1. Shipside, Inc. vs.

Court of Appeals

G.R. No. 143377. February 20, 2001.

SHIPSIDE INCORPORATED, Petitioner, v. THE HON. COURT OF APPEALS [Special

Former Twelfth Division], HON. REGIONAL TRIAL COURT, BRANCH 26 (San
Fernando City, La Union) & The REPUBLIC OF THE PHILIPPINES, Respondents.

DECISION

MELO, J.:

Before the Court is a petition for certiorari filed by Shipside Incorporated under Rule 65
of the 1997 Rules on Civil Procedure against the resolutions of the Court of Appeals
promulgated on November 4, 1999 and May 23, 2000, which respectively, dismissed a
petition for certiorari and prohibition and thereafter denied a motion for
reconsideration.chanrob1es virtua1 1aw 1ibrary

The antecedent facts are undisputed:chanrob1es virtual 1aw library

On October 29, 1958, Original Certificate of Title No. 0-381 was issued in favor of
Rafael Galvez, over four parcels of land — Lot 1 with 6, 571 square meters; Lot 2, with
16,777 square meters; Lot 3 with 1,583 square meters; and Lot 4, with 508 square meters.

On April 11, 1960, Lots No. 1 and 4 were conveyed by Rafael Galvez in favor of Filipina
Mamaril, Cleopatra Llana, Regina Bustos, and Erlinda Balatbat in a deed of sale which
was inscribed as Entry No. 9115 OCT No. 0-381 on August 10, 1960. Consequently,
Transfer Certificate No. T-4304 was issued in favor of the buyers covering Lots No. 1 and
4.

Lot No. 1 is described as:chanrob1es virtua1 1aw 1ibrary

A parcel of land (Lot 1, Plan PSU-159621, L.R. Case No. N-361; L.R.C. Record No. N-
14012, situated in the Barrio of Poro, Municipality of San Fernando, Province of La
Union, bounded on the NE, by the Foreshore; on the SE, by Public Land and property of
the Benguet Consolidated Mining Company; on the SW, by properties of Rafael Galvez
(US Military Reservation Camp Wallace) and Policarpio Munar; and on the NW, by an
old Barrio Road. Beginning at a point marked "1" on plan, being S. 74 deg. 11’W.,
2670.36 from B.L.L.M. 1, San Fernando, thence

S. 66 deg. 19’E., 134.95 m. to point 2; S. 14 deg. 57’W., 11.79 m. to point 3;

S. 12 deg. 45’W., 27.00 m. to point 4; S. 12 deg. 45’W, 6.90 m. to point 5;

N. 69 deg., 32’W., 106.00 m. to point 6; N. 52 deg., 21’W., 36.85 m. to point 7;

N. 21 deg. 31’E., 42.01 m. to the point of beginning; containing an area of SIX

THOUSAND FIVE HUNDRED AND SEVENTY-ONE (6,571) SQUARE METERS,
more or less. All points referred to are indicated on the plan; and marked on the ground;
bearings true, date of survey, February 4-21, 1957.

Lot No. 4 has the following technical description:chanrob1es virtual 1aw library

A parcel of land (Lot 4, Plan PSU-159621, L.R. Case No. N-361 L.R.C. Record No. N-
14012), situated in the Barrio of Poro, Municipality of San Fernando, La Union. Bounded
on the SE by the property of the Benguet Consolidated Mining Company; on the S. by
property of Pelagia Carino; and on the NW by the property of Rafael Galvez (US Military
Reservation, Camp Wallace). Beginning at a point marked "1" on plan, being S. deg.
24’W. 2591.69 m. from B.L.L.M. 1, San Fernando, thence S. 12 deg. 45’W., 73.03 m. to
point 2; N. 79 deg. 59’W., 13.92 m. to point 3; N. 23 deg. 26’E., 75.00 m. to the point of
beginning; containing an area of FIVE HUNDRED AND EIGHT (508) SQUARE
METERS, more or less. All points referred to are indicated in the plan and marked on the
ground; bearings true, date of survey, February 4-21, 1957.

On August 16, 1960, Mamaril, Et. Al. sold Lots No. 1 and 4 to Lepanto Consolidated
Mining Company. The deed of sale covering the aforesaid property was inscribed as
Entry No. 9173 on TCT No. T-4304. Subsequently, Transfer Certificate No. T-4314 was
issued in the name of Lepanto Consolidated Mining Company as owner of Lots No. 1 and
4.

On February 1, 1963, unknown to Lepanto Consolidated Mining Company, the Court of

First Instance of La Union, Second Judicial District, issued an Order in Land Registration
Case No. N-361 (LRC Record No. N-14012) entitled "Rafael Galvez, Applicant, Eliza
Bustos, Et Al., Parties-In-Interest; Republic of the Philippines, Movant" declaring OCT
No. 0-381 of the Registry of Deeds for the Province of La Union issued in the name of
Rafael Galvez, null and void, and ordered the cancellation thereof.

The Order pertinently provided:chanrob1es virtual 1aw library

Accordingly, with the foregoing, and without prejudice on the rights of incidental parties
concerned herein to institute their respective appropriate actions compatible with
whatever cause they may have, it is hereby declared and this court so holds that both
proceedings in Land Registration Case No. N-361 and Original Certificate No. 0-381 of
the Registry of Deeds for the province of La Union issued in virtue thereof and registered
in the name of Rafael Galvez, are null and void; the Register of Deeds for the Province of
La Union is hereby ordered to cancel the said original certificate and/or such other
certificates of title issued subsequent thereto having reference to the same parcels of land;
without pronouncement as to costs.chanrob1es virtua1 1aw 1ibrary

On October 28, 1963, Lepanto Consolidated Mining Company sold to herein petitioner
Lots No. 1 and 4, with the deed being entered in TCT NO. 4314 as entry No. 12381.
Transfer Certificate of Title No. T-5710 was thus issued in favor of the petitioner which
starting since then exercised proprietary rights over Lots No. 1 and 4.

In the meantime, Rafael Galvez filed his motion for reconsideration against the order
issued by the trial court declaring OCT No. 0-381 null and void. The motion was denied
on January 25, 1965. On appeal, the Court of Appeals ruled in favor of the Republic of
the Philippines in a Resolution promulgated on August 14, 1973 in CA-G.R. No. 36061-
R.

Thereafter, the Court of Appeals issued an Entry of Judgment, certifying that its decision
dated August 14, 1973 became final and executory on October 23, 1973.

On April 22, 1974, the trial court in L.R.C. Case No. N-361 issued a writ of execution of
the judgment which was served on the Register of Deeds, San Fernando, La Union on
April 29, 1974.

Twenty four long years thereafter, on January 14, 1999, the Office of the Solicitor
General received a letter dated January 11, 1999 from Mr. Victor G. Floresca, Vice-
President, John Hay Poro Point Development Corporation, stating that the
aforementioned orders and decision of the trial court in L.R.C. No. N-361 have not been
executed by the Register of Deeds, San Fernando, La Union despite receipt of the writ of
execution.

On April 21, 1999, the Office of the Solicitor General filed a complaint for revival of
judgment and cancellation of titles before the Regional Trial Court of the First Judicial
Region (Branch 26, San Fernando, La Union) docketed therein as Civil Case No. 6346
entitled, "Republic of the Philippines, Plaintiff, versus Heirs of Rafael Galvez,
represented by Teresita Tan, Reynaldo Mamaril, Elisa Bustos, Erlinda Balatbat, Regina
Bustos, Shipside Incorporated and the Register of Deeds of La Union,
Defendants."cralaw virtua1aw library

The evidence shows that the impleaded defendants (except the Register of Deeds of the
province of La Union) are the successors-in-interest of Rafael Galvez (not Reynaldo
Galvez as alleged by the Solicitor General) over the property covered by OCT No. 0-381,
namely: (a) Shipside Inc. which is presently the registered owner in fee simple of Lots
No. 1 and 4 covered by TCT No. T-5710, with a total area of 7,079 square meters; (b)
Elisa Bustos, Jesusito Galvez, and Teresita Tan who are the registered owners of Lot No.
2 of OCT No. 0-381; and (c) Elisa Bustos, Filipina Mamaril, Regina Bustos and Erlinda
Balatbat who are the registered owners of Lot No. 3 of OCT No. 0-381, now covered by
TCT No. T-4916, with an area of 1,583 square meters.

In its complaint in Civil Case No. 6346, the Solicitor General argued that since the trial
court in LRC Case No. 361 had ruled and declared OCT No. 0-381 to be null and void,
which ruling was subsequently affirmed by the Court of Appeals, the defendants-
successors-in-interest of Rafael Galvez have no valid title over the property covered by
OCT No. 0-381, and the subsequent Torrens titles issued in their names should be
consequently cancelled.

On July 22, 1999, petitioner Shipside, Inc. filed its Motion to Dismiss, based on the
following grounds: (1) the complaint stated no cause of action because only final and
executory judgments may be subject of an action for revival of judgment; (2) the plaintiff
is not the real party-in-interest because the real property covered by the Torrens titles
sought to be cancelled, allegedly part of Camp Wallace (Wallace Air Station), were under
the ownership and administration of the Bases Conversion Development Authority
(BCDA) under Republic Act No. 7227; (3) plaintiff’s cause of action is barred by
prescription; (4) twenty-five years having lapsed since the issuance of the writ of
execution, no action for revival of judgment may be instituted because under Paragraph 3
of Article 1144 of the Civil Code, such action may be brought only within ten (10) years
from the time the judgment had been rendered.

An opposition to the motion to dismiss was filed by the Solicitor General on August 23,
1999, alleging among others, that: (1) the real party-in-interest is the Republic of the
Philippines; and (2) prescription does not run against the State.

On August 31, 1999, the trial court denied petitioner’s motion to dismiss and on October
14, 1999, its motion for reconsideration was likewise turned down.

On October 21, 1999, petitioner instituted a petition for certiorari and prohibition with the
Court of Appeals, docketed therein as CA-G.R. SP No. 55535, on the ground that the
orders of the trial court denying its motion to dismiss and its subsequent motion for
reconsideration were issued in excess of jurisdiction.

On November 4, 1999, the Court of Appeals dismissed the petition in CA-G.R. SP No.
55535 on the ground that the verification and certification in the petition, under the
signature of Lorenzo Balbin, Jr., was made without authority, there being no proof therein
that Balbin was authorized to institute the petition for and in behalf and of
petitioner.chanrob1es virtua1 1aw 1ibrary

On May 23, 2000, the Court of Appeals denied petitioner’s motion for reconsideration on
the grounds that: (1) a complaint filed on behalf of a corporation can be made only if
authorized by its Board of Directors, and in the absence thereof, the petition cannot
prosper and be granted due course; and (2) petitioner was unable to show that it had
substantially complied with the rule requiring proof of authority to institute an action or
proceeding.

Hence, the instant petition.

In support of its petition, Shipside, Inc. asseverates that:chanrob1es virtual 1aw library

1. The Honorable Court of Appeals gravely abused its discretion in dismissing the
petition when it made a conclusive legal presumption that Mr. Balbin had no authority to
sign the petition despite the clarity of laws, jurisprudence and Secretary’s certificate to
the contrary;

2. The Honorable Court of Appeals abused its discretion when it dismissed the petition, in
effect affirming the grave abuse of discretion committed by the lower court when it
refused to dismiss the 1999 Complaint for Revival of a 1973 judgment, in violation of
clear laws and jurisprudence.

Petitioner likewise adopted the arguments it raised in the petition and comment/reply it
filed with the Court of Appeals, attached to its petition as Exhibit "L" and "N",
respectively.

In his Comment, the Solicitor General moved for the dismissal of the instant petition
based on the following considerations: (1) Lorenzo Balbin, who signed for and in behalf
of petitioner in the verification and certification of non-forum shopping portion of the
petition, failed to show proof of his authorization to institute the petition for certiorari and
prohibition with the Court of Appeals, thus the latter court acted correctly in dismissing
the same; (2) the real party-in-interest in the case at bar being the Republic of the
Philippines, its claims are imprescriptible.

In order to preserve the rights of herein parties, the Court issued a temporary restraining
order on June 26, 2000 enjoining the trial court from conducting further proceedings in
Civil Case No. 6346.

The issues posited in this case are: (1) whether or not an authorization from petitioner’s
Board of Directors is still required in order for its resident manager to institute or
commence a legal action for and in behalf of the corporation; and (2) whether or not the
Republic of the Philippines can maintain the action for revival of judgment herein.

We find for Petitioner.

Anent the first issue:chanrob1es virtual 1aw library

The Court of Appeals dismissed the petition for certiorari on the ground that Lorenzo
Balbin, the resident manager for petitioner, who was the signatory in the verification and
certification on non-forum shopping, failed to show proof that he was authorized by
petitioner’s board of directors to file such a petition.

A corporation, such as petitioner, has no power except those expressly conferred on it by

the Corporation Code and those that are implied or incidental to its existence. In turn, a
corporation exercises said powers through its board of directors and/or its duly authorized
officers and agents. Thus, it has been observed that the power of a corporation to sue and
be sued in any court is lodged with the board of directors that exercises its corporate
powers (Premium Marble Resources, Inc. v. CA, 264 SCRA 11 [1996]). In turn, physical
acts of the corporation, like the signing of documents, can be performed only by natural
persons duly authorized for the purpose by corporate by-laws or by a specific act of the
board of directors.

It is undisputed that on October 21, 1999, the time petitioner’s Resident Manager Balbin
filed the petition, there was no proof attached thereto that Balbin was authorized to sign
the verification and non-forum shopping certification therein, as a consequence of which
the petition was dismissed by the Court of Appeals. However, subsequent to such
dismissal, petitioner filed a motion for reconsideration, attaching to said motion a
certificate issued by its board secretary stating that on October 11, 1999, or ten days prior
to the filing of the petition, Balbin had been authorized by petitioner’s board of directors
to file said petition.

The Court has consistently held that the requirement regarding verification of a pleading
is formal, not jurisdictional (Uy v. LandBank, G.R. No. 136100, July 24, 2000). Such
requirement is simply a condition affecting the form of the pleading, non-compliance
with which does not necessarily render the pleading fatally defective. Verification is
simply intended to secure an assurance that the allegations in the pleading are true and
correct and not the product of the imagination or a matter of speculation, and that the
pleading is filed in good faith. The court may order the correction of the pleading if
verification is lacking or act on the pleading although it is not verified, if the attending
circumstances are such that strict compliance with the rules may be dispensed with in
order that the ends of justice may thereby be served.

On the other hand, the lack of certification against forum shopping is generally not
curable by the submission thereof after the filing of the petition. Section 5, Rule 45 of the
1997 Rules of Civil Procedure provides &t the failure of the petitioner to submit the
required documents that should accompany the petition, including the certification
against forum shopping, shall be sufficient ground for the dismissal thereof. The same
rule applies to certifications against forum shopping signed by a person on behalf of a
corporation which are unaccompanied by proof that said signatory is authorized to file a
petition on behalf of the corporation.

In certain exceptional circumstances, however, the Court has allowed the belated filing of
the certification. In Loyola v. Court of Appeals, et. al. (245 SCRA 477 [1995]), the Court
considered the filing of the certification one day after the filing of an election protest as
substantial compliance with the requirement. In Roadway Express, Inc. v. Court of
Appeals, et. al. (264 SCRA 696 [1996]), the Court allowed the filing of the certification
14 days before the dismissal of the petition. In Uy v. Landbank, supra, the Court had
dismissed Uy’s petition for lack of verification and certification against non-forum
shopping. However, it subsequently reinstated the petition after Uy submitted a motion to
admit certification and non-forum shopping certification. In all these cases, there were
special circumstances or compelling reasons that justified the relaxation of the rule
requiring verification and certification on non-forum shopping.

In the instant case, the merits of petitioner’s case should be considered special
circumstances or compelling reasons that justify tempering the requirement in regard to
the certificate of non-forum shopping. Moreover, in Loyola, Roadway, and Uy, the Court
excused non-compliance with the requirement as to the certificate of non-forum
shopping. With more reason should we allow the instant petition since petitioner herein
did submit a certification on non-forum shopping, failing only to show proof that the
signatory was authorized to do so. That petitioner subsequently submitted a secretary’s
certificate attesting that Balbin was authorized to file an action on behalf of petitioner
likewise mitigates this oversight.

It must also be kept in mind that while the requirement of the certificate of non-forum
shopping is mandatory, nonetheless the requirements must not be interpreted too literally
and thus defeat the objective of preventing the undesirable practice of forum-shopping
(Bernardo v. NLRC, 255 SCRA 108 [1996]). Lastly, technical rules of procedure should
be used to promote, not frustrate justice. While the swift unclogging of court dockets is a
laudable objective, the granting of substantial justice is an even more urgent ideal.

Now to the second issue:chanrob1es virtual 1aw library

The action instituted by the Solicitor General in the trial court is one for revival of
judgment which is governed by Article 1144(3) of the Civil Code and Section 6, Rule 39
of the 1997 Rules on Civil Procedure. Article 1144(3) provides that an action upon a
judgment "must be brought within 10 years from the time the right of action accrues." On
the other hand, Section 6, Rule 39 provides that a final and executory judgment or order
may be executed on motion within five (5) years from the date of its entry, but that after
the lapse of such time, and before it is barred by the statute of limitations, a judgment
may be enforced by action. Taking these two provisions into consideration, it is plain that
an action for revival of judgment must be brought within ten years from the time said
judgment becomes final.

From the records of this case, it is clear that the judgment sought to be revived became
final on October 23, 1973. On the other hand, the action for revival of judgment was
instituted only in 1999, or more than twenty-five (25) years after the judgment had
become final. Hence, the action is barred by extinctive prescription considering that such
an action can be instituted only within ten (10) years from the time the cause of action
accrues.

The Solicitor General, nonetheless, argues that the State’s cause of action in the
cancellation of the land title issued to petitioner’s predecessor-in-interest is
imprescriptible because it is included in Camp Wallace, which belongs to the
government.

The argument is misleading.

While it is true that prescription does not run against the State, the same may not be
invoked by the government in this case since it is no longer interested in the subject
matter. While Camp Wallace may have belonged to the government at the time Rafael
Galvez’s title was ordered cancelled in Land Registration Case No. N-361, the same no
longer holds true today.
Republic Act No. 7227, otherwise known as the Bases Conversion and Development Act
of 1992, created the Bases Conversion and Development Authority. Section 4 pertinently
provides:chanrob1es virtua1 1aw 1ibrary

SECTION 4. Purposes of the Conversion Authority. — The Conversion Authority shall

have the following purposes:chanrob1es virtual 1aw library

(a) To own, hold and/or administer the military reservations of John Hay Air Station,
Wallace Air Station, O’Donnell Transmitter Station, San Miguel Naval Communications
Station, Mt. Sta. Rita Station (Hermosa, Bataan) and those portions of Metro Manila
military camps which may be transferred to it by the President;

Section 2 of Proclamation No. 216, issued on July 27, 1993, also provides:chanrob1es
virtual 1aw library

SECTION 2. Transfer of Wallace Air Station Areas to the Bases Conversion and
Development Authority. — All areas covered by the Wallace Air Station as embraced and
defined by the 1947 Military Bases Agreement between the Philippines and the United
States of America, as amended, excluding those covered by Presidential Proclamations
and some 25-hectare area for the radar and communication station of the Philippine Air
Force, are hereby transferred to the Bases Conversion Development Authority . . .

With the transfer of Camp Wallace to the BCDA, the government no longer has a right or
interest to protect. Consequently, the Republic is not a real party in interest and it may not
institute the instant action. Nor may it raise the defense of imprescriptibility, the same
being applicable only in cases where the government is a party in interest. Under Section
2 of Rule 3 of the 1997 Rules of Civil Procedure, "every action must be prosecuted or
defended in the name of the real party in interest." To qualify a person to be a real party
in interest in whose name an action must be prosecuted, he must appear to be the present
real owner of the right sought to enforced (Pioneer Insurance v. CA, 175 SCRA 668
[1989]). A real party in interest is the party who stands to be benefited or injured by the
judgment in the suit, or the party entitled to the avails of the suit. And by real interest is
meant a present substantial interest, as distinguished from a mere expectancy, or a future,
contingent, subordinate or consequential interest (Ibonilla v. Province of Cebu, 210
SCRA 526 [1992]). Being the owner of the areas covered by Camp Wallace, it is the
Bases Conversion and Development Authority, not the Government, which stands to be
benefited if the land covered by TCT No. T-5710 issued in the name of petitioner is
cancelled.

Nonetheless, it has been posited that the transfer of military reservations and their
extensions to the BCDA is basically for the purpose of accelerating the sound and
balanced conversion of these military reservations into alternative productive uses and to
enhance the benefits to be derived from such property as a measure of promoting the
economic and social development, particularly of Central Luzon and, in general, the
country’s goal for enhancement (Section 2, Republic Act No. 7227). It is contended that
the transfer of these military reservations to the Conversion Authority does not amount to
an abdication on the part of the Republic of its interests, but simply a recognition of the
need to create a body corporate which will act as its agent for the realization of its
program. It is consequently asserted that the Republic remains to be the real party in
interest and the Conversion Authority merely its agent.

We, however, must not lose sight of the fact that the BCDA is an entity invested with a
personality separate and distinct from the government. Section 3 of Republic Act No.
7227 reads:chanrob1es virtual 1aw library

SECTION 3. Creation of the Bases Conversion and Development Authority. — There is

hereby created a body corporate to be known as the Conversion Authority which shall
have the attribute of perpetual succession and shall be vested with the powers of a
corporation.

It may not be amiss to state at this point that the functions of government have been
classified into governmental or constituent and proprietary or ministrant. While public
benefit and public welfare, particularly, the promotion of the economic and social
development of Central Luzon, may be attributable to the operation of the BCDA, yet it is
certain that the functions performed by the BCDA are basically proprietary in nature. The
promotion of economic and social development of Central Luzon, in particular, and the
country’s goal for enhancement, in general, do not make the BCDA equivalent to the
Government. Other corporations have been created by government to act as its agents for
the realization of its programs, the SSS, GSIS, NAWASA and the NIA, to count a few,
and yet, the Court has ruled that these entities, although performing functions aimed at
promoting public interest and public welfare, are not government-function corporations
invested with governmental attributes. It may thus be said that the BCDA is not a mere
agency of the Government but a corporate body performing proprietary functions.

Moreover, Section 5 of Republic Act No. 7227 provides:chanrob1es virtual 1aw library

SECTION 5. Powers of the Conversion Authority. — To carry out its objectives under
this Act, the Conversion Authority is hereby vested with the following
powers:chanrob1es virtual 1aw library

(a) To succeed in its corporate name, to sue and be sued in such corporate name and to
adopt, alter and use a corporate seal which shall be judicially noticed;cralawred

Having the capacity to sue or be sued, it should thus be the BCDA which may file an
action to cancel petitioner’s title, not the Republic, the former being the real party in
interest. One having no right or interest to protect cannot invoke the jurisdiction of the
court as a party plaintiff in an action (Ralla v. Ralla, 199 SCRA 495 [1991]). A suit may
be dismissed if the plaintiff or the defendant is not a real party in interest. If the suit is not
brought in the name of the real party in interest, a motion to dismiss may be filed, as was
done by petitioner in this case, on the ground that the complaint states no cause of action
(Tanpingco v. IAC, 207 SCRA 652 [1992]).
However, E.B. Marcha Transport Co., Inc. v. IAC (147 SCRA 276 [1987]) is cited as
authority that the Republic is the proper party to sue for the recovery of possession of
property which at the time of the institution of the suit was no longer held by the national
government but by the Philippine Ports Authority. In E.B. Marcha, the Court
ruled:chanrob1es virtual 1aw library

It can be said that in suing for the recovery of the rentals, the Republic of the Philippines,
acted as principal of the Philippine Ports Authority, directly exercising the commission it
had earlier conferred on the latter as its agent. We may presume that, by doing so, the
Republic of the Philippines did not intend to retain the said rentals for its own use,
considering that by its voluntary act it had transferred the land in question to the
Philippine Ports Authority effective July 11, 1974. The Republic of the Philippines had
simply sought to assist, not supplant, the Philippine Ports Authority, whose title to the
disputed property it continues to recognize. We may expect then that the said rentals,
once collected by the Republic of the Philippines, shall be turned over by it to the
Philippine Ports Authority conformably to the purposes of P.D. No. 857.

E.B. Marcha is, however, not on all fours with the case at bar. In the former, the Court
considered the Republic a proper party to sue since the claims of the Republic and the
Philippine Ports Authority against the petitioner therein were the same. To dismiss the
complaint in E.B. Marcha would have brought needless delay in the settlement of the
matter since the PPA would have to refile the case on the same claim already litigated
upon. Such is not the case here since to allow the government to sue herein enables it to
raise the issue of imprescriptibility, a claim which is not available to the BCDA. The rule
that prescription does not run against the State does not apply to corporations or artificial
bodies created by the State for special purposes, it being said that when the title of the
Republic has been divested, its grantees, although artificial bodies of its own creation, are
in the same category as ordinary persons (Kingston v. LeHigh Valley Coal Co., 241 Pa
469). By raising the claim of imprescriptibility, a claim which cannot be raised by the
BCDA, the Government not only assists the BCDA, as it did in E.B. Marcha, it even
supplants the latter, a course of action proscribed by said case.

Moreover, to recognize the Government as a proper party to sue in this case would set a
bad precedent as it would allow the Republic to prosecute, on behalf of government-
owned or controlled corporations, causes of action which have already prescribed, on the
pretext that the Government is the real party in interest against whom prescription does
not run, said corporations having been created merely as agents for the realization of
government programs.

Parenthetically, petitioner was not a party to the original suit for cancellation of title
commenced by the Republic twenty-seven years for which it is now being made to
answer, nay, being made to suffer financial losses.

It should also be noted that petitioner is unquestionably a buyer in good faith and for
value, having acquired the property in 1963, or 5 years after the issuance of the original
certificate of title, as a third transferee. If only not to do violence and to give some
measure of respect to the Torrens System, petitioner must be afforded some measure of
protection.chanrob1es virtua1 1aw 1ibrary

One more point.

Since the portion in dispute now forms part of the property owned and administered by
the Bases Conversion and Development Authority, it is alienable and registerable real
property.

We find it unnecessary to rule on the other matters raised by the herein parties.

WHEREFORE, the petition is hereby granted and the orders dated August 31, 1999 and
October 4, 1999 of the Regional Trial Court of the First National Judicial Region (Branch
26, San Fernando, La Union) in Civil Case No. 6346 entitled "Republic of the
Philippines, Plaintiff, versus Heirs of Rafael Galvez, et. al., Defendants" as well as the
resolutions promulgated on November 4, 1999 and May 23, 2000 by the Court of Appeals
(Twelfth Division) in CA-G.R. SP No. 55535 entitled "Shipside, Inc., Petitioner versus
Hon. Alfredo Cajigal, as Judge, RTC, San Fernando, La Union, Branch 26, and the
Republic of the Philippines, Respondents" are hereby reversed and set aside. The
complaint in Civil Case No. 6346, Regional Trial Court, Branch 26, San Fernando City,
La Union entitled "Republic of the Philippines, Plaintiff, versus Heirs of Rafael Galvez,
Et. Al." is ordered dismissed, without prejudice to the filing of an appropriate action by
the Bases Development and Conversion Authority.

SO ORDERED.chanrob1es virtua1 1aw 1ibrary

Panganiban, Gonzaga-Reyes and Sandoval-Gutierrez, JJ., concur.

Separate Opinions

VITUG, J.:

I find no doctrinal difficulty in adhering to the draft ponencia written by our esteemed
Chairman, Mr. Justice JARM, insofar as it declares that an action for revival of judgment
is barred by extinctive prescription, if not brought within ten (10) years from the time the
right of action accrues, pursuant to Article 1144(3) of the New Civil Code. It appears that
the judgment in the instant case has become final on 23 October 1973 or well more than
two decades prior to the action for its revival instituted only in 1999.

With due respect, however, I still am unable to subscribe to the idea that prescription may
not be invoked by the government in this case upon the thesis that the transfer of Camp
Wallace to the Bases Conversion Development Authority renders the Republic with no
right or interest to protect and thus unqualified under the rules of procedure to be the real
party-in-interest. While it is true that Republic Act 7227, otherwise known as the Bases
Conversion and Development Act of 1992, authorizes the transfer of the military
reservations and their extensions to the Conversion Authority, the same, however, is
basically for the purpose of accelerating the sound and balanced conversion of these
military reservations into alternative productive uses and to enhance the benefits to be
derived from such property as a measure of promoting the economic and social
development, particularly, of Central Luzon and, in general, the country’s goal for
enhancement. 1 The transfer of these military reservations to the Conversion Authority
does not amount to an abdication on the part of the Republic of its interests but simply a
recognition of the need to create a body corporate which will act as its agent for the
realization of its program specified in the Act. It ought to follow that the Republic
remains to be the real party-in-interest and the Conversion Authority being merely its
agent.

In E.B. Marcha Transport Co., Inc. v. Intermediate Appellate Court, 2 the Court
succinctly resolved the issue of whether or not the Republic of the Philippines would be a
proper party to sue for the recovery of possession of property which at the time of the
institution of the suit was no longer being held by the national government but by the
Philippine Ports Authority. The Court ruled:chanrob1es virtua1 law library

"More importantly, as we see it, dismissing the complaint on the ground that the Republic
of the Philippines is not the proper party would result in needless delay in the settlement
of this matter and also in derogation of the policy against multiplicity of suits. Such a
decision would require the Philippine Ports Authority to refile the very same complaint
already proved by the Republic of the Philippines and bring back the parties as it were to
square one.

"It can be said that in suing for the recovery of the rentals, the Republic of the
Philippines, acted as principal of the Philippine Ports Authority, directly exercising the
commission it had earlier conferred on the latter as its agent. We may presume that, by
doing so, the Republic of the Philippines did not intend to retain the said rentals for its
own use, considering that by its voluntary act it had transferred the land in question to the
Philippine Ports Authority effective July 11, 1974. The Republic of the Philippines had
simply sought to assist, not supplant, the Philippine Ports Authority, whose title to the
disputed property it continues to recognize. We may expect then that the said rentals,
once collected by the Republic of the Philippines, shall be turned over by it to the
Philippine Ports Authority conformably to the purposes of P.D. No. 857."cralaw
virtua1aw library

There would seem to be no cogent reason for ignoring that rationale specially when taken
in light of the fact that the original suit for cancellation of title of petitioner’s predecessor-
in-interest was commenced by the Republic itself, and it was only in 1992 that the subject
military camp was transferred to the Conversion Authority.chanrob1es virtua1 1aw
1ibrary
Endnotes:

2. Association of Philippine Coconut Dessicators vs. Philippine Coconut Authority

G.R. No. 110526 February 10, 1998

ASSOCIATION OF PHILIPPINE COCONUT DESICCATORS, petitioner,

vs.
 PHILIPPINE COCONUT AUTHORITY, respondent.

MENDOZA, J.:

At issue in this case is the validity of a resolution, dated March 24, 1993, of the
Philippine Coconut Authority in which it declares that it will no longer require those
wishing to engage in coconut processing to apply to it for a license or permit as a
condition for engaging in such business.

Petitioner Association of Philippine Coconut Desiccators (hereafter referred to as APCD)

brought this suit for certiorari and mandamus against respondent Philippine Coconut
Authority (PCA) to invalidate the latter's Board Resolution No. 018-93 and the
certificates of registration issued under it on the ground that the resolution in question is
beyond the power of the PCA to adopt, and to compel said administrative agency to
comply instead with the mandatory provisions of statutes regulating the desiccated
coconut industry, in particular, and the coconut industry, in general.

As disclosed by the parties' pleadings, the facts are as follows:

On November 5, 1992, seven desiccated coconut processing companies belonging to the

APCD brought suit in the Regional Trial Court, National Capital Judicial Region in
Makati, Metro Manila, to enjoin the PCA from issuing permits to certain applicants for
the establishment of new desiccated coconut processing plants. Petitioner alleged that the
issuance of licenses to the applicants would violate PCA's Administrative Order No. 02,
series of 1991, as the applicants were seeking permits to operate in areas considered
"congested" under the administrative order.1

On November 6, 1992, the trial court issued a temporary restraining order and, on
November 25, 1992, a writ of preliminary injunction, enjoining the PCA from processing
and issuing licenses to Primex Products, Inc., Coco Manila, Superstar (Candelaria) and
Superstar (Davao) upon the posting of a bond in the amount of P100,000.00.2

Subsequently and while the case was pending in the Regional Trial Court, the Governing
Board of the PCA issued on March 24, 1993 Resolution No. 018-93, providing for the
withdrawal of the Philippine Coconut Authority from all regulation of the coconut
product processing industry. While it continues the registration of coconut product
processors, the registration would be limited to the "monitoring" of their volumes of
production and administration of quality standards. The full text of the resolution reads:

RESOLUTION NO. 018-93

POLICY DECLARATION DEREGULATING
THE ESTABLISHMENT OF NEW COCONUT
PROCESSING PLANTS

WHEREAS, it is the policy of the State to promote free enterprise unhampered by

protective regulations and unnecessary bureaucratic red tapes;
 WHEREAS, the deregulation of certain sectors of the coconut industry, such as
marketing of coconut oils pursuant to Presidential Decree No. 1960, the lifting of
export and commodity clearances under Executive Order No. 1016, and relaxation of
regulated capacity for the desiccated coconut sector pursuant to Presidential
Memorandum of February 11, 1988, has become a centerpiece of the present
dispensation;

WHEREAS, the issuance of permits or licenses prior to business operation is a form

of regulation which is not provided in the charter of nor included among the powers
of the PCA;

WHEREAS, the Governing Board of PCA has determined to follow and further
support the deregulation policy and effort of the government to promote free
enterprise;

NOW THEREFORE, BE IT RESOLVED AS IT IS HEREBY RESOLVED, that,

henceforth, PCA shall no longer require any coconut oil mill, coconut oil refinery,
coconut desiccator, coconut product processor/factory, coconut fiber plant or any
similar coconut processing plant to apply with PCA and the latter shall no longer
issue any form of license or permit as condition prior to establishment or operation of
such mills or plants;

RESOLVED, FURTHER, that the PCA shall limit itself only to simply registering
the aforementioned coconut product processors for the purpose of monitoring their
volumes of production, administration of quality standards with the corresponding
service fees/charges.

ADOPTED this 24th day of March 1993, at Quezon City.3

The PCA then proceeded to issue "certificates of registration" to those wishing to operate
desiccated coconut processing plants, prompting petitioner to appeal to the Office of the
President of the Philippines on April 26, 1993 not to approve the resolution in question.
Despite follow-up letters sent on May 25 and June 2, 1993, petitioner received no reply
from the Office of the President. The "certificates of registration" issued in the meantime
by the PCA has enabled a number of new coconut mills to operate. Hence this petition.

Petitioner alleges:

RESPONDENT PCA'S BOARD RESOLUTION NO. 018-93 IS NULL AND VOID

FOR BEING AN UNDUE EXERCISE OF LEGISLATIVE POWER BY AN
ADMINISTRATIVE BODY.
 II

ASIDE FROM BEING ULTRA-VIRES, BOARD RESOLUTION NO. 018-93 IS

WITHOUT ANY BASIS, ARBITRARY, UNREASONABLE AND THEREFORE
IN VIOLATION OF SUBSTANTIVE DUE PROCESS OF LAW.

III

IN PASSING BOARD RESOLUTION NO. 018-93, RESPONDENT PCA

VIOLATED THE PROCEDURAL DUE PROCESS REQUIREMENT OF
CONSULTATION PROVIDED IN PRESIDENTIAL DECREE NO. 1644,
EXECUTIVE ORDER NO. 826 AND PCA ADMINISTRATIVE ORDER NO. 002,
SERIES OF 1991.

On the other hand, in addition to answering petitioner's arguments, respondent PCA

alleges that this petition should be denied on the ground that petitioner has a pending
appeal before the Office of the President. Respondent accuses petitioner of forum-
shopping in filing this petition and of failing to exhaust available administrative remedies
before coming to this Court. Respondent anchors its argument on the general rule that one
who brings an action under Rule 65 must show that one has no appeal nor any plain,
speedy, and adequate remedy in the ordinary course of law.

I.

The rule of requiring exhaustion of administrative remedies before a party may seek
judicial review, so strenuously urged by the Solicitor General on behalf of respondent,
has obviously no application here. The resolution in question was issued by the PCA in
the exercise of its rule-making or legislative power. However, only judicial review of
decisions of administrative agencies made in the exercise of their quasi-judicial function
is subject to the exhaustion doctrine. The exhaustion doctrine stands as a bar to an action
which is not yet complete4 and it is clear, in the case at bar, that after its promulgation the
resolution of the PCA abandoning regulation of the desiccated coconut industry became
effective. To be sure, the PCA is under the direct supervision of the President of the
Philippines but there is nothing in P.D. No. 232, P.D. No. 961, P.D. No. 1468 and P.D.
No. 1644 defining the powers and functions of the PCA which requires rules and
regulations issued by it to be approved by the President before they become effective.

In any event, although the APCD has appealed the resolution in question to the Office of
the President, considering the fact that two months after they had sent their first letter on
April 26, 1993 they still had to hear from the President's office, meanwhile respondent
PCA was issuing certificates of registration indiscriminately to new coconut millers, we
hold that petitioner was justified in filing this case on June 25, 1993.5 Indeed, after
writing the Office of the President on April 26, 19936 petitioner sent inquiries to that
office not once, but twice, on May 26, 19937 and on June 2, 1993,8 but petitioner did not
receive any reply.
 II.

We now turn to the merit of the present petition. The Philippine Coconut Authority was
originally created by P.D. 232 on June 30, 1973, to take over the powers and functions of
the Coconut Coordinating Council, the Philippine Coconut Administration and the
Philippine Coconut Research Institute. On June 11, 1978, by P.D. No. 1468, it was made
"an independent public corporation . . . directly reporting to, and supervised by, the
President of the Philippines,"9 and charged with carrying out the State's policy "to
promote the rapid integrated development and growth of the coconut and other palm oil
industry in all its aspects and to ensure that the coconut farmers become direct
participants in, and beneficiaries of, such development and growth."10 through a
regulatory scheme set up by law.11

Through this scheme, the government, on August 28, 1982, temporarily prohibited the
opening of new coconut processing plants and, four months later, phased out some of the
existing ones in view of overproduction in the coconut industry which resulted in cut-
throat competition, underselling and smuggling of poor quality products and ultimately in
the decline of the export performance of coconut-based commodities. The establishment
of new plants could be authorized only upon determination by the PCA of the existence
of certain economic conditions and the approval of the President of the Philippines. Thus,
Executive Order No. 826, dated August 28, 1982, provided:

Sec. 1. Prohibition. — Except as herein provided, no government agency or

instrumentality shall hereafter authorize, approve or grant any permit or license for
the establishment or operation of new desiccated coconut processing plants,
including the importation of machinery or equipment for the purpose. In the event of
a need to establish a new plant, or expand the capacity, relocate or upgrade the
efficiencies of any existing desiccated plant, the Philippine Coconut Authority may,
upon proper determination of such need and evaluation of the condition relating to:

a. the existing market demand;

b. the production capacity prevailing in the country or locality;

c. the level and flow of raw materials; and

d. other circumstances which may affect the growth or viability of the industry
concerned,

authorize or grant the application for, the establishment or expansion of capacity,

relocation or upgrading of efficiencies of such desiccated coconut processing plant,
subject to the approval of the President.
On December 6, 1982, a phase-out of some of the existing plants was ordered by the
government after finding that "a mere freeze in the present capacity of existing plants will
not afford a viable solution to the problem considering that the total available limited
market is not adequate to support all the existing processing plants, making it imperative
to reduce the number of existing processing plants."12 Accordingly, it was ordered:13

Sec. 1. The Philippine Coconut Authority is hereby ordered to take such action as
may be necessary to reduce the number of existing desiccated coconut processing
plants to a level which will insure the survival of the remaining plants. The Authority
is hereby directed to determine which of the existing processing plants should be
phased out and to enter into appropriate contracts with such plants for the above
purpose.

It was only on October 23, 1987 when the PCA adopted Resolution No. 058-87,
authorizing the establishment and operation of additional DCN plants, in view of the
increased demand for desiccated coconut products in the world's markets, particularly in
Germany, the Netherlands and Australia. Even then, the opening of new plants was made
subject to "such implementing guidelines to be set forth by the Authority" and "subject to
the final approval of the President."

The guidelines promulgated by the PCA, as embodied in Administrative Order No. 002,
series of 1991, inter alia authorized the opening of new plants in "non-congested areas
only as declared by the PCA" and subject to compliance by applicants with "all
procedures and requirements for registration under Administrative Order No. 003, series
of 1981 and this Order." In addition, as the opening of new plants was premised on the
increased global demand for desiccated coconut products, the new entrants were required
to submit sworn statements of the names and addresses of prospective foreign buyers.

This form of "deregulation" was approved by President Aquino in her memorandum,

dated February 11, 1988, to the PCA. Affirming the regulatory scheme, the President
stated in her memorandum:

It appears that pursuant to Executive Order No. 826 providing measures for the
protection of the Desiccated Coconut Industry, the Philippine Coconut Authority
evaluated the conditions relating to: (a) the existing market demands; (b) the
production capacity prevailing in the country or locality; (c) the level and flow of raw
materials; and (d) other circumstances which may affect the growth or viability of the
industry concerned and that the result of such evaluation favored the expansion of
production and market of desiccated coconut products.

In view hereof and the favorable recommendation of the Secretary of Agriculture, the
deregulation of the Desiccated Coconut Industry as recommended in Resolution No.
058-87 adopted by the PCA Governing Board on October 28, 1987 (sic) is hereby
approved.14
These measures — the restriction in 1982 on entry into the field, the reduction the same
year of the number of the existing coconut mills and then the lifting of the restrictions in
1987 — were adopted within the framework of regulation as established by law "to
promote the rapid integrated development and growth of the coconut and other palm oil
industry in all its aspects and to ensure that the coconut farmers become direct
participants in, and beneficiaries of, such development and growth." 15 Contrary to the
assertion in the dissent, the power given to the Philippine Coconut Authority — and
before it to the Philippine Coconut Administration — "to formulate and adopt a general
program of development for the coconut and other palm oils industry"16 is not a roving
commission to adopt any program deemed necessary to promote the development of the
coconut and other palm oils industry, but one to be exercised in the context of this
regulatory structure.

In plain disregard of this legislative purpose, the PCA adopted on March 24, 1993 the
questioned resolution which allows not only the indiscriminate opening of new coconut
processing plants but the virtual dismantling of the regulatory infrastructure whereby,
forsaking controls theretofore placed in its keeping, the PCA limits its function to the
innocuous one of "monitoring" compliance by coconut millers with quality standards and
volumes of production. In effect, the PCA would simply be compiling statistical data on
these matters, but in case of violations of standards there would be nothing much it would
do. The field would be left without an umpire who would retire to the bleachers to
become a mere spectator. As the PCA provided in its Resolution No. 018-93:

NOW, THEREFORE, BE IT RESOLVED AS IT IS HEREBY RESOLVED, that,

henceforth, PCA shall no longer require any coconut oil mill, coconut oil refinery,
coconut desiccator, coconut product processor/factory, coconut fiber plant or any
similar coconut processing plant to apply with PCA and the latter shall no longer
issue any form of license or permit as condition prior to establishment or operation of
such mills or plants;

RESOLVED, FURTHER, that the PCA shall limit itself only to simply registering
the aforementioned coconut product processors for the purpose of monitoring their
volumes of production, administration of quality standards with the corresponding
service fees/charges.

The issue is not whether the PCA has the power to adopt this resolution to carry out its
mandate under the law "to promote the accelerated growth and development of the
coconut and other palm oil industry."17 The issue rather is whether it can renounce the
power to regulate implicit in the law creating it for that is what the resolution in question
actually is.

Under Art. II, § 3(a) of the Revised Coconut Code (P.D. No. 1468), the role of the PCA is
"To formulate and adopt a general program of development for the coconut and other
palm oil industry in all its aspects." By limiting the purpose of registration to merely
"monitoring volumes of production [and] administration of quality standards" of coconut
processing plants, the PCA in effect abdicates its role and leaves it almost completely to
market forces how the coconut industry will develop.

Art. II, § 3 of P.D. No. 1468 further requires the PCA:

(h) To regulate the marketing and the exportation of copra and its by-products by
establishing standards for domestic trade and export and, thereafter, to conduct an
inspection of all copra and its by-products proposed for export to determine if they
conform to the standards established;

Instead of determining the qualifications of market players and preventing the entry into
the field of those who are unfit, the PCA now relies entirely on competition — with all its
wastefulness and inefficiency — to do the weeding out, in its naive belief in survival of
the fittest. The result can very well be a repeat of 1982 when free enterprise degenerated
into a "free-for-all," resulting in cut-throat competition, underselling, the production of
inferior products and the like, which badly affected the foreign trade performance of the
coconut industry.

Indeed, by repudiating its role in the regulatory scheme, the PCA has put at risk other
statutory provisions, particularly those of P.D. No. 1644, to wit:

Sec. 1. The Philippine Coconut Authority shall have full power and authority to
regulate the marketing and export of copra, coconut oil and their by-products, in
furtherance of the steps being taken to rationalize the coconut oil milling industry.

Sec. 2. In the exercise of its powers under Section 1 hereof, the Philippine Coconut
Authority may initiate and implement such measures as may be necessary to attain
the rationalization of the coconut oil milling industry, including, but not limited to,
the following measures:

(a) Imposition of floor and/or ceiling prices for all exports of copra, coconut oil and
their by-products;

(b) Prescription of quality standards;

(c) Establishment of maximum quantities for particular periods and particular

markets;

(d) Inspection and survey of export shipments through an independent international

superintendent or surveyor.

In the exercise of its powers hereunder, the Philippine Coconut Authority shall
consult with, and be guided by, the recommendation of the coconut farmers, through
 corporations owned or controlled by them through the Coconut Industry Investment
Fund and the private corporation authorized to be organized under Letter of
Instructions No. 926.

and the Revised Coconut Code (P.D. No. 1468), Art. II, § 3, to wit:

(m) Except in respect of entities owned or controlled by the Government or by the

coconut farmers under Sections 9 and 10, Article III hereof, the Authority shall have
full power and authority to regulate the production, distribution and utilization of all
subsidized coconut-based products, and to require the submission of such reports or
documents as may be deemed necessary by the Authority to ascertain whether the
levy payments and/or subsidy claims are due and correct and whether the subsidized
products are distributed among, and utilized by, the consumers authorized by the
Authority.

The dissent seems to be saying that in the same way that restrictions on entry into the
field were imposed in 1982 and then relaxed in 1987, they can be totally lifted now
without prejudice to reimposing them in the future should it become necessary to do so.
There is really no renunciation of the power to regulate, it is claimed. Trimming down of
PCA's function to registration is not an abdication of the power to regulate but is
regulation itself. But how can this be done when, under Resolution No. 018-93, the PCA
no longer requires a license as condition for the establishment or operation of a plant? If a
number of processing firms go to areas which are already congested, the PCA cannot stop
them from doing so. If there is overproduction, the PCA cannot order a cut back in their
production. This is because the licensing system is the mechanism for regulation. Without
it the PCA will not be able to regulate coconut plants or mills.

In the first "whereas" clause of the questioned resolution as set out above, the PCA
invokes a policy of free enterprise that is "unhampered by protective regulations and
unnecessary bureaucratic red tape" as justification for abolishing the licensing system.
There can be no quarrel with the elimination of "unnecessary red tape." That is within the
power of the PCA to do and indeed it should eliminate red tape. Its success in doing so
will be applauded. But free enterprise does not call for removal of "protective
regulations."

Our Constitutions, beginning with the 1935 document, have repudiated laissez-faire as an
economic principle.18 Although the present Constitution enshrines free enterprise as a
policy,19 it nonetheless reserves to the government the power to intervene whenever
necessary to promote the general welfare. This is clear from the following provisions of
Art. XII of the Constitution which, so far as pertinent, state:

Sec. 6. . . . Individuals and private groups, including corporations, cooperatives, and

similar collective organizations, shall have the right to own, establish, and operate
economic enterprises, subject to the duty of the State to promote distributive justice
 and to intervene when the common good so demands.

Sec. 19. The State shall regulate or prohibit monopolies when the public interest so
requires. No combinations in restraint of trade or unfair competition shall be allowed.
(Emphasis added).

At all events, any change in policy must be made by the legislative department of the
government. The regulatory system has been set up by law. It is beyond the power of an
administrative agency to dismantle it. Indeed, petitioner charges the PCA of seeking to
render moot a case filed by some of its members questioning the grant of licenses to
certain parties by adopting the resolution in question. It is alleged that members of
petitioner complained to the court that the PCA had authorized the establishment and
operation of new plants in areas which were already crowded, in violation of its
Administrative Order No. 002, series of 1991. In response, the Regional Trial Court
issued a writ of preliminary injunction, enjoining the PCA from issuing licenses to the
private respondent in that case.

These allegations of petitioner have not been denied here. It would thus seem that instead
of defending its decision to allow new entrants into the field against petitioner's claim that
the PCA decision violated the guidelines in Administrative Order No. 002, series of 1991,
the PCA adopted the resolution in question to render the case moot. In so doing, the PCA
abdicated its function of regulation and left the field to untrammeled competition that is
likely to resurrect the evils of cut-throat competition, underselling and overproduction
which in 1982 required the temporary closing of the field to new players in order to save
the industry.

The PCA cannot rely on the memorandum of then President Aquino for authority to adopt
the resolution in question. As already stated, what President Aquino approved in 1988
was the establishment and operation of new DCN plants subject to the guidelines to be
drawn by the PCA.20 In the first place, she could not have intended to amend the several
laws already mentioned, which set up the regulatory system, by a mere memoranda to the
PCA. In the second place, even if that had been her intention, her act would be without
effect considering that, when she issued the memorandum in question on February 11,
1988, she was no longer vested with legislative authority.21

WHEREFORE, the petition is GRANTED. PCA Resolution No. 018-93 and all
certificates of registration issued under it are hereby declared NULL and VOID for
having been issued in excess of the power of the Philippine Coconut Authority to adopt or
issue.

SO ORDERED.

Narvasa, C.J., Regalado, Davide, Jr., Puno, Kapunan, Francisco, Panganiban and
Martinez, JJ., concur.

Separate Opinions
ROMERO, J., dissenting;

The past decade, a distinct worldwide trend towards economic deregulation has been
evident. Both developed and developing countries have seriously considered, and
extensively adopted, various measures for this purpose. The Philippines has been no
exception.

To this end, the Philippine Coconut Authority (PCA) issued Board Resolution No. 018-93
(PCA-BR No 018-93) dated March 24, 1993, deregulating the coconut processing plant
industry.1 The Association of Philippine Desiccators (APCD) has filed this instant
petition for prohibition and mandamus under Rule 65 of the Rules of Court seeking the
annulment of said resolution.

APCD questions the validity of PCA-BR No. 018-93 for being violative of the principle
of non-delegability of legislative power. It contends that in issuing the resolution
deregulating the coconut industry, the PCA exercised legislative discretion, which has not
been delegated to it by Congress. It adds that when PCA deregulated the coconut
industry, it ran counter to the very laws2 which mandated it to regulate and rationalize the
industry.

We see no merit in this contention. PCA's authority to issue PCA-BR No. 018-93 is
clearly provided in Section 3(a) of P.D. No. 232, reading as follows:

. . . To formulate and adopt a general program of development for the coconut and
other palm oil industry.

Similar grants of authority were made in subsequent amendatory laws.3

In this regard, we have ruled that legislative discretion, as to the substantive contents of a
law, cannot be delegated. What may be delegated is the discretion to determine how the
law is to be enforced, not what the law should be, a prerogative of the legislature which it
can neither abdicate nor surrender to the delegate.4The principle is based on the
separation and allocation of powers among the three departments of government.5

Thus, there are two accepted tests to determine whether or not there is a valid delegation
of legislative power, namely, the completeness test and the sufficient standard test. Under
the first test, the law must be complete in all its terms and conditions when it leaves the
legislature such that when it reaches the delegate, the only thing he will have to do is
enforce it. Under the sufficient standard test, there must be adequate guidelines or
limitations in the law to map out the boundaries of the delegate's authority and prevent
the delegation from running amiss.6

We have accepted as sufficient standards "interest of law and order,"7 "adequate and
efficient instruction," 8"public interest,"9 "justice and equity,"10 "public convenience and
welfare,"11 "simplicity, economy and efficiency,"12 "standardization and regulation of
medical education,"13 and "fair and equitable employment practices."14 Consequently,
the standard may be expressed or implied. In the former, the non delegation objection is
easily met. The standard though does not have to be spelled out but need only be implied
from the policy and purpose of the act considered as a whole.15 It may also be found in
other statutes on the same subject as that of the challenged legislation.16

In no uncertain terms must it be stressed that the function of promulgating rules and
regulations may be legitimately exercised only for the purpose of carrying out the
provisions of a law. The power of administrative agencies is confined to implementing
the law or putting it into effect. Corollary to this guideline is that administrative
regulation cannot extend the law and amend a legislative enactment.17

In the instant case, we believe that the PCA did not overstep the limits of its power in
issuing the assailed resolution. We need not belabor the point that one of the economic
goals of our country is the increased productivity of goods and services provided by the
nation for the benefit of the people,18 since from a purely economic standpoint, the
increase in agricultural productivity is of fundamental importance.19

Considering the responsibilities and powers assigned to the PCA, as well as its
underlying policy, namely, that "the economic well-being of a major part of the
population depends to a large extent on the viability of the industry and its improvement
in the areas of production, processing and marketing," the irresistible conclusion is that
PCA-BR No. 018-93 is a valid exercise of delegated legislation by the PCA. Such
resolution is in harmony with the objectives sought to be achieved by the laws regarding
the coconut industry, particularly "to promote accelerated growth and development of the
coconut and other palm oil industry,"20 and "rapid integrated development and growth of
the coconut and other palm oil industry."21These are sufficient standards to guide the
PCA. Thus, measures to achieve these policies are better left to the administrative
agencies tasked with implementing them.

It must be stressed that with increasing global trade and business and major upheavals in
technology and communications, the time has come for administrative policies and
regulations to adapt to ever-changing business needs rather than to accommodate
traditional acts of the legislature.22 Even the 1987 Constitution was designed to meet, not
only contemporary events, but also future and unknown circumstances.23

It is worth mentioning that the PCA, after conducting its studies, adopted the policy of
deregulation to further enhance the coconut industry competition, since any continuation
of the restrictive regulation in the industry would have detrimental effects.24 This is in
consonance with the constitutional mandate that the State must "adopt measures that help
make them (locally produced goods) competitive."25 Undoubtedly, an "agency, in light of
changing circumstances, is free to alter interpretative and policy views reflected in
regulations construing an underlying statute, so long as any changed construction of the
statute is consistent with express congressional intent or embodies a permissible reading
of the statute."26

Furthermore, the Constitution is cognizant of the realities of global interdependency, as it

requires the pursuit of "a trade policy that serves the general welfare and utilizes all forms
and arrangements of exchanges on the basis of equality and reciprocity."27

In sum, the policy of deregulation must be determined by the circumstances prevailing in

a certain situation.28 As we have stressed in the past, this Court is only concerned with
the question of authority, not the wisdom of the measure involved which falls within the
province of the Legislature.

The ponencia presents the issue: whether it is within the power of the PCA to renounce
the power to regulate implicit in the law creating it (P.D. No. 232). (It is to be pointed out
that this issue was not included in the Assignment of Errors of Petitioner).

Underlying this formulation is the assumption/admission that PCA has the power to
regulate the coconut industry, as in fact the power is bestowed upon it by its organic act,
P.D. No. 232, viz. "to promote the rapid integrated development and growth of the
coconut and other palm oils in industry in all its aspects and to ensure that the coconut
farmers become direct participants in, and beneficiaries of, such development and
growth." Its broad mandate is "to formulate and adopt a general program of development
for the coconut and other palm oils industry."

It avers that this "legislative scheme" was disregarded when the PCA adopted on March
24, 1993 the assailed Resolution which is effect liberalized the registration and licensing
requirements for the granting of permits to operate new coconut plants. But this was
effected pursuant to the October 23, 1987 PCA Board Resolution laying down the policy
of deregulating the industry and authorizing the creation of additional desiccated coconut
plants.

As with any administrative agency established to promote the growth and development of
any industry, the PCA has considerable latitude to adopt policies designed to accelerate
the attainment of this objective and corollarily, to lay down rules and regulations to
implement the same. We can take judicial notice of the fact that during its 25 years of
existence, the PCA has achieved enough experience and expertise to introduce measures
which shall ensure the dominant role of the crop as a major dollar-producing industry,
including the manipulation of market forces to our comparative advantage, certainly an
area beyond the Court's ken.

Hence, guided by guidelines already laid down, it responded to regional developments

by:

(1) taking cognizance of the overproduction in the industry and curtailing the expansion
of coconut processing plants in 1982, within reasonable limits and with safeguards (hence
the issuance of Executive Order Nos. 826 on August 28, 1982 and No. 854 on December
6, 1982);

(2) five years later, responding to the demand for desiccated coconut products in the
world market, liberalized its former policy by deregulating the industry and authorizing
the creation of additional desiccated coconut plants in 1987;

(3) complementing and supplementing (2), by easing registration and licensing

requirements in 1993.

It bears repeating that the above measures were not taken arbitrarily but in careful
compliance with guidelines incorporated in the Executive Orders and subject to the
favorable recommendation of the Secretary of Agriculture and the approval of the
President.

The crux of the ponencia is that, in the process of opening doors to foreign markets, the
PCA "limited itself to merely monitoring their volumes of production and administration
of quality standards, in effect abdicating its role and leaving it almost totally to market
forces to define how the industry will develop."

Actually, the relevant provisions in the disputed resolution reads:

Resolved further, that the PCA shall limit itself only to simply registering the
aforementioned coconut product processors for the purpose of monitoring their
volumes of production, administration of quality standards with the corresponding
service fees/charges.

For the sake of clarity and accuracy, it is to be stressed that the PCA did not limit itself
"merely to monitoring . . ." as the ponencia states, but to "registering the . . . processors
for the purpose of monitoring their volumes of production and administration of quality
standards. . . ."

In the actual words of the Resolution, the PCA recognizes its principal function of
registration so as to be able to monitor the production and administer quality standards,
both objectives of which are not merely nominal or minimal, but substantial, even vital,
aspects of the power to regulate. Put differently, there is no renunciation of the power to
regulate, for the regulation is essentially recognized and accomplished through the
registration function which enables the PCA to keep track of the volume of production
and the observance of quality standards by new entrants into the industry. In sum,
trimming down its functions to registration is not an abdication of the power to regulate
but is regulation itself.

If the PCA, in light of the crucial developments in the regional and domestic coconut
industry decides to open wide its doors, allow the free entry of other players and the
interplay of competitive forces to shape the configuration of the industry, who are we to
declare such policy as one characterized by "wastefulness and inefficiency . . . based on
its naive faith in survival of the fittest." Is not this a blatant incursion by the Court into
the economic arena which is better left to the administrative agency precisely tasked to
promote the growth of the industry, through the exercise of its studied discretion? To be
sure, those operators already in the field, such as the petitioner members of the
Association of Philippine Coconut Desiccators, are expected to vigorously protest and
work for the nullity of what they perceive as an obnoxious, life threatening policy. But
instead of opposing what the PCA views as a timely, well-considered move, the healthy
competition should spur them to improving their product and elevating the standards they
have imposed on themselves.

If, in the course of its monitoring which is a piece of the regulatory function, the PCA
should detect a violation of its guidelines that would result in a lowering of the quality of
the product, or unfairness to other players, surely, it is not powerless to impose sanctions,
as categorically provided in P.D. 1469, P.D. 1644, Adm. Order No. 003, Series of 1981
and Adm. Order No. 002, Series of 1991. Any administrative agency is empowered to
establish its implementing rules, together with sanctions guaranteed to ensure the
observance of such rules, else it would be a mere "toothless" entity.

The ponencia prognosticates, "The result can very well be a repeat of 1982 when free
enterprise degenerated into a 'free-for-all,' resulting in cutthroat competition,
underselling, the production of inferior products and the like, which badly affected the
foreign trade performance of our coconut industry." Are we not encroaching on legislative
domain in questioning the wisdom of the action taken by the PCA which was accorded a
broad mandate by the Congress? Moreover, let us bear in mind that during those
"abnormal times," forces other than merely economic, e.g. political, dominated the
economy effectively supporting, even favoring, destructive capitalistic monopolies and,
in the process suppressing healthy competition.

Not to forget, too, that we cannot close our eyes and ignore the world-wide trend towards
globalization in the economy, as in other fields, as in fact the Court recognized this
economic reality in its decision in the Oil Deregulation Case.

With the unrelenting march of globalization in our economy, the Philippines must find its
market niches and be able to adapt to these inevitable changes, for the Asia-Pacific rim is
bound to become a truly dynamic region in the economic, political and cultural arenas in
the coming millennium.

ACCORDINGLY, the petition should be DISMISSED.

Bellosillo, Melo, Vitug, Quisumbing and Purisima, JJ., dissent.

Separate Opinions

ROMERO, J., dissenting;

The past decade, a distinct worldwide trend towards economic deregulation has been
evident. Both developed and developing countries have seriously considered, and
extensively adopted, various measures for this purpose. The Philippines has been no
exception.

To this end, the Philippine Coconut Authority (PCA) issued Board Resolution No. 018-93
(PCA-BR No 018-93) dated March 24, 1993, deregulating the coconut processing plant
industry.1 The Association of Philippine Desiccators (APCD) has filed this instant
petition for prohibition and mandamus under Rule 65 of the Rules of Court seeking the
annulment of said resolution.

APCD questions the validity of PCA-BR No. 018-93 for being violative of the principle
of non-delegability of legislative power. It contends that in issuing the resolution
deregulating the coconut industry, the PCA exercised legislative discretion, which has not
been delegated to it by Congress. It adds that when PCA deregulated the coconut
industry, it ran counter to the very laws2 which mandated it to regulate and rationalize the
industry.

We see no merit in this contention. PCA's authority to issue PCA-BR No. 018-93 is
clearly provided in Section 3(a) of P.D. No. 232, reading as follows:

. . . To formulate and adopt a general program of development for the coconut and
other palm oil industry.

Similar grants of authority were made in subsequent amendatory laws.3

In this regard, we have ruled that legislative discretion, as to the substantive contents of a
law, cannot be delegated. What may be delegated is the discretion to determine how the
law is to be enforced, not what the law should be, a prerogative of the legislature which it
can neither abdicate nor surrender to the delegate.4The principle is based on the
separation and allocation of powers among the three departments of government.5

Thus, there are two accepted tests to determine whether or not there is a valid delegation
of legislative power, namely, the completeness test and the sufficient standard test. Under
the first test, the law must be complete in all its terms and conditions when it leaves the
legislature such that when it reaches the delegate, the only thing he will have to do is
enforce it. Under the sufficient standard test, there must be adequate guidelines or
limitations in the law to map out the boundaries of the delegate's authority and prevent
the delegation from running amiss.6

We have accepted as sufficient standards "interest of law and order,"7 "adequate and
efficient instruction," 8"public interest,"9 "justice and equity,"10 "public convenience and
welfare,"11 "simplicity, economy and efficiency,"12 "standardization and regulation of
medical education,"13 and "fair and equitable employment practices."14 Consequently,
the standard may be expressed or implied. In the former, the non delegation objection is
easily met. The standard though does not have to be spelled out but need only be implied
from the policy and purpose of the act considered as a whole.15 It may also be found in
other statutes on the same subject as that of the challenged legislation.16

In no uncertain terms must it be stressed that the function of promulgating rules and
regulations may be legitimately exercised only for the purpose of carrying out the
provisions of a law. The power of administrative agencies is confined to implementing
the law or putting it into effect. Corollary to this guideline is that administrative
regulation cannot extend the law and amend a legislative enactment.17

In the instant case, we believe that the PCA did not overstep the limits of its power in
issuing the assailed resolution. We need not belabor the point that one of the economic
goals of our country is the increased productivity of goods and services provided by the
nation for the benefit of the people,18 since from a purely economic standpoint, the
increase in agricultural productivity is of fundamental importance.19

Considering the responsibilities and powers assigned to the PCA, as well as its
underlying policy, namely, that "the economic well-being of a major part of the
population depends to a large extent on the viability of the industry and its improvement
in the areas of production, processing and marketing," the irresistible conclusion is that
PCA-BR No. 018-93 is a valid exercise of delegated legislation by the PCA. Such
resolution is in harmony with the objectives sought to be achieved by the laws regarding
the coconut industry, particularly "to promote accelerated growth and development of the
coconut and other palm oil industry,"20 and "rapid integrated development and growth of
the coconut and other palm oil industry."21These are sufficient standards to guide the
PCA. Thus, measures to achieve these policies are better left to the administrative
agencies tasked with implementing them.

It must be stressed that with increasing global trade and business and major upheavals in
technology and communications, the time has come for administrative policies and
regulations to adapt to ever-changing business needs rather than to accommodate
traditional acts of the legislature.22 Even the 1987 Constitution was designed to meet, not
only contemporary events, but also future and unknown circumstances.23

It is worth mentioning that the PCA, after conducting its studies, adopted the policy of
deregulation to further enhance the coconut industry competition, since any continuation
of the restrictive regulation in the industry would have detrimental effects.24 This is in
consonance with the constitutional mandate that the State must "adopt measures that help
make them (locally produced goods) competitive."25 Undoubtedly, an "agency, in light of
changing circumstances, is free to alter interpretative and policy views reflected in
regulations construing an underlying statute, so long as any changed construction of the
statute is consistent with express congressional intent or embodies a permissible reading
of the statute."26
Furthermore, the Constitution is cognizant of the realities of global interdependency, as it
requires the pursuit of "a trade policy that serves the general welfare and utilizes all forms
and arrangements of exchanges on the basis of equality and reciprocity."27

In sum, the policy of deregulation must be determined by the circumstances prevailing in

a certain situation.28 As we have stressed in the past, this Court is only concerned with
the question of authority, not the wisdom of the measure involved which falls within the
province of the Legislature.

The ponencia presents the issue: whether it is within the power of the PCA to renounce
the power to regulate implicit in the law creating it (P.D. No. 232). (It is to be pointed out
that this issue was not included in the Assignment of Errors of Petitioner).

Underlying this formulation is the assumption/admission that PCA has the power to
regulate the coconut industry, as in fact the power is bestowed upon it by its organic act,
P.D. No. 232, viz. "to promote the rapid integrated development and growth of the
coconut and other palm oils in industry in all its aspects and to ensure that the coconut
farmers become direct participants in, and beneficiaries of, such development and
growth." Its broad mandate is "to formulate and adopt a general program of development
for the coconut and other palm oils industry."

It avers that this "legislative scheme" was disregarded when the PCA adopted on March
24, 1993 the assailed Resolution which is effect liberalized the registration and licensing
requirements for the granting of permits to operate new coconut plants. But this was
effected pursuant to the October 23, 1987 PCA Board Resolution laying down the policy
of deregulating the industry and authorizing the creation of additional desiccated coconut
plants.

As with any administrative agency established to promote the growth and development of
any industry, the PCA has considerable latitude to adopt policies designed to accelerate
the attainment of this objective and corollarily, to lay down rules and regulations to
implement the same. We can take judicial notice of the fact that during its 25 years of
existence, the PCA has achieved enough experience and expertise to introduce measures
which shall ensure the dominant role of the crop as a major dollar-producing industry,
including the manipulation of market forces to our comparative advantage, certainly an
area beyond the Court's ken.

Hence, guided by guidelines already laid down, it responded to regional developments

by:

(1) taking cognizance of the overproduction in the industry and curtailing the expansion
of coconut processing plants in 1982, within reasonable limits and with safeguards (hence
the issuance of Executive Order Nos. 826 on August 28, 1982 and No. 854 on December
6, 1982);
(2) five years later, responding to the demand for desiccated coconut products in the
world market, liberalized its former policy by deregulating the industry and authorizing
the creation of additional desiccated coconut plants in 1987;

(3) complementing and supplementing (2), by easing registration and licensing

requirements in 1993.

It bears repeating that the above measures were not taken arbitrarily but in careful
compliance with guidelines incorporated in the Executive Orders and subject to the
favorable recommendation of the Secretary of Agriculture and the approval of the
President.

The crux of the ponencia is that, in the process of opening doors to foreign markets, the
PCA "limited itself to merely monitoring their volumes of production and administration
of quality standards, in effect abdicating its role and leaving it almost totally to market
forces to define how the industry will develop."

Actually, the relevant provisions in the disputed resolution reads:

Resolved further, that the PCA shall limit itself only to simply registering the
aforementioned coconut product processors for the purpose of monitoring their
volumes of production, administration of quality standards with the corresponding
service fees/charges.

For the sake of clarity and accuracy, it is to be stressed that the PCA did not limit itself
"merely to monitoring . . ." as the ponencia states, but to "registering the . . . processors
for the purpose of monitoring their volumes of production and administration of quality
standards. . . ."

In the actual words of the Resolution, the PCA recognizes its principal function of
registration so as to be able to monitor the production and administer quality standards,
both objectives of which are not merely nominal or minimal, but substantial, even vital,
aspects of the power to regulate. Put differently, there is no renunciation of the power to
regulate, for the regulation is essentially recognized and accomplished through the
registration function which enables the PCA to keep track of the volume of production
and the observance of quality standards by new entrants into the industry. In sum,
trimming down its functions to registration is not an abdication of the power to regulate
but is regulation itself.

If the PCA, in light of the crucial developments in the regional and domestic coconut
industry decides to open wide its doors, allow the free entry of other players and the
interplay of competitive forces to shape the configuration of the industry, who are we to
declare such policy as one characterized by "wastefulness and inefficiency . . . based on
its naive faith in survival of the fittest." Is not this a blatant incursion by the Court into
the economic arena which is better left to the administrative agency precisely tasked to
promote the growth of the industry, through the exercise of its studied discretion? To be
sure, those operators already in the field, such as the petitioner members of the
Association of Philippine Coconut Desiccators, are expected to vigorously protest and
work for the nullity of what they perceive as an obnoxious, life threatening policy. But
instead of opposing what the PCA views as a timely, well-considered move, the healthy
competition should spur them to improving their product and elevating the standards they
have imposed on themselves.

If, in the course of its monitoring which is a piece of the regulatory function, the PCA
should detect a violation of its guidelines that would result in a lowering of the quality of
the product, or unfairness to other players, surely, it is not powerless to impose sanctions,
as categorically provided in P.D. 1469, P.D. 1644, Adm. Order No. 003, Series of 1981
and Adm. Order No. 002, Series of 1991. Any administrative agency is empowered to
establish its implementing rules, together with sanctions guaranteed to ensure the
observance of such rules, else it would be a mere "toothless" entity.

The ponencia prognosticates, "The result can very well be a repeat of 1982 when free
enterprise degenerated into a 'free-for-all,' resulting in cutthroat competition,
underselling, the production of inferior products and the like, which badly affected the
foreign trade performance of our coconut industry." Are we not encroaching on legislative
domain in questioning the wisdom of the action taken by the PCA which was accorded a
broad mandate by the Congress? Moreover, let us bear in mind that during those
"abnormal times," forces other than merely economic, e.g. political, dominated the
economy effectively supporting, even favoring, destructive capitalistic monopolies and,
in the process suppressing healthy competition.

Not to forget, too, that we cannot close our eyes and ignore the world-wide trend towards
globalization in the economy, as in other fields, as in fact the Court recognized this
economic reality in its decision in the Oil Deregulation Case.

With the unrelenting march of globalization in our economy, the Philippines must find its
market niches and be able to adapt to these inevitable changes, for the Asia-Pacific rim is
bound to become a truly dynamic region in the economic, political and cultural arenas in
the coming millennium.

ACCORDINGLY, the petition should be DISMISSED.

Bellosillo, Melo, Vitug, Quisumbing and Purisima, JJ., dissent.

 2.Philippine Virginia Tobacco Adm. vs. CIR

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

PHILIPPINE VIRGINIA TOBACCO ADMINISTRATION, Petitioner, v. COURT

OF INDUSTRIAL RELATIONS, REUEL ABRAHAM, MILAGROS ABUEG,
AVELINO ACOSTA, CAROLINA ACOSTA, MARTIN AGSALUD, JOSEFINA
AGUINALDO, GLORIA ALBANO, ANTONIO ALUNING, COSME ALVAREZ,
ISABEL ALZATE, AURORA APUSEN, TOMAS ARCANGEL, LOURDES
ARJONILLO, MANUEL AROMIN, DIONISIO ASISTIN, JOSE AURE, NICASIO
AZNAR, EUGENIO AZURIN, CLARITA BACUGAN, PIO BALAGOT, HEREDIO
BALMACEDA, ESTHER BANAAG, JOVENCIO BARBERO, MONICO
BARBADILLO, HERNANDO BARROZO, FILIPINA BARROZO, REMEDIO
BARTOLOME, ANGELINA BASCOS, JOSE BATALLA, ALMARIO BAUTISTA
EUGENIO BAUTISTA, JR., HERMALO BAUTISTA, JUANITO BAUTISTA,
SEVERINO BARBANO, CAPPIA BARGONIA, ESMERALDA BERNARDEZ,
RUBEN BERNARDEZ, ALFREDO BONGER, TOMAS BOQUIREN, ANGELINA
BRAVO, VIRGINIA BRINGA, ALBERTO BUNEO, SIMEON CABANAYAN,
LUCRECIA CACATIAN, LEONIDES CADAY, ANGELINA CADOTTE,
IGNACIO CALAYCAY, PACIFICO CALUB, RUFINO CALUZA, CALVIN
CAMBA, ALFREDO CAMPOSENO, BAGUILITA CANTO, ALFREDO
CARRERA, PEDRO CASES, CRESCENTE CASIS, ERNESTO CASTANEDA,
HERMINIO CASTILLO, JOSE CASTRO, LEONOR CASTRO, MADEO
CASTRO, MARIA PINZON CASTRO, PABLO CATURA, RESTITUTO
CESPADES, FLORA CHACON, EDMUNDO CORPUZ, ESTHER CRUZ, CELIA
CUARESMA, AQUILINO DACAYO, DIONISIA DASALLA, SOCORRO DELFIN,
ABELARDO DIAZ, ARTHUR DIAZ, CYNTHIA DIZON, MARCIA DIZON,
ISABELO DOMINGO, HONORATA DOZA, CAROLINA DUAD, JUSTINIANO
EPISTOLA, ROMEO ENCARNACION, PRIMITIVO ESCAÑO, ELSA ESPEJO,
JUAN ESPEJO, RIZALINA ESQUILLO, YSMAEL FARINAS, LORNA FAVIS,
DAN FERNANDEZ, JAIME FERNANDEZ, ALFREDO FERRER, MODESTO
FERRER, JR., EUGENIO FLANDEZ, GUILLERMO FLORENDO, ALFREDO
FLORES, DOMINGA FLORES, ROMEO FLORES, LIGAYA FONTANILLA,
MELCHOR GASMEN, LEILA GASMENA, CONSUELO GAROLAGA,
ALFONSO GOROSPE, CESAR GOROSPE, RICARDO GOROSPE, JR.,
CARLITO GUZMAN, ERNESTO DE GUZMAN, THELMA DE GUZMAN, FELIX
HERNANDEZ, SOLIVEN HERNANDO, FRANCISCO HIDALGO, LEONILO
INES, SIXTO JAQUIES, TRINIDAD JAVIER, FERMIN LAGUA, GUALBERTO
LAMBINO, ROMAN LANTING, OSCAR LAZO, ROSARIO LAZO, JOSEFINA
DE LARA, AMBROSIO LAZOL, NALIE LIBATIQUE, LAMBERTO LLAMAS,
ANTONIO LLANES, ROMULA LOPEZ, ADRIANO LORENZANA, ANTONIO
MACARAEG, ILDEFONSO MAGAT, CECILIO MAGHANOY, ALFONSO
MAGSANOC, AVELINA MALLARE, AUGUSTO MANALO, DOMINADOR
MANASAN, BENITO MANECLANG, JR., TIRSO MANGUMAY, EVELLA
MANZANO, HONORANTE MARIANO, DOMINGO MEDINA, MARTIN
MENDOZA, PERFECTO MILANA, EMILIO MILLAN, GREGORIO
MONEGAS, CONSOLACION NAVALTA, NOLI OCAMPO, VICENTE
CLEGARIO, ELPIDIO PALMONES, ARACELI PANGALANGAN, ISIDORO
PANLASIGUI, JR., ARTEMIO PARIS, JR., FEDERICO PAYUMO, JR., NELIA
PAYUMO, BITUEN PAZ, FRANCISCO PENGSON, OSCAR PERALTA,
PROCORRO PERALTA, RAMON PERALTA, MINDA PICHAY, MAURO
PIMENTEL, RUDENCIO PIMENTEL, LEOPOLDO PUNO, REYNALDO RABE,
ROLANDO REA, CONSTANTINO REA, CECILIA RICO, CECILIO
RILLORAZA, AURORA ROMAN, MERCEDES RUBIO, URSULA RUPISAN,
OLIVIA SABADO, BERNARDO SACRAMENTO, LUZ SALVADOR, JOSE
SAMSON, JR., ROMULA DE LOS SANTOS, ANTONIO SAYSON, JR.,
FLORANTE SERIL, MARIO SISON, RUDY SISON, PROCEDIO TABIN,
LUCENA TABISULA, HANNIBAL TAJANO, ENRIQUE TIANGCO, JR.,
JUSTINIANO TOBIAS, NYMIA TOLENTINO, CONSTANTE TOLENTINO,
TEODORO TORIBIO, FEDERICO TRINIDAD, JOVENCINTO TRINIDAD,
LAZARO VALDEZ, LUDRALINA VALDEZ, MAXIMINA VALDEZ,
FRANCISCO VELASCO, JR., ROSITA VELASCO, SEVERO VANTANILLA,
VENANCIO VENTIGAN, FELICITAS VENUS, NIEVES DE VERA, ELISEO
VERSOZA, SILVESTRE VILA, GLORIA VILLAMOR, ALEJANDRO
VILLANUEVA, DAVID VILLANUEVA, CAROLINA VILLASEÑOR, ORLANDO
VILLASTIQUE, MAJELLA VILORIN, ROSARIO VILORIA, MAY VIRATA,
FEDERICO VIRAY, MELBA YAMBAO, MARIO ZAMORA, AUTENOR ABUEG,
SOTERO ACEDO, HONRADO ALBERTO, FELIPE ALIDO, VICENTE
ANCHUELO, LIBERTAD APEROCHO, MARIANO BALBAGO, MARIO
BALMACEDA, DAISY BICENIO, SYLVIA BUSTAMANTE, RAYMUNDO
GEMERINO, LAZARO CAPURAS, ROGELIO CARUNGCONG, ZACARIAS
CAYETANO, JR., LILY CHUA, ANDRES CRUZ, ARTURO CRUZ, BIENVENIDO
ESTEBAN, PABLO JARETA, MANUEL JOSE, NESTORIA KINTANAR,
CLEOPATRIA LAZEM. MELCHOR LAZO, JESUS LUNA, GASPAR MARINAS,
CESAR MAULSON, MANUEL MEDINA, JESUS PLURAD, LAKAMBINI
RAZON, GLORIA IBAÑEZ, JOSE SANTOS, ELEAZAR SQUI, JOSE TAMAYO,
FELIPE TENORIO, SILVINO UMALI, VICENTE ZARA, SATURNINO GARCIA,
WILLIAM GARCIA, NORMA GARINGARAO, ROSARIO ANTONIO, RUBEN
BAUTISTA, QUIRINO PUESTO, NELIA M. GOMERI, OSCAR R. LANUZA,
AURORA M. LINDAYA, GREGORIO MOGSINO, JACINTO B. PAPA,
GREGORIO R. RIEGO, TERESITA N. ROZUL, MAGTANGOL SAMALA,
 PORFIRIO AGCOLIS, LEONARDO MONTE, HERMELINO PATI, ALFREDO
AYOYO, PURIFICACION ROJAS, ODANO TEAÑO, RICARDO SANTIAGO,
and MARCELO MANGAHAS, Respondents.

Gov’t. Corp. Counsel Leopoldo M. Abellera, Trial Attorneys Manuel M. Lazaro &
Vicente Constantino, Jr., for Petitioner.

Renato B. Kare & Simeon C. Sato for Private Respondents.

SYNOPSIS

Private respondent filed with the Court of Industrial Relations a petition to recover
overtime pay for services rendered in excess of eight hours a day. Said Court rendered a
decision directing petitioner to pay private respondents’ claim, minus what had already
been paid. A motion for reconsideration having been denied, petitioner filed this petition
for certiorari on the ground that respondent court is without jurisdiction since the
Philippine Virginia Tobacco Administration exercises governmental functions and that it
is not covered by the Eight-Hour Labor Law.

The Court affirmed the decision ruling that performance of governmental function does
not militate against Court of Industrial Relation’s jurisdiction and that the Eight-Hour
Labor Law applies to "all persons employed in any industry or occupation whether public
or private."cralaw virtua1aw library

Case referred to the National Labor Relations Commission for further proceedings as
provided by the New Labor Code.

SYLLABUS

1. CONSTITUTIONAL LAW; STATE; REJECTION OF LAISSEZ FAIRE DOCTRINE.

— As held in Edu v. Ericta, L-32096, October 24, 1970: ". . ., to erase any doubts the
Constitutional Convention saw to it that the concept of laissez faire was rejected. It
entrusted to our government the responsibility of coping with social and economic
problems with the commensurate power of control over economic affairs. Thereby it
could live up to its commitment to promote the general welfare through state
action."cralaw virtua1aw library

2. ID.; ID.; ID.; REASONS. — Rejection of the laissez faire doctrine is one way by
which through "the harsh contrast which obtain between the levels of the rich and the
poor" may be minimized. It is a response to the trend noted by Justice Laurel in Calalang
v. Williams, 70 Phil. 726, for the humanization of laws and promotion of the interest of
all component elements of society so that man’s innate aspirations, in what was so
felicitously termed by the First Lady as "a compassionate society," be attained.

3. ID.; ID.; ID.; PHILIPPINE VIRGINIA TOBACCO ADMINISTRATION PERFORMS

GOVERNMENTAL FUNCTION. — From a cursory perusal of the purposes and
objectives of RA No. 2265, creating the Philippine Virginia Tobacco Administration, and
RA No. 4155, amending the same, it is clear that the said body exercises governmental
and not propriety function.

4. ID.; ID.; ID.; PERFORMANCE OF GOVERNMENTAL FUNCTION DOES NOT

MILITATE AGAINST COURT OF INDUSTRIAL RELATION’S JURISDICTION
OVER LABOR DISPUTES. — In Philippine Virginia Tobacco Administration v. Judge
Honorato B. Masakayan, L-29538, November 29, 1972, where the point in dispute was
whether it was the Court of Industrial Relations or a court of first instance that is
possessed of competence in a declaratory relief for the interpretation of a collective
bargaining agreement, one that could readily be thought of as pertaining to the Judiciary,
the answer was that "unless the law speaks clearly and unequivocally, the choice should
fall on the Court of Industrial Relations." Reference to a number of decisions which
recognized in the then respondent court the jurisdiction to determine labor controversies
by government owned or controlled corporations lend support to such an approach.

5. ID.; PROTECTION TO LABOR; EIGHT HOUR LABOR LAW; COVERS BODIES

EXERCISING GOVERNMENTAL FUNCTION. — Section 2 of the Eight Hour Labor
Law leaves no doubt that "it shall apply to all persons employed in any industry or
occupation, whether public or private . . ." Private respondents, therefore are not included
among the employees who are barred from enjoying the statutory benefits.

DECISION

FERNANDO, J.:

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

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

Petitioner Philippine Virginia Tobacco Administration, as had been noted, would

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

1. A reference to the enactments creating petitioner corporation suffices to demonstrate

the merit of petitioner’s plea that it performs governmental and not proprietary functions.
As originally established by Republic Act No. 2265, 12 its purposes and objectives were
set forth thus:" (a) To promote the effective merchandising of Virginia tobacco in the
domestic and foreign markets so that those engaged in the industry will be placed on a
basis of economic security; (b) To establish and maintain balanced production and
consumption of Virginia tobacco and its manufactured products, and such marketing
conditions as will insure and stabilize the price of a level sufficient to cover the cost of
production plus reasonable profit both in the local as well as in the foreign market; (c) To
create, establish, maintain, and operate processing, warehousing and marketing facilities
in suitable centers and supervise the selling and buying of Virginia tobacco so that the
farmers will enjoy reasonable prices that secure a fair return of their investments; (d) To
prescribe rules and regulations governing the grading, classifying, and inspecting of
Virginia tobacco; and (e) To improve the living and economic conditions of the people
engaged in the tobacco industry." 13 The amendatory statute, Republic Act No. 4155, 14
renders even more evident its nature as a governmental agency. Its first section on the
declaration of policy reads: "It is declared to be the national policy, with respect to the
local Virginia tobacco industry, to encourage the production of local Virginia tobacco of
the qualities needed and in quantities marketable in both domestic and foreign markets, to
establish this industry on an efficient and economic basis, and to create a climate
conducive to local cigarette manufacture of the qualities desired by the consuming public,
blending imported and native Virginia leaf tobacco to improve the quality of locally
manufactured cigarettes." 15 The objectives are set forth thus: "To attain this national
policy the following objectives are hereby adopted: 1. Financing; 2. Marketing; 3. The
disposal of stocks of the Agricultural Credit Administration (ACA) and the Philippine
Virginia Tobacco Administration (PVTA) at the best obtainable prices and conditions in
order that a reinvigorated Virginia tobacco industry may be established on a sound basis;
and 4. Improving the quality of locally manufactured cigarettes through blending of
imported and native Virginia leaf tobacco; such importation with corresponding
exportation at a ratio of one kilo of imported to four kilos of exported Virginia tobacco,
purchased by the importer-exporter from the Philippine Virginia Tobacco
Administration." 16

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

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

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

2. The success that attended the efforts of petitioner to be adjudged as performing

governmental rather than proprietary functions cannot militate against respondent Court
assuming jurisdiction over this labor dispute. So it was mentioned earlier. As far back as
Tabora v. Montelibano, 32 this Court, speaking through Justice Padilla, declared: "The
NARIC was established by the Government to protect the people against excessive or
unreasonable rise in the price of cereals by unscrupulous dealers. With that main
objective there is no reason why its function should not be deemed governmental. The
Government owes its very existence to that aim and purpose — to protect the people." 33
In a subsequent case, Naric Worker’s Union v. Hon. Alvendia, 34 decided four years later,
this Court, relying on Philippine Association of Free Labor Unions v. Tan, 35 which
specified the cases within the exclusive jurisdiction of the Court of Industrial Relations,
included among which is one that involves hours of employment under the Eight-Hour
Labor Law, ruled that it is precisely respondent Court and not ordinary courts that should
pass upon that particular labor controversy. For Justice J. B. L. Reyes, the ponente, the
fact that there were judicial as well as administrative and executive pronouncements to
the effect that the Naric was performing governmental functions did not suffice to confer
competence on the then respondent Judge to issue a preliminary injunction and to
entertain a complaint for damages, which as pointed out by the labor union, was
connected with an unfair labor practice. This is emphasized by the dispositive portion of
the decision: "Wherefore, the restraining orders complained of, dated May 19, 1958 and
May 27, 1958, are set aside, and the complaint is ordered dismissed, without prejudice to
the National Rice and Corn Corporation’s seeking whatever remedy it is entitled to in the
Court of Industrial Relations." 36 Then, too, in a case involving petitioner itself,
Philippine Virginia Tobacco Administration, 37 where the point in dispute was whether it
was respondent Court or a court of first instance that is possessed of competence in a
declaratory relief petition for the interpretation of a collective bargaining agreement, one
that could readily be thought of as pertaining to the judiciary, the answer was that "unless
the law speaks clearly and unequivocally, the choice should fall on the Court of Industrial
Relations." 38 Reference to a number of decisions which recognized in the then
respondent Court the jurisdiction to determine labor controversies by government-owned
or controlled corporations lends to support to such an approach. 39 Nor could it be
explained only on the assumption that proprietary rather than governmental functions did
call for such a conclusion. It is to be admitted that such a view was not previously bereft
of plausibility. With the aforecited Agricultural Credit and Cooperative Financing
Administration decision rendering obsolete the Bacani doctrine, it has, to use a Wilsonian
phrase, now lapsed into "innocuous desuetude." 40 Respondent Court clearly was vested
with jurisdiction.

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

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

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

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

Teehankee J., is on official leave.

 4. 30 SCRA 968 (Reagan vs. Commissioner of Internal Revenue)

G.R. No. L-26379 December 27, 1969

WILLIAM C. REAGAN, ETC., petitioner,

vs.
COMMISSIONER OF INTERNAL REVENUE, respondent.

Quasha, Asperilla, Blanco, Zafra and Tayag for petitioner.

Office of the Solicitor General Antonio P. Barredo, Assistant Solicitor General Felicisimo
R. Rosete, Solicitor Lolita O. Gal-lang and Special Attorney Gamaliel H. Mantolino for
respondent.

FERNANDO, J.:

A question novel in character, the answer to which has far-reaching implications, is raised
by petitioner William C. Reagan, at one time a civilian employee of an American
corporation providing technical assistance to the United States Air Force in the
Philippines. He would dispute the payment of the income tax assessed on him by
respondent Commissioner of Internal Revenue on an amount realized by him on a sale of
his automobile to a member of the United States Marine Corps, the transaction having
taken place at the Clark Field Air Base at Pampanga. It is his contention, seriously and
earnestly expressed, that in legal contemplation the sale was made outside Philippine
territory and therefore beyond our jurisdictional power to tax.
Such a plea, far-fetched and implausible, on its face betraying no kinship with reality, he
would justify by invoking, mistakenly as will hereafter be more fully shown an
observation to that effect in a 1951 opinion, 1 petitioner ignoring that such utterance was
made purely as a flourish of rhetoric and by way of emphasizing the decision reached,
that the trading firm as purchaser of army goods must respond for the sales taxes due
from an importer, as the American armed forces being exempt could not be taxed as such
under the National Internal Revenue Code.2 Such an assumption, inspired by the
commendable aim to render unavailing any attempt at tax evasion on the part of such
vendee, found expression anew in a 1962 decision,3 coupled with the reminder however,
to render the truth unmistakable, that "the areas covered by the United States Military
Bases are not foreign territories both in the political and geographical sense."

As thus clarified, it is manifest that such a view amounts at most to a legal fiction and is
moreover obiter. It certainly cannot control the resolution of the specific question that
confronts us. We declare our stand in an unequivocal manner. The sale having taken place
on what indisputably is Philippine territory, petitioner's liability for the income tax due as
a result thereof was unavoidable. As the Court of Tax Appeals reached a similar
conclusion, we sustain its decision now before us on appeal.

In the decision appealed from, the Court of Tax Appeals, after stating the nature of the
case, started the recital of facts thus: "It appears that petitioner, a citizen of the United
States and an employee of Bendix Radio, Division of Bendix Aviation Corporation,
which provides technical assistance to the United States Air Force, was assigned at Clark
Air Base, Philippines, on or about July 7, 1959 ... . Nine (9) months thereafter and before
his tour of duty expired, petitioner imported on April 22, 1960 a tax-free 1960 Cadillac
car with accessories valued at $6,443.83, including freight, insurance and other
charges."4 Then came the following: "On July 11, 1960, more than two (2) months after
the 1960 Cadillac car was imported into the Philippines, petitioner requested the Base
Commander, Clark Air Base, for a permit to sell the car, which was granted provided that
the sale was made to a member of the United States Armed Forces or a citizen of the
United States employed in the U.S. military bases in the Philippines. On the same date,
July 11, 1960, petitioner sold his car for $6,600.00 to a certain Willie Johnson, Jr. (Private
first class), United States Marine Corps, Sangley Point, Cavite, Philippines, as shown by
a Bill of Sale . . . executed at Clark Air Base. On the same date, Pfc. Willie (William)
Johnson, Jr. sold the car to Fred Meneses for P32,000.00 as evidenced by a deed of sale
executed in Manila."5

As a result of the transaction thus made, respondent Commissioner of Internal Revenue,

after deducting the landed cost of the car as well as the personal exemption to which
petitioner was entitled, fixed as his net taxable income arising from such transaction the
amount of P17,912.34, rendering him liable for income tax in the sum of P2,979.00. After
paying the sum, he sought a refund from respondent claiming that he was exempt, but
pending action on his request for refund, he filed the case with the Court of Tax Appeals
seeking recovery of the sum of P2,979.00 plus the legal rate of interest.

As noted in the appealed decision: "The only issue submitted for our resolution is
whether or not the said income tax of P2,979.00 was legally collected by respondent for
petitioner."6 After discussing the legal issues raised, primarily the contention that the
Clark Air Base "in legal contemplation, is a base outside the Philippines" the sale
therefore having taken place on "foreign soil", the Court of Tax Appeals found nothing
objectionable in the assessment and thereafter the payment of P2,979.00 as income tax
and denied the refund on the same. Hence, this appeal predicated on a legal theory we
cannot accept. Petitioner cannot make out a case for reversal.

1. Resort to fundamentals is unavoidable to place things in their proper perspective,

petitioner apparently feeling justified in his refusal to defer to basic postulates of
constitutional and international law, induced no doubt by the weight he would accord to
the observation made by this Court in the two opinions earlier referred to. To repeat, scant
comfort, if at all is to be derived from such an obiter dictum, one which is likewise far
from reflecting the fact as it is.

Nothing is better settled than that the Philippines being independent and sovereign, its
authority may be exercised over its entire domain. There is no portion thereof that is
beyond its power. Within its limits, its decrees are supreme, its commands paramount. Its
laws govern therein, and everyone to whom it applies must submit to its terms. That is the
extent of its jurisdiction, both territorial and personal. Necessarily, likewise, it has to be
exclusive. If it were not thus, there is a diminution of its sovereignty.

It is to be admitted that any state may, by its consent, express or implied, submit to a
restriction of its sovereign rights. There may thus be a curtailment of what otherwise is a
power plenary in character. That is the concept of sovereignty as auto-limitation, which,
in the succinct language of Jellinek, "is the property of a state-force due to which it has
the exclusive capacity of legal self-determination and self-restriction."7 A state then, if it
chooses to, may refrain from the exercise of what otherwise is illimitable competence.

Its laws may as to some persons found within its territory no longer control. Nor does the
matter end there. It is not precluded from allowing another power to participate in the
exercise of jurisdictional right over certain portions of its territory. If it does so, it by no
means follows that such areas become impressed with an alien character. They retain their
status as native soil. They are still subject to its authority. Its jurisdiction may be
diminished, but it does not disappear. So it is with the bases under lease to the American
armed forces by virtue of the military bases agreement of 1947. They are not and cannot
be foreign territory.

Decisions coming from petitioner's native land, penned by jurists of repute, speak to that
effect with impressive unanimity. We start with the citation from Chief Justice Marshall,
announced in the leading case of Schooner Exchange v. M'Faddon,8 an 1812 decision:
"The jurisdiction of the nation within its own territory is necessarily exclusive and
absolute. It is susceptible of no limitation not imposed by itself. Any restriction upon it,
deriving validity from an external source, would imply a diminution of its sovereignty to
the extent of the restriction, and an investment of that sovereignty to the same extent in
that power which could impose such restriction." After which came this paragraph: "All
exceptions, therefore, to the full and complete power of a nation within its own territories,
must be traced up to the consent of the nation itself. They can flow from no other
legitimate source."

Chief Justice Taney, in an 1857 decision,9 affirmed the fundamental principle of

everyone within the territorial domain of a state being subject to its commands: "For
undoubtedly every person who is found within the limits of a government, whether the
temporary purposes or as a resident, is bound by its laws." It is no exaggeration then for
Justice Brewer to stress that the United States government "is one having jurisdiction
over every foot of soil within its territory, and acting directly upon each [individual found
therein]; . . ."10

Not too long ago, there was a reiteration of such a view, this time from the pen of Justice
Van Devanter. Thus: "It now is settled in the United States and recognized elsewhere that
the territory subject to its jurisdiction includes the land areas under its dominion and
control the ports, harbors, bays, and other in closed arms of the sea along its coast, and a
marginal belt of the sea extending from the coast line outward a marine league, or 3
geographic miles."11 He could cite moreover, in addition to many American decisions,
such eminent treatise-writers as Kent, Moore, Hyde, Wilson, Westlake, Wheaton and
Oppenheim.

As a matter of fact, the eminent commentator Hyde in his three-volume work on

International Law, as interpreted and applied by the United States, made clear that not
even the embassy premises of a foreign power are to be considered outside the territorial
domain of the host state. Thus: "The ground occupied by an embassy is not in fact the
territory of the foreign State to which the premises belong through possession or
ownership. The lawfulness or unlawfulness of acts there committed is determined by the
territorial sovereign. If an attache commits an offense within the precincts of an embassy,
his immunity from prosecution is not because he has not violated the local law, but rather
for the reason that the individual is exempt from prosecution. If a person not so exempt,
or whose immunity is waived, similarly commits a crime therein, the territorial sovereign,
if it secures custody of the offender, may subject him to prosecution, even though its
criminal code normally does not contemplate the punishment of one who commits an
offense outside of the national domain. It is not believed, therefore, that an ambassador
himself possesses the right to exercise jurisdiction, contrary to the will of the State of his
sojourn, even within his embassy with respect to acts there committed. Nor is there
apparent at the present time any tendency on the part of States to acquiesce in his exercise
of it."12

2. In the light of the above, the first and crucial error imputed to the Court of Tax Appeals
to the effect that it should have held that the Clark Air Force is foreign soil or territory for
purposes of income tax legislation is clearly without support in law. As thus correctly
viewed, petitioner's hope for the reversal of the decision completely fades away. There is
nothing in the Military Bases Agreement that lends support to such an assertion. It has not
become foreign soil or territory. This country's jurisdictional rights therein, certainly not
excluding the power to tax, have been preserved. As to certain tax matters, an appropriate
exemption was provided for.

Petitioner could not have been unaware that to maintain the contrary would be to defy
reality and would be an affront to the law. While his first assigned error is thus worded,
he would seek to impart plausibility to his claim by the ostensible invocation of the
exemption clause in the Agreement by virtue of which a "national of the United States
serving in or employed in the Philippines in connection with the construction,
maintenance, operation or defense of the bases and residing in the Philippines only by
reason of such employment" is not to be taxed on his income unless "derived from
Philippine source or sources other than the United States sources."13 The reliance, to
repeat, is more apparent than real for as noted at the outset of this opinion, petitioner
places more faith not on the language of the provision on exemption but on a sentiment
given expression in a 1951 opinion of this Court, which would be made to yield such an
unwarranted interpretation at war with the controlling constitutional and international law
principles. At any rate, even if such a contention were more adequately pressed and
insisted upon, it is on its face devoid of merit as the source clearly was Philippine.

In Saura Import and Export Co. v. Meer,14 the case above referred to, this Court affirmed
a decision rendered about seven months previously,15 holding liable as an importer,
within the contemplation of the National Internal Revenue Code provision, the trading
firm that purchased army goods from a United States government agency in the
Philippines. It is easily understandable why. If it were not thus, tax evasion would have
been facilitated. The United States forces that brought in such equipment later disposed of
as surplus, when no longer needed for military purposes, was beyond the reach of our tax
statutes.

Justice Tuason, who spoke for the Court, adhered to such a rationale, quoting extensively
from the earlier opinion. He could have stopped there. He chose not to do so. The
transaction having occurred in 1946, not so long after the liberation of the Philippines, he
proceeded to discuss the role of the American military contingent in the Philippines as a
belligerent occupant. In the course of such a dissertion, drawing on his well-known gift
for rhetoric and cognizant that he was making an as if statement, he did say: "While in
army bases or installations within the Philippines those goods were in contemplation of
law on foreign soil."

It is thus evident that the first, and thereafter the controlling, decision as to the liability
for sales taxes as an importer by the purchaser, could have been reached without any need
for such expression as that given utterance by Justice Tuason. Its value then as an
authoritative doctrine cannot be as much as petitioner would mistakenly attach to it. It
was clearly obiter not being necessary for the resolution of the issue before this Court.16
It was an opinion "uttered by the way."17 It could not then be controlling on the question
before us now, the liability of the petitioner for income tax which, as announced at the
opening of this opinion, is squarely raised for the first time.18

On this point, Chief Justice Marshall could again be listened to with profit. Thus: "It is a
maxim, not to be disregarded, that general expressions, in every opinion, are to be taken
in connection with the case in which those expressions are used. If they go beyond the
case, they may be respected, but ought not to control the judgment in a subsequent suit
when the very point is presented for decision."19

Nor did the fact that such utterance of Justice Tuason was cited in Co Po v. Collector of
Internal Revenue,20 a 1962 decision relied upon by petitioner, put a different complexion
on the matter. Again, it was by way of pure embellishment, there being no need to repeat
it, to reach the conclusion that it was the purchaser of army goods, this time from military
bases, that must respond for the advance sales taxes as importer. Again, the purpose that
animated the reiteration of such a view was clearly to emphasize that through the
employment of such a fiction, tax evasion is precluded. What is more, how far divorced
from the truth was such statement was emphasized by Justice Barrera, who penned the Co
Po opinion, thus: "It is true that the areas covered by the United States Military Bases are
not foreign territories both in the political and geographical sense."21

Justice Tuason moreover made explicit that rather than corresponding with reality, what
was said by him was in the way of a legal fiction. Note his stress on "in contemplation of
law." To lend further support to a conclusion already announced, being at that a
confirmation of what had been arrived at in the earlier case, distinguished by its sound
appreciation of the issue then before this Court and to preclude any tax evasion, an
observation certainly not to be taken literally was thus given utterance.

This is not to say that it should have been ignored altogether afterwards. It could be
utilized again, as it undoubtedly was, especially so for the purpose intended, namely to
stigmatize as without support in law any attempt on the part of a taxpayer to escape an
obligation incumbent upon him. So it was quoted with that end in view in the Co Po case.
It certainly does not justify any effort to render futile the collection of a tax legally due, as
here. That was farthest from the thought of Justice Tuason.

What is more, the statement on its face is, to repeat, a legal fiction. This is not to discount
the uses of a fictio juris in the science of the law. It was Cardozo who pointed out its
value as a device "to advance the ends of justice" although at times it could be "clumsy"
and even "offensive".22 Certainly, then, while far from objectionable as thus enunciated,
this observation of Justice Tuason could be misused or misconstrued in a clumsy manner
to reach an offensive result. To repeat, properly used, a legal fiction could be relied upon
by the law, as Frankfurter noted, in the pursuit of legitimate ends.23 Petitioner then would
be well-advised to take to heart such counsel of care and circumspection before invoking
not a legal fiction that would avoid a mockery of the law by avoiding tax evasion but
what clearly is a misinterpretation thereof, leading to results that would have shocked its
originator.

The conclusion is thus irresistible that the crucial error assigned, the only one that calls
for discussion to the effect that for income tax purposes the Clark Air Force Base is
outside Philippine territory, is utterly without merit. So we have said earlier.

3. To impute then to the statement of Justice Tuason the meaning that petitioner would
fasten on it is, to paraphrase Frankfurter, to be guilty of succumbing to the vice of
literalness. To so conclude is, whether by design or inadvertence, to misread it. It
certainly is not susceptible of the mischievous consequences now sought to be fastened
on it by petitioner.

That it would be fraught with such peril to the enforcement of our tax statutes on the
military bases under lease to the American armed forces could not have been within the
contemplation of Justice Tuason. To so attribute such a bizarre consequence is to be
guilty of a grave disservice to the memory of a great jurist. For his real and genuine
sentiment on the matter in consonance with the imperative mandate of controlling
constitutional and international law concepts was categorically set forth by him, not as an
obiter but as the rationale of the decision, in People v. Acierto24 thus: "By the [Military
Bases] Agreement, it should be noted, the Philippine Government merely consents that
the United States exercise jurisdiction in certain cases. The consent was given purely as a
matter of comity, courtesy, or expediency over the bases as part of the Philippine territory
or divested itself completely of jurisdiction over offenses committed therein."

Nor did he stop there. He did stress further the full extent of our territorial jurisdiction in
words that do not admit of doubt. Thus: "This provision is not and can not on principle or
authority be construed as a limitation upon the rights of the Philippine Government. If
anything, it is an emphatic recognition and reaffirmation of Philippine sovereignty over
the bases and of the truth that all jurisdictional rights granted to the United States and not
exercised by the latter are reserved by the Philippines for itself."25

It is in the same spirit that we approach the specific question confronting us in this
litigation. We hold, as announced at the outset, that petitioner was liable for the income
tax arising from a sale of his automobile in the Clark Field Air Base, which clearly is and
cannot otherwise be other than, within our territorial jurisdiction to tax.

4. With the mist thus lifted from the situation as it truly presents itself, there is nothing
that stands in the way of an affirmance of the Court of Tax Appeals decision. No useful
purpose would be served by discussing the other assigned errors, petitioner himself being
fully aware that if the Clark Air Force Base is to be considered, as it ought to be and as it
is, Philippine soil or territory, his claim for exemption from the income tax due was
distinguished only by its futility.

There is further satisfaction in finding ourselves unable to indulge petitioner in his plea
for reversal. We thus manifest fealty to a pronouncement made time and time again that
the law does not look with favor on tax exemptions and that he who would seek to be
thus privileged must justify it by words too plain to be mistaken and too categorical to be
misinterpreted.26 Petitioner had not done so. Petitioner cannot do so.

WHEREFORE, the decision of the Court of Tax Appeals of May 12, 1966 denying the
refund of P2,979.00 as the income tax paid by petitioner is affirmed. With costs against
petitioner.
Concepcion, C.J., Dizon, Makalintal, Zaldivar, Sanchez, Castro and Teehankee, JJ.,
concur.

Reyes, J.B.L., J., concurs in the result.

Barredo, J., took no part.

5. People vs. Gozo

G.R. No. L-36409 October 26, 1973

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
LORETA GOZO, defendant-appellant.

Office of the Solicitor General Felix Q. Antonio, Assistant Solicitor General Jaime M.
Lantin and Solicitor Norberto P. Eduardo for plaintiff-appellee.

Jose T. Nery for defendant-appellant.

FERNANDO, J.:

Appellant seeks to set aside a judgment of the Court of First Instance of Zambales,
convicting her of a violation of an ordinance of Olongapo, Zambales, requiring a permit
from the municipal mayor for the construction or erection of a building, as well as any
modification, alteration, repair or demolition thereof. She questions its validity, or at the
very least, its applicability to her, by invoking due process,1 a contention she would
premise on what for her is the teaching of People v. Fajardo.2 If such a ground were far
from being impressed with solidity, she stands on quicksand when she would deny the
applicability of the ordinance to her, on the pretext that her house was constructed within
the naval base leased to the American armed forces. While yielding to the well-settled
doctrine that it does not thereby cease to be Philippine territory, she would, in effect, seek
to emasculate our sovereign rights by the assertion that we cannot exercise therein
administrative jurisdiction. To state the proposition is to make patent how much it is
tinged with unorthodoxy. Clearly then, the lower court decision must be affirmed with the
sole modification that she is given thirty days from the finality of a judgment to obtain a
permit, failing which, she is required to demolish the same.

The facts are undisputed. As set forth in the decision of the lower court: "The accused
bought a house and lot located inside the United States Naval Reservation within the
territorial jurisdiction of Olongapo City. She demolished the house and built another one
in its place, without a building permit from the City Mayor of Olongapo City, because she
was told by one Ernesto Evalle, an assistant in the City Mayor's office, as well as by her
neighbors in the area, that such building permit was not necessary for the construction of
the house. On December 29, 1966, Juan Malones, a building and lot inspector of the City
Engineer's Office, Olongapo City, together with Patrolman Ramon Macahilas of the
Olongapo City police force apprehended four carpenters working on the house of the
accused and they brought the carpenters to the Olongapo City police headquarters for
interrogation. ... After due investigation, Loreta Gozo was charged with violation of
Municipal Ordinance No. 14, S. of 1964 with the City Fiscal's Office."3 The City Court
of Olongapo City found her guilty of violating Municipal Ordinance No. 14, Series of
1964 and sentenced her to an imprisonment of one month as well as to pay the costs. The
Court of Instance of Zambales, on appeal, found her guilty on the above facts of violating
such municipal ordinance but would sentence her merely to pay a fine of P200.00 and to
demolish the house thus erected. She elevated the case to the Court of Appeals but in her
brief, she would put in issue the validity of such an ordinance on constitutional ground or
at the very least its applicability to her in view of the location of her dwelling within the
naval base. Accordingly, the Court of Appeals, in a resolution of January 29, 1973, noting
the constitutional question raised, certified the case to this Court.

There is, as mentioned in the opening paragraph of this petition, no support in law for the
stand taken by appellant.

1. It would be fruitless for her to assert that local government units are devoid of
authority to require building permits. This Court, from Switzer v. Municipality of
Cebu,4 decided in 1911, has sanctioned the validity of such measures. It is much too late
in the day to contend that such a requirement cannot be validly imposed. Even appellant,
justifiably concerned about the unfavorable impression that could be created if she were
to deny that such competence is vested in municipal corporations and chartered cities,
had to concede in her brief: "If, at all; the questioned ordinance may be predicated under
the general welfare clause ... ."5 Its scope is wide, well-nigh all embracing, covering
every aspect of public health, public morals, public safety, and the well being and good
order of the community.6

It goes without saying that such a power is subject to limitations. Certainly, if its exercise
is violative of any constitutional right, then its validity could be impugned, or at the very
least, its applicability to the person adversely affected could be questioned. So much is
settled law. Apparently, appellant has adopted the view that a due process question may
indeed be raised in view of what for her is its oppressive character. She is led to such a
conclusion, relying on People v. Fajardo.7 A more careful scrutiny of such a decision
would not have led her astray, for that case is easily distinguishable. The facts as set forth
in the opinion follow: "It appears that on August 15, 1950, during the incumbency of
defendant-appellant Juan F. Fajardo as mayor of the municipality of Baao, Camarines
Sur, the municipal council passed the ordinance in question providing as follows: "... 1.
Any person or persons who will construct or repair a building should, before constructing
or repairing, obtain a written permit from the Municipal Mayor. ... 2. A fee of not less
than P2.00 should be charged for each building permit and P1.00 for each repair permit
issued. ... 3. [Penalty]-Any violation of the provisions of the above, this ordinance, shall
make the violator liable to pay a fine of not less than P25 nor more than P50 or
imprisonment of not less than 12 days nor more than 24 days or both, at the discretion of
the court. If said building destroys the view of the Public Plaza or occupies any public
property, it shall be removed at the expense of the owner of the building or house. ... ."
Four years later, after the term of appellant Fajardo as mayor had expired, he and his son-
in-law, appellant Babilonia, filed a written request with the incumbent municipal mayor
for a permit to construct a building adjacent to their gasoline station on a parcel of land
registered in Fajardo's name, located along the national highway and separated from the
public plaza by a creek ... . On January 16, 1954, the request was denied, for the reason
among others that the proposed building would destroy the view or beauty of the public
plaza ... . On January 18, 1954, defendants reiterated their request for a building
permit ..., but again the request was turned down by the mayor. Whereupon, appellants
proceeded with the construction of the building without a permit, because they needed a
place of residence very badly, their former house having been destroyed by a typhoon and
hitherto they had been living on leased property."8

Clearly then, the application of such an ordinance to Fajardo was oppressive. A

conviction therefore for a violation thereof both in the justice of the peace court of Baao,
Camarines Sur as well as in the Court of First Instance could not be sustained. In this
case, on the contrary, appellant never bothered to comply with the ordinance. Perhaps
aware of such a crucial distinction, she would assert in her brief: "The evidence showed
that even if the accused were to secure a permit from the Mayor, the same would not have
been granted. To require the accused to obtain a permit before constructing her house
would be an exercise in futility. The law will not require anyone to perform an
impossibility, neither in law or in fact: ... ."9 It would be from her own version, at the
very least then, premature to anticipate such an adverse result, and thus to condemn an
ordinance which certainly lends itself to an interpretation that is neither oppressive,
unfair, or unreasonable. That kind of interpretation suffices to remove any possible
question of its validity, as was expressly announced in Primicias v. Fugoso. 10 So it
appears from this portion of the opinion of Justice Feria, speaking for the Court: "Said
provision is susceptible of two constructions: one is that the Mayor of the City of Manila
is vested with unregulated discretion to grant or refuse to grant permit for the holding of a
lawful assembly or meeting, parade, or procession in the streets and other public places of
the City of Manila; and the other is that the applicant has the right to a permit which shall
be granted by the Mayor, subject only to the latter's reasonable discretion to determine or
specify the streets or public places to be used for the purpose, with a view to prevent
confusion by overlapping, to secure convenient use of the streets and public places by
others, and to provide adequate and proper policing to minimize the risk of disorder. After
a mature deliberation, we have arrived at the conclusion that we must adopt the second
construction, that is, construe the provisions of the said ordinance to mean that it does not
confer upon the Mayor the power to refuse to grant the permit, but only the discretion, in
issuing the permit, to determine or specify the streets or public places where the parade or
procession may pass or the meeting may be held." 11 If, in a case affecting such a
preferred freedom as the right to assembly, this Court could construe an ordinance of the
City of Manila so as to avoid offending against a constitutional provision, there is nothing
to preclude it from a similar mode of approach in order to show the lack of merit of an
attack against an ordinance requiring a permit. Appellant cannot therefore take comfort
from any broad statement in the Fajardo opinion, which incidentally is taken out of
context, considering the admitted oppressive application of the challenged measure in
that litigation. So much then for the contention that she could not have been validly
convicted for a violation of such ordinance. Nor should it be forgotten that she did suffer
the same fate twice, once from the City Court and thereafter from the Court of First
Instance. The reason is obvious.Such ordinance applies to her.

2. Much less is a reversal indicated because of the alleged absence of the rather novel
concept of administrative jurisdiction on the part of Olongapo City. Nor is novelty the
only thing that may be said against it. Far worse is the assumption at war with controlling
and authoritative doctrines that the mere existence of military or naval bases of a foreign
country cuts deeply into the power to govern. Two leading cases may be cited to show
how offensive is such thinking to the juristic concept of sovereignty, People v. Acierto, 12
and Reagan v. Commissioner of Internal Revenue. 13 As was so emphatically set forth by
Justice Tuason in Acierto: "By the Agreement, it should be noted, the Philippine
Government merely consents that the United States exercise jurisdiction in certain cases.
The consent was given purely as a matter of comity, courtesy, or expediency. The
Philippine Government has not abdicated its sovereignty over the bases as part of the
Philippine territory or divested itself completely of jurisdiction over offenses committed
therein. Under the terms of the treaty, the United States Government has prior or
preferential but not exclusive jurisdiction of such offenses. The Philippine Government
retains not only jurisdictional rights not granted, but also all such ceded rights as the
United States Military authorities for reasons of their own decline to make use of. The
first proposition is implied from the fact of Philippine sovereignty over the bases; the
second from the express provisions of the treaty." 14 There was a reiteration of such a
view in Reagan. Thus: "Nothing is better settled than that the Philippines being
independent and sovereign, its authority may be exercised over its entire domain. There is
no portion thereof that is beyond its power. Within its limits, its decrees are supreme, its
commands paramount. Its laws govern therein, and everyone to whom it applies must
submit to its terms. That is the extent of its jurisdiction, both territorial and personal.
Necessarily, likewise, it has to be exclusive. If it were not thus, there is a diminution of
sovereignty." 15 Then came this paragraph dealing with the principle of auto-limitation:
"It is to be admitted any state may, by its consent, express or implied, submit to a
restriction of its sovereign rights. There may thus be a curtailment of what otherwise is a
power plenary in character. That is the concept of sovereignty as auto-limitation, which,
in the succinct language of Jellinek, "is the property of a state-force due to which it has
the exclusive capacity of legal self-determination and self-restriction." A state then, if it
chooses to, may refrain from the exercise of what otherwise is illimitable competence."
16 The opinion was at pains to point out though that even then, there is at the most
diminution of jurisdictional rights, not its disappearance. The words employed follow:
"Its laws may as to some persons found within its territory no longer control. Nor does
the matter end there. It is not precluded from allowing another power to participate in the
exercise of jurisdictional right over certain portions of its territory. If it does so, it by no
means follows that such areas become impressed with an alien character. They retain their
status as native soil. They are still subject to its authority. Its jurisdiction may be
diminished, but it does not disappear. So it is with the bases under lease to the American
armed forces by virtue of the military bases agreement of 1947. They are not and cannot
be foreign territory." 17

Can there be anything clearer, therefore, than that only a turnabout, unwarranted and
unjustified, from what is settled and orthodox law can lend the slightest degree of
plausibility to the contention of absence of administrative jurisdiction. If it were
otherwise, what was aptly referred to by Justice Tuason "as a matter of comity, courtesy,
or expediency" becomes one of obeisance and submission. If on a concern purely
domestic in its implications, devoid of any connection with national security, the
Military-Bases Agreement could be thus interpreted, then sovereignty indeed becomes a
mockery and an illusion. Nor does appellant's thesis rest on less shaky foundation by the
mere fact that Acierto and Reagan dealt with the competence of the national government,
while what is sought to be emasculated in this case is the so-called administrative
jurisdiction of a municipal corporation. Within the limits of its territory, whatever
statutory powers are vested upon it may be validly exercised. Any residual authority and
therein conferred, whether expressly or impliedly, belongs to the national government,
not to an alien country. What is even more to be deplored in this stand of appellant is that
no such claim is made by the American naval authorities, not that it would do them any
good if it were so asserted. To quote from Acierto anew: "The carrying out of the
provisions of the Bases Agreement is the concern of the contracting parties alone.
Whether, therefore, a given case which by the treaty comes within the United States
jurisdiction should be transferred to the Philippine authorities is a matter about which the
accused has nothing to do or say. In other words, the rights granted to the United States
by the treaty insure solely to that country and can not be raised by the offender." 18 If an
accused would suffer from such disability, even if the American armed forces were the
beneficiary of a treaty privilege, what is there for appellant to take hold of when there is
absolutely no showing of any alleged grant of what is quaintly referred to as
administrative jurisdiction? That is all, and it is more than enough, to make manifest the
futility of seeking a reversal.

WHEREFORE, the appealed decision of November 11, 1969 is affirmed insofar as it

found the accused, Loreta Gozo, guilty beyond reasonable doubt of a violation of
Municipal Ordinance No. 14, series of 1964 and sentencing her to pay a fine of P200.00
with subsidiary imprisonment in case of insolvency, and modified insofar as she is
required to demolish the house that is the subject matter of the case, she being given a
period of thirty days from the finality of this decision within which to obtain the required
permit. Only upon her failure to do so will that portion of the appealed decision
requiringdemolition be enforced. Costs against the accused.

Makalintal, C.J., Zaldivar, Castro, Teehankee, Makasiar, Antonio and Esguerra, JJ.,
concur.

Barredo, J., took no part.

7. Collector of Internal Revenue vs. Campos Rueda

G.R. No. L-13250 October 29, 1971

THE COLLECTOR OF INTERNAL REVENUE, petitioner,

vs.
ANTONIO CAMPOS RUEDA, respondent..

Assistant Solicitor General Jose P. Alejandro and Special Attorney Jose G. Azurin,
(O.S.G.) for petitioner.

Ramirez and Ortigas for respondent.

FERNANDO, J.:

The basic issue posed by petitioner Collector of Internal Revenue in this appeal from a
decision of the Court of Tax Appeals as to whether or not the requisites of statehood, or at
least so much thereof as may be necessary for the acquisition of an international
personality, must be satisfied for a "foreign country" to fall within the exemption of
Section 122 of the National Internal Revenue Code1 is now ripe for adjudication. The
Court of Tax Appeals answered the question in the negative, and thus reversed the action
taken by petitioner Collector, who would hold respondent Antonio Campos Rueda, as
administrator of the estate of the late Estrella Soriano Vda. de Cerdeira, liable for the sum
of P161,874.95 as deficiency estate and inheritance taxes for the transfer of intangible
personal properties in the Philippines, the deceased, a Spanish national having been a
resident of Tangier, Morocco from 1931 up to the time of her death in 1955. In an earlier
resolution promulgated May 30, 1962, this Court on the assumption that the need for
resolving the principal question would be obviated, referred the matter back to the Court
of Tax Appeals to determine whether the alleged law of Tangier did grant the reciprocal
tax exemption required by the aforesaid Section 122. Then came an order from the Court
of Tax Appeals submitting copies of legislation of Tangier that would manifest that the
element of reciprocity was not lacking. It was not until July 29, 1969 that the case was
deemed submitted for decision. When the petition for review was filed on January 2,
1958, the basic issue raised was impressed with an element of novelty. Four days
thereafter, however, on January 6, 1958, it was held by this Court that the aforesaid
provision does not require that the "foreign country" possess an international personality
to come within its terms.2 Accordingly, we have to affirm.

The decision of the Court of Tax Appeals, now under review, sets forth the background
facts as follows: "This is an appeal interposed by petitioner Antonio Campos Rueda as
administrator of the estate of the deceased Doña Maria de la Estrella Soriano Vda. de
Cerdeira, from the decision of the respondent Collector of Internal Revenue, assessing
against and demanding from the former the sum P161,874.95 as deficiency estate and
inheritance taxes, including interest and penalties, on the transfer of intangible personal
properties situated in the Philippines and belonging to said Maria de la Estrella Soriano
Vda. de Cerdeira. Maria de la Estrella Soriano Vda. de Cerdeira (Maria Cerdeira for
short) is a Spanish national, by reason of her marriage to a Spanish citizen and was a
resident of Tangier, Morocco from 1931 up to her death on January 2, 1955. At the time
of her demise she left, among others, intangible personal properties in the Philippines."3
Then came this portion: "On September 29, 1955, petitioner filed a provisional estate and
inheritance tax return on all the properties of the late Maria Cerdeira. On the same date,
respondent, pending investigation, issued an assessment for state and inheritance taxes in
the respective amounts of P111,592.48 and P157,791.48, or a total of P369,383.96 which
tax liabilities were paid by petitioner ... . On November 17, 1955, an amended return was
filed ... wherein intangible personal properties with the value of P396,308.90 were
claimed as exempted from taxes. On November 23, 1955, respondent, pending
investigation, issued another assessment for estate and inheritance taxes in the amounts of
P202,262.40 and P267,402.84, respectively, or a total of P469,665.24 ... . In a letter dated
January 11, 1956, respondent denied the request for exemption on the ground that the law
of Tangier is not reciprocal to Section 122 of the National Internal Revenue Code. Hence,
respondent demanded the payment of the sums of P239,439.49 representing deficiency
estate and inheritance taxes including ad valorem penalties, surcharges, interests and
compromise penalties ... . In a letter dated February 8, 1956, and received by respondent
on the following day, petitioner requested for the reconsideration of the decision denying
the claim for tax exemption of the intangible personal properties and the imposition of the
25% and 5% ad valorem penalties ... . However, respondent denied request, in his letter
dated May 5, 1956 ... and received by petitioner on May 21, 1956. Respondent premised
the denial on the grounds that there was no reciprocity [with Tangier, which was
moreover] a mere principality, not a foreign country. Consequently, respondent demanded
the payment of the sums of P73,851.21 and P88,023.74 respectively, or a total of
P161,874.95 as deficiency estate and inheritance taxes including surcharges, interests and
compromise penalties."4

The matter was then elevated to the Court of Tax Appeals. As there was no dispute
between the parties regarding the values of the properties and the mathematical
correctness of the deficiency assessments, the principal question as noted dealt with the
reciprocity aspect as well as the insisting by the Collector of Internal Revenue that
Tangier was not a foreign country within the meaning of Section 122. In ruling against
the contention of the Collector of Internal Revenue, the appealed decision states: "In fine,
we believe, and so hold, that the expression "foreign country", used in the last proviso of
Section 122 of the National Internal Revenue Code, refers to a government of that foreign
power which, although not an international person in the sense of international law, does
not impose transfer or death upon intangible person properties of our citizens not residing
therein, or whose law allows a similar exemption from such taxes. It is, therefore, not
necessary that Tangier should have been recognized by our Government order to entitle
the petitioner to the exemption benefits of the proviso of Section 122 of our Tax. Code."5

Hence appeal to this court by petitioner. The respective briefs of the parties duly
submitted, but as above indicated, instead of ruling definitely on the question, this Court,
on May 30, 1962, resolve to inquire further into the question of reciprocity and sent back
the case to the Court of Tax Appeals for the motion of evidence thereon. The dispositive
portion of such resolution reads as follows: "While section 122 of the Philippine Tax
Code aforequoted speaks of 'intangible personal property' in both subdivisions (a) and
(b); the alleged laws of Tangier refer to 'bienes muebles situados en Tanger', 'bienes
muebles radicantes en Tanger', 'movables' and 'movable property'. In order that this Court
may be able to determine whether the alleged laws of Tangier grant the reciprocal tax
exemptions required by Section 122 of the Tax Code, and without, for the time being,
going into the merits of the issues raised by the petitioner-appellant, the case is
[remanded] to the Court of Tax Appeals for the reception of evidence or proof on whether
or not the words `bienes muebles', 'movables' and 'movable properties as used in the
Tangier laws, include or embrace 'intangible person property', as used in the Tax Code."6
In line with the above resolution, the Court of Tax Appeals admitted evidence submitted
by the administrator petitioner Antonio Campos Rueda, consisting of exhibits of laws of
Tangier to the effect that "the transfers by reason of death of movable properties,
corporeal or incorporeal, including furniture and personal effects as well as of securities,
bonds, shares, ..., were not subject, on that date and in said zone, to the payment of any
death tax, whatever might have been the nationality of the deceased or his heirs and
legatees." It was further noted in an order of such Court referring the matter back to us
that such were duly admitted in evidence during the hearing of the case on September 9,
1963. Respondent presented no evidence."7

The controlling legal provision as noted is a proviso in Section 122 of the National
Internal Revenue Code. It reads thus: "That no tax shall be collected under this Title in
respect of intangible personal property (a) if the decedent at the time of his death was a
resident of a foreign country which at the time of his death did not impose a transfer tax
or death tax of any character in respect of intangible person property of the Philippines
not residing in that foreign country, or (b) if the laws of the foreign country of which the
decedent was a resident at the time of his death allow a similar exemption from transfer
taxes or death taxes of every character in respect of intangible personal property owned
by citizens of the Philippines not residing in that foreign country."8 The only obstacle
therefore to a definitive ruling is whether or not as vigorously insisted upon by petitioner
the acquisition of internal personality is a condition sine qua non to Tangier being
considered a "foreign country". Deference to the De Lara ruling, as was made clear in the
opening paragraph of this opinion, calls for an affirmance of the decision of the Court of
Tax Appeals.

It does not admit of doubt that if a foreign country is to be identified with a state, it is
required in line with Pound's formulation that it be a politically organized sovereign
community independent of outside control bound by penalties of nationhood, legally
supreme within its territory, acting through a government functioning under a regime of
law.9 It is thus a sovereign person with the people composing it viewed as an organized
corporate society under a government with the legal competence to exact obedience to its
commands. 10 It has been referred to as a body-politic organized by common consent for
mutual defense and mutual safety and to promote the general welfare.11Correctly has it
been described by Esmein as "the juridical personification of the nation." 12 This is to
view it in the light of its historical development. The stress is on its being a nation, its
people occupying a definite territory, politically organized, exercising by means of its
government its sovereign will over the individuals within it and maintaining its separate
international personality. Laski could speak of it then as a territorial society divided into
government and subjects, claiming within its allotted area a supremacy over all other
institutions.13 McIver similarly would point to the power entrusted to its government to
maintain within its territory the conditions of a legal order and to enter into international
relations. 14 With the latter requisite satisfied, international law do not exact
independence as a condition of statehood. So Hyde did opine. 15

Even on the assumption then that Tangier is bereft of international personality, petitioner
has not successfully made out a case. It bears repeating that four days after the filing of
this petition on January 6, 1958 in Collector of Internal Revenue v. De Lara, 16 it was
specifically held by us: "Considering the State of California as a foreign country in
relation to section 122 of our Tax Code we believe and hold, as did the Tax Court, that the
Ancilliary Administrator is entitled the exemption from the inheritance tax on the
intangible personal property found in the Philippines." 17 There can be no doubt that
California as a state in the American Union was in the alleged requisite of international
personality. Nonetheless, it was held to be a foreign country within the meaning of
Section 122 of the National Internal Revenue Code. 18

What is undeniable is that even prior to the De Lara ruling, this Court did commit itself to
the doctrine that even a tiny principality, that of Liechtenstein, hardly an international
personality in the sense, did fall under this exempt category. So it appears in an opinion
of the Court by the then Acting Chief Justicem Bengson who thereafter assumed that
position in a permanent capacity, in Kiene v. Collector of Internal Revenue. 19 As was
therein noted: 'The Board found from the documents submitted to it — proof of the laws
of Liechtenstein — that said country does not impose estate, inheritance and gift taxes on
intangible property of Filipino citizens not residing in that country. Wherefore, the Board
declared that pursuant to the exemption above established, no estate or inheritance taxes
were collectible, Ludwig Kiene being a resident of Liechtestein when he passed away."
20 Then came this definitive ruling: "The Collector — hereafter named the respondent —
cites decisions of the United States Supreme Court and of this Court, holding that
intangible personal property in the Philippines belonging to a non-resident foreigner, who
died outside of this country is subject to the estate tax, in disregard of the principle
'mobilia sequuntur personam'. Such property is admittedly taxable here. Without the
proviso above quoted, the shares of stock owned here by the Ludwig Kiene would be
concededly subject to estate and inheritance taxes. Nevertheless our Congress chose to
make an exemption where conditions are such that demand reciprocity — as in this case.
And the exemption must be honored." 21

WHEREFORE, the decision of the respondent Court of Tax Appeals of October 30, 1957
is affirmed. Without pronouncement as to costs.

Concepcion, C.J., Makalintal, Zaldivar, Castro, Villamor and Makasiar, JJ., concur.

Reyes, J.B.L., J., concurs in the result.

Teehankee and Barredo, JJ., took no part.

 8. Bacani vs. NACOCO
G.R. No. L-9657. November 29, 1956.
LEOPOLDO T. BACANI and MATEO A. MATOTO, Plaintiffs-Appellees, vs.
NATIONAL COCONUT CORPORATION, ET AL., Defendants, NATIONAL
COCONUT CORPORATION and BOARD OF LIQUIDATORS, Defendants-Appellants.

DECISION
BAUTISTA ANGELO, J.:
Plaintiffs herein are court stenographers assigned in Branch VI of the Court of First
Instance of Manila. During the pendency of Civil Case No. 2293 of said court, entitled
Francisco Sycip vs. National Coconut Corporation, Assistant Corporate Counsel Federico
Alikpala, counsel for Defendant, requested said stenographers for copies of the transcript
of the stenographic notes taken by them during the hearing. Plaintiffs complied with the
request by delivering to Counsel Alikpala the needed transcript containing 714 pages and
thereafter submitted to him their bills for the payment of their fees. The National Coconut
Corporation paid the amount of P564 to Leopoldo T. Bacani and P150 to Mateo A.
Matoto for said transcript at the rate of P1 per page.
Upon inspecting the books of this corporation, the Auditor General disallowed the
payment of these fees and sought the recovery of the amounts paid. On January 19, 1953,
the Auditor General required the Plaintiffs to reimburse said amounts on the strength of a
circular of the Department of Justice wherein the opinion was expressed that the National
Coconut Corporation, being a government entity, was exempt from the payment of the
fees in question. On February 6, 1954, the Auditor General issued an order directing the
Cashier of the Department of Justice to deduct from the salary of Leopoldo T. Bacani the
amount of P25 every payday and from the salary of Mateo A. Matoto the amount of P10
every payday beginning March 30, 1954. To prevent deduction of these fees from their
salaries and secure a judicial ruling that the National Coconut Corporation is not a
government entity within the purview of section 16, Rule 130 of the Rules of Court, this
action was instituted in the Court of First Instance of Manila.
Defendants set up as a defense that the National Coconut Corporation is a government
entity within the purview of section 2 of the Revised Administrative Code of 1917 and,
hence, it is exempt from paying the stenographers’ fees under Rule 130 of the Rules of
Court. After trial, the court found for the Plaintiffs declaring (1) “that Defendant National
Coconut Corporation is not a government entity within the purview of section 16, Rule
130 of the Rules of Court; chan roblesvirtualawlibrary(2) that the payments already made
by said Defendant to Plaintiffs herein and received by the latter from the former in the
total amount of P714, for copies of the stenographic transcripts in question, are valid, just
and legal; chan roblesvirtualawlibraryand (3) that Plaintiffs are under no obligation
whatsoever to make a refund of these payments already received by them.” This is an
appeal from said decision.
Under section 16, Rule 130 of the Rules of Court, the Government of the Philippines is
exempt from paying the legal fees provided for therein, and among these fees are those
which stenographers may charge for the transcript of notes taken by them that may be
requested by any interested person (section 8). The fees in question are for the transcript
of notes taken during the hearing of a case in which the National Coconut Corporation is
interested, and the transcript was requested by its assistant corporate counsel for the use
of said corporation.
On the other hand, section 2 of the Revised Administrative Code defines the scope of the
term “Government of the Republic of the Philippines” as
follows:chanroblesvirtuallawlibrary
“‘The Government of the Philippine Islands’ is a term which refers to the corporate
governmental entity through which the functions of government are exercised throughout
the Philippine Islands, including, save as the contrary appears from the context, the
various arms through which political authority is made effective in said Islands, whether
pertaining to the central Government or to the provincial or municipal branches or other
form of local government.”
The question now to be determined is whether the National Coconut Corporation may be
considered as included in the term “Government of the Republic of the Philippines” for
the purposes of the exemption of the legal fees provided for in Rule 130 of the Rules of
Court.
As may be noted, the term “Government of the Republic of the Philippines” refers to a
government entity through which the functions of government are exercised, including
the various arms through which political authority is made effective in the Philippines,
whether pertaining to the central government or to the provincial or municipal branches
or other form of local government. This requires a little digression on the nature and
functions of our government as instituted in our Constitution.
To begin with, we state that the term “Government” may be defined as “that institution or
aggregate of institutions by which an independent society makes and carries out those
rules of action which are necessary to enable men to live in a social state, or which are
imposed upon the people forming that society by those who possess the power or
authority of prescribing them” (U.S. vs. Dorr, 2 Phil., 332). This institution, when
referring to the national government, has reference to what our Constitution has
established composed of three great departments, the legislative, executive, and the
judicial, through which the powers and functions of government are exercised. These
functions are twofold:chanroblesvirtuallawlibrary constitute and ministrant. The former
are those which constitute the very bonds of society and are compulsory in nature; chan
roblesvirtualawlibrarythe latter are those that are undertaken only by way of advancing
the general interests of society, and are merely optional. President Wilson enumerates the
constituent functions as follows:chanroblesvirtuallawlibrary
“‘(1) The keeping of order and providing for the protection of persons and property from
violence and robbery.
‘(2) The fixing of the legal relations between man and wife and between parents and
children.
‘(3) The regulation of the holding, transmission, and interchange of property, and the
determination of its liabilities for debt or for crime.
‘(4) The determination of contract rights between individuals.
‘(5) The definition and punishment of crime.
‘(6) The administration of justice in civil cases.
‘(7) The determination of the political duties, privileges, and relations of citizens.
‘(8) Dealings of the state with foreign powers:chanroblesvirtuallawlibrary the
preservation of the state from external danger or encroachment and the advancement of
its international interests.’“ (Malcolm, The Government of the Philippine Islands, p. 19.)
The most important of the ministrant functions are:chanroblesvirtuallawlibrary public
works, public education, public charity, health and safety regulations, and regulations of
trade and industry. The principles deter mining whether or not a government shall
exercise certain of these optional functions are:chanroblesvirtuallawlibrary (1) that a
government should do for the public welfare those things which private capital would not
naturally undertake and (2) that a government should do these things which by its very
nature it is better equipped to administer for the public welfare than is any private
individual or group of individuals. (Malcolm, The Government of the Philippine Islands,
pp. 19-20.)
From the above we may infer that, strictly speaking, there are functions which our
government is required to exercise to promote its objectives as expressed in our
Constitution and which are exercised by it as an attribute of sovereignty, and those which
it may exercise to promote merely the welfare, progress and prosperity of the people. To
this latter class belongs the organization of those corporations owned or controlled by the
government to promote certain aspects of the economic life of our people such as the
National Coconut Corporation. These are what we call government-owned or controlled
corporations which may take on the form of a private enterprise or one organized with
powers and formal characteristics of a private corporations under the Corporation Law.
The question that now arises is:chanroblesvirtuallawlibrary Does the fact that these
corporation perform certain functions of government make them a part of the
Government of the Philippines?
The answer is simple:chanroblesvirtuallawlibrary they do not acquire that status for the
simple reason that they do not come under the classification of municipal or public
corporation. Take for instance the National Coconut Corporation. While it was organized
with the purpose of “adjusting the coconut industry to a position independent of trade
preferences in the United States” and of providing “Facilities for the better curing of
copra products and the proper utilization of coconut by-products”, a function which our
government has chosen to exercise to promote the coconut industry, however, it was
given a corporate power separate and distinct from our government, for it was made
subject to the provisions of our Corporation Law in so far as its corporate existence and
the powers that it may exercise are concerned (sections 2 and 4, Commonwealth Act No.
518). It may sue and be sued in the same manner as any other private corporations, and in
this sense it is an entity different from our government. As this Court has aptly said, “The
mere fact that the Government happens to be a majority stockholder does not make it a
public corporation” (National Coal Co. vs. Collector of Internal Revenue, 46 Phil., 586-
587). “By becoming a stockholder in the National Coal Company, the Government
divested itself of its sovereign character so far as respects the transactions of the
corporation cralaw . Unlike the Government, the corporation may be sued without its
consent, and is subject to taxation. Yet the National Coal Company remains an agency or
instrumentality of government.” (Government of the Philippine Islands vs. Springer, 50
Phil., 288.)
To recapitulate, we may mention that the term “Government of the Republic of the
Philippines” used in section 2 of the Revised Administrative Code refers only to that
government entity through which the functions of the government are exercised as an
attribute of sovereignty, and in this are included those arms through which political
authority is made effective whether they be provincial, municipal or other form of local
government. These are what we call municipal corporations. They do not include
government entities which are given a corporate personality separate and distinct from
the government and which are governed by the Corporation Law. Their powers, duties
and liabilities have to be determined in the light of that law and of their corporate
charters. They do not therefore come within the exemption clause prescribed in section
16, Rule 130 of our Rules of Court.
“Public corporations are those formed or organized for the government of a portion of the
State.” (Section 3, Republic Act No. 1459, Corporation Law).
“‘The generally accepted definition of a municipal corporation would only include
organized cities and towns, and like organizations, with political and legislative powers
for the local, civil government and police regulations of the inhabitants of the particular
district included in the boundaries of the corporation.’ Heller vs. Stremmel, 52 Mo. 309,
312.”
“In its more general sense the phrase ‘municipal corporation’ may include both towns and
counties, and other public corporations created by government for political purposes. In
its more common and limited signification, it embraces only incorporated villages, towns
and cities. Dunn vs. Court of County Revenues, 85 Ala. 144, 146, 4 So. 661.” (McQuillin,
Municipal Corporations, 2nd ed., Vol. 1, p. 385.)
“We may, therefore, define a municipal corporation in its historical and strict sense to be
the incorporation, by the authority of the government, of the inhabitants of a particular
place or district, and authorizing them in their corporate capacity to exercise subordinate
specified powers of legislation and regulation with respect to their local and internal
concerns. This power of local government is the distinctive purpose and the
distinguishing feature of a municipal corporation proper.” (Dillon, Municipal
Corporations, 5th ed., Vol. I, p. 59.)
It is true that under section 8, Rule 130, stenographers may only charge as fees P0.30 for
each page of transcript of not less than 200 words before the appeal is taken and P0.15 for
each page after the filing of the appeal, but in this case the National Coconut Corporation
has agreed and in fact has paid P1.00 per page for the services rendered by the Plaintiffs
and has not raised any objection to the amount paid until its propriety was disputed by the
Auditor General. The payment of the fees in question became therefore contractual and as
such is valid even if it goes beyond the limit prescribed in section 8, Rule 130 of the
Rules of Court.
As regards the question of procedure raised by Appellants, suffice it to say that the same
is insubstantial, considering that this case refers not to a money claim disapproved by the
Auditor General but to an action of prohibition the purpose of which is to restrain the
officials concerned from deducting from Plaintiffs’ salaries the amount paid to them as
stenographers’ fees. This case does not come under section 1, Rule 45 of the Rules of
Court relative to appeals from a decision of the Auditor General.
Wherefore, the decision appealed from is affirmed, without pronouncement as to costs.
Paras, C.J., Bengzon, Padilla, Montemayor, Labrador, Concepcion, Reyes, J. B. L.,
Endencia and Felix, JJ., concur.

9. Laurel vs. Misa

G.R. No. L-409 January 30, 1947

ANASTACIO LAUREL, petitioner,

vs.
ERIBERTO MISA, respondent.

Claro M. Recto and Querube C. Makalintal for petitioner.

First Assistant Solicitor General Reyes and Solicitor Hernandez, Jr., for respondent.

RESOLUTION

In G.R. No. L-409, Anastacio Laurel vs. Eriberto Misa, etc., the Court, acting on the
petition for habeas corpusfiled by Anastacio Laurel and based on a theory that a
Filipino citizen who adhered to the enemy giving the latter aid and comfort during
the Japanese occupation cannot be prosecuted for the crime of treason defined and
penalized by article 114 of the Revised Penal Code, for the reason (1) that the
sovereignty of the legitimate government in the Philippines and, consequently, the
correlative allegiance of Filipino citizens thereto was then suspended; and (2) that
there was a change of sovereignty over these Islands upon the proclamation of the
Philippine Republic:

(1) Considering that a citizen or subject owes, not a qualified and temporary, but an
absolute and permanent allegiance, which consists in the obligation of fidelity and
obedience to his government or sovereign; and that this absolute and permanent
allegiance should not be confused with the qualified and temporary allegiance which
a foreigner owes to the government or sovereign of the territory wherein he resides,
so long as he remains there, in return for the protection he receives, and which
consists in the obedience to the laws of the government or sovereign. (Carlisle vs.
Unite States, 21 Law. ed., 429; Secretary of State Webster Report to the President of
the United States in the case of Thraser, 6 Web. Works, 526);

Considering that the absolute and permanent allegiance of the inhabitants of a

territory occupied by the enemy of their legitimate government or sovereign is not
abrogated or severed by the enemy occupation, because the sovereignty of the
government or sovereign de jure is not transferred thereby to the occupier, as we
have held in the cases of Co Kim Cham vs. Valdez Tan Keh and Dizon (75 Phil., 113)
and of Peralta vs. Director of Prisons (75 Phil., 285), and if it is not transferred to the
occupant it must necessarily remain vested in the legitimate government; that the
sovereignty vested in the titular government (which is the supreme power which
governs a body politic or society which constitute the state) must be distinguished
from the exercise of the rights inherent thereto, and may be destroyed, or severed and
transferred to another, but it cannot be suspended because the existence of
sovereignty cannot be suspended without putting it out of existence or divesting the
possessor thereof at least during the so-called period of suspension; that what may be
suspended is the exercise of the rights of sovereignty with the control and
government of the territory occupied by the enemy passes temporarily to the
occupant; that the subsistence of the sovereignty of the legitimate government in a
territory occupied by the military forces of the enemy during the war, "although the
former is in fact prevented from exercising the supremacy over them" is one of the
"rules of international law of our times"; (II Oppenheim, 6th Lauterpacht ed., 1944,
p. 482), recognized, by necessary implication, in articles 23, 44, 45, and 52 of Hague
Regulation; and that, as a corollary of the conclusion that the sovereignty itself is not
suspended and subsists during the enemy occupation, the allegiance of the
inhabitants to their legitimate government or sovereign subsists, and therefore there
is no such thing as suspended allegiance, the basic theory on which the whole fabric
of the petitioner's contention rests;

Considering that the conclusion that the sovereignty of the United State was
suspended in Castine, set forth in the decision in the case of United States vs. Rice, 4
Wheaton, 246, 253, decided in 1819, and quoted in our decision in the cases of Co
Kim Cham vs. Valdez Tan Keh and Dizon and Peralta vs. Director of Prisons, supra,
in connection with the question, not of sovereignty, but of the existence of a
government de factotherein and its power to promulgate rules and laws in the
occupied territory, must have been based, either on the theory adopted subsequently
in the Hague Convention of 1907, that the military occupation of an enemy territory
does not transfer the sovereignty to the occupant; that, in the first case, the word
"sovereignty" used therein should be construed to mean the exercise of the rights of
sovereignty, because as this remains vested in the legitimate government and is not
transferred to the occupier, it cannot be suspended without putting it out of existence
or divesting said government thereof; and that in the second case, that is, if the said
conclusion or doctrine refers to the suspension of the sovereignty itself, it has
become obsolete after the adoption of the Hague Regulations in 1907, and therefore
it can not be applied to the present case;

Considering that even adopting the words "temporarily allegiance," repudiated by

Oppenheim and other publicists, as descriptive of the relations borne by the
inhabitants of the territory occupied by the enemy toward the military government
established over them, such allegiance may, at most, be considered similar to the
temporary allegiance which a foreigner owes to the government or sovereign of the
territory wherein he resides in return for the protection he receives as above
described, and does not do away with the absolute and permanent allegiance which
the citizen residing in a foreign country owes to his own government or sovereign;
that just as a citizen or subject of a government or sovereign may be prosecuted for
and convicted of treason committed in a foreign country, in the same way an
inhabitant of a territory occupied by the military forces of the enemy may commit
treason against his own legitimate government or sovereign if he adheres to the
enemies of the latter by giving them aid and comfort; and that if the allegiance of a
citizen or subject to his government or sovereign is nothing more than obedience to
its laws in return for the protection he receives, it would necessarily follow that a
citizen who resides in a foreign country or state would, on one hand, ipso
factoacquire the citizenship thereof since he has enforce public order and regulate the
social and commercial life, in return for the protection he receives, and would, on the
other hand, lose his original citizenship, because he would not be bound to obey most
of the laws of his own government or sovereign, and would not receive, while in a
foreign country, the protection he is entitled to in his own;

Considering that, as a corollary of the suspension of the exercise of the rights of

sovereignty by the legitimate government in the territory occupied by the enemy
military forces, because the authority of the legitimate power to govern has passed
into the hands of the occupant (Article 43, Hague Regulations), the political laws
which prescribe the reciprocal rights, duties and obligation of government and
citizens, are suspended or in abeyance during military occupation (Co Kim cham vs.
Valdez Tan Keh and dizon, supra), for the only reason that as they exclusively bear
relation to the ousted legitimate government, they are inoperative or not applicable to
the government established by the occupant; that the crimes against national security,
such as treason and espionage; inciting to war, correspondence with hostile country,
flight to enemy's country, as well as those against public order, such as rebellion,
sedition, and disloyalty, illegal possession of firearms, which are of political
complexion because they bear relation to, and are penalized by our Revised Penal
Code as crimes against the legitimate government, are also suspended or become
inapplicable as against the occupant, because they can not be committed against the
latter (Peralta vs. Director of Prisons, supra); and that, while the offenses against
public order to be preserved by the legitimate government were inapplicable as
offenses against the invader for the reason above stated, unless adopted by him, were
also inoperative as against the ousted government for the latter was not responsible
for the preservation of the public order in the occupied territory, yet article 114 of the
said Revised Penal Code, was applicable to treason committed against the national
security of the legitimate government, because the inhabitants of the occupied
territory were still bound by their allegiance to the latter during the enemy
occupation;

Considering that, although the military occupant is enjoined to respect or continue in

force, unless absolutely prevented by the circumstances, those laws that enforce
public order and regulate the social and commercial life of the country, he has,
nevertheless, all the powers of de facto government and may, at his pleasure, either
change the existing laws or make new ones when the exigencies of the military
service demand such action, that is, when it is necessary for the occupier to do so for
the control of the country and the protection of his army, subject to the restrictions or
limitations imposed by the Hague Regulations, the usages established by civilized
nations, the laws of humanity and the requirements of public conscience (Peralta
vs.Director of Prisons, supra; 1940 United States Rules of Land Warfare 76, 77); and
that, consequently, all acts of the military occupant dictated within these limitations
are obligatory upon the inhabitants of the territory, who are bound to obey them, and
the laws of the legitimate government which have not been adopted, as well and
those which, though continued in force, are in conflict with such laws and orders of
the occupier, shall be considered as suspended or not in force and binding upon said
inhabitants;

Considering that, since the preservation of the allegiance or the obligation of fidelity
and obedience of a citizen or subject to his government or sovereign does not
demand from him a positive action, but only passive attitude or forbearance from
adhering to the enemy by giving the latter aid and comfort, the occupant has no
power, as a corollary of the preceding consideration, to repeal or suspend the
operation of the law of treason, essential for the preservation of the allegiance owed
by the inhabitants to their legitimate government, or compel them to adhere and give
aid and comfort to him; because it is evident that such action is not demanded by the
exigencies of the military service or not necessary for the control of the inhabitants
and the safety and protection of his army, and because it is tantamount to practically
transfer temporarily to the occupant their allegiance to the titular government or
sovereign; and that, therefore, if an inhabitant of the occupied territory were
compelled illegally by the military occupant, through force, threat or intimidation, to
give him aid and comfort, the former may lawfully resist and die if necessary as a
hero, or submit thereto without becoming a traitor;

Considering that adoption of the petitioner's theory of suspended allegiance would

lead to disastrous consequences for small and weak nations or states, and would be
repugnant to the laws of humanity and requirements of public conscience, for it
would allow invaders to legally recruit or enlist the Quisling inhabitants of the
occupied territory to fight against their own government without the latter incurring
the risk of being prosecuted for treason, and even compel those who are not aid them
in their military operation against the resisting enemy forces in order to completely
subdue and conquer the whole nation, and thus deprive them all of their own
independence or sovereignty — such theory would sanction the action of invaders in
forcing the people of a free and sovereign country to be a party in the nefarious task
of depriving themselves of their own freedom and independence and repressing the
exercise by them of their own sovereignty; in other words, to commit a political
suicide;

(2) Considering that the crime of treason against the government of the Philippines
defined and penalized in article 114 of the Penal Code, though originally intended to
be a crime against said government as then organized by authority of the sovereign
people of the United States, exercised through their authorized representative, the
Congress and the President of the United States, was made, upon the establishment
of the Commonwealth Government in 1935, a crime against the Government of the
Philippines established by authority of the people of the Philippines, in whom the
sovereignty resides according to section 1, Article II, of the Constitution of the
Philippines, by virtue of the provision of section 2, Article XVI thereof, which
provides that "All laws of the Philippine Islands . . . shall remain operative, unless
inconsistent with this Constitution . . . and all references in such laws to the
Government or officials of the Philippine Islands, shall be construed, in so far as
applicable, to refer to the Government and corresponding officials under this
constitution;

Considering that the Commonwealth of the Philippines was a sovereign government,

though not absolute but subject to certain limitations imposed in the Independence
Act and incorporated as Ordinance appended to our Constitution, was recognized not
only by the Legislative Department or Congress of the United States in approving the
Independence Law above quoted and the Constitution of the Philippines, which
contains the declaration that "Sovereignty resides in the people and all government
authority emanates from them" (section 1, Article II), but also by the Executive
Department of the United States; that the late President Roosevelt in one of his
messages to Congress said, among others, "As I stated on August 12, 1943, the
United States in practice regards the Philippines as having now the status as a
government of other independent nations — in fact all the attributes of complete and
respected nationhood" (Congressional Record, Vol. 29, part 6, page 8173); and that it
is a principle upheld by the Supreme Court of the United States in many cases,
among them in the case of Jones vs. United States (137 U.S., 202; 34 Law. ed., 691,
696) that the question of sovereignty is "a purely political question, the determination
of which by the legislative and executive departments of any government
conclusively binds the judges, as well as all other officers, citizens and subjects of
the country.
 Considering that section I (1) of the Ordinance appended to the Constitution which
provides that pending the final and complete withdrawal of the sovereignty of the
United States "All citizens of the Philippines shall owe allegiance to the United
States", was one of the few limitations of the sovereignty of the Filipino people
retained by the United States, but these limitations do not away or are not
inconsistent with said sovereignty, in the same way that the people of each State of
the Union preserves its own sovereignty although limited by that of the United States
conferred upon the latter by the States; that just as to reason may be committed
against the Federal as well as against the State Government, in the same way treason
may have been committed during the Japanese occupation against the sovereignty of
the United States as well as against the sovereignty of the Philippine Commonwealth;
and that the change of our form of government from Commonwealth to Republic
does not affect the prosecution of those charged with the crime of treason committed
during the Commonwealth, because it is an offense against the same government and
the same sovereign people, for Article XVIII of our Constitution provides that "The
government established by this constitution shall be known as the Commonwealth of
the Philippines. Upon the final and complete withdrawal of the sovereignty of the
United States and the proclamation of Philippine independence, the Commonwealth
of the Philippines shall thenceforth be known as the Republic of the Philippines";

This Court resolves, without prejudice to write later on a more extended opinion, to
deny the petitioner's petition, as it is hereby denied, for the reasons above set forth
and for others to be stated in the said opinion, without prejudice to concurring
opinion therein, if any. Messrs. Justices Paras and Hontiveros dissent in a separate
opinion. Mr. justice Perfecto concurs in a separate opinion.

Separate Opinions

PERFECTO, J., concurring:

Treason is a war crime. It is not an all-time offense. It cannot be committed in peace time.
While there is peace, there are no traitors. Treason may be incubated when peace reigns.
Treasonable acts may actually be perpetrated during peace, but there are no traitors until
war has started.

As treason is basically a war crime, it is punished by the state as a measure of self-

defense and self-preservation. The law of treason is an emergency measure. It remains
dormant until the emergency arises. But as soon as war starts, it is relentlessly put into
effect. Any lukewarm attitude in its enforcement will only be consistent with national
harakiri. All war efforts would be of no avail if they should be allowed to be sabotaged by
fifth columnists, by citizens who have sold their country out to the enemy, or any other
kind of traitors, and this would certainly be the case if he law cannot be enforced under
the theory of suspension.
Petitioner's thesis that allegiance to our government was suspended during enemy
occupation is advanced in support of the proposition that, since allegiance is identical
with obedience to law, during the enemy occupation, the laws of the Commonwealth
were suspended. Article 114 of the Revised Penal Code, the law punishing treason, under
the theory, was one of the laws obedience to which was also suspended.

Allegiance has been defined as the obligation for fidelity and obedience which the
individual owes to his government or his sovereign in return for the protection which he
receives.

"Allegiance", as the return is generally used, means fealty or fidelity to the

government of which the person is either a citizen or subject. Murray vs. The
Charming Betsy, 6 U.S. (2 Cranch), 64, 120; 2 Law. ed., 208.

"Allegiance" was said by Mr. Justice Story to be "nothing more than the tie or duty of
obedience of a subject to the sovereign, under whose protection he is." United States
vs. Wong Kim Ark, 18 S. Ct., 461; 169 U.S., 649; 42 Law. ed., 890.

Allegiance is that duty which is due from every citizen to the state, a political duty
binding on him who enjoys the protection of the Commonwealth, to render service
and fealty to the federal government. It is that duty which is reciprocal to the right of
protection, arising from the political relations between the government and the
citizen. Wallace vs. Harmstad, 44 Pa. (8 Wright), 492, 501.

By "allegiance" is meant the obligation to fidelity and obedience which the

individual owes to the government under which he lives, or to his sovereign, in return
for the protection which he receives. It may be an absolute and permanent obligation,
or it may be a qualified and temporary one. A citizen or subject owes an absolute and
permanent allegiance to his government or sovereign, or at least until, by some open
and distinct act, he renounces it and becomes a citizen or subject of another
government or sovereign, and an alien while domiciled in a country owes it a
temporary allegiance, which is continuous during his residence. Carlisle vs.United
States, 83 U.S. (16 Wall.), 147, 154; 21 Law ed., 426.

"Allegiance," as defined by Blackstone, "is the tie or ligament which binds the
subject to the King, in return for that protection which the King affords the subject.
Allegiance, both expressed and implied, is of two sorts, the one natural, the other
local, the former being perpetual, the latter temporary. Natural allegiance is such as is
due from all men born within the King's dominions immediately upon their birth, for
immediately upon their birth they are under the King's protection. Natural allegiance
is perpetual, and for this reason, evidently founded on the nature of government.
Allegiance is a debt due from the subject upon an implied contract with the prince
that so long as the one affords protection the other will demean himself faithfully.
Natural-born subjects have a great variety of rights which they acquire by being born
within the King's liegance, which can never be forfeited but by their own
misbehaviour; but the rights of aliens are much more circumscribed, being acquired
only by residence, and lost whenever they remove. If an alien could acquire a
permanent property in lands, he must owe an allegiance equally permanent to the
King, which would probably be inconsistent with that which he owes his natural
liege lord; besides, that thereby the nation might, in time, be subject to foreign
influence and feel many other inconveniences." Indians within the state are not
aliens, but citizens owing allegiance to the government of a state, for they receive
protection from the government and are subject to its laws. They are born in
allegiance to the government of the state. Jackson vs. Goodell, 20 Johns., 188, 911.
(3 Words and Phrases, Permanent ed., 226-227.)

Allegiance. — Fealty or fidelity to the government of which the person is either a

citizen or subject; the duty which is due from every citizen to the state; a political
duty, binding on him who enjoys the protection of the commonwealth, to render
service and fealty to the federal government; the obligation of fidelity and obedience
which the individual owes to the government or to the sovereign under which he
lives in return for the protection he receives; that duty is reciprocal to the right of
protection he receives; that duty which is reciprocal to the right of protection, arising
from the political relations between the government and the citizen.

Classification. — Allegiance is of four kinds, namely: (1) Natural allegiance — that

which arises by nature and birth; (2) acquired allegiance — that arising through some
circumstance or act other than birth, namely, by denization or naturalization; (3) local
allegiance-- that arising from residence simply within the country, for however short
a time; and (4) legal allegiance — that arising from oath, taken usually at the town or
leet, for, by the common law, the oath of allegiance might be tendered to every one
upon attaining the age of twelve years. (3 C.J.S., p.885.)

Allegiance. — the obligation of fidelity and obedience which the individual owes to
the government under which he lives, or to his sovereign in return for the protection
he receives. 15 R.C.L., 140. (Ballentine Law Dictionary, p. 68.).

"Allegiance," as its etymology indicates, is the name for the tie which binds the
citizen to his state — the obligation of obedience and support which he owes to it.
The state is the political person to whom this liege fealty is due. Its substance is the
aggregate of persons owing this allegiance. The machinery through which it operates
is its government. The persons who operate this machinery constitute its magistracy.
The rules of conduct which the state utters or enforces are its law, and manifest its
will. This will, viewed as legally supreme, is its sovereignty. (W.W. Willoughby,
Citizenship and Allegiance in Constitutional and International Law, 1 American
Journal of International Law, p. 915.).

The obligations flowing from the relation of a state and its nationals are reciprocal in
character. This principle had been aptly stated by the Supreme Court of the United
States in its opinion in the case of Luria vs. United States:

Citizenship is membership in a political society and implies a duty of allegiance on

 the part of the member and a duty protection on the part of the society. These are
reciprocal obligations, one being a compensation for the other. (3 Hackworth, Digest
of International Law, 1942 ed., p.6.)

Allegiance. — The tie which binds the citizen to the government, in return for the
protection which the government affords him. The duty which the subject owes to the
sovereign, correlative with the protection received.

It is a comparatively modern corruption of ligeance (ligeantia), which is derived from

liege (ligius), meaning absolute or unqualified. It signified originally liege fealty, i.
e., absolute and qualified fealty. 18 L. Q. Rev., 47.

xxx xxx xxx

Allegiance may be an absolute and permanent obligation, or it may be a qualified and

temporary one; the citizen or subject owes the former to his government or
sovereign, until by some act he distinctly renounces it, whilst the alien domiciled in
the country owes a temporary and local allegiance continuing during such residence.
(Carlisle vs. United States, 16 Wall. [U.S.], 154; 21 Law. ed., 426. (1 Bouvier's Law
Dictionary, p. 179.).

The above quotations express ideas that do not fit exactly into the Philippine pattern in
view of the revolutionary insertion in our Constitution of the fundamental principle that
"sovereignty resides in the people and all government authority emanates from them."
(Section 1, Article II.) The authorities above quoted, judges and juridical publicists define
allegiance with the idea that sovereignty resides somewhere else, on symbols or subjects
other than the people themselves. Although it is possible that they had already discovered
that the people and only the people are the true sovereign, their minds were not yet free
from the shackles of the tradition that the powers of sovereignty have been exercised by
princes and monarchs, by sultans and emperors, by absolute and tyrannical rules whose
ideology was best expressed in the famous words of one of the kings of France: "L'etat
c'est moi," or such other persons or group of persons posing as the government, as an
entity different and in opposition to the people themselves. Although democracy has been
known ever since old Greece, and modern democracies in the people, nowhere is such
principle more imperative than in the pronouncement embodied in the fundamental law
of our people.

To those who think that sovereignty is an attribute of government, and not of the people,
there may be some plausibility in the proposition that sovereignty was suspended during
the enemy occupation, with the consequence that allegiance must also have been
suspended, because our government stopped to function in the country. But the idea
cannot have any place under our Constitution. If sovereignty is an essential attribute of
our people, according to the basic philosophy of Philippine democracy, it could not have
been suspended during the enemy occupation. Sovereignty is the very life of our people,
and there is no such thing as "suspended life." There is no possible middle situation
between life and death. Sovereignty is the very essence of the personality and existence
of our people. Can anyone imagine the possibility of "suspended personality" or
"suspended existence" of a people? In no time during enemy occupation have the Filipino
people ceased to be what they are.

The idea of suspended sovereignty or suspended allegiance is incompatible with our

Constitution.

There is similarity in characteristics between allegiance to the sovereign and a wife's

loyalty to her husband. Because some external and insurmountable force precludes the
husband from exercising his marital powers, functions, and duties and the wife is thereby
deprived of the benefits of his protection, may the wife invoke the theory of suspended
loyalty and may she freely share her bed with the assailant of their home? After giving
aid and comfort to the assailant and allowing him to enjoy her charms during the former's
stay in the invaded home, may the wife allege as defense for her adultery the principle of
suspended conjugal fidelity?

Petitioner's thesis on change of sovereignty at the advent of independence on July 4,

1946, is unacceptable. We have already decided in Brodett vs. De la Rosa and Vda. de
Escaler (p. 752, ante) that the Constitution of the Republic is the same as that of the
Commonwealth. The advent of independence had the effect of changing the name of our
Government and the withdrawal by the United States of her power to exercise functions
of sovereignty in the Philippines. Such facts did not change the sovereignty of the
Filipino people. That sovereignty, following our constitutional philosophy, has existed
ever since our people began to exist. It has been recognized by the United States of
America, at least since 1935, when President Roosevelt approved our Constitution. By
such act, President Roosevelt, as spokesman of the American people, accepted and
recognized the principle that sovereignty resides in the people that is, that Philippine
sovereignty resides in the Filipino people.

The same sovereignty had been internationally recognized long before the proclamation
of independence on July 4, 1946. Since the early part of the Pacific war, President
Quezon had been sitting as representative of a sovereign people in the Allied War
Council, and in June, 1945, the same Filipino people took part — outstanding and
brilliant, it may be added — in the drafting and adoption of the charter of the United
Nations, the unmistakable forerunner of the future democratic federal constitution of the
world government envisioned by all those who adhere to the principle of unity of all
mankind, the early realization of which is anxiously desired by all who want to be spared
the sufferings, misery and disaster of another war.

Under our Constitution, the power to suspend laws is of legislative nature and is lodged
in Congress. Sometimes it is delegated to the Chief Executive, such as the power granted
by the Election Code to the President to suspend the election in certain districts and areas
for strong reasons, such as when there is rebellion, or a public calamity, but it has never
been exercised by tribunals. The Supreme Court has the power to declare null and void all
laws violative of the Constitution, but it has no power, authority, or jurisdiction to
suspend or declare suspended any valid law, such as the one on treason which petitioner
wants to be included among the laws of the Commonwealth which, by his theory of
suspended allegiance and suspended sovereignty, he claims have been suspended during
the Japanese occupation.

Suppose President Quezon and his government, instead of going from Corregidor to
Australia, and later to Washington, had fled to the mountains of Luzon, and a group of
Filipino renegades should have killed them to serve the interests of the Japanese imperial
forces. By petitioner's theory, those renegades cannot be prosecuted for treason or for
rebellion or sedition, as the laws punishing them were suspended. Such absurd result
betrays the untenability of the theory.

"The defense of the State is a prime duty of Government, and in the fulfillment of that
duty all citizens may be required by law to render personal, military or civil service."
Thus, section 2 of Article II of the Constitution provides: That duty of defense becomes
more imperative in time of war and when the country is invaded by an aggressor nation.
How can it be fulfilled if the allegiance of the citizens to the sovereign people is
suspended during enemy occupation? The framers of the Constitution surely did not
entertain even for the moment the absurdity that when the allegiance of the citizens to the
sovereign people is more needed in the defense of the survival of the state, the same
should be suspended, and that upon such suspension those who may be required to render
personal, military or civil service may claim exemption from the indispensable duty of
serving their country in distress.

Petitioner advances the theory that protection in the consideration of allegiance. He

argues that the Commonwealth Government having been incapacitated during enemy
occupation to protect the citizens, the latter were relieved of their allegiance to said
government. The proposition is untenable. Allegiance to the sovereign is an indispensable
bond for the existence of society. If that bond is dissolved, society has to disintegrate.
Whether or not the existence of the latter is the result of the social compact mentioned by
Roseau, there can be no question that organized society would be dissolved if it is not
united by the cohesive power of the citizen's allegiance. Of course, the citizens are
entitled to the protection of their government, but whether or not that government fulfills
that duty, is immaterial to the need of maintaning the loyalty and fidelity of allegiance, in
the same way that the physical forces of attraction should be kept unhampered if the life
of an individual should continue, irrespective of the ability or inability of his mind to
choose the most effective measures of personal protection.

After declaring that all legislative, executive, and judicial processes had during and under
the Japanese regime, whether executed by the Japanese themselves or by Filipino officers
of the puppet government they had set up, are null and void, as we have done in our
opinions in Co Kim Cham vs. Valdez Tan Keh and Dizon (75 Phil., 113), in Peralta vs.
Director of Prison (75, Phil., 285), and in several other cases where the same question has
been mentioned, we cannot consistently accept petitioner's theory.

If all laws or legislative acts of the enemy during the occupation were null and void, and
as we cannot imagine the existence of organized society, such as the one constituted by
the Filipino people, without laws of the Commonwealth were the ones in effect during the
occupation and the only ones that could claim obedience from our citizens.

Petitioner would want us to accept the thesis that during the occupation we owed
allegiance to the enemy. To give way to that paradoxical and disconcerting allegiance, it
is suggested that we accept that our allegiance to our legitimate government was
suspended. Petitioner's proposition has to fall by its own weight, because of its glaring
absurdities. Allegiance, like its synonyms, loyalty and fidelity, is based on feelings of
attraction, love, sympathy, admiration, respect, veneration, gratitude, amity,
understanding, friendliness. These are the feelings or some of the feelings that bind us to
our own people, and are the natural roots of the duty of allegiance we owe them. The
enemy only provokes repelling and repulsive feelings — hate, anger, vexation, chagrin,
mortification, resentment, contempt, spitefulness. The natural incompatibility of political,
social and ethical ideologies between our people and the Japanese, making impossible the
existence of any feeling of attraction between them, aside from the initial fact that the
Japanese invaded our country as our enemy, was aggravated by the morbid complexities
of haughtiness, braggadocio and beastly brutality of the Nippon soldiers and officers in
their dealings with even the most inoffensive of our citizens.

Giving bread to our enemy, and, after slapping one side of our face, offer him the other to
be further slapped, may appear to be divinely charitable, but to make them a reality, it is
necessary to change human nature. Political actions, legal rules and judicial decisions
deal with human relations, taking man as he is, not as he should be. To love the enemy is
not natural. As long as human pyschology remains as it is, the enemy shall always be
hated. Is it possible to conceive an allegiance based on hatred?

The Japanese, having waged against us an illegal war condemned by prevailing principles
of international law, could not have established in our country any government that can
be legally recognized as de facto. They came as bandits and ruffians, and it is
inconceivable that banditry and ruffianism can claim any duty of allegiance — even a
temporary one — from a decent people.

One of the implications of petitioner's theory, as intimated somewhere, is that the citizens,
in case of invasion, are free to do anything not forbidden by the Hague Conventions.
Anybody will notice immediately that the result will be the doom of small nations and
peoples, by whetting the covetousness of strong powers prone on imperialistic practices.
In the imminence of invasion, weak-hearted soldiers of the smaller nations will readily
throw away their arms to rally behind the paladium of the invaders.

Two of the three great departments of our Government have already rejected petitioner's
theory since September 25, 1945, the day when Commonwealth Act No. 682 took effect.
By said act, creating the People's Court to try and decide all cases of crime against
national security "committed between December 8, 1941 and September 2, 1945,"
(section 2), the legislative and executive departments have jointly declared that during the
period above mentioned, including the time of Japanese occupation, all laws punishing
crimes against national security, including article 114 of the Revised Penal Code,
punishing treason, had remained in full effect and should be enforced.

That no one raised a voice in protest against the enactment of said act and that no one, at
the time the act was being considered by the Senate and the House of Representatives,
ever dared to expose the uselessness of creating a People's Court to try crime which, as
claimed by petitioner, could not have been committed as the laws punishing them have
been suspended, is a historical fact of which the Supreme Court may take judicial notice.
This fact shows universal and unanimous agreement of our people that the laws of the
Commonwealth were not suspended and that the theory of suspended allegiance is just an
afterthought provoked by a desperate effort to help quash the pending treason cases at any
cost.

Among the arguments adduced in favor of petitioner's theory is that it is based on

generally accepted principles of international law, although this argument becomes futile
by petitioner's admission that the theory is advantageous to strong powers but harmful to
small and weak nations, thus hinting that the latter cannot accept it by heart. Suppose we
accept at face value the premise that the theories, urged by petitioner, of suspended
allegiance and suspended sovereignty are based on generally accepted principles of
international law. As the latter forms part of our laws by virtue of the provisions of
section 3 of Article II of the Constitution, it seems that there is no alternative but to
accept the theory. But the theory has the effect of suspending the laws, especially those
political in nature. There is no law more political in nature than the Constitution of the
Philippines. The result is an inverted reproduction of the Greek myth of Saturn devouring
his own children. Here, under petitioner's theory, the offspring devours its parent.

Can we conceive of an instance in which the Constitution was suspended even for a
moment?

There is conclusive evidence that the legislature, as policy-determining agency of

government, even since the Pacific war started on December 7, 1941, intimated that it
would not accept the idea that our laws should be suspended during enemy occupation. It
must be remembered that in the middle of December, 1941, when Manila and other parts
of the archipelago were under constant bombing by Japanese aircraft and enemy forces
had already set foot somewhere in the Philippines, the Second National Assembly passed
Commonwealth Act No. 671, which came into effect on December 16, 1941. When we
approved said act, we started from the premise that all our laws shall continue in effect
during the emergency, and in said act we even went to the extent of authorizing the
President "to continue in force laws and appropriations which would lapse or otherwise
become inoperative," (section 2, [d]), and also to "promulgate such rules and regulations
as he may deem necessary to carry out the national policy," (section 2), that "the
existence of war between the United States 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." (Section 1.) To give emphasis to the
intimation, we provided that the rules and regulations provided "shall be in force and
effect until the Congress of the Philippines shall otherwise provide," foreseeing the
possibility that Congress may not meet as scheduled as a result of the emergency,
including invasion and occupation by the enemy. Everybody was then convinced that we
did not have available the necessary means of repelling effectivity the enemy invasion.

Maybe it is not out of place to consider that the acceptance of petitioner's theory of
suspended allegiance will cause a great injustice to those who, although innocent, are
now under indictment for treason and other crimes involving disloyalty to their country,
because their cases will be dismissed without the opportunity for them to revindicate
themselves. Having been acquitted upon a mere legal technicality which appears to us to
be wrong, history will indiscriminality classify them with the other accused who were
really traitors to their country. Our conscience revolts against the idea of allowing the
innocent ones to go down in the memory of future generations with the infamous stigma
of having betrayed their own people. They should not be deprived of the opportunity to
show through the due process of law that they are free from all blame and that, if they
were really patriots, they acted as such during the critical period of test.

HILADO, J., concurring:

I concur in the result reached in the majority opinion to the effect that during the so-called
Japanese occupation of the Philippines (which was nothing more than the occupation of
Manila and certain other specific regions of the Islands which constituted the minor area
of the Archipelago) the allegiance of the citizens of this country to their legitimate
government and to the United States was not suspended, as well as the ruling that during
the same period there was no change of sovereignty here; but my reasons are different
and I proceed to set them forth:

I. SUSPENDED ALLEGIANCE.

(a) Before the horror and atrocities of World War I, which were multiplied more than a
hundred-fold in World War II, the nations had evolved certain rules and principles which
came to be known as International Law, governing their conduct with each other and
toward their respective citizens and inhabitants, in the armed forces or civilian life, in
time of peace or in time of war. During the ages which preceded that first world conflict
the civilized governments had no realization of the potential excesses of which "men's
inhumanity to man" could be capable. Up to that time war was, at least under certain
conditions, considered as sufficiently justified, and the nations had not on that account,
proscribed nor renounced it as an instrument of national policy, or as a means of settling
international disputes. It is not for us now to dwell upon the reasons accounting for this
historical fact. Suffice it to recognize its existence in history.

But when in World War I civilized humanity saw that war could be, as it actually was,
employed for entirely different reasons and from entirely different motives, compared to
previous wars, and the instruments and methods of warfare had been so materially
changed as not only to involve the contending armed forces on well defined battlefields
or areas, on land, in the sea, and in the air, but to spread death and destruction to the
innocent civilian populations and to their properties, not only in the countries engaged in
the conflict but also in neutral ones, no less than 61 civilized nations and governments,
among them Japan, had to formulate and solemnly subscribe to the now famous Briand-
Kellogg Pact in the year 1928. As said by Justice Jackson of the United States Supreme
Court, as chief counsel for the United States in the prosecution of "Axis war criminals,"
in his report to President Truman of June 7, 1945:

International law is not capable of development by legislation, for there is no

continuously sitting international legislature. Innovations and revisions in
international law are brought about by the action of governments designed to meet a
change circumstances. It grows, as did the common law, through decisions reached
from time to time in adopting settled principles to new situations.

xxx xxx xxx

After the shock to civilization of the war of 1914-1918, however, a marked reversion
to the earlier and sounder doctrines of international law took place. By the time the
Nazis came to power it was thoroughly established that launching an aggressive war
or the institution of war by treachery was illegal and that the defense of legitimate
warfare was no longer available to those who engaged in such an enterprise. It is high
time that we act on the juridical principle that aggressive war-making is illegal and
criminal.

The re-establishment of the principle of justifiable war is traceable in many steps.

One of the most significant is the Briand-Kellogg Pact of 1928 by which Germany,
Italy, and Japan, in common with the United States and practically all the nations of
the world, renounced war as an instrument of national policy, bound themselves to
seek the settlement of disputes only by pacific means, and condemned recourse to
war for the solution of international controversies.

Unless this Pact altered the legal status of wars of aggression, it has no meaning at all
and comes close to being an act of deception. In 1932 Mr. Henry L. Stimson, as
United States Secretary of State, gave voice to the American concept of its effect. He
said, "war between nations was renounced by the signatories of the Briand-Kellogg
Treaty. This means that it has become illegal throughout practically the entire world.
It is no longer to be the source and subject of rights. It is no longer to be the principle
around which the duties, the conduct, and the rights of nations revolve. It is an illegal
thing. . . . By that very act we have made obsolete many legal precedents and have
given the legal profession the task of re-examining many of its Codes and treaties.

This Pact constitutes only one reversal of the viewpoint that all war is legal and has
brought international law into harmony with the common sense of mankind — that
unjustifiable war is a crime.

Without attempting an exhaustive catalogue, we may mention the Geneva Protocol of

1924 for the Pacific Settlement of International Disputes, signed by the
 representatives of forty-eight governments, which declared that "a war of aggression
constitutes .. an International crime. . . .

The Eight Assembly of the League of Nations in 1927, on unanimous resolution of

the representatives of forty-eight member-nations, including Germany, declared that
a war of aggression constitutes an international crime. At the Sixth Pan-American
Conference of 1928, the twenty-one American Republics unanimously adopted a
resolution stating that "war of aggression constitutes an international crime against
the human species."

xxx xxx xxx

We therefore propose to change that a war of aggression is a crime, and that modern
international law has abolished the defense that those who incite or wage it are
engaged in legitimate business. Thus may the forces of the law be mobilized on the
side of peace. ("U.S.A. — An American Review," published by the United States
Office of War Information, Vol. 2, No. 10; emphasis supplied.).

When Justice Jackson speaks of "a marked reversion to the earlier and sounder doctrines
of international law" and "the re-establishment of the principle of justifiable war," he has
in mind no other than "the doctrine taught by Grotius, the father of international law, that
there is a distinction between the just and the unjust war — the war of defense and the
war of aggression" to which he alludes in an earlier paragraph of the same report.

In the paragraph of said report immediately preceding the one last above mentioned
Justice Jackson says that "international law as taught in the 19th and the early part of the
20th century generally declared that war-making was not illegal and no crime at law."
But, as he says in one of the paragraphs hereinabove quoted from that report, the Briand-
Kellogg Pact constitutes a reversal of the view-point that all war is legal and has brought
international law into harmony with the common sense of mankind — that unjustifiable
war is a crime. Then he mentions as other reversals of the same viewpoint, the Geneva
Protocol of 1924 for the Pacific Settlement of International Disputes, declaring that a war
of aggression constitutes an international crime; the 8th assembly of the League of
Nations in 1927, declaring that a war of aggression constitutes an international crime; and
the 6th Pan-American conference of 1928, which unanimously adopted a resolution
stating that war of aggression constitutes an international crime against the human
species: which enumeration, he says, is not an attempt at an exhaustive catalogue.

It is not disputed that the war started by Japan in the Pacific, first, against the United
States, and later, in rapid succession, against other allied nations, was a war of aggression
and utterly unjustifiable. More aggressive still, and more unjustifiable, as admitted on all
sides, was its attack against the Philippines and its consequent invasion and occupation of
certain areas thereof.

Some of the rules and principles of international law which have been cited for petitioner
herein in support of his theory of suspended allegiance, have been evolved and accepted
during those periods of the history of nations when all war was considered legal, as stated
by Justice Jackson, and the others have reference to military occupation in the course of
really justifiable war.

Japan in subscribing the Briand-Kellogg Pact thirteen years before she started the
aggressive war which threw the entire Pacific area into a seething cauldron from the last
month of 1941 of the first week of September, 1945, expressly agreed to outlaw,
proscribe and renounce war as an instrument of national policy, and bound herself to seek
the settlement of her disputes with other nations only by pacific means. Thus she
expressly gave her consent to that modification of the then existing rules and principles of
international law governing the matter. With the modification, all the signatories to the
pact necessarily accepted and bound themselves to abide by all its implications, among
them the outlawing, prescription and renunciation of military occupation of another
nation's territory in the course of a war thus outlawed, proscribed and renounced. This is
only one way of saving that the rules and principles of international law therefore existing
on the subject of military occupation were automatically abrogated and rendered
ineffective in all future cases of war coming under the ban and condemnation of the pact.

If an unjustifiable war is a crime; if a war of aggression constitutes an international crime;

if such a war is an international crime against the human species: a nation which occupies
a foreign territory in the course of such a war cannot possibly, under any principle of
natural or positive law, acquire or posses any legitimate power or right growing out or
incident to such occupation. Concretely, Japan in criminally invading the Philippines and
occupying certain portions of its territory during the Pacific war, could not have nor
exercise, in the legal sense — and only this sense should we speak here — with respect to
this country and its citizens, any more than could a burglar breaking through a man's
house pretends to have or to exercise any legal power or right within that house with
respect either to the person of the owner or to his property. To recognize in the first
instance any legal power or right on the part of the invader, and in the second any legal
power or right on the part of the burglar, the same as in case of a military occupant in the
course of a justifiable war, would be nothing short of legalizing the crime itself. It would
be the most monstrous and unpardonable contradiction to prosecute, condemn and hang
the appropriately called war criminals of Germany, Italy, and Japan, and at the same time
recognize any lawfulness in their occupation invaded. And let it not be forgotten that the
Philippines is a member of the United Nations who have instituted and conducted the so-
called war crimes trials. Neither should we lose sight of the further fact that this
government has a representative in the international commission currently trying the
Japanese war criminals in Tokyo. These facts leave no room for doubt that this
government is in entire accord with the other United Nations in considering the Pacific
war started by Japan as a crime. Not only this, but this country had six years before the
outbreak of the Pacific war already renounced war as an instrument of national policy
(Constitution, Article II, section 2), thus in consequence adopting the doctrine of the
Briand-Kellogg Pact.

Consequently, it is submitted that it would be absolutely wrong and improper for this
Court to apply to the occupation by Japan of certain areas of the Philippines during that
war the rules and principles of international law which might be applicable to a military
occupation occurring in the course of a justifiable war. How can this Court recognize any
lawfulness or validity in that occupation when our own government has sent a
representative to said international commission in Tokyo trying the Japanese "war
criminals" precisely for the "crimes against humanity and peace" committed by them
during World War II of which said occupation was but part and parcel? In such
circumstances how could such occupation produce no less an effect than the suspension
of the allegiance of our people to their country and government?

(b) But even in the hypothesis — and not more than a mere hypothesis — that when
Japan occupied the City of Manila and certain other areas of the Philippines she was
engaged in a justifiable war, still the theory of suspended allegiance would not hold good.
The continuance of the allegiance owed to a notion by its citizens is one of those high
privileges of citizenship which the law of nations denies to the occupant the power to
interfere with.

. . . His (of occupant) rights are not, however, commensurate with his power. He is
thus forbidden to take certain measures which he may be able to apply, and that
irrespective of their efficacy. The restrictions imposed upon him are in theory
designed to protect the individual in the enjoyment of some highly important
privileges. These concern his allegiance to the de jure sovereign, his family honor
and domestic relations, religious convictions, personal service, and connection with
or residence in the occupied territory.

The Hague Regulations declare that the occupant is forbidden to compel the
inhabitants to swear allegiance to the hostile power. . . . (III Hyde, International Law,
2d revised ed., pp. 1898-1899.)

. . . Nor may he (occupant) compel them (inhabitants) to take an oath of allegiance.

Since the authority of the occupant is not sovereignty, the inhabitants owe no
temporary allegiance to him. . . . (II Oppenheim, International Law, pp. 341-344.)

The occupant's lack of the authority to exact an oath of allegiance from the inhabitants of
the occupied territory is but a corollary of the continuance of their allegiance to their own
lawful sovereign. This allegiance does not consist merely in obedience to the laws of the
lawful sovereign, but more essentially consists in loyalty or fealty to him. In the same
volume and pages of Oppenheim's work above cited, after the passage to the effect that
the inhabitants of the occupied territory owe no temporary allegiance to the occupant it is
said that "On the other hand, he may compel them to take an oath — sometimes called an
'oath of neutrality' — . . . willingly to submit to his 'legitimate commands.' Since,
naturally, such "legitimate commands" include the occupant's laws, it follows that said
occupant, where the rule is applicable, has the right to compel the inhabitants to take an
oath of obedience to his laws; and since according to the same rule, he cannot exact from
the inhabitants an oath of obedience to his laws; and since, according to the same rule, he
cannot exact from the inhabitants an oath of allegiance, it follows that obedience to his
laws, which he can exact from them, does not constitute allegiance.
(c) The theory of suspended allegiance is unpatriotic to the last degree. To say that when
the one's country is unable to afford him in its protection, he ceases to be bound to it by
the sacred ties of allegiance, is to advocate the doctrine that precisely when his country is
in such distress, and therefore most needs his loyalty, he is absolved from the loyalty.
Love of country should be something permanent and lasting, ending only in death;
loyalty should be its worth offspring. The outward manifestation of one or the other may
for a time be prevented or thwarted by the irresistible action of the occupant; but this
should not in the least extinguish nor obliterate the invisible feelings, and promptings of
the spirit. And beyond the unavoidable consequences of the enemy's irresistible pressure,
those invisible feelings and promptings of the spirit of the people should never allow
them to act, to speak, nor even to think a whit contrary to their love and loyalty to the
Fatherland. For them, indicted, to face their country and say to it that, because when it
was overrun and vanquished by the barbarous invader and, in consequence was disabled
from affording them protection, they were released from their sacred obligation of
allegiance and loyalty, and could therefore freely adhere to its enemy, giving him aid and
comfort, incurring no criminal responsibility therefor, would only tend to aggravate their
crime.

II. CHANGE OF SOVEREIGNTY

Article II, section 1, of the Constitution provides that "Sovereignty resides in the people
and all government authority emanates from them." The Filipino people are the self-same
people before and after Philippine Independence, proclaimed on July 4, 1946. During the
life of the Commonwealth sovereignty resided in them under the Constitution; after the
proclamation of independence that sovereignty remained with them under the very same
fundamental law. Article XVIII of the said Constitution stipulates that the government
established thereby shall be known as the Commonwealth of the Philippines; and that
upon the final and complete withdrawal of the sovereignty of the United States and the
proclamation of Philippine independence, "The Commonwealth of the Philippines shall
thenceforth be known as the Republic of the Philippines." Under this provision the
Government of the Philippines immediately prior to independence was essentially to be
the identical government thereafter — only the name of that government was to be
changed.

Both before and after the adoption of the Philippine Constitution the people of the
Philippines were and are always the plaintiff in all criminal prosecutions, the case being
entitled: "The People of the Philippines vs. (the defendant or defendants)." This was
already true in prosecutions under the Revised Penal Code containing the law of treason.
"The Government of the Philippines" spoken of in article 114 of said Code merely
represents the people of the Philippines. Said code was continued, along with the other
laws, by Article XVI, section 2, of the Constitution which constitutional provision further
directs that "all references in such laws to the Government or officials of the Philippine
Islands shall be construed, in so far as applicable, to refer to the Government and
corresponding officials under this Constitution" — of course, meaning the
Commonwealth of the Philippines before, and the Republic of the Philippines after,
independence (Article XVIII). Under both governments sovereignty resided and resides
in the people (Article II, section 1). Said sovereignty was never transferred from that
people — they are the same people who preserve it to this day. There has never been any
change in its respect.

If one committed treason againsts the People of the Philippines before July 4, 1946, he
continues to be criminally liable for the crime to the same people now. And if, following
the literal wording of the Revised Penal Code, as continued by the Constitution, that
accused owed allegiance upon the commission of the crime to the "Government of the
Philippines," in the textual words of the Constitution (Article XVI, section 2, and XVIII)
that was the same government which after independence became known as the "Republic
of the Philippines." The most that can be said is that the sovereignty of the people became
complete and absolute after independence — that they became, politically, fully of age, to
use a metaphor. But if the responsibility for a crime against a minor is not extinguished
by the mere fact of his becoming of age, why should the responsibility for the crime of
treason committed against the Filipino people when they were not fully politically
independent be extinguished after they acquire this status? The offended party continues
to be the same — only his status has changed.

PARAS, J., dissenting:

During the long period of Japanese occupation, all the political laws of the Philippines
were suspended. This is full harmony with the generally accepted principles of the
international law adopted by our Constitution(Article II, section 3) as a part of the law of
the Nation. Accordingly, we have on more than one occasion already stated that "laws of
a political nature or affecting political relations, . . . are considered as suspended or in
abeyance during the military occupation" (Co Kim Cham vs. Valdez Tan Keh and Dizon,
75 Phil., 113, 124), and that the rule "that laws of political nature or affecting political
relations are considered suspended or in abeyance during the military occupation, is
intended for the governing of the civil inhabitants of the occupied territory." (Ruffy vs.
Chief of Staff, Philippine Army, 75, Phil., 875, 881.)

The principle is recognized by the United States of America, which admits that the
occupant will naturally suspends all laws of a political nature and all laws which affect
the welfare and safety of his command, such action to be made known to the inhabitants.
(United States Rules of Land Welfare, 1940, Article 287.) As allegiance to the United
States is an essential element in the crime of treason under article 114 of the Revised
Penal Code, and in view of its position in our political structure prior to the independence
of the Philippines, the rule as interpreted and practiced in the United States necessarily
has a binding force and effect in the Philippines, to the exclusion of any other
construction followed elsewhere, such as may be inferred, rightly or wrongly, from the
isolated cases 1 brought to our attention, which, moreover, have entirely different factual
bases.

Corresponding notice was given by the Japanese occupying army, first, in the
proclamation of its Commander in chief of January 2, 1942, to the effect that as a "result
of the Japanese Military operations, the sovereignty of the United States of America over
the Philippines has completely disappeared and the Army hereby proclaims the Military
Administration under martial law over the district occupied by the Army;" secondly, in
Order No. 3 of the said Commander in Chief of February 20, 1942, providing that
"activities of the administrative organs and judicial courts in the Philippines shall be
based upon the existing statutes, orders, ordinances and customs until further orders
provided that they are not inconsistent with the present circumstances under the Japanese
Military Administration;" and, thirdly, in the explanation to Order No. 3 reminding that
"all laws and regulations of the Philippines has been suspended since Japanese
occupation," and excepting the application of "laws and regulations which are not proper
act under the present situation of the Japanese Military Administration," especially those
"provided with some political purposes."

The suspension of the political law during enemy occupation is logical, wise and humane.
The latter phase outweighs all other aspects of the principle aimed more or less at
promoting the necessarily selfish motives and purposes of a military occupant. It thus
consoling to note that the powers instrumental in the crystallization of the Hague
Conventions of 1907 did not forget to declare that they were "animated by the desire to
serve . . . the interest of the humanity and the over progressive needs of civilization," and
that "in case not included in the Regulations adopted by them, the inhabitants and the
belligerents remain under the protection and the rule of the principles of international law,
as they result from the usages established among civilized peoples, from the laws of
humanity, and the dictates of the public conscience." These saving statements come to the
aid of the inhabitants in the occupied territory in a situation wherein, even before the
belligerent occupant "takes a further step and by appropriate affirmative action
undertakes to acquire the right of sovereignty for himself, . . . the occupant is likely to
regard to himself as clothed with freedom to endeavor to impregnate the people who
inhabit the area concerned with his own political ideology, and to make that endeavor
successful by various forms of pressure exerted upon enemy officials who are permitted
to retain the exercise of normal governmental functions." (Hyde, International Law, Vol.
III, Second Revised Edition, 1945, p. 1879.)

The inhabitants of the occupied territory should necessarily be bound to the sole authority
of the invading power, whose interest and requirements are naturally in conflict with
those of the displaced government, if it is legitimate for the military occupant to demand
and enforce from the inhabitants such obedience as may be necessary for the security of
his forces, for the maintenance of law and order, and for the proper administration of the
country (United States Rules of Land Warfare, 1940, article 297), and to demand all kinds
of services "of such a nature as not to involve the population in the obligation of taking
part in military operations against their own country" (Hague Regulations, article 52);and
if, as we have in effect said, by the surrender the inhabitants pass under a temporary
allegiance to the government of the occupant and are bound by such laws, and such only,
as it chooses to recognize and impose, and the belligerent occupant `is totally
independent of the constitution and the laws of the territory, since occupation is an aim of
warfare, and the maintenance and safety of his forces, and the purpose of war, stand in
the foreground of his interest and must be promoted under all circumstances or
conditions." (Peralta vs. Director of Prisons, 75 Phil., 285, 295), citing United States vs.
Rice, 4 Wheaton, 246, and quoting Oppenheim, International Law, Vol. II. Sixth Edition,
Revised, 1944,p. 432.)

He would be a bigot who cannot or would refuse to see the cruel result if the people in an
occupied territory were required to obey two antagonistic and opposite powers. To
emphasize our point, we would adopt the argument, in a reverse order, of Mr. Justice
Hilado in Peralta vs. Director of Prisons (75 Phil., 285, 358), contained in the following
passage:

To have bound those of our people who constituted the great majority who never
submitted to the Japanese oppressors, by the laws, regulations, processes and other
acts of those two puppet governments, would not only have been utterly unjust and
downright illegal, but would have placed them in the absurd and impossible
condition of being simultaneously submitted to two mutually hostile governments,
with their respective constitutional and legislative enactments and institutions — on
the one hand bound to continue owing allegiance to the United States and the
Commonwealth Government, and, on the other, to owe allegiance, if only temporary,
to Japan.

The only sensible purpose of the treason law — which is of political complexion and
taken out of the territorial law and penalized as a new offense committed against the
belligerent occupant, incident to a state of war and necessary for the control of the
occupant (Alcantara vs. Director of Prisons, 75 Phil., 494), — must be the preservation of
the nation, certainly not its destruction or extermination. And yet the latter is unwittingly
wished by those who are fond of the theory that what is suspended is merely the exercise
of sovereignty by the de jure government or the latter's authority to impose penal
sanctions or that, otherwise stated, the suspension refers only to the military occupant. If
this were to be the only effect, the rule would be a meaningless and superfluous optical
illusion, since it is obvious that the fleeing or displaced government cannot, even if it
should want, physically assert its authority in a territory actually beyond its reach, and
that the occupant, on the other hand, will not take the absurd step of prosecuting and
punishing the inhabitants for adhering to and aiding it. If we were to believe the
opponents of the rule in question, we have to accept the absurd proposition that the
guerrillas can all be prosecuted with illegal possession of firearms. It should be borne in
the mind that "the possession by the belligerent occupant of the right to control, maintain
or modify the laws that are to obtain within the occupied area is an exclusive one. The
territorial sovereign driven therefrom, can not compete with it on an even plane. Thus, if
the latter attempt interference, its action is a mere manifestation of belligerent effort to
weaken the enemy. It has no bearing upon the legal quality of what the occupant exacts,
while it retains control. Thus, if the absent territorial sovereign, through some quasi-
legislative decree, forbids its nationals to comply with what the occupant has ordained
obedience to such command within the occupied territory would not safeguard the
individual from the prosecution by the occupant." (Hyde, International Law, Vol. III,
Second Revised Edition, 1945, p. 1886.)
As long as we have not outlawed the right of the belligerent occupant to prosecute and
punish the inhabitants for "war treason" or "war crimes," as an incident of the state of war
and necessity for the control of the occupied territory and the protection of the army of
the occupant, against which prosecution and punishment such inhabitants cannot
obviously be protected by their native sovereign, it is hard to understand how we can
justly rule that they may at the same time be prosecuted and punished for an act penalized
by the Revised Penal Code, but already taken out of the territorial law and penalized as a
new offense committed against the belligerent occupant.

In Peralta vs. Director of Prisons, 75 Phil., 285, 296), we held that "the Constitution of
the Commonwealth Government was suspended during the occupation of the Philippines
by the Japanese forces or the belligerent occupant at regular war with the United States,"
and the meaning of the term "suspended" is very plainly expressed in the following
passage (page 298):

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

In much the same way, we should hold that no treason could have been committed during
the Japanese military occupation against the United States or the Commonwealth
Government, because article 114 of the Revised Penal Code was not then in force. Nor
may this penal provision be applied upon its revival at the time of the reoccupation of the
Philippines by virtue of the principle of postliminium, because of the constitutional
inhibition against any ex post facto law and because, under article 22 of the Revised
Penal Code, criminal laws shall have a retroactive effect only in so far as they favor the
accused. Why did we refuse to enforce the Constitution, more essential to sovereignty
than article 114 of the Revised Penal Code in the aforesaid of Peralta vs. Director of
Prisons if, as alleged by the majority, the suspension was good only as to the military
occupant?

The decision in the United States vs. Rice (4 Wheaton, 246), conclusively supports our
position. As analyzed and described in United States vs. Reiter (27 Fed. Cas., 773), that
case "was decided by the Supreme Court of the United States — the court of highest
human authority on that subject — and as the decision was against the United States, and
in favor of the authority of Great Britain, its enemy in the war, and was made shortly after
the occurrence of the war out of which it grew; and while no department of this
Government was inclined to magnify the rights of Great Britain or disparage those of its
own government, there can be no suspicion of bias in the mind of the court in favor of the
conclusion at which it arrived, and no doubt that the law seemed to the court to warrant
and demand such a decision. That case grew out of the war of 1812, between the United
States and Great Britain. It appeared that in September, 1814, the British forces had taken
the port of Castine, in the State of Maine, and held it in military occupation; and that
while it was so held, foreign goods, by the laws of the United States subject to duty, had
been introduced into that port without paying duties to the United States. At the close of
the war the place by treaty restored to the United States, and after that was done
Government of the United States sought to recover from the persons so introducing the
goods there while in possession of the British, the duties to which by the laws of the
United States, they would have been liable. The claim of the United States was that its
laws were properly in force there, although the place was at the time held by the British
forces in hostility to the United States, and the laws, therefore, could not at the time be
enforced there; and that a court of the United States (the power of that government there
having since been restored) was bound so to decide. But this illusion of the prosecuting
officer there was dispelled by the court in the most summary manner. Mr. Justice Story,
that great luminary of the American bench, being the organ of the court in delivering its
opinion, said: 'The single question is whether goods imported into Castine during its
occupation by the enemy are liable to the duties imposed by the revenue laws upon goods
imported into the United States.. We are all of opinion that the claim for duties cannot be
sustained. . . . The sovereignty of the United States over the territory was, of course,
suspended, and the laws of the United States could no longer be rightfully enforced there,
or be obligatory upon the inhabitants who remained and submitted to the conquerors. By
the surrender the inhabitants passed under a temporary allegiance of the British
Government, and were bound by such laws, and such only, as it chose to recognize and
impose. From the nature of the case no other laws could be obligatory upon them. . . .
Castine was therefore, during this period, as far as respected our revenue laws, to be
deemed a foreign port, and goods imported into it by the inhabitants were subjects to such
duties only as the British Government chose to require. Such goods were in no correct
sense imported into the Unites States.' The court then proceeded to say, that the case is
the same as if the port of Castine had been foreign territory, ceded by treaty to the United
States, and the goods had been imported there previous to its cession. In this case they
say there would be no pretense to say that American duties could be demanded; and upon
principles of public or municipal law, the cases are not distinguishable. They add at the
conclusion of the opinion: 'The authorities cited at the bar would, if there were any doubt,
be decisive of the question. But we think it too clear to require any aid from authority.'
Does this case leave room for a doubt whether a country held as this was in armed
belligerents occupation, is to be governed by him who holds it, and by him alone? Does it
not so decide in terms as plain as can be stated? It is asserted by the Supreme Court of the
United States with entire unanimity, the great and venerated Marshall presiding, and the
erudite and accomplished Story delivering the opinion of the court, that such is the law,
and it is so adjudged in this case. Nay, more: it is even adjudged that no other laws could
be obligatory; that such country, so held, is for the purpose of the application of the law
off its former government to be deemed foreign territory, and that goods imported there
(and by parity of reasoning other acts done there) are in no correct sense done within the
territory of its former sovereign, the United States."
But it is alleged by the majority that the sovereignty spoken of in the decision of the
United States vs. Rice should be construed to refer to the exercise of sovereignty, and
that, if sovereignty itself was meant, the doctrine has become obsolete after the adoption
of the Hague Regulations in 1907. In answer, we may state that sovereignty can have any
important significance only when it may be exercised; and, to our way of thinking, it is
immaterial whether the thing held in abeyance is the sovereignty itself or its exercise,
because the point cannot nullify, vary, or otherwise vitiate the plain meaning of the
doctrinal words "the laws of the United States could no longer be rightfully enforced
there, or be obligatory upon the inhabitants who remained and submitted to the
conquerors." We cannot accept the theory of the majority, without in effect violating the
rule of international law, hereinabove adverted to, that the possession by the belligerent
occupant of the right to control, maintain or modify the laws that are to obtain within the
occupied area is an exclusive one, and that the territorial sovereign driven therefrom
cannot compete with it on an even plane. Neither may the doctrine in the United States
vs. Rice be said to have become obsolete, without repudiating the actual rule prescribed
and followed by the United States, allowing the military occupant to suspend all laws of a
political nature and even require public officials and inhabitants to take an oath of fidelity
(United States Rules of Land Warfare, 1940, article 309). In fact, it is a recognized
doctrine of American Constitutional Law that mere conquest or military occupation of a
territory of another State does not operate to annex such territory to occupying State, but
that the inhabitants of the occupied district, no longer receiving the protection of their
native State, for the time being owe no allegiance to it, and, being under the control and
protection of the victorious power, owe to that power fealty and obedience. (Willoughby,
The Fundamental Concepts of Public Law [1931], p.364.)

The majority have resorted to distinctions, more apparent than real, if not immaterial, in
trying to argue that the law of treason was obligatory on the Filipinos during the Japanese
occupation. Thus it is insisted that a citizen or subject owes not a qualified and temporary,
but an absolute and permanent allegiance, and that "temporary allegiance" to the military
occupant may be likened to the temporary allegiance which a foreigner owes to the
government or sovereign to the territory wherein he resides in return for the protection he
receives therefrom. The comparison is most unfortunate. Said foreigner is in the territory
of a power not hostile to or in actual war with his own government; he is in the territory
of a power which has not suspended, under the rules of international law, the laws of
political nature of his own government; and the protections received by him from that
friendly or neutral power is real, not the kind of protection which the inhabitants of an
occupied territory can expect from a belligerent army. "It is but reasonable that States,
when they concede to other States the right to exercise jurisdiction over such of their own
nationals as are within the territorial limits of such other States, should insist that States
should provide system of law and of courts, and in actual practice, so administer them, as
to furnish substantial legal justice to alien residents. This does not mean that a State must
or should extend to aliens within its borders all the civil, or much less, all the political
rights or privileges which it grants to its own citizens; but it does mean that aliens must or
should be given adequate opportunity to have such legal rights as are granted to them by
the local law impartially and judicially determined, and, when thus determined,
protected." (Willoughby, The Fundamental Concepts of Public Law [1931], p. 360.)
When it is therefore said that a citizen of a sovereign may be prosecuted for and
convicted of treason committed in a foreign country or, in the language of article 114 of
the Revised Penal Code, "elsewhere," a territory other than one under belligerent
occupation must have been contemplated. This would make sense, because treason is a
crime "the direct or indirect purpose of which is the delivery, in whole or in part, of the
country to a foreign power, or to pave the way for the enemy to obtain dominion over the
national territory" (Albert, The Revised Penal Code, citing 3 Groizard, 14); and, very
evidently, a territory already under occupation can no longer be "delivered."

The majority likewise argue that the theory of suspended sovereignty or allegiance will
enable the military occupant to legally recruit the inhabitants to fight against their own
government, without said inhabitants being liable for treason. This argument is not
correct, because the suspension does not exempt the occupant from complying with the
Hague Regulations (article 52) that allows it to demand all kinds of services provided that
they do not involve the population "in the obligation of taking part military operations
against their own country." Neither does the suspension prevent the inhabitants from
assuming a passive attitude, much less from dying and becoming heroes if compelled by
the occupant to fight against their own country. Any imperfection in the present state of
international law should be corrected by such world agency as the United Nations
organizations.

It is of common knowledge that even with the alleged cooperation imputed to the
collaborators, an alarming number of Filipinos were killed or otherwise tortured by the
ruthless, or we may say savage, Japanese Army. Which leads to the conclusion that if the
Filipinos did not obey the Japanese commands and feign cooperation, there would not be
any Filipino nation that could have been liberated. Assuming that the entire population
could go to and live in the mountains, or otherwise fight as guerrillas — after the formal
surrender of our and the American regular fighting forces, — they would have faced
certain annihilation by the Japanese, considering that the latter's military strength at the
time and the long period during which they were left military unmolested by America. In
this connection, we hate to make reference to the atomic bomb as a possible means of
destruction.

If a substantial number of guerrillas were able to survive and ultimately help in the
liberation of the Philippines, it was because the feigned cooperation of their countrymen
enabled them to get food and other aid necessary in the resistance movement. If they
were able to survive, it was because they could camouflage themselves in the midst of the
civilian population in cities and towns. It is easy to argue now that the people could have
merely followed their ordinary pursuits of life or otherwise be indifferent to the occupant.
The fundamental defect of this line of thought is that the Japanese assumed to be so
stupid and dumb as not to notice any such attitude. During belligerent occupation, "the
outstanding fact to be reckoned with is the sharp opposition between the inhabitants of
the occupied areas and the hostile military force exercising control over them. At heart
they remain at war with each other. Fear for their own safety may not serve to deter the
inhabitants from taking advantage of opportunities to interfere with the safety and success
of the occupant, and in so doing they may arouse its passions and cause to take vengeance
in cruel fashion. Again, even when it is untainted by such conduct, the occupant as a
means of attaining ultimate success in its major conflict may, under plea of military
necessity, and regardless of conventional or customary prohibitions, proceed to utilize the
inhabitants within its grip as a convenient means of military achievement." (Hyde,
International Law, Vol. III, Second Revised Edition [1945], p. 1912.) It should be stressed
that the Japanese occupation was not a matter of a few months; it extended over a little
more than three years. Said occupation was a fact, in spite of the "presence of guerrilla
bands in barrios and mountains, and even in towns of the Philippines whenever these
towns were left by Japanese garrisons or by the detachments of troops sent on patrol to
those places." (Co Kim Cham vs. Valdez Tan Keh and Dizon, 75 Phil., 371, 373.) The law
of nations accepts belligerent occupation as a fact to be reckoned with, regardless of the
merits of the occupant's cause. (Hyde, International Law, Second Revised Edition [1945],
Vol. III, p. 1879.)

Those who contend or fear that the doctrine herein adhere to will lead to an over-
production of traitors, have a wrong and low conception of the psychology and patriotism
of their countrymen. Patriots are such after their birth in the first place, and no amount of
laws or judicial decisions can make or unmake them. On the other hand, the Filipinos are
not so base as to be insensitive to the thought that the real traitor is cursed everywhere
and in all ages. Our patriots who fought and died during the last war, and the brave
guerrillas who have survived, were undoubtedly motivated by their inborn love of
country, and not by such a thing as the treason law. The Filipino people as a whole,
passively opposed the Japanese regime, not out of fear of a treason statute but because
they preferred and will prefer the democratic and civilized way of life and American
altruism to Japanese barbaric and totalitarian designs. Of course, there are those who
might at heart have been pro-Japanese; but they met and will unavoidably meet the
necessary consequences. The regular soldiers faced the risks of warfare; the spies and
informers subjected themselves to the perils of military operations, likely received
summary liquidation or punishments from the guerrillas and the parties injured by their
acts, and may be prosecuted as war spies by the military authorities of the returning
sovereign; those who committed other common crimes, directly or through the Japanese
army, may be prosecuted under the municipal law, and under this group even the spies
and informers, Makapili or otherwise, are included, for they can be made answerable for
any act offensive to person or property; the buy-and-sell opportunists have the war profits
tax to reckon with. We cannot close our eyes to the conspicuous fact that, in the majority
of cases, those responsible for the death of, or injury to, any Filipino or American at the
hands of the Japanese, were prompted more by personal motives than by a desire to levy
war against the United States or to adhere to the occupant. The alleged spies and
informers found in the Japanese occupation the royal road to vengeance against personal
or political enemies. The recent amnesty granted to the guerrillas for acts, otherwise
criminal, committed in the furtherance of their resistance movement has in a way
legalized the penal sanctions imposed by them upon the real traitors.

It is only from a realistic, practical and common-sense point of view, and by

remembering that the obedience and cooperation of the Filipinos were effected while the
Japanese were in complete control and occupation of the Philippines, when their mere
physical presence implied force and pressure — and not after the American forces of
liberation had restored the Philippine Government — that we will come to realize that,
apart from any rule of international law, it was necessary to release the Filipinos
temporarily from the old political tie in the sense indicated herein. Otherwise, one is
prone to dismiss the reason for such cooperation and obedience. If there were those who
did not in any wise cooperate or obey, they can be counted by the fingers, and let their
names adorn the pages of Philippine history. Essentially, however, everybody who took
advantage, to any extent and degree, of the peace and order prevailing during the
occupation, for the safety and survival of himself and his family, gave aid and comfort to
the enemy.

Our great liberator himself, General Douglas MacArthur, had considered the laws of the
Philippines ineffective during the occupation, and restored to their full vigor and force
only after the liberation. Thus, in his proclamation of October 23, 1944, he ordained that
"the laws now existing on the statute books of the Commonwealth of the Philippines . . .
are in full force and effect and legally binding upon the people in areas of the Philippines
free of enemy occupation and control," and that "all laws . . . 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." Repeating what
we have said in Co Kim Cham vs. Valdez Tan Keh and Dizon (75 Phil., 113, 133), "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 President of the United States, and later
embodied in the Hague Conventions of 1907."

The prohibition in the Hague Conventions (Article 45) against "any pressure on the
population to take oath to the hostile power," was inserted for the moral protection and
benefit of the inhabitants, and does not necessarily carry the implication that the latter
continue to be bound to the political laws of the displaced government. The United
States, a signatory to the Hague Conventions, has made the point clear, by admitting that
the military occupant can suspend all the laws of a political nature and even require
public officials and the inhabitants to take an oath of fidelity (United States Rules of Land
Warfare, 1940, article 309), and as already stated, it is a doctrine of American
Constitutional Law that the inhabitants, no longer receiving the protection of their native
state, for the time being owe no allegiance to it, and, being under the control and
protection of the victorious power, owe to that power fealty and obedience. Indeed, what
is prohibited is the application of force by the occupant, from which it is fair to deduce
that the Conventions do not altogether outlaw voluntary submission by the population.
The only strong reason for this is undoubtedly the desire of the authors of the
Conventions to give as much freedom and allowance to the inhabitants as are necessary
for their survival. This is wise and humane, because the people should be in a better
position to know what will save them during the military occupation than any exile
government.
"Before he was appointed prosecutor, Justice Jackson made a speech in which he warned
against the use of judicial process for non judicial ends, and attacked cynics who "see no
reason why courts, just like other agencies, should not be policy weapons. If we want to
shoot Germans as a matter of policy, let it be done as such, said he, but don't hide the
deed behind a court. If you are determined to execute a man in any case there is no
occasion for a trial; the word yields no respect for courts that are merely organized to
convict." Mussoloni may have got his just desserts, but nobody supposes he got a fair
trial. . . . Let us bear that in mind as we go about punishing criminals. There are enough
laws on the books to convict guilty Nazis without risking the prestige of our legal system.
It is far, far better that some guilty men escape than that the idea of law be endangered. In
the long run the idea of law is our best defense against Nazism in all its forms." These
passages were taken from the editorial appearing in the Life, May 28, 1945, page 34, and
convey ideas worthy of some reflection.

If the Filipinos in fact committed any errors in feigning cooperation and obedience during
the Japanese military occupation, they were at most — borrowing the famous and
significant words of President Roxas — errors of the mind and not of the heart. We
advisedly said "feigning" not as an admission of the fallacy of the theory of suspended
allegiance or sovereignty, but as an affirmation that the Filipinos, contrary to their
outward attitude, had always remained loyal by feeling and conscience to their country.

Assuming that article 114 of the Revised Penal Code was in force during the Japanese
military occupation, the present Republic of the Philippines has no right to prosecute
treason committed against the former sovereignty existing during the Commonwealth
Government which was none other than the sovereignty of the United States. This court
has already held that, upon a change of sovereignty, the provisions of the Penal Code
having to do with such subjects as treason, rebellion and sedition are no longer in force
(People vs. Perfecto, 43 Phil., 887). It is true that, as contended by the majority, section 1
of Article II of the Constitution of the Philippines provides that "sovereignty resides in
the people," but this did not make the Commonwealth Government or the Filipino people
sovereign, because said declaration of principle, prior to the independence of the
Philippines, was subervient to and controlled by the Ordinance appended to the
Constitution under which, in addition to its many provisions essentially destructive of the
concept of sovereignty, it is expressly made clear that the sovereignty of the United States
over the Philippines had not then been withdrawn. The framers of the Constitution had to
make said declaration of principle because the document was ultimately intended for the
independent Philippines. Otherwise, the Preamble should not have announced that one of
the purposes of the Constitution is to secure to the Filipino people and their posterity the
"blessings of independence." No one, we suppose, will dare allege that the Philippines
was an independent country under the Commonwealth Government.

The Commonwealth Government might have been more autonomous than that existing
under the Jones Law, but its non-sovereign status nevertheless remained unaltered; and
what was enjoyed was the exercise of sovereignty over the Philippines continued to be
complete.
 The exercise of Sovereignty May be Delegated. — It has already been seen that the
exercise of sovereignty is conceived of as delegated by a State to the various organs
which, collectively, constitute the Government. For practical political reasons which
can be easily appreciated, it is desirable that the public policies of a State should be
formulated and executed by governmental agencies of its own creation and which are
not subject to the control of other States. There is, however, nothing in a nature of
sovereignty or of State life which prevents one State from entrusting the exercise of
certain powers to the governmental agencies of another State. Theoretically, indeed, a
sovereign State may go to any extent in the delegation of the exercise of its power to
the governmental agencies of other States, those governmental agencies thus
becoming quoad hoc parts of the governmental machinery of the State whose
sovereignty is exercised. At the same time these agencies do not cease to be
Instrumentalities for the expression of the will of the State by which they were
originally created.

By this allegation the agent State is authorized to express the will of the delegating
State, and the legal hypothesis is that this State possesses the legal competence again
to draw to itself the exercise, through organs of its own creation, of the powers it has
granted. Thus, States may concede to colonies almost complete autonomy of
government and reserve to themselves a right of control of so slight and so negative a
character as to make its exercise a rare and improbable occurence; yet, so long as
such right of control is recognized to exist, and the autonomy of the colonies is
conceded to be founded upon a grant and the continuing consent of the mother
countries the sovereignty of those mother countries over them is complete and they
are to be considered as possessing only administrative autonomy and not political
independence. Again, as will be more fully discussed in a later chapter, in the so-
called Confederate or Composite State, the cooperating States may yield to the
central Government the exercise of almost all of their powers of Government and yet
retain their several sovereignties. Or, on the other hand, a State may, without parting
with its sovereignty of lessening its territorial application, yield to the governing
organs of particular areas such an amplitude of powers as to create of them bodies-
politic endowed with almost all of the characteristics of independent States. In all
States, indeed, when of any considerable size, efficiency of administration demands
that certain autonomous powers of local self-government be granted to particular
districts. (Willoughby, The Fundamental Concepts of Public Law [1931], pp. 74,
75.).

The majority have drawn an analogy between the Commonwealth Government and the
States of the American Union which, it is alleged, preserve their own sovereignty
although limited by the United States. This is not true for it has been authoritatively
stated that the Constituent States have no sovereignty of their own, that such autonomous
powers as they now possess are had and exercised by the express will or by the
constitutional forbearance of the national sovereignty, and that the sovereignty of the
United States and the non-sovereign status of the individual States is no longer contested.

It is therefore plain that the constituent States have no sovereignty of their own, and
 that such autonomous powers as they now possess are had and exercised by the
express will or by the constitutional forbearance of the national sovereignty. The
Supreme Court of the United States has held that, even when selecting members for
the national legislature, or electing the President, or ratifying proposed amendments
to the federal constitution, the States act, ad hoc, as agents of the National
Government. (Willoughby, the Fundamental Concepts of Public Law [1931], p.250.)

This is the situation at the present time. The sovereignty of the United States and the
non-sovereign status of the individual States is no longer contested. (Willoughby,
The Fundamental Concepts of Public Law [1931], pp. 251, 252.)

Article XVIII of the Constitution provides that "The government established by this
Constitution shall be known as the Commonwealth of the Philippines. Upon the final and
complete withdrawal of the sovereignty of the United States and the proclamation of
Philippine independence, the Commonwealth of the Philippines shall thenceforth be
known as the Republic of the Philippines." From this, the deduction is made that the
Government under the Republic of the Philippines and under the Commonwealth is the
same. We cannot agree. While the Commonwealth Government possessed administrative
autonomy and exercised the sovereignty delegated by the United States and did not cease
to be an instrumentality of the latter (Willoughby, The Fundamental Concepts of Public
Law [1931], pp. 74, 75), the Republic of the Philippines is an independent State not
receiving its power or sovereignty from the United States. Treason committed against the
United States or against its instrumentality, the Commonwealth Government, which
exercised, but did not possess, sovereignty (id., p. 49), is therefore not treason against the
sovereign and independent Republic of the Philippines. Article XVIII was inserted in
order, merely, to make the Constitution applicable to the Republic.

Reliance is also placed on section 2 of the Constitution which provides that all laws of the
Philippines Islands shall remain operative, unless inconsistent therewith, until amended,
altered, modified or repealed by the Congress of the Philippines, and on section 3 which
is to the effect that all cases pending in courts shall be heard, tried, and determined under
the laws then in force, thereby insinuating that these constitutional provisions authorize
the Republic of the Philippines to enforce article 114 of the Revised Penal Code. The
error is obvious. The latter article can remain operative under the present regime if it is
not inconsistent with the Constitution. The fact remains, however, that said penal
provision is fundamentally incompatible with the Constitution, in that those liable for
treason thereunder should owe allegiance to the United States or the government of the
Philippines, the latter being, as we have already pointed out, a mere instrumentality of the
former, whereas under the Constitution of the present Republic, the citizens of the
Philippines do not and are not required to owe allegiance to the United States. To contend
that article 114 must be deemed to have been modified in the sense that allegiance to the
United States is deleted, and, as thus modified, should be applied to prior acts, would be
to sanction the enactment and application of an ex post facto law.

In reply to the contention of the respondent that the Supreme Court of the United States
has held in the case of Bradford vs. Chase National Bank (24 Fed. Supp., 38), that the
Philippines had a sovereign status, though with restrictions, it is sufficient to state that
said case must be taken in the light of a subsequent decision of the same court in
Cincinnati Soap Co. vs. United States (301 U.S., 308), rendered in May, 1937, wherein it
was affirmed that the sovereignty of the United States over the Philippines had not been
withdrawn, with the result that the earlier case only be interpreted to refer to the exercise
of sovereignty by the Philippines as delegated by the mother country, the United States.

No conclusiveness may be conceded to the statement of President Roosevelt on August

12, 1943, that "the United States in practice regards the Philippines as having now the
status as a government of other independent nations--in fact all the attributes of complete
and respected nationhood," since said statement was not meant as having accelerated the
date, much less as a formal proclamation of, the Philippine Independence as
contemplated in the Tydings-McDuffie Law, it appearing that (1) no less also than the
President of the United States had to issue the proclamation of July 4, 1946, withdrawing
the sovereignty of the United States and recognizing Philippine Independence; (2) it was
General MacArthur, and not President Osmeña who was with him, that proclaimed on
October 23, 1944, the restoration of the Commonwealth Government; (3) the Philippines
was not given official participation in the signing of the Japanese surrender; (4) the
United States Congress, and not the Commonwealth Government, extended the tenure of
office of the President and Vice-President of the Philippines.

The suggestion that as treason may be committed against the Federal as well as against
the State Government, in the same way treason may have been committed against the
sovereignty of the United States as well as against the sovereignty of the Philippine
Commonwealth, is immaterial because, as we have already explained, treason against
either is not and cannot be treason against the new and different sovereignty of the
Republic of the Philippines.
10.

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

BERNARDITA R. MACARIOLA, complainant,

vs.
HONORABLE ELIAS B. ASUNCION, Judge of the Court of First Instance of Leyte,
respondent.

MAKASIAR, J:

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

Judge Elias B. Asuncion of the Court of First Instance of Leyte, now Associate Justice of
the Court of Appeals, with "acts unbecoming a judge."

The factual setting of the case is stated in the report dated May 27, 1971 of then Associate
Justice Cecilia Muñoz Palma of the Court of Appeals now retired Associate Justice of the
Supreme Court, to whom this case was referred on October 28, 1968 for investigation,
thus:

Civil Case No. 3010 of the Court of First Instance of Leyte was a complaint for
partition filed by Sinforosa R. Bales, Luz R. Bakunawa, Anacorita Reyes,
Ruperto Reyes, Adela Reyes, and Priscilla Reyes, plaintiffs, against Bernardita
R. Macariola, defendant, concerning the properties left by the deceased
Francisco Reyes, the common father of the plaintiff and defendant.
In her defenses to the complaint for partition, Mrs. Macariola alleged among
other things that; a) plaintiff Sinforosa R. Bales was not a daughter of the
deceased Francisco Reyes; b) the only legal heirs of the deceased were defendant
Macariola, she being the only offspring of the first marriage of Francisco Reyes
with Felisa Espiras, and the remaining plaintiffs who were the children of the
deceased by his second marriage with Irene Ondez; c) the properties left by the
deceased were all the conjugal properties of the latter and his first wife, Felisa
Espiras, and no properties were acquired by the deceased during his second
marriage; d) if there was any partition to be made, those conjugal properties
should first be partitioned into two parts, and one part is to be adjudicated solely
to defendant it being the share of the latter's deceased mother, Felisa Espiras, and
the other half which is the share of the deceased Francisco Reyes was to be
divided equally among his children by his two marriages.

On June 8, 1963, a decision was rendered by respondent Judge Asuncion in Civil

Case 3010, the dispositive portion of which reads:

IN VIEW OF THE FOREGOING CONSIDERATIONS, the Court,

upon a preponderance of evidence, finds and so holds, and hereby
renders judgment (1) Declaring the plaintiffs Luz R. Bakunawa,
Anacorita Reyes, Ruperto Reyes, Adela Reyes and Priscilla Reyes as
the only children legitimated by the subsequent marriage of Francisco
Reyes Diaz to Irene Ondez; (2) Declaring the plaintiff Sinforosa R.
Bales to have been an illegitimate child of Francisco Reyes Diaz; (3)
Declaring Lots Nos. 4474, 4475, 4892, 5265, 4803, 4581, 4506 and 1/4
of Lot 1145 as belonging to the conjugal partnership of the spouses
Francisco Reyes Diaz and Felisa Espiras; (4) Declaring Lot No. 2304
and 1/4 of Lot No. 3416 as belonging to the spouses Francisco Reyes
Diaz and Irene Ondez in common partnership; (5) Declaring that 1/2 of
Lot No. 1184 as belonging exclusively to the deceased Francisco Reyes
Diaz; (6) Declaring the defendant Bernardita R. Macariola, being the
only legal and forced heir of her mother Felisa Espiras, as the exclusive
owner of one-half of each of Lots Nos. 4474, 4475, 4892, 5265, 4803,
4581, 4506; and the remaining one-half (1/2) of each of said Lots Nos.
4474, 4475, 4892, 5265, 4803, 4581, 4506 and one-half (1/2) of one-
fourth (1/4) of Lot No. 1154 as belonging to the estate of Francisco
Reyes Diaz; (7) Declaring Irene Ondez to be the exclusive owner of
one-half (1/2) of Lot No. 2304 and one-half (1/2) of one-fourth (1/4) of
Lot No. 3416; the remaining one-half (1/2) of Lot 2304 and the
remaining one-half (1/2) of one-fourth (1/4) of Lot No. 3416 as
belonging to the estate of Francisco Reyes Diaz; (8) Directing the
division or partition of the estate of Francisco Reyes Diaz in such a
manner as to give or grant to Irene Ondez, as surviving widow of
Francisco Reyes Diaz, a hereditary share of. one-twelfth (1/12) of the
whole estate of Francisco Reyes Diaz (Art. 996 in relation to Art. 892,
par 2, New Civil Code), and the remaining portion of the estate to be
 divided among the plaintiffs Sinforosa R. Bales, Luz R. Bakunawa,
Anacorita Reyes, Ruperto Reyes, Adela Reyes, Priscilla Reyes and
defendant Bernardita R. Macariola, in such a way that the extent of the
total share of plaintiff Sinforosa R. Bales in the hereditary estate shall
not exceed the equivalent of two-fifth (2/5) of the total share of any or
each of the other plaintiffs and the defendant (Art. 983, New Civil
Code), each of the latter to receive equal shares from the hereditary
estate, (Ramirez vs. Bautista, 14 Phil. 528; Diancin vs. Bishop of Jaro,
O.G. [3rd Ed.] p. 33); (9) Directing the parties, within thirty days after
this judgment shall have become final to submit to this court, for
approval a project of partition of the hereditary estate in the proportion
above indicated, and in such manner as the parties may, by agreement,
deemed convenient and equitable to them taking into consideration the
location, kind, quality, nature and value of the properties involved; (10)
Directing the plaintiff Sinforosa R. Bales and defendant Bernardita R.
Macariola to pay the costs of this suit, in the proportion of one-third
(1/3) by the first named and two-thirds (2/3) by the second named; and
(I 1) Dismissing all other claims of the parties [pp 27-29 of Exh. C].

The decision in civil case 3010 became final for lack of an appeal, and on
October 16, 1963, a project of partition was submitted to Judge Asuncion which
is marked Exh. A. Notwithstanding the fact that the project of partition was not
signed by the parties themselves but only by the respective counsel of plaintiffs
and defendant, Judge Asuncion approved it in his Order dated October 23, 1963,
which for convenience is quoted hereunder in full:

The parties, through their respective counsels, presented to this Court

for approval the following project of partition:

COMES NOW, the plaintiffs and the defendant in the above-entitled

case, to this Honorable Court respectfully submit the following Project
of Partition:

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

2. A portion of Lot No. 3416 consisting of 2,373.49 square meters along

the eastern part of the lot shall be awarded likewise to Bernardita R.
Macariola;

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

4. A portion of Lot No. 3416 consisting of 1,834.55 square meters along

the western part of the lot shall likewise be awarded to Sinforosa Reyes-
Bales;
5. Lots Nos. 4474 and 4475 shall be divided equally among Luz Reyes
Bakunawa, Anacorita Reyes, Ruperto Reyes, Adela Reyes and Priscilla
Reyes in equal shares;

6. Lot No. 1184 and the remaining portion of Lot No. 3416 after taking
the portions awarded under item (2) and (4) above shall be awarded to
Luz Reyes Bakunawa, Anacorita Reyes, Ruperto Reyes, Adela Reyes
and Priscilla Reyes in equal shares, provided, however that the
remaining portion of Lot No. 3416 shall belong exclusively to Priscilla
Reyes.

WHEREFORE, it is respectfully prayed that the Project of Partition

indicated above which is made in accordance with the decision of the
Honorable Court be approved.

Tacloban City, October 16, 1963.

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

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

While the Court thought it more desirable for all the parties to have
signed this Project of Partition, nevertheless, upon assurance of both
counsels of the respective parties to this Court that the Project of
Partition, as above- quoted, had been made after a conference and
agreement of the plaintiffs and the defendant approving the above
Project of Partition, and that both lawyers had represented to the Court
that they are given full authority to sign by themselves the Project of
Partition, the Court, therefore, finding the above-quoted Project of
Partition to be in accordance with law, hereby approves the same. The
parties, therefore, are directed to execute such papers, documents or
instrument sufficient in form and substance for the vesting of the rights,
interests and participations which were adjudicated to the respective
parties, as outlined in the Project of Partition and the delivery of the
respective properties adjudicated to each one in view of said Project of
Partition, and to perform such other acts as are legal and necessary to
effectuate the said Project of Partition.

SO ORDERED.

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

(SGD) ELIAS B. ASUNCION Judge

EXH. B.
 The above Order of October 23, 1963, was amended on November 11, 1963,
only for the purpose of giving authority to the Register of Deeds of the Province
of Leyte to issue the corresponding transfer certificates of title to the respective
adjudicatees in conformity with the project of partition (see Exh. U).

One of the properties mentioned in the project of partition was Lot 1184 or rather
one-half thereof with an area of 15,162.5 sq. meters. This lot, which according to
the decision was the exclusive property of the deceased Francisco Reyes, was
adjudicated in said project of partition to the plaintiffs Luz, Anacorita Ruperto,
Adela, and Priscilla all surnamed Reyes in equal shares, and when the project of
partition was approved by the trial court the adjudicatees caused Lot 1184 to be
subdivided into five lots denominated as Lot 1184-A to 1184-E inclusive (Exh.
V).

Lot 1184-D was conveyed to Enriqueta D. Anota, a stenographer in Judge

Asuncion's court (Exhs. F, F-1 and V-1), while Lot 1184-E which had an area of
2,172.5556 sq. meters was sold on July 31, 1964 to Dr. Arcadio Galapon (Exh.
2) who was issued transfer certificate of title No. 2338 of the Register of Deeds
of the city of Tacloban (Exh. 12).

On March 6, 1965, Dr. Arcadio Galapon and his wife Sold a portion of Lot 1184-
E with an area of around 1,306 sq. meters to Judge Asuncion and his wife,
Victoria S. Asuncion (Exh. 11), which particular portion was declared by the
latter for taxation purposes (Exh. F).

On August 31, 1966, spouses Asuncion and spouses Galapon conveyed their
respective shares and interest in Lot 1184-E to "The Traders Manufacturing and
Fishing Industries Inc." (Exit 15 & 16). At the time of said sale the stockholders
of the corporation were Dominador Arigpa Tan, Humilia Jalandoni Tan, Jaime
Arigpa Tan, Judge Asuncion, and the latter's wife, Victoria S. Asuncion, with
Judge Asuncion as the President and Mrs. Asuncion as the secretary (Exhs. E-4
to E-7). The Articles of Incorporation of "The Traders Manufacturing and
Fishing Industries, Inc." which we shall henceforth refer to as "TRADERS" were
registered with the Securities and Exchange Commission only on January 9,
1967 (Exh. E) [pp. 378-385, rec.].

Complainant Bernardita R. Macariola filed on August 9, 1968 the instant complaint dated
August 6, 1968 alleging four causes of action, to wit: [1] that respondent Judge Asuncion
violated Article 1491, paragraph 5, of the New Civil Code in acquiring by purchase a
portion of Lot No. 1184-E which was one of those properties involved in Civil Case No.
3010 decided by him; [2] that he likewise violated Article 14, paragraphs I and 5 of the
Code of Commerce, Section 3, paragraph H, of R.A. 3019, otherwise known as the Anti-
Graft and Corrupt Practices Act, Section 12, Rule XVIII of the Civil Service Rules, and
Canon 25 of the Canons of Judicial Ethics, by associating himself with the Traders
Manufacturing and Fishing Industries, Inc., as a stockholder and a ranking officer while
he was a judge of the Court of First Instance of Leyte; [3] that respondent was guilty of
coddling an impostor and acted in disregard of judicial decorum by closely fraternizing
with a certain Dominador Arigpa Tan who openly and publicly advertised himself as a
practising attorney when in truth and in fact his name does not appear in the Rolls of
Attorneys and is not a member of the Philippine Bar; and [4] that there was a culpable
defiance of the law and utter disregard for ethics by respondent Judge (pp. 1-7, rec.).

Respondent Judge Asuncion filed on September 24, 1968 his answer to which a reply was
filed on October 16, 1968 by herein complainant. In Our resolution of October 28, 1968,
We referred this case to then Justice Cecilia Muñoz Palma of the Court of Appeals, for
investigation, report and recommendation. After hearing, the said Investigating Justice
submitted her report dated May 27, 1971 recommending that respondent Judge should be
reprimanded or warned in connection with the first cause of action alleged in the
complaint, and for the second cause of action, respondent should be warned in case of a
finding that he is prohibited under the law to engage in business. On the third and fourth
causes of action, Justice Palma recommended that respondent Judge be exonerated.

The records also reveal that on or about November 9 or 11, 1968 (pp. 481, 477, rec.),
complainant herein instituted an action before the Court of First Instance of Leyte,
entitled "Bernardita R. Macariola, plaintiff, versus Sinforosa R. Bales, et al., defendants,"
which was docketed as Civil Case No. 4235, seeking the annulment of the project of
partition made pursuant to the decision in Civil Case No. 3010 and the two orders issued
by respondent Judge approving the same, as well as the partition of the estate and the
subsequent conveyances with damages. It appears, however, that some defendants were
dropped from the civil case. For one, the case against Dr. Arcadio Galapon was dismissed
because he was no longer a real party in interest when Civil Case No. 4234 was filed,
having already conveyed on March 6, 1965 a portion of lot 1184-E to respondent Judge
and on August 31, 1966 the remainder was sold to the Traders Manufacturing and Fishing
Industries, Inc. Similarly, the case against defendant Victoria Asuncion was dismissed on
the ground that she was no longer a real party in interest at the time the aforesaid Civil
Case No. 4234 was filed as the portion of Lot 1184 acquired by her and respondent Judge
from Dr. Arcadio Galapon was already sold on August 31, 1966 to the Traders
Manufacturing and Fishing industries, Inc. Likewise, the cases against defendants Serafin
P. Ramento, Catalina Cabus, Ben Barraza Go, Jesus Perez, Traders Manufacturing and
Fishing Industries, Inc., Alfredo R. Celestial and Pilar P. Celestial, Leopoldo Petilla and
Remedios Petilla, Salvador Anota and Enriqueta Anota and Atty. Zotico A. Tolete were
dismissed with the conformity of complainant herein, plaintiff therein, and her counsel.

On November 2, 1970, Judge Jose D. Nepomuceno of the Court of First Instance of

Leyte, who was directed and authorized on June 2, 1969 by the then Secretary (now
Minister) of Justice and now Minister of National Defense Juan Ponce Enrile to hear and
decide Civil Case No. 4234, rendered a decision, the dispositive portion of which reads as
follows:

A. IN THE CASE AGAINST JUDGE ELIAS B. ASUNCION

(1) declaring that only Branch IV of the Court of First Instance of Leyte has
jurisdiction to take cognizance of the issue of the legality and validity of the
Project of Partition [Exhibit "B"] and the two Orders [Exhibits "C" and "C- 3"]
approving the partition;

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

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

(a) the sum of FOUR HUNDRED THOUSAND PESOS [P400,000.00]

for moral damages;

(b) the sum of TWO HUNDRED THOUSAND PESOS [P200,000.001

for exemplary damages;

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

damages; and

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

Fees.

B. IN THE CASE AGAINST THE DEFENDANT MARIQUITA

VILLASIN, FOR HERSELF AND FOR THE HEIRS OF THE
DECEASED GERARDO VILLASIN —

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

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

C. IN THE CASE AGAINST THE DEFENDANT SINFOROSA R.

BALES, ET AL., WHO WERE PLAINTIFFS IN CIVIL CASE NO.
3010 —

(1) Dismissing the complaint against defendants Sinforosa R. Bales, Adela R.

Herrer, Priscilla R. Solis, Luz R. Bakunawa, Anacorita R. Eng and Ruperto O.
Reyes.

D. IN THE CASE AGAINST DEFENDANT BONIFACIO RAMO —

(1) Dismissing the complaint against Bonifacio Ramo;

(2) Directing the plaintiff to pay the defendant Bonifacio Ramo the cost of the
suit.
 SO ORDERED [pp. 531-533, rec.]

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

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

under her first cause of action, that respondent Judge Elias B. Asuncion violated Article
1491, paragraph 5, of the New Civil Code in acquiring by purchase a portion of Lot No.
1184-E which was one of those properties involved in Civil Case No. 3010. 'That Article
provides:

Article 1491. The following persons cannot acquire by purchase, even at a public
or judicial action, either in person or through the mediation of another:

xxx xxx xxx

(5) Justices, judges, prosecuting attorneys, clerks of superior and inferior courts,
and other officers and employees connected with the administration of justice,
the property and rights in litigation or levied upon an execution before the court
within whose jurisdiction or territory they exercise their respective functions;
this prohibition includes the act of acquiring by assignment and shall apply to
lawyers, with respect to the property and rights which may be the object of any
litigation in which they may take part by virtue of their profession [emphasis
supplied].

The prohibition in the aforesaid Article applies only to the sale or assignment of the
property which is the subject of litigation to the persons disqualified therein. WE have
already ruled that "... for the prohibition to operate, the sale or assignment of the property
must take place during the pendency of the litigation involving the property" (The
Director of Lands vs. Ababa et al., 88 SCRA 513, 519 [1979], Rosario vda. de Laig vs.
Court of Appeals, 86 SCRA 641, 646 [1978]).

In the case at bar, when the respondent Judge purchased on March 6, 1965 a portion of
Lot 1184-E, the decision in Civil Case No. 3010 which he rendered on June 8, 1963 was
already final because none of the parties therein filed an appeal within the reglementary
period; hence, the lot in question was no longer subject of the litigation. Moreover, at the
time of the sale on March 6, 1965, respondent's order dated October 23, 1963 and the
amended order dated November 11, 1963 approving the October 16, 1963 project of
partition made pursuant to the June 8, 1963 decision, had long become final for there was
no appeal from said orders.

Furthermore, respondent Judge did not buy the lot in question on March 6, 1965 directly
from the plaintiffs in Civil Case No. 3010 but from Dr. Arcadio Galapon who earlier
purchased on July 31, 1964 Lot 1184-E from three of the plaintiffs, namely, Priscilla
Reyes, Adela Reyes, and Luz R. Bakunawa after the finality of the decision in Civil Case
No. 3010. It may be recalled that Lot 1184 or more specifically one-half thereof was
adjudicated in equal shares to Priscilla Reyes, Adela Reyes, Luz Bakunawa, Ruperto
Reyes and Anacorita Reyes in the project of partition, and the same was subdivided into
five lots denominated as Lot 1184-A to 1184-E. As aforestated, Lot 1184-E was sold on
July 31, 1964 to Dr. Galapon for which he was issued TCT No. 2338 by the Register of
Deeds of Tacloban City, and on March 6, 1965 he sold a portion of said lot to respondent
Judge and his wife who declared the same for taxation purposes only. The subsequent
sale on August 31, 1966 by spouses Asuncion and spouses Galapon of their respective
shares and interest in said Lot 1184-E to the Traders Manufacturing and Fishing
Industries, Inc., in which respondent was the president and his wife was the secretary,
took place long after the finality of the decision in Civil Case No. 3010 and of the
subsequent two aforesaid orders therein approving the project of partition.

While it appears that complainant herein filed on or about November 9 or 11, 1968 an
action before the Court of First Instance of Leyte docketed as Civil Case No. 4234,
seeking to annul the project of partition and the two orders approving the same, as well as
the partition of the estate and the subsequent conveyances, the same, however, is of no
moment.

The fact remains that respondent Judge purchased on March 6, 1965 a portion of Lot
1184-E from Dr. Arcadio Galapon; hence, after the finality of the decision which he
rendered on June 8, 1963 in Civil Case No. 3010 and his two questioned orders dated
October 23, 1963 and November 11, 1963. Therefore, the property was no longer subject
of litigation.

The subsequent filing on November 9, or 11, 1968 of Civil Case No. 4234 can no longer
alter, change or affect the aforesaid facts — that the questioned sale to respondent Judge,
now Court of Appeals Justice, was effected and consummated long after the finality of
the aforesaid decision or orders.

Consequently, the sale of a portion of Lot 1184-E to respondent Judge having taken place
over one year after the finality of the decision in Civil Case No. 3010 as well as the two
orders approving the project of partition, and not during the pendency of the litigation,
there was no violation of paragraph 5, Article 1491 of the New Civil Code.

It is also argued by complainant herein that the sale on July 31, 1964 of Lot 1184-E to Dr.
Arcadio Galapon by Priscilla Reyes, Adela Reyes and Luz R. Bakunawa was only a mere
scheme to conceal the illegal and unethical transfer of said lot to respondent Judge as a
consideration for the approval of the project of partition. In this connection, We agree
with the findings of the Investigating Justice thus:

And so we are now confronted with this all-important question whether or not
the acquisition by respondent of a portion of Lot 1184-E and the subsequent
transfer of the whole lot to "TRADERS" of which respondent was the President
and his wife the Secretary, was intimately related to the Order of respondent
 approving the project of partition, Exh. A.

Respondent vehemently denies any interest or participation in the transactions

between the Reyeses and the Galapons concerning Lot 1184-E, and he insists
that there is no evidence whatsoever to show that Dr. Galapon had acted, in the
purchase of Lot 1184-E, in mediation for him and his wife. (See p. 14 of
Respondent's Memorandum).

xxx xxx xxx

On this point, I agree with respondent that there is no evidence in the record
showing that Dr. Arcadio Galapon acted as a mere "dummy" of respondent in
acquiring Lot 1184-E from the Reyeses. Dr. Galapon appeared to this
investigator as a respectable citizen, credible and sincere, and I believe him
when he testified that he bought Lot 1184-E in good faith and for valuable
consideration from the Reyeses without any intervention of, or previous
understanding with Judge Asuncion (pp. 391- 394, rec.).

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

approving the project of partition although it was not signed by the parties, We quote with
approval the findings of the Investigating Justice, as follows:

1. I agree with complainant that respondent should have required the signature of
the parties more particularly that of Mrs. Macariola on the project of partition
submitted to him for approval; however, whatever error was committed by
respondent in that respect was done in good faith as according to Judge Asuncion
he was assured by Atty. Bonifacio Ramo, the counsel of record of Mrs.
Macariola, That he was authorized by his client to submit said project of
partition, (See Exh. B and tsn p. 24, January 20, 1969). While it is true that such
written authority if there was any, was not presented by respondent in evidence,
nor did Atty. Ramo appear to corroborate the statement of respondent, his
affidavit being the only one that was presented as respondent's Exh. 10, certain
actuations of Mrs. Macariola lead this investigator to believe that she knew the
contents of the project of partition, Exh. A, and that she gave her conformity
thereto. I refer to the following documents:

1) Exh. 9 — Certified true copy of OCT No. 19520 covering Lot 1154 of the
Tacloban Cadastral Survey in which the deceased Francisco Reyes holds a "1/4
share" (Exh. 9-a). On tills certificate of title the Order dated November 11, 1963,
(Exh. U) approving the project of partition was duly entered and registered on
November 26, 1963 (Exh. 9-D);

2) Exh. 7 — Certified copy of a deed of absolute sale executed by Bernardita

Reyes Macariola on October 22, 1963, conveying to Dr. Hector Decena the one-
fourth share of the late Francisco Reyes-Diaz in Lot 1154. In this deed of sale the
vendee stated that she was the absolute owner of said one-fourth share, the same
 having been adjudicated to her as her share in the estate of her father Francisco
Reyes Diaz as per decision of the Court of First Instance of Leyte under case No.
3010 (Exh. 7-A). The deed of sale was duly registered and annotated at the back
of OCT 19520 on December 3, 1963 (see Exh. 9-e).

In connection with the abovementioned documents it is to be noted that in the

project of partition dated October 16, 1963, which was approved by respondent
on October 23, 1963, followed by an amending Order on November 11, 1963,
Lot 1154 or rather 1/4 thereof was adjudicated to Mrs. Macariola. It is this 1/4
share in Lot 1154 which complainant sold to Dr. Decena on October 22, 1963,
several days after the preparation of the project of partition.

Counsel for complainant stresses the view, however, that the latter sold her one-
fourth share in Lot 1154 by virtue of the decision in Civil Case 3010 and not
because of the project of partition, Exh. A. Such contention is absurd because
from the decision, Exh. C, it is clear that one-half of one- fourth of Lot 1154
belonged to the estate of Francisco Reyes Diaz while the other half of said one-
fourth was the share of complainant's mother, Felisa Espiras; in other words, the
decision did not adjudicate the whole of the one-fourth of Lot 1154 to the herein
complainant (see Exhs. C-3 & C-4). Complainant became the owner of the entire
one-fourth of Lot 1154 only by means of the project of partition, Exh. A.
Therefore, if Mrs. Macariola sold Lot 1154 on October 22, 1963, it was for no
other reason than that she was wen aware of the distribution of the properties of
her deceased father as per Exhs. A and B. It is also significant at this point to
state that Mrs. Macariola admitted during the cross-examination that she went to
Tacloban City in connection with the sale of Lot 1154 to Dr. Decena (tsn p. 92,
November 28, 1968) from which we can deduce that she could not have been
kept ignorant of the proceedings in civil case 3010 relative to the project of
partition.

Complainant also assails the project of partition because according to her the
properties adjudicated to her were insignificant lots and the least valuable.
Complainant, however, did not present any direct and positive evidence to prove
the alleged gross inequalities in the choice and distribution of the real properties
when she could have easily done so by presenting evidence on the area, location,
kind, the assessed and market value of said properties. Without such evidence
there is nothing in the record to show that there were inequalities in the
distribution of the properties of complainant's father (pp. 386389, rec.).

Finally, while it is. true that respondent Judge did not violate paragraph 5, Article 1491 of
the New Civil Code in acquiring by purchase a portion of Lot 1184-E which was in
litigation in his court, it was, however, improper for him to have acquired the same. He
should be reminded of Canon 3 of the Canons of Judicial Ethics which requires that: "A
judge's official conduct should be free from the appearance of impropriety, and his
personal behavior, not only upon the bench and in the performance of judicial duties, but
also in his everyday life, should be beyond reproach." And as aptly observed by the
Investigating Justice: "... it was unwise and indiscreet on the part of respondent to have
purchased or acquired a portion of a piece of property that was or had been in litigation in
his court and caused it to be transferred to a corporation of which he and his wife were
ranking officers at the time of such transfer. One who occupies an exalted position in the
judiciary has the duty and responsibility of maintaining the faith and trust of the citizenry
in the courts of justice, so that not only must he be truly honest and just, but his
actuations must be such as not give cause for doubt and mistrust in the uprightness of his
administration of justice. In this particular case of respondent, he cannot deny that the
transactions over Lot 1184-E are damaging and render his actuations open to suspicion
and distrust. Even if respondent honestly believed that Lot 1184-E was no longer in
litigation in his court and that he was purchasing it from a third person and not from the
parties to the litigation, he should nonetheless have refrained from buying it for himself
and transferring it to a corporation in which he and his wife were financially involved, to
avoid possible suspicion that his acquisition was related in one way or another to his
official actuations in civil case 3010. The conduct of respondent gave cause for the
litigants in civil case 3010, the lawyers practising in his court, and the public in general to
doubt the honesty and fairness of his actuations and the integrity of our courts of justice"
(pp. 395396, rec.).

II

With respect to the second cause of action, the complainant alleged that respondent Judge
violated paragraphs 1 and 5, Article 14 of the Code of Commerce when he associated
himself with the Traders Manufacturing and Fishing Industries, Inc. as a stockholder and
a ranking officer, said corporation having been organized to engage in business. Said
Article provides that:

Article 14 — The following cannot engage in commerce, either in person or by

proxy, nor can they hold any office or have any direct, administrative, or
financial intervention in commercial or industrial companies within the limits of
the districts, provinces, or towns in which they discharge their duties:

1. Justices of the Supreme Court, judges and officials of the department of public
prosecution in active service. This provision shall not be applicable to mayors,
municipal judges, and municipal prosecuting attorneys nor to those who by
chance are temporarily discharging the functions of judge or prosecuting
attorney.

xxx xxx xxx

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

commerce in a determinate territory.

It is Our considered view that although the aforestated provision is incorporated in the
Code of Commerce which is part of the commercial laws of the Philippines, it, however,
partakes of the nature of a political law as it regulates the relationship between the
government and certain public officers and employees, like justices and judges.

Political Law has been defined as that branch of public law which deals with the
organization and operation of the governmental organs of the State and define the
relations of the state with the inhabitants of its territory (People vs. Perfecto, 43 Phil. 887,
897 [1922]). It may be recalled that political law embraces constitutional law, law of
public corporations, administrative law including the law on public officers and elections.
Specifically, Article 14 of the Code of Commerce partakes more of the nature of an
administrative law because it regulates the conduct of certain public officers and
employees with respect to engaging in business: hence, political in essence.

It is significant to note that the present Code of Commerce is the Spanish Code of
Commerce of 1885, with some modifications made by the "Commission de Codificacion
de las Provincias de Ultramar," which was extended to the Philippines by the Royal
Decree of August 6, 1888, and took effect as law in this jurisdiction on December 1,
1888.

Upon the transfer of sovereignty from Spain to the United States and later on from the
United States to the Republic of the Philippines, Article 14 of this Code of Commerce
must be deemed to have been abrogated because where there is change of sovereignty, the
political laws of the former sovereign, whether compatible or not with those of the new
sovereign, are automatically abrogated, unless they are expressly re-enacted by
affirmative act of the new sovereign.

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

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

While municipal laws of the newly acquired territory not in conflict with the,
laws of the new sovereign continue in force without the express assent or
affirmative act of the conqueror, the political laws do not. (Halleck's Int. Law,
chap. 34, par. 14). However, such political laws of the prior sovereignty as are
not in conflict with the constitution or institutions of the new sovereign, may be
continued in force if the conqueror shall so declare by affirmative act of the
commander-in-chief during the war, or by Congress in time of peace. (Ely's
Administrator vs. United States, 171 U.S. 220, 43 L. Ed. 142). In the case of
American and Ocean Ins. Cos. vs. 356 Bales of Cotton (1 Pet. [26 U.S.] 511,
542, 7 L. Ed. 242), Chief Justice Marshall said:

On such transfer (by cession) of territory, it has never been held that the
relations of the inhabitants with each other undergo any change. Their
relations with their former sovereign are dissolved, and new relations
 are created between them and the government which has acquired their
territory. The same act which transfers their country, transfers the
allegiance of those who remain in it; and the law which may be
denominated political, is necessarily changed, although that which
regulates the intercourse and general conduct of individuals, remains in
force, until altered by the newly- created power of the State.

Likewise, in People vs. Perfecto (43 Phil. 887, 897 [1922]), this Court stated that: "It is a
general principle of the public law that on acquisition of territory the previous political
relations of the ceded region are totally abrogated. "

There appears no enabling or affirmative act that continued the effectivity of the
aforestated provision of the Code of Commerce after the change of sovereignty from
Spain to the United States and then to the Republic of the Philippines. Consequently,
Article 14 of the Code of Commerce has no legal and binding effect and cannot apply to
the respondent, then Judge of the Court of First Instance, now Associate Justice of the
Court of Appeals.

It is also argued by complainant herein that respondent Judge violated paragraph H,

Section 3 of Republic Act No. 3019, otherwise known as the Anti-Graft and Corrupt
Practices Act, which provides that:

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

public officers already penalized by existing law, the following shall constitute
corrupt practices of any public officer and are hereby declared to be unlawful:

xxx xxx xxx

(h) Directly or indirectly having financial or pecuniary interest in any

business, contract or transaction in connection with which he intervenes
or takes part in his official capacity, or in which he is prohibited by the
Constitution or by any Iaw from having any interest.

Respondent Judge cannot be held liable under the aforestated paragraph because there is
no showing that respondent participated or intervened in his official capacity in the
business or transactions of the Traders Manufacturing and Fishing Industries, Inc. In the
case at bar, the business of the corporation in which respondent participated has
obviously no relation or connection with his judicial office. The business of said
corporation is not that kind where respondent intervenes or takes part in his capacity as
Judge of the Court of First Instance. As was held in one case involving the application of
Article 216 of the Revised Penal Code which has a similar prohibition on public officers
against directly or indirectly becoming interested in any contract or business in which it is
his official duty to intervene, "(I)t is not enough to be a public official to be subject to this
crime; it is necessary that by reason of his office, he has to intervene in said contracts or
transactions; and, hence, the official who intervenes in contracts or transactions which
have no relation to his office cannot commit this crime.' (People vs. Meneses, C.A. 40
O.G. 11th Supp. 134, cited by Justice Ramon C. Aquino; Revised Penal Code, p. 1174,
Vol. 11 [1976]).

It does not appear also from the records that the aforesaid corporation gained any undue
advantage in its business operations by reason of respondent's financial involvement in it,
or that the corporation benefited in one way or another in any case filed by or against it in
court. It is undisputed that there was no case filed in the different branches of the Court of
First Instance of Leyte in which the corporation was either party plaintiff or defendant
except Civil Case No. 4234 entitled "Bernardita R. Macariola, plaintiff, versus Sinforosa
O. Bales, et al.," wherein the complainant herein sought to recover Lot 1184-E from the
aforesaid corporation. It must be noted, however, that Civil Case No. 4234 was filed only
on November 9 or 11, 1968 and decided on November 2, 1970 by CFI Judge Jose D.
Nepomuceno when respondent Judge was no longer connected with the corporation,
having disposed of his interest therein on January 31, 1967.

Furthermore, respondent is not liable under the same paragraph because there is no
provision in both the 1935 and 1973 Constitutions of the Philippines, nor is there an
existing law expressly prohibiting members of the Judiciary from engaging or having
interest in any lawful business.

It may be pointed out that Republic Act No. 296, as amended, also known as the Judiciary
Act of 1948, does not contain any prohibition to that effect. As a matter of fact, under
Section 77 of said law, municipal judges may engage in teaching or other vocation not
involving the practice of law after office hours but with the permission of the district
judge concerned.

Likewise, Article 14 of the Code of Commerce which prohibits judges from engaging in
commerce is, as heretofore stated, deemed abrogated automatically upon the transfer of
sovereignty from Spain to America, because it is political in nature.

Moreover, the prohibition in paragraph 5, Article 1491 of the New Civil Code against the
purchase by judges of a property in litigation before the court within whose jurisdiction
they perform their duties, cannot apply to respondent Judge because the sale of the lot in
question to him took place after the finality of his decision in Civil Case No. 3010 as well
as his two orders approving the project of partition; hence, the property was no longer
subject of litigation.

In addition, although Section 12, Rule XVIII of the Civil Service Rules made pursuant to
the Civil Service Act of 1959 prohibits an officer or employee in the civil service from
engaging in any private business, vocation, or profession or be connected with any
commercial, credit, agricultural or industrial undertaking without a written permission
from the head of department, the same, however, may not fall within the purview of
paragraph h, Section 3 of the Anti-Graft and Corrupt Practices Act because the last
portion of said paragraph speaks of a prohibition by the Constitution or law on any public
officer from having any interest in any business and not by a mere administrative rule or
regulation. Thus, a violation of the aforesaid rule by any officer or employee in the civil
service, that is, engaging in private business without a written permission from the
Department Head may not constitute graft and corrupt practice as defined by law.

On the contention of complainant that respondent Judge violated Section 12, Rule XVIII
of the Civil Service Rules, We hold that the Civil Service Act of 1959 (R.A. No. 2260)
and the Civil Service Rules promulgated thereunder, particularly Section 12 of Rule
XVIII, do not apply to the members of the Judiciary. Under said Section 12: "No officer
or employee shall engage directly in any private business, vocation, or profession or be
connected with any commercial, credit, agricultural or industrial undertaking without a
written permission from the Head of Department ..."

It must be emphasized at the outset that respondent, being a member of the Judiciary, is
covered by Republic Act No. 296, as amended, otherwise known as the Judiciary Act of
1948 and by Section 7, Article X, 1973 Constitution.

Under Section 67 of said law, the power to remove or dismiss judges was then vested in
the President of the Philippines, not in the Commissioner of Civil Service, and only on
two grounds, namely, serious misconduct and inefficiency, and upon the recommendation
of the Supreme Court, which alone is authorized, upon its own motion, or upon
information of the Secretary (now Minister) of Justice to conduct the corresponding
investigation. Clearly, the aforesaid section defines the grounds and prescribes the special
procedure for the discipline of judges.

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

It is true that under Section 33 of the Civil Service Act of 1959: "The Commissioner may,
for ... violation of the existing Civil Service Law and rules or of reasonable office
regulations, or in the interest of the service, remove any subordinate officer or employee
from the service, demote him in rank, suspend him for not more than one year without
pay or fine him in an amount not exceeding six months' salary." Thus, a violation of
Section 12 of Rule XVIII is a ground for disciplinary action against civil service officers
and employees.

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

subject to the disciplinary authority of the Commissioner of Civil Service; for, certainly,
the Commissioner is not the head of the Judicial Department to which they belong. The
Revised Administrative Code (Section 89) and the Civil Service Law itself state that the
Chief Justice is the department head of the Supreme Court (Sec. 20, R.A. No. 2260)
[1959]); and under the 1973 Constitution, the Judiciary is the only other or second branch
of the government (Sec. 1, Art. X, 1973 Constitution). Besides, a violation of Section 12,
Rule XVIII cannot be considered as a ground for disciplinary action against judges
because to recognize the same as applicable to them, would be adding another ground for
the discipline of judges and, as aforestated, Section 67 of the Judiciary Act recognizes
only two grounds for their removal, namely, serious misconduct and inefficiency.
Moreover, under Section 16(i) of the Civil Service Act of 1959, it is the Commissioner of
Civil Service who has original and exclusive jurisdiction "(T)o decide, within one
hundred twenty days, after submission to it, all administrative cases against permanent
officers and employees in the competitive service, and, except as provided by law, to
have final authority to pass upon their removal, separation, and suspension and upon all
matters relating to the conduct, discipline, and efficiency of such officers and employees;
and prescribe standards, guidelines and regulations governing the administration of
discipline" (emphasis supplied). There is no question that a judge belong to the non-
competitive or unclassified service of the government as a Presidential appointee and is
therefore not covered by the aforesaid provision. WE have already ruled that "... in
interpreting Section 16(i) of Republic Act No. 2260, we emphasized that only permanent
officers and employees who belong to the classified service come under the exclusive
jurisdiction of the Commissioner of Civil Service" (Villaluz vs. Zaldivar, 15 SCRA
710,713 [1965], Ang-Angco vs. Castillo, 9 SCRA 619 [1963]).

Although the actuation of respondent Judge in engaging in private business by joining the
Traders Manufacturing and Fishing Industries, Inc. as a stockholder and a ranking officer,
is not violative of the provissions of Article 14 of the Code of Commerce and Section
3(h) of the Anti-Graft and Corrupt Practices Act as well as Section 12, Rule XVIII of the
Civil Service Rules promulgated pursuant to the Civil Service Act of 1959, the
impropriety of the same is clearly unquestionable because Canon 25 of the Canons of
Judicial Ethics expressly declares that:

A judge should abstain from making personal investments in enterprises which

are apt to be involved in litigation in his court; and, after his accession to the
bench, he should not retain such investments previously made, longer than a
period sufficient to enable him to dispose of them without serious loss. It is
desirable that he should, so far as reasonably possible, refrain from all relations
which would normally tend to arouse the suspicion that such relations warp or
bias his judgment, or prevent his impartial attitude of mind in the administration
of his judicial duties. ...

WE are not, however, unmindful of the fact that respondent Judge and his wife had
withdrawn on January 31, 1967 from the aforesaid corporation and sold their respective
shares to third parties, and it appears also that the aforesaid corporation did not in anyway
benefit in any case filed by or against it in court as there was no case filed in the different
branches of the Court of First Instance of Leyte from the time of the drafting of the
Articles of Incorporation of the corporation on March 12, 1966, up to its incorporation on
January 9, 1967, and the eventual withdrawal of respondent on January 31, 1967 from
said corporation. Such disposal or sale by respondent and his wife of their shares in the
corporation only 22 days after the incorporation of the corporation, indicates that
respondent realized that early that their interest in the corporation contravenes the
aforesaid Canon 25. Respondent Judge and his wife therefore deserve the commendation
for their immediate withdrawal from the firm after its incorporation and before it became
involved in any court litigation
III

With respect to the third and fourth causes of action, complainant alleged that respondent
was guilty of coddling an impostor and acted in disregard of judicial decorum, and that
there was culpable defiance of the law and utter disregard for ethics. WE agree, however,
with the recommendation of the Investigating Justice that respondent Judge be exonerated
because the aforesaid causes of action are groundless, and WE quote the pertinent portion
of her report which reads as follows:

The basis for complainant's third cause of action is the claim that respondent
associated and closely fraternized with Dominador Arigpa Tan who openly and
publicly advertised himself as a practising attorney (see Exhs. I, I-1 and J) when
in truth and in fact said Dominador Arigpa Tan does not appear in the Roll of
Attorneys and is not a member of the Philippine Bar as certified to in Exh. K.

The "respondent denies knowing that Dominador Arigpa Tan was an "impostor"
and claims that all the time he believed that the latter was a bona fide member of
the bar. I see no reason for disbelieving this assertion of respondent. It has been
shown by complainant that Dominador Arigpa Tan represented himself publicly
as an attorney-at-law to the extent of putting up a signboard with his name and
the words "Attorney-at Law" (Exh. I and 1- 1) to indicate his office, and it was
but natural for respondent and any person for that matter to have accepted that
statement on its face value. "Now with respect to the allegation of complainant
that respondent is guilty of fraternizing with Dominador Arigpa Tan to the extent
of permitting his wife to be a godmother of Mr. Tan's child at baptism (Exh. M &
M-1), that fact even if true did not render respondent guilty of violating any
canon of judicial ethics as long as his friendly relations with Dominador A. Tan
and family did not influence his official actuations as a judge where said persons
were concerned. There is no tangible convincing proof that herein respondent
gave any undue privileges in his court to Dominador Arigpa Tan or that the latter
benefitted in his practice of law from his personal relations with respondent, or
that he used his influence, if he had any, on the Judges of the other branches of
the Court to favor said Dominador Tan.

Of course it is highly desirable for a member of the judiciary to refrain as much

as possible from maintaining close friendly relations with practising attorneys
and litigants in his court so as to avoid suspicion 'that his social or business
relations or friendship constitute an element in determining his judicial course"
(par. 30, Canons of Judicial Ethics), but if a Judge does have social relations, that
in itself would not constitute a ground for disciplinary action unless it be clearly
shown that his social relations be clouded his official actuations with bias and
partiality in favor of his friends (pp. 403-405, rec.).

In conclusion, while respondent Judge Asuncion, now Associate Justice of the Court of
Appeals, did not violate any law in acquiring by purchase a parcel of land which was in
litigation in his court and in engaging in business by joining a private corporation during
his incumbency as judge of the Court of First Instance of Leyte, he should be reminded to
be more discreet in his private and business activities, because his conduct as a member
of the Judiciary must not only be characterized with propriety but must always be above
suspicion.

WHEREFORE, THE RESPONDENT ASSOCIATE JUSTICE OF THE COURT OF

APPEALS IS HEREBY REMINDED TO BE MORE DISCREET IN HIS PRIVATE
AND BUSINESS ACTIVITIES.

SO ORDERED.

Teehankee, Guerrero, De Castro, Melencio-Herrera, Plana, Vasquez, Relova and

Gutierrez, JJ., concur.

Concepcion Jr., J., is on leave.

Fernando, C.J., Abad Santos and Esolin JJ., took no part.

 11. Ruffy vs. Chief of Staff

G.R. No. L-533 August 20, 1946

RAMON RUFFY, ET AL., petitioners,

vs.
THE CHIEF OF STAFF, PHILIPPINE ARMY, ET AL., respondents.

Placido C. Ramos for petitioners.

Lt. Col. Fred Ruiz Castro and Capt. Ramon V. Diaz, JAGS, PA., for respondents.

TUASON, J.:

This was a petition for prohibition, praying that the respondents, the Chief of Staff and
the General Court Martial of the Philippine Army, be commanded to desist from further
proceedings in the trial of petitioners before that body. Preliminary injunction having
been denied by us and the General Court Martial having gone ahead with the trial, which
eventually resulted in the acquittal of one of the defendants, Ramon Ruffy, the dismissal
of the case as to another, Victoriano Dinglasan, and the conviction of Jose L. Garcia,
Prudente M. Francisco, Dominador Adeva and Andres Fortus, the last-named four
petitioners now seek in their memorandum to convert the petition into one for certiorari,
with the prayer that the records of the proceedings before the General Court Martial be
ordered certified to this court for review.

The ground of the petition was that the petitioners were not subject to military law at the
time the offense for which they had been placed on trial was committed. In their
memorandum they have raised an additional question of law — that the 93d Article of
War is unconstitutional.

An outline of the petitioner's previous connection with the Philippine Army, the
Philippine Constabulary, and/or with guerrilla organizations will presently be made. This
outline is based on allegations in the petition and the answer, and on exhibits attached
thereto and to the parties' memoranda, exhibits which were offered in the course of the
oral argument and admitted without objection. The said exhibits are public documents
certified by the officials who had them in custody in their official capacity. They are
presumed to be authentic, as we have no doubt they are.

It appears that at the outbreak of war on December 8, 1941, Ramon Ruffy was the
Provincial Commander, Prudente M. Francisco, a junior officer, and Andres Fortus, a
corporal, all of the Philippine Constabulary garrison stationed in Mindoro. When, on
February 27, 1942, the Japanese forces landed in Mindoro, Major Ruffy retreated to the
mountains instead of surrendering to the enemy, disbanded his company, and organized
and led a guerrilla outfit known as Bolo Combat team of Bolo Area. Lieutenant
Francisco, Corporal Fortus and Jose L. Garcia, the last then a civilian joined Major
Ruffy's organization towards the latter part of 1942, while Dominador Adeva and
Victoriano Dinglasan, then likewise civilians, became its members some time in 1943..

Meanwhile, Brigadier General Macario Peralta, Jr., then a lieutenant colonel of the
Philippine Army, also took to the hills of Panay and led the operation of the 6th Military
District, one of the districts into which the Philippine Army had been divided before the
war. About November, 1942, Colonel Peralta succeeded in contacting the General
Headquarters of General MacArthur in Australia as the result of which on February 13,
1943, the 6th Military District was recognized by the Headquarters of the Southwest
Pacific Area as a military unit and part of its command.

Even before General MacArthur's recognition of the 6th Military District Colonel Peralta
had extended its sphere of operation to comprise Mindoro and Marinduque, and had, on
January 2, 1943, named Major Ruffy as Acting Commander for those two provinces and
Commanding Officer of the 3rd Battalion, 66 Infantry 61st Division, Philippine Corps.
After the recognition, 2d Lieut. Prudente M. Francisco, by virtue of Special Orders No.
99, dated November 2, 1943, and signed by Enrique L. Jurado, Major, OSE,
Commanding, was assigned as S-3 in the Bolo Area. Major, later Lieut. Col., Jurado, it
should be noted, had been dispatched by the 6th Military District to Mindoro to assume
operational control supervision over the Bolo Area unit and to make and direct the
necessary report to the Headquarters, 6th Military District, in Panay. On April 26, 1944,
by General Orders No. 40 of the 6th Military District, 2d Lieutenant Francisco was
promoted to the rank of 1st Lieutenant (Brevet), effective April 15, 1944, subject to
approval by the President of the Philippines, and was re-assigned to the Bolo Area. As to
Andres Fortus he was assigned to the same Bolo Area as probationary 3d lieutenant for
two-month probationary training, by the Headquarters of the 6th Military District, as per
Special Orders No. 70, dated May 15, 1944.
According to a memorandum of the Chief of Staff, 6th Military District, dated January
1943, and signed by L.R. Relunia, Lieut. Col., CE, Chief of Staff, Jose L. Garcia and
Dominador Adeva were appointed 3d lieutenants, infantry as of December 31, 1942.
Garcia later was promoted to the rank of captain, effective March 15, 1943, as per Special
Orders No. 82, issued in the field, 6th Military District, and dated August 28, 1943. On
May 24, 1943, Jose L. Garcia took his oath before Captain Esteban P. Beloncio, then
Acting Commanding Officer, 3d Battalion, 66th Infantry Regiment, 61st Division, 6th
Military District.

As has been said, the 6th Military District sent Lieut. Col. Enrique L. Jurado to be
Commanding Officer of the Bolo Combat Team in Mindoro and to undertake other
missions of Military character. Pursuant to instructions, Colonel Jurado on November 2,
1943, assigned Major Ruffy as Commanding Officer of the Bolo Area with 3d Lieut.
Dominador Adeva and 2d Lieut. Prudente M. Francisco as members of his staff and
Victoriano Dinglasan as Finance Officer, as per Special Orders No. 99 dated November 2,
1943. In a memorandum of Colonel Jurado for Major Ruffy bearing date 25 June, 1944, it
was stated that Captain Garcia had been given P5,000 for palay and Lieut. Francisco
P9,000, P5,000 for palay and P4,000 for salary of the personnel B. Company.

A change in the command of the Bolo Area was effected by Colonel Jurado on June 8,
1944: Major Ruffy was relieved of his assignment as Commanding Officer, Bolo
Battalion, and Capt. Esteban P. Beloncio was put in Ruffy's place. On October 19, 1944,
Lieut. Col. Jurado was slain allegedly by the petitioners. After the commission of this
crime, the petitioners, it is alleged, seceded from the 6th Military District. It was this
murder which gave rise to petitioner's trial, the legality of which is now being contested.

On July 26, 1941, the President of the Untied States issued a military order the pertinent
paragraph of which stated: ". . . as Commander in Chief of the Army and Navy of the
United States, I hereby call and order into the service of the armed forces of the United
States Army, for the period of the existing emergency, and place under the command of
the general officer, United States Army, to be designated by the Secretary of War, from
time to time, all of the organized military forces of the Government of the
Commonwealth." Following the issuance of President Roosevelt's order General Douglas
MacArthur was appointed Commanding General of the United States Armed Forces in
the Far East.

It is contended, in behalf of Captain Francisco and Lieutenant Fortus, that "by the enemy
occupation of the Philippines, the National Defense Act and all laws and regulations
creating and governing the existence of the Philippine Army including the Articles of
War, were suspended and in abeyance during such belligerent occupation."

The paragraph quoted in the petitioner's memorandum from Winthrop's Military Law and
Precedents and the subsequent paragraph which has been omitted furnish a complete
answer to petitioner's contention of the Philippines by Japanese forces, the officers and
men of the Philippine Army did not cease to be fully in the service, though in a measure,'
only in a measure, they were not subject to the military jurisdiction, if they were not
active duty. In the latter case, like officers and soldiers on leave of absence or held as
prisoners of war, they could not be held guilty of a breach of the discipline of the
command or of a neglect of duty, or disobedience of orders, or mutiny, or subject to a
military trial therefor; but for an act unbecoming an officer and a gentleman, or an act
which constitutes an offense of the class specified in the 95th Article of War, they may in
general be legally held subject to military jurisdiction and trial. "So a prisoner of war,
though not subject, while held by the enemy, to the discipline of his own army, would,
when exchanged of paroled, be not exempt from liability for such offenses as criminal
acts or injuriuos conduct committed during his captivity against other officers or soldiers
in the same status." (Winthrop's Military Law and Precedents, 2d Edition, pp. 91, 92.)

The rule invoked by counsel, namely, that laws of political nature or affecting political
relations are considered superseded or in abeyance during the military occupation, is
intended for the governing of the civil inhabitants of the occupied territory. It is not
intended for and does not bind the enemies in arms. This is self-evident from the very
nature of things. The paradox of a contrary ruling should readily manifest itself. Under
the petitioner's theory the forces of resistance operating in an occupied territory would
have to abide by the outlawing of their own existence. They would be stripped of the very
life-blood of an army, the right and the ability to maintain order and discipline within the
organization and to try the men guilty of breach thereof.

The surrender by General Wainright of the Fil-American Forces does not profit the
petitioner's who were former members of the Philippine Constabulary any more than does
the rule of war or international law they cite. The fall of Bataan and Corregidor did not
end the war. It did not, legally or otherwise, keep the United States and the
Commonwealth of the Philippines from organizing a new army, regular or irregular, out
of new men and men in the old service who had refused to surrender or who having
surrendered, had decided to carry on the fight through other diverse means and methods.
The fall of Corregidor and Bataan just marked the beginning of the gigantic preparation
for the gigantic drive that was to fight its way to and beyond the Philippines in fulfillment
of General MacArthur's classic promise, "I shall return." The heroic role which the
guerrillas played in that preparation and in the subsequent liberation of the Philippines is
now history.

Independently of their previous connection with the Philippine Army and the Philippine
Constabulary, Captain Francisco and Lieutenant Fortus as well as Major Garcia and
Lieutenant Adeva were subject to military jurisdiction.

The 2d Article of War defines and enumerates the persons subject to military law as
follows:

Art. 2. Persons Subject to Military Law. — The following persons are subject to
these articles and shall be understood as included in the term "any person subject to
military law" or "persons subject to military law," whenever used in these articles:

(a) All officers, members of the Nurse Corps and soldiers belonging to the Regular
 Force of the Philippine Army; all reservists, from the dates of their call to active duty
and while on such active duty; all trainees undergoing military instructions; and all
other persons lawfully called, drafted, or order to obey the same;

(b) Cadets, flying cadets, and probationary third lieutenants;

(c) All retainers to the camp and all persons accompanying or serving with the Army
of the Philippines in the field in time of war or when martial law is declared though
not otherwise subject to these articles;

(d) All persons under sentences adjudged by courts-martial.

It is our opinion that the petitioners come within the general application of the clause in
sub-paragraph (a); "and all other persons lawfully called, drafted, or ordered into, or to
duty for training in, the said service, from the dates they are required by the terms of the
call, draft, or order to obey the same." By their acceptance of appointments as officers in
the Bolo Area from the General Headquarters of the 6th Military District, they became
members of the Philippine Army amendable to the Articles of War. The Bolo Area, as has
been seen, was a contigent of the 6th Military District which, as has also been pointed
out, had been recognized by and placed under the operational control of the United States
Army in the Southwest Pacific. The Bolo Area received supplies and funds for the
salaries of its officers and men from the Southwest Pacific Command. As officers in the
Bolo Area and the 6th Military District, the petitioners operated under the orders of duly
established and duly appointed commanders of the United States Army.

The attitude of the enemy toward underground movements did not affect the military
status of guerrillas who had been called into the service of the Philippine Army. If the
invaders refused to look upon guerrillas, without distinctions, as legitimate troops, that
did not stop the guerillas who had been inducted into the service of the Philippine Army
from being component parts thereof, bound to obey military status of guerrillas was to be
judged not by the concept of the army of the country for which they fought.

The constitutionality of the 93d Article of War is assailed. This article ordains "that any
person subject to military law who commits murder in time of was shall suffer death or
imprisonment for life, as the court martial may direct." It is argued that since "no review
is provided by that law to be made by the Supreme Court, irrespective of whether the
punishment is for life imprisonment or death", it violates Article VIII, section 2,
paragraph 4, of the Constitution of the Philippines which provides that "the National
Assembly may not deprive the Supreme Court of its original jurisdiction over all criminal
cases in which the penalty imposed is death or life imprisonment."

We think the petitioners are in error. This error arose from failure to perceive the nature
of courts martial and the sources of the authority for their creation.

Courts martial are agencies of executive character, and one of the authorities "for the
ordering of courts martial has been held to be attached to the constitutional functions of
the President as Commander in Chief, independently of legislation." (Winthrop's Military
Law and Precedents, 2d Edition, p. 49.) Unlike courts of law, they are not a portion of the
judiciary. "The Supreme Court of the United States referring to the provisions of the
Constitution authorizing Congress to provide for the government of the army, excepting
military offenses from the civil jurisdiction, and making the President Commander in
Chief, observes as follows: "These provisions show that Congress has the power to
provide for the trial and punishment of military and naval offenses in the manner then and
now practiced by civilized nations, and that the power to do so is given without any
connection between it and the 3d Article of the United States; indeed that the two powers
are entirely independent of each other."

"Not belonging to the judicial branch of the government, it follows that courts-martial
must pertain to the executive department; and they are in fact simply instrumentalities of
the executive power, provided by Congress for the President as Commander in Chief, to
aid him in properly commanding the army and navy and enforcing discipline therein, and
utilized under his orders or those of his authorized military representatives." (Winthrop's
Military Law and Precedents, 2d Edition, p. 49.) Of equal interest Clode, 2 M. F., 361,
says of these courts in the British law: "It must never be lost sight of that the only
legitimate object of military tribunals is to aid the Crown to maintain the discipline and
government of the Army." (Footnote No. 24, p. 49, Winthrop's Military Law and
Precedents, 2d Edition.)

Our conclusion, therefore, is that the petition has no merit and that it should be dismissed
with costs. It is so ordered.

Moran, C.J., Paras, Feria, Pablo, Hilado, Bengzon, Briones and Padilla, JJ., concur.

Separate Opinions

PERFECTO, J., dissenting:

We agree with the rule that laws of political nature or affecting political relations are
considered in abeyance during enemy military occupation, although we maintain that the
rule must be restricted to laws which are exclusively political in nature. We agree with the
theory that the rule is not intended for and does not bind the enemies in arms, but we do
not agree with the theory that the rule is intended for the civil inhabitants of the occupied
territory without exception. We are of opinion that the rule does not apply to civil
government of the occupied territory. Enemy occupation does not relieve them from their
sworn official duties. Government officers wield powers and enjoy privileges denied to
private citizens. The wielding of powers and enjoyment of privileges impose
corresponding responsibilities, and even dangers that must be faced during emergency.

The petitioners assailed the constitutionally of the 93rd Article of War, providing that
"any person subject to military law who commits murder in time of war shall suffer death
or imprisonment for life, as the court-martial may direct," because no review is provided
by said law to be made by the Supreme Court, irrespective of whether the punishment is
for life imprisonment or death, such omission being a violation of section 2 (4) , Article
VIII, of the Constitution of the Philippines.

Petitioners are mistaken. The silence of the law as to the power of the Supreme Court to
review the decisions and proceedings of courts-martial, especially when the penalty
imposed is death or life imprisonment, should not be understood as negating such power,
much more when it is recognized and guaranteed by specific provisions of the
fundamental law. At any rate, any doubt in interpreting the silence of the law must be
resolved in favor of a construction that will make the law constitutional.

Furthermore, it may not be amiss to recall the fact that the National Assembly, in
approving the Articles of War (Commonwealth Act No. 408), had never intended to deny
or diminish the power of the Supreme Court to review, revise, reverse or modify final
judgments and decrees of courts martial created and organized under the Articles of War.
On the contrary, it was clearly understood that the decrees and the decisions of said
courts-martial are subject to review by the Supreme Court. The last Committee report on
the Articles of War was rendered to the National Assembly by its Committee on Third
Reading, commonly known as the "Little Senate," which submitted the bill printed in
final form. As chairman of the committee and in behalf of the same, we submitted the
report recommending the approval of the bill on third reading with the express statement
and understanding that it would not deprive the Supreme Court of its constitutional
revisionary power on final judgments and decrees of courts-martial proposed to be
created, which were and are to be considered as part of the judicial system, being
included in the denomination of inferior courts mentioned in section 1, Article VIII, of
the constitution. With the said statement and understanding, the National Assembly,
without any dissenting vote, approved the Articles of War as recommended by the
Committee on third Reading.

Consequently, petitioners' contention is untenable, the premise upon which they assailed
the constitutionality of the 93rd Article of War being groundless in view of the actuation
of the national Assembly.

The majority appear to concur in petitioners' premise that, by the silence of the Articles of
War, the Supreme Court is deprived of its constitutional power to review final decisions
of courts-martial. The majority even go as far as to justify the constitutionality of such
deprivation on the theory that courts martial belong, not to the judicial branch of the
government, but to the executive department, citing as authority therefor Winthrop's
Military Law and Precedents. The majority are in error.

In our opinion in Yamashita vs. Styer (L-129, 42 Off. Gaz., 664) and in Homma vs. Styer
(L-244), we have shown that this Supreme Court enjoys the power to revise the
actuations and decisions of military commissions, especially if they act without
jurisdiction or violate the law, military commissions being included within the
denomination of inferior courts under the provisions of our Constitution. Courts-martial
are, likely military commissions, inferior courts. The fact that they are military tribunals
does not change their essence as veritable tribunals or courts of justice, as agencies of the
government in the administration of justice. Their functions are essentially judicial.
Except in cases where judicial functions are specifically entrusted by the Constitution to
other agencies — such as impeachment to Congress, legislative electoral contests to the
Electoral Tribunals — all judicial functions are vested in the Supreme Court and in such
inferior courts as may be established by law. Courts-martial are inferior courts established
by law.

The majority's theory is based on an authority which has no bearing or application under
the Constitution of the Philippines. Winthrop's Military Law and Precedents has in mind
the Constitution of the United States of America, the provisions of which regarding the
judicial department are essentially different from those contained in our own
Constitution.

Article III of the Constitution of the United States of America is as follows:

SECTION 1. The Judicial Power of the United States, shall be vested in one Supreme
Court, and in such inferior courts as the Congress may from time to time ordain and
establish. The Judges, both of the Supreme Court and Inferior Courts, shall hold their
offices during good behavior, and shall at stated times, received for their services, a
compensation, which shall not be diminished during their continuance in office.

SEC. 2. The Judicial Power shall extend to all cases, in Law and Equity, arising
under this Constitution, the Laws of the United States, and Treaties made, or which
shall be made, under their authority; — to all cases affecting Ambassadors, other
public Ministers and Consuls; — to all cases of admirality and maritime jurisdiction;
— to controversies to which the United States shall be a party; — to controversies
between two or more States; — between a States and citizens of another State; —
between citizens of another State; — between citizens of different States, — between
citizens of the same State claiming lands under grants of different States, and
between a State, or the citizens thereof, and foreign States, citizens or subjects.

In all cases affecting Ambassadors, other public Ministers and Consuls, and those in
which a State shall be a party, the Supreme Court shall have original jurisdiction. In
all the other cases before mentioned, the Supreme Court shall have appellate
jurisdiction, both as to law and fact, with such exceptions, and under such regulations
as the Congress shall make.

The trial of all crimes, except in cases of impeachment, shall be jury; and such trial
shall be held in the State where the said crimes shall have been committed; but when
not committed within any State, the trial shall be at such place or places as the
Congress may by law have directed.

SEC. 3. Treason against the United States, shall consist only in levying war against
them, or in adhering to their enemies, giving them aid and comfort. No person shall
 be convicted of treason unless on the testimony of two witnesses to the same overt
act, or on confession in open court.

The Congress shall have power to declare the punishment of treason, but no attainder
of treason shall work corruption of blood, or forfeiture except during the life of the
person attached.

A comparison of the above provision with that of the Constitution of the Philippines will
readily show that the former does not have the negative provision contained in the latter
to the effect that our Supreme Court may not be deprived of certain specific judicial
functions.

Section 2 of Articles VIII of our Constitution is as follows:

SEC. 2. The Congress shall have 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 of 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 —

(1) All cases in which the constitutionality or validity of any treaty, law, ordinance, or
executive order or regulations 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 of any trial courts 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 is involved.

It is our considered opinion that the theory maintained in Winthrop's Military Law and
Precedents and in the decisions of the Supreme Court of the United States cited therein to
the effect that the trial and punishment of military and naval offenses by courts-martial
are executive functions because the only legitimate object of military tribunals "is to aid
the Crown to maintain the discipline and government of the Army," as applied in the
Philippine, is basically wrong, being rooted in the English monarchial ideology.

Military tribunals are tribunals whose functions are judicial in character and in nature. No
amount of logodaedaly may change the nature of such functions. The trial and
punishment of offenses, whether civil or military naval or aerial, since time immemorial,
have always been considered as judicial functions. The fact that such trial and punishment
are entrusted to "tribunals or courts-martial" shows the nuclear idea of the nature of the
function. Tribunals and courts are the agencies employed by government to administer
justice.

The very fact that in this case the Supreme Court has given due course to the petition,
required respondents to answer, set the case for hearing and, in fact, heard it, instead of
ordering the outright dismissal of the petition as soon as it was filed, thus following the
same procedure in Reyes vs. Crisologo, (L-54, 41 Off. Gaz., 1096) and in Yamashita vs.
Styer (supra), is a conclusive evidence of the fact of that this Supreme Court has the
jurisdiction and power to review the proceedings and decision of military tribunals, such
as courts-martials, military commissions, and other similar bodies exercising judicial
functions limited to military personnel.

It appearing that petitioners impugning the jurisdiction of the court-martial which has
tried and convicted them, we are of opinion that the petition must be granted in the sense
that the records of the court-martial in question should, be elevated to the Supreme Court
for revision, so that we may decide the question on the court-martial's jurisdiction and
give petitioners the justice they are claiming for.

12. Co Kim Chan vs. Valdez Tan Keh

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

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.

14. Aquino vs. COMELEC

G.R. No. L-40004 January 31, 1975

BENIGNO S. AQUINO, JR., TRINIDAD HERRERA, BISHOP FRANCISCO CLAVER,

S.J., BISHOP ANTONIO NEPOMUCENO, BISHOP JESUS VALERA, BISHOP FELIX
ZAFRA, BISHOP TEOTIMO PACIS, EUGENIO LOPEZ, JR., SERGIO OSMEÑA, III,
ANTONIO ARANETA, ANTONIO MIRANDA, RAUL GONZALES, JOKER
ARROYO, and EMILIO DE PERALTA, petitioners,
vs.
COMMISSION ON ELECTIONS, and NATIONAL TREASURER, respondents.

Lorenzo M. Tañada, Renato E. Tañada and Wigberto E. Tañada for petitioners

Office of the Solicitor General Estelito P Mendoza, Assistant Solicitor General Hugo E.
Gutierrez, Jr., Assistant Solicitor General Vicente V. Mendoza & Assistant Solicitor
General Reynato S. Puno for respondents.

MAKASIAR, J.:p

This petition for prohibition, which was filed on January 21, 1975, seeks the nullification
of Presidential Decrees Nos. 1366, 1366-A, calling a referendum for February 27, 1975,
Presidential Decrees Nos. 629 and 630 appropriating funds therefor, and Presidential
Decrees Nos. 637 and 637-A specifying the referendum questions, as well as other
presidential decrees, orders and instructions relative to the said referendum.

The respondents, through the Solicitor General, filed their comment on January 28, 1975.
After the oral argument of over 7 hours on January 30, 1975, the Court resolved to
consider the comment as answer and the case submitted for decision.

The first ground upon which the petition is predicated states that President Ferdinand E.
Marcos does not hold any legal office nor possess any lawful authority under either the
1935 Constitution or the 1973 Constitution and therefore has no authority to issue the
questioned proclamations, decrees and orders. This challenges the title of the incumbent
President to the office of the Presidency and therefore is in the nature of a quo warranto
proceedings, the appropriate action by which the title of a public officer can be
questioned before the courts. Only the Solicitor General or the person who asserts title to
the same office can legally file such a quo warranto petition. The petitioners do not claim
such right to the office and not one of them is the incumbent Solicitor General. Hence,
they have no personality to file the suit (Castro vs. Del Rosario, Jan. 30, 1967, 19 SCRA
197; City of Manila & Antonio Villegas vs. Abelardo Subido, et. al., May 20, 1966, 17
SCRA 231-232, 235-236; Nacionalista Party vs. Bautista, 85 Phil. 101; and Nacionalista
Party vs. Vera, 85 Phil. 127). It is established jurisprudence that the legality of the
appointment or election of a public officer cannot be questioned collaterally through a
petition for prohibition which assails the validity of his official acts.

The foregoing governing legal principles on public officers are re-stated in order to avert
any misapprehension that they have been eroded by Our resolution in the instant petition.

Because of the far-reaching implications of the herein petition, the Court resolved to pass
upon the issues raised.

II

This Court already ruled in the Ratification Cases "that there is no further judicial
obstacle to the new Constitution being considered in force and effect." As Chief Justice
Makalintal stressed in the Habeas Corpus cases, the issue as to its effectivity "has been
laid to rest by Our decision in Javellana versus Executive Secretary (L-36142, March 31,
1973, 50 SCRA 30, 141), and of course by the existing political realities both in the
conduct of national affairs and in our relation with countries" (Aquino, Jr. vs. Enrile and 8
companion cases, L-35546, L-35538-40, L-35538-40, L-35547, L-35556, L-35571 and
L-35573, Sept. 17, 1971, 59 SCRA 183, 241).

III

In the aforesaid Habeas Corpus cases, We affirmed the validity of Martial Law
Proclamation No. 1081 issued on September 22, 1972 by President Marcos because there
was no arbitrariness in the issuance of said proclamation pursuant to the 1935
Constitution that the factual bases had not disappeared but had even been exacerbated;
that the question is to the validity of the Martial Law proclamation has been foreclosed by
Section 3(2) of Article XVII of the 1973 Constitution, which provides that "all
proclamations, orders, decrees, instructions and acts promulgated, issued or done by the
incumbent President shall be part of the law of the land and shall remain valid, legal,
binding and effective even after the lifting of Martial Law or the ratification of this
Constitution ..."; and that "any inquiry by this Court in the present cases into the
constitutional sufficiency of the factual bases for the proclamation of Martial Law, has
become moot and purposeless as a consequence of the general referendum of July 27-28,
1973. The question propounded to the voters was: "Under the (1973) Constitution, the
President, if he so desires, can continue in office beyond 1973. Do you want President
Marcos to continue beyond 1973 and finish the reforms be initiated under Martial Law?"
The overwhelming majority of those who cast their ballots, including citizens beyond 15
and 18 years, voted affirmatively on the proposal. The question was thereby removed
from the area of presidential power under the Constitution and transferred to the seat of
sovereignty itself. Whatever may be the nature of the exercise of that power by the
President in the beginning — whether or not purely political and therefore non-justiciable
— this Court is precluded from applying its judicial yardstick to the act of the sovereign."
(Aquino, Jr. vs. Enrile, supra, 59 SCRA 183,
240-242).

Under the 1935 Constitution, President Ferdinand E. Marcos was duly reelected by the
vote of the sovereign people in the Presidential elections of 1969 by an overwhelming
vote of over 5,000,000 electors as against 3,000,000 votes for his rival, garnering a
majority of from about 896,498 to 1,436,118 (Osmeña vs. Marcos, Presidential Election
Contest No. 3, Jan. 8, 1973). While his term of office under the 1935 Constitution should
have terminated on December 30, 1973, by the general referendum of July 27-28, 1973,
the sovereign people expressly authorized him to continue in office even beyond 1973
under the 1973 Constitution (which was validly ratified on January 17, 1973 by the
sovereign people) in order to finish the reforms he initiated under Martial Law; and as
aforestated, as this was the decision of the people, in whom "sovereignty resides ... and
all government authority emanates ...," it is therefore beyond the scope of judicial inquiry
(Aquino, Jr. vs. Enrile, et. al., supra, p. 242).

The logical consequence therefore is that President Marcos is a de jure President of the
Republic of the Philippines.

IV

The next issue is whether he is the incumbent President of the Philippines within the
purview of Section 3 of Article XVII on the transitory provisions of the new or 1973
Constitution. As heretofore stated, by virtue of his reelection in 1969, the term of
President Marcos tinder the 1935 Constitution was to terminate on December 30, 1973.
The new Constitution was approved by the Constitutional Convention on November 30,
1972, still during his incumbency. Being the only incumbent President of the Philippines
at the time of the approval of the new Constitution by the Constitutional Convention, the
Constitutional Convention had nobody in mind except President Ferdinand E. Marcos
who shall initially convene the interim Assembly. It was the incumbent President Marcos
alone who issued Martial Law Proclamation No. 1081 on September 22, 1972 and issued
orders and decrees as well as instructions and performed other acts as President prior to
the approval on November 30, 1972 of the new Constitution by the Constitutional
Convention and prior to its ratification on January 17, 1973 by the people. Consequently,
since President Marcos was the only incumbent President at the time, because his term
under the 1935 Constitution has yet to expire on December 30, 1973, the Constitutional
Convention, in approving the new Constitution, had in mind only him when in Section
3(2) of Article XVII of the new Constitution it provided "that all the proclamations,
orders, decrees, instructions and acts promulgated, issued or done by the incumbent
President shall be part of the law of the land, and shall remain valid, legal, binding and
effective even after lifting of Martial Law or the ratification of this Constitution, unless
modified, revoked or superseded by subsequent proclamations, orders, decrees,
instructions or other acts of the incumbent President, or unless expressly and explicitly
modified or repealed by the regular National Assembly."
The term incumbent President of the Philippines employed in Section 9 of the same
Article XVII likewise could only refer to President Ferdinand E. Marcos. .

This conclusion is further buttressed by Section 10 of the same Article XVII which
provides that "the incumbent members of the Judiciary may continue in office until they
reach the age of 70 years unless sooner replaced in accordance with the preceding section
hereof." There can be no dispute that the phrase "incumbent members of the Judiciary"
can only refer to those members of the Judiciary who were already Justices and Judges of
the various courts of the country at the time the Constitutional Convention approved the
new Constitution on November 30, 1972 and when it was ratified.

Because President Ferdinand E. Marcos is the incumbent President referred to in Article

XVII of the transitory provisions of the 1973 Constitution, he can "continue to exercise
the powers and prerogatives under the nineteen hundred and thirty five Constitution and
the powers vested in the President and the Prime Minister under this Constitution until he
calls upon the interim National Assembly to elect the interim President and the interim
Prime Minister, who shall then exercise their legislative powers vested by this
Constitution (Sec. 3[l], Art. XVII, 1973 Constitution).

Under the 1935 Constitution, the President is empowered to proclaim martial law. Under
the 1973 Constitution, it is the Prime Minister who is vested with such authority (Sec. 12,
Art. IX, 1973 Constitution).

WE affirm the proposition that as Commander-in-Chief and enforcer or administrator of

martial law, the incumbent President of the Philippines can promulgate proclamations,
orders and decrees during the period of Martial Law essential to the security and
preservation of the Republic, to the defense of the political and social liberties of the
people and to the institution of reforms to prevent the resurgence of rebellion or
insurrection or secession or the threat thereof as well as to meet the impact of a
worldwide recession, inflation or economic crisis which presently threatens all nations
including highly developed countries (Rossiter, Constitutional Dictatorship, 1948 Ed., pp.
7, 303; see also Chief Justice Stone's Concurring Opinion in Duncan vs. Kahanamoku,
327 US 304).

To dissipate all doubts as to the legality of such law-making authority by the President
during the period of Martial Law, Section 3(2) of Article XVII of the New Constitution
expressly affirms that all the proclamations, orders, decrees, instructions and acts he
promulgated, issued or did prior to the approval by the Constitutional Convention on
November 30, 1972 and prior to the ratification by the people on January 17, 1973 of the
new Constitution, are "part of the law of the land, and shall remain valid, legal, binding
and effective even after the lifting of Martial Law or the ratification of this Constitution,
unless modified, revoked or superseded by subsequent proclamations, orders, decrees,
instructions or other acts of the incumbent President, or unless expressly and specifically
modified or repealed by the regular National Assembly."

The entire paragraph of Section 3(2) is not a grant of authority to legislate, but a
recognition of such power as already existing in favor of the incumbent President during
the period of Martial Law.

Dr. Jose M. Aruego, noted authority in Constitutional Law as well as delegate to the 1935
and 1971 Constitutional Conventions, shares this view, when he states thus:

108. ... — These Presidential Proclamations, order, decrees, instructions, etc. had
been issued by the incumbent President in the exercise of what he consider to be
his powers under martial law, in the same manner that the lawmaking body had
enacted several thousand statutes in the exercise of what it consider to be its
power under the Organic Laws. Both these classes of rules of law — by the
President and by the lawmaking body — were, under general principles of
constitutional law, presumed to be constitutional until declared unconstitutional
by the agency charged with the power and function to pass upon constitutional
law question — the Judiciary, at the apex of which is the Supreme Court. Hence,
the inclusion of both group of rules — President rules and legislative rules — in
the new Constitution for the people to approve or disapprove in the scheduled
plebiscite. (Aruego, The New Constitution, 1973 Ed., p. 230).

Delegate Arturo Pacificador, a Floor Leader of the 1971 Constitutional Convention, in

explaining Section 3(2) of Article XVII, underscores this recognition of the legislative
power of the incumbent President as Commander-in-Chief during martial Law, thus:

The second paragraph sets forth the understanding of the Convention of the
nature, extent and scope of the powers of the incumbent President of the
Philippines, under martial law. It expressly recognizes that the commander-in-
chief, under martial law, can exercise all necessary powers to meet the perils of
invasion, insurrection, rebellion or imminent danger thereof. This provision
complements Section 7, Article XVII of the Constitution that "all existing laws
not inconsistent with this Constitution shall remain operative until amended,
modified, or repealed by the National Assembly."

The second paragraph is an express recognition on the part of the framers of the
new Constitution of the wisdom of the proclamations, orders, decrees and
instructions by the incumbent President in the light of the prevailing conditions
obtaining in the country. (Montejo, New Constitution, 1973 Ed., p. 314,
emphasis supplied).

The power under the second clause of Section 3(2) is not limited merely to modifying,
revoking or superseding all his proclamations, orders, decrees, instructions or other acts
promulgated, issued or done prior to the ratification of the 1973 Constitution. But even if
the scope of his legislative authority thereunder is to be limited to the subject matter of
his previous proclamations, orders, decrees or instructions or acts, the challenged
Proclamations Nos. 1366 and 1366-A, as well as Presidential Decrees Nos. 629, 630, 637
and 637-A are analogous to the referenda of January, 1973 and July 27-28, 1973.
The actions of the incumbent President are not without historical precedents. It should be
recalled that the American Federal Constitution, unlike the 1935 or 1973 Constitution of
the Philippines, does not confer expressly on the American President the power to
proclaim Martial Law or to suspend the writ of habeas corpus. And yet President
Abraham Lincoln during the Civil War, and President Roosevelt during the Second World
War, without express constitutional or statutory authority, created agencies and offices
and appropriated public funds therefor in connection with the prosecution of the war.
Nobody raised a finger to oppose the same. In the case of President Roosevelt, the theater
of war was not in the United States. It was thousands of miles away, in the continents of
Europe and Africa and in the Far East. In the Philippines, military engagements between
the government forces and the rebels and secessionists are going on, emphasizing the
immediacy of the peril to the safety of the Republic itself. There is therefore greater
reason to affirm this law-making authority in favor of the incumbent President during the
period of Martial Law.

Petitioners further argue that the President should call the interim National Assembly as
required of him by Section 3(1) of Article XVII, which National Assembly alone can
exercise legislative powers during the period of transition.

It should be stressed that there is a distinction between the existence of the interim
Assembly and its organization as well as its functioning. The interim Assembly already
existed from the time the new Constitution was ratified; because Section 1 of Article
XVII states that "there shall be an interim National Assembly which shall exist
immediately upon the ratification of this Constitution and shall continue until the
members of the regular National Assembly shall have been elected and shall have
assumed office ..." However, it cannot function until it is convened and thereafter duly
organized with the election of its interim speaker and other officials. This distinction was
clearly delineated in the case of Mejia, et. al. vs. Balolong, et. al. where We held that
from the phrase "the City of Dagupan, which is hereby created, ...," Dagupan City came
into existence as a legal entity upon the approval of its Charter; but the date of the
organization of the city government was to be fixed by the President of the Philippines,
and necessarily was subsequent to the approval of its organic law (81 Phil. 486, 490-492).

Petitioners likewise urge that the President should have convened the interim Assembly
before the expiration of his term on December 30, 1973. The Constitutional Convention
intended to leave to the President the determination of the time when he shall initially
convene the interim National Assembly, consistent with the prevailing conditions of
peace and order in the country. This was revealed by no less than Delegate Jose M.
Aruego himself, who stated:

109. Convening the interim National Assembly. — The Constitutional

Convention could have fixed the date when the interim National Assembly
should convene itself as it did with respect to the regular National Assembly.
There would not have been any need for any Presidential call as there is none,
with respect to the regular National Assembly.
 But considering that the country had been already placed under martial law rule
the success of which was conditioned upon the unity not only of planning but
also in the execution of plans, many delegates felt that the incumbent President
should be given the discretion to decide when the interim National Assembly
should be convened because he would need its counsel and help in the
administration of the affairs of the country.

And in the event that it should convene, why did the interim National Assembly
not fix its tenure, and state expressly when the election of the members of the
regular National Assembly should be called? Many of the delegates felt that they
could not be sure even of the proximate date when the general conditions of
peace and order would make possible orderly elections, ... (The New Philippine
Constitution by Aruego, 1973 Ed., p. 230).

This was also disclosed by Delegate Arturo F. Pacificador, who affirmed:

Under the first paragraph of this section, the incumbent President is mandated to
initially convene the interim National Assembly.

Note that the word used is "shall" to indicate the mandatory nature of the desire
of the Constitutional Convention that the interim National Assembly shall be
convened by the incumbent President. The Constitutional Convention, however,
did not fix any definite time at which the incumbent President shall initially
convene the interim National Assembly. This decision was deliberate to allow
the incumbent President enough latitude of discretion to decide whether in the
light of the emergency situation now prevailing, conditions have already
normalized to permit the convening of the interim National Assembly. (Montejo,
The New Constitution, 1973 Ed., p. 314).

It is thus patent that the President is given the discretion as to when he shall convene the
interim National Assembly after determining whether the conditions warrant the same.

His decision to defer the initial convocation of the interim National Assembly was
supported by the sovereign people at the referendum in January, 1973 when the people
voted to postpone the convening of the interim National Assembly until after at least
seven (7) years from the approval of the new Constitution. And the reason why the same
question was eliminated from the questions to be submitted at the referendum on
February 27, 1975, is that even some members of the Congress and delegates of the
Constitutional Convention, who are already ipso factomembers of the interim National
Assembly, are against such inclusion; because the issue was already decided in the
January, 1973 referendum by the sovereign people indicating thereby their
disenchantment with any Assembly as the former Congress failed to institutionalize the
reforms they demanded and had wasted public funds through the endless debates without
relieving the suffering of the general mass of citizenry.

Petitioners likewise impugn the scheduled referendum on the ground that there can be no
true expression of the people's will due to the climate of fear generated by Martial Law
and that the period of free discussion and debate is limited to two weeks from February 7
to 21, without right of rebuttal from February 22 until the day of the referendum.

The first objection is not tenable because during the senatorial elections in 1951 and
1971, the privilege of the writ of habeas corpus was suspended, during which period of
suspension there was fear of arrest and detention. Yet the election was so free that a
majority of the senatorial candidates of the opposition party were elected and there was
no reprisal against or harrassment of any voter thereafter. The same thing was true in the
referendum of July 27-28, 1973, which was done also through secret ballot. There was no
Army, PC, or police truck, bus or other mode of transportation utilized to transport the
voters to the various precincts of the country. There was no PC, Army or police personnel
assigned to each election precinct or voting booth. And such assignment would be
impossible; because the combined membership of the police, PC, and Army was then as
now very much less than the number of precincts, let alone the number of voting booths.
And no one would be left to fight the rebels or to maintain peace and order. And as
heretofore stated, the voting was done in secrecy. Only one voter at a time entered the
voting booth. The voting was orderly. There was no buying of votes or buying the right
not to vote. And as opined by the Solicitor General, every qualified voter who fails to
register or go to the polling place on referendum day is subject to prosecution; but failure
to fill up the ballot is not penalized.

In the Habeas Corpus cases, We declared that the result of the referendum on July 27-28,
1973 was a decision by the sovereign people which cannot be reviewed by this Court.
Then again, it is too late now for petitioners to challenge the validity of said referendum.

Moreover, as stressed by the Solicitor General, the previous referenda of January and
July, 1973, were a lot more free than the elections under the Old Society previous to the
proclamation of Martial Law, where the will of the voter was subverted through "guns,
goons and gold", as well as through fraud. All modes of transportation were utilized by
the candidates and their leaders to transport the voters to the precinct. The voters were
likewise wined and dined and so prostituted that they refused to vote until the required
monetary persuasion was proffered, if they were not being subjected to various forms of
intimidation. In some areas, the ballots were filled up and the election returns were
accomplished before election day. Even animals and dead persons voted. The decisions in
the electoral contests filed after every election under the Old Society attest to this very
unflattering fact in our history.

The second objection that the two-week period for free debate is too short, is addressed to
the wisdom of the President who may still amend the proclamation to extend the period
of free discussion.

At any rate, such a brief period of discussion has its counterpart in previous plebiscites
for constitutional amendments. Under the Old Society, 15 days were allotted for the
publication in three consecutive issues of the Official Gazette of the women's suffrage
amendment to the Constitution before the scheduled plebiscite on April 30, 1937 (Com.
Act No. 34). The constitutional amendment to append as ordinance the complicated
Tydings-Kocialskowski Act of the US Federal Congress to the 1935 Constitution was
published in only three consecutive issues of the Official Gazette for 10 days prior to the
scheduled plebiscite (Com. Act No. 492). For the 1940 constitutional amendments
providing for the bicameral Congress, the reelection of the President and Vice-President,
and the creation of the Commission on Elections, 20 days of publication in three
consecutive issues of the Official Gazette was fixed (Com. Act No. 517).And the Parity
Amendment, an involved constitutional amendment affecting the economy as well as the
independence of the Republic was publicized in three consecutive issues of the Official
Gazette for 20 days prior to the plebiscite (Rep. Act No. 73).

The period of 14 days for free discussion can compare favorably with the period required
for publication of the proposed amendments under the Old Society.

WHEREFORE, PRESIDENT FERDINAND E. MARCOS IS HEREBY DECLARED

DE JURE PRESIDENT OF THE REPUBLIC, PRESIDENTIAL PROCLAMATIONS
NOS. 1366 AND 1366-A AND PRESIDENTIAL DECREES NOS. 629,630, 637 AND
637-A ARE HEREBY DECLARED VALID, AND THE PETITION IS HEREBY
DISMISSED. WITHOUT COSTS.

Aquino, J, concurs.

Makatintal, C.J., concurs in the result.

Separate Opinions

CASTRO, J., concurring:

I vote to deny the petition.

At the threshold, and only for the purposes of this separate capsule opinion, I will assume
(a) that this case before us is not in the nature of a quo warranto proceeding; (b) that the
petitioners possess legal standing before the Court; and (c) that all the petitioners,
whatever be the persuasion of their counsel, recognize the Court as the supreme judicial
tribunal operating and functioning under the 1973 Constitution.

I find no particular difficulty in resolving what I regard as the two crucial issues posed by
the petition.
1. On the matter of whether Ferdinand E. Marcos is still the President of the Philippines,
the Transitory Provisions (Art XVII) of the 1973 Constitution, more specifically Secs. 2,
3, 9 and 12 thereof, even if they do not mention him by name, clearly point to and
recognize Ferdinand E. Marcos as the constitutional and lawful President of the
Philippines. If there is any doubt at all — and I do not personally entertain any — that the
said Transitory Provisions refer to President Marcos as the "incumbent President," then
such doubt should be considered as having been completely dissipated by the resounding
affirmative vote of the people on this question propounded in general referendum of July
27-28, 1973: "Under the [1973] Constitution, the President, if he so desires, can continue
in office beyond 1973. Do you want President Marcos to continue beyond 1973 and
finish the reforms he initiated under martial law?"

2. On the matter of whether President Marcos, at the present time, can constitutionally
exercise legislative power, I do not need to postulate that he derives legislative power
from the constraints of a regime of martial law. To my mind, pars. 1 and 2 of See. 3 of the
Transitory Provisions are unequivocal authority for President Marcos to legislate. These
paragraphs read:

The incumbent President of the Philippines shall initially convene the interim National
Assemble and shall preside over its sessions until the interim Speaker shall have been
elected. He shall continue to exercise his powers and prerogatives under the nineteen
hundred and thirty-five Constitution and the powers vested in the President and the Prime
Minister under this Constitution until he calls the interim National Assembly to elect the
interim President and the interim Prime Minister, who shall then exercise their respective
powers vested by this Constitution.

All proclamations, orders, decrees, instructions, and acts promulgated, issued, or done by
the incumbent President shall be part of the law of the land, and shall remain valid, legal,
binding, and effective even after [the] lifting of martial law or the ratification of this
Constitution, unless modified, revoked or superseded by subsequent proclamations,
orders, decrees, instructions, or other acts of the incumbent President, or unless expressly
and explicitly modified or repealed by the regular National Assembly.

Stated elsewhere, my reading of these provisions is that they constitute an unmistakable

constitutional warrant for the "incumbent President" (meaning President Marcos) to
legislate (until, at the very earliest, the interim National Assembly shall have been
convoked).

The peripheral matter of whether President Marcos should now or soon convene the
interim National Assembly is completely outside the competence of the Supreme Court to
resolve, as, in my view, it is a political question addressed principally, basically, and
exclusively to the President and the Filipino people.

Makalintal, C.J., Barredo, Antonio, Esguerra and Fernandez, JJ., concur.

FERNANDO, J., concurring:

It is a crucial question that is posed by this petition to call a halt to the February 27
referendum because of alleged constitutional transgressions. It is one fundamental in its
essence, and what is more, impressed with the sense of immediacy to quiet doubts and to
minimize uncertainties. There has been a quick response, hopefully not one given in
haste, which is the enemy of thought. For all the vigor and the learning that characterized
the advocacy of Senator Lorenzo M. Tañada, it did not suffice to elicit a favorable
verdict. The petition did not prosper. So it has been adjudged, and I concur in the result
reached. It is given expression in the notable opinion penned by Justice Makasiar which,
on its face, betrays sensitivity to the magnitude and the grave implications of the serious
problems posed. What is more, it has not avoided subsidiary issues which reach into vital
areas of our constitutional system. To the extent that it reiterates tried and tested
doctrines, I am of course in agreement. Certainly, there is not much difficulty for me in
reaching the conclusion that the term "incumbent President" in the Transitory Provisions
means what it says. If I submit this brief concurrence, it is only because of my belief that
notwithstanding the brilliant and illuminating argumentation in depth by both eminent
counsel, raging far and wide in the domain of constitutionalism, there is no need as yet to
express my views on some collateral matters. It suffices for me to rely on a jurical
concept that is decisive. It is the fundamental principle that sovereignty resides in the
people with all government authority emanating from them.1 It speaks, to recall Cardozo,
with a reverberating clang that drowns all weaker sounds.

1. Respondents would interpose obstacles to avoid a decision on the merits. They are not
insurmountable. They alleged that the questions raised are political and therefore left for
the political sovereign, not the courts.2 Such an assertion carries overtones of the Tañada
v. Cuenco3 ruling that a matter to be decided by the people in their sovereign capacity is
of such a character. It has an aura of plausibility but it cannot stand the rigor of analysis.
It confuses the end result with the procedure necessary to bring it about. It is elemental
that constitutionalism implies restraints as well on the process by which lawful and valid
state objectives may be achieved.4 What is challenged here is the actuation of the
incumbent President for alleged failure to comply with constitutional requisites. It is
much too late in the day to assert that a petition of that character is not appropriate for the
courts. This is not to venture into uncharted judicial territory. There are landmarks all
along the way. This is not then to trespass on forbidden ground. There is no disregard of
the political question concept.

Then there is the attack on the standing of petitioners, as vindicating at most what they
consider a public right and not protecting their rights as individuals.5 This is to conjure
the specter of the public right dogma as an inhibition to parties intent on keeping public
officials staying on the path of constitutionalism. As was so well put by Jaffe:6 "The
protection of private rights is an essential constituent of public interest and, conversely,
without a well-ordered state there could be no enforcement of private rights. Private and
public interests are, both in a substantive and procedural sense, aspects of the totality of
the legal order."7 Moreover, petitioners have convincingly shown that in their capacity as
taxpayers, their standing to sue has been amply demonstrated. There would be a retreat
from the liberal approach followed in Pascual v. Secretary of Public Works,8
foreshadowed by the very decision of People v. Vera 9 where the doctrine was first fully
discussed, if we act differently now. I do not think we are prepared to take that step.
Respondents, however, would hark back to the American Supreme Court doctrine in
Mellon v. Frothingham, 10 with their claim that what petitioners possess "is an interest
which is shared in common by other people and is comparatively so minute and
indeterminate as to afford any basis and assurance that the judicial process can act on it."
11 That is to speak in the language of a bygone era, even in the United States. For as
Chief Justice Warren clearly pointed out in the later case of Flast v. Cohen, 12 the barrier
thus set up if not breached has definitely been lowered. 13 The weakness of these
particular defenses is thus quite apparent. 14

2. Now as to the merits. The success of petitioners would signify that the referendum
scheduled for February 27 of this year will not take place. Believing as I do that the
opportunity of the people to give expression to their views is implicit in the fundamental
principle that sovereignty resides in them, I am unable to find sufficient merit in this
petition. For all its logical and plausible aspect, it still does not admit of doubt, in my
mind at least, that a conclusion different from that reached by this Court would be
attended by deplorable consequences. For one thing, it would impress with the stigma of
illegality the viable procedure that under the stern realities of the present is the only one
in the horizon for ascertaining the desires of the people. Moreover, under a republican
regime, even under normal times, their role is limited to the choice of public officials,
thereafter to be held to accountability through their informed, even immoderate, criticism.
Now with this proposed referendum, they will be sounded out on what they think and
how they feel on matters of significance. Even assuming its consultative character, it
remains at the very least a step in the right direction. It may not go far enough, but there
is progress of sorts that hopefully may eventually lead to the goal of complete civilian
rule. It stands to reason, at least from my standpoint, that when people are thus allowed to
express their wishes and voice their opinions, the concept of popular sovereignty, more so
under crisis conditions, becomes impressed with a meaning beyond that of lyric liturgy or
acrimonious debate devoid of illumination. Nor is this to discern new waves of hope that
may ultimately dissolve in the sands of actuality. It is merely to manifest fidelity to the
fundamental principle of the Constitution. It dates back to the American Declaration of
Independence of 1776. The government it sets up derives its just powers from the consent
of the governed. The basis of republicanism, to paraphrase Lerner, is that the majority
will shall prevail, the premise being that an ordinary citizen, the common man, can be
trusted to determine his political destiny. 15 Thereby, as Bryn-Jones pointed out, the
controlling power, the governmental authority in the language of the Constitution, is
vested in the entire aggregate of the community. 16 It is in that sense, as Justice Laurel
stressed in Moya v. Del Fierro, 17 that an "enfranchised citizen [is] a particle of popular
sovereignty and [is] the ultimate source of established authority." 18There is reliance
likewise to this excerpt from the eloquent opinion of Justice Jackson in West Virginia
State Board of Education v. Barnette: 19 "There is no mysticism in the American concept
of the State or of the nature or origin of its authority. We set up government by consent of
the governed, and the Bill of Rights denies those in power any legal opportunity to coerce
that consent. Authority here is to be controlled by public opinion, not public opinion by
authority." 20 If that is true of the United States, so should it be in our land. It caters to
man's fundamental yearning for some degree of participation in the process of reaching
fateful decisions. While courts have to deal with the necessities of their time, the idea
should remain untarnished.

3. It follows therefore that the will of the people given expression, even in an unofficial
manner but accurately ascertained, is impressed with a decisive significance. It is more
than just a foundation for societal or political development. Whether appropriate, it
determines what is to be done. Its significance is vital, not merely formal. It is
understandable then why in Javellana, 21 one of the issues passed upon by this Court is
the effect of acquiescence by the people to present Constitution even on the assumption
that it was ratified in accordance with the 1935 Charter. It may not be amiss to recall what
I did state on that point in my separate opinion: "Nor is the matter before us solely to be
determined by the failure to comply with the requirements of Article XV. Independently
of the lack of validity of the ratification of the new Constitution, then this Court cannot
refuse to yield assent to such a political decision of the utmost gravity, conclusive in its
effect. Such a fundamental principle is meaningless if it does not imply, to follow Laski,
that the nation as a whole constitutes the "single center of ultimate reference," necessarily
the possessor of that "power that is able to resolve disputes by saying the last word." If
the origins of the democratic polity enshrined in the 1935 Constitution with the
declaration that the Philippines is a republican state could be traced back to Athens and to
Rome, it is no doubt true, as McIver pointed out, that only with the recognition of the
nation as the separate political unit in public law is there the juridical recognition of the
people composing it "as the source of political authority." From them, as Corwin did
stress, emanate "the highest possible embodiment of human will," which is supreme and
must be obeyed. To avoid any confusion and in the interest of clarity, it should be
expressed in the manner ordained by law. Even if such were not the case, however, once
it is manifested, it is to be accepted as final and authoritative. The government which is
merely an agency to register its commands has no choice but to submit. Its officials must
act accordingly. No agency is exempt from such a duty, not even this Court. In that sense,
the lack of regularity in the method employed to register its wishes is not fatal in its
consequences. Once the fact of acceptance by the people of a new fundamental law is
made evident, the judiciary is left with no choice but to accord it recognition. The
obligation to render it obeisance falls on the courts as well." 22

To such a cardinal jural postulate is traceable my concurring and dissenting opinion in

Tolentino v. Commission on Elections: 23 "It was likewise argued by petitioner that the
proposed amendment is provisional and therefore is not such as was contemplated in this
article. I do not find such contention convincing. The fact that the Constitutional
Convention did seek to consult the wishes of the people by the proposed submission of a
tentative amendatory provision is an argument for its validity. It might be said of course
that until impressed with finality, an amendment is not to be passed upon by the
electorate. There is plausibility in such a view. A literal reading of the Constitution would
support it. The spirit that informs it though would not, for me, be satisfied. From its
silence I deduce the inference that there is no repugnancy to the fundamental law when
the Constitutional Convention ascertains the popular will. In that sense, the Constitution,
to follow the phraseology of Thomas Reed Powell, is not silently silent but silently vocal.
What I deem the more important consideration is that while a public official, as an agent,
has to locate his source of authority in either Constitution or statute, the people, as the
principal, can only be limited in the exercise of their sovereign powers by the express
terms of the Constitution. A concept to the contrary would to my way of thinking be
inconsistent with the fundamental principle that it is in the people, and the people alone,
that sovereignty resides." 24

As it was then, so, to my way of thinking, should it be now. With such a decisive
consideration in mind, it is difficult to conclude that the infirmities imputed to the
challenged Presidential decrees are fatal. They do not suffer from the corrosion of
substantial constitutional infractions. It is in that sense that I do not feel called upon to
inquire into the nature of the authority conferred on the incumbent President under the
Transitory Provisions, whether purely executive as contended by petitioners or both
executive and legislative as argued by respondents. I leave that question for another day.
What cannot be ignored is that with a National Assembly in existence but not convened,
it is only the Executive that can perform those essential and indispensable functions of
dealing with the actual conduct of public affairs. That is the reality that stares us in the
face. To deny his power to issue decrees and to appropriate public funds is thus to assure
the paralyzation and impotence of government. Precisely then, if a referendum may lend
itself to a reappraisal of the situation, by all means let it be conducted. This is not to deny
that the judicial power to call a halt exists. It is merely to stress that it should be exercised
with the utmost reluctance as is required by deference to the concept of popular
sovereignty. To be more specific about the matter, this Tribunal should refrain from
making use of that prerogative now.

Parenthetically, it may be observed that in 1973 when the Javellana decision was
promulgated, I could not detect sufficient evidence as to the fact of acquiescence to the
present Constitution. That was why I had to dissent from the judgment of the Court
dismissing the various petitions assailing the validity of Proclamation No. 1102. Since
then, with well-nigh two years having gone by, it is quite evident that the matter is no
longer open to doubt. Under the standard set forth in the leading case of Taylor v.
Commonwealth, 25 decided at the beginning of the century, no other conclusion is
allowable. The present Constitution "having been thus acknowledged and accepted by the
officers administering the government and by the people ... and being, as a matter of fact,
in force throughout ..., and there being no government in existence ... opposing or
denying its validity, [it] is the only rightful, valid, and existing Constitution ... and that to
it all the citizens ... owe their obedience and loyal allegiance." 26

4. There is finally, according to petitioners, a deficiency that mars the proposed

referendum. It deserves serious consideration. It is their submission that under martial
law, with people denied their basic freedoms, particularly their freedoms of expression
and assembly, it cannot be validly held. In my concurring and dissenting opinion in
Planas v. Commission on Elections 27 I express the apprehension that voters cannot
"freely register their will," as "dissent may be fraught with unpleasant consequences." 28
Further: "While it is to be admitted that the Administration has done its best to alleviate
such a state of mind, I cannot in all honesty say, although I am prepared to concede that I
may labor under a sense of undue pessimism, that the momentum of fear necessarily
incident to such a regime has been reduced to a minimum." 29 There is, I would say, still
that feeling of insecurity as to what the morrow may bring, not from high and responsible
officials, of course, but from those much lower in the ranks, whether in the armed forces
or in the civilian component. Abuses, in the nature of things, cannot be completely
curbed. In that sense, my misgivings are not unjustified. Nonetheless, I gain reassurance
from the fact that as I did admit in my concurring and dissenting opinion in Aquino v.
Enrile, 30 "the Philippine brand of martial law [is] impressed with a mild character."
31There is by and large a high degree of confidence in the capabilities and moderation of
those entrusted with its implementation. To cite only an instance, it is a rare and
impressive tribute to the Judge Advocate General, Justice Guillermo S. Santos of the
Court of Appeals, that in a manifesto of reputable citizens both from the clergy and the
laity, with a number of civic and political leaders, the suggestion was made that the
conduct of the referendum should be under the auspices of a Committee of three with him
as one of the members. 32 I am not then in a position to press with the same degree of
conviction my original stand. I would not be justified though in making such a concession
if the constitutional rights to freedom of expression and the freedom of assembly may not
be availed of. They are once again enshrined in our Bill of Rights — and in the very same
language. If the Constitution is now fully in force, they must be allowed full operation. I
do not deny that they are not absolute in character, but the limitation is supplied by the
clear and present danger test. Nor do I deny that under emergency conditions, it is not
unreasonable to enlarge the area of state authority, to seek national cohesiveness, and to
discourage dissent. What I cannot sufficiently stress though is that dissent, even during
such periods of stress, is not disloyalty, much less subversion. Thus the citizens can
invoke in the exercise of the freedoms of expression and of assembly not the challenged
decrees but their constitutional rights. Moreover, as thus construed as they should be to
avoid any taint of invalidity, they may be pulled back from the edge of the constitutional
precipice. It would follow, and that to my mind would be to the credit of the Executive,
that even in these trying and parlous times, there is adherence to a tolerant,
compassionate view of life.

5. That is about all. In writing this brief concurrence, I had nothing in mind but to explain
why I had to vote the way I did. It is quite obvious that for me the old landmarks of the
law are still there to serve as guides, that precedents do serve as factors for continuity and
stability not to be ignored but also not to be slavishly obeyed. For in constitutional law
more than in any other branch of juristic science, much depends on the immediacy and
the reality of the specific problems to be faced. Hence it has been truly said in days of
crisis or of emergency, to stand still is to lose ground. Nonetheless, one has always to
reckon with the imponderables and the intangibles, ever so often elusive to our
understanding and disheartening to our deeply-cherished convictions. For he has no
choice but to comply as best he can with the duty to decide in accordance with legal
norms with roots that go far deeper than his personal preferences and predilections. So it
has to be.

BARREDO, J., concurring:

I concur in the judgment dismissing the petition. The following opinion is without
prejudice to a more extended one in due time.

Consistently with my opinion in the habeas corpus or martial law cases, the Court has
jurisdiction over the instant petition even if, as will be shown later, the matter of calling a
referendum is by nature a political matter. Anent the possible contention that the title of
President Marcos as President of the Philippines may not be collaterally attacked and that
the proper remedy is quo warranto, under the authority of Nacionalista Party vs. Felix
Angelo Bautista, 85 Phil. 101, I concede that the remedy of prohibition is not altogether
improper.

The first ground of the petition is that President Marcos does not have any legal authority
to call the referendum because he is not holding any public office. The specific arguments
supporting this contention are that (1) Marcos is no longer President under the 1935
Constitution; (2) he is not President nor Prime Minister under the 1973 Constitution; (3)
he is not the "incumbent President" contemplated in the transitory provisions of the new
constitution; and, in any event, his transitory powers as "incumbent President" have
already lapsed. The second and third grounds are that President Marcos does not have any
power to legislate nor the authority to issue proclamations, decrees and orders having the
force of law, hence he cannot issue decrees appropriating funds and, therefore, the decree
calling for the referendum is void.

It is my considered conviction that these grounds are untenable.

President Marcos' authority to continue exercising the powers of the President under the
1935 Constitution and to exercise those of President and Prime Minister under the 1973
Constitution is specifically provided for in Sec. 31 Article XVII of the 1973 Constitution.
It is to me unquestionable that by virtue of these provisions, President Marcos' being the
President of the Philippines, is constitutionally indubitable.

It was precisely because upon the effectivity of the New Constitution President Marcos
would cease to be President under the 1935 Charter and would not then be occupying any
office under the New Constitution, and, on the other hand, there would yet be no new
president and no prime minister, that he, as "incumbent President" at that time had to be
expressly granted the authority to exercise the powers of the President under the Old
Constitution as well as those of the President and the Prime Minister under the new one,
pending the election of these officers. Necessarily, there had to be a head of government
until the new parliamentary system could be properly installed, and whether or not it
would have been wiser to confer the powers in question on some other official or body is
not for the Court to decide. In the meantime, the title of President is the most appropriate
to be held by him.

The contention that President Marcos may not be considered the "incumbent President"
referred to in the Constitution because what is contemplated therein is the one who would
be in office at the time of its ratification and that pursuant to the Javellana decision of the
Supreme Court, the constitution has not yet been ratified, whereas, on the other hand, the
term of President Marcos under the 1935 Constitution expired on December 30, 1973, is
predicated wholly on the old theory advanced in the habeas corpus cases and which has
already been discarded in the opinions therein, although perhaps, it is best that the Court
made a categorical ruling which would clear all doubts on the matter and thereby do away
with this issue once and for all. To that end, I would say that as far as the Court is
concerned, its holding in Javellana that "there is no more judicial obstacle to the New
Constitution being considered as in force and effect" should be understood as meaning
that the charter is as valid and binding for all purposes as if it had been ratified strictly in
accordance with the 1935 Constitution as petitioners would argue it should have been.

The problem of constitutional construction raised in the petition is, does the Constitution
contemplate that the interim assembly created by it would meet immediately and
forthwith elect the new President and the Prime Minister? If this question were to be
answered in the light of normal conditions, there could be some plausibility in suggesting
an affirmative response, albeit not altogether conclusive. But no one can ever escape the
fact that the Constitution was formulated and approved under abnormal and exceptional
circumstances. The members of the convention were well cognizant of the fact that the
country was then as it still is under martial law and that normal processes of government
have not been in operation since its proclamation. We must assume that as practical men
they knew that the procedure of shifting from the presidential to the parliamentary system
would have to be reconciled with the demands of the martial law situation then obtaining.
Above all it must have been obvious to the delegates that under martial law, President
Marcos had in fact assumed all the powers of government. In other words, it must have
been evident to them from what was happening that the immediate convening of the
legislative body would not be compatible with the way President Marcos was exercising
martial law powers.

It is but proper, therefore, that these transcendental historical facts be taken into account
in construing the constitutional provisions pertinent to the issue under discussion. As I see
it, given the choice between, on the one hand, delaying the approval of a new charter until
after martial law shall have been lifted and, on the other, immediately enacting one which
would have to give due allowances to the exercise of martial law powers in the manner
being done by President Marcos, the convention opted for the latter. To my mind, it is
only from this point of view that one should read and try to understand the peculiar and
unusual features of the transitory provisions of the New Constitution.

Otherwise, how can one explain why, instead of giving the interim Assembly itself the
power to convene motu propioas was being done in the regular sessions of the old
legislature and as in the case of the regular National Assembly provided therein, said
power has been granted by the Constitution to the incumbent President? Very
significantly in this connection, whereas Section 1 of Article XVII very explicitly uses
the word "immediately" in reference to the existence of the interim Assembly, there is no
time fixed as to when the incumbent President should initially convene it. Withal, even
the authority to call for the election of the new President and the Prime Minister was not
lodged in the assembly but again in the incumbent President. Is it not logical to conclude
that the reason behind all these unprecedented provisions is to avoid putting any
hindrance or obstacle to the continued exercise by President Marcos of the powers he had
assumed under his martial law proclamation and his general orders subsequent thereto? If
the Convention were differently minded, it could have easily so worded the said
provisions in the most unequivocal manner. And what makes this conclusion definite is
precisely the insertion in the transitory provisions of Section 3(2) of Article XVII which
makes all the proclamations, decrees, orders and instructions of the incumbent President
part of the law of the land, which, in my considered view, is the Convention's own
contemporary construction that during martial law, the administrator thereof must of
necessity exercise legislative powers particularly those needed to carry out the objectives
of the proclamation, with no evident limitation except that no particular legislation not
demanded by said objectives shall infringe Section 7 of Article XVII which reserves to
the regular National Assembly the power to amend, modify or repeal "all existing laws
not inconsistent with this Constitution." Neither paragraph (1) nor paragraph (2) of
Section 3 of the same article would have been necessary if the convention had intended
that the interim National Assembly would be immediately convened and the new
President and the Prime Minister would be forthwith elected. Indeed, it is implicit in the
provisions just mentioned that the delegates had in mind that there would be a
considerable time gap between the going into effect of the New Constitution and the
election of the new President and the Prime Minister. And they could not have been
thinking merely of the possibility of protracted delay in the election of said officers
because the Assembly itself, once convened, could have readily provided in the exercise
of its inherent powers for what might be required in such a contingency.

In support of the foregoing views, I invoke the testimonies of Delegates Aruego, Tupaz,
Ortiz, Pacificador and others which were quoted during the hearing and the deliberations.
I will quote them in my extended opinion.

It must be borne in mind that once martial law is proclaimed, all the powers of
government are of necessity assumed by the authority that administers the martial law
and the operation of the regular government, including its legislature and its judiciary, is
subjected to its imperatives. Of course, the Constitution itself is not ousted, but by the
power that the Constitution itself vests in the Executive to issue the proclamation, it
yields the application and effects of some of its provisions to the demands of the
situation, as the administrator may in his bona fide judgment so determine. Otherwise
stated, since laws and regulations would be needed to maintain the government and to
provide for the safety and security of the people, the orders of the administrator are given
the force of law. In that sense, the administrator legislates. If he can legislate, so also he
can appropriate public funds.

To my mind, these postulates underlie the provisions of Sec. 3(2) of Article XVII. To
reiterate, the said provision recognizes legislative power in the incumbent President and
the scope of said powers is coextensive with what might be needed, primarily according
to his judgment, to achieve the ends of his martial law proclamation, and in all other
respects, they are limited only by the provisions of Sec. 7 of the same article, but,
evidently, even this limitation must be reconciled with the fundamental criterion that the
New Constitution was conceived, formulated and enacted with the basic objective of
establishing the New Society for which martial law was proclaimed. In other words, since
the known broad objective of Proclamation 1081 is not only to contain or suppress the
rebellion but also to reform our society and recognize and restructure our government and
its institutions as the indispensable means of preventing the resurgence of the causes of
the rebellion, it is obvious that any decree promulgated by the President in line with these
purposes, including those appropriating the necessary funds therefor, cannot be assailed
as beyond the pale of the Constitution.

There is nothing in the letter of the Constitution concerning referendums. But it would be
absurd to think that such paucity may be deemed to indicate that the government has no
authority to call one. If there is anything readily patent in the Constitution, it is that it has
been ordained to secure to the people the blessings of democracy and that its primordial
declared principle is that "sovereignty resides in the people and all government authority
emanates from them." Of course, it establishes a representative democracy, but surely,
there is and there could be no prohibition in it against any practice or action that would
make our government approximate as much as possible a direct one, which is the ideal.
On the contrary, it is self-evident that conditions and resources of the country permitting,
any move along such a direction should be welcome. In fact, at this time when there are
fears about what some consider as an emerging dictatorship, referendums in the manner
contemplated in the impugned presidential decrees provide the means for the most
vigorous assertion by the people of their sovereignty, what with the participation therein
of even the fifteen-year olds and non-literates and the concrete efforts being exerted to
insure the most adequate submission and the utmost freedom of debate and consensus as
the emergency situation would permit and to have the fairest recording and tabulation of
the votes. Granting the good faith of everyone concerned, and there is absolutely no
reason why it should be otherwise, a unique exercise of essential democratic rights may
be expected, unorthodox as the experience may be to those who cannot understand or
who refuse to understand martial law Philippine style. In principle, to oppose the holding
of a referendum under these circumstances could yet be a disservice to the nation.

A plebiscite or election of officials prescribed by the Constitution for specific occasions

must be distinguished from a referendum, which is an inherent constitutional democratic
institution, perhaps not normally convenient to hold frequently or regularly, but which in
certain periods in the life of the nation may be indispensable to its integrity and
preservation. The administration of martial law is usually considered as nothing more
than submission to the will of its administrator. Certainly, there can be no objection to
said administrator's holding a dialogue with the people and adopting ways and means of
governing with their full acquiescence manifested in whatever happens to be the most
feasible way of doing it. If it be assumed that a referendum under the aegis of martial law
may not be an ideal gauge of the genuine will of all the people, no one would deny that if
it is undertaken in good faith, and giving allowances to the imperatives of the situation, it
can somehow reflect their sentiment on the grave issues posed. Besides, whether or not
the people will enjoy sufficient and adequate freedom when they cast their votes in the
challenged referendum is a question that is unfair to all concerned to determine a priori
and beforehand. In any event, it is history alone that can pass judgment on any given
referendum.
Upon the other hand, whether a referendum should be called or not and what questions
should be asked therein are purely political matters as to which it does not appear to be
proper and warranted for the Court to exert its judicial power in the premises. To be sure,
the referendum in question could be a waste of the people's money in the eyes of some
concerned citizens, while it may be a necessary and fruitful democratic exercise in the
view of others, but what is certain is that considering its nature and declared purposes and
the public benefits to be derived from it, it is the better part of discretion, granted to it by
the Constitution for the Court to refrain from interfering with the decision of the
President.

The claim that the Comelec may not be considered as the independent and impartial
guardian of the results of the scheduled referendum has no basis in fact. From extant
circumstances, the recent activities of that body have not been characterized by any
perceptible design to influence such results in any direction. Referendums being, as they
are, in the Philippines today, in the nature of extra-constitutional innovations, it seems but
natural and logical at this stage that the Comelec has been assigned to undertake the
functions of formulating the questions, which, after all has been done after a more or less
nationwide gathering of opinions, and of subsequently explaining them to the people to
best enable them to vote intelligently and freely.

I see no cause to be apprehensive about the fate of those who might wish to vote "no." To
start with, the voting will be secret and is guaranteed to be so. And when I consider that
even a strongly worded petition to enjoin the referendum has been openly ventilated
before the Supreme Court with full mass media coverage giving due emphasis to the
points vehemently and vigorously argued by Senator Tañada, who did not appear to be
inhibited in the expression of his views, I cannot but be confirmed in the conviction that
the apprehensions of petitioners are unfounded.

Under the New Constitution, every citizen is charged with the duty to vote. To vote in a
referendum is no less a sacred civic obligation than to vote in an election of officials or in
a plebiscite. The impugned decrees cannot therefore be constitutionally faulted just
because they provide penalties for those who fail to comply with their duty prescribed in
no uncertain terms by the fundamental law of the land.

Makalintal, C.J., Antonio, Esguerra and Fernandez, JJ., concur.

ANTONIO, J., concurring:

The only rational way to ascertain the meaning and intent of paragraphs 1 and 2 of
Section 3 of Article XVII (transitory provisions) of the New Constitution is to read its
language in connection with the known conditions of affairs out of which the occasion for
its adoption had arisen, and then construe it, if there be any doubtful expression, not in a
narrow or technical sense, but liberally, giving effect to the whole Constitution, in order
that it may accomplish the objects of its establishment. For these provisions can never be
isolated from the context of its economic, political and social environment.

The New Constitution was framed and adopted at a time of national emergency. The
delegates to the Constitutional Convention realized that the rebellion, lawlessness and
near anarchy that brought about the declaration of martial law, were mere symptoms of a
serious malady in the social order. They knew that the revolutionary reforms made by the
incumbent President thru his decrees, orders and letters of instruction, such as the
emancipation of the tenant-farmer from his bondage to the soil, reorganization of
government, eradication of graft and corruption and measures to bridge the gap between
the rich and the poor, were indeed imperative, if the exigency that brought about the
military necessity was to be overcome, civil order restored, and the foundations of
genuine democracy established. The actions of the incumbent President in promulgating
those measures legislative in character during martial law was not without legal and
historical basis. Democratic political theorists traditionally have assumed the need in time
of emergency to disregard for the time being the governmental process prescribed for
peacetime and to rely upon a generically different method of government — the exercise
by the Chief Executive of extraordinary or authoritarian powers, to preserve the State and
the permanent freedom of its citizens.1

Thus, in my concurring opinion in Javellana, et al. v. Executive Secretary, et al.,2 it was

stated that "to preserve the independence of the State, the maintenance of the existing
constitutional order and the defense of the political and social liberties of the people, in
times of grave emergency, when the legislative branch of the government is unable to
function or its functioning would itself threaten the public safety, the Chief Executive
may promulgate measures legislative in character, ...". We considered then that the
proclamation of martial rule marked the commencement of a crisis government and crisis
government in a constitutional democracy entails the concentration and expansion of
governmental power and the release of the government from the paralysis of
constitutional restraints in order to deal effectively with the emergency.3 This was the
view of the members of the Constitutional Convention when they framed the New
Constitution.

In Our concurring opinions in Aquino, et al. v. Enrile et al.,4 We declared that on the
basis of the deliberations of the 166-man Special Committee of the Constitutional
Convention, which was authorized to make the final draft of the Constitution, during their
session on October 24, 1972, the Convention expressly recognized the authority of the
incumbent President during martial law to exercise legislative powers not merely in the
enactment of measures to quell the rebellion but, more important, of measures urgently
required to extirpate the root causes of the social disorder which gave rise to the
exigency.

In was with a view of the continuance of the exercise of these extraordinary powers that
the Convention provided in paragraph 1, Section 3, of Article XVII of the transitory
provisions of the New Constitution that: "He (the incumbent President) shall continue to
exercise his powers and prerogatives under the nineteen hundred thirty-five
Constitution ..." and in paragraph 2 thereof also provided that: "All proclamations, orders,
decrees, instructions, and acts promulgated, issued, or done by the incumbent President
shall be part of the law of the land and shall remain valid, legal, binding and effective
even after lifting of martial law or ratification of this Constitution, unless modified,
revoked, or superseded by subsequent proclamations, orders, decrees, instructions, or
other acts of the incumbent President, or unless expressly and explicitly modified or
repealed by the regular National Assembly."

The conferment upon the incumbent President of those extraordinary powers necessarily
implies that in view of the emergency, there might be a deferment in the convening of the
interim National Assembly and, therefore, it was necessary that he be equipped with
adequate legal authority and power to carry the body politic through the crisis.

Indeed, the need of the times was for a more expeditious mode of decision-making and
policy formulation. The insurgency and the secessionist movement compounded by a
world-wide economic inflation and recession generated problems which must be solved
with immediacy and with policies that are flexible and responsive to the imperatives of
the crisis.

II

The impossibility for the Convention to determine a priori, in view of the emergency
situation, the time when conditions shall have sufficiently normalized to permit the
convening of the interim Assembly, precluded them from fixing in the transitory
provisions of the Constitution a definite period when the incumbent President shall
initially convene that body. It was a matter which was wholly confided by the
Constitution to the incumbent President. Since the exercise of this power was committed
to the incumbent President in all the vicissitudes and conditions of the emergency, it has
necessarily given him ample scope for the exercise of his judgment and discretion. It was
a political decision for which he is directly responsible to the people to whom he is
accountable and for whose welfare he is obliged to act. As stated in the separate opinion
of Justice Castro, concurred in by the Chief Justice, Justices Barredo, Esguerra,
Fernandez and the writer of this opinion, "The peripheral matter whether President
Marcos should now or soon convene the interim National Assembly is completely outside
the competence of the Supreme Court to resolve as ... it is a political question addressed
principally, basically, and exclusively to the President and the Filipino people."

III

Neither can it be asserted that the exercise by the incumbent President of those
extraordinary powers is necessarily inconsistent with and an absolute contradiction to the
existence of a democracy.5 When the exercise of such authoritarian powers is expressly
conferred upon him by the Constitution, it represents the will of the sovereign people as
the source of all political power. So long as the power is used to fulfill its true function in
realizing the ethical purposes of the community, which is to ensure the economic and
social well-being of its citizens and to secure to them justice, such power is employed for
constructive and moral purposes. Its exercise is, therefore, legitimate as it represents the
collective will of the people themselves. It is, therefore, logical that the incumbent
President consult the people on issues vital to the public interest even through a
consultative referendum. Such useful and healthy contact between the government
administrator and the citizenry is the more necessary in a period of martial law, because
the equal participation of the citizenry in the formulation of the will of the State and in its
fundamental political decisions ensures the unity of the people in their efforts to surmount
the crisis. The success then of the political leadership in leading the nation through the
emergency would depend on its ability to convince and persuade, not to dictate and
coerce; to enlist, not to command; to arouse and muster the energies, loyalties, and, if
need be, the sacrifices of the people. As Leibholz aptly observed, "the one essential
presupposition of democracy is that the people as a political unity retains its sovereignty,
and that the majority of the active citizens can express their will in political freedom and
equality."6

IV

It is, however, asserted that the questions asked may not logically be the subject of a
referendum. Thus, it is claimed that some of the questions contemplate vital changes in
the existing form of local government, which changes, under Sections 2 and 3 of Article
XI of the 1973 Constitution, must be submitted to the electorate for ratification in a
plebiscite called for that purpose. Admittedly, the question of the coming referendum
asked the voters in the Greater Manila Area, do not contain a full text of the law proposed
for the ratification or rejection by the people. It is, therefore, not a plebiscite
contemplated by the aforecited Sections 2 and 3 of Article XI of the New Constitution but
merely a referendum, advisory or consultative in character.

Political democracy is essentially a government of consensus. The citizen has "a right and
a duty to judge his own concerns, his acts and their effects, as they bear on the common
good. If they entail the common acts of the community, he again has the duty and right to
contribute to the common deliberation by which the acts of the community are decided."7
Common deliberation or mutual persuasion occurs on all levels of society, and as a result
thereof a common judgment or consensus is formed on those matters which affect the
democratic polity. This is based on the premise that sovereignty in a political democracy
resides in the people and that, their government is founded on their consent. It is in the
formulation of this consensus whether in an election, plebiscite, direct legislation or
advisory referendum or consultation, that the political community manifests its consent or
dissent. The national leadership as the elected representative of the national community
has the duty to be responsive and responsible to this sovereign will. It has been said that
the President "speaks and acts as the people's agent. He lays claim to a mandate from
them for his acts. Authority descends upon him from the nation, not from the other organs
of government."8 In his dual role as Chief Executive and Legislator under martial law,
the incumbent President has, therefore, a greater degree of accountability to the political
community. To discharge effectively that responsibility, he has to ascertain the people's
consensus or common judgment and to act in accordance therewith. Only then can it be
said that his actions represent the people's collective judgment and, therefore, entitled to
their whole-hearted support. The coming referendum is a national undertaking affecting
the future of the country and the people. It, therefore, requires the involvement of every
Filipino. By participating in the national consultation or advisory referendum of February
27, 1975, the Filipino people will prove to the rest of the world their maturity and
capability as a people to make major decisions.

It is nevertheless asserted that a referendum held under present existing circumstances is

of no far-reaching significance because it is being undertaken in a climate of fear. The
infirmity of such a priori judgment is evident from the fact that it is not based on reality.
It betrays a lack of awareness of the strength and character of our people. It is
contradicted by past experience. There has been a deliberate policy to lift gradually the
strictures on freedom attendant to a regime of martial law. Thus, State restrictions on
press freedom had been removed, except over publications which, because of their
subversive or seditious character, are deemed incompatible with the public safety.
Freedom of discussion and of assembly are now encouraged. No less than the incumbent
President of the Philippines has underscored the need for an accurate and honest canvass
of the people's sentiments. As the nation's leader, he is called upon to make bold decisions
in the face of the grave problems confronting the nation, but he is convinced that such
decisions cannot be effective unless rooted in the will and reflective of the true sentiments
of the sovereign people.

Given the determination of the incumbent President to ascertain the true sentiments of the
people, and considering the measures instituted by the Commission on Elections to
safeguard the purity of the ballot, there appears, therefore, no basis for petitioners'
apprehension that the forthcoming referendum will not reflect the people's untrammeled
judgment.

The foregoing opinion contains in brief the reasons for my concurrence with the main
opinion and the separate opinions of Justices Castro and Barredo.

FERNANDEZ, J., concurring:

The present case calls for an interpretation of the New Constitution, particularly its
Transitory Provisions. Privileged as I was to be a member of the Constitutional
Convention that drafted the Constitution, I feel it my duty to write this concurring opinion
in the hope that I may be able to shed light, even if only modestly, on the fundamental
questions involved in this case, on the basis of what I personally know and in the light of
the records of the Convention, to show the understanding and intention of the Delegates
when they discussed and voted on the constitutional provisions involved in this case.

The pertinent provisions of the New Constitution upon which the parties in this case base
their respective claims are:

ARTICLE XVII
TRANSITORY PROVISIONS
 SECTION 1. There shall be an interim National Assembly which shall exist
immediately upon the ratification of this Constitution and shall continue until the
Members of the regular National Assembly shall have been elected and shall
have assumed office following an election called for the purpose by the interim
National Assembly. Except as otherwise provided in this Constitution, the
interim National Assembly shall have the same powers and its Members shall
have the same functions, responsibilities, rights, privileges, and disqualifications
as the regular National Assembly and the Members thereof.

Sec. 2. The Members of the interim National Assembly shall be the incumbent
President and Vice-President of the Philippines, those who served as President of
the Nineteen hundred and seventy-one Constitutional Convention, those
Members of the Senate and the House of Representatives who shall express in
writing to the Commission on Elections within thirty days after the ratification of
this Constitution their option to serve therein, and those Delegates to the
nineteen hundred and seventy-one Constitutional Convention who have opted to
serve therein by voting affirmatively for this Article. They may take their oath of
office before any officer authorized to administer oath and qualify thereto, after
the ratification of this Constitution.

Sec. 3. (1) The incumbent President of the Philippines shall initially convene the
interim National Assembly and shall preside over its sessions until the interim
Speaker shall have been elected. He shall continue to exercise his powers and
prerogatives under the nineteen hundred and thirty-five Constitution and the
powers vested in the President and the Prime Minister under this Constitution
until he calls upon the interim National Assembly to elect the interim President
and the interim Prime Minister, who shall then exercise their respective powers
vested by this Constitution.

(2) All proclamations, orders, decrees, instructions, and acts promulgated, issued,
or done by the incumbent President shall be part of the law of the land, and shall
remain valid, legal, binding, and effective even after lifting of martial law or the
ratification of this Constitution, unless modified, revoked, or superseded by
subsequent promulgations, orders, decrees, instructions, or other acts of the
incumbent President, or unless expressly and explicitly modified or repealed by
the regular National Assembly.

xxx xxx xxx

The discussion on these Transitory Provisions in the plenary session1 of the

Constitutional Convention on October 18, 19 and 20, 19722 and the votes thereon clearly
show:

1. That the determination of the date the interim National Assembly should be convened
was left to the judgment of the President, the country being, as it still is, under martial
law;
2. That the incumbent President legally holds office as such having been authorized to
continue in office and to exercise not only the powers of the President under the 1935
Constitution but also those of the President and Prime Minister under the 1973
Constitution, from the time the New Constitution was ratified on January 17, 1973 until
the election of the interim President and interim Prime Minister which up to now has not
yet taken place; and

3. That included in the powers of the President under the 1935 Constitution and the
powers of the Prime Minister under the 1973 Constitution is the power to declare martial
law which in turn includes the power to make all needful rules and regulations with the
force and effect of law until the termination of the martial rule.

The minutes of the plenary session of the Convention of October 18, 1972 contain the
sponsorship speech of Delegate Yaneza, Chairman of the Committee on Transitory
Provisions. He described the proposed interimgovernment as a practical response to our
abnormal conditions presently obtaining in the country. He explained that in order to
effectively implement reform measures under the New Constitution, the nation should be
relieved of the burden of political and national elections during the transitory period. The
proposed interim National Assembly should therefore be composed of present elective
government officials, together with members of the Convention who would vote for its
creation and who could be of great help, in view of their familiarity with the provisions of
the New Constitution, in the enactment of reform measures to be approved by the interim
National Assembly pursuant to the mandates of the New Constitution. Delegate Yaneza
was interpellated by Delegates Suarez, Tupaz (A), Jamir, Ledesma (F), Alano, Sanchez,
Molina, Siguion Reyna, Pimentel, Laurel, Encarnacion, Pacificador, Ordoñez, Teves,
Gonzales, and his co-sponsor, Delegate Abundo.

The following exchange took place between Delegate Pimentel and Delegate Yaneza.

DELEGATE PIMENTEL (V): Thank you, Mr. Chairman. Now Section 3 has
been repeatedly the basis of certain questions. It says: "the incumbent President
of the Philippines shall initially convene." Will it not be better if we state here,
"shall immediately convene? Or we should provide a certain number of days or
months perhaps after the ratification of the Constitution when the President shall
initially convene the ad interim Assembly?

DELEGATE YANEZA: Yes, Your Honor, we can. We see your point and we
have discussed that in the Committee lengthily, but we arrived at a decision to
give our President flexibility regarding this particular matter, Your honor. And
we feel that we have decided this matter with some wisdom and with
consideration of the present situation obtaining in our country. (Emphasis
supplied)

The minutes of the plenary session of the Convention of October 19, 1972 show, among
others, the following:
Delegate Reyes (J) inquired whether the incumbent President of the Republic would be at
the same time President and the Prime Minister under the interim Government. Delegate
Yaneza answered affirmatively, adding that the President would actually have a triple
personality since he would exercise powers under the two Constitutions.

Delegate Garcia (L.M.) asked whether the interim Assembly could convene without the
approval of the President, to which Delegate Britanico (a co-sponsor) replied in the
negative.

Delegate Barrera (former Supreme Court Justice) was the first to speak against the
approval of Sections 1, 2 and 3 of the Transitory Provisions. He was interpellated by
Delegates Lim, Laggui and Raquiza. He was followed by Delegate Teves who also spoke
against the Transitory Provisions in question. Teves was interpellated by Delegates
Purisima, Adil, and Siguion Reyna. Delegate David (J) was the next opposition speaker.
He was in turn interpellated by Delegate Tupaz (A.).

On October 20, 1972, Delegate Concordia continued the opposition against the Transitory
Provisions, followed by Delegate Garcia (L.M.) who was interpellated by Delegates
Bersola Catan and Leido.

The chair then declared the period of rebuttal open and recognized Delegate Cuaderno as
first speaker. Cuaderno said that he favored the article on the interim Government mainly
because of the benefits of martial law.

Delegate Mutuc was the next rebuttal speaker. He confined his speech to the ratification
of all proclamations, orders, decrees, instructions and acts proclaimed, issued or done by
the present administration under martial law, contending that only the sovereign people
could pass judgment with finality on the same.

Delegate Fernandez followed. And the last rebuttal speaker was Delegate Serrano who
maintained that the interimNational Assembly was a necessity, to fill the vacuum of
constitutional processes that could arise should the President continue in office beyond
his tenure so that he could see the fruition of his efforts to restore normalcy in the
country.

The strongest attack on the Transitory Provisions was delivered by Delegate Jesus
Barrera of Rizal, a former Justice of the Supreme Court. This was rebutted by Delegate
Estanislao A. Fernandez of Laguna (now a humble member of this Court). Both speeches
covered all the principal points.

Modesty aside, we now beg to summarize their arguments, as follows:

Delegate Barrera: It is immoral for us to vote Yes, because that would be

practically electing ourselves as members of the interim National Assembly
when we were elected by the people only for the purpose of writing a
Constitution.
Delegate Fernandez: True, when we were elected, our mandate from the people
was only to write a new Constitution. But then there was no martial law yet.
With martial law, there arose a need for an interim Government, specifically, an
interim National Assembly. No one has previously received any mandate from
our people on who should be members of this interim National Assembly. No
one can say as of now whether it is immoral, and even moral, for us to vote Yes.
For my part, I will vote Yes because if I vote No, I would foreclose my right to
become a member of this interim National Assembly. I will vote Yes. Afterwards
I will consult with the people of the second district of Laguna on this matter. If
they say "Fernandez, you committed an error", then I will not take my oath.
However, if they say "Fernandez, you did well so that we can have an additional
representative in the interim National Assembly," then I will take my oath. By
that time, I think nobody can say it was immoral for me to have voted Yes. But
what is most important is whether or not the members of the interim National
Assembly succeed in the discharge of their duties and responsibilities. If they
fail, then our people and history will condemn them. If they succeed, our people
and history may commend them.

Delegate Barrera: As long as the interim National Assembly does not call for the
election of the regular members of the National Assembly, the members of this
interim Assembly will continue in office. For how long, it is not determined. In
view of the high salary of the members of the National Assembly (P60,000.00 a
year), there will be a temptation for them not to call for the election of the
members of the regular National Assembly, for a long, long time.

Delegate Fernandez: I disagree. We must grant that the members of the interim
National Assembly would be possessed with a sense of decency and patriotism
that would make them realize the impropriety of overstaying in office. And the
people will always be there to demonstrate thru the media and the streets to
compel the interim National Assembly to call for a regular election.

Delegate Barrera: But it is wishful thinking on the part of the members of the
convention to vote Yes and thereby become members of the interim National
Assembly because the President may unduly delay the lifting of martial law and
the calling of the National Assembly into a session. Then he will be President for
life.

Delegate Fernandez: What is the premise of the conclusion of the Delegate from
Rizal that the President will unduly delay the lifting of martial Law and the
calling of the interim Assembly into a session? Nothing. For my part, I wish to
advance a premise. If it is valid, the conclusion will be valid. I believe President
Marcos will want to go down in history as a good President. If this premise is
good and I believe it is, then he will not abuse. He will lift martial law and
convene the interim National Assembly at the proper time. He will not be
President for life.
Delegate Abundo then said that the committee had accepted the following amendment:
"(b) the Mariño amendment to Section 2 concerning "those members of both the Senate
and House of Representatives to express in writing to the Commission on Elections their
option to sit in the assembly within 30 days after the ratification of the Constitution, etc."
There being no objection, the above amendment was approved.

Delegate Yuzon proposed to fix the date of the election of the members of the regular
Assembly to "not later than May, 1976." Delegate Renulla proposed 1977 instead.
Delegate Yuson accepted the amendment, but when submitted to a vote, the amendment
was lost. Other amendments were proposed and were lost.

Delegate Pacificador moved to suspend the rules so that voting on the draft Transitory
Provisions could be considered as voting on second and third reading and proposed that
absent delegates be allowed to cast their votes in writing and deliver them to the
Committee on Credentials within 72 hours from that day.

The voting followed and the chair announced that by a vote of 274 in favor and 14
against the draft Transitory Provisions were approved on second and third reading. And
among the delegates that voted affirmatively in favor of these Transitory Provisions
whose interpretation is now the subject of the present case, were: Delegate Alonto
(former Senator from Lanao), Delegate Aruego (the well-known author on the framing of
the Constitution), Delegate Baradi (former Ambassador), Delegate Borra (former
COMELEC Chairman), Delegate Cuaderno (Member of the first Constitutional
Convention and Economist who recently passed away), Delegate De las Alas (former
Speaker of the House of Representatives), Delegate Laurel (who was President
Protempore of the Convention), Delegate Feliciano Ledesma (Dean of the College of
Law of San Beda), Delegate Oscar Ledesma (former Senator), Delegate Leido (former
Congressman and Secretary of Finance), Delegate Liwag (former Secretary of Justice and
Senator), Delegate Marino (former Executive Secretary and Secretary of Justice),
Delegate Mutuc (former Executive Secretary and Ambassador), Delegate Father Pacifico
Ortiz, Delegate Ceferino Padua (lawyer of former Senator Sergio Osmeña, Jr.), Delegate
Jose Ma. Paredes (former Justice of the Supreme Court), Delegate Godofredo Ramos
(veteran legislator), Delegate Sinco (former UP President and an authority on
Constitutional Law), Delegate Serrano (former Secretary of Foreign Affairs), Delegate
Sumulong (former Congressman), Delegate Sinsuat (former Member of the Cabinet),
Delegate Domingo Veloso (former Speaker Protempore of the House of Representatives),
Delegate Concordia(former Congressman), and Delegate Fernandez.

The foregoing, in our humble opinion, clearly show:

a) That when the Delegates to the Constitutional Convention voted on the Transitory
Provisions, they were aware of the fact that under the same, the incumbent President was
given the discretion as to when he could convene the interim National Assembly; it was
so stated plainly by the sponsor, Delegate Yaneza; as a matter of fact, the proposal that it
be convened "immediately", made by Delegate Pimentel (V), was rejected; and
b) That the incumbent President, or President Marcos to be more specific, was to
continue in the office as President with triple powers, upon and even after the ratification
of the New Constitution (January 17, 1973), and until the election of the interim President
and interim Prime Minister (which has not taken place even up to now), and even after
December 30, 1973 when the term of office of the incumbent President would have
expired under the 1935 Constitution. Hence, the incumbent President continued and
continues to be the constitutional and therefore de jure President of our country.

Subsequent events proved the wisdom of the decision of the Convention to give the
President a wide discretion when to convene the interim National Assembly.

a) For although the peace and order condition of the country has improved, it suffered a
relapse. The rebellion had not been completely quelled. Only last January 29, 1975, for
instance, the newspapers carried the report that according to President Marcos —
"Muslim insurgents had broken a truce in Mindanao and Sulu resulting in a fresh
outbreak of hostilities and in heavy casualties." ... "Muslim secessionists ... had taken
over three towns in Mindanao and Sulu." ... "An Armed Forces contingent of 42 men,
including three officers and the battalion commander, were wiped out in a surprise raid."

b) The oil crises which brought about worldwide inflation, recession and depression,
created problems which, according to economic experts, can be solved effectively only
with the President exercising legislative powers. A National Assembly would take a
longer period of time to be able to pass the necessary legislation to cope with this
worsening economic situation.

c) And what is most important is that in addition to the criticisms levelled in the
Convention against the membership of the interim National Assembly, the people
themselves expressed their disfavor against the interim Assembly by voting against its
immediate convening when they ratified the Constitution on January 10-15, 1973. In the
July 24, 1973 referendum, the Barangays reiterated their decision of January, 1973 to
suspend the convening of the interimNational Assembly. And in connection with the
forthcoming February 27, 1975 referendum, many members of this interim National
Assembly themselves asked that the question of whether or not the assembly should
immediately be convened be eliminated, as in fact it was eliminated, because the people
had already decided against the immediate convening of the interim Assembly.

Perhaps, it was a blessing in disguise that before this interim National Assembly could be
convened, it has been "fiscalized" in advance be our people. The people apparently have
expressed their distrust of this interim Assembly. This has become a standing challenge so
that when this interim Assembly is finally convened, its members may discharge their
duties and responsibilities in such a manner as to rebut successfully the basis for the
opposition of the people to its being convened in the meantime.

I have adverted to the proceedings of the Constitutional Convention because it supports

the literal interpretation of the Constitution which I now wish to make. The wording of
the New Constitution is, I believe, clear. Considering the condition in which the country
was at the time they approved the draft of the Constitution, it would have been
unthinkable for the Constitutional Convention not to have provided for a continuity in the
office of the Chief Executive.

It is equally unthinkable that the Constitutional Convention, while giving to the President
the discretion when to call the interim National Assembly to session, and knowing that it
may not be convened soon, would create a vacuum in the exercise of legislative powers.
Otherwise, with no one to exercise the law-making powers, there would be paralyzation
of the entire governmental machinery. Such an interpretation of the Transitory Provisions
is so absurd it should be rejected outright.

The original wording of Article XVII, Section 3(2) was that "all proclamations, orders,
decrees, instructions and acts promulgated, issued or done by the present administration
are hereby ratified and confirmed as valid." The words "ratified and confirmed" had been
changed into "shall be part of the law of the land," because under the first clause, it would
imply that the incumbent President did not have the authority to issue the proclamations,
orders, decrees, instructions and acts referred to. The Convention conceded that the
President had that power; and that is the reason why the phrase "shall be part of the law
of the land" was the one finally used.

Parenthetically, the Constitutional Convention itself recognized expressly the legislative

power of the incumbent President to enact an appropriation law when it asked and the
same was given by the incumbent President additional funds at the time when there was
already martial law.

I wish to add that this legislative power of the President under martial law should not be
limited to the legislative power under the old classical concept of martial law rule. For the
modern concept of martial law rule includes not only the power to suppress invasion,
insurrection or rebellion and imminent danger thereof, but also to prevent their
resurgence by the removal of the causes which gave rise to them; in a word, the reform of
our society.

In the speech that I delivered as a Delegate from Laguna in the Constitutional Convention
in its plenary session of October 20, 1972, I stated my firm conviction that President
Marcos would want to go down in history as a good President. This was not only a belief
but a challenge to him as well; and I am glad that subsequent events proved the
correctness of my stand. In one of his books, he himself said:

Moreover, we have embarked upon the experiment with the full knowledge that
its outcome will depend on most of us, not just a few who are managing a
"command society." The misgivings are large; the most outstanding is the fear of
a powerful few holding the many in subjection. But this fear misses the
particularity of Philippine martial law; it cannot and not exist without the clear
and not manipulated consent of the governed. Our people will accept only
sacrifices which are justifiable to them.
 It is more than a homily to assert that the New Society is not a promised land
that patiently awaits our arrival. More than a place in time or space, the New
Society is a vision in our minds: this can be realized only through the strength of
our resolution.

I am mindful of the fact that historically authoritarian regimes tend to outlive

their justification. I do not intend to make a permanent authoritarianism as my
legacy to the Filipino people. It is sufficiently clear to them, I believe, that
martial law is an interlude to a new society, that it is, in sum, a Cromwellian
phase in our quest for a good and just society. Certainly the enterprise is worth a
little sacrifice. (Marcos, The Democratic Revolution in the Philippines, 217-218,
[1974]).

And in his speech before government elective officials of Bulacan last January 29, 1975
as reported in the newspapers of last January 30, 1975, he solemnly said that should the
coming referendum fail to give him a vote of confidence, he would call the interim
National Assembly to session and that more than that, he would ask the Assembly to
immediately fix the date for elections of the members of the National Assembly; and that
in such a case, he would run in his district for a seat in the Assembly.

And so, it is now up for the people to speak in the coming February 27, 1975 referendum.
The information campaign should now go in full gear. The Commission on Elections
should emphasize the freedom of debate during the campaign; it should emphasize the
freedom of the people to express themselves not only in the debates but more so as they
cast their ballots, by safeguarding the secrecy of the ballot. And the Commission should
redouble its efforts to assure the people that there will be a true, correct and accurate
reading of the ballots, counting of the votes, and a report of the results of the referendum.

IN VIEW OF ALL THE FOREGOING, I repeat my concurrence in the decision of this

Court and in the separate opinions of Justices Castro and Barredo. The petition should
thus be dismissed, without costs.

TEEHANKEE, J., concurring and dissenting:

In concur with the main opinion insofar as it recognizes President Ferdinand E. Marcos as
the "incumbent President" and head of government who is vested with authority under
Article XVII, section 3 (1) of the Transitory Provisions of the 1973 Constitution to
"continue to exercise his powers and prerogatives under the 1935 Constitution and the
powers vested in the President and Prime Minister under this Constitution."

I am constrained, however, to dissent from the remaining portion thereof which dismisses
the petition, on the basis of serious constitutional grounds as briefly expounded
hereinafter.

1. It cannot be gainsaid that the single most important change effected by the 1973
Constitution is the change of our system of government from presidential to
parliamentary wherein the legislative power is vested in a National Assembly1 and the
Executive Power is vested in the Prime Minister who "shall be elected by a majority of all
the members of the National Assembly from among themselves."2 The President who is
likewise elected by a majority vote of all the members of the National Assembly from
among themselves "shall be the symbolic head of state."3

To carry out the "orderly transition from the presidential to the parliamentary system,"
section 1 of the Transitory Provisions decreed that:

SECTION 1. There shall be an interim National Assembly which shall exist

immediate upon the ratification of this Constitution and shall continue until the
Members of the regular National Assembly shall have been elected and shall
have assumed office following an election called for the purpose by the interim
National Assembly. Except as otherwise provided in this Constitution, the
interim National Assembly shall have the same powers and its Members shall
have the same functions, responsibilities, rights, privileges, and disqualifications
as the regular National Assembly, and the Members thereof. (Art. XVII)

Section 2 of the Transitory Provisions provides for the members of the interim National
Assembly. The Solicitor General stated at the hearing that the interim National Assembly
came into existence after the proclamation on January 17, 1973 of the ratification of the
Constitution per Proclamation No. 1102 when the members thereof took their oath of
office and qualified thereto in accordance with the cited section and continues in
existence at the present time without having been convened.

Petitioners raise the question as to the scheduled referendum called for February 27, 1975
that the calling of a referendum and the appropriation of funds therefor are essentially
legislative acts while the transitory powers and prerogatives vested in President Marcos
until the election of the interim Prime Minister and interim President under section 3 (1)
of the Transitory Provisions are executive and not legislative powers, since the powers of
the President under the 1935 Constitution and those of the Prime Minister under the 1973
Constitution are essentially executive powers; more so, with respect to the powers of the
President under the 1973 Constitution which are symbolic and ceremonial.

While the Solicitor General has cited the President's powers under martial law and under
section 3 (2) of the Transitory Provisions 4 as vesting him with Šlegislative powers, there
is constitutional basis for the observation that his legislative and appropriation powers
under martial law are confined to the law of necessity of preservation of the state which
gave rise to its proclamation 5 (including appropriations for operations of the government
and its agencies and instrumentalities).

Rossiter, as extensively cited by Solicitor General, has thus stressed that "the measures
adopted in the prosecution of a constitutional dictatorship should never be permanent in
character or effect. ... The actions directed to this end should therefore be provisional. ...
Permanent laws, whether adopted in regular or irregular times are for parliaments to
enact," and that "a radical act of permanent character, one working lasting changes in the
political and social fabric (which) is indispensable to the successful prosecution of the
particular constitutional dictatorship ... must be resolutely taken and openly
acknowledged [as exemplified by U.S. President Lincoln's emancipation proclamation] ...
Nevertheless, it is imperative that any action with such lasting effects should eventually
receive the positive approval of the people or of their representatives in the legislature."6

Even from the declared Presidential objective of using Martial Law powers to
institutionalize reforms and to remove the causes of rebellion, such powers by their very
nature and from the plain language of the Constitution7 are limited to such necessary
measures as will safeguard the Republic and suppress the rebellion (or invasion) and
measures directly connected with removing the root causes thereof, such as the tenant
emancipation proclamation.8 The concept of martial law may not be expanded, as the
main opinion does, to cover the lesser threats of "worldwide recession, inflation or
economic crisis which presently threatens all nations" 9 in derogation of the Constitution.

On the other hand, those legislative powers granted in the cited section 3 (2), known as
the validating provision which validated the President's acts and decrees after the
proclamation of martial law up to the ratification of the Constitution are limited to
modifying, revoking or superseding such validated acts and decrees done or issued prior
to the proclaimed ratification, since section 7 of the Transitory Provisions 10 expressly
reserves to the National Assembly the legislative power to amend, modify or repeal "all
existing laws not inconsistent with this Constitution."

The question is thus reduced as to whether now after the lapse of two years since the
adoption of the 1973 Constitution, the mandate of section 3 (1) of the Transitory
Provisions for the convening, of the existing interimNational Assembly should be
implemented — not for purposes of an action of mandamus which cannot be availed of
because of the separation of powers — but for the present action of prohibition against
respondents officials which asserts that the questioned referendum comes within the
constitutional domain of the interim National Assembly and that after the coming into
"immediate existence of the interim National Assembly upon the proclamation of
ratification of the Constitution, the "initial convening" thereof with the election of the
interim Speaker and the election of the interim President and the interim Prime Minister
should have followed as a matter of course. The cited provision reads:

SEC 3. (1) The incumbent President of the Philippines shall initially convene the
interim National Assembly and shall preside over its sessions until the interim
Speaker shall have been elected. He shall continue to exercise his powers and
prerogatives under the nineteen hundred and thirty-five Constitution and the
powers vested in the President and the Prime Minister under this Constitution
untilhe calls upon the interim National Assembly to the elect the interim
President and the interim Prime Minister, who shall then exercise their respective
powers vested by this Constitution. (Art. XVII)

2. The above quoted pertinent provisions indicate an affirmative answer. It is axiomatic

that the primary task in constitutional construction is to ascertain and assure the
realization of the purpose of the framers and of the people in the adoption of the
Constitution and that the courts may not inquire into the wisdom and efficacy of a
constitutional or statutory mandate.

Where the language used is plain and unambiguous, there is no room for interpretation.
"It is assumed that the words in which constitutional provisions are couched express the
objective sought to be attained. They are to be given their ordinary meaning except where
technical terms are employed in which case the significance thus attached to them
prevails. As the Constitution is not primarily a lawyer's document, it being essential for
the rule of law to obtain that it should ever be present in the people's consciousness, its
language as much as possible should be understood in the sense they have in common
use. What it says according to the text of the provision to be construed compels
acceptance and negates the power of the courts to alter it, based on the postulate that the
framers and the people mean what they say." 11

The mandate of section 1 of the Transitory Provisions that the interim National Assembly
shall "exist immediatelyupon the ratification of this Constitution" calls for its coming into
existence "right away" as conceded by respondents at the hearing. Likewise, as affirmed
by the Solicitor General, its members as provided in section 2 duly took their oath of
office and qualified thereto, upon the proclamation of ratification. The clear import of
section 3 in order to give meaning and effect to the creation and "immediate existence" of
the interim National Assembly is that the incumbent President shall then proceed to
"initially (i.e. "in the first place: at the beginning") 12 convene" it and preside over its
sessions until the election of the interim Speaker after which he calls for the election of
the interimPresident and the interim Prime Minister "who shall then exercise their
respective powers vested by this Constitution." (The "incumbent President" then bows
out and is succeeded by the Prime Minister who may of course be himself).

This view is further strengthened by the expectations aired in the debates of the 1971
Constitutional Convention that a parliamentary government would be more responsible
and responsive to the people's needs and aspirations. Thus, in section 5 of the Transitory
Provision, the interim National Assembly was charged with the mandate to "give priority
to measures for the orderly transition from the presidential to the parliamentary system,
the reorganization of the Government the eradication of graft of and corruption, the
effective maintenance of peace and order, the implementation of declared agrarian
reforms, the standardization of compensation of government employees, and such other
measures as shall bridge the gap between the rich and the poor" — urgent and long-
lasting measures which the President has single-handedly confronted up to now.

3. The manifestation of the Solicitor General that the schedule referendum is merely
consultative and thus includes the participation of voters below 18 years of age but at
least 15 years old (who are not qualified enfranchised voters under Article VI on suffrage
of the 1973 Constitution which decrees a minimum age of 18 years for qualified voters)
adds weight to the view that the existing interim National Assembly be now convened
and perform its constitutional functions as the legislative authority. From the very nature
of the transitory provision which created it, its existence must likewise be interim, i.e.
temporary provisional, of passing and temporary duration (as opposed to permanent and
the regular institutions provided for in the first 15 Articles of the Constitution) until after
it shall have reapportioned the Assembly seats 13 and called for the election of the
members of the regular National Assembly. 14The convening of the interim National
Assembly with its cross-section of knowledgeable representatives from all over the
country was obviously hopefully conceived to serve (more than consultative
referendums)to apprise the President of the people's and their constituencies' views as
well as to assist him as mandated by the Constitution in the enactment of priority measure
to achieve fundamental and far-reaching reforms.

4. While it has been advanced that the decision to defer the initial convocation of the
interim National Assembly was supported by the results of the referendum in January,
1973 when the people voted against the convening of the interim National Assembly for
at least seven years, 15 such sentiment cannot be given any legal force and effect in the
light of the State's admission at the hearing that such referendums are merely consultative
and cannot amend the Constitution or any provision or mandate thereof such as the
Transitory Provisions which call for the "immediate existence" and "initial convening" of
the interim National Assembly to "give priority to measures for the orderly transition
from the presidential to the parliamentary system" and the other urgent measures
enumerated in section 5 thereof. 16

This seems self-evident for the sovereign people through their mutual compact of a
written constitution have themselves thereby set bounds to their own power, as against
the sudden impulse of mere and fleeting majorities, 17and hence have provided for strict
adherence with the mandatory requirements of the amending process through a fair and
proper submission at a plebiscite, with sufficient information and full debate to assure
intelligent consent or rejection. 18

5. Finally, the imposition of penal sanctions of imprisonment and fine upon the citizens
who fail to register and vote in the scheduled referendum is open to serious constitutional
question. It seems clear that the calling of "consultative referendum" is not provided for
nor envisaged in the Constitution as the appropriate vehicle therefor is provided through
the interim and regular National Assemblies. It should perhaps be reexamined whether
the mandate of the Constitution that "it shall be the obligation of every citizen qualified to
vote to register and cast his vote" (at elections of members of the National Assembly and
elective local officials and at plebiscites, as therein provided for) and the criminal
penalties imposed in the questioned decrees should be deemed applicable to such extra-
constitutional consultative referendums wherein non-qualified voters (the 15-year olds up
to below 18) are asked to participate.

MUÑOZ PALMA, J., concurring and dissenting:

The views I express in this separate opinion will briefly explain my position on the
principal issues posed in this Petition for Prohibition.

1. President Ferdinand E. Marcos and no other is the person referred to as "incumbent

President" in Article XVII to which we shall refer for short as the Transitory Provisions
of the 1973 Constitution. That fact is beyond doubt because at the time the draft of the
new Constitution was being prepared and when it was finally signed by the delegates to
the 1971 Constitutional Convention on November 30, 1972, it was President Marcos who
was holding the position of President of the Philippines.

2. As such incumbent President, President Marcos was vested by Section 3(1) of the
Transitory Provisions with constitutional authority to continue as President of the
Philippines during the transition period contemplated in said Article XVII that is, until the
interim President and the interim Prime Minister shall have been elected by the
interimNational Assembly who shall then exercise their respective powers vested by the
new Constitution, after which the office of the incumbent President ceases. During that
transition period, President Marcos was given extraordinary powers consisting of the
powers and prerogatives of the President under the 1935 Constitution, and the powers
vested in the President and the Prime Minister under the 1973 Constitution.1

3. Aside from the vest executive powers granted to the incumbent President as indicated
above, he was granted under Section 3(2) of the same Transitory Provisions legislative
powers, in the sense, that all proclamations, orders, decrees, instructions, and acts which
were promulgated, issued, or done by the incumbent President before the ratification of
the Constitution were declared part of the law of the land, to remain valid, legal, binding
or effective even after the lifting of martial law or the ratification of the Constitution,
unless modified, revoked or superseded by subsequent proclamations, etc., by the
incumbent President or unless expressly and explicitly modified or repealed by the
regular National Assembly. As to, whether or not, this unlimited legislative power of the
President continue to exist even after the ratification of the Constitution is a matter which
I am not ready to concede at the moment, and which at any rate I believe is not essential
in resolving this Petition for reasons to be given later. Nonetheless, I hold the view that
the President is empowered to issue proclamations, orders, decrees, etc. to carry out and
implement the objectives of the proclamation of martial law be it under the 1935 or 1973
Constitution, and for the orderly and efficient functioning of the government, its
instrumentalities, and agencies. This grant of legislative power is necessary to fill up a
vacuum during the transition period when the interim National Assembly is not yet
convened and functioning, for otherwise, there will be a disruption of official functions
resulting in a collapse of the government and of the existing social order.

4. Because the grant of vast executive and legislating powers to the incumbent President
will necessarily, result in what the petitioners call a one-man rule as there is a
concentration of power in one person, it is my opinion that it could not have been the
intent of the framers of the new Constitution to grant to the incumbent President an
indefinite period of time within which to initially convene the interim National Assembly
and to set in motion the formation of the Parliamentary form of government which was
one of the purposes of adopting a new Constitution. I believe that the interim National
Assembly came automatically into existence upon the ratification of the 1973
Constitution. As a matter of fact, from the submission of the Solicitor General, it appears
that many if not all of those entitled to become members of the interim National
Assembly have opted to serve therein and have qualified thereto in accordance with the
requirements of Section 2 of the Transitory Provisions.2

We cannot, therefore, reasonably construe the absence of a specific period of time for the
President to initially convene the interim Assembly as placing the matter at his sole
pleasure and convenience for to do so would give rise to a situation in which the
incumbent President could keep the intent National Assembly in suspended animation
and prevent it from becoming fully operational as long as he pleases. This would violate
the very spirit and intent of the 1973 Constitution more particularly its Transitory
Provisions to institute a form of government, during the transition period, based upon the
fundamental principle of the "separation of powers," with its checks and balances, by
specifically providing that there shall exist immediately upon the ratification of the 1973
Constitution an interimNational Assembly in which legislative power shall exercise all
the powers and prerogatives which are executive in character, and that the judicial power
shall continue to be vested in the Judiciary existing at the time of the coming into force
and effect of the 1973 Constitution. The situation would also render nugatory the
provisions of Section 5 of the Transitory Provisions which assign to the interim National
Assembly a vital role to perform during the transition period.3

While it is true that the convening of the interim National Assembly cannot be said to be
simply at the pleasure and convenience of the President, however, the matter is one
addressed to his sound discretion and judgment for which he is answerable alone to his
conscience, to the people he governs, to posterity, and to history.

5. Coming now to the particular problem of the coming referendum on February 27,
1975, it is my view that the act of the President in calling such a referendum is not really
in the nature of a legislative act which violates the present Constitution. I do not see any
prohibition in the Constitution for the Chief Executive or the President to consult the
people on national issues which in his judgment are relevant and important. I use the
word "consult" because in effect the measure taken by the President is nothing more than
consultative in character and the mere fact that such measure or device is called a
referendum in the Presidential Decrees in question will not affect nor change in any
manner its true nature which is simply a means of assessing public reaction to the given
issues submitted to the people for their consideration. Calling the people to a consultation
is, we may say, derived from or within the totality of the executive power of the
President, and because this is so, it necessarily follows that he has the authority to
appropriate the necessary amount from public funds which are subject to his executive
control and disposition to accomplish the purpose.

6. I am constrained to agree with petitioners that a referendum held under a regime of

martial law can be of no far-reaching significance because it is being accomplished under
an atmosphere of climate of fear. There can be no valid comparison between a situation
under martial rule and one where the privilege of the writ of habeas corpus is suspended,
as discussed in the Opinion of Justice Makasiar, because the former entails a wider area
of curtailment and infringement of individual rights, such as, human liberty, property
rights, rights of free expression and assembly, protection against unreasonable searches
and seizures, liberty of abode and of travel, etc.4

7. Finally, whatever maybe the totality of the answers given to the proposed referendum
questions on local government will be of no real value to the President because under
Article XI, Section 2, 1973 Constitution, it is the National Assembly which is empowered
to enact a local government code, and any change in the existing form of local
government shall not take effect until ratified by the majority of the votes cast in a
plebiscite called for the purpose, all of which cannot be complied with for the simple
reason that for the present there is no National Assembly. Moreover, any vote given on
this matter cannot be truly intelligent considering the vagueness of the question as drafted
and the short period of time given to the citizenry to study the so-called manager or
commission type of local government being submitted to the voters.

8 In conclusion, if I concur in the dismissal of the Petition for prohibition it is for the
simple reason that I believe that calling a referendum of this nature is a valid exercise of
executive power not prohibited by the Constitution as discussed in number 5 of this
Opinion.

Separate Opinions

CASTRO, J., concurring:

I vote to deny the petition.

At the threshold, and only for the purposes of this separate capsule opinion, I will assume
(a) that this case before us is not in the nature of a quo warranto proceeding; (b) that the
petitioners possess legal standing before the Court; and (c) that all the petitioners,
whatever be the persuasion of their counsel, recognize the Court as the supreme judicial
tribunal operating and functioning under the 1973 Constitution.

I find no particular difficulty in resolving what I regard as the two crucial issues posed by
the petition.

1. On the matter of whether Ferdinand E. Marcos is still the President of the Philippines,
the Transitory Provisions (Art XVII) of the 1973 Constitution, more specifically Secs. 2,
3, 9 and 12 thereof, even if they do not mention him by name, clearly point to and
recognize Ferdinand E. Marcos as the constitutional and lawful President of the
Philippines. If there is any doubt at all — and I do not personally entertain any — that the
said Transitory Provisions refer to President Marcos as the "incumbent President," then
such doubt should be considered as having been completely dissipated by the resounding
affirmative vote of the people on this question propounded in general referendum of July
27-28, 1973: "Under the [1973] Constitution, the President, if he so desires, can continue
in office beyond 1973. Do you want President Marcos to continue beyond 1973 and
finish the reforms he initiated under martial law?"

2. On the matter of whether President Marcos, at the present time, can constitutionally
exercise legislative power, I do not need to postulate that he derives legislative power
from the constraints of a regime of martial law. To my mind, pars. 1 and 2 of See. 3 of the
Transitory Provisions are unequivocal authority for President Marcos to legislate. These
paragraphs read:

The incumbent President of the Philippines shall initially convene the interim National
Assemble and shall preside over its sessions until the interim Speaker shall have been
elected. He shall continue to exercise his powers and prerogatives under the nineteen
hundred and thirty-five Constitution and the powers vested in the President and the Prime
Minister under this Constitution until he calls the interim National Assembly to elect the
interim President and the interim Prime Minister, who shall then exercise their respective
powers vested by this Constitution.

All proclamations, orders, decrees, instructions, and acts promulgated, issued, or done by
the incumbent President shall be part of the law of the land, and shall remain valid, legal,
binding, and effective even after [the] lifting of martial law or the ratification of this
Constitution, unless modified, revoked or superseded by subsequent proclamations,
orders, decrees, instructions, or other acts of the incumbent President, or unless expressly
and explicitly modified or repealed by the regular National Assembly.

Stated elsewhere, my reading of these provisions is that they constitute an unmistakable

constitutional warrant for the "incumbent President" (meaning President Marcos) to
legislate (until, at the very earliest, the interim National Assembly shall have been
convoked).

The peripheral matter of whether President Marcos should now or soon convene the
interim National Assembly is completely outside the competence of the Supreme Court to
resolve, as, in my view, it is a political question addressed principally, basically, and
exclusively to the President and the Filipino people.

Makalintal, C.J., Barredo, Antonio, Esguerra and Fernandez, JJ., concur.

FERNANDO, J., concurring:

It is a crucial question that is posed by this petition to call a halt to the February 27
referendum because of alleged constitutional transgressions. It is one fundamental in its
essence, and what is more, impressed with the sense of immediacy to quiet doubts and to
minimize uncertainties. There has been a quick response, hopefully not one given in
haste, which is the enemy of thought. For all the vigor and the learning that characterized
the advocacy of Senator Lorenzo M. Tañada, it did not suffice to elicit a favorable
verdict. The petition did not prosper. So it has been adjudged, and I concur in the result
reached. It is given expression in the notable opinion penned by Justice Makasiar which,
on its face, betrays sensitivity to the magnitude and the grave implications of the serious
problems posed. What is more, it has not avoided subsidiary issues which reach into vital
areas of our constitutional system. To the extent that it reiterates tried and tested
doctrines, I am of course in agreement. Certainly, there is not much difficulty for me in
reaching the conclusion that the term "incumbent President" in the Transitory Provisions
means what it says. If I submit this brief concurrence, it is only because of my belief that
notwithstanding the brilliant and illuminating argumentation in depth by both eminent
counsel, raging far and wide in the domain of constitutionalism, there is no need as yet to
express my views on some collateral matters. It suffices for me to rely on a jurical
concept that is decisive. It is the fundamental principle that sovereignty resides in the
people with all government authority emanating from them.1 It speaks, to recall Cardozo,
with a reverberating clang that drowns all weaker sounds.

1. Respondents would interpose obstacles to avoid a decision on the merits. They are not
insurmountable. They alleged that the questions raised are political and therefore left for
the political sovereign, not the courts.2 Such an assertion carries overtones of the Tañada
v. Cuenco3 ruling that a matter to be decided by the people in their sovereign capacity is
of such a character. It has an aura of plausibility but it cannot stand the rigor of analysis.
It confuses the end result with the procedure necessary to bring it about. It is elemental
that constitutionalism implies restraints as well on the process by which lawful and valid
state objectives may be achieved.4 What is challenged here is the actuation of the
incumbent President for alleged failure to comply with constitutional requisites. It is
much too late in the day to assert that a petition of that character is not appropriate for the
courts. This is not to venture into uncharted judicial territory. There are landmarks all
along the way. This is not then to trespass on forbidden ground. There is no disregard of
the political question concept.

Then there is the attack on the standing of petitioners, as vindicating at most what they
consider a public right and not protecting their rights as individuals.5 This is to conjure
the specter of the public right dogma as an inhibition to parties intent on keeping public
officials staying on the path of constitutionalism. As was so well put by Jaffe:6 "The
protection of private rights is an essential constituent of public interest and, conversely,
without a well-ordered state there could be no enforcement of private rights. Private and
public interests are, both in a substantive and procedural sense, aspects of the totality of
the legal order."7 Moreover, petitioners have convincingly shown that in their capacity as
taxpayers, their standing to sue has been amply demonstrated. There would be a retreat
from the liberal approach followed in Pascual v. Secretary of Public Works,8
foreshadowed by the very decision of People v. Vera 9 where the doctrine was first fully
discussed, if we act differently now. I do not think we are prepared to take that step.
Respondents, however, would hark back to the American Supreme Court doctrine in
Mellon v. Frothingham, 10 with their claim that what petitioners possess "is an interest
which is shared in common by other people and is comparatively so minute and
indeterminate as to afford any basis and assurance that the judicial process can act on it."
11 That is to speak in the language of a bygone era, even in the United States. For as
Chief Justice Warren clearly pointed out in the later case of Flast v. Cohen, 12 the barrier
thus set up if not breached has definitely been lowered. 13 The weakness of these
particular defenses is thus quite apparent. 14

2. Now as to the merits. The success of petitioners would signify that the referendum
scheduled for February 27 of this year will not take place. Believing as I do that the
opportunity of the people to give expression to their views is implicit in the fundamental
principle that sovereignty resides in them, I am unable to find sufficient merit in this
petition. For all its logical and plausible aspect, it still does not admit of doubt, in my
mind at least, that a conclusion different from that reached by this Court would be
attended by deplorable consequences. For one thing, it would impress with the stigma of
illegality the viable procedure that under the stern realities of the present is the only one
in the horizon for ascertaining the desires of the people. Moreover, under a republican
regime, even under normal times, their role is limited to the choice of public officials,
thereafter to be held to accountability through their informed, even immoderate, criticism.
Now with this proposed referendum, they will be sounded out on what they think and
how they feel on matters of significance. Even assuming its consultative character, it
remains at the very least a step in the right direction. It may not go far enough, but there
is progress of sorts that hopefully may eventually lead to the goal of complete civilian
rule. It stands to reason, at least from my standpoint, that when people are thus allowed to
express their wishes and voice their opinions, the concept of popular sovereignty, more so
under crisis conditions, becomes impressed with a meaning beyond that of lyric liturgy or
acrimonious debate devoid of illumination. Nor is this to discern new waves of hope that
may ultimately dissolve in the sands of actuality. It is merely to manifest fidelity to the
fundamental principle of the Constitution. It dates back to the American Declaration of
Independence of 1776. The government it sets up derives its just powers from the consent
of the governed. The basis of republicanism, to paraphrase Lerner, is that the majority
will shall prevail, the premise being that an ordinary citizen, the common man, can be
trusted to determine his political destiny. 15 Thereby, as Bryn-Jones pointed out, the
controlling power, the governmental authority in the language of the Constitution, is
vested in the entire aggregate of the community. 16 It is in that sense, as Justice Laurel
stressed in Moya v. Del Fierro, 17 that an "enfranchised citizen [is] a particle of popular
sovereignty and [is] the ultimate source of established authority." 18There is reliance
likewise to this excerpt from the eloquent opinion of Justice Jackson in West Virginia
State Board of Education v. Barnette: 19 "There is no mysticism in the American concept
of the State or of the nature or origin of its authority. We set up government by consent of
the governed, and the Bill of Rights denies those in power any legal opportunity to coerce
that consent. Authority here is to be controlled by public opinion, not public opinion by
authority." 20 If that is true of the United States, so should it be in our land. It caters to
man's fundamental yearning for some degree of participation in the process of reaching
fateful decisions. While courts have to deal with the necessities of their time, the idea
should remain untarnished.

3. It follows therefore that the will of the people given expression, even in an unofficial
manner but accurately ascertained, is impressed with a decisive significance. It is more
than just a foundation for societal or political development. Whether appropriate, it
determines what is to be done. Its significance is vital, not merely formal. It is
understandable then why in Javellana, 21 one of the issues passed upon by this Court is
the effect of acquiescence by the people to present Constitution even on the assumption
that it was ratified in accordance with the 1935 Charter. It may not be amiss to recall what
I did state on that point in my separate opinion: "Nor is the matter before us solely to be
determined by the failure to comply with the requirements of Article XV. Independently
of the lack of validity of the ratification of the new Constitution, then this Court cannot
refuse to yield assent to such a political decision of the utmost gravity, conclusive in its
effect. Such a fundamental principle is meaningless if it does not imply, to follow Laski,
that the nation as a whole constitutes the "single center of ultimate reference," necessarily
the possessor of that "power that is able to resolve disputes by saying the last word." If
the origins of the democratic polity enshrined in the 1935 Constitution with the
declaration that the Philippines is a republican state could be traced back to Athens and to
Rome, it is no doubt true, as McIver pointed out, that only with the recognition of the
nation as the separate political unit in public law is there the juridical recognition of the
people composing it "as the source of political authority." From them, as Corwin did
stress, emanate "the highest possible embodiment of human will," which is supreme and
must be obeyed. To avoid any confusion and in the interest of clarity, it should be
expressed in the manner ordained by law. Even if such were not the case, however, once
it is manifested, it is to be accepted as final and authoritative. The government which is
merely an agency to register its commands has no choice but to submit. Its officials must
act accordingly. No agency is exempt from such a duty, not even this Court. In that sense,
the lack of regularity in the method employed to register its wishes is not fatal in its
consequences. Once the fact of acceptance by the people of a new fundamental law is
made evident, the judiciary is left with no choice but to accord it recognition. The
obligation to render it obeisance falls on the courts as well." 22

To such a cardinal jural postulate is traceable my concurring and dissenting opinion in

Tolentino v. Commission on Elections: 23 "It was likewise argued by petitioner that the
proposed amendment is provisional and therefore is not such as was contemplated in this
article. I do not find such contention convincing. The fact that the Constitutional
Convention did seek to consult the wishes of the people by the proposed submission of a
tentative amendatory provision is an argument for its validity. It might be said of course
that until impressed with finality, an amendment is not to be passed upon by the
electorate. There is plausibility in such a view. A literal reading of the Constitution would
support it. The spirit that informs it though would not, for me, be satisfied. From its
silence I deduce the inference that there is no repugnancy to the fundamental law when
the Constitutional Convention ascertains the popular will. In that sense, the Constitution,
to follow the phraseology of Thomas Reed Powell, is not silently silent but silently vocal.
What I deem the more important consideration is that while a public official, as an agent,
has to locate his source of authority in either Constitution or statute, the people, as the
principal, can only be limited in the exercise of their sovereign powers by the express
terms of the Constitution. A concept to the contrary would to my way of thinking be
inconsistent with the fundamental principle that it is in the people, and the people alone,
that sovereignty resides." 24

As it was then, so, to my way of thinking, should it be now. With such a decisive
consideration in mind, it is difficult to conclude that the infirmities imputed to the
challenged Presidential decrees are fatal. They do not suffer from the corrosion of
substantial constitutional infractions. It is in that sense that I do not feel called upon to
inquire into the nature of the authority conferred on the incumbent President under the
Transitory Provisions, whether purely executive as contended by petitioners or both
executive and legislative as argued by respondents. I leave that question for another day.
What cannot be ignored is that with a National Assembly in existence but not convened,
it is only the Executive that can perform those essential and indispensable functions of
dealing with the actual conduct of public affairs. That is the reality that stares us in the
face. To deny his power to issue decrees and to appropriate public funds is thus to assure
the paralyzation and impotence of government. Precisely then, if a referendum may lend
itself to a reappraisal of the situation, by all means let it be conducted. This is not to deny
that the judicial power to call a halt exists. It is merely to stress that it should be exercised
with the utmost reluctance as is required by deference to the concept of popular
sovereignty. To be more specific about the matter, this Tribunal should refrain from
making use of that prerogative now.

Parenthetically, it may be observed that in 1973 when the Javellana decision was
promulgated, I could not detect sufficient evidence as to the fact of acquiescence to the
present Constitution. That was why I had to dissent from the judgment of the Court
dismissing the various petitions assailing the validity of Proclamation No. 1102. Since
then, with well-nigh two years having gone by, it is quite evident that the matter is no
longer open to doubt. Under the standard set forth in the leading case of Taylor v.
Commonwealth, 25 decided at the beginning of the century, no other conclusion is
allowable. The present Constitution "having been thus acknowledged and accepted by the
officers administering the government and by the people ... and being, as a matter of fact,
in force throughout ..., and there being no government in existence ... opposing or
denying its validity, [it] is the only rightful, valid, and existing Constitution ... and that to
it all the citizens ... owe their obedience and loyal allegiance." 26

4. There is finally, according to petitioners, a deficiency that mars the proposed

referendum. It deserves serious consideration. It is their submission that under martial
law, with people denied their basic freedoms, particularly their freedoms of expression
and assembly, it cannot be validly held. In my concurring and dissenting opinion in
Planas v. Commission on Elections 27 I express the apprehension that voters cannot
"freely register their will," as "dissent may be fraught with unpleasant consequences." 28
Further: "While it is to be admitted that the Administration has done its best to alleviate
such a state of mind, I cannot in all honesty say, although I am prepared to concede that I
may labor under a sense of undue pessimism, that the momentum of fear necessarily
incident to such a regime has been reduced to a minimum." 29 There is, I would say, still
that feeling of insecurity as to what the morrow may bring, not from high and responsible
officials, of course, but from those much lower in the ranks, whether in the armed forces
or in the civilian component. Abuses, in the nature of things, cannot be completely
curbed. In that sense, my misgivings are not unjustified. Nonetheless, I gain reassurance
from the fact that as I did admit in my concurring and dissenting opinion in Aquino v.
Enrile, 30 "the Philippine brand of martial law [is] impressed with a mild character."
31There is by and large a high degree of confidence in the capabilities and moderation of
those entrusted with its implementation. To cite only an instance, it is a rare and
impressive tribute to the Judge Advocate General, Justice Guillermo S. Santos of the
Court of Appeals, that in a manifesto of reputable citizens both from the clergy and the
laity, with a number of civic and political leaders, the suggestion was made that the
conduct of the referendum should be under the auspices of a Committee of three with him
as one of the members. 32 I am not then in a position to press with the same degree of
conviction my original stand. I would not be justified though in making such a concession
if the constitutional rights to freedom of expression and the freedom of assembly may not
be availed of. They are once again enshrined in our Bill of Rights — and in the very same
language. If the Constitution is now fully in force, they must be allowed full operation. I
do not deny that they are not absolute in character, but the limitation is supplied by the
clear and present danger test. Nor do I deny that under emergency conditions, it is not
unreasonable to enlarge the area of state authority, to seek national cohesiveness, and to
discourage dissent. What I cannot sufficiently stress though is that dissent, even during
such periods of stress, is not disloyalty, much less subversion. Thus the citizens can
invoke in the exercise of the freedoms of expression and of assembly not the challenged
decrees but their constitutional rights. Moreover, as thus construed as they should be to
avoid any taint of invalidity, they may be pulled back from the edge of the constitutional
precipice. It would follow, and that to my mind would be to the credit of the Executive,
that even in these trying and parlous times, there is adherence to a tolerant,
compassionate view of life.

5. That is about all. In writing this brief concurrence, I had nothing in mind but to explain
why I had to vote the way I did. It is quite obvious that for me the old landmarks of the
law are still there to serve as guides, that precedents do serve as factors for continuity and
stability not to be ignored but also not to be slavishly obeyed. For in constitutional law
more than in any other branch of juristic science, much depends on the immediacy and
the reality of the specific problems to be faced. Hence it has been truly said in days of
crisis or of emergency, to stand still is to lose ground. Nonetheless, one has always to
reckon with the imponderables and the intangibles, ever so often elusive to our
understanding and disheartening to our deeply-cherished convictions. For he has no
choice but to comply as best he can with the duty to decide in accordance with legal
norms with roots that go far deeper than his personal preferences and predilections. So it
has to be.

BARREDO, J., concurring:

I concur in the judgment dismissing the petition. The following opinion is without
prejudice to a more extended one in due time.

Consistently with my opinion in the habeas corpus or martial law cases, the Court has
jurisdiction over the instant petition even if, as will be shown later, the matter of calling a
referendum is by nature a political matter. Anent the possible contention that the title of
President Marcos as President of the Philippines may not be collaterally attacked and that
the proper remedy is quo warranto, under the authority of Nacionalista Party vs. Felix
Angelo Bautista, 85 Phil. 101, I concede that the remedy of prohibition is not altogether
improper.

The first ground of the petition is that President Marcos does not have any legal authority
to call the referendum because he is not holding any public office. The specific arguments
supporting this contention are that (1) Marcos is no longer President under the 1935
Constitution; (2) he is not President nor Prime Minister under the 1973 Constitution; (3)
he is not the "incumbent President" contemplated in the transitory provisions of the new
constitution; and, in any event, his transitory powers as "incumbent President" have
already lapsed. The second and third grounds are that President Marcos does not have any
power to legislate nor the authority to issue proclamations, decrees and orders having the
force of law, hence he cannot issue decrees appropriating funds and, therefore, the decree
calling for the referendum is void.

It is my considered conviction that these grounds are untenable.

President Marcos' authority to continue exercising the powers of the President under the
1935 Constitution and to exercise those of President and Prime Minister under the 1973
Constitution is specifically provided for in Sec. 31 Article XVII of the 1973 Constitution.
It is to me unquestionable that by virtue of these provisions, President Marcos' being the
President of the Philippines, is constitutionally indubitable.

It was precisely because upon the effectivity of the New Constitution President Marcos
would cease to be President under the 1935 Charter and would not then be occupying any
office under the New Constitution, and, on the other hand, there would yet be no new
president and no prime minister, that he, as "incumbent President" at that time had to be
expressly granted the authority to exercise the powers of the President under the Old
Constitution as well as those of the President and the Prime Minister under the new one,
pending the election of these officers. Necessarily, there had to be a head of government
until the new parliamentary system could be properly installed, and whether or not it
would have been wiser to confer the powers in question on some other official or body is
not for the Court to decide. In the meantime, the title of President is the most appropriate
to be held by him.

The contention that President Marcos may not be considered the "incumbent President"
referred to in the Constitution because what is contemplated therein is the one who would
be in office at the time of its ratification and that pursuant to the Javellana decision of the
Supreme Court, the constitution has not yet been ratified, whereas, on the other hand, the
term of President Marcos under the 1935 Constitution expired on December 30, 1973, is
predicated wholly on the old theory advanced in the habeas corpus cases and which has
already been discarded in the opinions therein, although perhaps, it is best that the Court
made a categorical ruling which would clear all doubts on the matter and thereby do away
with this issue once and for all. To that end, I would say that as far as the Court is
concerned, its holding in Javellana that "there is no more judicial obstacle to the New
Constitution being considered as in force and effect" should be understood as meaning
that the charter is as valid and binding for all purposes as if it had been ratified strictly in
accordance with the 1935 Constitution as petitioners would argue it should have been.
The problem of constitutional construction raised in the petition is, does the Constitution
contemplate that the interim assembly created by it would meet immediately and
forthwith elect the new President and the Prime Minister? If this question were to be
answered in the light of normal conditions, there could be some plausibility in suggesting
an affirmative response, albeit not altogether conclusive. But no one can ever escape the
fact that the Constitution was formulated and approved under abnormal and exceptional
circumstances. The members of the convention were well cognizant of the fact that the
country was then as it still is under martial law and that normal processes of government
have not been in operation since its proclamation. We must assume that as practical men
they knew that the procedure of shifting from the presidential to the parliamentary system
would have to be reconciled with the demands of the martial law situation then obtaining.
Above all it must have been obvious to the delegates that under martial law, President
Marcos had in fact assumed all the powers of government. In other words, it must have
been evident to them from what was happening that the immediate convening of the
legislative body would not be compatible with the way President Marcos was exercising
martial law powers.

It is but proper, therefore, that these transcendental historical facts be taken into account
in construing the constitutional provisions pertinent to the issue under discussion. As I see
it, given the choice between, on the one hand, delaying the approval of a new charter until
after martial law shall have been lifted and, on the other, immediately enacting one which
would have to give due allowances to the exercise of martial law powers in the manner
being done by President Marcos, the convention opted for the latter. To my mind, it is
only from this point of view that one should read and try to understand the peculiar and
unusual features of the transitory provisions of the New Constitution.

Otherwise, how can one explain why, instead of giving the interim Assembly itself the
power to convene motu propioas was being done in the regular sessions of the old
legislature and as in the case of the regular National Assembly provided therein, said
power has been granted by the Constitution to the incumbent President? Very
significantly in this connection, whereas Section 1 of Article XVII very explicitly uses
the word "immediately" in reference to the existence of the interim Assembly, there is no
time fixed as to when the incumbent President should initially convene it. Withal, even
the authority to call for the election of the new President and the Prime Minister was not
lodged in the assembly but again in the incumbent President. Is it not logical to conclude
that the reason behind all these unprecedented provisions is to avoid putting any
hindrance or obstacle to the continued exercise by President Marcos of the powers he had
assumed under his martial law proclamation and his general orders subsequent thereto? If
the Convention were differently minded, it could have easily so worded the said
provisions in the most unequivocal manner. And what makes this conclusion definite is
precisely the insertion in the transitory provisions of Section 3(2) of Article XVII which
makes all the proclamations, decrees, orders and instructions of the incumbent President
part of the law of the land, which, in my considered view, is the Convention's own
contemporary construction that during martial law, the administrator thereof must of
necessity exercise legislative powers particularly those needed to carry out the objectives
of the proclamation, with no evident limitation except that no particular legislation not
demanded by said objectives shall infringe Section 7 of Article XVII which reserves to
the regular National Assembly the power to amend, modify or repeal "all existing laws
not inconsistent with this Constitution." Neither paragraph (1) nor paragraph (2) of
Section 3 of the same article would have been necessary if the convention had intended
that the interim National Assembly would be immediately convened and the new
President and the Prime Minister would be forthwith elected. Indeed, it is implicit in the
provisions just mentioned that the delegates had in mind that there would be a
considerable time gap between the going into effect of the New Constitution and the
election of the new President and the Prime Minister. And they could not have been
thinking merely of the possibility of protracted delay in the election of said officers
because the Assembly itself, once convened, could have readily provided in the exercise
of its inherent powers for what might be required in such a contingency.

In support of the foregoing views, I invoke the testimonies of Delegates Aruego, Tupaz,
Ortiz, Pacificador and others which were quoted during the hearing and the deliberations.
I will quote them in my extended opinion.

It must be borne in mind that once martial law is proclaimed, all the powers of
government are of necessity assumed by the authority that administers the martial law
and the operation of the regular government, including its legislature and its judiciary, is
subjected to its imperatives. Of course, the Constitution itself is not ousted, but by the
power that the Constitution itself vests in the Executive to issue the proclamation, it
yields the application and effects of some of its provisions to the demands of the
situation, as the administrator may in his bona fide judgment so determine. Otherwise
stated, since laws and regulations would be needed to maintain the government and to
provide for the safety and security of the people, the orders of the administrator are given
the force of law. In that sense, the administrator legislates. If he can legislate, so also he
can appropriate public funds.

To my mind, these postulates underlie the provisions of Sec. 3(2) of Article XVII. To
reiterate, the said provision recognizes legislative power in the incumbent President and
the scope of said powers is coextensive with what might be needed, primarily according
to his judgment, to achieve the ends of his martial law proclamation, and in all other
respects, they are limited only by the provisions of Sec. 7 of the same article, but,
evidently, even this limitation must be reconciled with the fundamental criterion that the
New Constitution was conceived, formulated and enacted with the basic objective of
establishing the New Society for which martial law was proclaimed. In other words, since
the known broad objective of Proclamation 1081 is not only to contain or suppress the
rebellion but also to reform our society and recognize and restructure our government and
its institutions as the indispensable means of preventing the resurgence of the causes of
the rebellion, it is obvious that any decree promulgated by the President in line with these
purposes, including those appropriating the necessary funds therefor, cannot be assailed
as beyond the pale of the Constitution.

There is nothing in the letter of the Constitution concerning referendums. But it would be
absurd to think that such paucity may be deemed to indicate that the government has no
authority to call one. If there is anything readily patent in the Constitution, it is that it has
been ordained to secure to the people the blessings of democracy and that its primordial
declared principle is that "sovereignty resides in the people and all government authority
emanates from them." Of course, it establishes a representative democracy, but surely,
there is and there could be no prohibition in it against any practice or action that would
make our government approximate as much as possible a direct one, which is the ideal.
On the contrary, it is self-evident that conditions and resources of the country permitting,
any move along such a direction should be welcome. In fact, at this time when there are
fears about what some consider as an emerging dictatorship, referendums in the manner
contemplated in the impugned presidential decrees provide the means for the most
vigorous assertion by the people of their sovereignty, what with the participation therein
of even the fifteen-year olds and non-literates and the concrete efforts being exerted to
insure the most adequate submission and the utmost freedom of debate and consensus as
the emergency situation would permit and to have the fairest recording and tabulation of
the votes. Granting the good faith of everyone concerned, and there is absolutely no
reason why it should be otherwise, a unique exercise of essential democratic rights may
be expected, unorthodox as the experience may be to those who cannot understand or
who refuse to understand martial law Philippine style. In principle, to oppose the holding
of a referendum under these circumstances could yet be a disservice to the nation.

A plebiscite or election of officials prescribed by the Constitution for specific occasions

must be distinguished from a referendum, which is an inherent constitutional democratic
institution, perhaps not normally convenient to hold frequently or regularly, but which in
certain periods in the life of the nation may be indispensable to its integrity and
preservation. The administration of martial law is usually considered as nothing more
than submission to the will of its administrator. Certainly, there can be no objection to
said administrator's holding a dialogue with the people and adopting ways and means of
governing with their full acquiescence manifested in whatever happens to be the most
feasible way of doing it. If it be assumed that a referendum under the aegis of martial law
may not be an ideal gauge of the genuine will of all the people, no one would deny that if
it is undertaken in good faith, and giving allowances to the imperatives of the situation, it
can somehow reflect their sentiment on the grave issues posed. Besides, whether or not
the people will enjoy sufficient and adequate freedom when they cast their votes in the
challenged referendum is a question that is unfair to all concerned to determine a priori
and beforehand. In any event, it is history alone that can pass judgment on any given
referendum.

Upon the other hand, whether a referendum should be called or not and what questions
should be asked therein are purely political matters as to which it does not appear to be
proper and warranted for the Court to exert its judicial power in the premises. To be sure,
the referendum in question could be a waste of the people's money in the eyes of some
concerned citizens, while it may be a necessary and fruitful democratic exercise in the
view of others, but what is certain is that considering its nature and declared purposes and
the public benefits to be derived from it, it is the better part of discretion, granted to it by
the Constitution for the Court to refrain from interfering with the decision of the
President.
The claim that the Comelec may not be considered as the independent and impartial
guardian of the results of the scheduled referendum has no basis in fact. From extant
circumstances, the recent activities of that body have not been characterized by any
perceptible design to influence such results in any direction. Referendums being, as they
are, in the Philippines today, in the nature of extra-constitutional innovations, it seems but
natural and logical at this stage that the Comelec has been assigned to undertake the
functions of formulating the questions, which, after all has been done after a more or less
nationwide gathering of opinions, and of subsequently explaining them to the people to
best enable them to vote intelligently and freely.

I see no cause to be apprehensive about the fate of those who might wish to vote "no." To
start with, the voting will be secret and is guaranteed to be so. And when I consider that
even a strongly worded petition to enjoin the referendum has been openly ventilated
before the Supreme Court with full mass media coverage giving due emphasis to the
points vehemently and vigorously argued by Senator Tañada, who did not appear to be
inhibited in the expression of his views, I cannot but be confirmed in the conviction that
the apprehensions of petitioners are unfounded.

Under the New Constitution, every citizen is charged with the duty to vote. To vote in a
referendum is no less a sacred civic obligation than to vote in an election of officials or in
a plebiscite. The impugned decrees cannot therefore be constitutionally faulted just
because they provide penalties for those who fail to comply with their duty prescribed in
no uncertain terms by the fundamental law of the land.

Makalintal, C.J., Antonio, Esguerra and Fernandez, JJ., concur.

ANTONIO, J., concurring:

The only rational way to ascertain the meaning and intent of paragraphs 1 and 2 of
Section 3 of Article XVII (transitory provisions) of the New Constitution is to read its
language in connection with the known conditions of affairs out of which the occasion for
its adoption had arisen, and then construe it, if there be any doubtful expression, not in a
narrow or technical sense, but liberally, giving effect to the whole Constitution, in order
that it may accomplish the objects of its establishment. For these provisions can never be
isolated from the context of its economic, political and social environment.

The New Constitution was framed and adopted at a time of national emergency. The
delegates to the Constitutional Convention realized that the rebellion, lawlessness and
near anarchy that brought about the declaration of martial law, were mere symptoms of a
serious malady in the social order. They knew that the revolutionary reforms made by the
incumbent President thru his decrees, orders and letters of instruction, such as the
emancipation of the tenant-farmer from his bondage to the soil, reorganization of
government, eradication of graft and corruption and measures to bridge the gap between
the rich and the poor, were indeed imperative, if the exigency that brought about the
military necessity was to be overcome, civil order restored, and the foundations of
genuine democracy established. The actions of the incumbent President in promulgating
those measures legislative in character during martial law was not without legal and
historical basis. Democratic political theorists traditionally have assumed the need in time
of emergency to disregard for the time being the governmental process prescribed for
peacetime and to rely upon a generically different method of government — the exercise
by the Chief Executive of extraordinary or authoritarian powers, to preserve the State and
the permanent freedom of its citizens.1

Thus, in my concurring opinion in Javellana, et al. v. Executive Secretary, et al.,2 it was

stated that "to preserve the independence of the State, the maintenance of the existing
constitutional order and the defense of the political and social liberties of the people, in
times of grave emergency, when the legislative branch of the government is unable to
function or its functioning would itself threaten the public safety, the Chief Executive
may promulgate measures legislative in character, ...". We considered then that the
proclamation of martial rule marked the commencement of a crisis government and crisis
government in a constitutional democracy entails the concentration and expansion of
governmental power and the release of the government from the paralysis of
constitutional restraints in order to deal effectively with the emergency.3 This was the
view of the members of the Constitutional Convention when they framed the New
Constitution.

In Our concurring opinions in Aquino, et al. v. Enrile et al.,4 We declared that on the
basis of the deliberations of the 166-man Special Committee of the Constitutional
Convention, which was authorized to make the final draft of the Constitution, during their
session on October 24, 1972, the Convention expressly recognized the authority of the
incumbent President during martial law to exercise legislative powers not merely in the
enactment of measures to quell the rebellion but, more important, of measures urgently
required to extirpate the root causes of the social disorder which gave rise to the
exigency.

In was with a view of the continuance of the exercise of these extraordinary powers that
the Convention provided in paragraph 1, Section 3, of Article XVII of the transitory
provisions of the New Constitution that: "He (the incumbent President) shall continue to
exercise his powers and prerogatives under the nineteen hundred thirty-five
Constitution ..." and in paragraph 2 thereof also provided that: "All proclamations, orders,
decrees, instructions, and acts promulgated, issued, or done by the incumbent President
shall be part of the law of the land and shall remain valid, legal, binding and effective
even after lifting of martial law or ratification of this Constitution, unless modified,
revoked, or superseded by subsequent proclamations, orders, decrees, instructions, or
other acts of the incumbent President, or unless expressly and explicitly modified or
repealed by the regular National Assembly."

The conferment upon the incumbent President of those extraordinary powers necessarily
implies that in view of the emergency, there might be a deferment in the convening of the
interim National Assembly and, therefore, it was necessary that he be equipped with
adequate legal authority and power to carry the body politic through the crisis.

Indeed, the need of the times was for a more expeditious mode of decision-making and
policy formulation. The insurgency and the secessionist movement compounded by a
world-wide economic inflation and recession generated problems which must be solved
with immediacy and with policies that are flexible and responsive to the imperatives of
the crisis.

II

The impossibility for the Convention to determine a priori, in view of the emergency
situation, the time when conditions shall have sufficiently normalized to permit the
convening of the interim Assembly, precluded them from fixing in the transitory
provisions of the Constitution a definite period when the incumbent President shall
initially convene that body. It was a matter which was wholly confided by the
Constitution to the incumbent President. Since the exercise of this power was committed
to the incumbent President in all the vicissitudes and conditions of the emergency, it has
necessarily given him ample scope for the exercise of his judgment and discretion. It was
a political decision for which he is directly responsible to the people to whom he is
accountable and for whose welfare he is obliged to act. As stated in the separate opinion
of Justice Castro, concurred in by the Chief Justice, Justices Barredo, Esguerra,
Fernandez and the writer of this opinion, "The peripheral matter whether President
Marcos should now or soon convene the interim National Assembly is completely outside
the competence of the Supreme Court to resolve as ... it is a political question addressed
principally, basically, and exclusively to the President and the Filipino people."

III

Neither can it be asserted that the exercise by the incumbent President of those
extraordinary powers is necessarily inconsistent with and an absolute contradiction to the
existence of a democracy.5 When the exercise of such authoritarian powers is expressly
conferred upon him by the Constitution, it represents the will of the sovereign people as
the source of all political power. So long as the power is used to fulfill its true function in
realizing the ethical purposes of the community, which is to ensure the economic and
social well-being of its citizens and to secure to them justice, such power is employed for
constructive and moral purposes. Its exercise is, therefore, legitimate as it represents the
collective will of the people themselves. It is, therefore, logical that the incumbent
President consult the people on issues vital to the public interest even through a
consultative referendum. Such useful and healthy contact between the government
administrator and the citizenry is the more necessary in a period of martial law, because
the equal participation of the citizenry in the formulation of the will of the State and in its
fundamental political decisions ensures the unity of the people in their efforts to surmount
the crisis. The success then of the political leadership in leading the nation through the
emergency would depend on its ability to convince and persuade, not to dictate and
coerce; to enlist, not to command; to arouse and muster the energies, loyalties, and, if
need be, the sacrifices of the people. As Leibholz aptly observed, "the one essential
presupposition of democracy is that the people as a political unity retains its sovereignty,
and that the majority of the active citizens can express their will in political freedom and
equality."6

IV

It is, however, asserted that the questions asked may not logically be the subject of a
referendum. Thus, it is claimed that some of the questions contemplate vital changes in
the existing form of local government, which changes, under Sections 2 and 3 of Article
XI of the 1973 Constitution, must be submitted to the electorate for ratification in a
plebiscite called for that purpose. Admittedly, the question of the coming referendum
asked the voters in the Greater Manila Area, do not contain a full text of the law proposed
for the ratification or rejection by the people. It is, therefore, not a plebiscite
contemplated by the aforecited Sections 2 and 3 of Article XI of the New Constitution but
merely a referendum, advisory or consultative in character.

Political democracy is essentially a government of consensus. The citizen has "a right and
a duty to judge his own concerns, his acts and their effects, as they bear on the common
good. If they entail the common acts of the community, he again has the duty and right to
contribute to the common deliberation by which the acts of the community are decided."7
Common deliberation or mutual persuasion occurs on all levels of society, and as a result
thereof a common judgment or consensus is formed on those matters which affect the
democratic polity. This is based on the premise that sovereignty in a political democracy
resides in the people and that, their government is founded on their consent. It is in the
formulation of this consensus whether in an election, plebiscite, direct legislation or
advisory referendum or consultation, that the political community manifests its consent or
dissent. The national leadership as the elected representative of the national community
has the duty to be responsive and responsible to this sovereign will. It has been said that
the President "speaks and acts as the people's agent. He lays claim to a mandate from
them for his acts. Authority descends upon him from the nation, not from the other organs
of government."8 In his dual role as Chief Executive and Legislator under martial law,
the incumbent President has, therefore, a greater degree of accountability to the political
community. To discharge effectively that responsibility, he has to ascertain the people's
consensus or common judgment and to act in accordance therewith. Only then can it be
said that his actions represent the people's collective judgment and, therefore, entitled to
their whole-hearted support. The coming referendum is a national undertaking affecting
the future of the country and the people. It, therefore, requires the involvement of every
Filipino. By participating in the national consultation or advisory referendum of February
27, 1975, the Filipino people will prove to the rest of the world their maturity and
capability as a people to make major decisions.

It is nevertheless asserted that a referendum held under present existing circumstances is

of no far-reaching significance because it is being undertaken in a climate of fear. The
infirmity of such a priori judgment is evident from the fact that it is not based on reality.
It betrays a lack of awareness of the strength and character of our people. It is
contradicted by past experience. There has been a deliberate policy to lift gradually the
strictures on freedom attendant to a regime of martial law. Thus, State restrictions on
press freedom had been removed, except over publications which, because of their
subversive or seditious character, are deemed incompatible with the public safety.
Freedom of discussion and of assembly are now encouraged. No less than the incumbent
President of the Philippines has underscored the need for an accurate and honest canvass
of the people's sentiments. As the nation's leader, he is called upon to make bold decisions
in the face of the grave problems confronting the nation, but he is convinced that such
decisions cannot be effective unless rooted in the will and reflective of the true sentiments
of the sovereign people.

Given the determination of the incumbent President to ascertain the true sentiments of the
people, and considering the measures instituted by the Commission on Elections to
safeguard the purity of the ballot, there appears, therefore, no basis for petitioners'
apprehension that the forthcoming referendum will not reflect the people's untrammeled
judgment.

The foregoing opinion contains in brief the reasons for my concurrence with the main
opinion and the separate opinions of Justices Castro and Barredo.

FERNANDEZ, J., concurring:

The present case calls for an interpretation of the New Constitution, particularly its
Transitory Provisions. Privileged as I was to be a member of the Constitutional
Convention that drafted the Constitution, I feel it my duty to write this concurring opinion
in the hope that I may be able to shed light, even if only modestly, on the fundamental
questions involved in this case, on the basis of what I personally know and in the light of
the records of the Convention, to show the understanding and intention of the Delegates
when they discussed and voted on the constitutional provisions involved in this case.

The pertinent provisions of the New Constitution upon which the parties in this case base
their respective claims are:

ARTICLE XVII
TRANSITORY PROVISIONS

SECTION 1. There shall be an interim National Assembly which shall exist

immediately upon the ratification of this Constitution and shall continue until the
Members of the regular National Assembly shall have been elected and shall
have assumed office following an election called for the purpose by the interim
National Assembly. Except as otherwise provided in this Constitution, the
interim National Assembly shall have the same powers and its Members shall
have the same functions, responsibilities, rights, privileges, and disqualifications
as the regular National Assembly and the Members thereof.
 Sec. 2. The Members of the interim National Assembly shall be the incumbent
President and Vice-President of the Philippines, those who served as President of
the Nineteen hundred and seventy-one Constitutional Convention, those
Members of the Senate and the House of Representatives who shall express in
writing to the Commission on Elections within thirty days after the ratification of
this Constitution their option to serve therein, and those Delegates to the
nineteen hundred and seventy-one Constitutional Convention who have opted to
serve therein by voting affirmatively for this Article. They may take their oath of
office before any officer authorized to administer oath and qualify thereto, after
the ratification of this Constitution.

Sec. 3. (1) The incumbent President of the Philippines shall initially convene the
interim National Assembly and shall preside over its sessions until the interim
Speaker shall have been elected. He shall continue to exercise his powers and
prerogatives under the nineteen hundred and thirty-five Constitution and the
powers vested in the President and the Prime Minister under this Constitution
until he calls upon the interim National Assembly to elect the interim President
and the interim Prime Minister, who shall then exercise their respective powers
vested by this Constitution.

(2) All proclamations, orders, decrees, instructions, and acts promulgated, issued,
or done by the incumbent President shall be part of the law of the land, and shall
remain valid, legal, binding, and effective even after lifting of martial law or the
ratification of this Constitution, unless modified, revoked, or superseded by
subsequent promulgations, orders, decrees, instructions, or other acts of the
incumbent President, or unless expressly and explicitly modified or repealed by
the regular National Assembly.

xxx xxx xxx

The discussion on these Transitory Provisions in the plenary session1 of the

Constitutional Convention on October 18, 19 and 20, 19722 and the votes thereon clearly
show:

1. That the determination of the date the interim National Assembly should be convened
was left to the judgment of the President, the country being, as it still is, under martial
law;

2. That the incumbent President legally holds office as such having been authorized to
continue in office and to exercise not only the powers of the President under the 1935
Constitution but also those of the President and Prime Minister under the 1973
Constitution, from the time the New Constitution was ratified on January 17, 1973 until
the election of the interim President and interim Prime Minister which up to now has not
yet taken place; and

3. That included in the powers of the President under the 1935 Constitution and the
powers of the Prime Minister under the 1973 Constitution is the power to declare martial
law which in turn includes the power to make all needful rules and regulations with the
force and effect of law until the termination of the martial rule.

The minutes of the plenary session of the Convention of October 18, 1972 contain the
sponsorship speech of Delegate Yaneza, Chairman of the Committee on Transitory
Provisions. He described the proposed interimgovernment as a practical response to our
abnormal conditions presently obtaining in the country. He explained that in order to
effectively implement reform measures under the New Constitution, the nation should be
relieved of the burden of political and national elections during the transitory period. The
proposed interim National Assembly should therefore be composed of present elective
government officials, together with members of the Convention who would vote for its
creation and who could be of great help, in view of their familiarity with the provisions of
the New Constitution, in the enactment of reform measures to be approved by the interim
National Assembly pursuant to the mandates of the New Constitution. Delegate Yaneza
was interpellated by Delegates Suarez, Tupaz (A), Jamir, Ledesma (F), Alano, Sanchez,
Molina, Siguion Reyna, Pimentel, Laurel, Encarnacion, Pacificador, Ordoñez, Teves,
Gonzales, and his co-sponsor, Delegate Abundo.

The following exchange took place between Delegate Pimentel and Delegate Yaneza.

DELEGATE PIMENTEL (V): Thank you, Mr. Chairman. Now Section 3 has
been repeatedly the basis of certain questions. It says: "the incumbent President
of the Philippines shall initially convene." Will it not be better if we state here,
"shall immediately convene? Or we should provide a certain number of days or
months perhaps after the ratification of the Constitution when the President shall
initially convene the ad interim Assembly?

DELEGATE YANEZA: Yes, Your Honor, we can. We see your point and we
have discussed that in the Committee lengthily, but we arrived at a decision to
give our President flexibility regarding this particular matter, Your honor. And
we feel that we have decided this matter with some wisdom and with
consideration of the present situation obtaining in our country. (Emphasis
supplied)

The minutes of the plenary session of the Convention of October 19, 1972 show, among
others, the following:

Delegate Reyes (J) inquired whether the incumbent President of the Republic would be at
the same time President and the Prime Minister under the interim Government. Delegate
Yaneza answered affirmatively, adding that the President would actually have a triple
personality since he would exercise powers under the two Constitutions.

Delegate Garcia (L.M.) asked whether the interim Assembly could convene without the
approval of the President, to which Delegate Britanico (a co-sponsor) replied in the
negative.
Delegate Barrera (former Supreme Court Justice) was the first to speak against the
approval of Sections 1, 2 and 3 of the Transitory Provisions. He was interpellated by
Delegates Lim, Laggui and Raquiza. He was followed by Delegate Teves who also spoke
against the Transitory Provisions in question. Teves was interpellated by Delegates
Purisima, Adil, and Siguion Reyna. Delegate David (J) was the next opposition speaker.
He was in turn interpellated by Delegate Tupaz (A.).

On October 20, 1972, Delegate Concordia continued the opposition against the Transitory
Provisions, followed by Delegate Garcia (L.M.) who was interpellated by Delegates
Bersola Catan and Leido.

The chair then declared the period of rebuttal open and recognized Delegate Cuaderno as
first speaker. Cuaderno said that he favored the article on the interim Government mainly
because of the benefits of martial law.

Delegate Mutuc was the next rebuttal speaker. He confined his speech to the ratification
of all proclamations, orders, decrees, instructions and acts proclaimed, issued or done by
the present administration under martial law, contending that only the sovereign people
could pass judgment with finality on the same.

Delegate Fernandez followed. And the last rebuttal speaker was Delegate Serrano who
maintained that the interimNational Assembly was a necessity, to fill the vacuum of
constitutional processes that could arise should the President continue in office beyond
his tenure so that he could see the fruition of his efforts to restore normalcy in the
country.

The strongest attack on the Transitory Provisions was delivered by Delegate Jesus
Barrera of Rizal, a former Justice of the Supreme Court. This was rebutted by Delegate
Estanislao A. Fernandez of Laguna (now a humble member of this Court). Both speeches
covered all the principal points.

Modesty aside, we now beg to summarize their arguments, as follows:

Delegate Barrera: It is immoral for us to vote Yes, because that would be

practically electing ourselves as members of the interim National Assembly
when we were elected by the people only for the purpose of writing a
Constitution.

Delegate Fernandez: True, when we were elected, our mandate from the people
was only to write a new Constitution. But then there was no martial law yet.
With martial law, there arose a need for an interim Government, specifically, an
interim National Assembly. No one has previously received any mandate from
our people on who should be members of this interim National Assembly. No
one can say as of now whether it is immoral, and even moral, for us to vote Yes.
For my part, I will vote Yes because if I vote No, I would foreclose my right to
become a member of this interim National Assembly. I will vote Yes. Afterwards
 I will consult with the people of the second district of Laguna on this matter. If
they say "Fernandez, you committed an error", then I will not take my oath.
However, if they say "Fernandez, you did well so that we can have an additional
representative in the interim National Assembly," then I will take my oath. By
that time, I think nobody can say it was immoral for me to have voted Yes. But
what is most important is whether or not the members of the interim National
Assembly succeed in the discharge of their duties and responsibilities. If they
fail, then our people and history will condemn them. If they succeed, our people
and history may commend them.

Delegate Barrera: As long as the interim National Assembly does not call for the
election of the regular members of the National Assembly, the members of this
interim Assembly will continue in office. For how long, it is not determined. In
view of the high salary of the members of the National Assembly (P60,000.00 a
year), there will be a temptation for them not to call for the election of the
members of the regular National Assembly, for a long, long time.

Delegate Fernandez: I disagree. We must grant that the members of the interim
National Assembly would be possessed with a sense of decency and patriotism
that would make them realize the impropriety of overstaying in office. And the
people will always be there to demonstrate thru the media and the streets to
compel the interim National Assembly to call for a regular election.

Delegate Barrera: But it is wishful thinking on the part of the members of the
convention to vote Yes and thereby become members of the interim National
Assembly because the President may unduly delay the lifting of martial law and
the calling of the National Assembly into a session. Then he will be President for
life.

Delegate Fernandez: What is the premise of the conclusion of the Delegate from
Rizal that the President will unduly delay the lifting of martial Law and the
calling of the interim Assembly into a session? Nothing. For my part, I wish to
advance a premise. If it is valid, the conclusion will be valid. I believe President
Marcos will want to go down in history as a good President. If this premise is
good and I believe it is, then he will not abuse. He will lift martial law and
convene the interim National Assembly at the proper time. He will not be
President for life.

Delegate Abundo then said that the committee had accepted the following amendment:
"(b) the Mariño amendment to Section 2 concerning "those members of both the Senate
and House of Representatives to express in writing to the Commission on Elections their
option to sit in the assembly within 30 days after the ratification of the Constitution, etc."
There being no objection, the above amendment was approved.

Delegate Yuzon proposed to fix the date of the election of the members of the regular
Assembly to "not later than May, 1976." Delegate Renulla proposed 1977 instead.
Delegate Yuson accepted the amendment, but when submitted to a vote, the amendment
was lost. Other amendments were proposed and were lost.

Delegate Pacificador moved to suspend the rules so that voting on the draft Transitory
Provisions could be considered as voting on second and third reading and proposed that
absent delegates be allowed to cast their votes in writing and deliver them to the
Committee on Credentials within 72 hours from that day.

The voting followed and the chair announced that by a vote of 274 in favor and 14
against the draft Transitory Provisions were approved on second and third reading. And
among the delegates that voted affirmatively in favor of these Transitory Provisions
whose interpretation is now the subject of the present case, were: Delegate Alonto
(former Senator from Lanao), Delegate Aruego (the well-known author on the framing of
the Constitution), Delegate Baradi (former Ambassador), Delegate Borra (former
COMELEC Chairman), Delegate Cuaderno (Member of the first Constitutional
Convention and Economist who recently passed away), Delegate De las Alas (former
Speaker of the House of Representatives), Delegate Laurel (who was President
Protempore of the Convention), Delegate Feliciano Ledesma (Dean of the College of
Law of San Beda), Delegate Oscar Ledesma (former Senator), Delegate Leido (former
Congressman and Secretary of Finance), Delegate Liwag (former Secretary of Justice and
Senator), Delegate Marino (former Executive Secretary and Secretary of Justice),
Delegate Mutuc (former Executive Secretary and Ambassador), Delegate Father Pacifico
Ortiz, Delegate Ceferino Padua (lawyer of former Senator Sergio Osmeña, Jr.), Delegate
Jose Ma. Paredes (former Justice of the Supreme Court), Delegate Godofredo Ramos
(veteran legislator), Delegate Sinco (former UP President and an authority on
Constitutional Law), Delegate Serrano (former Secretary of Foreign Affairs), Delegate
Sumulong (former Congressman), Delegate Sinsuat (former Member of the Cabinet),
Delegate Domingo Veloso (former Speaker Protempore of the House of Representatives),
Delegate Concordia(former Congressman), and Delegate Fernandez.

The foregoing, in our humble opinion, clearly show:

a) That when the Delegates to the Constitutional Convention voted on the Transitory
Provisions, they were aware of the fact that under the same, the incumbent President was
given the discretion as to when he could convene the interim National Assembly; it was
so stated plainly by the sponsor, Delegate Yaneza; as a matter of fact, the proposal that it
be convened "immediately", made by Delegate Pimentel (V), was rejected; and

b) That the incumbent President, or President Marcos to be more specific, was to

continue in the office as President with triple powers, upon and even after the ratification
of the New Constitution (January 17, 1973), and until the election of the interim President
and interim Prime Minister (which has not taken place even up to now), and even after
December 30, 1973 when the term of office of the incumbent President would have
expired under the 1935 Constitution. Hence, the incumbent President continued and
continues to be the constitutional and therefore de jure President of our country.
Subsequent events proved the wisdom of the decision of the Convention to give the
President a wide discretion when to convene the interim National Assembly.

a) For although the peace and order condition of the country has improved, it suffered a
relapse. The rebellion had not been completely quelled. Only last January 29, 1975, for
instance, the newspapers carried the report that according to President Marcos —
"Muslim insurgents had broken a truce in Mindanao and Sulu resulting in a fresh
outbreak of hostilities and in heavy casualties." ... "Muslim secessionists ... had taken
over three towns in Mindanao and Sulu." ... "An Armed Forces contingent of 42 men,
including three officers and the battalion commander, were wiped out in a surprise raid."

b) The oil crises which brought about worldwide inflation, recession and depression,
created problems which, according to economic experts, can be solved effectively only
with the President exercising legislative powers. A National Assembly would take a
longer period of time to be able to pass the necessary legislation to cope with this
worsening economic situation.

c) And what is most important is that in addition to the criticisms levelled in the
Convention against the membership of the interim National Assembly, the people
themselves expressed their disfavor against the interim Assembly by voting against its
immediate convening when they ratified the Constitution on January 10-15, 1973. In the
July 24, 1973 referendum, the Barangays reiterated their decision of January, 1973 to
suspend the convening of the interimNational Assembly. And in connection with the
forthcoming February 27, 1975 referendum, many members of this interim National
Assembly themselves asked that the question of whether or not the assembly should
immediately be convened be eliminated, as in fact it was eliminated, because the people
had already decided against the immediate convening of the interim Assembly.

Perhaps, it was a blessing in disguise that before this interim National Assembly could be
convened, it has been "fiscalized" in advance be our people. The people apparently have
expressed their distrust of this interim Assembly. This has become a standing challenge so
that when this interim Assembly is finally convened, its members may discharge their
duties and responsibilities in such a manner as to rebut successfully the basis for the
opposition of the people to its being convened in the meantime.

I have adverted to the proceedings of the Constitutional Convention because it supports

the literal interpretation of the Constitution which I now wish to make. The wording of
the New Constitution is, I believe, clear. Considering the condition in which the country
was at the time they approved the draft of the Constitution, it would have been
unthinkable for the Constitutional Convention not to have provided for a continuity in the
office of the Chief Executive.

It is equally unthinkable that the Constitutional Convention, while giving to the President
the discretion when to call the interim National Assembly to session, and knowing that it
may not be convened soon, would create a vacuum in the exercise of legislative powers.
Otherwise, with no one to exercise the law-making powers, there would be paralyzation
of the entire governmental machinery. Such an interpretation of the Transitory Provisions
is so absurd it should be rejected outright.

The original wording of Article XVII, Section 3(2) was that "all proclamations, orders,
decrees, instructions and acts promulgated, issued or done by the present administration
are hereby ratified and confirmed as valid." The words "ratified and confirmed" had been
changed into "shall be part of the law of the land," because under the first clause, it would
imply that the incumbent President did not have the authority to issue the proclamations,
orders, decrees, instructions and acts referred to. The Convention conceded that the
President had that power; and that is the reason why the phrase "shall be part of the law
of the land" was the one finally used.

Parenthetically, the Constitutional Convention itself recognized expressly the legislative

power of the incumbent President to enact an appropriation law when it asked and the
same was given by the incumbent President additional funds at the time when there was
already martial law.

I wish to add that this legislative power of the President under martial law should not be
limited to the legislative power under the old classical concept of martial law rule. For the
modern concept of martial law rule includes not only the power to suppress invasion,
insurrection or rebellion and imminent danger thereof, but also to prevent their
resurgence by the removal of the causes which gave rise to them; in a word, the reform of
our society.

In the speech that I delivered as a Delegate from Laguna in the Constitutional Convention
in its plenary session of October 20, 1972, I stated my firm conviction that President
Marcos would want to go down in history as a good President. This was not only a belief
but a challenge to him as well; and I am glad that subsequent events proved the
correctness of my stand. In one of his books, he himself said:

Moreover, we have embarked upon the experiment with the full knowledge that
its outcome will depend on most of us, not just a few who are managing a
"command society." The misgivings are large; the most outstanding is the fear of
a powerful few holding the many in subjection. But this fear misses the
particularity of Philippine martial law; it cannot and not exist without the clear
and not manipulated consent of the governed. Our people will accept only
sacrifices which are justifiable to them.

It is more than a homily to assert that the New Society is not a promised land
that patiently awaits our arrival. More than a place in time or space, the New
Society is a vision in our minds: this can be realized only through the strength of
our resolution.

I am mindful of the fact that historically authoritarian regimes tend to outlive

their justification. I do not intend to make a permanent authoritarianism as my
legacy to the Filipino people. It is sufficiently clear to them, I believe, that
 martial law is an interlude to a new society, that it is, in sum, a Cromwellian
phase in our quest for a good and just society. Certainly the enterprise is worth a
little sacrifice. (Marcos, The Democratic Revolution in the Philippines, 217-218,
[1974]).

And in his speech before government elective officials of Bulacan last January 29, 1975
as reported in the newspapers of last January 30, 1975, he solemnly said that should the
coming referendum fail to give him a vote of confidence, he would call the interim
National Assembly to session and that more than that, he would ask the Assembly to
immediately fix the date for elections of the members of the National Assembly; and that
in such a case, he would run in his district for a seat in the Assembly.

And so, it is now up for the people to speak in the coming February 27, 1975 referendum.
The information campaign should now go in full gear. The Commission on Elections
should emphasize the freedom of debate during the campaign; it should emphasize the
freedom of the people to express themselves not only in the debates but more so as they
cast their ballots, by safeguarding the secrecy of the ballot. And the Commission should
redouble its efforts to assure the people that there will be a true, correct and accurate
reading of the ballots, counting of the votes, and a report of the results of the referendum.

IN VIEW OF ALL THE FOREGOING, I repeat my concurrence in the decision of this

Court and in the separate opinions of Justices Castro and Barredo. The petition should
thus be dismissed, without costs.

TEEHANKEE, J., concurring and dissenting:

In concur with the main opinion insofar as it recognizes President Ferdinand E. Marcos as
the "incumbent President" and head of government who is vested with authority under
Article XVII, section 3 (1) of the Transitory Provisions of the 1973 Constitution to
"continue to exercise his powers and prerogatives under the 1935 Constitution and the
powers vested in the President and Prime Minister under this Constitution."

I am constrained, however, to dissent from the remaining portion thereof which dismisses
the petition, on the basis of serious constitutional grounds as briefly expounded
hereinafter.

1. It cannot be gainsaid that the single most important change effected by the 1973
Constitution is the change of our system of government from presidential to
parliamentary wherein the legislative power is vested in a National Assembly1 and the
Executive Power is vested in the Prime Minister who "shall be elected by a majority of all
the members of the National Assembly from among themselves."2 The President who is
likewise elected by a majority vote of all the members of the National Assembly from
among themselves "shall be the symbolic head of state."3

To carry out the "orderly transition from the presidential to the parliamentary system,"
section 1 of the Transitory Provisions decreed that:
 SECTION 1. There shall be an interim National Assembly which shall exist
immediate upon the ratification of this Constitution and shall continue until the
Members of the regular National Assembly shall have been elected and shall
have assumed office following an election called for the purpose by the interim
National Assembly. Except as otherwise provided in this Constitution, the
interim National Assembly shall have the same powers and its Members shall
have the same functions, responsibilities, rights, privileges, and disqualifications
as the regular National Assembly, and the Members thereof. (Art. XVII)

Section 2 of the Transitory Provisions provides for the members of the interim National
Assembly. The Solicitor General stated at the hearing that the interim National Assembly
came into existence after the proclamation on January 17, 1973 of the ratification of the
Constitution per Proclamation No. 1102 when the members thereof took their oath of
office and qualified thereto in accordance with the cited section and continues in
existence at the present time without having been convened.

Petitioners raise the question as to the scheduled referendum called for February 27, 1975
that the calling of a referendum and the appropriation of funds therefor are essentially
legislative acts while the transitory powers and prerogatives vested in President Marcos
until the election of the interim Prime Minister and interim President under section 3 (1)
of the Transitory Provisions are executive and not legislative powers, since the powers of
the President under the 1935 Constitution and those of the Prime Minister under the 1973
Constitution are essentially executive powers; more so, with respect to the powers of the
President under the 1973 Constitution which are symbolic and ceremonial.

While the Solicitor General has cited the President's powers under martial law and under
section 3 (2) of the Transitory Provisions 4 as vesting him with Šlegislative powers, there
is constitutional basis for the observation that his legislative and appropriation powers
under martial law are confined to the law of necessity of preservation of the state which
gave rise to its proclamation 5 (including appropriations for operations of the government
and its agencies and instrumentalities).

Rossiter, as extensively cited by Solicitor General, has thus stressed that "the measures
adopted in the prosecution of a constitutional dictatorship should never be permanent in
character or effect. ... The actions directed to this end should therefore be provisional. ...
Permanent laws, whether adopted in regular or irregular times are for parliaments to
enact," and that "a radical act of permanent character, one working lasting changes in the
political and social fabric (which) is indispensable to the successful prosecution of the
particular constitutional dictatorship ... must be resolutely taken and openly
acknowledged [as exemplified by U.S. President Lincoln's emancipation proclamation] ...
Nevertheless, it is imperative that any action with such lasting effects should eventually
receive the positive approval of the people or of their representatives in the legislature."6

Even from the declared Presidential objective of using Martial Law powers to
institutionalize reforms and to remove the causes of rebellion, such powers by their very
nature and from the plain language of the Constitution7 are limited to such necessary
measures as will safeguard the Republic and suppress the rebellion (or invasion) and
measures directly connected with removing the root causes thereof, such as the tenant
emancipation proclamation.8 The concept of martial law may not be expanded, as the
main opinion does, to cover the lesser threats of "worldwide recession, inflation or
economic crisis which presently threatens all nations" 9 in derogation of the Constitution.

On the other hand, those legislative powers granted in the cited section 3 (2), known as
the validating provision which validated the President's acts and decrees after the
proclamation of martial law up to the ratification of the Constitution are limited to
modifying, revoking or superseding such validated acts and decrees done or issued prior
to the proclaimed ratification, since section 7 of the Transitory Provisions 10 expressly
reserves to the National Assembly the legislative power to amend, modify or repeal "all
existing laws not inconsistent with this Constitution."

The question is thus reduced as to whether now after the lapse of two years since the
adoption of the 1973 Constitution, the mandate of section 3 (1) of the Transitory
Provisions for the convening, of the existing interimNational Assembly should be
implemented — not for purposes of an action of mandamus which cannot be availed of
because of the separation of powers — but for the present action of prohibition against
respondents officials which asserts that the questioned referendum comes within the
constitutional domain of the interim National Assembly and that after the coming into
"immediate existence of the interim National Assembly upon the proclamation of
ratification of the Constitution, the "initial convening" thereof with the election of the
interim Speaker and the election of the interim President and the interim Prime Minister
should have followed as a matter of course. The cited provision reads:

SEC 3. (1) The incumbent President of the Philippines shall initially convene the
interim National Assembly and shall preside over its sessions until the interim
Speaker shall have been elected. He shall continue to exercise his powers and
prerogatives under the nineteen hundred and thirty-five Constitution and the
powers vested in the President and the Prime Minister under this Constitution
untilhe calls upon the interim National Assembly to the elect the interim
President and the interim Prime Minister, who shall then exercise their respective
powers vested by this Constitution. (Art. XVII)

2. The above quoted pertinent provisions indicate an affirmative answer. It is axiomatic

that the primary task in constitutional construction is to ascertain and assure the
realization of the purpose of the framers and of the people in the adoption of the
Constitution and that the courts may not inquire into the wisdom and efficacy of a
constitutional or statutory mandate.

Where the language used is plain and unambiguous, there is no room for interpretation.
"It is assumed that the words in which constitutional provisions are couched express the
objective sought to be attained. They are to be given their ordinary meaning except where
technical terms are employed in which case the significance thus attached to them
prevails. As the Constitution is not primarily a lawyer's document, it being essential for
the rule of law to obtain that it should ever be present in the people's consciousness, its
language as much as possible should be understood in the sense they have in common
use. What it says according to the text of the provision to be construed compels
acceptance and negates the power of the courts to alter it, based on the postulate that the
framers and the people mean what they say." 11

The mandate of section 1 of the Transitory Provisions that the interim National Assembly
shall "exist immediatelyupon the ratification of this Constitution" calls for its coming into
existence "right away" as conceded by respondents at the hearing. Likewise, as affirmed
by the Solicitor General, its members as provided in section 2 duly took their oath of
office and qualified thereto, upon the proclamation of ratification. The clear import of
section 3 in order to give meaning and effect to the creation and "immediate existence" of
the interim National Assembly is that the incumbent President shall then proceed to
"initially (i.e. "in the first place: at the beginning") 12 convene" it and preside over its
sessions until the election of the interim Speaker after which he calls for the election of
the interimPresident and the interim Prime Minister "who shall then exercise their
respective powers vested by this Constitution." (The "incumbent President" then bows
out and is succeeded by the Prime Minister who may of course be himself).

This view is further strengthened by the expectations aired in the debates of the 1971
Constitutional Convention that a parliamentary government would be more responsible
and responsive to the people's needs and aspirations. Thus, in section 5 of the Transitory
Provision, the interim National Assembly was charged with the mandate to "give priority
to measures for the orderly transition from the presidential to the parliamentary system,
the reorganization of the Government the eradication of graft of and corruption, the
effective maintenance of peace and order, the implementation of declared agrarian
reforms, the standardization of compensation of government employees, and such other
measures as shall bridge the gap between the rich and the poor" — urgent and long-
lasting measures which the President has single-handedly confronted up to now.

3. The manifestation of the Solicitor General that the schedule referendum is merely
consultative and thus includes the participation of voters below 18 years of age but at
least 15 years old (who are not qualified enfranchised voters under Article VI on suffrage
of the 1973 Constitution which decrees a minimum age of 18 years for qualified voters)
adds weight to the view that the existing interim National Assembly be now convened
and perform its constitutional functions as the legislative authority. From the very nature
of the transitory provision which created it, its existence must likewise be interim, i.e.
temporary provisional, of passing and temporary duration (as opposed to permanent and
the regular institutions provided for in the first 15 Articles of the Constitution) until after
it shall have reapportioned the Assembly seats 13 and called for the election of the
members of the regular National Assembly. 14The convening of the interim National
Assembly with its cross-section of knowledgeable representatives from all over the
country was obviously hopefully conceived to serve (more than consultative
referendums)to apprise the President of the people's and their constituencies' views as
well as to assist him as mandated by the Constitution in the enactment of priority measure
to achieve fundamental and far-reaching reforms.
4. While it has been advanced that the decision to defer the initial convocation of the
interim National Assembly was supported by the results of the referendum in January,
1973 when the people voted against the convening of the interim National Assembly for
at least seven years, 15 such sentiment cannot be given any legal force and effect in the
light of the State's admission at the hearing that such referendums are merely consultative
and cannot amend the Constitution or any provision or mandate thereof such as the
Transitory Provisions which call for the "immediate existence" and "initial convening" of
the interim National Assembly to "give priority to measures for the orderly transition
from the presidential to the parliamentary system" and the other urgent measures
enumerated in section 5 thereof. 16

This seems self-evident for the sovereign people through their mutual compact of a
written constitution have themselves thereby set bounds to their own power, as against
the sudden impulse of mere and fleeting majorities, 17and hence have provided for strict
adherence with the mandatory requirements of the amending process through a fair and
proper submission at a plebiscite, with sufficient information and full debate to assure
intelligent consent or rejection. 18

5. Finally, the imposition of penal sanctions of imprisonment and fine upon the citizens
who fail to register and vote in the scheduled referendum is open to serious constitutional
question. It seems clear that the calling of "consultative referendum" is not provided for
nor envisaged in the Constitution as the appropriate vehicle therefor is provided through
the interim and regular National Assemblies. It should perhaps be reexamined whether
the mandate of the Constitution that "it shall be the obligation of every citizen qualified to
vote to register and cast his vote" (at elections of members of the National Assembly and
elective local officials and at plebiscites, as therein provided for) and the criminal
penalties imposed in the questioned decrees should be deemed applicable to such extra-
constitutional consultative referendums wherein non-qualified voters (the 15-year olds up
to below 18) are asked to participate.

MUÑOZ PALMA, J., concurring and dissenting:

The views I express in this separate opinion will briefly explain my position on the
principal issues posed in this Petition for Prohibition.

1. President Ferdinand E. Marcos and no other is the person referred to as "incumbent

President" in Article XVII to which we shall refer for short as the Transitory Provisions
of the 1973 Constitution. That fact is beyond doubt because at the time the draft of the
new Constitution was being prepared and when it was finally signed by the delegates to
the 1971 Constitutional Convention on November 30, 1972, it was President Marcos who
was holding the position of President of the Philippines.

2. As such incumbent President, President Marcos was vested by Section 3(1) of the
Transitory Provisions with constitutional authority to continue as President of the
Philippines during the transition period contemplated in said Article XVII that is, until the
interim President and the interim Prime Minister shall have been elected by the
interimNational Assembly who shall then exercise their respective powers vested by the
new Constitution, after which the office of the incumbent President ceases. During that
transition period, President Marcos was given extraordinary powers consisting of the
powers and prerogatives of the President under the 1935 Constitution, and the powers
vested in the President and the Prime Minister under the 1973 Constitution.1

3. Aside from the vest executive powers granted to the incumbent President as indicated
above, he was granted under Section 3(2) of the same Transitory Provisions legislative
powers, in the sense, that all proclamations, orders, decrees, instructions, and acts which
were promulgated, issued, or done by the incumbent President before the ratification of
the Constitution were declared part of the law of the land, to remain valid, legal, binding
or effective even after the lifting of martial law or the ratification of the Constitution,
unless modified, revoked or superseded by subsequent proclamations, etc., by the
incumbent President or unless expressly and explicitly modified or repealed by the
regular National Assembly. As to, whether or not, this unlimited legislative power of the
President continue to exist even after the ratification of the Constitution is a matter which
I am not ready to concede at the moment, and which at any rate I believe is not essential
in resolving this Petition for reasons to be given later. Nonetheless, I hold the view that
the President is empowered to issue proclamations, orders, decrees, etc. to carry out and
implement the objectives of the proclamation of martial law be it under the 1935 or 1973
Constitution, and for the orderly and efficient functioning of the government, its
instrumentalities, and agencies. This grant of legislative power is necessary to fill up a
vacuum during the transition period when the interim National Assembly is not yet
convened and functioning, for otherwise, there will be a disruption of official functions
resulting in a collapse of the government and of the existing social order.

4. Because the grant of vast executive and legislating powers to the incumbent President
will necessarily, result in what the petitioners call a one-man rule as there is a
concentration of power in one person, it is my opinion that it could not have been the
intent of the framers of the new Constitution to grant to the incumbent President an
indefinite period of time within which to initially convene the interim National Assembly
and to set in motion the formation of the Parliamentary form of government which was
one of the purposes of adopting a new Constitution. I believe that the interim National
Assembly came automatically into existence upon the ratification of the 1973
Constitution. As a matter of fact, from the submission of the Solicitor General, it appears
that many if not all of those entitled to become members of the interim National
Assembly have opted to serve therein and have qualified thereto in accordance with the
requirements of Section 2 of the Transitory Provisions.2

We cannot, therefore, reasonably construe the absence of a specific period of time for the
President to initially convene the interim Assembly as placing the matter at his sole
pleasure and convenience for to do so would give rise to a situation in which the
incumbent President could keep the intent National Assembly in suspended animation
and prevent it from becoming fully operational as long as he pleases. This would violate
the very spirit and intent of the 1973 Constitution more particularly its Transitory
Provisions to institute a form of government, during the transition period, based upon the
fundamental principle of the "separation of powers," with its checks and balances, by
specifically providing that there shall exist immediately upon the ratification of the 1973
Constitution an interimNational Assembly in which legislative power shall exercise all
the powers and prerogatives which are executive in character, and that the judicial power
shall continue to be vested in the Judiciary existing at the time of the coming into force
and effect of the 1973 Constitution. The situation would also render nugatory the
provisions of Section 5 of the Transitory Provisions which assign to the interim National
Assembly a vital role to perform during the transition period.3

While it is true that the convening of the interim National Assembly cannot be said to be
simply at the pleasure and convenience of the President, however, the matter is one
addressed to his sound discretion and judgment for which he is answerable alone to his
conscience, to the people he governs, to posterity, and to history.

5. Coming now to the particular problem of the coming referendum on February 27,
1975, it is my view that the act of the President in calling such a referendum is not really
in the nature of a legislative act which violates the present Constitution. I do not see any
prohibition in the Constitution for the Chief Executive or the President to consult the
people on national issues which in his judgment are relevant and important. I use the
word "consult" because in effect the measure taken by the President is nothing more than
consultative in character and the mere fact that such measure or device is called a
referendum in the Presidential Decrees in question will not affect nor change in any
manner its true nature which is simply a means of assessing public reaction to the given
issues submitted to the people for their consideration. Calling the people to a consultation
is, we may say, derived from or within the totality of the executive power of the
President, and because this is so, it necessarily follows that he has the authority to
appropriate the necessary amount from public funds which are subject to his executive
control and disposition to accomplish the purpose.

6. I am constrained to agree with petitioners that a referendum held under a regime of

martial law can be of no far-reaching significance because it is being accomplished under
an atmosphere of climate of fear. There can be no valid comparison between a situation
under martial rule and one where the privilege of the writ of habeas corpus is suspended,
as discussed in the Opinion of Justice Makasiar, because the former entails a wider area
of curtailment and infringement of individual rights, such as, human liberty, property
rights, rights of free expression and assembly, protection against unreasonable searches
and seizures, liberty of abode and of travel, etc.4

7. Finally, whatever maybe the totality of the answers given to the proposed referendum
questions on local government will be of no real value to the President because under
Article XI, Section 2, 1973 Constitution, it is the National Assembly which is empowered
to enact a local government code, and any change in the existing form of local
government shall not take effect until ratified by the majority of the votes cast in a
plebiscite called for the purpose, all of which cannot be complied with for the simple
reason that for the present there is no National Assembly. Moreover, any vote given on
this matter cannot be truly intelligent considering the vagueness of the question as drafted
and the short period of time given to the citizenry to study the so-called manager or
commission type of local government being submitted to the voters.

8 In conclusion, if I concur in the dismissal of the Petition for prohibition it is for the
simple reason that I believe that calling a referendum of this nature is a valid exercise of
executive power not prohibited by the Constitution as discussed in number 5 of this
Opinion.
 15. Estrada vs. Desierto

G.R. No. 146710-15 March 2, 2001

JOSEPH E. ESTRADA, petitioner,

vs.
ANIANO DESIERTO, in his capacity as Ombudsman, RAMON GONZALES,
VOLUNTEERS AGAINST CRIME AND CORRUPTION, GRAFT FREE
PHILIPPINES FOUNDATION, INC., LEONARD DE VERA, DENNIS FUNA,
ROMEO CAPULONG and ERNESTO B. FRANCISCO, JR., respondent.

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

G.R. No. 146738 March 2, 2001

JOSEPH E. ESTRADA, petitioner,

vs.
GLORIA MACAPAGAL-ARROYO, respondent.
PUNO, J.:

On the line in the cases at bar is the office of the President. Petitioner Joseph Ejercito
Estrada alleges that he is the President on leave while respondent Gloria Macapagal-
Arroyo claims she is the President. The warring personalities are important enough but
more transcendental are the constitutional issues embedded on the parties' dispute. While
the significant issues are many, the jugular issue involves the relationship between the
ruler and the ruled in a democracy, Philippine style.

First, we take a view of the panorama of events that precipitated the crisis in the office of
the President.

In the May 11, 1998 elections, petitioner Joseph Ejercito Estrada was elected President
while respondent Gloria Macapagal-Arroyo was elected Vice-President. Some ten (10)
million Filipinos voted for the petitioner believing he would rescue them from life's
adversity. Both petitioner and the respondent were to serve a six-year term commencing
on June 30, 1998.

From the beginning of his term, however, petitioner was plagued by a plethora of
problems that slowly but surely eroded his popularity. His sharp descent from power
started on October 4, 2000. Ilocos Sur Governor, Luis "Chavit" Singson, a longtime
friend of the petitioner, went on air and accused the petitioner, his family and friends of
receiving millions of pesos from jueteng lords.1

The exposẻ immediately ignited reactions of rage. The next day, October 5, 2000, Senator
Teofisto Guingona, Jr., then the Senate Minority Leader, took the floor and delivered a
fiery privilege speech entitled "I Accuse." He accused the petitioner of receiving some
P220 million in jueteng money from Governor Singson from November 1998 to August
2000. He also charged that the petitioner took from Governor Singson P70 million on
excise tax on cigarettes intended for Ilocos Sur. The privilege speech was referred by then
Senate President Franklin Drilon, to the Blue Ribbon Committee (then headed by Senator
Aquilino Pimentel) and the Committee on Justice (then headed by Senator Renato
Cayetano) for joint investigation.2

The House of Representatives did no less. The House Committee on Public Order and
Security, then headed by Representative Roilo Golez, decided to investigate the exposẻ of
Governor Singson. On the other hand, Representatives Heherson Alvarez, Ernesto
Herrera and Michael Defensor spearheaded the move to impeach the petitioner.

Calls for the resignation of the petitioner filled the air. On October 11, Archbishop Jaime
Cardinal Sin issued a pastoral statement in behalf of the Presbyteral Council of the
Archdiocese of Manila, asking petitioner to step down from the presidency as he had lost
the moral authority to govern.3 Two days later or on October 13, the Catholic Bishops
Conference of the Philippines joined the cry for the resignation of the petitioner.4 Four
days later, or on October 17, former President Corazon C. Aquino also demanded that the
petitioner take the "supreme self-sacrifice" of resignation.5 Former President Fidel
Ramos also joined the chorus. Early on, or on October 12, respondent Arroyo resigned as
Secretary of the Department of Social Welfare and Services6 and later asked for
petitioner's resignation.7 However, petitioner strenuously held on to his office and
refused to resign.

The heat was on. On November 1, four (4) senior economic advisers, members of the
Council of Senior Economic Advisers, resigned. They were Jaime Augusto Zobel de
Ayala, former Prime Minister Cesar Virata, former Senator Vicente Paterno and
Washington Sycip.8 On November 2, Secretary Mar Roxas II also resigned from the
Department of Trade and Industry.9 On November 3, Senate President Franklin Drilon,
and House Speaker Manuel Villar, together with some 47 representatives defected from
the ruling coalition, Lapian ng Masang Pilipino.10

The month of November ended with a big bang. In a tumultuous session on November
13, House Speaker Villar transmitted the Articles of Impeachment11 signed by 115
representatives, or more than 1/3 of all the members of the House of Representatives to
the Senate. This caused political convulsions in both houses of Congress. Senator Drilon
was replaced by Senator Pimentel as Senate President. Speaker Villar was unseated by
Representative Fuentebella.12 On November 20, the Senate formally opened the
impeachment trial of the petitioner. Twenty-one (21) senators took their oath as judges
with Supreme Court Chief Justice Hilario G. Davide, Jr., presiding.13

The political temperature rose despite the cold December. On December 7, the
impeachment trial started.14 The battle royale was fought by some of the marquee names
in the legal profession. Standing as prosecutors were then House Minority Floor Leader
Feliciano Belmonte and Representatives Joker Arroyo, Wigberto Tañada, Sergio Apostol,
Raul Gonzales, Oscar Moreno, Salacnib Baterina, Roan Libarios, Oscar Rodriguez,
Clavel Martinez and Antonio Nachura. They were assisted by a battery of private
prosecutors led by now Secretary of Justice Hernando Perez and now Solicitor General
Simeon Marcelo. Serving as defense counsel were former Chief Justice Andres Narvasa,
former Solicitor General and Secretary of Justice Estelito P. Mendoza, former City Fiscal
of Manila Jose Flaminiano, former Deputy Speaker of the House Raul Daza, Atty.
Siegfried Fortun and his brother, Atty. Raymund Fortun. The day to day trial was covered
by live TV and during its course enjoyed the highest viewing rating. Its high and low
points were the constant conversational piece of the chattering classes. The dramatic
point of the December hearings was the testimony of Clarissa Ocampo, senior vice
president of Equitable-PCI Bank. She testified that she was one foot away from petitioner
Estrada when he affixed the signature "Jose Velarde" on documents involving a P500
million investment agreement with their bank on February 4, 2000.15

After the testimony of Ocampo, the impeachment trial was adjourned in the spirit of
Christmas. When it resumed on January 2, 2001, more bombshells were exploded by the
prosecution. On January 11, Atty. Edgardo Espiritu who served as petitioner's Secretary
of Finance took the witness stand. He alleged that the petitioner jointly owned BW
Resources Corporation with Mr. Dante Tan who was facing charges of insider trading.16
Then came the fateful day of January 16, when by a vote of 11-1017 the senator-judges
ruled against the opening of the second envelope which allegedly contained evidence
showing that petitioner held P3.3 billion in a secret bank account under the name "Jose
Velarde." The public and private prosecutors walked out in protest of the ruling. In
disgust, Senator Pimentel resigned as Senate President.18 The ruling made at 10:00 p.m.
was met by a spontaneous outburst of anger that hit the streets of the metropolis. By
midnight, thousands had assembled at the EDSA Shrine and speeches full of sulphur were
delivered against the petitioner and the eleven (11) senators.

On January 17, the public prosecutors submitted a letter to Speaker Fuentebella tendering
their collective resignation. They also filed their Manifestation of Withdrawal of
Appearance with the impeachment tribunal.19Senator Raul Roco quickly moved for the
indefinite postponement of the impeachment proceedings until the House of
Representatives shall have resolved the issue of resignation of the public prosecutors.
Chief Justice Davide granted the motion.20

January 18 saw the high velocity intensification of the call for petitioner's resignation. A
10-kilometer line of people holding lighted candles formed a human chain from the
Ninoy Aquino Monument on Ayala Avenue in Makati City to the EDSA Shrine to
symbolize the people's solidarity in demanding petitioner's resignation. Students and
teachers walked out of their classes in Metro Manila to show their concordance. Speakers
in the continuing rallies at the EDSA Shrine, all masters of the physics of persuasion,
attracted more and more people.21

On January 19, the fall from power of the petitioner appeared inevitable. At 1:20 p.m., the
petitioner informed Executive Secretary Edgardo Angara that General Angelo Reyes,
Chief of Staff of the Armed Forces of the Philippines, had defected. At 2:30 p.m.,
petitioner agreed to the holding of a snap election for President where he would not be a
candidate. It did not diffuse the growing crisis. At 3:00 p.m., Secretary of National
Defense Orlando Mercado and General Reyes, together with the chiefs of all the armed
services went to the EDSA Shrine.22 In the presence of former Presidents Aquino and
Ramos and hundreds of thousands of cheering demonstrators, General Reyes declared
that "on behalf of Your Armed Forces, the 130,000 strong members of the Armed Forces,
we wish to announce that we are withdrawing our support to this government."23 A little
later, PNP Chief, Director General Panfilo Lacson and the major service commanders
gave a similar stunning announcement.24 Some Cabinet secretaries, undersecretaries,
assistant secretaries, and bureau chiefs quickly resigned from their posts.25 Rallies for
the resignation of the petitioner exploded in various parts of the country. To stem the tide
of rage, petitioner announced he was ordering his lawyers to agree to the opening of the
highly controversial second envelope.26There was no turning back the tide. The tide had
become a tsunami.

January 20 turned to be the day of surrender. At 12:20 a.m., the first round of negotiations
for the peaceful and orderly transfer of power started at Malacañang'' Mabini Hall, Office
of the Executive Secretary. Secretary Edgardo Angara, Senior Deputy Executive
Secretary Ramon Bagatsing, Political Adviser Angelito Banayo, Asst. Secretary Boying
Remulla, and Atty. Macel Fernandez, head of the Presidential Management Staff,
negotiated for the petitioner. Respondent Arroyo was represented by now Executive
Secretary Renato de Villa, now Secretary of Finance Alberto Romulo and now Secretary
of Justice Hernando Perez.27 Outside the palace, there was a brief encounter at Mendiola
between pro and anti-Estrada protesters which resulted in stone-throwing and caused
minor injuries. The negotiations consumed all morning until the news broke out that
Chief Justice Davide would administer the oath to respondent Arroyo at high noon at the
EDSA Shrine.

At about 12:00 noon, Chief Justice Davide administered the oath to respondent Arroyo as
President of the Philippines.28 At 2:30 p.m., petitioner and his family hurriedly left
Malacañang Palace.29 He issued the following press statement:30

"20 January 2001

STATEMENT FROM

PRESIDENT JOSEPH EJERCITO ESTRADA

At twelve o'clock noon today, Vice President Gloria Macapagal-Arroyo took her oath
as President of the Republic of the Philippines. While along with many other legal
minds of our country, I have strong and serious doubts about the legality and
constitutionality of her proclamation as President, I do not wish to be a factor that
will prevent the restoration of unity and order in our civil society.

It is for this reason that I now leave Malacañang Palace, the seat of the presidency of
this country, for the sake of peace and in order to begin the healing process of our
nation. I leave the Palace of our people with gratitude for the opportunities given to
me for service to our people. I will not shirk from any future challenges that may
come ahead in the same service of our country.

I call on all my supporters and followers to join me in to promotion of a constructive

national spirit of reconciliation and solidarity.

May the Almighty bless our country and beloved people.

MABUHAY!

(Sgd.) JOSEPH EJERCITO ESTRADA"

It also appears that on the same day, January 20, 2001, he signed the following letter:31

"Sir:

By virtue of the provisions of Section 11, Article VII of the Constitution, I am hereby
transmitting this declaration that I am unable to exercise the powers and duties of my
office. By operation of law and the Constitution, the Vice-President shall be the
 Acting President.

(Sgd.) JOSEPH EJERCITO ESTRADA"

A copy of the letter was sent to former Speaker Fuentebella at 8:30 a.m. on January 20.23
Another copy was transmitted to Senate President Pimentel on the same day although it
was received only at 9:00 p.m.33

On January 22, the Monday after taking her oath, respondent Arroyo immediately
discharged the powers the duties of the Presidency. On the same day, this Court issued the
following Resolution in Administrative Matter No. 01-1-05-SC, to wit:

"A.M. No. 01-1-05-SC — In re: Request of Vice President Gloria Macapagal-Arroyo

to Take her Oath of Office as President of the Republic of the Philippines before the
Chief Justice — Acting on the urgent request of Vice President Gloria Macapagal-
Arroyo to be sworn in as President of the Republic of the Philippines, addressed to
the Chief Justice and confirmed by a letter to the Court, dated January 20, 2001,
which request was treated as an administrative matter, the court Resolve
unanimously to confirm the authority given by the twelve (12) members of the Court
then present to the Chief Justice on January 20, 2001 to administer the oath of office
of Vice President Gloria Macapagal-Arroyo as President of the Philippines, at noon
of January 20, 2001.1âwphi1.nêt

This resolution is without prejudice to the disposition of any justiciable case that may
be filed by a proper party."

Respondent Arroyo appointed members of her Cabinet as well as ambassadors and

special envoys.34 Recognition of respondent Arroyo's government by foreign
governments swiftly followed. On January 23, in a reception or vin d' honneur at
Malacañang, led by the Dean of the Diplomatic Corps, Papal Nuncio Antonio Franco,
more than a hundred foreign diplomats recognized the government of respondent
Arroyo.35 US President George W. Bush gave the respondent a telephone call from the
White House conveying US recognition of her government.36

On January 24, Representative Feliciano Belmonte was elected new Speaker of the House
of Representatives.37The House then passed Resolution No. 175 "expressing the full
support of the House of Representatives to the administration of Her Excellency, Gloria
Macapagal-Arroyo, President of the Philippines."38 It also approved Resolution No. 176
"expressing the support of the House of Representatives to the assumption into office by
Vice President Gloria Macapagal-Arroyo as President of the Republic of the Philippines,
extending its congratulations and expressing its support for her administration as a
partner in the attainment of the nation's goals under the Constitution."39

On January 26, the respondent signed into law the Solid Waste Management Act.40 A few
days later, she also signed into law the Political Advertising ban and Fair Election
Practices Act.41
On February 6, respondent Arroyo nominated Senator Teofisto Guingona, Jr., as her Vice
President.42 The next day, February 7, the Senate adopted Resolution No. 82 confirming
the nomination of Senator Guingona, Jr.43Senators Miriam Defensor-Santiago, Juan
Ponce Enrile, and John Osmena voted "yes" with reservations, citing as reason therefor
the pending challenge on the legitimacy of respondent Arroyo's presidency before the
Supreme Court. Senators Teresa Aquino-Oreta and Robert Barbers were absent.44 The
House of Representatives also approved Senator Guingona's nomination in Resolution
No. 178.45 Senator Guingona, Jr. took his oath as Vice President two (2) days later.46

On February 7, the Senate passed Resolution No. 83 declaring that the impeachment
court is functus officio and has been terminated.47 Senator Miriam Defensor-Santiago
stated "for the record" that she voted against the closure of the impeachment court on the
grounds that the Senate had failed to decide on the impeachment case and that the
resolution left open the question of whether Estrada was still qualified to run for another
elective post.48

Meanwhile, in a survey conducted by Pulse Asia, President Arroyo's public acceptance

rating jacked up from 16% on January 20, 2001 to 38% on January 26, 2001.49 In
another survey conducted by the ABS-CBN/SWS from February 2-7, 2001, results
showed that 61% of the Filipinos nationwide accepted President Arroyo as replacement
of petitioner Estrada. The survey also revealed that President Arroyo is accepted by 60%
in Metro Manila, by also 60% in the balance of Luzon, by 71% in the Visayas, and 55%
in Mindanao. Her trust rating increased to 52%. Her presidency is accepted by majorities
in all social classes: 58% in the ABC or middle-to-upper classes, 64% in the D or mass
class, and 54% among the E's or very poor class.50

After his fall from the pedestal of power, the petitioner's legal problems appeared in
clusters. Several cases previously filed against him in the Office of the Ombudsman were
set in motion. These are: (1) OMB Case No. 0-00-1629, filed by Ramon A. Gonzales on
October 23, 2000 for bribery and graft and corruption; (2) OMB Case No. 0-00-1754
filed by the Volunteers Against Crime and Corruption on November 17, 2000 for plunder,
forfeiture, graft and corruption, bribery, perjury, serious misconduct, violation of the
Code of Conduct for Government Employees, etc; (3) OMB Case No. 0-00-1755 filed by
the Graft Free Philippines Foundation, Inc. on November 24, 2000 for plunder, forfeiture,
graft and corruption, bribery, perjury, serious misconduct; (4) OMB Case No. 0-00-1756
filed by Romeo Capulong, et al., on November 28, 2000 for malversation of public funds,
illegal use of public funds and property, plunder, etc.; (5) OMB Case No. 0-00-1757 filed
by Leonard de Vera, et al., on November 28, 2000 for bribery, plunder, indirect bribery,
violation of PD 1602, PD 1829, PD 46, and RA 7080; and (6) OMB Case No. 0-00-1758
filed by Ernesto B. Francisco, Jr. on December 4, 2000 for plunder, graft and corruption.

A special panel of investigators was forthwith created by the respondent Ombudsman to

investigate the charges against the petitioner. It is chaired by Overall Deputy Ombudsman
Margarito P. Gervasio with the following as members, viz: Director Andrew Amuyutan,
Prosecutor Pelayo Apostol, Atty. Jose de Jesus and Atty. Emmanuel Laureso. On January
22, the panel issued an Order directing the petitioner to file his counter-affidavit and the
affidavits of his witnesses as well as other supporting documents in answer to the
aforementioned complaints against him.

Thus, the stage for the cases at bar was set. On February 5, petitioner filed with this Court
GR No. 146710-15, a petition for prohibition with a prayer for a writ of preliminary
injunction. It sought to enjoin the respondent Ombudsman from "conducting any further
proceedings in Case Nos. OMB 0-00-1629, 1754, 1755, 1756, 1757 and 1758 or in any
other criminal complaint that may be filed in his office, until after the term of petitioner
as President is over and only if legally warranted." Thru another counsel, petitioner, on
February 6, filed GR No. 146738 for Quo Warranto. He prayed for judgment "confirming
petitioner to be the lawful and incumbent President of the Republic of the Philippines
temporarily unable to discharge the duties of his office, and declaring respondent to have
taken her oath as and to be holding the Office of the President, only in an acting capacity
pursuant to the provisions of the Constitution." Acting on GR Nos. 146710-15, the Court,
on the same day, February 6, required the respondents "to comment thereon within a non-
extendible period expiring on 12 February 2001." On February 13, the Court ordered the
consolidation of GR Nos. 146710-15 and GR No. 146738 and the filing of the
respondents' comments "on or before 8:00 a.m. of February 15."

On February 15, the consolidated cases were orally argued in a four-hour hearing. Before
the hearing, Chief Justice Davide, Jr.51 and Associate Justice Artemio Panganiban52
recused themselves on motion of petitioner's counsel, former Senator Rene A. Saguisag.
They debunked the charge of counsel Saguisag that they have "compromised themselves
by indicating that they have thrown their weight on one side" but nonetheless inhibited
themselves. Thereafter, the parties were given the short period of five (5) days to file their
memoranda and two (2) days to submit their simultaneous replies.

In a resolution dated February 20, acting on the urgent motion for copies of resolution
and press statement for "Gag Order" on respondent Ombudsman filed by counsel for
petitioner in G.R. No. 146738, the Court resolved:

"(1) to inform the parties that the Court did not issue a resolution on January 20,
2001 declaring the office of the President vacant and that neither did the Chief
Justice issue a press statement justifying the alleged resolution;

(2) to order the parties and especially their counsel who are officers of the Court
under pain of being cited for contempt to refrain from making any comment or
discussing in public the merits of the cases at bar while they are still pending
decision by the Court, and

(3) to issue a 30-day status quo order effective immediately enjoining the respondent
Ombudsman from resolving or deciding the criminal cases pending investigation in
his office against petitioner, Joseph E. Estrada and subject of the cases at bar, it
appearing from news reports that the respondent Ombudsman may immediately
resolve the cases against petitioner Joseph E. Estrada seven (7) days after the hearing
held on February 15, 2001, which action will make the cases at bar moot and
 academic."53

The parties filed their replies on February 24. On this date, the cases at bar were deemed
submitted for decision.

The bedrock issues for resolution of this Court are:

Whether the petitions present a justiciable controversy.

II

Assuming that the petitions present a justiciable controversy, whether petitioner

Estrada is a President on leave while respondent Arroyo is an Acting President.

III

Whether conviction in the impeachment proceedings is a condition precedent for the

criminal prosecution of petitioner Estrada. In the negative and on the assumption that
petitioner is still President, whether he is immune from criminal prosecution.

IV

Whether the prosecution of petitioner Estrada should be enjoined on the ground of

prejudicial publicity.

We shall discuss the issues in seriatim.

Whether or not the cases

At bar involve a political question

Private respondents54 raise the threshold issue that the cases at bar pose a political
question, and hence, are beyond the jurisdiction of this Court to decide. They contend that
shorn of its embroideries, the cases at bar assail the "legitimacy of the Arroyo
administration." They stress that respondent Arroyo ascended the presidency through
people power; that she has already taken her oath as the 14th President of the Republic;
that she has exercised the powers of the presidency and that she has been recognized by
foreign governments. They submit that these realities on ground constitute the political
thicket, which the Court cannot enter.

We reject private respondents' submission. To be sure, courts here and abroad, have tried
to lift the shroud on political question but its exact latitude still splits the best of legal
minds. Developed by the courts in the 20th century, the political question doctrine which
rests on the principle of separation of powers and on prudential considerations, continue
to be refined in the mills of constitutional law.55 In the United States, the most
authoritative guidelines to determine whether a question is political were spelled out by
Mr. Justice Brennan in the 1962 case or Baker v. Carr,56 viz:

"x x x Prominent on the surface of any case held to involve a political question is
found a textually demonstrable constitutional commitment of the issue to a
coordinate political department or a lack of judicially discoverable and manageable
standards for resolving it, or the impossibility of deciding without an initial policy
determination of a kind clearly for non-judicial discretion; or the impossibility of a
court's undertaking independent resolution without expressing lack of the respect due
coordinate branches of government; or an unusual need for unquestioning adherence
to a political decision already made; or the potentiality of embarrassment from
multifarious pronouncements by various departments on question. Unless one of
these formulations is inextricable from the case at bar, there should be no dismissal
for non justiciability on the ground of a political question's presence. The doctrine of
which we treat is one of 'political questions', not of 'political cases'."

In the Philippine setting, this Court has been continuously confronted with cases calling
for a firmer delineation of the inner and outer perimeters of a political question.57 Our
leading case is Tanada v. Cuenco,58 where this Court, through former Chief Justice
Roberto Concepcion, held that political questions refer "to those questions which, under
the Constitution, are to be decided by the people in their sovereign capacity, or in regard
to which full discretionary authority has been delegated to the legislative or executive
branch of the government. It is concerned with issues dependent upon the wisdom, not
legality of a particular measure." To a great degree, the 1987 Constitution has narrowed
the reach of the political question doctrine when it expanded the power of judicial review
of this court not only to settle actual controversies involving rights which are legally
demandable and enforceable but also 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 government.59 Heretofore, the judiciary has focused on the "thou
shalt not's" of the Constitution directed against the exercise of its jurisdiction.60With the
new provision, however, courts are given a greater prerogative to determine what it can
do to prevent grave abuse of discretion amounting to lack or excess of jurisdiction on the
part of any branch or instrumentality of government. Clearly, the new provision did not
just grant the Court power of doing nothing. In sync and symmetry with this intent are
other provisions of the 1987 Constitution trimming the so called political thicket.
Prominent of these provisions is section 18 of Article VII which empowers this Court in
limpid language to "x x x review, in an appropriate proceeding filed by any citizen, the
sufficiency of the factual basis of the proclamation of martial law or the suspension of the
privilege of the writ (of habeas corpus) or the extension thereof x x x."

Respondents rely on the case of Lawyers League for a Better Philippines and/or Oliver A.
Lozano v. President Corazon C. Aquino, et al.61 and related cases62 to support their
thesis that since the cases at bar involve the legitimacy of the government of respondent
Arroyo, ergo, they present a political question. A more cerebral reading of the cited cases
will show that they are inapplicable. In the cited cases, we held that the government of
former President Aquino was the result of a successful revolution by the sovereign
people, albeit a peaceful one. No less than the Freedom Constitution63 declared that the
Aquino government was installed through a direct exercise of the power of the Filipino
people "in defiance of the provisions of the 1973 Constitution, as amended." In is familiar
learning that the legitimacy of a government sired by a successful revolution by people
power is beyond judicial scrutiny for that government automatically orbits out of the
constitutional loop. In checkered contrast, the government of respondent Arroyo is not
revolutionary in character. The oath that she took at the EDSA Shrine is the oath under
the 1987 Constitution.64 In her oath, she categorically swore to preserve and defend the
1987 Constitution. Indeed, she has stressed that she is discharging the powers of the
presidency under the authority of the 1987 Constitution.

In fine, the legal distinction between EDSA People Power I EDSA People Power II is
clear. EDSA I involves the exercise of the people power of revolution which overthrew
the whole government. EDSA II is an exercise of people power of freedom of speech and
freedom of assembly to petition the government for redress of grievances which only
affected the office of the President. EDSA I is extra constitutional and the legitimacy of
the new government that resulted from it cannot be the subject of judicial review, but
EDSA II is intra constitutional and the resignation of the sitting President that it caused
and the succession of the Vice President as President are subject to judicial review. EDSA
I presented a political question; EDSA II involves legal questions. A brief discourse on
freedom of speech and of the freedom of assembly to petition the government for redress
of grievance which are the cutting edge of EDSA People Power II is not inappropriate.

Freedom of speech and the right of assembly are treasured by Filipinos. Denial of these
rights was one of the reasons of our 1898 revolution against Spain. Our national hero,
Jose P. Rizal, raised the clarion call for the recognition of freedom of the press of the
Filipinos and included it as among "the reforms sine quibus non."65 The Malolos
Constitution, which is the work of the revolutionary Congress in 1898, provided in its
Bill of Rights that Filipinos shall not be deprived (1) of the right to freely express his
ideas or opinions, orally or in writing, through the use of the press or other similar means;
(2) of the right of association for purposes of human life and which are not contrary to
public means; and (3) of the right to send petitions to the authorities, individually or
collectively." These fundamental rights were preserved when the United States acquired
jurisdiction over the Philippines. In the Instruction to the Second Philippine Commission
of April 7, 1900 issued by President McKinley, it is specifically provided "that no law
shall be passed abridging the freedom of speech or of the press or of the rights of the
people to peaceably assemble and petition the Government for redress of grievances."
The guaranty was carried over in the Philippine Bill, the Act of Congress of July 1, 1902
and the Jones Law, the Act of Congress of August 29, 1966.66

Thence on, the guaranty was set in stone in our 1935 Constitution,67 and the 197368
Constitution. These rights are now safely ensconced in section 4, Article III of the 1987
Constitution, viz:
 "Sec. 4. No law shall be passed abridging the freedom of speech, of expression, or of
the press, or the right of the people peaceably to assemble and petition the
government for redress of grievances."

The indispensability of the people's freedom of speech and of assembly to democracy is

now self-evident. The reasons are well put by Emerson: first, freedom of expression is
essential as a means of assuring individual fulfillment; second, it is an essential process
for advancing knowledge and discovering truth; third, it is essential to provide for
participation in decision-making by all members of society; and fourth, it is a method of
achieving a more adaptable and hence, a more stable community of maintaining the
precarious balance between healthy cleavage and necessary consensus."69 In this sense,
freedom of speech and of assembly provides a framework in which the "conflict
necessary to the progress of a society can take place without destroying the society."70In
Hague v. Committee for Industrial Organization,71 this function of free speech and
assembly was echoed in the amicus curiae filed by the Bill of Rights Committee of the
American Bar Association which emphasized that "the basis of the right of assembly is
the substitution of the expression of opinion and belief by talk rather than force; and this
means talk for all and by all."72 In the relatively recent case of Subayco v.
Sandiganbayan,73 this Court similar stressed that "… it should be clear even to those
with intellectual deficits that when the sovereign people assemble to petition for redress
of grievances, all should listen. For in a democracy, it is the people who count; those who
are deaf to their grievances are ciphers."

Needless to state, the cases at bar pose legal and not political questions. The principal
issues for resolution require the proper interpretation of certain provisions in the 1987
Constitution, notably section 1 of Article II,74 and section 875 of Article VII, and the
allocation of governmental powers under section 1176 of Article VII. The issues likewise
call for a ruling on the scope of presidential immunity from suit. They also involve the
correct calibration of the right of petitioner against prejudicial publicity. As early as the
1803 case of Marbury v. Madison,77 the doctrine has been laid down that "it is
emphatically the province and duty of the judicial department to say what the law is . . ."
Thus, respondent's in vocation of the doctrine of political question is but a foray in the
dark.

II

Whether or not the petitioner

Resigned as President

We now slide to the second issue. None of the parties considered this issue as posing a
political question. Indeed, it involves a legal question whose factual ingredient is
determinable from the records of the case and by resort to judicial notice. Petitioner
denies he resigned as President or that he suffers from a permanent disability. Hence, he
submits that the office of the President was not vacant when respondent Arroyo took her
oath as President.
The issue brings under the microscope the meaning of section 8, Article VII of the
Constitution which provides:

"Sec. 8. In case of death, permanent disability, removal from office or resignation of

the President, the Vice President shall become the President to serve the unexpired
term. In case of death, permanent disability, removal from office, or resignation of
both the President and Vice President, the President of the Senate or, in case of his
inability, the Speaker of the House of Representatives, shall then act as President
until the President or Vice President shall have been elected and qualified.

x x x."

The issue then is whether the petitioner resigned as President or should be considered
resigned as of January 20, 2001 when respondent took her oath as the 14th President of
the Public. Resignation is not a high level legal abstraction. It is a factual question and its
elements are beyond quibble: there must be an intent to resign and the intent must be
coupled by acts of relinquishment.78 The validity of a resignation is not government by
any formal requirement as to form. It can be oral. It can be written. It can be express. It
can be implied. As long as the resignation is clear, it must be given legal effect.

In the cases at bar, the facts show that petitioner did not write any formal letter of
resignation before he evacuated Malacañang Palace in the afternoon of January 20, 2001
after the oath-taking of respondent Arroyo. Consequently, whether or not petitioner
resigned has to be determined from his act and omissions before, during and after January
20, 2001 or by the totality of prior, contemporaneous and posterior facts and
circumstantial evidence bearing a material relevance on the issue.

Using this totality test, we hold that petitioner resigned as President.

To appreciate the public pressure that led to the resignation of the petitioner, it is
important to follow the succession of events after the exposẻ of Governor Singson. The
Senate Blue Ribbon Committee investigated. The more detailed revelations of petitioner's
alleged misgovernance in the Blue Ribbon investigation spiked the hate against him. The
Articles of Impeachment filed in the House of Representatives which initially was given a
near cipher chance of succeeding snowballed. In express speed, it gained the signatures of
115 representatives or more than 1/3 of the House of Representatives. Soon, petitioner's
powerful political allies began deserting him. Respondent Arroyo quit as Secretary of
Social Welfare. Senate President Drilon and former Speaker Villar defected with 47
representatives in tow. Then, his respected senior economic advisers resigned together
with his Secretary of Trade and Industry.

As the political isolation of the petitioner worsened, the people's call for his resignation
intensified. The call reached a new crescendo when the eleven (11) members of the
impeachment tribunal refused to open the second envelope. It sent the people to
paroxysms of outrage. Before the night of January 16 was over, the EDSA Shrine was
swarming with people crying for redress of their grievance. Their number grew
exponentially. Rallies and demonstration quickly spread to the countryside like a brush
fire.

As events approached January 20, we can have an authoritative window on the state of
mind of the petitioner. The window is provided in the "Final Days of Joseph Ejercito
Estrada," the diary of Executive Secretary Angara serialized in the Philippine Daily
Inquirer.79 The Angara Diary reveals that in the morning of January 19, petitioner's loyal
advisers were worried about the swelling of the crowd at EDSA, hence, they decided to
create an ad hoc committee to handle it. Their worry would worsen. At 1:20 p.m.,
petitioner pulled Secretary Angara into his small office at the presidential residence and
exclaimed: "Ed, seryoso na ito. Kumalas na si Angelo (Reyes) (Ed, this is serious. Angelo
has defected.)"80 An hour later or at 2:30 p.m., the petitioner decided to call for a snap
presidential election and stressed he would not be a candidate. The proposal for a snap
election for president in May where he would not be a candidate is an indicium that
petitioner had intended to give up the presidency even at that time. At 3:00 p.m., General
Reyes joined the sea of EDSA demonstrators demanding the resignation of the petitioner
and dramatically announced the AFP's withdrawal of support from the petitioner and their
pledge of support to respondent Arroyo. The seismic shift of support left petitioner weak
as a president. According to Secretary Angara, he asked Senator Pimentel to advise
petitioner to consider the option of "dignified exit or resignation."81 Petitioner did not
disagree but listened intently.82 The sky was falling fast on the petitioner. At 9:30 p.m.,
Senator Pimentel repeated to the petitioner the urgency of making a graceful and
dignified exit. He gave the proposal a sweetener by saying that petitioner would be
allowed to go abroad with enough funds to support him and his family.83 Significantly,
the petitioner expressed no objection to the suggestion for a graceful and dignified exit
but said he would never leave the country.84 At 10:00 p.m., petitioner revealed to
Secretary Angara, "Ed, Angie (Reyes) guaranteed that I would have five days to a week
in the palace."85 This is proof that petitioner had reconciled himself to the reality that he
had to resign. His mind was already concerned with the five-day grace period he could
stay in the palace. It was a matter of time.

The pressure continued piling up. By 11:00 p.m., former President Ramos called up
Secretary Angara and requested, "Ed, magtulungan tayo para magkaroon tayo ng (let's
cooperate to ensure a) peaceful and orderly transfer of power."86 There was no defiance
to the request. Secretary Angara readily agreed. Again, we note that at this stage, the
problem was already about a peaceful and orderly transfer of power. The resignation of
the petitioner was implied.

The first negotiation for a peaceful and orderly transfer of power immediately started at
12:20 a.m. of January 20, that fateful Saturday. The negotiation was limited to three (3)
points: (1) the transition period of five days after the petitioner's resignation; (2) the
guarantee of the safety of the petitioner and his family, and (3) the agreement to open the
second envelope to vindicate the name of the petitioner.87 Again, we note that the
resignation of petitioner was not a disputed point. The petitioner cannot feign ignorance
of this fact. According to Secretary Angara, at 2:30 a.m., he briefed the petitioner on the
three points and the following entry in the Angara Diary shows the reaction of the
petitioner, viz:

"x x x

I explain what happened during the first round of negotiations. The President
immediately stresses that he just wants the five-day period promised by Reyes, as
well as to open the second envelope to clear his name.

If the envelope is opened, on Monday, he says, he will leave by Monday.

The President says. "Pagod na pagod na ako. Ayoko na masyado nang masakit.
Pagod na ako sa red tape, bureaucracy, intriga. (I am very tired. I don't want any
more of this – it's too painful. I'm tired of the red tape, the bureaucracy, the intrigue.)

I just want to clear my name, then I will go."88

Again, this is high grade evidence that the petitioner has resigned. The intent to resign is
clear when he said "x x x Ayoko na masyado nang masakit." "Ayoko na" are words of
resignation.

The second round of negotiation resumed at 7:30 a.m. According to the Angara Diary, the
following happened:

"Opposition's deal

7:30 a.m. – Rene arrives with Bert Romulo and (Ms. Macapagal's spokesperson)
Rene Corona. For this round, I am accompanied by Dondon Bagatsing and Macel.

Rene pulls out a document titled "Negotiating Points." It reads:

'1. The President shall sign a resignation document within the day, 20 January 2001,
that will be effective on Wednesday, 24 January 2001, on which day the Vice
President will assume the Presidency of the Republic of the Philippines.

2. Beginning to day, 20 January 2001, the transition process for the assumption of the
new administration shall commence, and persons designated by the Vice President to
various positions and offices of the government shall start their orientation activities
in coordination with the incumbent officials concerned.

3. The Armed Forces of the Philippines and the Philippine National Police shall
function under the Vice President as national military and police authority effective
immediately.

4. The Armed Forced of the Philippines, through its Chief of Staff, shall guarantee
the security of the President and his family as approved by the national military and
police authority (Vice President).
 5. It is to be noted that the Senate will open the second envelope in connection with
the alleged savings account of the President in the Equitable PCI Bank in accordance
with the rules of the Senate, pursuant to the request to the Senate President.

Our deal

We bring out, too, our discussion draft which reads:

The undersigned parties, for and in behalf of their respective principals, agree and
undertake as follows:

'1. A transition will occur and take place on Wednesday, 24 January 2001, at which
time President Joseph Ejercito Estrada will turn over the presidency to Vice President
Gloria Macapagal-Arroyo.

'2. In return, President Estrada and his families are guaranteed security and safety of
their person and property throughout their natural lifetimes. Likewise, President
Estrada and his families are guarantee freedom from persecution or retaliation from
government and the private sector throughout their natural lifetimes.

This commitment shall be guaranteed by the Armed Forces of the Philippines (AFP)
through the Chief of Staff, as approved by the national military and police authorities
– Vice President (Macapagal).

'3. Both parties shall endeavor to ensure that the Senate sitting as an impeachment
court will authorize the opening of the second envelope in the impeachment trial as
proof that the subject savings account does not belong to President Estrada.

'4. During the five-day transition period between 20 January 2001 and 24 January
2001 (the 'Transition Period"), the incoming Cabinet members shall receive an
appropriate briefing from the outgoing Cabinet officials as part of the orientation
program.

During the Transition Period, the AFP and the Philippine National Police (PNP) shall
function Vice President (Macapagal) as national military and police authorities.

Both parties hereto agree that the AFP chief of staff and PNP director general shall
obtain all the necessary signatures as affixed to this agreement and insure faithful
implementation and observance thereof.

Vice President Gloria Macapagal-Arroyo shall issue a public statement in the form
and tenor provided for in "Annex A" heretofore attached to this agreement."89

The second round of negotiation cements the reading that the petitioner has resigned. It
will be noted that during this second round of negotiation, the resignation of the petitioner
was again treated as a given fact. The only unsettled points at that time were the measures
to be undertaken by the parties during and after the transition period.

According to Secretary Angara, the draft agreement, which was premised on the
resignation of the petitioner was further refined. It was then, signed by their side and he
was ready to fax it to General Reyes and Senator Pimentel to await the signature of the
United Opposition. However, the signing by the party of the respondent Arroyo was
aborted by her oath-taking. The Angara diary narrates the fateful events, viz;90

"xxx

11:00 a.m. – Between General Reyes and myself, there is a firm agreement on the
five points to effect a peaceful transition. I can hear the general clearing all these
points with a group he is with. I hear voices in the background.

Agreement.

The agreement starts: 1. The President shall resign today, 20 January 2001, which
resignation shall be effective on 24 January 2001, on which day the Vice President
will assume the presidency of the Republic of the Philippines.

xxx

The rest of the agreement follows:

2. The transition process for the assumption of the new administration shall
commence on 20 January 2001, wherein persons designated by the Vice President to
various government positions shall start orientation activities with incumbent
officials.

'3. The Armed Forces of the Philippines through its Chief of Staff, shall guarantee the
safety and security of the President and his families throughout their natural lifetimes
as approved by the national military and police authority – Vice President.

'4. The AFP and the Philippine National Police (PNP) shall function under the Vice
President as national military and police authorities.

'5. Both parties request the impeachment court to open the second envelope in the
impeachment trial, the contents of which shall be offered as proof that the subject
savings account does not belong to the President.

The Vice President shall issue a public statement in the form and tenor provided for
in Annex "B" heretofore attached to this agreement.

11:20 a.m. – I am all set to fax General Reyes and Nene Pimentel our agreement,
signed by our side and awaiting the signature of the United opposition.
And then it happens. General Reyes calls me to say that the Supreme Court has
decided that Gloria Macapagal-Arroyo is President and will be sworn in at 12 noon.

'Bakit hindi naman kayo nakahintay? Paano na ang agreement (why couldn't you
wait? What about the agreement)?' I asked.

Reyes answered: 'Wala na, sir (it's over, sir).'

I ask him: Di yung transition period, moot and academic na?'

And General Reyes answers: ' Oo nga, I delete na natin, sir (yes, we're deleting the
part).'

Contrary to subsequent reports, I do not react and say that there was a double cross.

But I immediately instruct Macel to delete the first provision on resignation since this
matter is already moot and academic. Within moments, Macel erases the first
provision and faxes the documents, which have been signed by myself, Dondon and
Macel, to Nene Pimentel and General Reyes.

I direct Demaree Ravel to rush the original document to General Reyes for the
signatures of the other side, as it is important that the provisions on security, at least,
should be respected.

I then advise the President that the Supreme Court has ruled that Chief Justice
Davide will administer the oath to Gloria at 12 noon.

The President is too stunned for words:

Final meal

12 noon – Gloria takes her oath as president of the Republic of the Philippines.

12:20 p.m. – The PSG distributes firearms to some people inside the compound.

The president is having his final meal at the presidential Residence with the few
friends and Cabinet members who have gathered.

By this time, demonstrators have already broken down the first line of defense at
Mendiola. Only the PSG is there to protect the Palace, since the police and military
have already withdrawn their support for the President.

1 p.m. – The President's personal staff is rushing to pack as many of the Estrada
family's personal possessions as they can.

During lunch, Ronnie Puno mentions that the president needs to release a final
 statement before leaving Malacañang.

The statement reads: At twelve o'clock noon today, Vice President Gloria Macapagal-
Arroyo took her oath as President of the Republic of the Philippines. While along
with many other legal minds of our country, I have strong and serious doubts about
the legality and constitutionality of her proclamation as President, I do not wish to be
a factor that will prevent the restoration of unity and order in our civil society.

It is for this reason that I now leave Malacañang Palace, the seat of the presidency of
this country, for the sake of peace and in order to begin the healing process of our
nation. I leave the Palace of our people with gratitude for the opportunities given to
me for service to our people. I will not shirk from any future challenges that may
come ahead in the same service of our country.

I call on all my supporters and followers to join me in the promotion of a

constructive national spirit of reconciliation and solidarity.

May the Almighty bless our country and our beloved people.

MABUHAY!"'

It was curtain time for the petitioner.

In sum, we hold that the resignation of the petitioner cannot be doubted. It was confirmed
by his leaving Malacañang. In the press release containing his final statement, (1) he
acknowledged the oath-taking of the respondent as President of the Republic albeit with
reservation about its legality; (2) he emphasized he was leaving the Palace, the seat of the
presidency, for the sake of peace and in order to begin the healing process of our nation.
He did not say he was leaving the Palace due to any kind inability and that he was going
to re-assume the presidency as soon as the disability disappears: (3) he expressed his
gratitude to the people for the opportunity to serve them. Without doubt, he was referring
to the past opportunity given him to serve the people as President (4) he assured that he
will not shirk from any future challenge that may come ahead in the same service of our
country. Petitioner's reference is to a future challenge after occupying the office of the
president which he has given up; and (5) he called on his supporters to join him in the
promotion of a constructive national spirit of reconciliation and solidarity. Certainly, the
national spirit of reconciliation and solidarity could not be attained if he did not give up
the presidency. The press release was petitioner's valedictory, his final act of farewell. His
presidency is now in the part tense.

It is, however, urged that the petitioner did not resign but only took a temporary leave
dated January 20, 2001 of the petitioner sent to Senate President Pimentel and Speaker
Fuentebella is cited. Again, we refer to the said letter, viz:

"Sir.
 By virtue of the provisions of Section II, Article VII of the Constitution, I am hereby
transmitting this declaration that I am unable to exercise the powers and duties of my
office. By operation of law and the Constitution, the Vice President shall be the
Acting president.

(Sgd.) Joseph Ejercito Estrada"

To say the least, the above letter is wrapped in mystery.91 The pleadings filed by the
petitioner in the cases at bar did not discuss, may even intimate, the circumstances that
led to its preparation. Neither did the counsel of the petitioner reveal to the Court these
circumstances during the oral argument. It strikes the Court as strange that the letter,
despite its legal value, was never referred to by the petitioner during the week-long crisis.
To be sure, there was not the slightest hint of its existence when he issued his final press
release. It was all too easy for him to tell the Filipino people in his press release that he
was temporarily unable to govern and that he was leaving the reins of government to
respondent Arroyo for the time bearing. Under any circumstance, however, the
mysterious letter cannot negate the resignation of the petitioner. If it was prepared before
the press release of the petitioner clearly as a later act. If, however, it was prepared after
the press released, still, it commands scant legal significance. Petitioner's resignation
from the presidency cannot be the subject of a changing caprice nor of a whimsical will
especially if the resignation is the result of his reputation by the people. There is another
reason why this Court cannot given any legal significance to petitioner's letter and this
shall be discussed in issue number III of this Decision.

After petitioner contended that as a matter of fact he did not resign, he also argues that he
could not resign as a matter of law. He relies on section 12 of RA No. 3019, otherwise
known as the Anti-graft and Corrupt Practices Act, which allegedly prohibits his
resignation, viz:

"Sec. 12. No public officer shall be allowed to resign or retire pending an

investigation, criminals or administrative, or pending a prosecution against him, for
any offense under this Act or under the provisions of the Revised Penal Code on
bribery."

A reading of the legislative history of RA No. 3019 will hardly provide any comfort to the
petitioner. RA No. 3019 originated form Senate Bill No. 293. The original draft of the
bill, when it was submitted to the Senate, did not contain a provision similar to section 12
of the law as it now stands. However, in his sponsorship speech, Senator Arturo
Tolentino, the author of the bill, "reserved to propose during the period of amendments
the inclusion of a provision to the effect that no public official who is under prosecution
for any act of graft or corruption, or is under administrative investigation, shall be
allowed to voluntarily resign or retire."92 During the period of amendments, the
following provision was inserted as section 15:

"Sec. 15. Termination of office – No public official shall be allowed to resign or

retire pending an investigation, criminal or administrative, or pending a prosecution
 against him, for any offense under the Act or under the provisions of the Revised
Penal Code on bribery.

The separation or cessation of a public official form office shall not be a bar to his
prosecution under this Act for an offense committed during his incumbency."93

The bill was vetoed by then President Carlos P. Garcia who questioned the legality of the
second paragraph of the provision and insisted that the President's immunity should
extend after his tenure.

Senate Bill No. 571, which was substantially similar Senate Bill No. 293, was thereafter
passed. Section 15 above became section 13 under the new bill, but the deliberations on
this particular provision mainly focused on the immunity of the President, which was one
of the reasons for the veto of the original bill. There was hardly any debate on the
prohibition against the resignation or retirement of a public official with pending criminal
and administrative cases against him. Be that as it may, the intent of the law ought to be
obvious. It is to prevent the act of resignation or retirement from being used by a public
official as a protective shield to stop the investigation of a pending criminal or
administrative case against him and to prevent his prosecution under the Anti-Graft Law
or prosecution for bribery under the Revised Penal Code. To be sure, no person can be
compelled to render service for that would be a violation of his constitutional right.94 A
public official has the right not to serve if he really wants to retire or resign. Nevertheless,
if at the time he resigns or retires, a public official is facing administrative or criminal
investigation or prosecution, such resignation or retirement will not cause the dismissal of
the criminal or administrative proceedings against him. He cannot use his resignation or
retirement to avoid prosecution.

There is another reason why petitioner's contention should be rejected. In the cases at bar,
the records show that when petitioner resigned on January 20, 2001, the cases filed
against him before the Ombudsman were OMB Case Nos. 0-00-1629, 0-00-1755, 0-00-
1756, 0-00-1757 and 0-00-1758. While these cases have been filed, the respondent
Ombudsman refrained from conducting the preliminary investigation of the petitioner for
the reason that as the sitting President then, petitioner was immune from suit. Technically,
the said cases cannot be considered as pending for the Ombudsman lacked jurisdiction to
act on them. Section 12 of RA No. 3019 cannot therefore be invoked by the petitioner for
it contemplates of cases whose investigation or prosecution do not suffer from any
insuperable legal obstacle like the immunity from suit of a sitting President.

Petitioner contends that the impeachment proceeding is an administrative investigation

that, under section 12 of RA 3019, bars him from resigning. We hold otherwise. The exact
nature of an impeachment proceeding is debatable. But even assuming arguendo that it is
an administrative proceeding, it can not be considered pending at the time petitioner
resigned because the process already broke down when a majority of the senator-judges
voted against the opening of the second envelope, the public and private prosecutors
walked out, the public prosecutors filed their Manifestation of Withdrawal of Appearance,
and the proceedings were postponed indefinitely. There was, in effect, no impeachment
case pending against petitioner when he resigned.

III

Whether or not the petitioner Is only temporarily unable to Act as President.

We shall now tackle the contention of the petitioner that he is merely temporarily unable
to perform the powers and duties of the presidency, and hence is a President on leave. As
aforestated, the inability claim is contained in the January 20, 2001 letter of petitioner
sent on the same day to Senate President Pimentel and Speaker Fuentebella.

Petitioner postulates that respondent Arroyo as Vice President has no power to adjudge
the inability of the petitioner to discharge the powers and duties of the presidency. His
significant submittal is that "Congress has the ultimate authority under the Constitution to
determine whether the President is incapable of performing his functions in the manner
provided for in section 11 of article VII."95 This contention is the centerpiece of
petitioner's stance that he is a President on leave and respondent Arroyo is only an Acting
President.

An examination of section 11, Article VII is in order. It provides:

"SEC. 11. Whenever the President transmits to the President of the Senate and the
Speaker of the House of Representatives his written declaration that he is unable to
discharge the powers and duties of his office, and until he transmits to them a written
declaration to the contrary, such powers and duties shall be discharged by the Vice-
President as Acting President.

Whenever a majority of all the Members of the Cabinet transmit to the President of
the Senate and to the Speaker of the House of Representatives their written
declaration that the President is unable to discharge the powers and duties of his
office, the Vice-President shall immediately assume the powers and duties of the
office as Acting President.

Thereafter, when the President transmits to the President of the Senate and to the
Speaker of the House of Representatives his written declaration that no inability
exists, he shall reassume the powers and duties of his office. Meanwhile, should a
majority of all the Members of the Cabinet transmit within five days to the President
of the Senate and to the Speaker of the House of Representatives their written
declaration that the President is unable to discharge the powers and duties of his
office, the Congress shall decide the issue. For that purpose, the Congress shall
convene, if it is not in session, within forty-eight hours, in accordance with its rules
and without need of call.

If the Congress, within ten days after receipt of the last written declaration, or, if not
in session, within twelve days after it is required to assemble, determines by a two-
thirds vote of both Houses, voting separately, that the President is unable to discharge
 the powers and duties of his office, the Vice-President shall act as President;
otherwise, the President shall continue exercising the powers and duties of his
office."

That is the law. Now, the operative facts:

1
2 Petitioner, on January 20, 2001, sent the above letter claiming inability to the
Senate President and Speaker of the House;
3
4 Unaware of the letter, respondent Arroyo took her oath of office as President on
January 20, 2001 at about 12:30 p.m.;
5
6 Despite receipt of the letter, the House of Representatives passed on January 24,
2001 House Resolution No. 175;96
7

On the same date, the House of the Representatives passed House Resolution No. 17697
which states:

"RESOLUTION EXPRESSING THE SUPPORT OF THE HOUSE OF

REPRESENTATIVES TO THE ASSUMPTION INTO OFFICE BY VICE
PRESIDENT GLORIA MACAPAGAL-ARROYO AS PRESIDENT OF THE
REPUBLIC OF THE PHILIPPINES, EXTENDING ITS CONGRATULATIONS
AND EXPRESSING ITS SUPPORT FOR HER ADMINISTRATION AS A
PARTNER IN THE ATTAINMENT OF THE NATION'S GOALS UNDER THE
CONSTITUTION

WHEREAS, as a consequence of the people's loss of confidence on the ability of

former President Joseph Ejercito Estrada to effectively govern, the Armed Forces of
the Philippines, the Philippine National Police and majority of his cabinet had
withdrawn support from him;

WHEREAS, upon authority of an en banc resolution of the Supreme Court, Vice

President Gloria Macapagal-Arroyo was sworn in as President of the Philippines on
20 January 2001 before Chief Justice Hilario G. Davide, Jr.;

WHEREAS, immediately thereafter, members of the international community had

extended their recognition to Her Excellency, Gloria Macapagal-Arroyo as President
of the Republic of the Philippines;

WHEREAS, Her Excellency, President Gloria Macapagal-Arroyo has espoused a

policy of national healing and reconciliation with justice for the purpose of national
unity and development;

WHEREAS, it is axiomatic that the obligations of the government cannot be

 achieved if it is divided, thus by reason of the constitutional duty of the House of
Representatives as an institution and that of the individual members thereof of fealty
to the supreme will of the people, the House of Representatives must ensure to the
people a stable, continuing government and therefore must remove all obstacles to
the attainment thereof;

WHEREAS, it is a concomitant duty of the House of Representatives to exert all

efforts to unify the nation, to eliminate fractious tension, to heal social and political
wounds, and to be an instrument of national reconciliation and solidarity as it is a
direct representative of the various segments of the whole nation;

WHEREAS, without surrending its independence, it is vital for the attainment of all
the foregoing, for the House of Representatives to extend its support and
collaboration to the administration of Her Excellency, President Gloria Macapagal-
Arroyo, and to be a constructive partner in nation-building, the national interest
demanding no less: Now, therefore, be it

Resolved by the House of Representatives, To express its support to the assumption

into office by Vice President Gloria Macapagal-Arroyo as President of the Republic
of the Philippines, to extend its congratulations and to express its support for her
administration as a partner in the attainment of the Nation's goals under the
Constitution.

Adopted,

(Sgd.) FELICIANO BELMONTE JR.

Speaker

This Resolution was adopted by the House of Representatives on January 24, 2001.

(Sgd.) ROBERTO P. NAZARENO

Secretary General"

On February 7, 2001, the House of the Representatives passed House Resolution No.
17898 which states:

"RESOLUTION CONFIRMING PRESIDENT GLORIA MACAPAGAL-

ARROYO'S NOMINATION OF SENATOR TEOFISTO T. GUINGONA, JR. AS
VICE PRESIDENT OF THE REPUBLIC OF THE PHILIPPINES

WHEREAS, there is a vacancy in the Office of the Vice President due to the
assumption to the Presidency of Vice President Gloria Macapagal-Arroyo;

WHEREAS, pursuant to Section 9, Article VII of the Constitution, the President in

the event of such vacancy shall nominate a Vice President from among the members
of the Senate and the House of Representatives who shall assume office upon
confirmation by a majority vote of all members of both Houses voting separately;

WHEREAS, Her Excellency, President Gloria Macapagal-Arroyo has nominated

Senate Minority Leader Teofisto T. Guingona Jr., to the position of Vice President of
the Republic of the Philippines;

WHEREAS, Senator Teofisto T. Guingona Jr., is a public servant endowed with

integrity, competence and courage; who has served the Filipino people with
dedicated responsibility and patriotism;

WHEREAS, Senator Teofisto T. Guingona, Jr. possesses sterling qualities of true

statesmanship, having served the government in various capacities, among others, as
Delegate to the Constitutional Convention, Chairman of the Commission on Audit,
Executive Secretary, Secretary of Justice, Senator of the Philippines – qualities which
merit his nomination to the position of Vice President of the Republic: Now,
therefore, be it

Resolved as it is hereby resolved by the House of Representatives, That the House of

Representatives confirms the nomination of Senator Teofisto T. Guingona, Jr. as the
Vice President of the Republic of the Philippines.

Adopted,

(Sgd.) FELICIANO BELMONTE JR.

Speaker

This Resolution was adopted by the House of Representatives on February 7, 2001.

(Sgd.) ROBERTO P. NAZARENO

Secretary General"

(4) Also, despite receipt of petitioner's letter claiming inability, some twelve (12)
members of the Senate signed the following:

"RESOLUTION

WHEREAS, the recent transition in government offers the nation an opportunity for
meaningful change and challenge;

WHEREAS, to attain desired changes and overcome awesome challenges the nation
needs unity of purpose and resolve cohesive resolute (sic) will;

WHEREAS, the Senate of the Philippines has been the forum for vital legislative
measures in unity despite diversities in perspectives;

WHEREFORE, we recognize and express support to the new government of

President Gloria Macapagal-Arroyo and resolve to discharge and overcome the
nation's challenges." 99

On February 7, the Senate also passed Senate Resolution No. 82100 which states:

"RESOLUTION CONFIRMING PRESIDENT GLORIA MACAPAGAL

ARROYO'S NOMINATION OF SEM. TEOFISTO T. GUINGONA, JR. AS VICE
PRESIDENT OF THE REPUBLIC OF THE PHILIPPINES

WHEREAS, there is vacancy in the Office of the Vice President due to the
assumption to the Presidency of Vice President Gloria Macapagal-Arroyo;

WHEREAS, pursuant to Section 9 Article VII of the Constitution, the President in

the event of such vacancy shall nominate a Vice President from among the members
of the Senate and the House of Representatives who shall assume office upon
confirmation by a majority vote of all members of both Houses voting separately;

WHEREAS, Her Excellency, President Gloria Macapagal-Arroyo has nominated

Senate Minority Leader Teofisto T. Guingona, Jr. to the position of Vice President of
the Republic of the Philippines;

WHEREAS, Sen. Teofisto T. Guingona, Jr. is a public servant endowed with

integrity, competence and courage; who has served the Filipino people with
dedicated responsibility and patriotism;

WHEREAS, Sen. Teofisto T. Guingona, Jr. possesses sterling qualities of true

statemanship, having served the government in various capacities, among others, as
Delegate to the Constitutional Convention, Chairman of the Commission on Audit,
Executive Secretary, Secretary of Justice, Senator of the land - which qualities merit
his nomination to the position of Vice President of the Republic: Now, therefore, be it

Resolved, as it is hereby resolved, That the Senate confirm the nomination of Sen.
Teofisto T. Guingona, Jr. as Vice President of the Republic of the Philippines.

Adopted,

(Sgd.) AQUILINO Q. PIMENTEL JR.

President of the Senate

This Resolution was adopted by the Senate on February 7, 2001.

(Sgd.) LUTGARDO B. BARBO

Secretary of the Senate"

On the same date, February 7, the Senate likewise passed Senate Resolution No.
83101 which states:
 "RESOLUTION RECOGNIZING THAT THE IMPEACHMENT COURT IS
FUNCTUS OFFICIO

Resolved, as it is hereby resolved. That the Senate recognize that the Impeachment
Court is functus officioand has been terminated.

Resolved, further, That the Journals of the Impeachment Court on Monday, January
15, Tuesday, January 16 and Wednesday, January 17, 2001 be considered approved.

Resolved, further, That the records of the Impeachment Court including the "second
envelope" be transferred to the Archives of the Senate for proper safekeeping and
preservation in accordance with the Rules of the Senate. Disposition and retrieval
thereof shall be made only upon written approval of the Senate president.

Resolved, finally. That all parties concerned be furnished copies of this Resolution.

Adopted,

(Sgd.) AQUILINO Q. PIMENTEL, JR.

President of the Senate

This Resolution was adopted by the Senate on February 7, 2001.

(Sgd.) LUTGARDO B. BARBO

Secretary of the Senate"

(5) On February 8, the Senate also passed Resolution No. 84 "certifying to the existence
of vacancy in the Senate and calling on the COMELEC to fill up such vacancy through
election to be held simultaneously with the regular election on May 14, 2001 and the
Senatorial candidate garnering the thirteenth (13th) highest number of votes shall serve
only for the unexpired term of Senator Teofisto T. Guingona, Jr.'

(6) Both houses of Congress started sending bills to be signed into law by respondent
Arroyo as President.

(7) Despite the lapse of time and still without any functioning Cabinet, without any
recognition from any sector of government, and without any support from the Armed
Forces of the Philippines and the Philippine National Police, the petitioner continues to
claim that his inability to govern is only momentary.

What leaps to the eye from these irrefutable facts is that both houses of Congress have
recognized respondent Arroyo as the President. Implicitly clear in that recognition is the
premise that the inability of petitioner Estrada. Is no longer temporary. Congress has
clearly rejected petitioner's claim of inability.

The question is whether this Court has jurisdiction to review the claim of temporary
inability of petitioner Estrada and thereafter revise the decision of both Houses of
Congress recognizing respondent Arroyo as president of the Philippines. Following
Tañada v. Cuenco,102 we hold that this Court cannot exercise its judicial power or this is
an issue "in regard to which full discretionary authority has been delegated to the
Legislative xxx branch of the government." Or to use the language in Baker vs. Carr,103
there is a "textually demonstrable or a lack of judicially discoverable and manageable
standards for resolving it." Clearly, the Court cannot pass upon petitioner's claim of
inability to discharge the power and duties of the presidency. The question is political in
nature and addressed solely to Congress by constitutional fiat. It is a political issue, which
cannot be decided by this Court without transgressing the principle of separation of
powers.

In fine, even if the petitioner can prove that he did not resign, still, he cannot successfully
claim that he is a President on leave on the ground that he is merely unable to govern
temporarily. That claim has been laid to rest by Congress and the decision that respondent
Arroyo is the de jure, president made by a co-equal branch of government cannot be
reviewed by this Court.

IV

Whether or not the petitioner enjoys immunity from suit.

Assuming he enjoys immunity, the extent of the immunity

Petitioner Estrada makes two submissions: first, the cases filed against him before the
respondent Ombudsman should be prohibited because he has not been convicted in the
impeachment proceedings against him; and second, he enjoys immunity from all kinds of
suit, whether criminal or civil.

Before resolving petitioner's contentions, a revisit of our legal history executive immunity
will be most enlightening. The doctrine of executive immunity in this jurisdiction
emerged as a case law. In the 1910 case of Forbes, etc. vs. Chuoco Tiaco and
Crosfield,104 the respondent Tiaco, a Chinese citizen, sued petitioner W. Cameron
Forbes, Governor-General of the Philippine Islands. J.E. Harding and C.R. Trowbridge,
Chief of Police and Chief of the Secret Service of the City of Manila, respectively, for
damages for allegedly conspiring to deport him to China. In granting a writ of
prohibition, this Court, speaking thru Mr. Justice Johnson, held:

" The principle of nonliability, as herein enunciated, does not mean that the judiciary
has no authority to touch the acts of the Governor-General; that he may, under cover
of his office, do what he will, unimpeded and unrestrained. Such a construction
would mean that tyranny, under the guise of the execution of the law, could walk
defiantly abroad, destroying rights of person and of property, wholly free from
interference of courts or legislatures. This does not mean, either that a person injured
by the executive authority by an act unjustifiable under the law has n remedy, but
must submit in silence. On the contrary, it means, simply, that the governors-general,
 like the judges if the courts and the members of the Legislature, may not be
personally mulcted in civil damages for the consequences of an act executed in the
performance of his official duties. The judiciary has full power to, and will, when the
mater is properly presented to it and the occasion justly warrants it, declare an act of
the Governor-General illegal and void and place as nearly as possible in status quo
any person who has been deprived his liberty or his property by such act. This
remedy is assured to every person, however humble or of whatever country, when his
personal or property rights have been invaded, even by the highest authority of the
state. The thing which the judiciary can not do is mulct the Governor-General
personally in damages which result from the performance of his official duty, any
more than it can a member of the Philippine Commission of the Philippine Assembly.
Public policy forbids it.

Neither does this principle of nonliability mean that the chief executive may not be
personally sued at all in relation to acts which he claims to perform as such official.
On the contrary, it clearly appears from the discussion heretofore had, particularly
that portion which touched the liability of judges and drew an analogy between such
liability and that of the Governor-General, that the latter is liable when he acts in a
case so plainly outside of his power and authority that he can not be said to have
exercised discretion in determining whether or not he had the right to act. What is
held here is that he will be protected from personal liability for damages not only
when he acts within his authority, but also when he is without authority, provided he
actually used discretion and judgement, that is, the judicial faculty, in determining
whether he had authority to act or not. In other words, in determining the question of
his authority. If he decide wrongly, he is still protected provided the question of his
authority was one over which two men, reasonably qualified for that position, might
honestly differ; but he s not protected if the lack of authority to act is so plain that
two such men could not honestly differ over its determination. In such case, be acts,
not as Governor-General but as a private individual, and as such must answer for the
consequences of his act."

Mr. Justice Johnson underscored the consequences if the Chief Executive was not granted
immunity from suit, viz"xxx. Action upon important matters of state delayed; the time
and substance of the chief executive spent in wrangling litigation; disrespect engendered
for the person of one of the highest officials of the state and for the office he occupies; a
tendency to unrest and disorder resulting in a way, in distrust as to the integrity of
government itself."105

Our 1935 Constitution took effect but it did not contain any specific provision on
executive immunity. Then came the tumult of the martial law years under the late
President Ferdinand E. Marcos and the 1973 Constitution was born. In 1981, it was
amended and one of the amendments involved executive immunity. Section 17, Article
VII stated:

"The President shall be immune from suit during his tenure. Thereafter, no suit
whatsoever shall lie for official acts done by him or by others pursuant to his specific
 orders during his tenure.

The immunities herein provided shall apply to the incumbent President referred to in
Article XVII of this Constitution.

In his second Vicente G. Sinco professional Chair lecture entitled, "Presidential Immunity
and All The King's Men: The Law of Privilege As a Defense To Actions For
Damages,"106 petitioner's learned counsel, former Dean of the UP College of Law, Atty.
Pacificao Agabin, brightened the modifications effected by this constitutional amendment
on the existing law on executive privilege. To quote his disquisition:

"In the Philippines, though, we sought to do the Americans one better by enlarging
and fortifying the absolute immunity concept. First, we extended it to shield the
President not only form civil claims but also from criminal cases and other claims.
Second, we enlarged its scope so that it would cover even acts of the President
outside the scope of official duties. And third, we broadened its coverage so as to
include not only the President but also other persons, be they government officials or
private individuals, who acted upon orders of the President. It can be said that at that
point most of us were suffering from AIDS (or absolute immunity defense
syndrome)."

The Opposition in the then Batasan Pambansa sought the repeal of this Marcosian
concept of executive immunity in the 1973 Constitution. The move was led by them
Member of Parliament, now Secretary of Finance, Alberto Romulo, who argued that the
after incumbency immunity granted to President Marcos violated the principle that a
public office is a public trust. He denounced the immunity as a return to the anachronism
"the king can do no wrong."107 The effort failed.

The 1973 Constitution ceased to exist when President Marcos was ousted from office by
the People Power revolution in 1986. When the 1987 Constitution was crafted, its framers
did not reenact the executive immunity provision of the 1973 Constitution. The following
explanation was given by delegate J. Bernas vis:108

"Mr. Suarez. Thank you.

The last question is with reference to the Committee's omitting in the draft proposal
the immunity provision for the President. I agree with Commissioner Nolledo that
the Committee did very well in striking out second sentence, at the very least, of the
original provision on immunity from suit under the 1973 Constitution. But would the
Committee members not agree to a restoration of at least the first sentence that the
President shall be immune from suit during his tenure, considering that if we do not
provide him that kind of an immunity, he might be spending all his time facing
litigation's, as the President-in-exile in Hawaii is now facing litigation's almost daily?

Fr. Bernas. The reason for the omission is that we consider it understood in present
jurisprudence that during his tenure he is immune from suit.
 Mr. Suarez. So there is no need to express it here.

Fr. Bernas. There is no need. It was that way before. The only innovation made by
the 1973 Constitution was to make that explicit and to add other things.

Mr. Suarez. On that understanding, I will not press for any more query, Madam
President.

I think the Commissioner for the clarifications."

We shall now rule on the contentions of petitioner in the light of this history. We reject his
argument that he cannot be prosecuted for the reason that he must first be convicted in the
impeachment proceedings. The impeachment trial of petitioner Estrada was aborted by
the walkout of the prosecutors and by the events that led to his loss of the presidency.
Indeed, on February 7, 2001, the Senate passed Senate Resolution No. 83 "Recognizing
that the Impeachment Court is Functus Officio."109 Since, the Impeachment Court is
now functus officio, it is untenable for petitioner to demand that he should first be
impeached and then convicted before he can be prosecuted. The plea if granted, would
put a perpetual bar against his prosecution. Such a submission has nothing to commend
itself for it will place him in a better situation than a non-sitting President who has not
been subjected to impeachment proceedings and yet can be the object of a criminal
prosecution. To be sure, the debates in the Constitutional Commission make it clear that
when impeachment proceedings have become moot due to the resignation of the
President, the proper criminal and civil cases may already be filed against him, viz:110

"xxx

Mr. Aquino. On another point, if an impeachment proceeding has been filed against
the President, for example, and the President resigns before judgement of conviction
has been rendered by the impeachment court or by the body, how does it affect the
impeachment proceeding? Will it be necessarily dropped?

Mr. Romulo. If we decide the purpose of impeachment to remove one from office,
then his resignation would render the case moot and academic. However, as the
provision says, the criminal and civil aspects of it may continue in the ordinary
courts."

This is in accord with our ruling In Re: Saturnino Bermudez111 that 'incumbent
Presidents are immune from suit or from being brought to court during the period of their
incumbency and tenure" but not beyond. Considering the peculiar circumstance that the
impeachment process against the petitioner has been aborted and thereafter he lost the
presidency, petitioner Estrada cannot demand as a condition sine qua non to his criminal
prosecution before the Ombudsman that he be convicted in the impeachment
proceedings. His reliance on the case of Lecaroz vs. Sandiganbayan112 and related
cases113 are inapropos for they have a different factual milieu.
We now come to the scope of immunity that can be claimed by petitioner as a non-sitting
President. The cases filed against petitioner Estrada are criminal in character. They
involve plunder, bribery and graft and corruption. By no stretch of the imagination can
these crimes, especially plunder which carries the death penalty, be covered by the
alleged mantle of immunity of a non-sitting president. Petitioner cannot cite any decision
of this Court licensing the President to commit criminal acts and wrapping him with post-
tenure immunity from liability. It will be anomalous to hold that immunity is an
inoculation from liability for unlawful acts and conditions. The rule is that unlawful acts
of public officials are not acts of the State and the officer who acts illegally is not acting
as such but stands in the same footing as any trespasser.114

Indeed, critical reading of current literature on executive immunity will reveal a judicial
disinclination to expand the privilege especially when it impedes the search for truth or
impairs the vindication of a right. In the 1974 case of US v. Nixon,115 US President
Richard Nixon, a sitting President, was subpoenaed to produce certain recordings and
documents relating to his conversations with aids and advisers. Seven advisers of
President Nixon's associates were facing charges of conspiracy to obstruct Justice and
other offenses, which were committed in a burglary of the Democratic National
Headquarters in Washington's Watergate Hotel during the 972 presidential campaign.
President Nixon himself was named an unindicted co-conspirator. President Nixon moved
to quash the subpoena on the ground, among others, that the President was not subject to
judicial process and that he should first be impeached and removed from office before he
could be made amenable to judicial proceedings. The claim was rejected by the US
Supreme Court. It concluded that "when the ground for asserting privilege as to
subpoenaed materials sought for use in a criminal trial is based only on the generalized
interest in confidentiality, it cannot prevail over the fundamental demands of due process
of law in the fair administration of criminal justice." In the 1982 case of Nixon v.
Fitzgerald,116 the US Supreme Court further held that the immunity of the president
from civil damages covers only "official acts." Recently, the US Supreme Court had the
occasion to reiterate this doctrine in the case of Clinton v. Jones117 where it held that the
US President's immunity from suits for money damages arising out of their official acts is
inapplicable to unofficial conduct.

There are more reasons not to be sympathetic to appeals to stretch the scope of executive
immunity in our jurisdiction. One of the great themes of the 1987 Constitution is that a
public office is a public trust.118 It declared as a state policy that "the State shall
maintain honesty and integrity in the public service and take positive and effective
measures against graft and corruptio."119 it ordained that "public officers and employees
must at all times be accountable to the people, serve them with utmost responsibility,
integrity, loyalty, and efficiency act with patriotism and justice, and lead modest
lives."120 It set the rule that 'the right of the State to recover properties unlawfully
acquired by public officials or employees, from them or from their nominees or
transferees, shall not be barred by prescription, latches or estoppel."121 It maintained the
Sandiganbayan as an anti-graft court.122 It created the office of the Ombudsman and
endowed it with enormous powers, among which is to "investigate on its own, or on
complaint by any person, any act or omission of any public official, employee, office or
agency, when such act or omission appears to be illegal, unjust improper or
inefficient."123 The Office of the Ombudsman was also given fiscal autonomy.124 These
constitutional policies will be devalued if we sustain petitioner's claim that a non-sitting
president enjoys immunity from suit for criminal acts committed during his incumbency.

Whether or not the prosecution of petitioner

Estrada should be enjoined due to prejudicial publicity

Petitioner also contends that the respondent Ombudsman should be stopped from
conducting the investigation of the cases filed against him due to the barrage of
prejudicial publicity on his guilt. He submits that the respondent Ombudsman has
developed bias and is all set file the criminal cases violation of his right to due process.

There are two (2) principal legal and philosophical schools of thought on how to deal
with the rain of unrestrained publicity during the investigation and trial of high profile
cases.125 The British approach the problem with the presumption that publicity will
prejudice a jury. Thus, English courts readily stay and stop criminal trials when the right
of an accused to fair trial suffers a threat.126 The American approach is different. US
courts assume a skeptical approach about the potential effect of pervasive publicity on the
right of an accused to a fair trial. They have developed different strains of tests to resolve
this issue, i.e., substantial; probability of irreparable harm, strong likelihood, clear and
present danger, etc.

This is not the first time the issue of trial by publicity has been raised in this Court to stop
the trials or annul convictions in high profile criminal cases.127 In People vs. Teehankee,
Jr.,128 later reiterated in the case of Larranaga vs. court of Appeals, et al.,129 we laid
down the doctrine that:

"We cannot sustain appellant's claim that he was denied the right to impartial trial
due to prejudicial publicity. It is true that the print and broadcast media gave the case
at bar pervasive publicity, just like all high profile and high stake criminal trials.
Then and now, we rule that the right of an accused to a fair trial is not incompatible
to a free press. To be sure, responsible reporting enhances accused's right to a fair
trial for, as well pointed out, a responsible press has always been regarded as the
criminal field xxx. The press does not simply publish information about trials but
guards against the miscarriage of justice by subjecting the police, prosecutors, and
judicial processes to extensive public scrutiny and criticism.

Pervasive publicity is not per se prejudicial to the right of an accused to fair trial. The
mere fact that the trial of appellant was given a day-to-day, gavel-to-gavel coverage
does not by itself prove that the publicity so permeated the mind of the trial judge
and impaired his impartiality. For one, it is impossible to seal the minds of members
of the bench from pre-trial and other off-court publicity of sensational criminal cases.
 The state of the art of our communication system brings news as they happen straight
to our breakfast tables and right to our bedrooms. These news form part of our
everyday menu of the facts and fictions of life. For another, our idea of a fair and
impartial judge is not that of a hermit who is out of touch with the world. We have
not installed the jury system whose members are overly protected from publicity lest
they lose there impartially. xxx xxx xxx. Our judges are learned in the law and
trained to disregard off-court evidence and on-camera performances of parties to
litigation. Their mere exposure to publications and publicity stunts does not per se
fatally infect their impartiality.

At best, appellant can only conjure possibility of prejudice on the part of the trial
judge due to the barrage of publicity that characterized the investigation and trial of
the case. In Martelino, et al. v. Alejandro, et al., we rejected this standard of
possibility of prejudice and adopted the test of actual prejudice as we ruled that to
warrant a finding of prejudicial publicity, there must be allegation and proof that the
judges have been unduly influenced, not simply that they might be, by the barrage of
publicity. In the case at a bar, the records do not show that the trial judge developed
actual bias against appellants as a consequence of the extensive media coverage of
the pre-trial and trial of his case. The totality of circumstances of the case does not
prove that the trial judge acquired a fixed opinion as a result of prejudicial publicity,
which is incapable of change even by evidence presented during the trial. Appellant
has the burden to prove this actual bias and he has not discharged the burden.'

We expounded further on this doctrine in the subsequent case of Webb vs. Hon. Raul de
Leon, etc.130 and its companion cases, viz:

"Again petitioners raise the effect of prejudicial publicity on their right to due
process while undergoing preliminary investigation. We find no procedural
impediment to its early invocation considering the substantial risk to their liberty
while undergoing a preliminary investigation.

xxx

The democratic settings, media coverage of trials of sensational cases cannot be

avoided and oftentimes, its excessiveness has been aggravated by kinetic
developments in the telecommunications industry. For sure, few cases can match the
high volume and high velocity of publicity that attended the preliminary
investigation of the case at bar. Our daily diet of facts and fiction about the case
continues unabated even today. Commentators still bombard the public with views
not too many of which are sober and sublime. Indeed, even the principal actors in the
case – the NBI, the respondents, their lawyers and their sympathizers have
participated in this media blitz. The possibility of media abuses and their threat to a
fair trial notwithstanding, criminal trials cannot be completely closed to the press and
public. In the seminal case of Richmond Newspapers, Inc. v. Virginia, it was

xxx
1
2 The historical evidence of the evolution of the criminal trial in Anglo-American
justice demonstrates conclusively that at the time this Nation's organic laws were
adopted, criminal trials both here and in England had long been presumptively open,
thus giving assurance that the proceedings were conducted fairly to all concerned and
discouraging perjury, the misconduct of participants, or decisions based on secret bias
or partiality. In addition, the significant community therapeutic value of public trials
was recognized when a shocking crime occurs a community reaction of outrage and
public protest often follows, and thereafter the open processes of justice serve an
important prophylactic purpose, providing an outlet for community concern, hostility
and emotion. To work effectively, it is important that society's criminal process satisfy
the appearance of justice,' Offutt v. United States, 348 US 11, 14, 99 L ED 11, 75 S Ct
11, which can best be provided by allowing people to observe such process. From this
unbroken, uncontradicted history, supported by reasons as valid today as in centuries
past, it must be concluded that a presumption of openness inheres in the very nature
of a criminal trial under this Nation's system of justice, Cf., e,g., Levine v. United
States, 362 US 610, 4 L Ed 2d 989, 80 S Ct 1038.
3 The freedoms of speech. Press and assembly, expressly guaranteed by the First
Amendment, share a common core purpose of assuring freedom of communication on
matters relating to the functioning of government. In guaranteeing freedom such as
those of speech and press, the First Amendment can be read as protecting the right of
everyone to attend trials so as give meaning to those explicit guarantees; the First
Amendment right to receive information and ideas means, in the context of trials, that
the guarantees of speech and press, standing alone, prohibit government from
summarily closing courtroom doors which had long been open to the public at the
time the First Amendment was adopted. Moreover, the right of assembly is also
relevant, having been regarded not only as an independent right but also as a catalyst
to augment the free exercise of the other First Amendment rights with which the
draftsmen deliberately linked it. A trial courtroom is a public place where the people
generally and representatives of the media have a right to be present, and where their
presence historically has been thought to enhance the integrity and quality of what
takes place.
4 Even though the Constitution contains no provision which be its terms guarantees
to the public the right to attend criminal trials, various fundamental rights, not
expressly guaranteed, have been recognized as indispensable to the enjoyment of
enumerated rights. The right to attend criminal trial is implicit in the guarantees of the
First Amendment: without the freedom to attend such trials, which people have
exercised for centuries, important aspects of freedom of speech and of the press be
eviscerated.

Be that as it may, we recognize that pervasive and prejudicial publicity under certain
circumstances can deprive an accused of his due process right to fair trial. Thus, in
Martelino, et al. vs. Alejandro, et al., we held that to warrant a finding of prejudicial
publicity there must be allegation and proof that the judges have been unduly
influenced, not simply that they might be, by the barrage of publicity. In the case at
bar, we find nothing in the records that will prove that the tone and content of the
 publicity that attended the investigation of petitioners fatally infected the fairness and
impartiality of the DOJ Panel. Petitioners cannot just rely on the subliminal effects of
publicity on the sense of fairness of the DOJ Panel, for these are basically
unbeknown and beyond knowing. To be sure, the DOJ Panel is composed of an
Assistant Chief State Prosecutor and Senior State Prosecutors. Their long experience
in criminal investigation is a factor to consider in determining whether they can
easily be blinded by the klieg lights of publicity. Indeed, their 26-page Resolution
carries no indubitable indicia of bias for it does not appear that they considered any
extra-record evidence except evidence properly adduced by the parties. The length of
time the investigation was conducted despite its summary nature and the generosity
with which they accommodated the discovery motions of petitioners speak well of
their fairness. At no instance, we note, did petitioners seek the disqualification of any
member of the DOJ Panel on the ground of bias resulting from their bombardment of
prejudicial publicity." (emphasis supplied)

Applying the above ruling, we hold that there is not enough evidence to warrant this
Court to enjoin the preliminary investigation of the petitioner by the respondent
Ombudsman. Petitioner needs to offer more than hostile headlines to discharge his burden
of proof.131 He needs to show more weighty social science evidence to successfully
prove the impaired capacity of a judge to render a bias-free decision. Well to note, the
cases against the petitioner are still undergoing preliminary investigation by a special
panel of prosecutors in the office of the respondent Ombudsman. No allegation
whatsoever has been made by the petitioner that the minds of the members of this special
panel have already been infected by bias because of the pervasive prejudicial publicity
against him. Indeed, the special panel has yet to come out with its findings and the Court
cannot second guess whether its recommendation will be unfavorable to the
petitioner.1âwphi1.nêt

The records show that petitioner has instead charged respondent Ombudsman himself
with bias. To quote petitioner's submission, the respondent Ombudsman "has been
influenced by the barrage of slanted news reports, and he has buckled to the threats and
pressures directed at him by the mobs."132 News reports have also been quoted to
establish that the respondent Ombudsman has already prejudged the cases of the
petitioner133 and it is postulated that the prosecutors investigating the petitioner will be
influenced by this bias of their superior.

Again, we hold that the evidence proffered by the petitioner is insubstantial. The accuracy
of the news reports referred to by the petitioner cannot be the subject of judicial notice by
this Court especially in light of the denials of the respondent Ombudsman as to his
alleged prejudice and the presumption of good faith and regularity in the performance of
official duty to which he is entitled. Nor can we adopt the theory of derivative prejudice
of petitioner, i.e., that the prejudice of respondent Ombudsman flows to his subordinates.
In truth, our Revised Rules of Criminal Procedure, give investigation prosecutors the
independence to make their own findings and recommendations albeit they are
reviewable by their superiors.134 They can be reversed but they can not be compelled
cases which they believe deserve dismissal. In other words, investigating prosecutors
should not be treated like unthinking slot machines. Moreover, if the respondent
Ombudsman resolves to file the cases against the petitioner and the latter believes that the
findings of probable cause against him is the result of bias, he still has the remedy of
assailing it before the proper court.

VI.

Epilogue

A word of caution to the "hooting throng." The cases against the petitioner will now
acquire a different dimension and then move to a new stage - - - the Office of the
Ombudsman. Predictably, the call from the majority for instant justice will hit a higher
decibel while the gnashing of teeth of the minority will be more threatening. It is the
sacred duty of the respondent Ombudsman to balance the right of the State to prosecute
the guilty and the right of an accused to a fair investigation and trial which has been
categorized as the "most fundamental of all freedoms."135To be sure, the duty of a
prosecutor is more to do justice and less to prosecute. His is the obligation to insure that
the preliminary investigation of the petitioner shall have a circus-free atmosphere. He has
to provide the restraint against what Lord Bryce calls "the impatient vehemence of the
majority." Rights in a democracy are not decided by the mob whose judgment is dictated
by rage and not by reason. Nor are rights necessarily resolved by the power of number for
in a democracy, the dogmatism of the majority is not and should never be the definition
of the rule of law. If democracy has proved to be the best form of government, it is
because it has respected the right of the minority to convince the majority that it is wrong.
Tolerance of multiformity of thoughts, however offensive they may be, is the key to
man's progress from the cave to civilization. Let us not throw away that key just to
pander to some people's prejudice.

IN VIEW WHEREOF, the petitions of Joseph Ejercito Estrada challenging the respondent
Gloria Macapagal-Arroyo as the de jure 14th President of the Republic are DISMISSED.

SO ORDERED.
 16. G.R. No. 76180. October 24, 1986.

SATURNINO V. BERMUDEZ, Petitioner.

SYLLABUS

1. REMEDIAL LAW; DISMISSAL OF PETITIONS; LACK OF JURISDICTION AND

LACK OF CAUSE OF ACTION, VALID GROUNDS. — The petition is dismissed
outright for lack of jurisdiction and for lack of cause of action. Prescinding from
petitioner’s lack of personality to sue or to bring this action (Tan v. Macapagal, 43 SCRA
677). it is elementary that this Court assumes no jurisdiction over petitions for declaratory
relief. More importantly, the petition amounts in effect to a suit against the incumbent
Presidents of the Republic. President Corazon C. Aquino, and it is equally elementary
that incumbent Presidents are immune from suit or from being brought to court during the
period of their incumbency and tenure. The petition furthermore states no cause of action.
Petitioner’s allegation of ambiguity or vagueness of the aforequoted provision is
manifestly gratuitous, it being a matter of public record and common public knowledge
that the Constitutional Commission refers therein to incumbent President Corazon C.
Aquino and Vice-President Salvador H. Laurel, and to no other persons, and provides for
the extension of their term to noon of June 30, 1992 for purpose of synchronization of
elections. Hence the second paragraph of the cited section provides for the holding on the
second Monday of May, 1992 of the first regular elections for the President and Vice-
President under said 1986 Constitution.

MELENCIO-HERRERA, J., concurring:chanrob1es virtual 1aw library

1. REMEDIAL LAW; DISMISSAL OF PETITION, PROPER IN CASE AT BAR;

SUPREME COURT HAS NO ORIGINAL JURISDICTION OVER PETITIONS FOR
DECLARATORY RELIEF. — As to lack of cause of action, the petitioner’s prayer for a
declaration as to who were elected President and Vice-President in the February 7, 1986
elections should be addressed not to this court but to other departments of government
constitutionally burdened with the task of making that declaration. The 1935
Constitution, the 1973 Constitution an amended, and the 1986 Draft Constitution
uniformly provide that boards of canvassers in each province and city shall certify who
were elected President and Vice President in their respective areas. The certified returns
are transmitted to the legislature which proclaims, through the designated Presiding Head,
who were duly elected. Copies of the certified returns from the provincial and city boards
of canvassers have not been furnished this Court nor is there any need to do so. In the
absence of a legislature, we cannot assume the function of stating, and neither do we have
any factual or legal capacity to officially declare, who were elected President and Vice
President in the February 7, 1986 elections.

RESOLUTION

PER CURIAM:

In a petition for declaratory relief impleading no respondents, Petitioner, as a lawyer,

quotes the first paragraph of Section 5 (not Section 7 as erroneously stated) of Article
XVIII of the proposed 1986 Constitution, which provides in full as
follows:jgc:chanrobles.com.ph

"Sec. 5. The six-year term of the incumbent President and Vice-President elected in the
February 7, 1986 election is, for purposes of synchronization of elections, hereby
extended to noon of June 30, 1992."cralaw virtua1aw library
"The first regular elections for the President and Vice-President under this Constitution
shall be held on the second Monday of May, 1992."cralaw virtua1aw library

Claiming that the said provision "is not clear" as to whom it refers, he then asks the Court
"to declare and answer the question of the construction and definiteness as to who, among
the present incumbent President Corazon Aquino and Vice President Salvador Laurel and
the elected President Ferdinand E. Marcos and Vice President Arturo M. Tolentino being
referred to under the said Section 7 (sic) of ARTICLE XVIII of the TRANSITORY
PROVISIONS of the proposed 1986 Constitution refers to, . . ."cralaw virtua1aw library

The petition is dismissed outright for lack of jurisdiction and for lack of cause of
action.chanrobles.com.ph : virtual law library

Prescinding from petitioner’s lack of personality to sue or to bring this action (Tan v.
Macapagal, 43 SCRA 677), it is elementary that this Court assumes no jurisdiction over
petitions for declaratory relief. More importantly, the petition amounts in effect to a suit
against the incumbent President of the Republic, President Corazon C. Aquino, and it is
equally elementary that incumbent Presidents are immune from suit or from being
brought to court during the period of their incumbency and tenure.

The petition furthermore states no cause of action. Petitioner’s allegation of ambiguity or

vagueness of the aforequoted provision is manifestly gratuitous, it being a matter of
public record and common public knowledge that the Constitutional Commission refers
therein to incumbent President Corazon C. Aquino and Vice-President Salvador H.
Laurel, and to no other persons, and provides for the extension of their term to noon of
June 30, 1992 for purposes of synchronization of elections. Hence, the second paragraph
of the cited section provides for the holding on the second Monday of May, 1992 of the
first regular elections for the President and Vice-President under said 1986 Constitution.
In previous cases, the legitimacy of the government of President Corazon C. Aquino was
likewise sought to be questioned with the claim that it was not established pursuant to the
1973 Constitution. The said cases were dismissed outright by this court which held
that:jgc:chanrobles.com.ph

"Petitioners have no personality to sue and their petitions state no cause of action. For the
legitimacy of the Aquino government is not a justiciable matter. It belongs to the realm of
politics where only the people of the Philippines are the judge. And the people have made
the judgment; they have accepted the government of President Corazon C. Aquino which
is in effective control of the entire country so that it is not merely a de facto government
but in fact and law a de jure government. Moreover, the community of nations has
recognized the legitimacy of the present government. All the eleven members of this
Court, as reorganized, have sworn to uphold the fundamental law of the Republic under
her government." (Joint Resolution of May 22, 1986 in G.R. No. 73748 [Lawyers League
for a Better Philippines, etc. v. President Corazon C. Aquino, Et. Al.]; G.R. No. 73972
[People’s Crusade for Supremacy of the Constitution etc. v. Mrs. Cory Aquino, Et. Al.];
and G.R. No. 73990 [Councilor Clifton U. Ganay v. Corazon C. Aquino, Et. Al.])
For the above-quoted reasons, which are fully applicable to the petition at bar, mutatis
mutandis, there can be no question that President Corazon C. Aquino and Vice-President
Salvador H. Laurel are the incumbent and legitimate President and Vice President of the
Republic of the Philippines.

ACCORDINGLY, the petition is hereby dismissed.

Teehankee, C.J., Feria, Yap, Fernan, Narvasa, Alampay and Paras, JJ., concur.

Separate Opinions

MELENCIO-HERRERA, J., concurring:chanrob1es virtual 1aw library

The petitioner asks the Court to declare who are "the incumbent President and Vice
President elected in the February 7, 1986 elections" as stated in Article XVIII, Section 5
of the Draft Constitution adopted by the Constitutional Commission of 1986.

We agree that the petition deserves outright dismissal as this Court has no original
jurisdiction over petitions for declaratory relief.

As to lack of cause of action, the petitioner’s prayer for a declaration as to who were
elected President and Vice President in the February 7, 1986 elections should be
addressed not to this Court but to other departments of government constitutionally
burdened with the task of making that declaration.

The 1935 Constitution, the 1973 Constitution as amended, and the 1986 Draft
Constitution uniformly provide that boards of canvassers in each province and city shall
certify who were elected President and Vise President in their respective areas. The
certified returns are transmitted to the legislature which proclaims, through the designated
Presiding Head, who were duly elected.

Copies of the certified returns from the provincial and city boards of canvassers have not
been furnished this Court nor is there any need to do so. In the absence of a legislature,
we cannot assume the function of stating, and neither do we have any factual or legal
capacity to officially declare, who were elected President and Vice President in the
February 7, 1986 elections.

As to who are the incumbent President and Vice President referred to in the 1986 Draft
Constitution, we agree that there is no doubt the 1986 Constitutional Commission
referred to President Corazon C. Aquino and Vice President Salvador H.
Laurel.chanrobles.com:cralaw:red

Finally, we agree with the Resolution of the Court in G.R. Nos. 73748, 73972, and 73990.
For the foregoing reasons, we vote to DISMISS the instant petition.

Gutierrez, Jr. and Feliciano, JJ., concur.

CRUZ, J., concurring:chanrob1es virtual 1aw library

I vote to dismiss this petition on the ground that the Constitution we are asked to interpret
has not yet been ratified and is therefore not yet effective. I see here no actual conflict of
legal rights susceptible of judicial determination at this time. (Aetna Life Insurance Co. v.
Haworth, 300 U.S. 227; PACU v. Secretary of Education, 97 Phil. 806.)
 17. Gov. of the Philippine Islands vs. Monte de Piedad

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

THE GOVERNMENT OF THE PHILIPPINE ISLANDS, represented by the Treasurer of

the Philippine Islands,plaintiff-appellee,
vs.
EL MONTE DE PIEDAD Y CAJA DE AHORRAS DE MANILA, defendant-appellant.

William A. Kincaid and Thomas L. Hartigan for appellant.

Attorney-General Avanceña for appellee.

TRENT, J.:

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

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

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

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

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

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

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

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

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

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

 Excellency: The Board of Directors of the Monte de Piedad y Caja de Ahorros of
Manila informs your Excellency, First: That the funds which it has up to the present
been able to dispose of have been exhausted in loans on jewelry, and there only
remains the sum of one thousand and odd pesos, which will be expended between to-
day and day after tomorrow. Second: That, to maintain the credit of the
establishment, which would be greatly injured were its operations suspended, it is
necessary to procure money. Third: That your Excellency has proposed to His
Majesty's Government to apply to the funds of the Monte de Piedad a part of the
funds held in the treasury derived form the national subscription for the relief of the
distress caused by the earthquake of 1863. Fourth: That in the public treasury there is
held at the disposal of the central earthquake relief board over $1090,000 which was
deposited in the said treasury by order of your general Government, it having been
transferred thereto from the Spanish-Filipino Bank where it had been held. fifth: That
in the straightened circumstances of the moment, your Excellency can, to avert
impending disaster to the Monte de Piedad, order that, out of that sum of one
hundred thousand pesos held in the Treasury at the disposal of the central relief
board, there be transferred to the Monte de Piedad the sum of $80,000, there to be
held under the same conditions as at present in the Treasury, to wit, at the disposal of
the Relief Board. Sixth: That should this transfer not be approved for any reason,
either because of the failure of His Majesty's Government to approve the proposal
made by your Excellency relative to the application to the needs of the Monte de
Piedad of a pat of the subscription intended to believe the distress caused by the
earthquake of 1863, or for any other reason, the board of directors of the Monte de
Piedad obligates itself to return any sums which it may have received on account of
the eighty thousand pesos, or the whole thereof, should it have received the same, by
securing a loan from whichever bank or banks may lend it the money at the cheapest
rate upon the security of pawned jewelry. — This is an urgent measure to save the
Monte de Piedad in the present crisis and the board of directors trusts to secure your
Excellency's entire cooperation and that of the other officials who have take part in
the transaction.

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

GENERAL GOVERNMENT OF THE PHILIPPINES.

MANILA, February 1, 1883.

In view of the foregoing petition addressed to me by the board of directors of the

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

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

Considering that if such a thing would at any time cause deep distress in the public
mind, it might be said that at the present juncture it would assume the nature of a
disturbance of public order because of the extreme poverty of the poorer classes
resulting from the late calamities, and because it is the only institution which can
mitigate the effects of such poverty; and

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

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

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

Third. The Intendencia General de Hacienda shall forthwith, and in preference to all
other work, proceed to prepare the necessary papers so that with the least possible
delay the payment referred to may be made and the danger that menaces the Monte
de Piedad of having to suspend its operations may be averted.
 H. M. Government shall be advised hereof.lawphi1.net
(Signed) P. DE RIVERA.

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

Intendencia General de Hacienda de Filipinas (General Treasury of the Philippines)

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

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

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

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

MANILA, March 31, 1902.

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

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

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

Manila, November 19, 1913

(Sgd.) EMILIO LAZCANOTEGUI,
Secretary

(Sgd.) O. K. EMILIO MORETA,

Managing Director.

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

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

The Spanish nation was professedly Roman Catholic and its King enjoyed the
distinction of being deputy ex officio of the Holy See and Apostolic Vicar-General of
the Indies, and as such it was his duty to protect all pious works and charitable
institutions in his kingdoms, especially those of the Indies; among the latter was the
 Monte de Piedad of the Philippines, of which said King and his deputy the Governor-
General of the Philippines, as royal vice-patron, were, in a special and peculiar
manner, the protectors; the latter, as a result of the cession of the Philippine Islands,
Implicitly renounced this high office and tacitly returned it to the Holy See, now
represented by the Archbishop of Manila; the national subscription in question was a
kind of foundation or pious work, for a charitable purpose in these Islands; and the
entire subscription not being needed for its original purpose, the royal vice-patron,
with the consent of the King, gave the surplus thereof to an analogous purpose; the
fulfillment of all these things involved, in the majority, if not in all cases, faithful
compliance with the duty imposed upon him by the Holy See, when it conferred
upon him the royal patronage of the Indies, a thing that touched him very closely in
his conscience and religion; the cessionary Government though Christian, was not
Roman Catholic and prided itself on its policy of non-interference in religious
matters, and inveterately maintained a complete separation between the ecclesiastical
and civil powers.

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

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

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

And in their supplemental brief counsel say:

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

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

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

It is further contended that the obligation on the part of the Monte de Piedad to return the
$80,000 to the Government, even considering it a loan, was wiped out on the change of
sovereignty, or inn other words, the present Philippine Government cannot maintain this
action for that reason. This contention, if true, "must result from settled principles of rigid
law," as it cannot rest upon any title to the fund in the Monte de Piedad acquired prior to
such change. While the obligation to return the $80,000 to the Spanish Government was
still pending, war between the United States and Spain ensued. Under the Treaty of Paris
of December 10, 1898, the Archipelago, known as the Philippine Islands, was ceded to
the United States, the latter agreeing to pay Spain the sum of $20,000,000. Under the first
paragraph of the eighth article, Spain relinquished to the United States "all buildings,
wharves, barracks, forts, structures, public highways, and other immovable property
which, in conformity with law, belonged to the public domain, and as such belonged to
the crown of Spain." As the $80,000 were not included therein, it is said that the right to
recover this amount did not, therefore, pass to the present sovereign. This, in our opinion,
does not follow as a necessary consequence, as the right to recover does not rest upon the
proposition that the $80,000 must be "other immovable property" mentioned in article 8
of the treaty, but upon contractual obligations incurred before the Philippine Islands were
ceded to the United States. We will not inquire what effect his cession had upon the law
of June 20, 1849, the royal decree of April 27, 1875, and the instructions promulgated on
the latter date. In Vilas vs.Manila (220 U. S., 345), the court said:
 That there is a total abrogation of the former political relations of the inhabitants of
the ceded region is obvious. That all laws theretofore in force which are in conflict
with the political character, constitution, or institutions of the substituted sovereign,
lose their force, is also plain. (Alvarez y Sanchez vs. United States, 216 U. S., 167.)
But it is equally settled in the same public law that the great body of municipal law
which regulates private and domestic rights continues in force until abrogated or
changed by the new ruler.

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

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

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

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

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

Chancelor Kent says:

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

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

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

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

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

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

Where property affected by a trust for public purposes is in the hands of those who
hold it devoted to that trust, it is the privilege of the public that the crown should be
entitled to intervene by its officers for the purpose of asserting, on behalf on the
public generally, the public interest and the public right, which, probably, no
individual could be found effectually to assert, even if the interest were such as to
allow it. (2 Knet's Commentaries, 10th ed., 359; Lewin on Trusts, sec. 732.)

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

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

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

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

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

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

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

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

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

It is settled beyond doubt or controversy — upon the foundation of the great

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

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

It is a matter of common knowledge that statutes of limitation do not run against the
 State. That no laches can be imputed to the King, and that no time can bar his rights,
was the maxim of the common laws, and was founded on the principle of public
policy, that as he was occupied with the cares of government he ought not to suffer
from the negligence of his officer and servants. The principle is applicable to all
governments, which must necessarily act through numerous agents, and is essential
to a preservation of the interests and property of the public. It is upon this principle
that in this country the statutes of a State prescribing periods within which rights
must be prosecuted are not held to embrace the State itself, unless it is expressly
designated or the mischiefs to be remedied are of such a nature that it must
necessarily be included. As legislation of a State can only apply to persons and thing
over which the State has jurisdiction, the United States are also necessarily excluded
from the operation of such statutes.

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

In the absence of express statutory provision to the contrary, statute of limitations do

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

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

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

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

For the foregoing reasons the judgment appealed from is affirmed, with costs against the
appellant. So ordered.
Torres, Johnson and Araullo, JJ., concur.
Moreland, J., did not sign.

18. G.R. No. L-35131 November 29, 1972

THE WORLD HEALTH ORGANIZATION and DR. LEONCE VERSTUYFT,

petitioners,
vs.
HON. BENJAMIN H. AQUINO, as Presiding Judge of Branch VIII, Court of First
Instance of Rizal, MAJOR WILFREDO CRUZ, MAJOR ANTONIO G. RELLEVE, and
CAPTAIN PEDRO S. NAVARRO of the Constabulary Offshore Action Center
(COSAC), respondents.

Sycip, Salazar, Luna, Manalo and Feliciano for petitioners.

Emilio L. Baldia for respondents.

TEEHANKEE, J.:p

An original action for certiorari and prohibition to set aside respondent judge's refusal to
quash a search warrant issued by him at the instance of respondents COSAC
(Constabulary Offshore Action Center) officers for the search and seizure of the personal
effects of petitioner official of the WHO (World Health Organization) notwithstanding his
being entitled to diplomatic immunity, as duly recognized by the executive branch of the
Philippine Government and to prohibit respondent judge from further proceedings in the
matter.

Upon filing of the petition, the Court issued on June 6, 1972 a restraining order enjoining
respondents from executing the search warrant in question.

Respondents COSAC officers filed their answer joining issue against petitioners and
seeking to justify their act of applying for and securing from respondent judge the
warrant for the search and seizure of ten crates consigned to petitioner Verstuyft and
stored at the Eternit Corporation warehouse on the ground that they "contain large
quantities of highly dutiable goods" beyond the official needs of said petitioner "and the
only lawful way to reach these articles and effects for purposes of taxation is through a
search warrant." 1

The Court thereafter called for the parties' memoranda in lieu of oral argument, which
were filed on August 3, 1972 by respondents and on August 21, 1972 by petitioners, and
the case was thereafter deemed submitted for decision.

It is undisputed in the record that petitioner Dr. Leonce Verstuyft, who was assigned on
December 6, 1971 by the WHO from his last station in Taipei to the Regional Office in
Manila as Acting Assistant Director of Health Services, is entitled to diplomatic
immunity, pursuant to the Host Agreement executed on July 22, 1951 between the
Philippine Government and the World Health Organization.

Such diplomatic immunity carries with it, among other diplomatic privileges and
immunities, personal inviolability, inviolability of the official's properties, exemption
from local jurisdiction, and exemption from taxation and customs duties.

When petitioner Verstuyft's personal effects contained in twelve (12) crates entered the
Philippines as unaccompanied baggage on January 10, 1972, they were accordingly
allowed free entry from duties and taxes. The crates were directly stored at the Eternit
Corporation's warehouse at Mandaluyong, Rizal, "pending his relocation into permanent
quarters upon the offer of Mr. Berg, Vice President of Eternit who was once a patient of
Dr. Verstuyft in the Congo." 2

Nevertheless, as above stated, respondent judge issued on March 3, 1972 upon

application on the same date of respondents COSAC officers search warrant No. 72-138
for alleged violation of Republic Act 4712 amending section 3601 of the Tariff and
Customs Code 3 directing the search and seizure of the dutiable items in said crates.

Upon protest of March 6, 1972 of Dr. Francisco Dy, WHO Regional Director for the
Western Pacific with station in Manila, Secretary of Foreign Affairs Carlos P. Romulo,
personally wired on the same date respondent Judge advising that "Dr. Verstuyft is
entitled to immunity from search in respect of his personal baggage as accorded to
members of diplomatic missions" pursuant to the Host Agreement and requesting
suspension of the search warrant order "pending clarification of the matter from the
ASAC."

Respondent judge set the Foreign Secretary's request for hearing and heard the same on
March 16, 1972, but notwithstanding the official plea of diplomatic immunity interposed
by a duly authorized representative of the Department of Foreign Affairs who furnished
the respondent judge with a list of the articles brought in by petitioner Verstuyft,
respondent judge issued his order of the same date maintaining the effectivity of the
search warrant issued by him, unless restrained by a higher court. 4

Petitioner Verstuyft's special appearance on March 24, 1972 for the limited purpose of
pleading his diplomatic immunity and motion to quash search warrant of April 12, 1972
failed to move respondent judge.

At the hearing thereof held on May 8, 1972, the Office of the Solicitor General appeared
and filed an extended comment stating the official position of the executive branch of the
Philippine Government that petitioner Verstuyft is entitled to diplomatic immunity, he did
not abuse his diplomatic immunity, 5 and that court proceedings in the receiving or host
State are not the proper remedy in the case of abuse of diplomatic immunity. 6

The Solicitor General accordingly joined petitioner Verstuyft's prayer for the quashal of
the search warrant. Respondent judge nevertheless summarily denied quashal of the
search warrant per his order of May 9, 1972 "for the same reasons already stated in (his)
aforesaid order of March 16, 1972" disregarding Foreign Secretary Romulo's plea of
diplomatic immunity on behalf of Dr. Verstuyft.

Hence, the petition at bar. Petitioner Verstuyft has in this Court been joined by the World
Health Organization (WHO) itself in full assertion of petitioner Verstuyft's being entitled
"to all privileges and immunities, exemptions and facilities accorded to diplomatic
envoys in accordance with international law" under section 24 of the Host Agreement.

The writs of certiorari and prohibition should issue as prayed for.

1. The executive branch of the Philippine Government has expressly recognized that
petitioner Verstuyft is entitled to diplomatic immunity, pursuant to the provisions of the
Host Agreement. The Department of Foreign Affairs formally advised respondent judge
of the Philippine Government's official position that accordingly "Dr. Verstuyft cannot be
the subject of a Philippine court summons without violating an obligation in international
law of the Philippine Government" and asked for the quashal of the search warrant, since
his personal effects and baggages after having been allowed free entry from all customs
duties and taxes, may not be baselessly claimed to have been "unlawfully imported" in
violation of the tariff and customs code as claimed by respondents COSAC officers. The
Solicitor-General, as principal law officer of the Government, 7 likewise expressly
affirmed said petitioner's right to diplomatic immunity and asked for the quashal of the
search warrant.

It is a recognized principle of international law and under our system of separation of

powers that diplomatic immunity is essentially a political question and courts should
refuse to look beyond a determination by the executive branch of the government, 8 and
where the plea of diplomatic immunity is recognized and affirmed by the executive
branch of the government as in the case at bar, it is then the duty of the courts to accept
the claim of immunity upon appropriate suggestion by the principal law officer of the
government, the Solicitor General in this case, or other officer acting under his direction.9
Hence, in adherence to the settled principle that courts may not so exercise their
jurisdiction by seizure and detention of property, as to embarrass the executive arm of the
government in conducting foreign relations, it is accepted doctrine that "in such cases the
judicial department of (this) government follows the action of the political branch and
will not embarrass the latter by assuming an antagonistic jurisdiction." 10

2. The unfortunate fact that respondent judge chose to rely on the suspicion of
respondents COSAC officers "that the other remaining crates unopened contain
contraband items" 11 rather than on the categorical assurance of the Solicitor-General that
petitioner Verstuyft did not abuse his diplomatic immunity, 12 which was based in turn on
the official positions taken by the highest executive officials with competence and
authority to act on the matter, namely, the Secretaries of Foreign Affairs and of Finance,
could not justify respondent judge's denial of the quashal of the search warrant.

As already stated above, and brought to respondent court's attention, 13 the Philippine
Government is bound by the procedure laid down in Article VII of the Convention on the
Privileges and Immunities of the Specialized Agencies of the United Nations 14 for
consultations between the Host State and the United Nations agency concerned to
determine, in the first instance the fact of occurrence of the abuse alleged, and if so, to
ensure that no repetition occurs and for other recourses. This is a treaty commitment
voluntarily assumed by the Philippine Government and as such, has the force and effect
of law.

Hence, even assuming arguendo as against the categorical assurance of the executive
branch of government that respondent judge had some ground to prefer respondents
COSAC officers' suspicion that there had been an abuse of diplomatic immunity, the
continuation of the search warrant proceedings before him was not the proper remedy. He
should, nevertheless, in deference to the exclusive competence and jurisdiction of the
executive branch of government to act on the matter, have acceded to the quashal of the
search warrant, and forwarded his findings or grounds to believe that there had been such
abuse of diplomatic immunity to the Department of Foreign Affairs for it to deal with, in
accordance with the aforementioned Convention, if so warranted.

3. Finally, the Court has noted with concern the apparent lack of coordination between
the various departments involved in the subject-matter of the case at bar, which made it
possible for a small unit, the COSAC, to which respondents officers belong, seemingly to
disregard and go against the authoritative determination and pronouncements of both the
Secretaries of Foreign Affairs and of Finance that petitioner Verstuyft is entitled to
diplomatic immunity, as confirmed by the Solicitor-General as the principal law officer of
the Government. Such executive determination properly implemented should have
normally constrained respondents officers themselves to obtain the quashal of the search
warrant secured by them rather than oppose such quashal up to this Court, to the
embarrassment of said department heads, if not of the Philippine Government itself vis a
vis the petitioners. 15

The seriousness of the matter is underscored when the provisions of Republic Act 75
enacted since October 21, 1946 to safeguard the jurisdictional immunity of diplomatic
officials in the Philippines are taken into account. Said Act declares as null and void writs
or processes sued out or prosecuted whereby inter alia the person of an ambassador or
public minister is arrested or imprisoned or his goods or chattels are seized or attached
and makes it a penal offense for "every person by whom the same is obtained or
prosecuted, whether as party or as attorney, and every officer concerned in executing it"
to obtain or enforce such writ or process. 16

The Court, therefore, holds that respondent judge acted without jurisdiction and with
grave abuse of discretion in not ordering the quashal of the search warrant issued by him
in disregard of the diplomatic immunity of petitioner Verstuyft.

ACCORDINGLY, the writs of certiorari and prohibition prayed for are hereby granted,
and the temporary restraining order heretofore issued against execution or enforcement of
the questioned search warrant, which is hereby declared null and void, is hereby made
permanent. The respondent court is hereby commanded to desist from further proceedings
in the matter. No costs, none having been prayed for.

The clerk of court is hereby directed to furnish a copy of this decision to the Secretary of
Justice for such action as he may find appropriate with regard to the matters mentioned in
paragraph 3 hereof. So ordered.

Concepcion, C.J., Makalintal, Zaldivar, Fernando, Barredo, Makasiar, Antonio and

Esguerra, JJ., concur.

Castro, J., reserves his vote.