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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
nationalharakiri. 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.
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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 policydetermining 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
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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 fortyeight 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 PanAmerican 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."
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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 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. 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
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.
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 reoccupation 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
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
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
EN BANC
G.R. No. L-200 March 28, 1946
ANASTACIO LAUREL, Petitioner, vs. ERIBERTO MISA, as Director
of Prisons,Respondent.
the duration of the war, "whereafter they shall be turned over to the
Philippine Government for its judgment upon their respective cases."
When active hostilities with Japan terminated, General MacArthur
ordered the delivery of the Commonwealth of all the prisoners
theretofore taken under his said proclamation. There was 6,000 in
round numbers. The problem problem was momentous and urgent.
Criminal informations against all, or a majority, or even a substantial
number of them could not be properly filed in the six-hour period.
They could not obviously be turned loose, considering the conditions
of peace and order, and the safety of the prisoners themselves. So
the President, by virtue of his emergency powers, promulgated
Executive Order No. 65 suspending article 125 of the Revised Penal
Code, for not more than thirty days, with regard to said detainees or
internees, having found such suspension necessary to "enable the
Government to fulfill its responsibilities and to adopt temporary
measures in relation with their custody and the investigation,
prosecution and disposal of their respective cases." The Order added
that it shall be in force and effect until the Congress shall provide
otherwise. Congress later approved Commonwealth Act. No. 682,
establishing the People's Court and the Office of Special Prosecutors
for the prosecution and trial of crimes against national security
committed during the second World War. It found the thirty-day period
too short compared with the facilities available to the prosecution, and
set the limit at six months.chanroblesvirtualawlibrarychanrobles
virtual law library
Considering the circumstances, we are not prepared to hold the
extension of the period for the political detainees was unreasonable.
The Legislature chose to give the prosecutor's office sufficient time to
investigate and to file the proper charge - or to discharge those whom
it may find innocent. If time had not been granted, the prosecutor
would perhaps have been forced to indict all the detainees
indiscriminately; reserving, of course, its right subsequently to request
the liberation of those it may think not guilty. But such wholesale
indictment was obviously neither practical nor desirable. We will allow
that there may be some dispute as to the wisdom or adequacy of the
extension. Yet the point is primarily for the Legislature to decide. The
only issue is the power to promulgate special rules for the custody
and investigation of active collaborationists, and so long as reasons
hours. In other words, he would not have been discharged from the
custody. (Raquiza vs. Branford, supra.) Article 125 of the Revised
Penal Code was in force, it is true; but not as to him. The laws of the
Commonwealth were revived in Camarines Sur by operation of
General MacArthur's proclamation of October 23, 1944, upon its
liberation from enemy control; but subject to his reservation to hold
active collaborationists in restraint "for the duration of the war." So,
persons apprehended under that directive, for treasonable
collaboration, could not necessarily invoke the benefits of article 125
of the Revised Penal Code.chanroblesvirtualawlibrary chanrobles
virtual law library
Undoubtedly the Legislature could validly repeal section 125 of the
Revised Penal Code. Had it done so, herein petitioner would have no
ground to protest on constitutional principles, as he could claim no
vested right to the continued enforcement of said section. 4 Therefore,
a fortiori he may not complain, if, instead of repealing that section, our
lawmaking body merely suspended its operation for a definite period
of time. Should he counter that such repeal or suspension must be
general to be valid, he will be referred to the preceding considerations
regarding classification and the equal protection of the
laws.chanroblesvirtualawlibrary chanrobles virtual law library
Wherefore, we perceive no irreconcilable conflict between the
Constitution and the challenged portions of section 19 of
Commonwealth Act No. 682.chanroblesvirtualawlibrary chanrobles
virtual law library
The other features of the People's Court Act which are the subject of
denunciation by petitioner do not, in our opinion, require specific
elucidation at this time, because he has not as yet been held into that
court, and the issues appear to have no important or necessary
connection with his current deprivation of liberty. 5 chanrobles virtual
law library
The petition for the writ of habeas corpus will be denied. With
costs.chanroblesvirtualawlibrary chanrobles virtual law library
Moran, C.J., Jaranilla, Feria, De Joya, Pablo, Hilado, and Briones,
JJ., concur.
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States did not come until 1868 when the Fourteenth Amendment was
ratified.chanroblesvirtualawlibrarychanrobles virtual law library
It is a very remarkable fact that not until our written Constitution was
more than half a century old did the phrase receive an interpretation
and application which approximates that which it has today, and not,
indeed, until a hundred years had passed away was resort had to it
as the usual device of those disapproving of the acts of their
legislatures. This, however, is no doubt in a measure explainable by
the fact that not until the increased complexity of social and industrial
life had led, upon the one hand, to the use by the State and Federal
Governments of administrative process more or less summary in
character and, upon the other hand, to a marked increase in the
regulative control of law over private acts and the use of public
property, did there appear the necessity for the appeal to this
limitation by those who conceived themselves injured by the exercise
of such administrative powers or by the enforcement of these
legislative regulations.chanroblesvirtualawlibrary chanrobles virtual
law library
In two most important respects the application in America of the
requirement of due process of law has differed from that which it had
received in England prior to 1776, and which, indeed, it still receives
in that country. These are: (1) that, in the United States, it operates as
a limitation upon the legislative as well as upon the executive branch
of the government, and (2) that it relates to substantive as well as to
procedural rights. This second application is, however, one which, as
we shall see, was not at first
developed.chanroblesvirtualawlibrary chanrobles virtual law library
Before the requirement could be recognized as one upon the
legislature there had first to be established the doctrine that the
courts, when called upon to apply the enactments of the lawmaking
branch of the government of which they themselves constitute the
judiciary, may declare the invalidity of enactments which, in their
judgment, conflict with the provisions of the written Constitution. This
doctrine, as is well known, was not accepted without protest, but may
be said to have received final and decisive sanction as a fundamental
principle of American constitutional jurisprudence in the great opinion
First, we may mention that the humanity of our law always presumes
an accused party innocent until he is proved to be guilty. This is a
presumption which attends all the proceedings against him, from their
initiation until they result in a verdict, which either finds the party guilty
or converts the presumption of innocence into an adjudged
fact.chanroblesvirtualawlibrary chanrobles virtual law library
If there were any mode short of confinement which would, with
reasonable certainty, insure the attendance of the accused to answer
the accusation, it would not be justifiable to inflict upon him that
indignity, when the effect is to subject him, in a greater or less
degree, to the punishment of a guilty person, while as yet it is not
determined that he has committed any crime. If the punishment on
conviction cannot exceed in severity the forfeiture of a large sum of
money, then it is reasonable to suppose that such a sum of money, or
an agreement by responsible parties to pay it to the government in
case the accused should fail to appear, would be sufficient security
for his attendance; and therefore, at the common law, it was
customary to take security of this character in all cases of
misdemeanor; one or more friends of the accused undertaking for his
appearance for trial, and agreeing that a certain sum of money should
be levied of their goods and chattels, lands and tenements, if he
made default. . . . The presumption of innocence is an absolute
protection against conviction and punishment, except either, first on
confession in open court; or, second, on proof which places the guilt
beyond any reasonable doubt. Formerly, if a prisoner arraigned for
felony stood mute wilfully, and refused to plead, a terrible mode was
resorted to for the purpose of compelling him to do so; and this might
even end in his death; but a more merciful proceeding is now
substituted; the court entering a plea of not guilty for a party who, for
any reason, fails to plead for
himself.chanroblesvirtualawlibrary chanrobles virtual law library
Again, it is required that the trial be speedy; and here also the
injunction is addressed to the sense of justice and sound judgment of
the court. In this country, where officers are specially appointed or
elected to represent the people in these prosecutions, their position
gives them an immense power for oppression; and it is so to be
feared they do not always sufficiently appreciate the responsibility,
and wield the power with due regard to the legal rights and privileges
14 Sup. Ct. Rep., 570; Hurtado vs.California, 110 U.S., 535; 28 Law.
ed., 232; 4 Sup. Ct. Rep., 111, 292.)chanrobles virtual law library
Do laws operate equally upon the citizens of the Commonwealth of
Texas which will imprison under like verdicts one man for a month
and another for six months? Manifestly
not.chanroblesvirtualawlibrary chanrobles virtual law library
Section 3 of the Bill of Rights to the State Constitution provides: "All
freemen, when they form a social compact, have equal
rights."chanrobles virtual law library
A law which makes different punishments follow the same identical
criminal acts in the different political subdivisions of Texas violates
both our state and Federal Constitutions. It fails to accord equal rights
and equal protection of the law, and a conviction under it is not in due
course of the "law of the land." Re Jilz (3 Mo. App., 246); Re H.F.
Millon (16 Idaho, 737; 22 L.R.A. [N.S.], 1123; 102 Pac., 374), and
Jackson vs. State (55 Tex. Crim. Rep., 557; 117 S.W., 818), are cited
in support of our view in their
reasoning.chanroblesvirtualawlibrary chanrobles virtual law library
We think the principles announced in the case of Ex parte Jones (106
Tex. Crim. Rep., 185; 290 S.W., 177), apply in some degree to the
instant case. It was there held that article 793, Code Crim. Proc.,
superseded and controlled an ordinance of the city of Dallas which
allowed only 50 cents per day to be credited upon the fine of a
convict for labor performed. Provisions similar to those quoted in our
state constitution have been a part of Anglo-Saxon jurisprudence
since there was wrung from the unwilling hands of King John at
Runnymede in 1215 the Magna Charta, which itself provides that a
freeman shall not be passed upon or condemned but "by the lawful
judgment of his peers and the law of the land." "Law of the land" has
the same legal meaning as "due process of law," and one of its
accepted meanings is that quoted above. Re Jilz, 3 Mo. App., 243; 3
Words & Phrases, pp. 2227-2232. (Ex parte Sizemore, 59 A.L.R.,
Annotated, pp. 430, 432.)chanrobles virtual law library
And in Re Jilz ([1877]), 3 Mo. App., 243), an act of the legislature of
Missouri, which, by limiting the power of a court established in a
And, in State vs. Fowler ([1927], 193 N.C., 290; 136 S.E., 709), an
act of the North Carolina legislature, applicable to five counties of the
state only, which imposed as punishment for a specified offense a
fine only, while a statute applicable to the whole state imposed a fine
or imprisonment, was held to be unconstitutional under both the
Federal and State Constitutions as a denial of the equal protection of
the laws. The court says: "But the statute under consideration cannot
be sustained on the ground that it was enacted in the exercise of the
police power. The question is whether it shall supersede "the law of
land" - the general public law which was designed to operate without
exception or partiality throughout the state. It is needful to remember
that indictment was drafted under the general law, and that the
decisive question is whether offenders in the five counties referred to
may lawfully be exempted from the punishment prescribed by the
general law; whether they shall be subject only to a fine when the
offenders in ninety-five other counties may be punished by
imprisonment. In our judgment this part of section 2 is neither equal
protection of the laws nor the protection of equal laws. . . . It is the
grant of a special exemption from punishment or an exclusive or
separate privilege which is forbidden by the cited provision. . . . The
principle of uniformity in the operation of a general law extends to the
punishment, and denounces as arbitrary and unreasonable the
imposition in one county of any kind of punishment which is different
from that which is prescribed under the general law to all who may be
guilty of the same offense. It follows that the provision limiting the
punishment for the first offense to a fine must be regarded as an
arbitrary class distinction which cannot be sustained because
forbidden by the fundamental law, and the judgment which was
pronounced by authority of the general law must be upheld.
(Annotation, 59 A.L.R., Annotated, p. 434.)chanrobles virtual law
library
Bills of attainder were prohibited to be passed, either by the Congress
or by the legislatures of the several States. Attainder, in a strict sense,
means an extinction of civil and political rights and capacities; and at
the common law it followed, as of course, on conviction and sentence
to death for treason; and, in greater or less degree, on conviction and
sentence for the different classes of
felony.chanroblesvirtualawlibrary chanrobles virtual law library
proceedings had been completed under those acts before the treaty
of 1783, by the actual transfer of property, they remained valid and
effectual afterwards; but so far as they were then incomplete, they
were put an end to by that
treaty.chanroblesvirtualawlibrary chanrobles virtual law library
The conviction of the propriety of this constitutional provision has
been so universal, that it has never been questioned, either in
legislative bodies or elsewhere. Nevertheless, cases have recently
arisen, growing out of the attempt to break up and destroy the
government of the United States, in which the Supreme Court of the
United States has adjudged certain actions of Congress to be in
violation of this provision and consequently void. The action referred
to was designed to exclude from practice in the United States courts
all persons who had taken up arms against the government during
the recent rebellion, or who had voluntarily given aid and
encouragement to its enemies; and the mode adopted to effect the
exclusion was to require of all persons, before they should be
admitted to the bar or allowed to practice, an oath negativing any
such disloyal action. This decision was not at first universally
accepted as sound; and the Supreme Courts of West Virginia and of
the District of Columbia declined to follow it, insisting that permission
to practice in the courts is not a right, but a privilege, and that the
withholding it for any reason of State policy or personal unfitness
could not be regarded as the infliction of criminal
punishment.chanroblesvirtualawlibrary chanrobles virtual law library
The Supreme Court of the United States has also, upon the same
reasoning, held a clause in the Constitution of Missouri, which,
among other things, excluded all priests and clergymen from
practising or teaching unless they should first take a similar oath of
loyalty, to be void, overruling in so doing a decision of the Supreme
Court of that State. (Cooley's Constitutional Limitations, 7th ed., pp.
368-372.)
The legal problem confronting us is characterized by the fact that we
have to avoid the misleading effect resulting from the difference
between the text and letter of the law and their grammatical sense
and effect on one side, and as it is interpreted and applied in actual
practice.chanroblesvirtualawlibrary chanrobles virtual law library
should be only the voice of the law. As Cicero said, "While the law is
voiceless magistrate, the magistrate is law made vocal." It is arrogant
presumption for a judge to pose as anything more, and gross
indiscretion for him to assert his own voice. The only way in which he
can avoid violation of the injunction, "Judge not, that ye be not
judged," is by pronouncing, not his personal will, but the judgment of
the law. How otherwise could a judge impose a death sentence and
live in peace? If the judgment is his own, the blood of the condemned
is upon him. If his judgment is at the behest of popular clamor he has
given sanction to lynching. But if his judgment is the pronouncement
of the law, the judicial function is fulfilled and his conscience is clear.
The judicial robe should submerge personality and make its bearer,
like a priest in vestment, an impersonal part of a divine function. (The
Judicial Function and the Need of Professional Section of Judges by
Robert N. Wilkin, Journal of the American Judicature Society, Vol. 29,
No. 4, Dec., 1945.)
The facts of current experience showed the imperative need of an
intellectual overhauling as part of the work of post-war rehabilitation
in all orders of our national life. Many elemental tenets and ideals
need be restated, if not rediscovered. The worries and psychological
shocks caused by the Japanese initial victories and brutal
oppressions concomitant with their occupation of our country, had the
effect of warping the mentality and sense of moral values of not a
negligible number of persons. There are men whose intellectual
outlook and views of freedom and fundamental human rights,
tethered by defective development of ideology, are not only
outmoded, but absolutely incompatible with the trends of the
progress, whose brains appear not to be completely freed from the
embryonic amnion and are in need of allantoic nutrition, who would
rather wield the bludgeon of jungle arbitrariness and make a coffle of
serfs of free people, than abide by the constitutional precepts and the
noble doctrines of the UNO Charter, whose juridical ideas, rather than
in the forum of modern democracy, have their proper place among
the fossils of apteryx, megatheria, and dinosaurs' museum and,
notwithstanding, are being haled in apparently responsible sectors of
the press as heroes of progressiveness. Such nonsense and
intellectual travesty are inconceivable except in a topsy-turvy world
which has adopted the thyrsus as the choicest emblem of human
happiness, where the frenzied mental processes have been inverted
will tell her parents on what happened to her (TSN Anino, 1/11/99;
1/13/99; TSN Gumban, 1/12/99; Exh. A and I).
4) Artily Salvador, 45 years old, married, and a resident of Barangay
Napti, Batan, Aklan, testified:
That she is the mother of the victim; that in the evening of July 2,
1997, she and her husband went fishing at the swamp; that they left
their house at around 5:30 P.M. and stayed at the swamp the whole
night; that they were able to return home at around 6:00 A.M. the
following day, July 3, 1997; that when they reached their house, she
saw the victim by the door who was about to cry; that when they went
inside the house, the victim cried and told her that she was raped by
the accused; that upon hearing that news, she dumped her thermo
chest and proceeded to the house of the accused; that she saw the
accused feeding his pigs; that she asked the accused where he was
on the night of July 2, 1997; that the accused replied that he was in
the house of a certain Delia watching T.V. show; that she then went to
the house of Delia and tried to verify the allegation of the accused;
that Delia informed her that the accused was indeed in their house on
that night up to 10:30 P.M.; that on her way home, she again met the
accused on the road; that when the accused asked her why she was
looking for him, she did not tell him the reason and merely said:
Nothing; that the accused told her to file a case against him if she so
desires; that she then went to the house of the Barangay Captain and
reported what the accused did to her daughter; that thereafter, they
reported the matter to the Batan Police Station; that the police officer
of Batan advised her to go to New Washington, Aklan to report this to
Policewoman Isada; that Policewoman Isada brought them to the
Provincial Hospital and had the victim medically examined; that on
August 23, 1997 at around 6:00 P.M., the father and two uncles of the
accused went to their house to talk of settling the case against the
accused; that the said trio wanted that the accused and the victim be
married to each other; that when she refused, the said persons went
home (TSN Anino, 1/13/99; TSN Gumban, 1/14/99).
Recalled as a rebuttal witness, Artily Salvador testified that it is not
true that the father of defense witness Rene dela Cruz was already
dead at the time of the subject rape as the said person died in June
1998; that the accused used to sport long hair; that the testimony of
defense witness Pepito Torres to the effect that she was looking for a
person with long hair and mustache is not true because what she
asked from the said witness was the whereabouts of the accused;
that it is not true that their banca and fishing net were destroyed (TSN
Gumban, 3/15/99, Rebuttal).
5) Delia Rosales, 57 years old, married, Municipal civil Registrar of
Batan, Aklan and a resident of Ambulong, Batan, Aklan, testified:
That she is the Civil Registrar of Batan, Aklan; that she issued the
certified true copy of the birth certificate of the victim (Exh. D, TSN
Gumban, 1/14/99).
Ms. Rosales further testified that she also issued the certificate of
death of one Remegio dela Cruz, who died on June 26, 1998 (Exh. E;
TSN Gumban, 3/15/99, Rebuttal).
EVIDENCE FOR THE DEFENSE
The following are the witnesses presented by the defense and the
substance of their testimonies:
1) Rene dela Cruz, 36 years old, single, farmer and a resident of
Barangay Napti, Batan, Aklan, testified:
That on July 2, 1997, his younger brother Roque arrived in his house
together with his friend Regie and the accused at around 10:30 P.M.;
that they came from the house of a certain Delia Torres where they
watched T.V. shows; that the said persons slept in his house; that
when he woke up to urinate at around 12:30 A.M., the accused was
still sleeping in bed; that when he got up from bed at 4:00 A.M., the
accused was still sleeping; that the accused woke up at 5:00 A.M. of
July 3, 1997; that the accused was always sleeping in his house; that
his brother Regie is no longer residing in his house because he went
to Manila in June 1996 (TSN Anino, 2/24/99).
2) Pepito Torres, 57 years old, fisherman, and a resident of Barangay
Napti, Batan, Aklan, testified:
That in the evening of July 2, 1997, there were many people in their
house watching television shows; that the accused was one of them;
that the accused together with Rochie and Regie left their place at
around 10:00 P.M.; that the following morning, July 3, 1997, the
mother of the victim asked him and his wife Delia Torres who were
those who watched television in their house on July 2, 1997; that the
said mother of the victim also asked him if there was a person with a
beard and sporting long, curly hair who watched television; that he
replied in the negative; that the accused at that time was sporting a
short hair and had a clean face (TSN - Gumban, 2/25/99).
3) Jesus Penalba, 39 years old, married, tricycle driver and resident
of Napti, Batan, Aklan, testified:
That he is a neighbor of defense witness Rene dela Cruz; that on July
2, 1997 at around 10:30 P.M., he was awakened by the noise created
by the accused and his two companions, Rochie and Regie; that he
saw them when he went down to his kitchen and peeped through its
bamboo slats; that the weather was bad at that time; that the
following morning, July 3, 1997, he plied his route as a tricycle driver;
that when he returned home at around 9:00 A.M., his wife told him
that the mother of the victim asked her what time did he go home the
night before, July 2, 1997 (TSN Gumban, 2/23/99).
4) Rael Trinidad, 43 years old, married, Barangay Kagawad and a
resident of Napti, Batan, Aklan, testified:
That he is a member of the Barangay Council of Napti, Batan, Aklan;
that the accused is his distant relative; that on July 3, 1997 at around
7:00 A.M., he met the father of the victim by the road; that the father
of the victim brought him to the banana plantation where the victim
was raped; that the said place is around 30 meters away from the
house of the victim; that the said place is dark because it is full of
banana plants and the banana leaves are dense; that the father of
the victim informed him tha the perpetrator has curly hair and
bearded; that he was also informed they were suspecting Roque and
Regie because the said duo frequently hunt birds in that place (TSN
Anino, 2/26/99).
5) Gener Agoncillo, 40 years old, single, farmer and resident of Napti,
Batan, Aklan, Testified:
That he is the accused in this case; that he knows the victim and the
latters parents for a long time already; that the parents of the victim
have a hostile feeling to him as they suspected that he was the one
who punched a hole in their fishing boat and slashed their fishing net;
that on July 2, 1997 at around 8:00 P.M., he was in the house of
defense witness Pepito Torres; that he, together with his two friends,
Roque and Regie, left that place at past 10:00 P.M.; that before they
left, they requested for a torch from Pepito Torres because the night
was very dark; that they spent the night in the house of Roque dela
Cruz; that they slept at around 11:00 P.M.; that he woke up at around
5:00 A.M. of July 3, 1997; that thereafter, he went home and fed his
pigs; that while he was feeding his pigs, the mother of the victim
arrived and asked him where he was on the night of July 2, 1997; that
after answering her that he slept in the house of Rene dela Cruz, he
asked her why she was asking him where he was at that time; that
she answered: Basta (I just want to know), and then she left; that
later on, he again met her and he asked her again what her problem
was; that when she did not answer, he told her that if she has any
complaint, she should just file it; that one of the police officers who
was present when he was first invited to the Batan Police Station is
the husband of the Barangay Captain of Napti, Batan, Aklan; that the
said Barangay Captain is the principal sponsor in the wedding of the
parents of the victim; that he has a misunderstanding with the family
of the said Barangay Captain because he transferred to another
camp during the barangay election; that it is not true that he
frequently passes along the road near the victims house; that his
present hairstyle and mustache are the same as those before July 2,
1997; that he did not authorize his father and two uncles to negotiate
with the family of the victim for the settlement of this case; that when
he asked his father and two uncles if it is true that they went to the
place of the victim to settle this case, they denied the same; that he
knows that the parents of the victim are out fishing every night; that
he is still single despite of his age; that he is not courting any girl
anymore because he was in despair when the parents of his former
girlfriend and supposed bride objected to their marriage in 1982 (TSN
Gumban, 3/1/99; TSN, Anino, 3/4/99).[4]
On April 27, 1999 the trial court rendered a decision finding the
accused guilty beyond reasonable doubt of the crime of rape; the
dispositive portion of the decision reads:
easy to contrive and difficult to prove. [7] Moreover, these defenses are
overcome by a witness positive identification of him as the perpetrator
of the crime.[8]
In the present case, Rosalyn categorically identified accusedappellant as her assailant and narrated vividly the sexual assault
committed against her. Rosalyn also established that although it was
dark, the light emitted from the constant flashes of lightning that
evening sufficiently illuminated the face of accused-appellant to
enable her to recognize him, thus:
DIRECT EXAMINATION BY PROSECUTOR OFIALDA:
Q: Miss Witness, do you remember where were you on July 2,
1997 in the evening, around 11:00 oclock?
A: Yes, sir.
Q: Where were you then?
A: I was at home.
Q: And where is this house of yours located?
A: At Napti, Batan, Aklan.
Q: What municipality?
A: Batan.
Q: What province?
A: Aklan.
Q: You said you were in your house at that time and date, what
were you doing then?
A: I was intending to see the watch but I was surprised that
somebody covered my mouth.
Q: Why were you intending to see the watch what, was your
purpose?
PROS. OFIALDA:
Q: What is the size of that scythe?
A: (Witness demonstrated a length of 12)
Q: What hand was holding the scythe, left or right?
A: Left hand.
Q: And after he brought you, you said at the sala which he kicked
the aluminum with fire, what did he do?
A: He ordered me to remove my panties and asked me what will I
prefer to be killed or to live.
Q: And after he ordered you to remove your panties, did you
remove the same?
A: Not yet.
Q: And what did this person do after that?
A: He said that he will kill us.
Q: What else did he do after that?
A: He brought me to the banana plantation.
Q: Was he holding you when he brought you to the banana
plantation?
ATTY. GEPTY:
Leading, Your Honor.
COURT:
Reform the question.
PROS. OFIALDA:
We would like to manifest, Your Honor, that when she pointed the
accused, the accused is seated alone on the bench designated
for the accused.
PROS. OFIALDA:
We would like to manifest, Your Honor, that the victim cried pointing
to the accused.
(To witness)
Will you please step down from the witness stand and point to the
Court?
COURT:
Tap his shoulder.
(Witness pointed to a person who when asked his name answered,
Gener Agoncillo). [9]
Accused-appellant attempts to discredit Rosalyns identification of
him by claiming that it was highly improbable for her to have seen his
face considering the circumstances surrounding her abduction. We
are however convinced that the trial court did not err in upholding the
credibility of Rosalyn and her positive identification of the accusedappellant.
First, Rosalyn was familiar with accused-appellant since he
frequently passed the road fronting her house. [10] Accused-appellants
claim that he never passed the feeder road fronting Rosalyns house
is belied by his own testimony, thus:
PROS. OFIALDA:
Q: Every time that you finish viewing television episode in the
house of Pepito Torres, you always go home in the house of
Rene dela Cruz, is that correct?
A: Yes, Sir.
Time and again this Court has ruled that the findings of the trial
court on the credibility of witnesses and their testimonies are
accorded great respect unless the court a quooverlooked substantial
facts and circumstances, which if considered, would materially affect
the result of the case.[14] After a careful review of Rosalyns testimony,
we find no cogent and legal basis to disturb the trial courts finding
upholding her credibility and disregarding the testimonies of the
defense witnesses, considering that she remained steadfast in her
narration and unfaltering in her testimony regarding the unfortunate
incident. The evaluation or assessment made by the trial court
acquires greater significance in rape cases because from the nature
of the offense the only evidence that can oftentimes be offered to
establish the guilt of the accused is the complainants testimony. [15] By
its very nature, rape is committed with the least possibility of being
seen by the public.[16]
Moreover, there was no allegation, much less proof, that Rosalyn
was motivated to falsely implicate him in the commission of such a
heinous crime, and the absence of convincing evidence showing any
improper motive on the part of the principal witnesses for the
prosecution strongly tends to sustain the conclusion that no such
improper motive exists, and that their testimonies are worthy of full
faith and credit.[17]
Although the medico-legal report[18] does not state that Rosalyn
sustained contusions and a hematoma on her lips and neck, the
omission is not fatal. It is well-established that the medical certificate
is merely corroborative in character and is not an indispensable
element in rape.[19] More importantly, the contradiction existing
between her testimony and the medico-legal report only pertains to
the existence of the injuries she claims to have sustained on her lips
and neck. There is no conflict between the said report and her claim
that she was raped since the report as testified to by Dr. Landolino
Meez confirms the sexual assault.
Finally, accused-appellants allegation that the trial court was
biased and pre-judged him is not substantiated by a reading of the
records. The fact that the trial judge asked questions during the
course of the trial does not necessarily make him biased especially
when it appears that the questions he propounded were clarificatory
Panganiban,
De
Leon,
OTHER:
G.R. No. L-985
PARAS, J.:
This is an appeal from the judgment of the People's Court finding the
appellant, Dionisio Agoncillo, guilty of treason and sentencing him to
suffer fifteen years of reclusion temporal and to pay a fine of two
thousand pesos and the costs.
According to the information, from February, 1944, to March, 1945, in
Cebu City and its environs, the appellant (1) "did consistently and
continuously traffic in war materials and sold them to the enemy," and
(2) "did join and serve the enemy as informer, agent, and spy." The
People's Court held that the second count was not proven, and the
appealed judgment of conviction is predicated solely on the first
count.
Under the theory of the prosecution, appellant's adherence to the
enemy is inferable from the following alleged facts: (a) In the
afternoon of September 20, 1944, while the appellant was taking a
bath in the house of his neighbor Rufina Cepeda, the latter's cousin
(Olimpio Do), who knew how to read Chinese, examined appellant's
clothes and found therein appellant's identification card written in
Japanese and Chinese characters tending to show that the appellant
was a Japanese undercover. (b) In January 1945, after a trip to
Bohol, Rufina Cepeda told the appellant that there were guerrillas in
Bohol and that Japanese notes were no longer accepted in said
place. In the evening of the next day, Rufina Cepeda was arrested by
the Japanese and their undercovers and asked about things she saw
in Bohol. Rufina was detained for three days. After her release, the
appellant came to her house and got some chickens for the
consumption of the Japanese who arrested her. A Japanese also
used to sleep once in a while in appellant's house.
Upon the other hand, appellant's alleged overt acts of giving aid and
comfort to the enemy are summarized in the brief for Government as
follows: In the middle of April, 1944, the appellant sold about 300 kilos
of alum crystals, at three pesos a kilo, to the Keribo, a construction
company operated by the Japanese Army. Two or three weeks
thereafter, he sold to the same entity some 100 pieces of water pipes,
the price of which was not known. About the third week of December,
1944, the appellant was seen on Jones Avenue helping push a
handcart full of truck and auto tires, batteries and spare parts into the
intermediate and high school premises then used by the Japanese
Army as a motor pool.
Regardless of the writer's view on suspension of political laws and
change of sovereignty as heretofore expressed, the Court is of the
opinion that the overt acts imputed to the appellant have not been
duly proven. With respect to the sale of 300 kilos of alum crystals, the
testimony of the prosecution witness Lorenzo Barria to the effect that
the price was P3 a kilo, is not corroborated by any other witness. With
respect to the alleged sale of 100 pieces of water pipes, counsel for
the appellee admits that the price thereof was not known. An
essential part of the overt act charged in the information was
therefore lacking. No pretense was made that the appellant donated
the articles in question. The alleged delivery of truck and auto tires,
batteries and spare parts can be disregarded. The only detail that
may at most be considered established by the prosecution refers to
the fact that the appellant helped in pushing a handcart loaded with
such articles, and the evidence is even uncertain in one respect,
namely that the cart was brought either to the intermediate school
premises or the high school building. Indeed it was acknowledged by
the lower court that the witnesses for the Government did not know
how the appellant disposed of the articles loaded in the cart.
Even supposing, however, that the appellant had really sold for a
definite price alum crystals and water pipes, the same did not per
se constitute treason. As said articles or materials were not
exclusively for war purposes, their sale did not necessarily carry an
intention on the part of the vendor to adhere to the enemy. The theory
of the prosecution is that the sale was treasonable in view of the
other proven acts showing appellant's adherence to the enemy. It
appears, however, that the alleged acts of adherence performed by
the appellant took place after the overt act in question. It is not
unlikely that at the time the appellant made the sale, his motive was
purely personal gain, uninfluenced by any benefit inuring to the
enemy. Where two probabilities arise from the evidence, the one
compatible with the presumption of innocence will be adopted.
(People vs. Agpangan, G.R. No. L-778, October 10, 1947.)
BENGZON, J.:
Prosecuted and tried for treason, the accused-appellant Jose Luis
Godinez was found guilty by the Fifth Division of the People's Court,
Judge F.V. Borromeo dissenting.
He was a shipmaster in the Philippines coastwise trade before the
Pacific War. After the Japanese invasion, from May, 1942 to June,
1943, he rendered services to the Japanese Navy, as pilot in the Port
of Cebu, bringing their ships into harbor and otherwise performing
work connected with navigation. He was paid monthly salaries. After
a period of rest due to ill health, he was again engaged by the
Japanese Army to do the same chores from May, 1943 to October,
1944, at varying rates of compensation.
The prosecution's case rests on such acts of cooperation interpreted
in the light of incidents, hereafter mentioned which, it is argued,
demonstrate treasonable adherence to the enemy, making defendant
guilty as charged.
In his defense the accused swore that he had to serve the Japanese
because he was required by them to do so, that he could not give any
valid excuses, that if he made any false statements he would be
caught, and killed; and that even if he could escape, the many
members of his immediate family would be left to their ruthless ill-will.
The majority of the trial judges discounted this explanation saying, in
effect, that the danger to the accused was not imminent, because
other merchant marine officers, like Captain Obosa and Joaquin Alex
succeeded in evading service to the Japanese and were not
molested. It was not demonstrated, however, that these seamen were
surrounded by the same circumstances of herein indictee, as to
family members, means of evasion, personal relations or conditions,
etc., all of which necessarily affected any decision to serve or not to
serve. To clinch its case the prosecution should have attested that
appellant had a valid excuse or that he could eluded the wrath of the
masters. Furthermore, the mere fact that some Filipinos were brave
enough to refuse and were lucky enough to be let alone is no
conclusive reason to hold that in truth there was no danger in denying
the conqueror's demands. There were persons put to death or
maltreated for so refusing, and that was known at the time, as
admitted on the stand by the people's witness Francisco Garcia.
Again, it may be that such marine officers were not pressed by the
Japanese precisely because the herein accused and others (Eduardo
Gonzales, Marcelo Ayesa) had consented to render pilotage service.
Those who refused to cooperate, in the fact of danger, were patriotic
citizens; but it does not follow that the faintheart, who gave in, were
traitors. On this subject the statement of President Osmea in
November 1944, may be quoted:
. . . Not all public officials could take to the hills to carry on the
heroic struggle. Some had to remain in their posts to maintain a
semblance of government, to protect the population from the
oppressor to the extent possible by human ingenuity and to
comfort the people in their misery. Had their services not been
available, the Japanese would either have themselves
governed directly and completely or utilized unscrupulous
Filipino followers capable of any treason to their people. The
result would have been calamitous and the injuries inflicted to
our body politic beyond cure.
The problem under consideration must be solved with justice
and dignity. Every case should examined impartially and
decided on it own merits. Persons holding public office during
enemy occupation, for the most part, fall within three
categories; those prompted by a desire to protect the people,
those actuated by fear of enemy reprisals, and those motivated
by disloyalty to our government and cause. The motives which
caused the retention of the office and conduct while in office,
rather than the sole fact of its occupation, will be the criteria
upon which such persons will be judged. (Official Gazette, Vol.
41, No. 1, p. 102.)
It is now undisputed that the mere governmental work under the
Japanese
victim, who was still lying on the ground. Another witness stated,
however, the returning member also made stabbing motions on the
prostrate victim, although the witness did not see a knife. That gang
member then returned to the van.
Sandoval had returned to the car and steered it toward other
Shelltown gang members in an attempt to hit them and to stop the
van from fleeing. As Sandoval drove up, Godinez threw a bottle at the
car, smiling and laughing [2 Cal. App. 4th 497] at Sandoval. Godinez
and the rest of his group then successfully boarded the van and fled
the scene.
Ibanez and Sandoval then tried to help the victim into the car. At that
point they realized the victim was bleeding from stab wounds. Before
they could transport the victim anywhere, police arrived and took
over, with paramedics then arriving to transport the victim to the
hospital. The victim was pronounced dead at the hospital.
Godinez was arrested the following morning and, after waiving his
Miranda rights, interrogated concerning the crime.
B. The Prosecution's Experts
Medical testimony revealed that in addition to the multiple injuries
suffered from punches and kicks, the victim suffered seven stab
wounds. Any one of the three stab wounds, involving injury to the
lungs, heart and spleen, could have been fatal. Death was attributed
to massive loss of blood from the multiple stab wounds.
Detective Aguirre, the prosecution's gang expert, testified about the
gang subculture, including the various indicia of gang membership,
such as tattoos, clothing, association with gang members, and
outright "claims" of gang membership. He also discussed the use of
hand signs and words in communicating membership and challenges,
as well as the territorial aspects of gangs.
Aguirre testified that not all gangs are rivals of all other gangs, but
when two members of rival gangs meet there usually is a violent
confrontation, especially if one gang is in another's territory and is
outnumbered. He indicated there is a rivalry between the Shelltown
and the O.T.N.C. gangs, which has resulted in violent confrontations
in the past.
When a challenge is issued, the challenged gang must accept it or
lose face. Aguirre indicated that when a rival gang drives by and
shouts a challenge, the "usual" result is a shooting, fight or some
other act of violence. However, he did not specifically testify deaths
are a usual, or even frequent, result of such challenges, nor did he
present statistical evidence concerning the frequency with which
gang fights resulted in deaths.
Aguirre testified gangs also have a social (not just antisocial) aspect,
and that not all persons who "claim" gang membership are in fact
hard-core members but may instead be peripheral members who only
associate with [2 Cal. App. 4th 498] the gang for its social aspects.
However, social participants could nevertheless find themselves in
the middle of a fight. He also indicated that Shelltown gang members
have expressed a desire to resolve differences with other gangs and
lead a hassle-free life, but noted that even those who profess such
attitude still find themselves in violent, sometimes brutal,
confrontations.
C. Defense Evidence
The defense's case revolved principally around Godinez's claim that
he was not the actual "stabber," and that he was only marginally
involved in the fight with the victim. Godinez testified he had been a
member of Shelltown, the rival to the O.T.N.C. gang, and that his
gang was active in many social functions, such as parties, dances
and football games. He also indicated his gang did not rival all other
gangs but generally tried to make peace with them. Although Godinez
was aware of the rivalry between the Shelltown and O.T.N.C. gangs,
he had never been involved in or seen any fights between the two
groups, nor had he ever been involved in any other gang fights.
Godinez also testified that "throwing signs" does not always mean a
challenge to fight, explaining that such gang signs can be a form of
greeting and recognition.
On the night of the incident, Godinez was with four Shelltown gang
members and four girls. They were in a van getting gas at the station
where the incident occurred. Godinez was standing outside the van
when Ibanez drove up in his car. When Godinez next noticed the car,
someone was walking toward it. Godinez then saw someone stick his
head out the window and wave, but did not interpret the gesture as a
gang sign. Godinez responded with the Shelltown sign, only to
identify himself, not to represent a challenge.
After the car pulled away, Godinez saw the victim emerge from the
car. The victim then began arguing with Godinez about gangs. He
walked quickly toward Godinez, carrying something in his hand, as if
wanting to fight. The victim was also throwing signs as if to challenge
a fight. He swung at Godinez, cutting Godinez's hand. Godinez then
took several steps backward and dropped to the ground to nurse his
wound. When Godinez looked up, he saw several Shelltown gang
members pursuing the victim. The group caught the victim, pushed
him to the ground and began hitting and kicking him. Godinez moved
toward the group to join the fray. He never reached the group,
however, because the gang ran away when police approached.
Godinez testified he neither had an intention of getting into a fight that
night nor of getting into a fight with the victim until after the victim
attacked [2 Cal. App. 4th 499] him. Godinez claimed he did not have
a knife, did not know his fellow gang members had knives, and did
not know the victim had been stabbed. He also claimed he did not
kick, punch or stab the victim, and he was the only Shelltown gang
member who did not participate in the attack.
II. The Verdict and Sentence
The jury acquitted Godinez of first and second degree homicide, but
found him guilty of the lesser included offense of voluntary
manslaughter. It also found untrue the allegation that Godinez
personally used a knife during the attack. Godinez's motions to
reduce the offense and for a new trial were denied. He was
sentenced to the midterm of six years.
III. There Was Substantial Evidence to Support a Jury Finding That
the Homicide Was a Natural and Reasonable Consequence of the
Gang Attack
[1a] We evaluate the evidence based on aider and abettor principles,
because it appears Godinez was convicted as an aider and abettor,
rather than as the actual perpetrator of the stabbing which caused the
death. fn. 3 [2] The parties agree the liability of an aider and abettor is
not limited to the target crime which he knowingly and intentionally
aids and encourages, but can include crimes committed by the
perpetrator which are natural and reasonable consequences of the
criminal course of conduct the aider and abettor knowingly aids and
encourages. (People v. Jones (1989) 207 Cal. App. 3d 1090, 10951096 [255 Cal. Rptr. 464].) It is now settled that it is a question of fact
whether the charged offense was a natural and reasonable
consequence of the target offense knowingly encouraged, and the
jury should be instructed of its responsibility to determine this factual
issue. (People v. Hammond (1986) 181 Cal. App. 3d 463, 469 [226
Cal. Rptr. 475].)
[1b] Godinez argues there was no substantial evidence the homicide
was a natural and reasonable consequence of the gang attack upon
the victim because (1) the prosecution's expert did not specifically
state that homicides occurred during gang attacks; (2) no witness
saw any knives; (3) Godinez denied participating in the attack; and
(4) he denied knowing his fellow members had knives.
However, the record as a whole provided substantial evidence from
which a reasonable jury could have found the homicide was a natural
consequence [2 Cal. App. 4th 500] of the gang attack which Godinez
aided and encouraged. There was ample evidence, and inferences
drawable therefrom, upon which to conclude that Godinez's denial of
participation in the attack and denial of knowledge of knives lacked
credibility. One witness identified him as a participant in, and indeed
as the instigator of, the attack. There was little doubt the attackers in
fact used at least one (if not more than one) knife, given the seven
stab wounds suffered by the victim. Godinez admitted having
associated with the gang members for several years, and further
admitted riding around in a van with the attackers for several hours
before the assault, permitting an inference he was aware they
possessed knives that night. The jury could also have rejected the
credibility of Godinez's denial of knowledge of knives simply based
upon Godinez's own admissions that he lied under certain
circumstances. fn. 4
Moreover, although the police expert did not specifically link
"homicides" with gang confrontations, he did state that he had seen
rival gangs issue "drive-by" challenges, and the usual result was a
shooting, fight or other violent act. Indeed, when a "drive-by"
challenge is shouted by a rival, people dive for cover fearing a
shooting will occur. He testified that anytime rivals meet, a violent
confrontation is strongly possible, especially if one gang is in the
rival's territory and outnumbered. When there is a gang confrontation,
he stated, it is violent and can be "very brutal." Based on this
testimony and the common knowledge that an unfortunate reality of
modern times is that gang confrontations all too often result in death
(which jurors are entitled to consider), there was ample evidence from
which a jury could have found the homicide was a natural
consequence of the gang attack Godinez aided and encouraged.
IV. The Trial Court Prejudicially Erred in Instructing the Jury That
Homicide Is a Natural and Reasonable Consequence of a Gang
Attack
[3a] Even though a jury could have found the homicide a natural
consequence of the gang attack, Godinez argues reversal is required
because the jury was effectively instructed that it must find the
homicide to be such a natural consequence. The aider and abettor
instruction, to which Godinez objected, stated:
"The persons concerned in a commission of a crime who are
regarded by law as principals in the crime thus committed and equally
guilty thereof [2 Cal. App. 4th 501] include, one, those who directly
and actively commit the act, executing the crime, or [] [t]wo, those
who aid and abet the commission of the crime.
"One who aids and abets is not only guilty of the particular crime that
to his knowledge his confederates are contemplating committing, but
he is also liable for the natural and probable consequences of any act
that he knowingly and intentionally aided or encouraged. It is for you,
the jury, to determine whether the defendant is guilty of the crime
allegedly committed-excuse me-allegedly contemplated and, if so,
whether the crime charged was a natural and probable consequence
of the criminal act knowingly and intentionally encouraged.
"Homicide is a reasonable and natural consequence to be expected
in a gang attack, though it is not necessary to show that one was
aware that any of his co-assailants possessed deadly weapons."
(Italics added.)
[4] (See fn. 5.) The italicized portion, Godinez claims, is erroneous
under any one of several theories: (1) It was tantamount to a directed
verdict; (2) It created an impermissible mandatory presumption; or (3)
It deprived the jury of its factfinding role by removing an issue from its
consideration, i.e., by presuming homicide is a natural consequence
of gang attacks. fn. 5
A. The Instruction Was Erroneous
[3b] "The critical element which must be found to establish vicarious
[i.e., aider and abettor] liability for an unplanned offense is that the
the gang attack. However, because the jury could also have reached
the contrary conclusion, but the instruction erroneously removed this
factual issue from its purview, reversal is required.
Disposition
The judgment is reversed.
Work, Acting P. J., and Nares, J., concurred.
FN 1. Pursuant to California Rules of Court, rule 976.1, this opinion is
certified for publication with the exception of part V.
FN 2. In light of our disposition, it is unnecessary to reach the
"ineffective assistance of counsel" argument.
FN 3. At trial the People's lead argument was that appellant was
guilty as an aider and abettor. On appeal the People do not seriously
argue that the jury convicted appellant as the perpetrator. Moreover,
the jury's verdict shows it was unconvinced appellant actually
stabbed the victim, since it found untrue the "personal use of a knife"
allegation.
FN 4. When Godinez was originally questioned by police, he claimed
he was in Tijuana on the night of the incident. His story later evolved
into having been at the site of the incident, alone, and having cut his
hand several days earlier while climbing over a fence. It then evolved
into admitting the victim had come at him and cut him with the knife
but the people who came to his aid were not from the group with
whom he had been riding. At trial he admitted telling the police
several stories, none of which was the story he related in court.
FN 5. Godinez also attacks the last clause of the instruction by
arguing that, as a matter of law, aiders and abettors cannot be liable
for homicides unless there is proof they knew their confederates
possessed a weapon. He relies on People v. Butts (1965) 236 Cal.
App. 2d 817 [46 Cal. Rptr. 362] for this proposition. Our review of
section only finds that numerous gangs exist and the number of
gang-related murders is increasing. However, the murders are not
categorized as to what percentage involves ambushes, drive-by
shootings or retaliatory shootings versus what percentage involves
deaths from gang fights during chance encounters, nor is there a
determination that murder as a matter of law is a foreseeable
consequence of gang fights.
FN 7. Although we have previously explained why the jury could have
discredited Godinez's testimony (see People v. Nava, supra, 207
Cal.App.3d at pp. 1498-1499, fn. 3), a jury could also have accepted
his explanation for his prior falsehoods and viewed him as currently
telling the truth.
FN 8. The pernicious impact of the presumption created by the
instruction surfaced again during the prosecution's rebuttal. During
the defense's closing argument counsel argued that aider and abettor
liability should not result here, anymore than in the analogous case
where a husband or wife gets into a heated argument with a victim
and the other spouse comes to the defense and ends up stabbing the
victim. The prosecution, arguing this analogy was irrelevant, stated:
"The law doesn't say that there is a reasonable and natural
consequence of homicide when a husband and wife get in a fight with
somebody .... [] What the law says is that homicide is a reasonable
and natural consequence to be expected from a gang attack, and that
is what this is, a gang attack."
OTHER :
People v. Godinez (1993)
Annotate this Case
[No. B067906. Second Dist., Div. Four. Aug 17, 1993.]
THE PEOPLE, Plaintiff and Respondent, v. JOSE GODINEZ,
Defendant and Appellant.
(1991) 231 Cal. App. 3d 596, 611-612 [282 Cal. Rptr. 538], and, more
recently, in People v. Von Villas (1992) 11 Cal. App. 4th 175, 233-235
[15 Cal. Rptr. 2d 112]. We agree with the reasoning of Jones, Cribas
and Von Villas, and find no error in the court's refusal to give a
unanimity instruction regarding the overt act necessary for a
conspiracy.
We also agree with respondent that, even if unanimity were required,
by finding appellant guilty of attempted murder, as charged in the
information, and guilty of conspiracy, the jurors must have been
unanimous at least as to the commission of overt act No. 6. The
information charged that on January 19, 1989, appellant attempted to
murder Raul Almeria, Richard Lopez, Victor Alatorre and Anthony
Villasenor. Overt act No. 6 was that on January 19, 1989, appellant
and other unnamed conspirators attempted to kill these same named
individuals.
IV. Criminal Street Gang Enhancement
[2a] Appellant claims the section 186.22 sentence enhancement must
be stricken because there was no evidence that members of the
Puente gang had engaged in gang-related offenses within three
years prior to the charged offense.
Section 186.22 is part of the California Street Terrorism Enforcement
and Prevention Act enacted in 1988. ( 186.20.) The intent of the act
is "to seek the eradication of criminal activity by street gangs by
focusing upon patterns of criminal gang activity and upon the
organized nature of street gangs, which together, are the chief source
of terror created by street gangs." ( 186.21.) [17 Cal. App. 4th
1368]
Appellant's sentence was enhanced under section 186.22,
subdivision (b), as in effect at the time, fn. 2 which provided: "Any
person who is convicted of a felony or a misdemeanor which is
committed for the benefit of, at the direction of, or in association with
any criminal street gang, with the specific intent to promote, further, or
In People v. Gamez (1991) 235 Cal. App. 3d 957, 965 [286 Cal. Rptr.
894], the court described the evidence required to establish the street
gang enhancement: "Section 186.22 requires evidence of a gang's
past criminal [17 Cal. App. 4th 1369] conduct and ongoing criminal
nature." (Italics added.) The court refused to inject the requirement of
knowledge of the predicate offenses into subdivision (b) of the
statute, finding that "the conduct proscribed by the statute is
ascertainable to a reasonable degree of certainty and involves
felonious conduct undertaken with a specific, criminal intent. In short,
an individual who violates subdivision (b) does so at the peril that the
history of his gang will reveal the predicate offenses." (Id. at p. 976,
italics added.)
A similar assumption appears in In re Lincoln J. (1990) 223 Cal. App.
3d 322 [272 Cal. Rptr. 852], where one of the predicate offenses was
the charged offense. In reversing the enhancement, the court
explained: "No evidence was presented to show that members of the
BTR gang had engaged in any of the eight enumerated offenses
within three years previous to the charged offense." (Id. at p. 328,
italics added.) fn. 4
This reading of the statute comports with constitutional standards of
due process. [3] "[A] statute must be sufficiently definite to provide
adequate notice of the conduct proscribed. '[A] statute which either
forbids or requires the doing of an act in terms so vague that men of
common intelligence must necessarily guess at its meaning and differ
as to its application, violates the first essential of due process of law.
[Citations.]' .... ' "[B]ecause we assume that man is free to steer
between lawful and unlawful conduct, we insist that laws give the
person of ordinary intelligence a reasonable opportunity to know what
is prohibited, so that he may act accordingly. Vague laws may trap
the innocent by not providing fair warning." ' [Citations.]" (People v.
Superior Court (Caswell) (1988)46 Cal. 3d 381, 389-390 [250 Cal.
Rptr. 515, 758 P.2d 1046]; Grayned v. City of Rockford (1971) 408
U.S. 104, 108 [33 L. Ed. 2d 222, 227-228, 92 S. Ct. 2294].)
FN 4. See also In re Jose T. (1991) 230 Cal. App. 3d 1455, 1462 [282
Cal. Rptr. 75], holding that the charged offense can constitute one of
the predicate offenses for purposes of a section 186.22
enhancement.
FN *. Judge of the Los Angeles Superior Court sitting under
assignment by the Chairperson of the Judicial Council.
A....There was.
Q....What was it?
A....He would bring me to the mountain to gather firewood
and then would rape me again.
Q....Where is that mountain? How far is that mountain to
the place of Mano Lando and your grandmother?
A....Not too far but it is a mountain.
Q....And can you recall when did you stay at the house of
Mano Lando or your grandmother?
A....In May.
Q....Why? In June where did you go?
A....My father constructed a house near the house of my
Lola so we transferred there.
Q....Who lived in the house your father had constructed
A....The two of us. Sometime Bayi would go there.
Q....Who is Bayi?
A....Our great grandmother.
Q....And while there living at your new house with your
father do you recall of any untoward incident that
happened?
A....There was.
Q....What was it?
A....When Bayi is not around he would rape me.
Q....At what time would this rape incident would occur?
DIGEST:
FACTS:
The petitioner has been accused of treason; that at the hearing on his
petition for bail, the prosecution presented, as part of its evidence,
certain documents which had been allegedly seized by soldiers of the
United States Army, accompanied by Filipino Guerrillas in the
petitioners house. The Petitioner further contends that the seized
documents should be returned as it obtained by means of force and
intimidation or through coercion, those are not his personal papers
but part of the files of the New Leaders Association, which was
proven to be an organization created for the purpose of collaborating
with the enemy. Lastly, the presentation of the seized documents in
the trial is tantamount to compelling him to testify against himself, in
violation of his constitutional rights.
ISSUES:
1. Whether or not the seized documents are legal?
2. Whether or not the documents seized should be admitted as
evidence in the trial court?
HELD.
No. The petition for Certiorari with Injunction is absolutely no merit.
RATIONALE:
The right of the officer and men of the United States Army to arrest
the petitioner as a collaborationist suspect, and to seize his personal
papers is unquestionable. Also, proclamation of General Douglas
McArthur, as Commander in Chief of the United States of Army,
declaring his purpose to remove certain citizens of the Philippines,
who had voluntarily given aid and comfort to the enemy, in violation of
the allegiance.
EXCEPTION:
Important exception to the necessity for a Search Warrant is the right
of search and seizure as an incident to a lawful arrest. A lawful arrest
may be made either while a crime is being committed or after its
commission. The right to search includes in both instances that of
searching the person of him who is arrested, in order to find and
seize things arrested with the crime as its fruits as the means by
which it was committed.
COMPULSORY SELF-INCRIMINATION
Not violated by the use of evidence of articles obtained by an
unconstitutional search and seizure. Thus, the petitioner is estopped
from questioning their admission.
August 3, 1949
entitled "Deed and Mortgage" said two parcels of land and the
improvement thereon to Raymundo F. Navarro and R. F.
Navarro and Co., for the sum of One hundred twenty-five
thousand dollars ($125,000), United States currency, of which
Twelve thousand five hundred dollars ($12,500), United States
currency, was paid in cash; that Raymundo F. Navarro and R. F.
Navarro and Co., in the said "Deed and Mortgage" mortgaged
the said two parcels of land in favor of Allison D. Gibbs and
Finley J. Gibbs, to secure the payment of a balance of the sale
price which they agreed to pay to the said mortgages in annual
installments, plus 5 per cent interest on the deferred
payments. . . . .
(5) That the first installment of $16,875, United States currency,
due on April 11, 1941, was paid to the said mortgages, but none
of the other installments totalling $126,562.50, United States
currency, have been paid and are now due and owing.
(6) That on August 12, 1941, R. F. Navarro, for himself and in
his capacity as president of R. F. Navarro and Co., by
document entitled "Deed of Sale with Assumption of Mortgage,"
sold said property for the sum of forty-thousand pesos
(P40,000), Philippine currency, to Eulogio Rodriguez, Sr., who
in said document assumed and agree to be bound by the
obligation of the mortgage existing thereon in favor of the
mortgages, Allison D. Gibbs, Allison J. Gibbs and Finley J.
Gibbs, and all the covenants, agreements, stipulations and
conditions relating thereto, as recited in said "Deed and
Mortgage" Exhibit "A", to which sale and assumption of
mortgage the said mortgages gave their express
conformity; . . . .
(7) That on December 16, 1941, Eulogio Rodriguez, Sr., with
the consent of the said mortgages and by a document entitled
"Deed of assignment with Assumption of Mortgage" assigned
his rights, title and interest in and to the said property to the
defendant Luzon Surety Co., Inc., for the sum of Forty-two
thousand five hundred fifty-six and 21/100 (P42,556.21) pesos,
together with his obligations under the "Deed of Sale with the
Assumption of Mortgage," Exhibit B, which were duly assumed
On September 25, the plaintiff filed a motion to strike the defense set
up in the defendant's answer to the effect that they had paid their
obligation to the plaintiff to the Department of Enemy Property of the
Japanese Military Administration, on the ground that the latter had no
authority to demand and accept such payment.
Before the date set for hearing of the motion to strike the defendant's
defense on September 29, 1945, the defendant had filed on
September 26, 1945, a motion for summary judgment under section
2, Rule 36, attaching to the motion in support thereof an affidavit of
the attorney for the Luzon Surety Inc., Atty. Arturo Tolentino, to the
effect that on July 21, 1943, when the department of Enemy Property,
Japanese Military Administration, ordered the Luzon Surety Co., to
pay to said Department the defendant's mortgage debt of P202,500
to the plaintiffs, he went to see the plaintiff Allison J. Gibbs at the
compound of the Holy Ghost College and asked him his advise "as to
what action the company should take on the matter, and Attorney
Gibbs told him that he cannot do anything and that he stated further
that in that event the credit will be considered as a war damage."
Attached to the motion for summary judgment was also an affidavit of
defendant Eulogio Rodriguez which stated that, in view of the
demand of payment made by the Department of Enemy Property,
Japanese Military Administration, the defendants had to secure a loan
of P120,000 from the Philippines National Bank and pay to said
department on July 31, 1943, the sum of P202,500 due from them to
the plaintiffs.
The motion to strike as well as the motion for summary judgment was
not acted on by the court until the date set for trial of the case on the
merits when both parties, without presenting any evidence, filed their
respective memoranda and submitted the case to the lower court for
decision.
The plaintiffs did not serve any disposing affidavit under section 3,
Rule 36, to contradict the affidavit of Eulogio Rodriguez to the effect
that payment of the mortgage debt in question was made to the
Japanese Military Administration, attached to and in support of the
motion for summary judgment for the defendants, and they admit, in
paragraph 9 of their complaint, that the defendant register of deeds
the purported cancellation of the mortgage Exhibit A and,
lifted, the balance due from the former to the latter, and the
defendants appealed from said judgment to this Court.
The lower court was correct in holding that the question raised in the
present case is similar to that involved in the case of Hongkong and
Shanghai Banking Corporation vs. Luis Perez Samanillo, Inc., et al.,
(82 Phil., p. 851, and in making the reasons and conclusions set forth
in support of its decision therein as grounds for its decision in the
present case. In Samanillo case, the debt due from the defendant to
the plaintiff was paid, by order of the Japanese Military
Administration, to the Bank of Taiwan as Liquidator of local enemy
banks and Bureau of Enemy Property of the enemy bank's
properties. In the present case the defendants, by order of the
Japanese Military Administration, paid to the Bank of Taiwan as
Bureau of Enemy Property the debt due from the defendants to the
plaintiffs. The question involved in said Samanillo case was whether
or not the collection of Samanillo's debt to the Hongkong and
Shanghai Banking Corporation by the Bureau of Enemy Property of
the Japanese Military Administration, was a confiscation of the
plaintiffs' credit. And the question involved in the instant case is
whether or not the collection by the Department of Enemy Property,
Japanese Military Administration, of the mortgage debt due from the
defendants to the plaintiffs was a confiscation of the latter's credit.
This Court reversed the decision of the lower court in the case
of Hongkong and Shanghai Baking Corporation vs. Luis Perez
Samanillo, Inc., et al., on the strength of the ruling of this Court in the
case of Haw Pia vs. China Banking Corporation, (80 Phil 604), in
which the facts and law involved were similar to those in Haw Pia. In
this last case we held that the collection by the Bank of Taiwan of the
China Banking Corporation's credit from the latter's debtor by order of
the Japanese Military Administration, was not a confiscation but a
sequestration of the enemy private personal property, and threrefore
the payment by the plaintiff Haw Pia to the Bank of Taiwan was valid
and released plaintiff's obligation to the defendant bank. Therefore,
we have to reverse also the decision of the lower court in the present
case.
The plaintiffs contention that the debt of the defendants in the present
case was payable in dollars or its equivalent in Philippine peso at the
Separate Opinions
PERFECTO, J., concurring:
Except the pronouncement about legal tender, upon which we wish
not to commit ourselves, we concur in the above opinion.
FERIA, J.:
This is a motion for reconsideration of the decision of this Court in the
present case filed by the plaintiffs on the grounds (I) that "even if it is
assumed that the Japanese had authority to demand payment of
plaintiffs' U. S. dollar credit in Japanese military pesos, the payments
allegedly made by the defendants to the Japanese should be credited
against the amount owed to plaintiffs only at the express mortgage
rate, namely, at the cost in Japanese military pesos (or at the fair rate
of exchange) of the U. S. dollar demand draft on New York called for
in the mortgage; this would leave a balance due plaintiffs after such
application of not less than $40,024.07"; and (II) that the decision of
this Court in the Haw Pia case on the strength of which the present
their briefs, and therefore plaintiffs can not now raise that question for
the first time in their motion for reconsideration.
The decision of this Court in the Legarda case did not hold that the
defendant Burke had the right to refuse the payment by the debtor of
his debt in British currency in Japanese war notes. This Supreme
Court returned the case to the lower court for further proceeding and
the writer of the opinion of the court in said case only said that "still it
isserious question whether the defendant Burke who was a special
creditor having the right to insist upon his option to receive Japanese
money specially at par." Moreover in the Legarda case the action was
instituted by the debtor against his creditor to compel the latter to
accept the payment in Japanese military notes, while in the present
the payment of the debtors' debt to their creditors was demanded and
accepted by the Japanese military Occupant in the exercise of its
power to sequestrate the property of said creditors who were enemy
citizens, without prejudice to the right of the latter to demand from the
Japanese Government full compensation for the seizure through
State Department channels at the peace table. (United States v. SS.
White Dental Manufacturing Co., 247 U. S. 398, 402 (1927).
II
With respect to the article of Professor Charles Cheney Hyde on the
decision of this Court in the case of Haw Pia vs. China Banking
Corporation,1 G. R. No. L-554, promulgated on April 9, 1948, it may
not be amiss to state, by way of preamble before proceeding, that
according to Article 38 of the Statues of the International Court of
Justice, the Court shall, subject to certain limitations, apply judicial
decisions as a subsidiary means for the determination of rule of
International Law. Although courts are not organs of the State for
expressing in a binding manner its views on foreign affairs, they are
nevertheless organs of the State giving, as a rule, impartial
expression to what is believed to be International Law. For this
reason, judgments of municipal tribunals are of considerable practical
importance for determining what is the right rule of International Law.
This is now being increasingly recognizes, and periodical unofficial
collections of decisions of both international and municipal courts are
being published. In pleadings before international tribunals litigants
still fortify their arguments by reference to writings of international
jurists, but with the growth of international judicial activity and of the
practice of States evidenced by widely accessible records and
reports, it is natural that reliance on the authority of writers as
evidence of International Law should tend to diminish. For it is as
evidence of the law and not as a law-creating factor that the
usefulness of teaching of writers has been occasionally admitted in
judicial pronouncements. But inasmuch as a source of law is
conceived as a factor influencing the judge in rendering its decision,
the work of writers may continue to play a part in proportion to its
intrinsic scientific value, its impartiality and its determination to
scrutinize critically the practice of State by reference to legal principle.
(International Law by Oppenhiem, Vol. I, pp. 29-32).
It does not seem, therefore proper for an attorney or jurist, in trying to
protect or defend the interest of parties affected adversely by a
decision rendered by the Supreme Court of a Sovereign Foreign
Power, to assail it with arguments premised on facts different from
those found by their court on which the decision is based and dub
that decision as one in violation of International Law. A decision of the
Supreme Court of the small Republic of the United States of America.
The article of Professor Hyde in which the author, commenting on the
decision in the Haw Pia case, says that it "will do the utmost harm to
American Interest" *, does not deserve the same weight as his
opinions set forth in his work "International Law chiefly as interpreted
and applied by the United States." Because the article was written
and published more than one year after our decision, not by an
impartial jurist and ante litem motam, but by an attorney who tries to
defend American interests in the Philippines after an action was
instituted in the Supreme Court of the State of New York by the
Compania Tabacalera, a corporation owned mostly by Spaniards and
doing business in these Islands, against the National City Bank of
New York, an action based on the decision of this Supreme Court of
the Philippines in the said Haw Pia case.
For clarity's sake, we shall discuss separately the arguments and
conclusions advanced by Mr. Hyde in support of his contention that
our decision in the Haw Pia case is a violation of a International Law:
(1) first, on the validity of the payment made in war notes to the Bank
of Taiwan by Haw Pia of his pre-war debt to the China Bank; (2)
secondly, on the alleged failure of the Bank of Taiwan, liquidator of
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used to further the interest of the enemy and to impede our own
war effect. All enemy-controlled assets can be used to finance
propaganda, espionage, and sabotage in this country or in
countries friendly to our cause. They can be used to acquire
stocks of strategic materials and supplies ... was to the enemy,
they will be diverted from our own war efforts. (Haw Pia vs.
China Banking Corporation, L-554, pp. 3-10, 12-13, Original
Decision.)
As we have already said, from the decision above qouted it appears
that the "question whether a belligerent occupant has the right
through such uses of a depressed currency, by making it legal tender
and continuing it as such to oblige a creditor to accept in payment of
a debt something that was at the time of payment practically or
almost worthless," which Professor Hyde discusses at length in his
article, has no bearing on the question involved and decided in the
Haw Pia case and, therefore, Professor Hyde's criticism are
predicated upon a wrong premise.
However, although the question of legal tender was only incidental to
the issue in the Haw Pia case, we have shown in our decision that
the power of a military occupant to issue military currency is based,
not only on the military occupant's general power to maintain law and
order recognized in article 43 of the Hague Regulations, but also on
military necessity; and said power was exercised during the last
World War not only by Germany who used in most occupied areas
the Reichskroditkassa mark, a paper currency printed in Germany
and denominated in German monetary units, but also by the Aliens in
the occupied territory of Sicily, Germany and Austria. The Combined
Directives of the Combined Chiefs of Staffs of the Supreme Allied
Commander issued on June 24, 1943, April 28, 1944, and June 27,
1947, declared respectively as legal tender the yellow seal dollars
currency and the British military notes (BMN) in Sicily, the Allied
military mark and the yellow seal dollars in Germany, and the Allied
military shillings in Austria. When the Japanese Military occupant
issued the Proclamation of January 3, 1942, which declared the
Japanese military notes of small denominations up to ten pesos as
legal tender at par with the Philippine peso, the purchasing power of
said notes was then the same as that of the Philippine peso. If the
Japanese war notes became depressed and valueless, it was
because the war was prolonged and lost by the Japanese contrary to
their expectation of winning the war in a short time, and not because
they issued purposely a depressed and valueless currency as legal
tender. If their expectation had been realized no question as to the
validity of the Japanese military notes as legal tender would have
come up.
There was no Japanese order or decree or any particular case in
which the Japanese military occupant or agents had actually
compelled all creditors to accept in payment of pre-war debts
depressed currency or Japanese war notes; as a matter of fact
several cases are still pending in our courts in which debtors of prewar debts had to file civil actions to compel their creditors to accept
Japanese war notes deposited by them in court in payment of prewar obligations which became due and payable during the
occupation. What the Japanese military occupant did in the Haw Pia
case was to issue Administrative Ordinance No. 1, dated July 31,
1942, ordering the liquidation of the seven banks of hostile countries,
among them the defendant China Banking Corporation, appointing
the Bank of Taiwan, Ltd. as liquidator of said banks and demanding
the payments of all loans, advances and other receivables of the
banks which were thereby declared due and payable to
notwithstanding the terms and conditions of the contract, in order to
sequestrate the latter's assets during the war; and in the present case
the Japanese Military Administration ordered the debtors to pay to the
Japanese Enemy Property Custodian or Bank of Taiwan their debts
due to their creditors who were enemy aliens or corporations, in order
to sequestrate the money so paid. Of course the medium of payment,
being a currency declared legal tender by the same Japanese military
occupant, had to be accepted by the Bank of Taiwan to refuse to
accept them; for even if they were valueless the enemy creditors
would not legally suffer the war to pay said creditors full
compensation for such sequestration through their respective
governments at the conference table, regardless of the intrinsic or
extrinsic value of the money accepted by them.
As we have stated in this connection in our decision "But be that as it
may, whatever might have been the intrinsic or extrinsic value of the
Japanese war-notes which the Bank of Taiwan has received as full
satisfaction of the obligation of the appellee's debtors to it, is of no
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of larger denominations that ten peso notes had not been made
legal tender, or it may have doubted whether they had been
tender. Hence the liquidator may have felt obliged, in case
payment were made in such larger Japanese notes, not to
regard them as adequate for the settlement of the debt. Or, the
liquidator may have been influenced by the vastness and
improprietry of the Japanese acts of inflation which if allowed to
enable the debtor to pay her debts therewith, would have
amounted to sheer robbery of the creditor, both violative of
precedent and hurtful to the prestige of the Japanese
Government. In a word, there are numerous reasons any one of
which might have served to put the liquidator on its guard, and
to cause it not leave the matter to its own later decision. Be that
as it may, it is a reasonable assumption that shrewd debtors ran
to the windows of the Bank of Taiwan in the attempt to take
advantage of the decrease of the value of the occupation
currency, one peso of the Philippines being then equivalent to
at least fifteen pesos of the military notes.
The liquidation ordered by the Japanese Administrative Ordinance
No. 11 of July 31, 1942, was not a complete liquidation of all the
affairs of the local banks controlled by enemy nationals, but only a
liquidation of all the credits of said banks in order to liquidate and
sequestrate them. Said Ordinance only provided that "2. The Bank of
Taiwan Ltd. has been appointed liquidator of the above banks. 3. All
loans, advances and other receivables of the banks are hereby
declared due and payable notwithstanding the terms and conditions
of the contract. Debtors are given from today until September 30,
1942, to pay the principal and interest of their obligations. All
payments made thereafter shall be charged additional interest at 3
per cent per annum, except only in special case where they may be
waived." For that reason the creditors or depositors of the banks were
allowed to withdraw restricted amounts only from their deposits as a
protective measure to prevent runs on banks owned or controlled by
the enemy nationals, which would result from mass withdrawals. And
it is incorrect or contrary to facts to say, as Professor Hyde avers, that
"only about ten per cent of the deposits of foreigners were allowed to
withdrawn". For what we have found in our decision in the Haw Pia
case is the following:
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As the enemy banks were closed and had not received deposits in
Japanese Military notes during the occupation, they did not run the
risk, as the other banks did, of being responsible for such deposits in
genuine Philippine currency had not the Philippine Government
declared after liberation such deposits to be of no value. The
retention by the liquidator "of money representing debts due by
foreign banks to depositors" did not, as Professor Hyde affirms,
"serve in fact to be a convenient means of preserving them so that
they would be subjected to the dangers of inflation and deterioration
of currency which the Japanese Government might later apply." As all
the payments made to the Bank of Taiwan in Japanese war notes of
the credits of the enemy Banks, except about twenty-seven, not ten,
percent paid by the liquidator to the Banks' depositors, had been
sequestrated, said Bank could not have been subjected to the
dangers of inflation or deterioration of currency; because, we have
already stated above, the Japanese Government assumed the
responsibility and is responsible for the payment, in terms of
Philippine pesos or U. S. dollars, of the foreign Bank's credits they
have collected and sequestrated, and the Banks may demand the
payment thereof through their respective Governments at the Peace
Conference.
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Wherefore, we find both the first ground as well as the second ground
of the motion for reconsideration based on Professor Charles Cheney
Hyde's contentions submitted by the petitioners without merit, and
deny said motion for reconsideration.
Moran, C.J., Paras, Pablo, Bengzon, Montemayor, A. Reyes, and
Bautista Angelo, JJ., concur.
Footnotes
1
80 Phil., 604.
April 9, 1948
of Military Government and Civil Affairs not only of the United States,
but also in tries, as well as in the Trading with the Enemy Acts of said
countries.
Hyde in his International Law chiefly as interpreted and applied by the
United States, Vol. 3, 6th ed., p. 1727, has the following to say:
In examining the efforts of a belligerent to control in various
ways property within its domain that has such a connection with
nationals of the enemy that it may be fairly regarded as enemy
property, it is important to inquire whether the attempt is made
to appropriate property without compensation, divesting him not
only of title, but also of any right or interest in what is taken,
without prospect of reimbursement, or whether those efforts
constitute an assumption of control which, regardless of any
transfer of title, is not designated to produce such a deprivation.
The character of the belligerent acts in the two situations is not
identical. To refer to both as confiscatory is not productive of
clearness of thought, unless a loose and broad signification be
attached to the term "confiscation." The point to be noted is that
a belligerent may in fact deprive an alien enemy owner of
property by process that are into essentially confiscatory, even
though the taking and retention may cause him severe loss and
hardship. Recourse to such non-confiscatory retentions or
deprivations has marked the conduct of belligerents since the
beginning of the World War in 1914. They may perhaps be
appropriately referred to as sequestrations. The propriety of
what they have involved is, therefore, hardly discernible by
reference to objections directed against confiscatory action as
such, and must be tested by other means or standards.
A belligerent may fairly endeavor to prevent enemy property of
any kind within its territory (or elsewhere within its reach) from
being so employed as to afford direct military aid to its foe.
Measures of prevention may, in a particular case, assume a
confiscatory aspect. In such a situation the question may arise
whether those aspect. In such a situation the question may
arise whether those measures are, nevertheless, excusable. It
is believed that they may be, and that they are not invariably
The civil affairs officers are concerned, that is, entrusted with the
performance of the functions enumerated above, when so directed by
the chief commander of the occupant military forces.
Not only the United States Army and Navy Manual of Military
Government and Civil Affairs but similar manuals of other countries
authorize the liquidation or impounding of the assets of enemy banks
or the freezing, blocking and impounding of enemy properties in the
occupied hostile territories without violating article 46 or other articles
of the Hague Regulations. They do not amount to an outright
confiscation of private property, and were put into effect by the Allied
Army in the occupied hostile territories in Europe during World War II.
The Combined Chiefs of Staff, in their Directive of May 31, 1943, on
Military Government in Sicily, Italy, addressed to the Supreme Allied
Commander, Mediterranean Theater, ordered: "(h) An Allied
Military Financial Agency under the control of the Military Government
shall be established with such sub-agencies as considered
necessary," "(i) Military authorities on occupying an area shall
immediately take the following steps: '(1) All financial institutions and
banks shall be closed and put under the custody of the military
forces'," (2) a general moratorium shall be declared. (j) ... all papers
of value, foreign securities, gold and foreign currencies shall be
impounded with receipts granted to recognized owners. (k) "The
Allied Military Financial Agency or any appointed agency by the MG
will take into immediate custody all foreign securities and currencies,
holding of gold, national funds and holding of Fascist organizations
for deposit." (Appendix on American Military Government, its
Organization and Policies, by Hajo Holborn, 1947, pp. 116, 117.)
The Combined Directive of April 28, 1944, for Military government in
Germany Prior to Defeat or Surrender, provided that the Allied Forces
"Upon entering the area of Germany will take the following steps and
put into effect only such further financial measures as they deem
necessary from a strictly military standpoint. (b) "Banks should be
placed under such control as deemed necessary by them in order
that adequate facilities or military needs may be provided and to
insure that instructions and regulations issued by the military
authorities will be fully complied with." (c) "Pending determination of
future disposition, all gold, foreign currencies, foreign securities,
since the first World War, including England, Germany, France and
other European countries, as well as Japan, confirms that the assets
of enemy corporations, specially banks incorporated under the laws
of the country at war with the occupant and doing business in the
occupied territory, may be legally sequestered, and the business
thereof wound up or liquidated. Such sequestration or seizure of the
properties is not an act for the confiscation of enemy property, but for
the conservation of it, subject to further disposition by treaty between
the belligerents at the end of the war. Section 12 of the Trading with
the Enemy Act of the United States provides that "after the end of the
war any claim of enemy or ally of an enemy to any money or other
property received and held by the Alien Custodian or deposited in the
United States Treasury, shall be settled as Congress shall direct."
The purpose of such sequestration is well expounded in the Annual
Report of the Office of the Alien Custodian for a period from March
11, 1943 to June 30, 1943. "In the absence of effective measures of
control, enemy-owned property can be used to further the interest of
the enemy and to impede our own war effort. All enemy-controlled
assets can be used to finance propaganda, epionage, and sabotage
in this country or in countries friendly to our cause. They can be used
to acquire stocks of strategic materials and supplies ... use to the
enemy, they will be diverted from our own war effort.
The national safety requires the prohibition of all unlicensed
communication, direct or indirect, with enemy and enemy-owned
territories. To the extent that this prohibition is effective, the residents
of such territory are prevented from exercising the rights and
responsibilities of ownership over property located in the United
States. Meanwhile, decisions affecting the utilization of such property
must be made and carried out. Houses must be maintained and rents
collected; payments of principal and interest on mortgages must be
made for the account of foreign debtors and foreign creditors;
stranded stocks of material and equipment must be sold; patents
must be licensed, business enterprises must be operated and
liquidated, and foreign interest must be represented in court actions.
The number of decisions to be made in connection with property is in
fact multiplied by a state of war, which requires that productive
resources be shifted from one use to another so as to conform with
the requirements of a war economy."
Section 3-A of the Trading with the Enemy Act of the United Kingdom
of September 5, 1939, as amended up to April 1, 1943, provides that
"Where and business is being carried in the United Kingdom by, on
behalf of, or under the jurisdiction of, persons all or any of whom are
enemies or enemy subjects or appear to the Board of Trade to be
associated with enemies, the Board of Trade may, if they think it
expedient so to do, make ...;" (b) and order (hereinafter in this section
referred to as a winding up orders) requiring the business to be
wound up;" and section 14 (c) of the same Act (that obviously makes
it applicable to enemy territories occupied by the United Kingdoms
armed forces) provides that "His Majesty may by order in council
direct that the provisions of this Act other than this section shall
extend, with such exceptions, adaptations and modifications, if any,
as may be prescribed by or under the order ... (to the extent of His
Majesty's jurisdiction therein) to any of the country or territory being a
foreign country or territory, in which for the time being His Majesty
has jurisdiction." (The Trading with the Enemy Act in World War II, p.
481, by Martin Domke.)
Section 5 (b) of the Trading with the Enemy Act of the United States
provides that "during the time of war or during any period in which
national emergencies declared by the President, the President may
under any agency that he may designate or otherwise under such
rule and regulation as he may prescribe," and "any property or
interest of any foreign country or national thereof shall vest, when, as,
and upon the terms, directed by the President, in such agency or
person as may be designated from time to time by the President, and
upon such terms and conditions as the President may prescribe, such
interest or property shall be held, used, administered, liquidated, etc."
and section 6 (e) of the same Act provides that "any payment, ... of
money or property made to the alien property custodian hereunder
shall be a full acquittance and discharge for all purposes of the
obligation of the person making the same to the extent of same. ..
and shall, in any case of payment to the alien, property custodian of
any debt or obligation owed to an enemy or ally of enemy, deliver up
any notes, bonds, or other evidences of indebtedness or
obligation, ... with like effect as if he or they, respectively, were duly
appointed by the enemy or ally of enemy, creditor, or obligee."
It is evident that the Trading with the Enemy Act of the United States,
like that of the United Kingdom or Great Britain above quoted, and
those of other countries, may be applied and enforced in a hostile
territory occupied by the United States armed forces, because section
2 of said Act provides "That the words 'United States', as used herein,
shall be deemed to mean all land and water, continental or insular, in
any way within the jurisdiction of the United States or occupied by the
military or naval forces thereof." After the liberation of the Philippines
during World War II, properties belonging to Japanese Nationals
located in this country were taken possession of by the Alien Property
Custodian appointed by the President of the United States under the
Trading with the Enemy Act, because, although the Philippines was
not a territory or within the jurisdiction or national domain of the
United States, it was then occupied by the military and naval forces
thereof.
Of course it is obvious that the obligations assumed by the United
States, in applying the Trading with the Enemy Act of the United
States to properties within her national domain, is different and
distinct from those arising from the application thereof to enemy
properties located within the hostile territory occupied by her armed
forces. In the first case, Congress is untramelled and free to authorize
the seizure, use, or appropriation of such properties without and
compensation to the owners, for although section 2 of the Trading
with the Enemy Act provides that "at the end of the war any claim of
an enemy or of an ally of enemy to any money or other property
received and held by the alien property custodian or deposited in the
United States Treasury shall be settled by Congress," the owners of
the properties seized within the national domain of the United States
are not entitled to demand its release or compensation for its seizure,
but what could ultimately come back to them, might be secured, not
as a matter of right, but as matter of either grace to the vanquished or
exacted by the victor, for the case is to be governed by the domestic
laws of the United States, and not by the Hague Regulations or
International Law (U.S. vs. Chemical Foundation Inc., 272 U.S. 1;
United States vs. S.S. White Dental Manufacturing Company, 274
U.S., 402). While in the latter case, when the properties are
sequestered in a hostile occupied territory by the armed forces of the
United States, Congress can not legally refuse to credit the
compensation for them to the States of the owners as payment on the
account of the sums payable by said States under treaties, and the
owners have to look for compensation to their States, otherwise, they
would violate article 46 of the Hague Regulations or their pledge of
good faith implied in the act of sequestering or taking control of such
properties.
It is to be presumed that Japan, in sequestering and liquidating the
China Banking Corporation, must have acted in accordance, either
with her own Manual of the Army and Navy and Civil Affairs, or with
her Trading with the Enemy Act, and even if not, it being permitted to
the Allied Nations, specially the United states and England, to
sequestrate, impound, and block enemy properties found within their
own domain or in enemy territories occupied during the war by their
armed forces, and it not being contrary to the Hague regulations or
international law, Japan had also the right to do the same in the
Philippines by virtue of the international law principle that "what is
permitted to one belligerent is also allowed to the other."
Taking into consideration the acts of the Japanese Military
Administration in treating the private properties of the so-called
enemy banks, it appears evident that Japan did not intend to
confiscate or appropriate the assets of said banks or the debts due
them from their debtors, and thus violate article 46 or any other article
of the Hague Regulations. It is true that as to private personal
properties of the enemy, freezing, blocking, or impounding thereof is
sufficient for the purpose of preventing their being used in aid of the
enemy; but with regard to the funds of commercial banks like the socalled enemy banks, it was impossible or impracticable to attain the
purpose for which the freezing, blocking or impounding are intended,
without liquidating the said banks and collecting the loans given by
then to the hundreds if not thousands or persons scattered over the
Islands. Without doing so, their assets or money loaned to so many
persons can not properly be impounded or blocked, in order to
prevent their being used in aid to the enemy through the intervention
of their very debtors, and successfully wage economic as well as
military war.
That the liquidation or winding up of the business of the China
Banking Corporation and other enemy banks did not constitute a
confiscation or appropriation of their properties or of the debts due
of Taiwan from the debtors of the said banks, did not and could not
change the sequestration or impounding by them of the bank's assets
during the war, into an outright confiscation or appropriation thereof.
Aside from the fact that it was physically impossible for the Japanese
Military authorities to do so because they were forcibly driven out of
the Philippines or annihilated by the forces of liberation, following the
readjustment of rights of private property on land seized by the
enemy provided by the Treaty of Versailles and other peace treaties
entered into at the close of the first World War, the general principles
underlying such arrangements are that the owners of properties
seized, sequestrated or impounded who are nationals of the
victorious belligerent are entitled to receive compensation for the loss
or damage inflicted on their property by the emergency war measures
taken by the enemy, through their respective States or Governments
who may officially intervene and demand the payment of he claim on
behalf of their nationals (VI Hackworth Digest of International Law,
pages 232, 233; 11 Oppenheim, sixth edition, page 263). Naturally,
as the Japanese war notes were issued as legal tender for payment
of all kinds at par with the Philippine peso, by the Japanese Imperial
Government, which in its proclamations of January 3, 1942, and
February 1, 1942, "takes full responsibility for their usage having the
correct amount to back them up" (See said Proclamations and their
official explanation, O.T. IMA, Vol, 1, pp. 39, 40), Japan is bound to
indemnify the aggrieved banks for the loss or damage on their
property, in terms of Philippine pesos or U.S. dollars at the rate of one
dollar for two pesos.
(2) The second question is, we may say, corollary of the first. It
having been shown above that the Japanese Military Forces had
power to sequestrate and impound the assets or funds of the China
Banking Corporation, and for that purpose to liquidate it by collecting
the debts due to said bank from its debtors, and paying its creditors,
and therefore to appoint the Bank of Taiwan as liquidator with the
consequent authority to make the collection, it follows evidently that
the payments by the debtors to the Bank of Taiwan of their debts to
the China Banking Corporation have extinguished their obligation to
the latter. Said payments were made to a person, the Bank of Taiwan,
authorized to receive them in the name of the bank creditor under
article 1162, of the Civil Code. Because it is evident the words "a
person authorized to receive it," as used therein, means not only a
time the loan was made which created the debt, the creditor delivered
to the debtor 12,000 pesos in gold coin."
The power of the military governments established in occupied
enemy territory to issue military currency in the exercise of their
governmental power has never been seriously questioned. Such
power is based, not only on the occupant's general power to maintain
law and order recognized in article 43 of the Hague Regulations
(Feilchenfeld of Belligerent Occupation, paragraph 6), but on military
necessity as shown by the history of the use of money or currency in
wars.
As early as the year 1122, during the siege of Tyre, Doge Micheli paid
his troops in leather money which he promised to redeem when he
returned to Venice (Del Mar, Money and Civilization, 26), and when
Frederick II besieged Milan he also used leather money to pay his
troops, as well as in payment of wages (id. 33). When the French
forces occupied the Ruhr in 1923, they finished the printing of some
Reichsbank notes in process and issued them. (Nussbaum, Money in
the Law, note 6, 158-59.) The British during the Boer War issued
receipts for requisitioned goods and made such receipts readily
negotiable, an arrangement very similar to the issuance of currency
(Spaight, War Rights on Land, 396). During the American Revolution,
the Continental Congress issued currency even before the issuance
of the Declaration of Independence, when the territory controlled by
Congress was held in military occupation against the then legitimate
government. (Dewey, Financial History of the United States, 37-38;
Morrison and Commager, Growth of the American Republic, 207;
Nussbaum, op. cit. supra note, 6, 172-173.) The Confederacy issued
its own currency in Confederate territory (Thorington vs. Smith, 8
Wall., 1) and also in northern areas occupied from time to time during
the war. (Spaight, op. cit. supra, note 19, 392.) The Japanese issued
special occupation currency in Korea and Manchuria during the
Russo-Japanese War of 1905. (Takahashi, International Law Applied
to Russo-Japanese War, 1908, 260-61; Spaight, op. cit. note 19,397;
Ariga, La Guerre Rossu-Japanese, 1908, 450 et seq.) The British
also issued currency notes redeemable in Sterling in London at a
fixed rate of exchange, in their occupation of Archangel during and
after the first World War. (White, Currency of the Great War, 66;
League of Nations, Currency After the War, 100.)
During the World War II, the Germans had been using a variety of
occupation currencies as legal tenders on a large scale, the currency
initially used in most occupied areas being the Reichskroditkassa
mark, a paper currency printed in German and denominated in
German monetary units, which circulated side by side with the local
currency at decreased rate of exchange. And the Allies have
introduced notes as legal currency in Sicily, Germany, and Austria.
The Combined Directive of the combined Chief of Staffs to the
Supreme Allied Commander issued on June 24, 1943, directed that
the task forces of the U.S. will use, besides regular U.S. coins, yellow
seal dollars, and the forces of Great Britain will use besides British
coins, British Military Notes (BMA), to supplement the local lire
currency then in use (Hajo Holborn, American Military Government,
1947, pp. 115-116). The Combined directive for Military Government
in Germany, prior to defeat or surrender, of April 28, 1944, directed
the United States, British and other Allied Forces to use Allied military
mark and Reichsmark currency in circulation in Germany as legal
tender and the Allied Military Marks will be interchangeable with the
Reichsmark currency at the rate of Allied Mark for Reichsmark; and
that in the event adequate supplies of them were not available, the
United States forces will use Yellow seal dollars and the British forces
will use British Military Authority (BMN) notes. (Holborn, op. cit. supra,
p. 140.) And the American Directive on the Military Government of
Austria of June 27, 1945, ordered that the United States forces and
other Allied forces within Austria will use only Allied Military Schillings
for pay of troops and other military requirements, declaring it legal
tender in Austria interchangeably with Reichsmarks at a rate of one
Allied military schilling for one Reichsmarks. (Holborn, op. cit. supra,
p. 192.)
In the above cited case of Thorington vs. Smith, the Supreme Court
of the United States said:
. . . While the war lasted, however, they had a certain
contingent value, and were used as money in nearly all
business transactions of many millions of people. They must be
regarded, therefore, as a currency, imposed on the community
by irresistible force.
Separate Opinions
PERFECTO, J., concurring:
sobre todo el dolor moral? A los bancos afectados les queda, por los
menos, el consuelo de que sus perdidas resultantes de la liquidacion
forzosa por los japoneses han quedado casi cubiertas, bien con sus
ganancias obtenidas en otras areas no directamente afectadas por la
guerra, bien con ganancias logradas por ellos aqui mismo despues
de la liberacion, segun informes y datos autenticos. Asi es la guerra:
todos tienen su parte de dolor y sacrificio en ella; y uno no va a
quejarse si por cualquiera combinacion de circunstancias superiores
a la voluntad humana, le toca en suerte sobrellevar una cruz mas
pesada que la del projimo. Ces't la guerree . . .
Se ha puesto asimismo enfasis en otro aspecto moral, etico, de la
cuestion, a saber: el que algunos logreros se hayan lucrado
precipitandose a pagar sus deudas durante el apogeo de la inflacion.
Es indudable que algunos deudores pudieron aprovecharse de la
inflacion pagando sus deudas durante el periodo en que el billete
militar japones tenia un poder adquisitivo muy bajo, pero esto no
afecta a la cuestion fundamental de principio. Una vez establecido
juridicamente que el banco liquidador tenia autoridad y facultad para
recibir y aceptar pagos segun las reglas conocidas de derecho
internacional y bajo los usos y practicas sancionados en tiempo de
guerra, y una vez que el banco liquidador aceotp y recibio dichos
pagos sin discriminacion en cuanto al dinero pagado, la extincion de
la obligacion tenia que seguir necesariamente. Habiendo comenzado
la liquidacion en un tiempo en que aun no habia inflacion de hecho
el billete militar japones estaba casi a la par con el peso del
Commonweath ; y no habiendo el gobierno militar de ocupacion ni
el banco liquidador establecido una escala de volares de acuerdo
con las oscilaciones y curvaturas que sufriera dicho billete en el
accidentado curso de la inflacion, no podemos ahora, so pena de
incurrir en arbitrariedad, establecer fronteras de demarcacion que
separen el periodo normal del inflatorio, declarando valido la pagado
en el primer periodo, e invalido, total o parcialmente, lo pagado en el
segundo. El principio tiene que aceptarse integramente con todas
sus consecuencias. O se itra de la manta para todos, o no se tira
para nadie . . . El principio es indivisible.
Sobre la cuestion del legal tender, pareceme que nada se puede
aadir a los luminosos razonamientos del Seos Magistrado
ponente. Razones de dialectica, experiencia e historia abonan en
the sum of P5,103.35 with interests thereon at 9 per cent per annum
from December 26, 1941, compounded monthly until paid, and the
additional sum of P1,500 for attorney's fees and costs of suit; (3) that
plaintiff be ordered to pay defendant the amount of the judgment
within 90 days from and after the date on which Executive Order No.
32, series of 1945, (Moratorium order) is repealed or lifted; and (4) for
general relief.
The trial court rendered judgment on March 12, 1946, absolving the
defendant China Banking Corporation from the complaint and giving
judgment pursuant to said defendant's "cross-claim." Upon this
appeal, plaintiff-appellant's assignment of error may be reduced to
the following: (1) whether or not the Japanese Military Administration
or Japanese Army of occupation had authority to liquidate the socalled alien or enemy banks through the Taiwan Bank or otherwise;
and (2) whether payments made to said supposed liquidator in
Japanese military notes by plaintiff-appellant has discharged her from
her obligation to defendant-appellee China Banking Corporation.
1. Japanese occupation army, or the enemy property custodian of the
Japanese Military Administration, or the latter itself, through Bank of
Taiwan or otherwise, had no authority to liquidate enemy banks
mentioned in Administrative Ordinance No. 11.
Appellant Haw Pia principally relies on Administrative Ordinance No.
11 issued by the Japanese Military Administration, the subject matter
of which was "the liquidation of the banks of hostile countries." This
contention is argued under the seventh proposition set forth on page
123 of the printed memorandum of Atty. Claro M. Recto,amicus
curiae, as follows:
VII. Under International Law, the Bank of Taiwan, acting as
liquidator of the "enemy" banks and as direct representative of
the office of the enemy property custodian of the Japanese
Military Administration and/or the latter itself, was lawfully
authorized to demand and receive payments for and on behalf
of the 'enemy' banks and inasmuch as it is admitted that the
debtors paid the Bank of Taiwan, in that capacity, their debts to
said "enemy" banks, they have been and are not validly
discharged from any obligation under the municipal law.
But not only this, but in the specific provisions of the regulations, we
find articles 46, 47, and 53 which, respectively, enjoin respect for
private property and prohibit confiscation of private property, sternly
forbid pillage, and authorize the Army of occupation to take
possession only of cash, funds, and realizable securities which
are strictly the property of the State, among other specified items of
property. For convenience, these articles, in so far as pertinent, are
quoted below:
ARTICLE 46. Family honour and rights, the lives of persons,
and private property, as well as religious convictions and
practice, must be respected.
Private property can not be confiscated.
ARTICLE 47. Pillage is formally forbidden. . . .
ARTICLE 53. An army of occupation can only take possession
of cash, funds, and realizable securities which are strictly the
property of the State . . . . (Emphasis supplied.)
Amicus curiae Attorney Recto cites (pp. 149-150 of his printed
memorandum) two paragraphs from the work of Arthur Garfield Hays
entitled "Enemy Property in America," in an effort to further support
his 7th proposition, but the fact is that this author in the passages
quoted treats of the power of a belligerent to seize and confiscate
enemy private property within its own domain. He does not say that
the belligerent would also possess that power in a territory of its
enemy temporarily occupied by it during the course of the war. Thus,
the author says:
In its acts each belligerent had before its eyes the possible
extent of retaliation and was, therefore, guided in its procedure
by the proportion of the enemy in its country as compared with
that of its nationals in other countries. Germany dealt lightly
with American property and quite naturally, since German
property under American control was many times that
of American property under German control. (Emphasis
supplied.)
In the case of Co Kim Cham vs. Tan Keh, 41 Off. Gaz., 779, it was
held by the majority of the Court that the powers of the Japanese
military forces in the Philippines, that is, in those parts thereof
occupied by the Japanese Army during the war, were subject to and
limited by the Hague Regulations. As already stated, these
Regulations direct in the most solemn manner that private property
be respected and be not confiscated. The municipal laws of this
country at the time of the commencement of the Japanese
occupation included, among others, these precepts of the Hague
Regulations by virtue of that provision in our Constitution (Article II,
section 3) to the effect that the Philippines adopts the generally
accepted principles of international law as a part of the law of the
Nation. So that, both by the direct injunctions of the Hague
Regulations which bound Japan, and by the municipal law of the
Philippines, said invader was under obligation to respect private
property here and to refrain from confiscating, seizing and
appropriating the same. There can be no doubt of Japan's obligations
in the premises under the direct provisions of the Hague Regulations
or the rules of international law as therein formulated. And so far as
those rules were adopted as part of the municipal law of the
Philippines, she was also enjoined to respect them, unless absolutely
prevented, by article 43 of the same Regulations reading:
The authority of the legitimate power having in fact passed into
the hands of the occupant, the latter shall take all the measures
in his power to restore and ensure, as far as possible, public
order and safety, while respecting, unless absolutely prevented,
the laws in force in the country.
It is of course obvious that Japan was not absolutely prevented from
respecting the laws of the Philippines which enjoin respect for and
forbid confiscation of private property.
We have said above that the Japanese occupation army, or the
enemy property custodian of the Japanese Military Administration, or
the latter itself, through the Bank of Taiwan or otherwise, was
absolutely denied under the provisions of the Hague Regulations of
1907 the authority to liquidate the enemy banks mentioned in
Administrative Ordinance No. 11. We will not show it.
In G.R. No. L-409, Laurel vs. Misa, promulgated July 16, 1947, 44
Off. Gaz., 1176, we also held that there was no transfer of
sovereignty in the Philippines during the Japanese occupation.
Hence, the Philippine areas occupied by Japan did not become a part
of her territory or domain, with the result that the rules governing the
power and authority of the Japanese occupation army in the
Philippines to control enemy property here during the occupation are
those which obtain under the Hague Regulations and International
Law for belligerent occupation of enemy territory during the course of
a war, and not the laws of Japan herself governing her control over
enemy property within her national domain.
The rights of a belligerent occupant as such, during the period
of control exercised over the hostile territory concerned are
measured by the circumstances that he is to be regarded as
a temporary possessor of what he controls rather than as a
conqueror bent on the acquisition of the occupied area . . . . (III
Hyde, p. 1879; emphasis supplied.)
The Hague Regulations of 1907 announce that private property
"must be respected"; that such property "cannot be
confiscated," also that "pillage is formally forbidden," an
injunction seemingly applicable to public as well as private
property, and possessed of wide implications . . . . (Ibid., p.
1894.)
And Mr. Hyde maintains the theory, which is clearly justified by the
Hague Regulations and the general principles of International Law,
that debts due to the inhabitants of the occupied district are not to be
distinguished from tangible property, and should also be immune from
confiscation, and he very soundly maintains that if a private debtors
owes a private creditor, both residing in that territory, no reason is
apparent why the occupant should have the power to cancel the debt.
He says:
It is believed that no distinction should be made between
tangible and intangible or incorporeal private property, such
as debts due to the inhabitants of the occupied district, with
respect to the duty of the belligerent to refrain from
confiscation . . . . If the debtor is a private individual residing in
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peoples, from the laws of humanity, and the dictates of the public
conscience" (Preamble, The Hague Regulations.)
The Field Manual cited by the amicus curiae and relied upon by him,
by its own terms, is subordinated to the Rules of Land Warfare
embodied in War Department Basic Field Manual (FM-27-10). The
manual invoked by the amicus curiae contains the following
provisions at the very beginning:
For restraints on the discretion of the theater commander in
dealing with persons and property in occupied territory, see War
Department Field Manual 27-10 (Rules of Land Warfare).
In turn, this Field Manuel 27-10 is subordinated to the Hague
Regulations which it quotes verbatim, article by article. The result is
that the language of the manual relied upon by the amicus
curiae must be deemed to be controlled and limited by the provisions
of Field Manual 27-10 and the Hague Regulations incorporated
therein.
Under article 53, paragraph 1, of the Hague Regulations, quoted in
paragraph 320 of the Field Manual 27-10 aforesaid, said manual
provides in paragraph 321:
321. Two classes of movable property. All movable property
belonging to the State directly susceptible of military use may
be taken possession of as booty and utilized for the benefit of
the invader's government. Other movable property,
not directly susceptible of military use, must be respected and
cannot be appropriated. (Emphasis supplied.)
The cash, funds, or realizable securities of the private alien banks
here were not "strictly the property of the state," nor "directly
susceptible of military use."
As a matter of fact, it is not pretended that the Japanese army ever
intended to use the military notes collected by the Bank of Taiwan
from the prewar debtors of these alien banks for military purposes. It
is asserted that the Taiwan Bank used them, or part of them, in
paying withdrawals allegedly made by the alien banks' depositors or
in the supposed payment of supposed obligations of the same banks.
even come within that class referred to by Mr. Hyde (Vol. III. 1898),
where the particular fiscal organization bears such a relationship to
the territorial sovereign as to justify the treatment of the bank as a
public enemy concern, and its assets as public enemy property. Mr.
Hyde's statement is as follows:
In the case of banks functioning in occupied territory the
question is likely to arise, whether the particular fiscal
organization bears such a relationship to the territorial
sovereign as to justify the treatment of it as a public enemy
concern, and its assets as public enemy property. A variety of
factors may call for due appraisal in each case that presents
itself. Thus, the institution may be strictly a private concern as
tested by the local law, conducting its affairs, however, chiefly
for the benefit and possibly under the direction of, the territorial
sovereign. Again, it may be wholly or for the most part owned
by that sovereign. The depositors may be both private
individuals and public agencies of the State within whose
domain it operates. (Emphasis supplied.)
And Mr. Feilchenfeld (International Economic Law of Belligerent
Occupation, pages 96-104), mentions under paragraph 357 both the
Bank of France in 1870 and 1871 and the Bank of Belgium from
1914-1918 as having been treated as private institutions (and
consequently protected under those provisions of the Hague
Regulations enjoining respect for private property).
This author says:
357. The treatment of central banks has been controversial.
State practice is not available on all types of central banks.
However, both the Bank of France in 1870 and 1871 and the
Bank of Belgium from 1914 to 1918 were treated as
private institutions. (Emphasis supplied.)
Even Germany, the senior partner of Japan in World War II, before
the Bank of Taiwan attempted the so-called liquidation here in
question, had, by previous acts, recognized the unlawfulness of such
a procedure. In his work, Feilchenfeld makes reference to the fact
that the seizure of the assets of the local branch of the Bank of
doing so, was the provision in our constitution against the impairment
of the obligation of contracts; and this being a provision based upon
natural justice, equity, and reason, so much so that the Japanese
Government could not help approving its inclusion in the constitution
of the puppet Republic that it established here during the occupation
(Article VII, section 4 thereof), and considering that such impairment
would inevitably entail the obliteration of property rights (in the
present case to the tune of P34,311,330.14 in good Philippine
money), it was against "the principles of the law of nations, as they
result from the usages established among civilized peoples, . . . the
laws of humanity, and the dictates of the public conscience"
(Preamble, The Hague Regulations), to impair the obligation of said
contracts.
In a genuine bank liquidation the liquidator simply exercises in the
collection of the credits the rights of the creditor bank, and in the
payment of the debts simply fulfills the obligations of the same bank
to its depositors or creditors, under its existing contracts with the
other parties to the transactions involved. The liquidator does not
possess the power to in any manner change, alter or modify, much
less nullify, such rights or obligations. This is self-evident. So that if
under the existing contract the bank has the right to be paid in
genuine Philippine money because that was the money that it loaned
to its debtor, and because the law so directs, the liquidator has no
power to alter the bank's rights in this regard. The circumstance that
the liquidator is an agent of an occupation army does not matter.
Conversely, under such a contract the creditor bank or the liquidator,
would not have had the right to demand payment in any other
currency than the Philippine peso, the Japanese occupation
notwithstanding. When the debt was contracted in the case at bar, a
promissory note was executed and delivered by the debtor and there
the amount contracted for was stated to be in pesos.
In the case of Thorington vs. Smith, 8 Wall. (U. S.) 1, 11-12; 19 Law.
ed., 361, 364, the Supreme Court of the United States, inter alia,
held:
It is quite clear that a contract to pay dollars, made between
citizens of any State of the Union, while maintaining its
constitutional relations with the National Government, is a
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As this court often has held, the laws in force at the time and
place of the making of a contract, and which affect its validity,
performance, and enforcement, enter into and form a part of it,
as if they were expressly referred to or incorporated in its terms.
Von Hoffman vs. Quincy, 4 Wall., 535. 550; 18 Law. ed., 408,
409; Walker vs. Whitehead, 16 Wall., 314, 317; 21 Law. ed.,
357, 358; Edwards vs. Kearzey, 96 U. S., 595, 601; 24 Law.
ed., 793, 796.
Now, what was the obligation of the contract between the debtor and
the creditor in the instant case? It was constituted not only by what
they undertook and promised in their written agreement, particularly
as regards the currency in which the debt was to be paid, but also by
the applicable legal provisions existing at the time of the making of
said agreement, and at the place of the making thereof and where the
payment of the debt was to be performed. The particular legal
provisions so applicable have also been cited elsewhere in this
opinion.
The case of Walker vs. Whitehead, 16 Wall. (U. S.), 314, 317; 21
Law. ed., 357, 358, and the case therein cited afford instances of
impairment of the obligations of contracts applicable herein. Said the
court:
As this court often has held, the laws in force at the time and
place of the making of a contract, and which affect its validity,
performance, and enforcement, enter into and form a part of it,
as if they were expressly referred to or incorporated in its terms.
Von Hoffman vs. Quincy, Wall., 535, 550; 18 Law. ed., 408, 409;
Walker vs. Whitehead, 16 Wall., 314, 317; 21 Law. ed., 357,
358; Edwards vs. Kearzey, 96 U. S., 595, 601; 24 Law. ed.,
793, 796. (Northern Pacific Railroad Co. vs. Wall., 241 U. S.,
87; 60 Law. ed., 905, 907.)
It is also settled that the laws which subsist at the time and
place of the making of a contract, and where it is to be
performed, enter into and form a part of it, as if they were
expressly referred to or incorporated in its terms. This principle
embraces alike those which affect its validity, construction,
discharge, and enforcement. Illustrations of this proposition are
months thereafter, but only when the Japanese military notes became
practically worthless. And did they pay at those later dates in
Japanese military notes because they were told by the Japanese
military or civil authorities to pay in that specific currency? No. But
they perhaps will say that they did so because, again, the military
notes were the only ones to be had, and they were afraid that if they
did not pay, any of the following consequences might be fall them:
(1) That they might be punished with death (although
Administrative Ordinance No. 11 contains no such threat).
(2) That they might be tortured (neither did the ordinance
contain this threat).
(3) that their mortgaged properties securing their debts might
before closed upon (the ordinance did contain this sanction).
Not only by positive legal provisions but by the eternal principles of
natural justice and equity, in the absence of an express stipulation to
the contrary, a debtor has the obligation to repay his debt in the same
currency that he borrowed. This is right, just, and fair for both parties
the creditor will not be entitled to required payment in a more
valuable currency, while the debtor will not be allowed to pay in a less
valuable one. This certainly was the situation between Haw Pia and
the China Banking Corporation under their contract in question when
the Japanese came. Did the Japanese occupant, even under his
powers pursuant to international law, firstly as codified in the Hague
Regulations, and secondarily by the general usage of modern
civilized nations existing at the time of the adoption of said
Regulations, have the power to alter those substantive rights and
obligations of the parties? Most assuredly not. With all the present
and potential atomic strength of the United States, with all the great
army of Russia, with all the former powerful war machine of Japan or
of Germany, none of these nations in the realm of law and justice
could have pretended the right to wipe out such contractual rights and
obligations which might exist in territories which might happen to
have been occupied by their armies during the war. That by sheer
military force any of them could have physically forced the inhabitants
of such occupied territories to do acts in relation to their pre-existing
contracts, is admitted; but that is in the realm of physical force. This
attention, and none can be found in all the volumes of the Official
Journal of said Administration, that discontinued these particular
provisions of our civil law and constitution. Certainly, no military
reason or exigency could have required such a determination.
We have already quoted from Walker vs. Whitehead, supra (pp. 4243 of this opinion). But in this connection would repeat the following
passages therefrom upon the particular subject of impairment of
contractual obligations:
Nothing is more material to the obligation of a contract than the
means of its enforcement. The ideas of validity and remedy are
inseparable, and both are parts of the obligation which is
guaranteed by the constitution against impairment;
The obligation of a contract "is the law which binds the parties
to perform their agreement";
Any impairment of the obligation of a contract, the degree of
impairment is immaterial, is within the prohibition of the
constitution.
And if we force the creditor, who has loaned good Philippine money,
to receive in payment depreciated or worthless Japanese military
notes, are we not changing "the means of enforcement" of his
contract? What is the enforcement of a contract of loan if it is not the
collection of what has been loaned?
In Hepburn vs. Griswald, 8 Wall. (U.S.), 603; 19 Law. ed., 513, 521,
the United States Supreme Court held:
Now, it certainly needs no argument to prove that an Act,
compelling acceptance in satisfaction of anything other than the
stipulated payment, alters arbitrarily the terms of the contract
and impairs its obligations, and that the extent of impairment is
in the proportion of the inequality of the payment accepted
under the constraint of the law to the payment due under the
contract. Nor does it need argument to prove that the practical
operation of such an act is contrary to justice and equity . . .
declare the notorious Japanese military notes legal tender during the
occupation, we must warm ourselves of the far-reaching
consequences to be expected. To mention just one instance, there is
the Philippine National Bank fully 90 per cent of whose prewar
investments, according to reliable information, were paid with those
military notes during the occupation, and they total hundreds of
millions of pesos, according to that information. Besides, what shall
we say of the hundreds of millions of pesos in the same war notes
deposited with the same bank during the occupation? If we declare
these notes legal tender, what will happen to our national bank? And
what will happen to the economic life of this ravaged country? If this
bank were to lose 90 per cent of its pre-war investments, totalling
hundreds of millions of pesos, and to pay in good sound Philippine
money other hundreds of millions of pesos of deposits made in that
Japanese military currency, it will be instantly plunged into utter ruin
and bankruptcy and still leave an enormous amount of unpaid
obligations after its total destruction.
In this connection, the writer would propose that we take the
precautionary step of requiring definite information from the bank
itself. Under Rule 123, section 5, we have judicial notice, among
other matters, of those which "are capable of unquestionable
demonstration." The amount paid to the bank in Japanese military
notes during the Japanese occupation to satisfy prewar debts is
capable of unquestionable demonstration because it appears in the
books of the bank. Hence, we can take judicial notice thereof, and in
accordance with the same rule and section, we may receive evidence
upon the same subject when we shall find it necessary for our own
information, and we may resort for our aid to the books or documents
of the bank, in which connection it is believed that the court would be
satisfied with a mere certification from the proper bank official as to
the total of such payments. In this way, if we must declare those
military notes legal tender and thus bring about the complete ruin and
destruction of the chief local banking agency for the economic
rehabilitation of our people, the official depository of our government's
funds, and the majority of whose capital and assets belong to our
government, let us do it with full knowledge of the facts. If we must
expose ourselves to the grave danger of going down in history as the
authors of such of tremendous collapse in the economic life of our
people just as they were struggling to rise from their financial
the enemy's pressure and duress, would necessarily be null and void.
(Civil Code, arts. 1265, 1267, 1268.) If they were legal tender, the
hundreds of millions of pesos in Japanese military notes deposited
during the occupation in the Philippine National Bank, for instance,
would be valid and would now be payable in genuine money of this
country. Then will that bank, and others similarly situated, be hurled
into utter bankruptcy and ruin. In a case, which at best is doubtful, I
decline to be among the authors of such an economic catastrophe.
6. Allies, including the Commonwealth of the Philippines, through
their political departments reserved the right to assert nullity of illegal
acts of Axis occupant court bound to respect and enforce their
declarations.
On July 10-12, 1943, an International Law Conference was held in
London in which some of the most prominent international law jurists
of today with experience in two world wars participated. They issued
certain declarations and passed certain resolutions. Among their
declarations which are pertinent here, because what applies to the
Germans equally applies to the Japanese, were the following:
Nothing has been more devastating to the National economy of
occupied countries than this form of looting to which not even
the faintest allusion is made in the Regulations, it being a new
device entirely out of keeping with the assumptions of the basis
of that document. The inflationary measures serve at the time
the coordination of the monetary system of the occupied
country with that of Germany (already heavily inflated) and the
exploitation for the benefit of central Reich authorities of the
available resources of the occupied territories; they enter thus
into a system of policy and government which is on another
plane altogether than that of belligerent occupation. Under the
Hargue Convention IV, belligerents who transgress the
regulations have to pay damages; but the very subtlety of the
destruction, thus wrought is such as to defy ordinary attempt at
assessing damages, altogether apart from the fact that no
payment of money damages can repair the social and national
damage suffered. The bank notes themselves which were
carried to a third country during the occupation and are still
located in a third country at the end of the occupation are in
It has always been foreseen that when the tide of battle began
to turn against the Axis the campaign of plunder would be even
further extended and accelerated and that every effort would be
made to stow away the stolen property in neutral countries and
to persuade neutral citizens to act as fences or cloaks on behalf
of the thieves.
There is evidence that this is now happening, under the
pressure of events in Russia and North Africa, and that the
ruthless and complete methods of plunder begun in Central
Europe are now being extended on a vast and ever-increasing
scale in the occupied territories of Western Europe. (All this
language is applicable to the Japanese methods throughout the
Far Eastern Territories they occupied.)
His Majesty's Government agrees with the Allied Governments
and the French National Committee that it is important to leave
no doubt whatsoever of their resolution not to accept or tolerate
the misdeeds of their enemies in the field of property, however
these may be cloaked, just as they have recently emphasized
their determination to exact retribution from war criminals for
their outrages against persons in the occupied territories.
Accordingly they have made the following joint Declaration and
issued the appended explanatory memorandum on its meaning,
scope and application:
DECLARATION
The Governments of the Union of South Africa, the United
States of America, Australia, Belgium, Canada, China, the
Czechoslavak Republic, the United Kingdom of Great of Britain
and Northern Ireland, the Union of Soviet Socialist Republics,
Greece, India, Luxemburg, the Netherlands, New Zealand,
Norway, Poland, Yugoslavia and the French National
Committee,
Hereby issue a formal warning to all concerned, and in
particular to persons in neutral countries, that they intend to do
their utmost to defeat the methods of dispossession practiced
by the governments with which they are at war against the
511; Kennel vs. Chambers, 14 How., 38; Foster vs. Neilson, 2 Pet.,
209; Nabod of Carnatio vs. East Ind. Co. Ves. Jr. 60; Lucer vs.
Barbon, 7 How., 1; R. I. vs. Mass., 12 Pet., 714.)
In accordance with the foregoing doctrine this Court is bound by the
determination of the political department of the Commonwealth
Government, through President Quezon and his exile cabinet, in
adhering to the London Declaration, and to enforce what was there
announced in respect to declaring invalid, among other things,
anydealings by the governments with the Allies were at war with
"property rights and interests of any description whatsoever which
are, or have been situated in the territories which have come under
the occupation or control,direct or indirect of said governments
or which belong or have belonged, to persons, including juridical
persons, residing in such territories." (Emphasis supplied.) This Court
is bound by the determination of said political department of our
government announcement in the same declaration that the warning
therein contained "applies whether such transfers or dealings have
taken the form of open looting or plunder, or of transactions
apparently legal in form, even when they purport to be voluntarily
effected."
There can be not doubt that the pretended liquidation of the above
mentioned alien banks under Administrative Ordinance No. 11 by the
Taiwan Bank, as an agency of the Japanese Army, or Military
Administration, comes squarely under the condemnation of the above
quoted London Declaration, and, therefore, the condemnation of the
political department of our own government then in exile in
Washington. Will this Court go against that declaration? Have we the
right to declare that President Quezon, as head of the political
department of our government, did not have the power to bind us in
this matter of the peculiar province of his department? Is the judiciary,
through its highest court, going to break one of the most fundamental
and best settled principles of republican government, and overthrow
and nullify this most solemn decision of another coordinate branch
upon a matter within its legitimate sphere? Shall we say that the
Japanese were right, and President Quezon was wrong? And be it
not forgotten that if this Court should so resolve, it would in effect be
taking such an unprecedented course in an effort to uphold the
validity of one of the most iniquitous acts of the worst despot that ever
swayed this innocent country.
7. The acts of the Japanese military and civil authorities in the issue
of their military notes, and the pretended liquidation of said alien
banks were of political complexion.
In Peralta vs. Director of Prisons, 42 Official Gazette, 198, 210-211,
this Court held that the crimes penalized by Act NO. 65 (of the
occupation regime), those penalized by Ordinance No. 7 (of the same
regime), and certain other offenses therein specified, "are all of a
political complexion, because the acts constituting those offenses
were punished, as are all political offenses, for public rather than
private reasons, and were acts in aid or favor of the enemy and
directed against the welfare, safety and security of the belligerent
occupant."
The reason and purpose which motivated the issue of those military
notes are declared by the Commander in Chief of the Imperial
Japanese Forces in this proclamation of January 3, 1942, supra,
thus:
The Imperial Japanese Army, in the occupied areas, will use the
ware-notes (military pass-money) endorsed and issued by the
Imperial Japanese Government. . . .
That reason and that purpose were public, par excellence, in
character, for the support, welfare and security of said army was
the public interest and concern of the Japanese Empire. The military
notes were not issued for the privatebenefit of the persons serving as
officers and men in that army.
The majority opinion in the same Peralta cause proceeds to declare
(p. 213):
We have already held in or recent decision in the case of Co
Kim Cham vs. Valdez Tan Keh, supra, that all judgments of
political complexion of the courts during the Japanese regime,
ceased to be valid upon the reoccupation of the Islands by
virtue of the principle or right of postliminium. Applying that
doctrine to the present case, the sentence which convicted the
xxx
xxx
Without the consent of the alien banks here spoken of, therefore
and that consent was never given no partial payment, even in
genuine Philippine money, could be validly applied to them by the
pretended liquidator. Now, if those Japanese military notes were not
legal tender, no one seems to deny that said notes, at least from
January, 1943, to January, 1945, were increasingly lower in value
than the lawful money of the Philippines: it resulting that, computed
under the Ballantyne schedule, by January, 1945, the face value of
P34,311,330.14 of the military notes paid to the Taiwan Bank, was
only equivalent to P16,119,305.78 in Philippine currency. (Amici
curiae Dewitt, Perkins & Ponce Enrile's printed memorandum, page
5.) In other words, in terms of Philippine currency, less than half of
the total credits was paid, even giving the military notes the
Ballantyne schedule values in the respective years. This would be at
best a partial payment which the creditor banks would at any rate not
be compellable to receive, pursuant to article 1169 of the Civil Code,
for certainly there was no stipulation in their contracts authorizing the
debtors to pay in Japanese military notes, and for these to be
computed in terms of Philippine money under a schedule still
undevised, and even unforeseen, when said contracts were made.
But this is not all; in the instant case Haw Pia's own counsel in the
lower court stated at the hearing that his client twice demanded from
the Taiwan Bank the release of the mortgage, but the said bank
refused it in both instances (t.s.n. 5). On pages 7-8 of the same
transcript said counsel admitted that the Bank of Taiwan took
possession of the China Banking Corporation and became liquidator
without the consent of the latter bank, which was only forced by the
Japanese Military Forces. Nobody pretends now that the so-called
liquidation reached the net result, the final balance. And we all seem
to agree that the banks have not received any amount from the
"liquidator." Neither is it asserted that they were ever notified by it of
any debit balance against them.
If the Taiwan Bank was not authorized to receive the payment in the
name of the alien banks, it was void, and it would have been void
even if payment had been made with Philippine money.
But in behalf of Haw Pia article 1164 of the Civil Code is invoked. It
stipulates:
ART. 1164. A payment made in good faith to the person in
possession of the credit shall release the debtor.
At the same time, also in her behalf, the following is quoted (amicus
curiae's memorandum page 60) from the pertinent commentaries of
Manresa:
Partiendo de esas bases y de que la buena fe se presume
siempre, seran obstaculos que impediran tal prresuncion los
que demuestran el conomcimiento por el deudor de los vicious
de la posesion, y aun cuando su buena fe no pueda
contradeirse, no hara eficaz el pago si falta tal posesion
verdad, V. gr., si ha cometido la ligereza de pagar a quien solo
ostenta el documento de un credito, cuya transmision necesita,
cuando menos, el endoso u otro requisito cuya existencia no
conste. (8 Manresa, Codigo Civil, pp. 274-275.)
It is not hard to demonstrate that the pretended validity of the
payment made by Haw Pia to the Taiwan Bank cannot be founded
upon either the article or the commentary. Both require good faith on
the part of the debtor, and the commentary adds that the payment will
not be valid if the debtor "ha cometido la ligereza de pagar a quien
solo ostenta el documento de un credito, cuya transmision necesita,
cuando menos, el endoso u otro requisito cuya existencia no conste."
We all know that no indorsement or other form of assignment of the
credits in question is asserted to have been made to the Taiwan
Bank.
Were the payments made in good faith? Most assuredly not. Not
alone by the precepts of positive law, but by the most rudimentary
principles of natural justice ingrained in the good conscience of man,
it is not good faith, it is notfair, it is not right, for a debtor, who before
the war solicited and received a loan in good, sound Philippine
Pesos, to pay it with the depreciated and ultimately worthless war
and contend that she has been discharge thereby, she becomes a
"particeps criminis."
It would aid in solving the problem now confronting us, to pose this
question: If the situation were reversed, and the instant debtors were
the creditors and the present creditors the debtors, how would the
former like it if the latter were to claim discharge under identical
circumstances?
One who assists another in any manner in carrying out a
fraudulent purpose is a "particeps criminis." It is utterly
immaterial what means he resorts to. If he invokes and adopts
them, to aid in the perpetration of a fraud, he forfeits thereby
the countenance of the law, and is a joint tort feasor.
(Alberger vs. White, 23 S. W., 92, 96; 117 Mo., 347; emphasis
supplied; 6 Words and Phrases, First Series, p. 5185.)
But more than this, the law rightly extends still a wider protection over
the innocent creditor. As held by this Court, through Chief Justice
Arellano, in Panganiban vs. Cuevas, 7 Phil., 477, 485:
The payment made by Panganiban to the revolutionary
government of the 1,300 pesos which he should have paid to
Francisco Gonzalez in order to redeem the property, could not
have extinguished the obligation incurred by him in favor of the
latter. The Supreme Court of Spain, in a judgment rendered on
the 28th of February, 1896, said: "The payment of the debt in
order to extinguish the obligation must be made to the person
or persons in whose favor in was incurred or to his or their duly
authorized agent. It follows, therefore, that the payment made
to a third person, even through error and in good faith, shall not
release the debtor of the obligation to pay and will not deprive
the creditor of his right to demand payment. It is becomes
impossible to recover what was unduly paid, any loss resulting
therefrom shall be borne by the deceived debtor, who is the
only one responsible for his own acts unless there is a
stipulation to the contrary or unless the creditor himself is
responsible for the wrongful payment."
10. Equities of the Case Question of Conscience.
fraudulently, illegally and inequitably: and this Court is not here to aid
them.
Granting that neither party is to be blamed for the acts of the
Japanese, the fact remains that it was the debtors who were illegally
ordered to pay, they were the victims of the illegal order, and while
they thereby acquired the right to lay a claim against the guilty party,
they certainly are not authorized to visit the consequences upon the
innocent creditors. So far as these were concerned, their
responsibilities officials were in the concentration camp, and under
the law so long as they were not legally paid, and their rights have not
prescribed, they would always preserve their credits.
During the deliberation the following example was given: During the
occupation the Japanese took away one of the two telephone
apparatus which a Filipino had in his house, rented from the
Telephone Co. It was pointed out that the one who suffered the
damage was the Filipino, for having been deprived of the use of the
apparatus, and not the company. In the first place, while the Filipino
was prejudiced in that way, the company was also prejudiced by
being thus deprived of its property. In the second place, the
apparatus was a material thing capable of physical appropriation and
removal, whereby the Filipino was effectively deprived of its use.
Whereas in the case of the debts here in question, they are intangible
things, incorporeal rights, incapable of physically being taken
possession of andwrested from the creditors. All that the Japanese
and the debtors did with respect to them were absolutely vain and
futile to take away those incorporeal rights from the creditors. Thus in
Williams vs. Bruffy, 96 U.S., 176; 24 law. ed., 716, it was said:
. . . Parties in the insurrectionary territory, having property in
their possession as trustees or bailees of loyal citizens, may in
some instances have had such property taken from them by
force; and in that event they may, perhaps, be released from
liability. Their release will depend upon the same principles
which control in ordinary cases of violence by an unlawful
combination too powerful to be successfully resisted.
But, debts not being tangible things subject to physical seizure
and removal, the debtors cannot claim release from liability to
evidence of this fact. The amici curiae, speaking for the banks, now
affirm that pursuant to article 1163 of the Civil Code those
withdrawals by depositors or payments to creditors would only be
valid against the banks in so far as they may have been beneficial to
the latter. Commenting on the same article, Manresa has the
following to say:
Pago hecho a un tercero. Este pago puede revestir
diferentes formas, de las cuales dependera su mayor o
menoreficacia.
El supuesto de que expresamente se ocupa el Codigo en este
lugar, por se el que mayores dificultades pude ofreceer, es el
de que se pague a un tercero en favor del cual nada se
hubiese estipulado, no al cual se hubiese designado en la
obligacion, ni autorizado con posteridad para recibir el pago de
aquella. Refiriendose a tal supuesto, exige el Codigo como
condicion de validez apar el pago, y fija como medida de la
eficacia de este, el mismo requisto que en el parrafo y caso
anterior del propio articulo deja establecido; lautilidad de pago
par el acreedor. Con motivo de esto y refiriendose a la prueba
de tal utilidad, repetimos lo que antes hemos dicho: que esa
pureba incumbe al deudor que pago, y en este caso con motivo
mas poderoso aun que en el anterior porque la utilidad para el
acreedor de un pago hecho a tercera persona es tan dificil, que
no puede presumirse, y necesita una prueba cumplida de parte
de aquel a quien su demonstracion ha de aprovechar.
(Emphasis supplied.)
Applying the article and the commentaries to the instant case, the
third person would be the Taiwan Bank, and the measure of the
validity or efficacy of the payment as against the banks would be the
benefit or utility which they might have meant to them, and that is not
other than the face value of the amount in Japanese military notes
which might have been voluntarily withdrawn by the depositors
or voluntarily received by the creditors from the Taiwan Bank and
which the latter, as a sort of negotiorum gestor, paid out to them. But
this falls far short of constituting necessitates the exercise of the will
of the party ratifying, while the provisions of Article 1163 of the Code
DIGEST:
Haw Pia vs China Banking Corp.
NOVEMBER 4, 2014 | KAAARINA
Haw Pia vs China Banking Corp.
G.R. No. L-554 April 9, 1948
Facts:
Plaintiff-appellants indebtedness to the defendant-appellee China
Banking Corporation in the sum of P5,103.35 by way of overdraft in
current account payable on demand together with its interests, has
been completely paid, on different occasions to the defendant Bank
China Banking Corporation through the defendant Bank of Taiwan,
Ltd., that was appointed by the Japanese Military authorities as
liquidator of the China Banking Corporation.
The trial court held that, as there was no evidence presented to show
that the defendant Bank had authorized the Bank of Taiwan, Ltd., to
accept the payment of the plaintiffs debt to the said defendant, and
said Bank of Taiwan, as an agency of the Japanese invading army,
was not authorized under the international law to liquidate the
business of the China Banking Corporation, the payment has not
extinguished the indebtedness of the plaintiff to the said defendant
under Article 1162 of the Civil Code.
Issues:
Held:
YES.
1. The military commission was lawfully created in conformity with an
act of Congress sanctioning the creation of such tribunals.
2. The laws of war imposes upon a commander the duty to take any
appropriate measures within his powers to control the troops under
his command to prevent acts which constitute violation of the laws of
war. Hence, petitioner could be legitimately charged with personal
responsibility arising from his failure to take such measure. In this
regard the SC invoked Art. 1 of the Hague Convention No. IV of 1907,
as well as Art. 19 of Hague Convention No. X, Art. 26 of 1929 Geneva
Convention
among
others.
3. Habeas corpus is untenable since the petitioner merely sought for
restoration to his former status as prisoner of war and not a discharge
from confinement. This is a matter of military measure and not within
the
jurisdiction
of
the
courts.
4. The petition for prohibition against the respondent will also not life
since the military commission is not made a party respondent in the
case. As such, no order may be issued requiring it to refrain from
trying the petitioner.
OTHER:
Yamashita v. Styer
Court
Case number
Decision title
Judgment
Decision date
4 February 1946
Parties
Tomoyuki Yamashita
Other names
Categories
War crimes
Keywords
Links
Judgment
Other countries
involved
back to top
Philippines
In re Yamashita
Summary
At the end of the Second World War, Tomoyuki Yamashita was a
Commander in the Japanese Army serving in the Philippines. His
troops were allegedly responsible for killing, torturing and raping
thousands of civilians.
On 3 September 1945, Yamashita surrendered to the United States
army. A US military commission tried him for violations of the laws of
war. Yamashita was charged with having failed to perform his duties
as an army commander to control the operations of his troops, thus
permitting them to commit atrocities. He was convicted and
sentenced to death by hanging.
Yamashita appealed at the US Supreme Court, because the military
commission had lacked many procedural and evidential protections.
The Supreme Court denied this appeal. The Supreme Court ruled
that even if Yamashita did not know about the crimes committed by
his subordinates, because of his position as a superior, he should
have known. Yamashita was executed on 23 February 1946.
The outcome of this case has been much debated and criticised,
because of the claimed lack of evidence and the should have known
criteria as described by the Supreme Court.
back to top
Procedural history
On 3 September 1945, the accused surrendered to the United States
Army and became a prisoner of war. The accused was a former
Commanding General of the Fourteenth Army Group of the Imperial
Japanese Army in the Philippines.
A military commission was appointed by General Styer in order to try
the accused for a violation of the laws of war.
On 8 October 1945, the accused was held for trial before a military
commission of five Army officers appointed by order of General Styer.
The accused had allegedly failed in his duty as an army commander
to control the operations of his troops, permitting them to commit
specified atrocities against the civilian population and prisoners of
war. Yamashita was found guilty and sentenced to death by hanging
on 7 December 1945.
Yamashita addressed the Supreme Court of the Philippines for a writ
of habeas corpus, but this was denied on jurisdictional grounds.
He then lastly addressed the United States Supreme Court a petition
for habeas corpus, which is the current decision.
back to top
Related developments
Yamashita was executed on 23 February 1946.
The Yamashita case set a precedent for command responsibility:
The modern legal standard governing the doctrine of command
responsibility in the United States rests upon the precedent
established by the United States Supreme Court in the case of
General Tomoyuki Yamashita. The Court's holding has become
known as the "Yamashita Standard" (A.E. Mahle, 'The Yamashita
Standard', PBS).
back to top
Legally relevant facts
The petition for habeas corpus by the accused alleged that the
detention of the petitioner for the purpose of the trial was unlawful for
several reasons:
DIGEST:
Yamashita vs Styer
NOVEMBER 4, 2014 | KAAARINA
Yamashita vs Styer
G.R. No. L-129 December 19, 1945
Facts:
Petitioner Tomoyuki Yamashita, the commanding general of the 14th
army group of the Japanese Imperial Army in the Philippines, after his
surrender became a prisoner of war of the United States of America
but was later removed from such status and placed in confinement as
an accused war criminal charged before an American Military
Commission constituted by respondent Lieutenant General Styer,
Commanding General of the United States Army Forces, Western
Pacific.
8.) In re Yamashita
327 U.S. 1 (1946)
Annotate this Case
Syllabus
Case
(a) That the military commission which tried and convicted petitioner
was not lawfully created, and that no military commission to try
petitioner for violations of the law of war could lawfully be convened
after the cessation of hostilities between the armed forces of the
United States and Japan;
(b) that the charge preferred against petitioner fails to charge him with
a violation of the law of war;
(c) that the commission was without authority and jurisdiction to try
and convict petitioner, because the order governing the procedure of
the commission permitted the admission in evidence of depositions,
affidavits, and hearsay and opinion evidence, and because the
commission's rulings admitting such evidence were in violation of the
25th and 38th Articles of War (10 U.S.C. 1496, 1509) and the
Geneva Convention (47 Stat. 2021), and deprived petitioner of a fair
trial in violation of the due process clause of the Fifth Amendment;
(d) that the commission was without authority and jurisdiction in the
premises because of the failure to give advance notice of petitioner's
trial to the neutral power representing the interests of Japan as a
belligerent as required by Article 60 of the Geneva Convention, 47
Stat. 2021, 2051.
On the same grounds, the petitions for writs of prohibition set up that
the commission is without authority to proceed with the trial.
The Supreme Court of the Philippine Islands, after hearing argument,
denied the petition for habeas corpus presented to it on the ground,
among others, that its jurisdiction was limited to an inquiry as to the
jurisdiction of the commission to place petitioner on trial for the
offense charged, and that the commission, being validly constituted
Page 327 U. S. 7
by the order of General Styer, had jurisdiction over the person of
petitioner and over the trial for the offense charged.
not two. But they sanctioned the use of that one for the trial of two
classes of persons, to one of which the Articles do, and to the other of
which they do not, apply in such trials. Being of this latter class,
petitioner cannot claim the benefits of the Articles, which are
applicable only to the members of the other class. Petitioner, an
enemy combatant, is therefore not a person made subject to the
Articles of War by Article 2, and the military commission before which
he was tried, though sanctioned, and its jurisdiction saved, by Article
15, was not convened by virtue of the Articles of War, but pursuant to
the common law of war. It follows that the Articles of War, including
Articles 25 and 38, were not applicable to petitioner's trial, and
imposed no restrictions upon the procedure to be followed. The
Articles left the control over the procedure in such a case where it
had previously been -- with the military command.
Petitioner further urges that, by virtue of Article 63 of the Geneva
Convention of 1929, 47 Stat. 2052, he is entitled to the benefits
afforded by the 25th and 38th Articles of War to members of our own
forces. Article 63 provides:
"Sentence may be pronounced against a prisoner of war
Page 327 U. S. 21
only by the same courts and according to the same procedure as in
the case of persons belonging to the armed forces of the detaining
Power."
Since petitioner is a prisoner of war, and as the 25th and 38th Articles
of War apply to the trial of any person in our own armed forces, it is
said that Article 63 requires them to be applied in the trial of
petitioner. But we think examination of Article 63 in its setting in the
Convention plainly shows that it refers to sentence "pronounced
against a prisoner of war" for an offense committed while a prisoner
of war, and not for a violation of the law of war committed while a
combatant.
Page 327 U. S. 24
For reasons already stated, we conclude that Article 60 of the
Geneva Convention, which appears in part 3, Chapter 3, Section V,
Title III of the Geneva Convention, applies only to persons who are
subjected to judicial proceedings for offenses committed while
prisoners of war. [Footnote 10]
Page 327 U. S. 25
It thus appears that the order convening the commission was a lawful
order, that the commission was lawfully constituted, that petitioner
was charged with violation of the law of war, and that the commission
had authority to proceed with the trial, and, in doing so, did not violate
any military, statutory, or constitutional command. We have
considered, but find it unnecessary to discuss, other contentions
which we find to be without merit. We therefore conclude that the
detention of petitioner for trial and his detention upon his conviction,
subject to the prescribed review by the military authorities, were
lawful, and that the petition for certiorari, and leave to file in this Court
Page 327 U. S. 26
petitions for writs of habeas corpus and prohibition should be, and
they are
Denied.
MR. JUSTICE JACKSON took no part in the consideration or
decision of these cases.
* Together with No. 672, Yamashita v. Styer, Commanding
General, on petition for writ of certiorari to the Supreme Court of the
the Philippines. For earlier orders in these cases, see 326 U.S. 693694.
[Footnote 1]
the use of the writ of habeas corpus: (1) whether the military
commission was lawfully created and had authority to try and to
convict the accused of a war crime; (2) whether the charge against
the accused stated a violation of the laws of war; (3) whether the
commission, in admitting certain evidence, violated any law or military
command defining the commission's authority in that respect, and (4)
whether the commission lacked jurisdiction because of a failure to
give advance notice to the protecting power as required by treaty or
convention.
The Court, in my judgment, demonstrates conclusively that the
military commission was lawfully created in this instance, and that
petitioner could not object to its power to try him for a recognized war
crime. Without pausing here to discuss the third and fourth issues,
however, I find it impossible to agree that the charge against the
petitioner stated a recognized violation of the laws of war.
It is important, in the first place, to appreciate the background of
events preceding this trial. From October 9, 1944, to September 2,
1945, the petitioner was the Commanding General of the 14th Army
Group of the Imperial Japanese Army, with headquarters in the
Philippines. The reconquest of the Philippines by the armed forces of
the United States began approximately at the time when
Page 327 U. S. 32
the petitioner assumed this command. Combined with a great and
decisive sea battle, an invasion was made on the island of Leyte on
October 20, 1944.
"In the six days of the great naval action, the Japanese position in the
Philippines had become extremely critical. Most of the serviceable
elements of the Japanese Navy had become committed to the battle,
with disastrous results. The strike had miscarried, and General
MacArthur's land wedge was firmly implanted in the vulnerable flank
of the enemy. . . . There were 260,000 Japanese troops scattered
over the Philippines, but most of them might as well have been on the
other side of the world so far as the enemy's ability to shift them to
meet the American thrusts was concerned. If General MacArthur
succeeded in establishing himself in the Visayas, where he could
stage, exploit, and spread under cover of overwhelming naval and air
superiority, nothing could prevent him from overrunning the
Philippines."
Biennial Report of the Chief of Staff of the United States Army, July 1,
1943, to June 30, 1945, to the Secretary of War, p. 74.
By the end of 1944, the island of Leyte was largely in American
hands. And on January 9, 1945, the island of Luzon was invaded.
"Yamashita's inability to cope with General MacArthur's swift moves,
his desired reaction to the deception measures, the guerrillas, and
General Kenney's aircraft, combined to place the Japanese in an
impossible situation. The enemy was forced into a piecemeal
commitment of his troops."
Ibid., p. 78. It was at this time and place that most of the alleged
atrocities took place. Organized resistance around Manila ceased on
February 23. Repeated land and air assaults pulverized the enemy,
and, within a few months, there was little left of petitioner's command
except a few remnants which had gathered for a last stand among
the precipitous mountains.
As the military commission here noted,
"The Defense established the difficulties faced by the Accused with
respect
Page 327 U. S. 33
not only to the swift and overpowering advance of American forces,
but also to the errors of his predecessors, weaknesses in
organization, equipment, supply, with especial reference to food and
gasoline, training, communication, discipline, and morale of his
troops. It was alleged that the sudden assignment of Naval and Air
Forces to his tactical command presented almost insurmountable
difficulties. This situation was followed, the Defense contended, by
failure to obey his orders to withdraw troops from Manila, and the
subsequent massacre of unarmed civilians, particularly by Naval
forces. Prior to the Luzon Campaign, Naval forces had reported to a
separate ministry in the Japanese Government, and Naval
Commanders may not have been receptive or experienced in this
instance with respect to a joint land operation under a single
commander who was designated from the Army Service."
The day of final reckoning for the enemy arrived in August, 1945. On
September 3, the petitioner surrendered to the United States Army at
Baguio, Luzon. He immediately became a prisoner of war, and was
interned in prison in conformity with the rules of international law. On
September 25, approximately three weeks after surrendering, he was
served with the charge in issue in this case. Upon service of the
charge, he was removed from the status of a prisoner of war and
placed in confinement as an accused war criminal. Arraignment
followed on October 8 before a military commission specially
appointed for the case. Petitioner pleaded not guilty. He was also
served on that day with a bill of particulars alleging 64 crimes by
troops under his command. A supplemental bill alleging 59 more
crimes by his troops was filed on October 29, the same day that the
trial began. No continuance was allowed for preparation of a defense
as to the supplemental bill. The trial continued uninterrupted until
December 5, 1945. On December 7 petitioner was found guilty as
charged, and was sentenced to be hanged.
Page 327 U. S. 34
The petitioner was accused of having
"unlawfully disregarded and failed to discharge his duty as
commander to control the operations of the members of his
Page 327 U. S. 35
condoned any of them. We will assume that they must have resulted
from your inefficiency and negligence as a commander. In short, we
charge you with the crime of inefficiency in controlling your troops.
We will judge the discharge of your duties by the disorganization
which we ourselves created in large part. Our standards of judgment
are whatever we wish to make them."
Nothing in all history or in international law, at least as far as I am
aware, justifies such a charge against a fallen commander of a
defeated force. To use the very inefficiency and disorganization
created by the victorious forces as the primary basis for condemning
officers of the defeated armies bears no resemblance to justice, or to
military reality.
International law makes no attempt to define the duties of a
commander of an army under constant and overwhelming assault,
nor does it impose liability under such circumstances for failure to
meet the ordinary responsibilities of command. The omission is
understandable. Duties, as well as ability to control troops, vary
according to the nature and intensity of the particular battle. To find
an unlawful deviation from duty under battle conditions requires
difficult and speculative calculations. Such calculations become
highly untrustworthy when they are made by the victor in relation to
the actions of a vanquished commander. Objective and realistic
norms of conduct are then extremely unlikely to be used in forming a
judgment as to deviations from duty. The probability that vengeance
will form the major part of the victor's judgment is an unfortunate but
inescapable fact. So great is that probability that international law
refuses to recognize such a judgment as a basis for a war crime,
however fair the judgment may be in a particular instance. It is this
consideration that undermines the charge against the petitioner in this
case. The indictment permits -- indeed compels -- the military
commission of a victorious nation to
Page 327 U. S. 36
sit in judgment upon the military strategy and actions of the defeated
enemy, and to use its conclusions to determine the criminal liability of
an enemy commander. Life and liberty are made to depend upon the
biased will of the victor, rather than upon objective standards of
conduct.
The Court's reliance upon vague and indefinite references in certain
of the Hague Conventions and the Geneva Red Cross Convention is
misplaced. Thus, the statement in Article 1 of the Annex to Hague
Convention No. IV of October 18, 1907, 36 Stat. 2277, 2295, to the
effect that the laws, rights and duties of war apply to military and
volunteer corps only if they are "commanded by a person responsible
for his subordinates," has no bearing upon the problem in this case.
Even if it has, the clause "responsible for his subordinates" fails to
state to whom the responsibility is owed, or to indicate the type of
responsibility contemplated. The phrase has received differing
interpretations by authorities on international law. In Oppenheim,
International Law (6th ed., rev. by Lauterpacht, 1940, vol. 2, p. 204,
fn. 3) it is stated that
"The meaning of the word 'responsible' . . . is not clear. It probably
means 'responsible to some higher authority,' whether the person is
appointed from above or elected from below. . . ."
Another authority has stated that the word "responsible" in this
particular context means "presumably to a higher authority," or
"possibly it merely means one who controls his subordinates, and
who therefore can be called to account for their acts." Wheaton,
International Law (14th ed., by Keith, 1944, p. 172, fn. 30). Still
another authority, Westlake, International Law (1907, Part II, p. 61),
states that "probably the responsibility intended is nothing more than
a capacity of exercising effective control." Finally, Edwards and
Oppenheim, Land Warfare (1912, p. 19, par. 22) state that it is
say that the inability to control troops under highly competitive and
disastrous battle conditions renders one guilty of a war crime in the
absence of personal culpability. Had there been some element of
knowledge or direct connection with the atrocities, the problem would
be entirely different. Moreover, it must be remembered that we are
not dealing
Page 327 U. S. 40
here with an ordinary tort or criminal action; precedents in those fields
are of little if any value. Rather, we are concerned with a proceeding
involving an international crime, the treatment of which may have
untold effects upon the future peace of the world. That fact must be
kept uppermost in our search for precedent.
The only conclusion I can draw is that the charge made against the
petitioner is clearly without precedent in international law or in the
annals of recorded military history. This is not to say that enemy
commanders may escape punishment for clear and unlawful failures
to prevent atrocities. But that punishment should be based upon
charges fairly drawn in light of established rules of international law
and recognized concepts of justice.
But the charge in this case, as previously noted, was speedily drawn
and filed but three weeks after the petitioner surrendered. The trial
proceeded with great dispatch, without allowing the defense time to
prepare an adequate case. Petitioner's rights under the due process
clause of the Fifth Amendment were grossly and openly violated
without any justification. All of this was done without any thorough
investigation and prosecution of those immediately responsible for
the atrocities, out of which might have come some proof or indication
of personal culpability on petitioner's part. Instead the loose charge
was made that great numbers of atrocities had been committed and
that petitioner was the commanding officer; hence he must have been
guilty of disregard of duty. Under that charge the commission was
free to establish whatever standard of duty on petitioner's part that it
so argued, urging that we are still at war with Japan, and all the
power of the military effective during active hostilities in theaters of
combat continues in full force, unaffected by the events of August 14,
1945, and after.
In this view, the action taken here is one of military necessity,
exclusively within the authority of the President as Commander-inChief and his military subordinates to take in warding off military
danger and subject to no judicial restraint on any account, although,
somewhat inconsistently, it is said this Court may "examine" the
proceedings generally.
As I understand the Court, this is in substance the effect of what has
been done. For I cannot conceive any instance of departure from our
basic concepts of fair trial if the failures here are not sufficient to
produce that effect.
We are technically still at war, because peace has not been
negotiated finally or declared. But there is no longer the danger which
always exists before surrender and armistice. Military necessity does
not demand the same measures. The nation may be more secure
now than at any time after peace is officially concluded. In these facts
is one great difference from Ex parte Quirin, 317 U. S. 1. Punitive
action taken now can be effective only for the next war, for purposes
of military security. And enemy aliens, including belligerents, need the
attenuated protections our system extends to them more now than
before hostilities ceased or than they may after a treaty of peace is
signed. Ample power there is to punish them or others for crimes,
whether under the laws of war during its course or later during
occupation. There can be no question of that. The only question is
how it shall be done, consistently
Page 327 U. S. 47
with universal constitutional commands or outside their restricting
effects. In this sense, I think the Constitution follows the flag.
him, and in the conclusion of guilt and the sentence. [Footnote 2/15]
(Emphasis added.) Indeed, the commission's ultimate findings
[Footnote 2/16] draw no express conclusion of knowledge, but state
only two things: (1) the fact of widespread atrocities and crimes; (2)
that petitioner "failed to provide effective control . . . as required by
the circumstances."
This vagueness, if not vacuity, in the findings runs throughout the
proceedings, from the charge itself, through the proof and the
findings, to the conclusion. It affects
Page 327 U. S. 52
the very gist of the offense -- whether that was willful, informed, and
intentional omission to restrain and control troops known by petitioner
to be committing crimes, or was only a negligent failure on his part to
discover this and take whatever measures he then could to stop the
conduct.
Although it is impossible to determine from what is before us whether
petitioner in fact has been convicted of one or the other or of both
these things, [Footnote 2/17] the case has been
Page 327 U. S. 53
presented on the former basis and, unless, as is noted below, there is
fatal duplicity, it must be taken that the crime charged and sought to
be proved was only the failure, with knowledge, to perform the
commander's function of control, although the Court's opinion
nowhere expressly declares that knowledge was essential to guilt or
necessary to be set forth in the charge.
It is in respect to this feature especially, quite apart from the reception
of unverified rumor, report, etc., that perhaps the greatest prejudice
arose from the admission of untrustworthy, unverified,
unauthenticated evidence which could not be probed by cross-
Page 327 U. S. 55
of departure not only from the express command of Congress against
receiving such proof, but from the whole British-American tradition of
the common law and the Constitution. Many others occurred which
there is neither time nor space to mention. [Footnote 2/21]
Petitioner asserts, and there can be no reason to doubt, that, by the
use of all this forbidden evidence, he was deprived of the right of
cross-examination and other means to establish the credibility of the
deponents or affiants, not to speak of the authors of reports, letters,
documents, and newspaper articles; of opportunity to determine
whether the multitudinous crimes specified in the bills were
committed in fact by troops under his command or by naval or air
force troops not under his command at the time alleged; to ascertain
whether the crimes attested were isolated acts of individual soldiers
or were military acts committed by troop units acting under
supervision of officers; and, finally, whether, "in short, there was such
a pattern' of conduct as the prosecution alleged and its whole theory
of the crime and the evidence required to be made out."
He points out in this connection that the commission based its
decision on a finding as to the extent and number
Page 327 U. S. 56
of the atrocities, and that this, of itself, establishes the prejudicial
effect of the affidavits, etc., and of the denial resulting from their
reception of any means of probing the evidence they contained,
including all opportunity for cross-examination. Yet it is said there is
no sufficient showing of prejudice. The effect could not have been
other than highly prejudicial. The matter is not one merely of "rules of
evidence." It goes, as will appear more fully later, to the basic right of
defense, including some fair opportunity to test probative value.
Insufficient as this recital is to give a fair impression of what was
done, it is enough to show that this was no trial in the traditions of the
common law and the Constitution. If the tribunal itself was not strange
to them otherwise, it was in its forms and modes of procedure, in the
character and substance of the evidence it received, in the denial of
all means to the accused and his counsel for testing the evidence, in
the brevity and ambiguity of its findings made upon such a mass of
material, and, as will appear, in the denial of any reasonable
opportunity for preparation of the defense. Because this last
deprivation not only is important in itself, but is closely related to the
departures from all limitations upon the character of and modes of
making the proof, it will be considered before turning to the important
legal questions relating to whether all these violations of our traditions
can be brushed aside as not forbidden by the valid Acts of Congress,
treaties, and the Constitution, in that order. If all these traditions can
be so put away, then indeed will we have entered upon a new but
foreboding era of law.
III
Denial of Opportunity to Prepare Defense
Petitioner surrendered September 3, 1945, and was interned as a
prisoner of war in conformity with Article 9
Page 327 U. S. 57
of the Geneva Convention of July 27, 1929. [Footnote 2/22] He was
served with the charge on September 25, and put in confinement as
an accused war criminal. On October 8, he was arraigned, and
pleaded not guilty. On October 29, the trial began, and it continued
until December 7, when sentence was pronounced, exactly four
years, almost to the hour, from the attack on Pearl Harbor.
On the day of arraignment, October 8, three weeks before the trial
began, petitioner was served with a bill of particulars specifying 64
items setting forth a vast number of atrocities and crimes allegedly
committed by troops under his command. [Footnote 2/23] The six
officers appointed as defense counsel thus had three weeks -- it is
and with the result that "the commander in the field" will not be free to
determine whether general court-martial or military commission shall
be used as the circumstances may dictate, but must govern his
choice by the kind of procedure he wishes to have employed.
The only reasonable and, I think, possible conclusion to draw from
the Articles is that the Articles which are in terms applicable to military
commissions are so uniformly, and those applicable to both such
commissions and to courts-martial when exercising jurisdiction over
offenders against the laws of war likewise are uniformly, applicable,
and not diversely according to the person or offense being tried.
Not only the face of the Articles, but specific statements in General
Crowder's testimony support this view. Thus, in the portion quoted
above [Footnote 2/34] from his 1916 statement, after stating
expressly the purpose of Article 15 to preserve unimpaired the
military commission's jurisdiction, and to make it concurrent with that
of courts-martial insofar as the two would overlap, "so that the military
commander in the field in time of war will be at liberty to employ either
form of court that happens to be convenient," he went on to say:
"Both classes of courts have the same procedure," a statement so
unequivocal as to leave no room for question. And his quotation from
Winthrop supports his statement, namely: "Its (i.e., the military
commission's) composition, constitution and procedure follow the
analogy of courts-martial."
At no point in the testimony is there suggestion that there are two
types of military commission, one bound by
Page 327 U. S. 70
the procedural provisions of the Articles, the other wholly free from
their restraints, or, as the Court strangely puts the matter, that there is
only one kind of commission, but that it is bound or not bound by the
Articles applicable in terms, depending upon who is being tried and
for what offense; for that very difference makes the difference
between one and two. The history and the discussion show
16 are in direct conflict with those Articles, and, for that reason, the
commission was invalidly constituted, was without jurisdiction, and its
sentence is therefore void.
V
The Geneva Convention of 1929
If the provisions of Articles 25 and 38 were not applicable to the
proceeding by their own force as Acts of Congress, I think they would
still be made applicable by virtue of the terms of the Geneva
Convention of 1929, in particular, Article 63. And in other respects, in
my opinion, the petitioner's trial was not in accord with that treaty,
namely with Article 60.
The Court does not hold that the Geneva Convention is not binding
upon the United States, and no such contention has been made in
this case. [Footnote 2/36] It relies on other
Page 327 U. S. 73
arguments to show that Article 60, which provides that the protecting
power shall be notified in advance of a judicial proceeding directed
against a prisoner of war, and Article 63, which provides that a
prisoner of war may be tried only by the same courts and according
to the same procedure as in the case of persons belonging to the
armed forces of the detaining power, are not properly invoked by the
petitioner. Before considering the Court's view that these Articles are
not applicable to this proceeding by their terms, it may be noted that,
on his surrender, petitioner was interned in conformity with Article 9 of
this Convention.
Page 327 U. S. 74
The chief argument is that Articles 60 and 63 have reference only to
offenses committed by a prisoner of war while a prisoner of war, and
not to violations of the law of war committed while a combatant. This
the proof and in the right to defend which occurred throughout the
proceeding, there can be no accommodation with the due process of
law which the Fifth Amendment demands.
All this the Court puts to one side with the short assertion that no
question of due process under the Fifth Amendment or jurisdiction
reviewable here is presented. I do not think this meets the issue,
standing alone or in conjunction with the suggestion which follows
that the Court gives no intimation one way or the other concerning
Page 327 U. S. 81
what Fifth Amendment due process might require in other situations.
It may be appropriate to add here that, although without doubt the
directive was drawn in good faith in the belief that it would expedite
the trial and that enemy belligerents in petitioner's position were not
entitled to more, that state of mind and purpose cannot cure the
nullification of basic constitutional standards which has taken place.
It is not necessary to recapitulate. The difference between the Court's
view of this proceeding and my own comes down in the end to the
view, on the one hand, that there is no law restrictive upon these
proceedings other than whatever rules and regulations may be
prescribed for their government by the executive authority or the
military and, on the other hand, that the provisions of the Articles of
War, of the Geneva Convention and the Fifth Amendment apply.
I cannot accept the view that anywhere in our system resides or lurks
a power so unrestrained to deal with any human being through any
process of trial. What military agencies or authorities may do with our
enemies in battle or invasion, apart from proceedings in the nature of
trial and some semblance of judicial action, is beside the point. Nor
has any human being heretofore been held to be wholly beyond
elementary procedural protection by the Fifth Amendment. I cannot
consent to even implied departure from that great absolute.
any way the scope of the foregoing general rules, the following
evidence may be admitted:"
"(1) Any document while appears to the commission to have been
signed or issued officially by any officer, department, agency, or
member of the armed forces of any government, without proof of the
signature or of the issuance of the document."
"(2) Any report which appears to the commission to have been signed
or issued by the International Red Cross or a member thereof, or by a
medical doctor or any medical service personnel, or by an
investigator or intelligence officer, or by any other person whom the
commission finds to have been acting in the course of his duty when
making the report."
"(3) Affidavits, depositions, or other statements taken by an officer
detailed for that purpose by military authority."
"(4) Any diary, letter or other document appearing to the commission
to contain information relating to the charge."
"(5) A copy of any document or other secondary evidence of its
contents, if the commission believes that the original is not available
or cannot be produced without undue delay. . . ."
[Footnote 2/10]
In one instance, the president of the commission said:
"The rules and regulations which guide this Commission are binding
upon the Commission and agencies provided to assist the
Commission. . . . We have been authorized to receive and weigh
such evidence as we can consider to have probative value, and
further comments by the Defense on the right which we have to
accept this evidence is decidedly out of order."
But see note 19.
[Footnote 2/11]
Cf. text infra at note 19 concerning the prejudicial character of the
evidence.
[Footnote 2/12]
Note 4.
[Footnote 2/13]
Namely,
"(1) starvation, execution or massacre without trial, and
maladministration generally of civilian internees and prisoners of war;
(2) torture, rape, murder, and mass execution of very large numbers
of residents of the Philippines, including women and children and
members of religious orders, by starvation, beheading, bayoneting,
clubbing, hanging, burning alive, and destruction by explosives; (3)
burning and demolition without adequate military necessity of large
numbers of homes, places of business, places of religious worship,
hospitals, public buildings, and educational institutions. In point of
time, the offenses extended throughout the period the accused was in
command of Japanese troops in the Philippines. In point of area, the
crimes extended through the Philippine Archipelago, although by far
he most of the incredible acts occurred on Luzon."
[Footnote 2/14]
Cf. note 13.
[Footnote 2/15]
In addition, the findings set forth that captured orders of subordinate
officers gave proof that "they at least" ordered acts "leading directly
to" atrocities; that
The charge, set forth at the end of this note, is consistent with either
theory -- or both -- and thus ambiguous, as were the
findings. See note 15. The only word implying knowledge was
"permitting." If "willfully" is essential to constitute a crime or charge of
one, otherwise subject to the objection of "vagueness," cf. Screws v.
United States,325 U. S. 91, it would seem that "permitting" alone
would hardly be sufficient to charge "willful and intentional" action or
omission; and, if taken to be sufficient to charge knowledge, it would
follow necessarily that the charge itself was not drawn to state, and
was insufficient to support, a finding of mere failure to detect or
discover the criminal conduct of others.
At the most, "permitting" could charge knowledge only by inference or
implication. And, reasonably, the word could be taken in the context
of the charge to mean "allowing" or "not preventing" -- a meaning
consistent with absence of knowledge and mere failure to discover. In
capital cases, such ambiguity is wholly out of place. The proof was
equally ambiguous in the same respect, so far as we have been
informed, and so, to repeat, were the findings. The use of "willfully,"
even qualified by a "must have," one time only in the findings hardly
can supply the absence of that or an equivalent word or language in
the charge or in the proof to support that essential element in the
crime.
The charge was as follows:
"Tomoyuki Yamashita, General Imperial Japanese Army, between 9
October 1944 and 2 September 1945 at Manila and other places in
the Philippine Islands, while commander of armed forces of Japan at
war with the United States of America and its allies, unlawfully
disregarded and failed to discharge his duty as commander to control
the operations of the members of his command, permitting them to
commit brutal atrocities and other high crimes against people of the
United States and of its allies and dependencies, particularly the
Philippines, and he, General Tomoyuki Yamashita, thereby violated
the laws of war."
[Footnote 2/18]
Cf. Text infra, 327 U. S.
[Footnote 2/19]
On November 1, early in the trial, the president of the commission
stated:
"I think the Prosecution should consider the desirability of striking
certain items. The Commission feels that there must be witnesses
introduced on each of the specifications or items. It has no objection
to considering affidavits, but it is unwilling to form an opinion of a
particular item based solely on an affidavit. Therefore, until evidence
is introduced, these particular exhibits are rejected."
(Emphasis added.)
Later evidence of the excluded type was offered, to introduction of
which the defense objected on various grounds, including the prior
ruling. At the prosecution's urging, the commission withdrew to
deliberate. Later, it announced that,
"after further consideration, the Commission reverses that ruling [of
November 1] and affirms its prerogative of receiving and considering
affidavits or depositions, if it chooses to do so, for whatever probative
value the Commission believes they may have, without regard to the
presentation of some partially corroborative oral testimony."
It then added:
"The Commission directs the prosecution again to introduce the
affidavits or depositions then in question, and other documents of
similar nature which the prosecution stated has been prepared for
introduction."
(Emphasis added.)
The 1920 amendment put in the words "by statute or" before the
words "by the law of war" and omitted the word "lawfully."
[Footnote 2/31]
Speaking at the Hearings before the Committee on Military Affairs,
House of Representatives, 62nd Cong., 2d Sess., printed as an
Appendix to S.Rep.229, 63rd Cong., 2d Sess., General Crowder said:
"The next article, No. 15, is entirely new, and the reasons for its
insertion in the code are these: in our War with Mexico, two war
courts were brought into existence by orders of Gen. Scott, viz., the
military commission and the council of war. By the military
commission, Gen. Scott tried cases cognizable in time of peace by
civil courts, and by the council of war, he tried offenses against the
laws of war. The council of war did not survive the Mexican War
period, and, in our subsequent wars, its jurisdiction has been taken
over by the military commission, which, during the Civil War period,
tried more than 2,000 cases. While the military commission has not
been formally authorized by statute, its jurisdiction as a war court has
been upheld by the Supreme Court of the United States. It is an
institution of the greatest importance in a period of war, and should be
preserved. In the new code, the jurisdiction of courts-martial has
been somewhat amplified by the introduction of the phrase 'Persons
subject to military law.' There will be more instances in the future than
in the past when the jurisdiction of courts-martial will overlap that of
the war courts, and the question would arise whether Congress
having vested jurisdiction by statute the common law of
war jurisdiction was not ousted. I wish to make it perfectly plain by
the new article that, in such cases, the jurisdiction of the war court is
concurrent."
S.Rep. No.229, 63rd Cong., 2d Sess., p. 53. (Emphasis added.)
And later, in 1916, speaking before the Subcommittee on Military
Affairs of the Senate at their Hearings on S.3191, a project for the
revision of the Articles of War, 64th Cong., 1st Sess., printed as an
Of course, Articles 25 and 38, at the same time that they gave
protection to defendants before military commissions, also provided
for the application by such tribunals of modern rules of procedure and
evidence.
[Footnote 2/33]
Winthrop, speaking of military commissions at the time he was
writing, 1896, says:
"The offences cognizable by military commissions may thus be
classed as follows: (1) Crimes and statutory offences cognizable by
State or U.S. courts, and which would properly be tried by such
courts if open and acting; (2) Violations of the laws and usages of
war cognizable by military tribunals only; (3) Breaches of military
orders or regulations for which offenders are not legally triable by
court-martial under the Articles of War."
(Emphasis added.) Winthrop at *1309. And cf. Fairman, The Law of
Martial Rule (2d ed.1943):
"Military commissions take cognizance of three categories of criminal
cases: offenses against the laws of war,breaches of military
regulations, and civil crimes which, where the ordinary courts have
ceased to function, cannot be tried normally."
(Emphasis added.) Fairman, 265-266. See also Davis, A Treatise on
the Military Law of the United States (1915) 309, 310.
[Footnote 2/34]
Note 31.
[Footnote 2/35]
In addition to the statements of General Crowder with relation to
Article 15, set out in note 31, supra, see the following statements
In the case, the PCGG did not make a prior determination of the
existence of the prima facie case. The Republic presented no
evidence to the Sandiganbayan. Nor did the Republic demonstrate
that the the 2 PCGG representatives were given the quasi-judicial
authority to receive and consider evidence that would warrant a prima
facie finding. The Republic's evidence does not show how the
Marcoses' acquired the property, what makes it ill-gotten wealth,and
how Ferdinand Marcos intervened in its acquisition.
FULL CASE:
EN BANC
[1]
also the owner of a house and lot located in Cebu City. The lot has an
area of 3,327 square meters.
The value of the property located in Quezon City may be estimated
modestly at P700,000.00.
The equipment/items and communication facilities which were found
in the premises of Elizabeth Dimaano and were confiscated by
elements of the PC Command of Batangas were all covered by
invoice receipt in the name of CAPT. EFREN SALIDO, RSO
Command Coy, MSC, PA. These items could not have been in the
possession of Elizabeth Dimaano if not given for her use by
respondent Commanding General of the Philippine Army.
Aside from the military equipment/items and communications
equipment, the raiding team was also able to confiscate money in the
amount of P2,870,000.00 and $50,000 US Dollars in the house of
Elizabeth Dimaano on 3 March 1986.
Affidavits of members of the Military Security Unit, Military Security
Command, Philippine Army, stationed at Camp Eldridge, Los Baos,
Laguna, disclosed that Elizabeth Dimaano is the mistress of
respondent. That respondent usually goes and stays and sleeps in
the alleged house of Elizabeth Dimaano in Barangay Tengga, Itaas,
Batangas City and when he arrives, Elizabeth Dimaano embraces
and kisses respondent. That on February 25, 1986, a person who
rode in a car went to the residence of Elizabeth Dimaano with four (4)
attache cases filled with money and owned by MGen Ramas.
Sworn statement in the record disclosed also that Elizabeth Dimaano
had no visible means of income and is supported by respondent for
she was formerly a mere secretary.
Taking in toto the evidence, Elizabeth Dimaano could not have used
the military equipment/items seized in her house on March 3, 1986
without the consent of respondent, he being the Commanding
General of the Philippine Army. It is also impossible for Elizabeth
Dimaano to claim that she owns the P2,870,000.00 and $50,000 US
Dollars for she had no visible source of income.
1991,
petitioner
filed
its
Motion
for
The primary issue for resolution is whether the PCGG has the
jurisdiction to investigate and cause the filing of a forfeiture petition
against Ramas and Dimaano for unexplained wealth under RA No.
1379.
We hold that PCGG has no such jurisdiction.
The PCGG created the AFP Board to investigate the unexplained
wealth and corrupt practices of AFP personnel, whether in the active
service or retired.[15]The PCGG tasked the AFP Board to make the
necessary recommendations to appropriate government agencies on
the action to be taken based on its findings. [16] The PCGG gave this
task to the AFP Board pursuant to the PCGGs power under Section 3
of EO No. 1 to conduct investigation as may be necessary in order to
accomplish and to carry out the purposes of this order. EO No. 1
gave the PCGG specific responsibilities, to wit:
SEC. 2. The Commission shall be charged with the task of assisting
the President in regard to the following matters:
(a) The recovery of all ill-gotten wealth accumulated by former
President Ferdinand E. Marcos, his immediate family,
relatives, subordinates and close associates, whether
located in the Philippines or abroad, including the
takeover and sequestration of all business enterprises
and entities owned or controlled by them, during his
administration, directly or through nominees, by taking
undue advantage of their public office and/ or using their
powers, authority, influence, connections or relationship.
(b) The investigation of such cases of graft and corruption as
the President may assign to the Commission from time
to time.
x x x.
The PCGG, through the AFP Board, can only investigate the
unexplained wealth and corrupt practices of AFP personnel who fall
under either of the two categories mentioned in Section 2 of EO No.
1. These are: (1) AFP personnel who have accumulated ill-gotten
wealth during the administration of former President Marcos by being
the latters immediate family, relative, subordinate or close associate,
xxx
Q. You stated that a .45 caliber pistol was seized along
with one armalite rifle M-16 and how many
ammunition?
A. Forty, sir.
Q. And this became the subject of your complaint with the
issuing Court, with the fiscals office who charged
Elizabeth Dimaano for Illegal Possession of Firearms
and Ammunition?
A. Yes, sir.
Q. Do you know what happened to that case?
A. I think it was dismissed, sir.
Q. In the fiscals office?
A. Yes, sir.
Q. Because the armalite rifle you seized, as well as the .45
caliber pistol had a Memorandum Receipt in the name
of Felino Melegrito, is that not correct?
A. I think that was the reason, sir.
Q. There were other articles seized which were not
included in the search warrant, like for instance,
jewelries. Why did you seize the jewelries?
A. I think it was the decision of the overall team leader and
his assistant to bring along also the jewelries and
other items, sir. I do not really know where it was
taken but they brought along also these articles. I do
not really know their reason for bringing the same, but
I just learned that these were taken because they
might get lost if they will just leave this behind.
xxx
Q. How about the money seized by your raiding team, they
were not also included in the search warrant?
A. Yes sir, but I believe they were also taken considering
that the money was discovered to be contained in
attach cases. These attach cases were suspected to
be containing pistols or other high powered firearms,
SECOND DIVISION
- versus Promulgated:
FORTUNE
CORPORATION,
TOBACCO
June 27, 2006
Respondent.
x------------------------------------------------------------------------------------x
DECISION
GARCIA, J.:
Via this petition for review under Rule 45 of the Rules of Court, herein
petitioners Philip Morris, Inc., Benson & Hedges (Canada) Inc., and
Fabriques de Tabac Reunies, S.A. (now Philip Morris Products S.A.)
seek the reversal and setting aside of the following issuances of the
Court of Appeals (CA) in CA-G.R. CV No. 66619, to wit:
1. Decision dated January 21, 2003 [1] affirming an earlier
decision of the Regional Trial Court of Pasig City,
Branch 166, in its Civil Case No. 47374, which
dismissed the complaint for trademark infringement
91332, entitled Philip Morris, Inc., et al. v. The Court of Appeals and
Fortune Tobacco Corporation,[17] that such right to sue does not
necessarily mean protection of their registered marks in the absence
of actual use in the Philippines.
Thus clarified, what petitioners now harp about is their
entitlement to protection on the strength of registration of their
trademarks in the Philippines.
As we ruled in G.R. No. 91332,[18] supra, so it must be here.
Admittedly, the registration of a trademark gives the registrant,
such as petitioners, advantages denied non-registrants or ordinary
users, like respondent. But while petitioners enjoy the statutory
presumptions arising from such registration, [19] i.e., as to the validity of
the registration, ownership and the exclusive right to use the
registered marks, they may not successfully sue on the basis alone of
their respective certificates of registration of trademarks. For,
petitioners are still foreign corporations. As such, they ought, as a
condition to availment of the rights and privileges vis--vis their
trademarks in this country, to show proof that, on top of Philippine
registration, their country grants substantially similar rights and
privileges to Filipino citizens pursuant to Section 21-A [20] of R.A.
No. 166.
In Leviton Industries v. Salvador,[21] the Court further held that
the aforementioned reciprocity requirement is a condition sine qua
non to filing a suit by a foreign corporation which, unless alleged in
the complaint, would justify dismissal thereof, a mere allegation that
the suit is being pursued under Section 21-A of R.A. No. 166 not
being sufficient. In a subsequent case, [22] however, the Court held that
where the complainant is a national of a Paris Convention- adhering
country, its allegation that it is suing under said Section 21-A would
suffice, because the reciprocal agreement between the two countries
is embodied and supplied by the Paris Convention which, being
considered part of Philippine municipal laws, can be taken judicial
notice of in infringement suits.[23]
ATTESTATION
I attest that the conclusions in the above decision were reached in
consultation before the case was assigned to the writer of the opinion
of the Courts Division.
REYNATO S. PUNO
Associate Justice
Chairperson, Second Division
CERTIFICATION
Pursuant to Article VIII, Section 13 of the Constitution, and the
Division Chairperson's Attestation, it is hereby certified that the
conclusions in the above decision were reached in consultation
before the case was assigned to the writer of the opinion of the Court.
ARTEMIO V. PANGANIBAN
Chief Justice
[1]
[2]
Id. at 36.
[3]
[4]
[5]
Id. at 228-296.
[6]
[7]
[8]
[9]
[10]
[11]
[12]
316 U.S. 203, 53 USPQ 323 [1942] cited in Societe Des Produits
Nestle, S.A. v. Court of Appeals, G.R. No. 112012, April 4,
2001, 356 SCRA 207, 215.
[13]
[14]
al.,
G.R.
No.
[17]
Philip Morris, Inc., et al. vs. CA, et al., July 16, 1993, 224 SCRA
576, 595.
[18]
[19]
[21]
[22]
[23]
[24]
[25]
[26]
Infringement
and
and
Unfair
Unfair
[27]
[28]
[29]
DIGEST:
PHILIP MORRIS, INC. VS. FORTUNE TOBACCO CORPORATION (Equal Standing
of International Law and Municipal Law)
Penned by:
GARCIA, J.:Petition for review under Rule 45 of the Rules of Court
, petitioners
Philip Morris, Inc.,Benson & Hedges (Canada) Inc., and Fabriques de Tabac
Reunies, S.A.
(now Philip Morris ProductsS.A.)
seek the reversal and setting aside of the following issuances of the Court
of Appeals (CA)
in CA-G.R. CV No. 66619:
PETITION DENIED
1. Decision dated January 21, 20031 affirming an earlier decision of the
Regional Trial Court of Pasig City, Branch 166, in its Civil Case No. 47374
Dismissed
the complaint for trademark infringement and damages
thereatcommenced by the petitioners against respondent Fortune Tobacco
Corporation; and2. Resolution dated May 30, 20032 denying petitioners
motion for reconsideration
.
FACTS OF THE CASE:
Similarly, petitioner
Benson & Hedges (Canada), Inc.,
a subsidiary of Philip Morris, Inc.
,
is the registered owner of the trademark
MARK TEN
by virtue of the long and extensive usage of the same, these trademarks have
already gained internationalfame and acceptance
[respondent], without any previous consent from any of the
[petitioners], manufactured and soldcigarettes bearing the identical and/or
confusingly similar trademark MARK
Respondent:
issue the propriety of the petition as it allegedly raises questions of
fact.
Petition raises both questions of fact and law
o
question of law
exists when the doubt or difference arises as to what the law is on a
certain state of facts
o
question of fact
when the doubt or difference arises as to the truth or falsity of alleged facts
Court is not the proper venue to consider factual issues as it is not a trier of
facts
Unless the factual findings of the appellate court are mistaken, absurd,
speculative, conflicting,tainted with grave abuse of discretion, or contrary to the
findings culled by the court of origin,we will not disturb them
Petitioners:
contentions should be treated as purely legal since they are assailing
erroneous conclusionsdeduced from a set of undisputed facts
A
trademark
is any distinctive word, name, symbol, emblem, sign, or device, or
anycombination thereof adopted and used by a manufacturer or merchant on
his goods toidentify and distinguish them from those manufactured, sold, or
dealt in by others.
o
A trademark deserves protection.
PETITIONER:
Petitioners
assert that,
as corporate nationals of member-countries of the ParisUnion, they can
sue before Philippine
courts for infringement of trademarks, or forunfair competition
, without need of obtaining registration or a license to dobusiness in the
Philippines, and without necessity of actually doing business inthe Philippines.
o
Not doing business in the Philippines does not mean that cigarettes bearing
their trademarks are not available and sold locally
. Citing
Converse Rubber Corporation v.Universal Rubber Products, Inc.
, such availability and sale may be effected through the
acts of importers and distributors
.
they may not successfully sue on the basis alone of their respective certificates
of registration of trademarks.
o
Petitioners:
still foreign corporations
o
condition to availment of the rights and privileges
& their
trademarks
in thiscountry:
In
Leviton Industries v. Salvador
o
Court:
reciprocity requirement
is a condition sine qua non to filing a suit by aforeign corporation
Unless alleged in the complaint, would justify dismissal
o
complainant is a national of a Paris Convention- adhering country, itsallegation
that it is suing under said Section 21-A would suffice, becausethe reciprocal
agreement between the two countries is embodied andsupplied by the Paris
Convention
members of the Paris Union does not automatically entitle petitioners to theprotection of
their trademarks in this countryABSENTACTUALUSE OF THE MARKSIN LOCAL
COMMERCE AND TRADE
.
FULL CASE:
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-49112 February 2, 1979
LEOVILLO C. AGUSTIN, petitioner,
vs.
HON. ROMEO F. EDU, in his capacity as Land Transportation
Commissioner; HON. JUAN PONCE ENRILE, in his capacity as
Minister of National Defense; HON. ALFREDO L. JUINIO, in his
capacity as Minister Of Public Works, Transportation and
Communications; and HON: BALTAZAR AQUINO, in his capacity
as Minister of Public Highways, respondents.
Leovillo C. Agustin Law Office for petitioner.
Solicitor General Estelito P. Mendoza, Assistant Solicitor General
Ruben E. Agpalo and Solicitor Amado D. Aquino for respondents.
FERNANDO, J.:
The validity of a letter of Instruction 1 providing for an early seaming
device for motor vehicles is assailed in this prohibition proceeding as
being violative of the constitutional guarantee of due process and,
insofar as the rules and regulations for its implementation are
concerned, for transgressing the fundamental principle of nondelegation of legislative power. The Letter of Instruction is stigmatized
by petitioner who is possessed of the requisite standing, as being
Two motions for extension were filed by the Office of the Solicitor
General and granted. Then on November 15, 1978, he Answer for
respondents was submitted. After admitting the factual allegations
and stating that they lacked knowledge or information sufficient to
form a belief as to petitioner owning a Volkswagen Beetle car," they
"specifically deny the allegations and stating they lacked knowledge
or information sufficient to form a belief as to petitioner owning a
Volkswagen Beetle Car, 17 they specifically deny the allegations in
paragraphs X and XI (including its subparagraphs 1, 2, 3, 4) of
Petition to the effect that Letter of Instruction No. 229 as amended by
Letters of Instructions Nos. 479 and 716 as well as Land
transportation Commission Administrative Order No. 1 and its
Memorandum Circular No. 32 violates the constitutional provisions on
due process of law, equal protection of law and undue delegation of
police power, and that the same are likewise oppressive, arbitrary,
confiscatory, one-sided, onerous, immoral unreasonable and illegal
the truth being that said allegations are without legal and factual basis
and for the reasons alleged in the Special and Affirmative Defenses
of this Answer." 18 Unlike petitioner who contented himself with a
rhetorical recital of his litany of grievances and merely invoked the
sacramental phrases of constitutional litigation, the Answer, in
demonstrating that the assailed Letter of Instruction was a valid
exercise of the police power and implementing rules and regulations
of respondent Edu not susceptible to the charge that there was
unlawful delegation of legislative power, there was in the portion
captioned Special and Affirmative Defenses, a citation of what
respondents believed to be the authoritative decisions of this Tribunal
calling for application. They are Calalang v. Williams, 19 Morfe v.
Mutuc, 20 and Edu v. Ericta. 21 Reference was likewise made to the
1968 Vienna Conventions of the United Nations on road traffic, road
signs, and signals, of which the Philippines was a signatory and
which was duly ratified. 22 Solicitor General Mendoza took pains to
refute in detail, in language calm and dispassionate, the vigorous, at
times intemperate, accusation of petitioner that the assailed Letter of
Instruction and the implementing rules and regulations cannot survive
the test of rigorous scrutiny. To repeat, its highly-persuasive quality
cannot be denied.
This Court thus considered the petition submitted for decision, the
issues being clearly joined. As noted at the outset, it is far from
meritorious and must be dismissed.
1. The Letter of Instruction in question was issued in the exercise of
the police power. That is conceded by petitioner and is the main
reliance of respondents. It is the submission of the former, however,
that while embraced in such a category, it has offended against the
due process and equal protection safeguards of the Constitution,
although the latter point was mentioned only in passing. The broad
and expansive scope of the police power which was originally
Identified by Chief Justice Taney of the American Supreme Court in
an 1847 decision as "nothing more or less than the powers of
government inherent in every sovereignty" 23 was stressed in the
aforementioned case of Edu v. Erictathus: "Justice Laurel, in the first
leading decision after the Constitution came into force, Calalang v.
Williams, Identified police power with state authority to enact
legislation that may interfere with personal liberty or property in order
to promote the general welfare. Persons and property could thus 'be
subjected to all kinds of restraints and burdens in order to we the
general comfort, health and prosperity of the state.' Shortly after
independence in 1948, Primicias v. Fugoso reiterated the doctrine,
such a competence being referred to as 'the power to prescribe
regulations to promote the health, morals, peace, education, good
order or safety, and general welfare of the people. The concept was
set forth in negative terms by Justice Malcolm in a preCommonwealth decision as 'that inherent and plenary power in the
State which enables it to prohibit all things hurtful to the comfort,
safety and welfare of society. In that sense it could be hardly
distinguishable as noted by this Court in Morfe v. Mutuc with the
totality of legislative power. It is in the above sense the greatest and
most powerful at. tribute of government. It is, to quote Justice
Malcolm anew, 'the most essential, insistent, and at least table
powers, I extending as Justice Holmes aptly pointed out 'to all the
great public needs.' Its scope, ever-expanding to meet the exigencies
of the times, even to anticipate the future where it could be done,
provides enough room for an efficient and flexible response to
conditions and circumstances thus assuring the greatest benefits. In
the language of Justice Cardozo: 'Needs that were narrow or
parochial in the past may be interwoven in the present with the well-
being of the nation. What is critical or urgent changes with the time.'
The police power is thus a dynamic agency, suitably vague and far
from precisely defined, rooted in the conception that men in
organizing the state and imposing upon its government limitations to
safeguard constitutional rights did not intend thereby to enable an
individual citizen or a group of citizens to obstruct unreasonably the
enactment of such salutary measures calculated to communal peace,
safety, good order, and welfare." 24
2. It was thus a heavy burden to be shouldered by petitioner,
compounded by the fact that the particular police power measure
challenged was clearly intended to promote public safety. It would be
a rare occurrence indeed for this Court to invalidate a legislative or
executive act of that character. None has been called to our attention,
an indication of its being non-existent. The latest decision in point,
Edu v. Ericta, sustained the validity of the Reflector Law, 25 an
enactment conceived with the same end in view. Calalang v.
Williams found nothing objectionable in a statute, the purpose of
which was: "To promote safe transit upon, and. avoid obstruction on
roads and streets designated as national roads * * *. 26 As a matter of
fact, the first law sought to be nullified after the effectivity of the 1935
Constitution, the National Defense Act, 27 with petitioner failing in his
quest, was likewise prompted by the imperative demands of public
safety.
3. The futility of petitioner's effort to nullify both the Letter of
Instruction and the implementing rules and regulations becomes even
more apparent considering his failure to lay the necessary factual
foundation to rebut the presumption of validity. So it was held
in Ermita-Malate Hotel and Motel Operators Association, Inc. v. City
Mayor of Manila. 28 The rationale was clearly set forth in an excerpt
from a decision of Justice Branders of the American Supreme Court,
quoted in the opinion: "The statute here questioned deals with a
subject clearly within the scope of the police power. We are asked to
declare it void on the ground that the specific method of regulation
prescribed is unreasonable and hence deprives the plaintiff of due
process of law. As underlying questions of fact may condition the
constitutionality of legislation of this character, the presumption of
constitutionality must prevail in the absence of some factual
foundation of record in overthrowing the statute. 29
4. Nor did the Solicitor General as he very well could, rely solely on
such rebutted presumption of validity. As was pointed out in his
Answer "The President certainly had in his possession the necessary
statistical information and data at the time he issued said letter of
instructions, and such factual foundation cannot be defeated by
petitioner's naked assertion that early warning devices 'are not too
vital to the prevention of nighttime vehicular accidents' because
allegedly only 390 or 1.5 per cent of the supposed 26,000 motor
vehicle accidents that in 1976 involved rear-end collisions (p. 12 of
petition). Petitioner's statistics is not backed up by demonstrable data
on record. As aptly stated by this Honorable Court: Further: "It admits
of no doubt therefore that there being a presumption of validity, the
necessity for evidence to rebut it is unavoidable, unless the statute or
ordinance is void on its face, which is not the case here"' * * *. But
even as g the verity of petitioner's statistics, is that not reason enough
to require the installation of early warning devices to prevent another
390 rear-end collisions that could mean the death of 390 or more
Filipinos and the deaths that could likewise result from head-on or
frontal collisions with stalled vehicles?" 30 It is quite manifest then that
the issuance of such Letter of Instruction is encased in the armor of
prior, careful study by the Executive Department. To set it aside for
alleged repugnancy to the due process clause is to give sanction to
conjectural claims that exceeded even the broadest permissible limits
of a pleader's well known penchant for exaggeration.
5. The rather wild and fantastic nature of the charge of
oppressiveness of this Letter of Instruction was exposed in the
Answer of the Solicitor General thus: "Such early warning device
requirement is not an expensive redundancy, nor oppressive, for car
owners whose cars are already equipped with 1) blinking lights in the
fore and aft of said motor vehicles,' 2) "battery-powered blinking lights
inside motor vehicles," 3) "built-in reflectorized tapes on front and rear
bumpers of motor vehicles," or 4) "well-lighted two (2) petroleum
lamps (the Kinke) * * * because: Being universal among the signatory
countries to the said 1968 Vienna Conventions, and visible even
under adverse conditions at a distance of at least 400 meters, any
motorist from this country or from any part of the world, who sees a
reflectorized rectangular early seaming device installed on the roads,
highways or expressways, will conclude, without thinking, that
somewhere along the travelled portion of that road, highway, or
Separate Opinions
least 865,037 motor vehicles all over the country requiring E.W.D.'S
and at the minimum price of 1156.00 per set, this would mean a
consumer outlay of P 48,451,872.00, or close to P 50 million for the
questioned E.W.D.'S "stands unchallenged;
4. No real effort has been made to show that there can be practical
and less burdensome alternative road safety devices for stalled
vehicles than the prescribed E.W.D., such as the common petroleum
lamps "kinke" which can be placed just as effectively in front of stalled
vehicles on the highways; and
5. There is no imperative need for imposing such a bet requirement
on all vehicles. The respondents have not shown that they have
availed of the powers and prerogatives vested in their offices such as
ridding the country of dilapidated trucks and vehicles which are the
main cause of the deplorable -highway accidents due to stoned
vehicles, establishing an honest and foolproof system of examination
and licensing of motor vehicle drivers so as to ban the reckless and
irresponsible and a sustained education campaign to instill safe
driving habits and attitudes that can be carried out for much less than
the P 50 million burden that would be imposed by the challenged
order.
I do feel that a greater "degree of receptivity and sympathy" could be
extended to the petitioner for his civic mindedness in having filed the
present petition g as capricious and unreasonable the "all pervading
police power" of the State instead of throwing the case out of court
and leaving the wrong impression that the exercise of police power
insofar as it may affect the life, liberty and property of any person is
no longer subject to judicial inquiry.
# Separate Opinions
TEEHANKEE, J., dissenting:
I dissent from the majority's peremptory dismissal of the petition and
lifting of the restraining order issued on October 19, 1978 against the
4. No real effort has been made to show that there can be practical
and less burdensome alternative road safety devices for stalled
vehicles than the prescribed E.W.D., such as the common petroleum
lamps "kinke" which can be placed just as effectively in front of stalled
vehicles on the highways; and
5. There is no imperative need for imposing such a bet requirement
on all vehicles. The respondents have not shown that they have
availed of the powers and prerogatives vested in their offices such as
ridding the country of dilapidated trucks and vehicles which are the
main cause of the deplorable -highway accidents due to stoned
vehicles, establishing an honest and foolproof system of examination
and licensing of motor vehicle drivers so as to ban the reckless and
irresponsible and a sustained education campaign to instill safe
driving habits and attitudes that can be carried out for much less than
the P 50 million burden that would be imposed by the challenged
order.
I do feel that a greater "degree of receptivity and sympathy" could be
extended to the petitioner for his civic mindedness in having filed the
present petition g as capricious and unreasonable the "all pervading
police power" of the State instead of throwing the case out of court
and leaving the wrong impression that the exercise of police power
insofar as it may affect the life, liberty and property of any person is
no longer subject to judicial inquiry.
#Footnotes
Facts
This case is a petition assailing the validity or the constitutionality of a
Letter of Instruction No. 229, issued by President Ferdinand E.
Marcos, requiring all vehicle owners, users or drivers to procure early
warning devices to be installed a distance away from such vehicle
when it stalls or is disabled. In compliance with such letter of
instruction, the Commissioner of the Land Transportation Office
issued Administrative Order No. 1 directing the compliance thereof.
This petition alleges that such letter of instruction and subsequent
administrative order are unlawful and unconstitutional as it violates
the provisions on due process, equal protection of the law and undue
delegation of police power.
Issue
Whether or not the Letter of Instruction No. 229 and the subsequent
Administrative Order issued is unconstitutional
Ruling
The Supreme Court ruled for the dismissal of the petition. The
statutes in question are deemed not unconstitutional. These were
definitely in the exercise of police power as such was established to
promote public welfare and public safety. In fact, the letter of
instruction is based on the constitutional provision of adopting to the
generally accepted principles of international law as part of the law of
the land. The letter of instruction mentions, as its premise and basis,
the resolutions of the 1968 Vienna Convention on Road Signs and
Signals and the discussions on traffic safety by the United Nations that such letter was issued in consideration of a growing number of
road accidents due to stalled or parked vehicles on the streets and
highways.
Agustin v Edu
88 SCRA 195, GR No. L-49112
February 2, 1979
FACTS:
Peititioner, Agustin assails the validity of the Letter of Instruction No.
229 which requires an early warning device to be carried by users of
motor vehicles as being violative of the constitutional guarantee of
due process and transgresses the fundamental principle of nondelegation of legislative power. This instruction, signed by President
Marcos, aims to prevent accidents on streets and highways, including
expressways or limited access roads caused by the presence of
disabled, stalled or parked motor vehicles without appropriate early
warning devices. The hazards posed by these disabled vehicles are
recognized by international bodies concerned with traffic safety. The
Philippines is a signatory of the 1968 Vienna Convention on Road
Signs and Signals and the United Nations Organizations and the said
Vienna Convention was ratified by the Philippine Government under
PD 207.
ISSUE:
Is the letter of instruction valid?
HELD:
Yes. The letter of instruction is a valid exercise of police power and
there is also no transgression of the fundamental principle of nondelegation of legislative power. Under the Declaration of Principle of
the Philippine Constitution (1973) it is written: The
Philippines...adopts the generally accepted principles of international
law as part of the law of the land... The 1968 Vienna Convention on
Road Signs and Signals is impressed with a character of an accepted
principle of international law since it was ratified by the Philippine
Government under PD 207. It is not for the country to repudiate a
commitment to which it had pledged its word. The concept of Pacta
sunt servanda stands in the way of such an attitude, which is,
moreover, at war with the principle of international morality.
The United States is a party of interest because the country and its
people have been equally, if not more greatly, aggrieved by the
crimes with which the petitioner is charged for. By virtue of Executive
Order No. 68, the Military Commission is a special military tribunal
and that the rules as to parties and representation are not governed
by the rules of court but by the very provisions of this special law.
Kuroda v. Jalandoni
9/17/2014
0 Comments
Constitutional Law. Political Law. Fundamental Principles and State
Policies. Article II, Section 2. Incorporation Clause.
KURODA v. JALANDONI
42 O.G. 4282
FACTS:
Shigenori Kuroda, a former Lieutenant-General of the Japanese
Imperial Army, is charged before a military commission of the Armed
Forces of the Philippines. He seeks to establish the illegality of EO 68
on the grounds that it violates our Constitution and that the petitioners
are not charged of crimes based on law since the Philippines is not a
signatory to the Hague Convention on Rules and Regulations
covering Land Warfare.
ISSUE:
1) Whether or not EO 68 is unconstitutional; and
2) Whether or not Kuroda may be charged for violation of Hague
Conventions rules and regulations
HELD:
Executive Order 68, establishing a National War Crimes Office is
valid and constitutional. The president has acted in conformity with
the generally accepted policies of international law which are also
FULL CASE:
Republic of the Philippines SUPREME COURT Manila EN BANC
G.R. No. L-2662 March 26, 1949 SHIGENORI KURODA, petitioner,
vs. Major General RAFAEL JALANDONI, Brigadier General CALIXTO
DUQUE, Colonel MARGARITO TORALBA, Colonel IRENEO
BUENCONSEJO, Colonel PEDRO TABUENA, Major FEDERICO
ARANAS, MELVILLE S. HUSSEY and ROBERT PORT, respondents.
Pedro Serran, Jose G. Lukban, and Liberato B. Cinco for petitioner.
Fred Ruiz Castro Federico Arenas Mariano Yengco, Jr., Ricardo A.
Arcilla and S. Melville Hussey for respondents. MORAN, C.J.:
Shigenori Kuroda, formerly a Lieutenant-General of the Japanese
Imperial Army and Commanding General of the Japanese Imperial
Forces in The Philippines during a period covering 1943 and 1944,
who is now charged before a military Commission convened by the
Chief of Staff of the Armed forces of the Philippines with having
unlawfully disregarded and failed "to discharge his duties as such
command, permitting them to commit brutal atrocities and other high
crimes against noncombatant civilians and prisoners of the Imperial
Japanese Forces in violation of the laws and customs of war"
comes before this Court seeking to establish the illegality of
Executive Order No. 68 of the President of the Philippines: to enjoin
and prohibit respondents Melville S. Hussey and Robert Port from
participating in the prosecution of petitioner's case before the Military
Commission and to permanently prohibit respondents from
proceeding with the case of petitioners. In support of his case
petitioner tenders the following principal arguments. First. "That
Executive Order No. 68 is illegal on the ground that it violates not only
the provision of our constitutional law but also our local laws to say
nothing of the fact (that) the Philippines is not a signatory nor an
adherent to the Hague Convention on Rules and Regulations
covering Land Warfare and therefore petitioners is charged of 'crimes'
not based on law, national and international." Hence petitioner argues
"That in view off the fact that this commission has been
empanelled by virtue of an unconstitutional law an illegal order this
commission is without jurisdiction to try herein petitioner." Second.
That the participation in the prosecution of the case against petitioner
before the Commission in behalf of the United State of America of
attorneys Melville Hussey and Robert Port who are not attorneys
authorized by the Supreme Court to practice law in the Philippines is
a diminution of our personality as an independent state and their
appointment as prosecutors are a violation of our Constitution for the
reason that they are not qualified to practice law in the Philippines.
Third. That Attorneys Hussey and Port have no personality as
prosecutors, the United State not being a party in interest in the case.
Executive Order No. 68, establishing a National War Crimes Office
prescribing rule and regulation governing the trial of accused war
criminals, was issued by the President of the Philippines on the 29th
days of July, 1947 This Court holds that this order is valid and
constitutional. Article 2 of our Constitution provides in its section 3,
that The Philippines renounces war as an instrument of national
policy and adopts the generally accepted principles of international
law as part of the of the nation. In accordance with the generally
accepted principle of international law of the present day including the
Hague Convention the Geneva Convention and significant
precedents of international jurisprudence established by the United
Nation all those persons, military or civilian, who have been guilty of
planning preparing or waging a war of aggression and of the
commission of crimes and offenses consequential and incidental
thereto in violation of the laws and customs of war, of humanity and
civilization are held accountable therefor. Consequently in the
promulgation and enforcement of Execution Order No. 68 the
President of the Philippines has acted in conformity with the generally
accepted and policies of international law which are part of the our
Constitution. The promulgation of said executive order is an exercise
by the President of his power as Commander in chief of all our armed
forces as upheld by this Court in the case of Yamashita vs. Styer (L-
129, 42 Off. Gaz., 664) 1 when we said War is not ended simply
because hostilities have ceased. After cessation of armed hostilities
incident of war may remain pending which should be disposed of as
in time of war. An importance incident to a conduct of war is the
adoption of measure by the military command not only to repel and
defeat the enemies but to seize and subject to disciplinary measure
those enemies who in their attempt to thwart or impede our military
effort have violated the law of war. (Ex parte Quirin 317 U.S., 1; 63
Sup. Ct., 2.) Indeed the power to create a military commission for the
trial and punishment of war criminals is an aspect of waging war. And
in the language of a writer, a military commission has jurisdiction so
long as a technical state of war continues. This includes the period of
an armistice or military occupation up to the effective of a treaty of
peace and may extend beyond by treaty agreement. (Cowles Trial of
War Criminals by Military Tribunals, America Bar Association Journal
June, 1944.) Consequently, the President as Commander in Chief is
fully empowered to consummate this unfinished aspect of war,
namely the trial and punishment of war criminal through the issuance
and enforcement of Executive Order No. 68. Petitioner argues that
respondent Military Commission has no Jurisdiction to try petitioner
for acts committed in violation of the Hague Convention and the
Geneva Convention because the Philippines is not a signatory to the
first and signed the second only in 1947. It cannot be denied that the
rules and regulation of the Hague and Geneva conventions form part
of and are wholly based on the generally accepted principals of
international law. In facts these rules and principles were accepted by
the two belligerent nations, the United State and Japan, who were
signatories to the two Conventions. Such rules and principles
therefore form part of the law of our nation even if the Philippines was
not a signatory to the conventions embodying them for our
Constitution has been deliberately general and extensive in its scope
and is not confined to the recognition of rule and principle of
international law as continued in treaties to which our government
may have been or shall be a signatory. Furthermore when the crimes
charged against petitioner were allegedly committed, the Philippines
was under the sovereignty of United States and thus we were equally
bound together with the United States and with Japan to the rights
and obligations contained in the treaties between the belligerent
countries. These rights and obligations were not erased by our
assumption of full sovereignty. If at all our emergency as a free state
Philippines and prescribe the rules and regulation such trial. The
National War crimes office is established within the office of the
Judge Advocate General of the Army of the Philippines and shall
function under the direction supervision and control of the Judge
Advocate General. It shall proceed to collect from all available
sources evidence of war crimes committed in the Philippines from the
commencement of hostilities by Japan in December 1941, maintain a
record thereof and bring about the prompt trial maintain a record
thereof and bring about the prompt trial of the accused. The National
War Crimes Office shall maintain direct liaison with the Legal Section
General Headquarters, Supreme Commander for the Allied power
and shall exchange with the said Office information and evidence of
war crimes. The following rules and regulation shall govern the trial
off person accused as war criminals: ESTABLISHMENT OF
MILITARY COMMISSIONS (a) General. person accused as war
criminal shall be tried by military commission to be convened by or
under the authority of the Philippines. II. JURISDICTION (a) Over
Person. Thee military commission appointed hereunder shall have
jurisdiction over all persons charged with war crimes who are in the
custody of the convening authority at the time of the trial. (b) Over
Offenses. The military commission established hereunder shall
have jurisdiction over all offenses including but not limited to the
following: (1) The planning preparation initiation or waging of a war of
aggression or a war in violation of international treaties agreement or
assurance or participation in a common plan or conspiracy for the
accomplishment of any of the foregoing. (2) Violation of the laws or
customs of war. Such violation shall include but not be limited to
murder ill-treatment or deportation to slave labor or for other purpose
of civilian population of or in occupied territory; murder or ill-treatment
of prisoners of war or internees or person on the seas or elsewhere;
improper treatment of hostage; plunder of public or private property
wanton destruction of cities towns or village; or devastation not
justified by military necessity. (3) Murder extermination enslavement
deportation and other inhuman acts committed against civilian
population before or during the war or persecution on political racial
or religion ground in executive of or in connection with any crime
defined herein whether or not in violation of the local laws. III.
MEMBERSHIP OF COMMISSIONS (a) Appointment. The
members of each military commission shall be appointed by the
President of the Philippines or under authority delegated by him.
the commission may rule as being admissible. (7) The defense and
thereafter the prosecution shall address the commission. (8) The
commission thereafter shall consider the case in closed session and
unless otherwise directed by the convening authority, announce in
open court its judgment and sentence if any. The commission may
state the reason on which judgment is based. ( f ) Record of
Proceedings. Each commission shall make a separate record of its
proceeding in the trial of each case brought before it. The record shall
be prepared by the prosecutor under the direction of the commission
and submitted to the defense counsel. The commission shall be
responsible for its accuracy. Such record, certified by the presiding
member of the commission or his successor, shall be delivered to the
convening authority as soon as possible after the trial. (g) Sentence.
The commission may sentence an accused, upon conviction to
death by hanging or shooting, imprisonment for life or for any less
term, fine or such other punishment as the commission shall
determine to be proper. (h) Approval of Sentence. No. sentence of
a military commission shall be carried into effect until approved by the
chief off Staff: Provided, That no sentence of death or life
imprisonment shall be carried into execution until confirmed by the
President of the Philippines. For the purpose of his review the Chief
of Staff shall create a Board of Review to be composed of not more
than three officers none of whom shall be on duty with or assigned to
the Judge Advocate General's Office. The Chief of Staff shall have
authority to approve, mitigate remit in whole or in part, commute,
suspend, reduce or otherwise alter the sentence imposed, or (without
prejudice to the accused) remand the case for rehearing before a
new military commission; but he shall not have authority to increase
the severity of the sentence. Except as herein otherwise provided the
judgment and sentence of a commission shall final and not subject to
review by any other tribunal. VI. RULE-MAKING POWER
Supplementary Rule and Forms. Each commission shall adopt
rules and forms to govern its procedure, not inconsistent with the
provision of this Order, or such rules and forms as may be prescribed
by the convening authority]or by the President of the Philippines. VII.
The amount of amount of seven hundred thousand pesos is hereby
set aside out of the appropriations for the Army of the Philippines for
use by the National War Crimes Office in the accomplishment of its
mission as hereinabove set forth, and shall be expended in
accordance with the recommendation of the Judge Advocate General