Today is Friday, February 01, 2019

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-2662 March 26, 1949

SHIGENORI KURODA, petitioner,

vs.
Major General RAFAEL JALANDONI, Brigadier General CALIXTO DUQUE, Colonel MARGARITO TORALBA, Colonel
IRENEO BUENCONSEJO, Colonel PEDRO TABUENA, Major FEDERICO ARANAS, MELVILLE S. HUSSEY and ROBERT
PORT, respondents.

Pedro Serran, Jose G. Lukban, and Liberato B. Cinco for petitioner.

Fred Ruiz Castro Federico Arenas Mariano Yengco, Jr., Ricardo A. Arcilla and S. Melville Hussey for respondents.

MORAN, C.J.:

Shigenori Kuroda, formerly a Lieutenant-General of the Japanese Imperial Army and Commanding General of the Japanese
Imperial Forces in The Philippines during a period covering 19433 and 19444 who is now charged before a military Commission
convened by the Chief of Staff of the Armed forces of the Philippines with having unlawfully disregarded and failed "to discharge
his duties as such command, permitting them to commit brutal atrocities and other high crimes against noncombatant civilians
and prisoners of the Imperial Japanese Forces in violation of the laws and customs of war" — comes before this Court seeking to
establish the illegality of Executive Order No. 68 of the President of the Philippines: to enjoin and prohibit respondents Melville S.
Hussey and Robert Port from participating in the prosecution of petitioner's case before the Military Commission and to
permanently prohibit respondents from proceeding with the case of petitioners.

In support of his case petitioner tenders the following principal arguments.

First. — "That Executive Order No. 68 is illegal on the ground that it violates not only the provision of our constitutional law but
also our local laws to say nothing of the fact (that) the Philippines is not a signatory nor an adherent to the Hague Convention on
Rules and Regulations covering Land Warfare and therefore petitioners is charged of 'crimes' not based on law, national and
international." Hence petitioner argues — "That in view off the fact that this commission has been empanelled by virtue of an
unconstitutional law an illegal order this commission is without jurisdiction to try herein petitioner."

Second. — That the participation in the prosecution of the case against petitioner before the Commission in behalf of the United
State of America of attorneys Melville Hussey and Robert Port who are not attorneys authorized by the Supreme Court to practice
law in the Philippines is a diminution of our personality as an independent state and their appointment as prosecutor are a
violation of our Constitution for the reason that they are not qualified to practice law in the Philippines.

Third. — That Attorneys Hussey and Port have no personality as prosecution the United State not being a party in interest in the
case.

Executive Order No. 68, establishing a National War Crimes Office prescribing rule and regulation governing the trial of accused
war criminals, was issued by the President of the Philippines on the 29th days of July, 1947 This Court holds that this order is
valid and constitutional. Article 2 of our Constitution provides in its section 3, that —

The Philippines renounces war as an instrument of national policy and adopts the generally accepted principles of
international law as part of the of the nation.

In accordance with the generally accepted principle of international law of the present day including the Hague Convention the
Geneva Convention and significant precedents of international jurisprudence established by the United Nation all those person
military or civilian who have been guilty of planning preparing or waging a war of aggression and of the commission of crimes and
offenses consequential and incidental thereto in violation of the laws and customs of war, of humanity and civilization are held
accountable therefor. Consequently in the promulgation and enforcement of Execution Order No. 68 the President of the
Philippines has acted in conformity with the generally accepted and policies of international law which are part of the our
Constitution.

The promulgation of said executive order is an exercise by the President of his power as Commander in chief of all our armed
forces as upheld by this Court in the case of Yamashita vs. Styer (L-129, 42 Off. Gaz., 664) 1 when we said —

War is not ended simply because hostilities have ceased. After cessation of armed hostilities incident of war may
remain pending which should be disposed of as in time of war. An importance incident to a conduct of war is the
adoption of measure by the military command not only to repel and defeat the enemies but to seize and subject to
disciplinary measure those enemies who in their attempt to thwart or impede our military effort have violated the
law of war. (Ex parte Quirin 317 U.S., 1; 63 Sup. Ct., 2.) Indeed the power to create a military commission for the
trial and punishment of war criminals is an aspect of waging war. And in the language of a writer a military
commission has jurisdiction so long as a technical state of war continues. This includes the period of an armistice
or military occupation up to the effective of a treaty of peace and may extend beyond by treaty agreement.
(Cowles Trial of War Criminals by Military Tribunals, America Bar Association Journal June, 1944.)

Consequently, the President as Commander in Chief is fully empowered to consummate this unfinished aspect of war namely the
trial and punishment of war criminal through the issuance and enforcement of Executive Order No. 68.

Petitioner argues that respondent Military Commission has no Jurisdiction to try petitioner for acts committed in violation of the
Hague Convention and the Geneva Convention because the Philippines is not a signatory to the first and signed the second only
in 1947. It cannot be denied that the rules and regulation of the Hague and Geneva conventions form, part of and are wholly
based on the generally accepted principals of international law. In facts these rules and principles were accepted by the two
belligerent nation the United State and Japan who were signatories to the two Convention, Such rule and principles therefore
form part of the law of our nation even if the Philippines was not a signatory to the conventions embodying them for our
Constitution has been deliberately general and extensive in its scope and is not confined to the recognition of rule and principle of
international law as continued inn treaties to which our government may have been or shall be a signatory.

Furthermore when the crimes charged against petitioner were allegedly committed the Philippines was under the sovereignty of
United States and thus we were equally bound together with the United States and with Japan to the right and obligation
contained in the treaties between the belligerent countries. These rights and obligation were not erased by our assumption of full
sovereignty. If at all our emergency as a free state entitles us to enforce the right on our own of trying and punishing those who
committed crimes against crimes against our people. In this connection it is well to remember what we have said in the case
of Laurel vs. Misa (76 Phil., 372):

. . . The change of our form government from Commonwealth to Republic does not affect the prosecution of those
charged with the crime of treason committed during then Commonwealth because it is an offense against the
 same sovereign people. . . .

By the same token war crimes committed against our people and our government while we were a Commonwealth are triable
and punishable by our present Republic.

Petitioner challenges the participation of two American attorneys namely Melville S. Hussey and Robert Port in the prosecution of
his case on the ground that said attorney's are not qualified to practice law in Philippines in accordance with our Rules of court
and the appointment of said attorneys as prosecutors is violative of our national sovereignty.

In the first place respondent Military Commission is a special military tribunal governed by a special law and not by the Rules of
court which govern ordinary civil court. It has already been shown that Executive Order No. 68 which provides for the
organization of such military commission is a valid and constitutional law. There is nothing in said executive order which requires
that counsel appearing before said commission must be attorneys qualified to practice law in the Philippines in accordance with
the Rules of Court. In facts it is common in military tribunals that counsel for the parties are usually military personnel who are
neither attorneys nor even possessed of legal training.

Secondly the appointment of the two American attorneys is not violative of our nation sovereignty. It is only fair and proper that
United States, which has submitted the vindication of crimes against her government and her people to a tribunal of our nation
should be allowed representation in the trial of those very crimes. If there has been any relinquishment of sovereignty it has not
been by our government but by the United State Government which has yielded to us the trial and punishment of her enemies.
The least that we could do in the spirit of comity is to allow them representation in said trials.

Alleging that the United State is not a party in interest in the case petitioner challenges the personality of attorneys Hussey and
Port as prosecutors. It is of common knowledge that the United State and its people have been equally if not more greatly
aggrieved by the crimes with which petitioner stands charged before the Military Commission. It can be considered a privilege for
our Republic that a leader nation should submit the vindication of the honor of its citizens and its government to a military tribunal
of our country.

The Military Commission having been convened by virtue of a valid law with jurisdiction over the crimes charged which fall under
the provisions of Executive Order No. 68, and having said petitioner in its custody, this Court will not interfere with the due
process of such Military commission.

For all the foregoing the petition is denied with costs de oficio.

Paras, Feria, Pablo, Bengzon, Tuason, Montemayor and Reyes, JJ., concur.

Separate Opinions

PERFECTO, J., dissenting:

A military commission was empanelled on December 1, 1948 to try Lt. Gen. Shigenori Kuroda for Violation of the laws and
customs of land warfare.

Melville S. Hussey and Robert Port, American citizens and not authorized by the Supreme Court to practice law were appointed
prosecutor representing the American CIC in the trial of the case.

The commission was empanelled under the authority of Executive Order No. 68 of the President of the Philippines the validity of
which is challenged by petitioner on constitutional grounds. Petitioner has also challenged the personality of Attorneys Hussey
and Port to appear as prosecutors before the commission.
The charges against petitioner has been filed since June 26, 1948 in the name of the people of the Philippines as accusers.

We will consideration briefly the challenge against the appearance of Attorneys Hussey and Port. It appearing that they are aliens
and have not been authorized by the Supreme Court to practice law there could not be any question that said person cannot
appear as prosecutors in petitioner case as with such appearance they would be practicing law against the law.

Said violation vanishes however into insignificance at the side of the momentous question involved in the challenge against the
validity of Executive Order No. 68. Said order is challenged on several constitutional ground. To get a clear idea of the question
raised it is necessary to read the whole context of said order which is reproduced as follows:

EXECUTIVE ORDER NO. 68.

ESTABLISHING A NATIONAL WAR CRIMES OFFICE AND PRESCRIBING RULES AND REGULATION
GOVERNING THE TRIAL OF ACCUSED WAR CRIMINAL.

I, Manuel Roxas president of the Philippines by virtue of the power vested in me by the Constitution and laws of
the Philippines do hereby establish a National War Crimes Office charged with the responsibility of accomplishing
the speedy trial of all Japanese accused of war crimes committed in the Philippines and prescribe the rules and
regulation such trial.

The National War crimes office is established within the office of the Judge Advocate General of the Army of the
Philippines and shall function under the direction supervision and control of the Judge Advocate General. It shall
proceed to collect from all available sources evidence of war crimes committed in the Philippines from the
commencement of hostilities by Japan in December 1941, maintain a record thereof and bring about the prompt
trial maintain a record thereof and bring about the prompt trial of the accused.

The National War Crimes Office shall maintain direct liaison with the Legal Section General Headquarters,
Supreme Commander for the Allied power and shall exchange with the said Office information and evidence of
war crimes.

The following rules and regulation shall govern the trial off person accused as war criminals:

ESTABLISHMENT OF MILITARY COMMISSIONS

(a) General. — person accused as war criminal shall be tried by military commission to be convened by or under
the authority of the Philippines.

II. JURISDICTION

(a) Over Person. — Thee military commission appointed hereunder shall have jurisdiction over all persons
charged with war crimes who are in the custody of the convening authority at the time of the trial.

(b) Over Offenses. — The military commission established hereunder shall have jurisdiction over all offenses
including but not limited to the following:

(1) The planning preparation initiation or waging of a war of aggression or a war in violation of international
treaties agreement or assurance or participation in a common plan or conspiracy for the accomplishment of any of
the foregoing.

(2) Violation of the laws or customs of war. Such violation shall include but not be limited to murder ill-treatment or
deportation to slave labor or for other purpose of civilian population of or in occupied territory; murder or ill-
treatment of prisoners of war or internees or person on the seas or elsewhere; improper treatment of hostage;
plunder of public or private property wanton destruction of cities towns or village; or devastation not justified by
military necessity.

(3) Murder extermination enslavement deportation and other inhuman acts committed against civilian population
before or during the war or persecution on political racial or religion ground in executive of or in connection with
any crime defined herein whether or not in violation of the local laws.

III. MEMBERSHIP OF COMMISSIONS

(a) Appointment. — The members of each military commission shall be appointed by the President of the
Philippines or under authority delegated by him. Alternates may be appointed by the convening authority. Such
shall attend all session of the commission, and in case of illness or other incapacity of any principal member, an
alternate shall take the place of that member. Any vacancy among the members or alternates, occurring after a
trial has begun, may be filled by the convening authority but the substance of all proceeding had evidence taken
in that case shall be made known to the said new member or alternate. This facts shall be announced by the
president of the commission in open court.

(b) Number of Members. — Each commission shall consist of not less than three (3) members.

(c) Qualifications. — The convening authority shall appoint to the commission persons whom he determines to be
competent to perform the duties involved and not disqualified by personal interest or prejudice, provided that no
person shall be appointed to hear a case in which he personally investigated or wherein his presence as a
witness is required. One specially qualified member whose ruling is final in so far as concerns the commission on
an objection to the admissibility of evidence offered during the trial.

(d) Voting. — Except as to the admissibility of evidence all rulings and finding of the Commission shall be by
majority vote except that conviction and sentence shall be by the affirmative vote of not less than conviction and
sentence shall be by the affirmative vote of not less than two-thirds (2\3) of the member present.

(e) Presiding Member. — In the event that the convening authority does not name one of the member as the
presiding member, the senior officer among the member of the Commission present shall preside.

IV. PROSECUTORS

(a) Appointment. — The convening authority shall designate one or more person to conduct the prosecution
before each commission.

(b) Duties. — The duties of the prosecutor are:

(1) To prepare and present charges and specifications for reference to a commission.

(2) To prepare cases for trial and to conduct the prosecution before the commission of all cases referred for trial.

V. POWER AND PROCEDURE OF COMMISSION

(a) Conduct of the Trial. — A Commission shall:

(1) Confine each trial strictly to fair and expeditious hearing on the issues raised by the charges, excluding
irrelevant issues or evidence and preventing any unnecessary delay or interference.
(2) Deal summarily with any contumacy or contempt, imposing any appropriate punishment therefor.

(3) Hold public session when otherwise decided by the commission.

(4) Hold each session at such time and place as it shall determine, or as may be directed by the convening
authority.

(b) Rights of the Accused. — The accused shall be entitled:

(1) To have in advance of the trial a copy of the charges and specifications clearly worded so as to apprise the
accused of each offense charged.

(2) To be represented, prior to and during trial, by counsel appointed by the convening authority or counsel of his
own choice, or to conduct his own defense.

(3) To testify in his own behalf and have his counsel present relevant evidence at the trial in support of his
defense, and cross-examine each adverse witness who personally appears before the commission.

(4) To have the substance of the charges and specifications, the proceedings and any documentary evidence
translated, when he is unable otherwise to understand them.

(c) Witnesses. — The Commission shall have power:

(1) To summon witnesses and require their attendance and testimony; to administer oaths or affirmations to
witnesses and other persons and to question witnesses.

(2) To require the production of documents and other evidentiary material.

(3) To delegate the Prosecutors appointed by the convening authority the powers and duties set forth in (1) and
(2) above.

(4) To have evidence taken by a special commissioner appointed by the commission.

(d) Evidence.

(1) The commission shall admit such evidence as in its opinion shall be of assistance in proving or disproving the
charge, or such as in the commission's opinion would have probative value in the mind of a reasonable man. The
commission shall apply the rules of evidence and pleading set forth herein with the greatest liberality to achieve
expeditious procedure. In particular, and without limiting in any way the scope of the foregoing general rules, the
following evidence may be admitted:

(a) Any document, irrespective of its classification, which appears to the commission to have been signed or
issued by any officer, department, agency or member of the armed forces of any Government without proof of the
signature or of the issuance of the document.

(b) Any report which appears to the commission to have been signed or issued by the International Red Cross or
a member of any medical service personnel, or by any investigator or intelligence officer, or by any other person
whom commission considers as possessing knowledge of the matters contained in the report.

(c) Affidavits, depositions or other signed statements.

(d) Any diary, letter to other document, including sworn statements, appearing to the commission to contain
information relating to the charge.

(e) A copy of any document or other secondary evidence of the contents, if the original is not immediately
available.

(2) The commission shall take judicial notice of facts of common knowledge, official government documents of
any nation, and the proceedings, records and findings of military or other agencies of any of the United Nation.

(3) A commission may require the prosecution and the defense to make a preliminary offer of proof whereupon
the commission may rule in advance on the admissibility of such evidence.

(4) The official position of the accused shall not absolve him from responsibility nor be considered in mitigation of
punishment. Further action pursuant to an order of the accused's superior, or of his Government, shall not
constitute a defense, but may be considered in mitigation of punishment if the commission determines that justice
so requires.

(5) All purposed confessions or statements of the accused shall bee admissible in evidence without any showing
that they were voluntarily made. If it is shown that such confession or statement was procured by mean which the
commission believe to have been of such a character that may have caused the accused to make a false
statement the commission may strike out or disregard any such portion thereof as was so procured.

(e) Trial Procedure. — The proceedings of each trial shall be conducted substantially as follows unless modified
by the commission to suit the particular circumstances:

(1) Each charge and specification shall be read or its substance stated in open court.

(2) The presiding member shall ask each accused whether he pleads "Guilty" or "Not guilty."

(3) The prosecution shall make its opening statement."(4) The presiding member may at this or any other time
require the prosecutor to state what evidence he proposes to submit to the commission and the commission
thereupon may rule upon the admissibility of such evidence.

(4) The witnesses and other evidence for the prosecution shall be heard or presented. At the close of the case for
the prosecution, the commission may, on motion of the defense for a finding of not guilty, consider and rule
whether he evidence before the commission may defer action on any such motion and permit or require the
prosecution to reopen its case and produce any further available evidence.

(5) The defense may make an opening statement prior to presenting its case. The presiding member may, at this
any other time require the defense to state what evidence it proposes to submit to the commission where upon
the commission may rule upon the admissibility of such evidence.

(6) The witnesses and other evidence for the defense shall be heard or presented. Thereafter, the prosecution
and defense may introduce such evidence in rebuttal as the commission may rule as being admissible.

(7) The defense and thereafter the prosecution shall address the commission.

(8) The commission thereafter shall consider the case in closed session and unless otherwise directed by the
convening authority, announce in open court its judgment and sentence if any. The commission may state the
reason on which judgment is based.
( f ) Record of Proceedings. — Each commission shall make a separate record of its proceeding in the trial of
each case brought before it. The record shall be prepared by the prosecutor under the direction of the commission
and submitted to the defense counsel. The commission shall be responsible for its accuracy. Such record,
certified by the presiding member of the commission or his successor, shall be delivered to the convening
authority as soon as possible after the trial.

(g) Sentence. — The commission may sentence an accused, upon conviction to death by hanging or shooting,
imprisonment for life or for any less term, fine or such other punishment as the commission shall determine to be
proper.

(h) Approval of Sentence. — No. sentence of a military commission shall be carried into effect until approved by
the chief off Staff: Provided, That no sentence of death or life imprisonment shall be carried into execution until
confirmed by the President of the Philippines. For the purpose of his review the Chief of Staff shall create a Board
of Review to be composed of not more than three officers none of whom shall be on duty with or assigned to the
Judge Advocate General's Office. The Chief of Staff shall have authority to approve, mitigate remit in whole or in
part, commute, suspend, reduce or otherwise alter the sentence imposed, or (without prejudice to the accused)
remand the case for rehearing before a new military commission; but he shall not have authority to increase the
severity of the sentence. Except as herein otherwise provided the judgment and sentence of a commission shall
final and not subject to review by any other tribunal.

VI. RULE-MAKING POWER

Supplementary Rule and Forms. — Each commission shall adopt rules and forms to govern its procedure, not
inconsistent with the provision of this Order, or such rules and forms as may be prescribed by the convening
authority]or by the President of the Philippines.

VII. The amount of amount of seven hundred thousand pesos is hereby set aside out of the appropriations for the
Army of the Philippines for use by the National War Crimes Office in the accomplishment of its mission as
hereinabove set forth, and shall be expended in accordance with the recommendation of the Judge Advocate
General as approved by the President. The buildings, fixtures, installations, messing, and billeting equipment and
other property herefore used by then Legal Section, Manila Branch, of the General Headquarters, Supreme
Commander for the Allied Power, which will be turned over by the United States Army to the Philippines
Government through the Foreign Liquidation Commission and the Surplus Property Commission are hereby
specification reserved for use off the National War Crimes Office.

Executive Order No. 64, dated August 16, 1945, is hereby repealed.

Done in the City of Manila, this 29th day of July in the year of Our Lord, nineteen hundred and forty-seven, and of
the Independence of the Philippines, the second.

MANUEL ROXAS
President of the Philippines

By the President:

EMILIO ABELLO
Chief of the Executive Office

EXECUTIVE LEGISLATION
Executive Order No. 68 is a veritable piece of Legislative measure, without the benefit of congressional enactment.

The first question that is trust at our face spearheading a group of other no less important question, is whether or not the
President of the Philippines may exercise the legislative power expressly vested in Congress by the Constitution. .

The Constitution provides:

The Legislative powers shall be vested in a Congress of the Philippines which shall consist of a Senate and
House of Representatives. (Section 1, Article VI.)

While there is no express provision in the fundamental law prohibiting the exercise of legislative power by agencies other than
Congress, a reading of the whole context of the Constitution would dispel any doubt as to the constitutional intent that the
legislative power is to be exercised exclusively by Congress, subject only to the veto power of the President of the President of
the Philippines, to the specific provision which allow the president of the Philippines to suspend the privileges of the writ of
habeas corpus and to place any part of the Philippines under martial law, and to the rule-making power expressly vested by the
Constitution in the Supreme Court.

There cannot be any question that the member of the Constitutional Convention were believers in the tripartite system of
government as originally enunciated by Aristotle, further elaborated by Montequieu and accepted and practiced by modern
democracies, especially the United State of America, whose Constitution, after which ours has been patterned, has allocated the
three power of government — legislative, executive, judicial — to distinct and separate department of government.

Because the power vested by our Constitution to the several department of the government are in the nature of grants, not
recognition of pre-existing power, no department of government may exercise any power or authority not expressly granted by
the Constitution or by law by virtue express authority of the Constitution.

Executive Order No. 68 establishes a National War Crimes Office and the power to establish government office is essentially
legislative.

The order provides that person accused as war criminals shall be tried by military commissions. Whether such a provision is
substantive or adjective, it is clearly legislative in nature. It confers upon military commissions jurisdiction to try all persons charge
with war crimes. The power to define and allocate jurisdiction for the prosecution of person accused of any crime is exclusively
vested by the Constitution in Congress. .

It provides rules of procedure for the conduct of trial of trial. This provision on procedural subject constitutes a usurpation of the
rule-making power vested by Constitution in the Supreme Court.

It authorized military commission to adopt additional rule of procedure. If the President of the Philippines cannot exercise the rule
-making power vested by the Constitution in the Supreme Court, he cannot, with more reason, delegate that power to military
commission.

It appropriates the sum of P7000,000 for the expenses of the National War Crimes office established by the said Executive Order
No. 68. This constitutes another usurpation of legislative power as the power to vote appropriations belongs to Congress.

Executive Order No. 68., is, therefore, null and void, because, though it the President of the Philippines usurped power expressly
vested by the Constitution in Congress and in the Supreme Court.

Challenged to show the constitutional or legal authority under which the President issued Executive Order No. 68, respondent
could not give any definite answer. They attempted, however, to suggest that the President of the Philippines issued Executive
Order No. 68 under the emergency power granted to him by Commonwealth Act No. 600, as amended by Commonwealth Act
No. 620, and Commonwealth Act No. 671, both of which are transcribed below:
 COMMONWEALTH ACT NO. 600.

AN ACT DECLARING A STATE OF EMERGENCY AND AUTHORIZING THE PRESIDENT TO

PROMULGATE RULES AND REGULATION TO SAFEGUARD THE INTEGRITY OF THE PHILIPPINES
AND TO INSURE THE TRANQUILITY OF ITS INHABITANTS.

Be it enacted by the National Assembly of the Philippines:

SECTION 1. The existence of war in many parts of the world has created a national emergency which makes it
necessary to invest the President of the Philippines with extraordinary power in order to safeguard the integrity of
the Philippines and to insure the tranquility of its inhabitants, by suppressing espionage, lawlessness, and all
subversive to the people adequate shelter and clothing and sufficient food supply, and by providing means for the
speedy evacuation of the civilian population the establishment of an air protective service and the organization of
volunteer guard units, and to adopt such other measures as he may deem necessary for the interest of the public.
To carry out this policy the President is authorized to promulgate rules and regulations which shall have the force
and effect off law until the date of adjournment of the next regulation which shall have the force and effect of law
until the date of adjournment of the next regular session of the First Congress of the Philippines, unless sooner
amended or repealed by the Congress of Philippines. Such rules and regulation may embrace the following
objects: (1) to suppress espionage and other subversive activities; (2) to require all able-bodied citizens (a) when
not engaged in any lawful occupation, to engage in farming or other productive activities or (b) to perform such
services as may bee necessary in the public interest; (3) to take over farm lands in order to prevent or shortage of
crops and hunger and destitution; (4) to take over industrial establishment in order to insure adequate production,
controlling wages and profits therein; (5) to prohibit lockouts and strikes whenever necessary to prevent the
unwarranted suspension of work in productive enterprises or in the interest of national security; (6) to regulate the
normal hours of work for wage-earning and salaried employees in industrial or business undertakings of all kinds;
(7) to insure an even distribution of labor among the productive enterprises; (8) to commandership and other
means of transportation in order to maintain, as much as possible, adequate and continued transportation
facilities; (9) to requisition and take over any public service or enterprise for use or operation by the
Government;(10) to regulate rents and the prices of articles or commodities of prime necessity, both imported and
locally produced or manufactured; and (11) to prevent, locally or generally, scarcity, monopolization, hoarding
injurious speculations, and private control affecting the supply, distribution and movement of foods, clothing, fuel,
fertilizer, chemical, building, material, implements, machinery, and equipment required in agriculture and industry,
with power to requisition these commodities subject to the payment of just compensation. (As amended by Com.
Act No. 620.)

SEC. 2. For the purpose of administering this Act and carrying out its objective, the President may designate any
officer, without additional compensation, or any department, bureau, office, or instrumentality of the National
Government.

SEC. 3. Any person, firm, or corporation found guilty of the violation of any provision of this Act or of this Act or
any of the rules or regulations promulgated by the President under the authority of section one of this Act shall be
punished by imprisonment of not more than ten years or by a fine of not more than ten thousand pesos, or by
both. If such violation is committed by a firm or corporation, the manager, managing director, or person charge
with the management of the business of such firm, or corporation shall be criminally responsible therefor.

SEC. 4. The President shall report to the national Assembly within the first ten days from the date of the opening
of its next regular session whatever action has been taken by him under the authority herein granted.

SEC. 5. To carry out the purposed of this Act, the President is authorized to spend such amounts as may be
necessary from the sum appropriated under section five Commonwealth Act Numbered four hundred and ninety-
 eight.

SEC. 6. If any province of this Act shall be declared by any court of competent jurisdiction to be unconstitutional
and void, such declaration shall not invalidate the remainder of this Act.

SEC. 7. This Act shall take upon its approval.

Approved, August 19, 1940.

COMMONWEALTH ACT NO. 671

AN ACT DECLARING A STATE OF TOTAL EMERGENCY AS A RESULT OF WAR INVOLVING THE

PHILIPPINES AND AUTHORIZING THE PRESIDENT TO PROMULGATE RULE AND REGULATIONS
TO MEET SUCH EMERGENCY.

Be it enacted the National Assembly of the Philippines;

SECTION 1. The existed of war between the United State and other countries of Europe and Asia, which involves
the Philippines, makes it necessary to invest the President with extraordinary powers in order to meet the
resulting emergency.

SEC. 2. Pursuant to the provision of Article VI, section 16, of the Constitution, the President is hereby authorized,
during the existence of the emergency, to promulgate such rules and regulation as he may deem necessary to
carry out the national policy declared in section 1 hereof. Accordingly, he is, among other things, empowered (a)
to transfer the seat of the Government or any of its subdivisions, branches, department, offices, agencies or
instrumentalities; (b) to reorganize the Government of the Commonwealth including the determination of the order
of precedence of the heads of the Executive Department; (c) to create new subdivision, branches, departments,
offices, agency or instrumentalities of government and to abolish any of those already existing; (d) to continue in
force laws and appropriation which would lapse or otherwise became inoperative, and to modify or suspend the
operation or application of those of an administrative character; (e) to imposed new taxes or to increase, reduce,
suspend, or abolish those in existence; (f) to raise funds through the issuance of bonds or otherwise, and to
authorize the expensive of the proceeds thereof; (g) to authorize the National, provincial, city or municipal
governments to incur in overdrafts for purposes that he may approve; (h) to declare the suspension of the
collection of credits or the payment of debts; and (i) to exercise such other power as he may deem necessary to
enable the Government to fulfill its responsibilities and to maintain and enforce its authority.

SEC. 3. The President of the Philippines report thereto all the rules and regulation promulgated by him under the
power herein granted.

SEC. 4. This Act shall take effect upon its approval and the rules and regulations. promulgated hereunder shall be
in force and effect until the Congress of the Philippines shall otherwise provide.

Approved December 16, 1941.

The above Acts cannot validly be invoked, Executive Order No. 68 was issued on July 29, 1947. Said Acts had elapsed upon the
liberation of the Philippines form the Japanese forces or, at the latest, when the surrender of Japan was signed in Tokyo on
September 2, 1945.

When both Acts were enacted by the Second National Assembly, we happened to have taken direct part in their consideration
and passage, not only as one of the members of said legislative body as chairman of the Committee on Third Reading population
Known as the "Little Senate." We are, therefore in a position to state that said measures were enacted by the second national
Assembly for the purpose of facing the emergency of impending war and of the Pacific War that finally broke out with the attack of
Pearl Harbor on December 7, 1941. We approved said extraordinary measures, by which under the exceptional circumstances
then prevailing legislative power were delegated to the President of the Philippines, by virtue of the following provisions of the
Constitution:

In time of war or other national emergency, the Congress may by law authorize the President, for a limited period
and subject to such restrictions as it may prescribe to promulgate rules and regulations to carry out declared
national policy. (Article VI, section 26.)

It has never been the purpose of the National Assembly to extend the delegation beyond the emergency created by the war as to
extend it farther would be violative of the express provision of the Constitution. We are of the opinion that there is no doubt on this
question.; but if there could still be any the same should be resolved in favor of the presumption that the National Assembly did
not intend to violate the fundamental law.

The absurdity of the contention that the emergency Acts continued in effect even after the surrender of Japan can not be
gainsaid. Only a few months after liberation and even before the surrender of Japan, or since the middle of 1945, the Congress
started to function normally. In the hypothesis that the contention can prevail, then, since 1945, that is, four years ago, even after
the Commonwealth was already replaced by the Republic of the Philippines with the proclamation of our Independence, two
district, separate and independence legislative organs, — Congress and the President of the Philippines — would have been and
would continue enacting laws, the former to enact laws of every nature including those of emergency character, and the latter to
enact laws, in the form of executive orders, under the so-called emergency powers. The situation would be pregnant with dangers
to peace and order to the rights and liberties of the people and to Philippines democracy.

Should there be any disagreement between Congress and the President of the Philippines, a possibility that no one can dispute
the President of the Philippines may take advantage of he long recess of Congress (two-thirds of every year ) to repeal and
overrule legislative enactments of Congress, and may set up a veritable system of dictatorship, absolutely repugnant to the letter
and spirit of the Constitution.

Executive Order No. 68 is equally offensive to the Constitution because it violates the fundamental guarantees of the due process
and equal protection of the law. It is especially so, because it permit the admission of many kinds evidence by which no innocent
person can afford to get acquittal and by which it is impossible to determine whether an accused is guilty or not beyond all
reasonable doubt.

The rules of evidence adopted in Executive Order No. 68 are a reproduction of the regulation governing the trial of twelve
criminal, issued by General Douglas Mac Arthur, Commander in Chief of the United State Armed Forces in Western Pacific, for
the purpose of trying among other, General Yamashita and Homma. What we said in our concurring and dissenting opinion to the
decision promulgated on December 19, 1945, in the Yamashita case, L-129, and in our concurring and dissenting opinion to the
resolution of January 23, 1946 in disposing the Homma case, L-244, are perfectly applicable to the offensive rules of evidence in
Executive Order No. 68. Said rules of evidence are repugnant to conscience as under them no justice can expected.

For all the foregoing, conformably with our position in the Yamashita and Homma cases, we vote to declare Executive Order No.
68 null and void and to grant petition.

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Today is Friday, February 01, 2019

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 factogovernment, and he can
suspended the old laws and promulgate new ones and make such changes in the old as he may see fit, but he is enjoined to
respect, unless absolutely prevented by the circumstances prevailing in the occupied territory, the municipal laws in force in the
country, that is, those laws which enforce public order and regulate social and commercial life of the country. On the other hand,
laws of a political nature or affecting political relations, such as, among others, the right of assembly, the right to bear arms, the
freedom of the press, and the right to travel freely in the territory occupied, are considered as suspended or in abeyance during
the military occupation. Although the local and civil administration of justice is suspended as a matter of course as soon as a
country is militarily occupied, it is not usual for the invader to take the whole administration into his own hands. In practice, the
local ordinary tribunals are authorized to continue administering justice; and judges and other judicial officers are kept in their
posts if they accept the authority of the belligerent occupant or are required to continue in their positions under the supervision of
the military or civil authorities appointed, by the Commander in Chief of the occupant. These principles and practice have the
sanction of all publicists who have considered the subject, and have been asserted by the Supreme Court and applied by the
President of the United States.

The doctrine upon this subject is thus summed up by Halleck, in his work on International Law (Vol. 2, p. 444): "The right of one
belligerent to occupy and govern the territory of the enemy while in its military possession, is one of the incidents of war, and
flows directly from the right to conquer. We, therefore, do not look to the Constitution or political institutions of the conqueror, for
authority to establish a government for the territory of the enemy in his possession, during its military occupation, nor for the rules
by which the powers of such government are regulated and limited. Such authority and such rules are derived directly from the
laws war, as established by the usage of the of the world, and confirmed by the writings of publicists and decisions of courts — in
fine, from the law of nations. . . . The municipal laws of a conquered territory, or the laws which regulate private rights, continue in
force during military occupation, excepts so far as they are suspended or changed by the acts of conqueror. . . . He,
nevertheless, has all the powers of a de facto government, and can at his pleasure either change the existing laws or make new
ones."

And applying the principles for the exercise of military authority in an occupied territory, which were later embodied in the said
Hague Conventions, President McKinley, in his executive order to the Secretary of War of May 19,1898, relating to the
occupation of the Philippines by United States forces, said in part: "Though the powers of the military occupant are absolute and
supreme, and immediately operate upon the political condition of the inhabitants, the municipal laws of the conquered territory,
such as affect private rights of person and property and provide for the punishment of crime, are considered as continuing in
force, so far as they are compatible with the new order of things, until they are suspended or superseded by the occupying
belligerent; and in practice they are not usually abrogated, but are allowed to remain in force and to be administered by the
ordinary tribunals, substantially as they were before the occupation. This enlightened practice is, so far as possible, to be
adhered to on the present occasion. The judges and the other officials connected with the administration of justice may, if they
accept the authority of the United States, continue to administer the ordinary law of the land as between man and man under the
supervision of the American Commander in Chief." (Richardson's Messages and Papers of President, X, p. 209.)

As to "de facto" government of the third kind, the Supreme Court of the United States, in the same case of
Thorington vs. Smith, supra, recognized the government set up by the Confederate States as a de factogovernment. In that case,
it was held that "the central government established for the insurgent States differed from the temporary governments at Castine
and Tampico in the circumstance that its authority did no originate in lawful acts of regular war; but it was not, on the account,
less actual or less supreme. And we think that it must be classed among the governments of which these are examples. . . .

In the case of William vs. Bruffy (96 U. S. 176, 192), the Supreme Court of the United States, discussing the validity of the acts of
the Confederate States, said: "The same general form of government, the same general laws for the administration of justice and
protection of private rights, which had existed in the States prior to the rebellion, remained during its continuance and afterwards.
As far as the Acts of the States do not impair or tend to impair the supremacy of the national authority, or the just rights of citizens
under the Constitution, they are, in general, to be treated as valid and binding. As we said in Horn vs. Lockhart (17 Wall., 570; 21
Law. ed., 657): "The existence of a state of insurrection and war did not loosen the bonds of society, or do away with civil
government or the regular administration of the laws. Order was to be preserved, police regulations maintained, crime
prosecuted, property protected, contracts enforced, marriages celebrated, estates settled, and the transfer and descent of
property regulated, precisely as in the time of peace. No one, that we are aware of, seriously questions the validity of judicial or
legislative Acts in the insurrectionary States touching these and kindered subjects, where they were not hostile in their purpose or
mode of enforcement to the authority of the National Government, and did not impair the rights of citizens under the Constitution'.
The same doctrine has been asserted in numerous other cases."

And the same court, in the case of Baldy vs. Hunter (171 U. S., 388, 400), held: "That what occured or was done in respect of
such matters under the authority of the laws of these local de facto governments should not be disregarded or held to be
invalid merely because those governments were organized in hostility to the Union established by the national Constitution; this,
because the existence of war between the United States and the Confederate States did not relieve those who are within the
insurrectionary lines from the necessity of civil obedience, nor destroy the bonds of society nor do away with civil government or
the regular administration of the laws, and because transactions in the ordinary course of civil society as organized within the
enemy's territory although they may have indirectly or remotely promoted the ends of the de facto or unlawful government
organized to effect a dissolution of the Union, were without blame 'except when proved to have been entered 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 above-
quoted proclamation of General Douglas MacArthur of October 23, 1944 — that is, whether it was the intention of the
Commander in Chief of the American Forces to annul and void thereby all judgments and judicial proceedings of the courts
established in the Philippines during the Japanese military occupation.

The phrase "processes of any other government" is broad and may refer not only to the judicial processes, but also to
administrative or legislative, as well as constitutional, processes of the Republic of the Philippines or other governmental
agencies established in the Islands during the Japanese occupation. Taking into consideration the fact that, as above indicated,
according to the well-known principles of international law all judgements and judicial proceedings, which are not of a political
complexion, of the de facto governments during the Japanese military occupation were good and valid before and remained so
after the occupied territory had come again into the power of the titular sovereign, it should be presumed that it was not, and
could not have been, the intention of General Douglas MacArthur, in using the phrase "processes of any other government" in
said proclamation, to refer to judicial processes, in violation of said principles of international law. The only reasonable
construction of the said phrase is that it refers to governmental processes other than judicial processes of court proceedings, for
according to a well-known rule of statutory construction, set forth in 25 R. C. L., p. 1028, "a statute ought never to be construed to
violate the law of nations if any other possible construction remains."

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

Moreover, from a contrary construction great inconvenience and public hardship would result, and great public interests would be
endangered and sacrificed, for disputes or suits already adjudged would have to be again settled accrued or vested rights
nullified, sentences passed on criminals set aside, and criminals might easily become immune for evidence against them may
have already disappeared or be no longer available, especially now that almost all court records in the Philippines have been
destroyed by fire as a consequence of the war. And it is another well-established rule of statutory construction that where great
inconvenience will result from a particular construction, or great public interests would be endangered or sacrificed, or great
mischief done, such construction is to be avoided, or the court ought to presume that such construction was not intended by the
makers of the law, unless required by clear and unequivocal words. (25 R. C. L., pp. 1025, 1027.)

The mere conception or thought of possibility that the titular sovereign or his representatives who reoccupies a territory occupied
by an enemy, may set aside or annul all the judicial acts or proceedings of the tribunals which the belligerent occupant had the
right and duty to establish in order to insure public order and safety during military occupation, would be sufficient to paralyze the
social life of the country or occupied territory, for it would have to be expected that litigants would not willingly submit their
litigation to courts whose judgements or decisions may afterwards be annulled, and criminals would not be deterred from
committing crimes or offenses in the expectancy that they may escaped the penalty if judgments rendered against them may be
afterwards set aside.

That the proclamation has not invalidated all the judgements and proceedings of the courts of justice during the Japanese
regime, is impliedly confirmed by Executive Order No. 37, which has the force of law, issued by the President of the Philippines
on March 10, 1945, by virtue of the emergency legislative power vested in him by the Constitution and the laws of the
Commonwealth of the Philippines. Said Executive order abolished the Court of Appeals, and provided "that all case which have
heretofore been duly appealed to the Court of Appeals shall be transmitted to the Supreme Court final decision." This provision
impliedly recognizes that the judgments and proceedings of the courts during the Japanese military occupation have not been
invalidated by the proclamation of General MacArthur of October 23, because the said Order does not say or refer to cases which
have been duly appealed to said court prior to the Japanese occupation, but to cases which had therefore, that is, up to March
10, 1945, been duly appealed to the Court of Appeals; and it is to be presumed that almost all, if not all, appealed cases pending
in the Court of Appeals prior to the Japanese military occupation of Manila on January 2, 1942, had been disposed of by the latter
before the restoration of the Commonwealth Government in 1945; while almost all, if not all, appealed cases pending on March
10, 1945, in the Court of Appeals were from judgments rendered by the Court of First Instance during the Japanese regime.

The respondent judge quotes a portion of Wheaton's International Law which say: "Moreover when it is said that an occupier's
acts are valid and under international law should not be abrogated by the subsequent conqueror, it must be remembered that no
crucial instances exist to show that if his acts should be reversed, any international wrong would be committed. What does
happen is that most matters are allowed to stand by the restored government, but the matter can hardly be put further than this."
(Wheaton, International Law, War, 7th English edition of 1944, p. 245.) And from this quotion the respondent judge "draws the
conclusion that whether the acts of the occupant should be considered valid or not, is a question that is up to the restored
government to decide; that there is no rule of international law that denies to the restored government to decide; that there is no
rule of international law that denies to the restored government the right of exercise its discretion on the matter, imposing upon it
in its stead the obligation of recognizing and enforcing the acts of the overthrown government."

There is doubt that the subsequent conqueror has the right to abrogate most of the acts of the occupier, such as the laws,
regulations and processes other than judicial of the government established by the belligerent occupant. But in view of the fact
that the proclamation uses the words "processes of any other government" and not "judicial processes" prisely, it is not necessary
to determine whether or not General Douglas MacArthur had power to annul and set aside all judgments and proceedings of the
courts during the Japanese occupation. The question to be determined is whether or not it was his intention, as representative of
the President of the United States, to avoid or nullify them. If the proclamation had, expressly or by necessary implication,
declared null and void the judicial processes of any other government, it would be necessary for this court to decide in the
present case whether or not General Douglas MacArthur had authority to declare them null and void. But the proclamation did not
so provide, undoubtedly because the author thereof was fully aware of the limitations of his powers as Commander in Chief of
Military Forces of liberation or subsequent conqueror.

Not only the Hague Regulations, but also the principles of international law, as they result from the usages established between
civilized nations, the laws of humanity and the requirements of the public of conscience, constitute or from the law of nations.
(Preamble of the Hague Conventions; Westlake, International Law, 2d ed., Part II, p. 61.) Article 43, section III, of the Hague
Regulations or Conventions which we have already quoted in discussing the first question, imposes upon the occupant the
obligation to establish courts; and Article 23 (h), section II, of the same Conventions, which prohibits the belligerent occupant "to
declare . . . suspended . . . in a Court of Law the rights and action of the nationals of the hostile party," forbids him to make any
declaration preventing the inhabitants from using their courts to assert or enforce their civil rights. (Decision of the Court of
Appeals of England in the case of Porter vs. Fruedenburg, L.R. [1915], 1 K.B., 857.) If a belligerent occupant is required to
establish courts of justice in the territory occupied, and forbidden to prevent the nationals thereof from asserting or enforcing
therein their civil rights, by necessary implication, the military commander of the forces of liberation or the restored government is
restrained from nullifying or setting aside the judgments rendered by said courts in their litigation during the period of occupation.
Otherwise, the purpose of these precepts of the Hague Conventions would be thwarted, for to declare them null and void would
be tantamount to suspending in said courts the right and action of the nationals of the territory during the military occupation
thereof by the enemy. It goes without saying that a law that enjoins a person to do something will not at the same time empower
another to undo the same. Although the question whether the President or commanding officer of the United States Army has
violated restraints imposed by the constitution and laws of his country is obviously of a domestic nature, yet, in construing and
applying limitations imposed on the executive authority, the Supreme Court of the United States, in the case of
Ochoa, vs. Hernandez (230 U.S., 139), has declared that they "arise from general rules of international law and from fundamental
principles known wherever the American flag flies."

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

3. The third and last question is whether or not the courts of the Commonwealth, which are the same as those existing prior to,
and continued during, the Japanese military occupation by the Philippine Executive Commission and by the so-called Republic of
the Philippines, have jurisdiction to continue now the proceedings in actions pending in said courts at the time the Philippine
Islands were reoccupied or liberated by the American and Filipino forces, and the Commonwealth Government was restored.

Although in theory the authority the authority of the local civil and judicial administration is suspended as a matter of course as
soon as military occupation takes place, in practice the invader does not usually take the administration of justice into his own
hands, but continues the ordinary courts or tribunals to administer the laws of the country which he is enjoined, unless absolutely
prevented, to respect. As stated in the above-quoted Executive Order of President McKinley to the Secretary of War on May 19,
1898, "in practice, they (the municipal laws) are not usually abrogated but are allowed to remain in force and to be administered
by the ordinary tribunals substantially as they were before the occupation. This enlightened practice is, so far as possible, to be
adhered to on the present occasion." And Taylor in this connection says: "From a theoretical point of view it may be said that the
conqueror is armed with the right to substitute his arbitrary will for all preexisting forms of government, legislative, executive and
judicial. From the stand-point of actual practice such arbitrary will is restrained by the provision of the law of nations which
compels the conqueror to continue local laws and institution so far as military necessity will permit." (Taylor, International Public
Law, p.596.) Undoubtedly, this practice has been adopted in order that the ordinary pursuits and business of society may not be
unnecessarily deranged, inasmuch as belligerent occupation is essentially provisional, and the government established by the
occupant of transient character.

Following these practice and precepts of the law of nations, Commander in Chief of the Japanese Forces proclaimed on January
3, 1942, when Manila was occupied, the military administration under martial law over the territory occupied by the army, and
ordered that "all the laws now in force in the Commonwealth, as well as executive and judicial institutions, shall continue to be
affective for the time being as in the past," and "all public officials shall remain in their present post and carry on faithfully their
duties as before." When the Philippine Executive Commission was organized by Order No. 1 of the Japanese Commander in
Chief, on January 23, 1942, the Chairman of the Executive Commission, by Executive Orders Nos. 1 and 4 of January 30 and
February 5, respectively, continued the Supreme Court, Court of Appeals, Court of First Instance, and justices of the peace of
courts, with the same jurisdiction in conformity with the instructions given by the Commander in Chief of the Imperial Japanese
Army in Order No. 3 of February 20, 1942. And on October 14, 1943 when the so-called Republic of the Philippines was
inaugurated, the same courts were continued with no substantial change in organization and jurisdiction thereof.

If the proceedings pending in the different courts of the Islands prior to the Japanese military occupation had been continued
during the Japanese military administration, the Philippine Executive Commission, and the so-called Republic of the Philippines, it
stands to reason that the same courts, which had become reestablished and conceived of as having in continued existence upon
the reoccupation and liberation of the Philippines by virtue of the principle of postliminy (Hall, International Law, 7th ed., p. 516),
may continue the proceedings in cases then pending in said courts, without necessity of enacting a law conferring jurisdiction
upon them to continue said proceedings. As Taylor graphically points out in speaking of said principles "a state or other
governmental entity, upon the removal of a foreign military force, resumes its old place with its right and duties substantially
unimpaired. . . . Such political resurrection is the result of a law analogous to that which enables elastic bodies to regain their
original shape upon removal of the external force, — and subject to the same exception in case of absolute crushing of the whole
fibre and content." (Taylor, International Public Law, p. 615.)

The argument advanced by the respondent judge in his resolution in support in his conclusion that the Court of First Instance of
Manila presided over by him "has no authority to take cognizance of, and continue said proceedings (of this case) to final
judgment until and unless the Government of the Commonwealth of the Philippines . . . shall have provided for the transfer of the
jurisdiction of the courts of the now defunct Republic of the Philippines, and the cases commenced and the left pending therein,"
is "that said courts were a government alien to the Commonwealth Government. The laws they enforced were, true enough, laws
of the Commonwealth prior to Japanese occupation, but they had become the laws — and the courts had become the institutions
— of Japan by adoption (U.S. vs.Reiter. 27 F. Cases, No. 16146), as they became later on the laws and institutions of the
Philippine Executive Commission and the Republic of the Philippines."

The court in the said case of U.S. vs. Reiter did not and could not say that the laws and institutions of the country occupied if
continued by the conqueror or occupant, become the laws and the courts, by adoption, of the sovereign nation that is militarily
occupying the territory. Because, as already shown, belligerent or military occupation is essentially provisional and does not
serve to transfer the sovereignty over the occupied territory to the occupant. What the court said was that, if such laws and
institutions are continued in use by the occupant, they become his and derive their force from him, in the sense that he may
continue or set them aside. The laws and institution or courts so continued remain the laws and institutions or courts of the
occupied territory. The laws and the courts of the Philippines, therefore, did not become, by being continued as required by the
law of nations, laws and courts of Japan. The provision of Article 45, section III, of the Hague Conventions of 1907 which
prohibits any compulsion of the population of occupied territory to swear allegiance to the hostile power, "extends to prohibit
everything which would assert or imply a change made by the invader in the legitimate sovereignty. This duty is neither to
innovate in the political life of the occupied districts, nor needlessly to break the continuity of their legal life. Hence, so far as the
courts of justice are allowed to continue administering the territorial laws, they must be allowed to give their sentences in the
name of the legitimate sovereign " (Westlake, Int. Law, Part II, second ed., p. 102). According to Wheaton, however, the victor
need not allow the use of that of the legitimate government. When in 1870, the Germans in France attempted to violate that rule
by ordering, after the fall of the Emperor Napoleon, the courts of Nancy to administer justice in the name of the "High German
Powers occupying Alsace and Lorraine," upon the ground that the exercise of their powers in the name of French people and
government was at least an implied recognition of the Republic, the courts refused to obey and suspended their sitting. Germany
originally ordered the use of the name of "High German Powers occupying Alsace and Lorraine," but later offered to allow use of
the name of the Emperor or a compromise. (Wheaton, International Law, War, 7th English ed. 1944, p. 244.)

Furthermore, it is a legal maxim, that excepting that of a political nature, "Law once established continues until changed by the
some competent legislative power. It is not change merely by change of sovereignty." (Joseph H. Beale, Cases on Conflict of
Laws, III, Summary Section 9, citing Commonwealth vs. Chapman, 13 Met., 68.) As the same author says, in his Treatise on the
Conflict on Laws (Cambridge, 1916, Section 131): "There can no break or interregnum in law. From the time the law comes into
existence with the first-felt corporateness of a primitive people it must last until the final disappearance of human society. Once
created, it persists until a change take place, and when changed it continues in such changed condition until the next change,
and so forever. Conquest or colonization is impotent to bring law to an end; in spite of change of constitution, the law continues
unchanged until the new sovereign by legislative acts creates a change."

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

On the other hand, during the American regime, when section 78 of Act No. 136 was enacted abolishing the civil jurisdiction of
the provost courts created by the military government of occupation in the Philippines during the Spanish-American War of 1898,
the same section 78 provided for the transfer of all civil actions then pending in the provost courts to the proper tribunals, that is,
to the justices of the peace courts, Court of First Instance, or Supreme Court having jurisdiction over them according to law. And
later on, when the criminal jurisdiction of provost courts in the City of Manila was abolished by section 3 of Act No. 186, the same
section provided that criminal cases pending therein within the jurisdiction of the municipal court created by Act No. 183 were
transferred to the latter.

That the present courts as the same courts which had been functioning during the Japanese regime and, therefore, can continue
the proceedings in cases pending therein prior to the restoration of the Commonwealth of the Philippines, is confirmed by
Executive Order No. 37 which we have already quoted in support of our conclusion in connection with the second question. Said
Executive Order provides"(1) that the Court of Appeals created and established under Commonwealth Act No. 3 as amended, be
abolished, as it is hereby abolished," and "(2) that all cases which have heretofore been duly appealed to the Court of Appeals
shall be transmitted to the Supreme Court for final decision. . . ." In so providing, the said Order considers that the Court of
Appeals abolished was the same that existed prior to, and continued after, the restoration of the Commonwealth Government; for,
as we have stated in discussing the previous question, almost all, if not all, of the cases pending therein, or which had theretofore
(that is, up to March 10, 1945) been duly appealed to said court, must have been cases coming from the Courts of First Instance
during the so-called Republic of the Philippines. If the Court of Appeals abolished by the said Executive Order was not the same
one which had been functioning during the Republic, but that which had existed up to the time of the Japanese occupation, it
would have provided that all the cases which had, prior to and up to that occupation on January 2, 1942, been dully appealed to
the said Court of Appeals shall be transmitted to the Supreme Court for final decision.

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

Having arrived at the above conclusions, it follows that the Court of First Instance of Manila has jurisdiction to continue to final
judgment the proceedings in civil case No. 3012, which involves civil rights of the parties under the laws of the Commonwealth
Government, pending in said court at the time of the restoration of the said Government; and that the respondent judge of the
court, having refused to act and continue him does a duty resulting from his office as presiding judge of that court, mandamus is
the speedy and adequate remedy in the ordinary course of law, especially taking into consideration the fact that the question of
jurisdiction herein involved does affect not only this particular case, but many other cases now pending in all the courts of these
Islands.

In view of all the foregoing it is adjudged and decreed that a writ of mandamus issue, directed to the respondent judge of the
Court of First Instance of Manila, ordering him to take cognizance of and continue to final judgment the proceedings in civil case
No. 3012 of said court. No pronouncement as to costs. So ordered.

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

Separate Opinions

DE JOYA, J., concurring:

The principal question involved in this case is the validity of the proceedings held in civil case No. 3012, in the Court of First
Instance of the City of Manila, under the now defunct Philippine Republic, during Japanese occupation; and the effect on said
proceedings of the proclamation of General Douglas MacArthur, dated October 23, 1944. The decision of this question requires
the application of principles of International Law, in connection with the municipal law in force in this country, before and during
Japanese occupation.

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

As International Law is an integral part of our laws, it must be ascertained and administered by this Court, whenever questions of
right depending upon it are presented for our determination, sitting as an international as well as a domestic Tribunal
(Kansas vs. Colorado, 185 U.S., 146; 22 Sup. Ct. 552; 46 Law. Ed., 838).

Since International Law is a body of rules actually accepted by nations as regulating their mutual relations, the proof of the
existence of a given rule is to be found in the consent of nations to abide by that rule; and this consent is evidenced chiefly by the
usages and customs of nations, and to ascertain what these usages and customs are, the universal practice is to turn to the
writings of publicists and to the decisions of the highest courts of the different countries of the world (The Habana, 175 U.S., 677;
20 Sup. Cit., 290; 44 Law. ed., 320).

But while usage is the older and original source of International Law, great international treaties are a later source of increasing
importance, such as The Hague Conventions of 1899 and 1907.

The Hague Conventions of 1899, respecting laws and customs of war on land, expressly declares that:

ARTICLE XLII. Territory is considered occupied when it is actually placed under the authority of the hostile army.

The occupation applies only to be territory where such authority is established, and in a position to assert itself.

ARTICLE XLIII. The authority of the legitimate power having actually passed into the hands of the occupant, the
later shall take all steps in his power to reestablish and insure, as far as possible, public order and safety, while
respecting, unless absolutely prevented, the laws in force in the country. (32 Stat. II, 1821.)

The above provisions of the Hague Convention have been adopted by the nations giving adherence to them, among which is
United States of America (32 Stat. II, 1821).

The commander in chief of the invading forces or military occupant may exercise governmental authority, but only when in actual
possession of the enemy's territory, and this authority will be exercised upon principles of international Law (New
Orleans vs. Steamship Co, [1874], 20 Wall., 387; Kelly vs. Sanders [1878], 99 U.S., 441; MacLeod vs. U.S., 229 U.S. 416; 33
Sup. Ct., 955; 57 Law Ed., 1260; II Oppenheim of International Law, section 167).

There can be no question that the Philippines was under Japanese military occupation, from January, 1942, up to the time of the
reconquest by the armed forces of the United States of the Island of Luzon, in February, 1945.

It will thus be readily seen that the civil laws of the invaded State continue in force, in so far as they do not affect the hostile
occupant unfavorably. The regular judicial Tribunals of the occupied territory continue usual for the invader to take the whole
administration into his own hands, partly because it is easier to preserve order through the agency of the native officials, and
partly because it is easier to preserve order through the agency of the native officials, and partly because the latter are more
competent to administer the laws in force within the territory and the military occupant generally keeps in their posts such of the
judicial and administrative officers as are willing to serve under him, subjecting them only to supervision by the military
authorities, or by superior civil authorities appointed by him.(Young vs. U.S., 39; 24 Law, ed., 992; Coleman vs. Tennessee, 97
U.S., 509; 24 Law ed., 1118; MacLeod vs. U.S., 229 U.S., 416; 33 Sup. Ct., 955; 57 Law. ed., 1260; Taylor on International Law,
sections 576. 578; Wilson on International Law; pp. 331-37; Hall on International Law, 6th Edition [1909], pp. 464, 465, 475, 476;
Lawrence on International Law, 7th ed., pp. 412, 413; Davis, Elements of International Law, 3rd ed., pp. 330-332 335; Holland on
International Law pp. 356, 357, 359; Westlake on International Law, 2d ed., pp. 121-23.)

It is, therefore, evident that the establishment of the government under the so-called Philippine Republic, during Japanese
occupation, respecting the laws in force in the country, and permitting the local courts to function and administer such laws, as
proclaimed in the City of Manila, by the Commander in Chief of the Japanese Imperial Forces, on January 3, 1942, was in
accordance with the rules and principles of International Law.

If the military occupant is thus in duly bound to establish in the territory under military occupation governmental agencies for the
preservation of peace and order and for the proper administration of justice, in accordance with the laws in force within territory it
must necessarily follow that the judicial proceedings conducted before the courts established by the military occupant must be
considered legal and valid, even after said government establish by the military occupant has been displaced by the legitimate
government of the territory.

Thus the judgments rendered by the Confederate Courts, during the American Civil War, merely settling the rights of private
parties actually within their jurisdiction, not tending to defeat the legal rights of citizens of the United States, nor in furtherance of
laws passed in aid of the rebellion had been declared valid and binding (Cock vs. Oliver, 1 Woods, 437; Fed. Cas., No. 3, 164;
Coleman vs. Tennessee, 97 U. S., 509; 24 Law. ed., 118; 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 Osmeña and the members of his cabinet; and

WHEREAS, under enemy duress, a so-called government styled as the "Republic of the Philippines" was
established on October 14, 1943, based upon neither the free expression of the people's will nor the sanction of
the Government of the United States, and is purporting to exercise Executive, Judicial and Legislative powers of
government over the people;

Now, therefore, I, Douglas MacArthur, General, United States Army, as Commander in Chief of the military forces
committed to the liberation of the Philippines, do hereby proclaim and declare:

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

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

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

I do hereby announce my purpose progressively to restore and extend to the people of the Philippines the sacred
right of government by constitutional process under the regularly constituted Commonwealth Government as
rapidly as the several occupied areas are liberated to the military situation will otherwise permit;

I do enjoin upon all loyal citizens of the Philippines full respect for and obedience to the Constitution of the
Commonwealth of the Philippines and the laws, regulations and other acts of their duly constituted government
whose seat is now firmly re-established on Philippine soil.

October 23, 1944.

DOUGLAS MACARTHUR
General U. S. Army
Commander in Chief

IS THE OCTOBER PROCLAMATION LAW?

In times of war the Commander in Chief of an army is vested with extraordinary inherent powers, as a natural result of the nature
of the military operations aimed to achieve the purposes of his country in the war, victory being paramount among them.

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

In May, 1862, after the capture of New Orleans by the United States Army, General Butler, then in command of
the army at that place, issued a general order appointing Major J. M. Bell, volunteer aide-de-camp, of the division
staff, provost judge of the city, and directed that he should be obeyed and respected accordingly. The same order
appointed Capt. J. H. French provost marshal of the city, the Capt. Stafford deputy provost marshal. A few days
after this order the Union Bank lent to the plaintiffs the sum of $130,000, and subsequently, the loan not having
been repaid, brought suit before the provost judge to recover the debt. The defense was taken that the judge had
no jurisdiction over the civil cases, but judgement was given against the borrowers, and they paid the money
under protest. To recover it back is the object of the present suit, and the contention of the plaintiffs is that the
judgement was illegal and void, because the Provost Court had no jurisdiction of the case. The judgement of the
District Court was against the plaintiffs, and this judgement was affirmed by the Supreme Court of the State. To
this affirmance error is now assigned.

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

Assuming that the case is thus brought within our right to review it, the controlling question is whether the
commanding general of the army which captured New Orleans and held it in May 1862, had authority after the
capture of the city to establish a court and appoint a judge with power to try and adjudicate civil causes. Did the
Constitution of the United States prevent the creation of the civil courts in captured districts during the war of the
rebellion, and their creation by military authority?

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

In view of these decisions it is not to be questioned that the Constitution did not prohibit the creation by the
military authority of court for the trial of civil causes during the civil war in conquered portions of the insurgent
States. The establishment of such courts is but the exercise of the ordinary rights of conquest. The plaintiffs in
error, therefore, had no constitutional immunity against subjection to the judgements of such courts. They argue,
however, that if this be conceded, still General Butler had no authority to establish such a court; that the President
alone, as a Commander in Chief, had such authority. We do not concur in this view. General Butler was in
command of the conquering and the occupying army. He was commissioned to carry on the war in Louisina. He
was, therefore, invested with all the powers of making war, so far as they were denied to him by the Commander
in Chief, and among these powers, as we have seen, was of establishing courts in conquered territory. It must be
presumed that he acted under the orders of his superior officer, the President, and that his acts, in the prosecution
of the war, were the acts of his commander in chief. (Mechanics' etc. Bank vs. Union Bank, 89 U. S. [22 Wall.],
276-298.)

There is no question, therefore, that when General of the Army Douglas MacArthur issued on October Proclamation, he did it in
the legitimate exercise of his powers. He did it as the official representative of the supreme authority of the United States of
America. Consequently, said proclamation is legal, valid, and binding.

Said proclamation has the full force of a law. In fact, of a paramount law. Having been issued in the exercise of the American
sovereignty, in case of conflict, it can even supersede, not only the ordinary laws of the Commonwealth of the Philippines, but
also our Constitution itself while we remain under the American flag.

"PROCESS" IN THE OCTOBER PROCLAMATION

In the third section of the dispositive part of the October Proclamation, it is declared that all laws, regulations and processes of
any other government in the Philippines than that of the Commonwealth, are null and void.

Does the word "processes" used in the proclamation include judicial processes?

In its broadest sense, process is synonymous with proceedings or procedures and embraces all the steps and proceedings in a
judicial cause from it commencement to its conclusion.

PROCESS. In Practice. — The means of compelling a defendant to appear in court after suing out the original
writ, in civil, and after indictment, in criminal cases.

The method taken by law to compel a compliance with the original writ or command as of the court.
A writ, warrant, subpoena, or other formal writing issued by authority law; also the means of accomplishing an
end, including judicial proceedings; Gollobitch vs. Rainbow, 84 la., 567; 51 N. W., 48; the means or method
pointed out by a statute, or used to acquire jurisdiction of the defendants, whether by writ or notice. Wilson vs.R.
Co. (108 Mo., 588; 18 S. W., 286; 32 Am. St. Rep., 624). (3 Bouvier's Law Dictionary, p. 2731.)

A. Process generally. 1. Definition. — As a legal term process is a generic word of every comprehensive
signification and many meanings. It is broadest sense it is equivalent to, or synonymous with, "proceedings" or
"procedure," and embraces all the steps and proceedings in a cause from its commencement to its conclusion.
Sometimes the term is also broadly defined as the means whereby a court compels a compliance with it
demands. "Process" and "writ" or "writs" are synonymous in the sense that every writ is a process, and in a
narrow sense of the term "process" is limited to judicial writs in an action, or at least to writs or writings issued
from or out of court, under the seal thereof, and returnable thereto; but it is not always necessary to construe the
term so strictly as to limit it to a writ issued by a court in the exercise of its ordinary jurisdiction; the term is
sometimes defined as a writ or other formal writing issued by authority of law or by some court, body, or official
having authority to issue it; and it is frequently used to designate a means, by writ or otherwise , of acquiring
jurisdiction of defendant or his property, or of bringing defendant into, or compelling him to appear in, court to
answer.

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

The definition of "process" given by Lord Coke comprehends any lawful warrant, authority, or proceeding by which
a man may be arrested. He says: "Process of law is two fold, namely, by the King's writ, or by proceeding and
warrant, either in deed or in law, without writ." (People vs. Nevins [N. Y.] Hill, 154, 169, 170; State vs. Shaw, 50
A., 869; 73 Vt., 149.)

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

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

A "process" is an instrument in an epistolary from running in the name of the sovereign of a state and issued out
of a court of justice, or by a judge thereof, at the commencement of an action or at any time during its progress or
incident thereto, usually under seal of the court, duly attested and directed to some municipal officer or to the
party to be bound by it, commanding the commission of some act at or within a specified time, or prohibiting the
doing of some act. The cardinal requisites are that the instrument issue from a court of justice, or a judge thereof;
that it run in the name of the sovereign of the state; that it be duly attested, but not necessarily by the judge,
though usually, but not always, under seal; and that it be directed to some one commanding or prohibiting the
commission of an act. Watson vs. Keystone Ironworks Co., 74 P., 272, 273; 70 Kan., 43. (34 Words and Phrases,
permanent edition, 1940 edition, p. 148.)
 Jacobs in his Law Dictionary says: "Process" has two qualifications: First, it is largely taken for all proceedings in
any action or prosecution, real or personal, civil or criminal, from the beginning to the end; secondly, that is
termed the "process" by which a man is called into any temporal court, because the beginning or principal part
thereof, by which the rest is directed or taken. Strictly, it is a proceeding after the original, before the judgement. A
policy of fire insurance contained the condition that if the property shall be sold or transferred, or any change
takes place in title or possession, whether by legal process or judicial decree or voluntary transfer or convenience,
then and in every such case the policy shall be void. The term "legal process," as used in the policy, means what
is known as a writ; and, as attachment or execution on the writs are usually employed to effect a change of title to
property, they are or are amongst the processes contemplated by the policy. The words "legal process" mean all
the proceedings in an action or proceeding. They would necessarily embrace the decree, which ordinarily includes
the proceedings. Perry vs. Lorillard Fire Ins. Co., N. Y., 6 Lans., 201, 204. See, also, Tipton vs. Cordova, 1 N. M.,
383, 385. (34 Words and Phrases, permanent edition, 1940 edition, p. 148.)

"Process" in a large acceptation, is nearly synonymous with "proceedings," and means the entire proceedings in
an action, from the beginning to the end. In a stricter sense, it is applied to the several judicial writs issued in an
action. Hanna vs. Russell, 12 Minn., 80, 86 (Gil., 43, 45). (34 Words and Phrases, permanent edition, 1940,
edition 149.)

The term "process" as commonly applied, intends that proceeding by which a party is called into court, but it has
more enlarged signification, and covers all the proceedings in a court, from the beginning to the end of the suit;
and, in this view, all proceedings which may be had to bring testimony into court, whether viva voceor in writing,
may be considered the process of the court. Rich vs. Trimple, Vt., 2 Tyler, 349, 350. Id.

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

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

"Judicial process" comprehends all the acts of then court from the beginning of the proceeding to its end, and in a
narrower sense is the means of compelling a defendant to appear in court after suing out the original writ in civil
case and after the indictment in criminal cases, and in every sense is the act of the court and includes any means
of acquiring jurisdiction and includes attachment, garnishment, or execution, and also a writ. Blair vs. Maxbass
Security Bank of Maxbass, 176 N. W., 98, 199; 44 N. D. 12 (23 Words and Phrases, permanent edition 1940
edition, p. 328.)

There is no question that the word process, as used in the October Proclamation, includes all judicial processes or proceedings.

The intention of the author of the proclamation of including judicial processes appears clearly in the preamble of the document.

The second "Whereas," states that so-called government styled as the "Republic of the Philippines," based upon neither the free
expression of the people's will nor the sanction of the Government of the United States, and is purporting to the exercise
Executive, Judicial, and Legislative powers of government over the people."

It is evident from the above-mentioned words that it was the purpose of General MacArthur to declare null and void all acts of
government under the Japanese regime, and he used, in section 3 of he dispositive part, the word laws, as pertaining to the
legislative branch, the word regulations, as pertaining to the executive branch, and lastly, the word processes, as pertaining to the
judicial branch of the government which functioned under the Japanese regime.

It is reasonable to assume that he might include in the word "process." besides those judicial character, those of executive or
administrative character. At any rate, judicial processes cannot be excluded.

THE WORDS OF PROCLAMATION EXPRESS UNMISTAKABLY

THE INTENTION OF THE AUTHOR

The October Proclamation is written in such a way that it is impossible to make a mistake as to the intention of its author.

Oliver Wendell Holmes, perhaps the wisest man who had ever sat in the Supreme Court of the United States, the following:

When the words in their literal sense have a plain meaning, courts must be very cautious in allowing their
imagination to give them a different one. Guild vs. Walter, 182 Mass., 225, 226 (1902)

Upon questions of construction when arbitrary rule is involved, it is always more important to consider the words
and the circumstances than even strong analogies decisions. The successive neglect of a series of small
distinctions, in the effort to follow precedent, is very liable to end in perverting instruments from their plain
meaning. In no other branch of the law (trusts) is so much discretion required in dealing with authority. . . . There
is a strong presumption in favor of giving them words their natural meaning, and against reading them as if they
said something else, which they are not fitted to express. (Merrill vs. Preston, 135 Mass., 451, 455 (1883).

When the words of an instrument are free from ambiguity and doubt, and express plainly, clearly and distinctly the sense of the
framer, there is no occasion to resort to other means of interpretation. It is not allowable to interpret what needs no interpretation.

Very strong expression have been used by the courts to emphasize the principle that they are to derive their knowledge of the
legislative intention from the words or language of the statute itself which the legislature has used to express it. The language of a
statute is its most natural guide. We are not liberty to imagine an intent and bind the letter to the intent.

The Supreme Court of the United States said: "The primary and general rule of statutory construction is that the intent of the law-
maker is to be found in the language that he has used. He is presumed to know the meaning of the words and the rules of
grammar. The courts have no function of legislation, and simply seek to ascertain the will of the legislator. It is true that there are
cases in which the letter of the statute is not deemed controlling, but the cases are few and exceptional and only arise where
there are cogent reasons for believing that the letter does not fully and accurately disclose the intent. No mere ommission, no
mere failure to provide for contingencies, which it may seem wise should have specifically provided for will justify any judicial
addition to the language of the statute." (United States vs. Goldenberg, 168 U. S., 95, 102, 103; 18 S. C. Rep., 3; 42 Law. ed.,
394.)

That the Government of the Commonwealth of the Philippines shall be the sole and only government in our country; that our laws
are in full force and effect and legally binding; that "all laws, regulations and processes of any other government are null and void
and without legal effect", are provisions clearly, distinctly, unmistakably expressed in the October Proclamation, as to which there
is no possibility of error, and there is absolutely no reason in trying to find different meanings of the plain words employed in the
document.

As we have already seen, the annulled processes are precisely judicial processes, procedures and proceedings, including the
one which is under our consideration.

THE OCTOBER PROCLAMATION ESTABLISHES A CLEAR POLICY

Although, as we have already stated, there is no possible mistakes as to the meaning of the words employed in the October
Proclamation, and the text of the document expresses, in clear-cut sentences, the true purposes of its author, it might not be
amiss to state here what was the policy intended to be established by said proclamation.

It is a matter of judicial knowledge that in the global war just ended on September 2, 1945, by the signatures on the document of
unconditional surrender affixed by representatives of the Japanese government, the belligerents on both sides resorted to what
may call war weapons of psychological character.

So Japan, since its military forces occupied Manila, had waged an intensive campaign propaganda, intended to destroy the faith
of the Filipino people in America, to wipe out all manifestations of American or occidental civilization, to create interest in all
things Japanese, which the imperial officers tried to present as the acme of oriental culture, and to arouse racial prejudice among
orientals and occidentals, to induce the Filipinos to rally to the cause of Japan, which she tried to make us believe is the cause of
the inhabitants of all East Asia.

It is, then, natural that General MacArthur should take counter-measures to neutralize or annul completely all vestiges of
Japanese influence, specially those which might jeopardize in any way his military operations and his means of achieving the
main objective of the campaign of the liberation, that is, to restore in our country constitutional processes and the high ideals
constitute the very essence of democracy.

It was necessary to free, not only our territory, but also our spiritual patrimony. It was necessary, not only to restore to us the
opportunity of enjoying the physical treasures which a beneficent Providence accumulated on this bountiful land, the true
paradise in the western Pacific, but to restore the full play of our ideology, that wonderful admixture of sensible principles of
human conduct, bequeathed to us by our Malayan ancestors, the moral principles of the Christianity assimilated by our people
from teachers of Spain, and the common-sense rules of the American democratic way of life.

It was necessary to free that ideology from any Japanese impurity.

Undoubtedly, the author of the proclamation thought that the laws, regulations, and processes of all the branches of the
governments established under the Japanese regime, if allowed to continue and to have effect, might be a means of keeping and
spreading in our country the Japanese influence, with the same deadly effects as the mines planted by the retreating enemy.

The government offices and agencies which functioned during the Japanese occupation represented a sovereignty and ideology
antagonistic to the sovereignty and ideology which MacArthur's forces sought to restore in our country.

Under chapter I of the Japanese Constitution, it is declared that Japan shall reigned and governed by a line Emperors unbroken
for ages eternal (Article 1); that the Emperor is sacred and inviolable (Article 3); that he is the head of the Empire, combining in
himself the rights of the sovereignty (Article 4); that he exercises the legislative power (Article 5); that he gives sanction to laws,
and orders to be promulgated and executed (Article 6);that he has the supreme command of the Army and Navy (Article 11); that
he declares war, makes peace, and concludes treaties (Article 13).

There is no reason for allowing to remain any vestige of Japanese ideology, the ideology of a people which as confessed in a
book we have at our desk, written by a Japanese, insists in doing many things precisely in a way opposite to that followed by the
rest of the world.

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

It is an ideology which dignifies harakiri or sepukku, the most bloody and repugnant from suicide, and on September 13, 1912, on
the occasion of the funeral of Emperor Meiji, induced General Maresuke Nogi and his wife to practice the abhorrent "junshi", and
example of which is offered to us in the following words of a historian:

When the Emperor's brother Yamato Hiko, died in 2 B. C., we are told that, following the occasion, his attendants
were assembled to from the hito-bashira (pillar-men) to gird the grave. They were buried alive in circle up to the
neck around the thomb and "for several days they died not, but wept and wailed day night. At last they died not,
but wept and wailed day night. At last they did not rotted. Dogs and cows gathered and ate them." (Gowen, an
Outline of History of Japan, p. 50.)

The practice shows that the Japanese are the spiritual descendants of the Sumerians, the ferocious inhabitants of Babylonia
who, 3500 years B. C., appeared in history as the first human beings to honor their patesis by killing and entombing with him his
window, his ministers, and notable men and women of his kingdom, selected by the priests to partake of such abominable honor.
(Broduer, The Pageant of Civilization, pp. 62-66.)

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

The conduct of the Japanese during the occupation shows a shocking an anchronism of a modern world power which seems to
be re-incarnation of one whose primitive social types of pre-history, whose proper place must be found in an archeological
collection. It represents a backward jump in the evolution of ethical and juridical concepts, a reversion that, more than a simple
pathological state, represents a characteristics and well defined case of sociological teratology.

Since they entered the threshold of our capital, the Japanese had announced that for every one of them killed they would kill ten
prominent Filipinos. They promised to respect our rights by submitting us to the wholesale and indiscriminate slapping, tortures,
and atrocious massacres. Driving nails in the cranium, extraction of teeth and eyes, burnings of organs, hangings, diabolical
zonings, looting of properties, establishments of redlight districts, machine gunning of women and children, interment of alive
persons, they are just mere preludes of the promised paradised that they called "Greater East Asia Co-Prosperity Sphere".

They promised religious liberty by compelling all protestant sects to unite, against the religious scruples and convictions of their
members, in one group, and by profaning convents, seminaries, churches, and other cult centers of the Catholics, utilizing them
as military barracks, munitions dumps, artillery base, deposits of bombs and gasoline, torture chambers and zone, and by
compelling the government officials and employees to face and to bow in adoration before that caricature of divinity in the
imperial palace of Tokyo.

The Japanese offered themselves to be our cultural mentors by depriving us of the use of our schools and colleges, by destroying
our books and other means of culture, by falsifying the contents of school texts, by eliminating free press, the radio, all elemental
principles of civilized conduct, by establishing classes of rudimentary Japanese so as to reduce the Filipinos to the mental level of
the rude Japanese guards, and by disseminating all kinds of historical, political, and cultural falsehoods.

Invoking our geographical propinquity and race affinity, they had the insolence of calling us their brothers, without the prejuce of
placing of us in the category of slaves, treating the most prominent Filipinos in a much lower social and political category than
that of the most ignorant and brutal subject of the Emperor.

The civil liberties of the citizens were annulled. Witnesses and litigants were slapped and tortured during investigations. In the
prosecuting attorney's offices, no one was safe. When the Japanese arrested a person, the lawyer who dared to intercede was
also placed under arrest. Even courts were not free from their dispotic members. There were judges who had to trample laws and
shock their conscience in order not to disgust a Nipponese.
The most noble of all professions, so much so that the universities of the world could not conceive of higher honor that may be
conferred than that of Doctor of Laws, became the most despised. It was dangerous to practice the profession by which faith in
the effectiveness of law is maintained; citizens feel confident in the protection of their liberties, honor, and dignity; the weak may
face the powerful; the lowest citizen is not afraid of the highest official; civil equality becomes reality; justice is admnistered with
more efficiency; and democracy becomes the best system of government and the best guaranty for the welfare and happiness of
the individual human being. In fact, the profession of law was annulled, and the best lawyers for the unfortunate prisoners in Fort
Santiago and other centers of torture were the military police, concubines, procurers, and spies, the providers of war materials
and shameful pleasures, and the accomplices in fraudulent transactions, which were the specialty of many naval and military
Japanese officers.

The courts and Filipino government officials were completely helpless in the question of protecting the constitutional liberties and
fundamental rights of the citizens who happen to be unfortunate enough to fall under the dragnet of the hated kempei. Even the
highest government officials were not safe from arrest and imprisonment in the dreaded military dungeons, where torture or
horrible death were always awaiting the defenseless victim of the Japanese brutality.

May any one be surprised if General MacArthur decided to annul all the judicial processes?

The evident policy of the author of the October Proclamation can be seen if we take into consideration the following provisions of
the Japanese Constitution:

ART. 57. The Judicature shall be exercised by the Courts of Law according to law, in the name of the Emperor.

ART. 61. No suit at law, which relates to rights alleged to have been infringed by the illegal measures of the
executive authority .. shall be taken cognizance of by a Court of Law.

INTERNATIONAL LAW

Nobody dared challenge the validity of the October Proclamation.

Nobody dared challenge the authority of the military Commander in Chief who issued it.

Certainly not because of the awe aroused by the looming figure of General of the Army Douglas MacArthur, the Allied Supreme
Commander, the military hero, the greatest American general, the Liberator of the Philippines, the conqueror of Japan, the gallant
soldier under whose authority the Emperor of the Japan, who is supposed to rule supreme for ages as a descendant of gods, is
receiving orders with the humility of a prisoner of war.

No challenge has been hurled against the proclamation or the authority of the author to issue it, because everybody
acknowledges the full legality of its issuance.

But because the proclamation will affect the interest and the rights of a group of individuals, and to protect the same, a way is
being sought to neutralize the effect of the proclamation.

The way found is to invoke international law. The big and resounding word is considered as a shibboleth powerful enough to
shield the affected persons from the annulling impact.

Even then, international law is not invoked to challenge the legality or authority of the proclamation, but only to construe it in a
convenient way so that judicial processes during the Japanese occupation, through an exceptional effort of the imagination, might
to segregated from the processes mentioned in the proclamation.

An author said that the law of nations, the "jus gentiun", is not a fixed nor immutable science. On the country, it is developing
incessantly, it is perpetually changing in forms. In each turn it advances or recedes, according to the vicissitudes of history, and
following the monotonous rythm of the ebb and rise of the tide of the sea.

Le driot des gens, en effet, n'est point une science fixe est immuable: bein au contraire, il se developpe sans
cesse, il change eternellement de formes; tour il avance et il recule, selon less vicissitudes de histoire et suivan
un rhythm monotone qui est comme le flux et le reflux d'un mer. (M. Revon, De l'existence du driot international
sous la republique romain.)

Another author has this to say:

International law, if it is or can be a science at all, or can be, at most a regulative science, dealing with the conduct
of States, that is, human beings in a certain capacity; and its principles and prescriptions are not, like those of
science proper, final and unchanging. The substance of science proper is already made for man; the substance of
international is actually made by man, — and different ages make differently." (Coleman Philippson, The
International Law and Custom of Ancient Greece of Rome, Vol. I, p. 50.)

"Law must be stable, and yet it cannot stand still." (Pound, Interpretations of Legal History., p. 1. ) Justice Cardozo adds: "Here is
the great antimony confronting us at every turn. Rest and motion, unrelieved and unchecked, are equally destructive. The law,
like human kind, if life is to continue, must find some path compromise." (The Growth of Law p. 2.) Law is just one of the
manifestations of human life, and "Life has relations not capable of division into inflexible compartments. The moulds expand and
shrink," (Glanzer vs. Shepard, 233 N.Y., 236, 241.)

The characteristic plasticity of law is very noticeable, much more than in any other department, in international law.

In a certain matters it is clear we have made substantial progress, but in other points, he (M. Revon) maintains,
we have retrograded; for example, in the middle ages the oath was not always respected as faithfully as in ancient
Rome; and nearer our own times, in the seventeenth century, Grotius proclaims the unquestioned right of the
belligerents to massacre the women and the children of the enemy; and in our more modern age the due
declaration of war which Roman always conformed to has not been invariably observed. (Coleman Philippson,
The International Law and Custom of Ancient Greece and Rome, Vol. I, p. 209.)

Now let us see if any principle of international law may effect the enforcement of the October Proclamation.

In this study we should be cautioned not to allow ourselves to be deluded by generalities and vagueness which are likely to lead
us easily to error, in view of the absence of codification and statutory provisions.

Our Constitution provides:

The Philippines renounces war as an instrument of national policy, and adopts the generally accepted principles
of international law as part of the law of the Nation. (Sec. 3, Art. II.)

There being no codified principles of international law, or enactments of its rules, we cannot rely on merely legal precepts.

With the exception of international conventions and treaties and, just recently, the Charter of the United Nations, adopted in San
Francisco Conference on June 26, 1945, we have to rely on unsystemized judicial pronouncements and reasonings and on
theories, theses, and propositions that we may find in the works of authors and publicists.

Due to that characteristic pliability and imprecision of international law, the drafters of our Constitution had to content themselves
with "generally accepted principles."

We must insists, therefore, that the principles should be specific and unmistakably defined and that there is definite and
conclusive evidence to the effect that they generally accepted among the civilized nations of the world and that they belong to the
current era and no other epochs of history.

The temptation of assuming the role of a legislator is greater in international law than in any other department of law, since there
are no parliaments, congresses, legislative assemblies which can enact laws and specific statutes on the subject. It must be our
concern to avoid falling in so a great temptation, as its, dangers are incalculable. It would be like building castles in the thin air, or
trying to find an exit in the thick dark forest where we are irretrievably lost. We must also be very careful in our logic. In so vast a
field as international law, the fanciful wandering of the imagination often impair the course of dialistics.

THE OCTOBER PROCLAMATION AND INTERNATIONAL LAW

Is there any principle of international law that may effect the October Proclamation?

We tried in vain to find out in the majority opinion anything as to the existence of any principle of international law under which the
authority of General MacArthur to issue the proclamation can effectively be challenged.

No principle of international law has been, or could be invoked as a basis for denying the author of the document legal authority
to issue the same or any part thereof.

We awaited in vain for any one to dare deny General MacArthur the authority, under international law, to declare null and void
and without effect, not only the laws and regulations of the governments under the Japanese regime, but all the processes of said
governments, including judicial processes.

If General MacArthur, as commander in Chief of the American Armed Forces of Liberation, had authority, full and legal, to issue
the proclamation, the inescapable result will be the complete viodance and nullity of all judicial processes, procedures, and
proceedings of all courts under the Japanese regime.

But those who are sponsoring the cause of said judicial processes try to achieve their aim, not by direct means, but by following a
tortuous side-road.

They accept and recognize the full authority of the author of the proclamation to issue it and all its parts, but they maintain that
General MacArthur did not and could not have in mind the idea of nullifying the judicial processes during the Japanese
occupation, because that will be in violation of the principles of international law.

If we follow the reasoning of the majority opinion we will have to reach the conlusion that the world "processes" does not appear
at all in the October Proclamation.

It is stated more than once, and reiterated with dogmatic emphasis, that under the principles of international law the judicial
processes under an army occupation cannot be invalidated.

But we waited in vain for the specific principle of international law, only one of those alluded to, to be pointed out to us.

If the law exist, it can be pointed out. If the principle exists, it can stated specifically. The word is being used very often in plural,
principles, but we need only one to be convinced.

The imagined principles are so shrouded in a thick maze of strained analogies and reasoning, that we confess our inability even
to have a fleeting glimpse at them through their thick and invulnerable wrappers.

At every turn international law, the blatant words, are haunting us with the deafening bray of a trumpet, but after the transient
sound has fled away, absorbed by the resiliency of the vast atmosphere, the announced principles, which are the very soul of
international law, would disappear too with the lighting speed of a vanishing dream.
 WEAKNESS OF THE MAJORITY POSITION

In the majority opinion three questions are propounded: first, whether judicial acts and proceedings during the Japanese
occupation are valid even after liberation; second whether the October Proclamation had invalidated all judgement and judicial
proceedings under the Japanese regime; and third, whether the present courts of the Commonwealth may continue the judicial
proceedings pending at the time of liberation.

As regards the first question, it is stated that it is a legal tourism in political and international law that all acts of 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 factogovernments under the
Japanese regime being good and valid, "it should be presumed that it was not, and could not have been, the intention of General
Douglas MacArthur to refer to judicial processes, when he used the last word in the October Proclamation, and that it only refers
to government processes other than judicial processes or court proceedings."

The weakness and absolute ineffectiveness of the argument are self-evident.

It is maintained that when General MacArthur declared the processes of the governments under the Japanese regime null and
void, he could not refer to judicial processes, because the same are valid and remained so under the legal truism announced by
the majority to the effect that, under political and international law, all official acts of a de facto government, legislative, executive
or judicial, are valid.

But we have seen already how the majority excepted from said legal truism the judicial processes of "political complexion."

And now it is stated that in annulling the processes of the governments under Japanese occupation, General MacArthur referred
to "processes other than judicial processes."

That is, the legislative and executive processes.

But, did not the majority maintain that all acts and proceedings of legislative and executive departments of a de factogovernments
are good and valid? Did it not maintain that they are so as a "legal truism in political and international law?"

Now if the reasoning of the majority to the effect that General MacArthur could not refer to judicial processes because they are
good and valid in accordance with international law, why should the same reasoning not apply to legislative and executive
processes?

Why does the majority maintain that, notwithstanding the fact that, according that said legal truism, legislative and executive
official acts of de facto governments are good and valid, General MacArthur referred to the latter in his annulling proclamation,
but not to judicial processes?

If the argument is good so as to exclude judicial processes from the effect of the October Proclamation, we can see no logic in
considering it bad with respect to legislative and executive processes.

If the argument is bad with respect to legislative and executive processes, there is no logic in holding that it is not good with
respect to judicial processes.

Therefore, if the argument of the majority opinion is good, the inevitable conclusion is that General MacArthur did not declare null
and void any processes, at all, whether legislative processes, executive processes, or judicial processes, and that the word
"processes" used by him in the October Proclamation is a mere surplusage or an ornamental literary appendix.

The absurdity of the conclusion unmasks the utter futility of the position of the majority, which is but a mere legal pretense that
cannot stand the least analysis or the test of logic.

A great legal luminary admonished that we must have courage to unmasks pretense if we are to reach a peace that will abide
beyond the fleeting hour.

It is admitted that the commanding general of a belligerent army of occupation as an agent of his government, "may not
unlawfully suspend existing laws and promulgate new ones in the occupied territory if and when exigencies of the military
occupation demand such action," but it is doubted whether the commanding general of the army of the restored legitimate
government can exercise the same broad legislative powers.

We beg to disagree with a theory so unreasonable and subversive.

We cannot accept that the commanding general of an army of occupation, of a rebellious army, of an invading army, or of a
usurping army, should enjoy greater legal authority during the illegal, and in the case of the Japanese, iniquitous and bestial
occupation, than the official representative of the legitimate government, once restored in the territory wrested from the brutal
invaders and aggressors. We cannot agree with such legal travesty.

Broad and unlimited powers are granted and recognized in the commanding general of an army of invasion, but the shadow of
the vanishing alleged principle of international law is being brandished to gag, manacle, and make completely powerless the
commander of an army of liberation to wipe out the official acts of the government for usurpation, although said acts might impair
the military operation or neutralize the public policies of the restored legitimate government.

We are not unmindful of the interest of the persons who might be adversely affected by the annulment of the judicial processes of
the governments under the Japanese regime, but we cannot help smiling when we hear that chaos will reign or that the world will
sink.

It is possible that some criminals will be let loose unpunished, but nobody has ever been alarmed that the President, in the
exercise of his constitutional powers of pardon and amnesty, had in the past released many criminals from imprisonment. And let
us not forget that due to human limitations, in all countries, under all governments, in peace or in war, there were, there are, and
there will always be unpunished criminals, and that situation never caused despair to any one.

We can conceive of inconveniences and hardships, but they are necessary contributions to great and noble purposes. Untold
sacrifices were always offered to attain high ideals and in behalf of worthy causes.

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

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

One conclusive evidence of the untenableness of the majority position is the fact that it had to resort to Executive Order No. 37,
issued on March 10, 1945, providing "that all cases that have heretofore been appealed to the Court of Appeals shall be
transmitted to the Supreme Court for final decision." The far-fetched theory is advanced that this provision impliedly recognizes
the court processes during the Japanese military occupation, on the false assumption that it refers to the Court of Appeals
existing during the Japanese regime. It is self-evident that the Executive Order could have referred only to the Commonwealth
Court of Appeals, which is the one declared abolished in said order. Certainly no one will entertain the absurd idea that the
President of the Philippines could have thought of abolishing the Court of Appeals under the government during the Japanese
occupation. Said Court of Appeals disappeared with the ouster of the Japanese military administration from which it derived its
existence and powers. The Court of Appeals existing on March 10, 1945, at the time of the issuance of Executive Order No. 37,
was the Commonwealth Court of Appeals and it was the only one that could be abolished.

Without discussing the correctness of principle stated the majority opinion quotes from Wheaton the following: "Moreover when it
is said that occupier's acts are valid and under international law should not be abrogated by the subsequent conqueror, it must be
remembered that on crucial instances exist to show that if his acts should be reversed, any international wrong would be
committed. What does happen is that most matters are allowed to stand by the stored government, but the matter can hardly be
put further than this." (Wheaton, International Law, War, 7th English edition of 1944, p. 245)

Then it says that there is no doubt that the subsequent conqueror has the right to abrogate most of the acts of the occupier, such
as the laws, regulations and processes other than the judicial of the government established by the belligerent occupant.

It is evident that the statement just quoted is a complete diversion from the principle stated in the in an unmistakable way by
Wheaton, who says in definite terms that "it must be remembered that no crucial instances exist to show that if his acts (the
occupant's) should be reversed, any international wrong would be committed."

It can be clearly seen that Wheaton does not make any distinction or point out any exception.
But in the majority opinion the principle is qualified, without stating any reason therefore, by limiting the right of the restored
government to annul "most of the acts of the occupier" and "processes other than judicial."

The statement made by the respondent judge after quoting the above-mentioned principle, as stated by Wheaton, to the effect
that whether the acts of military occupant should be considered valid or not, is a question that is up to the restored government to
decide, and that there is no rule of international law that denies to the restored government the right to exercise its discretion on
the matter, is quoted without discussion in the majority opinion.

As the statement is not disputed, wee are entitled to presume that it is concurred in and, therefore, the qualifications made in the
statement in the majority opinion seem to completely groundless.

THE DUTIES IMPOSED ON OCCUPANT ARMY ARE NOT LIMITATIONS TO THE RIGHTS OF THE LEGITIMATE
GOVERNMENT

The majority opinion is accumulating authorities to show the many duties imposed by international law on the military occupant of
an invaded country.

And from said duties it is deduced that the legitimate government, once restored in his own territory, is bound to respect all the
official acts of the government established by the usurping army, except judicial processes political complexion.

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

Between the duties imposed in the military occupant and the legal prerogatives of the legitimate government there are no logical
relationship or connection that might bind the ones with the others.

The military occupants is duty bound to protect the civil rights of the inhabitants, but why should the legitimate government
necessarily validate the measures adopted by the said occupant in the performance of this duty, if the legitimate government
believes his duty to annul them for weighty reasons?

The military occupant is duty bound to establish courts of justice. Why should the legitimate government validate the acts of said
courts, if it is convinced that said courts were absolutely powerless, as was the case during the Japanese occupation, to stop the
horrible abuses of the military police, to give relief to the victims of zoning and Fort Santiago tortures, to protect the fundamental
human rights of the Filipinos — life, property, and personal freedom?

The majority opinion recognizes in the military occupant the power to annul the official acts of the ousted and supplanted
legitimate government, a privilege which is inversely denied to the last. This preference and predilection in favor of the military
occupant, that is in favor of the invader and usurper, and against the legitimate government, is simply disconcerting, if we have to
say the least.

PRESUMPTIONS AND SUPPOSITIONS AGAINST TRUTH AND FACTS

The invading military occupant is duty bound to establish and maintain courts of justice in the invaded territory, for the protection
of the inhabitants thereof. It is presumed that the restored legitimate government will respect the acts of said courts of the army of
occupation. Therefore, it is a principle of international law that said acts are valid and should be respected by the legitimate
government. It is presumed that General MacArthur is acquainted with such principle, discovered or revealed through
presumptive operations, and it is presumed that he had not the intention of declaring null and void the judicial processes of the
government during the Japanese regime. Therefore, his October Proclamation, declaring null and void and without effect "all
processes" of said governments, in fact, did not annul the Japanese regime judicial processes.

So run the logic of the majority.

They don't mind the that General MacArthur speaks in the October Proclamation as follows:

NOW, THEREFORE, I, Douglas MacArthur, General, United States Army, as Commander-in-Chief of the military forces
committed to the liberation of the Philippines, do hereby proclaim and declare:

xxx xxx xxx

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

General MacArthur says categorically "all processes", but the majority insists on reading differently, that, is: "NOT ALL
processes." The majority presume, suppose, against the unequivocal meaning of simple and well known words, that when
General MacArthur said "all processes", in fact, he said "not all processes", because it is necessary, by presumption, by
supposition, to exclude judicial processes.

If where General MacArthur says "all", the majority shall insist on reading "not all", it is impossible to foresee the consequences of
such so stubborn attitude, but it is possible to understand how they reached the unacceptable possible conclusion which we
cannot be avoid opposing and exposing.

Are we to adopt and follow the policy of deciding cases submitted to our consideration, by presumption and suppositions putting
aside truths and facts? Are we to place in the documents presented to us, such as the October Proclamation, different words than
what are written therein? Are we to read "not all", where it is written "all"?

We are afraid to such procedure is not precisely the most appropriate to keep public confidence in the effectiveness of the
administration of justice.

That is why we must insists that in the October Proclamation should be read what General MacArthur has written in it, that is,
that, besides laws and regulations, he declared and proclaimed null and void "ALL PROCESSES", including naturally judicial
processes, of the governments under the Japanese regime.

THE COMMONWEALTH COURTS HAVE NO JURISDICTION TO CONTINUE JAPANESE REGIME JUDICIAL PROCESSES

Now we come to the third and last question propounded in the majority opinion.

The jurisdiction of the Commonwealth tribunals is defined, prescribed, and apportioned by legislative act.

It is provided so in our Constitution. (Section 2, Article VIII.)

The Commonwealth courts of justice are continuations of the courts established before the inauguration of the Commonwealth
and before the Constitution took effect on November 15, 1935. And their jurisdiction is the same as provided by existing laws at
the time of inauguration of the Commonwealth Government.

Act No. 136 of the Philippine Commission, known as the Organic Act of the courts of justice of the Philippines, is the one that
defines the jurisdiction of justice of the peace and municipal courts, Courts of First Instance, and the Supreme Court. It is not
necessary to mention here the jurisdiction of the Court of Appeals, because the same has been abolished by Executive Order No.
37.

No provision may be found in Act. No. 136, nor in any other law of the Philippines, conferring on the Commonwealth tribunals
jurisdiction to continue the judicial processes or proceedings of tribunals belonging to other governments, such as the
governments established during the Japanese occupation.
The jurisdiction of our justice of the peace and municipal courts is provided in section 68, chapter V, of Act No. 136. The original
and appellate jurisdiction of the Courts of First Instance is provided in the sections 56, 57, Chapter IV, of Act No. 136. The original
and appellate jurisdiction of the Supreme Court is provided in 17 and 18, Chapter II, of the same Act. The provisions of the
above-cited do not authorize, even implicitly, any of the decisions and judgements of tribunals of the governments, nor to
continue the processes or proceedings of said tribunals.

NECESSITY OF ENABLING ACT UNDER THE LEGAL DOCTRINE PREVAILING IN THE PHILIPPINES AND IN THE UNITED
STATES

Taking aside the question as to whether the judicial processes of the government established during the Japanese occupation
should be considered valid or not, in order that said processes could be continued and the Commonwealth tribunals could
exercise proper jurisdiction to continue them, under the well- established legal doctrine, prevailing not only in the Philippines, but
also in the proper enabling law.

Almost a half a century ago, in the instructions given by President McKinley on April 7, 1900, for the guidance of the Philippine
Commission, it was stated that, in all the forms of the govenment and administrative provisions which they were authorized to
prescribed, the Commission should bear in mind that the government which they were establishing was designed not for the
satisfaction of the Americans or for the expression of their of their theoretical views, but for the happiness, peace and prosperity
of the people of the Philippines, and the measures adopted should be made to conform to their customs, their habits, and even
their prejudices, to the fullest extent consistent with the accomplishment of the indispensable requisites of just and effective
government.

Notwithstanding the policy so outlined, it was not enough for the Philippine Commission to create and establish the courts of
justice provided in Act No. 136, in order that said tribunals could take cognizance and continue the judicial proceedings of the
tribunals existing in the Philippines at the time the American occupation.

It needed specific enabling provisions in order that the new tribunals might continue the processes pending in the tribunals
established by the Spaniards, and which continued to function until they were substituted by the courts created by the Philippine
Commission.

So it was done in regards to the transfer of the cases pending before the Spanish Audiencia to the newly created Supreme Court,
in sections 38 and 39 of Act No. 136 quoted as follows:

SEC. 38. Disposition of causes, actions, proceedings, appeals, records, papers, and so forth, pending in the
existing Supreme Court and in the "Contencioso Administravo." — All records, books, papers, causes, actions,
proceedings, and appeals logged, deposited, or pending in the existing Audiencia or Supreme Court, or pending
by appeal before the Spanish tribunal called "Contencioso Administravo," are transferred to the Supreme Court
above provided for which, has the same power and jurisdiction over them as if they had been in the first instance
lodged, filed, or pending therein, or, in case of appeal, appealed thereto.

SEC. 39. Abolition of existing Supreme Court. — The existing Audiencia or Supreme Court is hereby abolished,
and the Supreme Court provided by this Act is substituted in place thereof.

Sections 64 and 65 of the same Act allowed the same procedure as regards the transfer of cases and processes pending in the
abolished Spanish Courts of First Instance to the tribunals of the same name established by the Philippine Commission.

SEC. 64. Disposition of records, papers, causes, and appeals, now pending in the existing Courts of First
Instance. — All records, books, papers, actions, proceedings, and appeals lodged, deposited, or pending in the
Court of First Instance as now constituted of or any province are transferred to the Court of First Instance of such
province hereby established, which shall have the same power and jurisdiction over them as if they had been
primarily lodged, deposited, filed, or commenced therein, or in case of appeal, appealed thereto.
 SEC. 65. Abolition of existing Courts of First Instance. — The existing Courts First Instance are hereby abolished,
and the Courts of First Instance provided by this Act are substituted in place thereof.

The same procedure has been followed by the Philippine Commission eventhough the courts of origin of the judicial processes to
be transferred and continued belonged to the same government and sovereignty of the courts which are empowered to continue
said processes.

So section 78 of Act No. 136, after the repeal of all acts conferring upon American provost courts in the Philippines jurisdiction
over civil actions, expressly provided that said civil actions shall be transferred to the newly created tribunals.

And it provided specifically that "the Supreme Court, Courts of the First Instance and courts of the justice of the peace
established by this Act (No. 136) are authorized to try and determine the actions so transferred to them respectively from the
provost courts, in the same manner and with the same legal effect as though such actions had originally been commenced in the
courts created" by virtue of said Act.

MUNICIPAL COURTS UNDER ACT NO. 183

On July 30, 1901, the Philippine Commission enacted the Organic Act of the City of Manila, No. 183.

Two municipal courts for the city were created by section 40 of said Act, one for the northern side of Pasig River and the other for
the southern side.

They were courts with criminal jurisdiction or identical cases under the jurisdiction of the justices of the peace then existing in
Manila. Although both courts were of the same jurisdiction, in order that the criminal cases belonging to the justice of the peace
courts may be transferred to the municipal courts just created, and the proceedings may be continued by the same, the Philippine
Commission considered it necessary to pas the proper enabling act.

So on August 5, 1901, it enacted Act No. 186, section 2 of which provides that all criminal cases and proceedings pending in the
justices of the peace of Manila are transferred to the municipal courts, which are conferred the jurisdiction to continue said cases
and proceedings.

THE CABANTAG CASE

On August 1, 1901, Narciso Cabantag was convicted of murder by a military commission. (Cabantag vs. Wolfe, 6 Phil., 273.) The
decision was confirmed on December 10, 1901, and his execution by hanging was set for January 12,1902. .

On December 26, 1901, he fled, but surrendered to the authorities on July 18, 1902. The Civil Governor on December 2, 1903,
commuted the death penalty to 20 years imprisonment. The commutation was approved by the Secretary of War, following
instructions of the President.

Cabantag filed later a writ of habeas corpus on the theory that, with the abolition of the military commission which convicted him,
there was no existing tribunal which could order the execution of the penalty of imprisonment.

The Supreme Court denied the writ, but stated that, if the petitioner had filed the writ before the enactment of Act No. 865, the
question presented to the Supreme Court would have been different.

Act No. 865, enacted on September 3, 1903, is enabling law, wherein it is provided that decisions rendered by the provost courts
and military commission shall be ordered executed by the Courts of First Instance in accordance with the procedure outlined in
said Act.

It is evident from the foregoing that this Supreme Court has accepted and confirmed the doctrine of the necessity of an enabling
act in order that our Courts of First Instance could exercise jurisdiction to execute the decision of the abolished provost courts
and military commission.

It is evident that the doctrine is applicable, with more force, to the judicial processes coming from governments deriving their
authority from a foreign enemy state.

THE DOCTRINE IN THE UNITED STATES

It is also evident that the Congress of the United States, by enacting the Bill of the Philippines on July 1, 1902, confirmed also the
same doctrine.

In effect, in section 9 of said Act, the Congress approved what the Philippine Commission did as to the jurisdiction of the courts
established and transfer of cases and judicial processes, as provided in Acts Nos. 136, 186, and 865.

The same doctrine was adopted by the United States government as part of its international policy, as could be seen in Article XII
of the Treaty concluded with Spain on December 10, 1898, in Paris.

Even in 1866 the Congress of the United States followed the same doctrine.

The suit, shown by the record, was originally instituted in the District Court of the United States for the District of
Louisiana, where a decree was rendered for the libellant. From the decree an appeal was taken to the Circuit
Court, where the case was pending, when in 1861, the proceedings of the court were interrupted by the civil war.
Louisiana had become involved in the rebellion, and the courts and officers of the United States were excluded
from its limits. In 1862, however, the National authority had been partially reestablished in the State, though still
liable to the overthrown by the vicissitudes of war. The troops of the Union occupied New Orleans, and held
military possession of the city and such other portions of the State as had submitted to the General Government.
The nature of this occupation and possession was fully explained in the case of The Vinice.

Whilst it continued, on the 20th of October, 1862, President Lincoln, by proclamation, instituted a Provisional
Court of the State of Louisiana, with authority, among other powers, to hear, try, and determine all causes in
admiralty. Subsequently, by consent of parties, this cause was transferred into the Provisional Court thus,
constituted, and was heard, and a decree was again rendered in favor of the libellants. Upon the restoration of
civil authority in the State, the Provincial Court, limited in duration, according to the terms of the proclamation, by
the event, ceased to exist.

On the 28th of July, 1866, Congress enacted that all suits, causes and proceedings in the Provisional Court,
proper for the jurisdiction of the Circuit Court of the United States for the Eastern District of Louisiana, should be
transferred to that court, and heard, and determined therein; and that all judgements, orders, and decrees of the
Provisional Court in causes transferred to the Circuit Court should at once become the orders, judgements, and
decrees of that court, and might be enforced, pleaded, and proved accordingly.

It is questioned upon these facts whether the establishment by the President of a Provisional Court was warranted
by the Constitution.

xxx xxx 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 factoGovernment 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.

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 Japanese-
sponsored government in the Philippines within the meaning of the aforesaid proclamation of General of the Army MacArthur
and, consequently, fall within the condemnation of the proclamation. Being processes of a branch of a government which had
been established in the hostility to the Commonwealth Government, as well as the United States Government, they could not
very well be considered by the parties to be valid and binding, at least after October 23, 1944, without said parties incurring in
disobedience and contempt of the proclamation which enjoins them to render full respect for the obedience to our Constitution
and the laws, regulations and other acts of our duly constituted government. Nine days after the inauguration of the so-called
"Republic of the Philippines," President Franklin Delano Roosevelt of the United States declared in one of his most memorable
pronouncements about the activities of the enemy in the Philippines, as follows:

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

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

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

October 23, 1943.

FRANKLIN DELANO ROOSEVELT

President of the United States

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

It is a fact of contemporary history that while President Manuel L. Quezon of the Philippines was in Washington, D.C., with his
exiled government, he also repeatedly condemned both the "Philippine Executive Commission" and the "Philippine Republic," as
they had been established by or under orders of the Commander in Chief of the Imperial Japanese Forces. With these two heads
of the Governments of the United States and the Commonwealth of the Philippines condemning the "puppet regime" from its very
inception, it is beyond my comprehension to see how the proceedings in question could be considered valid and binding without
adopting an attitude incompatible with theirs. As President Roosevelt said in his above quoted message, "Our symphaty goes out
to those remain loyal to the United States and the Commonwealth — that great majority of the Filipino people who have not been
deceived by the promises of the enemy.

The most that I can concede is that while the Japanese Army of occupation was in control in the Islands and their paramount
military strength gave those of our people who were within their reach no other alternative, these had to obey their orders and
decrees, but the only reason for such obedience would be that paramount military strength and not any intrinsic legal validity in
the enemy's orders and decrees. And once that paramount military strength disappeared, the reason for the obedience vanished,
and obedience should likewise cease.

As was stated by the Supreme Court of the United States in the case of Williams vs. Bruffy (96 U.S., 176; 24 Law. ed., 719), "In
the face of an overwhelming force, obedience in such matters may often be a necessity and, in the interest of order, a duty. No
concession is thus made to the rightfulness of the authority exercised." (Emphasis ours.) The court there refers to its own former
decision in Thorington vs. Smith, and makes it clear that the doctrine in the Thorington case, so far as the effects of the acts of
the provisional government maintained by the British in Casetine, from September, 1814 to the Treaty of Peace in 1815, and the
consideration of Tampico as United States territory, were concerned, was limited to the period during which the British, in the first
case, retained possession of Castine, and the United States, in the second, retained possession of Tampico. In referring to the
Confederate Government during the Civil War, as mentioned in the Thorington case, the court again says in effect that the actual
supremacy of the Confederate Government over a portion of the territory of the Union was the only reason for holding that its
inhabitants could not but obey its authority. But the court was careful to limit this to the time when that actual supremacy existed,
when it said: . . . individual resistance to its authority then would have been futile and, therefore, unjustifiable." (Emphasis ours.)

Because of its pertinence, we beg leave to quote the following paragraph from that leading decision:

There is nothing in the language used in Thorington vs. Smith (supra), which conflicts with these views. In that
case, the Confederate Government is characterized as one of paramount force, and classed among the
governments of which the one maintained by great Britain in Castine, from September 1814, to the Treaty of
Peace in 1815, and the one maintained by the United States in Tampico, during our War with Mexico, are
examples. Whilst the British retained possession of Castine, the inhabitants were held to be subject to such laws
as the British Government chose to recognize and impose. Whilst the United 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 Japanese-
sponsored government in the Philippines was such a government. Without prejudice to later discussing the effects which the
renunciation of war as an instrument of national policy contained in our Commonwealth Constitution, as well as in the Briand-
Kellog Pact, must have produced in this rule in so far as the Philippines is concerned, let us set forth some considerations
apropos of this conclusion of the majority. If the power to establish here such a provisional government is recognized in the
Commander in Chief of the invasion army, why should we not recognize at least an equal power in the Commander in Chief of
the liberation army to overthrow that government will all of its acts, at least of those of an executory nature upon the time of
liberation? Considering the theory maintained by the majority, it would seem that they would recognize in the Japanese
Commander in Chief the power to overthrow the Commonwealth Government, and all of its acts and institutions if he had
choosen to. Why should at least an equal power be denied the Commander in Chief of the United States Army to overthrow the
substitute government thus erected by the enemy with all of its acts and institutions which are still not beyond retrieve? Hereafter
we shall have occasion to discuss the aspects of this question from the point of view of policy or the practical convenience of the
inhabitants. If the Japanese Commander in Chief represented sovereignty of Japan, the American Commander in Chief
represented the sovereignty of the United States, as well as the Government of the Commonwealth. If Japan had won this war,
her paramount military supremacy would have continued to be exerted upon the Filipino people, and out of sheer physical
compulsion this country would have had to bow to the continuance of the puppet regime that she had set up here for an indefinite
time. In such a case, we admit that, not because the acts of that government would then have intrinsically been legal and valid,
but simply because of the paramount military force to which our people would then have continued to be subjected, they would
have had to recognize as binding and obligatory the acts of the different departments of that government. But fortunately for the
Filipinos and for the entire civilized world, Japan was defeated. And I now ask: Now that Japan has been defeated, why should
the Filipinos be still bound to respect or recognize validity in the acts of the Japanese-sponsored government which has been so
severely condemned by both the heads of the United States and our Commonwealth Government throughout the duration of the
war? If we were to draw a parallel between that government and that which was established by the Confederate States during the
American Civil War, we will find that both met with ultimate failure. And, in my opinion, the conclusion to be drawn should be the
same in both cases.

As held by the United States Supreme Court in Williams vs. Bruffy (supra), referring to the Confederate Government, its failure
carried with it the dissipation of its pretentions and the breaking down in pieces of the whole fabric of its government. The Court
said among other things:

The immense power exercised by the government of the Confederate States for nearly four years, the territory
over which it extended, the vast resources it wielded, and the millions who acknowledged its authority, present an
imposing spectacle well fitted to mislead the mind in considering the legal character of that organization. It
claimed to represent an independent nation and to posses sovereign powers; as such to displace to jurisdiction
and authority of the United States from nearly half of their territory and, instead of their laws, to substitute and
enforce those of its own enactment. Its pretentions being resisted, they were submitted to the arbitrament of war.
In that contest the Confederacy failed; and in its failure its pretentions were dissipated, its armies scattered, and
the whole fabric of its government broken in pieces. (24 Law, ed., 719; emphasis ours.)

By analogy, if the Japanese invasion and occupation of the Philippines had been lawful — which, however, is not the case — and
if Japan had succeeded in permanently maintaining the government that she established in the Philippines, which would have
been the case had victory been hers, there would be more reason for holding the acts of that government valid, but because
Japan has lost the war and, therefore, failed in giving permanence to that government, the contrary conclusion should legitimately
follow.

The validity of legislation exercised by either contestant "depends not upon the existence of hostilities but upon the ultimate
success of the party which it is adopted" (emphasis ours). And, referring to the overthrow of the of the Confederacy, the Court,
said, "when its military forces were overthrown, it utterly perished, and with it all its enactments" (emphasis ours)

The majority cite on page 9-10 of their opinion a passage from the same case of Williams vs. Bruffy, supra, which is a mere obiter
dictum. The majority opinion says that in this passage the Court was "discussing the validity of the acts of the Confederate
States." In the first place, an examination of the decision will reveal that the controversy dealt with an act of the Confederate
Government, not of the Confederate States individually; and in the second place, the quoted passage refers to something which
was not in issue in the case, namely, the acts of the individual States composing the Confederacy. But even this passage clearly
places the case at bar apart from the Court's pronouncement therein. The quoted passage commences by stating that "The same
general form of government the same general laws for the administration of justice and the protection of private rights, which has
existed in the States prior to the rebellion, remanded during (its) continuance and afterwards. "In the case at bar, the same
general form of the Commonwealth Government did not continue under the Japanese, for the simple reason that one of the first
acts of the invaders was to overthrow the Commonwealth Constitution and, therefore, the constitutional government which
existed thereunder, as an effect of the following acts and decrees of the Commander in Chief of the Imperial Japanese Forces:

1. Order No. 3, dated February 20, 1942 of the Commander in Chief of the Imperial Japanese Forces to the Chairman of the
Philippine Executive Commission directed that, in the exercise of legislative, executive and judicial powers in the Philippines, the
"activities" of the "administrative organs and judicial courts in the Philippines shall be based upon the existing status, order,
ordinances and the Commonwealth Constitution (1 Official Journal of the Japanese Military Administration, page 34). Under the
frame of government existing in this Commonwealth upon the date of the Japanese invasion, the Constitution was the very
fountain-head of the validity and effects of all the "status, orders, and ordinances" mentioned by the Japanese Commander in
Chief, and in overthrowing the Constitution he, in effect, overthrew all of them.

2. Instruction No. 6 of the Japanese Military Administration (Vol. 1, usages 36 et seq., Official Gazette, edited at the Office of the
Executive Commission) gave the "Detailed Instruction Based on Guiding Principle of the Administration," and among other things
required "The entire personnel shall be required to pledge their loyalty to the Imperial Japanese Forces. . . ." (This, of course, was
repugnant to the frame of government existing here under the Commonwealth Constitution upon the date of invasion.)

3. Proclamation dated January 3, 19452 of the Japanese Commander in Chief provided in paragraph 3 that "The Authorities and
the People of the Commonwealth should sever their relations with the U.S. o . . ." (This is, likewise, repugnant to the
Commonwealth Constitution and the to the Government of that Commonwealth Constitution and to the Government of that
Commonwealth which was expressly made subject to the supreme sovereignty of the United States until complete independence
is granted, not by the mere will of the United States, but by virtue of an agreement between that Government and ours, under the
Tydings-McDuffie Act.)

The individual States of the Confederate and their governments existed prior to the Civil War and had received the sanction and
recognition of the Union Government, for which the Federal Supreme Court was speaking in the Williams-Bruffy case; while the
Japanese-sponsored governments of the "Philippine Executive Commission" and the Republic of the Philippines" neither existed
here before the war nor had received the recognition or sanction of either the United States or the Commonwealth Government
— nay, they had received the most vigorous condemnation of both.

The Court further says in Williams vs. Bruffy (supra):

No case has been cited in argument, and we think unsuccesfully attempting to establish a separate revolutionary
government have been sustained as a matter of legal right. As justly observed by the late Chief Justice in the
case of Shortridge vs. Macon, I Abb. U.S., 58, decided at the circuit, and, in all material respects like the one at
bar, "Those who engage in rebellion must consider the consequences. If 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 Briand-Kellog Pact. Those horrors and devastations were increased a hundred fold, if not
more, in this second World War, but even before this war occurred, our own people, through our Constitutional delegates, who
framed the Commonwealth Constitution also adopted the same doctrine, and embodied an express renunciation of war as an
instrument of national policy in the instrument that they drafted. It is true that in section 3, Article II, above-cited, our Constitution
adopts the generally accepted principles of International Law as a part of the law of the Nation. But, of course, this adoption is
exclusive of those principles of International Law which might involve recognition of war as an instrument of national policy. It is
plain that on the side of the Allies, the present war is purely defensive. When Japan started said war, treacherously and without
previous declaration, and attacked Pearl Harbor and the Philippines on those two fateful days of December 7 and 8, 1941, she
employed war as an instrument of the national policy. Under the Briand-Kellog Pact and our Commonwealth Constitution, the
United States and the Commonwealth Government could not possibly have recognized in Japan any right, as against them, to
employ that war as an instrument of her national policy, and, consequently, they could not have recognized in Japan power to set
up in the Philippines the puppet government that she later set up, because such power would be a mere incident or consequence
of the war itself. The authorities agree that such a power, under the cited rules, is said to a right derived from war. (67 C.J., p.
421, sec. 171.) There can be no question that the United States and the Commonwealth Governments were free to refuse to be
bound by those rules when they made their respective renunciations above referred to. Indeed, all the United Nations have
exercised this free right in their Charter recently signed at San Francisco.

As necessary consequence of this, those rules of International Law were no longer applicable to the Philippines and to the United
States at the time of the Japanese invasion as a corollary, it follows that we have no legal foundation on which to base the
proposition that the acts of that Japanese-sponsored government in the Philippines were valid and binding. Moreover, I am of
opinion, that although at the time of the Japanese invasion and up to the present, the United States retains over the Philippines, a
certain measure of sovereignty, it is only for certain specified purposes enumerated in the Tydings-McDufie Act of the
Commonwealth Constitution. (Ordinance appended to the Constitution.) And our territory was at the time of the Japanese
invasion not a territory of the United States, within the meaning of the laws of war governing war-like operations on enemy
territory. Our territory is significantly called "The National Territory" in Article I of our Constitution and this bears the stamps of
express approval of the United States Government. The Philippines has been recognized and admitted as a member of the
United Nations. We, therefore, had our own national and territorial identity previous to that invasion. Our nation was not at war
with the Filipinos. And line with this, the Japanese army, in time, released Filipino war prisoners captured in Bataan. Lt. Gen.
Maeda, Chief of Staff, Imperial Japanese Forces, in his speech of January 2, 1942, said:

. . . we had not the slighest intensions to make your people our enemy; rather we considered them as our friends
who will join us has hand-in-hand in the establishment of an orderly Greater East Asia. . . ., (Official Gazette,
edited at the Office of the Executive Commission, Vol. I, p. 55.)

If the Philippines was a neutral territory when invaded by the Japanese, the following principles from Lawrence, International Law
(7th ed.), p. 603, are pertinent:

The Duties of Belligerent States Towards Neutral States. — . . . To refrain from carrying on hostilities within
 neutral territory. — We have already seen that, though this obligation was recognized in theory during the infancy
of International law, it was often very imperfectly observed in practice. But in modern times it has been strickly
enforced, and any State which knowingly ordered warlike operations to be carried on in neutral territory . . . would
bring down upon itself the reprobation of civilized mankind. Hostilities may be carried on in the territory of either
belligerent, on the high seas, and in territory belonging to no one. Neutral land and neutral territorial waters are
sacred. No acts of warfare may lawfully take place within them. . . . (Emphasis ours.)

In all the cases and authorities supporting the power or right to set up a provisional government, the belligerent had the right to
invade or occupy the territory in the first instance. Such was not the case with the Philippines. President Roosevelt, in his
message to the Filipino people, soon after the landing of American Forces in Leyte, on October 20, 1944, characterized Japan's
invasion and occupation of the Philippines as "the barbarous, unprovoked and treacherous attack upon the Philippines," and he
announced the American people's "firm determination to punish the guilty." (41 Off. Gaz., 149.) (Emphasis ours.) The illustrious
leader of the United Nations could not have in more unmistakable terms the utter illegality of that invasion and occupation. If the
establishment of a provinsional government in occupied territory by a belligerent is "a mere application or extension of the force
by which the invasion or occupation was effected" (67 C.J., p. 421, sec 171), the illegality of the invasion, would necessarily
permeate the government, which was its mere application or extention.

The fact that shortly before December 8, 1941, the date of the "barbarous, unprovoked and treacherous attack," the meager and
almost untrained forces of the Philippine Army had been inducted into the American Army, did not change the neutral status of
the Philippines. That military measure had been adopted for purely defensive purposes. Nothing could be farther from the minds
of the government and military leaders of the United States and the Philippines in adopting it than to embark upon any aggressive
or warlike enterprise against any other nation. It is an old and honored rule dating as far back as the 18th century that even
solemn promises of assistance made before the war by a neutral to a nation which later becomes a belligerent, would not change
the status of the neutral even if such promises were carried out, so long as they were made for purely defensive purposes. In the
words of Vattel "when a sovereign furnishes the succor due in virtue of a former defensive alliance, he does not associate himself
in the war. Therefore he may fulfill his engagements and yet preserve an exact neutrality." (Lawrence, Principles of International
Law [7th ed.], pp. 585, 586.)

If the Filipinos had, from contemptible cowardice and fear, allowed their shores to be invaded, and their territory occupied by the
Japanese without resistance, such invasion occupation would undoubtedly have been considered in violation of International
Law. Should the Filipinos be punished for having had the patriotism, bravery, and heroism to fight in defense of the sacredness of
their land, the sanctity of their homes, and the honor and dignity of their government by giving validity, in whatever limited
measure, to the lawless acts of the ruthless enemy who thus overran their country, and robbed them of the tranquility and
happiness of their daily lives? And yet, to my mind, to give any measure of validity or binding effect to the proceedings of the
Japanese-sponsored Court of First Instance of Manila, involved herein, would be to give that much validity or effect to the acts of
those same invaders. To equalize the consequences of a lawful and a wrongful invasion of occupation, would be to equalize right
and wrong, uphold the creed that might makes right, and adopt "the law of the jungle."

If said Japanese-sponsored government was not a de facto government, it would seem clearly to follow that its "Court of First
Instance of Manila" was not a de facto court. But it should additionally be stated that for it be a de facto court, its judge had to be
a de facto judge, which he could not be, as presently demonstrated.

As said by President Osmeña, in replying to the speech of General of the Army MacArthur when the latter turned over to him the
full powers and responsibilities of the Commonwealth Government, on February 27, 1945:

xxx xxx xxx

The time has come when the world should know that when our forces surrendered in Bataan and Corregidor,
resistance to the enemy was taken up by the people itself — resistance which was inarticulate and disorganized
in its inception but which grew from the day to day and from island until it broke out into an open warfare against
the enemy.
 The fight against the enemy was truly a people's war because it counted with the wholehearted support of the
masses. From the humble peasant to the barrio school teacher, from the volunteer guard to the women's auxilliary
service units, from the loyal local official to the barrio folk — each and every one of those contributed his share in
the great crusade for liberation.

The guerrillas knew that without the support of the civilian population, they could not survive. Whole town and
villages dared enemy reprisal to oppose the hated invader openly or give assistance to the underground
movement. . . . (41 Off. Gaz., 88, 89.)

Under these facts, taken together with the General of the Army MacArthur's accurate statement that the "Republic of the
Philippines" had been established under enemy duress, it must be presumed — to say the least — that the judge who presided
over the proceedings in question during the Japanese occupation, firstly, accepted his appointment under duress; and secondly,
acted by virtue of that appointment under the same duress. In such circumstances he could not have acted in the bona fide belief
that the new "courts" created by or under the orders of the Japanese Military Commander in chief had been legally created--
among them the "Court of first Instance of Manila," — that the Chairman of the "Philippine Executive Commission" or the
President of the "Republic of the Philippines", whoever appointed him, and conferred upon him a valid title to his office and a
legitimate jurisdiction to act as such judge. Good faith is essential for the existence of a de facto judge (Tayko vs. Capistrano, 53
Phil., 866, 872). The very idea of enemy duress would necessarily imply that but for the duress exerted upon him by the enemy
he would have refused to accept the appointment and to act thereunder. And why? Because he must be presumed to know that
the office to which he was thus appointed had been created by the enemy in open defiance of the Commonwealth Constitution
and the laws and regulation promulgated by our Commonwealth Government, and that his acceptance of said office and his
acting therein, if willfully done, would have been no less than an open hostility to the very sovereignty of the United Sates and to
the Commonwealth Government, and a renunciation of his allegiance to both. There is no middle ground here. Either the judge
acted purely under duress, in which case his acts would be null and void; or maliciously in defiance of said governments, in which
case his acts would be null and void for more serious reasons.

The courts created here by the Japanese government had to look for the source of their supposed authority to the orders of the
Japanese Military Commander in chief and the so-called Constitution of the "Republic of the Philippines," which had been
adopted in a manner which would shock the conscience of democratic peoples, and which was designed to supplant the
Constitution which had been duly adopted by the Filipino people in a Constitutional Convention of their duly elected Constitutional
Delegates. And it was decreed that the Commander in chief of the Imperial Japanese Forces "shall exercise jurisdiction over
judicial courts." (Vol. 1, p. 7, Official Journal of the Japanese Military Administration, cited on pp. 2, 3, of the order of the
respondent judge complained of and marked Exhibit H of the petition for mandamus.) How can our present courts legitimately
recognize any efficacy in the proceedings of such an exotic judicial system, wherein the Commander in Chief of the Imperial
Japanese Forces possessed the highest judicial jurisdiction?

III

The courts of those governments were entirely different from our Commonwealth courts before and after the
Japanese occupation.

Executive Order No. 36 of the President of the Philippines, dated March 10, 1945, in its very first paragraph, states the prime
concern of the government "to re-establish the courts as fast as provinces are liberated from the Japanese occupation." If the
courts under the Japanese-sponsored government of the "Republic of the Philippines" were the same Commonwealth courts that
existed here under the Constitution at the time of the Japanese invasion, President Osmeña would not be speaking of re-
establishing those courts in his aforesaid Executive Order. For soothe, how could those courts under the "Republic of the
Philippines" be the courts of the Commonwealth of the Philippines when they were not functioning under the Constitution of the
Commonwealth and the laws enacted in pursuance of said Constitution? The jurisdiction of the Commonwealth courts was
defined and conferred under the Commonwealth Constitution and the pertinent legislation enacted thereunder, that of the
Japanese-sponsored courts was defined and conferred by the orders and decrees of the Japanese Commander in Chief, and,
perhaps, the decrees of the "Philippine Executive Commission" and the laws of the so-called Legislature under the Republic,
which was not composed of the elected representatives of the people. The Justices and Judges of the Commonwealth courts had
to be appointed by the President of the Commonwealth with confirmation by the Commission on Appointments, pursuant to the
Commonwealth Constitution. The Chief Justice of the Supreme Court, under the "Philippine Executive Commission" was
appointed by the Commander in Chief of the Imperial Japanese Forces, and the Associate Justices of the Supreme Court, the
Presiding Justice and Associate Justices of the Court of Appeals, the Judges of first Instance and of all inferior courts were
appointed by the Chairman of the Executive Commission, at first, and later, by the President of the Republic, of course, without
confirmation by the Commission on Appointments under the Commonwealth Constitution. The Chief Justice and Associate
Justices of the Supreme Court, the President and Associate Justices of the Court of Appeals, and the Judges of First Instance
and of all inferior courts in the Commonwealth judicial system, had to swear to support and defend the Commonwealth
Constitution, while this was impossible under the Japanese-sponsored government. In the Commonwealth judicial system, if a
Justice or Judge should die or incapacitated to continue in the discharge of his official duties, his successor was appointed by the
Commonwealth President with confirmation by the Commission on Appointments, and said successor had to swear to support
and defend the Commonwealth Constitution; in the exotic judicial system implanted here by the Japanese, if a Justice or Judge
should die or incapacitated, his successor would be appointed by the Japanese Commander in Chief, if the dead or incapacitated
incumbent should be the Chief Justice of the Supreme Court, or otherwise, by the Chairman of the "Executive Commission" or
the President of the "Republic", of course without confirmation by the Commission on Appointments of the Commonwealth
Congress, and, of course, without the successor swearing to support and defend the Commonwealth Constitution.

If, as we believe having conclusively shown, the Japanese-sponsored courts were not the same Commonwealth courts, the
conclusion is unavoidable that any jurisdiction possessed by the former and any cases left pending therein, were not and could
not be automatically transfered to the Commonwealth courts which we re-established under Executive Order No. 36. For the
purpose, a special legislation was necessary.

Executive Order No. 37, in my humble opinion, does not, as held by the majority, imply that the President recognized as valid the
proceedings in all cases appealed to the Court of Appeals. Section 2 of that order simply provides that all cases which have
been duly appealed to the Court of Appeals shall be transmitted to the Supreme Court for final decision. The adverb "duly" would
indicate that the President foresaw the possibility of appeals not having been duly taken. All cases appealed to the Court of
Appeals before the war and the otherwise duly appealed, would come under the phrase "duly appealed" in this section of the
Executive Order. But considering the determined and firm attitude of the Commonwealth Government towards those Japanese-
sponsored governments since the beginning, it would seem inconceivable that the President Osmeña, in section 2 of Executive
Order No. 37, intended to include therein appeals taken to the Japanese-sponsored Court of Appeals, or from the Japanese-
sponsored inferior courts. It should be remembered that in the Executive Order immediately preceeding and issued on the same
date, the President speaks of re-establishing the courts as fast as provinces were liberated from the Japanese occupation.

IV

The question boils down to whether the Commonwealth Government, as now restored, is to be bound by the acts
of either or both of those Japanese-sponsored governments.

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

Even considerations of policy or practical convenience militate against petitioner's contention.

In this connection, the respondent judge, in his order of June 6, 1945, complained of, has the following to say:
 It is contended, however, that the judicial system implanted by the Philippine Executive Commission and the
Republic was the same as that of the Commonwealth prior to Japanese occupation; that the laws administered
and enforced by said courts during the existence of said regime were the same laws on the statute books of
Commonwealth before Japanese occupation, and that even the judges who presided them were, in many
instances, the same persons who held the position prior to the Japanese occupation. All this may be true, but
other facts are just as stubborn and pitiless. One of them is that said courts were of a government alien to the
Commonwealth Government. The laws they enforced were, true enough, laws of the Commonwealth prior to
Japanese occupation, but they had become the laws — and the Courts had become the institutions-of Japan by
adoption (U.S. vs. Reiter, 27 F. Case No. 16,146), as they became later on the laws and institution of the
Philippine Executive Commission and the Republic of the Philippines. No amount of argument or legal fiction can
obliterate this fact.

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

Much concern has been shown for the possible confusion which might result from a decision declaring null and void the acts
processes of the Japanese-sponsored governments in the Philippines. I think, this aspect of the question has been unduly
stressed. The situation is not without remedy, but the remedy lies with the legislature and not with the courts. As the courts
cannot create a new or special jurisdiction for themselves, which is a legislative function, and as the situation demands such new
or special jurisdiction, let the legislature act in the premises. For instance, the Congress may enact a law conferring a special
jurisdiction upon the courts of its selection, whereby said courts may, after hearing all the parties interested, and taking all the
necessary safeguards, so that, a party's day in court or other constitutional or statutory right under the Commonwealth
Government should not be prejudiced by any of said acts, processes or proceedings, particullarly, those in Japanese-sponsored
courts, and subject to such other conditions as the special law may provide, validate the corresponding acts, processes or
proceedings. This, to my mind, would be more conducive to a maximum of benefit and a minimum of prejudice to the inhabitants
of this country, rather than the procedure favored by the majority.

Finally, let us not equalize the conditions then prevailing in Manila to that prevailing in the provinces, where the greater number of
the people where then living outside the towns, in the farms and the hills. These people constitute the great majority of the
eighteen million Filipinos. To them the semblance of an administration of justice which Japanese allowed, was practically
unknown. But they constituted the majority of loyal citizens to whom President Roosevelt's message of October 23, 1943 refers.
They — the majority of our people — had an unshaken faith in the arrival of American aid here and the final triumph of the Allied
cause. They were willing to wait for the restoration of their rightful government, with its courts and other institutions, for the
settlement of their differences. May in their common hardship and sufferings under yoke of foreign oppression, they had not much
time to think of such differences, if they did not utterly forget them. Their undoubted hatred of the invader was enough to keep
them away from the judicial system that said invader allowed to have. Those who voluntarily went to the courts in those tragic
days belong to the small minority.

As to the public order — why! any public order which then existed was not due to the courts or other departments of the puppet
government. It was maintained at the point of the bayonet by the Japanese army, and in their own unique fashion.

Footnotes

1 Resolution on motion for reconsideration, see p. 371, post.

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Republic of the Philippines

SUPREME COURT
 Manila

EN BANC

G.R. No. L-4254 September 26, 1951

BORIS MEJOFF, petitioner,

vs.
THE DIRECTOR OF PRISONS, respondent.

Ambrosio T. Dollete for petitioner.

First Assistant Solicitor General Roberto A. Gianson and Solicitor Florencio Villamor for respondents.

TUASON, J.:

This is a second petition for habeas corpus by Boris Mejoff, the first having been denied in a decision of this Court of July 30,
1949. The history of the petitioner's detention was thus briefly set forth in that decision, written by Mr. Justice Bengzon:

The petitioner Boris Mejoff is an alien of Russian descent who was brought to this country from Shanghai as a
secret operative by the Japanese forces during the latter's regime in these Islands. Upon liberation he was
arrested as a Japanese spy, by U.S. Army Counter Intelligence Corps. Later he was handed to
theCommonwealth Government for disposition in accordance with Commonwealth Act No. 682. Thereafter, the
People's Court ordered his release. But the deportation Board taking his case up, found that having no travel
documents Mejoff was illegally in this country, and consequently referred the matter to the immigration authorities.
After the corresponding investigation, the Board of commissioners of Immigration on April 5, 1948, declared that
Mejoff had entered the Philippines illegally in 1944, without inspection and admission by the immigration officials
at a designation port of entry and, therefore, it ordered that he be deported on the first available transportation to
Russia. The petitioner was then under custody, he having been arrested on March 18, 1948. In May 1948 he was
transferred to the Cebu Provincial Jail together with three other Russians to await the arrival of some Russian
vessels. In July and August of that year two boats of Russian nationality called at the Cebu Port. But their masters
refused to take petitioner and his companions alleging lack of authority to do so. In October 1948 after repeated
failures to ship this deportee abroad, the authorities removed him to Bilibid Prison at Muntinglupa where he has
been confined up to the present time, inasmuch as the Commissioner of Immigration believes it is for the best
interests of the country to keep him under detention while arrangements for his departure are being made.

The Court held the petitioner's detention temporary and said that "temporary detention is a necessary step in the process of
exclusion or expulsion of undesirable aliens and that pending arrangements for his deportation, the Government has the right to
hold the undesirable alien under confinement for a reasonable lenght of time." It took note of the fact, manifested by the Solicitor
General's representative in the course of the of the oral argumment, that "this Government desires to expel the alien, and does
not relish keeping him at the people's expense . . . making efforts to carry out the decree of exclusion by the highest officer of the
land." No period was fixed within which the immigration authorities should carry out the contemplated deportation beyond the
statement that "The meaning of 'reasonable time' depends upon the circumstances, specially the difficulties of obtaining a
passport, the availability of transportation, the diplomatic arrangements with the governments concerned and the efforts displayed
to send the deportee away;" but the Court warned that "under established precedents, too long a detention may justify the
issuance of a writ of habeas corpus."

Mr. Justice Paras, now Chief Justice, Mr. Justice Feria, Mr. Justice Perfecto, and the writer of this decision dissented. Mr. Justice
Feria and Mr. Justice Perfecto voted for outright discharge of the prisoner from custody. Mr. Justice Paras qualified his dissent by
stating that he might agree "to further detention of the herein petitioner, provided that he be released if after six months, the
Government is still unable to deport him." This writer joined in the latter dissent but thought that two months constituted
reasonable time.
Over two years having elapsed since the decision aforesaid was promulgated, the Government has not found way and means of
removing the petitioner out of the country, and none are in sight, although it should be said in justice to the deportation
authorities, it was through no fault of theirs that no ship or country would take the petitioner.

Aliens illegally staying in the Philippines have no right of asylum therein (Sowapadji vs. Wixon, Sept. 18, 1946, 157 F. ed., 289,
290), even if they are "stateless," which the petitioner claims to be. It is no less true however, as impliedly stated in this Court's
decision, supra, that foreign nationals, not enemy against whom no charge has been made other than that their permission to
stay has expired, may not indefinitely be kept in detention. The protection against deprivation of liberty without due process of law
and except for crimes committed against the laws of the land is not limited to Philippine citizens but extends to all residents,
except enemy aliens, regardless of nationality. Whether an alien who entered the country in violation of its immigration laws may
be detained for as long as the Government is unable to deport him, is a point we need not decide. The petitioner's entry into the
Philippines was not unlawful; he was brought by the armed and belligerent forces of a de facto government whose decrees were
law furing the occupation.

Moreover, by its Constitution (Art. II, Sec. 3) the Philippines "adopts the generally accepted principles of international law as part
of the law of Nation." And in a resolution entitled "Universal Declaration of Human Rights" and approved by the General
Assembly of the United Nations of which the Philippines is a member, at its plenary meeting on December 10, 1948, the right to
life and liberty and all other fundamental rights as applied to all human beings were proclaimed. It was there resolved that "All
human beings are born free and equal in degree and rights" (Art. 1); that "Everyone is entitled to all the rights and freedom set
forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion,
nationality or social origin, property, birth, or other status" (Art. 2): that "Every one has the right to an effective remedy by the
competent national tribunals for acts violating the fundamental rights granted him by the Constitution or by law" (Art. 8); that "No
one shall be subjected to arbitrary arrest, detention or exile" (Art. 9); etc.

In U. S. vs. Nichols, 47 Fed. Supp., 201, it was said that the court "has the power to release from custody an alien who has been
detained an unreasonably long period of time by the Department of Justice after it has become apparent that although a warrant
for his deportation has been issued, the warrant can not be effectuated;" that "the theory on which the court is given the power to
act is that the warrant of deportation, not having been able to be executed, is functus officio and the alien is being held without
any authority of law." The decision cited several cases which, it said, settled the matter definitely in that jurisdiction, adding that
the same result had reached in innumerable cases elsewhere. The cases referred to were United States ex rel. Ross vs. Wallis, 2
Cir. 279 F. 401, 404; Caranica vs. Nagle, 9 Cir., 28 F. 2d 955; Saksagansky vs. Weedin, 9 Cir., 53 F. 2d 13, 16 last paragraph;
Ex parte Matthews, D.C.W.D. Wash., 277 F. 857; Moraitis vs. Delany, D.C. Md. Aug. 28, 1942, 46 F. Supp. 425.

The most recent case, as far as we have been able to find, was that of Staniszewski vs. Watkins (1948), 90 Fed. Supp., 132,
which is nearly foursquare with the case at hand. In that case a stateless person, formerly a Polish national, resident in the United
States since 1911 and many times serving as a seaman on American vessels both in peace and in war, was ordered excluded
from the United States and detained at Ellis Island at the expense of the steamship company, when he returned from a voyage
on which he had shipped from New York for one or more European ports and return to the United States. The grounds for his
exclusion were that he had no passport or immigration visa, and that in 1937 had been convicted of perjury because in certain
documents he presented himself to be an American citizen. Upon his application for release on habeas corpus, the Court
released him upon his own recognizance. Judge Leibell, of the United States District Court for the Southern District of New York,
said in part:

When the return to the writ of habeas corpus came before this court, I suggested that all interested parties . . .
make an effort to arrange to have the petitioner ship out of some country that he would receive him as a resident.
He is, a native-born Pole but the Polish Consul has advised him in writing that he is no longer a Polish subject.
This Government does not claim that he is a Polish citizen. His attorney says he is a stateless. The Government is
willing that he go back to the ship, but if he were sent back aboard a ship and sailed to the Port (Cherbourg,
France) from which he last sailed to the United States, he would probably be denied permission to land. There is
no other country that would take him, without proper documents.

It seems to me that this is a genuine hardship case and that the petitioner should be released from custody on
 proper terms. . . .

What is to be done with the petitioner? The government has had him in custody almost seven months and
practically admits it has no place to send him out of this country. The steamship company, which employed him as
one of a group sent to the ship by the Union, with proper seaman's papers issued by the United States Coast
Guard, is paying $3 a day for petitioner's board at Ellis Island. It is no fault of the steamship company that
petitioner is an inadmissible alien as the immigration officials describe him. . . .

I intend to sustain the writ of habeas corpus and order the release of the petitioner on his own recognizance. He
will be required to inform the immigration officials at Ellis Island by mail on the 15th of each month, stating where
he is employed and where he can be reached by mail. If the government does succeed in arranging for
petitioner's deportation to a country that will be ready to receive him as a resident, it may then advise the
petitioner to that effect and arrange for his deportation in the manner provided by law.

Although not binding upon this Court as a precedent, the case aforecited affords a happy solution to the quandry in which the
parties here finds themselves, solution which we think is sensible, sound and compatible with law and the Constitution. For this
reason, and since the Philippine law on immigration was patterned after or copied from the American law and practice, we
choose to follow and adopt the reasoning and conclusions in the Staniszewski decision with some modifications which, it is
believed, are in consonance with the prevailing conditions of peace and order in the Philippines.

It was said or insinuated at the hearing ofthe petition at bar, but not alleged in the return, that the petitioner was engaged in
subversive activities, and fear was expressed that he might join or aid the disloyal elements if allowed to be at large. Bearing in
mind the Government's allegation in its answer that "the herein petitioner was brought to the Philippines by the Japanese forces,"
and the fact that Japan is no longer at war with the United States or the Philippines nor identified with the countries allied against
these nations, the possibility of the petitioner's entertaining or committing hostile acts prejudicial to the interest and security of this
country seems remote.

If we grant, for the sake of argument, that such a possibility exists, still the petitioner's unduly prolonged detention would be
unwarranted by law and the Constitution, if the only purpose of the detention be to eliminate a danger that is by no means actual,
present, or uncontrolable. After all, the Government is not impotent to deal with or prevent any threat by such measure as that
just outlined. The thought eloquently expressed by Mr. Justice Jackson of the United States Supreme Court in connection with
the appliccation for bail of ten Communists convicted by a lower court of advocacy of violent overthrow of the United States
Government is, in principle, pertinent and may be availed of at this juncture. Said the learned Jurist:

The Governmet's alternative contention is that defendants, by misbehavior after conviction, have forfeited their
claim to bail. Grave public danger is said to result from what they may be expected to do, in addition to what they
have done since their conviction. If I assume that defendants are disposed to commit every opportune disloyal to
act helpful to Communist countries, it is still difficult to reconcile with traditional American law the jailing of persons
by the courts because of anticipated but as yet uncommitted crimes. lmprisonment to protect society from
predicted but unconsummated offenses is so unprecedented in this country and so fraught with danger of
excesses and injustice that I am loath to resort it, even as a discretionary judicial technique to supplement
conviction of such offenses as those of which defendants stand convicted.

But the right of every American to equal treatment before the law is wrapped up in the same constitutional bundle
with those of these Communists. If an anger or disgust with these defendants we throw out the bundle, we
alsocast aside protection for the liberties of more worthy critics who may be in opposition to the government of
some future day.

xxx xxx xxx 1âw phïl.nêt

If, however, I were to be wrong on all of these abstract or theoretical matters of principle, there is a very practical
aspect of this application which must not be overlooked or underestimated — that is the disastrous effect on the
 reputation of American justice if I should now send these men to jail and the full Court later decide that their
conviction is invalid. All experience with litigation teaches that existence of a substantial question about a
conviction implies a more than negligible risk of reversal. Indeed this experience lies back of our rule permitting
and practice of allowing bail where such questions exist, to avoid the hazard of unjustifiably imprisoning persons
with consequent reproach to our system of justice. If that is prudent judicial practice in the ordinary case, how
much more important to avoid every chance of handing to the Communist world such an ideological weapon as it
would have if this country should imprison this handful of Communist leaders on a conviction that our highest
Court would confess to be illegal. Risks, of course, are involved in either granting or refusing bail. I am naive
enough to underestimate the troublemaking propensities of the defendants. But, with the Department of Justice
alert to the the dangers, the worst they can accomplish in the short time it will take to end the litigation is
preferable to the possibility of national embarrassment from a celebrated case of unjustified imprisonment of
Communist leaders. Under no circumstances must we permit their symbolization of an evil force in the world to be
hallowed and glorified by any semblance of martyrdom. The way to avoid that risk is not to jail these men until it is
finally decided that they should stay jailed.

If that case is not comparable with ours on the issues presented, its underlying principle is of universal application. In fact, its ratio
decidendi applies with greater force to the present petition, since the right of accused to bail pending apppeal of his case, as in
the case of the ten Communists, depends upon the discretion of the court, whereas the right to be enlarged before formal
charges are instituted is absolute. As already noted, not only are there no charges pending against the petitioner, but the
prospects of bringing any against him are slim and remote.

Premises considered, the writ will issue commanding the respondents to release the petitioner from custody upon these terms:
The petitioner shall be placed under the surveillance of the immigration authorities or their agents in such form and manner as
may be deemed adequate to insure that he keep peace and be available when the Government is ready to deport him. The
surveillance shall be reasonable and the question of reasonableness shall be submitted to this Court or to the Court of First
Instance of Manila for decision in case of abuse. He shall also put up a bond for the above purpose in the amount of P5,000 with
sufficient surety or sureties, which bond the Commissioner of Immigration is authorized to exact by section 40 of Commonwealth
Act No. 613.

No costs will be charged.

Paras, C.J., Feria, Bengzon, Padilla, Reyes and Jugo, JJ., concur.

Separate Opinions

PABLO, M., disidente:

Disiento

En decision disada por este Tribunal en la primera causa de habeas corpus incoada por el solicitante Boris Mejoff (G.R. No. L-
2855, Mejoff vs. Director of Prisons)*, se declaro que el habia venido a Filipinas procedente de Shanghai como espia japones; en
la liberacion, el ejercito americano le arresto por se espia, habiendo sido mas tarde entregado al Gobierno del Commonwealth
para ser tratado de acuerdo con la ley No.682; pero como bajo el Codgo Penal Revisado, antes de su enmienda por la Orden
Ejecutiva No. 44, (mayo 31, 1945) no se castiga al extranjero que comete traicion, Mejoff fue puesto en libertad. Despues de una
debida investigacion, la Junta de Departacion encontra que el solicitante no tenia permiso para entrar en Filipinas; fue entregado
a la Junta de Inmigacion, la cual ordeno su deportacion a Rusia por el primer transporte disponible por haber vendo aqui
ilegalmente; fue enviado a Cebu para que alli se embarcase, pero los dos barcos de nacionalidad rusa que llegaron a dicho
puerto en julio y agosto de 1948 rehusaron admitirle. Por no encontrar transportacion para su departacion, Mejoff fue enviado a
la Prison de Muntinglupa, donde esta actualmente de tenido mientras el Gobierno no encuenra medio de transportarle a Rusia.
La mayoria contiende que "The Petitioner's entry into the Philippines was not unlawful; he was brought by the armed and
belligerent forces of a de facto government whose decrees were law during the occupation." Es tan ilegal la entrada del
solicitante como la del ejercito al que sirvio como espia. Ninguno tiene derecho a permanecer aqui. Puesto que fue vencido el
ejercito invasor que le trajo, el solicitante no tiene derecho a pemanecer aqui ni un minuto mas. Si desea proteccion, debe acudir
al Gobierno Japones a cuyo ejercito el sirvio; el hecho de que ya esta aqui no le da titulo para permanecer libre aqui. El que ha
venido como espia de enemigo del Pueblo de Filipinas no tiene derecho a pedir igual trato que aquel ha entrado de buena fe.
¿Es que Filipinos tiene la obligacion de acoger a un ciudadano indeseable de Rusia? ¿Desde cuando tiene que allanarse una
nacion a ser residencia de una extranjero que entro como enemigo o, peor aun, como espia? Un Estado tiene indiscutible
derecho a deportar y expulsar de su territorio a todo extranjero indeseable.

El solicitante sostiene que no tiene estado. Eso no es razon para que tenga derecho a permanecer aqui. Puede ser departado a
Rusio o a Shanghai de donde vino. Si todos los rusos que, por alguno que otro motivo, o por odio al comunisomo, dejasen su
pais y emigrasen aqui reclamando igual derecho, no habria territorio suficiente para ellos. Se puede decir otro tanto de los chinos
que, so pretexto de no querer someterse al regimen comunista, optasen por resider para siempre aqui. Y si los mismos
communistas chinos viniesen clandestinamente y despues reclamasen igual proteccion como la concedida a Mejoff, ¿tendreos
que darles por el gusto?

Se invoca la resolucion aprobada por la Asamblea General de las Naciones Unidas, titulada "Universal Declaration of Human
Rights", en la que se establece, entre otras cosas, que "no one shall be subjected to arbitrary arrest, detention or exile." Yo soy
de los que creen firmemente en lo sagrado de esta resolucion; no puedo permitir que se detenga y se arreste a alguien sin
motivo justificado, de una manera arbitraria; pero el solicitante no esta detenido de esta manera, lo esta de una manera
provisional. Tan pronto como haya barco disponible para su deportacion o tan pronto como pueda embarcarse en algun barco
para el extenjero o para cualquier otro punto a donde quiera ir, dejara de ser detenido. Conste que no esta preso como un
criminal condenado por un delito; esta tratado como cualquier otro extranjero sujeto a deportacion. Si el solicitante no hubiera
sido espia, si no hubiera venido aqui para ayudar a las hordas japonesas en la subyugacion del pueblo filipino, si hubiera venido
como visitante, por ejemplo, y, por azares de la fortuna, no pudo salir, yo seria el primero en abogar por su liberacion inmediata.

Se cita el caso de Staniszewski vs. Watkins, (1948 A.M.C. 931, 42 American Journal of International Law, 732) en el cual el
recurrente estuvo detenido ya casi siete meses cuando se decreto su libertad en un recurso de habeas corpus. En nuestra
opinion, dicho caso no tiene simulitud con la causa presente. Staniszewski era residente de los Estados desde 1911; estuvo
sirviendo como marino en barcos mercantes americanos en tiempo de guerra y se ordeno su detencion en Ellis Island cuando
volvio a America procedente de un viaje a Europa por no tener papeles de inmigracion. Staniszewski no habia entrado en los
Estados Unidos como espia, estuvo residiendo en dicho pais por varios años, era ya habitante de los Estados unidos. La
ocupacion de marino es honrosa, la del espia mercenario, detestable. El espia es peor que el enemigo. Este lucha cara a cara, y
el espia, con disimulo y arte engañosa, escucha lo que a Staniszewski se le haya puesto en libertad. Poner en libertad a un
espia es poner en peligro la seguridad del Estado.

En cuanto a la duracion de la detencion provisional del recurrente, no hay regla fija, depende de la cincunstancia de cada caso
particular. Es evidente que los medios de comunicacion entre Filipinas y Rusia o Shanghai, debico a fala de relciones
diplomaticas, son completamente anormales. No es culpa del gobierno el que no encuentre medios de transportacion para el.

La Comision de Inmigracion ha dado pasos para que la International Refugee Organziation of the United Nations (IRO0 se
hiciera cargo del recurrente para que pueda ser repartriado o enviado a otro pais extranjero, pero el Jefe de dicha organizacion
contesto que no estaba en condicines para aceptar dicha recomendacion.

William Martin Jurgans fue arrestado en 9 de enero de 1920, en 20 de mayo se decreto su deportacion por el Sub Secretario del
Tarabajo por violacion de la Ley de Inmigracion; solicto su libertad bajo el recurso de Habeas Corpus, y en 16 de febrero de
1927 se denego su peticion; no se le pudo deportar porque "the necessary arrangements for his deportation could obviously not
be made." (District Court of Minnesota, 17 F. 2nd series, 507). Como se vera, la detencion provisional de William Martin Jurgans
duro mas de seis años; la de Mejoff no ha sido mas que de 31 meses, y no porque el gobierno no quiere deportarle, sino porque
no hay medio disponible para realizarlo.
En Moraitis vs. Delany, 46 F. Supp., 425, se dijo:

What constitutes a reasonable time for the detention of the petitioner in custody for deportation depends upon the
facts and circumstances of particular cases. This court cannot shut its eyes to the vitally important interests of this
country at this time with respect to the bottleneck of shipping, when every available ship, domestic and foreign,
must be utilized to the utmost without delay consequent upon the lack of avilable seamen. Under these present
conditions the court should be liberal indeed in aiding the executive branch of the govenment in the strict
enforcement of laws so vitally necessary in the common defns. There is sound authority for this view in United
States ex. rel. Schlimm vs. Howe, D C.N. U Y. 222 F. 96, 97, where Circuit Judge Lacombe refused to release an
alien who had come here from Germany and was ordered deported in 1915 when, by reason of the then existing
war between Germany and England, his deportation to Germany was not possible. It was said:

At the present time there is no regular passenger ocean service to German ports, so the authorities are unable to
forward him, and are holding him until some opportunity of returning him to Germany may present itself. His
continual detention is unfortunate, but certainly is not illegal. His present condition can be alleviated only by the
action of the executive branch of the government. A federal court would not be justified in discharging him. . . .

If he is not really fit for sea service, it is not probable that he would be forced into it, although he may be able to
serve his government in some other capacity. But however that may be, while this country has no power under
existing legislation to impress him into sea service against his will, he has no just cause to be relieved from the
strict enforcement of our deportation laws, and to remain at liberty in this country as a sanctuary contrary to our
laws.

No es arbitraria la detencion de Mejoff. Esta jutificada por las circunstancias anormales.

La proposicion de vigilar al recurrente hasta que el gobierno encuentre transporte para su deportacion, supon un gasto
innecesario.

Footnotes

<sup*< sup="">84 Phil., 218.</sup*<>

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 Republic of the Philippines
SUPREME COURT
Manila

SECOND DIVISION

G.R. No. L-24294 May 3, 1974

DONALD BAER, Commander U.S. Naval Base, Subic Bay, Olongapo, Zambales, petitioner,
vs.
HON. TITO V. TIZON, as Presiding Judge of the Court of First Instance of Bataan, and EDGARDO GENER, respondents.

Sycip, Salazar, Luna Manalo & Feliciano for petitioner.

A. E. Dacanay for private respondent.

Office of the Solicitor General Camilo D. Quiason as amicus curiae.

FERNANDO, J.:p

There is nothing novel about the question raised in this certiorari proceeding against the then Judge Tito V. Tizon, filed by petitioner Donald Baer, then Commander of the United
States Naval Base, Subic Bay, Olongapo, Zambales, seeking to nullify the orders of respondent Judge denying his motion to dismiss a complaint filed against him by the private
respondent, Edgardo Gener, on the ground of sovereign immunity of a foreign power, his contention being that it was in effect a suit against the United States, which had not given
its consent. The answer given is supplied by a number of cases coming from this Tribunal starting from a 1945 decision, Raquiza v. Bradford1 to Johnson v. Turner,2 promulgated in
1954. The doctrine of immunity from suit is of undoubted applicability in this jurisdiction. It cannot be otherwise, for under the 1935 Constitution, as now, it is expressly made clear
that the Philippines "adopts the generally accepted principles of international law as part of the law of the Nation."3 As will subsequently be shown, there was a failure on the part of
the lower court to accord deference and respect to such a basic doctrine, a failure compounded by its refusal to take note of the absence of any legal right on the part of petitioner.
Hence, certiorari is the proper remedy.

The facts are not in dispute. On November 17, 1964, respondent Edgardo Gener, as plaintiff, filed a complaint for injunction with
the Court of First Instance of Bataan against petitioner, Donald Baer, Commander of the United States Naval Base in Olongapo.
It was docketed as Civil Case No. 2984 of the Court of First Instance of Bataan. He alleged that he was engaged in the business
of logging in an area situated in Barrio Mabayo, Municipality of Morong, Bataan and that the American Naval Base authorities
stopped his logging operations. He prayed for a writ of preliminary injunction restraining petitioner from interfering with his logging
operations. A restraining order was issued by respondent Judge on November 23, 1964.4 Counsel for petitioner, upon instructions
of the American Ambassador to the Philippines, entered their appearance for the purpose of contesting the jurisdiction of
respondent Judge on the ground that the suit was one against a foreign sovereign without its consent.5 Then, on December 12,
1964, petitioner filed a motion to dismiss, wherein such ground was reiterated. It was therein pointed out that he is the chief or
head of an agency or instrumentality of the United States of America, with the subject matter of the action being official acts done
by him for and in behalf of the United States of America. It was added that in directing the cessation of logging operations by
respondent Gener within the Naval Base, petitioner was entirely within the scope of his authority and official duty, the
maintenance of the security of the Naval Base and of the installations therein being the first concern and most important duty of
the Commander of the Base.6 There was, on December 14, 1964, an opposition and reply to petitioner's motion to dismiss by
respondent Gener, relying on the principle that "a private citizen claiming title and right of possession of certain property may, to
recover possession of said property, sue as individuals, officers and agents of the Government, who are said to be illegally
withholding the same from him, though in doing so, said officers and agents claim that they are acting for the Government." That
was his basis for sustaining the jurisdiction of respondent Judge.7 Petitioner, thereafter, on January 12, 1965, made a written offer
of documentary evidence, including certified copies of telegrams of the Forestry Director to Forestry personnel in Balanga,
Bataan dated January 8, and January 11, 1965, directing immediate investigation of illegal timber cutting in Bataan and calling
attention to the fact that the records of the office show no new renewal of timber license or temporary extension permits.8 The
above notwithstanding, respondent Judge, on January 12, 1965, issued an order granting respondent Gener's application for the
issuance of a writ of preliminary injunction and denying petitioner's motion to dismiss the opposition to the application for a writ of
preliminary injunction.9

A motion for reconsideration having proved futile, this petition for certiorari was filed with this Court. The prayer was for the
nullification and setting aside of the writ of preliminary injunction issued by respondent Judge in the aforesaid Civil Case No. 2984
of the Court of First Instance of Bataan. A resolution of March 17, 1965 was issued by this Court requiring respondents to file an
answer and upon petitioner's posting a bond of P5,000.00 enjoining them from enforcing such writ of preliminary injunction. The
answer was duly forthcoming. It sought to meet the judicial question raised by the legal proposition that a private citizen claiming
title and right of possession of a certain property may, to recover the same, sue as individuals officers and agents of the
government alleged to be illegally withholding such property even if there is an assertion on their part that they are acting for the
government. Support for such a view is found in the American Supreme Court decisions of United States v. Lee10 and Land v.
Dollar.11Thus the issue is squarely joined whether or not the doctrine of immunity from suit without consent is applicable.
Thereafter, extensive memoranda were filed both by petitioner and respondents. In addition, there was a manifestation and
memorandum of the Republic of the Philippines as amicus curiae where, after a citation of American Supreme Court decisions
going back to Schooner Exchange v. M'faddon,12 an 1812 decision, to United States v. Belmont,13 decided in 1937, the plea was
made that the petition for certiorari be granted..

A careful study of the crucial issue posed in this dispute yields the conclusion, as already announced, that petitioner should
prevail.

1. The invocation of the doctrine of immunity from suit of a foreign state without its consent is appropriate. More specifically,
insofar as alien armed forces is concerned, the starting point is Raquiza v. Bradford, a 1945 decision.14In dismissing a habeas
corpus petition for the release of petitioners confined by American army authorities, Justice Hilado, speaking for the Court, cited
from Coleman v. Tennessee,15 where it was explicitly declared: "It is well settled that a foreign army, permitted to march through a
friendly country or to be stationed in it, by permission of its government or sovereign, is exempt from the civil and criminal
jurisdiction of the place."16 Two years later, in Tubb and Tedrow v. Griess,17 this Court relied on the ruling in Raquiza v.
Bradford and cited in support thereof excerpts from the works of the following authoritative writers: Vattel, Wheaton, Hall,
Lawrence, Oppenhein, Westlake, Hyde, and McNair and Lauterpacht.18 Accuracy demands the clarification that after the
conclusion of the Philippine-American Military Bases Agreement, the treaty provisions should control on such matter, the
assumption being that there was a manifestation of the submission to jurisdiction on the part of the foreign power whenever
appropriate.19More to the point is Syquia v. Almeda Lopez,20 where plaintiffs as lessors sued the Commanding General of the
United States Army in the Philippines, seeking the restoration to them of the apartment buildings they owned leased to United
States armed forces stationed in the Manila area. A motion to dismiss on the ground of non-suability was filed and upheld by
respondent Judge. The matter was taken to this Court in a mandamus proceeding. It failed. It was the ruling that respondent
Judge acted correctly considering that the "action must be considered as one against the U.S. Government."21 The opinion of
Justice Montemayor continued: "It is clear that the courts of the Philippines including the Municipal Court of Manila have no
jurisdiction over the present case for unlawful detainer. The question of lack of jurisdiction was raised and interposed at the very
beginning of the action. The U.S. Government has not given its consent to the filing of this suit which is essentially against her,
though not in name. Moreover, this is not only a case of a citizen filing a suit against his own Government without the latter's
consent but it is of a citizen filing an action against a foreign government without said government's consent, which renders more
obvious the lack of jurisdiction of the courts of his country. The principles of law behind this rule are so elementary and of such
general acceptance that we deem it unnecessary to cite authorities in support thereof."22 Then came Marvel Building Corporation
v. Philippine War Damage Commission,23 where respondent, a United States agency established to compensate damages
suffered by the Philippines during World War II was held as falling within the above doctrine as the suit against it "would
eventually be a charge against or financial liability of the United States Government because ..., the Commission has no funds of
its own for the purpose of paying money judgments."24 The Syquiaruling was again explicitly relied upon in Marquez Lim v.
Nelson,25 involving a complaint for the recovery of a motor launch, plus damages, the special defense interposed being "that the
vessel belonged to the United States Government, that the defendants merely acted as agents of said Government, and that the
United States Government is therefore the real party in interest."26 So it was in Philippine Alien Property Administration v.
Castelo,27 where it was held that a suit against the Alien Property Custodian and the Attorney General of the United States
involving vested property under the Trading with the Enemy Act is in substance a suit against the United States. To the same
effect is Parreno v. McGranery,28 as the following excerpt from the opinion of Justice Tuason clearly shows: "It is a widely
accepted principle of international law, which is made a part of the law of the land (Article II, Section 3 of the Constitution), that a
foreign state may not be brought to suit before the courts of another state or its own courts without its consent."29 Finally, there
is Johnson v. Turner,30 an appeal by the defendant, then Commanding General, Philippine Command (Air Force, with office at
Clark Field) from a decision ordering the return to plaintiff of the confiscated military payment certificates known as scrip money.
In reversing the lower court decision, this Tribunal, through Justice Montemayor, relied on Syquia v. Almeda Lopez,31 explaining
why it could not be sustained.

The solidity of the stand of petitioner is therefore evident. What was sought by private respondent and what was granted by
respondent Judge amounted to an interference with the performance of the duties of petitioner in the base area in accordance
with the powers possessed by him under the Philippine-American Military Bases Agreement. This point was made clear in these
words: "Assuming, for purposes of argument, that the Philippine Government, through the Bureau of Forestry, possesses the
"authority to issue a Timber License to cut logs" inside a military base, the Bases Agreement subjects the exercise of rights under
a timber license issued by the Philippine Government to the exercise by the United States of its rights, power and authority of
control within the bases; and the findings of the Mutual Defense Board, an agency of both the Philippine and United States
Governments, that "continued logging operation by Mr. Gener within the boundaries of the U.S. Naval Base would not be
consistent with the security and operation of the Base," is conclusive upon the respondent Judge. .. The doctrine of state
immunity is not limited to cases which would result in a pecuniary charge against the sovereign or would require the doing of an
affirmative act by it. Prevention of a sovereign from doing an affirmative act pertaining directly and immediately to the most
important public function of any government - the defense of the state — is equally as untenable as requiring it to do an
affirmative act."32 That such an appraisal is not opposed to the interpretation of the relevant treaty provision by our government is
made clear in the aforesaid manifestation and memorandum as amicus curiae, wherein it joined petitioner for the grant of the
remedy prayed for.

2. There should be no misinterpretation of the scope of the decision reached by this Court. Petitioner, as the Commander of the
United States Naval Base in Olongapo, does not possess diplomatic immunity. He may therefore be proceeded against in his
personal capacity, or when the action taken by him cannot be imputed to the government which he represents. Thus, after the
Military Bases Agreement, in Miquiabas v. Commanding General33and Dizon v. The Commanding General of the Philippine-
Ryukus Command,34 both of them being habeas corpus petitions, there was no question as to the submission to jurisdiction of the
respondents. As a matter of fact, in Miquiabas v. Commanding General,35 the immediate release of the petitioner was ordered, it
being apparent that the general court martial appointed by respondent Commanding General was without jurisdiction to try
petitioner. Thereafter, in the cited cases of Syquia, Marquez Lim, and Johnson, the parties proceeded against were American
army commanding officers stationed in the Philippines. The insuperable obstacle to the jurisdiction of respondent Judge is that a
foreign sovereign without its consent is haled into court in connection with acts performed by it pursuant to treaty provisions and
thus impressed with a governmental character.

3. The infirmity of the actuation of respondent Judge becomes even more glaring when it is considered that private respondent
had ceased to have any right of entering within the base area. This is made clear in the petition in these words: "In 1962,
respondent Gener was issued by the Bureau of Forestry an ordinary timber license to cut logs in Barrio Mabayo, Morong, Bataan.
The license was renewed on July 10, 1963. In 1963, he commenced logging operation inside the United States Naval Base,
Subic Bay, but in November 1963 he was apprehended and stopped by the Base authorities from logging inside the Base. The
renewal of his license expired on July 30, 1964, and to date his license has not been renewed by the Bureau of Forestry. .. In July
1964, the Mutual Defense Board, a joint Philippines-United States agency established pursuant to an exchange of diplomatic
notes between the Secretary of Foreign Affairs and the United States Ambassador to provide "direct liaison and consultation
between appropriate Philippine and United States authorities on military matters of mutual concern,' advised the Secretary of
Foreign Affairs in writing that: "The enclosed map shows that the area in which Mr. Gener was logging definitely falls within the
boundaries of the base. This map also depicts certain contiguous and overlapping areas whose functional usage would be
interfered with by the logging operations.'"36 Nowhere in the answer of respondents, nor in their memorandum, was this point met.
It remained unrefuted.

WHEREFORE, the writ of certiorari prayed for is granted, nullifying and setting aside the writ of preliminary injunction issued by
respondent Judge in Civil Case No. 2984 of the Court of First Instance of Bataan. The injunction issued by this Court on March
18, 1965 enjoining the enforcement of the aforesaid writ of preliminary injunction of respondent Judge is hereby made
permanent. Costs against private respondent Edgardo Gener.

Zaldivar, Antonio, Fernandez and Aquino, JJ., concur.

Barredo, J., took no part.

Footnotes

1 75 Phil. 50.

2 94 Phil. 807. The other cases from Raquiza v. Bradford follow: Tubb and Tedrow v. Griess, 78 Phil. 249
(1947); Miquiabas v. Commanding General, 80 Phil. 262 (1948); Dizon v. Phil. Ryukus Command, 81 Phil.
286 (1948); Syquia v. Almeda Lopez, 84 Phil. 312 (1949); Marvel Building Corp. v. Philippine War
Damage Commission, 85 Phil. 27 (1949); Marquez Lim v. Nelson, 87 Phil. 328 (1950); Philippine Alien
Property Administration v. Castelo, 89 Phil. 568 (1951); Parreno v. McGranery, 92 Phil. 791 (1953).

3 According to Article II, Sec. 3 of the 1935 Constitution: "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." The same provision is found in the present Constitution, Article II, Sec. 3, reading thus: "The
Philippines renounces war as an instrument of national policy, adopts the generally accepted principles of
international law as part of the law of the land, and adheres to the policy of peace, equality, justice,
freedom, cooperation, and amity with all nations."

4 Petition, par. 2(a) and (b).

5 Ibid, par. 2(d).

6 Ibid, par. 2(e).

7 Ibid, par. 2(f).

8 Ibid, par. 2(i).

9 Ibid, par. 2(j).

10 106 US 196 (1882).

11 330 US 731 (1947).

12 7 Cranch 116..
13 301 US 324.

14 75 Phil. 50.

15 97 US 509 (1879).

16 75 Phil. 50, 60.

17 78 Phil. 249 (1947).

18 Ibid, 252-254.

19 Cf. People v. Acierto, 92 Phil. 534 (1953) and People v. Gozo, L-36409,Oct. 26, 1973, 53 SCRA 476.

20 84 Phil. 312 (1949).

21 Ibid, 323.

22 Ibid.

23 85 Phil. 27 (1949).

24 Ibid, 32.

25 87 Phil. 328 (1950).

26 Ibid, 329.

27 89 Phil. 568 (1951).

28 92 Phil. 791 (1953).

29 Ibid, 792. The excerpt continues with a reference to the Syquia, Marvel Building Corporation, and
Marquez Lim decisions.

30 94 Phil. 807 (1954).

31 84 Phil. 312 (1949).

32 Petition, paragraph 2 (2).

33 80 Phil. 262 (1948).

34 81 Phil. 286 (1948).

35 80 Phil. 262 (1948).

36 Petition, paragraph 3.
The Lawphil Project - Arellano Law Foundation

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EN BANC

[G.R. No. 118295. May 2, 1997]

WIGBERTO E. TAADA and ANNA DOMINIQUE COSETENG, as

members of the Philippine Senate and as taxpayers; GREGORIO
ANDOLANA and JOKER ARROYO as members of the House of
Representatives and as taxpayers; NICANOR P. PERLAS and
HORACIO R. MORALES, both as taxpayers; CIVIL LIBERTIES
UNION, NATIONAL ECONOMIC PROTECTIONISM ASSOCIATION,
CENTER FOR ALTERNATIVE DEVELOPMENT INITIATIVES,
LIKAS-KAYANG KAUNLARAN FOUNDATION, INC., PHILIPPINE
RURAL RECONSTRUCTION MOVEMENT, DEMOKRATIKONG
KILUSAN NG MAGBUBUKID NG PILIPINAS, INC., and
PHILIPPINE PEASANT INSTITUTE, in representation of various
taxpayers and as non-governmental organizations, petitioners,
vs. EDGARDO ANGARA, ALBERTO ROMULO, LETICIA RAMOS-
SHAHANI, HEHERSON ALVAREZ, AGAPITO AQUINO, RODOLFO
BIAZON, NEPTALI GONZALES, ERNESTO HERRERA, JOSE
LINA, GLORIA MACAPAGAL-ARROYO, ORLANDO MERCADO,
BLAS OPLE, JOHN OSMEA, SANTANINA RASUL, RAMON
REVILLA, RAUL ROCO, FRANCISCO TATAD and FREDDIE
WEBB, in their respective capacities as members of the
Philippine Senate who concurred in the ratification by the
President of the Philippines of the Agreement Establishing the
World Trade Organization; SALVADOR ENRIQUEZ, in his
 capacity as Secretary of Budget and Management; CARIDAD
VALDEHUESA, in her capacity as National Treasurer; RIZALINO
NAVARRO, in his capacity as Secretary of Trade and Industry;
ROBERTO SEBASTIAN, in his capacity as Secretary of
Agriculture; ROBERTO DE OCAMPO, in his capacity as
Secretary of Finance; ROBERTO ROMULO, in his capacity as
Secretary of Foreign Affairs; and TEOFISTO T. GUINGONA, in
his capacity as Executive Secretary, respondents.

DECISION
PANGANIBAN, J.:

The emergence on January 1, 1995 of the World Trade Organization, abetted by

the membership thereto of the vast majority of countries has revolutionized international
business and economic relations amongst states. It has irreversibly propelled the world
towards trade liberalization and economic globalization. Liberalization, globalization,
deregulation and privatization, the third-millennium buzz words, are ushering in a new
borderless world of business by sweeping away as mere historical relics the heretofore
traditional modes of promoting and protecting national economies like tariffs, export
subsidies, import quotas, quantitative restrictions, tax exemptions and currency
controls. Finding market niches and becoming the best in specific industries in a
market-driven and export-oriented global scenario are replacing age-old beggar-thy-
neighbor policies that unilaterally protect weak and inefficient domestic producers of
goods and services. In the words of Peter Drucker, the well-known management guru,
Increased participation in the world economy has become the key to domestic economic
growth and prosperity.

Brief Historical Background

To hasten worldwide recovery from the devastation wrought by the Second World
War, plans for the establishment of three multilateral institutions -- inspired by that grand
political body, the United Nations -- were discussed at Dumbarton Oaks and Bretton
Woods. The first was the World Bank (WB) which was to address the rehabilitation and
reconstruction of war-ravaged and later developing countries; the second, the
International Monetary Fund (IMF) which was to deal with currency problems; and the
third, the International Trade Organization (ITO), which was to foster order and
predictability in world trade and to minimize unilateral protectionist policies that invite
challenge, even retaliation, from other states. However, for a variety of reasons,
including its non-ratification by the United States, the ITO, unlike the IMF and WB, never
took off. What remained was only GATT -- the General Agreement on Tariffs and
Trade. GATT was a collection of treaties governing access to the economies of treaty
adherents with no institutionalized body administering the agreements or dependable
system of dispute settlement.
 After half a century and several dizzying rounds of negotiations, principally the
Kennedy Round, the Tokyo Round and the Uruguay Round, the world finally gave birth
to that administering body -- the World Trade Organization -- with the signing of the
Final Act in Marrakesh, Morocco and the ratification of the WTO Agreement by its
members.[1]
Like many other developing countries, the Philippines joined WTO as a founding
member with the goal, as articulated by President Fidel V. Ramos in two letters to the
Senate (infra), of improving Philippine access to foreign markets, especially its major
trading partners, through the reduction of tariffs on its exports, particularly agricultural
and industrial products. The President also saw in the WTO the opening of new
opportunities for the services sector x x x, (the reduction of) costs and uncertainty
associated with exporting x x x, and (the attraction of) more investments into the
country. Although the Chief Executive did not expressly mention it in his letter, the
Philippines - - and this is of special interest to the legal profession - - will benefit from
the WTO system of dispute settlement by judicial adjudication through the independent
WTO settlement bodies called (1) Dispute Settlement Panels and (2) Appellate
Tribunal.Heretofore, trade disputes were settled mainly through negotiations where
solutions were arrived at frequently on the basis of relative bargaining strengths, and
where naturally, weak and underdeveloped countries were at a disadvantage.

The Petition in Brief

Arguing mainly (1) that the WTO requires the Philippines to place nationals and
products of member-countries on the same footing as Filipinos and local products and
(2) that the WTO intrudes, limits and/or impairs the constitutional powers of both
Congress and the Supreme Court, the instant petition before this Court assails the WTO
Agreement for violating the mandate of the 1987 Constitution to develop a self-reliant
and independent national economy effectively controlled by Filipinos x x x (to) give
preference to qualified Filipinos (and to) promote the preferential use of Filipino labor,
domestic materials and locally produced goods.
Simply stated, does the Philippine Constitution prohibit Philippine participation in
worldwide trade liberalization and economic globalization? Does it prescribe Philippine
integration into a global economy that is liberalized, deregulated and privatized? These
are the main questions raised in this petition for certiorari, prohibition
and mandamus under Rule 65 of the Rules of Court praying (1) for the nullification, on
constitutional grounds, of the concurrence of the Philippine Senate in the ratification by
the President of the Philippines of the Agreement Establishing the World Trade
Organization (WTO Agreement, for brevity) and (2) for the prohibition of its
implementation and enforcement through the release and utilization of public funds, the
assignment of public officials and employees, as well as the use of government
properties and resources by respondent-heads of various executive offices concerned
therewith. This concurrence is embodied in Senate Resolution No. 97, dated December
14, 1994.
 The Facts

On April 15, 1994, Respondent Rizalino Navarro, then Secretary of

the Department of Trade and Industry (Secretary Navarro, for brevity), representing the
Government of the Republic of the Philippines, signed in Marrakesh, Morocco, the Final
Act Embodying the Results of the Uruguay Round of Multilateral Negotiations (Final Act,
for brevity).
By signing the Final Act,[2] Secretary Navarro on behalf of the Republic of the
Philippines, agreed:

(a) to submit, as appropriate, the WTO Agreement for the consideration of their
respective competent authorities, with a view to seeking approval of the Agreement in
accordance with their procedures; and

(b) to adopt the Ministerial Declarations and Decisions.

On August 12, 1994, the members of the Philippine Senate received a letter dated
August 11, 1994 from the President of the Philippines, [3] stating among others that the
Uruguay Round Final Act is hereby submitted to the Senate for its concurrence
pursuant to Section 21, Article VII of the Constitution.
On August 13, 1994, the members of the Philippine Senate received another letter
from the President of the Philippines[4] likewise dated August 11, 1994, which stated
among others that the Uruguay Round Final Act, the Agreement Establishing the World
Trade Organization, the Ministerial Declarations and Decisions, and the Understanding
on Commitments in Financial Services are hereby submitted to the Senate for its
concurrence pursuant to Section 21, Article VII of the Constitution.
On December 9, 1994, the President of the Philippines certified the necessity of the
immediate adoption of P.S. 1083, a resolution entitled Concurring in the Ratification of
the Agreement Establishing the World Trade Organization.[5]
On December 14, 1994, the Philippine Senate adopted Resolution No. 97 which
Resolved, as it is hereby resolved, that the Senate concur, as it hereby concurs, in the
ratification by the President of the Philippines of the Agreement Establishing the World
Trade Organization.[6] The text of the WTO Agreement is written on pages 137 et seq. of
Volume I of the 36-volume Uruguay Round of Multilateral Trade Negotiations and
includes various agreements and associated legal instruments (identified in the said
Agreement as Annexes 1, 2 and 3 thereto and collectively referred to as Multilateral
Trade Agreements, for brevity) as follows:

ANNEX 1

Annex 1A: Multilateral Agreement on Trade in Goods

General Agreement on Tariffs and Trade 1994

 Agreement on Agriculture

Agreement on the Application of Sanitary and

Phytosanitary Measures

Agreement on Textiles and Clothing

Agreement on Technical Barriers to Trade

Agreement on Trade-Related Investment Measures

Agreement on Implementation of Article VI of the General

Agreement on Tariffs and Trade 1994

Agreement on Implementation of Article VII of the General on

Tariffs and Trade 1994

Agreement on Pre-Shipment Inspection

Agreement on Rules of Origin

Agreement on Imports Licensing Procedures

Agreement on Subsidies and Coordinating Measures

Agreement on Safeguards

Annex 1B: General Agreement on Trade in Services and Annexes

Annex 1C: Agreement on Trade-Related Aspects of Intellectual Property Rights

ANNEX 2

Understanding on Rules and Procedures Governing the Settlement

of Disputes

ANNEX 3

Trade Policy Review Mechanism

On December 16, 1994, the President of the Philippines signed [7] the Instrument of
Ratification, declaring:
NOW THEREFORE, be it known that I, FIDEL V. RAMOS, President of the
Republic of the Philippines, after having seen and considered the aforementioned
Agreement Establishing the World Trade Organization and the agreements and
associated legal instruments included in Annexes one (1), two (2) and three (3) of that
Agreement which are integral parts thereof, signed at Marrakesh, Morocco on 15
April 1994, do hereby ratify and confirm the same and every Article and Clause
thereof.

To emphasize, the WTO Agreement ratified by the President of the Philippines is

composed of the Agreement Proper and the associated legal instruments included in
Annexes one (1), two (2) and three (3) of that Agreement which are integral parts
thereof.
On the other hand, the Final Act signed by Secretary Navarro embodies not only the
WTO Agreement (and its integral annexes aforementioned) but also (1) the Ministerial
Declarations and Decisions and (2) the Understanding on Commitments in Financial
Services. In his Memorandum dated May 13, 1996,[8] the Solicitor General describes
these two latter documents as follows:

The Ministerial Decisions and Declarations are twenty-five declarations and decisions
on a wide range of matters, such as measures in favor of least developed countries,
notification procedures, relationship of WTO with the International Monetary Fund
(IMF), and agreements on technical barriers to trade and on dispute settlement.

The Understanding on Commitments in Financial Services dwell on, among other

things, standstill or limitations and qualifications of commitments to existing non-
conforming measures, market access, national treatment, and definitions of non-
resident supplier of financial services, commercial presence and new financial service.

On December 29, 1994, the present petition was filed. After careful deliberation on
respondents comment and petitioners reply thereto, the Court resolved on December
12, 1995, to give due course to the petition, and the parties thereafter filed their
respective memoranda. The Court also requested the Honorable Lilia R. Bautista, the
Philippine Ambassador to the United Nations stationed in Geneva, Switzerland, to
submit a paper, hereafter referred to as Bautista Paper, [9] for brevity, (1) providing a
historical background of and (2) summarizing the said agreements.
During the Oral Argument held on August 27, 1996, the Court directed:

(a) the petitioners to submit the (1) Senate Committee Report on the matter in
controversy and (2) the transcript of proceedings/hearings in the Senate; and

(b) the Solicitor General, as counsel for respondents, to file (1) a list of Philippine
treaties signed prior to the Philippine adherence to the WTO Agreement, which
derogate from Philippine sovereignty and (2) copies of the multi-volume WTO
Agreement and other documents mentioned in the Final Act, as soon as possible.

After receipt of the foregoing documents, the Court said it would consider the case
submitted for resolution. In a Compliance dated September 16, 1996, the Solicitor
General submitted a printed copy of the 36-volume Uruguay Round of Multilateral Trade
Negotiations, and in another Compliance dated October 24, 1996, he listed the various
bilateral or multilateral treaties or international instruments involving derogation of
Philippine sovereignty. Petitioners, on the other hand, submitted their Compliance dated
January 28, 1997, on January 30, 1997.

The Issues

In their Memorandum dated March 11, 1996, petitioners summarized the issues as
follows:

A. Whether the petition presents a political question or is otherwise not justiciable.

B. Whether the petitioner members of the Senate who participated in the

deliberations and voting leading to the concurrence are estopped from
impugning the validity of the Agreement Establishing the World Trade
Organization or of the validity of the concurrence.

C. Whether the provisions of the Agreement Establishing the World Trade

Organization contravene the provisions of Sec. 19, Article II, and Secs. 10 and
12, Article XII, all of the 1987 Philippine Constitution.

D. Whether provisions of the Agreement Establishing the World Trade

Organization unduly limit, restrict and impair Philippine sovereignty
specifically the legislative power which, under Sec. 2, Article VI, 1987
Philippine Constitution is vested in the Congress of the Philippines;

E. Whether provisions of the Agreement Establishing the World Trade

Organization interfere with the exercise of judicial power.

F. Whether the respondent members of the Senate acted in grave abuse of

discretion amounting to lack or excess of jurisdiction when they voted for
concurrence in the ratification of the constitutionally-infirm Agreement
Establishing the World Trade Organization.

G. Whether the respondent members of the Senate acted in grave abuse of

discretion amounting to lack or excess of jurisdiction when they concurred
 only in the ratification of the Agreement Establishing the World Trade
Organization, and not with the Presidential submission which included the
Final Act, Ministerial Declaration and Decisions, and the Understanding on
Commitments in Financial Services.

On the other hand, the Solicitor General as counsel for respondents synthesized the
several issues raised by petitioners into the following:[10]

1. Whether or not the provisions of the Agreement Establishing the World Trade
Organization and the Agreements and Associated Legal Instruments included in
Annexes one (1), two (2) and three (3) of that agreement cited by petitioners directly
contravene or undermine the letter, spirit and intent of Section 19, Article II and
Sections 10 and 12, Article XII of the 1987 Constitution.

2. Whether or not certain provisions of the Agreement unduly limit, restrict or impair
the exercise of legislative power by Congress.

3. Whether or not certain provisions of the Agreement impair the exercise of judicial
power by this Honorable Court in promulgating the rules of evidence.

4. Whether or not the concurrence of the Senate in the ratification by the President of
the Philippines of the Agreement establishing the World Trade Organization implied
rejection of the treaty embodied in the Final Act.

By raising and arguing only four issues against the seven presented by petitioners,
the Solicitor General has effectively ignored three, namely: (1) whether the petition
presents a political question or is otherwise not justiciable; (2) whether petitioner-
members of the Senate (Wigberto E. Taada and Anna Dominique Coseteng) are
estopped from joining this suit; and (3) whether the respondent-members of the Senate
acted in grave abuse of discretion when they voted for concurrence in the ratification of
the WTO Agreement. The foregoing notwithstanding, this Court resolved to deal with
these three issues thus:

(1) The political question issue -- being very fundamental and vital, and being a
matter that probes into the very jurisdiction of this Court to hear and decide this case -
- was deliberated upon by the Court and will thus be ruled upon as the first issue;

(2) The matter of estoppel will not be taken up because this defense is waivable and
the respondents have effectively waived it by not pursuing it in any of their pleadings;
in any event, this issue, even if ruled in respondents favor, will not cause the petitions
dismissal as there are petitioners other than the two senators, who are not vulnerable
to the defense of estoppel; and
(3) The issue of alleged grave abuse of discretion on the part of the respondent
senators will be taken up as an integral part of the disposition of the four issues raised
by the Solicitor General.

During its deliberations on the case, the Court noted that the respondents did not
question the locus standi of petitioners. Hence, they are also deemed to have waived
the benefit of such issue. They probably realized that grave constitutional issues,
expenditures of public funds and serious international commitments of the nation are
involved here, and that transcendental public interest requires that the substantive
issues be met head on and decided on the merits, rather than skirted or deflected by
procedural matters.[11]
To recapitulate, the issues that will be ruled upon shortly are:
(1) DOES THE PETITION PRESENT A JUSTICIABLE
CONTROVERSY? OTHERWISE STATED, DOES THE PETITION INVOLVE A
POLITICAL QUESTION OVER WHICH THIS COURT HAS NO JURISDICTION?
(2) DO THE PROVISIONS OF THE WTO AGREEMENT AND ITS THREE ANNEXES
CONTRAVENE SEC. 19, ARTICLE II, AND SECS. 10 AND 12, ARTICLE XII, OF
THE PHILIPPINE CONSTITUTION?
(3) DO THE PROVISIONS OF SAID AGREEMENT AND ITS ANNEXES LIMIT,
RESTRICT, OR IMPAIR THE EXERCISE OF LEGISLATIVE POWER BY
CONGRESS?
(4) DO SAID PROVISIONS UNDULY IMPAIR OR INTERFERE WITH THE EXERCISE
OF JUDICIAL POWER BY THIS COURT IN PROMULGATING RULES ON
EVIDENCE?
(5) WAS THE CONCURRENCE OF THE SENATE IN THE WTO AGREEMENT AND
ITS ANNEXES SUFFICIENT AND/OR VALID, CONSIDERING THAT IT DID NOT
INCLUDE THE FINAL ACT, MINISTERIAL DECLARATIONS AND DECISIONS,
AND THE UNDERSTANDING ON COMMITMENTS IN FINANCIAL SERVICES?

The First Issue: Does the Court Have Jurisdiction Over the Controversy?

In seeking to nullify an act of the Philippine Senate on the ground that it

contravenes the Constitution, the petition no doubt raises a justiciable
controversy. Where an action of the legislative branch is seriously alleged to have
infringed the Constitution, it becomes not only the right but in fact the duty of the
judiciary to settle the dispute. The question thus posed is judicial rather than
political. The duty (to adjudicate) remains to assure that the supremacy of the
Constitution is upheld.[12] Once a controversy as to the application or interpretation of a
constitutional provision is raised before this Court (as in the instant case), it becomes a
legal issue which the Court is bound by constitutional mandate to decide. [13]
The jurisdiction of this Court to adjudicate the matters[14] raised in the petition is
clearly set out in the 1987 Constitution,[15] as follows:
Judicial power includes the duty of the courts of justice to settle actual controversies
involving rights which are legally demandable and enforceable, and to determine
whether or not there has been a grave abuse of discretion amounting to lack or excess
of jurisdiction on the part of any branch or instrumentality of the government.

The foregoing text emphasizes the judicial departments duty and power to strike
down grave abuse of discretion on the part of any branch or instrumentality of
government including Congress. It is an innovation in our political law.[16] As explained by
former Chief Justice Roberto Concepcion,[17] the judiciary is the final arbiter on the
question of whether or not a branch of government or any of its officials has acted
without jurisdiction or in excess of jurisdiction or so capriciously as to constitute an
abuse of discretion amounting to excess of jurisdiction. This is not only a judicial power
but a duty to pass judgment on matters of this nature.
As this Court has repeatedly and firmly emphasized in many cases,[18] it will not shirk,
digress from or abandon its sacred duty and authority to uphold the Constitution in
matters that involve grave abuse of discretion brought before it in appropriate cases,
committed by any officer, agency, instrumentality or department of the government.
As the petition alleges grave abuse of discretion and as there is no other plain,
speedy or adequate remedy in the ordinary course of law, we have no hesitation at all in
holding that this petition should be given due course and the vital questions raised
therein ruled upon under Rule 65 of the Rules of Court. Indeed, certiorari, prohibition
and mandamus are appropriate remedies to raise constitutional issues and to review
and/or prohibit/nullify, when proper, acts of legislative and executive officials. On this,
we have no equivocation.
We should stress that, in deciding to take jurisdiction over this petition, this Court
will not review the wisdom of the decision of the President and the Senate in enlisting
the country into the WTO, or pass upon the merits of trade liberalization as a policy
espoused by said international body. Neither will it rule on the propriety of the
governments economic policy of reducing/removing tariffs, taxes, subsidies, quantitative
restrictions, and other import/trade barriers. Rather, it will only exercise its constitutional
duty to determine whether or not there had been a grave abuse of discretion amounting
to lack or excess of jurisdiction on the part of the Senate in ratifying the WTO
Agreement and its three annexes.

Second Issue: The WTO Agreement and Economic Nationalism

This is the lis mota, the main issue, raised by the petition.
Petitioners vigorously argue that the letter, spirit and intent of the Constitution
mandating economic nationalism are violated by the so-called parity provisions and
national treatment clauses scattered in various parts not only of the WTO Agreement
and its annexes but also in the Ministerial Decisions and Declarations and in the
Understanding on Commitments in Financial Services.
 Specifically, the flagship constitutional provisions referred to are Sec. 19, Article II,
and Secs. 10 and 12, Article XII, of the Constitution, which are worded as follows:

Article II

DECLARATION OF PRINCIPLES AND STATE POLICIES

xx xx xx xx

Sec. 19. The State shall develop a self-reliant and independent national economy
effectively controlled by Filipinos.

xx xx xx xx

Article XII

NATIONAL ECONOMY AND PATRIMONY

xx xx xx xx

Sec. 10. x x x. The Congress shall enact measures that will encourage the formation
and operation of enterprises whose capital is wholly owned by Filipinos.

In the grant of rights, privileges, and concessions covering the national economy and
patrimony, the State shall give preference to qualified Filipinos.

xx xx xx xx

Sec. 12. The State shall promote the preferential use of Filipino labor, domestic
materials and locally produced goods, and adopt measures that help make them
competitive.

Petitioners aver that these sacred constitutional principles are desecrated by the
following WTO provisions quoted in their memorandum:[19]

a) In the area of investment measures related to trade in goods (TRIMS, for

brevity):

Article 2

National Treatment and Quantitative Restrictions.

 1. Without prejudice to other rights and obligations under GATT 1994. no
Member shall apply any TRIM that is inconsistent with the provisions of
Article III or Article XI of GATT 1994.

2. An Illustrative list of TRIMS that are inconsistent with the obligations of

general elimination of quantitative restrictions provided for in paragraph I of
Article XI of GATT 1994 is contained in the Annex to this
Agreement. (Agreement on Trade-Related Investment Measures, Vol. 27,
Uruguay Round, Legal Instruments, p.22121, emphasis supplied).

The Annex referred to reads as follows:

ANNEX

Illustrative List

1. TRIMS that are inconsistent with the obligation of national treatment

provided for in paragraph 4 of Article III of GATT 1994 include those
which are mandatory or enforceable under domestic law or under
administrative rulings, or compliance with which is necessary to obtain an
advantage, and which require:

(a) the purchase or use by an enterprise of products of domestic origin or from

any domestic source, whether specified in terms of particular products, in
terms of volume or value of products, or in terms of proportion of volume
or value of its local production; or

(b) that an enterprises purchases or use of imported products be limited to an

amount related to the volume or value of local products that it exports.

2. TRIMS that are inconsistent with the obligations of general elimination of

quantitative restrictions provided for in paragraph 1 of Article XI of GATT
1994 include those which are mandatory or enforceable under domestic laws or
under administrative rulings, or compliance with which is necessary to obtain
an advantage, and which restrict:

(a) the importation by an enterprise of products used in or related to the local

production that it exports;

(b) the importation by an enterprise of products used in or related to its local

production by restricting its access to foreign exchange inflows attributable
to the enterprise; or
 (c) the exportation or sale for export specified in terms of particular products,
in terms of volume or value of products, or in terms of a preparation of
volume or value of its local production. (Annex to the Agreement on
Trade-Related Investment Measures, Vol. 27, Uruguay Round Legal
Documents, p.22125, emphasis supplied).

The paragraph 4 of Article III of GATT 1994 referred to is quoted as follows:

The products of the territory of any contracting party imported into the territory of any
other contracting party shall be accorded treatment no less favorable than that
accorded to like products of national origin in respect of laws, regulations and
requirements affecting their internal sale, offering for sale, purchase, transportation,
distribution or use. the provisions of this paragraph shall not prevent the application of
differential internal transportation charges which are based exclusively on the
economic operation of the means of transport and not on the nationality of the
product. (Article III, GATT 1947, as amended by the Protocol Modifying Part II, and
Article XXVI of GATT, 14 September 1948, 62 UMTS 82-84 in relation to paragraph
1(a) of the General Agreement on Tariffs and Trade 1994, Vol. 1, Uruguay Round,
Legal Instruments p.177, emphasis supplied).

b) In the area of trade related aspects of intellectual property rights (TRIPS, for
brevity):

Each Member shall accord to the nationals of other Members treatment no less
favourable than that it accords to its own nationals with regard to the protection of
intellectual property... (par. 1, Article 3, Agreement on Trade-Related Aspect of
Intellectual Property rights, Vol. 31, Uruguay Round, Legal Instruments, p.25432
(emphasis supplied)

(c) In the area of the General Agreement on Trade in Services:

National Treatment

1. In the sectors inscribed in its schedule, and subject to any conditions and
qualifications set out therein, each Member shall accord to services and
service suppliers of any other Member, in respect of all measures affecting
the supply of services, treatment no less favourable than it accords to its
own like services and service suppliers.

2. A Member may meet the requirement of paragraph I by according to

services and service suppliers of any other Member, either formally
 identical treatment or formally different treatment to that it accords to its
own like services and service suppliers.

3. Formally identical or formally different treatment shall be considered to be

less favourable if it modifies the conditions of completion in favour of
services or service suppliers of the Member compared to like services or
service suppliers of any other Member. (Article XVII, General Agreement
on Trade in Services, Vol. 28, Uruguay Round Legal Instruments, p.22610
emphasis supplied).

It is petitioners position that the foregoing national treatment and parity provisions of
the WTO Agreement place nationals and products of member countries on the same
footing as Filipinos and local products, in contravention of the Filipino First policy of the
Constitution. They allegedly render meaningless the phrase effectively controlled by
Filipinos. The constitutional conflict becomes more manifest when viewed in the context
of the clear duty imposed on the Philippines as a WTO member to ensure the
conformity of its laws, regulations and administrative procedures with its obligations as
provided in the annexed agreements.[20] Petitioners further argue that these provisions
contravene constitutional limitations on the role exports play in national development
and negate the preferential treatment accorded to Filipino labor, domestic materials and
locally produced goods.
On the other hand, respondents through the Solicitor General counter (1) that such
Charter provisions are not self-executing and merely set out general policies; (2) that
these nationalistic portions of the Constitution invoked by petitioners should not be read
in isolation but should be related to other relevant provisions of Art. XII, particularly
Secs. 1 and 13 thereof; (3) that read properly, the cited WTO clauses do not conflict
with the Constitution; and (4) that the WTO Agreement contains sufficient provisions to
protect developing countries like the Philippines from the harshness of sudden trade
liberalization.
We shall now discuss and rule on these arguments.

Declaration of Principles Not Self-Executing

By its very title, Article II of the Constitution is a declaration of principles and state
policies. The counterpart of this article in the 1935 Constitution [21] is called the basic
political creed of the nation by Dean Vicente Sinco.[22] These principles in Article II are
not intended to be self-executing principles ready for enforcement through the
courts.[23] They are used by the judiciary as aids or as guides in the exercise of its power
of judicial review, and by the legislature in its enactment of laws. As held in the leading
case of Kilosbayan, Incorporated vs. Morato,[24] the principles and state policies
enumerated in Article II and some sections of Article XII are not self-executing
provisions, the disregard of which can give rise to a cause of action in the courts.They
do not embody judicially enforceable constitutional rights but guidelines for legislation.
 In the same light, we held in Basco vs. Pagcor[25] that broad constitutional principles
need legislative enactments to implement them, thus:

On petitioners allegation that P.D. 1869 violates Sections 11 (Personal Dignity) 12

(Family) and 13 (Role of Youth) of Article II; Section 13 (Social Justice) of Article
XIII and Section 2 (Educational Values) of Article XIV of the 1987 Constitution,
suffice it to state also that these are merely statements of principles and policies. As
such, they are basically not self-executing, meaning a law should be passed by
Congress to clearly define and effectuate such principles.

In general, therefore, the 1935 provisions were not intended to be self-executing

principles ready for enforcement through the courts. They were rather directives
addressed to the executive and to the legislature. If the executive and the legislature
failed to heed the directives of the article, the available remedy was not judicial but
political. The electorate could express their displeasure with the failure of the
executive and the legislature through the language of the ballot. (Bernas, Vol. II, p. 2).

The reasons for denying a cause of action to an alleged infringement of broad

constitutional principles are sourced from basic considerations of due process and the
lack of judicial authority to wade into the uncharted ocean of social and economic policy
making. Mr. Justice Florentino P. Feliciano in his concurring opinion in Oposa vs.
Factoran, Jr.,[26] explained these reasons as follows:

My suggestion is simply that petitioners must, before the trial court, show a more
specific legal right -- a right cast in language of a significantly lower order of
generality than Article II (15) of the Constitution -- that is or may be violated by the
actions, or failures to act, imputed to the public respondent by petitioners so that the
trial court can validly render judgment granting all or part of the relief prayed for. To
my mind, the court should be understood as simply saying that such a more specific
legal right or rights may well exist in our corpus of law, considering the general policy
principles found in the Constitution and the existence of the Philippine Environment
Code, and that the trial court should have given petitioners an effective opportunity so
to demonstrate, instead of aborting the proceedings on a motion to dismiss.

It seems to me important that the legal right which is an essential component of a

cause of action be a specific, operable legal right, rather than a constitutional or
statutory policy, for at least two (2) reasons.One is that unless the legal right claimed
to have been violated or disregarded is given specification in operational terms,
defendants may well be unable to defend themselves intelligently and effectively; in
other words, there are due process dimensions to this matter.

The second is a broader-gauge consideration -- where a specific violation of law or

applicable regulation is not alleged or proved, petitioners can be expected to fall back
on the expanded conception of judicial power in the second paragraph of Section 1 of
Article VIII of the Constitution which reads:

Section 1. x x x

Judicial power includes the duty of the courts of justice to settle actual controversies
involving rights which are legally demandable and enforceable, and to determine
whether or not there has been a grave abuse of discretion amounting to lack or excess
of jurisdiction on the part of any branch or instrumentality of the
Government. (Emphases supplied)

When substantive standards as general as the right to a balanced and healthy ecology
and the right to health are combined with remedial standards as broad ranging as a
grave abuse of discretion amounting to lack or excess of jurisdiction, the result will
be, it is respectfully submitted, to propel courts into the uncharted ocean of social and
economic policy making. At least in respect of the vast area of environmental
protection and management, our courts have no claim to special technical competence
and experience and professional qualification. Where no specific, operable norms and
standards are shown to exist, then the policy making departments -- the legislative and
executive departments -- must be given a real and effective opportunity to fashion and
promulgate those norms and standards, and to implement them before the courts
should intervene.

Economic Nationalism Should Be Read with Other Constitutional Mandates to

Attain Balanced Development of Economy

On the other hand, Secs. 10 and 12 of Article XII, apart from merely laying down
general principles relating to the national economy and patrimony, should be read and
understood in relation to the other sections in said article, especially Secs. 1 and 13
thereof which read:

Section 1. The goals of the national economy are a more equitable distribution of
opportunities, income, and wealth; a sustained increase in the amount of goods and
services produced by the nation for the benefit of the people; and an expanding
productivity as the key to raising the quality of life for all, especially the
underprivileged.

The State shall promote industrialization and full employment based on sound
agricultural development and agrarian reform, through industries that make full and
efficient use of human and natural resources, and which are competitive in both
domestic and foreign markets. However, the State shall protect Filipino enterprises
against unfair foreign competition and trade practices.

In the pursuit of these goals, all sectors of the economy and all regions of the country
shall be given optimum opportunity to develop. x x x

xxxxxxxxx

Sec. 13. The State shall pursue a trade policy that serves the general welfare and
utilizes all forms and arrangements of exchange on the basis of equality and
reciprocity.

As pointed out by the Solicitor General, Sec. 1 lays down the basic goals of national
economic development, as follows:
1. A more equitable distribution of opportunities, income and wealth;
2. A sustained increase in the amount of goods and services provided by the nation
for the benefit of the people; and
3. An expanding productivity as the key to raising the quality of life for all especially
the underprivileged.
With these goals in context, the Constitution then ordains the ideals of economic
nationalism (1) by expressing preference in favor of qualified Filipinos in the grant of
rights, privileges and concessions covering the national economy and patrimony [27] and
in the use of Filipino labor, domestic materials and locally-produced goods; (2) by
mandating the State to adopt measures that help make them competitive; [28] and (3) by
requiring the State to develop a self-reliant and independent national economy
effectively controlled by Filipinos.[29] In similar language, the Constitution takes into
account the realities of the outside world as it requires the pursuit of a trade policy that
serves the general welfare and utilizes all forms and arrangements of exchange on the
basis of equality and reciprocity;[30] and speaks of industries which are competitive in
both domestic and foreign markets as well as of the protection of Filipino enterprises
against unfair foreign competition and trade practices.
It is true that in the recent case of Manila Prince Hotel vs. Government Service
Insurance System, et al.,[31] this Court held that Sec. 10, second par., Art. XII of the 1987
Constitution is a mandatory, positive command which is complete in itself and which
needs no further guidelines or implementing laws or rules for its enforcement. From its
very words the provision does not require any legislation to put it in operation. It is per
se judicially enforceable. However, as the constitutional provision itself states, it is
enforceable only in regard to the grants of rights, privileges and concessions covering
national economy and patrimony and not to every aspect of trade and commerce. It
refers to exceptions rather than the rule. The issue here is not whether this paragraph of
Sec. 10 of Art. XII is self-executing or not. Rather, the issue is whether, as a rule, there
are enough balancing provisions in the Constitution to allow the Senate to ratify the
Philippine concurrence in the WTO Agreement. And we hold that there are.
 All told, while the Constitution indeed mandates a bias in favor of Filipino goods,
services, labor and enterprises, at the same time, it recognizes the need for business
exchange with the rest of the world on the bases of equality and reciprocity and limits
protection of Filipino enterprises only against foreign competition and trade practices
that are unfair.[32] In other words, the Constitution did not intend to pursue an isolationist
policy. It did not shut out foreign investments, goods and services in the development of
the Philippine economy. While the Constitution does not encourage the unlimited entry
of foreign goods, services and investments into the country, it does not prohibit them
either. In fact, it allows an exchange on the basis of equality and reciprocity, frowning
only on foreign competition that is unfair.

WTO Recognizes Need to Protect Weak Economies

Upon the other hand, respondents maintain that the WTO itself has some built-in
advantages to protect weak and developing economies, which comprise the vast
majority of its members. Unlike in the UN where major states have permanent seats and
veto powers in the Security Council, in the WTO, decisions are made on the basis of
sovereign equality, with each members vote equal in weight to that of any other. There
is no WTO equivalent of the UN Security Council.

WTO decides by consensus whenever possible, otherwise, decisions of the Ministerial

Conference and the General Council shall be taken by the majority of the votes cast,
except in cases of interpretation of the Agreement or waiver of the obligation of a
member which would require three fourths vote. Amendments would require two
thirds vote in general. Amendments to MFN provisions and the Amendments
provision will require assent of all members. Any member may withdraw from the
Agreement upon the expiration of six months from the date of notice of withdrawals. [33]

Hence, poor countries can protect their common interests more effectively through
the WTO than through one-on-one negotiations with developed countries. Within the
WTO, developing countries can form powerful blocs to push their economic agenda
more decisively than outside the Organization. This is not merely a matter of practical
alliances but a negotiating strategy rooted in law. Thus, the basic principles underlying
the WTO Agreement recognize the need of developing countries like the Philippines to
share in the growth in international trade commensurate with the needs of their
economic development. These basic principles are found in the preamble [34] of the WTO
Agreement as follows:

The Parties to this Agreement,

Recognizing that their relations in the field of trade and economic endeavour should
be conducted with a view to raising standards of living, ensuring full employment and
a large and steadily growing volume of real income and effective demand, and
expanding the production of and trade in goods and services, while allowing for the
optimal use of the worlds resources in accordance with the objective of sustainable
development, seeking both to protect and preserve the environment and to enhance the
means for doing so in a manner consistent with their respective needs and concerns at
different levels of economic development,

Recognizing further that there is need for positive efforts designed to ensure that
developing countries, and especially the least developed among them, secure a share
in the growth in international trade commensurate with the needs of their economic
development,

Being desirous of contributing to these objectives by entering into reciprocal and

mutually advantageous arrangements directed to the substantial reduction of tariffs
and other barriers to trade and to the elimination of discriminatory treatment in
international trade relations,

Resolved, therefore, to develop an integrated, more viable and durable multilateral

trading system encompassing the General Agreement on Tariffs and Trade, the results
of past trade liberalization efforts, and all of the results of the Uruguay Round of
Multilateral Trade Negotiations,

Determined to preserve the basic principles and to further the objectives underlying
this multilateral trading system, x x x. (underscoring supplied.)

Specific WTO Provisos Protect Developing Countries

So too, the Solicitor General points out that pursuant to and consistent with the
foregoing basic principles, the WTO Agreement grants developing countries a more
lenient treatment, giving their domestic industries some protection from the rush of
foreign competition. Thus, with respect to tariffs in general, preferential treatment is
given to developing countries in terms of the amount of tariff reduction and the period
within which the reduction is to be spread out. Specifically, GATT requires an average
tariff reduction rate of 36% for developed countries to be effected within a period of six
(6) years while developing countries -- including the Philippines -- are required to effect
an average tariff reduction of only 24% within ten (10) years.
In respect to domestic subsidy, GATT requires developed countries to reduce
domestic support to agricultural products by 20% over six (6) years, as compared
to only 13% for developing countries to be effected within ten (10) years.
In regard to export subsidy for agricultural products, GATT requires developed
countries to reduce their budgetary outlays for export subsidy by 36% and export
volumes receiving export subsidy by 21% within a period of six (6) years. For
developing countries, however, the reduction rate is only two-thirds of that prescribed
for developed countries and a longer period of ten (10) years within which to effect such
reduction.
Moreover, GATT itself has provided built-in protection from unfair foreign
competition and trade practices including anti-dumping measures, countervailing
measures and safeguards against import surges. Where local businesses are
jeopardized by unfair foreign competition, the Philippines can avail of these
measures. There is hardly therefore any basis for the statement that under the WTO,
local industries and enterprises will all be wiped out and that Filipinos will be deprived of
control of the economy. Quite the contrary, the weaker situations of developing nations
like the Philippines have been taken into account; thus, there would be no basis to say
that in joining the WTO, the respondents have gravely abused their discretion.True, they
have made a bold decision to steer the ship of state into the yet uncharted sea of
economic liberalization. But such decision cannot be set aside on the ground of grave
abuse of discretion, simply because we disagree with it or simply because we believe
only in other economic policies. As earlier stated, the Court in taking jurisdiction of this
case will not pass upon the advantages and disadvantages of trade liberalization as an
economic policy. It will only perform its constitutional duty of determining whether the
Senate committed grave abuse of discretion.

Constitution Does Not Rule Out Foreign Competition

Furthermore, the constitutional policy of a self-reliant and independent national

economy[35] does not necessarily rule out the entry of foreign investments, goods and
services. It contemplates neither economic seclusion nor mendicancy in the
international community. As explained by Constitutional Commissioner Bernardo
Villegas, sponsor of this constitutional policy:

Economic self-reliance is a primary objective of a developing country that is keenly

aware of overdependence on external assistance for even its most basic needs. It does
not mean autarky or economic seclusion; rather, it means avoiding mendicancy in the
international community. Independence refers to the freedom from undue foreign
control of the national economy, especially in such strategic industries as in the
development of natural resources and public utilities. [36]

The WTO reliance on most favored nation, national treatment, and trade without
discrimination cannot be struck down as unconstitutional as in fact they are rules of
equality and reciprocity that apply to all WTO members. Aside from envisioning a trade
policy based on equality and reciprocity,[37] the fundamental law encourages industries
that are competitive in both domestic and foreign markets, thereby demonstrating a
clear policy against a sheltered domestic trade environment, but one in favor of the
gradual development of robust industries that can compete with the best in the foreign
markets. Indeed, Filipino managers and Filipino enterprises have shown capability and
tenacity to compete internationally. And given a free trade environment, Filipino
entrepreneurs and managers in Hongkong have demonstrated the Filipino capacity to
grow and to prosper against the best offered under a policy of laissez faire.

Constitution Favors Consumers, Not Industries or Enterprises

The Constitution has not really shown any unbalanced bias in favor of any business
or enterprise, nor does it contain any specific pronouncement that Filipino companies
should be pampered with a total
proscription of foreign competition. On the other hand, respondents claim that
WTO/GATT aims to make available to the Filipino consumer the best goods and
services obtainable anywhere in the world at the most reasonable prices. Consequently,
the question boils down to whether WTO/GATT will favor the general welfare of the
public at large.
Will adherence to the WTO treaty bring this ideal (of favoring the general welfare) to
reality?
Will WTO/GATT succeed in promoting the Filipinos general welfare because it will --
as promised by its promoters -- expand the countrys exports and generate more
employment?
Will it bring more prosperity, employment, purchasing power and quality products at
the most reasonable rates to the Filipino public?
The responses to these questions involve judgment calls by our policy makers, for
which they are answerable to our people during appropriate electoral exercises. Such
questions and the answers thereto are not subject to judicial pronouncements based on
grave abuse of discretion.

Constitution Designed to Meet Future Events and Contingencies

No doubt, the WTO Agreement was not yet in existence when the Constitution was
drafted and ratified in 1987. That does not mean however that the Charter is necessarily
flawed in the sense that its framers might not have anticipated the advent of a
borderless world of business. By the same token, the United Nations was not yet in
existence when the 1935 Constitution became effective. Did that necessarily mean that
the then Constitution might not have contemplated a diminution of the absoluteness of
sovereignty when the Philippines signed the UN Charter, thereby effectively
surrendering part of its control over its foreign relations to the decisions of various UN
organs like the Security Council?
It is not difficult to answer this question. Constitutions are designed to meet not only
the vagaries of contemporary events. They should be interpreted to cover even future
and unknown circumstances. It is to the credit of its drafters that a Constitution can
withstand the assaults of bigots and infidels but at the same time bend with the
refreshing winds of change necessitated by unfolding events. As one eminent political
law writer and respected jurist[38] explains:

The Constitution must be quintessential rather than superficial, the root and not the
blossom, the base and framework only of the edifice that is yet to rise. It is but the
core of the dream that must take shape, not in a twinkling by mandate of our
delegates, but slowly in the crucible of Filipino minds and hearts, where it will in time
develop its sinews and gradually gather its strength and finally achieve its
substance. In fine, the Constitution cannot, like the goddess Athena, rise full-grown
from the brow of the Constitutional Convention, nor can it conjure by mere fiat an
instant Utopia. It must grow with the society it seeks to re-structure and march apace
with the progress of the race, drawing from the vicissitudes of history the dynamism
and vitality that will keep it, far from becoming a petrified rule, a pulsing, living law
attuned to the heartbeat of the nation.

Third Issue: The WTO Agreement and Legislative Power

The WTO Agreement provides that (e)ach Member shall ensure the conformity of its
laws, regulations and administrative procedures with its obligations as provided in the
annexed Agreements.[39] Petitioners maintain that this undertaking unduly limits, restricts
and impairs Philippine sovereignty, specifically the legislative power which under Sec. 2,
Article VI of the 1987 Philippine Constitution is vested in the Congress of the
Philippines. It is an assault on the sovereign powers of the Philippines because this
means that Congress could not pass legislation that will be good for our national interest
and general welfare if such legislation will not conform with the WTO Agreement, which
not only relates to the trade in goods x x x but also to the flow of investments and
money x x x as well as to a whole slew of agreements on socio-cultural matters x x x.[40]
More specifically, petitioners claim that said WTO proviso derogates from the power
to tax, which is lodged in the Congress.[41] And while the Constitution allows Congress to
authorize the President to fix tariff rates, import and export quotas, tonnage and
wharfage dues, and other duties or imposts, such authority is subject to specified limits
and x x x such limitations and restrictions as Congress may provide,[42] as in fact it did
under Sec. 401 of the Tariff and Customs Code.

Sovereignty Limited by International Law and Treaties

This Court notes and appreciates the ferocity and passion by which petitioners
stressed their arguments on this issue. However, while sovereignty has traditionally
been deemed absolute and all-encompassing on the domestic level, it is however
subject to restrictions and limitations voluntarily agreed to by the Philippines, expressly
or impliedly, as a member of the family of nations. Unquestionably, the Constitution did
not envision a hermit-type isolation of the country from the rest of the world. In its
Declaration of Principles and State Policies, the Constitution adopts the generally
accepted principles of international law as part of the law of the land, and adheres to the
policy of peace, equality, justice, freedom, cooperation and amity, with all nations."[43] By
the doctrine of incorporation, the country is bound by generally accepted principles of
international law, which are considered to be automatically part of our own laws.[44] One
of the oldest and most fundamental rules in international law is pacta sunt servanda --
international agreements must be performed in good faith. A treaty engagement is not a
mere moral obligation but creates a legally binding obligation on the parties x x x. A
state which has contracted valid international obligations is bound to make in its
legislations such modifications as may be necessary to ensure the fulfillment of the
obligations undertaken.[45]
By their inherent nature, treaties really limit or restrict the absoluteness of
sovereignty. By their voluntary act, nations may surrender some aspects of their state
power in exchange for greater benefits granted by or derived from a convention or
pact. After all, states, like individuals, live with coequals, and in pursuit of mutually
covenanted objectives and benefits, they also commonly agree to limit the exercise of
their otherwise absolute rights. Thus, treaties have been used to record agreements
between States concerning such widely diverse matters as, for example, the lease of
naval bases, the sale or cession of territory, the termination of war, the regulation of
conduct of hostilities, the formation of alliances, the regulation of commercial relations,
the settling of claims, the laying down of rules governing conduct in peace and the
establishment of international organizations.[46] The sovereignty of a state therefore
cannot in fact and in reality be considered absolute. Certain restrictions enter into the
picture: (1) limitations imposed by the very nature of membership in the family of nations
and (2) limitations imposed by treaty stipulations. As aptly put by John F. Kennedy,
Today, no nation can build its destiny alone. The age of self-sufficient nationalism is
over. The age of interdependence is here.[47]

UN Charter and Other Treaties Limit Sovereignty

Thus, when the Philippines joined the United Nations as one of its 51 charter
members, it consented to restrict its sovereign rights under the concept of sovereignty
as auto-limitation.47-A Under Article 2 of the UN Charter, (a)ll members shall give the
United Nations every assistance in any action it takes in accordance with the present
Charter, and shall refrain from giving assistance to any state against which the United
Nations is taking preventive or enforcement action. Such assistance includes payment
of its corresponding share not merely in administrative expenses but also in
expenditures for the peace-keeping operations of the organization. In its advisory
opinion of July 20, 1961, the International Court of Justice held that money used by the
United Nations Emergency Force in the Middle East and in the Congo were expenses of
the United Nations under Article 17, paragraph 2, of the UN Charter. Hence, all its
members must bear their corresponding share in such expenses. In this sense, the
Philippine Congress is restricted in its power to appropriate. It is compelled to
appropriate funds whether it agrees with such peace-keeping expenses or not. So too,
under Article 105 of the said Charter, the UN and its representatives enjoy diplomatic
privileges and immunities, thereby limiting again the exercise of sovereignty of members
within their own territory. Another example: although sovereign equality and domestic
jurisdiction of all members are set forth as underlying principles in the UN Charter,
such provisos are however subject to enforcement measures decided by the Security
Council for the maintenance of international peace and security under Chapter VII of the
Charter. A final example: under Article 103, (i)n the event of a conflict between the
obligations of the Members of the United Nations under the present Charter and their
obligations under any other international agreement, their obligation under the present
charter shall prevail, thus unquestionably denying the Philippines -- as a member -- the
sovereign power to make a choice as to which of conflicting obligations, if any, to honor.
Apart from the UN Treaty, the Philippines has entered into many other international
pacts -- both bilateral and multilateral -- that involve limitations on Philippine
sovereignty. These are enumerated by the Solicitor General in his Compliance dated
October 24, 1996, as follows:

(a) Bilateral convention with the United States regarding taxes on income, where
the Philippines agreed, among others, to exempt from tax, income received in
the Philippines by, among others, the Federal Reserve Bank of the United
States, the Export/Import Bank of the United States, the Overseas Private
Investment Corporation of the United States. Likewise, in said convention,
wages, salaries and similar remunerations paid by the United States to its
citizens for labor and personal services performed by them as employees or
officials of the United States are exempt from income tax by the Philippines.

(b) Bilateral agreement with Belgium, providing, among others, for the avoidance
of double taxation with respect to taxes on income.

(c) Bilateral convention with the Kingdom of Sweden for the avoidance of double
taxation.

(d) Bilateral convention with the French Republic for the avoidance of double
taxation.

(e) Bilateral air transport agreement with Korea where the Philippines agreed to
exempt from all customs duties, inspection fees and other duties or taxes
aircrafts of South Korea and the regular equipment, spare parts and supplies
arriving with said aircrafts.

(f) Bilateral air service agreement with Japan, where the Philippines agreed to
exempt from customs duties, excise taxes, inspection fees and other similar
 duties, taxes or charges fuel, lubricating oils, spare parts, regular equipment,
stores on board Japanese aircrafts while on Philippine soil.

(g) Bilateral air service agreement with Belgium where the Philippines granted
Belgian air carriers the same privileges as those granted to Japanese and
Korean air carriers under separate air service agreements.

(h) Bilateral notes with Israel for the abolition of transit and visitor visas where
the Philippines exempted Israeli nationals from the requirement of obtaining
transit or visitor visas for a sojourn in the Philippines not exceeding 59 days.

(I) Bilateral agreement with France exempting French nationals from the
requirement of obtaining transit and visitor visa for a sojourn not exceeding 59
days.

(j) Multilateral Convention on Special Missions, where the Philippines agreed that
premises of Special Missions in the Philippines are inviolable and its agents
can not enter said premises without consent of the Head of Mission
concerned. Special Missions are also exempted from customs duties, taxes and
related charges.

(k) Multilateral Convention on the Law of Treaties. In this convention, the

Philippines agreed to be governed by the Vienna Convention on the Law of
Treaties.

(l) Declaration of the President of the Philippines accepting compulsory

jurisdiction of the International Court of Justice. The International Court of
Justice has jurisdiction in all legal disputes concerning the interpretation of a
treaty, any question of international law, the existence of any fact which, if
established, would constitute a breach of international obligation.

In the foregoing treaties, the Philippines has effectively agreed to limit the exercise
of its sovereign powers of taxation, eminent domain and police power. The underlying
consideration in this partial surrender of sovereignty is the reciprocal commitment of the
other contracting states in granting the same privilege and immunities to the Philippines,
its officials and its citizens. The same reciprocity characterizes the Philippine
commitments under WTO-GATT.

International treaties, whether relating to nuclear disarmament, human rights, the

environment, the law of the sea, or trade, constrain domestic political sovereignty
through the assumption of external obligations. But unless anarchy in international
relations is preferred as an alternative, in most cases we accept that the benefits of the
reciprocal obligations involved outweigh the costs associated with any loss of political
sovereignty. (T)rade treaties that structure relations by reference to durable, well-
defined substantive norms and objective dispute resolution procedures reduce the risks
of larger countries exploiting raw economic power to bully smaller countries, by
subjecting power relations to some form of legal ordering. In addition, smaller
countries typically stand to gain disproportionately from trade liberalization. This is
due to the simple fact that liberalization will provide access to a larger set of potential
new trading relationship than in case of the larger country gaining enhanced success
to the smaller countrys market. [48]

The point is that, as shown by the foregoing treaties, a portion of sovereignty may
be waived without violating the Constitution, based on the rationale that the Philippines
adopts the generally accepted principles of international law as part of the law of the
land and adheres to the policy of x x x cooperation and amity with all nations.

Fourth Issue: The WTO Agreement and Judicial Power

Petitioners aver that paragraph 1, Article 34 of the General Provisions and Basic
Principles of the Agreement on Trade-Related Aspects of Intellectual Property Rights
(TRIPS)[49]intrudes on the power of the Supreme Court to promulgate rules concerning
pleading, practice and procedures.[50]
To understand the scope and meaning of Article 34, TRIPS,[51] it will be fruitful to
restate its full text as follows:

Article 34

Process Patents: Burden of Proof

1. For the purposes of civil proceedings in respect of the infringement of the rights
of the owner referred to in paragraph 1(b) of Article 28, if the subject matter of a
patent is a process for obtaining a product, the judicial authorities shall have the
authority to order the defendant to prove that the process to obtain an identical
product is different from the patented process. Therefore, Members shall provide,
in at least one of the following circumstances, that any identical product when
produced without the consent of the patent owner shall, in the absence of proof to
the contrary, be deemed to have been obtained by the patented process:

(a) if the product obtained by the patented process is new;

(b) if there is a substantial likelihood that the identical product was made by
the process and the owner of the patent has been unable through
reasonable efforts to determine the process actually used.
 2. Any Member shall be free to provide that the burden of proof indicated in
paragraph 1 shall be on the alleged infringer only if the condition referred to in
subparagraph (a) is fulfilled or only if the condition referred to in subparagraph
(b) is fulfilled.

3. In the adduction of proof to the contrary, the legitimate interests of defendants

in protecting their manufacturing and business secrets shall be taken into account.

From the above, a WTO Member is required to provide a rule of disputable (note
the words in the absence of proof to the contrary) presumption that a product shown to
be identical to one produced with the use of a patented process shall be deemed to
have been obtained by the (illegal) use of the said patented process, (1) where such
product obtained by the patented product is new, or (2) where there is substantial
likelihood that the identical product was made with the use of the said patented process
but the owner of the patent could not determine the exact process used in obtaining
such identical product. Hence, the burden of proof contemplated by Article 34 should
actually be understood as the duty of the alleged patent infringer to overthrow such
presumption. Such burden, properly understood, actually refers to the burden of
evidence (burden of going forward) placed on the producer of the identical (or fake)
product to show that his product was produced without the use of the patented process.
The foregoing notwithstanding, the patent owner still has the burden of proof since,
regardless of the presumption provided under paragraph 1 of Article 34, such owner still
has to introduce evidence of the existence of the alleged identical product, the fact that
it is identical to the genuine one produced by the patented process and the fact of
newness of the genuine product or the fact of substantial likelihood that the identical
product was made by the patented process.
The foregoing should really present no problem in changing the rules of evidence as
the present law on the subject, Republic Act No. 165, as amended, otherwise known as
the Patent Law, provides a similar presumption in cases of infringement of patented
design or utility model, thus:

SEC. 60. Infringement. - Infringement of a design patent or of a patent for utility

model shall consist in unauthorized copying of the patented design or utility model for
the purpose of trade or industry in the article or product and in the making, using or
selling of the article or product copying the patented design or utility model. Identity
or substantial identity with the patented design or utility model shall constitute
evidence of copying. (underscoring supplied)

Moreover, it should be noted that the requirement of Article 34 to provide a

disputable presumption applies only if (1) the product obtained by the patented process
is NEW or (2) there is a substantial likelihood that the identical product was made by the
process and the process owner has not been able through reasonable effort to
determine the process used. Where either of these two provisos does not obtain,
members shall be free to determine the appropriate method of implementing the
provisions of TRIPS within their own internal systems and processes.
By and large, the arguments adduced in connection with our disposition of the third
issue -- derogation of legislative power - will apply to this fourth issue also. Suffice it to
say that the reciprocity clause more than justifies such intrusion, if any actually
exists. Besides, Article 34 does not contain an unreasonable burden, consistent as it is
with due process and the concept of adversarial dispute settlement inherent in our
judicial system.
So too, since the Philippine is a signatory to most international conventions on
patents, trademarks and copyrights, the adjustment in legislation and rules of procedure
will not be substantial.[52]

Fifth Issue: Concurrence Only in the WTO Agreement and Not in Other
Documents Contained in the Final Act

Petitioners allege that the Senate concurrence in the WTO Agreement and its
annexes -- but not in the other documents referred to in the Final Act, namely the
Ministerial Declaration and Decisions and the Understanding on Commitments in
Financial Services -- is defective and insufficient and thus constitutes abuse of
discretion. They submit that such concurrence in the WTO Agreement alone is flawed
because it is in effect a rejection of the Final Act, which in turn was the document signed
by Secretary Navarro, in representation of the Republic upon authority of the
President. They contend that the second letter of the President to the Senate[53] which
enumerated what constitutes the Final Act should have been the subject of concurrence
of the Senate.
A final act, sometimes called protocol de clture, is an instrument which records
the winding up of the proceedings of a diplomatic conference and usually includes a
reproduction of the texts of treaties, conventions, recommendations and other acts
agreed upon and signed by the plenipotentiaries attending the conference.[54] It is not the
treaty itself. It is rather a summary of the proceedings of a protracted conference which
may have taken place over several years. The text of the Final Act Embodying the
Results of the Uruguay Round of Multilateral Trade Negotiations is contained in just one
page[55] in Vol. I of the 36-volume Uruguay Round of Multilateral Trade Negotiations. By
signing said Final Act, Secretary Navarro as representative of the Republic of the
Philippines undertook:

"(a) to submit, as appropriate, the WTO Agreement for the consideration of their
respective competent authorities with a view to seeking approval of the
Agreement in accordance with their procedures; and

(b) to adopt the Ministerial Declarations and Decisions."

 The assailed Senate Resolution No. 97 expressed concurrence in exactly what the
Final Act required from its signatories, namely, concurrence of the Senate in the WTO
Agreement.
The Ministerial Declarations and Decisions were deemed adopted without need for
ratification. They were approved by the ministers by virtue of Article XXV: 1 of GATT
which provides that representatives of the members can meet to give effect to those
provisions of this Agreement which invoke joint action, and generally with a view to
facilitating the operation and furthering the objectives of this Agreement.[56]
The Understanding on Commitments in Financial Services also approved in
Marrakesh does not apply to the Philippines. It applies only to those 27 Members which
have indicated in their respective schedules of commitments on standstill, elimination of
monopoly, expansion of operation of existing financial service suppliers, temporary
entry of personnel, free transfer and processing of information, and national treatment
with respect to access to payment, clearing systems and refinancing available in the
normal course of business.[57]
On the other hand, the WTO Agreement itself expresses what multilateral
agreements are deemed included as its integral parts,[58] as follows:

Article II

Scope of the WTO

1. The WTO shall provide the common institutional framework for the conduct of
trade relations among its Members in matters to the agreements and associated
legal instruments included in the Annexes to this Agreement.

2. The Agreements and associated legal instruments included in Annexes 1, 2, and

3 (hereinafter referred to as Multilateral Agreements) are integral parts of this
Agreement, binding on all Members.

3. The Agreements and associated legal instruments included in Annex 4

(hereinafter referred to as Plurilateral Trade Agreements) are also part of this
Agreement for those Members that have accepted them, and are binding on those
Members. The Plurilateral Trade Agreements do not create either obligation or
rights for Members that have not accepted them.

4. The General Agreement on Tariffs and Trade 1994 as specified in annex 1A

(hereinafter referred to as GATT 1994) is legally distinct from the General
Agreement on Tariffs and Trade, dated 30 October 1947, annexed to the Final Act
adopted at the conclusion of the Second Session of the Preparatory Committee of
the United Nations Conference on Trade and Employment, as subsequently
rectified, amended or modified (hereinafter referred to as GATT 1947).
 It should be added that the Senate was well-aware of what it was concurring in as
shown by the members deliberation on August 25, 1994. After reading the letter of
President Ramos dated August 11, 1994,[59] the senators of the Republic minutely
dissected what the Senate was concurring in, as follows: [60]

THE CHAIRMAN: Yes. Now, the question of the validity of the submission came up
in the first day hearing of this Committee yesterday. Was the observation made by
Senator Taada that what was submitted to the Senate was not the agreement on
establishing the World Trade Organization by the final act of the Uruguay Round
which is not the same as the agreement establishing the World Trade
Organization?And on that basis, Senator Tolentino raised a point of order which,
however, he agreed to withdraw upon understanding that his suggestion for an
alternative solution at that time was acceptable. That suggestion was to treat the
proceedings of the Committee as being in the nature of briefings for Senators until the
question of the submission could be clarified.

And so, Secretary Romulo, in effect, is the President submitting a new... is he making
a new submission which improves on the clarity of the first submission?

MR. ROMULO: Mr. Chairman, to make sure that it is clear cut and there should be no
misunderstanding, it was his intention to clarify all matters by giving this letter.

THE CHAIRMAN: Thank you.

Can this Committee hear from Senator Taada and later on Senator Tolentino since
they were the ones that raised this question yesterday?

Senator Taada, please.

SEN. TAADA: Thank you, Mr. Chairman.

Based on what Secretary Romulo has read, it would now clearly appear that what is
being submitted to the Senate for ratification is not the Final Act of the Uruguay
Round, but rather the Agreement on the World Trade Organization as well as the
Ministerial Declarations and Decisions, and the Understanding and Commitments in
Financial Services.

I am now satisfied with the wording of the new submission of President Ramos.

SEN. TAADA. . . . of President Ramos, Mr. Chairman.

THE CHAIRMAN. Thank you, Senator Taada. Can we hear from Senator
Tolentino? And after him Senator Neptali Gonzales and Senator Lina.
SEN TOLENTINO, Mr. Chairman, I have not seen the new submission actually
transmitted to us but I saw the draft of his earlier, and I think it now complies with the
provisions of the Constitution, and with the Final Act itself. The Constitution does not
require us to ratify the Final Act. It requires us to ratify the Agreement which is now
being submitted. The Final Act itself specifies what is going to be submitted to with
the governments of the participants.

In paragraph 2 of the Final Act, we read and I quote:

By signing the present Final Act, the representatives agree: (a) to submit as
appropriate the WTO Agreement for the consideration of the respective competent
authorities with a view to seeking approval of the Agreement in accordance with their
procedures.

In other words, it is not the Final Act that was agreed to be submitted to the
governments for ratification or acceptance as whatever their constitutional procedures
may provide but it is the World Trade Organization Agreement. And if that is the one
that is being submitted now, I think it satisfies both the Constitution and the Final Act
itself.

Thank you, Mr. Chairman.

THE CHAIRMAN. Thank you, Senator Tolentino, May I call on Senator Gonzales.

SEN. GONZALES. Mr. Chairman, my views on this matter are already a matter of
record. And they had been adequately reflected in the journal of yesterdays session
and I dont see any need for repeating the same.

Now, I would consider the new submission as an act ex abudante cautela.

THE CHAIRMAN. Thank you, Senator Gonzales. Senator Lina, do you want to make
any comment on this?

SEN. LINA. Mr. President, I agree with the observation just made by Senator
Gonzales out of the abundance of question. Then the new submission is, I believe,
stating the obvious and therefore I have no further comment to make.

Epilogue

In praying for the nullification of the Philippine ratification of the WTO Agreement,
petitioners are invoking this Courts constitutionally imposed duty to determine whether
or not there has been grave abuse of discretion amounting to lack or excess of
jurisdiction on the part of the Senate in giving its concurrence therein via Senate
Resolution No. 97. Procedurally, a writ of certiorari grounded on grave abuse of
discretion may be issued by the Court under Rule 65 of the Rules of Court when it is
amply shown that petitioners have no other plain, speedy and adequate remedy in the
ordinary course of law.
By grave abuse of discretion is meant such capricious and whimsical exercise of
judgment as is equivalent to lack of jurisdiction.[61] Mere abuse of discretion is not
enough. It must be grave abuse of discretion as when the power is exercised in an
arbitrary or despotic manner by reason of passion or personal hostility, and must be so
patent and so gross as to amount to an evasion of a positive duty or to a virtual refusal
to perform the duty enjoined or to act at all in contemplation of law. [62] Failure on the part
of the petitioner to show grave abuse of discretion will result in the dismissal of the
petition.[63]
In rendering this Decision, this Court never forgets that the Senate, whose act is
under review, is one of two sovereign houses of Congress and is thus entitled to great
respect in its actions. It is itself a constitutional body independent and coordinate, and
thus its actions are presumed regular and done in good faith. Unless convincing proof
and persuasive arguments are presented to overthrow such presumptions, this Court
will resolve every doubt in its favor. Using the foregoing well-accepted definition of
grave abuse of discretion and the presumption of regularity in the Senates processes,
this Court cannot find any cogent reason to impute grave abuse of discretion to the
Senates exercise of its power of concurrence in the WTO Agreement granted it by Sec.
21 of Article VII of the Constitution.[64]
It is true, as alleged by petitioners, that broad constitutional principles require the
State to develop an independent national economy effectively controlled by Filipinos;
and to protect and/or prefer Filipino labor, products, domestic materials and locally
produced goods. But it is equally true that such principles -- while serving as judicial and
legislative guides -- are not in themselves sources of causes of action. Moreover, there
are other equally fundamental constitutional principles relied upon by the Senate which
mandate the pursuit of a trade policy that serves the general welfare and utilizes all
forms and arrangements of exchange on the basis of equality and reciprocity and the
promotion of industries which are competitive in both domestic and foreign markets,
thereby justifying its acceptance of said treaty. So too, the alleged impairment of
sovereignty in the exercise of legislative and judicial powers is balanced by the adoption
of the generally accepted principles of international law as part of the law of the land
and the adherence of the Constitution to the policy of cooperation and amity with all
nations.
That the Senate, after deliberation and voting, voluntarily and overwhelmingly gave
its consent to the WTO Agreement thereby making it a part of the law of the land is a
legitimate exercise of its sovereign duty and power. We find no patent and gross
arbitrariness or despotism by reason of passion or personal hostility in such exercise. It
is not impossible to surmise that this Court, or at least some of its members, may even
agree with petitioners that it is more advantageous to the national interest to strike down
Senate Resolution No. 97. But that is not a legal reason to attribute grave abuse of
discretion to the Senate and to nullify its decision. To do so would constitute grave
abuse in the exercise of our own judicial power and duty.Ineludably, what the Senate
did was a valid exercise of its authority. As to whether such exercise was wise,
beneficial or viable is outside the realm of judicial inquiry and review. That is a matter
between the elected policy makers and the people. As to whether the nation should join
the worldwide march toward trade liberalization and economic globalization is a matter
that our people should determine in electing their policy makers. After all, the WTO
Agreement allows withdrawal of membership, should this be the political desire of a
member.
The eminent futurist John Naisbitt, author of the best seller Megatrends, predicts an
Asian Renaissance[65] where the East will become the dominant region of the world
economically, politically and culturally in the next century. He refers to the free market
espoused by WTO as the catalyst in this coming Asian ascendancy. There are at
present about 31 countries including China, Russia and Saudi Arabia negotiating for
membership in the WTO. Notwithstanding objections against possible limitations on
national sovereignty, the WTO remains as the only viable structure for multilateral
trading and the veritable forum for the development of international trade law. The
alternative to WTO is isolation, stagnation, if not economic self-destruction. Duly
enriched with original membership, keenly aware of the advantages and disadvantages
of globalization with its on-line experience, and endowed with a vision of the future, the
Philippines now straddles the crossroads of an international strategy for economic
prosperity and stability in the new millennium. Let the people, through their duly
authorized elected officers, make their free choice.
WHEREFORE, the petition is DISMISSED for lack of merit.
SO ORDERED.
Narvasa, C.J., Regalado, Davide, Jr., Romero, Bellosillo, Melo, Puno, Kapunan,
Mendoza, Francisco, Hermosisima, Jr., and Torres, Jr., JJ., concur.
Padilla, and Vitug, JJ., in the result.

In Annex A of her Memorandum, dated August 8, 1996, received by this Court on August 12, 1996,
[1]

Philippine Ambassador to the United Nations, World Trade Organization and other international
organizations Lilia R. Bautista (hereafter referred to as Bautista Paper) submitted a 46-year Chronology
of GATT as follows:
1947 The birth of GATT. On 30 October 1947, the General Agreement on Tariffs and
Trade (GATT) was signed by 23 nations at the Palais des Nations in
Geneva. The Agreement contained tariff concessions agreed to in the first
multilateral trade negotiations and a set of rules designed to prevent these
concessions from being frustrated by restrictive trade measures.
The 23 founding contracting parties were members of the Preparatory Committee
established by the United Nations Economic and Social Council in 1946 to draft
the charter of the International Trade Organization (ITO). The ITO was envisaged
as the final leg of a triad of post-War economic agencies (the other two were the
 International Monetary Fund and the International Bank for Reconstruction - later
the World Bank).
In parallel with this task, the Committee members decided to negotiate tariff concessions
among themselves. From April to October 1947, the participants completed some
123 negotiations and established 20 schedules containing the tariff reductions
and bindings which became an integral part of GATT. These schedules resulting
from the first Round covered some 45,000 tariff concessions and about $10
billion in trade.
GATT was conceived as an interim measure that put into effect the commercial-policy
provisions of the ITO. In November, delegations from 56 countries met in
Havana, Cuba, to consider the ITO draft as a whole. After long and difficult
negotiations, some 53 countries signed the Final Act authenticating the text of
the Havana Charter in March 1948. There was no commitment, however, from
governments to ratification and, in the end, the ITO was stillborn, leaving GATT
as the only international instrument governing the conduct of world trade.
1948 Entry into force. On 1 January 1948, GATT entered into force. The 23 founding
members were: Australia, Belgium, Brazil, Burma, Canada, Ceylon, Chile, China,
Cuba, Czechoslovakia, France, India, Lebanon, Luxemburg, Netherlands, New
Zealand, Norway, Pakistan, Southern Rhodesia, Syria, South Africa, United
Kingdom and United States. The first Session of the contracting parties was held
from February to March in Havana, Cuba. The secretariat of the Interim
Commission for the ITO, which served as the ad hoc secretariat of GATT, move
from lake Placid, New York, to Geneva. The Contracting Parties held their
second session in Geneva from August to September.
1949 Second Round at Annecy. During the second Round of trade negotiations, held
from April to August at Annecy, France, the contracting parties exchange some
5,000 tariff concession. At their third Session, they also dealt with the accession
of ten more countries.
1950 Third Round At Torquay. From September 1950 to April 1951, the contracting
parties exchange some 8,700 tariff concessions in the English town, yielding tariff
reduction of about 25 per cent in relation to the 1948 level. Four more countries
acceded to GATT. During the fifth Session of the Contracting Parties, the United
States indicated that the ITO Charter would not be re-submitted to the US
congress; this, in effect, meant that ITO would not come into operation.
1956 Fourth Round at Geneva. The fourth Round was completed in May and produce
some $2.5 billion worth of tariff reductions. At the beginning of the year, the
GATT commercial policy course for officials of developing countries was
inaugurated.
1958 The Haberler Report. GATT published Trends in International Trade in
October. Known as the "Haberler Report" in honour of Professor Gottfried
Haberler, the chairman of the panel of imminent economist, it provided initial
guidelines for the work of GATT. The Contracting Parties at their 13th Sessions,
attended by Ministers, subsequently established 3 committees in
GATT: Committee I to convene a further tariff negotiating conference; Committee
II To review the agricultural policies of member governments and Committee III
to tackle the problems facing developing countries in their trade. The
establishment of the European Economic Community during the previous year
also demanded large scale tariff negotiation under Article XXIV 6 of the General
Agreement.
1960 The Dillon Round. The fifth Round opened in September and was divided into two
phases: the first was concerned with EEC members states for the creation of a
 single schedule of concessions for the Community based on its Common
External Tariff; and the second was a further general round of tariff
negotiations. Named in honor of US Under-Secretary of State Douglas Dillon
who proposed the negotiations, the Round was concluded in July 1962 and
resulted in about 4,400 tariff concessions covering $4.9 billion of trade.
1961 The Short-Term Arrangement covering cotton textiles was agreed as an
exception to the GATT rules. The arrangement permitted the negotiation of quota
restrictions affecting the exports of cotton-producing countries. In 1962 the "Short
Term " Arrangement become the "Long term" Arrangement, lasting until 1974
when the Multifibre Arrangement entered into force.
1964 The Kennedy Round. Meeting at Ministerial Level, a Trade Negotiations
Committee formally opened the Kennedy Round in May. In June 1967, the
Round's Final Act was signed by some 50 participating countries which together
accounted for 75 per cent of world trade. For the first time, negotiation departed
from product-by-product approach used in the previous Rounds to an across-the-
board or linear method of cutting tariffs for industrial goods. The working
hypothesis of a 50 per cent target cut in tariff levels was achieved in many
areas. Concessions covered an estimated total value of trade of about $40
billion. Separate agreements were reached on grains, chemical products and a
Code on Anti-Dumping.
1965 A New Chapter. The early 1960s marked the accession to the General Agreement
of many newly-independent developing countries. In February, the Contracting
Parties, meeting in a special session, adopted the text of Part IV on Trade and
Development. The additional chapter to the GATT required developed countries
to accord high priority to the reduction of trade barriers to products of developing
countries. A committee on Trade and Development was established to oversee
the functioning of the new GATT provisions. In the preceding year, GATT had
established the International Trade Center (ITC) to help developing countries in
trade promotion and identification of potential markets. Since 1968, the ITC had
been jointly operated by GATT and the UN Conference on Trade and
Development (UNCTAD).
1973 The Tokyo Round. The seventh Round was launched by Ministers in September at
the Japanese capital. Some 99 countries participated in negotiating a
comprehensive body of agreements covering both tariff and non-tariff matters. At
the end of the Round in November 1979, participants exchange tariff reduction
and bindings which covered more than $300 billion of trade. As a result of these
cuts, the weighted average tariff on manufactured goods in the world's nine major
Industrial Markets declined from 7.0 to 4.7 per cent. Agreements were reached in
the following areas; subsidies and countervailing measures, technical barriers to
trade, import licensing procedures, government procurement, customs valuation,
a revised anti-dumping code, trade in bovine meat, trade in daily products and
trade in civil aircraft. The first concrete result of the Round was the reduction of
import duties and other trade barriers by industrial countries on tropical products
exported by developing countries.
1974 On 1 January 1974, the Arrangement Regarding International Trade in textiles,
otherwise known as the Multifibre Arrangement (MFA), entered into force. Its
superseded the arrangement that had been governing trade in cotton textiles
since 1961. The MFA seeks to promote the expansion and progressive
liberalization of trade in textile product while at the same time avoiding disruptive
effects in individual markets in lines of production. The MFA was extended in
1978, 1982, 1986, 1991 and 1992. MFA members account for most of the world
exports of textiles and clothing which in 1986 amounted to US$128 billion.
 1982 Ministerial Meeting. Meeting for the first time in nearly ten years, the GATT
Ministers in November at Geneva reaffirmed the validity of GATT rules for the
conduct of international trade and committed themselves to combating
protectionist pressures. They also established a wide-ranging work programme
for the GATT which was to laid down the ground work for a new Round.
1986 The Uruguay Round. The GATT Trade Ministers meeting at Punta del
Este, Uruguay, launched the eighth Round of Trade Negotiations on 20
September. The Punta del Este, declarations, while representing a single political
undertaking, was divided into two section. The First covered negotiations on
Trade in goods and the second initiated negotiation on trade in services. In the
area of trade in goods, the Ministers committed themselves to a "standstill" on
new trade measures inconsistent with their GATT obligations and to a "rollback"
programme aimed at phasing out existing inconsistent measures. Envisaged to
last four years, negotiations started in early February 1987 in the following areas:
tariffs, non-tariff measures, tropical products, natural resource-based products,
textiles and clothing, agriculture, subsidies, safeguards, trade-related aspects of
intellectual property rights including trade in counterfeit goods, in trade- related
investment measures. The work of other groups included a review of GATT
articles, the GATT dispute-settlement procedure, the Tokyo Round agreements,
as well as functioning of the GATT system as a whole.
1994 "GATT 1994" is the updated version of GATT 1947 and takes into account the substantive
and institutional changes negotiated in the Uruguay Round. GATT 1994 is an integral
part of the World Trade Organization established on 1 January 1995. It is agreed that
there be a one year transition period during which certain GATT 1947 bodies and
commitments would co-exist with those of the World Trade Organization."
[2]
The Final Act was signed by representatives of 125 entities, namely Algeria, Angola, Antigua and
Barbuda, Argentine Republic, Australia, Republic of Austria, State of Bahrain, Peoples Republic
of Bangladesh, Barbados, The Kingdom of Belgium, Belize, Republic of Benin, Bolivia, Botswana,
Brazil, Brunei Darussalam, Burkina Faso, Burundi, Cameroon, Canada, Central African Republic,
Chad, Chile, Peoples Republic of China, Colombia, Congo, Costa Rica, Republic of Cote dIvoire,
Cuba, Cyprus, Czech Republic, Kingdom of Denmark, Commonwealth of Dominica, Dominican
Republic, Arab Republic of Egypt, El Salvador, European Communities, Republic of Fiji, Finland,
French Republic, Gabonese Republic, Gambia, Federal Republic of Germany, Ghana, Hellenic
Republic, Grenada, Guatemala, Republic of Guinea-Bissau, Republic of Guyana, Haiti,
Honduras, Hong Kong, Hungary, Iceland, India, Indonesia, Ireland, State of Israel, Italian
Republic, Jamaica, Japan, Kenya, Korea, State of Kuwait, Kingdom of Lesotho, Principality of
Liechtenstein, Grand Duchy of Luxembourg, Macau, Republic of Madagascar, Republic of
Malawi, Malaysia, Republic of Maldives, Republic of Mali, Republic of Malta, Islamic Republic of
Mauritania, Republic of Mauritius, United Mexican States, Kingdom of Morocco, Republic of
Mozambique, Union of Myanmar, Republic of Namibia, Kingdom of the Netherlands, New
Zealand, Nicaragua, Republic of Niger, Federal Republic of Nigeria, Kingdom of Norway, Islamic
Republic of Pakistan, Paraguay, Peru, Philippines, Poland, Portuguese Republic, State of Qatar,
Romania, Rwandese Republic, Saint Kitts and Nevis, Saint Lucia, Saint Vincent and the
Grenadines, Senegal, Sierra Leone, Singapore, Slovak Republic, South Africa, Kingdom of
Spain, Democratic Socialist Republic of Sri Lanka, Republic of Surinam, Kingdom of Swaziland,
Kingdom of Sweden, Swiss Confederation, United Republic of Tanzania, Kingdom of Thailand,
Togolese Republic, Republic of Trinidad and Tobago, Tunisia, Turkey, Uganda, United Arab
Emirates, United Kingdom of Great Britain and Northern Ireland, United States of America,
Eastern Republic of Uruguay, Venezuela, Republic of Zaire, Republic of Zambia, Republic of
Zimbabwe; see pp. 6-25, Vol. 1, Uruguay Round of Multilateral Trade Negotiations.
[3]
11 August 1994
The Honorable Members
Senate
Through Senate President Edgardo Angara
Manila
Ladies and Gentlemen:
I have the honor to forward herewith an authenticated copy of the Uruguay Round Final Act signed by
Department of Trade and Industry Secretary Rizalino S. Navarro for the Philippines on 15 April
1994 in Marrakesh, Morocco.
The Uruguay Round Final Act aims to liberalize and expand world trade and strengthen the
interrelationship between trade and economic policies affecting growth and development.
The Final Act will improve Philippine access to foreign markets, especially its major trading partners
through the reduction of tariffs on its exports particularly agricultural and industrial
products. These concessions may be availed of by the Philippines, only if it is a member of the
World Trade Organization. By GATT estimates, the Philippines can acquire additional export
revenues from $2.2 to $2.7 Billion annually under Uruguay Round.This will be on top of the
normal increase in exports that the Philippines may experience.
The Final Act will also open up new opportunities for the services sector in such areas as the movement
of personnel, (e.g. professional services and construction services), cross-border supply (e.g.
computer-related services), consumption abroad (e.g. tourism, convention services, etc.) and
commercial presence.
The clarified and improved rules and disciplines on anti-dumping and countervailing measures will also
benefit Philippine exporters by reducing the costs and uncertainty associated with exporting while
at the same time providing a means for domestic industries to safeguard themselves against
unfair imports.
Likewise, the provision of adequate protection for intellectual property rights is expected to attract more
investments into the country and to make it less vulnerable to unilateral actions by its trading
partners (e.g. Sec. 301 of the United States Omnibus Trade Law).
In view of the foregoing, the Uruguay Round Final Act is hereby submitted to the Senate for its
concurrence pursuant to Section 21, Article VII of the Constitution.
A draft of a proposed Resolution giving its concurrence to the aforesaid Agreement is enclosed.
Very truly yours,
(SGD.) FIDEL V. RAMOS
[4]
11 August 1994
The Honorable Members
Senate
Through Senate President Edgardo Angara
Manila
Ladies and Gentlemen:
I have the honor to forward herewith an authenticated copy of the Uruguay Round Final
Act signed by Department of Trade and Industry Secretary Rizalino S. Navarro for the Philippines
on 13 April 1994 in Marrakech (sic), Morocco.
Members of the trade negotiations committee, which included the Philippines, agreed that
the Agreement Establishing the World Trade Organization, the Ministerial Declarations and
Decisions, and the Understanding on Commitments in Financial Services embody the results of
their negotiations and form an integral part of the Uruguay Round Final Act.
 By signing the Uruguay Round Final Act, the Philippines, through Secretary Navarro,
agreed:
(a) To submit the Agreement Establishing the World Trade Organization to the Senate for its concurrence
pursuant to Section 21, Article VII of the Constitution; and
(b) To adopt the Ministerial Declarations and Decisions.
The Uruguay Round Final Act aims to liberalize and expand world trade and strengthen the
interrelationship between trade and economic policies affecting growth and development.
The Final Act will improve Philippine access to foreign markets, especially its major
trading partners through the reduction of tariffs on its exports particularly agricultural and
industrial products. These concessions may be availed of by the Philippines, only if it is a member
of the World Trade Organization. By GATT estimates, the Philippines can acquire additional
export revenues from $2.2 to $2.7 Billion annually under Uruguay Round. This will be on top of
the normal increase in the exports that the Philippines may experience.
The Final Act will also open up new opportunities for the services sector in such areas as
the movement of personnel, (e.g., professional services and construction services), cross-border
supply (e.g., computer-related services), consumption abroad (e.g., tourism, convention services,
etc.) and commercial presence.
The clarified and improved rules and disciplines on anti-dumping and countervailing
measures will also benefit Philippine exporters by reducing the costs and uncertainty associated
with exporting while at the same time providing a means for domestic industries to safeguard
themselves against unfair imports.
Likewise, the provision of adequate protection for intellectual property rights is expected
to attract more investments into the country and to make it a less vulnerable to unilateral actions
by its trading partners (e.g., Sec. 301 of the United States Omnibus Trade Law).
In view of the foregoing, the Uruguay Round Final Act, the Agreement Establishing the
World Trade Organization, the Ministerial Declarations and Decisions, and the Understanding on
Commitments in Financial Services, as embodied in the Uruguay Round Final Act and forming
and integral part thereof are hereby submitted to the Senate for its concurrence pursuant to
Section 21, Article VII of the Constitution.
A draft of a proposed Resolution giving its concurrence to the aforesaid Agreement is
enclosed.
Very truly yours,
(SGD.) FIDEL V. RAMOS
[5]
December 9, 1994
HON. EDGARDO J. ANGARA
Senate President
Senate, Manila
Dear Senate President Angara:
Pursuant to the provisions of Sec. 26 (2) Article VI of the Constitution, I hereby certify to
the necessity of the immediate adoption of P.S. 1083, entitled:
CONCURRING IN THE RATIFICATION OF THE AGREEMENT ESTABLISHING THE WORLD TRADE
ORGANIZATION
to meet a public emergency consisting of the need for immediate membership in the WTO in
order to assure the benefits to the Philippine economy arising from such membership.
Very truly yours,
(SGD.) FIDEL V. RAMOS
[6]
Attached as Annex A, Petition; rollo, p. 52. P.S. 1083 is the forerunner of assailed Senate Resolution
No. 97. It was prepared by the Committee of the Whole on the General Agreement on Tariffs and
Trade chaired by Sen. Blas F. Ople and co-chaired by Sen. Gloria Macapagal-Arroyo; see Annex
C, Compliance of petitioners dated January 28, 1997.
[7]
The Philippines is thus considered an original or founding member of WTO, which as of July 26, 1996
had 123 members as follows: Antigua and Barbuda, Argentina, Australia, Austria, Bahrain,
Bangladesh, Barbados, Belgium, Belize, Benin, Bolivia, Botswana, Brazil, Brunei Darussalam,
Burkina Faso, Burundi, Cameroon, Canada, Central African Republic, Chili, Colombia, Costa
Rica, Cote dIvoire, Cuba, Cyprus, Czech Republic, Denmark, Djibouti, Dominica, Dominican
Republic, Ecuador, Egypt, El Salvador, European Community, Fiji, Finland, France, Gabon,
Germany, Ghana, Greece, Grenada, Guatemala, Guinea, Guinea Bissau, Guyana, Haiti,
Honduras, Hongkong, Hungary, Iceland, India, Indonesia, Ireland, Israel, Italy, Jamaica, Japan,
Kenya, Korea, Kuwait, Lesotho, Liechtenstein, Luxembourg, Macau, Madagascar, Malawi,
Malaysia, Maldives, Mali, Malta, Mauritania, Mauritius, Mexico, Morocco, Mozambique, Myanmar,
Namibia, Netherlands -- for the Kingdom in Europe and for the Netherlands Antilles, New
Zealand, Nicaragua, Nigeria, Norway, Pakistan, Papua New Guinea, Paraguay, Peru, Philippines,
Poland, Portugal, Qatar, Romania, Rwanda, Saint Kitts and Nevis, Saint Lucia, Saint Vincent &
the Grenadines, Senegal, Sierra Leone, Singapore, Slovak Republic, Slovenia, Solomon Islands,
South Africa, Spain, Sri Lanka, Surinam, Swaziland, Sweden, Switzerland, Tanzania, Thailand,
Togo, Trinidad and Tobago, Tunisia, Turkey, Uganda, United Arab Emirates, United Kingdom,
United States, Uruguay, Venezuela, Zambia, and Zimbabwe. See Annex A, Bautista Paper, infra.
[8]
Page 6; rollo, p. 261.
[9]
In compliance, Ambassador Bautista submitted to the Court on August 12, 1996, a Memorandum (the
Bautista Paper) consisting of 56 pages excluding annexes. This is the same document mentioned
in footnote no. 1.
[10]
Memorandum for Respondents, p. 13; rollo, p. 268.
[11]
Cf. Kilosbayan, Incorporated vs. Morato, 246 SCRA 540, July 17, 1995 for a discussion on locus
standi. See also the Concurring Opinion of Mr. Justice Vicente V. Mendoza in Tatad vs. Garcia,
Jr., 243 SCRA 473, April 6, 1995, as well as Kilusang Mayo Uno Labor Center vs. Garcia, Jr., 239
SCRA 386, 414, December 23, 1994.
[12]
Aquino, Jr. vs. Ponce Enrile, 59 SCRA 183, 196, September 17, 1974, cited in Bondoc vs. Pineda, 201
SCRA 792, 795, September 26, 1991.
[13]
Guingona, Jr. vs. Gonzales, 219 SCRA 326, 337, March 1, 1993.
[14]
See Tanada and Macapagal vs. Cuenco, et al., 103 Phil. 1051 for a discussion on the scope of political
question.
[15]
Section 1, Article VIII, (par. 2).
[16]
In a privilege speech on May 17, 1993, entitled Supreme Court -- Potential Tyrant? Senator Arturo
Tolentino concedes that this new provision gives the Supreme Court a duty to intrude into the
jurisdiction of the Congress or the President.
[17]
I Record of the Constitutional Commission 436.
[18]
Cf. Daza vs. Singson, 180 SCRA 496, December 21, 1989.
[19]
Memorandum for Petitioners, pp. 14-16; rollo, pp. 204-206.
[20]
Par. 4, Article XVI, WTO Agreement, Uruguay Round of Multilateral Trade Negotiations, Vol. 1, p. 146.
[21]
Also entitled Declaration of Principles. The nomenclature in the 1973 Charter is identical with that in the
1987s.
[22]
Philippine Political Law, 1962 Ed., p. 116.
[23]
Bernas, The Constitution of the Philippines: A Commentary, Vol. II, 1988 Ed., p. 2. In the very recent
case of Manila Prince Hotel vs. GSIS, G.R. No. 122156, February 3, 1997, p. 8, it was held that A
provision which lays down a general principle, such as those found in Art. II of the 1987
Constitution, is usually not self-executing.
[24]
246 SCRA 540, 564, July 17, 1995. See also Tolentino vs. Secretary of Finance, G.R. No. 115455 and
consolidated cases, August 25, 1995.
[25]
197 SCRA 52, 68, May 14, 1991.
[26]
224 SCRA 792, 817, July 30, 1993.
[27]
Sec. 10, Article XII.
[28]
Sec. 12, Article XII.
[29]
Sec. 19, Art. II.
[30]
Sec. 13, Art. XII.
[31]
G.R. No. 122156, February 3, 1997, pp. 13-14.
[32]
Sec. 1, Art. XII.
[33]
Bautista Paper, p. 19.
[34]
Preamble, WTO Agreement p. 137, Vol. 1, Uruguay Round of Multilateral Trade
Negotiations. Underscoring supplied.
[35]
Sec. - 19, Article II, Constitution.
[36]
III Records of the Constitutional Commission 252.
[37]
Sec. 13, Article XII, Constitution.
[38]
Justice Isagani A. Cruz, Philippine Political Law, 1995 Ed., p. 13, quoting his own article entitled, A
Quintessential Constitution earlier published in the San Beda Law Journal, April 1972;
underscoring supplied.
[39]
Par. 4, Article XVI (Miscellaneous Provisions), WTO Agreement, p.146, Vol. 1, Uruguay Round of
Multilateral Trade Negotiations.
[40]
Memorandum for the Petitioners, p. 29; rollo, p. 219.
[41]
Sec. 24, Article VI, Constitution.
[42]
Subsection (2), Sec. 28, Article, VI Constitution.
[43]
Sec. 2, Article II, Constitution.
[44]
Cruz, Philippine Political Law, 1995 Ed., p. 55.
[45]
Salonga and Yap, op cit 305.
[46]
Salonga, op. cit., p. 287.
[47]
Quoted in Paras and Paras, Jr., International Law and World Politics, 1994 Ed., p. 178.
47-A Reagan vs. Commission of Internal Revenue, 30 SCRA 968, 973, December 27, 1969.
[48]
Trebilcock and Howse. The Regulation of International Trade, p. 14, London, 1995, cited on p. 55-56,
Bautista Paper.
[49]
Uruguay Round of Multilateral Trade Negotiations, Vol. 31, p. 25445.
[50]
Item 5, Sec. 5, Article VIII, Constitution.
[51]
Uruguay Round of Multilateral Trade Negotiations, Vol. 31, p. 25445.
[52]
Bautista Paper, p. 13.
[53]
See footnote 3 of the text of this letter.
[54]
Salonga and Yap, op cit., pp. 289-290.
[55]
The full text, without the signatures, of the Final Act is as follows:
Final Act Embodying the Results of the
Uruguay Round of Multilateral Trade Negotiations
1. Having met in order to conclude the Uruguay Round of Multilateral Trade Negotiations, representatives
of the governments and of the European Communities, members of the Trade Negotiations
Committee, agree that the Agreement Establishing the World Trade Organization (referred to in
the Final Act as the WTO Agreement), the Ministerial Declarations and Decisions, and the
Understanding on Commitments in Financial Services, as annexed hereto, embody the results of
their negotiations and form an integral part of this Final Act.
2. By signing to the present Final Act, the representatives agree.
(a) to submit, as appropriate, the WTO Agreement for the consideration of their respective competent
authorities with a view to seeking approval of the Agreement in accordance with their procedures;
and
(b) to adopt the Ministerial Declarations and Decisions.
3. The representatives agree on the desirability of acceptance of the WTO Agreement by all participants
in the Uruguay Round of Multilateral Trade Negotiations (hereinafter referred to as participants)
with a view to its entry into force by 1 January 1995, or as early as possible thereafter. Not later
than late 1994, Ministers will meet, in accordance with the final paragraph of the Punta del Este
Ministerial Declarations, to decide on the international implementation of the results, including the
timing of their entry into force.
4. The representatives agree that the WTO Agreement shall be opened for acceptance as a whole, by
signature or otherwise, by all participants pursuant to Article XIV thereof. The acceptance and
entry into force of a Plurilateral Trade Agreement included in Annex 4 of the WTO Agreement
shall be governed by the provisions of that Plurilateral Trade Agreement.
5. Before accepting the WTO Agreement, participants which are not contracting parties to the General
Agreement on Tariffs and Trade must first have concluded negotiations for their accession to the
General Agreement and become contracting parties thereto. For participants which are not
contracting parties to the general Agreement as of the date of the Final Act, the Schedules are
not definitive and shall be subsequently completed for the purpose of their accession to the
General Agreement and acceptance of the WTO Agreement.
6. This Final Act and the Texts annexed hereto shall be deposited with the Director-General to the
CONTRACTING PARTIES to the General Agreement on Tariffs and Trade who shall promptly
furnish to each participant a certified copy thereof.
DONE at Marrakesh this fifteenth day of April One thousand nine hundred and ninety-four, in a single
copy, in the English, French and Spanish languages, each text being authentic."
[56]
Bautista Paper, p. 16.
[57]
Bautista Paper, p. 16.
[58]
Uruguay Round of Multilateral Trade Negotiations, Vol. I, pp. 137-138.
[59]
See footnote 3 for complete text.
 [60]
Taken from pp. 63-85, Respondent Memorandum.
[61]
Zarate vs. Olegario, G.R. No. 90655, October 7, 1996.
[62]
San Sebastian College vs. Court of Appeals, 197 SCRA 138, 144, May 15, 1991; Commissioner of
Internal Revenue vs. Court of Tax Appeals, 195 SCRA 444, 458 March 20, 1991; Simon vs. Civil
Service Commission, 215 SCRA 410, November 5, 1992; Bustamante vs. Commissioner on
Audit, 216 SCRA 134, 136, November 27, 1992.
[63]
Paredes vs. Civil Service Commission, 192 SCRA 84, 94, December 4, 1990.
[64]
Sec. 21. No treaty or international agreement shall be valid and effective unless concurred in by at
least two-thirds of all the Members of the Senate.
[65]
Readers Digest, December 1996 issue, p. 28.

Today is Friday, February 01, 2019

EN BANC

G.R. No. 151445 April 11, 2002

ARTHUR D. LIM and PAULINO R. ERSANDO, petitioners,

vs.
HONORABLE EXECUTIVE SECRETARY as alter ego of HER EXCELLENCEY GLORIA MACAPAGAL-ARROYO, and
HONORABLE ANGELO REYES in his capacity as Secretary of National Defense, respondents.

----------------------------------------

SANLAKAS and PARTIDO NG MANGGAGAWA, petitioners-intervenors,

vs.
GLORIA MACAPAGA-ARROYO, ALBERTO ROMULO, ANGELO REYES, respondents.

DISSENTING OPINION

SEPARATE OPINION
DE LEON, JR., J.:

This case involves a petition for certiorari and prohibition as well as a petition-in-intervention, praying that respondents be
restrained from proceeding with the so-called "Balikatan 02-1" and that after due notice and hearing, that judgment be rendered
issuing a permanent writ of injunction and/or prohibition against the deployment of U.S. troops in Basilan and Mindanao for being
illegal and in violation of the Constitution.

The facts are as follows:

Beginning January of this year 2002, personnel from the armed forces of the United States of America started arriving in
Mindanao to take part, in conjunction with the Philippine military, in "Balikatan 02-1." These so-called "Balikatan" exercises are
the largest combined training operations involving Filipino and American troops. In theory, they are a simulation of joint military
maneuvers pursuant to the Mutual Defense Treaty,1 a bilateral defense agreement entered into by the Philippines and the United
States in 1951.

Prior to the year 2002, the last "Balikatan" was held in 1995. This was due to the paucity of any formal agreement relative to the
treatment of United States personnel visiting the Philippines. In the meantime, the respective governments of the two countries
agreed to hold joint exercises on a reduced scale. The lack of consensus was eventually cured when the two nations concluded
the Visiting Forces Agreement (V FA) in 1999.

The entry of American troops into Philippine soil is proximately rooted in the international anti-terrorism campaign declared by
President George W. Bush in reaction to the tragic events that occurred on September 11, 2001. On that day, three (3)
commercial aircrafts were hijacked, flown and smashed into the twin towers of the World Trade Center in New York City and the
Pentagon building in Washington, D.C. by terrorists with alleged links to the al-Qaeda ("the Base"), a Muslim extremist
organization headed by the infamous Osama bin Laden. Of no comparable historical parallels, these acts caused billions of
dollars worth of destruction of property and incalculable loss of hundreds of lives.

On February 1, 2002, petitioners Arthur D. Lim and Paulino P. Ersando filed this petition for certiorari and prohibition, attacking
the constitutionality of the joint exercise.2 They were joined subsequently by SANLAKAS and PARTIDO NG MANGGAGAWA,
both party-Iist organizations, who filed a petition-in-intervention on February 11, 2002.

Lim and Ersando filed suit in their capacities as citizens, lawyers and taxpayers. SANLAKAS and PARTIDO, on the other hand,
aver that certain members of their organization are residents of Zamboanga and Sulu, and hence will be directly affected by the
operations being conducted in Mindanao. They likewise pray for a relaxation on the rules relative to locus standi citing the
unprecedented importance of the issue involved.

On February 71 2002 the Senate conducted a hearing on the "Balikatan" exercise wherein Vice-President Teofisto T. Guingona,
Jr., who is concurrently Secretary of Foreign. Affairs, presented the Draft Terms of Reference (TOR).3Five days later, he
approved the TOR, which we quote hereunder:

I. POLICY LEVEL

1. The Exercise shall be consistent with the Philippine Constitution and all its activities shall be in consonance
with the laws of the land and the provisions of the RP-US Visiting Forces Agreement (VFA).

2. The conduct of this training Exercise is in accordance with pertinent United Nations resolutions against global
terrorism as understood by the respective parties.

3. No permanent US basing and support facilities shall be established. Temporary structures such as those for
troop billeting, classroom instruction and messing may be set up for use by RP and US Forces during the
Exercise.
4. The Exercise shall be implemented jointly by RP and US Exercise Co-Directors under the authority of the Chief
of Staff, AFP. In no instance will US Forces operate independently during field training exercises (FTX). AFP and
US Unit Commanders will retain command over their respective forces under the overall authority of the Exercise
Co-Directors. RP and US participants shall comply with operational instructions of the AFP during the FTX.

5. The exercise shall be conducted and completed within a period of not more than six months, with the projected
participation of 660 US personnel and 3,800 RP Forces. The Chief of Staff, AFP shall direct the Exercise Co-
Directors to wind up and terminate the Exercise and other activities within the six month Exercise period.

6. The Exercise is a mutual counter-terrorism advising, assisting and training Exercise relative to Philippine efforts
against the ASG, and will be conducted on the Island of Basilan. Further advising, assisting and training exercises
shall be conducted in Malagutay and the Zamboanga area. Related activities in Cebu will be for support of the
Exercise.

7. Only 160 US Forces organized in 12-man Special Forces Teams shall be deployed with AFP field,
commanders. The US teams shall remain at the Battalion Headquarters and, when approved, Company Tactical
headquarters where they can observe and assess the performance of the AFP Forces.

8. US exercise participants shall not engage in combat, without prejudice to their right of self-defense.

9. These terms of Reference are for purposes of this Exercise only and do not create additional legal obligations
between the US Government and the Republic of the Philippines.

II. EXERCISE LEVEL

1. TRAINING

a. The Exercise shall involve the conduct of mutual military assisting, advising and training of RP and US
Forces with the primary objective of enhancing the operational capabilities of both forces to combat
terrorism.

b. At no time shall US Forces operate independently within RP territory.

c. Flight plans of all aircraft involved in the exercise will comply with the local air traffic regulations.

2. ADMINISTRATION & LOGISTICS

a. RP and US participants shall be given a country and area briefing at the start of the Exercise. This
briefing shall acquaint US Forces on the culture and sensitivities of the Filipinos and the provisions of the
VF A. The briefing shall also promote the full cooperation on the part of the RP and US participants for the
successful conduct of the Exercise.

b. RP and US participating forces may share, in accordance with their respective laws and regulations, in
the use of their resources, equipment and other assets. They will use their respective logistics channels.

c. Medical evaluation shall be jointly planned and executed utilizing RP and US assets and resources.

d. Legal liaison officers from each respective party shall be appointed by the Exercise Directors.

3. PUBLIC AFFAIRS
 a. Combined RP-US Information Bureaus shall be established at the Exercise Directorate in Zamboanga
City and at GHQ, AFP in Camp Aguinaldo, Quezon City.

b. Local media relations will be the concern of the AFP and all public affairs guidelines shall be jointly
developed by RP and US Forces.

c. Socio-Economic Assistance Projects shall be planned and executed jointly by RP and US Forces in
accordance with their respective laws and regulations, and in consultation with community and local
government officials.

Contemporaneously, Assistant Secretary for American Affairs Minerva Jean A. Falcon and United States Charge d'
Affaires Robert Fitts signed the Agreed Minutes of the discussion between the Vice-President and Assistant Secretary Kelly.4

Petitioners Lim and Ersando present the following arguments:

THE PHILIPPINES AND THE UNITED STATES SIGNED THE MUTUAL DEFENSE TREATY (MDT) in 1951 TO
PROVIDE MUTUAL MILITARY ASSIST ANCE IN ACCORDANCE WITH THE 'CONSTITUTIONAL PROCESSE-
S' OF EACH COUNTRY ONLY IN THE CASE OF AN ARMED ATTACK BY AN EXTERNAL AGGRESSOR,
MEANING A THIRD COUNTRY AGAINST ONE OF THEM.

BY NO STRETCH OF THE IMAGINA TION CAN IT BE SAID THAT THE ABU SAYYAF BANDITS IN BASILAN
CONSTITUTE AN EXTERNAL ARMED FORCE THAT HAS SUBJECT THE PHILIPPINES TO AN ARMED
EXTERNAL ATTACK TO WARRANT U.S. MILITARY ASSISTANCE UNDER THE MDT OF 1951.

II

NEITHER DOES THE VFA OF 1999 AUTHORIZE AMERICAN SOLDIERS TO ENGAGE IN COMBAT
OPERATIONS IN PHILIPPINE TERRITORY, NOT EVEN TO FIRE BACK "IF FIRED UPON".

Substantially the same points are advanced by petitioners SANLAKAS and PARTIDO.

In his Comment, the Solicitor General points to infirmities in the petitions regarding, inter alia, Lim and Ersando's standing to file
suit, the prematurity of the action, as well as the impropriety of availing of certiorari to ascertain a question of fact. Anent
their locus standi, the Solicitor General argues that first, they may not file suit in their capacities as, taxpayers inasmuch as it has
not been shown that "Balikatan 02-1 " involves the exercise of Congress' taxing or spending powers. Second, their being lawyers
does not invest them with sufficient personality to initiate the case, citing our ruling in Integrated Bar of the Philippines v.
Zamora.5 Third, Lim and Ersando have failed to demonstrate the requisite showing of direct personal injury. We agree.

It is also contended that the petitioners are indulging in speculation. The Solicitor General is of the view that since the Terms of
Reference are clear as to the extent and duration of "Balikatan 02-1," the issues raised by petitioners are premature, as they are
based only on a fear of future violation of the Terms of Reference. Even petitioners' resort to a special civil action for certiorari is
assailed on the ground that the writ may only issue on the basis of established facts.

Apart from these threshold issues, the Solicitor General claims that there is actually no question of constitutionality involved. The
true object of the instant suit, it is said, is to obtain an interpretation of the V FA. The Solicitor General asks that we accord due
deference to the executive determination that "Balikatan 02-1" is covered by the VFA, considering the President's monopoly in
the field of foreign relations and her role as commander-in-chief of the Philippine armed forces.

Given the primordial importance of the issue involved, it will suffice to reiterate our view on this point in a related case:
 Notwithstanding, in view of the paramount importance and the constitutional significance of the issues
raised in the petitions, this Court, in the exercise of its sound discretion, brushes aside the procedural
barrier and takes cognizance of the petitions, as we have done in the early Emergency Powers Cases,
where we had occasion to rule:

'x x x ordinary citizens and taxpayers were allowed to question the constitutionality of several executive
orders issued by President Quirino although they were involving only an indirect and general interest
shared in common with the public. The Court dismissed the objection that they were not proper parties
and ruled that 'transcendental importance to the public of these cases demands that they be settled
promptly and definitely, brushing aside, if we must, technicalities of procedure.' We have since then
applied the exception in many other cases. [citation omitted]

This principle was reiterated in the subsequent cases of Gonzales vs. COMELEC, Daza vs. Singson, and
Basco vs. Phil, Amusement and Gaming Corporation, where we emphatically held:

Considering however the importance to the public of the case at bar, and in keeping with the Court's duty,
under the 1987 Constitution, to determine whether or not the other branches of the government have kept
themselves within the limits of the Constitution and the laws that they have not abused the discretion
given to them, the Court has brushed aside technicalities of procedure and has taken cognizance of this
petition. xxx'

Again, in the more recent case of Kilosbayan vs. Guingona, Jr., this Court ruled that in cases of transcendental
importance, the Court may relax the standing requirements and allow a suit to prosper even where there is
no direct injury to the party claiming the right of judicial review.

Although courts generally avoid having to decide a constitutional question based on the doctrine of separation of
powers, which enjoins upon the department of the government a becoming respect for each other's act, this Court
nevertheless resolves to take cognizance of the instant petition.6

Hence, we treat with similar dispatch the general objection to the supposed prematurity of the action. At any rate, petitioners'
concerns on the lack of any specific regulation on the latitude of activity US personnel may undertake and the duration of their
stay has been addressed in the Terms of Reference.

The holding of "Balikatan 02-1" must be studied in the framework of the treaty antecedents to which the Philippines bound itself.
The first of these is the Mutual Defense Treaty (MDT, for brevity). The MDT has been described as the "core" of the defense
relationship between the Philippines and its traditional ally, the United States. Its aim is to enhance the strategic and
technological capabilities of our armed forces through joint training with its American counterparts; the "Balikatan" is the largest
such training exercise directly supporting the MDT's objectives. It is this treaty to which the V FA adverts and the obligations
thereunder which it seeks to reaffirm.

The lapse of the US-Philippine Bases Agreement in 1992 and the decision not to renew it created a vacuum in US-Philippine
defense relations, that is, until it was replaced by the Visiting Forces Agreement. It should be recalled that on October 10, 2000,
by a vote of eleven to three, this Court upheld the validity of the VFA.7 The V FA provides the "regulatory mechanism" by which
"United States military and civilian personnel [may visit] temporarily in the Philippines in connection with activities approved by the
Philippine Government." It contains provisions relative to entry and departure of American personnel, driving and vehicle
registration, criminal jurisdiction, claims, importation and exportation, movement of vessels and aircraft, as well as the duration of
the agreement and its termination. It is the VFA which gives continued relevance to the MDT despite the passage of years. Its
primary goal is to facilitate the promotion of optimal cooperation between American and Philippine military forces in the event of
an attack by a common foe.

The first question that should be addressed is whether "Balikatan 02-1" is covered by the Visiting Forces Agreement. To resolve
this, it is necessary to refer to the V FA itself: Not much help can be had therefrom, unfortunately, since the terminology employed
is itself the source of the problem. The VFA permits United States personnel to engage, on an impermanent basis, in "activities,"
the exact meaning of which was left undefined. The expression is ambiguous, permitting a wide scope of undertakings subject
only to the approval of the Philippine government.8 The sole encumbrance placed on its definition is couched in the negative, in
that United States personnel must "abstain from any activity inconsistent with the spirit of this agreement, and in particular, from
any political activity."9 All other activities, in other words, are fair game.

We are not left completely unaided, however. The Vienna Convention on the Law of Treaties, which contains provisos governing
interpretations of international agreements, state:

SECTION 3. INTERPRETATION OF TREATIES

Article 31

General rule of interpretation

1. A treaty shall be interpreted in good faith ill accordance with the ordinary meaning to be given to the tenus of
the treaty in their context and in the light of its object and purpose.

2. The context for the purpose of the interpretation of a treaty shall comprise, in addition to the text, including its
preamble and annexes:

(a) any agreement relating to the treaty which was made between all the parties in connexion with the
conclusion of the treaty;

(b) any instrument which was made by one or more parties in connexion with the conclusion of the treaty
and accepted by the other parties as an instrument related to the party .

3. There shall be taken into account, together with the context:

(a) any subsequent agreement between the parties regarding the interpretation of the treaty or the
application of its provisions;

(b) any subsequent practice in the application of the treaty which establishes the agreement of the parties
regarding its interpretation;

(c) any relevant rules of international law applicable in the relations between the parties.

4. A special meaning shall be given to a term if it is established that the parties so intended.

Article 32

Supplementary means of interpretation

Recourse may be had to supplementary means of interpretation, including the preparatory work of the treaty and
the circumstances of its conclusion, in order to confirm the meaning resulting from the application of article 31, or
to determine the meaning when the interpretation according to article 31 :

(a) leaves the meaning ambiguous or obscure; or

(b) leads to a result which is manifestly absurd unreasonable.

It is clear from the foregoing that the cardinal rule of interpretation must involve an examination of the text, which is presumed to
verbalize the parties' intentions. The Convention likewise dictates what may be used as aids to deduce the meaning of terms,
which it refers to as the context of the treaty, as well as other elements may be taken into account alongside the aforesaid
context. As explained by a writer on the Convention ,

[t]he Commission's proposals (which were adopted virtually without change by the conference and are now
reflected in Articles 31 and 32 of the Convention) were clearly based on the view that the text of a treaty must be
presumed to be the authentic expression of the intentions of the parties; the Commission accordingly came down
firmly in favour of the view that 'the starting point of interpretation is the elucidation of the meaning of the text, not
an investigation ab initio into the intentions of the parties'. This is not to say that the travauxpreparatoires of a
treaty , or the circumstances of its conclusion, are relegated to a subordinate, and wholly ineffective, role. As
Professor Briggs points out, no rigid temporal prohibition on resort to travaux preparatoires of a treaty was
intended by the use of the phrase 'supplementary means of interpretation' in what is now Article 32 of the Vienna
Convention. The distinction between the general rule of interpretation and the supplementary means of
interpretation is intended rather to ensure that the supplementary means do not constitute an alternative,
autonomous method of interpretation divorced from the general rule.10

The Terms of Reference rightly fall within the context of the VFA.

After studied reflection, it appeared farfetched that the ambiguity surrounding the meaning of the word .'activities" arose from
accident. In our view, it was deliberately made that way to give both parties a certain leeway in negotiation. In this manner,
visiting US forces may sojourn in Philippine territory for purposes other than military. As conceived, the joint exercises may
include training on new techniques of patrol and surveillance to protect the nation's marine resources, sea search-and-rescue
operations to assist vessels in distress, disaster relief operations, civic action projects such as the building of school houses,
medical and humanitarian missions, and the like.

Under these auspices, the VFA gives legitimacy to the current Balikatan exercises. It is only logical to assume that .'Balikatan 02-
1," a "mutual anti- terrorism advising, assisting and training exercise," falls under the umbrella of sanctioned or allowable activities
in the context of the agreement. Both the history and intent of the Mutual Defense Treaty and the V FA support the conclusion
that combat-related activities -as opposed to combat itself -such as the one subject of the instant petition, are indeed authorized.

That is not the end of the matter, though. Granted that "Balikatan 02-1" is permitted under the terms of the VFA, what may US
forces legitimately do in furtherance of their aim to provide advice, assistance and training in the global effort against terrorism?
Differently phrased, may American troops actually engage in combat in Philippine territory? The Terms of Reference are explicit
enough. Paragraph 8 of section I stipulates that US exercise participants may not engage in combat "except in self-
defense." We wryly note that this sentiment is admirable in the abstract but difficult in implementation. The target of "Balikatan
02-1 I" the Abu Sayyaf, cannot reasonably be expected to sit idly while the battle is brought to their very doorstep. They cannot
be expected to pick and choose their targets for they will not have the luxury of doing so. We state this point if only to signify our
awareness that the parties straddle a fine line, observing the honored legal maxim "Nemo potest facere per alium quod non
potest facere per directum."11 The indirect violation is actually petitioners' worry, that in reality, "Balikatan 02-1 " is actually a war
principally conducted by the United States government, and that the provision on self-defense serves only as camouflage to
conceal the true nature of the exercise. A clear pronouncement on this matter thereby becomes crucial.

In our considered opinion, neither the MDT nor the V FA allow foreign troops to engage in an offensive war on Philippine territory.
We bear in mind the salutary proscription stated in the Charter of the United Nations, to wit:

Article 2

The Organization and its Members, in pursuit of the Purposes stated in Article 1, shall act in accordance with the
following Principles.

xxx xxx xxx xxx

 4. All Members shall refrain in their international relations from the threat or use of force against the territorial
integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the
United Nations.

xxx xxx xxx xxx

In the same manner, both the Mutual Defense Treaty and the Visiting Forces Agreement, as in all other treaties and international
agreements to which the Philippines is a party, must be read in the context of the 1987 Constitution. In particular, the Mutual
Defense Treaty was concluded way before the present Charter, though it nevertheless remains in effect as a valid source of
international obligation. The present Constitution contains key provisions useful in determining the extent to which foreign military
troops are allowed in Philippine territory. Thus, in the Declaration of Principles and State Policies, it is provided that:

xxx xxx xxx xxx

SEC. 2. The Philippines renounces war as an instrument of national policy, adopts the generally accepted
principles of international law as part of the law of the land and adheres to the policy of peace, equality, justice,
freedom, cooperation, and amity with all nations.

xxx xxx xxx xxx

SEC. 7. The State shall pursue an independent foreign policy. In its relations with other states the paramount
consideration shall be national sovereignty, territorial integrity, national interest, and the right to self-
determination.

SEC. 8. The Philippines, consistent with the national interest, adopts and pursues a policy of freedom from
nuclear weapons in the country.

xxx xxx xxx xxx

The Constitution also regulates the foreign relations powers of the Chief Executive when it provides that "[n]o treaty or
international agreement shall be valid and effective unless concurred in by at least two-thirds of all the members of the
Senate."12 Even more pointedly, the Transitory Provisions state:

Sec. 25. After the expiration in 1991 of the Agreement between the Republic of the Philippines and the United
States of America concerning Military Bases, foreign military bases, troops or facilities shall not be allowed in the
Philippines except under a treaty duly concurred in by the Senate and, when the Congress so requires, ratified by
a majority of the votes cast by the people in a national referendum held for that purpose, and recognized as a
treaty by the other contracting state.

The aforequoted provisions betray a marked antipathy towards foreign military presence in the country, or of foreign influence in
general. Hence, foreign troops are allowed entry into the Philippines only by way of direct exception. Conflict arises then between
the fundamental law and our obligations arising from international agreements.

A rather recent formulation of the relation of international law vis-a-vis municipal law was expressed in Philip Morris, Inc. v.
Court of Appeals,13 to wit:

xxx Withal, the fact that international law has been made part of the law of the land does not by any means imply
the primacy of international law over national law in the municipal sphere. Under the doctrine of incorporation as
applied in most countries, rules of international law are given a standing equal, not superior, to national legislation.

This is not exactly helpful in solving the problem at hand since in trying to find a middle ground, it favors neither one law nor the
other, which only leaves the hapless seeker with an unsolved dilemma. Other more traditional approaches may offer valuable
insights.

From the perspective of public international law, a treaty is favored over municipal law pursuant to the principle of pacta sunt
servanda. Hence, "[e]very treaty in force is binding upon the parties to it and must be performed by them in good faith."14 Further,
a party to a treaty is not allowed to "invoke the provisions of its internal law as justification for its failure to perform a treaty."15

Our Constitution espouses the opposing view. Witness our jurisdiction as I stated in section 5 of Article VIII:

The Supreme Court shall have the following powers:

xxx xxx xxx xxx

(2) Review, revise, reverse, modify, or affirm on appeal or certiorari, as the law or the Rules of Court may provide,
final judgments and order of lower courts in:

(A) All cases in which the constitutionality or validity of any treaty, international or executive agreement, law,
presidential decree, proclamation, order, instruction, ordinance, or regulation is in question.

xxx xxx xxx xxx

In Ichong v. Hernandez,16 we ruled that the provisions of a treaty are always subject to qualification or amendment by a
subsequent law, or that it is subject to the police power of the State. In Gonzales v. Hechanova,17

xxx As regards the question whether an international agreement may be invalidated by our courts, suffice it to say
that the Constitution of the Philippines has clearly settled it in the affirmative, by providing, in Section 2 of Article
VIII thereof, that the Supreme Court may not be deprived "of its jurisdiction to review, revise, reverse, modify, or
affirm on appeal, certiorari, or writ of error as the law or the rules of court may provide, final judgments and
decrees of inferior courts in -( I) All cases in which the constitutionality or validity of any treaty, law, ordinance, or
executive order or regulation is in question." In other words, our Constitution authorizes the nullification of a treaty,
not only when it conflicts with the fundamental law, but, also, when it runs counter to an act of Congress.

The foregoing premises leave us no doubt that US forces are prohibited / from engaging in an offensive war on Philippine
territory.

Yet a nagging question remains: are American troops actively engaged in combat alongside Filipino soldiers under the guise of
an alleged training and assistance exercise? Contrary to what petitioners would have us do, we cannot take judicial notice of the
events transpiring down south,18 as reported from the saturation coverage of the media. As a rule, we do not take cognizance of
newspaper or electronic reports per se, not because of any issue as to their truth, accuracy, or impartiality, but for the simple
reason that facts must be established in accordance with the rules of evidence. As a result, we cannot accept, in the absence of
concrete proof, petitioners' allegation that the Arroyo government is engaged in "doublespeak" in trying to pass off as a mere
training exercise an offensive effort by foreign troops on native soil. The petitions invite us to speculate on what is really
happening in Mindanao, to issue I make factual findings on matters well beyond our immediate perception, and this we are
understandably loath to do.

It is all too apparent that the determination thereof involves basically a question of fact. On this point, we must concur with the
Solicitor General that the present subject matter is not a fit topic for a special civil action for certiorari. We have held in too many
instances that questions of fact are not entertained in such a remedy. The sole object of the writ is to correct errors of jurisdiction
or grave abuse of discretion: The phrase "grave abuse of discretion" has a precise meaning in law, denoting abuse of discretion
"too patent and gross as to amount to an evasion of a positive duty, or a virtual refusal to perform the duty enjoined or act in
contemplation of law, or where the power is exercised in an arbitrary and despotic manner by reason of passion and personal
hostility."19

In this connection, it will not be amiss to add that the Supreme Court is not a trier of facts.20

Under the expanded concept of judicial power under the Constitution, courts are charged with the duty "to determine whether or
not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or
instrumentality of the government."21 From the facts obtaining, we find that the holding of "Balikatan 02-1" joint military exercise
has not intruded into that penumbra of error that would otherwise call for correction on our part. In other words, respondents in
the case at bar have not committed grave abuse of discretion amounting to lack or excess of jurisdiction.

WHEREFORE, the petition and the petition-in-intervention are hereby DISMISSED without prejudice to the filing of a new petition
sufficient in form and substance in the proper Regional Trial Court.

SO ORDERED.

Bellosillo, Melo, Mendoza, Quisumbing, Carpio, JJ., concur.

Kapunan, dissenting opinion.

Ynares-Santiago, join the dissenting opinion.

Panganiban, separate opinion.

Davide., Jr., C.J., Puno, Sandoval-Gutierrez, join the main and separate opinion of J. Panganiban.

Footnotes

1
For ready reference, the text of the treaty is reproduced herein:

"MUTUAL DEFENSE TREATY

BETWEEN THE REPUBLIC OF THE PHILIPPINES

AND THE UNITED STATES OF AMERICA

30 August 1951

"The parties to this Treaty,

'"Reaffirming their faith in the purposes and principles of the Charter of the United Nations and their desire to live
in peace with all peoples and all Governments, and desiring to strengthen the fabric of peace in the Pacific Area,

"Recalling with mutual pride the historic relationship which brought their two peoples together in a common bond
of sympathy and mutual ideals to fight side-by-side against imperialist aggression during the last war,

"Desiring to declare publicly and formally their sense of unity and their common determination to defend
themselves against external armed attack, so that no potential aggressor could be under the illusion that either of
them stands alone in the Pacific Area,
"Desiring further to strengthen their present efforts for collective defense for the preservation of peace and
security pending the development of a more comprehensive system of regional security in the Pacific Area,

"Agreeing that nothing in this present instrument shall be considered or interpreted as in any way , or sense
altering or diminishing any existing agreements or understandings between the United States of America and the
Republic of the Philippines,

"Have agreed as follows:

"ARTICLE I.

"The Parties undertake, as set forth in the Charter of the United Nations, to settle any international disputes in
which they may be involved by peaceful means in such a manner that international peace and security and justice
are not endangered and to refrain in their international relations from the threat or use of force in any manner
inconsistent with the purpose of the United Nations.

"ARTICLE II.

"In order more effectively to achieve the objective of this Treaty, the Parties separately and jointly by self-help and
mutual aid will maintain and develop their individual and collective capacity to resist armed attack.

"ARTICLE III.

"The Parties, through their Foreign Ministers or their deputies, will consult together from time to time regarding the
implementation of this Treaty and whenever in the opinion of either of them the territorial integrity, political
independence or security of either of the Parties is threatened by external.'

I armed attack in the Pacific.

"ARTICLE IV.

"Each Party recognizes that an armed attack in the Pacific Area on either of the Parties would be dangerous to its
own peace and safety and declares that it would act to meet the common dangers in accordance with its
constitutional processes.

" Any such armed attack and all measures taken as a result thereof shall be immediately reported to the Security
Council of the United Nations. Such measures shall be terminated when the Security Council has taken the
measures necessary to restore and maintain international peace and security.

"ARTICLE V.

"For the purpose of Article IV, an armed attack on either of the Parties is deemed to include an attack on the
metropolitan territory of either of the Parties, or on the island territories under its jurisdiction in the Pacific or on its
armed forces, public vessels or aircraft used in the Pacific.

"ARTICLE VI.

"This Treaty does not affect and shall not be interpreted as affecting in any way the rights and obligations of the
Parties under the Charter of the United Nations or the responsibility of the United Nations for the maintenance of
international peace and security.
 "ARTICLE VII.

"This Treaty shall be ratified by the United States of America and the Republic of the Philippines in accordance
with their respective constitutional processes and will come into force when instruments of ratification thereof have
been exchanged by them at Manila.

"ARTICLE VIII.

"This Treaty shall remain in force indefinitely. Either Party may terminate it one year after notice has been given to
the other party.

"IN WITNESS WHEREOF the undersigned Plenipotentiaries have signed this Treaty.

"DONE in duplicate at Washington this thirtieth day of August, 1951."

xxx xxx xxx xxx

2
The day before, the first petition in connection with the joint military enterprise was filed --G.R. No.151433,
entitled "In the Matter of Declaration as Constitutional and Legal the 'Balikatan' RP- US Military Exercises."
Petitioner therein Atty. Eduardo B. Inlayo manifested that he would be perfectly "comfortable" should the Court
merely "note" his petition. We did not oblige him; in a Resolution dated February 12, 2002, we dismissed his
petition on the grounds of insufficiency in form and substance and lack of jurisdiction. After extending a hearty
Valentine's greeting to the Court en banc, Atty. Inlayo promised to laminate the aforesaid resolution as a
testimonial of his "once upon a time" participation in an issue of national consequence.

3
Annex 1 of the Comment.

4
Annex 2 of the Comment. The Minutes state:

"Secretary Guingona and Assistant Secretary Kelly welcomed the holding of Balikatan 02-1 exercise ('the
Exercise") and the conclusion of the Terms of Reference for the Exercise. Assistant Secretary Kelly thanked
Secretary Guingona for Secretary Guingona's personal approval of the Terms of Reference.

"Both Secretary Guingona and Assistant Secretary Kelly emphasized the importance of cooperating, within the
bounds provided for by their respective constitutions and laws, in the fight against international terrorism.

"Both Secretary Guingona and Assistant Secretary Kelly expressed the belief that the Exercise shall not in any
way contribute to any escalation of other conflicts in Mindanao, shall not adversely affect the progress of ongoing
peace negotiations between the Government of the Philippines and other parties, and shall not put at risk the
friendly relations between the Philippines and its neighbors as well as with other states. Secretary Guingona
stated that he had in mind the ongoing peace negotiations with the NDF and the MILF and he emphasized that it
is important to make sure that the Exercsie shall not in any way hinder those negotiations.

"Both Secretary Guingona and Assistant Secretary Kelly stated that they look forward to the realization of the
nearly US$100 million in security assistance for fiscal years 2001-2002 agreed upon between H.E. President
Gloria Macapagal-Arroyo and H.E. President George W. Bush last November 2001.

"Secretary Guingona stated that the Philippines welcomes the assistance that the U.S. will be providing, saying
that while Filipino soldier does not lack experience, courage and determination, they could benefit from additional
knowledge and updated military technologies.
"Assistant Secretary Kelly said that he is glad the U.S. is able to provide advice, assistance and training and
reiterated the policy position expressed by H.E. President George W. Bush during his State of the Nation Address
that U.S. forces are in the Philippines to advise, assist and train Philippine military forces.

"Both Secretary Guingona and Assistant Secretary Kelly reiterated that, as provided in the Terms of Reference,
U.S. Forces shall not engage in combat during the Exercise, except in accordance with their right to act in self-
defense.

Both Secretary Guingona and Assistant Secretary Kelly reiterated that, pursuant to Article II of the Visiting Forces
Agreement, U.S. forces are bound to respect the laws of the Philippines during the Exercise.

"Both Secretary Guingona and Assistant Secretary Kelly recognized that, pursuant to Article VI of the Visiting
Forces Agreement, both the U.S. and Philippine Governments waive any and all claims against the other for any
deaths or injuries to their military and civilian personnel from the Exercise.

"Secretary Guingona and Assistant Secretary Kelly designated Ambassador Minerva Falcon and Charge d'
Affaires, a.i. Robert Fitts to initial these minutes.

"Both Secretary Guingona and Assistant Secretary Kelly agreed to consult from time to time on matters relating to
the Exercise as well as on other matters."

Notwithstanding, in view of the paramount importance and the constitutional significance of the issues
raised in the petitions, this Court, in the exercise of its sound discretion, brushes aside the procedural
barrier and takes cognizance of the petitions, as we have done in the early Emergency Powers
Cases, where we had occasion to rule:

5
338 SCRA 81, 100-101 (2000).

'x x x ordinary citizens and taxpayers were allowed to question the constitutionality of several
executive orders issued by President Quirino although they were involving only an indirect and
general interest shared in common with the public. The Court dismissed the objection that they
were not proper parties and ruled that 'transcendental importance to the public of these cases
demands that they be settled promptly and definitely, brushing aside, if we must, technicalities of
procedure. ' We have since then applied the exception in many other cases. [ citation omitted]

This principle was reiterated in the subsequent cases of Gonzales vs. COMELEC, Daza vs. Singson, and
Basco vs. Phil. Amusement and Gaming Corporation, where we emphatically held:

'Considering however the importance to the public of the case at bar, and in keeping with the
Court's duty, under the 1987 Constitution, to detemine whether or not the other branches of the
governrnent have kept themselves within the limits of the Constitution and the laws that that they
have not abused the discretion given to them, the Court has brushed aside technicalities of
procedure and has taken cognizance of this petition.xxx

Again, in the more recent case of Kilosbayan vs. Guingona, Jr., this Court ruled that in cases of i
transcendental importance, the Court may relax the standing requirements and allow a suit to prosper
even , where there is no direct injury to the party claiming the right of judicial review.

Although courts generally avoid having to decide a constitutional question based on the doctrine of
separation, of powers, which enjoins upon the departments of the government a becoming respect for
each others' acts, this Court nevertheless resolves to take cognizance of the instant petitions.6
 6 BAYAN, et. al. Y. Zamora, 342 SCRA 449 (2000).

7
BAYAN, et. al. v. Zamora, et. al., 342 SCRA 449 (2000).

8
Article I [Definitions], VFA.

9
Article II [Respect for Law], VFA.

10
l.M. SINCLA1R, THE VIENNA CONVENTION ON THE LAW OF TREATIES 71-72 (1973).

II "No one is allowed to do indirectly what he is prohibited to do directly." 12 Sec. . 12 SEC.21, Art. VII.

13
224 SCRA 576, 593 (1993).

14
Vienna Convention on the Law of Treaties, art. 26.

15
Id, art. 27. However, this is without prejudice to the provisions of art. 46 of the Convention, which provides:

"1. A State may not invoke the fact that its consent to be bound by a treaty has been expressed in violation of a
provision of its internal law regarding competence to conclude treaties as invalidating its consent unless that
violation was manifest and concerned a rule of its internal law of fundamental importance.

"2. A violation is manifest if it would be objectively evident to any State conducting itself in the manner in
accordance with normal practice and in good faith."

16 101 Phil. 1155, 1191 (1957).

17
9 SCRA 230,242 (1963).

18
Pertinent sections of Rule 129 provide: "SECTION I. Judicial notice, when mandatory.-A court shall take judicial
notice, without the introduction of evidence, of the existence and territorial extent of states, their political history ,
forms of government and symbols of nationality, the law of nations, the admiralty and maritime courts of the world
and their seals, the political constitution and history of the Philippines, the official acts of the legislative, executive
and judicial departments of the Philippines, the laws of nature, the measure of time, and the geographical
divisions." Likewise, it is also provided in the next succeeding section: "SEC. 2. Judicial notice, when
discretionary.-A court may take judicial notice of matters which are of public knowledge, or are capable of
unquestionable demonstration, or ought to be known to judges because of their judicial functions."

19
Sanchez v. National Labor Relations Commission, 312 SCRA 727 ( 1999).

20
Hervas v. Court of Appeals, 319 SCRA 776 (1999); Valmonte v. Court of Appeals, 303 SCRA 278 ( 1999). 1âw phi1.nêt

21
Article VIII, section 1.

The Lawphil Project - Arellano Law Foundation

EN BANC
G.R. No. 151445 April 11, 2002

ARTHUR D. LIM and PAULINO R. ERSANDO, petitioners,

vs.
HONORABLE EXECUTIVE SECRETARY as alter ego of HER EXCELLENCY PRESIDENT GLORIA MACAPAGAL-ARROYO
and HONORABLE ANGELO REYES in his official capacity as Secretary of National Defense, respondents.
SANLAKAS and PARTIDO NG MANGGAGAWA, intervenors.

DISSENTING OPINION

KAPUNAN, J.:

On September 11, 2001, terrorists, with the use of hijacked commercial airplanes, attacked the World Trade Center Building in
New York City and the Pentagon Building in Washington D.C., U.S.A., killing thousands of people.

Following the attacks, the United States declared a "global war" against terrorism and started to bomb and attack Afghanistan to
topple the Taliban regime and capture Osama bin Laden, the suspected mastermind of the September 11, 2001 attacks. With the
Northern Alliance mainly providing the ground forces, the Taliban regime fell in a few months, without Osama bin Laden having
been captured. He is believed either to be still in Afghanistan or has crossed the border into Pakistan.

In line with President Gloria Macapagal-Arroyo's pledge to render all-out aid to the US in its campaign against "global terrorism,"
an arrangement for a. joint military exercises known as "RP-US Balikatan 02-1 Exercises" was entered into between the US and
Philippine authorities, allegedly within the ambit of the Visiting Forces Agreement (V FA) with the main objective of enhancing the
operational capabilities of the countries in combating terrorism. The US government has identified the Abu Sayyaf Group (ASG)
in the Philippines as a terrorist group forming part of a "terrorist underground" linked to the al-Qaeda network of Osama bin
Laden.

Beginning January 21, 2002, American troops started arriving in Mindanao as part of the total contingent force of 660 soldiers,
160 to be stationed in Basilan, 200 to 250 in Zamboanga, and 250 in the Air Force base in Mactan, Cebu.

The salient features of the joint military exercises as embodied in the Terms of Reference (TOR) are summarized as follows:

(a) The exercise shall be consistent with the Constitution and other Philippine laws, particularly the RP-US Visiting
Forces Agreement;

(b) No permanent US bases and support facilities will be established;

(c) The exercise shall be implemented jointly by RP and US Exercise Co-Directors under the direction of the Chief
of Staff of the AFP and in no instance will US Forces operate independently during field training exercises;

(d) It shall be conducted and completed within a period of not more than six months, with the projected
participation of 660 US personnel and 3,800 RP forces, and the Chief of Staff of the AFP shall direct the Exercise
Co-Directors to wind up the Exercise and other activities and the withdrawal of US forces within the six-month
period;

(e) The exercise "is a mutual counter-terrorism advising, assisting and training exercise" relative to Philippine
efforts against the Abu Sayyaf Group and will be conducted on the Island of Basilan. Further advising, assisting
 and training exercises shall be conducted in Malagutay and the Zamboanga area. Related activities in Cebu will
also be conducted in support of the Exercise;

(f) Only 160 US troops organized in 12-man Special Forces Teams shall be deployed in Basilan, with the US
Team remaining at the Company Tactical Headquarters where they can observe and assess the performance of
the troops; and

(g) US exercise participants shall not engage in combat, without prejudice to their right to self-defense.

Petitioners now seek the issuance of a writ of prohibition/injunction to prevent US troops from participating in areas of armed
conflict on the ground that such is in gross violation of the Constitution. They argue that:

THE PHILIPPINES AND THE UNITED STATES SIGNED THE MUTUAL DEFENSE TREATY (MDT) IN 1951 TO
PROVIDE MUTUAL MILITARY ASSISTANCE IN ACCORDANCE WITH THE CONSTITUTIONAL PROCESSES"
OF EACH COUNTRY ONLY IN THE CASE OF AN ARMED ATTACK BY AN EXTERNAL AGGRESSOR,
MEANING A THIRD COUNTRY AGAINST ONE OF THEM.

BY NO STRETCH OF THE IMAGINATION CAN IT BE SAID THAT THE ABU SAYYAF BANDITS IN BASILAN
CONSTITUTE AN EXTERNAL ARMED FORCE THAT HAS SUBJECTED THE PHILIPPINES TO AN ARMED
EXTERNAL ATTACK TO WARRANT US MILITARY ASSISTANCE UNDER THE MDT OF 1951.

II

NEITHER DOES THE VFA OF 1999 AUTHORIZED AMERICAN SOLDIERS TO ENGAGE IN COMBAT
OPERATIONS IN PHILIPPINE TERRITORY, NOT EVEN TO FIRE BACK "IF FIRED UPON."

Sanlakas and Partido ng Manggagawa as intervenors seek the same relief as petitioners, stressing that the Constitution prohibits
the presence of foreign military troops or facilities in the country, except under a treaty duly concurred in by the Senate and
recognized as a treaty by the other state.

The petition is impressed with merit.

There is no treaty allowing

US troops to engage in combat.

The Constitution prohibits foreign military bases, troops or facilities unless a treaty permits the same. Section 25, Article XVIII of
the Constitution provides:

After the expiration in 1991 of the Agreement between the Republic of the Philippines and the United States of
America concerning Military Bases, foreign military bases, troops, or facilities shall not be allowed in the
Philippines except under a treaty duly concurred in by the Senate and, when the Congress so requires, ratified by
a majority of the votes cast by the people in a national referendum held for that purpose, and recognized as a
treaty by the other contracting State.

There is no treaty allowing foreign military troops to engage in combat with internal elements.

The Mutual Defense Treaty (MDT) between the Republic of the Philippines and the United States of America does not authorize
US military troops to engage the ASG in combat. The MDT contemplates only an "external armed attack." Article III of the treaty
cannot be more explicit:
 The Parties, through their Foreign Ministers or their deputies, will consult together from time to time regarding the
implementation of this treaty and whenever in the opinion of either of them the territorial integrity, political
independence or security of either of the Parties is threatened by external armed attack in the Pacific. [Emphasis
supplied.]

Supporting this conclusion is the third paragraph of the MDT preamble where the parties express their desire

to declare publicly and formally their sense of unity and their common determination to defend themselves against
external armed attack, so that no potential aggressor could be under the illusion that either of them stands alone
in the Pacific area. [Emphasis supplied.]

There is no evidence that

the ASG is connected with
"global terrorism."

There is no empirical basis for the allegation that the "terrorism" which the ASG is accused of constitutes an "external armed
attack." The ASG has committed mostly crimes of kidnapping for ransom and murder - common crimes that are punishable under
the penal code but which, by themselves, hardly constitute "terrorism."

Parenthetically, there is lack of agreement as to the precise definition of terrorism. Indeed, one man's terrorist may be another
man's freedom fighter. The divergent interests of States have caused contradicting definitions and conflicting perceptions of what
constitutes "terrorist acts" that make it difficult for the United Nations to reach a decision on the definition of terrorism. Because of
this "definitional predicament," the power of definition is easily exercised by a superpower which, by reason of its unchallenged
hegemony, could draw lists of what it considers terrorist organizations or states sponsoring terrorism based on criteria determined
by the hegemon's own strategic interests.1

In any case, ties between the ASG and so-called international "terrorist" organizations have not been established.2Even assuming
that such ties do exist, it does not necessarily make the "attacks" by the ASG "external" as to fall within the ambit of the MDT.

Balikatan exercises are

not covered by VFA as
US troops are not
allowed to engage in combat.

Neither is the present situation covered by the so-called Visiting Forces Agreement (VFA). The V FA was concluded after the
removal of the US military bases, troops and facilities in the aftermath of the termination of the treaty allowing the presence of
American military bases in the Philippines. The VF A is nothing more than what its formal name suggests: an "Agreement
between the Government of the Republic of the Philippines and the Government of the United States of America regarding
the Treatment of United States Armed Forces Visiting the Philippines. "The last paragraph of the V FA preamble also
"recogniz[es] the desirability of defining the treatment of United States personnel visiting the Republic of the Philippines."

The VFA was entered into to enable American troops to enter the country again after the removal of the American military bases
so they can participate in military exercises under the auspices of the Mutual Defense Treaty. It provided the legal framework
under which American soldiers will be treated while they remain in the country.

The military exercises contemplated in the VFA are those in accordance with the National Defense Plan (NDP) of the Philippines.
The NDP was previously approved and adopted by the Mutual Defense Board, jointly chaired by the Chief of Staff of the Armed
Forces of the Philippines and the Commander in the Pacific of the United States Armed Forces.

The NDP is directed against potential foreign aggressors, not designed to deal with internal disorders. This was what the Senate
understood when it ratified the VFA in Senate Resolution No. 18, which reads:
 The VFA shall serve as the legal mechanism to promote defense cooperation between the two countries,
enhancing the preparedness of the Armed Forces of the Philippines against external threats; and enabling the
Philippines to bolster the stability of the Pacific Area in a shared effort with its neighbor states.

The VFA's ambiguous reference to "activities"3 is not a loophole that legitimizes the presence of US troops in Basilan. In the
treaty's preamble, the parties "reaffirm their obligations under the Mutual Defense Treaty of August 30, 1951." As the preamble
comprises part of a treaty's context for the purpose of interpretation, the VFA must be read in light of the provisions of the MDT.
As stated earlier, the MDT contemplates only an external armed attack; consequently, the "activities" referred to in the V FA
cannot thus be interpreted to include armed confrontation with or suppression of the ASG members who appear to be mere local
bandits, mainly engaged in kidnapping for ransom and murder -even arson, extortion and illegal possession of firearms, all of
which are common offenses under our criminal laws. These activities involve purely police matters and domestic law and order
problems; they are hardly "external" attacks within the contemplation of the MDT and the V FA. To construe the vagueness of the
term "activities" in the V FA as authorizing American troops to confront the ASG in armed conflict would, therefore, contravene
both spirit and letter of the MDT.

Respondents maintain that the American troops are not here to fight the ASG but merely to engage in "training exercises." To
allay fears that the American troops are here to engage the ASG in combat, the TOR professes that the present exercise "is a
mutual counter-terrorism advising, assisting and training Exercise relative to Philippine efforts against the ASG, and will be
conducted on the Island of Basilan." The TOR further provides that the "exercise" shall involve the conduct of "mutual
military assisting, advising and training of RP and US Forces with the primary objective of enhancing the operational
capabilities of both forces to combat terrorism."

These avowals of assistance, advice, and training, however, fly in the face of the presence of US troops in the heart of the ASG's
stronghold. Such presence is an act of provocation that makes an armed confrontation between US soldiers and ASG members
inevitable.

The US troops in Basilan have been described as being "on a slippery slope between training and fighting."Their very
presence makes them a target for terrorist and for the local Moslem populace, which has been bitterly anti-American since
colonial times. Though they are called advisers, the Americans win be going on risky missions deep into the jungle. A former
Green Beret who is an analyst of Washington's Center for Strategies and Budgetary Assessments notes that "when troops go out
on patrol, they come as close as they can to direct combat."4

"Advising" or "training" Filipino soldiers hardly describes the involvement of US troops (unaccompanied by Filipino counterparts)
on board combat helicopters which land on the battlegrounds to evacuate Filipino soldiers wounded while fighting the ASG. For
example, on April 5,2002, US troops on board a Pave Hawk helicopter flew to the scene of a night battle on Basilan Island to
evacuate a wounded Filipino soldier. This was reportedly the third time in recent weeks that chopper-borne US forces had
evacuated Filipino soldiers fighting the ASG.5

Whatever euphemisms may be conjured to characterize American involvement, the RP-US Balikatan 02-1 Exercises are
aimed at seeking out the ASG and exterminating it.

The prohibition contained in the TOR against US exercise participants from engaging in combat but "without prejudice to their
right to self- defense" provides little consolation. Combat muddles the distinction between aggression and self-defense. US troops
can always say they did not fire first and no one would dare say otherwise. The ASG has been so demonized that no one cares
how it is exorcised. Significantly, the TOR does not define the parameters of "self-defense." Militarily, a pre-emptive strike could
be interpreted as an act of self -defense.

What I fear most is that the country would be dragged into a more devastating and protracted conflict as a result of the continued
presence of US military troops in Basilan. A single ASG sniper's bullet felling an American soldier could be used as an excuse for
massive retaliation by US ground and air forces to attack and bomb out every suspected ASG lair, all in the name of "self -
defense.
Apprehensions over possible catastrophic consequence of US military involvement in our country are not without historical basis.

The US experience in Vietnam, for example, began as an expression of support for the establishment of South Vietnam under
Bao Dai's leadership in 1949 to. counteract the support given by communist China and the Soviet Union to North Vietnam. In
1950, the US began providing military assistance in fighting North Vietnam by sending military advisors as well as US tanks,
planes, artillery and other supplies. The US became more involved in the Vietnam conflict when in 1961, it sent the first 400
Green Beret "Special Advisors" to South Vietnam to train the latter's soldiers in methods of counter-insurgency against the Viet
Cong guerillas. It clarified that the American soldiers were not in Vietnam to engage in combat.6

However, due to the increased success of the Viet Cong guerillas, assisted by the Northern Vietnamese Army, the US eventually
began to run covert operations using South Vietnamese commandos in speed boats to harass radar sites along the coastline of
North Vietnam. In 1964, after an alleged torpedo attack by North Vietnam of the American destroyers USS. Maddox and USS. C.
Turner Joy in the Gulf of Tonkin, the US decided to retaliate by conducting bombing raids in North Vietnam.7

The Vietnam War resulted in the death of two million Vietnamese and injuries to three million others. Twelve million Vietnamese
became refugees and thousands of children became orphaned.8 Millions of acres of Vietnam's forests were defoliated by a
herbicide called Agent Orange, dropped from the air. Millions of mines and unexploded bombs and artillery shells are still
scattered in the countryside, posing constant danger to life and limb.

US militarv presence is
essentially indefinite
and open-ended.

Already, there are indications that the US intends to reestablish a more enduring presence in the country. Defense
Secretary Angelo Reyes was quoted to have declared on March 20, 2002 that 2,665 US soldiers will take part in the RP-
US Balikatan 02-2 starting next month in Central Luzon and that 10 more military exercises will be held this year.9 How many
more war exercises are needed for "training and advising" Filipino soldiers? What conditions must be satisfied for the United
States to consider the "war against terrorism" in Mindanao terminated? The endless frequency and successive repetition of the
war exercises covering the two largest islands of the country amount, in a real sense, to the permanent presence of foreign
military troops here sans a treaty in blatant violation of the constitutional proscription.

US President George w. Bush in his January 30, 2002 speech declared:

The men and women of our armed-forces have delivered a message to every enemy of the United States. You
shall not escape the justice of this nation. x x x.

Should any country be timid in the face of terror, if they do not act, America will.

President Arroyo, in a speech at the Regis Hotel in New York City on February 1, 2002, pledged her "full support" to US
President George W. Bush in the fight against international terrorism. She declared that "the Philippines will continue to be a
partner of the United States in the war to end terrorism" and that "(t)he anti-terrorism partnership will continue after the whole
world is secure against the terrorist."10

In his speech on the White House Laws on March 11, 2002, President Bush exhorted:

America encourages and expects governments everywhere to help remove the terrorist parasites that threaten
their own countries and the peace of the world. x x x. We are helping right now in the Philippines, where terrorist
with links to Al Qaeda are trying to seize the southern part of the country to establish a military regime.

They are oppressing local peoples, and have kidnapped both American and Filipino citizens."11
 The Philippine Daily Inquirer in its March 17, 2002 issue carried the following report:

The United States wants to bring in more troops for the controversial Balikatan 02-1 training exercise aimed at
wiping out the Abu Sayyaf bandits in Basilan.

The US military last week began calling the war-games "Operation Enduring Freedom-Philippines," giving
credence to claims that the country has become, after Afghanistan, the second front of the US-led global war on
terrorism.

Today's issue of April 1, 2002 reporting as its source New York News Service, quoted a senior Bush administration official as
saying:

We are looking at prolonged training. x x x. It takes more to build up capabilities than saying here are some night
vision goggles.

The declarations of the two Presidents on the war against terrorism and their avowal to secure the world against the terrorists
would ineluctably suggest a long-drawn conflict without a foreseeable end. Worse, it is not unlikely that this war could expand
and escalate to include as protagonists the Moro Islamic Liberation Front and the Moro National Liberation Front and -
not improbably -the National People's Army, all lumped-up as "terrorists" in a unilateral characterization.

No less than US Deputy Defense Secretary Paul Wolfowitz declared that the proposed $48-billion increase to the US defense
budget for 2003 is intended to sustain the war on terrorism,12 including that fought in this country, thus: .

Deputy Defense Secretary Paul Wolfowitz on Wednesday said the Pentagon needs a big budget increase next
year on terrorism, which has expanded from Afghanistan to the Philippines and now appears to be moving to
Georgia.13

The Court can take judicial notice of the foregoing pronouncements as they are of public knowledge,14 having been widely
circulated in all channels of the media. Neither have they been denied.

US military intervention
is not the solution to the
Mindanao problem.

Assuming that the ASG is a terrorist organization, U.S. military intervention is not the solution to achieve peace. The annihilation
of the rebel bandits would be a futile quest so long at the root causes of their criminality are not addressed. A study15 by the
United Nations Secretariat, however, acknowledges that international terrorism springs from "misery, frustration, grievance and
'despair," elements which, many believe, are present in Basilan. Two veteran Philippine journalists have described the province
as Mindanao's "war laboratory," where lawlessness, government neglect, religious strife, poverty, and power struggle are
rampant.16

If indeed acts of terrorism are cries of desperation, if terrorism is but a symptom of the greater maladies of "misery, frustration,
grievance and despair," then it cannot be remedied alone by ASG's physical extermination, which appears to be the object of
President Bush and President Macapagal- Arroyo's joint campaign against global terrorism." Admittedly, the State has the right to
use force as a means of self-preservation. But perhaps we should all consider that a military solution is but a first-aid measure,
not the prescription to these diseases. It has been opined that:

The issue of terrorism in the Philippines should be dealt with not from the perspective of Manila-Washington ties
but from a serious study of how terrorism figures in the minds of leaders and armed men belonging to the large
but deeply factionalized guerrilla movements in the country. Terrorism can never be dissociated from guerrilla
warfare and the separatist movement in Mindanao. From these movements would arise religious extremists or
 millennarian groups. With the right resources and the right agenda, these movements will continue to attract men-
skilled, intelligent, and experienced-who will come to grasp the practical realities of waging a war with the
minimum of resources but maximum public impact.

The government does not have to look for foreign connections-and be motivated by the desire to help foreign
friends to address a problem that has been and will be the making of its own home grown armies.17

The presence of US troops in Basilan, whether from the legal, philosophical-or even from the practical perspective cannot be
justified, On the contrary, it is counterproductive. It serves to fuel an already volatile situation. US troops are likely less able, if not
less willing, to distinguish between the innocent and the enemy. The inevitable "collateral damage," the killing of women and
children, Muslims and Christians, the destruction of homes, schools and hospitals would fan the flames of fanaticism and
transform mere rogues into martyrs.

The Filipino soldier has proven himself brave, courageous, fearless and tenacious in the field of battle as shown in Bataan and
Corregidor, in the four long years of guerilla warfare thereafter against the Japanese, and in the struggle for independence
against Spain and the United States at the turn of the last century. The local army and police have successfully battled in the past
against Communist and other insurgents which were more organized and numerous, operating in larger parts of the country and
fighting for their political beliefs. If our troops need training by us advisers or have to conduct joint exercises with US troops to
improve their fighting capability, these could be more effectively achieved if done outside Basilan or away from the danger zones.
Instead of bringing troops to the combat zones, the US can do more by supplying our soldiers with modern and high tech
weaponry.

Prescinding from the foregoing disquisitions, it is totally erroneous to argue that petitioners do not have legal standing or that the
issues raised by them are premature and not based on sufficient facts. The issues raised are of transcendental importance.18
The Balikatan exercises pose direct injury to some of the petitioners (intervenors) who live in the affected areas. The presence of
us troops in the combat zones "assisting" and "advising" our troops in combat against the ASG is a blatant violation of the
Constitutional proscription against the stationing of foreign troops to fight a local insurgency and puts the country in peril of
becoming a veritable killing field. If the time is not ripe to challenge the continuing affront against the Constitution and the safety
of the people, when is the right time? When the countryside has been devastated and numerous lives lost?

I therefore vote to give due course to the petition.

sgd. SANTIAGO M. KAPUNAN

Associate Justice

Footnotes

1
In a Lecture delivered on March 12, 2002 as part of the Supreme Court Centenary Lecture Series, Hans
Koechler, Professor of Philosophy at the University of Innsbruck (Austria) and President of the International
Progress Organization, speaking on "The United Nations, The International Rule of Law and Terrorism, " noted;

In the actual unipolar context of international relations, the "fight against terrorism" has become one of the
basic slogans when it comes to the justification of the use of force against certain states and against
groups operating internationally. Lists of states "sponsoring terrorism" and of terrorist organizations are
set up and constantly being updated according to criteria that are not always known to the public, but are
clearly determined by strategic interests.

The basic problem underlying all these military actions -or threats of the use of force as the most recent by
the United States against Iraq- consists in the absence of an agreed definition of terrorism.

Remarkable confusion persists in regard to the legal categorization of acts of violence either by states, by
armed groups such as liberation movements, or by individuals.

The dilemma can be summarized in the saying '"One country's terrorist is another country's freedom
fighter." The apparent contradiction or lack of consistency in the use of the term "'terrorism" may further be
demonstrated by the historical fact that leaders of national liberation movements such as Nelson Mandela
in South Africa, Habib Bourgouiba in Tunisia, or Ahmed Ben Bella in Algeria, to mention only a few, were
originally labeled as terrorists by those who controlled the territory at the time, but later became
internationally respected statesmen.

What, then, is the defining creterion for terrorist acts -the differentia specifica distinguishing those acts
from eventually legitimate acts of national resistance or self-defense?

Since the times of the Cold War the United Nations Organization has been trying in vain to reach a
consensus on the basic issue of definition. The organization has intensified its efforts recently, but has
been unable to bridge the gap between those who associate "'terrorism" with any violent act by non-state
groups against civilians, state functionaries or infrastructure or military installations, and those who believe
in the concept of the legitimate use of force when resistance against foreign occupation or against
systematic oppression of ethnic and/or religious groups within a state is concerned

The dilemma facing the international community can best be illustrated by reference to the contradicting
categorization of organizations and movements such as Palestine Liberation Organization (PLO) -which is
a terrorist group for Israel and a liberation movement for Arabs and Muslims -the Kashmiri resistance
groups -who are terrorists in the perception of India, liberation fighters in that of Pakistan -the
earlier Contras in Nicaragua -freedom fighters for the United States, terrorists for the Socialist camp -or,
most drastically, the Afhani Mujahedeen (later to become the Taliban movement): during the Cold War
period they were a group of freedom fighters for the West, nurtured by the United States, and a terrorist
gang for the Soviet Union. One could go on and on in enumerating examples of conflicting categorizations
that cannot be reconciled in any way -because of opposing political interests that are at the roots of those
perceptions.

How, then, can those contradicting definitions and conflicting perceptions and evaluations of one and the
same group and its actions be explained? In our analysis, the basic r.eason for these striking
inconsistencies lies in the divergent interests of states. Depending on whether a state is in the position of
an occupying power or in that of a rival, or adversary, of an occupying power in a given territory, the
defmition of terrorism will "fluctuate" accordingly. A state may eventually see itself as protector of the
rights of a certain ethnic group outside its territory and will therefore speak of a "liberation struggle," not of
"terrorism" when acts of violence by this group are concerned, and vice-versa. 1âwphi1.nêt

The United Nations Organization has been unable to reach a decision on the definition of terrorism exactly
because of these i. conflicting interests of sovereign states that determine in each and every ! instance
how a particular armed movement (i.e. a non-state actor) is r labeled in regard to the terrorist-freedom
fighter dichotomy. A "policy of double standards" on this vital issue of international affairs has been the
unavoidable consequence.

This "defmitional predicament" of an organization consisting of ~ sovereign states -and not of peoples, in
spite of the emphasis in the I! Preamble to the United Nations Charter! -has become even more serious ~
in the present global power constellation: ~ superpower exercises the :1 decisive role in the Security
Council, former great powers of the Cold ill i War era as well as medium powers are increasingly being
marginalized; and the problem has become even more acute since the terrorist attacks of 11 September
 2001 in the United States. "

Koechler adds, however, that this failure to distinguish between terrorist acts and acts of national liberation did not
prevent the international community from arriving at an implicit or 11, "operative" definition. For example, in Article
of the International Convention for Suppression of Terrorist Bombings, terrorist acts are referred to as "criminal
acts ..., in particular where they are intended or calculated to provoke a state of terror in the general i ~ public or
in a group of persons or particular persons" that are under no circumstances justifiable considerations of a
political, philosophical, ideological, racial, ethnic, religious or ti ~ other similar nature."

2
The following excerpts from "Under the Crescent Moon: Rebellion in Mindanao" by Marites Dafiguilan Vitug and
Glenda M. Gloria (Ateneo Center for Social Policy and Public Affairs and Institute for Popular Democracy, 2000)
demonstrate the obscurity of the ASG's raison d. etre:

...for all the warring [the Abu Sayyaf] it has done supposedly in the name of Islam, there is much
confusion and mistrust surrounding the Abu Sayyaf, whose leaders had flaunted their ties with the police
and the military. Even veterans of the Mindanao war find it hard to identify the Abu Sayyaf's political
direction-where it really wants to go, or what it wants to achieve as an organization. (At pp. 204205.)

The military had long been divided on how to view the Abu Sayyaf. The dominant view held the group as a
genuine extremist organization driven by an extreme view of Islam. But there are military strategists who
have downplayed the ideological component of Janjalani's cause, arguing that he merely wanted to steal
the thunder from the MNLF and the MILF - and in the process also hijack their financial connections to the
Arab World. (At p. 206.)

….[Basilan Bishop Romeo] [de] la Cruz said he didn't think the Abu Sayyaf was truly espousing
fundamentalism. "Initially I thought this was a religious conflict because of the so-called resurgence of
Islam. For awhile the Church even attributed the spate of kidnappings in Basilan to Islamic
fundamentalism. "Later on we realized this was not the case. Islam was being used as a mere cover of
these people.

Abdulgani "Gerry" Salappudin, governor of Basilan for 10 years, shares this view. The Abu Sayyaf was
being used to destroy the image of Islam. He cited the fact that Janjalani's mother was a Christian. Was
he out, therefore, the destroy Islam? "I am not saying that... It's just that he's not pure Muslim."

Thus, how and why exactly the Abu Sayyaf was founded is a question for which neither the military nor
Janjalani had a solid answer. The group remains as nebulous as its beginning, and as shadowy as its
charismatic founder. There is absolutely no doubt that it has been infiltrated by the military. What is
uncertain is whether or not Janjalani, who was admired by many in the Muslim community, formed the
Abu Sayyafprecisely to work for the military or if he had simply lost control over his own men. (At pp. 210-
211.)

3
Article III (1) on Entry and Departure, for example, imposes upon the Philippine Government the duty to "facilitate
the admission of United States personnel and their departure from the Philippines in connection with activities
covered by this agreement." Article VI (1) also mentions "claims... from activities to which this agreement applies."
The same reference to "activities to which this agreement applies" is found in Article VII on Importation and
Exportation. Article I, in defining "United States personnel" as "United States military and civilian personnel
temporarily in the Philippines in connection with activities approved by the Philippine Government," does not limit
the scope of the "activities" that the Philippine Government may "approve."

4
McGeary, Next Stop Mindanao, Time Magazine, January 28, 2002, p. 22.

5
Philippine Daily Inquirer, April 6, 2002.
6
See www.historyplace.com, Also Ambrose, Stephen, Rise to Globalism: American Foreign Policy since 1938
(Fifth Rev, Ed.),

7
Id.

8
Microsoft Encyclopedia Encarta (2000).

9
Philippine Daily Inquirer, March 21,2002.

10
Manila Bulletin, February 2, 2002.

11
Philippine Star, March 13,2002.

"Democratic Senate Majority Leader Tom Daschle criticized the US administration's war terrorism yesterday,
12

charging that it has undergone an expansion without at least a clear direction."

"How long can we stand this kind of pressure on our treasury?.. We seem to be good at developing enhance
strategies, not so good at developing exit strategies, he charged." (The Philippine Star, March 2, 2002).

13
The Philippine Star, March 2, 2002.

14
Sec. 1, Rule 129, RULES OF COURT.

Entitled "Measures to Prevent International Terrorism which Endangers or Takes Innocent Human Lives or
15

Jeopardizes Fundamental Freedoms and Study of the Underlying Causes of Those Forms of Terrorism and Acts
of Violence which Lie in Misery, Frustration, Grievance and Despair and which Cause Some People to Sacrifice
Human Lives, including Their Own, in an Attempt to Effect Radical Changes." 2 November 1972, 27th Session.
The pertinent portions of the study state:

13. Man is one of the few species that frequently uses violence against its own kind. He has done so since
the dawn of history. In the past, periods in which violence has been especially conspicuous have been
those of rapid social change. During the years of the existence of the United Nations, when in most parts
of the world, and in both the

developed and the developing countries, the patters of society are changing with almost unprecedented
speed, violence has been frequent.

14. The interlinked growth of technology and growth of population have tended to create new hopes,
expectations and needs in many social groups. These new attitudes mark a departure from the
resignation and passivity with which most men in the past accepted the ills of life. The United Nations
Charter is the voice of the aspirations of mankind when it contemplates the establishment of a world in
which aggression and the threat or use of force in international relations would be effectively outlawed,
friendly relations would exist among nations on the basis of respect for the principles of equal rights and
self- determination of peoples, international disputes would be settled justly be peaceful, and international
co-operation would solve international economic and social problems and promote respect for human
rights and fundamental freedoms for all.

15. The period of the existence of the United Nations, however, has shown very incomplete and uneven
progress towards these goals. While major wars involving the great Power have not occurred, force has
often been resorted to, and has inflicted suffering and exile upon peoples. While progress has been made
against colonialism and racism, those evils have not yet been completely eliminated. Even where political
 independence has been established, in many cases much remains to be done in assisting the populations
to attain the minimum level necessary for decent conditions of life. Few advances have been made
towards the peaceful settlement of some major international disputes, which are too often left to fester and
poison international relations. Among groups where economic and social progress has been relatively
slow, conditions have been unfavourable to the exercise of and the respect for human rights and
fundamental freedom.

16. The lack of slowness of advance towards these goals has contributed toward the "misery, frustration,
grievance and despair" which, while not themselves causes of terrorism, are psychological conditions or
states of being which sometimes lead, directly or indirectly, to the commission of acts of violence. While in
the United Nations context it is perhaps appropriate to give special attention to the international factor that
contribute to violence, there are also many situations in individual nations which may give rise to the
grievance of a particular group or person, leading to acts having international repercussions. Purely
personal circumstances can also often have the same result. There are also cases in which there is no
genuine grievance at all, and a violent crime affecting more than one country seems to have been
committed from mere cupidity, or a desire to escape criminal prosecution. The General Assembly,
however, in stressing "misery, frustration, grievance and despair, seems to have singled out for special
attention those situations which have the common characteristic of calling for redress.

17. Why is it that violence resulting from these circumstances takes with increasing frequency the form of
international terrorism, threatening, endangering or killing innocent victims? As the peoples of the world
grow more interdependent the solution of many problems no longer hangs on any local ruler or
government, but on actions and decisions taken thousands of miles away. Men think their ills have been
produced by some vast impersonal force, which is deaf to their pleas for justice or impotent to find
solutions, rather than by other men, striving for similar although opposed ends and bound to them by the
claims of a common humanity. Modem communications and the growth of the public information media
have transformed local incidents into world events, especially when the incidents have an international
character. A terrorist act focuses world attention upon the terrorist and upon any cause he may claim to
represent. In these circumstances, some such acts - which, as has already been said, cannot possibly by
themselves effect radical social changes -are really acts of communication. They are intended to show the
world that the determination and devotion of the terrorists are sufficient to compensate in the long run for
their apparent inferiority in strength; that their cause is more holy to them than life itself, must be taken
seriously, and is worthy of support; and that neither their foe nor the world at-Iarge is able to prevent their
success in their purpose, or ensure punishment of their deeds and those of their associates.

18. Other such acts, however, seem to be more the result of blind fanaticism, or of the adoption of an
extremist ideology which subordinates morality and all other human values to a single aim. In either case,
the result is the same; modern life and modern weapons bring more and more strangers and foreigners
within the reach of the terrorist, and he uses them as instruments for his purpose. As violence breeds
violence, so terrorism begets counter-terrorism, which in turn leads to more terrorism in an ever-increasing
spiral,

xxx

20. It thus appears that the "misery, frustration, grievance and despair" which lead to terrorism have many
roots in international and national political, economic and social situations affecting the terrorist, as well as
in his personal circumstances. The precise chain of causation of particular acts cannot be traced with
scientific exactitude. Nevertheless, the General Assembly may wish to identify types of situations which, if
a remedy could be found to bring them more into accord with justice, will cease to contribute to the
spreading terrorism which has shocked the world.

16
Dañguilan Vitug and Gloria (Under the Crescent Moon: Rebellion in Mindanao, supra.) write:
 Indeed, a man is inspired by his belief but is constrained by his environment. And Basilan, where Janjalani
grew up, is a place where the laws set by men are flouted daily. It is a place where people of weak resolve
could give in to the challenges posed by power, either the lack or possession of it. It certainly is not a
place conducive for reflection or reinforcing pure religious thoughts.

Mindanao's best war laboratory, Basilan is one of the Country's poorest provinces where all sorts of
armed groups dominate a populace long neglected by government. Local rulers compete for legitimacy
with armed rebel groups, bandits, Muslim preachers, Catholic volunteers, loggers legal and illegal, the
Marines, the Army. In this sense, the Abu Sayyaf was ripe for growth. Modern history has proven that
whenever the legitimacy of the state suffers and the economy goes down, other forces come to fore as
alternative. Janjalani had offered solace to those who bothered to listen to him. The reality of Basilan, after
all, is its deadly environment: grinding poverty, the absence of the rule of law, and the proliferation of arms
and of men who thrive on them. It is no coincidence that a group with such amorphous beginnings as the
Abu Sayyaf was established in a province that remains poor despite its fertile, lushly forested land and its
proximity to Zamboanga City. It didn't matter that Janjalani went to the Catholic-run Clarest school.
Janjalani, or any local leader for that matter, would have found it difficult to detach himself from this
environment.

Former MNLF members in Basilan who have known little more than how to was kidnapping, and it gave
Abu Sayaff away. No group espousing a true Islamic state would have resorted to kidnapping in such a
random, blatant style as the Abu Sayyaf did in its heyday.

It also didn't help that the governrnent and the media unfairly lumped Islamic fundamentalism and
terrorism together because the Abu Sayyaf, which espouses the former, has been suing the latter as a
means to fight for its cause. (At 206-207.)

17
DANGUILAN VITUG AND GLORIA, at 244-245.

18
Bayan vs. Zamora, 342 SCRA 449 (2002).

EN BANC

G.R. No. 151445 APRIL 11, 2002

ARTHUR D. LIM, ET AL., petitioners,

vs.
HONORABLE EXECUTIVE SECRETARY, ETC., ET AL., respondents.
SANLAKAS, ET AL., intervenors.

SEPARATE OPINION*

PANGANIBAN, J:

Through their "Petition for Certiorari and, Prohibition," Arthur D. Lim and Paulino R. Ersanda -- joined by Intervenors Sanlakas
and Partido ng Manggagawa -- plead for the issuance of an order "restraining the respondents from proceeding or continuing and
completing the so-called 'Balikatan 02-1'" on the ground that the exercise is not sanctioned by any treaty and is, therefore,
allegedly unconstitutional.
Agreeing with the Comment of the Office of the Solicitor General (OSG), the ponencia of Mr. Justice Sabino R. de Leon Jr.
dismisses the Petition essentially on these procedural grounds:

1. As taxpayers, petitioners do not have legal standing or locus standi, because Balikatan 02-1 "does not involve
the exercise by Congress of its taxing or spending power."

2. Certiorari and prohibition are improper remedies, because petitioners have not alleged sufficient facts upon
which grave abuse of discretion or excess/lack of jurisdiction could be argued from.

3. The Petition is premature because the alleged violation of the Constitution is merely speculative, not actual or
imminent.

4. Though entitled "Certiorari and Prohibition," the Petition is really one for declaratory relief which merely seeks
an advice or opinion, not a decision. The Supreme Court has no jurisdiction to issue opinions or advices.

Ordinarily, the above reasons would indeed be sufficient to cause the dismissal of a petition. However, because of the
"transcendental importance" of the main question raised - the constitutionality of the Balikatan exercise - the Court, I believe,
could have exempted this case from these procedural requirements and tackled the case on the merits, if only to put to rest the
legality of this major event of public interest ill our country and even ill the world. I, for one, would have voted to set aside these
legalistic obstacles, had the Petition presented enough factual moorings upon which to base an intelligent discussion and
disposition of the legal issues.

For instance, this Court cannot be called upon to decide the factual issues of whether the US forces are actually engaging the
Abu Sayyaf Group ill combat and whether they will stay ill our country permanently. This Court has no authority to conduct a trial,
which can establish these factual antecedents. Knowing what these antecedents are is necessary to determine whether the
Balikatan violates the Constitution or the Mutual Defense Treaty (MDT) of 1951 or the Visiting Forces Agreement (VFA) of 1999.
Verily, the Petition has not even alleged that the American troops have indeed been unconstitutionally engaged ill actual offensive
combat. The contention that they would necessarily and surely violate the Constitution by participating ill the joint exercise in
Basilan is merely speculative. Petitioners aver:

"American soldiers with high-tech weaponry, disguised as trainers or advisers to Filipino troops, will go to the war
zones of Basilan. Hence, while dubbed as a military exercise, it is in reality a continuing combat operation by the
AFP against the Abu Sayyaf to be participated in this time by U.S. troops. It has been admitted that U.S. 'advisers'
will accompany Filipino soldiers on patrol in the combat zones.

Also, a base of operation will be in the Sampinit complex which is in the heartland of the Abu Sayyaf's 'territorial
domain' in Basilan island. A shooting war, not just an exercise, is unavoidable."

That a "shooting war is unavoidable" is conjectural; at best, a conclusion that is not borne by solid factual moorings. Cases
cannot be decided on mere speculation or prophecy .The Petition claims that while the us troops are "disguised" as "advisers" or
"trainors" or "chaperons," they are actually combatants engaged in an offensive war against local insurgents. Again, there is no
solid factual basis for this statement. It may or may not be true. The Petition also alleges, again without firm factual support, that
the American forces will stay here indefinitely "for a year or even more depending on the need of the AFP for them."

On the other hand, the OSG assures that petitioners' "apprehensions are belied" by the Terms of Reference (TOR) approved by
both the Philippines and the United States, which "expressly limit. the conduct and completion of the exercise within a period not
exceeding six " (6) months and prohibits the American participants from engaging in combat, without prejudice to their right to
self-defense."

I stress that cases cannot be decided by this Court on the basis of speculative or hypothetical assumptions like "If the facts were
these, then our decision would be this; on the other hand, if the facts change, then our ruling would be modified as follows. "
Decisions of this Court especially in certiorari and prohibition cases are issued only if the facts are clear and definite. As a rule,
courts may not consider or judge facts or matters unless they are alleged in the pleadings and proven by the parties. Our duty is
to apply the law to facts that are not in dispute.

In the absence of firm factual findings that the Americans "will stay indefinitely" in our country or "are engaged in actual offensive
combat with local insurgents" as alleged by petitioners, respondent Philippine officials who are hosting the Balikatan exercise
cannot possibly be imputed with grave abuse of discretion - an indispensable element of certiorari. 1âw phi 1.nêt

True, there are some questions that may genuinely be raised in regard to the Balikatan 02-1 vis-a-vis our Constitution, the MDT
and the VFA, like the following:

(1) Is the Abu Sayyaf Group composed of "international terrorists" whose acts and practices violate the United
Nations Charter to such an extent as to pose a threat to international peace and security?

(2) Is there an "external armed attack" against the Philippines sufficient in force and magnitude as to justify an
invocation of the MDT?

(3) Are the size, the kind, and the location of the Balikatan deployment justified by the nature, the scope, the
duration, and the kind of "activities" allowed under the VFA?

(4) Is it true that the real American objective is the rescue of ASG hostages Martin and Gracia Burnham, who are
both American citizens? If so, is such rescue legally justified?

(5) Does the Balikatan pose a "political question " which the Supreme Court has no authority to rule upon, and
which may only be decided by our people directly or through their I elected representatives?

Unfortunately, the foregoing and other similar nagging questions cannot be judicially taken up and answered until a
petition, sufficient in form and substance, is properly presented to the appropriate court.

FOR THE FOREGOING REASONS, I vote to DISMISS the present Petition.

sgd. ARTEMIO V. PANGANIBAN

Associate Justice

Footnotes

*At petitioners' insistent request, the Court had to speed up the deliberation and disposition of this case, as the
Balikatan may soon be completed and the Petition rendered moot. Hence, I wrote this Opinion hurriedly without
the benefit of the usual citations of legal authorities.

The Lawphil Project - Arellano Law Foundation

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Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-129 December 19, 1945

TOMOYUKI YAMASHITA, petitioner,

vs.
WILHELM D. STYER, Commanding General, United States Army Forces, Western Pacific, respondent.

Col. Harry E. Clarke and Lt. Col. Walter C. Hendrix for petitioner.
Maj. Robert M. Kerr for respondent.
Delgado, Dizon, Flores and Rodrigo appeared as amici curiae.

MORAN, C.J.:

Tomoyuki Yamashita, erstwhile commanding general of the 14th army group of the Japanese Imperial Army in the Philippines,
and now charged before an American Military Commission with the most monstrous crimes ever committed against the American
and Filipino peoples, comes to this Court with a petition for habeas corpus and prohibition against Lt. Gen. Wilhelm D. Styer,
Commanding General of the United States Army Forces, Western Pacific. It is alleged therein that petitioner after his surrender
became a prisoner of war of the United States of America but was later removed from such status and placed in confinement as
an accused war criminal charged before an American Military Commission constituted by respondent Lieutenant General Styer;
and he now asks that he be reinstated to his former status as prisoner of war, and that the Military Commission be prohibited
from further trying him, upon the following grounds:

(1) That the Military Commission was not duly constituted, and, therefore, it is without jurisdiction;

(2) That the Philippines cannot be considered as an occupied territory, and the Military Commission cannot exercise jurisdiction
therein;

(3) That Spain, the "protecting power" of Japan, has not been given notice of the implementing trial against petitioner, contrary to
the provisions of the Geneva Convention of July 27, 1892, and therefore, the Military Commission has no jurisdiction to try the
petitioner;

(4) That there is against the petitioner no charge of an offense against the laws of war; and

(5) That the rules of procedure and evidence under which the Military Commission purports to be acting denied the petitioner a
fair trial.

We believe and so hold that the petition for habeas corpus is untenable. It seeks no discharge of petitioner from confinement but
merely his restoration to his former status as a prisoner of war, to be interned, not confined. The relative difference as to the
degree of confinement in such cases is a matter of military measure, disciplinary in character, beyond the jurisdiction of civil
courts.

Neither may the petition for prohibition prosper against Lt. Gen. Wilhelm D. Styer. The military Commission is not made party
respondent in this case, and although it may be acting, as alleged, without jurisdiction, no order may be issued in these case
proceedings requiring it to refrain from trying the petitioner.

Furthermore, this Court has no jurisdiction to entertain the petition even if the commission be joined as respondent. As we have
said in Raquiza vs. Bradford (pp. 50, 61, ante), ". . . an attempt of our civil courts to exercise jurisdiction over the United States
Army before such period (state of war) expires, would be considered as a violation of this country's faith, which this Court should
not be the last to keep and uphold." (Emphasis supplied) We have said this in a case where Filipino citizens were under
confinement, and we can say no less in a case where the person confined is an enemy charged with the most heinous atrocities
committed against the American and Filipino peoples.

True that the rule was made applicable in time of war, and there is a conflict of opinion as to whether war has already terminated.
War is not ended simply because hostilities have ceased. After cessation of armed hostilities, incident of war may remain pending
which should be disposed of as in time of war. "An important incident to a conduct of a war is the adoption of measure by the
military command not only to repel and defeat the enemies but to seize and subject to disciplinary measures those enemies who
in their attempt to thwart or impede our military effort to have violated the law of the war." (Ex parte Quirin, 317 US., 1; 63 Sup.
Ct., 2.) Indeed, the power to create a Military Commission for the trial and punishment of war criminals is an aspect of waging
war. And, in the language of a writer, a Military Commission "has jurisdiction so long as a technical state of war continues. This
includes the period of an armistice, or military occupation, up to the effective date of a treaty agreement." (Cowles, Trial of War
Criminals by Military Tribunals, American Bar Association Journal, June, 1944.)

Upon the other hand, we have once said (Payomo vs. Floyd, 42 Phil., 788), — and this applicable in time of war as well as the
time of peace — that this Court has no power to review upon habeas corpus the proceedings of a military or naval tribunal, an
that, in such case, "the single inquiry, the test, is jurisdiction. That being established, the habeas corpus must be denied and the
petitioner discharged." (In re Grimley, 137 U.S., 147; 11 Sup. Ct., 54; 34 La. ed., 636.) Following this rule in the instant case, we
find that the Military Commission has been validly constituted and it has jurisdiction both over the person of the petitioner and
over the offenses with which he is charged.

The Commission has been validly constituted by Lieutenant General Styer duly issued by General Douglas MacArthur,
Commander in Chief, United States Army Force Pacific, in accordance in authority vested in him and with radio communication
from the Joint Chiefs of Staff, as shown by Exhibits C, E, G, and H, attached by petition. Under paragraph 356 of the Rules of the
Land Welfare a Military Commission for the trial and punishment of the war criminals must be designated by the belligerent. And
the belligerent's representative in the present case is none other than the Commander in Chief of the United States Army in the
Pacific. According to the Regulations Governing the Trial of the War Criminals in the Pacific, attached as Exhibit F to the petition,
the "trial of persons, units and organizations accused as a war criminals will be the Military Commissions to be convened by or
under the authority of the Commander in Chief, United States Army Forces, Pacific." Articles of War Nos. 12 and 15 recognized
the "Military Commission" appointed by military command as an appropriate tribunal for the trial and punishment of offenses
against the law of the war not ordinarily tried by court martial. (Ex parte Quirin, supra.) And this has always been the United
States military practice at since the Mexican War of 1847 when General Winfield Scott took the position that, under the laws of
war, a military commander has an implied power to appoint and convene a Military Commission. This is upon the theory that
since the power to create a Military Commission is an aspect of waging war, Military Commanders have that power unless
expressly withdrawn from them.

The Military Commission thus duly constituted has jurisdiction both over the person of the petitioner and over the offenses with
which he is charged. It has jurisdiction over the person of the petitioner by reason of his having fallen into the hands of the United
States Army Forces. Under paragraph 347 of the Rules of the Land Warfare, "the commanders ordering the commission of such
acts, or under whose authority they are committed by their troops, may be punished by the belligerent into whose hands they may
fall."

As to the jurisdiction of the Military Commission over war crimes, the Supreme Court of the United States said:

From the very beginning of its history this Court has recognized and applied the law of war as including that part
of the law of nations which prescribes, for the conduct of war, the status rights and duties and of enemy nations
as well as of enemy individuals. By the Articles of War, and especially Article 15, Congress has explicitly provided,
so far as it may constitutionally do so, that military tribunals shall have jurisdiction to try offenders or offenses
against the law of war in appropriate cases. Congress, in addition to making rules for the government of our
Armed Forces, has thus exercised its authority to define and punish offenses against the law of nations by
sanctioning, within constitutional limitations, the jurisdiction of military commissions to try persons and offenses
which, according to the rules and precepts of the law of nations, and more particularly the law of war, are
cognizable by such tribunals. (Ex parte Quirin, 317 U.S. 1, 27-28; 63 Sup. Ct., 2.)

Petitioner is charged before the Military Commission sitting at Manila with having permitted members of his command "to commit
brutal atrocities and other high crimes against the people of the United States and of its allies and dependencies, particularly the
Philippines," crimes and atrocities which in the bills of particulars, are described as massacre and extermination of thousand and
thousands of unarmed noncombatant civilians by cruel and brutal means, including bayoneting of children and raping of young
girls, as well as devastation and destruction of public, or private, and religious property for no other motive than pillage and
hatred. These are offenses against the laws of the war as described in paragraph 347 of the Rules of Land Warfare.

It is maintained, however, that, according to the Regulations Governing the Trial of War Criminals in the Pacific. "the Military
Commission . . . shall have jurisdiction over all of Japan and other areas occupied by the armed forces commanded by the
Commander in Chief, United States Army Forces, Pacific" (emphasis supplied), and the Philippines is not an occupied territory.
The American Forces have occupied the Philippines for the purpose of liberating the Filipino people from the shackles of
Japanese tyranny, and the creation of a Military Commission for the trial and punishment of Japanese war criminals is an incident
of such war of liberation.

It is maintained that Spain, the "protecting power" of Japan, has not been given notice before trial was begun against petitioner,
contrary to the provisions of the Geneva Convention of July 27, 1929. But there is nothing in that Convention showing that notice
is a prerequisite to the jurisdiction of Military Commissions appointed by victorious belligerent. Upon the other hand, the
unconditional surrender of Japan and her acceptance of the terms of the Potsdam Ultimatum are a clear waiver of such a notice.
It may be stated, furthermore, that Spain has severed her diplomatic relation of Japan because of atrocities committed by the
Japanese troops against Spaniards in the Philippines. Apparently, therefore, Spain has ceased to be the protecting power of
Japan.

And, lastly, it is alleged that the rules of procedure and evidence being followed by the Military Commission in the admission of
allegedly immaterial or hearsay evidence, cannot divest the commission of its jurisdiction and cannot be reviewed in a petition for
the habeas corpus. (25 Am. Jur., 218; Collins vs. McDonald, 258 U. S. 416; 66 Law. ed., 692; 42 Sup. Ct., 326).

For all foregoing, petition is hereby dismissed without costs. lawphi1.net

Jaranilla, Feria, De Joya, Pablo, Hilado, Bengzon, and Briones, JJ., concur.
Paras, J., concurs in the result.
Separate Opinions

OZAETA, J., concurring and dissenting:

I concur in the dismissal of the petition for habeas corpus and prohibition on the ground that the Military Commission trying the
petitioner has been legally constituted, and that such tribunal has jurisdiction to try and punish the petitioner for offenses against
the law of war. (Ex parte Quirin, 317 U.S. 1; 63 Sup. Ct., 2.)

I dissent, however, from the portion of the opinion of the Court which cities and applies herein its decision in the case Raquiza vs.
Bradford (pp. 50, 61, ante ), to the effect that an attempt of our civil court to exercise jurisdiction over the United States Army
would considered as a violation of this country's faith. The decision of Raquiza case, from which I dissented, was based mainly of
the case of Coleman vs. Tennessee (97 U. S., 509), in which was mentioned merely by way of argument the rule of international
law to effect that a foreign army, permitted to march through a friendly country to be stationed in it, by permission of its
government or sovereign, is exempt from the civil and criminal jurisdiction of the place. After reviewing the facts and the ruling of
the court in the Coleman case, I said in my dissenting opinion in the Raquiza case the following:

. . . Thus it is clear that the rule of international law above mentioned formed no part of the holding of the court in
the said case.

Neither can such rule of international law of itself be applicable to the relation between the Philippines and the
United States, for the reason that the former is still under the sovereign of the latter. The United States Army is
not foreign to the Philippines. It is here not by permission or invitation of the Philippine Government but by right of
sovereignty of the United States over the Philippines. It has the same right to be here as it has to be in Hawaii or
California. The United States has the same obligation to defend and protect the Philippines, as it has to defend
and protect Hawaii or California, from foreign invasion. The citizens of the Philippines owe the same allegiance to
the United States of the America as the citizens of any territory or States of the Union.

That the case of Coleman vs. Tennessee was erroneously invoked and applied by this Court in the case of Raquiza vs. Bradford,
was admitted by Mr. Wolfson, the attorney for Lieutenant Colonel Bradford, who, notwithstanding the judgment in favor of his
client, moved this Court to modify the majority opinion "by eliminating all reference to the case of Coleman vs. Tennessee (97
U.S. 509). because, as well pointed out in both dissenting opinions, said case has no application whatever to the case at bar." .

The rule of international law mentioned in the Coleman case and erroneously applied by analogy in the Raquiza case, has
likewise no application whatever to the case at bar. A mistake when repeated only becomes a blunder.

PERFECTO, J., concurring and dissenting:

1. FACTS IN THIS CASE

Petitioner prays that a writ of habeas corpus be issued directed to respondent Lt. Gen. Wilhelm D. Styer, Commanding General,
United Army Forces, Western Pacific, commanding him to produce the body of the petitioner before this Court and that "he be
ordered returned to the status of an internee as a prisoner of war in conformity with the provision of article 9 of the Geneva
Convention of July 27, 1929, relative to the treatment of prisoners of war and of paragraph 82 of the Rules of Land Warfare, F. M.
27-10, United States War Department, and that a writ of prohibition be issued by this Court prohibiting the respondent from
proceeding with the trial, and that the petitioner be discharged from the offenses and confinement aforesaid."

Prior to September 3, 1945, petitioner was the commanding general of the 14th Army Group of the Imperial Japanese Army in the
Philippines. On said date, he surrendered to the United States and was interned in New Bilibid Prison, in Muntinlupa, in
conformity with the provision of article 9 of the Geneva Convention of July 27, 1929, relative to the treatment of prisoners of war,
and of paragraph 82 of the Rules of Land Warfare of the United States War Department.

On October 2, 1945, respondent caused to be served on petitioner a charge for violation of the laws of war, signed by Colonel
Alva C. Carpenter, wherein it is alleged that between 9 October, 1944, and 2 September, 1945, petitioner "while commander of
the armed forces of Japan at war with the United States and its allies, unlawfully disregarded and failed it discharge his duty as
commander to control the operations of the members of his command, permitting them to commit brutal atrocities and other high
crimes against the people of the United States and its allies and dependencies, particularly the Philippines." Thereafter petitioner
was removed from the status of the prisoner of war and was placed in confinement as an accused war criminal and is presently
confined in the custody of respondent at the residence of the United States High Commissioner of the Philippines in Manila.

On October 1, 1945, by command of respondent and pursuant to authority contained in a letter from the General Headquarters,
United States Army Force, Western Pacific, dated September 24, 1945, a Military Commission was appointed to try petitioner. At
the same time several officers were designated to conduct the prosecution and several others to act as defense counsel.

The commission was instructed to follow the provisions of the letter of September 24, 1945, and was empowered to "make such
rules for the conduct of the proceedings as it shall deem necessary for a full and fair trial of the person before it. Such evidence
shall be admitted as would, in the opinion of the president of the commission, have probative value to a reasonable man and is
relevant and material to the charges before the commission. The concurrence of at least two-thirds of the members of the
commission present shall be necessary for a conviction or sentence."

Said letter (Exhibit G) addressed to respondent by Brigadier General B. M. Fitch, "by command of General MacArthur,"
empowers respondent "to appoint Military Commissions for the trial of such persons accused of war crimes as may hereafter be
designated by this Headquarters," with the instructions that "all the records of trial including judgment or sentence and the action
of the appointing authority will be forwarded to this Headquarters. Unless otherwise directed, the execution of judgment or
sentence in all cases will be withheld pending the action of the Commander in Chief.

On the same date "by Command of General MacArthur" (Exhibit H), respondent was instructed to proceed immediately with the
trial of General Tomoyuki Yamashita for the charge served on petitioner on October 2, 1945 (Exhibit B).

Upon arraignment on October 8, 1945, by the above mentioned Military Commission, petitioner entered a plea of not guilty. On
the same date the prosecution filed a bill of particulars (Exhibit 1) with 64 items of crimes, and on October 29, 1945, a
supplemental bill of particulars (Exhibit J) with many other additional items, adding up to 123, of the specified crimes imputed to
petitioner.

On October 19, 1945, petitioner's defense filed a motion to dismiss the case before the Military Commission for the reasons that
the charge, as supplemented by the bills of particulars, "fails to state a violation of the laws of war by the accused, and that the
commission has no jurisdiction to try this cause." The motion was denied on October 29.

On said day, which was the first day of trial, the prosecution offered in evidence an affidavit of Naukata Utsunomia (Exhibit M)
executed on October 1, 1945, and subscribed and sworn to before Captain Jerome Richard on October 22, 1945. The affidavit
was made in Japanese through interpreter Tadashi Yabi. The defense objected to the admission of said affidavit, invoking to said
effect article 25 of the Articles of War prohibiting the introduction of depositions by the prosecution in a capital case in
proceedings before a court martial or a Military Commission. (Exhibit L and N.)

Again on the same first day of trial, hearsay evidence was offered, defense counsel objected, but the objection was again
overruled. (Exhibits O and P.) The defense counsel alleged then that the admission of hearsay evidence was violative of Article of
War 38, the manual for the court-martial, and the rules of evidence in criminal cases in the district courts of the United States. It is
alleged by petitioner that violations of legal rules of evidence have continued and are continuing during the trial.

At the opening of the trial, "the prosecution stated that no notice of impending trial had been given the protecting power of the
Japan by the United States," such notice being required by article 60 of the Geneva Convention of July 27, 1929, and of
paragraph 133 of the Rules of Land Warfare, United States War Department.

2. REMEDIES PRAYED FOR

After alleging the above-mentioned facts, petitioner maintains that his confinement and trial as a war criminal are illegal and in
violation of articles 1 and 3 of the Constitution of the United States and the Fifth Amendment thereto, and a certain other portions
of said Constitution, and laws of the United States, and article 3 of the Constitution of the Philippines and certain other portions of
said Constitution and laws of the Philippines Islands, and of certain provisions of the Geneva Convention of July 27, 1929, in that:

(a) There being no martial law, no Military Government of occupied territory and no active hostilities in the Philippines at the time
of the appoint the same, the commission is without jurisdiction.

(b) There being no charge of an offense against the laws of war by the petitioner, the commission is without jurisdiction.

(c) The rules of procedure and evidence under which the Military Commission purports to be acting deny the petitioner the fair
trial guaranteed by the Constitution of the United States and the Constitution of the Philippines, and are in violation of Articles of
War 25 and 38 and of other provisions of the laws of the United States and of the Philippines.

(d) The respondent was granted to authority by the Commander in Chief, United States Army Forces, Western Pacific, to appoint
a military commission and /or to try the petitioner in the Philippine Islands, and the Commission is, therefore, without jurisdiction
to try this case.

(e) The United, States, not having given notice of the impending trial to the protecting power of Japan as made mandatory by the
Geneva Convention of July 27, 1929, relative to the treatment of prisoners of war, cannot properly and illegally try the petitioner
on the charge.

3. RULES OF INTERNATIONAL LAW

In the Rules of Land Warfare, paragraph 133 (Exhibit Q), it is provided that "at the opening of a judicial proceeding directed
against a prisoner of war the detaining power shall advise the representative of the protecting power thereof as soon as possible,
and always before the date set for the opening of the trial," and "at all events, at least three weeks before the opening of the trial."

Article VIII of the Convention respecting the laws and customs of war on land, agreed in The Hague on July 29, 1899, provides:
"Prisoners of war shall be subject to the laws, regulations, and orders in force in the army of the State into whose hands they
have fallen.

Section 59 of General Orders No. 100, dated April 24, 1863, containing instructions for the government of armies of the United
States in the field provides: "A prisoner of war remains answerable for his crimes committed against captor's army or people,
committed before he was captured, and for which he has not been punished by his own authorities."

Secretary of State Daniel Webster, in a communication addressed to Mr. Thompson, Minister to Mexico, on April 5, 1842, said:
"The law of the war forbids the wounding, killing, impressment into the troops of the country or the enslaving or otherwise
maltreating of prisoners of war, unless they have been guilty of some grave crime; and from the obligation of this law no civilized
state can discharged itself."

4. IN ANCIENT GREECE AND ROME

Many of the basic ideas which prevail today in the customs and usages of nations and became part of the international law
emerged from the human mind centuries before the Christian Era. Such is the idea that prisoners of war are entitled to humane
treatment, that treasons of war should be discountenanced, and that belligerents must abstain from causing harm to non-
combatants.

On his return to Peloponnesus in 427 B. C., Alcibiades touched at Mayonnesus and there slew most of the captives taken on his
voyage. According to Thucydides, the Samian exiles remonstrated with him for putting to the death prisoners who have not been
in open hostilities against him.

The same historian narrates that the year before, the Mytileneans of Lesbos revolted from Athens, but they were obliged to
capitulate in the following year to Paches, who dispatched to Athens over a thousand prisoners. Their disposal provoked
discussion in the Athenian assembly. At the instigation of Cleon, the demagogue and the former opponent of Pericles, an order
was issued to slaughter not only the men who arrived in Athens, but the entire made population of Mytilene that was of military
age, and to enslave the women and children. The execution of the order was delayed, and another assembly was called. There
an amendment of Theodotus was carried, and the previous order countermanded.

The roman treatment of prisoners was less rigorous than the Greek. As stated by Virgilius, "the Roman policy from the first was,
on the one hand, debellare super bos, to subdue the proud and arrogant peoples and, on the other,parcellare subiectes, to spare
those who have submitted."

"Dionisius states that a rule existed in Rome as early as the time of Romulus, which prohibited the putting to death or enslaving
on men captured in the conquered cities, and also the devastation of their territories; it provided, on the contrary, for the sending
of inhabitants, either to take possession by lot of the some part of the country, for making the conquered cities Roman colonies,
and even for conceding to them some of the privileges Roman citizenship." (Philipps on the International Law and Custom of
Ancient Greece and Rome, Vol. II, p. 254.)

In 407 B.C. the Spartan commander Callicraditas took the town of Methymna by storm. In spite of the persuasion of his allies,
according to Xenophon, he refused to the sell the Athenian garrison and Methymnaean citizens as slaves, declaring that so long
as he exercises the command no Greek should ever be reduced to slavery. Grote in his History of Greece could not refrain from
praising this gesture of the Macedonian admiral by saying: "No one who has familiarized himself with the details of Greecian
warfare can feel the full grandeur and sublimity of this proceeding . . . It is not merely that the prisoners were spared and set free .
. . It is that this particular act of generosity was performed in the name and for the recommendation of Pan-Hellenic brotherhood
and Pan-Hellenic independence for the foreigner . . . It is, lastly, that the step was taken in resistance to the formal requisition on
the part of his allies." (History of Greece, Vol. VI p. 387.)

Philip, the Macedonian King, liberated Athenian prisoners without ransom after the taking of Olynthus in 348 B.C. and ten years
later after the Battle of Chaeronee, he dismissed the prisoners with all their baggage.

Xenophon quotes Agesileus reminding his soldiers that "prisoners were meant to be kept, and not criminals to be punished." And
Pausanias narrates that when Epaminondas, the greatest Theban general, had gathered together, he nominally assigned to each
of the men he captured there a different nationality, and set them all free, and there are cases where captives were dismissed on
parole to have chance of finding ransomers.

Among the Greeks much was done to humanize warfare, and to remove from it the atrocities which prevailed amongst the most
of the nations antiquity. The Oracle of Delfi refused to listen to the Milesians as they had not duly expiated the excesses
committed in their civil wars, though it responded to all, others, even to barbarians, who consulted it. "C'etait comme
l'excommunication du paganisme", comments Leurent (Vol. II, p. 135).

Poets, philosophers, artist, and men of intellectual distinction in general, even though they became invested with enemy
character on the outbreak of war, were honored and respected. In 335 B.C. Alexander the Great destroyed Thebes, but he left
Pindar's house uninjured and honored the poet's descendants. In ancient Hellas was already known the practice of neutralizing
cities and protecting them from the ravages of war. Temples, priest, and embassies were considered inviolable. The right
sanctuary was universally recognized. Mercy was shown to suppliant and helpless captives. Safe-conducts were granted and
respected. Burial of dead was permitted, and graves were unmolested. It was considered wrong to cut off or poison the enemy's
water supply, or to make use of poisonous weapons. Treacherous strategems of whatever description were condemned as being
contrary to civilized warfare. Poets and philosophers, orators and historians proclaimed humane doctrines. Plato constructed his
ideal republic on the basis of what he conceived to be perfect justice. Aristotle condemned the principle of retaliation as being
antagonistic to true justice. Euripides speaks of excesses in war not only as acts of intrinsic wickedness and transgression
against universal law, but, indeed, as a suicidal folly on the part of the offender. In one of his dramas he makes Poseidon declare:
"But foolish is the mortal who lays waste cities, temple, and tombs, the sanctuaries of the dead; for having consigned them to
solitude, he is the one himself to perish afterwards."

The mild and clement nature shown by Caesar to many belligerent peoples was recognized even by his political enemy Cicero to
whom he wrote: You are not mistaken about me . . . . Nothing is far from my nature than cruelty . . . . I am told that some
prisoners I set free seize the first opportunity to take up arms against me; nevertheless, I shall not renounce my policy."

The Roman conduct Roman conduct far transcended in its civilized and humane character that of the German leader Arminius,
who is reported by Tacitus to have burned to death and otherwise barbarously slain the centurions and tribunes of the Varian
legions, and nailed the skulls to trees. The sanction of Roman jurisprudence and the submission to the fundamental principles of
justice proved effective.

Livy narrates that in 393 B.C. a certain school master of Falerii, who was in charge of the sons of the principal citizens of the
town, took the opportunity to lead them to the Roman camp and threw them into the power of the enemy. The roman general
Camillus, indignant at this treason, ordered the boys to drive their master back to the town, and flog him all the way. There were,
he pointed, laws of war as well as of peace, and the Romans had learn to put them into practice not less justly than bravely —
"sunt et belli, sicut pacis, iura; iusteque, ea, non, minus, quam fortiter, didicimus gerere."

When Adgantestrius made an offer to the Romans Senate to poison Arminius, according to Tacitus, he was at once informed that
it was not by secret treachery but openly by arms that the Romans proceeded against their enemies. The same historian
mentioned the fact that the Romans generals rejected the scheme, suggested by the King's physician, of poisoning Pyrrhus (280
B.C.) and even delivered up the traitor, Pyrrhus, in return for the Roman generosity, allowed his prisoners to go to Rome on
parole in order to celebrate the Saturnalia; after which, they, faithfully returned.

5. UNQUENCHABLE THIRSTINESS OF PERFECTION. — PETITIONER ENTITLED TO LEGAL GUARANTEES

Impelled by irrepressible endeavors aimed towards the ideal, by the unconquerable natural urge for improvement, by the
unquechable thirstiness of perfection in all orders of life, humanity has been struggling during the last two dozen centuries to
develop an international law which could answer more and more faithfully the demands of right and justice as expressed in
principles which, weakly enunciated at first in the rudimentary juristic sense of peoples of antiquity, by the inherent power of their
universal appeal to human conscience, at last, were accepted, recognized, and consecrated by all the civilized nations of the
world.

Under these principles, petitioner General Tomoyuki Yamashita is entitled to be accorded all the guarantees, protections, and
defenses that all prisoners should have according to the customs and usages, convention and treaties, judicial decisions and
executive pronouncements, and generally accepted opinions of thinkers, legal philosophers and other expounders of just rules
and principles of international law. The seriousness or unfathomable gravity of a charges against him, the unthinkable magnitude
of the wholesale murders, rapes, and destructions for which he is called to answer, the beastly massacres and horrors by which
he was thrown from the pedestal of military glory as the "Tiger of Malaya" into the bottom of perversity of a human monster, must
not be taken into consideration, must all be forgotten, in order that true justice may be administered in this case.

6. WAR CRIMINALS

P align="justify">"There is very little limitation on what a victorious nation can do with a vanquished State at the close of a war.
One shudders to think what Germany and Japan would do if they were the victors! But the common law of nations probably
requires a fair trial of offenders against war law as a prerequisite to punishment for alleged offenses; and that Geneva Convention
so prescribed in the case of prisoners of war. But in the final analysis a decent respect for the opinion of mankind and the
judgment of history is, in effect, a victorious belligerent's main limitation on its treatment of the surrendered at the close of a war;
and this is self-imposed. The United Nations are solemnly committed to the vindication and the rule of law which has been
ruthlessly destroyed by the Nazis and Japanese." (Sheldon Glueck, War Criminals, p. 77.).

"Formalized vengeance can bring only ephemeral satisfaction, with every probability of ultimate regret; but vindication of law
through legal process may contribute substantially to the re-establishment of order and decency in international relations."
(Report of the Subcommittee on the Trial and Punishment of War Crimes, 37 Am. J. Int. L. [1943], 663, 666.)

"Centuries of civilization stretched between the summary slaying of the defeated in a war, and the employment of familiar process
and protections of justice according to law to air the extent and nature of individual guilt . . . and in the civilized administration of
justice, even the most loathsome criminal caught redhanded must be given his day in court and an opportunity to interpose such
defenses as he may have." (Sheldon Glueck, Id., p. 78.)

7. ALLIED PRONOUNCEMENTS

According to a number of official pronouncements by United Nations' statesmen, the vast majority of offenders will be tried in the
domestic criminal or military tribunals of the injured nations. Thus on August 21, 1942, President Roosevelt, in condemning the
crimes committed against the civil population in occupied lands, solemnly announced that "the time will come when the criminals
will have stand in courts of law in the very countries which they are now oppressing, and to answer for their acts."

On September 8, 1942, Mr. Churchill promised that "those who are guilty of the Nazi crimes will have to stand up before tribunals
in every land where the atrocities have been committed."

The Moscow Declaration of November 1, 1943, sternly warned that: "at the time of granting of any armistice to any government
which may set up in Germany, those German officers or men and members of the Nazi party, who have been responsible for or
have taken a part (in the various) atrocities, massacres and executions will be sent back to the countries in which their
abominable deeds according to the laws of these liberated countries and of the free governments which will be erected therein,"
and that "the Allied Powers will pursue them to the utmost ends of the earth and will deliver them to the accusers in order that
justice may be done."

The American members of commission on responsibilities appointed at the close of World War I, had strenuously opposed the
trial of German war criminals in an international high tribunal on the grounds that it was unprecedented and that there existed no
international statute or convention making violations of the laws and customs of warfare international statute or convention
making violations of the laws and customs of warfare international crimes defining such offenses more specifically than the
definitions to be found in the prohibitions of the unwritten or written law of nations affixing a specific punishment to each crime,
and giving jurisdiction to a world court.

But Doctor Glueck is of opinion that "If the Germans were to try an American soldier for violating German statutes implementing
the laws and custom of warfare in a newly established type of military tribunal, the accused would not be heard to complain that
he had been set up Provided the international tribunal affords as adequate a trial as the accused would have had in the court of
any injured belligerent he has no valid ground for complaint."(P. 116.).

"One of the arguments — he continues — advanced by the American participants on the commission on responsibility at the
close of World War I, against the establishment of an international criminal tribunal was that it was unprecedented. The atrocities
committed by Axis powers led by Germany, even by comparison with their behavior in World War I, are unprecedented. Can
history show a better age than our own to initiate a series of much-needed precedents? Few symbols of this new era which
heralds the neighborly cooperation of civilized people in the vindication of the laws of civilized nation would be more impressive
than an international criminal court, in which the plaintiff would be the world community. . . . The international criminal court would
be a more vivid symbol of the reign of justice of an international plane than even the permanent court at The Hague has been. In
domestic polity, the administration of criminal justice of the strongest pillar of government. The doing of an international plane
under international auspices is even more important. It is indispensable to the survival, in the intercourse of nations, of the very
traditions of law and justice. The besmirching of the prestige of international law is not the least of the evils perpetrated by the
Axis power led by Nazi Germany. The peerless and efficient administration of justice in the case of Axis war criminals is today
indispensable as a token to the peoples of the world, a sign that crimes committed by one country's subject against the people of
another member of the family of nations will be relentlessly punished even though they run into huge numbers, were committed
by men in uniform, and are instigated by a Fuehrer endowed by himself and his intoxicated followers with the attributes of a
demigod." (Page 178.)

"Adequate law for use by an international court now exist; and its enforcement by such a tribunal would violate no fundamental
tenets of civilized nations. The law for an international tribunal can be drawn from the rich reserviors of common and conventional
law of nations and the principles, doctrines and standards of criminal law that constitute the common denominator of all civilized
penal codes.

"The punishment to be applied by domestic military and civil courts depend upon local law and practice. Those to be imposed by
the international tribunal could be based either upon the punishments permitted by the laws and customs or warfare or upon
those provided for crimes of similar nature and gravity by the law of the accusing State, taking into account, also, where
necessary individual instances, the law of the defendants States." (Page 181.)

8. NO SURPRISES TO PETITIONER

Petitioner in this case cannot allege ignorance of the fact that the criminal acts alleged in the specified charges against him are
punishable by law, not only in all civilized nations, but in his own country.

Since January 1, 1882, the Japanese Government had been enforcing a Criminal Code based on the Code of Napoleon of 1811,
prepared by the French jurist M. Boissonade, said criminal code having been superseded by a new one on October 1, 1908.

Under the last, arson may be punished with death (article 108); rape is heavily punished (articles 176, 177 and 178); and murder
or homicide may be punished with death or penal servitude for life (article 109). These offenses and many others, punished by
our Penal Code, are known to the Japanese as crimes, which in Japanese is tsumi.

From the Lauterpacht edition (1944) of Oppenheim's International Law, Vol. II, pp. 450-458, we quote:

SEC. 251. In contradistinction to hostile acts of soldiers by which the latter do not lose their privilege of being
treated as lawful members of armed forces, war crimes are such hostile or other acts of soldiers or other
individuals as may be punished by the enemy on capture of the offenders. They include acts contrary to
International Law perpetrated in violation of the law of the criminal's own State, such as killing or plunder for
satisfying private lust and gain, as well as criminal acts contrary to the laws of war committed by order and on
behalf of the enemy State. To that extent the notion of war crimes is based on the view that States and their
organs are subject to criminal responsibility under International Law.

SEC. 253. The fact that a rule of warfare has been violated in pursuance of an order of the belligerent
Government or of an individual belligerent commander does not deprive the act in question of its character as a
war crime; neither does it, in principle, confer upon the perpetrator immunity from punishment by the injured
belligerent. A different view has occasionally been adopted in military manuals and by writers, but it is difficult to
regard it as expressing a sound legal principle. Undoubtedly, a Court confronted with the plea of superior orders
adduced in justification of a war crime is bound to take into consideration the fact that obedience to military
orders, not obviously unlawful, is the duty of every member of the armed forces and that the latter cannot, in
conditions of war discipline, be expected to weigh scrupulously the legal merits of the order received; that rules of
warfare are often controversial; and that an act otherwise amounting to a war crime may have been executed in
obedience to orders conceived as a measure of reprisals. Such circumstances are probably in themselves
sufficient to divest the act of the stigma of a crime. Also, the political authorities of the belligerent will frequently
incline to take into consideration the danger of reprisals against their own nation which are likely to follow as a
 measure of retaliation for punishment of war crime durante bello. However, subject to these qualifications, the
question is governed by the major principles that members of the armed forces are bound to obey lawful orders
only and that they cannot therefore escape liability if, in obedience to a command, they commit acts both violate
unchallenged rules of warfare and outrage the general sentiment of humanity. To limit liability to the person
responsible for the order may frequently amount, in practice, to concentrating responsibility on the head of the
State whose accountability, from the point of view of both international and constitutional law, is controversial.

SEC. 257. All war crimes may be punished with death, but belligerents may, of course, inflict a more lenient
punishment, or commute a sentence of death into a more lenient penalty. If this be done and imprisonment take
the place of capital punishment, the question arises whether persons so imprisoned must be released at the end
of the war, although their term of imprisonment has not yet expired. Some answer this question in the affirmative,
maintaining that it could never be lawful to inflict a penalty extending beyond the duration of war. But is believed
that the question has to be answered in the negative. If a belligerent has a right to pronounce a sentence of a
capital punishment, it is obvious that he may select more lenient penalty and carry it out even beyond the duration
of the war. It would in no wise be in interest of humanity to deny this right, for otherwise belligerents would be
tempted always to pronounce and carry out a sentence of capital punishment in the interest of self-preservation.

SEC. 257a. The right of belligerent to punish, during the war, such war criminals are fall into his hands is a well-
recognized principle of International Law. It is a right of which he may effectively avail himself after he has
occupied all or part of enemy territory, and is thus in the position to seize war criminals who happen to be there.
He may, as a condition of the armistice, impose upon the authorities of the defeated State the duty to hand over
persons charged with having committed war crimes, regardless of whether such persons are present in the
territory actually occupied by him or in the territory which, at the successful end of hostilities, he is the position to
occupy. For in both cases the accused are, in effect, in his power. And although normally the Treaty of Peace
brings to an end the right to prosecute war criminals, no rule of International Law prevents the victorious
belligerent from imposing upon the defeated State the duly, as one of the provisions of the armistice or the Peace
Treaty, to surrender for trial persons accused of war crimes. In this, as in other matters, the will of the victor is the
law of the Treaty. It is not to be expected that he will concede to the defeated State the corresponding right to
punish any war criminals of the victorious belligerent. The resulting inequality is the unavoidable concomitant of
the existing imperfections of international organization and of the institution of war itself. But the victorious
belligerent may achieve a substantial approximation to justice by making full provision for a fair trial of the
surrender enemy nationals, and by offering to try before his tribunals such members of his own armed forces are
accused of war crimes. Such conduct may go a long way towards reducing substantially the inequality of
treatment as between the victor and the vanquished.

The permissible acts of warfare are, by the authority of long and common usage, strictly limited. The treaties entered into
between members of the family of nation are but specific definitions and reinforcements of the general common law nations, the
"unwritten" rules of warfare, which for centuries have limited the method and manner of conducting wars. The common law of
nations, by which all states are and must be bound, dictates that warfare shall be carried on only in accordance with basic
considerations of humanity and chivalry.

These matters are of course well known to the German and Japanese warlords and statement, as well as to their henchmen.
They will also believe the brutal pronouncements of German military philosophy in such cynical handbooks for the guidance of
officers as the Kriegsbrauch im Lambkrege in which, although Germany had to observe the provisions of the Hague Convention
regulating warfare, their human tenets of international law are referred to as expressed generally "sentimentalism and flabby
emotionalism " and are declared to be "in fundamental contradiction with the nature of war and its objects"; and in which the
German officer is sternly warned to "guard himself against exaggerated humanitarian ideas."

From Doctor Glueck's book we quote:

If there was a domain to which Mr. Justice Holmes' illuminating dictum about a page of history being worth a
volume of logic is applicable, it is that concern the war criminal's problem (P. 12.) The law of nations has a long
 way to go before it can claim to be coherent and fixed system. Its relevant tenets were develop under the
presupposition the members of the community of nations are governed by self-imposed restraints in accordance
with international law; but the emergence of states with a national policy of deliberate lawlessness and with their
invasion of 'total war in the service of a program of world enslavement, compels a realistic modification of
inadequate doctrines and principles of the law (P.13). Nobody who has made a thorough study of the status of the
branch of law of nations involved can adhere to the view that it is anywhere near as well developed or subject to
the same techniques of "rigorous legal logic" as the more sophisticated branches of private law. (P14). On
September 18, 1942, Churchill assured the House of Commons that "those who are guilty of the nazi crimes will
have to stand up before tribunals in very land where their atrocities have been committed, in order that an
indelible warning men given to future ages and that successive generations of men may say, "so perish all who do
the like again."

On January 25, 1919, the preliminary peace conference of World War No. I set upon a commission of fifteen to inquire into and
report upon violations of international law chargeable to Germany and her allies. This commission recommended the setting up of
a high tribunals which was to apply "the principles of the law of nation as the result from the usages established among civilized
peoples, from the laws of humanity and from the dictates of public conscience." Upon a finding of guilty, the court could sentence
to such punishment as could be imposed foe the offense in question "by any court in any country represented on the tribunal or in
the country of the convicted persons." The recommendation was not adopted. They were opposed by American and Japanese
members. The Japanese members raised the basic question, among others, "whether international law recognizes a penal law as
applicable to those who are guilty." And it seemed to them "important to consider the consequences which would be created in
the history of international law the prosecution for breaches of the or customs of war enemy states before a tribunal constituted
by the opposite party," an argument rejected at the treaty.

In the Treaty of Versailles there were inserted the punitive articles 228, 229 and 230. By the article 288 the German Government
recognized "the right of the allied and associated powers to bring before the military tribunals persons accused of having
committed acts in violation of the laws to "punishments laid down by law." Article 299 provided for the trial of accused in military
tribunals of the power against whose the nationals the alleged crimes were committed and the specified that "in every case the
accused will be entitled to name his own counsel."

9. SOME CONCLUSIONS

From all the foregoing, with regards to the petition for a writ of habeas corpus, we conclude:

(1) That petitioner Yamashita, if he is responsible for the acts imputed to him in the charges filed before the Military Commission
can properly and justly be prosecuted and punished for them.

(2) That the fact that he has the Commander in Chief of a belligerent army does not exempt him from criminal liability either for
violations of international law or for the commission of crimes defined and punishable under the laws of the country where
committed.

(3) That his rights and privileges as a prisoners of war, under the Geneva Convention, are not incompatible with nor are violated
by his prosecution for the international and domestic crimes committed by him.

(4) That under the principles of natural law, all persons guilty of such crimes are amenable to be arraigned before a court of the
justice and, after a fair trial, if found guilty, should bear the full weight of the law.

(5) That petitioner Yamashita can be prosecuted before the Philippine civil courts in the like manner as a common criminal and
the punished under the provisions of the Philippine Penal Code.

(6) That the military Commission set up to try him possesses a jurisdiction which is concurrent with that of the Philippine civil
courts, and the choice of the competent tribunal where he should be tried, which a mere procedural technically, is left to the wise
discretion of the officials in charge of the prosecution.
(7) That in violation of the law of nations, the offended party is the people of the whole world, and the case against petitioner
could be properly entitled as Humanity versus Tomoyuki Yamashita," and no person in position to prosecute the violators can
honesty shirk the responsibility of relentlessly prosecuting them, lest he be branded with the stigma of complicity.

(8) That the absence of a codified International Penal Code or of a criminal law adopted by the comity of nations with specific
penalties for specific and well-defined international crimes, is not a bar to the prosecution of war criminals, as all civilized nations
have provided in their laws the necessary punishment for war crimes which, for their very nature, cease to be lawful acts of war,
and become ordinary crimes with the extraordinary character of having been committed in connection with war, which should be
considered as an aggravating circumstance.

10. THE SUPREME COURT'S JURISDICTION

Whether this Court has jurisdiction or not to take cognizance of this case is the first question raised herein.

We believe that no doubt should be entertained that it has.

The petition pertains to a judicial case, to a case wherein justice is to be administered. It is a criminal case initiated for the
prosecution and punishment of Tomoyuki Yamashita, Commander Chief of the Japanese Army in the Philippines, alleged as the
greatest war criminal in the Pacific and in the Whole eastern hemisphere.

The case calls for the exercise of the judicial power, one of the three government powers, firstly defined by Aristotle and upon
which Montesquieu elaborated later in his "Spirit of the Laws."

The judicial power shall be vested in one Supreme Court and in such inferior courts as may be established by law.
(Art. VIII, sec. 1, Constitution of the Philippines.)

By this provision, the judicial power is primarily vested in the Supreme Court, which exclusively exercise the whole power. But it
also authorizes the enactment of laws sharing the power to inferior courts, which include all other courts and tribunals of all
description, whether ordinary or extraordinary, whether civil or criminal, whether industrial or military, whether designated as
"courts" or simply as "commissions."

The Congress shall the power to define, prescribe, and apportion the jurisdiction of the various courts, but may
not deprive the Supreme Court of its original jurisdiction over cases affecting ambassadors, other public ministers,
and consuls, nor of its jurisdiction to review, revise, reverse, modify, or affirm on appeal, certiorari, or writ of error,
as the law or the law of the rules of court may provide, final judgments and decrees of inferior courts in —

(1) All cases in which the constitutionality or validity of any treaty, law, ordinance, or executive order or regulation
is in question.

(2) All cases involving the legality of any tax, impost, assessment, or toll, or any penalty imposed in relation
thereto.

(3) All cases in which the jurisdiction in which of any trial court is in issue.

(4) All criminal cases in which the penalty imposed is death or life imprisonment.

(5) All cases in which an error or question of law in involved.

(Art. VIII, sec. 2, Constitution of the Philippines.)

From the foregoing it is evident that this Supreme Court has jurisdiction, which Congress is powerless to abolish, to review,
revise, reverse, modify, or affirm any and all actuations of judicial nature of the party respondent and the Military Commission
before whom petitioner Yamashita tried is for his life. In facts, this Supreme Court's jurisdiction extends, not only to courts and
judicial institutions, but to all persons, and agencies which form part of the whole machinery of the administration of the justice, in
so far as is necessary to the administration of the justice.

We have jurisdiction over the person of respondent Lt. Gen. Wilhelm D. Styer, not as to the discharge of his military functions and
duties, but in regards to his official acts in connection with the administration of justice in the criminal case against Tomoyuki
Yamashita, and that jurisdiction became effective since November 13, 1945, his refusal to sign receipt for the summons and the
refusal of the subordinate officers in his officers in his office to accept said and the summoning of said military commission.

No one questions our jurisdiction over the person of petitioner, he having voluntarily submitted himself to it by his petition.

With respect to the military commission trying him, under the questions raised in the petition, it is a proper party respondent and
the petitioner should have included it as among the party respondents. But petitioner's omission is just a technical error of no vital
consequence, because under the judicial rules, we can order the inclusion and the summoning of said military commission.

The amici curiae want to us to be cautious and slow in exercising jurisdiction in this case, in view of the possibility that our orders
might be disregarded by the military officers concerned. The fear entertained by the amici curiaemight find some ground in the
attitude of respondent General Styer, when the latter refused to sign receipt for the summons or to receive the papers thereof.

The same warning has been made in a case decided by this Supreme Court several weeks ago. In answer to the warning, we
can do no better than to repeat what we said therein.

It has been argued with energy by those who oppose our issuing the order for the release of the petitioners, that if
we decide to issue it, the United States Army might refuse to set them at liberty, with the result that the order of
release will become a mere scrap of paper and the Supreme Court of the Philippines will be placed in the
unenviable position of utter ridicule. We have to answer in the most definite way that we can not agree with such a
narrow point of view.

But suppose the most unexpected should happen, that there might be members of the United States Armed
Forces who will be blind enough to ignore the order of this Supreme Court, to make a mockery of the
administration of justice, shall that unthinkable hypothesis deter us from doing our duty? Our answer is a simple.
No. No one and nothing in the whole world, neither the all-powerful army which humbled Germany and forced the
surrender of the "invincible" Japanese Army, nor weapons more dreadful than the atomic bomb, the menace of an
imminent catastrophe, shall be powerful enough to make us flinch from complying with our plain duty as Justices
of the Supreme Court. We must do our duty as our conscience dictates, without fear nor favor. It is our duty to
make reason and right supreme regardless of consequences. Law and justice might suffer setbacks, endure
eclipses, but at the end they shall reign with all the splendors of the real majesty. (Raquiza vs. Bradford, G.R. No.
L-44, pp. 76, 88, ante, dissenting.)

We recognized no one to be above the law. Mere military might cannot change and nullify the course of justice. In the long run,
everybody must have to bow and prostrate himself before the supreme majesty of the law.

11. HABEAS CORPUS

In praying for a writ of habeas corpus, petitioner wants us to order that he be returned from the status of an accused war criminal
to that of a prisoner of war.

He is not seeking release from confinement.

We are of opinion that the petition for a a writ of habeas corpus must be denied. The purpose of said writ is to restore liberty to a
person who is being deprived of it without due process of law. Such is not the case of petitioner. He does not complain of any
illegal detention or deprivation of personal freedom.

He is deprived of his liberty because he is, according to his own allegation, a prisoners of war. Whether or not he should be
accused as a war criminal, is not a proper question to be raised in habeas corpus proceeding.

The fact that petitioner is an accused war criminal does not change his status as a war prisoner. He remains to be so, whether he
is prosecuted as a war prisoner because he was placed and regarded as war criminal or not.

Not having lost his status as a war prisoners because he was placed and regarded as a war criminal, there is no reason for
ordering his reversion to a status which he did not cease to retain since his surrender or capture on September 2, 1945.

For these reasons we voted for the denial of the writ of habeas corpus.

12. JURISDICTION OF THE MILITARY COMMISSION

We are opinion that the Military Commission conducting the trial of petitioner has jurisdiction to try him for the crimes alleged in
the 123 items in the specified charges filed against him.

From the very allegations and exhibits of petitioner it appears that said Military Commission was created and organized by orders
of General Douglas MacArthur, Commandeer in Chief of the United States Army Forces in Western Pacific.

We are of opinion that said Commander in Chief has authority to convene said Military Commission.

Petitioner contends that "there being no marital law, active hostilities in the Philippine Islands at the time of the appointment of the
commission, there was no authority to appoint the commission, and the commission in without jurisdiction.

We do not agree with the contention. Neither martial law, nor the existence of Military Government, nor the waging of active
hostilities is a prerequisite for exercising the power of appointing a Military Commission.

In the absence of pre-established tribunals clothed with authority to try war criminals, Military Commission may be established for
said purpose, and unless organized by the Chief Executive himself they may be organized by the military Commander in Chief,
representing said Chief Executive.

The American Representatives (Lansing and Scott) in the Allied commission of 15 organized after the first World War, although
opposed, with the Japanese Representatives, the creation of an international criminal court, which became abortive, were of
opinion that war criminals may be tried by Military Commission of the offended countries.

13. COLLECTIVE RESPONSIBILITY

Although we maintain that the Military Commission here in question has jurisdiction to try the case for war crimes against
petitioner Yamashita, in the regulations governing the trial of war criminals, Exhibit F, there are several features which should not
be left unchallenged. Section 4-b, under the title of "Jurisdiction" of Exhibit F, provides: "Any military or naval unit or any official or
unofficial group or organization whether or not still in existence, may be charged with criminal acts or complicity therein and tried
by a Military Commission."

This provision, undoubtedly, advances the principle of collective responsibility in contradistinction to the principle of individual
criminal responsibility.

Under the principle of individualized criminal responsibility, no person may be convicted of any offense without due process of law
and without proving in said process in which he should also enjoy the guarantee of equal protection of the laws, that the he is
personally guilty of the offense.

Under the principle of collective criminal responsibility, any member of any social group or organization may be convicted without
any hearing if, in a process where he did not have his day in court, the social group or any other member thereof is found guilty of
an offense.

During the Japanese regime, when a member of a family was found by the military police, with or without ground, as responsible
for an alleged offense or being a member of a guerrilla unit, the remaining members of his family were also made to suffer.

When a town or barrio was suspected of harboring guerrilleros, the Japanese would punish the whole town or barrio by mowing
down all the inhabitants, or burning all the houses, or, at least, subjecting all the male inhabitants thereof to brutal zonings. The
ruins of Manila are graphic illustrations of how the principle worked.

It is unnecessary to elaborate more to show the grave iniquities to which the principle of collective criminal responsibility leads.

We are of opinion that said principle violates the constitutional guarantee of due process of law and therefore, we should have
issued a writ of prohibition enjoining the Military Commission from exercising the unconstitutional jurisdiction granted in section 4-
b of Exhibit F.

14. EVIDENCE

Section 16 (1), under the title of "Evidence," provides what may be admitted as evidence as follows: "Any document which
appears to the commission to have been signed or issued officially by any officer, department, agency, or member of the armed
forces of any government, without proof of the signature or of the issuance of the document."

The following may also be admitted as evidence according to section 16 (3): "Affidavits depositions, or other statements taken by
an officer detailed for that purpose by military authority."

We are of opinion that the admission of documents as evidence, "without proof of the signature or of the issuance of the
document," is a denial of the due process of law constitutionally guaranteed to all persons before he could be deprived of his life,
liberty, or property. The authenticity or genuiness of a document is an essential element in order that it may acquire the nature of
an evidence. Proof of signature of the issuance of the document is essential to show its genuiness.

The admission of affidavits "or other statements taken by an officer detailed for that purpose by military authority" is clear violation
of the constitutional guarantee that in all criminal prosecution that accused shall enjoy the right" to meet the witness face to face."
(Art. III, sec. 1 [17], Constitution of the Philippines.) The Military Commission accepted as evidence against accused Yamashita
the affidavits of Naokata Utsunomiya (Exhibits L and M), denying said Yamashita the constitutional right "to meet face to face
affiant Naokata Utsunomiya.

According to section 16 (4) of the regulations (Exhibit F); "Any diary, letter or other document appearing to the to the commission
to contain information relating to the charge," may also be admitted as evidence. This provision denies also to the accused the
constitutional guarantee of meeting a witness face and, therefore, of cross-examining him.

We are of opinion that the admission of evidence above-mentioned must be prohibited, and that a writ of prohibition issued by the
Court is a proper remedy.

15. HEARSAY

The regulations (Exhibit F) authorizes also the admission of hearsay as evidence.

Section 16-d of said regulation provides: "If the accused is charged with an offense involving concerted criminal action upon the
part of a military of naval unit, or any group or organization, evidence which has been given previously at a trial of any member of
that unit, group or organization, relative to that concerted offense, may be received as prima facie evidence that the accused
likewise is guilty of that offense."

In section 16-e, the objectionable feature of a hearsay evidence is aggravated by the adherence to the principles of collective
criminal responsibility. It provides: "The findings and judgment of a commission in any trial of sa unit, group or organization with
respect to the criminal character, purpose or activities thereof shall given full faith and credit in any subsequent trial by that or any
other commission of an individual person charged with criminal responsibility through membership in such unit, group or
organization convicted by the commission, the burden of the proof shall shift to the accused to establish any mitigating
circumstances relating to his membership or participation therein."

We are opinion, too, that the Military Commission should be prohibited to follow the unjust procedures delineated in the above-
quoted provisions, the objectionable character of which was explicitly admitted even by the amicus curiae who appeared to argue
in this case in opposition to the granting of remedies sought by petitioner.

16. FUNDAMENTAL RIGHTS GUARANTEED TO EVERYBODY

No matter who the petitioner is, we are of opinion that he is entitled to all the safeguard of a fair trial.

The fundamental rights freedoms guaranteed in the Charter of the United Nations are guaranteed to all human beings, without
exception.

In his annual proclamation setting November 22, 1945, as Thanksgiving Day, President Truman, among other things, said:
"Liberty knows no race, creed or class in our country or in the world. In unity we found our first weapon, for without it, both here
and abroad, we were doomed. None have known this better than our very gallant dead, none better than their comrade Franklin
Delano Roosevelt. Our Thanksgiving has the humility of our deep mourning for them, our vast gratitude for them.

"Triumph over the enemy has not dispelled very difficulty. Many vital and far-reaching decisions await us as we strive for a just
and enduring peace. We will not fail if we preserve, in our own land and throughout the world, the same devotion to the essential
freedoms and rights of mankind which sustained us throughout the war and brought us final victory."

And Prime Minister Attlee, in the face of the potential destructiveness of the atom bomb, said before the English Parliament: "It is
well that we should make up our minds that in a war on the scale to that which we have just emerged every weapon will be used.
We may confidently expect the fullest destruction of great cities, death of millions and the setting back of civilization to an
unimaginable extent.

"No system of safeguards which could be devised will of itself — I emphasized of itself — provide an effective guarantee against
production of automatic weapons by a nation or nations bent on aggression.

"With the terrible march of the science of destruction, every nation will realize more urgently the overwhelming need to maintain
the rule of the law among nations and to banish the scourage of war from the earth.

"We have in prospect the meeting of United Nations Organization and there is an instrument which, if all are resolved to use it,
could establish the rule of the law and prevent war — I resolved."

In the eternal struggle between the principles of right and wrong, there no choice if humanity must survive. Lincoln said: "That is
the real issue that will continue in this country when these poor tongues of Judge Douglas and myself shall be silent. It is the
eternal struggle between these two principles, right and wrong, throughout the world. They are the two principles that have stood
face to face from the beginning of time."

When we voted for the granting of the writ of prohibition, we did it out of consistency, as the vibrant words of Jefferson must no
cease ringing ours in ours ears when he said: "What a stupendous, what an incomprehensible machine is man! who can endure
toil, famine, stripes, imprisonment, and death itself, in vindication of his own liberty, and, the next moment be deaf to all those
motives whose power supported him through his trial, and inflict on his fellowmen a bandage, one our of which is fraught with
more misery than ages of that which he rose in rebellion to oppose."

17. NEEDED SERVICE TO THE MORAL AND CULTURAL PURPOSES OF HUMANITY

If petitioner is tried and convicted under a process in which some of the recognized essential guarantees for a fair trial are
violated, it would produce a result opposite that expected by those who are following up the trials of all war criminals; the arousing
of a deep-rooted universal conviction that law must be supreme and that justice should be equally administered to each and very
member of humanity.

The peoples of all nations who are keenly watching the prosecution of Yamashita should be convicted, by conclusive evidence,
that said prosecution is not a mere parody of the administration of justice, devised to disguise the primitive impulses of
vengeance and retaliation, the instinctive urge to crush at all costs, no matter what the means, hated fallen enemy.

The prosecution, trial, and conviction of Yamashita must impress all the peoples of the world that the principle of law is
paramount, and supersedes and wipes out all other considerations in dealing with war or common criminals. Otherwise, their faith
in the supremacy of law as the invulnerable bulwark of all fundamental human rights will be shaken, and the moral position of the
victorious United Nations, the ethical value of the grandiose pronouncements of their leaders, and the profound significance of
the lofty ideals for which millions of their soldiers have fought and died, will be weakened and diminished to such an extent as to
make barren all the tremendous sacrifices made by so many countries and so many peoples in the last global hecatomb.

It was Ihering who, in his " LAW AS A MEANS TO AN END ," said that: "There is no human life which exist merely for itself,
every one is at the same time for the same of the world: every man in his place, however limited it may be, is a collaborator in the
cultural purposes of humanity . . . . I cannot imagine a human life so poor, so devoid of content, so narrow, so miserable, that it is
not of some good to some other life; even such a life has not seldom borne the world the richest fruit." (Page 60.)

So even the shameful exploits in the Philippines with which Yamashita ingloriously crowned his military career, at its peak when
he conquered Malaya and Singapore, and descended from the pedestal of the greatest Nippon military hero in all her history to
the moral abyss of that abominable monstrous figure, the greatest war criminal in Asia and in the Pacific, cannot put render some
service to the cultural purposes of humanity if, by his due trial in accordance with the elemental rules in the criminal procedure,
the sense of law and justice is further developed in the conscience of the present and future generations.

18. OUR VOTE

From all foregoing, when the resolution to dispose of this case was put to a vote, we concurred in the denial of the petition for a
writ of habeas corpus, and we voted for the granting of the writ of prohibition in order that the objectionable features in the trial
before the Military Commission may be eliminated, so that petitioner Yamashita may be given the full justice due to all human
beings.

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Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-1812 August 27, 1948

EREMES KOOKOORITCHKIN, petitioner,

vs.
THE SOLICITOR GENERAL, oppositor.

First Assistant Solicitor General Roberto A. Gianzon and Solicitor Florencio Villamor for appellant.
L. D. Lockwood and Manuel O. Chan for appellee.

PERFECTO, J.:

In August, 1941, appellee filed with the lower court a petition for naturalization, accompanied with supporting affidavits of two
citizens, copy of a declaration of intention sworn in July, 1940, and proper notice of the hearing. The petition was finally set for
hearing on December 18, 1941, but it was held on that date because the province was invaded by the Japanese forces on
December 14, and the case remained pending until the records were destroyed during the military operations for liberation in
March, 1945. The case was declared reconstituted on May 10, 1947, and the evidence was presented on August 28 and
September 30, 1947. On the same day resolution was issued granting the petition.

Although appellant was represented at the hearing and cross-examined the witnesses for the petitioner, he did not file an
opposition or presented any evidence.

The lower court made the findings of fact in the following paragraphs of its resolution:

Eremes Kookooritchkin applies for Philippine citizenship naturalization under the provisions of Commonwealth Act
473, as amended by Act 535.

The records shows that in August, 1941, he filed his petition for naturalization supported by the affidavits of ex-
Judge Jaime M. Reyes and Dr. Salvador Mariano, both residents of Camarines Sur. In the preceding year, in July,
1940 to be precise, he filed his declaration of intention to become a citizen of this country. Notice of the hearing
was published as required by law.

It was established at the hearing that the petitioner is a native-born Russian, having first seen the light of day on
 November 4, 1897 in the old City of St. Petersburg, Russia. He grew up as a citizen of the defunct Imperial
Russian Government under the Czars. World War I found him in the military service of this Government. In 1915
he volunteered for the Imperial Russian navy and was sent to the Navy Aviation School. He fought with the Allies
in the Baltic Sea, was later transferred to the eastern front in Poland, and much later was sent as a navy flier to
Asia Minor. In the latter part of the war, but before the Russian capitulation, he was transferred to the British Air
Force under which he served for fourteen months. When the revolution broke out in Russia in 1917, he joined the
White Russian Army at Vladivostok and fought against the Bolsheviks until 1922 when the White Russian Army
was overwhelmed by the Bolsheviks. As he refused to join the Bolshevik regime, he fled by sea from Vladivostok
to Shanghai and from this Chinese port he found his way to Manila, arriving at this port as a member of a group of
White Russians under Admiral Stark in March, 1923. He stayed in Manila for about seven months, then moved to
Olongapo, Zambales, where he resided for about a year, and from this place he went to Iriga, Camarines Sur,
where he established his permanent residence since May, 1925. He has remained a resident of this municipality,
except for a brief period from 1942 to July, 1945, when by reason of his underground activities he roamed
mountains of Caramoan as a guerrilla officer. After liberation he returned to Iriga where again he resides up to the
present time.

The applicant is married to a Filipino by the name of Concepcion Segovia, with whom he has one son named
Ronald Kookooritchkin. He is at present studying in Saint Agnes Academy, at Legaspi, Albay, a school duly
recognized by the Government.

The applicant is shop superintendent of A. L. Ammen Transportation Company, with about eighty Filipino
employees working under him. He receives an annual salary of P13,200 with free quarters and house allowance.
He also owns stocks and bonds of this and other companies.

The applicant speaks and writes English and the Bicol dialect. Socially he intermingles with the Filipinos,
attending parties, dances and other social functions with his wife. He has a good moral character and believes in
the principles underlying the Philippine Constitution. He has never been accused of any crime. On the other hand,
he has always conducted himself in a proper and irreproachable manner during his entire period of residence in
Camarines Sur, in his relations with the constituted authorities as well as with the community.

Although he could have lived in ease by maintaining good relations with the enemy by reason of his being
Russian-born during the years preceding the declaration of war by Russia against Japan, the applicant of his own
volition chose to cast his lot with the guerrilla movement and fought the enemy in several encounters in the
Province of Camarines Sur. He belonged to the guerrilla outfit of Colonel Padua with rank of major. Upon the
arrival of the forces of liberation he was attached to the American Army from April to June, 1945.

Although a Russian by birth he is not a citizen of Soviet Russia. He disclaims allegiance to the present
Communist Government of Russia. He is, therefore, a stateless refugee in this country, belonging to no State,
much less to the present Government of the land of his birth to which he is uncompromisingly opposed. He is not
against organized government or affiliated with any association which upholds and teaches doctrine opposing all
organized governments. He does not believe in the necessity or propriety of violence, personal assault or
assassination for the success or predominance of his ideas. Neither is he a polygamist or a believer in the
practice of polygamy. He is not suffering from any mental alienation or incurable contagious disease.

Appellant assigns four errors in the appealed resolution. We will consider them separately.

Appellant claims that the lower court erred in not finding that the declaration of intention to become a Filipino citizen filed by
appellee is invalid and insufficient as a basis for the petition of naturalization. The question calls for the application of the
following provision of section 5 of the Revised Naturalization Law:
 No declaration shall be valid until entry for permanent residence has been established and a certificate showing
the date, place and manner of his arrival has been issued.

Appellant alleges that no documentary or testimonial evidence was introduced to establish the fact that appellee had lawfully
been admitted into the Philippines for permanent residence.

In the reconstituted declaration (page 11, record on appeal) the following can be read:

I arrived at the Port of Manila on or about the first day of March, 1923, as shown by the attached certificate of
arrival or landing certificate of residence.

The records of the Bureau of Justice, where the declarations of intention to become a Filipino citizen were filed, had been lost or
destroyed during the battle for the liberation of Manila, and the certificate alluded to has not been reconstituted.

Appellant's contention that attachment of the certificate of arrival is essential to the validity of a declaration finds no support in the
wordings of the law, as the above-quoted section 5 of Commonwealth Act no. 473 uses the words "has been issued.

Appellee suggests that we would not consider the question here raised by appellant, the latter having failed to raise it in lower
court and points out that there is testimonial evidence showing appellee's arrival March, 1923, and that he was lawfully admitted
for permanent residence, and the testimony of petitioner has not been refuted. Appellee's alleges that the office of the President
has certified that it is a matter of record that petitioner was one of the Russian refugees who entered the Philippines under the
command of Admiral Stark, the facts regarding arrival of the latter fleet being a matter of common knowledge, widely publicized in
the newspapers at the time, of which this Court may properly take judicial notice under section 5 of Rule 123. When the fleet
entered the Philippine waters, it was met by a Governor General Wood who, later, took the matter up with the authorities in
Washington in lengthy correspondence, and the 1,200 persons manning the fleet were allowed to land and to remain in the
Philippines or proceed to other countries, except about 800 who were allowed to go to the United States and given free
transportation on the naval transport "Merritt." The ships of the fleet were sold in the Philippines.

The undisputed fact that the petitioner has been continuously residing in the Philippines for about 25 years, without having been
molested by the authorities, who are presumed to have been regularly performing their duties and would have arrested petitioner
if his residence is illegal, as rightly contended by appellee, can be taken as evidence that he is enjoying permanent residence
legally. That a certificate of arrival has been issued is a fact that should be accepted upon the petitioner's undisputed statement in
his declaration of July, 1940, that the certificate cannot be supposed that the receiving official would have accepted the
declaration without the certificate mentioned therein as attached thereto.

We conclude that petitioner's declaration is valid under section 5 of the Naturalization Law, failure to reconstitute the certificate of
arrival notwithstanding. What an unreconstituted document intended to prove may be shown by other competent evidence.

II

The second assignment of error touches upon two questions, that the lower court erred (1) in not finding that appellee has not
established a legal residence in the Philippines, and (2) in not finding that he cannot speak and write any of the principal
Philippine languages.

The first question has already been disposed of in the above discussion. Perusal of the testimonies on record leads to the
conclusion that petitioner has shown legal residence in the Philippines for a continuous period of not less than ten years as
required by section 2 of Commonwealth Act No. 473.

As to the next question, appellant alleges that in the oral test at the hearing, it was demonstrated that petitioner has only a
smattering of Bicol, the Filipino language that petitioner alleges to know, and he cannot speak it as he was not able to translate
from English to Bicol questions asked by the court and the provincial fiscal, although, in the continuation of the hearing on
September 30, 1947, "surprisingly enough, he succeeded answering correctly in Bicol the questions propounded by his counsel,
however, he fumbled and failed to give the translation of such a common word as 'love' which the fiscal asked of him.

The lower court made the finding of fact that applicant speaks and writes English and Bicol and there seems to be no question
about the competency of the judge who made the pronouncement, because he has shown by the appealed resolution and by his
questions propounded to appellee, that he has command of both English and Bicol.

The law has not set a specific standard of the principal Philippine languages. A great number of standards can be set. There are
experts in English who say that Shakespeare has used in his works 15,000 different English words, and the King's Bible about
10,000, while about 5,000 are used by the better educated persons and about 3,000 by the average individual. While there may
be persons ambitious enough to have a command of the about 600,000 words recorded in the Webster's International Dictionary,
there are authorities who would reduce basic English to a few hundred words. Perhaps less than one hundred well selected
words will be enough for the ordinary purposes of daily life.

There is a reason to believe that the lower court's pronouncement is well taken considering the fact that, after he was liberated in
1942 from the Japanese in the Naga prison, petitioner joined the guerrilla in the Bicol region, took part in encounters and
skirmishes against the Japanese, and remained with the guerrilla until the Americans liberated the Bicol provinces. If appellee
with his smattering of Bicol was able to get along with his Bicol comrades in the hazardous life of the resistance movement, we
believe that his knowledge of the language satisfies the requirement of the law.

But appellant contends that there is no piece of positive evidence to support petitioner's allegation that he can write too in the
Bicol language. There, is, however, on record circumstantial evidence from which it can be concluded that petitioner ought to
know also how to write Bicol. We know that Bicol, as all the important Philippine languages, uses the same alphabet used in
English, and it is much easier to write Bicol than English, because it is phonetic. Vowels and consonants have in them single and
not interchangeable phonetic values, while English words deviate very often from the basic sounds of the alphabet. The ability to
write cannot be denied to a person like petitioner, who has undergone the exacting technical training to be able to render services
as flier in the Russian Naval Squadron in the Baltic Sea and in the British Air Forces during the first World War. The difference
between the Cyrillic alphabet, as now used by Russians, and our Roman alphabet, cannot weigh much to deny petitioner the
ability to use the latter. A person who has shown the command of English which can be seen in his testimony on record can
easily make use of an alphabet of twenty or more letters universally used in this country where he has been residing continuously
for 25 years.

III

Appellant contends that the lower court erred in finding appellee stateless and not a Russian citizen and in not finding that he has
failed to establish that he is not disqualified for Philippine citizenship under section 4 (h) of the Revised Naturalization Law.

It is contended that petitioner failed to show that under the laws of Russia, appellee has lost his Russian citizenship and failed to
show that Russia grants to Filipinos the right to become a naturalized citizens or subjects thereof. The controversy centers on the
question as to whether petitioner is a Russian citizen or is stateless.

Petitioner testified categorically that he is not a Russian citizen and that he has no citizenship. His testimony supports the lower
court's pronouncement that petitioner is a stateless refugee in this country.

Appellant points out that petitioner stated in his petition for naturalization that he is citizen or subject of the Empire of Russia, but
the Empire of Russia has ceased to exist since the Czars were overthrown in 1917 by the Bolshevists, and the petitioner
disclaims allegiance or connection with the Soviet Government established after the overthrow of the Czarist Government.

We do not believe that the lower court erred in pronouncing appellee stateless. Appellee's testimony, besides being
uncontradicted, is supported by the well-known fact that the ruthlessness of modern dictatorship has scattered throughout the
world a large number of stateless refugees or displaced persons, without country and without flag. The tyrannical intolerance of
said dictatorships toward all opposition induced them to resort to beastly oppression, concentration camps and blood purges, and
it is only natural that the not-so-fortunate ones who were able to escape to foreign countries should feel the loss of all bonds of
attachment to the hells which were formerly their fatherland's. Petitioner belongs to that group of stateless refugees.

Knowing, as all cultured persons all over the world ought to know, the history, nature and character of the Soviet dictatorship,
presently the greatest menace to humanity and civilization, it would be technically fastidious to require further evidence of
petitioner's claim that he is stateless than his testimony that he owes no allegiance to the Russian Communist Government and,
is because he has been at war with it, he fled from Russia to permanently reside in the Philippines. After finding in this country
economic security in a remunerative job, establishing a family by marrying a Filipina with whom he has a son, and enjoying for 25
years the freedoms and blessings of our democratic way of life, and after showing his resolution to retain the happiness he found
in our political system to the extent of refusing to claim Russian citizenship even to secure his release from the Japanese and of
casting his lot with that of our people by joining the fortunes and misfortunes of our guerrillas, it would be beyond comprehension
to support that the petitioner could feel any bond of attachment to the Soviet dictatorship.

IV

The fourth and last assignment of error need not be discussed, it being only a sequel of the other assignments and has
necessarily been disposed of in their discussion.

The appealed resolution is affirmed.

Paras, Feria, Pablo, Bengzon, Briones, Padilla and Tuason, JJ., concur.

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