Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. 152259
July 29, 2004
ALFREDO T. ROMUALDEZ, petitioner,
vs.
THE HONORABLE SANDIGANBAYAN (Fifth Division) and the
PEOPLE of the PHILIPPINES, respondents.
DECISION
PANGANIBAN, J.:
Repetitive motions to invalidate or summarily terminate a criminal
indictment prior to plea and trial, however they may be named or
identified -- whether as a motion to quash or motion to dismiss or
by any other nomenclature -- delay the administration of justice
and unduly burden the court system. Grounds not included in the
first of such repetitive motions are generally deemed waived and
can no longer be used as bases of similar motions subsequently
filed.
Section 5 of the Anti-Graft Law is constitutional. It penalizes certain
presidential relatives who "intervene, directly or indirectly, in any
business, transaction, contract or application with the
Government." This provision is not vague or "impermissibly broad,"
because it can easily be understood with the use of simple
statutory construction. Neither may the constitutionality of a
criminal statute such as this be challenged on the basis of the
"overbreadth" and the "void-for-vagueness" doctrines, which apply
only to free-speech cases.
The Case
Before us is a Petition for Certiorari1 under Rule 65 of the Rules of
Court, seeking to set aside the November 20, 20012 and the March
1, 20023 Resolutions of the Sandiganbayan in Criminal Case No.
13736. The first Resolution disposed thus:
"WHEREFORE, for lack of merit, the Motion to Dismiss is hereby
DENIED. The arraignment of the accused and the pre-trial of the
case shall proceed as scheduled."4
The second Resolution denied reconsideration.
The Facts
The facts of the case are narrated by the Sandiganbayan as follows:
"[The People of the Philippines], through the Presidential
Commission on Good Government (PCGG), filed on July 12, 1989 an
information before [the anti-graft court] charging the accused
[with] violation of Section 5, Republic Act No. 3019,5 as amended.
The Information reads:

'That on or about and during the period from July 16, 1975 to July
29, 1975, in Metro Manila, Philippines, and within the jurisdiction of
[the Sandiganbayan], said [petitioner], brother-in-law of Ferdinand
E. Marcos, former President of the Philippines, and therefore,
related to the latter by affinity within the third civil degree, did then
and there wil[l]fully and unlawfully, and with evident bad faith, for
the purpose of promoting his self-interested [sic] and/or that of
others, intervene directly or indirectly, in a contract between the
National Shipyard and Steel Corporation (NASSCO), a governmentowned and controlled corporation and the Bataan Shipyard and
Engineering Company (BASECO), a private corporation, the
majority stocks of which is owned by former President Ferdinand E.
Marcos, whereby the NASSCO sold, transferred and conveyed to the
BASECO its ownership and all its titles and interests over all
equipment and facilities including structures, buildings, shops,
quarters, houses, plants and expendable and semi-expendable
assets, located at the Engineer Island known as the Engineer Island
Shops including some of its equipment and machineries from Jose
Panganiban, Camarines Norte needed by BASECO in its shipbuilding
and ship repair program for the amount of P5,000,000.00.
'Contrary to law.'
"On December 27, 1996, the accused filed his first 'MOTION TO
DISMISS AND TO DEFER ARRAIGNMENT' claiming that no valid
preliminary investigation was conducted in the instant case. He
asserts that if a preliminary investigation could be said to have
been conducted, the same was null and void having been
undertaken by a biased and partial investigative body.
"On January 9, 1997, [the Sandiganbayan], through the First
Division, issued an order giving the accused fifteen days to file a
Motion for Reinvestigation with the Office of the Special Prosecutor.
"[Petitioner] questioned said order before the Supreme Court via a
petition for Certiorari and Prohibition with prayer for temporary
restraining order. On January 21, 1998, the Supreme Court
dismissed the petition for failure to show that [the Sandiganbayan]
committed grave abuse of discretion in issuing the assailed order.
"On November 9, 1998, the [petitioner] filed with the Office of the
Special Prosecutor a Motion to Quash.
"On September 22, 1999, x x x Special Prosecution Officer (SPO) III
Victorio U. Tabanguil, manifested that the prosecution had already
concluded the reinvestigation of the case. He recommended the
dismissal of the instant case. Both the Deputy Special Prosecutor
and the Special Prosecutor approved the recommendation.
However, Ombudsman Aniano A. Desierto disagreed and directed
the prosecutors to let the [petitioner] present his evidence in Court.
"Subsequently, [petitioner] filed on October 8, 1999 his second
'MOTION TO QUASH AND TO DEFER ARRAIGNMENT'.

"On February 9, 2000, the [Sandiganbayan] denied the motion for

lack of merit.
"On June 19, 2001, [the] accused filed a 'MOTION FOR LEAVE TO
FILE MOTION TO DISMISS'. On June 29, 2001, the [Sandiganbayan]
admitted the motion and admitted the attached (third) Motion to
Dismiss.
"The [Motion to Dismiss] raise[d] the following grounds:
'I. THE CONSTITUTIONAL RIGHT TO DUE PROCESS OF LAW OF
[PETITIONER] WAS VIOLATED DURING THE PRELIMINARY
INVESTIGATION STAGE IN THE FOLLOWING WAYS:
'A. NO VALID PRELIMINARY INVESTIGATION WAS CONDUCTED IN
THE INSTANT CASE; AND
'B. THE PRELIMINARY INVESTIGATION WAS CONDUCTED BY A
BIASED AND PARTIAL INVESTIGATOR
'II. THE CONSTITUTIONAL RIGHT OF [PETITIONER] TO BE INFORMED
OF THE NATURE AND CAUSE OF THE ACCUSATION AGAINST HIM
WAS VIOLATED
'III. PURSUANT TO ARTICLE VII, SECTION 17 OF THE 1973
CONSTITUTION, [PETITIONER] IS IMMUNE FROM CRIMINAL
PROSECUTION
'IV. THE CRIMINAL ACTION OR LIABILITY HAS BEEN EXTINGUISHED
BY PRESCRIPTION'"6
Ruling of the Sandiganbayan
The Sandiganbayan explained that all the grounds invoked by
petitioner, except the third one, had already been raised by him
and passed upon in its previous Resolutions.7 In resolving the third
ground, the anti-graft court pointed out that Section 17 of the 1973
Constitution became effective only in 1981 when the basic law was
amended. Since his alleged illegal intervention had been
committed on or about 1975, the amended provision was
inapplicable to him.8
In denying the Motion for Reconsideration filed by petitioner, the
Sandiganbayan passed upon the other grounds he had raised. It
ruled that his right to a preliminary investigation was not violated,
because he had been granted a reinvestigation.9 It further held that
his right to be informed of the nature and cause of the accusation
was not trampled upon, either, inasmuch as the Information had
set forth the essential elements of the offense charged. 10
Hence, this Petition.11
The Issues
In his Memorandum, petitioner assigns the following errors for our
consideration:
"Whether or not the Honorable Sandiganbayan erred and gravely
abused its discretion amounting to lack of, or in excess of
jurisdiction

I. In not dismissing and/or quashing Criminal Case No. 13736

despite clear and incontrovertible evidence that:
A. Section 5 of Republic Act No. 3019 is unconstitutional because its
vagueness violates the due process right of an individual to be
informed of the nature and the cause of the accusation against
him;
B. Section 5 of Republic Act No. 3019 is unconstitutional because it
violates the due process right of an individual to be presumed
innocent until the contrary is proved;
C. The constitutional right of petitioner x x x to be informed of the
nature and the cause of the accusation against him was violated;
D. The constitutional right to due process of law of petitioner x x x
was violated during the preliminary investigation stage in the
following ways:
[i] No valid preliminary investigation was con-ducted for Criminal
Case No. 13736; and
[ii] The preliminary investigation was conducted by a biased and
partial investigator.
E. The criminal action or liability has been extinguished by
prescription; and
F. Pursuant to Article VII, Section 17 of the 1973 Constitution,
petitioner x x x is immune from criminal prosecution.
And
II. In light of the foregoing, in denying petitioner['s] x x x right to
equal protection of the laws."12
Simply stated, the issues are as follows: (1) whether Section 5 of
Republic Act 3019 is unconstitutional; (2) whether the Information
is vague; (3) whether there was a valid preliminary investigation;
(4) whether the criminal action or liability has been extinguished by
prescription; and (5) whether petitioner is immune from criminal
prosecution under then Section 17 of Article VII of the 1973
Constitution.
The Court's Ruling
The Petition has no merit.
First Issue:
Constitutionality of Section 5,Republic Act 3019
Petitioner challenged the constitutionality of Section 5 of RA 3019
for the first time in the Sandiganbayan through a Supplemental
Motion to Dismiss. Attached to his December 7, 2001 Motion for
Reconsideration of the Order denying his Motion to Dismiss was this
Supplemental Motion which was, in effect, his third motion to
quash.13 We note that the Petition for Certiorari before us
challenges the denial of his original, not his Supplemental, Motion
to Dismiss.
Upon the denial of his original Motion to Quash on February 9,
2000, petitioner could have filed a motion for reconsideration of the

denial. Had reconsideration been turned down, the next proper

remedy would have been either (1) a petition for certiorari14 -- if
there was grave abuse of discretion -- which should be filed within
60 days from notice of the assailed order;15 or (2) to proceed to trial
without prejudice to his right, if final judgment is rendered against
him, to raise the same questions before the proper appellate
court.16 But instead of availing himself of these remedies, he filed a
"Motion to Dismiss" on June 19, 2001.
Impropriety of Repetitive Motions
There is no substantial distinction between a "motion to quash" and
a "motion to dismiss." Both pray for an identical relief, which is the
dismissal of the case. Such motions are employed to raise
preliminary objections, so as to avoid the necessity of proceeding
to trial. A motion to quash is generally used in criminal proceedings
to annul a defective indictment. A motion to dismiss, the
nomenclature ordinarily used in civil proceedings, is aimed at
summarily defeating a complaint. Thus, our Rules of Court use the
term "motion to quash" in criminal,17 and "motion to dismiss" in
civil, proceedings.18
In the present case, however, both the "Motion to Quash" and the
"Motion to Dismiss" are anchored on basically the same grounds
and pray for the same relief. The hairsplitting distinction posited by
petitioner does not really make a difference.
By filing a Motion to Dismiss, petitioner submitted in effect a
prohibited second motion to quash. A party is not permitted to raise
issues, whether similar or different, by installment. The Rules abhor
repetitive motions. Otherwise, there would be no end to preliminary
objections, and trial would never commence. A second motion to
quash delays the administration of justice and unduly burdens the
courts. Moreover, Rule 117 provides that grounds not raised in the
first motion to quash are generally deemed waived.19 Petitioner's
"Motion to Dismiss" violates this rule.
Constitutionality ofthe Challenged Provision
If only for the foregoing procedural lapses, the Petition deserves to
be dismissed outright. However, given the importance of this case
in curtailing graft and corruption, the Court will nevertheless
address the other issues on their merit. Petitioner challenges the
validity of Section 5 of Republic Act 3019, a penal statute, on the
ground that the act constituting the offense is allegedly vague and
"impermissibly broad."
It is best to stress at the outset that the overbreadth 20 and the
vagueness21 doctrines have special application only to free-speech
cases. They are not appropriate for testing the validity of penal
statutes. Mr. Justice Vicente V. Mendoza explained the reason as
follows:

"A facial challenge is allowed to be made to a vague statute and to

one which is overbroad because of possible 'chilling effect' upon
protected speech. The theory is that '[w]hen statutes regulate or
proscribe speech and no readily apparent construction suggests
itself as a vehicle for rehabilitating the statutes in a single
prosecution, the transcendent value to all society of constitutionally
protected expression is deemed to justify allowing attacks on overly
broad statutes with no requirement that the person making the
attack demonstrate that his own conduct could not be regulated by
a statute drawn with narrow specificity.' The possible harm to
society in permitting some unprotected speech to go unpunished is
outweighed by the possibility that the protected speech of others
may be deterred and perceived grievances left to fester because of
possible inhibitory effects of overly broad statutes.
This rationale does not apply to penal statutes. Criminal statutes
have general in terrorem effect resulting from their very existence,
and, if facial challenge is allowed for this reason alone, the State
may well be prevented from enacting laws against socially harmful
conduct. In the area of criminal law, the law cannot take chances as
in the area of free speech.
xxxxxxxxx
In sum, the doctrines of strict scrutiny, overbreadth, and vagueness
are analytical tools developed for testing "on their faces" statutes
in free speech cases or, as they are called in American law, First
Amendment cases. They cannot be made to do service when what
is involved is a criminal statute. With respect to such statute, the
established rule is that 'one to whom application of a statute is
constitutional will not be heard to attack the statute on the ground
that impliedly it might also be taken as applying to other persons or
other situations in which its application might be unconstitutional.'
As has been pointed out, 'vagueness challenges in the First
Amendment context, like overbreadth challenges typically produce
facial invalidation, while statutes found vague as a matter of due
process typically are invalidated [only] 'as applied' to a particular
defendant.'"22 (underscoring supplied)
"To this date, the Court has not declared any penal law
unconstitutional on the ground of ambiguity."23 While mentioned in
passing in some cases, the void-for-vagueness concept has yet to
find direct application in our jurisdiction. In Yu Cong Eng v.
Trinidad,24 the Bookkeeping Act was found unconstitutional because
it violated the equal protection clause, not because it was vague.
Adiong v. Comelec25 decreed as void a mere Comelec Resolution,
not a statute. Finally, Santiago v. Comelec26 held that a portion of
RA 6735 was unconstitutional because of undue delegation of
legislative powers, not because of vagueness.

Indeed, an "on-its-face" invalidation of criminal statutes would

result in a mass acquittal of parties whose cases may not have
even reached the courts. Such invalidation would constitute a
departure from the usual requirement of "actual case and
controversy" and permit decisions to be made in a sterile abstract
context having no factual concreteness. In Younger v. Harris, this
evil was aptly pointed out by the U.S. Supreme Court in these
words:27
"[T]he task of analyzing a proposed statute, pinpointing its
deficiencies, and requiring correction of these deficiencies before
the statute is put into effect, is rarely if ever an appropriate task for
the judiciary. The combination of the relative remoteness of the
controversy, the impact on the legislative process of the relief
sought, and above all the speculative and amorphous nature of the
required line-by-line analysis of detailed statutes, x x x ordinarily
results in a kind of case that is wholly unsatisfactory for deciding
constitutional questions, whichever way they might be decided."
For this reason, generally disfavored is an on-its-face invalidation of
statutes, described as a "manifestly strong medicine" to be
employed "sparingly and only as a last resort." In determining the
constitutionality of a statute, therefore, its provisions that have
allegedly been violated must be examined in the light of the
conduct with which the defendant has been charged.28
As conduct -- not speech -- is its object, the challenged provision
must be examined only "as applied" to the defendant, herein
petitioner, and should not be declared unconstitutional for
overbreadth or vagueness.
The questioned provision reads as follows:
"Section 5. Prohibition on certain relatives. It shall be unlawful
for the spouse or for any relative, by consanguinity or affinity,
within the third civil degree, of the President of the Philippines, the
Vice-President of the Philippines, the President of the Senate, or the
Speaker of the House of Representatives, to intervene, directly or
indirectly, in any business, transaction, contract or application with
the Government: Provided, That this section shall not apply to any
person who, prior to the assumption of office of any of the above
officials to whom he is related, has been already dealing with the
Government along the same line of business, nor to any
transaction, contract or application already existing or pending at
the time of such assumption of public office, nor to any application
filed by him the approval of which is not discretionary on the part of
the official or officials concerned but depends upon compliance with
requisites provided by law, or rules or regulations issued pursuant
to law, nor to any act lawfully performed in an official capacity or in
the exercise of a profession."

Petitioner also claims that the phrase "to intervene directly or

indirectly, in any business, transaction, contract or application with
the Government" is vague and violates his right to be informed of
the cause and nature of the accusation against him.29 He further
complains that the provision does not specify what acts are
punishable under the term intervene, and thus transgresses his
right to be presumed innocent.30 We disagree.
Every statute is presumed valid.31 On the party challenging its
validity weighs heavily the onerous task of rebutting this
presumption.32 Any reasonable doubt about the validity of the law
should be resolved in favor of its constitutionality.33 To doubt is to
sustain, as tersely put by Justice George Malcolm. In Garcia v.
Executive Secretary,34 the rationale for the presumption of
constitutionality was explained by this Court thus:
"The policy of the courts is to avoid ruling on constitutional
questions and to presume that the acts of the political departments
are valid in the absence of a clear and unmistakable showing to the
contrary. To doubt is to sustain. This presumption is based on the
doctrine of separation of powers which enjoins upon each
department a becoming respect for the acts of the other
departments. The theory is that as the joint act of Congress and the
President of the Philippines, a law has been carefully studied and
determined to be in accordance with the fundamental law before it
was finally enacted."35
In the instant case, petitioner has miserably failed to overcome
such presumption. This Court has previously laid down the test for
determining whether a statute is vague, as follows:
"x x x [A] statute establishing a criminal offense must define the
offense with sufficient definiteness that persons of ordinary
intelligence can understand what conduct is prohibited by the
statute. It can only be invoked against that species of legislation
that is utterly vague on its face, i.e., that which cannot be clarified
either by a saving clause or by construction.
"A statute or act may be said to be vague when it lacks
comprehensible standards that men of common intelligence must
necessarily guess at its meaning and differ in its application. In
such instance, the statute is repugnant to the Constitution in two
(2) respects - it violates due process for failure to accord persons,
especially the parties targeted by it, fair notice of what conduct to
avoid; and, it leaves law enforcers unbridled discretion in carrying
out its provisions and becomes an arbitrary flexing of the
Government muscle.36 But the doctrine does not apply as against
legislations that are merely couched in imprecise language but
which nonetheless specify a standard though defectively phrased;
or to those that are apparently ambiguous yet fairly applicable to
certain types of activities. The first may be 'saved' by proper

construction, while no challenge may be mounted as against the

second whenever directed against such activities.37 With more
reason, the doctrine cannot be invoked where the assailed statute
is clear and free from ambiguity, as in this case.
"The test in determining whether a criminal statute is void for
uncertainty is whether the language conveys a sufficiently definite
warning as to the proscribed conduct when measured by common
understanding and practice.38 It must be stressed, however, that
the 'vagueness' doctrine merely requires a reasonable degree of
certainty for the statute to be upheld - not absolute precision or
mathematical exactitude, as petitioner seems to suggest.
Flexibility, rather than meticulous specificity, is permissible as long
as the metes and bounds of the statute are clearly delineated. An
act will not be held invalid merely because it might have been more
explicit in its wordings or detailed in its provisions, especially
where, because of the nature of the act, it would be impossible to
provide all the details in advance as in all other statutes."39
A simpler test was decreed in Dans v. People,40 in which the Court
said that there was nothing vague about a penal law that
adequately answered the basic query "What is the violation?"41
Anything beyond -- the hows and the whys -- are evidentiary
matters that the law itself cannot possibly disclose, in view of the
uniqueness of every case.42
The question "What is the violation?" is sufficiently answered by
Section 5 of RA 3019, as follows:
1. The offender is a spouse or any relative by consanguinity or
affinity within the third civil degree of the President of the
Philippines, the Vice-President of the Philippines, the President of
the Senate, or the Speaker of the House of Representatives; and
2. The offender intervened directly or indirectly in any business,
transaction, contract or application with the government.
Applicability ofStatutory Construction
As to petitioner's claim that the term intervene is vague, this Court
agrees with the Office of the Solicitor General that the word can
easily be understood through simple statutory construction. The
absence of a statutory definition of a term used in a statute will not
render the law "void for vagueness," if the meaning can be
determined through the judicial function of construction.43
Elementary is the principle that words should be construed in their
ordinary and usual meaning.
"x x x. A statute is not rendered uncertain and void merely because
general terms are used therein, or because of the employment of
terms without defining them;44 much less do we have to define
every word we use. Besides, there is no positive constitutional or
statutory command requiring the legislature to define each and
every word in an enactment. Congress is not restricted in the form

of expression of its will, and its inability to so define the words

employed in a statute will not necessarily result in the vagueness
or ambiguity of the law so long as the legislative will is clear, or at
least, can be gathered from the whole act x x x.
"x x x [I]t is a well-settled principle of legal hermeneutics that
words of a statute will be interpreted in their natural, plain and
ordinary acceptation and signification,45 unless it is evident that the
legislature intended a technical or special legal meaning to those
words.46 The intention of the lawmakers - who are, ordinarily,
untrained philologists and lexicographers - to use statutory
phraseology in such a manner is always presumed."47
The term intervene should therefore be understood in its ordinary
acceptation, which is to "to come between."48 Criminally liable is
anyone covered in the enumeration of Section 5 of RA 3019 -- any
person who intervenes in any manner in any business, transaction,
contract or application with the government. As we have explained,
it is impossible for the law to provide in advance details of how
such acts of intervention could be performed. But the courts may
pass upon those details once trial is concluded. Thus, the alleged
vagueness of intervene is not a ground to quash the information
prior to the commencement of the trial.
In sum, the Court holds that the challenged provision is not vague,
and that in any event, the "overbreath" and "void for vagueness"
doctrines are not applicable to this case.
Second Issue:
Allegedly Vague Information
Other than arguing on the alleged intrinsic vagueness of intervene,
petitioner further contends that the Information itself is also
unconstitutionally vague, because it does not specify the acts of
intervention that he supposedly performed.49 Again, we disagree.
When allegations in the information are vague or indefinite, the
remedy of the accused is not a motion to quash, but a motion for a
bill of particulars.50 The pertinent provision in the Rules of Court is
Section 9 of Rule 116, which we quote:
"Section 9. Bill of particulars. -- The accused may, before
arraignment, move for a bill of particulars to enable him properly to
plead and prepare for trial. The motion shall specify the alleged
defects of the complaint or information and the details desired."
The rule merely requires the information to describe the offense
with sufficient particularity as to apprise the accused of what they
are being charged with and to enable the court to pronounce
judgment. 51 The particularity must be such that persons of ordinary
intelligence may immediately know what is meant by the
information.52
While it is fundamental that every element of the offense must be
alleged in the information,53 matters of evidence -- as distinguished

from the facts essential to the nature of the offense -- need not be
averred.54 Whatever facts and circumstances must necessarily be
alleged are to be determined by reference to the definition and the
essential elements of the specific crimes.55
In the instant case, a cursory reading of the Information shows that
the elements of a violation of Section 5 of RA 3019 have been
stated sufficiently. Likewise, the allegations describe the offense
committed by petitioner with such particularity as to enable him to
prepare an intelligent defense. Details of the acts he committed are
evidentiary matters that need not be alleged in the Information.
Third Issue:
Preliminary Investigation
Clearly, petitioner already brought the issue of lack of preliminary
investigation when he questioned before this Court in GR No.
128317 the Sandiganbayan's Order giving him 15 days to file a
Motion for Reinvestigation with the Office of the Special
Prosecutor.56 Citing Cojuangco v. Presidential Commission on Good
Government,57 he undauntedly averred that he was deprived of his
right to a preliminary investigation, because the PCGG acted both
as complainant and as investigator.58
In the case cited above, this Court declared that while PCGG had
the power to conduct a preliminary investigation, the latter could
not do so with the "cold neutrality of an impartial judge" in cases in
which it was the agency that had gathered evidence and
subsequently filed the complaint.59 On that basis, this Court
nullified the preliminary investigation conducted by PCGG and
directed the transmittal of the records to the Ombudsman for
appropriate action.
It is readily apparent that Cojuangco does not support the quashal
of the Information against herein petitioner. True, the PCGG
initiated the present Complaint against him; hence, it could not
properly conduct the preliminary investigation. However, he was
accorded his rights -- the Sandiganbayan suspended the trial and
afforded him a reinvestigation by the Ombudsman. The procedure
outlined in Cojuangco was thus followed.
The Sandiganbayan's actions are in accord also with Raro v.
Sandiganbayan,60 which held that the failure to conduct a valid
preliminary investigation would not warrant the quashal of an
information. If the information has already been filed, the proper
procedure is for the Sandiganbayan to hold the trial in abeyance
while the preliminary investigation is being conducted or
completed.61
Fourth Issue:
Prescription
The issue of prescription was the principal basis of the Motion to
Quash filed by petitioner with the Sandiganbayan on October 8,

1999.62 Such issue should be disregarded at this stage, since he

failed to challenge its ruling debunking his Motion within the 60-day
period for the filing of a petition for certiorari. A party may not
circumvent this rule by filing a subsequent motion that raises the
same issue and the same arguments.
Furthermore, it is easy to see why this argument being raised by
petitioner is utterly unmeritorious. He points out that according to
the Information, the offense was committed "during the period from
July 16, 1975 to July 29, 1975." He argues that when the
Information was filed on July 12, 1989,63 prescription had already
set in, because the prescriptive period for a violation of Republic
Act No. 3019 is only ten (10) years from the time the offense was
allegedly committed. The increase of this prescriptive period to
fifteen (15) years took effect only on March 16, 1982, upon the
enactment of Batas Pambansa Blg. 195.64
Act No. 3326, as amended,65 governs the prescription of offenses
penalized by special laws. Its pertinent provision reads:
"Sec. 2. Prescription shall begin to run from the day of the
commission of the violation of the law, and if the same not be
known at the time, from the discovery thereof and the institution of
judicial proceedings for its investigation and punishment.
"The prescription shall be interrupted when proceedings are
instituted against the guilty person, and shall begin to run again if
the proceedings are dismissed for reasons not constituting
jeopardy."
Consistent with the provision quoted above, this Court has
previously reckoned the prescriptive period of cases involving RA
3019 (committed prior to the February 1986 EDSA Revolution) from
the discovery of the violation.66 In Republic v. Desierto, the Court
explained:
"This issue confronted this Court anew, albeit in a larger scale, in
Presidential Ad Hoc Fact-Finding Committee on Behest Loans v.
Desierto. In the said recent case, the Board of Directors of the
Philippine Seeds, Inc. and Development Bank of the Philippines
were charged with violation of paragraphs (e) and (g) of Section 3
of RA No. 3019, by the Presidential Ad Hoc Fact-Finding Committee
on Behest Loans, created by then President Fidel V. Ramos to
investigate and to recover the so-called 'Behest Loans', where the
Philippine Government guaranteed several foreign loans to
corporations and entities connected with the former President
Marcos. x x x In holding that the case had not yet prescribed, this
Court ruled that:
'In the present case, it was well-nigh impossible for the State, the
aggrieved party, to have known the violations of RA No. 3019 at the
time the questioned transactions were made because, as alleged,
the public officials concerned connived or conspired with the

'beneficiaries of the loans.' Thus, we agree with the COMMITTEE

that the prescriptive period for the offenses with which the
respondents in OMB-0-96-0968 were charged should be computed
from the discovery of the commission thereof and not from the day
of such commission.
xxx
xxx
xxx
'People v. Duque is more in point, and what was stated there stands
reiteration: In the nature of things, acts made criminal by special
laws are frequently not immoral or obviously criminal in
themselves; for this reason, the applicable statute requires that if
the violation of the special law is not known at the time, the
prescription begins to run only from the discovery thereof, i.e.,
discovery of the unlawful nature of the constitutive act or acts.'
(Italics supplied)
"There are striking parallelisms between the said Behest Loans
Case and the present one which lead us to apply the ruling of the
former to the latter. First, both cases arose out of seemingly
innocent business transactions; second, both were 'discovered' only
after the government created bodies to investigate these
anomalous transactions; third, both involve prosecutions for
violations of RA No. 3019; and, fourth, in both cases, it was
sufficiently raised in the pleadings that the respondents conspired
and connived with one another in order to keep the alleged
violations hidden from public scrutiny.
"This Court's pronouncement in the case of Domingo v.
Sandiganbayan is quite relevant and instructive as to the date
when the discovery of the offense should be reckoned, thus:
'In the present case, it was well-nigh impossible for the
government, the aggrieved party, to have known the violations
committed at the time the questioned transactions were made
because both parties to the transactions were allegedly in
conspiracy to perpetuate fraud against the government. The
alleged anomalous transactions could only have been discovered
after the February 1986 Revolution when one of the original
respondents, then President Ferdinand Marcos, was ousted from
office. Prior to said date, no person would have dared to question
the legality or propriety of those transactions. Hence, the counting
of the prescriptive period would commence from the date of
discovery of the offense, which could have been between February
1986 after the EDSA Revolution and 26 May 1987 when the
initiatory complaint was filed.'"67
The above pronouncement is squarely applicable to the present
case. The general rule that prescription shall begin to run from the
day of the commission of the crime cannot apply to the present
case. It is not legally prudent to charge the State, the aggrieved
party, with knowledge of the violation of RA 3019 at the time the

alleged intervention was made. The accused is the late President

Ferdinand E. Marcos' brother-in-law. He was charged with
intervening in a sale involving a private corporation, the majority
stocks of which was allegedly owned by President Marcos.
Prior to February 1986, no person was expected to have seriously
dared question the legality of the sale or would even have thought
of investigating petitioner's alleged involvement in the transaction.
It was only after the creation68 of PCGG69 and its exhaustive
investigations that the alleged crime was discovered. This led to
the initiation on November 29, 1988 of a Complaint against former
President Marcos and petitioner for violation of the Anti-Graft and
Corrupt Practices Act. Consequently, the filing of the Information on
July 12, 1989 was well within the prescriptive period of ten years
from the discovery of the offense.
Fifth Issue
Immunity from Prosecution
Petitioner argues that he enjoys derivative immunity, because he
allegedly served as a high-ranking naval officer -- specifically, as
naval aide-de-camp -- of former President Marcos. 70 He relies on
Section 17 of Article VII of the 1973 Constitution, as amended,
which we quote:
"The President shall be immune from suit during his tenure.
Thereafter, no suit whatsoever shall lie for official acts done by him
or by others pursuant to his specific orders during his tenure.
"x x x
xxx
x x x"
As the Sandiganbayan aptly pointed out, the above provision is not
applicable to petitioner because the immunity amendment became
effective only in 1981 while the alleged crime happened in 1975.
In Estrada v. Desierto,71 this Court exhaustively traced the origin of
executive immunity in order to determine the extent of its
applicability. We explained therein that executive immunity applied
only during the incumbency of a President. It could not be used to
shield a non-sitting President from prosecution for alleged criminal
acts done while sitting in office. The reasoning of petitioner must
therefore fail, since he derives his immunity from one who is no
longer sitting as President. Verily, the felonious acts of public
officials and their close relatives "are not acts of the State, and the
officer who acts illegally is not acting as such but stands on the
same footing as any other trespasser."
In sum, petitioner utterly fails to show that the Sandiganbayan
gravely abused its discretion in issuing the assailed Resolutions. 72
On the contrary, it acted prudently, in accordance with law and
jurisprudence.
WHEREFORE, the Petition is DISMISSED, and the questioned
Resolutions of the Sandiganbayan AFFIRMED. Costs against
petitioner.

SO ORDERED.
Davide, Jr., C.J., Quisumbing, Carpio, Austria-Martinez, CarpioMorales, Callejo, Sr., and Azcuna, JJ., concur.
Puno, Ynares-Santiago, and Sandoval-Gutierrez, JJ., in the result.
Corona, J., on leave.
Tinga, J., in the result. Please see separate opinion.
Chico-Nazario, J., no part. Ponente of assailed SB Resolutions.
x-------------------------------------------------------------------x
SEPARATE OPINION
TINGA, J.:
I concur in the result of the ponencia and the proposition that
Section 5 of the Anti-Plunder Law is constitutional. The validity of
the provision has been passed upon by the Court before in Estrada
v. Sandiganbayan.1 I also agree with the ponencia's reiteration of
the ruling in Estrada that Section 5 is receptive to the basic
principle in statutory construction that words should be construed
in their ordinary and usual meaning.2
However, with all due respect, I raise serious objections to the
ponencia's holding that the so-called "void for vagueness" doctrine
has special application only to free speech cases,3 and the
undeclared proposition that penal
laws may not be stricken down on the ground of ambiguity. 4 I am
aware that the assertions rely upon the separate opinions of the
herein ponente5 and Mr. Justice Vicente Mendoza6 in Estrada. I am
also aware that the critical portion of Mr. Justice Mendoza's
separate opinion in Estrada was cited with approval by Mr. Justice
Bellosillo's ponencia therein.7
The incontrovertible reality though is that the majority's
pronouncement in Estrada that penal statutes cannot be
challenged on vagueness grounds did not form part of the ratio
decidendi. The ratio, in the words of Justice Bellosillo, was: "as it is
written, the Plunder Law contains ascertainable standards and welldefined parameters which would enable the accused to determine
the nature of his violation,"8 and thus the law does not suffer from
unconstitutionality. The discussion on the vagueness aspect was
not decisive of the main issue and, therefore, clearly obiter dictum.
I submit that it is erroneous to resolve the present petition on the
basis of that dictum in Estrada.
As the obiter dictum in Estrada is needlessly made a ratio in the
present case, the ponencia herein has even unwittingly elevated to
doctrinal level the proposition that the constitutionality of penal
laws cannot be challenged on the ground of vagueness. I humbly
submit that the stance is flawed and contrary to fundamental
principles of due process.

The Bill of Rights occupies a position of primacy in the fundamental

law.9 It is thus sacrosanct in this jurisdiction that no person shall be
deprived of life, liberty or property without due process of law. 10
A challenge to a penal statute premised on the argument that the
law is vague is a proper invocation of the due process clause. A
statute that lacks comprehensible standards that men of common
intelligence must necessarily guess at its meaning and differ as to
its application violates the due process clause, for failure to accord
persons fair notice of the conduct to avoid.11 As held by the Court in
People v. Dela Piedra:12
Due process requires that the terms of a penal statute must be
sufficiently explicit to inform those who are subject to it what
conduct on their part will render them liable to its penalties. A
criminal statute that "fails to give a person of ordinary intelligence
fair notice that his contemplated conduct is forbidden by the
statute," or is so indefinite that "it encourages arbitrary and erratic
arrests and convictions," is void for vagueness. The constitutional
vice in a vague or indefinite statute is the injustice to the accused
in placing him on trial for an offense, the nature of which he is
given no fair warning.13
It should also be reckoned that the Bill of Rights likewise
guarantees that no person shall be held to answer for a criminal
offense without due process of law,14 and that the accused enjoys
the right to be informed of the nature and cause of the accusation
against him or her.15 The Bill of Rights ensures the fullest measure
of protection to an accused. If a particular mode of constitutional
challenge, such as one predicated on the "void for vagueness"
doctrine, is available to an ordinary person deprived of property or
means of expression, then more so should it be accessible to one
who is in jeopardy of being deprived of liberty or of life. 16
"Vagueness" and "Overbreadth" Are Distinct Concepts
A fundamental flaw, to my mind, in the analysis employed by the
ponencia and some of the separate opinions in Estrada is the
notion that the "vagueness" and "overbreadth" doctrines are the
same and should be accorded similar treatment. This is erroneous.
Mr. Justice Kapunan, in his dissenting opinion in Estrada, offers a
correct distinction between "vagueness" and "overbreadth":
A view has been proferred that "vagueness and overbreadth
doctrines are not applicable to penal laws." These two concepts,
while related, are distinct from each other. On one hand, the
doctrine of overbreadth applies generally to statutes that
infringe upon freedom of speech. On the other hand, the
"void-for-vagueness" doctrine applies to criminal laws, not
merely those that regulate speech or other fundamental
constitutional right. (not merely those that regulate speech
or other fundamental constitutional rights.) The fact that a

particular criminal statute does not infringe upon free speech does
not mean that a facial challenge to the statute on vagueness
grounds cannot succeed.17
This view should be sustained, especially in light of the fact that the
"void for vagueness" doctrine has long been sanctioned as a means
to invalidate penal statutes.
"Void For Vagueness" Invalidation of Penal Statutes has LongStanding Jurisprudential History
As early as 1926, the United States Supreme Court held in Connally
v. General Construction Co., thus: 18
That the terms of a penal statute creating a new offense must be
sufficiently explicit to inform those who are subject to it what
conduct on their part will render them liable to its penalties is a
well- recognized requirement, consonant alike with ordinary notions
of fair play and the settled rules of law; and a statute which either
forbids or requires the doing of an act in terms so vague that men
of common intelligence must necessarily guess at its meaning and
differ as to its application violates the first essential of due process
of law.
Thus in Connally, a statute prescribing penalties for violation of an
eight-hour workday law was voided, presenting as it did, a "double
uncertainty, fatal to its validity as a criminal statute."19
In Lanzetta v. State of New Jersey,20 a challenge was posed to a
statute defining a "gangster" and prescribing appropriate penalties,
for being void for vagueness. The U.S. Supreme Court ruled that
the definition of a "gang" under the statute was vague, and the
statute void for vagueness. It was of no moment that the
information against the accused described the offense with
particularity.
If on its face the challenged provision is repugnant to the due
process clause, specification of details of the offense intended to be
charged would not serve to validate it. (United States v. Reese, 92
U.S. 214, 221; Czarra v. Board of Medical Supervisors, 25 App.D.C.
443, 453.) It is the statute, not the accusation under it, that
prescribes the rule to govern conduct and warns against
transgression. (See Stromberg v. California, 283 U.S. 359, 368 ,
51 S.Ct. 532, 535, 73 A.L. R. 1484; Lovell v. Griffin, 303 U.S. 444 ,
58 S.Ct. 666.) No one may be required at peril of life, liberty or
property to speculate as to the meaning of penal statutes. All are
entitled to be informed as to what the State commands or forbids.21
(Emphasis supplied)
In Bouie v. City of Columbia,22 civil rights protesters were charged
with violating a criminal trespass statute proscribing entry upon the
lands of another after notice prohibiting such entry. A state court
construed the statute as applicable to the act of remaining on the
premises of another after receiving notice to leave. The U.S.

Supreme Court reversed, applying again the "void for vagueness"

doctrine. Said Court admitted that "typical applications of the
principle, the uncertainty as to the statute's prohibition resulted
from vague or overbroad language in the statute itself."23 Yet the
Court noted that "[t]here can be no doubt that a deprivation of the
right of fair warning can result not only from vague statutory
language but also from an unforeseeable and retroactive judicial
expansion of narrow and precise statutory language."24 Accordingly,
the Court overturned the convictions, holding that "the crime for
which [they] were convicted was not enumerated in the statute at
the time of their conduct," thus denying the accused due process of
law.25
In Papachristou v. City of Jacksonville,26 a statute penalizing
vagrancy was voided by the U.S. Supreme Court, again for being
vague:
This ordinance is void for vagueness, both in the sense that it "fails
to give a person of ordinary intelligence fair notice that his
contemplated conduct is forbidden by the statute," (United States
v. Harriss, 347 U.S. 612, 617), and because it encourages arbitrary
and erratic arrests and convictions (Thornhill v. Alabama, 310 U.S.
88; Herndon v. Lowry, 301 U.S. 242).27
Kolender v. Lawson28 involves another affirmation of the wellestablished doctrine. There, the US Supreme Court invalidated a
loitering statute requiring a loiterer to produce credible and reliable
identification when requested by a peace officer. It elucidated:
Although the doctrine focuses on both actual notice to citizens and
arbitrary enforcement, we have recognized recently that the more
important aspect of the vagueness doctrine "is not actual notice,
but the other principal element of the doctrine-the requirement that
a legislature establish minimal guidelines to govern law
enforcements. Where the legislature fails to provide such minimal
guidelines, a criminal statute may permit "a standardless sweep
[that] allows policemen, prosecutors and juries to pursue their
personal predilections.29
In the fairly recent case of City of Chicago v. Morales,30 the U.S.
Supreme Court affirmed a lower court ruling invalidating as void for
vagueness an ordinance prohibiting "criminal street gang
members" from loitering in public places, as well as the conviction
based on the invalidated ordinance. The US Court again asserted:
For it is clear that the vagueness of this enactment makes a facial
challenge appropriate. This is not an ordinance that "simply
regulates business behavior and contains a scienter requirement."
(See Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U. S.
489, 499 (1982)). It is a criminal law that contains no mens rea
requirement (see Colautti v. Franklin , 439 U. S. 379, 395 (1979)),
and infringes on constitutionally protected rights (see id. , at 391).

When vagueness permeates the text of such a law, it is subject to

facial attack.
Vagueness may invalidate a criminal law for either of two
independent reasons. First, it may fail to provide the kind of notice
that will enable ordinary people to understand what conduct it
prohibits; second, it may authorize and even encourage arbitrary
and discriminatory enforcement. (See Kolender v. Lawson, 461 U.
S., at 357).31
Given the wealth of jurisprudence invalidating penal statutes for
suffering from vagueness, it is mystifying why the notion that the
doctrine applies only to "free-speech" cases has gained a foothold
in this Court. It might be argued that the above-cited cases are
foreign jurisprudence, inapplicable to this jurisdiction. Yet it is
submitted that the rule is applicable here, not because of its
repeated affirmation by American courts, but because such rule is
lucidly consistent with our own fundamental notions of due process,
as enunciated in our own Constitution.
What then is the standard of due process which must exist both as
a procedural and as substantive requisite to free the challenged
ordinance, or any government action for that matter, from the
imputation of legal infirmity; sufficient to spell its doom? It is
responsiveness to the supremacy of reason, obedience to the
dictates of justice. Negatively put, arbitrariness is ruled out and
unfairness avoided. To satisfy the due process requirement, official
action, to paraphrase Cardozo, must not outrun the bounds of
reasons and result in sheer oppression. Due process is thus hostile
to any official action marred by lack of reasonableness. Correctly
has it been identified as freedom from arbitrariness. It is the
embodiment of the sporting idea of fair play. It exacts fealty "to
those strivings for justice" and judges the act of officialdom of
whatever branch" in the light of reason drawn from considerations
of fairness that reflect [democratic] traditions of legal and political
thought." It is not a narrow or "technical conception with fixed
content unrelated to time, place and circumstances," decisions
based on such a clause requiring a "close and perceptive inquiry
into fundamental principles of our society." 32
The dissent of Justice White, joined by Justice Rehnquist, in
Kolender v. Lawson finds some kinship with Mr. Justice Mendoza's
views in Estrada, insofar as they point out a distinction between the
"vagueness" doctrine, as applied to criminal statutes, on one hand,
and as applied to US First Amendment cases, on the other.
The usual rule is that the alleged vagueness of a criminal statute
must be judged in light of the conduct that is charged to be
violative of the statute. If the actor is given sufficient notice that his
conduct is within the proscription of the statute, his conviction is
not vulnerable on vagueness grounds, even if as applied to other

conduct, the law would be unconstitutionally vague. None of our

cases "suggests that one who has received fair warning of the
criminality of his own conduct from the statute in question is
nonetheless entitled to attack it because the language would not
give similar fair warning ;with respect to other conduct which might
be within its broad and literal ambit. One to whose conduct a
statute clearly applies may not successfully challenge it for
vagueness." The correlative rule is that a criminal statute is not
unconstitutionally vague on its face unless it is "impermissibly
vague in all of its applications."
These general rules are equally applicable to cases where First
Amendment or other "fundamental" interests are involved. The
Court has held that in such circumstances "more precision in
drafting may be required because of the vagueness doctrine in the
case of regulation of expression, a "greater degree of specificity" is
demanded than in other contexts. But the difference in such cases
"relates to how strict a test of vagueness shall be applied in judging
a particular criminal statute." It does not permit the challenger of
the statute to confuse vagueness and overbreadth by attacking the
enactment as being vague as applied to conduct other than his
own. Of course, if his own actions are themselves protected
by the First Amendment or other constitutional provision,
or if the statute does not fairly warn that it is proscribed,
he may not be convicted. But it would be unavailing for him to
claim that although he knew his own conduct was unprotected and
was plainly enough forbidden by the statute, others may be in
doubt as to whether their acts are banned by the law.33 (Emphasis
supplied)
Still, the quoted dissenting opinion concedes the applicability of the
"void for vagueness" rule in striking infirm criminal statutes. It just
enunciates a greater demand for "specificity" in statutes which may
infringe on free speech protections.
Moreover, Mr. Justice Mendoza likewise invoked American
jurisprudence in support of his view that the overbreadth and
vagueness doctrines apply only to free speech cases.34 He cites,
among others, U.S. v. Salerno35
and Broadrick v. Oklahoma.36 In Salerno, the US Supreme Court
notes that the "overbreadth" doctrine was inapplicable outside the
context of the First Amendment.37 Notably though, the US Court did
not make the same assertion as to the "vagueness" doctrine. Had it
done so in Salerno, it would have been incongruent with its
previous rulings, as well as with its subsequent ones.
Broadrick v. Oklahoma did not pertain to a challenge to a penal
statute, but rather an Oklahoma law restricting the political
activities of that state's classified civil servants.38 Again, Broadrick
may advert to a correct interpretation of the "overbreadth"

doctrine. However, in the face of numerous jurisprudence affirming

the "vagueness" challenge of American penal laws neither
Broadrick nor Salerno can be utilized to assert a converse rule.
Mr. Justice Mendoza's opinion also cites from the American
constitutional law textbook of Sullivan and Gunther, to assert that
"vagueness challenges in the First Amendment context, like
overbreadth challenges, typically produce facial invalidation, while
statutes found vague as a matter of due process typically are
invalidated only as
applied to a particular defendant."39 This may be a correct
restatement of the American rule. Yet, it does not necessarily mean
that penal laws are not susceptible to a "void for vagueness"
challenge. In fact, in the same page cited in Mr. Justice Mendoza's
opinion, Sullivan and Gunther cite cases wherein American penal
laws were stricken down for being vague, such as Connally v.
General Construction Co., Kolender v. Lawson, and Papachristou v.
Jacksonville.40
The same citation likewise refers to the odd situation wherein unlike
in First Amendment cases, due process invalidations for vagueness
apply only to a particular defendant. Sullivan and Gunther posit
that the broader protection afforded in First Amendment cases
follow from "a special concern about the 'chilling effect' of vague
statutes on protected speech."41 However, the ponencia latches
onto this distinction in order to foist the bugaboo of "mass
acquittal" of criminals due to the facial invalidation of criminal
statutes.42 Moreover, the ponencia asserts that such invalidation
would constitute a departure from the usual requirement of actual
case and controversy and permit decisions to be made in a sterile
abstract context having no factual concreteness.43
Such concerns are overwrought. In this jurisdiction, judicial review
over the constitutionality of statutes, penal or otherwise, avails only
upon the concurrence of (1) the existence of an appropriate case;
(2) an interest personal and substantial by the party raising the
constitutional question; (3) a plea that the function be exercised at
the earliest opportunity; and (4) a necessity that the constitutional
question be passed upon in order to decide the case.44 Challenges
to the validity of laws are not lightly undertaken, and the nonexistence of any of the four conditions precedent bar a successful
challenge. Surely, not just anybody picked off the street
prepossesses the requisite standing, nor could just any case
present itself as the proper vehicle for a constitutional attack.
These conditions precedent successfully weigh the concerns of the
State, fearful of instabilities brought by frequent invalidations of the
laws it passes, and with the basic component of justice that a
person to whom a wrong is done by the State can seek vindication
from the courts. Our basic jurisprudential barrier has shielded this

Court for generations from exercising unwarranted and unmitigated

judicial review. There is no need to further raise the bar for review,
especially on such flimsy foundations, lest we insulate ourselves
from the pleas of the truly prejudiced, truly injured, truly violated.
At the same time, the ponencia raises the concern that the
invalidation of a void law will unnecessarily benefit those without
actual cases or controversies. It must be remembered though that
the Court will not unhesitatingly strike down a statute if a narrower
alternative affording the same correct relief is available. Within the
confines of this discretion, all the tools of searching inquiry are at
the Court's disposal to carve as narrow a rule as necessary.
Still and all, if there is no alternative but to strike down a void law,
there should be no hesitation on the part of this Court in ruling it
so, no matter the effective scope and reach of the decision. The
State has no business promulgating void laws, which stick out like a
cancer infecting our constitutional order. When faced with the
proper opportunity, it is the Court's duty to excise the tumor no
matter how painful. Unfortunately, the solution advocated by the
ponencia barring penal statutes from "void for vagueness" assaults
hides the patient from the doctor.
People v. Dela Piedra, earlier cited,45 did not invalidate the statute
questioned therein on the "void for vagueness" ground. Yet it
affirms that the "void for vagueness" challenge to a penal law may
be sustained if the statute contravenes due process. The
circumstance, as the ponencia herein points out, that no penal law
has been declared unconstitutional on the ground of ambiguity,
does not mean that no penal law can ever be invalidated on that
ground.
As long as the due process clause remains immanent in our
Constitution, its long reach should be applied to deter and punish
unwarranted deprivations of life, liberty or property. Violations of
due process are myriad, ranging as they do from the simple to the
complicated, from the isolated to the intermittent, from the
abashed to the brazen. No advance statement can outrightly cast
an act as beyond the ambit of the due process clause, especially
when applied to the lot of an accused, for such is simply
presumptuous and anathema to the spirit of fair play.
I may disagree with the eventual conclusions of Justices Kapunan,
Ynares-Santiago and Sandoval-Gutierrez in the Estrada case that
Section 5 of the Anti-Plunder Law is void for vagueness. Yet, I
submit that their inquiry as to whether the said criminal statute
was void for being vague is a juristic exercise worth pursuing. If the
ponencia affirms the earlier erroneous pronouncement as asserted
in the main by Mr. Justice Mendoza in Estrada, then I express the
same fear articulated by Mr. Justice Kapunan in his dissent, that
"such stance is tantamount to saying that no criminal law can be

challenged however repugnant it is to the constitutional right to

due process."46
DANTE O. TINGA
Associate Justice
Footnotes
1
Rollo, pp. 3-55.
2
Id., pp. 56-62.
3
Id., pp. 63-68. Fifth Division. Penned by Justice Minita V. ChicoNazario (chairman), with the concurrence of Justices Ma. Cristina G.
Cortez-Estrada and Francisco H. Villaruz Jr. (members).
4
Sandiganbayan Resolution, p. 5; rollo, p. 62.
5
Anti-Graft and Corrupt Practices Act.
6
Sandiganbayan Resolution, pp. 1-3; rollo, pp. 56-60.
7
Id., p. 60.
8
Ibid.
9
Id., p. 64.
10
Id., p. 66.
11
This case was deemed submitted for resolution on March 6, 2003,
upon this Court's receipt of petitioner's Memorandum, signed by
Atty. Enrico Q. Fernando. The Memorandum of the Office of the
Ombudsman, signed by Deputy Special Prosecutor Robert E. Kallos,
Director Rodrigo V. Coquia, and Special Prosecution Officer Elvira C.
Chua, was received by this Court on January 30, 2003. The
Memorandum of the Office of the Solicitor General, signed by
Solicitor General Alfredo L. Benipayo, Assistant Solicitor General
Alexander G. Gesmundo, and Associate Solicitor Raymond C. de
Lemos, was received on February 19, 2003.
12
Petitioner's Memorandum, p. 6.
13
On October 8, 1999, petitioner had already filed a Motion to
Quash, which was denied by the Sandiganbayan on February 9,
2000. Then on June 19, 2001, he filed a Motion to Dismiss.
14
A motion for reconsideration is generally required prior to the
filing of a petition for certiorari to allow the tribunal an opportunity
to correct its assigned errors (Lasco v. United Nations Revolving
Fund for Natural Resources Exploration, 241 SCRA 681, 684,
February 23, 1995; Butuan Bay Wood Export Corp. v. CA, 297 SCRA
297, 305, April 28, 1980). Being interlocutory, the order denying a
motion to quash is not appealable. The Order may, however, be
reviewed in the ordinary course of law by an appeal from the
judgment after trial. (Tan Jr. v. Sandiganbayan, 354 Phil. 463, 470,
July 10, 1998; Cruz v. CA, 194 SCRA 145, 152, February 18, 1991;
Bulaong v. CA, 181 SCRA 618, 622, January 30, 1990; Gamboa v.
Cruz, 162 Phil. 642, 652, June 27, 1988.)
15
4, Rule 65 of the Rules of Court.

16

Tan Jr. v. Sandiganbayan, 354 Phil. 463, 470, July 10, 1998; Cruz
v. CA, 194 SCRA 145, 152, February 18, 1991; Bulaong v. CA, 181
SCRA 618, 622, January 30, 1990.
17
Governed by Rule 117.
18
Under Rule 16.
19
9, Rule 117 of the Rules of Court, states: "The failure of the
accused to assert any ground of a motion to quash before he
pleads to the complaint or information, either because he did not
file a motion to quash or failed to allege the same in said motion,
shall be deemed a waiver of any objections except those based on
the grounds provided for in paragraphs (a), (b), (g) and (i) of
section 3 of this Rule." The exceptions refer to the following
grounds: the facts do not constitute an offense, lack of jurisdiction
over the offense charged, extinction of the offense or penalty, and
double jeopardy.
20
"The overbreadth doctrine x x x decrees that 'a governmental
purpose may not be achieved by means which sweep unnecessarily
broadly and thereby invade the area of protected freedoms.'"
Separate Opinion of Mr. Justice Vicente V. Mendoza in Estrada v.
Sandiganbayan, 421 Phil. 290, 430, November 19, 2001 (citing
NAACP v. Alabama, 377 U.S. 288, 307, 12 L. Ed. 2d 325, 338
[1958]; Shelton v. Tucker, 364 U.S. 479, 5 L. Ed. 2d 231 [1960]).
21
The void-for-vagueness doctrine states that "a statute which
either forbids or requires the doing of an act in terms so vague that
men of common intelligence must necessarily guess at its meaning
and differ as to its application, violates the first essential of due
process of law." Separate Opinion of Mr. Justice Mendoza in Estrada
v. Sandiganbayan 421 Phil. 290, 429-430, November 19, 2001
(citing Connally v. General Constr. Co., 269 U.S. 385, 391, 70 L. Ed.
328 [1926]; in turn cited in Ermita-Malate Hotel and Motel
Operators Ass'n v. City Mayor, 20 SCRA 849, 867 [1967]).
22
Separate Opinion of Mr. Justice Mendoza in Estrada v.
Sandiganbayan, supra.
23
Separate Opinion of Mr. Justice Panganiban in Estrada v.
Sandiganbayan, supra.
24
271 US 500, June 7, 1926.
25
207 SCRA 712, March 31, 1992.
26
270 SCRA 106, March 19, 1997.
27
401 U.S. 37, 52-53, 27 L. Ed. 2d 669, 680 (1971), per Black, J.
28
Separate Opinion of Mr. Justice Mendoza in Estrada v.
Sandiganbayan, supra.
29
Petitioner's Memorandum, p. 9.
31
Heirs of Juancho Ardona v. Reyes, 210 Phil. 187, 207, October 26,
1983; Peralta v. Commission on Elections, 82 SCRA 30, 55, March
11, 1978; Ermita-Malate Hotel & Motel Operations Association, Inc.
v. Hon. City Mayor of Manila, 127 Phil. 306, 314, July 31, 1967.

32

Estrada v. Sandiganbayan, supra; Heirs of Juancho Ardona v.

Reyes, supra; Peralta v. Commission on Elections, supra.
33
Heirs of Juancho Ardona v. Reyes, supra; Peralta v. Commission
on Elections, supra.
34
204 SCRA 516, December 2, 1991.
35
Id., p. 523, per Cruz, J.
36
Citing People v. Nazario, 165 SCRA 186, 195-196, August 31,
1988.
38
Citing State v. Hill, 189 Kan 403, 369 P2d 365, 91 ALR 2d 750.
39
Estrada v. Sandiganbayan, supra, p. 352, per Bellosillo, J.
40
349 Phil. 434, January 29, 1998.
41
Id., p. 462, per Romero, J.
42
Ibid.
43
Caltex v. Palomar, 18 SCRA 247, September 29, 1966, Estrada v.
Sandiganbayan, supra, p. 443.
44
Citing 82 CJS 68, p. 113; People v. Ring, 70 P. 2d 281, 26 Cal. App
2d Supp. 768.
45
Citing Mustang Lumber, Inc. v. Court of Appeals, 257 SCRA 430,
448, June 18, 1996.
46
Citing PLDT v. Eastern Telecommunications Phil., Inc., 213 SCRA
16, 26, August 27, 1992.
47
Estrada v. Sandiganbayan, supra, pp. 347-348.
48
Webster's Third New International Dictionary, 1993 ed., p. 11.
49
Petitioner's Memorandum, p. 14.
50
Dans v. People, supra, p. 461.
51
Estrada v. Sandiganbayan, 427 Phil. 820, 858, February 26, 2002;
People v. Arcillas, 348 SCRA 729, 733, December 27, 2000; U.S. v.
Go Chanco, 23 Phil. 641, 645, December 28, 1912.
52
People v. Arcillas, supra.
53
Naya v. Abing, 398 SCRA 364, 369, February 27, 2003; Estrada v.
Sandiganbayan, supra; Balitaan v. CFI of Batangas, Branch II, 201
Phil. 311, 322, July 30, 1982.
54
Balitaan v. CFI of Batangas, Branch II, supra, p. 323; People v.
Arbois, 138 SCRA 24, 32, August 5, 1985.
55
Naya v. Abing, supra, p. 369; Estrada v. Sandiganbayan, supra, p.
859; Balitaan v. CFI of Batangas, Branch II, supra, p. 322.
56
Sandiganbayan Resolution, dated November 20, 2001, p. 2
(supra, p. 59); Office of the Special Prosecutor's Comment, p. 5
(rollo, p. 201); Comment of the Office of the Solicitor General, p. 8
(rollo, p. 224).
57
190 SCRA 226, October 2, 1990.
58
Petitioner's Memorandum, pp. 21-22.
59
Cojuangco v. Presidential Commission on Good Government,
supra, p. 255; See also Republic v. Desierto, 416 Phil. 59, 65,
August 23, 2001.
60
390 Phil. 917, July 14, 2000.

61

Id., p. 941.
Sandiganbayan Resolution dated February 9, 2000; rollo, p. 158.
63
Petitioner's Memorandum, p. 24.
64
Ibid.
65
An Act to Establish Periods of Prescription for Violations Penalized
by Special Acts and Municipal Ordinances and to Provide When
Prescription Shall Begin to Run.
66
Salvador v. Desierto, GR No. 135249, January 16, 2004;
Presidential Ad Hoc Fact-Finding Committee on Behest Loans v.
Desierto, 415 Phil. 723, August 22, 2001.
67
Republic v. Desierto, supra, pp. 76-78, per De Leon Jr., J.
68
On February 28, 1986, by virtue of Executive Order No. 1.
69
This Commission was tasked with the recovery of all ill-gotten
wealth accumulated by former President Ferdinand E. Marcos, his
immediate family, relatives, subordinates and close associates,
during his administration; the investigation of cases of graft and
corruption; and adoption of safeguards and institution of adequate
measures to prevent the occurrence of corruption.
70
Petitioner's Memorandum, p. 31.
71
353 SCRA 452, 516-524, March 2, 2001, per Puno, J.
72
Land Bank of the Philippines v. Court of Appeals, supra; De Baron
v. Court of Appeals, 368 SCRA 407, 415, October 26, 2001;
Intestate Estate of Carmen de Luna v. Intermediate Appellate Court,
170 SCRA 246, 254, February 13, 1989; Butuan Bay Wood Export
Corp. v. Court of Appeals, 97 SCRA 297, 303, April 28, 1980.
TINGA, J.:
1
Estrada v. Sandiganbayan, 421 Phil. 290 (2001). The author of this
Separate Opinion was not yet a member of the Court when the
Estrada case was decided.
2
Page 19, ponencia. See also Estrada v. Sandiganbayan, id. at 348.
3
Page 12, ponencia.
4
Page 13, ponencia.
5
Estrada v. Sandiganbayan, supra note 1 at 451-482.
6
Id. at 421-450
7
Id. at 353-356.
8
Id. at 343. The main opinion in Estrada continued: "As long as the
law affords some comprehensible guide or rule that would inform
those who are subject to it what conduct would render them liable
to its penalties, its validity will be sustained. It must sufficiently
guide the judge in its application; the counsel, in defending the one
charged with its violation; and more importantly, the accused, in
identifying the realm of the proscribed conduct. Indeed, it can be
understood with little difficulty that what the assailed statute
punishes is the act of a public officer in amassing or accumulating
ill-gotten wealth of at least P50,000,000.00 through a series of
62

combination of act enumerated in Sec. 1, par. (d), of the Plunder

Law." Id. at 344.
9
People v. Tudtud, G.R. No. 144037, 26 September 2003.
10
Section 1, Article III, Constitution.
11
People v. Nazario, G.R. No. L-44143, 31 August 1988, 165 SCRA
186, 195; citing L. Tribe, American Constitutional Law 718 (1978).
See also Connally v. General Construction Co., 269 U.S. 385, 391.
Such statute also violates the Constitution for leaving law enforcers
unbridled discretion in carrying out its provisions and becoming an
arbitrary flexing of the government muscle. People v. Nazario, ibid.
12
G.R. No. 121777, 24 January 2001, 350 SCRA 163.
13
Id. at 175-176.
14
Section 14(1), Article III, Constitution. See also Pagasian v. Azura,
G.R. No. RTJ-89, 17 April 1990, 184 SCRA 291, 393; People v.
Kidagan, G.R. Nos. G.R. 88753-54, 20 August 1990, 188 SCRA 763,
768.
15
Section 14(2), Article III, Constitution. See e.g., People v. Pailano,
G.R. No. 43602, 31 January 1989, 169 SCRA 649, 653-654; People v.
Barte, G.R. No. 103211, 28 February 1994, 230 SCRA 401, 411.
16
"While admittedly, penal statutes are worded in reasonably
general terms to accomplish the legislature's objective of
protecting the public from socially harmful conduct, this should not
prevent a vagueness challenge in cases where a penal statute is so
indeterminate as to cause the average person to guess at its
meaning and application. For if a statute infringing upon freedom of
speech may be challenged for being vague because such right is
considered as fundamental, with more reason should a vagueness
challenged with respect to a penal statute be allowed since the
latter involve deprivation of liberty, and even of life which,
inarguably, are rights as important as, if not more than, free
speech." J. Kapunan, dissenting, Estrada v. Sandiganbayan, supra
note 1, at 383.
17
Estrada v. Sandiganbayan, supra note 1, J. Kapunan, dissenting,
at 382-384.
18
269 U.S. 385, 393 (1926).
19
Ibid.
20
306 U.S. 451 (1939).
21
Id. at 453.
22
378 U.S. 347 (1964).
23
Id. at 351.
24
Id. at 352.
25
Id. at 363.
26
405 U.S. 156 (1972).
27
Id. at 162.
28
461 U.S. 352 (1983).
29
Id. at 358.

30

Case No. 97-1121, 10 June 1999.

Case No. 97-1121, 10 June 1999.
32
Ermita-Malate Hotel and Motel Operators Association v. City
Mayor, 127 Phil. 306, 318-319 (1967).
33
Kolender v. Lawson, J. White, dissenting, 461 U.S. 352, 369-370
(1983).
34
Estrada v. Sandiganbayan, supra note 1, J. Mendoza, concurring,
at 430-431.
35
481 U.S. 739 (1987).
36
413 U.S. 601 (1973).
37
U.S. v. Salerno, 481 U.S. 739, 745.
38
413 U.S. 601 (1973).
39
Estrada v. Sandiganbayan, supra note 1, J. Mendoza, concurring,
at 431-432.
40
K. Sullivan and G. Gunther. Constitutional Law 1299 (14th ed.,
2001)
41
Ibid.
42
Ponencia, p. 14.
43
Ibid.
44
Dumlao v. COMELEC, G.R. No. L-52245, 22 January 1980, 95 SCRA
392, 400.
45
Supra note 11.
46
Estrada v. Sandiganbayan, supra note 1, J. Kapunan, dissenting,
at 483.
31

Republic of the Philippines

SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 127718
March 2, 2000
NATIONAL FEDERATION OF LABOR, ABELARDO SANGADAN,
LUCIANO RAMOS, NESTOR TILASAN, GREGORIO TILASAN,
JOAQUIN GARCIA, ROGELIO SABAITAN, CASTRO LEONARDO,
PILARDO POTENCIANO, RONILLO POTENCIANO, SANTIAGO
SABAITAN, JOVENCIO BARTOLOME, JUANITO CONCERMAN,
GEORGE TUMILAS, PATROCINIO DOMINGO, AVELINO
FRANCISCO, MELITON SANGADAN, ALEXANDER GERONIMO,
JOAQUIN GERONIMO, RAMIL MACASO, LAMBERTO JOVEN,
CRISTINO GARINA, SAMMY GANTAAN, NACIAL USTALAN,
EDWIN USTALAN, ROLAND POTENCIANO, RODY
CONCERMAN, ELMER DOMINGO, ARNAGUEZ SANGADAN,
UNDING BOLENG, EDUARDO BOLENG, ROBERTO PANEO and
HENRY SANGADAN, petitioners,
vs.

NATIONAL LABOR RELATIONS COMMISSION (5th Division),

PATALON COCONUT ESTATE and/or CHARLIE REITH as
General Manager and SUSIE GALLE REITH, as owner,
respondents.
DE LEON, JR., J.:
Before us is a special civil action for certiorari to set aside and
annul two (2) resolutions of the National Labor Relations
Commission1 promulgated on April 24, 19962 and August 29, 19963
denying the award of separation pay to petitioners.1wphi1.nt
The pertinent facts are as follows:
Petitioners are bona fide members of the National Federation of
Labor (NFL), a legitimate labor organization duly registered with the
Department of Labor and Employment. They were employed by
private respondents Charlie Reith and Susie Galle Reith, general
manager and owner, respectively, of the 354-hectare Patalon
Coconut Estate located at Patalon, Zamboanga City. Patalon
Coconut Estate was engaged in growing agricultural products and
in raising livestock.
In 1988, Congress enacted into law Republic Act (R.A.) No. 6657,
otherwise known as the Comprehensive Agrarian Reform Law
(CARL), which mandated the compulsory acquisition of all covered
agricultural lands for distribution to qualified farmer beneficiaries
under the so-called Comprehensive Agrarian Reform Programme
(CARP).
Pursuant to R.A. No. 6657, the Patalon Coconut Estate was awarded
to the Patalon Estate Agrarian Reform Association (PEARA), a
cooperative accredited by the Department of Agrarian Reform
(DAR), of which petitioners are members and co-owners.
As a result of this acquisition, private respondents shut down the
operation of the Patalon Coconut Estate and the employment of the
petitioners was severed on July 31, 1994. Petitioners did not receive
any separation pay.
On August 1, 1994, the cooperative took over the estate. A certain
Abelardo Sangadan informed respondents of such takeover via a
letter which was received by the respondents on July 26, 1994.
Being beneficiaries of the Patalon Coconut Estate pursuant to the
CARP, the petitioners became part-owners of the land.4
On April 25, 1995, petitioners filed individual complaints before the
Regional Arbitration Branch (RAB) of the National Labor Relations
Commission (NLRC) in Zamboanga City, praying for their
reinstatement with full backwages on the ground that they were
illegally dismissed. The petitioners were represented by their labor
organization, the NFL.
On December 12, 1995, the RAB rendered a decision, the
dispositive portion of which provides:

WHEREFORE, in view of the foregoing, judgment is hereby rendered

dismissing complainants' charge for illegal dismissal for lack of
merit, but ordering respondents thru [sic] its owner-manager or its
duly authorized representative to pay complainants' separation pay
in view of the latter's cessation of operations or forced sale, and for
13th month differential pay in the amount, as follows, for:
Names

Separati
on

13th Mo. Pay Diff.

Total Pay

Abelardo Sangadan

P23,879.0
6

None

P23,879.06

Luciano Ramos

43,605.24

P711.25

44,316.49

Nestor Tilasan

19,726.18

401.46

20,127.64

Gregorio Tilasan

25,955.50

None

25,955.50

Joaquin Garcia

7,267.54

1,211.25

8,478.79

Rogelio Sabaitan

21,798.00

1,211.25

23,009.25

Castro Leonardo, Jr.

25,955.50

63.10

26,018.60

Pilardo Potenciano

5,191.10

911.25

6,102.35

Ronillo Potenciano

7,267.54

None

7,267.54

Jovencio Bartolome

8,305.76

477.35

8,783.01

Santiago Sabaitan

4,152.88

1,011.25

5,164.13

Juanito Concerman

7,267.54

611.25

7,928.79

George Tumilas

16,611.52

1,011.25

17,622.77

Patrocinio Domingo

2,076.44

1,011.25

3,087.69

Avelino Francisco

3,114.66

1,211.25

4,325.91

Meliton Sangadan

15,573.30

392.50

15,965.80

Alexander
Geronimo

15,573.00

None

15,573.30

Joaquin Geronimo

24,917.28

1,211.25

26,128.53

Ramil Macaso

6,229.32

861.25

7,090.57

Lamberto Joven

16,611.62

1,011.25

17,622.77

Cristino Garina

35,299.48

849.65

36,149.13

Sammy Gantaan

14,535.08

961.25

15,496.33

Nacial Ustalan

38,414.14

79.95

38,494.09

Edwin Ustalan

7,267.54

1,011.25

8,278.79

Roland Potenciano

5,191.10

911.25

6,102.35

Rody Concerman

7,267.54

691.25

7,958.79

Elmer Domingo

3,114.66

1,211.25

4,325.91

Aranquez Sangada

45,681.68

711.25

46,392.93

Unding Boleng

31,146.60

None

31,146.60

Eduardo Boleng

35,299.48

759.30

36,058.78

Roberto Paneo

23,876.06

911.25

24,787.31

Henry Sangadan

16,611.52

1,011.25

17,622.77

Total Benefits

P586,774.
22

FURTHER, complainants' claim for Muslim Holiday overtime pay and

rest day pay should be dismissed for lack of merit, too.5
Appeal was taken by private respondents to public respondent
NLRC.6
On April 24, 1996, the NLRC issued a resolution, the dispositive
portion of which provides:
WHEREFORE, the decision appealed from is hereby modified in
favor of the following findings:
1) Respondents are not guilty of illegally dismissing complainants.
Respondents' cessation of operation was not due to a unilateral
action on their part resulting in the cutting off of the employment
relationship between the parties. The severance of employeremployee relationship between the parties came about
INVOLUNTARILY, as a result of an act of the State. Consequently,
complainants are not entitled to any separation pay.
2) The award of 13th month pay differential is, however, Set Aside.
Any award of 13th month pay differentials to complainants should
be computed strictly based on their reduced pay, equivalent to six

(6) hours work, Monday to Friday, pursuant to what the parties

agreed in the November 18, 1991 Compromise Agreement.
SO ORDERED.7
Petitioners filed a motion for reconsideration which was denied by
the NLRC in its resolution8 dated August 29, 1996.
Hence, this petition.
The issue is whether or not an employer that was compelled to
cease its operation because of the compulsory acquisition by the
government of its land for purposes of agrarian reform, is liable to
pay separation pay to its affected employees.
The petition is bereft of merit.
Petitioners contend that they are entitled to separation pay citing
Article 283 of the Labor Code which reads:
Art. 283. Closure of establishment and reduction of personnel.
The employer may also terminate the employment of any
employee due to the installation of labor saving devices,
redundancy, retrenchment to prevent losses or the closing or
cessation of operation of the establishment or undertaking unless
the closing is for the purpose of circumventing the provisions of this
Title, by serving a written notice on the workers and the Ministry of
Labor and Employment at least one (1) month before the intended
date thereof. In case of termination due to the installation of labor
saving devices or redundancy, the worker affected thereby shall be
entitled to a separation pay equivalent to at least his one (1) month
pay or to at least one (1) month pay for every year of service,
whichever is higher. In case of retrenchment to prevent losses and
in cases of closures or cessation of operations of establishment or
undertaking not due to serious business losses or financial
reverses, the separation pay shall be equivalent to one (1) month
pay or at least one-half (1/2) month pay for every year of service,
whichever is higher. A fraction of at least six (6) months shall be
considered as one (1) whole year.
It is clear that Article 283 of the Labor Code applies in cases of
closures of establishment and reduction of personnel.1wphi1 The
peculiar circumstances in the case at bar, however, involves
neither the closure of an establishment nor a reduction of
personnel as contemplated under the aforesaid article. When the
Patalon Coconut Estate was closed because a large portion of the
estate was acquired by DAR pursuant to CARP, the ownership of
that large portion of the estate was precisely transferred to PEARA
and ultimately to the petitioners as members thereof and as
agrarian lot beneficiaries. Hence, Article 283 of the Labor Code is
not applicable to the case at bench.
Even assuming, arguendo, that the situation in this case were a
closure of the business establishment called Patalon Coconut Estate
of private respondents, still the petitioners/employees are not

entitled to separation pay. The closure contemplated under Article

283 of the Labor Code is a unilateral and voluntary act on the part
of the employer to close the business establishment as may be
gleaned from the wording of the said legal provision that "The
employer may also terminate the employment of any employee
due to. . .".9 The use of the word "may," in a statute, denotes that it
is directory in nature and generally permissive only. 10 The "plain
meaning rule" or verba legis in statutory construction is thus
applicable in this case. Where the words of a statute are clear, plain
and free from ambiguity, it must be given its literal meaning and
applied without attempted interpretation. 11
In other words, Article 283 of the Labor Code does not contemplate
a situation where the closure of the business establishment is
forced upon the employer and ultimately for the benefit of the
employees.
As earlier stated, the Patalon Coconut Estate was closed down
because a large portion of the said estate was acquired by the DAR
pursuant to the CARP. Hence, the closure of the Patalon Coconut
Estate was not effected voluntarily by private respondents who
even filed a petition to have said estate exempted from the
coverage of RA 6657. Unfortunately, their petition was denied by
the Department of Agrarian Reform. Since the closure was due to
the act of the government to benefit the petitioners, as members of
the Patalon Estate Agrarian Reform Association, by making them
agrarian lot beneficiaries of said estate, the petitioners are not
entitled to separation pay. The termination of their employment
was not caused by the private respondents. The blame, if any, for
the termination of petitioners' employment can even be laid upon
the petitioner-employees themselves inasmuch as they formed
themselves into a cooperative, PEARA, ultimately to take over, as
agrarian lot beneficiaries, of private respondents' landed estate
pursuant to RA 6657. The resulting closure of the business
establishment, Patalon Coconut Estate, when it was placed under
CARP, occurred through no fault of the private respondents.
While the Constitution provides that "the State . . . shall protect the
rights of workers and promote their welfare", that constitutional
policy of providing full protection to labor is not intended to oppress
or destroy capital and management. Thus, the capital and
management sectors must also be protected under a regime of
justice and the rule of law.
WHEREFORE, the petition is DISMISSED. The Resolutions of the
National Labor Relations Commission dated April 24, 1996 and
August 29, 1996 are hereby AFFIRMED. No costs.1wphi1.nt
SO ORDERED.
Bellosillo, Mendoza, Quisumbing and Buena, JJ., concur.

Footnotes
1
5th Division.
2
In NLRC Case No. RAB-09-04-00096-95, Rollo, pp. 23-39.
3
In NLRC CA No. M-002823-96, Rollo, pp. 41-51.
4
Rollo, pp. 43-44.
5
Id, pp. 38-39.
6
5th Division, Cagayan de Oro City.
7
Rollo, pp. 50-51.
8
Id, pp. 61-62.
9
Emphasis ours.
10
Agpalo, Ruben E., Statutory Construction, 1995 ed., p. 263.
11
Fianza vs. People's Law Enforcement Board, 243 SCRA 165, 178
(1995).

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. L-14859
March 31, 1962
MACARIO KING, ET AL., petitioners-appellees,
vs.
PEDRO S. HERNAEZ, ETC., ET AL., respondents-appellants.
Sycip, Salazar and Associates for petitioners-appellees.Office of the
Solicitor General for respondents-appellants.
BAUTISTA ANGELO, J.:
On January 1, 1957, Macario King, a naturalized Filipino citizen,
became the owner of the business establishment known as "Import
Meat and Produce", a grocery wholesale and retail business,
previously owned by the Philippine Cold Stores, Inc. In the business
15 persons were employed 12 of whom are Filipinos and the other 3
Chinese. The three Chinese were old employees of the previous
owner, the Philippine Cold Stores, Inc., one having been employed
as purchaser and the other two as salesmen.
Three weeks after King had acquired the business as aforesaid, he
sought permission from the President of the Philippines to retain
the services of the three Chinese employees pursuant to Section 2A of Commonwealth Act 108, coursing his letter thru the Secretary
of Commerce and Industry. This official recommended to the
President the disapproval of King's request on the ground that

aliens may not be appointed to operate or administer a retail

business under Section 1 of Republic Act No. 1180 which requires
that its capital be wholly owned by citizens of the Philippines, the
only exception thereto being the employment of technical
personnel which may be allowed after securing to that effect an
authorization from the President. The President approved the
recommendation of the Secretary of Commerce and Industry since
the positions of purchaser and salesmen occupied by the three
Chinese employees are not technical positions within the meaning
of Section 2-A of Commonwealth Act 108, as amended by Republic
Act No. 134.
As a result of such adverse ruling, Macario King and his three
Chinese employees filed a petition for declaratory relief, injunction
and mandamus on August 25, 1958 against the Secretary of
Commerce and Industry and the Executive Secretary before the
Court of First Instance of Manila praying that they be given relief
because they are "uncertain and in doubt as to their rights and
duties under Republic Act No. 1180 and Commonwealth Act No.
108, as amended by Republic Act No. 134, in view of the aforesaid
rulings of the Department of Commerce and Industry and of the
Executive Secretary." They alleged that said rulings are illegal in
view of the respective situations and positions of petitioners in the
retail establishment, the purpose and language of the laws
abovementioned, and the constitutional guarantee of the rights of
an employer to employ and of an employee to work accorded to
citizens and aliens alike. The lower court issued a writ of
preliminary injunction ex parte upon petitioners' filing a bond in the
amount of P5,000.00.1wph1.t
Respondents filed an answer setting up certain affirmative and
special defenses tending to show that the petition does not allege
facts sufficient to constitute a cause of action. With regard to the
declaratory relief, respondents claim that such remedy is not
available to petitioners because they have already committed a
breach of the statute which is apparent on the face of the petition,
meaning that the employment of the three Chinese as salesmen
and purchaser in the store of Macario King is a violation of the
Section 1 of the Retail Trade Act which provides that only citizens of
the Philippines can engage in retail trade, as well as of Section 2-A
of the Anti-Dummy Law which prohibits Chinese citizens to
intervene in the management, operation, administration or control
of such business, whether as an officer, employee or laborer with or
without remuneration. Respondents further claim that the three
Chinese employees are not technical men who are exempted from
the operation of the law, and even if they are, they need the
authorization of the President which they failed to obtain in their
case.

With regard to the petition for preliminary injunction, respondents

contend that the requisites for its issuance have not been satisfied.
And with regard to the petition for mandamus, respondents alleged
that petitioners have failed to show that respondents have
unlawfully neglected any duty which they are called upon to
perform and which would make them liable for such relief. Hence,
respondents prayed that the petition be dismissed and that the writ
of preliminary injunction issued by the court ex parte be lifted.
To this answer, petitioners filed a reply, which was followed by a
rejoinder and sur-rejoinder, with a detailed discussion of the
arguments advanced in support thereof. And because the motion to
dismiss filed by respondents had been denied for lack of merit, trial
proceeded, after which the lower court entered judgment holding
"that petitioner Macario King may employ any person, although not
a citizen of the Philippines or of the United States of America,
including the three petitioners herein as purchaser and salesmen,
in any position in his retail business not involving participation, or
intervention in the management, operation, administration or
control of said business; that petitioners Lim Pin, Chang Pak and Ng
See Keng are entitled to continue as purchaser and salesmen,
respectively, in Macario King's Import Meat and Produce or in any
other retail establishment; that the writ of preliminary injunction
issued against respondents ordering the to desist from interfering
by criminal and/or administrative action with the rights of the
petitioners as above defined, is hereby declared final; and, finally,
respondents are hereby ordered to allow and permit petitioners to
enjoy and exercise their rights in the manner and to the extent
aforestated." Respondents took the present appeal before this
Court.
The center of controversy between petitioners-appellees and
respondents-appellants hinges on the interpretation be given to
Section 1, Republic Act No. 1180, in relation to Section 2-A,
Commonwealth Act 108, as amended by Republic Act No. 134. For
ready reference we quote the pertinent provisions: .
SECTION 1. No person who is not a citizen of the Philippines, and no
association, partnership, or corporation the capital of which is not
wholly owned by citizens of the Philippines, shall engage directly or
indirectly in the retail business: ... (Emphasis supplied) .
SEC. 2-A. Any person, corporation, or association which, having in
its name or under its control, a right, franchise, privilege, property
or business, the exercise or enjoyment of which is expressly
reserved by the Constitution or the laws to citizens of the
Philippines, or of any other specific country, or to corporations or
associations at least sixty per centum of the capital of which is
owned by such citizens, permits or allows the use, exploitation or
enjoyment thereof by a person, corporation or association not

possessing the requisites prescribed by the Constitution or the laws

of the Philippines; or leases, or in any other way transfers or
conveys said right, franchise, privilege, property or business to a
person, corporation or association not otherwise qualified under the
Constitution, or the provisions of the existing laws; or in any
manner permits or allows any person, not possessing the
qualifications required by the Constitution or existing laws to
acquire, use, exploit or enjoy a right, franchise, privilege, property
or business, the exercise and enjoyment of which are expressly
reserved by the Constitution or existing laws to citizens of the
Philippines or of any other specific country, to intervene in the
management, operation, administration or control thereof, whether
as an officer, employee or laborer therein, with or without
remuneration except technical personnel whose employment may
be specifically authorized by the President of the Philippines upon
recommendation of the Department Head concerned.... (emphasis
supplied) .
With regard to the Retail Trade Law, this Court had already occasion
to rule on its constitutionality. We held that the same is valid and
that its purpose is to completely nationalize the retail trade in the
Philippines. In other words, its primordial purpose is to confine the
privilege to engage in retail trade to Filipino citizens by prohibiting
any person who is not a Filipino citizen or any entity whose capital
is not wholly owned by citizens of the Philippines from engaging,
directly or indirectly, in the retail business. The nationalization of
retail trade is, therefore, complete in the sense that it must be
wholly owned by a Filipino citizen or Filipino controlled entity in
order that it may be licensed to operate. The law seeks a complete
ban to aliens who may not engage in it directly or indirectly. And
the reasons behind such ban are the pernicious and intolerable
practices of alien retailers who in the past have either individually
or in organized groups contrived in many dubious ways to control
the trade and dominate the distribution of goods vital to the life of
our people thereby resulting not only in the increasing dominance
of alien control in retail trade but at times in the strangle hold on
our economic life. These reasons were well expressed by Mr. Justice
Labrador in the following wise: .
"But the dangers arising from alien participation in the retail trade
does not seem to lie in the predominance alone; there is a
prevailing feeling that such predominance may truly endanger the
national interest. With ample capital, unity of purpose and action
and thorough organization, alien retailers and merchants can act in
such complete unison and concert on such vital matters as the
fixing of prices, the determination of the amount of goods or
articles to be made available in the market, and even the choice of
the goods or articles they would or would not patronize or

distribute, that fears of dislocation of the national economy and of

the complete subservience of national retailers and of the
producers and consumers alike, can be placed completely at their
mercy...
"... Grave abuses have characterized the exercise of the retail trade
by aliens. It is a fact within judicial notice, which courts of justice
may not properly overlook or ignore in the interests of truth and
justice, that there exists a general feeling on the part of the public
that alien participation in the retail trade has been attended by a
pernicious and intolerable practices, the mention of a few of which
would suffice for our purposes; that at some time or other they
have cornered the market of essential commodities, like corn and
rice, creating artificial scarcities to justify and enhance profits to
unreasonable proportions; that they have hoarded essential foods
to the inconvenience and prejudice of the consuming public, so
much so that the Government has had to establish the National
Rice and Corn Corporation to save the public from their continuous
hoarding practices and tendencies; that they have violated price
control laws, especially on foods and essential commodities, such
that the legislature had to enact a law (Sec. 9, Republic Act No.
1168), authorizing their immediate and automatic deportation for
price control convictions; that they have secret combinations
among themselves to control prices, cheating the operation of the
law of supply and demand; that they have connived to boycott
honest merchants and traders who would not cater or yield to their
demands, in unlawful restraint of freedom of trade and enterprise.
They are believed by the public to have evaded tax laws, smuggled
goods and money into and out of the land, violated import and
export prohibitions, control laws and the like, in derision and
contempt of lawful authority. It is also believed that they have
engaged in corrupting public officials with fabulous bribes,
indirectly causing the prevalence of graft and corruption in the
Government. As a matter of fact appeals to unscrupulous aliens
have been made both by the Government and by their own lawful
diplomatic representatives, action which impliedly admits a
prevailing feeling about the existence of many of the above
practices.
The circumstances above set forth create well founded fears that
worse things may come in the future. The present dominance of the
alien retailer, especially in the big centers of population, therefore,
becomes a potential source of danger on occasions of war or other
calamity. We do not have here in this country isolated groups of
harmless aliens retailing goods among nationals; what we have are
well organized and powerful groups that dominate the distribution
of goods and commodities in the communities and big centers of
population. They owe no allegiance or loyalty to the State, and the

State cannot rely upon them in times of crisis or emergency. While

the national holds his life, his person and his property subject to the
needs of his country, the alien may even become the potential
enemy of the State. (Lao H. Ichong v. Hernandez, et al., G.R. No. L7995, May 31, 1957).
The purpose of the enactment of the Retail Trade Law, therefore, is
clear. As expressed by this Court, it is to translate the general
preoccupation of the Filipinos against the threat and danger to our
national economy caused by alien dominance and control of the
retail business by weeding out such threat and danger and thus
prevent aliens from having a strangle hold upon our economic life.
But in so doing the legislature did not intend to deprive aliens of
their means of livelihood. This is clearly pointed out in the
explanatory note of the law: .
This bill proposes to regulate the retail business. Its purpose is to
prevent persons who are not citizens of the Philippines from having
a strangle hold upon our economic life. If the persons who control
this vital artery of our economic life are those who owe no
allegiance to this Republic, who have no profound devotion to our
free institutions and who have no permanent state in our people's
welfare, we are not really the masters of our own country. All
aspects of our life, even our national security, will be at the mercy
of other people.
In seeking to accomplish the foregoing purpose, we do not propose
to deprive persons who are not citizens of the Philippines of their
means of livelihood. While this bill seeks to take away from the
hands of persons who are not citizens of the Philippines a power
that can be wielded to paralyze all aspects of our national life and
endanger our national security, it respects existing rights.
It is in the light of this view of the Retail Trade Law that the issue
was posed whether the prohibition to aliens from engaging in such
trade is intended merely to ban them from its ownership and not
from its management control or operation. However, from the
context of the law as well as from the decision of this Court in the
Ichong case, it may be safely inferred that the nationalization of the
retail trade is merely confined to its ownership and not its
management, control, or operation. Nevertheless, this apparent
flaw in the Retail Trade Law cannot be availed of by an
unscrupulous alien as a convenient pretext to employ in the
management of his business persons of his ilk to flout the law or
subvert its nationalistic purpose, for in pari materia with such law
we have the Anti-Dummy Law (Commonwealth Act No. 108, as
amended by Republic Act No. 134), which seeks "to punish acts of
evasion of the laws of nationalization of certain rights, franchises or
privileges." Read in connection with the Retail Trade Law, the Anti-

Dummy Law would punish acts intended to circumvent the

provisions of the former law which nationalize the retail business.
The question that now arises is: Is the employment of aliens in noncontrol positions in a retail establishment or trade prohibited by the
Anti-Dummy Law?
Petitioners contend that their employment is not prohibited either
by the Retail Trade Law or the Anti-Dummy Law. The three Chinese
petitioners testified that they had nothing to do with the
management and control of the business, nor do they participate in
its profits outside of their monthly salaries. They had been
employed long before the enactment of Republic Act No. 1180.
They only wait for customers and sell according to the prices
appearing on the tags previously fixed by their manager Macario
King. They desire to continue in the employ of Macario King in his
business and their job is their only means of earning support for
themselves and their families. Lim Pin who is employed as buyer
declared that his duties include no more than buying the groceries
appearing in a list prepared and given to him from time to time by
Macario King, and at no more than the prices indicated in said list.
Respondents did not present any evidence to contradict these
facts, as they merely relied their motion to dismiss.
It is evident that petitioners' theory is that since they do not
intervene in the management, operation, administration or control
of the retail establishment of Macario King they are not covered by
the Anti-Dummy Law. Indeed, they contend, Section 1 of Republic
Act No. 1180 mirrors the legislative intent to nationalize the retail
trade merely thru the ownership by Filipinos of the business, and as
stated by this Court in the Ichong case, the ownership of the retail
business by non-citizens lies at the foundation of the prohibition,
and since there is nothing in the Retail Trade Law which prohibits a
Filipino-owned retail enterprise from employing an alien and the
dummy law merely limits the prohibition to any position that relates
to management, operation, administration or control, petitioners
contend that they may be allowed to continue in their positions
without doing violence to both the Retail Trade Law and the AntiDummy Law. In other words, they draw a line of distinction between
one class of alien employees occupying positions of control and
another class occupying non-control positions.
Respondents, on the other hand, sustain a different view. They hold
that the language of the Anti-Dummy Law bans aliens' employment
in both control and non-control positions. They contend that the
words management, operation, administration and control, followed
by and blended with the words "whether as an officer, employee or
laborer therein", signify the legislative intent to cover the entire
scale of personnel activity so that even laborers are excluded from
employment, the only exemption being technical personnel whose

employment may be allowed with the previous authorization of the

President. This contention, according to respondents, results from
the application of the rule known in statutory construction as
redendo singula singulis. This means that the antecedents
"management, operation, administration and control" and the
consequents "officer, employee, and laborer" should be read
distributively to the effect that each word is to be applied to the
subject to which it appears by context most properly relate and to
which it is most applicable (Vol. 2, Sutherland, Statutory
Construction, Section 4819).
We agree to this contention of respondents not only because the
context of the law seems to be clear on what its extent and scope
seem to prohibit but also because the same is in full accord with
the main objective that permeates both the Retail Trade Law and
the Anti-Dummy Law. The one advocates the complete
nationalization of the retail trade by denying its ownership to any
alien, while the other limits its management, operation,
administration and control to Filipino citizens. The prevailing idea is
to secure both ownership and management of the retail business in
Filipino hands. It prohibits a person not a Filipino from engaging in
retail trade directly or indirectly while it limits the management,
operation, administration and control to Filipino citizens. These
words may be technically synonymous in the sense that they all
refer to the exercise of a directing, restraining or governing
influence over an affair or business to which they relate, but it
cannot be denied that by reading them in connection with the
positions therein enumerated one cannot draw any other
conclusion than that they cover the entire range of employment
regardless of whether they involve control or non-control activities.
When the law says that you cannot employ an alien in any position
pertaining to management, operation, administration and control,
"whether as an officer, employee, or laborer therein", it only means
one thing: the employment of a person who is not a Filipino citizen
even in a minor or clerical or non-control position is prohibited. The
reason is obvious: to plug any loophole or close any avenue that an
unscrupulous alien may resort to flout the law or defeat its purpose,
for no one can deny that while one may be employed in a noncontrol position who apparently is harmless he may later turn out to
be a mere tool to further the evil designs of the employer. It is
imperative that the law be interpreted in a manner that would
stave off any attempt at circumvention of this legislative purpose.
In this respect, we agree with the following remark of the Solicitor
General: "Summing up, there is no point in distinguishing
employments in positions of control from employments in noncontrol positions except to facilitate violations of the Anti-Dummy
Law. It does not require ingenuity to realize that the law is framed

up the way we find it so that no difficulties will be encountered in

its enforcement. This is not the first time to use the words of the
United States Supreme Court ... that a government wants to know,
without being put to a search, that what it forbids is carried out
effectively." .
There is an intimation in the decision of the trial court that if the
employment of aliens in non-control positions is prohibited as
respondents so advocate, it may impair the right of a citizen under
our Constitution to select, pick and employ any one who in his
opinion may be amenable to his business provided he is not a
criminal, a communist, or affected by a contagious disease, in the
same manner as one may not be deprived of his right to associate
with people of his own choice because those are rights that are
guaranteed by our Constitution. The language of the trial court on
this matter follows: .
There is no question that a Filipino citizen has a right under the
Constitution and the laws of this Republic to engage in any lawful
business, to select, pick and employ anyone who in his opinion may
be amenable, congenial, friendly, understanding and profitable to
his business provided that they are not originals, say communists,
or affected by some contagious disease or morally unfit. The right
to associate with our friends or people of our choice cannot be
seriously contested in a democratic form of government. This is one
of the most cherished privileges of a citizen. Nullify it and it will
produce a communist control of action in our free movement and
intercourse with our fellow citizens as now prevails in Russia and
other Soviet satellites History has amply demonstrated that in
countries where personal liberties are limited, curtailed or
hampered, communism thrives; while in the lands where personal
liberties are protected, democracy lives. We need but look at the
horizon and see terrible and sinister shadows of some catastrophic
events threatening to annihilate all our hopes and love for liberty if
we are to traffic with our rights as citizens like any other ordinary
commodities. It is our sacred and bounden duty to protect
individual rights so that by their benign influence real democracy
may be nurtured to full maturity.
xxx
xxx
xxx
There is no need of any lengthy discussion as to the rights of a
Filipino citizen to employ any person in his business provided the
latter is not a criminal, affected with some contagious disease, or a
recognized human derelict. The right to employ is the same as the
right to associate. The right to associate is admittedly one of the
most sacred privileges of a Filipino citizen. If a Filipino citizen has
the right to employ any person in his business, has a naturalized
citizen the same rights? We hold and sustain that under the
Constitution and laws of this country, there is no difference

between a natural-born citizen and a naturalized citizen, with the

possible exception, as provided by the Constitution, that while the
former can be President, Vice-President or member of Congress, the
latter cannot. But outside of these exceptions, they have the same
rights and privileges.
It is hard to see how the nationalization of employment in the
Philippines can run counter to any provision of our Constitution
considering that its aim is not exactly to deprive citizen of a right
that he may exercise under it but rather to promote enhance and
protect those that are expressly accorded to a citizen such as the
right to life, liberty and pursuit of happiness. The nationalization of
an economic measure when founded on grounds of public policy
cannot be branded as unjust, arbitrary or oppressive or contrary to
the Constitution because its aim is merely to further the material
progress and welfare of the citizens of a country. This is what we
expressed in no uncertain terms in the Ichong Case when we
declared constitutional the nationalization of the retail trade.
Indeed, we said there that it is a law "clearly in the interest of the
public, nay of the national security itself, and indisputability falls
within the scope police power, thru which and by which the State
insures its existence and security and the supreme welfare of its
citizens." True, this fundamental policy was expressed in a decision
the subject of which concerns the constitutionality of the Retail
Trade Act, but since the Anti-Dummy Law is but a mere
complement of the former in the sense that it is designed to make
effective its aims and purposes and both tend to accomplish the
same objective either by excluding aliens from owning any retail
trade or by banning their employment if the trade is owned by
Filipinos, and the target of both is "the removal and eradication of
the shackles of foreign economic control and domination" thru the
nationalization of the retail trade both in ownership and
employment, the pronouncement made in one regarding its
constitutionality applies equally if not with greater reason to the
other both being complementary one to the other. Indeed, in
nationalizing employment in retail trade the right of choice of an
employer is not impaired but its sphere is merely limited to the
citizens to the exclusion of those of other nationalities.
We note that the case cited by the trial court to substantiate its
conclusion that freedom to employ is guaranteed by our
Constitution is Meyer v. Nebraska, 67 Law Ed. 1042, which is also
the same case relied upon by petitioners in support of their
proposition that "the liberty guaranteed by the Constitution
includes the right to engage in any of the common occupations of
life". We also note that this is the same case cited by counsel for
Lao Itchong to support the same proposition in his advocacy of the
unconstitutionality of the nationalization of the Retail Trade Law

which did not deserve favorable consideration by this Court in the

Itchong case. To refute counsel's argument that the retail trade is a
common occupation the pursuit of which cannot be impaired and
consequently the right to employ therein is guaranteed by our
Constitution, suffice it to state that we brushed aside such theory in
the Itchong case in view of the monopolistic control exercised by
aliens in the retail business and their "deadly strangle hold on the
national economy endangering the national security in times of
crisis and emergency". The circumstances surrounding the
enforcement of the Retail Trade Law being the very foundation of
the Anti-Dummy Law the same circumstances that justify the
rejection of counsel's proposition in the Itchong case should also
apply with regard to the application of the Meyer case in the
consideration of the constitutionality of the Anti-Dummy Law.
The thinking of the lower court that the nationalization of
employment in retail trade produces communistic control or impairs
a right guaranteed by the Constitution to a citizen seems to have
as basis its pronouncement that "the right to employ is the same as
the right to associate". This promise has no foundation in law for it
confuses the right of employment with the right of association
embodied in the Bill of Rights of our Constitution. Section 1,
paragraph 6, of said Bill of Rights, provides that "the right to form
associations or societies for purposes not contrary to law, shall not
be abridged", and this has as its main purpose "to encourage the
formation of voluntary associations so that thru the cooperative
activities of individuals the welfare of the nation may be
advanced."1 Petitioners have never been denied the right to form
voluntary associations. In fact, they can so organize to engage in
any business venture of their own choosing provided that they
comply with the limitations prescribed by our regulatory laws.
These laws cannot be assailed as abridging our Constitution
because they were adopted in the exercise of the police power of
the State (Lao Itchong case, supra).
Against the charge that this nationalization movement initiated by
Congress in connection with several measures that affect the
economic life of our people places the Philippines in a unique
position in the free world, we have only to cite the cases of
Commonwealth v. Hans, 81 N.E. 149, and Bloomfield v. State, 99
N.E. 309, which this Court considered as basic authorities for
nationalization of legislative measures in the Lao Ichong case.
Similar laws had been declared constitutional by the Supreme Court
of California and the United States Supreme Court in a series of
cases involving contracts under the Alien Land Law, and because of
the similarities of the facts and laws involved therein we can
consider the decisions rendered in said cases of persuasive force
and effect in the determination of the present case.2

We wish to add one word with regard to the procedural aspect

raised in respondents' brief. It is respondents' theory that a
complaint for declaratory relief will not prosper if filed after a
contract or statute has been breached. The law does not even
require that there shall be an actual pending case. It is sufficient
that there is a breach of the law, or an actionable violation, to bar a
complaint for declaratory judgment (Vol. 2, Moran, Comments on
the Rules of Court, 1957 Ed., 145). The pertinent provisions of the
Anti-Dummy Law postulate that aliens cannot be employed by
Filipino retailers except for technical positions with previous
authority of the President, and it is contended that Macario King
had in his employ his Chinese co-petitioners for a period of more
than 2 years in violation of Section 2-A of Republic Act No. 134.
Hence, respondents contend, due to their breach of the law
petitioners have forfeited their right to file the present action for
declaratory relief.
It appears, however, that alien petitioners were already in the
employ of the establishment known as "Import Meat and Produce"
previously owned by the Philippine Cold Stores, Inc. when Macario
King acquired the ownership of said establishment and because of
the doubt he entertained as regards the scope of the prohibition of
the law King wrote the President of the Philippines to request
permission to continue said petitioners in his employment, and
immediately after the request was denied, he instituted the present
petition for declaratory relief. It cannot, therefore, be said that King
has already breached the law when he filed the present action..
WHEREFORE, the decision appealed from is reversed. This
preliminary injunction issued by the trial court on December 6,
1958 is hereby lifted. The petition for mandamus is dismissed, with
costs against appellees.
Bengzon, C.J., Labrador, Concepcion, Reyes, J.B.L., Barrera,
Paredes, Dizon and De Leon, JJ., concur.Padilla, J., took no part.
Footnotes
1
Sinco on Philippine Political Law, 10th ed., p. 647.
2
Porterfield v. U.S. Webb, 195 Cal. 71; Carter v. Utley, 195 Cal. 84;
In re Y. Akado, 188 Cal 739; In re Okahara, 191 Cal. 353: O'Brien v.
Webb, 263 U.S. 313, 68 L. Ed., 318; Terrace v. Thompson, 263 U.S
197, 68 L. Ed., 255; Porterfield v. Webb, 263 U.S. 326, 68 L. Ed.,
278; Frick v. Webb, 326 L. Ed., 323.

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. 93177 August 2, 1991
B/GEN. JOSE COMENDADOR, B/GEN, MARIELO BLANDO,
CAPT. DANILO PIZARRO, CAPT. MANUEL ISON, COL. LUISITO
SANCHEZ, LTC. ROMELINO GOJO, LTC. ARSENIO TECSON, LTC.
RAFAEL GALVEZ, LTC. TIBURCIO FUSILLERO, LTC. ERICSON
AURELIO, LTC. JACINTO LIGOT LTC. FRANKLIN BRAWNER,
MAJ. ALFREDO OLIVEROS, MAJ. CESAR DE LA PERA, MAJ.
LEUVINO VALENCIA, CAPT. FLORENCIO FLORES, CAPT. JAIME
JUNIO, CAPT. DANILO LIM, CAPT. ELMER AMON, CAPT.
VERGEL NACINO, and LT. JOEY SARROZA, petitioners,
vs.
GEN. RENATO S. DE VILLA, CHIEF OF STAFF, AFP, THE PTI
INVESTIGATING PANEL COMPOSED OF: COL. MANUEL S.
MENDIOLA, COL. VIRTUD NORBERTO L. DAGZA MAJ. FELIX V.
BALDONADO and MAJ. ESTELITO L. PORNEA and GENERAL
COURT-MARTIAL NO. 14 COMPOSED OF: B/GEN. DEMETRIO
CAMUA COL. HERMINIO A. MENDOZA, COL. ERNESTO B. YU,
COL. ROMEO ODI, COL. WILLY FLORENDO, COL. DIONY A.
VENTURA and CAPT. FRANCISCO T. MALLILLIN, respondents.
No. 95020 August 2, 1991
B/GEN. DEMETRIO CAMUA, COL. HERMIMO A. MENDOZA,
COL. ERNESTO B. YU, COL. ROMEO ODI, COL. WILLY
FLORENDO, COL. DIONY A. VENTURA, and CAPT. FRANCISCO
T. MALLILLIN, petitioners,
vs.
HON. MIANO C. ASUNCION, Presiding Judge, Branch 104,
REGIONAL TRIAL COURT, Q.C., LTC. JACINTO LIGOT PA.,
respondents.

No. 96948 August 2, 1991

B/GEN. JOSE COMENDADOR, B/GEN. MARCELO BLANDO,
CAPT. DANILO PIZARRO PN, CAPT. MANUEL ISON PN, LTC.
ROMELINO GOJO PN (M), LTC. ARSENIO TECSON PA, LTC.
RAFAEL GALVEZ PA, LTC. TIBURCIO FUSILLERO PA, LTC.
ERICSON AURELIO PA, LTC. JACINTO LIGOT PA, LTC.
FRANKLIN BRAWNER PA, MAJ. ALFREDO OLIVEROS PA, MAJ.
CESAR DE LA PENA PN (M): MAJ. LEUVINO VALENCIA PA,
CAPT. FLORENCIO FLORES PA, CAPT. JAIME JUNIO PA, CAPT.
DANILO LIM PA, CAPT. ELMER AMON PAF CAPT. VERGEL
NACINO, and LT. JOEY SARROZA, petitioners,
vs.
B/GEN. DEMETRIO CAMUA COL. HERMINIO A. MENDOZA,
COL. ERNESTO B. YU, COL. ROMEO ODI COL. WILLY
FLORENDO, COL. DIONY A. VENTURA, and CAPT. FRANCISCO
T. MALLILLIN PRESIDENT AND MEMBERS OF GENERAL
COURT-MARTIAL NO. 14, respondents.
No. 97454 August 2, 1991
AFP CHIEF OF STAFF LT. GEN. RODOLFO BIAZON, DEPUTY
CHIEF OF STAFF MAJOR GEN. ALEXANDER AGUIRRE, PNP
DIRECTOR GENERAL MAJOR GEN. CESAR NAZARENO and LT.
COL. ALBERTO OLARIO, Commanding Officer of the PNP/INP
Detention Center/Jail, petitioners,
vs.
HON. ANTONIO P. SOLANO, Presiding Judge, Regional Trial
Court, Quezon City, Branch 86, CAPTAIN REYNALDO S.
RAFAEL, 1 LT SERVANDO A. BAOANAN PN(M), 1 LT.
WILFREDO JIMENEZ PAF 1 LT. ATANACIO T. MACALAN JR PMM
2LT ELISEO T. RASCO PC, 2LT JONAS CALLEJA PC, 2LT JAIRUS
JS GELVEZON III PMM 2LT JOSELITO CABREROS PMM 2LT
MEMEL ROJAS PN(M) and 2LT HERMINIO L. CANTACO PC,
respondents.
Armando M. Marcelo and Rainier L. Madrid for petitioners Luisito
Sanchez, Tiburcio Fusillero, Ericson Aurelio, Levino Valencia, Danilo
Arnon Vergel Nacino, Florencio Flores, Benigno Junio and Joey
Sarroza.
Manuel Q. Malvar for Rafael Galvez and Danny Lim.
Manuel E. Valenzuela for Arsenio Tecson
Mariano R. Santiago for Alfredo Oliveros.
Ricardo J.M. Rivera for Manuel Ison.
Castillo, Laman, Tan and Pantaleon for Danilo Pizarro.
Alfredo Lazaro for Romelino Gojo.
Manuel A. Barcelona, Jr. for Jose Comendador.
Jonathan B.S. Rebong and Efren C. Carag for Marcelo Blando.
Pablito V. Sanidad for Franklin Brawner and Ericson Aurelio.
Efren C. Moncupa for All Tecson.

M.M. Lazaro & Associates for respondents Ligot and Ison .

Baldomero S.P. Gatbonton, Jr. for Jacinto Ligot.
Salvador B. Britanico for Cesar de la Pena.
Gilbert R.T. Reyes for Danilo Pizarro.
Ponce Enrile, Cayetano, Reyes & Manalastas for petitioners in G.R.
No. 93177.
The Solicitor General for respondents.
CRUZ, J.:p
These four cases have been consolidated because they involve
practically the same parties and related issues arising from the
same incident.
The petitioners in G.R. Nos. 93177 and 96948 and the private
respondents in G.R. Nos. 95020 and 97454 are officers of the
Armed Forces of the Philippines facing prosecution for their alleged
participation in the failed coup d' etat that took place on December
1 to 9, 1989.
The charges against them are violation of Articles of War (AW) 67
(Mutiny), AW 96 (Conduct Unbecoming an Officer and a Gentleman)
and AW 94 (Various Crimes) in relation to Article 248 of the Revised
Penal Code (Murder).
In G.R. No. 93177, which is a petition for certiorari, prohibition and
mandamus, they are questioning the conduct of the Pre-Trial
Investigation PTI Panel constituted to investigate the charges
against them and the creation of the General Court Martial GCM
convened to try them.
In G.R. No. 96948, the petitioners, besides challenging the legality
of GCM No. 14, seek certiorari against its ruling denying them the
right to peremptory challenge as granted by Article 18 of Com. Act
No. 408.
In G.R. No. 95020, the orders of the respondent judge of the
Regional Trial Court of Quezon City are assailed on certiorari on the
ground that he has no jurisdiction over GCM No. 14 and no
authority either to set aside its ruling denying bail to the private
respondents.
In G.R. No. 97454, certiorari is also sought against the decision of
the Regional Trial Court of Quezon City in a petition for habeas
corpus directing the release of the private respondents.
Jurisdictional objections are likewise raised as in G.R. No. 95020.
I
Before the charges were referred to GCM No. 14, a Pre-Trial
Investigation PTI Panel had been constituted pursuant to Office
Order No. 16 dated January 14, 1990, to investigate the petitioners
in G.R. Nos. 93177 and 96948. The PTI Panel issued a uniform
subpoena dated January 30, 1990, individually addressed to the
petitioners, to wit:

You are hereby directed to appear in person before the undersigned

Pre-Trial Investigating Officers on 12 Feb 90 9:00 a.m. at Kiangan
Hall, Camp Crame Quezon City, then and there to submit your
counter-affidavit and the affidavits of your witnesses, if any, in the
pre-trial investigation of the charge/charges against you for
violence of AWs _______________. DO NOT SUBMIT A MOTION TO
DISMISS.
Failure to submit the aforementioned counter-affidavits on the date
above specified shall be deemed a waiver of your right to submit
controverting evidence.
On the same date, the petitioners acknowledged receipt of a copy
of the charge sheet, sworn statements of witnesses, and death and
medical certificates of victims of the rebellion.
At the first scheduled hearing, the petitioners challenged the
proceedings on various grounds, prompting the PTI Panel to grant
them 10 days within which to file their objections in writing This
was done through a Motion for Summary Dismissal dated February
21, 1990.
In a resolution dated February 27,1990, the PTI Panel denied the
motion and gave the petitioners 5 days from notice to submit their
respective counter-affidavits and the affidavits of their witnesses.
On March 7, 1990, the petitioners verbally moved for
reconsideration of the foregoing denial and the PTI Panel gave them
7 days within which to reduce their motion to writing. This was
done on March 14,1990.
The petitioners now claim that there was no pre-trial investigation
of the charges as mandated by Article of War 71, which provides:
Art. 71. Charges Action upon. Charges and specifications must
be signed by a person subject to military law, and under the oath
either that he has personal knowledge of, or has investigated, the
matters set forth therein and that the same are true in fact, to the
best of his knowledge and belief.
No charge will be referred to a general court-martial for trial until
after a thorough and impartial investigation thereof shall have
been made. This investigation will include inquiries as to the truth
of the matter set forth in said charges, form of charges, and what
disposition of the case should be made in the interest of justice and
discipline. At such investigation full opportunity shall be given to
the accused to cross-examine witnesses against him if they are
available and to present anything he may desire in his own behalf,
either in defense or mitigation, and the investigating officer shall
examine available witnesses requested by the accused. If the
charges are forwarded after such investigation, they shall be
accompanied by a statement of the substance of the testimony
taken on both sides. (Emphasis supplied.)

They also allege that the initial hearing of the charges consisted
merely of a roll call and that no prosecution witnesses were
presented to reaffirm their affidavits. while the motion for summary
dismissal was denied, the motion for reconsideration remains
unresolved to date and they have not been able to submit their
counter-affidavits.
At the hearing of May 15, 1990, the petitioners in G.R. No. 96948
manifested that they were exercising their right to raise
peremptory challenges against the president and members of GCM
No.14. They invoked Article 18 of Com. Act No. 408 for this
purpose. GCM No. 14 ruled, however, that peremptory challenges
had been discontinued under P.D. No. 39.
In G.R. No. 95020, Ltc Jacinto Ligot applied for bail on June 5, 1990,
but the application was denied by GCM No.14. He thereupon filed
with the Regional Trial Court of Quezon City a petition for certiorari
and mandamus with prayer for provisional liberty and a writ of
preliminary injunction. After considering the petition and the
answer thereto filed by the president and members of GCM No.14,
Judge Maximiano C. Asuncion issued an order granting provisional
liberty to Ligot.
On July 28, 1990, Ligot filed an urgent omnibus motion to enforce
the order for his release and to declare in contempt the
commanding officer of the PC/INP Jail for disobey 'ng the said order.
He later also complained that Generals De Villa and Aguirre had
refused to release him "pending final resolution of the appeal to be
taken" to this Court.
After hearing, the trial court reiterated its order for the provisional
liberty of Ligot, as well as of intervenors Ltc Franklin Brawner,
Lt/Col. Arsenio Tecson and Maj. Alfredo Oliveros, and later of
additional intervenors Ltc Romelino Gojo and Capt. Manuel Ison.
On August 22, 1990, the trial court rendered judgment inter alia:
(a) Declaring, that Section 13, Article III of the Constitution granting
the right to bail to all persons with the defined exception is
applicable and covers all military men facing court-martial
proceedings. Accordingly, the assailed orders of General CourtMartial No. 14 denying bail to petitioner and intervenors on the
mistaken assumption that bail does not apply to military men
facing court-martial proceedings on the ground that there is no
precedent, are hereby set aside and declared null and void.
Respondent General Court-Martial No. 14 is hereby directed to
conduct proceedings on the applications of bail of the petitioner,
intervenors and which may as well include other persons facing
charges before General Court-Martial No. 14.
Pending the proceedings on the applications for bail before General
Court-Martial No. 14, this Court reiterates its orders of release on

the provisional liberty of petitioner Jacinto Ligot as well as

intervenors Franklin Brawner and Arsenio Tecson.
On February 18, 1991, the private respondents in G.R. No. 97454
filed with this Court a petition for habeas corpus on the ground that
they were being detained in Camp Crame without charges. The
petition was referred to the Regional Trial Court of Quezon City,
where it was raffled to respondent Judge Antonio P. Solano. Finding
after hearing that no formal charges had been filed against the
petitioners after more than a year after their arrest, the trial court
ordered their release.
II
The Court has examined the records of this case and rules as
follows.
It appears that the petitioners in G.R. Nos. 93177 and 96948 were
given several opportunities to present their side at the pre-trial
investigation, first at the scheduled hearing of February 12, 1990,
and then again after the denial of their motion of February 21,
1990, when they were given until March 7, 1990, to submit their
counter-affidavits. On that date, they filed instead a verbal motion
for reconsideration which they were again asked to submit in
writing. This they did on March 13, 1990. The motion was in effect
denied when the PTI Panel resolved to recommend that the charges
be referred to the General Court Martial for trial.
The said petitioners cannot now claim they have been denied due
process because the investigation was resolved against them owing
to their own failure to submit their counter-affidavits. They had
been expressly warned In the subpoena sent them that "failure to
submit the aforementioned counter-affidavits on the date above
specified shall be deemed a waiver of (their) right to submit
controverting evidence." They chose not to heed the warning. As
their motions appeared to be dilatory, the PTI Panel was justified in
referring the charges to GCM No. 14 without waiting for the
petitioners to submit their defense.
Due process is satisfied as long as the party is accorded an
opportunity to be heard. If it is not availed of, it is deemed waived
or forfeited without violation of the Bill of Rights.
There was in our view substantial compliance with Article of War 71
by the PTI Panel. Moreover, it is now settled that "even a failure to
conduct a pre-trial investigation does not deprive a general courtmartial of jurisdiction." We so held in Arula v. Espino, 1 thus:
xxx xxx xxx
But even a failure to conduct a pre-trial investigation does not
deprive a general court-martial of jurisdiction.
The better accepted concept of pre-trial investigation is that it is
directory, not mandatory, and in no way affects the jurisdiction of a

court-martial. In Humphrey v. Smith, 336 U.S. 695, 93 L ed 986

(1949), the Court said:
We do not think that the pre-trial investigation procedure by Article
70 (The Philippine counter-part is article of war 71, Commonwealth
Act 408) can properly be construed as an indispensable prerequisite to the exercise of the Army General court martial
jurisdiction.. The Article does serve important functions in the
administration of court-martial procedures and does provide
safeguards to an accused. Its language is clearly such that a
defendant could object to trial in the absence of the required
investigation. In that event the court-martial could itself postpone
trial pending the investigation. And the military reviewing
authorities could consider the same contention, reversing a courtmartial conviction where failure to comply with Article 70 has
substantially injured an accused. But we are not persuaded that
Congress intended to make otherwise valid court-martial judgments
wholly void because pre-trial investigations fall short of the
standards prescribed by Article 70. That Congress has not required
analogous pre-trial procedure for Navy court-martial is an indication
that the investigatory plan was not intended to be exalted to the
jurisdictional level.
xxx xxx xxx
Shortly after enactment of Article 70 in 1920 the Judge Advocate
General of the Army did hold that where there had been no pre-trial
investigation, court-martial proceedings were void ab initio. But this
holding has been expressly repudiated in later holdings of the Judge
Advocate General. This later interpretation has been that the pretrial requirements of Article 70 are directory, not mandatory, and in
no way effect the jurisdiction of a court-martial. The War
Department's interpretation was pointedly called to the attention of
Congress in 1947 after which Congress amended Article 70 but left
unchanged the language here under consideration. compensable
pre-requisite to the exercise of Army general court-martial
jurisdiction
A trial before a general court-martial convened without any pretrial
investigation under article of war 71 would of course be altogether
irregular but the court-martial might nevertheless have jurisdiction.
Significantly, this rule is similar to the one obtaining in criminal
procedure in the civil courts to the effect that absence of
preliminary investigation does not go into the jurisdiction of the
court but merely to the regularity of the proceedings.
As to what law should govern the conduct of the preliminary
investigation, that issue was resolved more than two years ago in
Kapunan v. De Villa, 2 where we declared:
The Court finds that, contrary to the contention of petitioners, there
was substantial compliance with the requirements of law as

provided in the Articles of War and P.D. No. 77, as amended by P.D.
No. 911. The amended charge sheets, charging petitioners and
their co-respondents with mutiny and conduct unbecoming an
officer, were signed by Maj. Antonio Ruiz, a person subject to
military law, after he had investigated the matter through an
evaluation of the pertinent records, including the reports of
respondent AFP Board of Officers, and was convinced of the truth of
the testimonies on record. The charge sheets were sworn to by Maj.
Ruiz, the "accuser," in accordance with and in the manner provided
under Art. 71 of the Articles of War. Considering that P.D. No. 77, as
amended by P.D. No. 911, is only of suppletory application, the fact
that the charge sheets were not certified in the manner provided
under said decrees, i.e., that the officer administering the oath has
personally examined the affiant and that he is satisfied that they
voluntarily executed and understood its affidavit, does not
invalidate said charge sheets. Thereafter, a "pretrial investigation"
was conducted by respondent Maj. Baldonado, wherein, pursuant to
P.D. No. 77, as amended by P.D. No. 911, petitioners were
subpoenaed and required to file their counter-affidavit. However,
instead of doing so, they filed an untitled pleading seeking the
dismissal of the charges against them. That petitioners were not
able to confront the witnesses against them was their own doing,
for they never even asked Maj. Baldonado to subpoena said
witnesses so that they may be made to answer clarificatory
questions in accordance with P. D, No. 77, as amended by P.D. No.
911.
The petitioners also allege that GCM No. 14 has not been constitute
in accordance with Article 8 of the Articles of War because General
Order No. M-6, which supposedly convened the body, was not
signed by Gen. Renato de Villa as Chief of Staff.
Article of War No. 8 reads:
Art. 8. General Courts-Martial. The President of the Philippines,
the Chief of Staff of the Armed Forces of the Philippines, the Chief
of Constabulary and, when empowered by the President, the
commanding officer of a major command or task force, the
commanding officer of a division, the commanding officer of a
military area, the superintendent of the Military Academy, the
commanding officer of a separate brigade or body of troops may
appoint general courts-martial; but when any such commander is
the accuser or the prosecutor of the person or persons to be tried,
the court shall be appointed by superior competent authority. ...
While it is true that General Order No. M-6 was not signed by Gen.
De Villa, there is no doubt that he authorized it because the order
itself said it was issued "By Command of General De Villa" and it
has not been shown to be spurious. As observed by the Solicitor
General, the Summary Disposition Form showed that Gen. De Villa,

as Chief of Staff, AFP, actually constituted GCM No. 14 and

appointed its president and members. It is significant that General
De Villa has not disauthorized or revoked or in any way disowned
the said order, as he would certainly have done if his authority had
been improperly invoked. On the contrary, as the principal
respondent in G.R. No. 93177, he sustained General Order No. M 6
in the Comment filed for him and the other respondents by the
Solicitor General.
Coming now to the right to peremptory challenge, we note that this
was originally provided for under Article 18 of Com. Act No. 408
(Articles of War), as amended by Rep. Act No. 242, on June 12,
1948, to wit:
Art. 18. Challenges. Members of general or special courts-martial
may be challenged by the accused or the trial judge advocate for
cause stated to the court. The court shall determine the relevancy
and validity thereof, and shall not receive a challenge to more than
one member at a time. Challenges by the trial judge advocate shall
ordinarily be presented and decided before those by the accused
are offered. Each side shall be entitled to the peremptory
challenge, but the law member of the court shall not be challenged
except for cause.
The history of peremptory challenge was traced in Martelino v.
Alejandro, 3 thus:
In the early formative years of the infant Philippine Army, after the
passage in 1935 of Commonwealth Act No. 1 (otherwise known as
the National Defense Act), except for a handful of Philippine Scout
officers and graduates of the United States military and naval
academies who were on duty with the Philippine Army, there was a
complete dearth of officers learned in military law, its aside from
the fact that the officer corps of the developing army was
numerically made equate for the demands of the strictly military
aspects of the national defense program. Because of these
considerations it was then felt that peremptory challenges should
not in the meanwhile be permitted and that only challenges for
cause, in any number, would be allowed. Thus Article 18 of the
Articles of War (Commonwealth Act No. 408), as worded on
September 14, 1938, the date of the approval of the Act, made no
mention or reference to any peremptory challenge by either the
trial judge advocate of a court- martial or by the accused. After
December 17,1958, when the Manual for Courts-Martial of the
Philippine Army became effective, the Judge Advocate General's
Service of the Philippine Army conducted a continuing and
intensive program of training and education in military law,
encompassing the length and breadth of the Philippines. This
program was pursued until the outbreak of World War 11 in the
Pacific on December 7, 1941. After the formal surrender of Japan to

the allies in 1945, the officer corps of the Armed Forces of the
Philippines had expanded to a very large number, and a great
many of the officers had been indoctrinated in military law. It was in
these environmental circumstances that Article of War 18 was
amended on June 12,1948 to entitle "each side" to one peremptory
challenge, with the sole proviso that "the law member of court shall
not be challenged except for cause.
On September 27,1972, President Marcos issued General Order No.
8, empowering the Chief of Staff of the Armed Forces to create
military tribunals "to try and decide cases of military personnel and
such other cases as may be referred to them.
On November 7,1972, he promulgated P.D. No. 39 (Governing the
Creation, Composition, Jurisdiction, Procedure, and other matters
relevant to military Tribunals). This decree disallowed the
peremptory challenge, thus:
No peremptory challenge shall be allowed. Challenges for cause
may be entertained to insure impartiality and good faith.
Challenges shall immediately be heard and determined by a
majority of the members excluding the challenged member. A tie
vote does not disqualify the challenged member. A successfully
challenged member shall be immediately replaced.
On June 11, 1978, President Marcos promulgated P.D. No. 1498, or
the National Security Code, which was a compilation and
codification of decrees, general orders, LOI and policies intended
"to meet the continuing threats to the existence, security and
stability of the State." The modified rule on challenges under P.D.
No. 39 was embodied in this decree.
On January 17,1981, President Marcos issued Proc. No. 2045
proclaiming the termination of the state of martial law throughout
the Philippines. The proclamation revoked General Order No. 8 and
declared the dissolution of the military tribunals created pursuant
thereto upon final determination of the cases pending therein.
P.D. No. 39 was issued to implement General Order No. 8 and the
other general orders mentioned therein. With the termination of
martial law and the dissolution of the military tribunals created
thereunder, the reason for the existence of P.D. No. 39 ceased
automatically.
It is a basic canon of statutory construction that when the reason of
the law ceases, the law itself ceases. Cessante ratione legis, cessat
ipsa lex. This principle is also expressed in the maxim ratio legis est
anima: the reason of law is its soul.
Applying these rules, we hold that the withdrawal of the right to
peremptory challenge in L P.D. No. 39 became ineffective when the
apparatus of martial law was dismantled with the issuance of
Proclamation No. 2045, As a result, the old rule embodied in Article

18 of Com. Act No. 408 was automatically revived and now again
allows the right to peremptory challenge.
We do not agree with the respondents in G.R. No. 96948 that the
right to peremptory challenge remains withdrawn under P.D. No.
39. To repeat for emphasis, this decree was itself withdrawn when
martial law was lifted on January 17, 1981. Indeed, even if not so
withdrawn, it could still be considered no longer operative, having
been cast out under the new dispensation as, in the words of the
Freedom Constitution, one of the "iniquitous vestiges of the
previous regime.
The military tribunal was one of the most oppressive instruments of
martial law. It is curious that the present government should invoke
the rules of that discredited body to justify its action against the
accused officers.
The Court realizes that the recognition of the right to peremptory
challenge may be exploited by a respondent in a court-martial trial
to delay the proceedings and defer his deserved Punishment. It is
hoped that the accused officers in the cases at bar will not be so
motivated. At any rate, the wisdom of Com. Act No. 408, in the light
of present circumstances, is a matter addressed to the law-makers
and not to this Court. The judiciary can only interpret and apply the
laws without regard to its own misgivings on their adverse effects.
This is a problem only the political departments can resolve.
The petitioners in G.R. Nos. 95020 and 97454 question the
propriety of the petition for certiorari and mandamus and the
petition for habeas corpus filed by the private respondents with the
Regional Trial Courts of Quezon City. It is argued that since the
private respondents are officers of the Armed Forces accused of
violations of the Articles of War, the respondent courts have no
authority to order their release and otherwise interfere with the
court-martial proceedings.
The petitioners further contend that under Sec. 9(3) of BP 1 29, the
Court of Appeals is vested with "exclusive appellate jurisdiction
over all final judgments, decisions, resolutions, orders, or awards of
Regional Trial Courts and quasi-judicial agencies, instrumentalities,
boards or commissions." Rather irrelevantly, the petitioners also
cite the case of Yang v. Court of Appeals 4 where this Court held
that "appeals from the Professional Regulation Commission are now
exclusively cognizable by the Court of Appeals.
It should be noted that the aforecited provision and the case cited
refer to ordinary appeals and not to the remedies employed by the
accused officers before the respondent courts.
In Martelino, we observed as follows:
It is true that civil courts as a rule exercise no supervision or
correcting power over the proceedings of courts-martial, and that
mere errors in their proceedings are not open to consideration. The

single inquiry, the test, is jurisdiction. But it is equally true that in

the exercise of their undoubted discretion, courts-martial may
commit such an abuse of discretion what in the language of Rule
65 is referred to as "grave abuse of discretion" as to give rise to
a defect in their jurisdiction. This is precisely the point at issue in
this action suggested by its nature as one for certiorari and
prohibition ... .
The Regional Trial Court has concurrent jurisdiction with the Court
of Appeals and the Supreme Court over petitions for certiorari,
prohibition or mandamus against inferior courts and other bodies
and on petitions for habeas corpus and quo warranto. 5 In the
absence of a law providing that the decisions, orders and ruling of a
court-martial or the Office of the Chief of Staff can be questioned
only before the Court of Appeals and the Supreme Court, we hold
that the Regional Trial Court can exercise similar jurisdiction.
We find that the right to bail invoked by the private respondents in
G.R. Nos. 95020 has traditionally not been recognized and is not
available in the military, as an exception to the general rule
embodied in the Bill of Rights. This much was suggested in Arula,
where we observed that "the right to a speedy trial is given more
emphasis in the military where the right to bail does not exist.
The justification for this exception was well explained by the
Solicitor General as follows:
The unique structure of the military should be enough reason to
exempt military men from the constitutional coverage on the right
to bail.
Aside from structural peculiarity, it is vital to note that mutinous
soldiers operate within the framework of democratic system, are
allowed the fiduciary use of firearms by the government for the
discharge of their duties and responsibilities and are paid out of
revenues collected from the people. All other insurgent elements
carry out their activities outside of and against the existing political
system.
xxx xxx xxx
National security considerations should also impress upon this
Honorable Court that release on bail of respondents constitutes a
damaging precedent. Imagine a scenario of say 1,000 putschists
roaming the streets of the Metropolis on bail, or if the assailed July
25,1990 Order were sustained, on "provisional" bail. The sheer
number alone is already discomforting. But, the truly disquieting
thought is that they could freely resume their heinous activity
which could very well result in the overthrow of duly constituted
authorities, including this Honorable Court, and replace the same
with a system consonant with their own concept of government and
justice.

The argument that denial from the military of the right to bail would
violate the equal protection clause is not acceptable. This guaranty
requires equal treatment only of persons or things similarly situated
and does not apply where the subject of the treatment is
substantially different from others. The accused officers can
complain if they are denied bail and other members of the military
are not. But they cannot say they have been discriminated against
because they are not allowed the same right that is extended to
civilians.
On the contention of the private respondents in G.R. No. 97454 that
they had not been charged after more than one year from their
arrest, our finding is that there was substantial compliance with the
requirements of due process and the right to a speedy trial.
The petition for habeas corpus was directly filed with this Court on
February 18, 1991, and was referred to the Regional Trial Court of
Quezon City for raffle, hearing and decision. It was heard on
February 26, 1991, by the respondent court, where the petitioners
submitted the charge memorandum and specifications against the
private respondents dated January 30, 1991. On February 12, 1991,
pursuant to Office Order No. 31-91, the PTI panel was created and
initial investigation was scheduled on March 12, 1991 at 2:00 p.m.
On March 20, 1991, the private respondents received the copies of
the charges, charge sheets and specifications and were required to
submit their counter-affidavits on or before April 11, 1991. There
was indeed a delay of more than one year in the investigation and
preparation of the charges against the private respondents.
However, this was explained by the Solicitor General thus:
... The AFP Special Investigating Committee was able to complete it
pre-charge investigation only after one (1) year because hundreds
of officers and thousands of enlisted men were involved in the
failed coup. All of them, as well as other witnesses, had to be
interviewed or investigated, and these inevitably took months to
finish. The pre-charge investigation was rendered doubly difficult by
the fact that those involved were dispersed and scattered
throughout the Philippines. In some cases, command units, such as
the Scout Rangers, have already been disbanded. After the charges
were completed, the same still had to pass review and approval by
the AFP Chief of Staff.
While accepting this explanation, the Court nevertheless must
reiterate the following admonition:
This Court as protector of the rights of the people, must stress the
point that if the participation of petitioner in several coup attempts
for which he is confined on orders of Adjutant General Jorge Agcaoili
cannot be established and no charges can be filed against him or
the existence of a prima facie case warranting trial before a military
commission is wanting, it behooves respondent then Major General

Rodolfo Biazon (now General) to release petitioner. Respondents

must also be reminded that even if a military officer is arrested
pursuant to Article 70 of then Articles of War, indefinite
confinement is not sanctioned, as Article 71 thereof mandates that
immediate steps must be taken to try the person accused or to
dissmiss the charge and release him. Any officer who is responsible
for unnecessary delay in investigating or carrying the case to a final
conclusion may even be punished as a court martial may direct. 6
It should be noted, finally, that after the decision was rendered by
Judge Solano on February 26, 1991, the government filed a notice
of appeal ad cautelam and a motion for reconsideration, the latter
was ultimately denied, after hearing, on March 4, 1991. The 48hour period for appeal under Rule 41, Section 18, of the Rules of
Court did not run until after notice of such denial was received by
the petitioners on March 12, 1991. Contrary to the private
respondents' contention, therefore, the decision had not yet
become final and executory when the special civil action in G.R. No.
97454 was filed with this Court on March 12, 1991.
III
Regarding the propriety of the petitions at bar, it is well to reiterate
the following observations of the Court in Arula:
The referral of charges to a court-martial involves the exercise of
judgment and discretion (AW 71). A petition for certiorari, in order
to prosper, must be based on jurisdictional grounds because, as
long as the respondent acted with jurisdiction, any error committed
by him or it in the exercise thereof will amount to nothing more
than an error of judgment which may be reviewed or corrected only
by appeal. Even an abuse of discretion is not sufficient by itself to
justify the issuance of a writ of certiorari.
As in that case, we find that the respondents in G.R. No. 93177
have not acted with grave abuse of discretion or without or in
excess of jurisdiction to justify the intervention of the Court and the
reversal of the acts complained of by the petitioners. Such action is
indicated, however, in G.R. No. 96948, where we find that the right
to peremptory challenge should not have been denied, and in G.R.
Nos. 95020 and 97454, where the private respondents should not
have been ordered released.
ACCORDINGLY, in G.R. No. 93177, the petition is DISMISSED for lack
of merit. In G.R. No. 96948, the petition is GRANTED, and the
respondents are DIRECTED to allow the petitioners to exercise the
right of peremptory challenge under Article 18 of the Articles of
War. In G.R. Nos. 95020 and 97454, the petitions are also
GRANTED, and the orders of the respondent courts for the release
of the private respondents are hereby REVERSED and SET ASIDE.
No costs.
SO ORDERED.

Fernan, C.J., Narvasa, Melencio-Herrera, Gutierrez, Jr., Paras,

Feliciano, Gancayco, Padilla, Bidin, Grio-Aquino, Medialdea,
Regalado and Davide, Jr., JJ., concur.
Separate Opinions
SARMIENTO, J., concurring:
I concur with the ponencia of my esteemed colleague, Mr. Justice
Cruz, but I dissent insofar as he would deny bail to accused military
personnel.
The Constitution explicitly grants the right to bail to "all persons"
before conviction, with the only exception of "those charged with
offenses punishable by reclusion perpetua when evidence of guilt is
strong." 1 The Charter also states that "[T]he right to bail shall not
be impaired even if the writ of habeas corpus is suspended." 2 To
deny the military officers here concerned of the right to bail is to
circumscribe the inclusive meaning of "all persons" the coverage
of the right.
I believe that military officers fall within "persons".
The picture conjured up by the Solicitor General of "a scenario of
say 1,000 putschists roaming the streets of the Metropolis on bail,
or if the assailed July 25, 1990 Order were sustained, on
"provisional" bail [t]he sheer number alone is already discomforting
. . . [b]ut, the truly disquieting thought is that they could freely
resume their heinous activity which could very well result in the
overthrow of duly constituted authorities, including this Honorable
Court, and replace the same with a system consonant with their
own concept of government and justice." 3 But would a scenario of
1,000 murderers or drug pushers roaming the streets of the
metropolis justify a denial of the right to bail? Would not that dark
picture painted by the Solicitor General be reproduced by 1,000
"equally dangerous" elements of society?
We gave bail Senator Enrile and General Brawner. I find no reason
why the petitioners should not be granted the same right.
The majority would point to tradition, supposed to be firmly settled,
as an argument to deny bail. I submit, however, that tradition is no
argument. First, the Constitution does not say it. Second, we are a
government of laws, not tradition.
If there are precedents that attest to the contrary, I submit that a
reexamination is in order.
Footnotes
1 28 SCRA 540,
2 168 SCRA 264.
3 32 SCRA 106.

4 186 SCRA 287.

5 Sec. 5, Article VIII, 1987 Constitution of the Republic of the
Philippines; Sec. 9l and Sec. 21(l), B.P. 129.
6 Elepante v. Madayag, G.R. No. 93559, April 26, 1991.
SARMIENTO, J.
1 CONST., art. III, sec. 13.
2 Supra.
3 Decision, 20.

EN BANC
[G.R. No. L-28771. March 31, 1971.]
CORNELIA MATABUENA, Plaintiff-Appellant, v. PETRONILA
CERVANTES, Defendant-Appellee.
Alegre, Roces, Salazar & Saez, for Plaintiff-Appellant.
Fernando Gerona, Jr., for Defendant-Appellee.

consuno, [according to] the Partidas (Part. IV, Tit. Xl, LAW IV),
reiterating the rationale Ne mutuato amore invicem spoliarentur
of the Pandects (Bk 24, Tit. I, De donat, inter virum et uxorem);
then there is every reason to apply the same prohibitive policy to
persons living together as husband and wife without benefit of
nuptials. For it is not to be doubted that assent to such irregular
connection for thirty years bespeaks greater influence of one party
over the other, so that the danger that the law seeks to avoid is
correspondingly increased. Moreover, as already pointed out by
Ulpian (in his lib. 32 ad Sabinum, fr. 1), it would not be just that
such donations should subsist lest the condition of those who
incurred guilt should turn out to be better. So long as marriage
remains the cornerstone of our family law, reason and morality
alike demand that the disabilities attached to marriage should
likewise attach to concubinage.
2. ID.; SUCCESSION; INTESTATE SUCCESSION; SURVIVING SPOUSE;
RULE WHERE A SISTER SURVIVES WITH THE WIDOW. The lack of
validity of the donation made b~ the deceased to defendant
Petronila Cervantes does not necessarily result in plaintiff having
exclusive right to the disputed property. Prior to the death of Felix
Matabuena, the relationship between him and the defendant was
legitimated by their marriage on March 28. 1962. She is therefore
his widow. As provided in the Civil Code, she is entitled to one-half
of the inheritance and the plaintiff, as the surviving sister to the
other half.
DECISION

SYLLABUS
1. CIVIL LAW; PROPERTY RELATIONS BETWEEN HUSBAND AND
WIFE; DONATIONS BY REASON OF MARRIAGE; PROHIBITION
AGAINST DONATION BETWEEN SPOUSES DURING MARRIAGE;
APPLICABLE TO COMMON LAW RELATIONSHIP. While Art. 133 of
the Civil Code considers as void a "donation between the spouses
during the marriage", policy considerations of the most exigent
character as well as the dictates of morality require that the same
prohibition should apply to a common-law relationship. A 1954
Court of Appeals decision Buenaventura v. Bautista, (50 O.G. 3679)
interpreting a similar provision of the old Civil Code speaks
unequivocally. If the policy of the law is, in the language of the
opinion of the then Justice J.B.L. Reyes of that Court, "to prohibit
donations in favor of the other consort and his descendants
because of fear of undue and improper pressure and influence upon
the donor, a prejudice deeply rooted in our ancient law; porque no
se engaen despojandose el uno al otro por amor que han de

FERNANDO, J.:
A question of first impression is before this Court in this litigation.
We are called upon to decide whether the ban on a donation
between the spouses during a marriage applies to a common-law
relationship. 1 The plaintiff, now appellant Cornelia Matabuena, a
sister to the deceased Felix Matabuena, maintains that a donation
made while he was living maritally without benefit of marriage to
defendant, now appellee Petronila Cervantes, was void. Defendant
would uphold its validity. The lower court, after noting that it was
made at a time before defendant was married to the donor,
sustained the latters stand. Hence this appeal. The question, as
noted, is novel in character, this Court not having had as yet the
opportunity of ruling on it. A 1954 decision of the Court of Appeals,
Buenaventura v. Bautista, 2 by the then Justice J. B. L. Reyes, who
was appointed to this Court later that year, is indicative of the
appropriate response that should be given. The conclusion reached

therein is that a donation between common-law spouses falls within

the prohibition and is "null and void as contrary to public policy." 3
Such a view merits fully the acceptance of this Court. The decision
must be reversed.
In the decision of November 23, 1965, the lower court, after stating
that in plaintiffs complaint alleging absolute ownership of the
parcel of land in question, she specifically raised the question that
the donation made by Felix Matabuena to defendant Petronila
Cervantes was null and void under the aforesaid article of the Civil
Code and that defendant on the other hand did assert ownership
precisely because such a donation was made in 1956 and her
marriage to the deceased did not take place until 1962, noted that
when the case was called for trial on November 19, 1965, there
was stipulation of facts which it quoted. 4 Thus: "The plaintiff and
the defendant assisted by their respective counsels, jointly agree
and stipulate: (1) That the deceased Felix Matabuena owned the
property in question; (2) That said Felix Matabuena executed a
Deed of Donation inter vivos in favor of Defendant, Petronila
Cervantes over the parcel of land in question on February 20, 1956,
which same donation was accepted by defendant; (3) That the
donation of the land to the defendant which took effect
immediately was made during the common law relationship as
husband and wife between the defendant-done and the now
deceased donor and later said donor and done were married on
March 28, 1962; (4) That the deceased Felix Matabuena died
intestate on September 13, 1962; (5) That the plaintiff claims the
property by reason of being the only sister and nearest collateral
relative of the deceased by virtue of an affidavit of self-adjudication
executed by her in 1962 and had the land declared in her name
and paid the estate and inheritance taxes thereon" 5
The judgment of the lower court on the above facts was adverse to
plaintiff. It reasoned out thus: "A donation under the terms of
Article 133 of the Civil Code is void if made between the spouses
during the marriage. When the donation was made by Felix
Matabuena in favor of the defendant on February 20, 1956,
Petronila Cervantes and Felix Matabuena were not yet married. At
that time they were not spouses. They became spouses only when
they married on March 28, 1962, six years after the deed of
donation had been executed." 6
We reach a different conclusion. While Art. 133 of the Civil Code
considers as void a "donation between the spouses during the
marriage," policy considerations of the most exigent character as
well as the dictates of morality require that the same prohibition

should apply to a common-law relationship. We reverse.

1. As announced at the outset of this opinion, a 1954 Court of
Appeals decision, Buenaventura v. Bautista, 7 interpreting a similar
provision of the old Civil Code 8 speaks unequivocally. If the policy
of the law is, in the language of the opinion of the then Justice J.B.L.
Reyes of that Court, "to prohibit donations in favor of the other
consort and his descendants because of fear of undue and
improper pressure and influence upon the donor, a prejudice deeply
rooted in our ancient law; porque no se engaen despojandose el
uno al otro por amor que han de consuno [according to] the
Partidas (Part IV, Tit. XI, LAW IV), reiterating the rationale Ne
mutuato amore invicem spoliarentur of the Pandects (Bk. 24, Tit. 1,
De donat, inter virum et uxorem); then there is every reason to
apply the same prohibitive policy to persons living together as
husband and wife without the benefit of nuptials. For it is not to be
doubted that assent to such irregular connection for thirty years
bespeaks greater influence of one party over the other, so that the
danger that the law seeks to avoid is correspondingly increased.
Moreover, as already pointed out by Ulpian (in his lib. 32 ad
Sabinum, fr. 1), it would not be just that such donations should
subsist, lest the condition of those who incurred guilt should turn
out to be better. So long as marriage remains the cornerstone of
our family law, reason and morality alike demand that the
disabilities attached to marriage should likewise attach to
concubinage." 9
2. It is hardly necessary to add that even in the absence of the
above pronouncement, any other conclusion cannot stand the test
of scrutiny. It would be to indict the framers of the Civil Code for a
failure to apply a laudable rule to a situation which in its essentials
cannot be distinguished. Moreover, if it is at all to be differentiated,
the policy of the law which embodies a deeply-rooted notion of
what is just and what is right would be nullified if such irregular
relationship instead of being visited with disabilities would be
attended with benefits. Certainly a legal norm should not be
susceptible to such a reproach. If there is ever any occasion where
the principle of statutory construction that what is within the spirit
of the law is as much a part of it as what is written, this is it.
Otherwise the basic purpose discernible in such codal provision
would not be attained. Whatever omission may be apparent in an
interpretation purely literal of the language used must be remedied
by an adherence to its avowed objective. In the language of Justice
Pablo: "El espiritu que informa la ley debe ser la luz que ha de guiar
a los tribunales en la aplicacin de sus disposiciones. 10

3. The lack of validity of the donation made by the deceased to

defendant Petronila Cervantes does not necessarily result in
plaintiff having exclusive right to the disputed property. Prior to the
death of Felix Matabuena, the relationship between him and the
defendant was legitimated by their marriage on March 28, 1962.
She is therefore his widow. As provided for in the Civil Code, she is
entitled to one-half of the inheritance and the plaintiff, as the
surviving sister, to the other half. 11
WHEREFORE, the lower court decision of November 23, 1965
dismissing the complaint with costs is reversed. The questioned
donation is declared void, with the rights of plaintiff and defendant
as pro indiviso heirs to the property in question recognized. The
case is remanded to the lower court for its appropriate disposition
in accordance with the above opinion. Without pronouncement as
to costs.
Concepcion, C.J., Reyes, J.B.L., Dizon, Makalintal, Zaldivar, Castro,
Barredo, Villamor and Makasiar, JJ., concur.
Teehankee, J, took no part.
Endnotes:
1. Art 133 of the Civil Code provides: "Every donation between the
spouses during the marriage shall be void. This prohibition does not
apply when the donation takes effect after the death of the donor.
Neither does this prohibition apply to moderate gifts which the
spouses may give each other on the occasion of any family
rejoicing."cralaw virtua1aw library
2. 50 O.G. 3679 (1954).
3. Ibid., p. 3686.
4. Decision, Record on Appeal, pp. 17-19.
5. Ibid, pp. 19-20.
6. Ibid, p. 21.
7. 50 O.G. 3679.
8. Art. 1334 of the former Civil Code was similarly worded: "All
donations between the spouses made during the marriage shall be
void."cralaw virtua1aw library

9. Buenaventura v. Bautista, 50 O.G. 3679, 3686 (1954).

10. The excerpt from Yellow Taxi and Pasay Trans. Workers Union v.
Manila Yellow Taxicab Co., 80 Phil. 833, 838 (1948) reads in full:
"Esta interpretacin de la ley es insostenible. El espiritu que
informa la ley debe ser la luz que ha de guiar a los tribunales en la
aplicacin de sus dispociones. No deben atenerse a la letra de la
ley cuando la interpretacin literal se separa de la intencin de la
legislatura especialmente cuando lleva a conclusiones
incompatibles con objeto manifesto de la ley. Cuando hay conflicto
entre la interpretacin literal y la interpretacin fundada en el
proposito de la ley, la ltima debe prevalecer." Cf. Taada v.
Cuenco, 103 Phil, 1051 (1957); Hidalgo v. Hidalgo, L-25326-27, May
29, 1970, 33 SCRA 105; Casela v. Court of Appeals, L-26754, Oct.
16, 1970, 35 SCRA 279.
11. According to Art. 1001 of the Civil Code: "Should brothers and
sisters or their children survive with the widow or widower, the
latter shall be entitled to one-half of the inheritance and the
brothers and sisters or their children the other half. (953, 837a)."

Republic of the Philippines

SUPREME COURT
Manila
FIRST DIVISION
A.M. No. RTJ-93-956 September 27, 1995
PANFILO S. AMATAN, complainant,
vs.
JUDGE VICENTE AUJERIO, respondent.
RESOLUTION
KAPUNAN, J.:
A criminal complaint accusing Rodrigo Umpad, alias "Meon" of the
crime of murder under Article 248 of the Revised Penal Code was
filed by the Philippine National Police Station Commander in Bato,
Leyte for the fatal shooting of Genaro Tagsip in the afternoon of
September 14, 1987. 1 After preliminary investigation by the office
of the provincial fiscal, an information charged Umpad with the
crime of Homicide as follows:

The undersigned Assistant Provincial Fiscal of Leyte accused

Rodrigo Umpad alias "Meon" of the crime of Homicide committed as
follows:
That on or about the 14th day of September 1987, in the Island of
Dawahon, Municipality of Bato, Province of Leyte, Philippines and
within the preliminary jurisdiction of this Honorable Court, the
above-named accused, with deliberate intent, with intent to kill did
then and there willfully, unlawfully and feloniously shot one
GENARO TAGSIP, with a revolver .38 Cal. Snub Nose Smith and
Wesson (Paltik) which the accused had provided himself for the
purpose, thereby causing and inflicting upon the victim fatal
gunshot wound on his head which was the direct and immediate
cause of the death of Genaro Tagsip.
CONTRARY TO LAW.
Hilongos, Leyte, October 20, 1987.
Upon arraignment, however, the parties, with the acquiescence of
the Public Prosecutor and the consent of the offended party,
entered into plea bargaining where it was agreed that the accused
would plead guilty to the lesser offense of Attempted Homicide
instead of homicide as originally charged in the information, and
would incur the penalty of "four (4) years, two (2) months and one
(1) day of prision correccional as minimum to six (6) year of prision
correccional maximum as maximum." 2 Consequently, in his
decision promulgated on the 27th of June 1990, respondent judge
found the accused, Rodrigo Umpad, guilty beyond reasonable doubt
of the lesser crime of Attempted Homicide and sentenced him to
suffer imprisonment of four years, two months and one day of
prision correccional maximum, as minimum to six years of prision
correccional maximum, as the maximum period, exactly in
accordance with the plea bargaining agreement. 3
On October 16, 1992, a letter-complaint addressed to the Chief
Justice and signed by Pedro S. Amatan, a brother-in-law of the
deceased, accused Judge Vicente Aujero of gross incompetence,
gross ignorance of the law and gross misconduct, relative to his
disposition of Crim. Case No. H-223 entitled People v. Rodrigo
Umpad alias "Meon." In said letter-complaint, complainant contends
that the sentence of respondent judge finding the accused guilty
beyond reasonable doubt of the lesser offense of Attempted
Homicide and not Homicide as charged is proof indicative, "on its
face, of gross incompetence, gross ignorance of the law or gross
misconduct.
Responding to the complaint, respondent Judge asserts that he
relied on Sec. 2, Rule 116 of the 1985 Revised Rules of Criminal
Procedure, as amended, which allows an accused individual with
the consent of the offended party to plead guilty to a lesser
offense, regardless of whether or not such offense is necessarily

included in the crime charged, or is cognizable by a court of lesser

jurisdiction. He explains that during the May 3, 1990 hearing,
accused and his counsel, with the acquiescence and in the
presence of the prosecutor, informed the Court of the defendant's
desire to plea bargain pursuant to the aforestated rule. Moreover,
he avers that in a conference on June 27, 1990, the wife of the
victim herself agreed to the accused's plea of guilty to attempted
homicide, instead of homicide as she needed the monetary
indemnity to raise her two orphaned children. In a Memorandum
dated February 5, 1993, the Deputy Court Administrator
recommended that the complaint be dismissed, explaining that:
Section 2 116 is more liberalized as it allows the accused to plead
guilty to a lesser offense whether or not it is included in the offense
charged in the complaint or information, with the consent of the
offended party and the fiscal. In this regard, it is inferred that the
fiscal consented to abbreviate the proceedings and in order not to
run the risk of the accused being acquitted, because there was no
conclusive evidence to obtain the conviction of the accused to the
offense charged in the complaint of information.
It may be stated in this connection that unlike in the crime of
murder where the accused may plead to the lesser offense of
homicide, in homicide a misinterpretation may arise, as in this
case, when the accused pleads guilty to attempted homicide,
because here the fact of the death of the victim, which is the
principal element of the crime is obliterated. This is specially so
because the decision/sentence does not contain findings of fact and
conclusions of law but merely an account that the accused pleaded
guilty to a lesser offense and the penalty imposed. 4
Section 2, Rule, 116 of the 1985 Revised Rules of Criminal
Procedure, as amended, allows the accused in criminal case to
plead guilty "to lesser offense regardless of whether or not it is
necessarily included in the crime charged." The fact of death of the
victim for which the accused Rodrigo Umpad was criminally liable,
cannot by simple logic and plain common sense be reconciled with
the plea of guilty to the lower offense of attempted homicide. The
crime of homicide as defined in Article 249 of the Revised Penal
Code necessarily produces death; attempted homicide does not.
Concededly, hiatus in the law exists in the case before us, which
could either lead to a misapprehension of Section 2 of Rule 116 or
to outright confusion. Such a result was itself recognized by the
Deputy Court Administrator when he recommended an amendment
to the provision in his Memorandum.
However, the law is not entirely bereft of solutions in such cases. In
instances where a literal application of a provision of law would
lead to injustice or to a result so directly in opposition with the
dictates of logic and everyday common sense as to be

unconscionable, the Civil Code 5 admonishes judges to take

principles of right and justice at heart. In case of doubt the intent is
to promote right and justice. Fiat justice ruat coelum. Stated
differently, when a provision of law is silent or ambiguous, judges
ought to invoke a solution responsive to the vehement urge of
conscience.
These are fundamental tenets of law. In the case at bench, the fact
of the victim's death, a clear negation of frustrated or attempted
homicide, ought to have alerted the judge not only to a possibly
inconsistent result but to an injustice. The failure to recognize such
principles so cardinal to our body of laws amounts to ignorance of
the law and reflects respondent judge's lack of prudence, if not
competence, in the performance of his duties. While it is true, as
respondent judge contends, that he merely applied the rule to the
letter, the palpably incongruous result ought to have been a "red
flag" alerting him of the possibility of injustice. The death of an
identified individual, the gravamen of the charge against the
defendant in the criminal case, cannot and should not be ignored in
favor of a more expedient plea of either attempted or frustrated
homicide. We have held before that if the law is so elementary, not
to know it or to act as if one does not know it, constitutes gross
ignorance of the law. 6
Finally, every judge must be the embodiment of competence,
integrity and independence. 7 A judge should not only be aware of
the bare outlines of the law but also its nuances and ramifications,
otherwise, he would not be able to come up with decisions which
are intrinsically fair. In failing to exercise even ordinary common
sense, a judge could be held administratively liable for a verdict
that could in no way be legally or factually sustained or justified.
We note, however, that under the circumstances of the case,
respondent judge's erroneous exercise of his judicial prerogative
was neither tainted with malice nor bad faith. The phraseology of
Sec. 2, Rule 116 is not crafted with such precision as to entirely
eliminate possible misinterpretation. This observation is bolstered
by the fact that the same provision prompted the Department of
Justice, on July 31, 1990, or three months after respondent judge
took cognizance of the case on April 17, 1990, to issue Circular No.
35, 8 later amended by Circular No. 55 dated December 11, 1990,
clarifying and setting limitations on the application of Sec. 2, Rule
116. The fact also that respondent reached compulsory retirement
age on April 5, 1995 after a long period of service in the judiciary
entitles him to a certain measure of leniency. Nonetheless, the case
at bench stands unique because of the potently absurd result of
respondent's application of the law.
ACCORDINGLY, we are constrained to find the respondent judge
GUILTY of gross ignorance of the law for which he is hereby

REPRIMANDED na FINED ONE THOUSAND (P1,000.00) PESOS. Let

this decision appear in respondent's record of service.
SO ORDERED.
Padilla, Davide, Jr. and Bellosillo, JJ., concur.
Hermosisima, Jr., J., is on leave.
Footnotes
1 Rollo, p. 7, Annex "A".
2 Id., at 9, Annex "C."
3 Ibid.
4 Id., at 3.
5 Civil Code, art. 10.
In case of doubt in the interpretation or application of laws, it is
presumed that the lawmaking body intended right and justice to
prevail.
6 Uy v. Dizon-Capulong, 221 SCRA 95.
7 Code of Judicial Conduct, Rule 1.01.
8 DEPARTMENT CIRCULAR NO. 35.
Sec. 2, RULE 116 of the 1985 Rules on Criminal Procedure, as
amended, provides for a process wherein the accused may be
allowed to plead guilty to a lesser offense. To attain the laudable
objectives of the rules on plea bargaining and in order that the
disposition of criminal cases may be expedited its uniformly as
possible by eliminating unnecessary and costly litigation and in the
interest of justice, you are hereby directed to observe the following
guidelines, to wit:
1. The trial prosecutor shall immediately move for suspension of
the proceedings whenever the accused manifests his intention in
court to plead guilty to a lesser offense, to allow the trial prosecutor
to evaluate the implications of the offer.
2. The trial prosecutor, with consent of the offended party, may
motu proprio agreed to the offer of the accused to plead guilty to a
lesser offense if the penalty imposable for the offense charged is
prision correccional (Maximum of six years) or lesser or a fine not
exceeding P12,000.00.
3. When the penalty imposable for the offense charged is prision
mayor (at least six years and one day) or higher or a fine exceeding
P12,000.00, the trial prosecutor shall first submit his
comment/recommendation to the City/Provincial Prosecutor or to
the Chief State Prosecutor as the case may be, for approval. If the
favorable recommendation is approved in writing, the trial
prosecutor with consent of the offended party, may agree to a plea
of guilty to a lesser offense. For this purpose, the Chief State
Prosecutor or the Provincial/City Prosecutor concerned shall act on
the recommendation of the trial prosecutor within forty-eight (48)
hours from receipt thereof. In no case shall the subject plea to a

lesser offense be allowed without the written approval of the above

respective heads of office.
4. In all cases, the penalty for the lesser offense to which the
accused may be allowed to plead guilty shall not be more than two
(2) degrees lower than the imposable penalty for the crime
originally charged, notwithstanding the presence of mitigating
circumstances. The lesser offense shall also be one that is
necessarily related to the offense charged or that the nature of the
offense must belong to the same classification or title under the
Revised Penal Code or special laws.
For your guidance and strict compliance.
December 11, 1990

SYLLABUS
1. STATUTORY CONSTRUCTION; STATUTES; CONSTRUED
WITH REFERENCE TO THE INTENDED SCOPE AND
PURPOSE. - Time and again we have decreed that statutes
are to be construed in the light of the purposes to be
achieved and the evils sought to be remedied. Thus in
construing a statute the reason for its enactment should be
kept in mind and the statute should be construed with
reference to the intended scope and purpose. The court may
consider the spirit and reason of the statute, where a literal
meaning would lead to absurdity, contradiction, injustice, or
would defeat the clear purpose of the lawmakers.
2. ID.; COMMONWEALTH ACT 142, AS AMENDED (AN ACT
TO REGULATE THE USE OF ALIASES); PURPOSE IS TO
REGULATE THE USE OF ALIASES IN BUSINESS
TRANSACTION. - The objective and purpose of C.A. No.
142 have their origin and basis in Act No. 3883, An Act to
Regulate the Use in Business Transactions of Names other
than True Names, Prescribing the Duties of the Director of
the Bureau of Commerce and Industry in its Enforcement,
Providing Penalties for Violations thereof, and for other
purposes, which was approved on 14 November 1931 and
amended by Act No. 4147, approved on 28 November 1934.
The enactment of C.A. No. 142 as amended was made
primarily to curb the common practice among the Chinese
of adopting scores of different names and aliases which
created tremendous confusion in the field of trade. Such a
practice almost bordered on the crime of using fictitious
names which for obvious reasons could not be successfully
maintained against the Chinese who, rightly or wrongly,
claimed they possessed a thousand and one names. C.A. No.
142 thus penalized the act of using an alias name, unless
such alias was duly authorized by proper judicial
proceedings and recorded in the civil register.

FIRST DIVISION
[G.R. No. 112170. April 10, 1996]
CESARIO URSUA, petitioner, vs. COURT OF APPEALS AND
PEOPLE OF THE PHILIPPINES, respondents.

3. CRIMINAL LAW; COMMONWEALTH ACT 142, AS

AMENDED (AN ACT TO REGULATE THE USE OF
ALIASES); ALIAS, DEFINED. - An alias is a name or names
used by a person or intended to be used by him publicly and
habitually usually in business transactions in addition to his
real name by which he is registered at birth or baptized the
first time or substitute name authorized by a competent
authority. A mans name is simply the sound or sounds by
which he is commonly designated by his fellows and by

which they distinguish him but sometimes a man is known

by several different names and thse are known as aliases.
4. ID.; ID.; USE OF FICTITIOUS NAME IN A SINGLE
TRANSACTION WITHOUT INTENDING TO BE KNOWN BY
THIS NAME IN ADDITION TO HIS REAL NAME, NOT A
VIOLATION THEREOF. - The use of a fictitious name or a
different name belonging to another person in a single
instance without any sign or indication that the user intends
to be known by this name in addition to his real name from
that day forth does not fall within the prohibition contained
in C.A. No. 142 as amended.
5. ID.; ID.; ID.; CASE AT BAR. - This is so in the case at
bench. It is not disputed that petitioner introduced himself in
the Office of the Ombudsman as Oscar Perez, which was the
name of the messenger of his lawyer who should have
brought the letter to that office in the first place instead of
petitioner. He did so while merely serving the request of his
lawyer to obtain a copy of the complaint in which petitioner
was a respondent. There is no question then that Oscar
Perez is not an alias name of petitioner. There is no evidence
showing that he had used or was intending to use that name
as his second name in addition to his real name. The use of
the name Oscar Perez was made by petitioner in an isolated
transaction where he was not even legally required to
expose his real identity. For, even if he had identified himself
properly at the Office of the Ombudsman, petitioner would
still be able to get a copy of the complaint as a matter of
right, and the Office of the Ombudsman could not refuse
him because the complaint was part of public records hence
open to inspection and examination by anyone under the
proper circumstances. While the act of petitioner may be
covered by other provisions of law, such does not constitute
an offense within the concept of C.A. No. 142 as amended
under which he is prosecuted. The confusion and fraud in
business transactions which the anti-alias law and its related
statutes seek to prevent are not present here as the
circumstances are peculiar and distinct from those
contemplated by the legislature in enacting C.A. No. 142 as
amended. There exists a valid presumption that undesirable
consequences were never intended by a legislative measure
and that a construction of which the statute is fairly
susceptible is favored, which will avoid all objectionable,
mischievous, indefensible, wrongful, evil and injurious
consequences. Indeed, our mind cannot rest easy on the

proposition that petitioner should be convicted on a law that

does not clearly penalize the act done by him.
Wherefore, the questioned decision of the Court of Appeals
affirming that of the Regional Trial Court of Davao City is
REVERSED and SET ASIDE and petitioner CESARIO URSUA is
ACQUITTED of the crime charged.
6. STATUTORY CONSTRUCTION; A PENAL STATUTE LIKE
COMMONWEALTH ACT 142, AS AMENDED,
CONSTRUED STRICTLY AGAINST THE STATE AND IN
FAVOR OF THE ACCUSED. - As C.A. No. 142 is a penal
statute, it should be construed strictly against the State and
in favor of the accused. The reason for this principle is the
tenderness of the law for the rights of individuals and the
object is to establish a certain rule by conformity to which
mankind would be safe, and the discretion of the court
limited.
APPEARANCES OF COUNSEL
Ceferino Padua Law Office for petitioner.
The Solicitor General for respondents.
DECISION
BELLOSILLO, J.:
This is a petition for review of the decision of the Court of Appeals
which affirmed the conviction of petitioner by the Regional Trial
Court of Davao City for violation of Sec. 1 of C.A. No. 142, as
amended by R.A. No. 6085, otherwise known as "An Act to
Regulate the Use of Aliases". 1
Petitioner Cesario Ursua was a Community Environment and
Natural Resources Officer assigned in Kidapawan, Cotabato. On 9
May 1989 the Provincial Governor of Cotabato requested the Office
of the Ombudsman in Manila to conduct an investigation on a
complaint for bribery, dishonesty, abuse of authority and giving of
unwarranted benefits by petitioner and other officials of the
Department of Environment and Natural Resources. The complaint
was initiated by the Sangguniang Panlalawigan of Cotabato through
a resolution advising the Governor to report the involvement of
petitioner and others in the illegal cutting of mahogany trees and
hauling of illegally-cut logs in the area. 2
On 1 August 1989 Atty. Francis Palmones, counsel for petitioner,
wrote the Office of the Ombudsman in Davao City requesting that
he be furnished copy of the complaint against petitioner. Atty.

Palmones then asked his client Ursua to take his letter-request to

the Office of the Ombudsman because his law firm's messenger,
Oscar Perez, had to attend to some personal matters. Before
proceeding to the Office of the Ombudsman petitioner talked to
Oscar Perez and told him that he was reluctant to personally ask for
the document since he was one of the respondents before the
Ombudsman. However, Perez advised him not to worry as he could
just sign his (Perez) name if ever he would be required to
acknowledge receipt of the complaint. 3
When petitioner arrived at the Office of the Ombudsman in Davao
City he was instructed by the security officer to register in the
visitors' logbook. Instead of writing down his name petitioner wrote
the name "Oscar Perez" after which he was told to proceed to the
Administrative Division for the copy of the complaint he needed. He
handed the letter of Atty. Palmones to the Chief of the
Administrative Division, Ms. Loida Kahulugan, who then gave him a
copy of the complaint, receipt of which he acknowledged by writing
the name "Oscar Perez." 4
Before petitioner could leave the premises he was greeted by an
acquaintance, Josefa Amparo, who also worked in the same office.
They conversed for a while then he left. When Loida learned that
the person who introduced himself as "Oscar Perez" was actually
petitioner Cesario Ursua, a customer of Josefa Amparo in her
gasoline station, Loida reported the matter to the Deputy
Ombudsman who recommended that petitioner be accordingly
charged.
On 18 December 1990, after the prosecution had completed the
presentation of its evidence, petitioner without leave of court filed a
demurrer to evidence alleging that the failure of the prosecution to
prove that his supposed alias was different from his registered
name in the local civil registry was fatal to its cause. Petitioner
argued that no document from the local civil registry was presented
to show the registered name of accused which according to him
was a condition sine qua non for the validity of his conviction.
The trial court rejected his contentions and found him guilty of
violating Sec. 1 of C.A. No. 142 as amended by R.A. No. 6085. He
was sentenced to suffer a prison term of one (1) year and one (1)
day of prision correccional minimum as minimum, to four (4) years
of prision correccional medium as maximum, with all the accessory
penalties provided for by law, and to pay a fine of P4,000.00 plus
costs.
Petitioner appealed to the Court of Appeals.
On 31 May 1993 the Court of Appeals affirmed the conviction of
petitioner but modified the penalty by imposing an indeterminate
term of one (1) year as minimum to three (3) years as maximum
and a fine of P5,000.00.

Petitioner now comes to us for review of his conviction as he

reasserts his innocence. He contends that he has not violated C.A.
No. 142 as amended by R.A. No. 6085 as he never used any alias
name; neither is "Oscar Perez" his alias. An alias, according to him,
is a term which connotes the habitual use of another name by
which a person is also known. He claims that he has never been
known as "Oscar Perez" and that he only used such name on one
occasion and it was with the express consent of Oscar Perez
himself. It is his position that an essential requirement for a
conviction under C.A. No. 142 as amended by R.A. No. 6085 has not
been complied with when the prosecution failed to prove that his
supposed alias was different from his registered name in the
Registry of Births. He further argues that the Court of Appeals erred
in not considering the defense theory that he was charged under
the wrong law. 5
Time and again we have decreed that statutes are to be construed
in the light of the purposes to be achieved and the evils sought to
be remedied. Thus in construing a statute the reason for its
enactment should be kept in mind and the statute should be
construed with reference to the intended scope and purpose. 6 The
court may consider the spirit and reason of the statute, where a
literal meaning would lead to absurdity, contradiction, injustice, or
would defeat the clear purpose of the lawmakers. 7
For a clear understanding of the purpose of C.A. No. 142 as
amended, which was allegedly violated by petitioner, and the
surrounding circumstances under which the law was enacted, the
pertinent provisions thereof, its amendments and related statutes
are herein cited. C.A. No. 142, which was approved on 7 November
1936, and before its amendment by R.A. No. 6085, is entitled An
Act to Regulate the Use of Aliases. It provides as follows:
Sec. 1. Except as a pseudonym for literary purposes, no person
shall use any name different from the one with which he was
christened or by which he has been known since his childhood, or
such substitute name as may have been authorized by a
competent court. The name shall comprise the patronymic name
and one or two surnames.
Sec. 2. Any person desiring to use an alias or aliases shall apply for
authority therefor in proceedings like those legally provided to
obtain judicial authority for a change of name. Separate
proceedings shall be had for each alias, and each new petition shall
set forth the original name and the alias or aliases for the use of
which judicial authority has been, obtained, specifying the
proceedings and the date on which such authority was granted.
Judicial authorities for the use of aliases shall be recorded in the
proper civil register . . . .

The above law was subsequently amended by R.A. No. 6085,

approved on 4 August 1969. As amended, C.A. No. 142 now reads:
Sec. 1. Except as a pseudonym solely for literary, cinema,
television, radio or other entertainment purposes and in athletic
events where the use of pseudonym is a normally accepted
practice, no person shall use any name different from the one with
which he was registered at birth in the office of the local civil
registry or with which he was baptized for the first time, or in case
of all alien, with which he was registered in the bureau of
immigration upon entry; or such substitute name as may have
been authorized by a competent court: Provided, That persons
whose births have not been registered in any local civil registry and
who have not been baptized, have one year from the approval of
this act within which to register their names in the civil registry of
their residence. The name shall comprise the patronymic name and
one or two surnames.
Sec. 2. Any person desiring to use an alias shall apply for authority
therefor in proceedings like those legally provided to obtain judicial
authority for a change of name and no person shall be allowed to
secure such judicial authority for more than one alias. The petition
for an alias shall set forth the person's baptismal and family name
and the name recorded in the civil registry, if different, his
immigrant's name, if an alien, and his pseudonym, if he has such
names other than his original or real name, specifying the reason or
reasons for the desired alias. The judicial authority for the use of
alias, the Christian name and the alien immigrant's name shall be
recorded in the proper local civil registry, and no person shall use
any name or names other than his original or real name unless the
same is or are duly recorded in the proper local civil registry.
The objective and purpose of C.A. No. 142 have their origin and
basis in Act No. 3883, An Act to Regulate the Use in Business
Transactions of Names other than True Names, Prescribing the
Duties of the Director of the Bureau of Commerce and Industry in
its Enforcement, Providing Penalties for Violations thereof, and for
other purposes, which was approved on 14 November 1931 and
amended by Act No. 4147, approved on 28 November 1934. 8 The
pertinent provisions of Act No. 3883 as amended follow
Sec. 1. It shall be unlawful for any person to use or sign, on any
written or printed receipt including receipt for tax or business or
any written or printed contract not verified by a notary public or on
any written or printed evidence of any agreement or business
transactions, any name used in connection with his business other
than his true name, or keep conspicuously exhibited in plain view in
or at the place where his business is conducted, if he is engaged in
a business, any sign announcing a firm name or business name or
style without first registering such other name, or such firm name,

or business name or style in the Bureau of Commerce together with

his true name and that of any other person having a joint or
common interest with him in such contract, agreement, business
transaction, or business . . . .
For a bit of history, the enactment of C.A. No. 142 as amended was
made primarily to curb the common practice among the Chinese of
adopting scores of different names and aliases which created
tremendous confusion in the field of trade. Such a practice almost
bordered on the crime of using fictitious names which for obvious
reasons could not be successfully maintained against the Chinese
who, rightly or wrongly, claimed they possessed a thousand and
one names. C.A. No. 142 thus penalized the act of using an alias
name, unless such alias was duly authorized by proper judicial
proceedings and recorded in the civil register. 9
In Yu Kheng Chiau v. Republic 10 the Court had occasion to explain
the meaning, concept and ill effects of the use of an alias within the
purview of C.A. No. 142 when we ruled
There can hardly be any doubt that petitioner's use of alias "Kheng
Chiau Young" in addition to his real name "Yu Cheng Chiau" would
add to more confusion. That he is known in his business, as
manager of the Robert Reid, Inc., by the former name, is not
sufficient reason to allow him its use. After all, petitioner admitted
that he is known to his associates by both names. In fact, the
Anselmo Trinidad, Inc., of which he is a customer, knows him by his
real name. Neither would the fact that he had encountered certain
difficulties in his transactions with government offices which
required him to explain why he bore two names, justify the grant of
his petition, for petitioner could easily avoid said difficulties by
simply using and sticking only to his real name "Yu Kheng Chiau."
The fact that petitioner intends to reside permanently in the
Philippines, as shown by his having filed a petition for naturalization
in Branch V of the above-mentioned court, argues the more against
the grant of his petition, because if naturalized as a Filipino citizen,
there would then be no necessity for his further using said alias, as
it would be contrary to the usual Filipino way and practice of using
only one name in ordinary as well as business transactions. And, as
the lower court correctly observed, if he believes (after he is
naturalized) that it would be better for him to write his name
following the Occidental method, "he can easily file a petition for
change of name, so that in lieu of the name "Yu Kheng Chian," he
can, abandoning the same, ask for authority to adopt the name
Kheng Chiau Young."
All things considered, we are of the opinion and so hold, that
petitioner has not shown satisfactory proper and reasonable
grounds under the aforequoted provisions of Commonwealth Act

No. 142 and the Rules of Court, to warrant the grant of his petition
for the use of an alias name.
Clearly therefore an alias is a name or names used by a person or
intended to be used by him publicly and habitually usually in
business transactions in addition to his real name by which he is
registered at birth or baptized the first time or substitute name
authorized by a competent authority. A man's name is simply the
sound or sounds by which he is commonly designated by his
fellows and by which they distinguish him but sometimes a man is
known by several different names and these are known as aliases.
11
Hence, the use of a fictitious name or a different name belonging
to another person in a single instance without any sign or indication
that the user intends to be known by this name in addition to his
real name from that day forth does not fall within the prohibition
contained in C.A. No. 142 as amended. This is so in the case at
bench.
It is not disputed that petitioner introduced himself in the Office of
the Ombudsman as "Oscar Perez," which was the name of the
messenger of his lawyer who should have brought the letter to that
office in the first place instead of petitioner. He did so while merely
serving the request of his lawyer to obtain a copy of the complaint
in which petitioner was a respondent. There is no question then
that "Oscar Perez" is not an alias name of petitioner. There is no
evidence showing that he had used or was intending to use that
name as his second name in addition to his real name. The use of
the name "Oscar Perez" was made by petitioner in an isolated
transaction where he was not even legally required to expose his
real identity. For, even if he had identified himself properly at the
Office of the Ombudsman, petitioner would still be able to get a
copy of the complaint as a matter of right, and the Office of the
Ombudsman could not refuse him because the complaint was part
of public records hence open to inspection and examination by
anyone under the proper circumstances.
While the act of petitioner may be covered by other provisions of
law, such does not constitute an offense within the concept of C.A.
No. 142 as amended under which he is prosecuted. The confusion
and fraud in business transactions which the anti-alias law and its
related statutes seek to prevent are not present here as the
circumstances are peculiar and distinct from those contemplated
by the legislature in enacting C.A. No. 142 as amended. There
exists a valid presumption that undesirable consequences were
never intended by a legislative measure and that a construction of
which the statute is fairly susceptible is favored, which will avoid all
objectionable, mischievous, indefensible, wrongful, evil and
injurious consequences. 12 Moreover, as C.A. No. 142 is a penal
statute, it should be construed strictly against the State and in

favor of the accused. 13 The reason for this principle is the

tenderness of the law for the rights of individuals and the object is
to establish a certain rule by conformity to which mankind would be
safe, and the discretion of the court limited. 14 Indeed, our mind
cannot rest easy on the proposition that petitioner should be
convicted on a law that does not clearly penalize the act done by
him.
WHEREFORE, the questioned decision of the Court of Appeals
affirming that of the Regional Trial Court of Davao City is REVERSED
and SET ASIDE and petitioner CESARIO URSUA is ACQUITTED of the
crime charged.
SO ORDERED.
Padilla, Vitug, Kapunan and Hermosisima, Jr., JJ., concur.
Footnotes
1 Rollo, pp. 24-37.
2 Id., p. 26.
3 Records, p. 7.
4 Rollo, p. 26.
5 Id., p. 12.
6 People v. Purisima, Nos. L-42050-66, 28 November 1978, 86 SCRA
542.
7 Gregorio, Antonio L., Fundamentals of Criminal Law Review, 1985
Ed., p. 9; People v. Manantan, No. L-14129, 31 July 1962, 5 SCRA
684.
8 Aquino, Ramon C., The Revised Penal Code, 1961 Ed., Vol. II, pp.
1008-1009.
9 Francisco, Vicente J., The Revised Penal Code Annotated, 1954
Ed., Vol. II, p. 331; Guevarra, Guillermo B., Commentaries on the
Revised Penal Code, 1946 Ed., p. 359.
10 106 Phil. 762 (1959).
11 Words and Phrases, Permanent Edition, Vol. III, West Publishing
Co., p. 139.
12 See Note 6.
13 People v. Uy Jui Pio, 102 Phil. 679 (1957).
14 See Note 6.

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. L-5
September 17, 1945
CO KIM CHAM (alias CO KIM CHAM), petitioner,
vs.
EUSEBIO VALDEZ TAN KEH and ARSENIO P. DIZON, Judge of
First Instance of Manila, respondents.1
Marcelino Lontok for petitioner.P. A. Revilla for respondent Valdez
Tan Keh.Respondent Judge Dizon in his own behalf.
FERIA, J.:
This petition for mandamus in which petitioner prays that the
respondent judge of the lower court be ordered to continue the
proceedings in civil case No. 3012 of said court, which were
initiated under the regime of the so-called Republic of the
Philippines established during the Japanese military occupation of
these Islands.
The respondent judge refused to take cognizance of and continue
the proceedings in said case on the ground that the proclamation
issued on October 23, 1944, by General Douglas MacArthur had the
effect of invalidating and nullifying all judicial proceedings and
judgements of the court of the Philippines under the Philippine
Executive Commission and the Republic of the Philippines
established during the Japanese military occupation, and that,
furthermore, the lower courts have no jurisdiction to take

cognizance of and continue judicial proceedings pending in the

courts of the defunct Republic of the Philippines in the absence of
an enabling law granting such authority. And the same respondent,
in his answer and memorandum filed in this Court, contends that
the government established in the Philippines during the Japanese
occupation were no de facto governments.
On January 2, 1942, the Imperial Japanese Forces occupied the City
of Manila, and on the next day their Commander in Chief
proclaimed "the Military Administration under law over the districts
occupied by the Army." In said proclamation, it was also provided
that "so far as the Military Administration permits, all the laws now
in force in the Commonwealth, as well as executive and judicial
institutions, shall continue to be effective for the time being as in
the past," and "all public officials shall remain in their present posts
and carry on faithfully their duties as before."
A civil government or central administration organization under the
name of "Philippine Executive Commission was organized by Order
No. 1 issued on January 23, 1942, by the Commander in Chief of
the Japanese Forces in the Philippines, and Jorge B. Vargas, who
was appointed Chairman thereof, was instructed to proceed to the
immediate coordination of the existing central administrative
organs and judicial courts, based upon what had existed therefore,
with approval of the said Commander in Chief, who was to exercise
jurisdiction over judicial courts.
The Chairman of the Executive Commission, as head of the central
administrative organization, issued Executive Orders Nos. 1 and 4,
dated January 30 and February 5, 1942, respectively, in which the
Supreme Court, Court of Appeals, Courts of First Instance, and the
justices of the peace and municipal courts under the
Commonwealth were continued with the same jurisdiction, in
conformity with the instructions given to the said Chairman of the
Executive Commission by the Commander in Chief of Japanese
Forces in the Philippines in the latter's Order No. 3 of February 20,
1942, concerning basic principles to be observed by the Philippine
Executive Commission in exercising legislative, executive and
judicial powers. Section 1 of said Order provided that "activities of
the administration organs and judicial courts in the Philippines shall
be based upon the existing statutes, orders, ordinances and
customs. . . ."
On October 14, 1943, the so-called Republic of the Philippines was
inaugurated, but no substantial change was effected thereby in the
organization and jurisdiction of the different courts that functioned
during the Philippine Executive Commission, and in the laws they
administered and enforced.

On October 23, 1944, a few days after the historic landing in Leyte,
General Douglas MacArthur issued a proclamation to the People of
the Philippines which declared:
1. That the Government of the Commonwealth of the Philippines is,
subject to the supreme authority of the Government of the United
States, the sole and only government having legal and valid
jurisdiction over the people in areas of the Philippines free of
enemy occupation and control;
2. That the laws now existing on the statute books of the
Commonwealth of the Philippines and the regulations promulgated
pursuant thereto are in full force and effect and legally binding
upon the people in areas of the Philippines free of enemy
occupation and control; and
3. That all laws, regulations and processes of any other government
in the Philippines than that of the said Commonwealth are null and
void and without legal effect in areas of the Philippines free of
enemy occupation and control.
On February 3, 1945, the City of Manila was partially liberated and
on February 27, 1945, General MacArthur, on behalf of the
Government of the United States, solemnly declared "the full
powers and responsibilities under the Constitution restored to the
Commonwealth whose seat is here established as provided by law."
In the light of these facts and events of contemporary history, the
principal questions to be resolved in the present case may be
reduced to the following:(1) Whether the judicial acts and
proceedings of the court existing in the Philippines under the
Philippine Executive Commission and the Republic of the Philippines
were good and valid and remained so even after the liberation or
reoccupation of the Philippines by the United States and Filipino
forces; (2)Whether the proclamation issued on October 23, 1944,
by General Douglas MacArthur, Commander in Chief of the United
States Army, in which he declared "that all laws, regulations and
processes of any of the government in the Philippines than that of
the said Commonwealth are null and void and without legal effect
in areas of the Philippines free of enemy occupation and control,"
has invalidated all judgements and judicial acts and proceedings of
the said courts; and (3) If the said judicial acts and proceedings
have not been invalidated by said proclamation, whether the
present courts of the Commonwealth, which were the same court
existing prior to, and continued during, the Japanese military
occupation of the Philippines, may continue those proceedings
pending in said courts at the time the Philippines were reoccupied
and liberated by the United States and Filipino forces, and the
Commonwealth of the Philippines were reestablished in the Islands.
We shall now proceed to consider the first question, that is,
whether or not under the rules of international law the judicial acts

and proceedings of the courts established in the Philippines under

the Philippine Executive Commission and the Republic of the
Philippines were good and valid and remained good and valid even
after the liberation or reoccupation of the Philippines by the United
States and Filipino forces.
1. It is a legal truism in political and international law that all acts
and proceedings of the legislative, executive, and judicial
departments of a de facto government are good and valid. The
question to be determined is whether or not the governments
established in these Islands under the names of the Philippine
Executive Commission and Republic of the Philippines during the
Japanese military occupation or regime were de facto governments.
If they were, the judicial acts and proceedings of those
governments remain good and valid even after the liberation or
reoccupation of the Philippines by the American and Filipino forces.
There are several kinds of de facto governments. The first, or
government de facto in a proper legal sense, is that government
that gets possession and control of, or usurps, by force or by the
voice of the majority, the rightful legal governments and maintains
itself against the will of the latter, such as the government of
England under the Commonwealth, first by Parliament and later by
Cromwell as Protector. The second is that which is established and
maintained by military forces who invade and occupy a territory of
the enemy in the course of war, and which is denominated a
government of paramount force, as the cases of Castine, in Maine,
which was reduced to British possession in the war of 1812, and
Tampico, Mexico, occupied during the war with Mexico, by the
troops of the United States. And the third is that established as an
independent government by the inhabitants of a country who rise
in insurrection against the parent state of such as the government
of the Southern Confederacy in revolt not concerned in the present
case with the first kind, but only with the second and third kinds of
de facto governments.
Speaking of government "de facto" of the second kind, the
Supreme Court of the United States, in the case of Thorington vs.
Smith (8 Wall., 1), said: "But there is another description of
government, called also by publicists a government de facto, but
which might, perhaps, be more aptly denominated a government of
paramount force. Its distinguishing characteristics are (1), that its
existence is maintained by active military power with the
territories, and against the rightful authority of an established and
lawful government; and (2), that while it exists it necessarily be
obeyed in civil matters by private citizens who, by acts of
obedience rendered in submission to such force, do not become
responsible, or wrongdoers, for those acts, though not warranted by
the laws of the rightful government. Actual governments of this sort

are established over districts differing greatly in extent and

conditions. They are usually administered directly by military
authority, but they may be administered, also, civil authority,
supported more or less directly by military force. . . . One example
of this sort of government is found in the case of Castine, in Mine,
reduced to British possession in the war of 1812 . . . U. S. vs. Rice
(4 Wheaton, 253). A like example is found in the case of Tampico,
occupied during the war with Mexico, by the troops of the United
States . . . Fleming vs. Page (9 Howard, 614). These were cases of
temporary possessions of territory by lawfull and regular
governments at war with the country of which the territory so
possessed was part."
The powers and duties of de facto governments of this description
are regulated in Section III of the Hague Conventions of 1907,
which is a revision of the provisions of the Hague Conventions of
1899 on the same subject of said Section III provides "the authority
of the legislative power having actually passed into the hands of
the occupant, the latter shall take steps in his power to reestablish
and insure, as far as possible, public order and safety, while
respecting, unless absolutely prevented, the laws in force in the
country."
According to the precepts of the Hague Conventions, as the
belligerent occupant has the right and is burdened with the duty to
insure public order and safety during his military occupation, he
possesses all the powers of a de facto government, and he can
suspended the old laws and promulgate new ones and make such
changes in the old as he may see fit, but he is enjoined to respect,
unless absolutely prevented by the circumstances prevailing in the
occupied territory, the municipal laws in force in the country, that
is, those laws which enforce public order and regulate social and
commercial life of the country. On the other hand, laws of a political
nature or affecting political relations, such as, among others, the
right of assembly, the right to bear arms, the freedom of the press,
and the right to travel freely in the territory occupied, are
considered as suspended or in abeyance during the military
occupation. Although the local and civil administration of justice is
suspended as a matter of course as soon as a country is militarily
occupied, it is not usual for the invader to take the whole
administration into his own hands. In practice, the local ordinary
tribunals are authorized to continue administering justice; and
judges and other judicial officers are kept in their posts if they
accept the authority of the belligerent occupant or are required to
continue in their positions under the supervision of the military or
civil authorities appointed, by the Commander in Chief of the
occupant. These principles and practice have the sanction of all
publicists who have considered the subject, and have been

asserted by the Supreme Court and applied by the President of the

United States.
The doctrine upon this subject is thus summed up by Halleck, in his
work on International Law (Vol. 2, p. 444): "The right of one
belligerent to occupy and govern the territory of the enemy while in
its military possession, is one of the incidents of war, and flows
directly from the right to conquer. We, therefore, do not look to the
Constitution or political institutions of the conqueror, for authority
to establish a government for the territory of the enemy in his
possession, during its military occupation, nor for the rules by
which the powers of such government are regulated and limited.
Such authority and such rules are derived directly from the laws
war, as established by the usage of the of the world, and confirmed
by the writings of publicists and decisions of courts in fine, from
the law of nations. . . . The municipal laws of a conquered territory,
or the laws which regulate private rights, continue in force during
military occupation, excepts so far as they are suspended or
changed by the acts of conqueror. . . . He, nevertheless, has all the
powers of a de facto government, and can at his pleasure either
change the existing laws or make new ones."
And applying the principles for the exercise of military authority in
an occupied territory, which were later embodied in the said Hague
Conventions, President McKinley, in his executive order to the
Secretary of War of May 19,1898, relating to the occupation of the
Philippines by United States forces, said in part: "Though the
powers of the military occupant are absolute and supreme, and
immediately operate upon the political condition of the inhabitants,
the municipal laws of the conquered territory, such as affect private
rights of person and property and provide for the punishment of
crime, are considered as continuing in force, so far as they are
compatible with the new order of things, until they are suspended
or superseded by the occupying belligerent; and in practice they
are not usually abrogated, but are allowed to remain in force and to
be administered by the ordinary tribunals, substantially as they
were before the occupation. This enlightened practice is, so far as
possible, to be adhered to on the present occasion. The judges and
the other officials connected with the administration of justice may,
if they accept the authority of the United States, continue to
administer the ordinary law of the land as between man and man
under the supervision of the American Commander in Chief."
(Richardson's Messages and Papers of President, X, p. 209.)
As to "de facto" government of the third kind, the Supreme Court of
the United States, in the same case of Thorington vs. Smith, supra,
recognized the government set up by the Confederate States as a
de facto government. In that case, it was held that "the central
government established for the insurgent States differed from the

temporary governments at Castine and Tampico in the

circumstance that its authority did no originate in lawful acts of
regular war; but it was not, on the account, less actual or less
supreme. And we think that it must be classed among the
governments of which these are examples. . . .
In the case of William vs. Bruffy (96 U. S. 176, 192), the Supreme
Court of the United States, discussing the validity of the acts of the
Confederate States, said: "The same general form of government,
the same general laws for the administration of justice and
protection of private rights, which had existed in the States prior to
the rebellion, remained during its continuance and afterwards. As
far as the Acts of the States do not impair or tend to impair the
supremacy of the national authority, or the just rights of citizens
under the Constitution, they are, in general, to be treated as valid
and binding. As we said in Horn vs. Lockhart (17 Wall., 570; 21 Law.
ed., 657): "The existence of a state of insurrection and war did not
loosen the bonds of society, or do away with civil government or
the regular administration of the laws. Order was to be preserved,
police regulations maintained, crime prosecuted, property
protected, contracts enforced, marriages celebrated, estates
settled, and the transfer and descent of property regulated,
precisely as in the time of peace. No one, that we are aware of,
seriously questions the validity of judicial or legislative Acts in the
insurrectionary States touching these and kindered subjects, where
they were not hostile in their purpose or mode of enforcement to
the authority of the National Government, and did not impair the
rights of citizens under the Constitution'. The same doctrine has
been asserted in numerous other cases."
And the same court, in the case of Baldy vs. Hunter (171 U. S., 388,
400), held: "That what occured or was done in respect of such
matters under the authority of the laws of these local de facto
governments should not be disregarded or held to be invalid
merely because those governments were organized in hostility to
the Union established by the national Constitution; this, because
the existence of war between the United States and the
Confederate States did not relieve those who are within the
insurrectionary lines from the necessity of civil obedience, nor
destroy the bonds of society nor do away with civil government or
the regular administration of the laws, and because transactions in
the ordinary course of civil society as organized within the enemy's
territory although they may have indirectly or remotely promoted
the ends of the de facto or unlawful government organized to effect
a dissolution of the Union, were without blame 'except when proved
to have been entered into with actual intent to further invasion or
insurrection:'" and "That judicial and legislative acts in the
respective states composing the so-called Confederate States

should be respected by the courts if they were not hostile in their

purpose or mode of enforcement to the authority of the National
Government, and did not impair the rights of citizens under the
Constitution."
In view of the foregoing, it is evident that the Philippine Executive
Commission, which was organized by Order No. 1, issued on
January 23, 1942, by the Commander of the Japanese forces, was a
civil government established by the military forces of occupation
and therefore a de facto government of the second kind. It was not
different from the government established by the British in Castine,
Maine, or by the United States in Tampico, Mexico. As Halleck says,
"The government established over an enemy's territory during the
military occupation may exercise all the powers given by the laws
of war to the conqueror over the conquered, and is subject to all
restrictions which that code imposes. It is of little consequence
whether such government be called a military or civil government.
Its character is the same and the source of its authority the same.
In either case it is a government imposed by the laws of war, and
so far it concerns the inhabitants of such territory or the rest of the
world, those laws alone determine the legality or illegality of its
acts." (Vol. 2, p. 466.) The fact that the Philippine Executive
Commission was a civil and not a military government and was run
by Filipinos and not by Japanese nationals, is of no consequence. In
1806, when Napoleon occupied the greater part of Prussia, he
retained the existing administration under the general direction of a
french official (Langfrey History of Napoleon, 1, IV, 25); and, in the
same way, the Duke of Willington, on invading France, authorized
the local authorities to continue the exercise of their functions,
apparently without appointing an English superior. (Wellington
Despatches, XI, 307.). The Germans, on the other hand, when they
invaded France in 1870, appointed their own officials, at least in
Alsace and Lorraine, in every department of administration and of
every rank. (Calvo, pars. 2186-93; Hall, International Law, 7th ed.,
p. 505, note 2.)
The so-called Republic of the Philippines, apparently established
and organized as a sovereign state independent from any other
government by the Filipino people, was, in truth and reality, a
government established by the belligerent occupant or the
Japanese forces of occupation. It was of the same character as the
Philippine Executive Commission, and the ultimate source of its
authority was the same the Japanese military authority and
government. As General MacArthur stated in his proclamation of
October 23, 1944, a portion of which has been already quoted,
"under enemy duress, a so-called government styled as the
'Republic of the Philippines' was established on October 14, 1943,
based upon neither the free expression of the people's will nor the

sanction of the Government of the United States." Japan had no

legal power to grant independence to the Philippines or transfer the
sovereignty of the United States to, or recognize the latent
sovereignty of, the Filipino people, before its military occupation
and possession of the Islands had matured into an absolute and
permanent dominion or sovereignty by a treaty of peace or other
means recognized in the law of nations. For it is a well-established
doctrine in International Law, recognized in Article 45 of the Hauge
Conventions of 1907 (which prohibits compulsion of the population
of the occupied territory to swear allegiance to the hostile power),
the belligerent occupation, being essentially provisional, does not
serve to transfer sovereignty over the territory controlled although
the de jure government is during the period of occupancy deprived
of the power to exercise its rights as such. (Thirty Hogshead of
Sugar vs. Boyle, 9 Cranch, 191; United States vs. Rice, 4 Wheat.,
246; Fleming vs. Page, 9 Howard, 603; Downes vs. Bidwell, 182 U.
S., 345.) The formation of the Republic of the Philippines was a
scheme contrived by Japan to delude the Filipino people into
believing in the apparent magnanimity of the Japanese gesture of
transferring or turning over the rights of government into the hands
of Filipinos. It was established under the mistaken belief that by
doing so, Japan would secure the cooperation or at least the
neutrality of the Filipino people in her war against the United States
and other allied nations.
Indeed, even if the Republic of the Philippines had been established
by the free will of the Filipino who, taking advantage of the
withdrawal of the American forces from the Islands, and the
occupation thereof by the Japanese forces of invasion, had
organized an independent government under the name with the
support and backing of Japan, such government would have been
considered as one established by the Filipinos in insurrection or
rebellion against the parent state or the Unite States. And as such,
it would have been a de facto government similar to that organized
by the confederate states during the war of secession and
recognized as such by the by the Supreme Court of the United
States in numerous cases, notably those of Thorington vs. Smith,
Williams vs. Bruffy, and Badly vs. Hunter, above quoted; and similar
to the short-lived government established by the Filipino insurgents
in the Island of Cebu during the Spanish-American war, recognized
as a de facto government by the Supreme Court of the United
States in the case of McCleod vs. United States (299 U. S., 416).
According to the facts in the last-named case, the Spanish forces
evacuated the Island of Cebu on December 25, 1898, having first
appointed a provisional government, and shortly afterwards, the
Filipinos, formerly in insurrection against Spain, took possession of
the Islands and established a republic, governing the Islands until

possession thereof was surrendered to the United States on

February 22, 1898. And the said Supreme Court held in that case
that "such government was of the class of de facto governments
described in I Moore's International Law Digest, S 20, . . . 'called
also by publicists a government de facto, but which might, perhaps,
be more aptly denominated a government of paramount force . . '."
That is to say, that the government of a country in possession of
belligerent forces in insurrection or rebellion against the parent
state, rests upon the same principles as that of a territory occupied
by the hostile army of an enemy at regular war with the legitimate
power.
The governments by the Philippine Executive Commission and the
Republic of the Philippines during the Japanese military occupation
being de facto governments, it necessarily follows that the judicial
acts and proceedings of the courts of justice of those governments,
which are not of a political complexion, were good and valid, and,
by virtue of the well-known principle of postliminy (postliminium) in
international law, remained good and valid after the liberation or
reoccupation of the Philippines by the American and Filipino forces
under the leadership of General Douglas MacArthur. According to
that well-known principle in international law, the fact that a
territory which has been occupied by an enemy comes again into
the power of its legitimate government of sovereignty, "does not,
except in a very few cases, wipe out the effects of acts done by an
invader, which for one reason or another it is within his competence
to do. Thus judicial acts done under his control, when they are not
of a political complexion, administrative acts so done, to the extent
that they take effect during the continuance of his control, and the
various acts done during the same time by private persons under
the sanction of municipal law, remain good. Were it otherwise, the
whole social life of a community would be paralyzed by an invasion;
and as between the state and the individuals the evil would be
scarcely less, it would be hard for example that payment of taxes
made under duress should be ignored, and it would be contrary to
the general interest that the sentences passed upon criminals
should be annulled by the disappearance of the intrusive
government ." (Hall, International Law, 7th ed., p. 518.) And when
the occupation and the abandonment have been each an incident
of the same war as in the present case, postliminy applies, even
though the occupant has acted as conqueror and for the time
substituted his own sovereignty as the Japanese intended to do
apparently in granting independence to the Philippines and
establishing the so-called Republic of the Philippines. (Taylor,
International Law, p. 615.)
That not only judicial but also legislative acts of de facto
governments, which are not of a political complexion, are and

remain valid after reoccupation of a territory occupied by a

belligerent occupant, is confirmed by the Proclamation issued by
General Douglas MacArthur on October 23, 1944, which declares
null and void all laws, regulations and processes of the
governments established in the Philippines during the Japanese
occupation, for it would not have been necessary for said
proclamation to abrogate them if they were invalid ab initio.
2. The second question hinges upon the interpretation of the
phrase "processes of any other government" as used in the abovequoted proclamation of General Douglas MacArthur of October 23,
1944 that is, whether it was the intention of the Commander in
Chief of the American Forces to annul and void thereby all
judgments and judicial proceedings of the courts established in the
Philippines during the Japanese military occupation.
The phrase "processes of any other government" is broad and may
refer not only to the judicial processes, but also to administrative or
legislative, as well as constitutional, processes of the Republic of
the Philippines or other governmental agencies established in the
Islands during the Japanese occupation. Taking into consideration
the fact that, as above indicated, according to the well-known
principles of international law all judgements and judicial
proceedings, which are not of a political complexion, of the de facto
governments during the Japanese military occupation were good
and valid before and remained so after the occupied territory had
come again into the power of the titular sovereign, it should be
presumed that it was not, and could not have been, the intention of
General Douglas MacArthur, in using the phrase "processes of any
other government" in said proclamation, to refer to judicial
processes, in violation of said principles of international law. The
only reasonable construction of the said phrase is that it refers to
governmental processes other than judicial processes of court
proceedings, for according to a well-known rule of statutory
construction, set forth in 25 R. C. L., p. 1028, "a statute ought never
to be construed to violate the law of nations if any other possible
construction remains."
It is true that the commanding general of a belligerent army of
occupation, as an agent of his government, may not unlawfully
suspend existing laws and promulgate new ones in the occupied
territory, if and when the exigencies of the military occupation
demand such action. But even assuming that, under the law of
nations, the legislative power of a commander in chief of military
forces who liberates or reoccupies his own territory which has been
occupied by an enemy, during the military and before the
restoration of the civil regime, is as broad as that of the
commander in chief of the military forces of invasion and
occupation (although the exigencies of military reoccupation are

evidently less than those of occupation), it is to be presumed that

General Douglas MacArthur, who was acting as an agent or a
representative of the Government and the President of the United
States, constitutional commander in chief of the United States
Army, did not intend to act against the principles of the law of
nations asserted by the Supreme Court of the United States from
the early period of its existence, applied by the Presidents of the
United States, and later embodied in the Hague Conventions of
1907, as above indicated. It is not to be presumed that General
Douglas MacArthur, who enjoined in the same proclamation of
October 23, 1944, "upon the loyal citizens of the Philippines full
respect and obedience to the Constitution of the Commonwealth of
the Philippines," should not only reverse the international policy
and practice of his own government, but also disregard in the same
breath the provisions of section 3, Article II, of our Constitution,
which provides that "The Philippines renounces war as an
instrument of national policy, and adopts the generally accepted
principles of international law as part of the law of the Nation."
Moreover, from a contrary construction great inconvenience and
public hardship would result, and great public interests would be
endangered and sacrificed, for disputes or suits already adjudged
would have to be again settled accrued or vested rights nullified,
sentences passed on criminals set aside, and criminals might easily
become immune for evidence against them may have already
disappeared or be no longer available, especially now that almost
all court records in the Philippines have been destroyed by fire as a
consequence of the war. And it is another well-established rule of
statutory construction that where great inconvenience will result
from a particular construction, or great public interests would be
endangered or sacrificed, or great mischief done, such construction
is to be avoided, or the court ought to presume that such
construction was not intended by the makers of the law, unless
required by clear and unequivocal words. (25 R. C. L., pp. 1025,
1027.)
The mere conception or thought of possibility that the titular
sovereign or his representatives who reoccupies a territory
occupied by an enemy, may set aside or annul all the judicial acts
or proceedings of the tribunals which the belligerent occupant had
the right and duty to establish in order to insure public order and
safety during military occupation, would be sufficient to paralyze
the social life of the country or occupied territory, for it would have
to be expected that litigants would not willingly submit their
litigation to courts whose judgements or decisions may afterwards
be annulled, and criminals would not be deterred from committing
crimes or offenses in the expectancy that they may escaped the

penalty if judgments rendered against them may be afterwards set

aside.
That the proclamation has not invalidated all the judgements and
proceedings of the courts of justice during the Japanese regime, is
impliedly confirmed by Executive Order No. 37, which has the force
of law, issued by the President of the Philippines on March 10,
1945, by virtue of the emergency legislative power vested in him
by the Constitution and the laws of the Commonwealth of the
Philippines. Said Executive order abolished the Court of Appeals,
and provided "that all case which have heretofore been duly
appealed to the Court of Appeals shall be transmitted to the
Supreme Court final decision." This provision impliedly recognizes
that the judgments and proceedings of the courts during the
Japanese military occupation have not been invalidated by the
proclamation of General MacArthur of October 23, because the said
Order does not say or refer to cases which have been duly
appealed to said court prior to the Japanese occupation, but to
cases which had therefore, that is, up to March 10, 1945, been duly
appealed to the Court of Appeals; and it is to be presumed that
almost all, if not all, appealed cases pending in the Court of
Appeals prior to the Japanese military occupation of Manila on
January 2, 1942, had been disposed of by the latter before the
restoration of the Commonwealth Government in 1945; while
almost all, if not all, appealed cases pending on March 10, 1945, in
the Court of Appeals were from judgments rendered by the Court of
First Instance during the Japanese regime.
The respondent judge quotes a portion of Wheaton's International
Law which say: "Moreover when it is said that an occupier's acts are
valid and under international law should not be abrogated by the
subsequent conqueror, it must be remembered that no crucial
instances exist to show that if his acts should be reversed, any
international wrong would be committed. What does happen is that
most matters are allowed to stand by the restored government, but
the matter can hardly be put further than this." (Wheaton,
International Law, War, 7th English edition of 1944, p. 245.) And
from this quotion the respondent judge "draws the conclusion that
whether the acts of the occupant should be considered valid or not,
is a question that is up to the restored government to decide; that
there is no rule of international law that denies to the restored
government to decide; that there is no rule of international law that
denies to the restored government the right of exercise its
discretion on the matter, imposing upon it in its stead the
obligation of recognizing and enforcing the acts of the overthrown
government."
There is doubt that the subsequent conqueror has the right to
abrogate most of the acts of the occupier, such as the laws,

regulations and processes other than judicial of the government

established by the belligerent occupant. But in view of the fact that
the proclamation uses the words "processes of any other
government" and not "judicial processes" prisely, it is not necessary
to determine whether or not General Douglas MacArthur had power
to annul and set aside all judgments and proceedings of the courts
during the Japanese occupation. The question to be determined is
whether or not it was his intention, as representative of the
President of the United States, to avoid or nullify them. If the
proclamation had, expressly or by necessary implication, declared
null and void the judicial processes of any other government, it
would be necessary for this court to decide in the present case
whether or not General Douglas MacArthur had authority to declare
them null and void. But the proclamation did not so provide,
undoubtedly because the author thereof was fully aware of the
limitations of his powers as Commander in Chief of Military Forces
of liberation or subsequent conqueror.
Not only the Hague Regulations, but also the principles of
international law, as they result from the usages established
between civilized nations, the laws of humanity and the
requirements of the public of conscience, constitute or from the law
of nations. (Preamble of the Hague Conventions; Westlake,
International Law, 2d ed., Part II, p. 61.) Article 43, section III, of the
Hague Regulations or Conventions which we have already quoted in
discussing the first question, imposes upon the occupant the
obligation to establish courts; and Article 23 (h), section II, of the
same Conventions, which prohibits the belligerent occupant "to
declare . . . suspended . . . in a Court of Law the rights and action of
the nationals of the hostile party," forbids him to make any
declaration preventing the inhabitants from using their courts to
assert or enforce their civil rights. (Decision of the Court of Appeals
of England in the case of Porter vs. Fruedenburg, L.R. [1915], 1 K.B.,
857.) If a belligerent occupant is required to establish courts of
justice in the territory occupied, and forbidden to prevent the
nationals thereof from asserting or enforcing therein their civil
rights, by necessary implication, the military commander of the
forces of liberation or the restored government is restrained from
nullifying or setting aside the judgments rendered by said courts in
their litigation during the period of occupation. Otherwise, the
purpose of these precepts of the Hague Conventions would be
thwarted, for to declare them null and void would be tantamount to
suspending in said courts the right and action of the nationals of
the territory during the military occupation thereof by the enemy. It
goes without saying that a law that enjoins a person to do
something will not at the same time empower another to undo the
same. Although the question whether the President or commanding

officer of the United States Army has violated restraints imposed by

the constitution and laws of his country is obviously of a domestic
nature, yet, in construing and applying limitations imposed on the
executive authority, the Supreme Court of the United States, in the
case of Ochoa, vs. Hernandez (230 U.S., 139), has declared that
they "arise from general rules of international law and from
fundamental principles known wherever the American flag flies."
In the case of Raymond vs. Thomas (91 U.S., 712), a special order
issued by the officer in command of the forces of the United States
in South Carolina after the end of the Civil War, wholly annulling a
decree rendered by a court of chancery in that state in a case
within its jurisdiction, was declared void, and not warranted by the
acts approved respectively March 2, 1867 (14 Stat., 428), and July
19 of the same year (15 id., 14), which defined the powers and
duties of military officers in command of the several states then
lately in rebellion. In the course of its decision the court said; "We
have looked carefully through the acts of March 2, 1867 and July
19, 1867. They give very large governmental powers to the military
commanders designated, within the States committed respectively
to their jurisdiction; but we have found nothing to warrant the order
here in question. . . . The clearest language would be necessary to
satisfy us that Congress intended that the power given by these
acts should be so exercised. . . . It was an arbitrary stretch of
authority, needful to no good end that can be imagined. Whether
Congress could have conferred the power to do such an act is a
question we are not called upon to consider. It is an unbending rule
of law that the exercise of military power, where the rights of the
citizen are concerned, shall never be pushed beyond what the
exigency requires. (Mithell vs. Harmony, 13 How., 115; Warden vs.
Bailey, 4 Taunt., 67; Fabrigas vs. Moysten, 1 Cowp., 161; s.c., 1
Smith's L.C., pt. 2, p. 934.) Viewing the subject before us from the
standpoint indicated, we hold that the order was void."
It is, therefore, evident that the proclamation of General MacArthur
of October 23, 1944, which declared that "all laws, regulations and
processes of any other government in the Philippines than that of
the said Commonwealth are null and void without legal effect in
areas of the Philippines free of enemy occupation and control," has
not invalidated the judicial acts and proceedings, which are not a
political complexion, of the courts of justice in the Philippines that
were continued by the Philippine Executive Commission and the
Republic of the Philippines during the Japanese military occupation,
and that said judicial acts and proceedings were good and valid
before and now good and valid after the reoccupation of liberation
of the Philippines by the American and Filipino forces.
3. The third and last question is whether or not the courts of the
Commonwealth, which are the same as those existing prior to, and

continued during, the Japanese military occupation by the

Philippine Executive Commission and by the so-called Republic of
the Philippines, have jurisdiction to continue now the proceedings
in actions pending in said courts at the time the Philippine Islands
were reoccupied or liberated by the American and Filipino forces,
and the Commonwealth Government was restored.
Although in theory the authority the authority of the local civil and
judicial administration is suspended as a matter of course as soon
as military occupation takes place, in practice the invader does not
usually take the administration of justice into his own hands, but
continues the ordinary courts or tribunals to administer the laws of
the country which he is enjoined, unless absolutely prevented, to
respect. As stated in the above-quoted Executive Order of President
McKinley to the Secretary of War on May 19, 1898, "in practice,
they (the municipal laws) are not usually abrogated but are allowed
to remain in force and to be administered by the ordinary tribunals
substantially as they were before the occupation. This enlightened
practice is, so far as possible, to be adhered to on the present
occasion." And Taylor in this connection says: "From a theoretical
point of view it may be said that the conqueror is armed with the
right to substitute his arbitrary will for all preexisting forms of
government, legislative, executive and judicial. From the standpoint of actual practice such arbitrary will is restrained by the
provision of the law of nations which compels the conqueror to
continue local laws and institution so far as military necessity will
permit." (Taylor, International Public Law, p.596.) Undoubtedly, this
practice has been adopted in order that the ordinary pursuits and
business of society may not be unnecessarily deranged, inasmuch
as belligerent occupation is essentially provisional, and the
government established by the occupant of transient character.
Following these practice and precepts of the law of nations,
Commander in Chief of the Japanese Forces proclaimed on January
3, 1942, when Manila was occupied, the military administration
under martial law over the territory occupied by the army, and
ordered that "all the laws now in force in the Commonwealth, as
well as executive and judicial institutions, shall continue to be
affective for the time being as in the past," and "all public officials
shall remain in their present post and carry on faithfully their duties
as before." When the Philippine Executive Commission was
organized by Order No. 1 of the Japanese Commander in Chief, on
January 23, 1942, the Chairman of the Executive Commission, by
Executive Orders Nos. 1 and 4 of January 30 and February 5,
respectively, continued the Supreme Court, Court of Appeals, Court
of First Instance, and justices of the peace of courts, with the same
jurisdiction in conformity with the instructions given by the
Commander in Chief of the Imperial Japanese Army in Order No. 3

of February 20, 1942. And on October 14, 1943 when the so-called
Republic of the Philippines was inaugurated, the same courts were
continued with no substantial change in organization and
jurisdiction thereof.
If the proceedings pending in the different courts of the Islands
prior to the Japanese military occupation had been continued
during the Japanese military administration, the Philippine
Executive Commission, and the so-called Republic of the
Philippines, it stands to reason that the same courts, which had
become reestablished and conceived of as having in continued
existence upon the reoccupation and liberation of the Philippines by
virtue of the principle of postliminy (Hall, International Law, 7th ed.,
p. 516), may continue the proceedings in cases then pending in
said courts, without necessity of enacting a law conferring
jurisdiction upon them to continue said proceedings. As Taylor
graphically points out in speaking of said principles "a state or
other governmental entity, upon the removal of a foreign military
force, resumes its old place with its right and duties substantially
unimpaired. . . . Such political resurrection is the result of a law
analogous to that which enables elastic bodies to regain their
original shape upon removal of the external force, and subject to
the same exception in case of absolute crushing of the whole fibre
and content." (Taylor, International Public Law, p. 615.)
The argument advanced by the respondent judge in his resolution
in support in his conclusion that the Court of First Instance of Manila
presided over by him "has no authority to take cognizance of, and
continue said proceedings (of this case) to final judgment until and
unless the Government of the Commonwealth of the Philippines . . .
shall have provided for the transfer of the jurisdiction of the courts
of the now defunct Republic of the Philippines, and the cases
commenced and the left pending therein," is "that said courts were
a government alien to the Commonwealth Government. The laws
they enforced were, true enough, laws of the Commonwealth prior
to Japanese occupation, but they had become the laws and the
courts had become the institutions of Japan by adoption (U.S. vs.
Reiter. 27 F. Cases, No. 16146), as they became later on the laws
and institutions of the Philippine Executive Commission and the
Republic of the Philippines."
The court in the said case of U.S. vs. Reiter did not and could not
say that the laws and institutions of the country occupied if
continued by the conqueror or occupant, become the laws and the
courts, by adoption, of the sovereign nation that is militarily
occupying the territory. Because, as already shown, belligerent or
military occupation is essentially provisional and does not serve to
transfer the sovereignty over the occupied territory to the
occupant. What the court said was that, if such laws and

institutions are continued in use by the occupant, they become his

and derive their force from him, in the sense that he may continue
or set them aside. The laws and institution or courts so continued
remain the laws and institutions or courts of the occupied territory.
The laws and the courts of the Philippines, therefore, did not
become, by being continued as required by the law of nations, laws
and courts of Japan. The provision of Article 45, section III, of the
Hague Conventions of 1907 which prohibits any compulsion of the
population of occupied territory to swear allegiance to the hostile
power, "extends to prohibit everything which would assert or imply
a change made by the invader in the legitimate sovereignty. This
duty is neither to innovate in the political life of the occupied
districts, nor needlessly to break the continuity of their legal life.
Hence, so far as the courts of justice are allowed to continue
administering the territorial laws, they must be allowed to give
their sentences in the name of the legitimate sovereign "
(Westlake, Int. Law, Part II, second ed., p. 102). According to
Wheaton, however, the victor need not allow the use of that of the
legitimate government. When in 1870, the Germans in France
attempted to violate that rule by ordering, after the fall of the
Emperor Napoleon, the courts of Nancy to administer justice in the
name of the "High German Powers occupying Alsace and Lorraine,"
upon the ground that the exercise of their powers in the name of
French people and government was at least an implied recognition
of the Republic, the courts refused to obey and suspended their
sitting. Germany originally ordered the use of the name of "High
German Powers occupying Alsace and Lorraine," but later offered to
allow use of the name of the Emperor or a compromise. (Wheaton,
International Law, War, 7th English ed. 1944, p. 244.)
Furthermore, it is a legal maxim, that excepting that of a political
nature, "Law once established continues until changed by the some
competent legislative power. It is not change merely by change of
sovereignty." (Joseph H. Beale, Cases on Conflict of Laws, III,
Summary Section 9, citing Commonwealth vs. Chapman, 13 Met.,
68.) As the same author says, in his Treatise on the Conflict on Laws
(Cambridge, 1916, Section 131): "There can no break or
interregnum in law. From the time the law comes into existence
with the first-felt corporateness of a primitive people it must last
until the final disappearance of human society. Once created, it
persists until a change take place, and when changed it continues
in such changed condition until the next change, and so forever.
Conquest or colonization is impotent to bring law to an end; in spite
of change of constitution, the law continues unchanged until the
new sovereign by legislative acts creates a change."
As courts are creatures of statutes and their existence defends
upon that of the laws which create and confer upon them their

jurisdiction, it is evident that such laws, not being a political nature,

are not abrogated by a change of sovereignty, and continue in
force "ex proprio vigore" unless and until repealed by legislative
acts. A proclamation that said laws and courts are expressly
continued is not necessary in order that they may continue in force.
Such proclamation, if made, is but a declaration of the intention of
respecting and not repealing those laws. Therefore, even assuming
that Japan had legally acquired sovereignty over these Islands,
which she had afterwards transferred to the so-called Republic of
the Philippines, and that the laws and the courts of these Islands
had become the courts of Japan, as the said courts of the laws
creating and conferring jurisdiction upon them have continued in
force until now, it necessarily follows that the same courts may
continue exercising the same jurisdiction over cases pending
therein before the restoration of the Commonwealth Government,
unless and until they are abolished or the laws creating and
conferring jurisdiction upon them are repealed by the said
government. As a consequence, enabling laws or acts providing
that proceedings pending in one court be continued by or
transferred to another court, are not required by the mere change
of government or sovereignty. They are necessary only in case the
former courts are abolished or their jurisdiction so change that they
can no longer continue taking cognizance of the cases and
proceedings commenced therein, in order that the new courts or
the courts having jurisdiction over said cases may continue the
proceedings. When the Spanish sovereignty in the Philippine
Islands ceased and the Islands came into the possession of the
United States, the "Audiencia" or Supreme Court was continued and
did not cease to exist, and proceeded to take cognizance of the
actions pending therein upon the cessation of the Spanish
sovereignty until the said "Audiencia" or Supreme Court was
abolished, and the Supreme Court created in Chapter II of Act No.
136 was substituted in lieu thereof. And the Courts of First Instance
of the Islands during the Spanish regime continued taking
cognizance of cases pending therein upon the change of
sovereignty, until section 65 of the same Act No. 136 abolished
them and created in its Chapter IV the present Courts of First
Instance in substitution of the former. Similarly, no enabling acts
were enacted during the Japanese occupation, but a mere
proclamation or order that the courts in the Island were continued.
On the other hand, during the American regime, when section 78 of
Act No. 136 was enacted abolishing the civil jurisdiction of the
provost courts created by the military government of occupation in
the Philippines during the Spanish-American War of 1898, the same
section 78 provided for the transfer of all civil actions then pending
in the provost courts to the proper tribunals, that is, to the justices

of the peace courts, Court of First Instance, or Supreme Court

having jurisdiction over them according to law. And later on, when
the criminal jurisdiction of provost courts in the City of Manila was
abolished by section 3 of Act No. 186, the same section provided
that criminal cases pending therein within the jurisdiction of the
municipal court created by Act No. 183 were transferred to the
latter.
That the present courts as the same courts which had been
functioning during the Japanese regime and, therefore, can
continue the proceedings in cases pending therein prior to the
restoration of the Commonwealth of the Philippines, is confirmed by
Executive Order No. 37 which we have already quoted in support of
our conclusion in connection with the second question. Said
Executive Order provides"(1) that the Court of Appeals created and
established under Commonwealth Act No. 3 as amended, be
abolished, as it is hereby abolished," and "(2) that all cases which
have heretofore been duly appealed to the Court of Appeals shall
be transmitted to the Supreme Court for final decision. . . ." In so
providing, the said Order considers that the Court of Appeals
abolished was the same that existed prior to, and continued after,
the restoration of the Commonwealth Government; for, as we have
stated in discussing the previous question, almost all, if not all, of
the cases pending therein, or which had theretofore (that is, up to
March 10, 1945) been duly appealed to said court, must have been
cases coming from the Courts of First Instance during the so-called
Republic of the Philippines. If the Court of Appeals abolished by the
said Executive Order was not the same one which had been
functioning during the Republic, but that which had existed up to
the time of the Japanese occupation, it would have provided that all
the cases which had, prior to and up to that occupation on January
2, 1942, been dully appealed to the said Court of Appeals shall be
transmitted to the Supreme Court for final decision.
It is, therefore, obvious that the present courts have jurisdiction to
continue, to final judgment, the proceedings in cases, not of
political complexion, pending therein at the time of the restoration
of the Commonwealth Government.
Having arrived at the above conclusions, it follows that the Court of
First Instance of Manila has jurisdiction to continue to final
judgment the proceedings in civil case No. 3012, which involves
civil rights of the parties under the laws of the Commonwealth
Government, pending in said court at the time of the restoration of
the said Government; and that the respondent judge of the court,
having refused to act and continue him does a duty resulting from
his office as presiding judge of that court, mandamus is the speedy
and adequate remedy in the ordinary course of law, especially
taking into consideration the fact that the question of jurisdiction

herein involved does affect not only this particular case, but many
other cases now pending in all the courts of these Islands.
In view of all the foregoing it is adjudged and decreed that a writ of
mandamus issue, directed to the respondent judge of the Court of
First Instance of Manila, ordering him to take cognizance of and
continue to final judgment the proceedings in civil case No. 3012 of
said court. No pronouncement as to costs. So ordered.
Moran, C.J., Ozaeta, Paras, Jaranilla and Pablo, JJ., concur.
Separate Opinions
DE JOYA, J., concurring:
The principal question involved in this case is the validity of the
proceedings held in civil case No. 3012, in the Court of First
Instance of the City of Manila, under the now defunct Philippine
Republic, during Japanese occupation; and the effect on said
proceedings of the proclamation of General Douglas MacArthur,
dated October 23, 1944. The decision of this question requires the
application of principles of International Law, in connection with the
municipal law in force in this country, before and during Japanese
occupation.
Questions of International Law must be decided as matters of
general law (Juntington vs. Attril, 146 U.S., 657; 13 Sup. Ct. 224; 36
Law. ed., 1123); and International Law is no alien in this Tribunal,
as, under the Constitution of the Commonwealth of the Philippines,
it is a part of the fundamental law of the land (Article II, section 3).
As International Law is an integral part of our laws, it must be
ascertained and administered by this Court, whenever questions of
right depending upon it are presented for our determination, sitting
as an international as well as a domestic Tribunal (Kansas vs.
Colorado, 185 U.S., 146; 22 Sup. Ct. 552; 46 Law. Ed., 838).
Since International Law is a body of rules actually accepted by
nations as regulating their mutual relations, the proof of the
existence of a given rule is to be found in the consent of nations to
abide by that rule; and this consent is evidenced chiefly by the
usages and customs of nations, and to ascertain what these usages
and customs are, the universal practice is to turn to the writings of
publicists and to the decisions of the highest courts of the different
countries of the world (The Habana, 175 U.S., 677; 20 Sup. Cit.,
290; 44 Law. ed., 320).
But while usage is the older and original source of International
Law, great international treaties are a later source of increasing
importance, such as The Hague Conventions of 1899 and 1907.
The Hague Conventions of 1899, respecting laws and customs of
war on land, expressly declares that:
ARTICLE XLII. Territory is considered occupied when it is actually
placed under the authority of the hostile army.

The occupation applies only to be territory where such authority is

established, and in a position to assert itself.
ARTICLE XLIII. The authority of the legitimate power having actually
passed into the hands of the occupant, the later shall take all steps
in his power to reestablish and insure, as far as possible, public
order and safety, while respecting, unless absolutely prevented, the
laws in force in the country. (32 Stat. II, 1821.)
The above provisions of the Hague Convention have been adopted
by the nations giving adherence to them, among which is United
States of America (32 Stat. II, 1821).
The commander in chief of the invading forces or military occupant
may exercise governmental authority, but only when in actual
possession of the enemy's territory, and this authority will be
exercised upon principles of international Law (New Orleans vs.
Steamship Co, [1874], 20 Wall., 387; Kelly vs. Sanders [1878], 99
U.S., 441; MacLeod vs. U.S., 229 U.S. 416; 33 Sup. Ct., 955; 57 Law
Ed., 1260; II Oppenheim of International Law, section 167).
There can be no question that the Philippines was under Japanese
military occupation, from January, 1942, up to the time of the
reconquest by the armed forces of the United States of the Island of
Luzon, in February, 1945.
It will thus be readily seen that the civil laws of the invaded State
continue in force, in so far as they do not affect the hostile
occupant unfavorably. The regular judicial Tribunals of the occupied
territory continue usual for the invader to take the whole
administration into his own hands, partly because it is easier to
preserve order through the agency of the native officials, and partly
because it is easier to preserve order through the agency of the
native officials, and partly because the latter are more competent
to administer the laws in force within the territory and the military
occupant generally keeps in their posts such of the judicial and
administrative officers as are willing to serve under him, subjecting
them only to supervision by the military authorities, or by superior
civil authorities appointed by him.(Young vs. U.S., 39; 24 Law, ed.,
992; Coleman vs. Tennessee, 97 U.S., 509; 24 Law ed., 1118;
MacLeod vs. U.S., 229 U.S., 416; 33 Sup. Ct., 955; 57 Law. ed.,
1260; Taylor on International Law, sections 576. 578; Wilson on
International Law; pp. 331-37; Hall on International Law, 6th Edition
[1909], pp. 464, 465, 475, 476; Lawrence on International Law, 7th
ed., pp. 412, 413; Davis, Elements of International Law, 3rd ed., pp.
330-332 335; Holland on International Law pp. 356, 357, 359;
Westlake on International Law, 2d ed., pp. 121-23.)
It is, therefore, evident that the establishment of the government
under the so-called Philippine Republic, during Japanese
occupation, respecting the laws in force in the country, and
permitting the local courts to function and administer such laws, as

proclaimed in the City of Manila, by the Commander in Chief of the

Japanese Imperial Forces, on January 3, 1942, was in accordance
with the rules and principles of International Law.
If the military occupant is thus in duly bound to establish in the
territory under military occupation governmental agencies for the
preservation of peace and order and for the proper administration
of justice, in accordance with the laws in force within territory it
must necessarily follow that the judicial proceedings conducted
before the courts established by the military occupant must be
considered legal and valid, even after said government establish by
the military occupant has been displaced by the legitimate
government of the territory.
Thus the judgments rendered by the Confederate Courts, during
the American Civil War, merely settling the rights of private parties
actually within their jurisdiction, not tending to defeat the legal
rights of citizens of the United States, nor in furtherance of laws
passed in aid of the rebellion had been declared valid and binding
(Cock vs. Oliver, 1 Woods, 437; Fed. Cas., No. 3, 164; Coleman vs.
Tennessee, 97 U. S., 509; 24 Law. ed., 118; Williams vs. Bruffy, 96
U. S., 176; Horn vs. Lockhart, 17 Wall., 570; Sprott vs. United
States, 20 id., 459; Texas vs. White, 7 id., 700; Ketchum vs. Buckley
[1878], 99 U.S., 188); and the judgment of a court of Georgia
rendered in November, 1861, for the purchase money of slaves was
held valid judgment when entered, and enforceable in 1871(French
vs. Tumlin, 10 Am. Law. Reg. [N.S.], 641; Fed. Case, No. 5104).
Said judgments rendered by the courts of the states constituting
the Confederate States of America were considered legal and valid
and enforceable, even after the termination of the American Civil
War, because they had been rendered by the courts of a de facto
government. The Confederate States were a de facto government
in the sense that its citizens were bound to render the government
obedience in civil matters, and did not become responsible, as
wrong-doers, for such acts of obedience (Thorington vs. Smith, 8
Wall. [U.S.], 9; 19 Law. ed., 361).
In the case of Ketchum vs. Buckley ([1878], 99 U.S., 188), the Court
held "It is now settled law in this court that during the late civil
war the same general form of government, the same general law
for the administration of justice and the protection of private rights,
which had existed in the States prior to the rebellion, remained
during its continuance and afterwards. As far as the acts of the
States did not impair or tend to impair the supremacy of the
national authority, or the just and legal rights of the citizens, under
the Constitution, they are in general to be treated as valid and
binding." (William vs. Bruffy, 96 U.S., 176; Horn vs. Lockhart, 17
Wall., 570; Sprott vs. United States, 20 id., 459; Texas vs. White, 7
id., 700.)

The government established in the Philippines, during Japanese

occupation, would seem to fall under the following definition of de
facto government given by the Supreme Court of the United States:
But there is another description of government, called also by
publicists, a government de facto, but which might, perhaps, be
more aptly denominateda government of paramount force. Its
distinguishing characteristics are (1) that its existence is
maintained by active military power within the territories, and
against the rightful authority of an established and lawful
government; and (2) that while it exists it must necessarily be
obeyed in civil matters by private citizens who, by acts of
obedience rendered in submission to such force, do not become
responsible, as wrong doers, for those acts, though not warranted
by the laws of the rightful government. Actual government of this
sort are established over districts differing greatly in extent and
conditions. They are usually administered directly by military
authority, but they may be administered, also, by civil authority,
supported more or less directly by military force. (Macleod vs.
United States [1913] 229 U.S., 416.)
The government established in the Philippines, under the so-called
Philippine Republic, during Japanese occupation, was and should be
considered as a de facto government; and that the judicial
proceedings conducted before the courts which had been
established in this country, during said Japanese occupation, are to
be considered legal and valid and enforceable, even after the
liberation of this country by the American forces, as long as the
said judicial proceedings had been conducted, under the laws of
the Commonwealth of the Philippines.
The judicial proceedings involved in the case under consideration
merely refer to the settlement of property rights, under the
provisions of the Civil Code, in force in this country under the
Commonwealth government, before and during Japanese
occupation.
Now, petitioner contends that the judicial proceedings in question
are null and void, under the provisions of the proclamation issued
by General Douglas MacArthur, dated October 23, 1944; as said
proclamation "nullifies all the laws, regulations and processes of
any other government of the Philippines than that of the
Commonwealth of the Philippines."
In other words, petitioner demands a literal interpretation of said
proclamation issued by General Douglas MacArthur, a contention
which, in our opinion, is untenable, as it would inevitably produce
judicial chaos and uncertainties.
When an act is susceptible of two or more constructions, one of
which will maintain and the others destroy it, the courts will always
adopt the former (U. S. vs. Coombs [1838], 12 Pet., 72; 9 Law. ed.,

1004; Board of Supervisors of Granada County vs. Brown [1884],

112 U.S., 261; 28 Law. ed., 704; 5 Sup. Ct. Rep., 125; In re Guarina
[1913], 24 Phil., 37; Fuentes vs. Director of Prisons [1924], 46 Phil.,
385). The judiciary, always alive to the dictates of national welfare,
can properly incline the scales of its decisions in favor of that
solution which will most effectively promote the public policy
(Smith, Bell & Co., Ltd. vs. Natividad [1919], 40 Phil., 136). All laws
should receive a sensible construction. General terms should be so
limited in their application as not lead to injustice, oppression or an
absurd consequence. It will always, therefore, be presumed that the
legislature intended exceptions to its language, which would avoid
results of this character. The reason of the law in such cases should
prevail over its letter (U. S. vs. Kirby, 7 Wall. [U.S.], 482; 19 Law.
ed., 278; Church of Holy Trinity vs. U. S., 143 U. S. 461; 12 Sup. Ct.,
511; 36 Law. ed., 226; Jacobson vs. Massachussetts, 197 U. S., 39;
25 Sup. Ct., 358; 49 Law. ed., 643; 3 Ann. Cas., 765; In re Allen, 2
Phil., 630). The duty of the court in construing a statute, which is
reasonably susceptible of two constructions to adopt that which
saves is constitutionality, includes the duty of avoiding a
construction which raises grave and doubtful constitutional
questions, if it can be avoided (U. S. vs. Delaware & Hudson Co.,
U.S., 366; 29 Sup. Ct., 527; 53 Law. ed., 836).
According to the rules and principles of International Law, and the
legal doctrines cited above, the judicial proceedings conducted
before the courts of justice, established here during Japanese
military occupation, merely applying the municipal law of the
territory, such as the provisions of our Civil Code, which have no
political or military significance, should be considered legal, valid
and binding.
It is to be presumed that General Douglas MacArthur is familiar with
said rules and principles, as International Law is an integral part of
the fundamental law of the land, in accordance with the provisions
of the Constitution of the United States. And it is also to be
presumed that General MacArthur his acted, in accordance with
said rules and principles of International Law, which have been
sanctioned by the Supreme Court of the United States, as the
nullification of all judicial proceedings conducted before our courts,
during Japanese occupation would lead to injustice and absurd
results, and would be highly detrimental to the public interests.
For the foregoing reasons, I concur in the majority opinion.
PERFECTO, J., dissenting:
Law must be obeyed. To keep the bonds of society, it must not be
evaded. On its supremacy depends the stability of states and
nations. No government can prevail without it. The preservation of
the human race itself hinges in law.

Since time immemorial, man has relied on law as an essential

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

of recognizing the validity of some of said acts, but, certainly, there

were acts which he should declare null and void, whether against
the policies of the American Government, whether inconsistent with
military strategy and operations, whether detrimental to the
interests of the American or Filipino peoples, whether for any other
strong or valid reasons.
But, which to recognize, and which not? He was not in a position to
gather enough information for a safe basis to distinguished and
classify which acts must be nullified, and which must validated. At
the same time he had to take immediate action. More pressing
military matters were requiring his immediate attention. He
followed the safe course: to nullify all the legislative, executive, and
judicial acts and processes under the Japanese regime. After all,
when the Commonwealth Government is already functioning, with
proper information, he will be in a position to declare by law,
through its Congress, which acts and processes must be revived
and validated in the public interest.
So on October 23, 1944, the Commander in Chief issued the
following proclamation:
GENERAL HEADQUARTERS
SOUTHWEST PACIFIC AREA
OFFICE OF THE COMMANDER IN CHIEF
PROCLAMATION
To the People of the Philippines:
WHEREAS, the military forces under my command have landed in
the Philippines soil as a prelude to the liberation of the entire
territory of the Philippines; and
WHEREAS, the seat of the Government of the Commonwealth of the
Philippines has been re-established in the Philippines under
President Sergio Osmea and the members of his cabinet; and
WHEREAS, under enemy duress, a so-called government styled as
the "Republic of the Philippines" was established on October 14,
1943, based upon neither the free expression of the people's will
nor the sanction of the Government of the United States, and is
purporting to exercise Executive, Judicial and Legislative powers of
government over the people;
Now, therefore, I, Douglas MacArthur, General, United States Army,
as Commander in Chief of the military forces committed to the
liberation of the Philippines, do hereby proclaim and declare:
1. That the Government of the Commonwealth of the Philippines is,
subject to the supreme authority of the Government of the United
States, the sole and the only government having legal and valid
jurisdiction over the people in areas of the Philippines free of
enemy occupation and control;
2. The laws now existing on the statute books of the
Commonwealth of the Philippines and the regulation promulgated

pursuant thereto are in full force and effect and legally binding
upon the people in areas of the Philippines free of enemy
occupation and control; and
3. That all laws, regulations and processes of any other government
in the Philippines than that of the said Commonwealth are null and
void and without legal effect in areas of the Philippines free enemy
occupation and control; and
I do hereby announce my purpose progressively to restore and
extend to the people of the Philippines the sacred right of
government by constitutional process under the regularly
constituted Commonwealth Government as rapidly as the several
occupied areas are liberated to the military situation will otherwise
permit;
I do enjoin upon all loyal citizens of the Philippines full respect for
and obedience to the Constitution of the Commonwealth of the
Philippines and the laws, regulations and other acts of their duly
constituted government whose seat is now firmly re-established on
Philippine soil.
October 23, 1944.
DOUGLAS MACARTHUR
General U. S. Army Commander in Chief
IS THE OCTOBER PROCLAMATION LAW?
In times of war the Commander in Chief of an army is vested with
extraordinary inherent powers, as a natural result of the nature of
the military operations aimed to achieve the purposes of his
country in the war, victory being paramount among them.
Said Commander in Chief may establish in the occupied or
reoccupied territory, under his control, a complete system of
government; he may appoint officers and employees to manage
the affairs of said government; he may issue proclamations,
instructions, orders, all with the full force of laws enacted by a duly
constituted legislature; he may set policies that should be followed
by the public administration organized by him; he may abolish the
said agencies. In fact, he is the supreme ruler and law-maker of the
territory under his control, with powers limited only by the receipts
of the fundamental laws of his country.
California, or the port of San Francisco, had been conquered by the
arms of the United States as early as 1846. Shortly afterward the
United States had military possession of all upper California. Early
in 1847 the President, as constitutional commander in chief of the
army and navy, authorized the military and naval commander of
our forces in California to exercise the belligerent rights of a
conqueror, and form a civil government for the conquered country,
and to impose duties on imports and tonnage as military
contributions for the support of the government, and of the army

which has the conquest in possession. . . Cross of Harrison, 16

Howard, 164, 189.)
In May, 1862, after the capture of New Orleans by the United States
Army, General Butler, then in command of the army at that place,
issued a general order appointing Major J. M. Bell, volunteer aidede-camp, of the division staff, provost judge of the city, and
directed that he should be obeyed and respected accordingly. The
same order appointed Capt. J. H. French provost marshal of the city,
the Capt. Stafford deputy provost marshal. A few days after this
order the Union Bank lent to the plaintiffs the sum of $130,000, and
subsequently, the loan not having been repaid, brought suit before
the provost judge to recover the debt. The defense was taken that
the judge had no jurisdiction over the civil cases, but judgement
was given against the borrowers, and they paid the money under
protest. To recover it back is the object of the present suit, and the
contention of the plaintiffs is that the judgement was illegal and
void, because the Provost Court had no jurisdiction of the case. The
judgement of the District Court was against the plaintiffs, and this
judgement was affirmed by the Supreme Court of the State. To this
affirmance error is now assigned.
The argument of the plaintiffs in error is that the establishment of
the Provost Court, the appointment of the judge, and his action as
such in the case brought by the Union Bank against them were
invalid, because in violation of the Constitution of the United
States, which vests the judicial power of the General government in
one Supreme Court and in such inferior courts as Congress may
from time to time ordain and establish, and under this
constitutional provision they were entitled to immunity from liability
imposed by the judgment of the Provost Court. Thus, it is claimed, a
Federal question is presented, and the highest court of the State
having decided against the immunity claimed, our jurisdiction is
invoked.
Assuming that the case is thus brought within our right to review it,
the controlling question is whether the commanding general of the
army which captured New Orleans and held it in May 1862, had
authority after the capture of the city to establish a court and
appoint a judge with power to try and adjudicate civil causes. Did
the Constitution of the United States prevent the creation of the
civil courts in captured districts during the war of the rebellion, and
their creation by military authority?
This cannot be said to be an open question. The subject came
under the consideration by this court in The Grapeshot, where it
was decided that when, during the late civil war, portions of the
insurgent territory were occupied by the National forces, it was
within the constitutional authority of the President, as commander
in chief, to establish therein provisional courts for the hearing and

determination of all causes arising under the laws of the States or

of the United States, and it was ruled that a court instituted by
President Lincoln for the State of Louisiana, with authority to hear,
try, and determine civil causes, was lawfully authorized to exercise
such jurisdiction. Its establishment by the military authority was
held to be no violation of the constitutional provision that "the
judicial power of the United States shall be vested in one Supreme
Court and in such inferior courts as the Congress may form time to
time ordain and establish." That clause of the Constitution has no
application to the abnormal condition of conquered territory in the
occupancy of the conquering, army. It refers only to courts of
United States, which military courts are not. As was said in the
opinion of the court, delivered by Chief Justice Chase, in The
Grapeshot, "It became the duty of the National government,
wherever the insurgent power was overthrown, and the territory
which had been dominated by it was occupied by the National
forces, to provide, as far as possible, so long as the war continued,
for the security of the persons and property and for the
administration of justice. The duty of the National government in
this respect was no other than that which devolves upon a regular
belligerent, occupying during war the territory of another
belligerent. It was a military duty, to be performed by the President,
as Commander in Chief, and instructed as such with the direction of
the military force by which the occupation was held."
Thus it has been determined that the power to establish by military
authority courts for the administration of civil as well as criminal
justice in portions of the insurgent States occupied by the National
forces, is precisely the same as that which exists when foreign
territory has been conquered and is occupied by the conquerors.
What that power is has several times been considered. In
Leitensdorfer & Houghton vs. Webb, may be found a notable
illustration. Upon the conquest of New Mexico, in 1846, the
commanding officer of the conquering army, in virtue of the power
of conquest and occupancy, and with the sanction and authority of
the President, ordained a provisional government for the country.
The ordinance created courts, with both civil and criminal
jurisdiction. It did not undertake to change the municipal laws of
the territory, but it established a judicial system with a superior or
appellate court, and with circuit courts, the jurisdiction of which
declared to embrace, first, all criminal causes that should not
otherwise provided for by law; and secondly, original and exclusive
cognizance of all civil cases not cognizable before the prefects and
alcades. But though these courts and this judicial system were
established by the military authority of the United States, without
any legislation of Congress, this court ruled that they were lawfully
established. And there was no express order for their establishment

emanating from the President or the Commander in Chief. The

ordinance was the act of the General Kearney the commanding
officer of the army occupying the conquered territory.
In view of these decisions it is not to be questioned that the
Constitution did not prohibit the creation by the military authority
of court for the trial of civil causes during the civil war in conquered
portions of the insurgent States. The establishment of such courts
is but the exercise of the ordinary rights of conquest. The plaintiffs
in error, therefore, had no constitutional immunity against
subjection to the judgements of such courts. They argue, however,
that if this be conceded, still General Butler had no authority to
establish such a court; that the President alone, as a Commander in
Chief, had such authority. We do not concur in this view. General
Butler was in command of the conquering and the occupying army.
He was commissioned to carry on the war in Louisina. He was,
therefore, invested with all the powers of making war, so far as
they were denied to him by the Commander in Chief, and among
these powers, as we have seen, was of establishing courts in
conquered territory. It must be presumed that he acted under the
orders of his superior officer, the President, and that his acts, in the
prosecution of the war, were the acts of his commander in chief.
(Mechanics' etc. Bank vs. Union Bank, 89 U. S. [22 Wall.], 276-298.)
There is no question, therefore, that when General of the Army
Douglas MacArthur issued on October Proclamation, he did it in the
legitimate exercise of his powers. He did it as the official
representative of the supreme authority of the United States of
America. Consequently, said proclamation is legal, valid, and
binding.
Said proclamation has the full force of a law. In fact, of a paramount
law. Having been issued in the exercise of the American
sovereignty, in case of conflict, it can even supersede, not only the
ordinary laws of the Commonwealth of the Philippines, but also our
Constitution itself while we remain under the American flag.
"PROCESS" IN THE OCTOBER PROCLAMATION
In the third section of the dispositive part of the October
Proclamation, it is declared that all laws, regulations and processes
of any other government in the Philippines than that of the
Commonwealth, are null and void.
Does the word "processes" used in the proclamation include judicial
processes?
In its broadest sense, process is synonymous with proceedings or
procedures and embraces all the steps and proceedings in a judicial
cause from it commencement to its conclusion.
PROCESS. In Practice. The means of compelling a defendant to
appear in court after suing out the original writ, in civil, and after
indictment, in criminal cases.

The method taken by law to compel a compliance with the original

writ or command as of the court.
A writ, warrant, subpoena, or other formal writing issued by
authority law; also the means of accomplishing an end, including
judicial proceedings; Gollobitch vs. Rainbow, 84 la., 567; 51 N. W.,
48; the means or method pointed out by a statute, or used to
acquire jurisdiction of the defendants, whether by writ or notice.
Wilson vs. R. Co. (108 Mo., 588; 18 S. W., 286; 32 Am. St. Rep.,
624). (3 Bouvier's Law Dictionary, p. 2731.)
A. Process generally. 1. Definition. As a legal term process is a
generic word of every comprehensive signification and many
meanings. It is broadest sense it is equivalent to, or synonymous
with, "proceedings" or "procedure," and embraces all the steps and
proceedings in a cause from its commencement to its conclusion.
Sometimes the term is also broadly defined as the means whereby
a court compels a compliance with it demands. "Process" and "writ"
or "writs" are synonymous in the sense that every writ is a process,
and in a narrow sense of the term "process" is limited to judicial
writs in an action, or at least to writs or writings issued from or out
of court, under the seal thereof, and returnable thereto; but it is not
always necessary to construe the term so strictly as to limit it to a
writ issued by a court in the exercise of its ordinary jurisdiction; the
term is sometimes defined as a writ or other formal writing issued
by authority of law or by some court, body, or official having
authority to issue it; and it is frequently used to designate a means,
by writ or otherwise , of acquiring jurisdiction of defendant or his
property, or of bringing defendant into, or compelling him to appear
in, court to answer.
As employed in the statutes the legal meaning of the word
"process" varies according to the context, subject matter, and spirit
of the statute in which it occurs. In some jurisdictions codes or
statutes variously define "process" as signifying or including: A writ
or summons issued in the course of judicial proceedings; all writs,
warrants, summonses, and orders of courts of justice or judicial
officers; or any writ, declaration, summons, order, or subpoena
whereby any action, suit or proceeding shall be commenced, or
which shall be issued in or upon any action, suit or proceeding. (50
C. J., PP. 441, 442.)
The definition of "process" given by Lord Coke comprehends any
lawful warrant, authority, or proceeding by which a man may be
arrested. He says: "Process of law is two fold, namely, by the King's
writ, or by proceeding and warrant, either in deed or in law, without
writ." (People vs. Nevins [N. Y.] Hill, 154, 169, 170; State vs. Shaw,
50 A., 869; 73 Vt., 149.)
Baron Comyn says that process, in a large acceptance,
comprehends the whole proceedings after the original and before

judgement; but generally it imports the writs which issue out of any
court to bring the party to answer, or for doing execution, and all
process out of the King's court ought to be in the name of the King.
It is called "process" because it proceeds or goes upon former
matter, either original or judicial. Gilmer, vs. Bird 15 Fla., 410, 421.
(34 Words and Phrases, permanent edition, 1940 edition, p. 147.)
In a broad sense the word "process" includes the means whereby a
court compels the appearance of the defendant before it, or a
compliance with it demands, and any every writ, rule order, notice,
or decree, including any process of execution that may issue in or
upon any action, suit, or legal proceedings, and it is not restricted
to mesne process. In a narrow or restricted sense it is means those
mandates of the court intending to bring parties into court or to
require them to answer proceedings there pending. (Colquitt Nat.
Bank vs. Poitivint, 83 S. E., 198, 199; 15 Ga. App., 329. (34 Words
and Phrases, permanent edition, 1940 edition, p. 148.)
A "process" is an instrument in an epistolary from running in the
name of the sovereign of a state and issued out of a court of
justice, or by a judge thereof, at the commencement of an action or
at any time during its progress or incident thereto, usually under
seal of the court, duly attested and directed to some municipal
officer or to the party to be bound by it, commanding the
commission of some act at or within a specified time, or prohibiting
the doing of some act. The cardinal requisites are that the
instrument issue from a court of justice, or a judge thereof; that it
run in the name of the sovereign of the state; that it be duly
attested, but not necessarily by the judge, though usually, but not
always, under seal; and that it be directed to some one
commanding or prohibiting the commission of an act. Watson vs.
Keystone Ironworks Co., 74 P., 272, 273; 70 Kan., 43. (34 Words and
Phrases, permanent edition, 1940 edition, p. 148.)
Jacobs in his Law Dictionary says: "Process" has two qualifications:
First, it is largely taken for all proceedings in any action or
prosecution, real or personal, civil or criminal, from the beginning to
the end; secondly, that is termed the "process" by which a man is
called into any temporal court, because the beginning or principal
part thereof, by which the rest is directed or taken. Strictly, it is a
proceeding after the original, before the judgement. A policy of fire
insurance contained the condition that if the property shall be sold
or transferred, or any change takes place in title or possession,
whether by legal process or judicial decree or voluntary transfer or
convenience, then and in every such case the policy shall be void.
The term "legal process," as used in the policy, means what is
known as a writ; and, as attachment or execution on the writs are
usually employed to effect a change of title to property, they are or
are amongst the processes contemplated by the policy. The words

"legal process" mean all the proceedings in an action or

proceeding. They would necessarily embrace the decree, which
ordinarily includes the proceedings. Perry vs. Lorillard Fire Ins. Co.,
N. Y., 6 Lans., 201, 204. See, also, Tipton vs. Cordova, 1 N. M., 383,
385. (34 Words and Phrases, permanent edition, 1940 edition, p.
148.)
"Process" in a large acceptation, is nearly synonymous with
"proceedings," and means the entire proceedings in an action, from
the beginning to the end. In a stricter sense, it is applied to the
several judicial writs issued in an action. Hanna vs. Russell, 12
Minn., 80, 86 (Gil., 43, 45). (34 Words and Phrases, permanent
edition, 1940, edition 149.)
The term "process" as commonly applied, intends that proceeding
by which a party is called into court, but it has more enlarged
signification, and covers all the proceedings in a court, from the
beginning to the end of the suit; and, in this view, all proceedings
which may be had to bring testimony into court, whether viva voce
or in writing, may be considered the process of the court. Rich vs.
Trimple, Vt., 2 Tyler, 349, 350. Id.
"Process" in its broadest sense comprehends all proceedings to the
accomplishment of an end, including judicial proceedings.
Frequently its signification is limited to the means of bringing a
party in court. In the Constitution process which at the common law
would have run in the name of the king is intended. In the Code
process issued from a court is meant. McKenna vs. Cooper, 101 P.,
662, 663; 79 Kan., 847, quoting Hanna vs. Russel, 12 Minn., 80.
(Gil., 43 ); Black Com. 279; Bou vs. Law. Dict. (34 Words and
Phrases, permanent edition 1940 edition, p. 149.)
"Judicial process" includes the mandate of a court to its officers,
and a means whereby courts compel the appearance of parties, or
compliance with its commands, and includes a summons. Ex parte
Hill, 51 So., 786, 787; 165 Ala., 365.
"Judicial process" comprehends all the acts of then court from the
beginning of the proceeding to its end, and in a narrower sense is
the means of compelling a defendant to appear in court after suing
out the original writ in civil case and after the indictment in criminal
cases, and in every sense is the act of the court and includes any
means of acquiring jurisdiction and includes attachment,
garnishment, or execution, and also a writ. Blair vs. Maxbass
Security Bank of Maxbass, 176 N. W., 98, 199; 44 N. D. 12 (23
Words and Phrases, permanent edition 1940 edition, p. 328.)
There is no question that the word process, as used in the October
Proclamation, includes all judicial processes or proceedings.
The intention of the author of the proclamation of including judicial
processes appears clearly in the preamble of the document.

The second "Whereas," states that so-called government styled as

the "Republic of the Philippines," based upon neither the free
expression of the people's will nor the sanction of the Government
of the United States, and is purporting to the exercise Executive,
Judicial, and Legislative powers of government over the people."
It is evident from the above-mentioned words that it was the
purpose of General MacArthur to declare null and void all acts of
government under the Japanese regime, and he used, in section 3
of he dispositive part, the word laws, as pertaining to the legislative
branch, the word regulations, as pertaining to the executive branch,
and lastly, the word processes, as pertaining to the judicial branch
of the government which functioned under the Japanese regime.
It is reasonable to assume that he might include in the word
"process." besides those judicial character, those of executive or
administrative character. At any rate, judicial processes cannot be
excluded.
THE WORDS OF PROCLAMATION EXPRESS UNMISTAKABLY
THE INTENTION OF THE AUTHOR
The October Proclamation is written in such a way that it is
impossible to make a mistake as to the intention of its author.
Oliver Wendell Holmes, perhaps the wisest man who had ever sat in
the Supreme Court of the United States, the following:
When the words in their literal sense have a plain meaning, courts
must be very cautious in allowing their imagination to give them a
different one. Guild vs. Walter, 182 Mass., 225, 226 (1902)
Upon questions of construction when arbitrary rule is involved, it is
always more important to consider the words and the
circumstances than even strong analogies decisions. The
successive neglect of a series of small distinctions, in the effort to
follow precedent, is very liable to end in perverting instruments
from their plain meaning. In no other branch of the law (trusts) is so
much discretion required in dealing with authority. . . . There is a
strong presumption in favor of giving them words their natural
meaning, and against reading them as if they said something else,
which they are not fitted to express. (Merrill vs. Preston, 135 Mass.,
451, 455 (1883).
When the words of an instrument are free from ambiguity and
doubt, and express plainly, clearly and distinctly the sense of the
framer, there is no occasion to resort to other means of
interpretation. It is not allowable to interpret what needs no
interpretation.
Very strong expression have been used by the courts to emphasize
the principle that they are to derive their knowledge of the
legislative intention from the words or language of the statute itself
which the legislature has used to express it. The language of a

statute is its most natural guide. We are not liberty to imagine an

intent and bind the letter to the intent.
The Supreme Court of the United States said: "The primary and
general rule of statutory construction is that the intent of the lawmaker is to be found in the language that he has used. He is
presumed to know the meaning of the words and the rules of
grammar. The courts have no function of legislation, and simply
seek to ascertain the will of the legislator. It is true that there are
cases in which the letter of the statute is not deemed controlling,
but the cases are few and exceptional and only arise where there
are cogent reasons for believing that the letter does not fully and
accurately disclose the intent. No mere ommission, no mere failure
to provide for contingencies, which it may seem wise should have
specifically provided for will justify any judicial addition to the
language of the statute." (United States vs. Goldenberg, 168 U. S.,
95, 102, 103; 18 S. C. Rep., 3; 42 Law. ed., 394.)
That the Government of the Commonwealth of the Philippines shall
be the sole and only government in our country; that our laws are
in full force and effect and legally binding; that "all laws,
regulations and processes of any other government are null and
void and without legal effect", are provisions clearly, distinctly,
unmistakably expressed in the October Proclamation, as to which
there is no possibility of error, and there is absolutely no reason in
trying to find different meanings of the plain words employed in the
document.
As we have already seen, the annulled processes are precisely
judicial processes, procedures and proceedings, including the one
which is under our consideration.
THE OCTOBER PROCLAMATION ESTABLISHES A CLEAR POLICY
Although, as we have already stated, there is no possible mistakes
as to the meaning of the words employed in the October
Proclamation, and the text of the document expresses, in clear-cut
sentences, the true purposes of its author, it might not be amiss to
state here what was the policy intended to be established by said
proclamation.
It is a matter of judicial knowledge that in the global war just ended
on September 2, 1945, by the signatures on the document of
unconditional surrender affixed by representatives of the Japanese
government, the belligerents on both sides resorted to what may
call war weapons of psychological character.
So Japan, since its military forces occupied Manila, had waged an
intensive campaign propaganda, intended to destroy the faith of
the Filipino people in America, to wipe out all manifestations of
American or occidental civilization, to create interest in all things
Japanese, which the imperial officers tried to present as the acme
of oriental culture, and to arouse racial prejudice among orientals

and occidentals, to induce the Filipinos to rally to the cause of

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

It is the ideology of a people which insists in adopting the policy of

self-delusion; that believes that their Emperor is a direct
descendant of gods and he himself is a god, and that the typhoon
which occured on August 14, 1281, which destroyed the fleet with
which Kublai Khan tried to invade Japan was the divine wind of Ise;
that defies the heinous crime of the ronin, the 47 assassins who, in
order to avenge the death of their master Asano Naganori, on
February 3, 1703, entered stealthily into the house of Yoshinaka
Kiro and killed him treacherously.
It is an ideology which dignifies harakiri or sepukku, the most
bloody and repugnant from suicide, and on September 13, 1912, on
the occasion of the funeral of Emperor Meiji, induced General
Maresuke Nogi and his wife to practice the abhorrent "junshi", and
example of which is offered to us in the following words of a
historian:
When the Emperor's brother Yamato Hiko, died in 2 B. C., we are
told that, following the occasion, his attendants were assembled to
from the hito-bashira (pillar-men) to gird the grave. They were
buried alive in circle up to the neck around the thomb and "for
several days they died not, but wept and wailed day night. At last
they died not, but wept and wailed day night. At last they did not
rotted. Dogs and cows gathered and ate them." (Gowen, an Outline
of History of Japan, p. 50.)
The practice shows that the Japanese are the spiritual descendants
of the Sumerians, the ferocious inhabitants of Babylonia who, 3500
years B. C., appeared in history as the first human beings to honor
their patesis by killing and entombing with him his window, his
ministers, and notable men and women of his kingdom, selected by
the priests to partake of such abominable honor. (Broduer, The
Pageant of Civilization, pp. 62-66.)
General MacArthur sought to annul completely the officials acts of
the governments under the Japanese occupation, because they
were done at the shadow of the Japanese dictatorship, the same
which destroyed the independence of Korea, the "Empire of
Morning Frehsness"; they violated the territorial integrity of China,
invaded Manchuria, and initiated therein the deceitful system of
puppet governments, by designating irresponsible Pu Yi as Emperor
of Manchukuo; they violated the trusteeship granted by the Treaty
of Versailles by usurping tha mandated islands in the Pacific; they
initiated that they call China Incident, without war declaration, and,
therefore, in complete disregard of an elemental international duty;
they attacked Pearl Harbor treacherously, and committed a long
series of the flagrant violations of international law that have
logically bestowed on Japan the title of the bandit nation in the
social world.

The conduct of the Japanese during the occupation shows a

shocking an anchronism of a modern world power which seems to
be re-incarnation of one whose primitive social types of pre-history,
whose proper place must be found in an archeological collection. It
represents a backward jump in the evolution of ethical and juridical
concepts, a reversion that, more than a simple pathological state,
represents a characteristics and well defined case of sociological
teratology.
Since they entered the threshold of our capital, the Japanese had
announced that for every one of them killed they would kill ten
prominent Filipinos. They promised to respect our rights by
submitting us to the wholesale and indiscriminate slapping,
tortures, and atrocious massacres. Driving nails in the cranium,
extraction of teeth and eyes, burnings of organs, hangings,
diabolical zonings, looting of properties, establishments of redlight
districts, machine gunning of women and children, interment of
alive persons, they are just mere preludes of the promised
paradised that they called "Greater East Asia Co-Prosperity
Sphere".
They promised religious liberty by compelling all protestant sects to
unite, against the religious scruples and convictions of their
members, in one group, and by profaning convents, seminaries,
churches, and other cult centers of the Catholics, utilizing them as
military barracks, munitions dumps, artillery base, deposits of
bombs and gasoline, torture chambers and zone, and by compelling
the government officials and employees to face and to bow in
adoration before that caricature of divinity in the imperial palace of
Tokyo.
The Japanese offered themselves to be our cultural mentors by
depriving us of the use of our schools and colleges, by destroying
our books and other means of culture, by falsifying the contents of
school texts, by eliminating free press, the radio, all elemental
principles of civilized conduct, by establishing classes of
rudimentary Japanese so as to reduce the Filipinos to the mental
level of the rude Japanese guards, and by disseminating all kinds of
historical, political, and cultural falsehoods.
Invoking our geographical propinquity and race affinity, they had
the insolence of calling us their brothers, without the prejuce of
placing of us in the category of slaves, treating the most prominent
Filipinos in a much lower social and political category than that of
the most ignorant and brutal subject of the Emperor.
The civil liberties of the citizens were annulled. Witnesses and
litigants were slapped and tortured during investigations. In the
prosecuting attorney's offices, no one was safe. When the Japanese
arrested a person, the lawyer who dared to intercede was also
placed under arrest. Even courts were not free from their dispotic

members. There were judges who had to trample laws and shock
their conscience in order not to disgust a Nipponese.
The most noble of all professions, so much so that the universities
of the world could not conceive of higher honor that may be
conferred than that of Doctor of Laws, became the most despised.
It was dangerous to practice the profession by which faith in the
effectiveness of law is maintained; citizens feel confident in the
protection of their liberties, honor, and dignity; the weak may face
the powerful; the lowest citizen is not afraid of the highest official;
civil equality becomes reality; justice is admnistered with more
efficiency; and democracy becomes the best system of government
and the best guaranty for the welfare and happiness of the
individual human being. In fact, the profession of law was annulled,
and the best lawyers for the unfortunate prisoners in Fort Santiago
and other centers of torture were the military police, concubines,
procurers, and spies, the providers of war materials and shameful
pleasures, and the accomplices in fraudulent transactions, which
were the specialty of many naval and military Japanese officers.
The courts and Filipino government officials were completely
helpless in the question of protecting the constitutional liberties
and fundamental rights of the citizens who happen to be
unfortunate enough to fall under the dragnet of the hated kempei.
Even the highest government officials were not safe from arrest
and imprisonment in the dreaded military dungeons, where torture
or horrible death were always awaiting the defenseless victim of
the Japanese brutality.
May any one be surprised if General MacArthur decided to annul all
the judicial processes?
The evident policy of the author of the October Proclamation can be
seen if we take into consideration the following provisions of the
Japanese Constitution:
ART. 57. The Judicature shall be exercised by the Courts of Law
according to law, in the name of the Emperor.
ART. 61. No suit at law, which relates to rights alleged to have been
infringed by the illegal measures of the executive authority .. shall
be taken cognizance of by a Court of Law.
INTERNATIONAL LAW
Nobody dared challenge the validity of the October Proclamation.
Nobody dared challenge the authority of the military Commander in
Chief who issued it.
Certainly not because of the awe aroused by the looming figure of
General of the Army Douglas MacArthur, the Allied Supreme
Commander, the military hero, the greatest American general, the
Liberator of the Philippines, the conqueror of Japan, the gallant
soldier under whose authority the Emperor of the Japan, who is

supposed to rule supreme for ages as a descendant of gods, is

receiving orders with the humility of a prisoner of war.
No challenge has been hurled against the proclamation or the
authority of the author to issue it, because everybody
acknowledges the full legality of its issuance.
But because the proclamation will affect the interest and the rights
of a group of individuals, and to protect the same, a way is being
sought to neutralize the effect of the proclamation.
The way found is to invoke international law. The big and
resounding word is considered as a shibboleth powerful enough to
shield the affected persons from the annulling impact.
Even then, international law is not invoked to challenge the legality
or authority of the proclamation, but only to construe it in a
convenient way so that judicial processes during the Japanese
occupation, through an exceptional effort of the imagination, might
to segregated from the processes mentioned in the proclamation.
An author said that the law of nations, the "jus gentiun", is not a
fixed nor immutable science. On the country, it is developing
incessantly, it is perpetually changing in forms. In each turn it
advances or recedes, according to the vicissitudes of history, and
following the monotonous rythm of the ebb and rise of the tide of
the sea.
Le driot des gens, en effet, n'est point une science fixe est
immuable: bein au contraire, il se developpe sans cesse, il change
eternellement de formes; tour il avance et il recule, selon less
vicissitudes de histoire et suivan un rhythm monotone qui est
comme le flux et le reflux d'un mer. (M. Revon, De l'existence du
driot international sous la republique romain.)
Another author has this to say:
International law, if it is or can be a science at all, or can be, at
most a regulative science, dealing with the conduct of States, that
is, human beings in a certain capacity; and its principles and
prescriptions are not, like those of science proper, final and
unchanging. The substance of science proper is already made for
man; the substance of international is actually made by man,
and different ages make differently." (Coleman Philippson, The
International Law and Custom of Ancient Greece of Rome, Vol. I, p.
50.)
"Law must be stable, and yet it cannot stand still." (Pound,
Interpretations of Legal History., p. 1. ) Justice Cardozo adds: "Here
is the great antimony confronting us at every turn. Rest and
motion, unrelieved and unchecked, are equally destructive. The
law, like human kind, if life is to continue, must find some path
compromise." (The Growth of Law p. 2.) Law is just one of the
manifestations of human life, and "Life has relations not capable of

division into inflexible compartments. The moulds expand and

shrink," (Glanzer vs. Shepard, 233 N.Y., 236, 241.)
The characteristic plasticity of law is very noticeable, much more
than in any other department, in international law.
In a certain matters it is clear we have made substantial progress,
but in other points, he (M. Revon) maintains, we have retrograded;
for example, in the middle ages the oath was not always respected
as faithfully as in ancient Rome; and nearer our own times, in the
seventeenth century, Grotius proclaims the unquestioned right of
the belligerents to massacre the women and the children of the
enemy; and in our more modern age the due declaration of war
which Roman always conformed to has not been invariably
observed. (Coleman Philippson, The International Law and Custom
of Ancient Greece and Rome, Vol. I, p. 209.)
Now let us see if any principle of international law may effect the
enforcement of the October Proclamation.
In this study we should be cautioned not to allow ourselves to be
deluded by generalities and vagueness which are likely to lead us
easily to error, in view of the absence of codification and statutory
provisions.
Our Constitution provides:
The Philippines renounces war as an instrument of national policy,
and adopts the generally accepted principles of international law as
part of the law of the Nation. (Sec. 3, Art. II.)
There being no codified principles of international law, or
enactments of its rules, we cannot rely on merely legal precepts.
With the exception of international conventions and treaties and,
just recently, the Charter of the United Nations, adopted in San
Francisco Conference on June 26, 1945, we have to rely on
unsystemized judicial pronouncements and reasonings and on
theories, theses, and propositions that we may find in the works of
authors and publicists.
Due to that characteristic pliability and imprecision of international
law, the drafters of our Constitution had to content themselves with
"generally accepted principles."
We must insists, therefore, that the principles should be specific
and unmistakably defined and that there is definite and conclusive
evidence to the effect that they generally accepted among the
civilized nations of the world and that they belong to the current
era and no other epochs of history.
The temptation of assuming the role of a legislator is greater in
international law than in any other department of law, since there
are no parliaments, congresses, legislative assemblies which can
enact laws and specific statutes on the subject. It must be our
concern to avoid falling in so a great temptation, as its, dangers are
incalculable. It would be like building castles in the thin air, or

trying to find an exit in the thick dark forest where we are

irretrievably lost. We must also be very careful in our logic. In so
vast a field as international law, the fanciful wandering of the
imagination often impair the course of dialistics.
THE OCTOBER PROCLAMATION AND INTERNATIONAL LAW
Is there any principle of international law that may effect the
October Proclamation?
We tried in vain to find out in the majority opinion anything as to
the existence of any principle of international law under which the
authority of General MacArthur to issue the proclamation can
effectively be challenged.
No principle of international law has been, or could be invoked as a
basis for denying the author of the document legal authority to
issue the same or any part thereof.
We awaited in vain for any one to dare deny General MacArthur the
authority, under international law, to declare null and void and
without effect, not only the laws and regulations of the
governments under the Japanese regime, but all the processes of
said governments, including judicial processes.
If General MacArthur, as commander in Chief of the American
Armed Forces of Liberation, had authority, full and legal, to issue
the proclamation, the inescapable result will be the complete
viodance and nullity of all judicial processes, procedures, and
proceedings of all courts under the Japanese regime.
But those who are sponsoring the cause of said judicial processes
try to achieve their aim, not by direct means, but by following a
tortuous side-road.
They accept and recognize the full authority of the author of the
proclamation to issue it and all its parts, but they maintain that
General MacArthur did not and could not have in mind the idea of
nullifying the judicial processes during the Japanese occupation,
because that will be in violation of the principles of international
law.
If we follow the reasoning of the majority opinion we will have to
reach the conlusion that the world "processes" does not appear at
all in the October Proclamation.
It is stated more than once, and reiterated with dogmatic emphasis,
that under the principles of international law the judicial processes
under an army occupation cannot be invalidated.
But we waited in vain for the specific principle of international law,
only one of those alluded to, to be pointed out to us.
If the law exist, it can be pointed out. If the principle exists, it can
stated specifically. The word is being used very often in plural,
principles, but we need only one to be convinced.
The imagined principles are so shrouded in a thick maze of strained
analogies and reasoning, that we confess our inability even to have

a fleeting glimpse at them through their thick and invulnerable

wrappers.
At every turn international law, the blatant words, are haunting us
with the deafening bray of a trumpet, but after the transient sound
has fled away, absorbed by the resiliency of the vast atmosphere,
the announced principles, which are the very soul of international
law, would disappear too with the lighting speed of a vanishing
dream.
WEAKNESS OF THE MAJORITY POSITION
In the majority opinion three questions are propounded: first,
whether judicial acts and proceedings during the Japanese
occupation are valid even after liberation; second whether the
October Proclamation had invalidated all judgement and judicial
proceedings under the Japanese regime; and third, whether the
present courts of the Commonwealth may continue the judicial
proceedings pending at the time of liberation.
As regards the first question, it is stated that it is a legal tourism in
political and international law that all acts of a de facto government
are good and valid, that the governments established during the
Japanese occupation. that is, the Philippine Executive Commission
and the Republic of the Philippines, were de facto governments,
and that it necessarily follows that the judicial acts and proceedings
of the courts of those governments, "which are not of a political
complexion," were good and valid, and by virtue of the principle of
postliminium, remain good and valid after the liberation.
In the above reasoning we will see right away how the alleged legal
truism in political and international law, stated as a premise in a
sweeping way, as an absolute rule, is immediately qualified by the
exception as to judicial acts and proceedings which are of a
"political complexion."
So it is the majority itself which destroys the validity of what it
maintains as a legal truism in political and international law, by
stating from the beginning of the absolute proposition that all acts
and proceedings of the legislative, executive, and judicial
departments of a de facto governments are good and valid.
It is be noted that no authority, absolutely no authority, has been
cited to support the absolute and sweeping character of the
majority proposition as stated in their opinion.
No authority could be cited, because the majority itself loses faith
in the validity of such absolute and sweeping proposition, by
establishing an unexplained exception as regards the judicial acts
and proceedings of a "political complexion."
Besides, it is useless to try to find in the arguments of the majority
anything that may challenge the power, the authority of a de jure
government to annul the official acts of a de facto government, or
the legal and indisputable authority of the restored legitimate

government to refuse to recognize the official acts, legislative,

executive and judicial, of the usurping government, once the same
is ousted.
As to the second question, the majority argues that the judicial
proceedings and judgments of the de facto governments under the
Japanese regime being good and valid, "it should be presumed that
it was not, and could not have been, the intention of General
Douglas MacArthur to refer to judicial processes, when he used the
last word in the October Proclamation, and that it only refers to
government processes other than judicial processes or court
proceedings."
The weakness and absolute ineffectiveness of the argument are
self-evident.
It is maintained that when General MacArthur declared the
processes of the governments under the Japanese regime null and
void, he could not refer to judicial processes, because the same are
valid and remained so under the legal truism announced by the
majority to the effect that, under political and international law, all
official acts of a de facto government, legislative, executive or
judicial, are valid.
But we have seen already how the majority excepted from said
legal truism the judicial processes of "political complexion."
And now it is stated that in annulling the processes of the
governments under Japanese occupation, General MacArthur
referred to "processes other than judicial processes."
That is, the legislative and executive processes.
But, did not the majority maintain that all acts and proceedings of
legislative and executive departments of a de facto governments
are good and valid? Did it not maintain that they are so as a "legal
truism in political and international law?"
Now if the reasoning of the majority to the effect that General
MacArthur could not refer to judicial processes because they are
good and valid in accordance with international law, why should the
same reasoning not apply to legislative and executive processes?
Why does the majority maintain that, notwithstanding the fact that,
according that said legal truism, legislative and executive official
acts of de facto governments are good and valid, General
MacArthur referred to the latter in his annulling proclamation, but
not to judicial processes?
If the argument is good so as to exclude judicial processes from the
effect of the October Proclamation, we can see no logic in
considering it bad with respect to legislative and executive
processes.
If the argument is bad with respect to legislative and executive
processes, there is no logic in holding that it is not good with
respect to judicial processes.

Therefore, if the argument of the majority opinion is good, the

inevitable conclusion is that General MacArthur did not declare null
and void any processes, at all, whether legislative processes,
executive processes, or judicial processes, and that the word
"processes" used by him in the October Proclamation is a mere
surplusage or an ornamental literary appendix.
The absurdity of the conclusion unmasks the utter futility of the
position of the majority, which is but a mere legal pretense that
cannot stand the least analysis or the test of logic.
A great legal luminary admonished that we must have courage to
unmasks pretense if we are to reach a peace that will abide beyond
the fleeting hour.
It is admitted that the commanding general of a belligerent army of
occupation as an agent of his government, "may not unlawfully
suspend existing laws and promulgate new ones in the occupied
territory if and when exigencies of the military occupation demand
such action," but it is doubted whether the commanding general of
the army of the restored legitimate government can exercise the
same broad legislative powers.
We beg to disagree with a theory so unreasonable and subversive.
We cannot accept that the commanding general of an army of
occupation, of a rebellious army, of an invading army, or of a
usurping army, should enjoy greater legal authority during the
illegal, and in the case of the Japanese, iniquitous and bestial
occupation, than the official representative of the legitimate
government, once restored in the territory wrested from the brutal
invaders and aggressors. We cannot agree with such legal travesty.
Broad and unlimited powers are granted and recognized in the
commanding general of an army of invasion, but the shadow of the
vanishing alleged principle of international law is being brandished
to gag, manacle, and make completely powerless the commander
of an army of liberation to wipe out the official acts of the
government for usurpation, although said acts might impair the
military operation or neutralize the public policies of the restored
legitimate government.
We are not unmindful of the interest of the persons who might be
adversely affected by the annulment of the judicial processes of the
governments under the Japanese regime, but we cannot help
smiling when we hear that chaos will reign or that the world will
sink.
It is possible that some criminals will be let loose unpunished, but
nobody has ever been alarmed that the President, in the exercise of
his constitutional powers of pardon and amnesty, had in the past
released many criminals from imprisonment. And let us not forget
that due to human limitations, in all countries, under all
governments, in peace or in war, there were, there are, and there

will always be unpunished criminals, and that situation never

caused despair to any one.
We can conceive of inconveniences and hardships, but they are
necessary contributions to great and noble purposes. Untold
sacrifices were always offered to attain high ideals and in behalf of
worthy causes.
We cannot refrain from feeling a paternal emotion for those who
are trembling with all sincerity because of the belief that the
avoidance of judicial proceedings of the governments under the
Japanese regime "would paralyze the social life of the country." To
allay such fear we must remind them that the country that
produced many great hereos and martyrs; that contributed some of
highest morals figures that humanity has ever produced in all
history; which inhabited by a race which was able to traverse in
immemorial times the vast expanses of the Indian Ocean and the
Pacific with inadequate means of navigation, and to inhabit in many
islands so distantly located, from Madagascar to the eastern Pacific;
which made possible the wonderful resistance of Bataan and
Corregidor, can not have a social life so frail as to be easily
paralyzed by the annulment of some judicial proceedings. The
Japanese vandalisms during the last three years of nightmares and
bestial oppression, during the long period of our national slavery,
and the wholesale massacres and destructions in Manila and many
other cities and municipalities and populated areas, were not able
to paralyze the social life of our people. Let us not loss faith so
easily in the inherent vitality of the social life of the people and
country of Rizal and Mabini.
It is insinuated that because of the thought that the representative
of the restored sovereign power may set aside all judicial processes
of the army of occupation, in the case to courts of a future
invasions, litigants will not summit their cases to courts whose
judgement may afterwards be annulled, and criminals would not be
deterred from committing offenses in the expectancy that they may
escape penalty upon liberation of the country. We hope that
Providence will never allow the Philippines to fall again under the
arms of an invading army, but if such misfortune will happen, let
the October Proclamation serve as a notice to the ruthless invaders
that the official acts of the government of occupation will not merit
any recognition from the legitimate government, especially if they
should not conduct themselves, as exemplified by the Japanese, in
accordance with the rules of action of a civilized state.
One conclusive evidence of the untenableness of the majority
position is the fact that it had to resort to Executive Order No. 37,
issued on March 10, 1945, providing "that all cases that have
heretofore been appealed to the Court of Appeals shall be
transmitted to the Supreme Court for final decision." The far-

fetched theory is advanced that this provision impliedly recognizes

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

restored government the right to exercise its discretion on the

matter, is quoted without discussion in the majority opinion.
As the statement is not disputed, wee are entitled to presume that
it is concurred in and, therefore, the qualifications made in the
statement in the majority opinion seem to completely groundless.
THE DUTIES IMPOSED ON OCCUPANT ARMY ARE NOT LIMITATIONS
TO THE RIGHTS OF THE LEGITIMATE GOVERNMENT
The majority opinion is accumulating authorities to show the many
duties imposed by international law on the military occupant of an
invaded country.
And from said duties it is deduced that the legitimate government,
once restored in his own territory, is bound to respect all the official
acts of the government established by the usurping army, except
judicial processes political complexion.
The reasoning calls for immediate opposition. It is absolutely
contrary to all principles of logic.
Between the duties imposed in the military occupant and the legal
prerogatives of the legitimate government there are no logical
relationship or connection that might bind the ones with the others.
The military occupants is duty bound to protect the civil rights of
the inhabitants, but why should the legitimate government
necessarily validate the measures adopted by the said occupant in
the performance of this duty, if the legitimate government believes
his duty to annul them for weighty reasons?
The military occupant is duty bound to establish courts of justice.
Why should the legitimate government validate the acts of said
courts, if it is convinced that said courts were absolutely powerless,
as was the case during the Japanese occupation, to stop the
horrible abuses of the military police, to give relief to the victims of
zoning and Fort Santiago tortures, to protect the fundamental
human rights of the Filipinos life, property, and personal
freedom?
The majority opinion recognizes in the military occupant the power
to annul the official acts of the ousted and supplanted legitimate
government, a privilege which is inversely denied to the last. This
preference and predilection in favor of the military occupant, that is
in favor of the invader and usurper, and against the legitimate
government, is simply disconcerting, if we have to say the least.
PRESUMPTIONS AND SUPPOSITIONS AGAINST TRUTH AND FACTS
The invading military occupant is duty bound to establish and
maintain courts of justice in the invaded territory, for the protection
of the inhabitants thereof. It is presumed that the restored
legitimate government will respect the acts of said courts of the
army of occupation. Therefore, it is a principle of international law
that said acts are valid and should be respected by the legitimate
government. It is presumed that General MacArthur is acquainted

with such principle, discovered or revealed through presumptive

operations, and it is presumed that he had not the intention of
declaring null and void the judicial processes of the government
during the Japanese regime. Therefore, his October Proclamation,
declaring null and void and without effect "all processes" of said
governments, in fact, did not annul the Japanese regime judicial
processes.
So run the logic of the majority.
They don't mind the that General MacArthur speaks in the October
Proclamation as follows:
NOW, THEREFORE, I, Douglas MacArthur, General, United States
Army, as Commander-in-Chief of the military forces committed to
the liberation of the Philippines, do hereby proclaim and declare:
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xxx
xxx
3. That all laws, regulations and processes of any other government
in the Philippines than that of the said Commonwealth are null and
void and without legal effect in areas of the Philippines free of
enemy occupation and control. (emphasis supplied.)
General MacArthur says categorically "all processes", but the
majority insists on reading differently, that, is: "NOT ALL
processes." The majority presume, suppose, against the
unequivocal meaning of simple and well known words, that when
General MacArthur said "all processes", in fact, he said "not all
processes", because it is necessary, by presumption, by
supposition, to exclude judicial processes.
If where General MacArthur says "all", the majority shall insist on
reading "not all", it is impossible to foresee the consequences of
such so stubborn attitude, but it is possible to understand how they
reached the unacceptable possible conclusion which we cannot be
avoid opposing and exposing.
Are we to adopt and follow the policy of deciding cases submitted
to our consideration, by presumption and suppositions putting
aside truths and facts? Are we to place in the documents presented
to us, such as the October Proclamation, different words than what
are written therein? Are we to read "not all", where it is written
"all"?
We are afraid to such procedure is not precisely the most
appropriate to keep public confidence in the effectiveness of the
administration of justice.
That is why we must insists that in the October Proclamation should
be read what General MacArthur has written in it, that is, that,
besides laws and regulations, he declared and proclaimed null and
void "ALL PROCESSES", including naturally judicial processes, of the
governments under the Japanese regime.
THE COMMONWEALTH COURTS HAVE NO JURISDICTION TO
CONTINUE JAPANESE REGIME JUDICIAL PROCESSES

Now we come to the third and last question propounded in the

majority opinion.
The jurisdiction of the Commonwealth tribunals is defined,
prescribed, and apportioned by legislative act.
It is provided so in our Constitution. (Section 2, Article VIII.)
The Commonwealth courts of justice are continuations of the courts
established before the inauguration of the Commonwealth and
before the Constitution took effect on November 15, 1935. And
their jurisdiction is the same as provided by existing laws at the
time of inauguration of the Commonwealth Government.
Act No. 136 of the Philippine Commission, known as the Organic Act
of the courts of justice of the Philippines, is the one that defines the
jurisdiction of justice of the peace and municipal courts, Courts of
First Instance, and the Supreme Court. It is not necessary to
mention here the jurisdiction of the Court of Appeals, because the
same has been abolished by Executive Order No. 37.
No provision may be found in Act. No. 136, nor in any other law of
the Philippines, conferring on the Commonwealth tribunals
jurisdiction to continue the judicial processes or proceedings of
tribunals belonging to other governments, such as the
governments established during the Japanese occupation.
The jurisdiction of our justice of the peace and municipal courts is
provided in section 68, chapter V, of Act No. 136. The original and
appellate jurisdiction of the Courts of First Instance is provided in
the sections 56, 57, Chapter IV, of Act No. 136. The original and
appellate jurisdiction of the Supreme Court is provided in 17 and
18, Chapter II, of the same Act. The provisions of the above-cited
do not authorize, even implicitly, any of the decisions and
judgements of tribunals of the governments, nor to continue the
processes or proceedings of said tribunals.
NECESSITY OF ENABLING ACT UNDER THE LEGAL DOCTRINE
PREVAILING IN THE PHILIPPINES AND IN THE UNITED STATES
Taking aside the question as to whether the judicial processes of
the government established during the Japanese occupation should
be considered valid or not, in order that said processes could be
continued and the Commonwealth tribunals could exercise proper
jurisdiction to continue them, under the well- established legal
doctrine, prevailing not only in the Philippines, but also in the
proper enabling law.
Almost a half a century ago, in the instructions given by President
McKinley on April 7, 1900, for the guidance of the Philippine
Commission, it was stated that, in all the forms of the govenment
and administrative provisions which they were authorized to
prescribed, the Commission should bear in mind that the
government which they were establishing was designed not for the
satisfaction of the Americans or for the expression of their of their

theoretical views, but for the happiness, peace and prosperity of

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

of First Instance provided by this Act are substituted in place

thereof.
The same procedure has been followed by the Philippine
Commission eventhough the courts of origin of the judicial
processes to be transferred and continued belonged to the same
government and sovereignty of the courts which are empowered to
continue said processes.
So section 78 of Act No. 136, after the repeal of all acts conferring
upon American provost courts in the Philippines jurisdiction over
civil actions, expressly provided that said civil actions shall be
transferred to the newly created tribunals.
And it provided specifically that "the Supreme Court, Courts of the
First Instance and courts of the justice of the peace established by
this Act (No. 136) are authorized to try and determine the actions
so transferred to them respectively from the provost courts, in the
same manner and with the same legal effect as though such
actions had originally been commenced in the courts created" by
virtue of said Act.
MUNICIPAL COURTS UNDER ACT NO. 183
On July 30, 1901, the Philippine Commission enacted the Organic
Act of the City of Manila, No. 183.
Two municipal courts for the city were created by section 40 of said
Act, one for the northern side of Pasig River and the other for the
southern side.
They were courts with criminal jurisdiction or identical cases under
the jurisdiction of the justices of the peace then existing in Manila.
Although both courts were of the same jurisdiction, in order that
the criminal cases belonging to the justice of the peace courts may
be transferred to the municipal courts just created, and the
proceedings may be continued by the same, the Philippine
Commission considered it necessary to pas the proper enabling act.
So on August 5, 1901, it enacted Act No. 186, section 2 of which
provides that all criminal cases and proceedings pending in the
justices of the peace of Manila are transferred to the municipal
courts, which are conferred the jurisdiction to continue said cases
and proceedings.
THE CABANTAG CASE
On August 1, 1901, Narciso Cabantag was convicted of murder by a
military commission. (Cabantag vs. Wolfe, 6 Phil., 273.) The
decision was confirmed on December 10, 1901, and his execution
by hanging was set for January 12,1902. .
On December 26, 1901, he fled, but surrendered to the authorities
on July 18, 1902. The Civil Governor on December 2, 1903,
commuted the death penalty to 20 years imprisonment. The
commutation was approved by the Secretary of War, following
instructions of the President.

Cabantag filed later a writ of habeas corpus on the theory that, with
the abolition of the military commission which convicted him, there
was no existing tribunal which could order the execution of the
penalty of imprisonment.
The Supreme Court denied the writ, but stated that, if the petitioner
had filed the writ before the enactment of Act No. 865, the question
presented to the Supreme Court would have been different.
Act No. 865, enacted on September 3, 1903, is enabling law,
wherein it is provided that decisions rendered by the provost courts
and military commission shall be ordered executed by the Courts of
First Instance in accordance with the procedure outlined in said Act.
It is evident from the foregoing that this Supreme Court has
accepted and confirmed the doctrine of the necessity of an
enabling act in order that our Courts of First Instance could exercise
jurisdiction to execute the decision of the abolished provost courts
and military commission.
It is evident that the doctrine is applicable, with more force, to the
judicial processes coming from governments deriving their
authority from a foreign enemy state.
THE DOCTRINE IN THE UNITED STATES
It is also evident that the Congress of the United States, by
enacting the Bill of the Philippines on July 1, 1902, confirmed also
the same doctrine.
In effect, in section 9 of said Act, the Congress approved what the
Philippine Commission did as to the jurisdiction of the courts
established and transfer of cases and judicial processes, as
provided in Acts Nos. 136, 186, and 865.
The same doctrine was adopted by the United States government
as part of its international policy, as could be seen in Article XII of
the Treaty concluded with Spain on December 10, 1898, in Paris.
Even in 1866 the Congress of the United States followed the same
doctrine.
The suit, shown by the record, was originally instituted in the
District Court of the United States for the District of Louisiana,
where a decree was rendered for the libellant. From the decree an
appeal was taken to the Circuit Court, where the case was pending,
when in 1861, the proceedings of the court were interrupted by the
civil war. Louisiana had become involved in the rebellion, and the
courts and officers of the United States were excluded from its
limits. In 1862, however, the National authority had been partially
reestablished in the State, though still liable to the overthrown by
the vicissitudes of war. The troops of the Union occupied New
Orleans, and held military possession of the city and such other
portions of the State as had submitted to the General Government.
The nature of this occupation and possession was fully explained in
the case of The Vinice.

Whilst it continued, on the 20th of October, 1862, President Lincoln,

by proclamation, instituted a Provisional Court of the State of
Louisiana, with authority, among other powers, to hear, try, and
determine all causes in admiralty. Subsequently, by consent of
parties, this cause was transferred into the Provisional Court thus,
constituted, and was heard, and a decree was again rendered in
favor of the libellants. Upon the restoration of civil authority in the
State, the Provincial Court, limited in duration, according to the
terms of the proclamation, by the event, ceased to exist.
On the 28th of July, 1866, Congress enacted that all suits, causes
and proceedings in the Provisional Court, proper for the jurisdiction
of the Circuit Court of the United States for the Eastern District of
Louisiana, should be transferred to that court, and heard, and
determined therein; and that all judgements, orders, and decrees of
the Provisional Court in causes transferred to the Circuit Court
should at once become the orders, judgements, and decrees of that
court, and might be enforced, pleaded, and proved accordingly.
It is questioned upon these facts whether the establishment by the
President of a Provisional Court was warranted by the Constitution.
xxx
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xxx
We have no doubt that the Provisional Court of Louisiana was
properly established by the President in the exercise of this
constitutional authority during war; or that Congress had power,
upon the close of the war, and the dissolution of the Provisional
Court, to provide for the transfer of cases pending in that court, and
of its judgement and decrees, to the proper courts of the United
States. (U. S. Reports, Wallace, Vol. 9, The Grapeshot, 131-133.)
JUDGEMENTS OF THE REBEL COURTS IN LOUISIANA WERE
VALIDATED BY CONSTITUTIONAL PROVISION
During the civil war in 1861, the prevailing rebel forces established
their own government in Louisiana.
When the rebel forces were overpowered by the Union Forces and
the de facto government was replaced by the de jure government,
to give effect to the judgments and other judicial acts of the rebel
government, from January 26, 1861, up to the date of the adoption
of the State Constitution, a provision to said effect was inserted in
said document.
Section 149 of the Louisiana Constitution reads as follows:
All the rights, actions, prosecutions, claims, contracts, and all laws
in force at the time of the adoption of this Constitution, and not
inconsistent therewith, shall continue as if it had not been adopted;
all judgments and judicial sales, marriages, and executed contracts
made in good faith and in accordance with existing laws in this
State rendered, made, or entered into, between the 26th day of
January, 1861, and the date when this constitution shall be

adopted, are hereby declared to be valid, etc. (U. S. Report,

Wallace, Vol. 22, Mechanics' etc. Bank vs. Union Bank, 281.)
EVEN AMONG SISTERS STATES OF THE UNITED STATES
JUDGEMENTS ARE NOT EXECUTORY
The member states of the United States of America belong to the
same nation, to the country, and are under the same sovereignty.
But judgements rendered in one state are not executory in other
states.
To give them effect in other states it is necessary to initiate an
original judicial proceedings, and therein the defendants in the
domestic suit may plead bar the sister state judgement puis
darrien continuance. (Wharton, on the Conflict of Laws, Vol. II, p.
1411.)
Under the Constitution of the United States, when a judgement of
one state in the Union is offered in a court of a sister state as the
basis of a suit nil debet cannot be pleaded. The only proper plea is
nul tiel record. (Id., p. 1413.).
It is competent for the defendant, however, to an action on a
judgement of a sister state, as to an action on a foreign judgement,
to set up as a defense, want of jurisdiction of the court rendering
the judgement; and, as indicating such want of jurisdiction, to aver
by plea that the defendant was not an inhabitant of the state
rendering the judgement, and had not been served with process,
and did not enter his appearance; or that the attorney was without
authority to appear. (Id., pp. 1414-1415.)
The inevitable consequence is that the courts of the
Commonwealth of the Philippines, in the absence of an enabling act
or of an express legislative grant, have no jurisdiction to take
cognizance and continue the judicial processes, procedures, and
proceedings of the tribunals which were created by the Japanese
Military Administration and functioned under the Vargas Philippine
Executive Commission of the Laurel Republic of the Philippines,
deriving their authority from the Emperor, the absolute ruler of
Japan, the invading enemy, and not from the Filipino people in
whom, according to the Constitution, sovereignty resides, and from
whom all powers of government emanate.
The position of Honorable Asenio P. Dizon, the respondent judge of
the Court of the First Instance of Manila in declaring himself without
jurisdiction nor authority to continue the proceedings which
provoked the present controversy, being a judicial process of a
Japanese sponsored government, is absolutely correct, under the
legal doctrines established by the United States and the Philippine
Government, and consistently, invariably, and without exception,
followed by the same.
If we accept, for the sake of argument, the false hypothesis that the
Commonwealth tribunals have jurisdiction to continue the judicial

processes left pending by the courts of the governments

established under the Japanese regime, the courts which
disappeared and, automatically, ceased to function with the ouster
of the enemy, the position of the Judge Dizon, in declining to
continue the case, is still unassailable, because, for all legal
purposes, it is the same as if the judicial processes in said case
were not taken at all, as inevitable result of the sweeping and
absolute annulment declared by the General MacArthur in the
October Proclamation.
In said proclamation it is declared in unmistakable and definite
terms that "ALL PROCESSES" of the Japanese sponsored
governments "ARE NULL AND VOID AND WITHOUT LEGAL EFFECT",
and they shall remain so until the Commonwealth, through its
legislative power, decides otherwise in a proper validating act.
The fact that the Japanese invaders, under international law, were
in duty bound to establish courts of justice during the occupation,
although they made them completely powerless to safeguard the
constitutional rights of the citizens, and mere figureheads as
regards the fundamental liberties of the helpless men, women and
children of our people, so much so that said courts could not offer
even the semblance of protection when the life, the liberty, the
honor and dignity of our individual citizens were wantonly trampled
by any Japanese, military or civilian, does not change the situation.
"ALL PROCESSES" of said court are declared "NULL AND VOID AND
WITHOUT LEGAL EFFECT" in the October proclamation, and we do
not have any other alternative but to accept the law, as said
proclamation has the full force of a law.
The fact that in the past, the legitimate governments, once
restored in their own territory, condescended in many cases to
recognize and to give effect to judgments rendered by courts under
the governments set up by an invading military occupant or by a
rebel army, does not elevate such condescension to the category of
a principle, when Wheaton declares that no international wrong is
done if the acts of the invader are reversed.
Many irrelevant authorities were cited to us as to the duties
imposed by the international law on military occupants, but no
authority has been cited to the effect that the representative of the
restored legitimate government is a bound to recognize and accept
as valid the acts and processes of said occupants. On the contrary,
Wheaton says that if the occupant's acts are reversed "no
international wrong would be committed."
Following the authority of Wheaton, undisputed by the majority,
General MacArthur thought, as the wisest course, of declaring
"NULL AND VOID AND WITHOUT EFFECT," by official proclamation,
"ALL PROCESSES" under the Japanese regime, that is legislative,

executive and judicial processes, which fall under the absolute

adjective "ALL".
That declaration is a law. It is a law that everybody bound to accept
and respect, as all laws must be accepted and respected. It is a law
that the tribunals are duty bound to give effect and apply.
We are not unmindful of the adverse consequences to some
individuals of the annullment of all the judicial processes under the
Japanese regime, as provided in the October Proclamation, but the
tribunals are not guardians of the legislative authorities, either an
army commander in chief, during war, or a normal legislature, in
peace time. The tribunals are not called upon to guide the
legislative authorities to the wisdom of the laws to be enacted. That
is the legislative responsibility. Our duty and our responsibility is to
see to it that the law, once enacted, be applied and complied with.
No matter the consequences, no matter who might be adversely
affected, a judge must have the firm resolve and the courage to do
his duty, as, in the present case, Judge Dizon did, without fear nor
favor. We cannot see any reason why we should not uphold him in
his stand in upholding the law.
It is our official duty, national and international duty. Yes. Because
this Supreme Court is sitting, not only as a national court, but as an
international court, as is correctly stated in the concurring opinion
of Justice De Joya, and we should feel the full weight of the
corresponding responsibility, as the American courts with admiralty
jurisdiction and the Prize Courts of England did feel. In fact, it is in
the judiciary where, more than in any point of view is more
pressing, more imperative, more unavoidable. Justice has no
country. It is of all countries. The horizon of justice cannot be
limited by the scene where our tribunals are functioning and
moving. That horizon is boundless. That is why in our constitution
the bill of rights has been written not for Filipinos, but for all
persons. They are rights that belong to men, not as Filipinos,
Americans, Russians, Chinese or Malayan, but as a members of
humanity. The international character of our duty to administer
justice has become more specific by the membership of our country
in the United Nations. And let us not forget, as an elemental thing,
that our primary duty is to uphold and apply the law, as it is; that
we must not replace the words of the law with what we might be
inclined to surmise; that what is clearly and definitely provided
should not be substituted with conjectures and suppositions; that
we should not try to deduce a contrary intention to that which is
unequivocally stated in the law; that we should not hold valid what
is conclusively declared null and void.
The October Proclamation declared "ALL PROCESSES" under the
Japanese regime "AND VOID WITHOUT EFFECT", so they must
stand. There is no possible way of evasion. "ALL PROCESSES", in

view of the meaning of the absolute adjective "ALL", include

"JUDICIAL PROCESSES". Allegatio contra factum non est
admittenda.
CONCLUSION
For all the foregoing reasons we conclude:
1. That General MacArthur had full legal authority to issue the
October Proclamation, and that no principle of the international law
is violated by said proclamation, no international wrong being
committed by the reversal by the legitimate government of the
acts of the military invader.
2. That said proclamation was issued in full conformity with the
official policies to which the United States and Philippine
Governments were committed, and the annulment of all the facts
of the governments under the Japanese regime, legislative,
executive, and judicial, is legal, and justified by the wrongs
committed by the Japanese.
3. That when General MacArthur proclaimed and declared in the
October Proclamation "That all laws, regulations and processes" of
the Japanese sponsored governments, during enemy occupation,
"are null and void and without effect", he meant exactly what he
said.
4. That where General MacArthur said "all processes" we must read
and understand precisely and exactly "all processes", and not
"some processes". "All" and "some" have incompatible meanings
and are not interchangeable.
5. That the word "processes" includes judicial procedures,
proceedings, processes, and cases. Therefore, "all processes" must
include "all judicial processes.".
6. That we have no right to attribute General MacArthur an
intention different from what he has plainly, clearly, unmistakably
expressed in unambiguous words with familiar meaning generally
understood by the common man.
7. That the judicial proceedings here in question are included
among those adversely affected by the October Proclamation.
8. That the Commonwealth tribunals have no jurisdiction to take
cognizance of nor to continue the judicial proceedings under the
Japanese regime.
9. That to exercise said jurisdiction an enabling act of the Congress
is necessary.
10. That respondent Judge Dizon did not commit the error
complained of in the petition, and that the petition has no merits at
all.
We refuse to follow the course of action taken by the majority in the
present case. It is a course based on a mistaken conception of the
principles of international law and their interpretation and

application, and on a pinchbeck. It is a course based on

misconstruction or misunderstanding of the October Proclamation,
in utter disregard of the most elemental principles of legal here
meneutics. It is a course that leads to nowhere, except to the brink
of disaster, because it is following the dangerous path of ignoring
or disobeying the law.
Let us not allow ourselves to be deceived. The issue confronting us
is not of passing importance. It is an issue of awesome magnitude
and transcendency. It goes to and reaches the very bottom. It is
simple. Lacking in complexities. But it may shake the very
foundation of society, the cornerstone of the state, the primary
pillar of the nation. It may dry the very foundation of social life, the
source of vitalizing sap that nurtures the body politic. The issue is
between the validity of one or more Japanese regime processes and
the sanctity of the law.
That is the question, reduced to its ultimate terms. it is a simple
dilemma that is facing us. It is the alpha and the omega of the
whole issue. Either the processes, or the law. We have to select
between two, which to uphold. It is a dilemma that does not admit
of middle terms, or of middle ways where we can loiter with happy
unconcern . We are in the cross road: which way shall we follow?
The processes and the law are placed in the opposite ends of the
balance. Shall we inclined the balance of justice to uphold the
processes and defeat law, or vice versa?
We feel jittery because some judicial processes might be rescinded
or annulled, but we do not tremble with sincere alarm at the
thought of putting the law under the axe, of sentencing law to be
executed by the guillotine. We feel uneasy, fancying chaos and
paralyzation of social life, because some litigants in cases during
the Japanese regime will be affected in their private interests, with
the annulment of some judicial processes, but we adopt an attitude
of complete nonchalance in throwing law overboard. This baffling
attitude is a judicial puzzle that nobody will understand. So it is
better that we should shift to a more understandable way, that
which is conformable to the standard that the world expects in
judicial action.
No amount of arguments and lucubration's, no amount of
speculative gymnastics, no amount of juggling of immaterial
principles of international law, no amount of presumptions and
suppositions, surmises and conjectures, no amount of dexterity in
juridical exegesis can divert our attention from the real, simple,
looming, hypostasis of the issue before us: Law. It is Law with all its
majestic grandeur which we are defying and intending to overthrow
from the sacred pedestal where the ages had placed her as a
goddess, to be enshrined, obeyed, and venerated by men, forever.
Let us not dare to lay our profaning hands on her vestal virginity,

lest the oracle should fling at us the thunder of his prophetic

anathema.
We cannot therefore vote except for the denial of the petition.
HILADO, J., dissenting:
I dissent from the opinion of the majority and, pursuant to the
Constitution, proceed to state the reason for my dissent.
The proceeding involved in the case at bar were commenced by a
complaint filed by the instant petitioner, as plaintiff, on November
18, 1944, in civil case No. 3012 of the so-called Court of First
Instance of Manila, the complaint bearing this heading and title:
"The Republic of the Philippines In the Court of First Instance of
Manila" (Annex X of Exhibit A of petition for mandamus). The
farthest that said proceedings had gone before the record was
burned or destroyed during the battle for Manila, was the filing by
counsel for plaintiff therein of their opposition to a motion for
dismissal filed by opposing counsel.
It is, therefore, plain that the case had not been heard on the
merits when the record was burned or destroyed.
The respondent judge, in his order dated June 6, 1945, disposing of
the petition dated May 25, 1945 filed by petitioner, as a plaintiff in
said case, and of the petition filed by respondent Eusebio Valdez
Tan Keh, as defendant therein, on May 31, 19045, held: " first, that
by virtue of the proclamation of General MacArthur quoted above,
all laws, regulations and processes of any other government in the
Philippines than that of the Commonwealth became null and void
and without legal effect in Manila on February 3, 1945 or, at the
lates, on February 27 of the same year; second that the
proceedings and processes had in the present case having been
before a court of the Republic of the Philippines and in accordance
with the laws and regulations of said Republic, the same are now
void and without legal effect; third, that this Court as one of the
different courts of general jurisdiction of the Commonwealth of the
Philippines, has no authority to take cognizance of and continue
said proceedings to final judgement, until and unless the
Government of the Commonwealth of the Philippines, in the
manner and form provided by law, shall have provided for the
transfer of the jurisdiction of the courts of the now defunct Republic
of the Philippines, and the causes commenced and left pending
therein, to the courts created and organized by virtue of the
provisions of Act No. 4007, as revived by Executive Order No. 36, or
for the validation of all proceedings had in said courts."
Petitioner prays that this Court declare that the respondent judge
should not have ordered the suspension of the proceedings in civil
case No. 3012 and should continue and dispose of all the incidents

in said case till its complete termination. In my opinion, the petition

should denied.
In stating the reasons for this dissent, we may divide the
arguments under the following propositions:
1. The proceedings in said civil case No. 3012 are null and void
under General of the Army MacArthur's proclamation of October 23,
1944 (41 Off. Gaz., 147, 148);
2. (a) The government styled as, first, the "Philippine Executive
Commission "and later as the Republic of the Philippines",
established here by the Commander in Chief of the Imperial
Japanese Forces or by his order was not a de-facto government
the so-called Court of First Instance of Manila was not a de facto
court, and the judge who presided it was not a de facto judge; (b)
the rules of International Law regarding the establishment of a de
facto Government in territory belonging to a belligerent but
occupied or controlled by an opposing belligerent are inapplicable
to the governments thus established here by Japan;
3. The courts of those governments were entirely different from our
Commonwealth courts before and after the Japanese occupation;
4. The question boils down to whether the Commonwealth
Government, as now restored, is to be bound by the acts of either
or both of those Japanese-sponsored governments;
5. Even consideration of policy of practical convenience militate
against petitioner's contention.
I
The proceedings in said civil case No. 3012 are null and void under
General of the Army MacArthur's proclamation of October 23, 1944
(41 Off. Gaz., 147, 148).
In this proclamation, after reciting certain now historic facts, among
which was that the so-called government styled as the "Republic of
the Philippines" was established on October 14, 1943 "under
enemy duress, . . . based upon neither the free expression of the
people's will nor the sanction of the Government of the United
States," the great Commander-in-Chief proclaimed and declared:
xxx
xxx
xxx
3. That all laws, regulations and processes of any other government
in the Philippines than that of the said Commonwealth are null and
void and without legal effect in areas of the Philippines free of
enemy occupation and control; and
xxx
xxx
xxx
I do enjoin upon all loyal citizens of the Philippines full respect for
and obedience to the Constitution of the Commonwealth of the
Philippines and the laws, regulations and other acts of their duly
constituted government whose seat is now firmly re-established on
Philippine soil.

The evident meaning and effect of the 3rd paragraph above quoted
is, I think, that as the different areas of the Philippines were
progressively liberated, the declaration of nullity therein contained
shall attach to the laws, regulations and processes thus condemned
in so far as said areas were concerned. Mark that the proclamation
did not provide that such laws, regulations and processes shall be
or are annulled, but that they are null and void. Annulment implies
some degree of the effectiveness in the act annulled previous to
the annulment, but a declaration of nullity denotes that the act is
null and void ab initio the nullity precedes the declaration. The
proclamation speaks in the present tense, not in the future. If so,
the fact that the declaration of nullity as to the condemned laws,
regulations, and processes in areas not yet free from enemy
occupation and control upon the date of the proclamation, would
attach thereto at a later date, is no argument for giving them
validity or effectiveness in the interregnum. By the very terms of
the proclamation itself, that nullity had to date back from the
inception of such laws, regulations and processes; and to dispel any
shadow of doubt which may still remain, we need only consider the
concluding paragraph of the proclamation wherein the Commander
in Chief of the army liberation solemnly enjoined upon all loyal
citizens of the Philippines full respect for and obedience to the
Constitution of the Commonwealth of the Philippines and the laws,
regulations and other acts of their duly constituted government.
This is all-inclusive it comprises not only the loyal citizens in the
liberated areas but also those in areas still under enemy occupation
and control. It will be noticed that the complaint in said civil case
No. 3012 was filed twenty-six days after the above-quoted
proclamations of General of the Army MacArthur. If the parties to
said case were to consider the proceedings therein up to the date
of the liberation of Manila valid and binding, they would hardly be
complying with the severe injunction to render full respect for and
obedience to our Constitution and the laws, regulations and other
acts of our duly constituted government from October 23, 1944,
onwards. Indeed, to my mind, in choosing between these two
courses of action, they would be dangerously standing on the
dividing line between loyalty and disloyalty to this country and its
government.
The proceeding in question, having been had before the liberation
of Manila, were unquestionably "processes" of the Japanesesponsored government in the Philippines within the meaning of the
aforesaid proclamation of General of the Army MacArthur and,
consequently, fall within the condemnation of the proclamation.
Being processes of a branch of a government which had been
established in the hostility to the Commonwealth Government, as
well as the United States Government, they could not very well be

considered by the parties to be valid and binding, at least after

October 23, 1944, without said parties incurring in disobedience
and contempt of the proclamation which enjoins them to render full
respect for the obedience to our Constitution and the laws,
regulations and other acts of our duly constituted government. Nine
days after the inauguration of the so-called "Republic of the
Philippines," President Franklin Delano Roosevelt of the United
States declared in one of his most memorable pronouncements
about the activities of the enemy in the Philippines, as follows:
One of the fourtheenth of this month, a puppet government was set
up in the Philippine Island with Jose P. Laurel, formerly a justice of
the Philippine Supreme Court, as "president." Jorge Vargas, formerly
as a member of the Commonwealth Cabinet, and Benigno Aquino,
also formerly a member of that cabinet, were closely associated
with Laurel in this movement. The first act of the new puppet
regime was to sign a military alliance with Japan. The second act
was a hyphocritical appeal for American sympathy which was made
in fraud and deceit, and was designed to confuse and mislead the
Filipino people.
I wish to make it clear that neither the former collaborationist
"Philippine Executive Commission" nor the present "Philippine
Republic " has the recognition or sympathy of the Government of
the United States. . . .
Our symphaty goes out to those who remain loyal to the United
States and the Commonwealth that great majority of the Filipino
people who have not been deceived by the promises of the enemy.
October 23, 1943.
FRANKLIN DELANO ROOSEVELT
President of the United States
(Form U.S. Naval War College International Law Documents, 1943,
pp. 93, 94.).
It is a fact of contemporary history that while President Manuel L.
Quezon of the Philippines was in Washington, D.C., with his exiled
government, he also repeatedly condemned both the "Philippine
Executive Commission" and the "Philippine Republic," as they had
been established by or under orders of the Commander in Chief of
the Imperial Japanese Forces. With these two heads of the
Governments of the United States and the Commonwealth of the
Philippines condemning the "puppet regime" from its very
inception, it is beyond my comprehension to see how the
proceedings in question could be considered valid and binding
without adopting an attitude incompatible with theirs. As President
Roosevelt said in his above quoted message, "Our symphaty goes
out to those remain loyal to the United States and the
Commonwealth that great majority of the Filipino people who
have not been deceived by the promises of the enemy.

The most that I can concede is that while the Japanese Army of
occupation was in control in the Islands and their paramount
military strength gave those of our people who were within their
reach no other alternative, these had to obey their orders and
decrees, but the only reason for such obedience would be that
paramount military strength and not any intrinsic legal validity in
the enemy's orders and decrees. And once that paramount military
strength disappeared, the reason for the obedience vanished, and
obedience should likewise cease.
As was stated by the Supreme Court of the United States in the
case of Williams vs. Bruffy (96 U.S., 176; 24 Law. ed., 719), "In the
face of an overwhelming force, obedience in such matters may
often be a necessity and, in the interest of order, a duty. No
concession is thus made to the rightfulness of the authority
exercised." (Emphasis ours.) The court there refers to its own
former decision in Thorington vs. Smith, and makes it clear that the
doctrine in the Thorington case, so far as the effects of the acts of
the provisional government maintained by the British in Casetine,
from September, 1814 to the Treaty of Peace in 1815, and the
consideration of Tampico as United States territory, were
concerned, was limited to the period during which the British, in the
first case, retained possession of Castine, and the United States, in
the second, retained possession of Tampico. In referring to the
Confederate Government during the Civil War, as mentioned in the
Thorington case, the court again says in effect that the actual
supremacy of the Confederate Government over a portion of the
territory of the Union was the only reason for holding that its
inhabitants could not but obey its authority. But the court was
careful to limit this to the time when that actual supremacy existed,
when it said: . . . individual resistance to its authority then would
have been futile and, therefore, unjustifiable." (Emphasis ours.)
Because of its pertinence, we beg leave to quote the following
paragraph from that leading decision:
There is nothing in the language used in Thorington vs. Smith
(supra), which conflicts with these views. In that case, the
Confederate Government is characterized as one of paramount
force, and classed among the governments of which the one
maintained by great Britain in Castine, from September 1814, to
the Treaty of Peace in 1815, and the one maintained by the United
States in Tampico, during our War with Mexico, are examples.
Whilst the British retained possession of Castine, the inhabitants
were held to be subject to such laws as the British Government
chose to recognize and impose. Whilst the United States retained
possession of Tampico, it was held that it must regarded and
respected as their territory. The Confederate Government, the court
observed, differed from these temporary governments in the

circumstance that its authority did not justifying acts of hostility to

the United States, "Made obedience to its authority in civil and local
matters not only a necessity, but a duty." All that was meant by this
language was, that as the actual supremancy of the Confederate
Government existed over certain territory, individual resistance to
its authority then would have been futile and, therefore,
unjustifiable. In the face of an overwhelming force, obedience in
such matters may often be a necessity and, in the interest of order,
a duty. No concession is thus made to the rightfulness of the
authority exercised. (Williams vs. Bruffy, 24 Law ed., 719; emphasis
ours.)
The majority opinion, in considering valid the proceedings in
question, invokes the rule that when a belligerent army occupies a
territory belonging to the enemy, the former through its
Commander in Chief, has the power to establish thereon what the
decisions and treaties have variously denominated provisional or
military government, and the majority holds that the Japanesesponsored government in the Philippines was such a government.
Without prejudice to later discussing the effects which the
renunciation of war as an instrument of national policy contained in
our Commonwealth Constitution, as well as in the Briand-Kellog
Pact, must have produced in this rule in so far as the Philippines is
concerned, let us set forth some considerations apropos of this
conclusion of the majority. If the power to establish here such a
provisional government is recognized in the Commander in Chief of
the invasion army, why should we not recognize at least an equal
power in the Commander in Chief of the liberation army to
overthrow that government will all of its acts, at least of those of an
executory nature upon the time of liberation? Considering the
theory maintained by the majority, it would seem that they would
recognize in the Japanese Commander in Chief the power to
overthrow the Commonwealth Government, and all of its acts and
institutions if he had choosen to. Why should at least an equal
power be denied the Commander in Chief of the United States
Army to overthrow the substitute government thus erected by the
enemy with all of its acts and institutions which are still not beyond
retrieve? Hereafter we shall have occasion to discuss the aspects of
this question from the point of view of policy or the practical
convenience of the inhabitants. If the Japanese Commander in
Chief represented sovereignty of Japan, the American Commander
in Chief represented the sovereignty of the United States, as well as
the Government of the Commonwealth. If Japan had won this war,
her paramount military supremacy would have continued to be
exerted upon the Filipino people, and out of sheer physical
compulsion this country would have had to bow to the continuance
of the puppet regime that she had set up here for an indefinite

time. In such a case, we admit that, not because the acts of that
government would then have intrinsically been legal and valid, but
simply because of the paramount military force to which our people
would then have continued to be subjected, they would have had to
recognize as binding and obligatory the acts of the different
departments of that government. But fortunately for the Filipinos
and for the entire civilized world, Japan was defeated. And I now
ask: Now that Japan has been defeated, why should the Filipinos be
still bound to respect or recognize validity in the acts of the
Japanese-sponsored government which has been so severely
condemned by both the heads of the United States and our
Commonwealth Government throughout the duration of the war? If
we were to draw a parallel between that government and that
which was established by the Confederate States during the
American Civil War, we will find that both met with ultimate failure.
And, in my opinion, the conclusion to be drawn should be the same
in both cases.
As held by the United States Supreme Court in Williams vs. Bruffy
(supra), referring to the Confederate Government, its failure carried
with it the dissipation of its pretentions and the breaking down in
pieces of the whole fabric of its government. The Court said among
other things:
The immense power exercised by the government of the
Confederate States for nearly four years, the territory over which it
extended, the vast resources it wielded, and the millions who
acknowledged its authority, present an imposing spectacle well
fitted to mislead the mind in considering the legal character of that
organization. It claimed to represent an independent nation and to
posses sovereign powers; as such to displace to jurisdiction and
authority of the United States from nearly half of their territory and,
instead of their laws, to substitute and enforce those of its own
enactment. Its pretentions being resisted, they were submitted to
the arbitrament of war. In that contest the Confederacy failed; and
in its failure its pretentions were dissipated, its armies scattered,
and the whole fabric of its government broken in pieces. (24 Law,
ed., 719; emphasis ours.)
By analogy, if the Japanese invasion and occupation of the
Philippines had been lawful which, however, is not the case
and if Japan had succeeded in permanently maintaining the
government that she established in the Philippines, which would
have been the case had victory been hers, there would be more
reason for holding the acts of that government valid, but because
Japan has lost the war and, therefore, failed in giving permanence
to that government, the contrary conclusion should legitimately
follow.

The validity of legislation exercised by either contestant "depends

not upon the existence of hostilities but upon the ultimate success
of the party which it is adopted" (emphasis ours). And, referring to
the overthrow of the of the Confederacy, the Court, said, "when its
military forces were overthrown, it utterly perished, and with it all
its enactments" (emphasis ours)
The majority cite on page 9-10 of their opinion a passage from the
same case of Williams vs. Bruffy, supra, which is a mere obiter
dictum. The majority opinion says that in this passage the Court
was "discussing the validity of the acts of the Confederate States."
In the first place, an examination of the decision will reveal that the
controversy dealt with an act of the Confederate Government, not
of the Confederate States individually; and in the second place, the
quoted passage refers to something which was not in issue in the
case, namely, the acts of the individual States composing the
Confederacy. But even this passage clearly places the case at bar
apart from the Court's pronouncement therein. The quoted passage
commences by stating that "The same general form of government
the same general laws for the administration of justice and the
protection of private rights, which has existed in the States prior to
the rebellion, remanded during (its) continuance and afterwards.
"In the case at bar, the same general form of the Commonwealth
Government did not continue under the Japanese, for the simple
reason that one of the first acts of the invaders was to overthrow
the Commonwealth Constitution and, therefore, the constitutional
government which existed thereunder, as an effect of the following
acts and decrees of the Commander in Chief of the Imperial
Japanese Forces:
1. Order No. 3, dated February 20, 1942 of the Commander in Chief
of the Imperial Japanese Forces to the Chairman of the Philippine
Executive Commission directed that, in the exercise of legislative,
executive and judicial powers in the Philippines, the "activities" of
the "administrative organs and judicial courts in the Philippines
shall be based upon the existing status, order, ordinances and the
Commonwealth Constitution (1 Official Journal of the Japanese
Military Administration, page 34). Under the frame of government
existing in this Commonwealth upon the date of the Japanese
invasion, the Constitution was the very fountain-head of the validity
and effects of all the "status, orders, and ordinances" mentioned by
the Japanese Commander in Chief, and in overthrowing the
Constitution he, in effect, overthrew all of them.
2. Instruction No. 6 of the Japanese Military Administration (Vol. 1,
usages 36 et seq., Official Gazette, edited at the Office of the
Executive Commission) gave the "Detailed Instruction Based on
Guiding Principle of the Administration," and among other things
required "The entire personnel shall be required to pledge their

loyalty to the Imperial Japanese Forces. . . ." (This, of course, was

repugnant to the frame of government existing here under the
Commonwealth Constitution upon the date of invasion.)
3. Proclamation dated January 3, 19452 of the Japanese
Commander in Chief provided in paragraph 3 that "The Authorities
and the People of the Commonwealth should sever their relations
with the U.S. o . . ." (This is, likewise, repugnant to the
Commonwealth Constitution and the to the Government of that
Commonwealth Constitution and to the Government of that
Commonwealth which was expressly made subject to the supreme
sovereignty of the United States until complete independence is
granted, not by the mere will of the United States, but by virtue of
an agreement between that Government and ours, under the
Tydings-McDuffie Act.)
The individual States of the Confederate and their governments
existed prior to the Civil War and had received the sanction and
recognition of the Union Government, for which the Federal
Supreme Court was speaking in the Williams-Bruffy case; while the
Japanese-sponsored governments of the "Philippine Executive
Commission" and the Republic of the Philippines" neither existed
here before the war nor had received the recognition or sanction of
either the United States or the Commonwealth Government nay,
they had received the most vigorous condemnation of both.
The Court further says in Williams vs. Bruffy (supra):
No case has been cited in argument, and we think unsuccesfully
attempting to establish a separate revolutionary government have
been sustained as a matter of legal right. As justly observed by the
late Chief Justice in the case of Shortridge vs. Macon, I Abb. U.S.,
58, decided at the circuit, and, in all material respects like the one
at bar, "Those who engage in rebellion must consider the
consequences. If they succeed, rebellion becomes revolution, and
the new government will justify is founders. If they fail, all their acts
hostile to the rightful government are violations of law, and
originate no rights which can be recognized by the courts of the
nation whose authority and existence have been alike assailed.
S.C., Chase, Dec., 136. (Williams vs. Bruffy, 96 U.S., 176; 24 Law.
ed., 716, 718.) (Emphasis ours.)
I am of opinion that the principles thus enunciated for the case of
an unsuccessful rebellion should be applied with greater force to
the case of a belligerent who loss the war. And since the founding
of the Japanese-sponsored government in the Philippines was
designed to supplant and did actually supplant the rightful
government and since all its acts could not but a hostile to the
latter (however blameless the officials who acted under enemy
duress might be), and since Japan failed, all said acts, particularly
those of the Japanese-sponsored court in said civil case No. 3012,

"are violations of law, and originate no rights which can be

recognized by the courts of the nation whose authority and
existence have been alike assailed", quoting the language of the
court in Shortridge vs. Macon, cited by Mr. Justice Field in Williams
vs. Bruffy, supra (24 Law. ed., 718).
II
(a) The government styled as, first, the "Philippine Executive
Commission" and later as the Republic of the Philippines",
established here by the Commander in Chief of the Imperial
Japanese Forces or by the his order was not a de facto
government--the so-called Court of First Instance of Manila was not
a de facto court and the who presided it was not a de facto judge;
(b) The rules of International Law regarding the establishment of a
de facto government in territory belonging to a belligerent but
occupied or controlled by an opposing belligerent are inapplicable
to the governments thus established here by Japan.
Under the doctrine of Williams vs. Bruffy, supra, and the pertinent
cases therein cited, the short-lived provisional government thus
established by the Japanese in the Philippines should be classified,
at best, as a government of paramount force. But this is not all. The
Constitution of this Commonwealth which has been expressly
approved by the United States Government, in Article II, section 3,
under the heading "Declaration of Principles", renounces war as an
instrument of national policy. This renunciation of war as an
instruments of national policy follows an equal renunciation in the
Briand-Kellog Pact. The rules of International Law , cited in support
of the power or right of a belligerent army of occupation to set up a
provisional government on occupied enemy territory, were evolved
prior to the first World War, but the horrors and devastations of that
war convinced, at least the governments of the United States and
France, that they should thereafter renounce war as an instrument
of national policy, and they consequently subscribed the BriandKellog Pact. Those horrors and devastations were increased a
hundred fold, if not more, in this second World War, but even before
this war occurred, our own people, through our Constitutional
delegates, who framed the Commonwealth Constitution also
adopted the same doctrine, and embodied an express renunciation
of war as an instrument of national policy in the instrument that
they drafted. It is true that in section 3, Article II, above-cited, our
Constitution adopts the generally accepted principles of
International Law as a part of the law of the Nation. But, of course,
this adoption is exclusive of those principles of International Law
which might involve recognition of war as an instrument of national
policy. It is plain that on the side of the Allies, the present war is
purely defensive. When Japan started said war, treacherously and
without previous declaration, and attacked Pearl Harbor and the

Philippines on those two fateful days of December 7 and 8, 1941,

she employed war as an instrument of the national policy. Under
the Briand-Kellog Pact and our Commonwealth Constitution, the
United States and the Commonwealth Government could not
possibly have recognized in Japan any right, as against them, to
employ that war as an instrument of her national policy, and,
consequently, they could not have recognized in Japan power to set
up in the Philippines the puppet government that she later set up,
because such power would be a mere incident or consequence of
the war itself. The authorities agree that such a power, under the
cited rules, is said to a right derived from war. (67 C.J., p. 421, sec.
171.) There can be no question that the United States and the
Commonwealth Governments were free to refuse to be bound by
those rules when they made their respective renunciations above
referred to. Indeed, all the United Nations have exercised this free
right in their Charter recently signed at San Francisco.
As necessary consequence of this, those rules of International Law
were no longer applicable to the Philippines and to the United
States at the time of the Japanese invasion as a corollary, it follows
that we have no legal foundation on which to base the proposition
that the acts of that Japanese-sponsored government in the
Philippines were valid and binding. Moreover, I am of opinion, that
although at the time of the Japanese invasion and up to the
present, the United States retains over the Philippines, a certain
measure of sovereignty, it is only for certain specified purposes
enumerated in the Tydings-McDufie Act of the Commonwealth
Constitution. (Ordinance appended to the Constitution.) And our
territory was at the time of the Japanese invasion not a territory of
the United States, within the meaning of the laws of war governing
war-like operations on enemy territory. Our territory is significantly
called "The National Territory" in Article I of our Constitution and
this bears the stamps of express approval of the United States
Government. The Philippines has been recognized and admitted as
a member of the United Nations. We, therefore, had our own
national and territorial identity previous to that invasion. Our nation
was not at war with the Filipinos. And line with this, the Japanese
army, in time, released Filipino war prisoners captured in Bataan.
Lt. Gen. Maeda, Chief of Staff, Imperial Japanese Forces, in his
speech of January 2, 1942, said:
. . . we had not the slighest intensions to make your people our
enemy; rather we considered them as our friends who will join us
has hand-in-hand in the establishment of an orderly Greater East
Asia. . . ., (Official Gazette, edited at the Office of the Executive
Commission, Vol. I, p. 55.)

If the Philippines was a neutral territory when invaded by the

Japanese, the following principles from Lawrence, International Law
(7th ed.), p. 603, are pertinent:
The Duties of Belligerent States Towards Neutral States. . . . To
refrain from carrying on hostilities within neutral territory. We
have already seen that, though this obligation was recognized in
theory during the infancy of International law, it was often very
imperfectly observed in practice. But in modern times it has been
strickly enforced, and any State which knowingly ordered warlike
operations to be carried on in neutral territory . . . would bring
down upon itself the reprobation of civilized mankind. Hostilities
may be carried on in the territory of either belligerent, on the high
seas, and in territory belonging to no one. Neutral land and neutral
territorial waters are sacred. No acts of warfare may lawfully take
place within them. . . . (Emphasis ours.)
In all the cases and authorities supporting the power or right to set
up a provisional government, the belligerent had the right to invade
or occupy the territory in the first instance. Such was not the case
with the Philippines. President Roosevelt, in his message to the
Filipino people, soon after the landing of American Forces in Leyte,
on October 20, 1944, characterized Japan's invasion and
occupation of the Philippines as "the barbarous, unprovoked and
treacherous attack upon the Philippines," and he announced the
American people's "firm determination to punish the guilty." (41
Off. Gaz., 149.) (Emphasis ours.) The illustrious leader of the United
Nations could not have in more unmistakable terms the utter
illegality of that invasion and occupation. If the establishment of a
provinsional government in occupied territory by a belligerent is "a
mere application or extension of the force by which the invasion or
occupation was effected" (67 C.J., p. 421, sec 171), the illegality of
the invasion, would necessarily permeate the government, which
was its mere application or extention.
The fact that shortly before December 8, 1941, the date of the
"barbarous, unprovoked and treacherous attack," the meager and
almost untrained forces of the Philippine Army had been inducted
into the American Army, did not change the neutral status of the
Philippines. That military measure had been adopted for purely
defensive purposes. Nothing could be farther from the minds of the
government and military leaders of the United States and the
Philippines in adopting it than to embark upon any aggressive or
warlike enterprise against any other nation. It is an old and honored
rule dating as far back as the 18th century that even solemn
promises of assistance made before the war by a neutral to a
nation which later becomes a belligerent, would not change the
status of the neutral even if such promises were carried out, so
long as they were made for purely defensive purposes. In the words

of Vattel "when a sovereign furnishes the succor due in virtue of a

former defensive alliance, he does not associate himself in the war.
Therefore he may fulfill his engagements and yet preserve an exact
neutrality." (Lawrence, Principles of International Law [7th ed.], pp.
585, 586.)
If the Filipinos had, from contemptible cowardice and fear, allowed
their shores to be invaded, and their territory occupied by the
Japanese without resistance, such invasion occupation would
undoubtedly have been considered in violation of International Law.
Should the Filipinos be punished for having had the patriotism,
bravery, and heroism to fight in defense of the sacredness of their
land, the sanctity of their homes, and the honor and dignity of their
government by giving validity, in whatever limited measure, to the
lawless acts of the ruthless enemy who thus overran their country,
and robbed them of the tranquility and happiness of their daily
lives? And yet, to my mind, to give any measure of validity or
binding effect to the proceedings of the Japanese-sponsored Court
of First Instance of Manila, involved herein, would be to give that
much validity or effect to the acts of those same invaders. To
equalize the consequences of a lawful and a wrongful invasion of
occupation, would be to equalize right and wrong, uphold the creed
that might makes right, and adopt "the law of the jungle."
If said Japanese-sponsored government was not a de facto
government, it would seem clearly to follow that its "Court of First
Instance of Manila" was not a de facto court. But it should
additionally be stated that for it be a de facto court, its judge had to
be a de facto judge, which he could not be, as presently
demonstrated.
As said by President Osmea, in replying to the speech of General
of the Army MacArthur when the latter turned over to him the full
powers and responsibilities of the Commonwealth Government, on
February 27, 1945:
xxx
xxx
xxx
The time has come when the world should know that when our
forces surrendered in Bataan and Corregidor, resistance to the
enemy was taken up by the people itself resistance which was
inarticulate and disorganized in its inception but which grew from
the day to day and from island until it broke out into an open
warfare against the enemy.
The fight against the enemy was truly a people's war because it
counted with the wholehearted support of the masses. From the
humble peasant to the barrio school teacher, from the volunteer
guard to the women's auxilliary service units, from the loyal local
official to the barrio folk each and every one of those contributed
his share in the great crusade for liberation.

The guerrillas knew that without the support of the civilian

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

courts." (Vol. 1, p. 7, Official Journal of the Japanese Military

Administration, cited on pp. 2, 3, of the order of the respondent
judge complained of and marked Exhibit H of the petition for
mandamus.) How can our present courts legitimately recognize any
efficacy in the proceedings of such an exotic judicial system,
wherein the Commander in Chief of the Imperial Japanese Forces
possessed the highest judicial jurisdiction?
III
The courts of those governments were entirely different from our
Commonwealth courts before and after the Japanese occupation.
Executive Order No. 36 of the President of the Philippines, dated
March 10, 1945, in its very first paragraph, states the prime
concern of the government "to re-establish the courts as fast as
provinces are liberated from the Japanese occupation." If the courts
under the Japanese-sponsored government of the "Republic of the
Philippines" were the same Commonwealth courts that existed here
under the Constitution at the time of the Japanese invasion,
President Osmea would not be speaking of re-establishing those
courts in his aforesaid Executive Order. For soothe, how could those
courts under the "Republic of the Philippines" be the courts of the
Commonwealth of the Philippines when they were not functioning
under the Constitution of the Commonwealth and the laws enacted
in pursuance of said Constitution? The jurisdiction of the
Commonwealth courts was defined and conferred under the
Commonwealth Constitution and the pertinent legislation enacted
thereunder, that of the Japanese-sponsored courts was defined and
conferred by the orders and decrees of the Japanese Commander in
Chief, and, perhaps, the decrees of the "Philippine Executive
Commission" and the laws of the so-called Legislature under the
Republic, which was not composed of the elected representatives of
the people. The Justices and Judges of the Commonwealth courts
had to be appointed by the President of the Commonwealth with
confirmation by the Commission on Appointments, pursuant to the
Commonwealth Constitution. The Chief Justice of the Supreme
Court, under the "Philippine Executive Commission" was appointed
by the Commander in Chief of the Imperial Japanese Forces, and
the Associate Justices of the Supreme Court, the Presiding Justice
and Associate Justices of the Court of Appeals, the Judges of first
Instance and of all inferior courts were appointed by the Chairman
of the Executive Commission, at first, and later, by the President of
the Republic, of course, without confirmation by the Commission on
Appointments under the Commonwealth Constitution. The Chief
Justice and Associate Justices of the Supreme Court, the President
and Associate Justices of the Court of Appeals, and the Judges of
First Instance and of all inferior courts in the Commonwealth
judicial system, had to swear to support and defend the

Commonwealth Constitution, while this was impossible under the

Japanese-sponsored government. In the Commonwealth judicial
system, if a Justice or Judge should die or incapacitated to continue
in the discharge of his official duties, his successor was appointed
by the Commonwealth President with confirmation by the
Commission on Appointments, and said successor had to swear to
support and defend the Commonwealth Constitution; in the exotic
judicial system implanted here by the Japanese, if a Justice or Judge
should die or incapacitated, his successor would be appointed by
the Japanese Commander in Chief, if the dead or incapacitated
incumbent should be the Chief Justice of the Supreme Court, or
otherwise, by the Chairman of the "Executive Commission" or the
President of the "Republic", of course without confirmation by the
Commission on Appointments of the Commonwealth Congress, and,
of course, without the successor swearing to support and defend
the Commonwealth Constitution.
If, as we believe having conclusively shown, the Japanesesponsored courts were not the same Commonwealth courts, the
conclusion is unavoidable that any jurisdiction possessed by the
former and any cases left pending therein, were not and could not
be automatically transfered to the Commonwealth courts which we
re-established under Executive Order No. 36. For the purpose, a
special legislation was necessary.
Executive Order No. 37, in my humble opinion, does not, as held by
the majority, imply that the President recognized as valid the
proceedings in all cases appealed to the Court of Appeals. Section 2
of that order simply provides that all cases which have been duly
appealed to the Court of Appeals shall be transmitted to the
Supreme Court for final decision. The adverb "duly" would indicate
that the President foresaw the possibility of appeals not having
been duly taken. All cases appealed to the Court of Appeals before
the war and the otherwise duly appealed, would come under the
phrase "duly appealed" in this section of the Executive Order. But
considering the determined and firm attitude of the Commonwealth
Government towards those Japanese-sponsored governments since
the beginning, it would seem inconceivable that the President
Osmea, in section 2 of Executive Order No. 37, intended to include
therein appeals taken to the Japanese-sponsored Court of Appeals,
or from the Japanese-sponsored inferior courts. It should be
remembered that in the Executive Order immediately preceeding
and issued on the same date, the President speaks of reestablishing the courts as fast as provinces were liberated from the
Japanese occupation.
IV

The question boils down to whether the Commonwealth

Government, as now restored, is to be bound by the acts of either
or both of those Japanese-sponsored governments.
In the last analysis, in deciding the question of validity or nullity of
the proceedings involved herein, we are confronted with the
necessity to decide whether the Court of first Instance of Manila
and this Supreme Court, as re-established under the
Commonwealth Constitution, and the entire Commonwealth
Government, are to be bound by the acts of the said Japanesesponsored court and government. To propound this question is, to
my mind, to answer it most decidedly in the negative, not only
upon the ground of the legal principles but also for the reasons of
national dignity and international decency. To answer the question
in the affirmative would be nothing short for legalizing the Japanese
invasion and occupation of the Philippines. Indeed, it would be
virtual submission to the dictation of an invader our people's just
hatred of whom gave rise to the epic Philippine resistance
movement, which has won the admiration of the entire civilized
world.
V
Even considerations of policy or practical convenience militate
against petitioner's contention.
In this connection, the respondent judge, in his order of June 6,
1945, complained of, has the following to say:
It is contended, however, that the judicial system implanted by the
Philippine Executive Commission and the Republic was the same as
that of the Commonwealth prior to Japanese occupation; that the
laws administered and enforced by said courts during the existence
of said regime were the same laws on the statute books of
Commonwealth before Japanese occupation, and that even the
judges who presided them were, in many instances, the same
persons who held the position prior to the Japanese occupation. All
this may be true, but other facts are just as stubborn and pitiless.
One of them is that said courts were of a government alien to the
Commonwealth Government. The laws they enforced were, true
enough, laws of the Commonwealth prior to Japanese occupation,
but they had become the laws and the Courts had become the
institutions-of Japan by adoption (U.S. vs. Reiter, 27 F. Case No.
16,146), as they became later on the laws and institution of the
Philippine Executive Commission and the Republic of the
Philippines. No amount of argument or legal fiction can obliterate
this fact.
Besides, I am of the opinion that the validity of the acts of the
courts in the "judicial system implanted by the Philippine Executive
Commission and the Republic "would not depend upon the laws
that they "administered and enforced", but upon the authority by

virtue of which they acted. If the members of this Court were to

decide the instant case in strict accordance with the Constitution
and the laws of the Commonwealth but not by the authority that
they possess in their official capacity as the Supreme Court of the
Philippines, but merely as lawyers, their decision would surely be
null and void. And yet, I am firmly of opinion that whoever was the
"judge" of the Japanese sponsored Court of First Instance of Manila
who presided over the said court when the proceedings and
processes in the dispute were had, in acting by virtue of the
supposed authority which he was supposed to have received from
that government, did so with no more legal power than if he had
acted as a mere lawyer applying the same laws to the case. If
duplication of work or effort, or even if confussion, should be
alleged to possibly arise from a declaration of nullity or judicial
proceedings had before those Japanese-sponsored courts, it should
suffice to answer that the party so complaining in voluntarily
resorting to such courts should be prepared to assume the
consequences of his voluntary act. On the other hand, his
convenience should not be allowed to visit upon the majority of the
inhabitants of this country, the dire consequences of a sweeping
and wholesale validation of judicial proceedings in those courts. Let
us set forth a few considerations apropos of this assertion. It is a
fact of general knowledge that during the Japanese occupation of
the Philippines, the overwhelming majority of our people and other
resident inhabitants were literally afraid to go any place where
there were Japanese sentries, soldiers or even civilians, and that
these sentries were posted at the entrance into cities and towns
and at government offices; that the feared Japanese "M. P.'s" or
Kempeitai's" were a constant terror to them; and lastly, that the
greater number who lived or had evacuated to places for from the
Japanese, were found precisely in the cities and towns where the
courts were located; and as a consequence, the great majority of
the people were very strongly adverse to traveling any
considerable distance from their homes and were, one might say, in
constant hiding. Add to these circumstances, the fact of the
practical absence of transportation facilities and the no less
important fact of the economic structure having been so dislocated
as to have impoverished the many in exchange for the enrichment
of the few and we shall have a fair picture of the practical
difficulties which the ordinary litigant would in those days have
encountered in defending his rights against anyone of the favored
few who would bring him to court. It should be easy to realize how
hard it was for instances, to procure the attendance of witnesses,
principally because of the fact that most of them were in hiding or,
at least, afraid to enter the cities and towns, and also because of
then generally difficult and abnormal conditions prevailing. Under

such conditions, cases or denial of a party's day in court expected.

Such denial might arise from many a cause. It might be party's fear
to appear before the court because in doing so, he would have had
to get near the feared Japanese. It might be because he did not
recognize any legal authority in that court, or it might be his downright repugnance of the hated enemy. And I dare say that among
such people would be found more than seventeen million Filipinos.
These are but a few of countless cause. So that if some form of
validation of such judicial proceedings were to be attempted, all
necessary safeguards should be provided to avoid that in any
particular case the validation should violate any litigant's
constitutional right to his day in court, within the full meaning of
the phrase, or any other constitutional or statutory right of his.
More people, I am afraid, would be prejudiced than would be
benefited by a wholesale validation of said proceedings.
Much concern has been shown for the possible confusion which
might result from a decision declaring null and void the acts
processes of the Japanese-sponsored governments in the
Philippines. I think, this aspect of the question has been unduly
stressed. The situation is not without remedy, but the remedy lies
with the legislature and not with the courts. As the courts cannot
create a new or special jurisdiction for themselves, which is a
legislative function, and as the situation demands such new or
special jurisdiction, let the legislature act in the premises. For
instance, the Congress may enact a law conferring a special
jurisdiction upon the courts of its selection, whereby said courts
may, after hearing all the parties interested, and taking all the
necessary safeguards, so that, a party's day in court or other
constitutional or statutory right under the Commonwealth
Government should not be prejudiced by any of said acts,
processes or proceedings, particullarly, those in Japanesesponsored courts, and subject to such other conditions as the
special law may provide, validate the corresponding acts, processes
or proceedings. This, to my mind, would be more conducive to a
maximum of benefit and a minimum of prejudice to the inhabitants
of this country, rather than the procedure favored by the majority.
Finally, let us not equalize the conditions then prevailing in Manila
to that prevailing in the provinces, where the greater number of the
people where then living outside the towns, in the farms and the
hills. These people constitute the great majority of the eighteen
million Filipinos. To them the semblance of an administration of
justice which Japanese allowed, was practically unknown. But they
constituted the majority of loyal citizens to whom President
Roosevelt's message of October 23, 1943 refers. They the
majority of our people had an unshaken faith in the arrival of
American aid here and the final triumph of the Allied cause. They

were willing to wait for the restoration of their rightful government,

with its courts and other institutions, for the settlement of their
differences. May in their common hardship and sufferings under
yoke of foreign oppression, they had not much time to think of such
differences, if they did not utterly forget them. Their undoubted
hatred of the invader was enough to keep them away from the
judicial system that said invader allowed to have. Those who
voluntarily went to the courts in those tragic days belong to the
small minority.
As to the public order why! any public order which then existed
was not due to the courts or other departments of the puppet
government. It was maintained at the point of the bayonet by the
Japanese army, and in their own unique fashion.
Footnotes
1
Resolution on motion for reconsideration, see p. 371, post.

EN BANC
[G.R. No. 94723. August 21, 1997]
KAREN E. SALVACION, minor, thru Federico N. Salvacion, Jr.,
father and Natural Guardian, and Spouses FEDERICO N.
SALVACION, JR., and EVELINA E. SALVACION, petitioners, vs.
CENTRAL BANK OF THE PHILIPPINES, CHINA BANKING
CORPORATION and GREG BARTELLI y NORTHCOTT,
respondents.
DECISION
TORRES, JR., J.:
In our predisposition to discover the original intent of a statute,
courts become the unfeeling pillars of the status quo. Little do we
realize that statutes or even constitutions are bundles of
compromises thrown our way by their framers. Unless we exercise
vigilance, the statute may already be out of tune and irrelevant to
our day.
The petition is for declaratory relief. It prays for the following
reliefs:
a.) Immediately upon the filing of this petition, an Order be issued
restraining the respondents from applying and enforcing Section
113 of Central Bank Circular No. 960;
b.) After hearing, judgment be rendered:

1.) Declaring the respective rights and duties of petitioners and

respondents;
2.) Adjudging Section 113 of Central Bank Circular No. 960 as
contrary to the provision of the Constitution, hence void; because
its provision that Foreign currency deposits shall be exempt from
attachment, garnishment, or any other order to process of any
court, legislative body, government agency or any administrative
body whatsoever
i.) has taken away the right of petitioners to have the bank deposit
of defendant Greg Bartelli y Northcott garnished to satisfy the
judgment rendered in petitioners favor in violation of substantive
due process guaranteed by the Constitution;
ii.) has given foreign currency depositors an undue favor or a class
privilege in violation of the equal protection clause of the
Constitution;
iii.) has provided a safe haven for criminals like the herein
respondent Greg Bartelli y Northcott since criminals could escape
civil liability for their wrongful acts by merely converting their
money to a foreign currency and depositing it in a foreign currency
deposit account with an authorized bank.
The antecedents facts:
On February 4, 1989, Greg Bartelli y Northcott, an American tourist,
coaxed and lured petitioner Karen Salvacion, then 12 years old to
go with him to his apartment. Therein, Greg Bartelli detained Karen
Salvacion for four days, or up to February 7, 1989 and was able to
rape the child once on February 4, and three times each day on
February 5, 6, and 7, 1989. On February 7, 1989, after policemen
and people living nearby, rescued Karen, Greg Bartelli was arrested
and detained at the Makati Municipal Jail. The policemen recovered
from Bartelli the following items: 1.) Dollar Check No. 368, Control
No. 021000678-1166111303, US 3,903.20; 2.) COCOBANK Bank
Book No. 104-108758-8 (Peso Acct.); 3.) Dollar Account China
Banking Corp., US $/A#54105028-2; 4.) ID-122-30-8877; 5.)
Philippine Money (P234.00) cash; 6.) Door Keys 6 pieces; 7.) Stuffed
Doll (Teddy Bear) used in seducing the complainant.
On February 16, 1989, Makati Investigating Fiscal Edwin G.
Condaya filed against Greg Bartelli, Criminal Case No. 801 for
Serious Illegal Detention and Criminal Cases Nos. 802, 803, 804,
and 805 for four (4) counts of Rape. On the same day, petitioners
filed with the Regional Trial Court of Makati Civil Case No. 89-3214
for damages with preliminary attachment against Greg Bartelli. On
February 24, 1989, the day there was a scheduled hearing for
Bartellis petition for bail the latter escaped from jail.
On February 28, 1989, the court granted the fiscals Urgent Ex-Parte
Motion for the Issuance of Warrant of Arrest and Hold Departure
Order. Pending the arrest of the accused Greg Bartelli y Northcott,

the criminal cases were archived in an Order dated February 28,

1989.
Meanwhile, in Civil Case No. 89-3214, the Judge issued an Order
dated February 22, 1989 granting the application of herein
petitioners, for the issuance of the writ of preliminary attachment.
After petitioners gave Bond No. JCL (4) 1981 by FGU Insurance
Corporation in the amount P100,000.00, a Writ of Preliminary
Attachment was issued by the trial court on February 28, 1989.
On March 1, 1989, the Deputy Sheriff of Makati served a Notice of
Garnishment on China Banking Corporation. In a letter dated March
13, 1989 to the Deputy Sheriff of Makati, China Banking
Corporation invoked Republic Act No. 1405 as its answer to the
notice of garnishment served on it. On March 15, 1989, Deputy
Sheriff of Makati Armando de Guzman sent his reply to China
Banking Corporation saying that the garnishment did not violate
the secrecy of bank deposits since the disclosure is merely
incidental to a garnishment properly and legally made by virtue of
a court order which has placed the subject deposits in custodia
legis. In answer to this letter of the Deputy Sheriff of Makati, China
Banking Corporation, in a letter dated March 20, 1989, invoked
Section 113 of Central Bank Circular No. 960 to the effect that the
dollar deposits of defendant Greg Bartelli are exempt from
attachment, garnishment, or any other order or process of any
court, legislative body, government agency or any administrative
body, whatsoever.
This prompted the counsel for petitioners to make an inquiry with
the Central Bank in a letter dated April 25, 1989 on whether
Section 113 of CB Circular No. 960 has any exception or whether
said section has been repealed or amended since said section has
rendered nugatory the substantive right of the plaintiff to have the
claim sought to be enforced by the civil action secured by way of
the writ of preliminary attachment as granted to the plaintiff under
Rule 57 of the Revised Rules of Court. The Central Bank responded
as follows:
May 26, 1989
Ms. Erlinda S. Carolino
12 Pres. Osmea Avenue
South Admiral Village
Paranaque, Metro Manila
Dear Ms. Carolino:
This is in reply to your letter dated April 25, 1989 regarding your
inquiry on Section 113, CB Circular No. 960 (1983).
The cited provision is absolute in application. It does not admit of
any exception, nor has the same been repealed nor amended.
The purpose of the law is to encourage dollar accounts within the
countrys banking system which would help in the development of

the economy. There is no intention to render futile the basic rights

of a person as was suggested in your subject letter. The law may be
harsh as some perceive it, but it is still the law. Compliance is,
therefore, enjoined.
Very truly yours,
(SGD) AGAPITO S. FAJARDO
Director
Meanwhile, on April 10, 1989, the trial court granted petitioners
motion for leave to serve summons by publication in the Civil Case
No. 89-3214 entitled Karen Salvacion. et al. vs. Greg Bartelli y
Northcott. Summons with the complaint was published in the
Manila Times once a week for three consecutive weeks. Greg
Bartelli failed to file his answer to the complaint and was declared
in default on August 7, 1989. After hearing the case ex-parte, the
court rendered judgment in favor of petitioners on March 29, 1990,
the dispositive portion of which reads:
WHEREFORE, judgment is hereby rendered in favor of plaintiffs and
against defendant, ordering the latter:
1. To pay plaintiff Karen E. Salvacion the amount of P500,000.00 as
moral damages;
2. To pay her parents, plaintiffs spouses Federico N. Salvacion, Jr.,
and Evelina E. Salvacion the amount of P150,000.00 each or a total
of P300,000.00 for both of them;
3. To pay plaintiffs exemplary damages of P100,000.00; and
4. To pay attorneys fees in an amount equivalent to 25% of the
total amount of damages herein awarded;
5. To pay litigation expenses of P10,000.00; plus
6. Costs of the suit.
SO ORDERED.
The heinous acts of respondents Greg Bartelli which gave rise to
the award were related in graphic detail by the trial court in its
decision as follows:
The defendant in this case was originally detained in the municipal
jail of Makati but was able to escape therefrom on February 24,
1989 as per report of the Jail Warden of Makati to the Presiding
Judge, Honorable Manuel M. Cosico of the Regional Trial Court of
Makati, Branch 136, where he was charged with four counts of Rape
and Serious Illegal Detention (Crim. Cases Nos. 802 to 805).
Accordingly, upon motion of plaintiffs, through counsel, summons
was served upon defendant by publication in the Manila Times, a
newspaper of general circulation as attested by the Advertising
Manager of the Metro Media Times, Inc., the publisher of the said
newspaper. Defendant, however, failed to file his answer to the
complaint despite the lapse of the period of sixty (60) days from
the last publication; hence, upon motion of the plaintiffs through

counsel, defendant was declared in default and plaintiffs were

authorized to present their evidence ex parte.
In support of the complaint, plaintiffs presented as witness the
minor Karen E. Salvacion, her father, Federico N. Salacion, Jr., a
certain Joseph Aguilar and a certain Liberato Mandulio, who gave
the following testimony:
Karen took her first year high school in St. Marys Academy in Pasay
City but has recently transferred to Arellano University for her
second year.
In the afternoon of February 4, 1989, Karen was at the Plaza Fair
Makati Cinema Square, with her friend Edna Tangile whiling away
her free time. At about 3:30 p.m. while she was finishing her snack
on a concrete bench in front of Plaza Fair, an American approached
her. She was then alone because Edna Tangile had already left, and
she was about to go home. (TSN, Aug. 15, 1989, pp. 2 to 5)
The American asked her name and introduced himself as Greg
Bartelli. He sat beside her when he talked to her. He said he was a
Math teacher and told her that he has a sister who is a nurse in
New York. His sister allegedly has a daughter who is about Karens
age and who was with him in his house along Kalayaan Avenue.
(TSN, Aug. 15, 1989, pp. 4-5).
The American asked Karen what was her favorite subject and she
told him its Pilipino. He then invited her to go with him to his house
where she could teach Pilipino to his niece. He even gave her a
stuffed toy to persuade her to teach his niece. (Id., pp.5-6)
They walked from Plaza Fair along Pasong Tamo, turning right to
reach the defendants house along Kalayaan Avenue. (Id., p.6)
When they reached the apartment house, Karen notices that
defendants alleged niece was not outside the house but defendant
told her maybe his niece was inside. When Karen did not see the
alleged niece inside the house, defendant told her maybe his niece
was upstairs, and invited Karen to go upstairs. (Id., p. 7)
Upon entering the bedroom defendant suddenly locked the door.
Karen became nervous because his niece was not there. Defendant
got a piece of cotton cord and tied Karens hands with it, and then
he undressed her. Karen cried for help but defendant strangled her.
He took a packing tape and he covered her mouth with it and he
circled it around her head. (Id., p. 7)
Then, defendant suddenly pushed Karen towards the bed which
was just near the door. He tied her feet and hands spread apart to
the bed posts. He knelt in front of her and inserted his finger in her
sex organ. She felt severe pain. She tried to shout but no sound
could come out because there were tapes on her mouth. When
defendant withdrew his finger it was full of blood and Karen felt
more pain after the withdrawal of the finger. (Id., p.8)

He then got a Johnsons Baby Oil and he applied it to his sex organ
as well as to her sex organ. After that he forced his sex organ into
her but he was not able to do so. While he was doing it, Karen
found it difficult to breathe and she perspired a lot while feeling
severe pain. She merely presumed that he was able to insert his
sex organ a little, because she could not see. Karen could not recall
how long the defendant was in that position. (Id., pp. 8-9)
After that, he stood up and went to the bathroom to wash. He also
told Karen to take a shower and he untied her hands. Karen could
only hear the sound of the water while the defendant, she
presumed, was in the bathroom washing his sex organ. When she
took a shower more blood came out from her. In the meantime,
defendant changed the mattress because it was full of blood. After
the shower, Karen was allowed by defendant to sleep. She fell
asleep because she got tired crying. The incident happened at
about 4:00 p.m. Karen had no way of determining the exact time
because defendant removed her watch. Defendant did not care to
give her food before she went to sleep. Karen woke up at about
8:00 oclock the following morning. (Id., pp. 9-10)
The following day, February 5, 1989, a Sunday, after breakfast of
biscuit and coke at about 8:30 to 9:00 a.m. defendant raped Karen
while she was still bleeding. For lunch, they also took biscuit and
coke. She was raped for the second time at about 12:00 to 2:00
p.m. In the evening, they had rice for dinner which defendant had
stored downstairs; it was he who cooked the rice that is why it looks
like lugaw. For the third time, Karen was raped again during the
night. During those three times defendant succeeded in inserting
his sex organ but she could not say whether the organ was inserted
wholly.
Karen did not see any firearm or any bladed weapon. The
defendant did not tie her hands and feet nor put a tape on her
mouth anymore but she did not cry for help for fear that she might
be killed; besides, all those windows and doors were closed. And
even if she shouted for help, nobody would hear her. She was so
afraid that if somebody would hear her and would be able to call a
police, it was still possible that as she was still inside the house,
defendant might kill her. Besides, the defendant did not leave that
Sunday, ruling out her chance to call for help. At nighttime he slept
with her again. (TSN, Aug. 15, 1989, pp. 12-14)
On February 6, 1989, Monday, Karen was raped three times, once
in the morning for thirty minutes after breakfast of biscuits; again in
the afternoon; and again in the evening. At first, Karen did not know
that there was a window because everything was covered by a
carpet, until defendant opened the window for around fifteen
minutes or less to let some air in, and she found that the window
was covered by styrofoam and plywood. After that, he again closed

the window with a hammer and he put the styrofoam, plywood, and
carpet back. (Id., pp. 14-15)
That Monday evening, Karen had a chance to call for help, although
defendant left but kept the door closed. She went to the bathroom
and saw a small window covered by styrofoam and she also spotted
a small hole. She stepped on the bowl and she cried for help
through the hole. She cried: Maawa na po kayo sa akin. Tulungan
nyo akong makalabas dito. Kinidnap ako! Somebody heard her. It
was a woman, probably a neighbor, but she got angry and said she
was istorbo. Karen pleaded for help and the woman told her to
sleep and she will call the police. She finally fell asleep but no
policeman came. (TSN, Aug. 15, 1989, pp. 15-16)
She woke up at 6:00 oclock the following morning, and she saw
defendant in bed, this time sleeping. She waited for him to wake
up. When he woke up, he again got some food but he always kept
the door locked. As usual, she was merely fed with biscuit and coke.
On that day, February 7, 1989, she was again raped three times.
The first at about 6:30 to 7:00 a.m., the second at about 8:30 9:00,
and the third was after lunch at 12:00 noon. After he had raped her
for the second time he left but only for a short while. Upon his
return, he caught her shouting for help but he did not understand
what she was shouting about. After she was raped the third time,
he left the house. (TSN, Aug. 15, 1989, pp. 16-17) She again went
to the bathroom and shouted for help. After shouting for about five
minutes, she heard many voices. The voices were asking for her
name and she gave her name as Karen Salvacion. After a while, she
heard a voice of a woman saying they will just call the police. They
were also telling her to change her clothes. She went from the
bathroom to the room but she did not change her clothes being
afraid that should the neighbors call the police and the defendant
see her in different clothes, he might kill her. At that time she was
wearing a T-shirt of the American bacause the latter washed her
dress. (Id., p. 16)
Afterwards, defendant arrived and opened the door. He asked her if
she had asked for help because there were many policemen
outside and she denied it. He told her to change her clothes, and
she did change to the one she was wearing on Saturday. He
instructed her to tell the police that she left home and willingly;
then he went downstairs but he locked the door. She could hear
people conversing but she could not understand what they were
saying. (Id., p. 19)
When she heard the voices of many people who were conversing
downstairs, she knocked repeatedly at the door as hard as she
could. She heard somebody going upstairs and when the door was
opened, she saw a policeman. The policeman asked her name and
the reason why she was there. She told him she was kidnapped.

Downstairs, he saw about five policemen in uniform and the

defendant was talking to them. Nakikipag-areglo po sa mga pulis,
Karen added. The policeman told him to just explain at the precinct.
(Id., p. 20)
They went out of the house and she saw some of her neighbors in
front of the house. They rode the car of a certain person she called
Kuya Boy together with defendant, the policeman, and two of her
neighbors whom she called Kuya Bong Lacson and one Ate Nita.
They were brought to Sub-Station I and there she was investigated
by a policeman. At about 2:00 a.m., her father arrived, followed by
her mother together with some of their neighbors. Then they were
brought to the second floor of the police headquarters. (Id., p. 21)
At the headquarters, she was asked several questions by the
investigator. The written statement she gave to the police was
marked Exhibit A. Then they proceeded to the National Bureau of
Investigation together with the investigator and her parents. At the
NBI, a doctor, a medico-legal officer, examined her private parts. It
was already 3:00 in early morning, of the following day when they
reached the NBI, (TSN, Aug. 15, 1989, p. 22) The findings of the
medico-legal officer has been marked as Exhibit B.
She was studying at the St. Marys Academy in Pasay City at the
time of the Incident but she subsequently transferred to Apolinario
Mabini, Arellano University, situated along Taft Avenue, because
she was ashamed to be the subject of conversation in the school.
She first applied for transfer to Jose Abad Santos, Arellano
University along Taft Avenue near the Light Rail Transit Station but
she was denied admission after she told the school the true reason
for her transfer. The reason for their denial was that they might be
implicated in the case. (TSN, Aug. 15, 1989, p. 46)
xxx xxx xxx
After the incident, Karen has changed a lot. She does not play with
her brother and sister anymore, and she is always in a state of
shock; she has been absent-minded and is ashamed even to go out
of the house. (TSN, Sept. 12, 1989, p. 10) She appears to be
restless or sad. (Id., p. 11) The father prays for P500,000.00 moral
damages for Karen for this shocking experience which probably,
she would always recall until she reaches old age, and he is not
sure if she could ever recover from this experience. (TSN, Sept. 24,
1989, pp. 10-11)
Pursuant to an Order granting leave to publish notice of decision,
said notice was published in the Manila Bulletin once a week for
three consecutive weeks. After the lapse of fifteen (15) days from
the date of the last publication of the notice of judgment and the
decision of the trial court had become final, petitioners tried to
execute on Bartellis dollar deposit with China Banking Corporation.

Likewise, the bank invoked Section 113 of Central Bank Circular No.
960.
Thus, petitioners decided to seek relief from this Court.
The issues raised and the arguments articulated by the parties boil
down to two:
May this Court entertain the instant petition despite the fact that
original jurisdiction in petitions for declaratory relief rests with the
lower court? She Section 113 of Central Bank Circular No. 960 and
Section 8 of R.A. 6426, as amended by P.D. 1246, otherwise known
as the Foreign Currency Deposit Act be made applicable to a
foreign transient?
Petitioners aver as heretofore stated that Section 113 of Central
Bank Circular No. 960 providing that Foreign currency deposits shall
be exempt from attachment, garnishment, or any other order or
process of any court, legislative body, government agency or any
administrative body whatsoever. should be adjudged as
unconstitutional on the grounds that: 1.) it has taken away the right
of petitioners to have the bank deposit of defendant Greg Bartelli y
Northcott garnished to satisfy the judgment rendered in petitioners
favor in violation of substantive due process guaranteed by the
Constitution; 2.) it has given foreign currency depositors an undue
favor or a class privilege n violation of the equal protection clause
of the Constitution; 3.) it has provided a safe haven for criminals
like the herein respondent Greg Bartelli y Northcott since criminal
could escape civil liability for their wrongful acts by merely
converting their money to a foreign currency and depositing it in a
foreign currency deposit account with an authorized bank; and 4.)
The Monetary Board, in issuing Section 113 of Central Bank Circular
No. 960 has exceeded its delegated quasi- legislative power when it
took away: a.) the plaintiffs substantive right to have the claim
sought to be enforced by the civil action secured by way of the writ
of preliminary attachment as granted by Rule 57 of the Revised
Rules of Court; b.) the plaintiffs substantive right to have the
judgment credit satisfied by way of the writ of execution out of the
bank deposit of the judgment debtor as granted to the judgment
creditor by Rule 39 of the Revised Rules of Court, which is beyond
its power to do so.
On the other hand, respondent Central Bank, in its Comment
alleges that the Monetary Board in issuing Section 113 of CB
Circular No. 960 did not exceed its power or authority because the
subject Section is copied verbatim from a portion of R.A. No. 6426
as amended by P.D. 1246. Hence, it was not the Monetary Board
that grants exemption from attachment or garnishment to foreign
currency deposits, but the law (R.A. 6426 as amended) itself; that it
does not violate the substantive due process guaranteed by the
Constitution because a.) it was based on a law; b.) the law seems to

be reasonable; c.) it is enforced according to regular methods of

procedure; and d.) it applies to all members of a class.
Expanding, the Central Bank said; that one reason for exempting
the foreign currency deposits from attachment, garnishment or any
other order process of any court, is to assure the development and
speedy growth of the Foreign Currency Deposit System and the
Offshore Banking System in the Philippines; that another reason is
to encourage the inflow of foreign currency deposits into the
banking institutions thereby placing such institutions more in a
position to properly channel the same to loans and investments in
the Philippines, thus directly contributing to the economic
development of the country; that the subject section is being
enforced according to the regular methods of procedure; and that it
applies to all currency deposits made by any person and therefore
does not violate the equal protection clause of the Constitution.
Respondent Central Bank further avers that the questioned
provision is needed to promote the public interest and the general
welfare; that the State cannot just stand idly by while a
considerable segment of the society suffers from economic
distress; that the State had to take some measures to encourage
economic development; and that in so doing persons and property
may be subjected to some kinds of restraints or burdens to secure
the general welfare or public interest. Respondent Central Bank
also alleges that Rule 39 and Rule 57 of the Revised Rules of Court
provide that some properties are exempted from
execution/attachment especially provided by law and R.A. No. 6426
as amended is such a law, in that it specifically provides, among
others, that foreign currency deposits shall be exempted from
attachment, garnishment, or any other order or process of any
court, legislative body, government agency or any administrative
body whatsoever.
For its part, respondent China Banking Corporation, aside from
giving reasons similar to that of respondent Central Bank, also
stated that respondent China Bank is not unmindful of the inhuman
sufferings experienced by the minor Karen E. Salvacion from the
beastly hands of Greg Bartelli; that it is not only too willing to
release the dollar deposit of Bartelli which may perhaps partly
mitigate the sufferings petitioner has undergone; but it is
restrained from doing so in view of R.A. No. 6426 and Section 113
of Central Bank Circular No. 960; and that despite the harsh effect
to these laws on petitioners, CBC has no other alternative but to
follow the same.
This court finds the petition to be partly meritorious.
Petitioner deserves to receive the damages awarded to her by the
court. But this petition for declaratory relief can only be entertained
and treated as a petition for mandamus to require respondents to

honor and comply with the writ of execution in Civil Case No. 893214.
The Court has no original and exclusive jurisdiction over a petition
for declatory relief. However, exceptions to this rule have been
recognized. Thus, where the petition has far-reaching implications
and raises questions that should be resolved, it may be treated as
one for mandamus.
Here is a child, a 12-year old girl, who in her belief that all
Americans are good and in her gesture of kindness by teaching his
alleged niece the Filipino language as requested by the American,
trustingly went with said stranger to his apartment, and there she
was raped by said American tourist Greg Bartelli. Not once, but ten
times. She was detained therein for four (4) days. This American
tourist was able to escape from the jail and avoid punishment. On
the other hand, the child, having received a favorable judgment in
the Civil Case for damages in the amount of more than
P1,000,000.00, which amount could alleviate the humiliation,
anxiety, and besmirched reputation she had suffered and may
continue to suffer for a long, long time; and knowing that this
person who had wronged her has the money, could not, however
get the award of damages because of this unreasonable law. This
questioned law, therefore makes futile the favorable judgment and
award of damages that she and her parents fully deserve. As stated
by the trial court in its decision,
Indeed, after hearing the testimony of Karen, the Court believes
that it was indoubtedly a shocking and traumatic experience she
had undergone which could haunt her mind for a long, long time,
the mere recall of which could make her feel so humiliated, as in
fact she had been actually humiliated once when she was refused
admission at the Abad Santos High School, Arellano University,
where she sought to transfer from another school, simply because
the school authorities of the said High School learned about what
happened to her and allegedly feared that they might be implicated
in the case.
xxx
The reason for imposing exemplary or corrective damages is due to
the wanton and bestial manner defendant had committed the acts
of rape during a period of serious illegal detention of his hapless
victim, the minor Karen Salvacion whose only fault was in her being
so naive and credulous to believe easily that defendant, an
American national, could not have such a bestial desire on her nor
capable of committing such heinous crime. Being only 12 years old
when that unfortunate incident happened, she has never heard of
an old Filipino adage that in every forest there is a snake, xxx.
If Karens sad fate had happened to anybodys own kin, it would be
difficult for him to fathom how the incentive for foreign currency

deposit could be more important than his childs right to said award
of damages; in this case, the victims claim for damages from this
alien who had the gall to wrong a child of tender years of a country
where he is mere visitor. This further illustrates the flaw in the
questioned provisions.
It is worth mentioning that R.A. No. 6426 was enacted in 1983 or at
a time when the countrys economy was in a shambles; when
foreign investments were minimal and presumably, this was the
reason why said statute was enacted. But the realities of the
present times show that the country has recovered economically;
and even if not, the questioned law still denies those entitled to due
process of law for being unreasonable and oppressive. The
intention of the questioned law may be good when enacted. The
law failed to anticipate the inquitous effects producing outright
injustice and inequality such as as the case before us.
It has thus been said thatBut I also know, that laws and institutions must go hand in hand
with the progress of the human mind. As that becomes more
developed, more enlightened, as new discoveries are made, new
truths are disclosed and manners and opinions change with the
change of circumstances, institutions must advance also, and keep
pace with the times We might as well require a man to wear still
the coat which fitted him when a boy, as civilized society to remain
ever under the regimen of their barbarous ancestors.
In his comment, the Solicitor General correctly opined, thus:
"The present petition has far-reaching implications on the right of a
national to obtain redress for a wrong committed by an alien who
takes refuge under a law and regulation promulgated for a purpose
which does not contemplate the application thereof envisaged by
the allien. More specifically, the petition raises the question
whether the protection against attachment, garnishment or other
court process accorded to foreign currency deposits PD No. 1246
and CB Circular No. 960 applies when the deposit does not come
from a lender or investor but from a mere transient who is not
expected to maintain the deposit in the bank for long.
The resolution of this question is important for the protection of
nationals who are victimized in the forum by foreigners who are
merely passing through.
xxx
xxx Respondents China Banking Corporation and Central Bank of
the Philippines refused to honor the writ of execution issued in Civil
Case No. 89-3214 on the strength of the following provision of
Central Bank Circular No. 960:
Sec. 113 Exemption from attachment. Foreign currency deposits
shall be exempt from attachment, garnishment, or any other order

or process of any court, legislative body, government agency or

any administrative body whatsoever.
Central Bank Circular No. 960 was issued pursuant to Section 7 of
Republic Act No. 6426:
Sec. 7. Rules and Regulations. The Monetary Board of the Central
Bank shall promulgate such rules and regulations as may be
necessary to carry out the provisions of this Act which shall take
effect after the publication of such rules and regulations in the
Official Gazette and in a newspaper of national circulation for at
least once a week for three consecutive weeks. In case the Central
Bank promulgates new rules and regulations decreasing the rights
of depositors, the rules and regulations at the time the deposit was
made shall govern.
The aforecited Section 113 was copied from Section 8 of Republic
Act No. 6426. As amended by P.D. 1246, thus:
Sec. 8. Secrecy of Foreign Currency Deposits. -- All foreign currency
deposits authorized under this Act, as amended by Presidential
Decree No. 1035, as well as foreign currency deposits authorized
under Presidential Decree No. 1034, are hereby declared as and
considered of an absolutely confidential nature and, except upon
the written permission of the depositor, in no instance shall such
foreign currency deposits be examined, inquired or looked into by
any person, government official, bureau or office whether judicial or
administrative or legislative or any other entity whether public or
private: Provided, however, that said foreign currency deposits shall
be exempt from attachment, garnishment, or any other order or
process of any court, legislative body, government agency or any
administrative body whatsoever.
The purpose of PD 1246 in according protection against
attachment, garnishment and other court process to foreign
currency deposits is stated in its whereases, viz.:
WHEREAS, under Republic Act No. 6426, as amended by
Presidential Decree No. 1035, certain Philippine banking institutions
and branches of foreign banks are authorized to accept deposits in
foreign currency;
WHEREAS, under provisions of Presidential Decree No. 1034
authorizing the establishment of an offshore banking system in the
Philippines, offshore banking units are also authorized to receive
foreign currency deposits in certain cases;
WHEREAS, in order to assure the development and speedy growth
of the Foreign Currency Deposit System and the Offshore Banking
System in the Philippines, certain incentives were provided for
under the two Systems such as confidentiality subject to certain
exceptions and tax exemptions on the interest income of depositors
who are nonresidents and are not engaged in trade or business in
the Philippines;

WHEREAS, making absolute the protective cloak of confidentiality

over such foreign currency deposits, exempting such deposits from
tax, and guaranteeing the vested right of depositors would better
encourage the inflow of foreign currency deposits into the banking
institutions authorized to accept such deposits in the Philippines
thereby placing such institutions more in a position to properly
channel the same to loans and investments in the Philippines, thus
directly contributing to the economic development of the country;
Thus, one of the principal purposes of the protection accorded to
foreign currency deposits is to assure the development and speedy
growth of the Foreign Currency Deposit system and the Offshore
Banking in the Philippines (3rd Whereas).
The Offshore Banking System was established by PD No. 1034. In
turn, the purposes of PD No. 1034 are as follows:
WHEREAS, conditions conducive to the establishment of an offshore
banking system, such as political stability, a growing economy and
adequate communication facilities, among others, exist in the
Philippines;
WHEREAS, it is in the interest of developing countries to have as
wide access as possible to the sources of capital funds for
economic development;
WHEREAS, an offshore banking system based in the Philippines will
be advantageous and beneficial to the country by increasing our
links with foreign lenders, facilitating the flow of desired
investments into the Philippines, creating employment
opportunities and expertise in international finance, and
contributing to the national development effort.
WHEREAS, the geographical location, physical and human
resources, and other positive factors provide the Philippines with
the clear potential to develop as another financial center in Asia;
On the other hand, the Foreign Currency Deposit system was
created by PD No. 1035. Its purpose are as follows:
WHEREAS, the establishment of an offshore banking system in the
Philippines has been authorized under a separate decree;
WHEREAS, a number of local commercial banks, as depository bank
under the Foreign Currency Deposit Act (RA No. 6426), have the
resources and managerial competence to more actively engage in
foreign exchange transactions and participate in the grant of
foreign currency loans to resident corporations and firms;
WHEREAS, it is timely to expand the foreign currency lending
authority of the said depository banks under RA 6426 and apply to
their transactions the same taxes as would be applicable to
transaction of the proposed offshore banking units;
It is evident from the above [Whereas clauses] that the Offshore
Banking System and the Foreign Currency Deposit System were
designed to draw deposits from foreign lenders and investors (Vide

second Whereas of PD No. 1034; third Whereas of PD No. 1035). It

is these depositors that are induced by the two laws and given
protection and incentives by them.
Obviously, the foreign currency deposit made by a transient or a
tourist is not the kind of deposit encourage by PD Nos. 1034 and
1035 and given incentives and protection by said laws because
such depositor stays only for a few days in the country and,
therefore, will maintain his deposit in the bank only for a short time.
Respondent Greg Bartelli, as stated, is just a tourist or a transient.
He deposited his dollars with respondent China Banking
Corporation only for safekeeping during his temporary stay in the
Philippines.
For the reasons stated above, the Solicitor General thus submits
that the dollar deposit of respondent Greg Bartelli is not entitled to
the protection of Section 113 of Central Bank Circular No. 960 and
PD No. 1246 against attachment, garnishment or other court
processes.
In fine, the application of the law depends on the extent of its
justice. Eventually, if we rule that the questioned Section 113 of
Central Bank Circular No. 960 which exempts from attachment,
garnishment, or any other order or process of any court. Legislative
body, government agency or any administrative body whatsoever,
is applicable to a foreign transient, injustice would result especially
to a citizen aggrieved by a foreign guest like accused Greg Bartelli.
This would negate Article 10 of the New Civil Code which provides
that in case of doubt in the interpretation or application of laws, it is
presumed that the lawmaking body intended right and justice to
prevail. Ninguno non deue enriquecerse tortizerzmente con damo
de otro. Simply stated, when the statute is silent or ambiguous, this
is one of those fundamental solutions that would respond to the
vehement urge of conscience. (Padilla vs. Padilla, 74 Phil. 377)
It would be unthinkable, that the questioned Section 113 of Central
Bank No. 960 would be used as a device by accused Greg Bartelli
for wrongdoing, and in so doing, acquitting the guilty at the
expense of the innocent.
Call it what it may but is there no conflict of legal policy here?
Dollar against Peso? Upholding the final and executory judgment of
the lower court against the Central Bank Circular protecting the
foreign depositor? Shielding or protecting the dollar deposit of a
transient alien depositor against injustice to a national and victim
of a crime? This situation calls for fairness legal tyranny.
We definitely cannot have both ways and rest in the belief that we
have served the ends of justice.
IN VIEW WHEREOF, the provisions of Section 113 of CB Circular
No. 960 and PD No. 1246, insofar as it amends Section 8 of R.A.
6426 are hereby held to be INAPPLICABLE to this case because of

its peculiar circumstances. Respondents are hereby REQUIRED to

COMPLY with the writ of execution issued in Civil Case No. 89-3214,
Karen Salvacion, et al. vs. Greg Bartelli y Northcott, by Branch
CXLIV, RTC Makati and to RELEASE to petitioners the dollar deposit
of respondent Greg Bartelli y Northcott in such amount as would
satisfy the judgment.
SO ORDERED.
Narvasa, C.J., Regalado, Davide, Jr., Romero, Bellosillo, Melo, Puno,
Vitug, Kapunan, Francisco, and Panganiban, JJ., concur.
Padilla, J., no part.
Mendoza, and Hermosisima, Jr., JJ., on leave.
EndNotes
[1]
Annex R, Petition.
[2]
Alliance of Government Workers (AGW) v. Ministry of Labor and
Employment, 124 SCRA 1.
[3]
Nationalista Party vs. Angelo Bautista, 85 Phil. 101; Aquino vs.
Comelec, 62 SCRA 275; and Alliance of Government Workers vs.
Minister of Labor and Employment, supra.
[4]
Decision, Regional Trial Court, Civil Case No. 89-3214, pp. 9 &12;
Rollo, pp. 66 & 69.
[5]
Thomas Jefferson, Democracy, ed. Saul K. Padover. (New York,
Penguin, 1946) p. 171.
[6]
Comment of the Solicitor General, Rollo, pp. 128 129; 135-136.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-4606
May 30, 1952
RAMON B. FELIPE, SR., as Chairman, Board of Judges,
petitioner,
vs.
HON. JOSE N. LEUTERIO, Judge, Court of First Instance of
Camarines Sur, EMMA IMPERIAL, represented by her
guardian-ad-litem JUSTO V. IMPERIAL, and SOUTHERN
LUZON COLLEGE, respondents.
Ramon Felipe, Jr., and L. B. Karingal for petitioner.Ezequiel S.
Grageda and Victoriano Yamson for respondents Judge Leuterio and
Emma Imperial.Padilla and San Juan for respondent Southern Luzon
College.
SYLLABUS
1. ORATORICAL COMPETITION; PRIZES; RIGHTS TO PRIZES IN
ORATORICAL COMPETITION. No rights to the prizes may be
asserted by the contestants in an oratorical competition, because

theirs was merely the privilege to compete for the prize, and that
privilege did not ripen into demandable right unless and until they
were proclaimed winners of the competition by the appointed
arbiters or referees or judges.
2. COURTS; STARE DECISIS; PARTICULAR ACTION NO PRECEDENT.
The fact that a particular action has had no precedent during a long
period affords some reason for doubting the existence of the right
sought to be enforced, especially where occasion for its assertion
must have often arisen.
3. ORATORICAL COMPETITION; ERROR AND WRONG,
DISTINGUISHED. Error and wrong do not mean the same thing.
"Wrong" as used in the legal principle that where there is a wrong
there is a remedy, is the deprivation or violation of a right.
4. ID.; LITERARY CONTESTS; COURTS INTERFERENCE. Generally,
the judiciary has no power to reverse - on the ground of error - the
award of the board of judges of an oratorical contest.
DECISION
BENGZON, J.:
Statement of the case. The issue in the litigation is whether the
courts have the authority to reverse the award of the board of
judges of an oratorical competition.
In an oratorical contest held in Naga, Camarines Sur, first honor
was given by the board of five judges to Nestor Nosce, and second
honor to Emma Imperial. Six days later, Emma asked the court of
the first instance of that province to reversed that award, alleging
that one of the judges had fallen to error in grading her
performance. After a hearing, and over the objection of the other
four judges of the contest, the court declared Emma Imperial
winner of the first place. Hence this special civil action challenging
the court's power to modify the board's verdict.
The facts. There is no dispute about the facts:
1. On March 12, 1950 a benefit inter-collegiate oratorical contest
was held in Naga City. The contestants were eight, among them
Nestor Nosce, Emma Imperial, and Luis General, Jr.
2. There were five judges of the competition, the petitioner Ramon
B. Felipe, Sr. being the Chairman.
3. After the orators had delivered their respective pieces, and after
the judges had expressed their votes, the Chairman publicly
announced their decision awarding first price to Nestor Nosce,
second price to Emma Imperial, third price to Menandro Benavides
and fourth place to Luis General, Jr.

4. Four days afterwards, Emma Imperial addressed a letter to the

Board of Judges protesting the verdict, and alleging that one of the
Judges had committed a mathematical mistake, resulting in her
second place only, instead of the first, which she therefore claimed.
5. Upon refusal of the Board to amend their award, she filed a
complaint in the court of first instance.
6. At the contest the five judges were each furnished a blank form
wherein he give the participants grades according to his estimate
of their abilities, giving number 1 to the best, number 2 to the
second best etc., down to number 8. Then the grades were added,
and the contestant receiving the lowest number got first prize, the
next second prize, etc.
7. The sums for the first four winners were: Nosce 10; Imperial 10;
Benevides 17, General 17, the Board of judges having voted as
follows:
Judge
Nosce
Imperial Buenavides
General
Felipe Sr. .........

Obias ..............

Rodriguez ..........

Prado ..............

Moll ...............

10
10
17
17
8. It appearing that Nestor Nosce and Emma Imperial had tied for
the first place, the Chairman, apparently with the consent of the
board, broke the tie awarding first honors to Nosce and second
honors to Imperial.
9. For the convenience of the judges the typewritten forms
contained blank spaces in which, after the names of the rival
orators and their respective orations, the judge could not jot down
the grades he thought the contestants deserved according to
"Originality", "Timeliness", "English", "Stage Personality",
"Pronunciation and Enunciation" and "Voice". From such data he
made up his vote.
10. It was discovered later that the form filed by Delfin Rodriguez,
one of the Judges, gave Imperial and General the following ratings
under the above headings; Imperial 19-15-15-18-14-14 Total 94Place 4th General 19-15-15 or 14-19-14-14 Total 95-Place 3rd.
11. Imperial asserts that her total should be 95 instead of 94 and
therefore should rank 3rd place in Rodriguez' vote. And if she got 3
from Rodriguez, her total vote should have been 9 instead of ten,
with the result that she copped first place in the speaking joust.

12. Rodriguez testified that he made a mistake in adding up

Imperial's ratings; that she should have been given a total of 95, or
placed No. 3, the same as General; that he was not disposed to
break the tie between her and General and insisted that he wanted
to give rank 3 to Imperial and rank 3 also to General.
Discussion. Although it would seem anomalous for one judge to
give the same rank to two contestants, we will concede for the
moment that Delfin Rodriguez could have given 3 to Imperial to
General.
However if deductions are to be made from his recorded vote
(Exhibit 3) one may infer that after the contest and before
submitting his vote he decided to give General an edge over
Imperial. How? Under the caption "English" General was given by
himself at first "14", later increased to "15". Evidently because after
he had added the ratings of Imperial and (erroneously) reached the
sum of 94, he added the ratings of General (which were the same
as Imperial with 14 under "English") and (mistakenly) reached 94
also. So what did he also? He raised the 14 to 15 and thus gave
general 95 to place him over Imperial's 94. (Mistakingly again,
because with 15 General got 96 instead of 95).
But to us the important thing is Rodriguez' vote during and
immediately after the affair. His vote in Exhibit 3 definitely gave
General place No. 3 and Imperial place No. 4. His calculations
recorded on Exhibit 3 were not material. In fact the Chairman did
not bother to fill out the blank spaces in his own form, and merely
set down his conclusions giving one to Imperial, 2 to Benavides etc.
without specifying the ratings for "Voice", "English", "Stage
Personality" etc. In other words what counted was the vote.
Probably for the above reasons the board refused to "correct" the
alleged error.
The situation then is this: Days after a contest has been conducted
and the winners announced, one of the judges confesses he made
a mistake, that the ratings he gave the second place winner should
have been such as would entitle her to first place. The other judges
refuse to alter their verdict. May the matter be brought to the court
to obtain a new award, reversing the decision of the board of
judges?
For more than thirty years oratorical tilts have been held
periodically by schools and colleges in these islands. Intercollegiate oratorical competitions are of more recent origin.
Members of this court have taken part in them either as
contestants in their school days1, or as members of the board of
judges afterwards. They know some (few) verdicts did not reflect
the audience's preference and that errors have sometimes been
ascribed to the award of the judges. Yet no party ever presumed to

invoke judicial intervention; for it is unwritten law in such contests

that the board's decision is final and unappealable.
Like the ancient tournaments of the Sword, these tournaments of
the Word apply the highest tenets of sportmanship: finally of the
referee's verdict. No alibis, no murmurs of protest. The participants
are supposed to join the competition to contribute to its success by
striving their utmost: the prizes are secondary.
No rights to the prizes may be asserted by the contestants,
because their's was merely the privilege to compete for the prize,
and that privilege did not ripen into a demandable right unless and
until they were proclaimed winners of the competition by the
appointed arbiters or referees or judges.
Incidentally, these school activities have been imported from the
United States. We found in American jurisprudence no litigation
questioning the determination of the board of judges.
Now, the fact that a particular action has had no precedent during
a long period affords some reason for doubting the existence of the
right sought to be enforced, especially where occasion for its
assertion must have often arisen; and courts are cautious before
allowing it, being loath to establish a new legal principle not in
harmony with the generally accepted views thereon. (See C.J.S. Vol.
1, p. 1012).
We observe that in assuming jurisdiction over the matter, the
respondent judge reasoned out that where there is a wrong there is
a remedy and that courts of first instance are courts of general
jurisdiction.
The flaw in his reasoning lies in the assumption that Imperial
suffered some wrong at the hands of the board of judges. If at all,
there was error on the part of one judge, at most. Error and wrong

do not mean the same thing. "Wrong" as used in the aforesaid legal
principle is the deprivation or violation of a right. As stated before,
a contestant has no right to the prize unless and until he or she is
declared winner by the board of referees or judges.
Granting that Imperial suffered some loss or injury, yet in law there
are instances of "damnum absque injuria". This is one of them. If
fraud or malice had been proven, it would be a different
proposition. But then her action should be directed against the
individual judge or judges who fraudulently or maliciously injured
her. Not against the other judges.
By the way what is here in stated must not be understood as
applying to those activities which the government has chosen to
regulate with the creation of the Games and Amusements Board in
Executive Order No. 392, Series 1950.
Judgment. In view of all the foregoing, we are of the opinion and so
declare, that the judiciary has no power to reverse the award of the
board of judges of an oratorical contest. For that matter it would
not interfere in literary contests, beauty contests and similar
competitions.
Wherefore the order in controversy is hereby set aside. No costs.
Paras, C.J., Pablo, Tuason, Montemayor, Bautista Angelo and
Ladrador, JJ., concur.
Feria, J., concurs in the result.
Footnotes
1
In the College of Law U.P. annual oratorical contest, first prize was
awarded to Justice Montemayor in 1914 and to Justice Labradorin
1916.