at least th e neutrality of the Filipino people in her war against the United States and oth er 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 conte mporary history and of common knowledge, in practice the Japanese military autho rities in the Philippines never treated the "Republic of the Philippines" as an independent government after its inauguration. They continued to impose their wi ll on its executive officials when their interests so required. The Japanese mil itary police arrested and punished various high officials of said government, in cluding the First Assistant Solicitor General, and paid no attention to the prot ests and representations made on their behalf by the President of the "Republic. " As a climax of their continual impositions, in December 1944 the Japanese mili tary 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 mou

ntains. The only measure they did not succeed in imposing upon the "Republic" wa s 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 propagand a Japan professed to be a benefactor and liberator of the Filipinos, hoping ther eby to secure their willing cooperation in her war efforts, in practice she cont inued 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 cooperat ion as their only means of self-preservation and that those who could stay beyon d the reach of her army of occupation manifested their hospitality by harassing and attacking that army. Thus Japan continued to oppress and tyrannize the Filip inos notwithstanding the former's grant of "independence" to the latter. It woul d therefore be preposterous to declare that the "Republic of the Philippines" wa s a government established by the Filipino people in rebellion against the Commo nwealth and the sovereignty of the United States. The said government being a mere instrumentality of the Commander in Chief of th e 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 w ithin 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 h ands of the occupant, the latter shall take all steps in his power to reestablis h and insure, as far as possible, public order and safety, while respecting, unl ess absolutely prevented, the laws in force in the country. Commenting upon this article, Hyde in his work on International Law, volume 2, p ages 366, 367, 368, says: In consequence of his acquisition of the power to control the territory concerne d, the occupant enjoys the right and is burdened with the duty to take all the m easures within his power to restore and insure public order and safety. In so do ing he is given great freedom may be partly due to circumstance that the occupan t 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 en emy. . . . xxx xxx xxx

The right to legislate is not deemed to be unlimited. According to the Hague Reg ulations of 1907, the occupant is called upon to respect, "unless absolutely pre vented, the laws in force the ordinary civil and criminal laws which do not conf lict 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 h is experience and a high sense of justice. (President McKinley, Order to the Sec retary of War, July 18, 1898, on the occupation of Santiago de Cuba by the Ameri can 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 ag ainst 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 th e 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 it s inhabitants, the rights which he possesses over them are those which in the sp ecial circumstances represent his general right to do whatever acts are necessar y 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 require d 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 occu pation draws with it as of course the substitution of his will for previously ex isting law whenever such substitution is reasonably needed, and also the replace ment of the actual civil judicial administration by the military jurisdiction. I n 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 transien t 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 absol ute in matters affecting his safety. But in affairs which do not affect the secu rity, efficacy, and success of his military operations, his power is qualified b y the transient character of his administration. He is forbidden "to vary or sus pend laws affecting property and private personal relations, or which regulate t he moral order of the community." Unless absolutely prevented, he is bound to la ws, 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 Or dinance 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 occupat ion cannot be seriously disputed; but in so far as that ordinance varied radical ly our law of criminal procedure and deprived the accused of certain rights whic h 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 app lication or nonapplication of said law did not affect the security, efficacy, an d success of his military operations. The crimes over which the said court was v ested with jurisdiction were mostly crimes against property penalized in our Rev ised Penal Code, which crimes did not affect the army of occupation. As to the i llegal possession of firearms the City Fiscal himself, who the validity of the o rdinance, informs us that the occupant did not avail himself of said court but p unished 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 di d they make use of them. 2. The summary procedure prescribed in Ordinance No. 7 was inquisitorial, repugn ant to the humanitarian method of administering criminal justice adopted by all progressive, democratic, and freedom-loving countries of the world, and, therefo re, 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 offic er may, on his own volition and even without probable cause, issue a search warr ant 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 containe

d in the Constitution of the Commonwealth, which guarantees "the right of the pe ople to be secure in their persons, houses, papers, and effects against unreason able searches and seizures," and prohibits the issuance of warrants except upon probable cause to be determined by the judge after examination under oath or aff irmation of the complainant and the witnesses he may produce. (b) The trial must be commenced within two days after the filing of the informat ion in violation of section 7, Rule 114, which give the accused at least two day s 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 prosecu tions 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 o f 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 hi m of his right to meet the witnesses face to face and of his privilege against s elf-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 r evolver. 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 corres ponding 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 affirm ative 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 re volver 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 a sked to give the name of the guest reffered to and his address, but he refuses t o 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 b e then and there sentenced by the court. In this case, the conviction of the acc used is reasonable and fair, for his refusal to reveal the identity of his alleg ed guest may due, either to the fact that there was no such guest, or that the c ause 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 prov ed 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, be yond reasonable doubt, under the circumstances. He was accused of illegal posses sion of firearm, an offense punishable under the ordinance in question with impr isonment for six to twelve years. He pleaded not guilty, for according to him th e 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 th e other person who wished to do him harm had planted it there, sooner was the re volver seized than he was brought before the court and interrogated about it whe n he was naturally dazed and in a state of alarm. If the law of criminal procedu re had been followed, he would have had ample time to reflect and endeavor to un ravel the mystery. He could have consulted a lawyer, and he would have been enti tled to at least two days after the information was read to him to investigate t he 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 w itness, principally the policeman. His lawyer could have cross-examined the poli ceman and found out from him whether he had any grudge against the accused and h ow 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 t he 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 th e City Fiscal, the accused was of course utterly unable to do that and was conse quently doomed to at least six years' imprisonment for a crime he had not commit ted. (d) Section 6 of the Ordinance in question provided: "The decisions of the speci al courts herein created shall be final except where the penalty imposed is deat h, in which case the records of the particular case shall be elevated en consult a to a special division of the Supreme Court composed of three members to be des ignated by the President of the Republic of the Philippines." Under our law of c riminal procedure, which the military occupant was bound to respect unless absol utely 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 inv olving life imprisonment and death penalty; but the question here is not whether the legislative department of the legitimate government has the power to abroga te 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, a fter 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 c orpus with respect to persons accused of or under investigation for any of the c rimes and offenses enumerated in sections 1 and 2. The Constitution of the Commo nwealth prohibit the suspension of that privilege except in cases of invasion, i nsurrection, 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 f or waging a campaign against certain classes of crime; martial law was not decla red; 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 specif ied crimes or offenses. The result of such partial suspension was that persons a ccused 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 unde r investigation for crimes other than those specified, such for example as theft , physical injuries, homicide, murder, and parricide, had the right to demand th eir release by habeas corpus after the lapse of six hours. The same discriminati on holds true with reference to the other features already noted above, namely, unreasonable searches and seizures, summary trial, denial of the presumption inn ocence, self-incrimination, and denial of the right to appeal. Such discriminati on was unwarranted and unjust and was contrary to the concept of justice prevail ing in all democratic countries, where every person is entitled to the equal pro tection of the laws. 3. It is apparent from the foregoing examination of the main features of the ord inance 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, C alifornia, June 26, 1945.) The recent global war was a clash between two antagon istic 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 ot her 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 untol d 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 hi s reasoning on high considerations of morality may succeed in resolving the doub t in accordance with humanity and justice." (Principles of International Lawrenc e, 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 p romulgated in response to "an urgent necessity for waging an immediately and rel entless campaign against certain classes and expediting the trail and determinat ion thereof in order to hasten the re-establishment of peace and other throughou t the country and promote a feeling of security among the people conducive to th e earlier return of normalcy in our national life." We concede that the objectiv e of the author of the ordinance was commendable, but we think and in this we ar e 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 wa s the presence in the country of the Japanese army, which wrecked our political, social, and economic structures, destroyed our means of communication, robbed t he people of their food, clothing, and medicine and other necessities of life, e jected them from their own homes, punished and tortured innocent men and women, and other wise made life unbearable. The relative rampancy of the crimes mention ed in said ordinance was but the effect of that cause. The cornering and hoardin g 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 posse ssion of firearms was rendered desirable to many person to defend themselves aga inst or attack the invader. Robberies and other crimes against property increase d as a resulted of hunger and privation to which the people were subjected by th e rapacity of the Japanese. It was a delusion to expect peace and normalcy to re turn without eliminating the cause of their disturbance or destruction of the Ja panese army in the Philippines an objective to which the ordinance was not addre ssed. So, even from the point of view of the Filipino people and not of the Japa nese army of occupation, the ordinance in question results untenable. Having reached the conclusion that the enactment of the procedure embodied in sa id 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 th ereof, we are constrained to declare the whole ordinance null and void ab initio . Consequently the proceedings in said court which resulted in the conviction an d 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 suf

fer life imprisonment. He commenced to serve the term on August 21, 1944. Inasmu ch as he was a member of the Metropolitan Constabulary, the basis of the informa tion was Act No. 65, passed during the Japanese sponsored Republic of the Philip pines and amending certain articles of the Revised Penal Code. The trial was hel d by the then existing Court of Special and Exclusive Criminal Jurisdiction whic h 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 Oct ober 23, 1944, the Act under which the petitioner was charged and convicted stan ds 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 eff ect 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, althoug h at the time of the publication of such laws a final sentence has been pronounc ed and the convict is serving the same." In the absence of other details, it may here be assumed that the offense committ ed 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 oth er cases. In accordance with the provisions of the Indeterminate Sentence Law (Acts Nos. 4 103 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 t he violation of law in force at the time of the commission and trial of the crim e, after said laws have been repealed by subsequent legislation, People vs. Mora n (Phil., 44 387); People vs. Tamayo (61 Phil., 226 ), and also repeatedly relea sed on writs of habeas corpus prisoners who, were given the benefit of subsequen t legislation either repealing statute under which they had been convicted or mo difying the same by imposing lesser penalties, Escalante vs. Santos (56 Phil., 4 83); 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 tim e thereafter. In the present case, there being no information that the double th e period of the minimum penalty that could be imposed upon him, he should be rel eased. As this is the effect of the decision of the majority, I concur in the re sult.

DE, JOYA, J., concurring: The principal question involved in this case is the validity of the judicial pro ceeding held in criminal case No. 66 of the Court of Special and Exclusive Crimi nal Jurisdiction, established in the City of Manila, during Japanese occupation, under the authority of Ordinance No. 7, issued by the President of the so-calle d 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 Comman der in Chief of the Japanese Imperial Forces, under the name of the Philippine E xecutive 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, deci ded on September 17, 1945 (p. 133, ante). Said government possessed all the char acteristics of a de facto government as defined by the Supreme Court of the Unit ed States, in the following language: But there is another description of government, called also by publicists a gove rnment de facto, but which might, perhaps, be more aptly denominated a governmen t of paramount force. Its distinguishing characteristics are (1), that its exist ence is maintained by active military power within the territories, and against the rightful authority of an established and lawful government; and (2), that wh ile 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 re sponsible, as wrongdoers, for those acts, though not warranted by the laws of th e rightful government. Actual governments of this sort are established over dist ricts differing greatly in extent and conditions. They are usually administered directly by military authority, but they may be administrated, also, by civil au thority, 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 occupatio n, should be kept open, and whenever practicable, the subordinate officers of th e local administration should be allowed to continue in their functions, support ed by the military force of the invader, because the responsibility of maintaini ng peace and public order, and of punishing crime, falls directly upon the comma nder in chief of the occupying forces. And in the performance of this duty, he m ay 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-exis ting 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 plea sure. 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 ene my. There is no limit to the powers that may be exerted in such cases, save thos e 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 mi litary occupation, that they should continue to carry on the ordinary administra tion under the invader; but the latter has no right to force them to do so. If t hey decline, his only rights, and it is also his duty, is to replace them by app ointees of his own, so far as necessary for maintaining order and the continuanc e of the daily life of the territory: other purposes, as these of the superior j udicial 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 occu pied territory, the invader himself is not left equally free. As it is a consequ ence 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 temporar y, and his rights of control spring only from the necessity of the case, he is a lso bound to alter or override the existing laws as little as possible (Hall, In ternational Law, 6th ed., 476).

The government established here under the Philippine Executive Commission was mo re in consonance with the general practice among civilized nations, in establish ing governments for the maintenance of peace and order and the administration of justice, in territories of the enemy under military occupation; because said go vernment 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 ac cordance with International Law, as it was established under the authority of th e military occupant and supported by the armed forces of the latter. But it was somewhat different from that established under the Philippine Executive Commissi on, because the former apparently, at least, had the semblance of permanency, wh ich however, is unusual in the practices among civilized nations, under similar circumstances. Under military occupation, the original national character of the soil and of th e inhabitants of the territory remains unaltered; and although the invader is in vested with quasisovereignity, which give him a claim as of right to the obedien ce of the conquered population, nevertheless, its exercise is limited by the qua lification which has gradually become established, that he must not, as a genera l rule, modify the permanent institutions of the country (Hall, International La w, 6th ed., p. 460). The Convention Concerning the Laws and Customs of War on Land, adopted at The Ha gue in 1899, lays down (Arts. 42, 43) definite rules concerning military authori ty over the territory of a hostile state. In addition to codifying the accepted law, it provides that the occupant must respect, unless absolutely prevented, th e laws in force in the country. It will thus be readily seen that the municipal law of the invaded state continu es in force, in so far as it does not affect the hostile occupant unfavorably. T he regular courts of the occupied territory continue to act in cases not affecti ng 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 throu gh the agency of the native officials, and also because the latter are more comp etent to administer the laws of the territory; and the military occupant, theref ore, 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 authori ties, 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; La wrence, International Law, 7th ed., pp. 421-413; Davis, Elements of Internationa l Law, 3rd ed., pp. 330-332, 335; Holland, International Law, pp. 356-57, 359; W estlake, International Law, Part II, War 2d ed., pp. 121-123). The judicial proceedings conducted, under the municipal law of the territory, be fore the court established by the military occupant are general considered legal and valid, even after the government established by the invader had been displa ced by the legitimate government of said territory. Thus the judgment rendered by the Confederate courts, during the Civil War, mere ly settling the rights of private parties actually within their jurisdiction, no t tending to defeat the legal rights of citizens of the United States, nor in fu rtherance 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 v s. Bruffy, 96 U. S., 176; Horn vs. Lockhart, 17 Wall., 570; 21 Law. ed., 660; Sp rott vs. United States, 20 Wall., 249; 22 Law. ed., 371)

When the military forces of the Confederate states were destroyed, their governm ent perished, and with it all its enactments. But the legislative acts of the se veral 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, o r the just rights of citizens under the Federal constitution, they were consider ed 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 ju dicial and legislative acts of the rebellious States, as de facto governments, s hould be respected by the courts, if they were not hostile in their purpose or m ode of enforcement to the authority of the national government, and did not impa ir 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, dec laring null and void all laws, regulations and processes issued and promulgated by the Philippine Executive Commission and the Philippine Republic, during Japan ese 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 summar y rules of procedure, and other allied laws, such as Act No. 65 of the puppet re public, prescribing heavier penalties, became null and void, once the Japanese a rmies in the Philippines had been defeated, as with them the de facto government s, successively established under them, perished, and with them all their enactm ents and processes of a hostile character. But there are other considerations equally important why judicial proceedings he ld and conducted before the courts established by said de facto governments, und er 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 pet ry, it ife principal crimes mentioned in said Ordinance No. 7 and Act No. 65 of the pup republic and the other allied laws are illegal possession of firearms, robbe violations of food-control laws, falsification malversation and bribery; and was under said laws that herein petitioner was prosecuted and sentenced to l imprisonment for the crime robbery.

The penalty of life imprisonment or death for robbery was aimed principally at t he underground forces resolute and determined to seize and remove stores of food provisions, whenever possible, to prevent them from falling into the hands of t he 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 justifica tion 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 w as 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 dea th penalty was imposed, and by its summary procedure, said Ordinance No. 7 and t he other allied laws impaired and defeated the just and legal rights of Filipino citizens under the Commonwealth Constitution, and the supremacy of the authorit y of the legitimate Government. Under said laws, the persons accused were depriv ed of liberty without due process of law. In the language of this Court, "the phrase 'due process of law' used in the Phil ippine Bill should receive a comprehensive interpretation, and no procedure shou ld be treated as unconstitutional which makes due provision for the trial of all eged 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 hi m an opportunity to be heard, for the deliberation and judgement of the court, a nd 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 t he 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 compl exion. Those repressive laws were aimed at the men and women who had kept the faith, an d whose heroes and martyrs now lie in graves still unknown and whose names remai n 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 Ameri ca, whose gigantic efforts and heroic sacrifices have vindicated human rights, h uman dignity and human freedom, and consecrated them anew all over the earth wit h the generous blood of her children. They violate the fundamental principles of Justice for which civilized Mankind stands, under the benign leadership of Tota litarianism 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 wort hy life and realize the justice and prosperity of the future. For the foregoing reasons, I concur in the dispositive part of the opinion prepa red by Mr. Justice Feria.

PERFECTO, J., concurring: On October 21, 1944, petitioner William F. Peralta began to serve, in the Muntin glupa Prison Camp, a sentence of life imprisonment imposed by the Court of Speci al and Exclusive Criminal Jurisdiction, created by Ordinance No. 7 issued by Pre sident Laurel of the Republic of the Philippines under the Japanese regime, and now seeks a writ of habeas corpus in order that his liberty may be restored to h im, 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 fundamenta l 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 wa s 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 Const abulary forces, and followed political and military activities in open allegianc e to the Commonwealth Government and the United States of America. The Solicitor General, appearing in behalf of respondent Director of Prisons, an swered 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 F irst 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 sentenc ed 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 o f the Philippine-American Forces, which fought in Bataan and later liberated the whole Philippines, as an aftermath of the liberation, issued a proclamation dec laring: 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 gov ernment having legal and valid jurisdiction over the people in areas of the Phil ippines free of enemy occupation and control; 2. That the laws now existing on the statute books of the Commonwealth of the Ph ilippines 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 Phili ppines than that of the said Commonwealth are null and void and without legal ef fect 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 r egime and that the judicial process under which petitioner has been sentenced to life imprisonment, having been held in a court not belonging to the Commonwealt h of the Philippines but organized and established under the authority of the en emy, became null and void and without effect since October 23, 1944, by virtue o f the above-quoted October Proclamation of General MacArthur. We have explained at length our position as to the effects of said October Procl amation 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 he ld under it show once more how General MacArthur was absolutely right and justif ied in issuing the October Proclamation. There are indications that more processes held under the Japanese regime will co me to our knowledge, revealing strong grounds for their annulment, justifying, l ike the process here in question, the wisdom of the decision of General MacArthu

r in nullifying in a sweeping manner all judicial processes held during enemy oc cupation. 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 Philippin e Islands with Jose P. Laurel, formerly a justice of the Philippine Supreme Cour t as president. Jorge Vargas, formerly a member of the Philippine Commonwealth C abinet 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 ap peal 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 Exe cutive Commission" nor the present Philippine Republic has the recognition or sy mpathy of the Government of the United States. . . . Our sympathy goes out to those who remain loyal to the United States and the Com monwealth 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 qu estion, we will see immediately how such law and the processes held under it are incompatible with the fundamental principles and essential safeguards in crimin al procedure, universally recognized in civilized modern nations and how such or dinance and processes can only be justified by a retrogressive and reactionary m entality developed under the social, cultural, and political atmosphere of the e ra 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 t he summary procedure provided in Act No. 65 of the Laurel Philippine Republic, w hich, 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 pros ecuting officer, authorizing peace officers to search for and seize any articles or objects described in the warrant, including those which may be regarded as e vidence 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." T his provision is repugnant to the Filipino sense of right in the matter of warra nts 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 effec ts against unreasonable searches and seizure shall not be violated, and no warra

nts shall issue but upon probable cause, to be determined by the judge after exa mination under oath or affirmation of the complaint and witnesses he may produce , and particularly describing the place to be searched, and the persons or thing s to be seized. (Art. III, sec. 1, No. 3, Constitution of the Philippines.) This constitutional provision is violated by the summary, unreasonable, and arbi trary procedure provided under the authority of the ordinance in question: (1) By authorizing "any prosecuting officer" to issue search warrants, when unde r 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 o f Court, considered as a necessary element to make the warrant reasonable; (3) By authorizing the search and seizure of articles or objects not described i n 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 wr it habeas corpus are hereby suspended with respect to persons accused of, or und er investigation for, any of the crimes and offenses enumerated in sections 1 an d 2 hereof." This provision is also violative of one of the fundamental guarantees establishe d 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 case s of invasion, insurrection, or rebellion, when the public safety requires it, i n 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, Constituti on of the Philippines.) Again, it is evident that the ordinance in question is repugnant to the deep sen se 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 s aid suspension, but because it flagrantly violates the fundamental principle of equality before the law, by depriving the accused, in cases falling under the or dinance 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 hi s representative may be examined by the court, and with the permission of the co urt, by the fiscal or other prosecuting officer as to any matters favorable or u nfavorable 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, irrespe ctive of the circumstances under which they were made shall be admissible in evi dence if material to the issue." (Emphasis ours.)

Under section 21 of Executive Order No. 157, after arraignment and plea, "the ju dge shall interrogate the accused . . . as to facts and circumstances of the cas e in order to clarify the points in dispute and those which are admitted." In th e same section it is also provided that "refusal of the accused to answer any qu estions made or allowed by the court may be considered unfavorable to him." (Emp hasis 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 t he 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 h im; (3) That statements made by the accused, "irrespective of the circumstances unde r 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 perso nal 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 o r 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 represe ntative 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, "irrespect ive of the circumstances under which they were made (that is, even if made in th e absence of the accused, or in the same circumstances under which masked spies decreed the death of innocent citizens pointed by them during zoning concentrati ons), 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 representat ive. It is evident that the procedure established violates the following provisions o f 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 cou nsel, to be informed of the nature and cause of the accusation against him, to h ave a speedy and public trial, to meet the witnesses face to face, and to have c ompulsory 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, th at it takes a real courage to keep our equanimity while we are compelled to anal

yze 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 a cquired as a result of protest against all inquisitorial and third degree proced ures. We must not forget how, not very long ago, in the thirteen colonies of Ame rica, 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 inst itution created in the twelfth century was the cause of so much tortures and suf ferings, and that the terroristic menace of its rakes was abolished in Spain, an d 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 th e 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 c ases we have under consideration, there is evidence of confessions exacted throu gh cruel and brutal means. No matter what merits can be found, from the theoretical point of view, in the a rguments of those who are championing the suppression of the constitutional guar antee against self-incrimination, the undeniable reality of human experience sho ws conclusively the absolute need of such guarantee if justice must be served. E ven with the existence of such guarantee, there are officers of the law who cann ot resist temptation of using their power to compel, through third degree method s, innocent or guilty persons to admit involuntarily real or imaginary offenses. Let us allow changes tending to nullify the protection against self-incriminati on, and no man, however innocent he may be, shall be secure in his person, in hi s 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 specia l 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 desi gnated by the President of the Republic of the Philippines." This provision is a clear violation of the fundamental right of appeal, constitu tionally 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 imprison ment. (Art. VIII, sec. 2, No. 4, Idem.)

(5) In all cases in which an error or question of law is involved. (Art. VIII, s ec. 2, No. 5, Idem.) Before the adoption of the Constitution of the Philippines, it was the prevailin g 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 experi ence, came to the conclusion that mistake is one of the most irretrievable human weaknesses. The drafters of our Constitution, therefore, considered it necessary to establis h 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 Constit ution, 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 depriv ed 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 impa ir 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 ena cted 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 C onstitution 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 go vernment of laws. In a case of denaturalization wherein the Government of the Un ited States sought to deprive a person of his American citizenship, on the groun d that the 1928 platform of the Communist Party of the United States, to which t he respondent belonged, advocated the abolition of the supreme Court, of the Sen ate and the veto power of the President, and replacement of congressional distri cts with "councils of workers" in which legislative and executive powers would b e 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 co untry but whatever our personal views, as judges we cannot say that person who a dvocates 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 conceivab le that "orderly liberty" could be maintained without them. The Senate has not g one 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 governme nt, this Court at various lines its existence has not escaped the shafts of crit

ics whose sincerity and attachment to the Constitution is beyond question critic s who have accused it of assuming functions of judicial review not intended to b e conferred upon it, or of abusing those function to thwart the popular will, an d who advocated various remedies taking a wide range. (Schneiderman vs. United S tates 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 abridg ed in the summary procedure in criminal cases under Ordinance No. 7: (1) By the fact that the accused therein are victims of search warrants speciall y provided for them, where the guarantees against unreasonableness in search war rants issued against other accused are specially eliminated. (2) By depriving the accused, under the Ordinance No. 7, the privilege of the wr it 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 righ t 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 t o be specially called out by the President of the Laurel Philippine Republic, un doubtedly 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 si tuation 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 th e 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 VI OLATED Since the American flag began to fly over our soil, the fundamental guarantee th at in all criminal prosecution the accused shall be presumed innocent until the contrary is proved beyond all reasonable doubt, has been implanted in our countr y to remain forever. That guarantee was consecrated in our Constitution: In all criminal prosecution the accused shall be presumed to be innocent until t he contrary is proved, and shall enjoy the right to be heard by himself and coun sel, to be informed of the nature and cause of the accusation against him, to ha ve 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. II I, sec. 1, No. 17, Constitution of the Philippines.) This guarantee is undoubtedly violated when, in the summary procedure establishe d by Ordinance No. 7, it is provided that the refusal of the accused to answer a ny question, propounded by the court or any officer, "may raise unfavorable pres umption against him." If we have to keep democracy in our country, we must be vigilant in upholding th

e constitutional principle that all persons shall be presumed to be innocent unt il the contrary is proved beyond all reasonable doubt. This principle is the opposite of that prevailing under autocracies, or under fa cist or totalitarian regimes. During the Japanese occupation all persons who mig ht fall under the suspicion of any Japanese or their spies and lackeys, were pre sumed 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 t hey might think later of committing any offense against the Japanese or their co llaborators. 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 ene my occupation the Laurel Philippine Republic enacted Ordinance No. 7 which suspe nded our laws, including the fundamental one, by substantially subverting the ju dicial 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 legitim ate government, once restored to its own territory, after expelling the enemy in vader, enjoys the absolute freedom of not recognizing or of nullifying any and a ll acts of the invader, including those internationally legal ones. The situatio n is exactly the same as that of the owner of the house who can do anything in i t that pleases him, after expelling the bandit who was able to usurp its possess ion for a while. General McArthur exercised correctly that power by the sweeping nullification de creed in his October Proclamation. But even without the October Proclamation, the judicial process maybe it is bett er to say injudicial process which resulted in the imprisonment of petitioner, m ust 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 AU THORITY IS UNENFORCEABLE The decision by which petitioner William F. Peralta was convicted and is being c onfined for life having been rendered by a tribunal created, functioning, and ac ting under the authority of a foreign State, the Emperor of the Imperial Governm ent 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 ha ve 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 vo id 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 D ouglas MacArthur, still it cannot be enforced, being a foreign decision. A forei gn 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 Stat es 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 judic ial 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 Unit ed States, or in the States or territory where it was made, except that it can o nly 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 beyon d the jurisdiction of the Government under which he was invested with his author ity. 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 follow s: (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 eviden ce of a right as between the parties and their successors in interest by a subse quent title; but the judgement may be repelled by evidence of a want of jurisdic tion, 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 subm it statistical data concerning the number of prisoners and the various crimes fo r which they were convicted by the Court of Special and Exclusive Criminal Juris diction. In submitting said statistical data, the Solicitor General, as counsel for respo ndent, calls our attention to the fact that, out of the 92 prisoners committed b y 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 petitio ner in this proceeding, thus dissipating the unfounded fear entertained by the C ity Fiscal of Manila, to the effect that a pronouncement by this Supreme Tribuna l that the sentences of the courts in question are null and void, will signify t he 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 fo r evasion of service of sentence, and the other for illegal possession of firear ms. Of the 55 prisoners convicted for illegal possession of firearms, 25 died, 23 we re released, and 6 escaped, and this is the reason why only one remains in confi nement. It is striking that so many prisoners died, 25 of those convicted for illegal po ssession of firearms, that is, almost 50% of them, 33 of the total of 94 prisone rs committed, or more than one-third of them. This unusual and shocking percenta

ge of mortality is worth inquiring into and, certainly, cannot be counted very f avorably 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, wa s 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 t he First Assistant Solicitor General, who appeared to argue the case in behalf o f 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 bec ause 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 s ections 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 th e 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 mor ally 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 c ourts in question? The City Fiscal of Manila exerted great efforts to show that the fact that in th e proceedings in question "the refusal of the accused to answer any question mad e or allowed by the court may be considered unfavorable to him," does not violat e the constitutional guarantee against self-incrimination. He even goes to the e xtent of maintaining the theory that such constitutional guarantee is not essent ial 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 puni shment 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 o f the accused "may be considered unfavorable to him", is of no consequence at al l. Such belief can logically be entertained alone by ignoring completely the lesson s of experience in human conduct. If the refusal to answer can be considered unfavorably to the accused, is not th at the same as placing him on the hard predicament of choosing between testifyin g self-incriminating and risking the fatal effects of a legal presumption of gui lt? 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 hi m 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 debat e upon the abstract question whether the constitutional guarantee against self-i ncrimination should not remain. But the value of such a moot question, for purpo ses of this case, is nil. The constitutional guarantee had to be adopted as a protest against inquisitoria l method of the past, when accused and suspects were submitted to the most bruta l torture to compel them to confess real or imaginary crimes. That past is not f ar 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 constit utional law. It is the very negation of the administration of justice. Such proc edure 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 s hould permit ourselves to fall into the weakness of abetting it even for a momen t, 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 serv ility 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 blo w, is an imperative measure of national self-defense. XI. THE PETITIONER IS ENTITLED, AS A MATTER OF ABSOLUTE RIGHT, TO IMMEDIATE RELE ASE After showing the absolute nullity of the judicial process under which petitione r 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 immedia tely released, so that he can once again enjoy a life of freedom, which is the n atural boon to law-abiding residents of our country, and of which he was unjustl y 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 c omply 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 hatef ul vestiges left in our country by the moral savagery of a people spiritually pe rverted and debased. The seriousness of this matter cannot be viewed with insouc iance. We must not lose time to wipe out such vestiges if we must protect oursel ves against their poisonous effects in our political, social, and cultural patri mony. We must erase those vestiges if we want to keep immune from all germs of decay t he 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 o f 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 an cient 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; wh ile 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 festival s, 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 cer tainty and assurance of itself just from the crushing ruin of goods and men. The y are themselves now just what they are for us beautiful fruit broken off the tr ee, 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 thei

r substance, nor the climate that determined their constitutive character, nor t he change of seasons which controlled the process of their growth. So, too, it i s not their living world that fate preserves and gives us with those works of an cient 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 o nly to restore immediately the petitioner to his personal liberty, but, all poss ible means, to obliterate even the memory of the inquisitorial summary procedure depicted in the present case. Such procedure exhibits either inversion, retroversion, subversion, or perversio n of elemental human concepts. It ignores completely and debases the high purpos es of a judicial procedure. It represents a hylistic ideology which proclaims th e supremacy of the state force over fundamental human rights. We must never allo w the neck of our people to be haltered by the lethal string of that ideology. I t is a virus that must be eliminated before it produces the logical disaster. Su ch ideology is a cancerous excrescence that must be sheared, completely extirpat ed, 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 und er the principles embodied in our Constitution. To profess attachment to those p rinciples and, at the same time, to accept and justify such kind of criminal mis carriage of justice, is just sheer hypocrisy. It is a repetition of what Seneca did when, after preaching moral virtues, justified without any compunction the a ct of Nero, the sanguinary Roman Emperor, of murdering in cold blood his own mot her. It is reproducing the crooked mentality of Torquemada, who, upon the pretex t of combating and persecuting heresy to save souls from hell, conceived the dia bolical 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 bigo try 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 p rocedure to remain is tantamount to reviving the situation during which our citi zens 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 t hin 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 justifie d such abhorrent summary procedure and allowed themselves to become a party to t he execution of a scheme only acceptable to the undeveloped mentalities of the d ark 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 b rutal ideology which is the very opposite of the humane, lofty, and dignified id eology that placed said heroes and martyrs among the purest and noblest specimen s that humanity produced in all countries, in all time, for all ones and light y ears to come. It is with joy and pride that we agree with all our brethren in unanimously gran ting 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 herei n sought should be granted. Secondly, the importance and transcendence of the le gal principles involved justify further elaboration. From the allegations of the petition herein, it can be deduced that the petition er William F. Peralta was a "guerrillero" when he was arrested, tried and convic ted; and that he had never voluntarily submitted to the Japanese forces in his c ivil capacity. No attempt is made in the Solicitor General's answer to controvert the facts all eged in the petition from which the foregoing deduction flows, and from the reco rd nothing appears which may tend to gainsay them. Even when he was forced tempo rarily to join the Constabulary, which had been organized under orders of the Ja panese Army in the Philippines, he did so against his will. Even granting for the sake of argument, and laying aside for the moment the reas ons 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 bi nding upon the United States and the Commonwealth of the Philippines, yet such r ules would not be any avail to bind the herein petitioner by the laws, regulatio ns, 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 Crimina l 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 govern ments, which have been variously called de facto governments, or governments of paramount force, with a view to finding the real ground and philosophical justif ication for the doctrine therein announced, we will see that reason and that jus tification are made to consist in the submission of the inhabitants upon whom th e 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 ex cerpts from three leading cases decided by the Supreme Court of the United State s: 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 obe yed 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 a cts, though not warranted by the laws of the rightful government (p. 363; Emphas is ours). The authority of the United States over the territory was suspended, and the law s of the United States could no longer be rightfully enforced there, or be oblig atory 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 owe d to the United States nothing more than the submission and obedience, sometimes

called temporary allegiance, which is due from a conquered enemy, when he surre nders 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, suspende d, and the laws of the United States could no longer be rightfully enforced ther e, or be obligatory upon the inhabitants who remained and submitted to the conqu erors. (P. 564; Emphasis ours.) It results from the above-quoted pronouncements of the Supreme Court of the Unit ed 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 doctr ine could not logically have thought of the army of occupation setting upon a ci vil government for those who still continued resistance. As to them, further mil itary operations would be necessary to reduce them to submission, before one cou ld 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 in vasion of their country, and to the very date of liberation refused to accept th e alleged protection or benefits of the puppet governments of the "Philippine Ex ecutive Commission" and the "Republic of the Philippines." The majority of our p eople lived in the provinces, in the farms, hills and other places beyond the ef fective reach of the Japanese military garrisons. Only a small minority submitte d to the invaders for various reasons, such as their having been caught in Manil a or other parts of the Island occupying government positions, or residing there in without adequate facilities for escaping from or evading said invaders, reaso ns of ill health, disabling them from living the hard life of the mountains, hil ls, or country places, and the like. To have bound those of our people who constituted the great majority who never s ubmitted to the Japanese oppressors, by the laws, regulations, processes and oth er 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 institution s on the one hand bound to continue owing allegiance to the United States and th e Commonwealth Government, and, on the other, to owe allegiance, if only tempora ry, to Japan. Among them we find the petitioner William F. Peralta. The surrende r of the Fil-American forces in Bataan and Corregidor did not matter so far as t his was concerned. Much less did that surrender obligate all the civil populatio n to submit to the Japanese, and obey all their future dictations. If it did, Pr esident Roosevelt and President Osmea would not have so heartily commended the Ph ilippine 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 mentio ned dissenting opinion. If these historic utterances should seem incompatible wi th any provision of the Hague Convention, we should understand from them that bo th 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 a ttitude was based upon the renunciation of war as an instrument of national poli cy 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 governmen t, with its courts and other departments, in occupied enemy territory, is the al leged convenience of the civil population. It can immediately be asserted in rep ly that the convenience of the above-mentioned overwhelming majority of our peop le, far from requiring the establishment of such government, was in the very nat ure of things positively opposed thereto. They not only did not need the suppose d benefits of such a government, but they actually reputed them as inimical to t he 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 su ffered, 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 governmen t 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 all eged benefits and assume the burdens of a government they have never consented t o 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 Philippin e 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 prescri bed by International Law, must be deemed to have forfeited the right to invoke t hat law in so far as specific provisions thereof would favor her or her acts. Ja pan in treacherously attacking Pearl Harbor and the Philippines, successively on December 7 and 8, 1941, violated the rule providing for the necessity of declar ing 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 requir ing that war prisoners be cared for and treated with humanity (Ibid, p. 377); th e 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 milit ary defenses had been removed; the rule exempting noncombatants from personal in jury (Ibid, 397) her violations of one or the other of which were matters of dai ly occurrence, one might say, during her three and a half years of tyranny and o ppression in this country, and were climaxed by the ignominious and indescribabl e atrocities of the mass massacre of innocent civilians during the battle for Ma nila. 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 poi nt of International Law is doubtful, they can resort only to general reasoning f or 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 d oubts, 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 accordan ce 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 hea rd to say that the government which she established here was a de facto governme nt, 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 ch anges 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 dep artment, executive, judicial, and legislative. To begin with, the Commonwealth C onstitution was completely overthrown. It was replaced by the so-called constitu tion 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 spec ified in the ordinance appended thereto, in the very preamble of the constitutio n of the "Republic" the independence " of the Philippines is proclaim. While und er the Commonwealth Constitution the President and Vice-President are elected "b y direct vote of the people "Art. VII, sec. 2), under the constitution of the "R epublic" the President (no Vice-President is provided for) was elected "by major ity of all the members of the Assembly" (Art. II, sec. 2). While under Commonwea lth 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 distr icts (Art. VI, 5), under the constitution of the "Republic" the National Assembl y 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, r especting the Judicial Department, the members of Supreme Court and all judges o f inferior courts are appointed by the President with the consent of the Commiss ion 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 Presid ent with the advice of the Supreme Court (Art. IV, sec. 4). These changes and innovations can be multiplied many times, but the foregoing wi ll suffice for our purpose. It has been said constantly in this discussion that political acts, or acts of a political complexion of a de facto government of paramount force, are the only ones vitiated with nullity. Of course, I disagree with those who so hold. But ev or, which is the same, the Imperial Japanese Forc en by this test the "Republic" es which gave it birth in thus introducing such positive changes in the organiza tion of this country or suspending the working of that already in existence, exe cuted 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, i nevitably had to be contaminated by the same vitiating defect. Thus judicial acts done under his control, when they are not of a political comp lexion, 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 pr ivate 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 w orking 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 gove rnment in Castine, and ran it is a purely British organization. The Americans es

tablished another such government in Tampico, and ran it as an American organiza tion. The Confederate States established a like government in the seceding State s, 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 es tablished under their orders and was to be run subject to their direction and co ntrol? Far from it! They employed all the means they could conceive to deceive t he Filipino people and the outside world that they had given the Filipinos their independence, and that "Republic" thereunder. But behind the curtain, from begi nning to end, there was the Imperial Japanese Army giving orders and instruction s and otherwise directing and controlling the activities of what really was thei r creature for the furtherance of their war aims. I cannot believe that those wh o conceived and developed the doctrine of de facto government or government of p aramount 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 d espues 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 Fi lipinas que no fuera el del Commonwealth son nulos e invalidos y carecen de efec to 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 d e que trata dicha proclama puede referirse tambien a actuaciones judiciales ( ju dicial 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 jui cio, 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 nues tra en el sentido de anularla y dejarla sin efecto. Mis razones se exponen a con tinuacion. Parece innegable que la ley procesal bajo la cual fue enjuiciado y convicto el r ecurrente durante la ocupacion japonesa era absolutamente incompatible con las s alvaguardias y garantias de un proceso justo, imparcial y ordenado que la consti tucion y legislacion procesal del Commonwealth de Filipinas otorgan a todo acusa do en una causa criminal. Hay en dicha ley ciertos aspectos decididamente repuls ivos para una conciencia disciplinada en las normas y pricipios de una democraci a constitucional. Bajo nuestro sistema procesal el acusado tiene derecho a que no se le ponga en s ituacion de acriminarse. Tiene a derecho a callarse sin que esto pueda astribuir sele 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 const

estar cualqueira pregunta formulada por el tribunal o permitida por el mismo, pu ede 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 e xtremo que "una sentencia condenatoria puede dictarse inmediatemente contra el a cusado siempre que los hechos discubiertos en el interrogatorio preliminar demue stren que el acusado es culpable." Bajo el sistema procesal del Commonwealth, cualquier acusado convicto ante el Ju zgado de Primera Instancia tiene el derecho de apelar de la sentencia para ante el Tribunal superior de revision; y en los casos de condena a reclusion perpetua o a muerte, el Tribunal Supremo es el llamado a revisar la causa, siendo compul soria la revision en el caso de condena a muerte. Esta jurisdiccion del Tribunal Supremo en los casos de condena a reclusion perpetua y a muerte no se halla est atuida simplemente por una ley ordinaria, sino que esta proveida en la misma con stitucion del Commonwealth. Asi que el derecho del condenado a reclusion perpetu a o a muerte para que se revise su cuasa por el Tribunal Supremo es constitucion al y, por ende, no puede ser abolido por un simple fiat legislativo. En cambio, bajo el sistema procesal en controversia las sentencias de los tribun ales 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 especi al del Tribunal Supremo compuesta de tres miembros (Ordenanza No. 7 de la llamad a Republica de Filipinas por la que se crearon las tribunales especiales o sumar ios). De modo que en esta ordenanza no solo se suprimia de una plumada el derech o de apelar reconocido y establecido por la legislacion procesal del Commonwealt h aun en los casos de delitos y penas ordinarios, sino que inclusive quedaba abo lido el derecho de apelar otorgado por la constitucion del Commonwealth al acusa do 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 se ntencia 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 extinguien do su condena de reclusion perpetua, o debemos anularla ahora que esta en nuestr as manos el poder hacerlo, restablecida como esta enteramente la normalidad juri dica y constitucional en nuestro pais. En favor de la validez de dicha sentencia se arguye que fue dictada por un tribu nal 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 dueo de establecer los procedimientos legales que quisiera ; y que, segun las reglas y doctrinas conocidas de derecho international, las se ntencias por "crimenes de guerra" o delitos politicos" generalmente validas aun despues de restablecido el gobierno de jure. Se alega que en estos casos el dere cho no tiene mas remedio que ceder a la fuerza, aceptando la realidad de los hec hos 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 estable cido en el articulo 43 de las Regulaciones de La Haya, son nulos y sin efecto co n relacion al gobierno legitimo." (Wheaton's International Law, 7th ed. [1944], p. 245.) Segun esto, las sentencias por "crimenes de guerra" o "delitos politico s" cometidos durante la ocupacion son, por razones pecfetamente comprensibles, n ulas e invalidas al restablecerse la soberania legitima. Tambien quedan comprend idos bajo esta excepcion los denominados actos de caracter o complexion politica . Otra limitacion a los poderes de un gobierno de ocupacion militar es que elejerc icio 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 pr ohibe 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. (H all, Treatise on International Law, 7th ed., 498,499). Lo que se hace fuera de e stas limitaciones es en exceso de su competencia y es generalmente nulo al rstau rarse la soberania legitima. Otra excepcion es la que se refiere a los actos de un gobierno de facto resultan te 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 l os Estados Unidos, o encaminados a anular los justos derechos de los ciudadanos, y otros actos de igual indole, deben ser considerados, por lo general, invalido s 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 insurre ccionados, siempre que su proposito o modo de operacion no fuerte hostil a la au toridad 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 ad optar para determinar si es o no valida la sentencia por la la cual el recurrent e sufre ahora pena de reclusion perpetua y pide ser liberado mediante peticion d e habeas corpus? Se aservera que no procede aplicar al presente caso la doctrina establecida en l a jurisprudencia americana sobre gobiernos de facto resultantes de una insurecci on, revolucion o guerra civil porque evidentemente la llamada Republica de Filip inas instaurada durante la ocupacion militar japonesa no tenia este caracter, si no que era mas bien un gobierno establecido mediantefuerza y coaccion por los mi smos invasores para promover ciertos designios politicos relacionados con sus fi nes 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 re publica no tenia caracter insurreccional ni revolucionario, en disfrute de plena autonomia, sino que era simple producto de la coaccion y estaba mediatizada con tinuamente por el invasor, difiero de la otra parte, aquella que declara inaplic able la conocida doctrina americana mencionada arriba sobre gobiernos de facto e stablecidos en el curso de una insurreccion, revolucion o guerra civil. Y la raz on es sencilla. Si a un gobierno de factode este ultimo tipo gobierno establecid o, despues de todo, por compatriotas,por conciudadanos se le coarta con la restr iccion de que sus actos legislativos o judiciales, en tanto son validos, al rest aurarse el regimende jure, en cuanto no conculcaren los derechos justos de los c iudadanos, a los derechos garantidos por la constitucion, parece que no existe n inguna razon por que no se ha de aplicar la misma restriccion al gobierno de fac to 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 ma nera 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 co bra proporciones de mucha mayor gravedad porque viene a ser tan solo parte de un vasto plan de rapia, devastacion y atrocidades de todo genero cometidas contra l a humanidad y contra las leyes y usos de la guerra entre naciones civilizadas. E l invasor, en este caso, es como el foragido que se coloca fuera de toda ley. Po r tanto, no hay absolutamente ninguna razon para no aplicarle una restriccion qu e se estimabuena para el insurrecto o revolucionario. La ventaja de extender hasta cierto punto la doctrina sobre gobiernos de facto r esultantes de una insurreccion, rebelion o guerra civil a gobiernos de facto est ablecidos como incidente en el curso de una guerra entre dos naciones independei

entes 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 decla rarlos validos o nulos al restablecerse el gobierno de jure, ya no se hace preci so examinar si los actos conculcatorios fueron motivados por razones o exigencia s 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 mi smo de la conculcacion. Esta forma de racioncinio no solo no es heterodoxa a la luz de los pincipiosesta blecidos de derecho internacional, sino parece ser una logica inferenciade los m ismos. Ya hemos visto que al ocupante militar en el curso de unaguerra internaci onal 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.) Ahor a cabe preguntar: Son los justos derechos de los ciudadanos, o los fundamentales garantidos por la constitucion inferiores en categoria a la propiedad, o las rel aciones personales privadas, o al ordenmoral de la comunidad? No son en cierto se ntido hasta superiores? Por tanto,a nadie debe chocar que la prohibicion se exti enda a estas materias. Es unainclusion y perfectamente natural, mas que justific ada por los avances y conquistas del moderno derecho internacional. Notese que e n las fraguas de esta ultima guerra se han forjado unas modalidades juridicas ha rto originalesque denotan el esfuerzo supremo y gigante dela humanidad por super ar la barbarie y por dar al traste con las formulas arcaicas, reaccionarias. Par a 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 j efes 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 Filip inas debe ser declarada nula, acotando las palabras delProcurador General, "no s olo por razones fundadas en principios de derecho internacional, sino tambien po r la mas apremiante y poderosa de las razones,la de preservar y salvaguardar a n uestros 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 prolon gar el regimen de opresion bajo el cual se tramito y se dicto la referida senten cia. Es mas, equivaldria a sancionar laideologia totalitaria, despotica, medieva l contra la cual nuestro pueblo lucho tan heroicamente jugandose todo; vida libe rtad y bienes materiales. Ciertamente no nos hemos librado de la opresion para llegar a tan irrisorioresul tado. Concedase el remedio pedido. 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 insur ance 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 apply ing the appropriate Civil Code provisions decided in favor of the mother, the pl aintiff 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 h ave 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 t he child is with the mother. There are no circumstances then that did militate a gainst 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 g reater stress on family unity under the present Constitution, did weigh in the b alance the opposing claims and did come to the conclusion that the welfare of th e 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 wom an, the plaintiff, Melchora Cabanas. She was ten years old at the time the compl aint was filed on October 10, 1964. The defendant, Francisco Pilapil, is the bro ther 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 de ath, the proceeds were paid to him. Hence this complaint by the mother, with who m the child is living, seeking the delivery of such sum. She filed the bond requ ired by the Civil Code. Defendant would justify his claim to the retention of th e 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 ju dgment 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. T he former provides: "The father, or in his absence the mother, is the legal admi nistrator of the property pertaining to the child under parental authority. If t he property is worth more than two thousand pesos, the father or mother shall gi ve 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 ow nership, 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 appeal ed 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, therefo re, belongs to the minor child in ownership, and in usufruct to the plaintiff, h er mother. Since under our law the usufructuary is entitled to possession, the p laintiff 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 applicabilit

y of the two cited Civil Code provisions can be disputed, the decision must stan d. There is no ambiguity in the language employed. The words are rather clear. T heir meaning is unequivocal. Time and time again, this Court has left no doubt t hat where codal or statutory norms are cast in categorical language, the task be fore it is not one of interpretation but of application. 6 So 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 def endant-appellant 7 to blunt the force of legal commands that speak so plainly an d so unqualifiedly. Even if it were a question of policy, the conclusion will re main 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 3 21 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 f or the offspring, the protection is supplied by the bond required. With the adde d 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 Art icle 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 Patrimoni o de los hijos es una consecuencia natural y lgica de la patria potestad y de la presuncin de que nadie cuidar de los bienes de acqullos con mas cario y solicitude q ue los padres. En nuestro Derecho antiguo puede decirse que se hallaba reconocid a de una manera indirecta aquelia doctrina, y asi se desprende de la sentencia d el 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 l os 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 but tressed 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 litiga tion 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 c laims. 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 bee n 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 instr umentality 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 i n a royal person or in the legislature, and has no affinity to those arbitrary p owers which are sometimes exerted by irresponsible monarchs to the great detrime nt of the people and the destruction of their liberties." What is more, there is this constitutional provision vitalizing this concept. It reads: "The State sha ll strengthen the family as a basic social institution." 10 If, as the Constitut ion 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 u ncle, 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-app ellant. Zaldivar (Chairman), Antonio, Fernandez and Aquino, JJ., concur. Barredo, J., took no part.

Footnotes 1 Decision, Record on Appeal, 24. 2 Cf. Ibid, 24-25. 3 Article 320 of the Civil Code (1950). 4 Article 321 of the Civil Code (1950). 5 Decision, Record on Appeal, 27. 6 Cf. People vs. Mapa, L-22301, Aug. 30, 1967, 20 SCRA 1164; Pacific Oxygen & Ac etylene Co. v. Central Bank, L-21881, March 1, 1968, 22 SCRA 917; Dequito v. Lop ez, L-27757, March 28, 1968, 22 SCRA 1352; Padilla v. City of Pasay L-24039, Jun e 29, 1968, 23 SCRA 1349: Garcia v. Vasquez, L-26808, March 28, 1969, 27 SCRA 50 5; La Peria Cigar and Cigarette Factory v. Caparas, L-27948 and 28001-11, July 3 1, 1969, 28 SCRA 1085; Mobil Oil Phil., Inc. v. Diocares, L-26371, Sept. 30, 196 9, 29 SCRA 656; Luzon Surety Co., Inc. v. De Garcia, L-25659, Oct. 31, 1969, 30 SCRA 111; Vda. de Macabenta v. Davao Stevedore Termin al Co., L-27489, April 30, 1970, 32 SCRA 553; Republic Flour Mills, Inc. v. Commissioner of Customs, L-28463, May 31, 1971, 39 SCRA 269; Maritime Co. of the Phil. v. Re parations Commission, L-29203, July 26, 1971, 40 SCRA 70; Allied Brokerage Corp. v. Commissioner of Customs, L-27641, Aug. 31, 1971, 40 SCRA 555.; Gonzaga v. Co urt of Appeals, L-27455, June 28, 1973, 51 SCRA 381; Vallangca v. Ariola, L-2922 6, Sept. 28, 1973, 53 SCRA 139; Jalandoni v. Endaya, L-23894, Jan. 24, 1974, 55 SCRA 261; Pacis v. Pamaran, L-23996, March 15, 1974. 7 Brief for the Defendant-Appellant, 8-9. 8 2 Manresa, Codigo Civil Espaol, 38 (1944). 9 Nery v. Lorenzo, L-23096, April 27, 1972, 44 SCRA 431, 438-439. 10 Article II, Section of the Constitution.