Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. L-21897 October 22, 1963
RAMON A. GONZALES, petitioner,
vs.
RUFINO G. HECHANOVA, as Executive Secretary, MACARIO PERALTA, JR., as Secretary of
Defense, PEDRO GIMENEZ, as Auditor GeneraI, CORNELIO BALMACEDA, as Secretary of
Commerce and Industry, and SALVADOR MARINO, Secretary of Justice, respondents.
Ramon A. Gonzales in his own behalf as petitioner.
Office of the Solicitor General and Estanislao Fernandez for respondents.
CONCEPCION,
This is an original action for prohibition with preliminary injunction.
t is not disputed that on September 22, 1963, respondent Executive Secretary authorized the
importation of 67,000 tons of foreign rice to be purchased from private sources, and created a rice
procurement committee composed of the other respondents herein
1
for the implementation of said
proposed importation. Thereupon, or September 25, 1963, herein petitioner, Ramon A. Gonzales
a rice planter, and president of the loilo Palay and Corn Planters Association, whose members are,
likewise, engaged in the production of rice and corn filed the petition herein, averring that, in
making or attempting to make said importation of foreign rice, the aforementioned respondents "are
acting without jurisdiction or in excess of jurisdiction", because Republic Act No. 3452 which
allegedly repeals or amends Republic Act No. 220 explicitly prohibits the importation of rice and
corn "the Rice and Corn Administration or any other government agency;" that petitioner has no
other plain, speedy and adequate remedy in the ordinary course of law; and that a preliminary
injunction is necessary for the preservation of the rights of the parties during the pendency this case
and to prevent the judgment therein from coming ineffectual. Petitioner prayed, therefore, that said
petition be given due course; that a writ of preliminary injunction be forthwith issued restraining
respondent their agents or representatives from implementing the decision of the Executive
Secretary to import the aforementioned foreign rice; and that, after due hearing, judgment be
rendered making said injunction permanent.
Forthwith, respondents were required to file their answer to the petition which they did, and
petitioner's pray for a writ of preliminary injunction was set for hearing at which both parties
appeared and argued orally. Moreover, a memorandum was filed, shortly thereafter, by the
respondents. Considering, later on, that the resolution said incident may require some
pronouncements that would be more appropriate in a decision on the merits of the case, the same
was set for hearing on the merits thereafter. The parties, however, waived the right to argue orally,
although counsel for respondents filed their memoranda.
. Sufficiency of petitioner's interest.
Respondents maintain that the status of petitioner as a rice planter does not give him sufficient
interest to file the petition herein and secure the relief therein prayed for. We find no merit in this
pretense. Apart from prohibiting the importation of rice and corn "by the Rice and Corn
Administration or any other government agency". Republic Act No. 3452 declares, in Section 1
thereof, that "the policy of the Government" is to "engage in the purchase of these basic
foods directly from those tenants, farmers, growers, producers and landowners in the
Philippines who wish to dispose of their products at a price that will afford them a fair and just return
for their labor and capital investment. ... ." Pursuant to this provision, petitioner, as a planter with a
rice land of substantial proportion,
2
is entitled to a chance to sell to the Government the rice it now
seeks to buy abroad. Moreover, since the purchase of said commodity will have to be effected with
public funds mainly raised by taxation, and as a rice producer and landowner petitioner must
necessarily be a taxpayer, it follows that he has sufficient personality and interest to seek judicial
assistance with a view to restraining what he believes to be an attempt to unlawfully disburse said
funds.
. Exhaustion of administrative remedies.
Respondents assail petitioner's right to the reliefs prayed for because he "has not exhausted all
administrative remedies available to him before coming to court". We have already held, however,
that the principle requiring the previous exhaustion of administrative remedies is not applicable
where the question in dispute is purely a legal one",
3
or where the controverted act is "patently
illegal" or was performed without jurisdiction or in excess of jurisdiction,
4
or where the respondent is
a department secretary, whose acts as an alter-ego of the President bear the implied or assumed
approval of the latter,
5
unless actually disapproved by him,
6
or where there are circumstances
indicating the urgency of judicial intervention.
7
The case at bar fails under each one of the foregoing
exceptions to the general rule. Respondents' contention is, therefore, untenable.
. Merits of petitioner's cause of action.
Respondents question the sufficiency of petitioner's cause of action upon the theory that the
proposed importation in question is not governed by Republic Acts Nos. 2207 and 3452, but was
authorized by the President as Commander-in-Chief "for military stock pile purposes" in the exercise
of his alleged authority under Section 2 of Commonwealth Act No. 1;
8
that in cases of necessity, the
President "or his subordinates may take such preventive measure for the restoration of good order
and maintenance of peace"; and that, as Commander-in-Chief of our armed forces, "the President ...
is duty-bound to prepare for the challenge of threats of war or emergency withoutwaiting for any
special authority".
Regardless of whether Republic Act No. 3452 repeals Republic Act No. 2207, as contended by
petitioner herein - on which our view need not be expressed we are unanimously of the opinion -
assuming that said Republic Act No. 2207 is still in force that the two Acts are applicable to the
proposed importation in question because the language of said laws is such as to include within the
purview thereof all importations of rice and corn into the Philippines". Pursuant to Republic Act No.
2207, "it shall be unlawful for any person, association, corporation orgovernment agency to import
rice and corn into any point in the Philippines", although, by way of exception, it adds, that "the
President of the Philippines may authorize the importation of these commodities through any
government agency that he may designate", is the conditions prescribed in Section 2 of said Act are
present. Similarly, Republic Act No. 3452 explicitly enjoins "the Rice and Corn Administration or any
government agency" from importing rice and corn.
Respondents allege, however, that said provisions of Republic Act Nos. 2207 and 3452, prohibiting
the importation of rice and corn by any "government agency", do not apply to importations "made by
the Government itself", because the latter is not a "government agency". This theory is devoid of
merit. The Department of National Defense and the Armed Forces of the Philippines, as well as
respondents herein, and each and every officer and employee of our Government, our government
agencies and/or agents. The applicability of said laws even to importations by the Government as
such, becomes more apparent when we consider that:
1. The importation permitted in Republic Act No. 2207 is to be authorized by the "President of the
Philippines" and, hence, by or on behalf of the Government of the Philippines;
2. mmediately after enjoining the Rice and Corn administration and any other government agency
from importing rice and corn, Section 10 of Republic Act No. 3452 adds "that the importation of rice
and corn is left to private parties upon payment of the corresponding taxes", thus indicating
that only "private parties" may import rice under its provisions; and
3. Aside from prescribing a fine not exceeding P10,000.00 and imprisonment of not more than five
(5) years for those who shall violate any provision of Republic Act No. 3452 or any rule and
regulation promulgated pursuant thereto, Section 15 of said Act provides that "if the offender is
a public official and/or employees", he shall be subject to the additional penalty specified therein. A
public official is an officer of the Government itself, as distinguished from officers or employees of
instrumentalities of the Government. Hence, the duly authorized acts of the former are those of the
Government, unlike those of a government instrumentality which may have a personality of its own,
distinct and separate from that of the Government, as such. The provisions of Republic Act No. 2207
are, in this respect, even more explicit. Section 3 thereof provides a similar additional penalty for any
"officer or employee of the Government" who "violates, abets or tolerates the violation of any
provision" of said Act. Hence, the intent to apply the same to transactions made by the very
government is patent.
ndeed, the restrictions imposed in said Republic Acts are merely additional to those prescribed in
Commonwealth Act No. 138, entitled "An Act to give native products and domestic entities the
preference in the purchase of articles for the Government." Pursuant to Section 1 thereof:
The Purchase and Equipment Division of the Government of the Philippines and other
officers and employees of the municipal and provincial governments and the Government of
the Philippines and of chartered cities, boards, commissions, bureaus, departments, offices,
agencies, branches, and bodies of any description, including government-owned companies,
authorized to requisition, purchase, or contract or make disbursements for articles, materials,
and supplies for public use, public buildings, or public works shall give preference to
materials ... produced ... in the Philippines or in the United States, and to domestic entities,
subject to the conditions hereinbelow specified. (Emphasis supplied.)
Under this provision, in all purchases by the Government, including those made by and/or for the
armed forces,preference shall be given to materials produced in the Philippines. The importation
involved in the case at bar violates this general policy of our Government, aside from the provisions
of Republic Acts Nos. 2207 and 3452.
The attempt to justify the proposed importation by invoking reasons of national security
predicated upon the "worsening situation in Laos and Vietnam", and "the recent tension created by
the Malaysia problem" - and the alleged powers of the President as Commander-in-Chief of all
armed forces in the Philippines, under Section 2 of the National Defense Act (Commonwealth Act
No. 1), overlooks the fact that the protection of local planters of rice and corn in a manner that would
foster and accelerate self-sufficiency in the local production of said commodities constitutes a factor
that is vital to our ability to meet possible national emergency. Even if the intent in importing goods in
anticipation of such emergency were to bolster up that ability, the latter would, instead, be impaired if
the importation were so made as to discourage our farmers from engaging in the production of rice.
Besides, the stockpiling of rice and corn for purpose of national security and/or national emergency
is within the purview of Republic Act No. 3452. Section 3 thereof expressly authorizes the Rice and
Corn Administration "to accumulate stocks as a national reserve in such quantities as it may deem
proper and necessary to meet any contingencies". Moreover, it ordains that "the buffer stocks held
as a national reserve ... be deposited by the administration throughout the country under the proper
dispersal plans ... and may be released only upon the occurrence of calamities or emergencies ...".
(Emphasis applied.)
Again, the provisions of Section 2 of Commonwealth Act No. 1, upon which respondents rely so
much, are not self-executory. They merely outline the general objectives of said legislation. The
means for the attainment of those objectives are subject to congressional legislation. Thus, the
conditions under which the services of citizens, as indicated in said Section 2, may be availed of, are
provided for in Sections 3, 4 and 51 to 88 of said Commonwealth Act No. 1. Similarly, Section 5
thereof specifies the manner in which resources necessary for our national defense may be secured
by the Government of the Philippines, but only "during a national mobilization",
9
which does not exist.
nferentially, therefore, in the absence of a national mobilization, said resources shall be produced in
such manner as Congress may by other laws provide from time to time. nsofar as rice and corn are
concerned, Republic Acts Nos. 2207 and 3452, and Commonwealth Act No. 138 are such laws.
Respondents cite Corwin in support of their pretense, but in vain. An examination of the work
cited
10
shows that Corwin referred to the powers of the President during "war time"
11
or when he has
placed the country or a part thereof under "martial law".
12
Since neither condition obtains in the case
at bar, said work merely proves that respondents' theory, if accepted, would, in effect, place the
Philippines under martial law, without a declaration of the Executive to that effect. What is worse, it
would keep us perpetually under martial law.
t has been suggested that even if the proposed importation violated Republic Acts Nos. 2207 and
3452, it should, nevertheless, be permitted because "it redounds to the benefit of the people". Salus
populi est suprema lex, it is said.
f there were a local shortage of rice, the argument might have some value. But the respondents, as
officials of this Government, have expressly affirmed again and again that there is no rice shortage.
And the importation is avowedly for stockpile of the Army not the civilian population.
But let us follow the respondents' trend of thought. t has a more serious implication that appears on
the surface. t implies that if an executive officer believes that compliance with a certain statute will
not benefit the people, he is at liberty to disregard it. That idea must be rejected - we still live under a
rule of law.
And then, "the people" are either producers or consumers. Now as respondents explicitly admit
Republic Acts Nos. 2207 and 3452 were approved by the Legislature for the benefit of producers
and consumers, i.e., the people, it must follow that the welfare of the people lies precisely in
the compliance with said Acts.
t is not for respondent executive officers now to set their own opinions against that of the
Legislature, and adopt means or ways to set those Acts at naught. Anyway, those laws permit
importation but under certain conditions, which have not been, and should be complied with.
V. The contracts with Vietnam and Burma
t is lastly contended that the Government of the Philippines has already entered into two (2)
contracts for the Purchase of rice, one with the Republic of Vietnam, and another with the
Government of Burma; that these contracts constitute valid executive agreements under
international law; that such agreements became binding effective upon the signing thereof by
representatives the parties thereto; that in case of conflict between Republic Acts Nos. 2207 and
3452 on the one hand, and aforementioned contracts, on the other, the latter should prevail,
because, if a treaty and a statute are inconsistent with each other, the conflict must be resolved
under the American jurisprudence in favor of the one which is latest in point of time; that petitioner
herein assails the validity of acts of the Executive relative to foreign relations in the conduct of which
the Supreme Court cannot interfere; and the aforementioned contracts have already been
consummated, the Government of the Philippines having already paid the price of the rice involved
therein through irrevocable letters of credit in favor of the sell of the said commodity. We find no
merit in this pretense.
The Court is not satisfied that the status of said tracts as alleged executive agreements has been
sufficiently established. The parties to said contracts do not pear to have regarded the same as
executive agreements. But, even assuming that said contracts may properly considered as
executive agreements, the same are unlawful, as well as null and void, from a constitutional
viewpoint, said agreements being inconsistent with the provisions of Republic Acts Nos. 2207 and
3452. Although the President may, under the American constitutional system enter into executive
agreements without previous legislative authority, he may not, by executive agreement, enter into a
transaction which is prohibited by statutes enacted prior thereto. Under the Constitution, the main
function of the Executive is to enforce laws enacted by Congress. The former may not interfere in
the performance of the legislative powers of the latter, except in the exercise of his veto power. He
may not defeat legislative enactments that have acquired the status of law, by indirectly
repealing the same through an executive agreement providing for the performance of the very act
prohibited by said laws.
The American theory to the effect that, in the event of conflict between a treaty and a statute, the
one which is latest in point of time shall prevail, is not applicable to the case at bar, for respondents
not only admit, but, alsoinsist that the contracts adverted to are not treaties. Said theory may be
justified upon the ground that treaties to which the United States is signatory require the advice and
consent of its Senate, and, hence, of a branch of the legislative department. No such justification can
be given as regards executive agreements not authorized by previous legislation, without completely
upsetting the principle of separation of powers and the system of checks and balances which are
fundamental in our constitutional set up and that of the United States.
As regards the question whether an international agreement may be invalidated by our courts,
suffice it to say that the Constitution of the Philippines has clearly settled it in the affirmative, by
providing, in Section 2 of Article V thereof, that the Supreme Court may not be deprived "of its
jurisdiction to review, revise, reverse, modify, or affirm on appeal, certiorari, or writ of error as the law
or the rules of court may provide, final judgments and decrees of inferior courts in (1) All cases in
which the constitutionality or validity of any treaty, law, ordinance, or executive order or regulation is
in question". n other words, our Constitution authorizes the nullification of a treaty, not only when it
conflicts with the fundamental law, but, also, when it runs counter to an act of Congress.
The alleged consummation of the aforementioned contracts with Vietnam and Burma
does not render this case academic, Republic Act No. 2207 enjoins our Government not
from entering into contracts for the purchase of rice, but from importing rice, except under the
conditions Prescribed in said Act. Upon the other hand, Republic Act No. 3452 has two (2) main
features, namely: (a) it requires the Government to purchase rice and corn directly from our local
planters, growers or landowners; and (b) it prohibits importations of rice by the Government, and
leaves such importations to private parties. The pivotal issue in this case is whether the
proposed importation which has not been consummated as yet is legally feasible.
Lastly, a judicial declaration of illegality of the proposed importation would not compel our
Government to default in the performance of such obligations as it may have contracted with the
sellers of the rice in question, because, aside from the fact that said obligations may be complied
with without importing the commodity into the Philippines, the proposed importation may still be
legalized by complying with the provisions of the aforementioned laws.
V. The writ of preliminary injunction.
The members of the Court have divergent opinions on the question whether or not respondents
herein should be enjoined from implementing the aforementioned proposed importation. However,
the majority favors the negative view, for which reason the injunction prayed for cannot be granted.
WHEREFORE, judgment is hereby rendered declaring that respondent Executive Secretary had and
has no power to authorize the importation in question; that he exceeded his jurisdiction in granting
said authority; said importation is not sanctioned by law and is contrary to its provisions; and that, for
lack of the requisite majority, the injunction prayed for must be and is, accordingly denied. t is so
ordered.
Bengzon, CJ, Padilla, Labrador, Reyes, J.B.L., Dizon and Makalintal, JJ., concur.
Paredes and Regala, JJ., concur in the result.


Separate Opinions
BAUTISTA ANGELO, concurring:
Under Republic Act No. 2207, which took effect on May 15, 1959, it is unlawful for any person,
association, corporation or government agency to import rice and corn into any point in the
Philippines. The exception is if there is an existing or imminent shortage of such commodity of much
gravity as to constitute national emergency in which case an importation may be authorized by the
President when so certified by the National Economic Council.
However, on June 14, 1962, Republic Act 3452 was enacted providing that the importation of rice
and corn canonly be made by private parties thereby prohibiting from doing so the Rice and Corn
Administration or any other government agency. Republic Act 3452 does not expressly repeal
Republic Act 2207, but only repeals or modified those parts thereof that are inconsistent with its
provisions. The question that now arises is: Has the enactment of Republic Act 3452 the effect of
prohibiting completely the government from importing rice and corn into the Philippines?
My answer is in the negative. Since this Act does not in any manner provide for the importation of
rice and corn in case of national emergency, the provision of the former law on that matter should
stand, for that is not inconsistent with any provision embodied in Republic Act 3452. The Rice and
Corn Administration, or any other government agency, may therefore still import rice and corn into
the Philippines as provided in Republic Act 2207 if there is a declared national emergency.
The next question that arises is: Can the government authorize the importation of rice and corn
regardless of Republic Act 2207 if that is authorized by the President as Commander-in-Chief of the
Philippine Army as a military precautionary measure for military stockpile?
Respondents answer this question in the affirmative. They advance the argument that it is the
President's duty to see to it that the Armed Forces of the Philippines are geared to the defenses of
the country as well as to the fulfillment of our international commitments in Southeast Asia in the
event the peace and security of the area are in danger. The stockpiling of rice, they aver, is an
essential requirement of defense preparation in view of the limited local supply and the probable
disruption of trade and commerce with outside countries in the event of armed hostilities, and this
military precautionary measure is necessary because of the unsettled conditions in the Southeast
Asia bordering on actual threats of armed conflicts as evaluated by the ntelligence Service of the
Military Department of our Government. This advocacy, they contend, finds support in the national
defense policy embodied in Section 2 of our National Defense Act (Commonwealth Act No. 1), which
provides:
(a) The preservation of the State is the obligation of every citizen. The security of the
Philippines and the freedom, independence and perpetual neutrality of the Philippine
Republic shall be guaranteed by the employment of all citizens, without distinction of sex or
age, and all resources.
(b) The employment of the nation's citizens and resources for national defense shall be
effected by a national mobilization.
(c) The national mobilization shall include the execution of all measures necessary to pass
from a peace to a war footing.
(d) The civil authority shall always be supreme. The President of the Philippines as the
Commander-in-Chief of all military forces, shall be responsible that mobilization measures
are prepared at all times.(Emphasis supplied)
ndeed, find in that declaration of policy that the security of the Philippines and its freedom
constitutes the core of the preservation of our State which is the basic duty of every citizen and that
to secure which it is enjoined that the President employ all the resources at his command. But over
and above all that power and duty, fundamental as they may seem, there is the injunction that the
civil authority shall always be supreme. This injunction can only mean that while all precautions
should be taken to insure the security and preservation of the State and to this effect the
employment of all resources may be resorted to, the action must always be taken within the
framework of the civil authority. Military authority should be harmonized and coordinated with civil
authority, the only exception being when the law clearly ordains otherwise. Neither Republic Act
2207, nor Republic Act 3452, contains any exception in favor of military action concerning
importation of rice and corn. An exception must be strictly construed.
A distinction is made between the government and government agency in an attempt to take the
former out of the operation of Republic Act 2207. disagree. The Government of the Republic of the
Philippines under the Revised Administrative Code refers to that entity through which the functions
of government are exercised, including the various arms through which political authority is made
effective whether they be provincial, municipal or other form of local government, whereas a
government instrumentality refers to corporations owned or controlled by the government to promote
certain aspects of the economic life of our people. A government agency, therefore, must
necessarily refer to the government itself of the Republic, as distinguished from any government
instrumentality which has a personality distinct and separate from it (Section 2).
The important point to determine, however, is whether we should enjoin respondents from carrying
out the importation of the rice which according to the record has been authorized to be imported on
government to government level, it appearing that the arrangement to this effect has already been
concluded, the only thing lacking being its implementation. This is evident from the manifestation
submitted by the Solicitor General wherein it appears that the contract for the purchase of 47,000
tons of rice from had been sign on October 5, 1963, and for the purchase of 20,000 tons from Burma
on October 8, 1963, by the authorized representatives of both our government and the governments
of Vietnam and Burma, respectively. f it is true that, our government has already made a formal
commitment with the selling countries there arises the question as to whether the act can still be
impeded at this stage of the negotiations. Though on this score there is a divergence of opinion, it is
gratifying to note that the majority has expressed itself against it. This is a plausible attitude for, had
the writ been issued, our government would have been placed in a predicament where, as a
necessary consequence, it would have to repudiate a duly formalized agreement to its great
embarrassment and loss of face. This was avoided by the judicial statesmanship evinced by the
Court.


BARRERA, concurring:
Because of possible complications that might be aggravated by misrepresentation of the true nature
and scope of the case before this Court, it is well to restate as clearly as possible, the real and only
issue presented by the respondents representing the government.
From the answer filed by the Solicitor General, in behalf of respondents, we quote:
The importation of the rice in question by the Armed Forces of the Philippines is for military
stockpilingauthorized by the President pursuant to his inherent power as commander-in-chief
and as a military precautionary measure in view the worsening situation in Laos and Vietnam
and, it may added, the recent, tension created by the Malaysia problem (Answer, p. 2;
emphasis supplied.)
During the oral argument, Senator Fernandez, appealing in behalf of the respondents, likewise
reiterated the imported rice was for military stockpiling, and which he admitted that some of it went to
the Rice and Corn Administration, he emphasized again and again that rice was not intended for the
RCA for distribution to people, as there was no shortage of rice for that purpose but it was only
exchanged for palay because this could better preserved.
From the memorandum filed thereafter by the Solicits General, again the claim was made:
We respectfully reiterate the arguments in our answer dated October 4, 1963 that the
importation of rice sought be enjoined in this petition is in the exercise of the authority vested
in the President of the Philippines as Commander-in-Chief of the Armed Forces, as a
measure of military preparedness demanded by a real and actual threat of emergency in the
South East Asian countries. (p. 1, Emphasis supplied.)
xxx xxx xxx
t (the stressing of the unsettled conditions in Southeast Asia) is merely our intention to show
the necessity for the stockpiling of rice for army purposes, which is the very reason for the
importation.
xxx xxx xxx
As it is, the importation in question is being made by the Republic of the Philippines for its
own use, and the rice is not supposed to be poured into the open market as to affect the
price to be paid by the public. (p. 4, Emphasis supplied.)
xxx xxx xxx
What we do contend is that the law, for want of express and clear provision to that
effect, does not include in its prohibition importation by the Government of rice for its own
use and not for the consuming public, regardless of whether there is or there is no
emergency. (p. 5, Emphasis supplied.)
From the above, it not only appears but is evident that the respondents were not concerned with
the present rice situation confronting the consuming public, but were solely and exclusively after the
stockpiling of rice for thefuture use of the army. The issue, therefore, in which the Government was
interested is not whether rice is imported to give the people a bigger or greater supply to maintain
the price at P.80 per ganta for, to quote again their contention: "the rice is not supposed to be
poured into the open market to affect the price to be paid by the public, as it is not for the consuming
public, regardless of whether there is or there is no emergency", but whether rice can legally be
imported by the Armed Forces of the Philippines avowedly for its future use, notwithstanding the
prohibitory provisions of Republic Acts Nos. 2207 and 3452. The majority opinion ably sets forth the
reasons why this Court can not accept the contention of the respondents that this importation is
beyond and outside the operation of these statutes. can only emphasize that see in the theory
advanced by the Solicitor General a dangerous trend that because the policies enunciated in the
cited laws are for the protection of the producers and the consumers, the army is removed from their
application. To adopt this theory is to proclaim the existence in the Philippines of three economic
groups or classes: the producers, the consumers, and the Armed Forces of the Philippines. What is
more portentous is the effect to equate the army with the Government itself.
Then again, the importation of this rice for military stockpiling is sought to be justified by the alleged
threat of emergency in the Southeast Asian countries. But the existence of this supposed threat was
unilaterally determined by the Department of National Defense alone. We recall that there exists a
body called the National Security Council in which are represented the Executive as well as the
Legislative department. n it sit not only members of the party in power but of the opposition as well.
To our knowledge, this is the highest consultative body which deliberates precisely in times of
emergency threatening to affect the security of the state. The democratic composition of this council
is to guarantee that its deliberations would be non-partisan and only the best interests of the nation
will be considered. Being a deliberative body, it insures against precipitate action. This is as it should
be. Otherwise, in these days of ever present cold war, any change or development in the political
climate in any region of the world is apt to be taken as an excuse for the military to conjure up a
crisis or emergency and thereupon attempt to override our laws and legal processes, and
imperceptibly institute some kind of martial law on the pretext of precautionary mobilization measure
avowedly in the interest of the security of the state. One need not, be too imaginative to perceive a
hint of this in the present case.
The Supreme Court, in arriving at the conclusion unanimously reached, is fully aware of the difficult
and delicate task it had to discharge. ts position is liable to be exploited by some for their own
purposes by claiming and making it appear that the Court is unmindful of the plight of our people
during these days of hardship; that it preferred to give substance to the "niceties of the law than
heed the needs of the people. Our answer is that the Court was left no alternative. t had, in
compliance with its duty, to decide the case upon the facts presented to it. The respondents,
representing the administration, steadfastly maintained and insisted that there is no rice shortage;
that the imported rice is not for the consuming public and is not supposed to be placed in the open
market to affect the price to be paid by the public; that it is solely for stockpiling of the army for future
use as a measure of mobilization in the face of what the Department of National Defense unilaterally
deemed a threatened armed conflict in Southeast Asia. Confronted with these facts upon, which the
Government has built and rested its case, we have searched in vain for legal authority or cogent
reasons to justify this importation made admittedly contrary to the provisions of Republic Acts Nos.
2207 and 3452. say admittedly, because respondents never as much as pretended that the
importation fulfills the conditions specified in these laws, but limited themselves to the contention,
which is their sole defense that this importation does not fall within the scope of said laws. n our
view, however, the laws are clear. The laws are comprehensive and their application does not admit
of any exception. The laws are adequate. Compliance therewith is not difficult, much less
impossible. The avowed emergency, if at all, is not urgently immediate.
n this connection, it is pertinent to bear in mind that the Supreme Court has a duty to perform under
the Constitution. t has to decide, when called upon to do so in an appropriate proceeding, all cases
in which the constitutionality or validity of any treaty, law, ordinance, executive order or regulation is
in question. We can not elude this duty. To do so would be culpable dereliction on our part. While we
sympathize with the public that might be adversely affected as a result of this decision yet our
sympathy does not authorize us to sanction an act contrary to applicable laws. The fault lies with
those who stubbornly contended and represented before this Court that there is no rice shortage,
that the imported rice is not intended for the consuming public, but for stockpiling of the army. And, if
as now claimed before the public, contrary to the Government's stand in this case, that there is need
for imported rice to stave off hunger, our legislature has provided for such a situation. As already
stated, the laws are adequate. The importation of rice under the conditions set forth in the laws may
be authorized not only where there is an existing shortage, but also when the shortage is imminent.
n other words, lawful remedy to solve the situation is available, if only those who have the duty to
execute the laws perform their duty. f there is really need for the importation of rice, who adopt
some dubious means which necessitates resort to doubtful exercise of the power of the President as
Commander-in-Chief of the Army? Why not comply with the mandate of the law? Ours is supposed
to be a regime under the rule of law. Adoption as a government policy of the theory of the end
justifies the means brushing aside constitutional and legal restraints, must be rejected, lest we end
up with the end of freedom.
For these reasons, concur in the decision of the Court.

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. L-7995 May 31, 1957
LAO H. ICHONG, in his own behaIf and in behaIf of other aIien residents, corporations and
partnerships adverseIy affected. by RepubIic Act No. 1180, petitioner,
vs.
JAIME HERNANDEZ, Secretary of Finance, and MARCELINO SARMIENTO, City Treasurer of
ManiIa,respondents.
Ozaeta, Lichauco and Picazo and Sycip, Quisumbing, Salazar and Associates for petitioner.
Office of the Solicitor General Ambrosio Padilla and Solicitor Pacifico P. de Castro for respondent
Secretary of Finance.
City Fiscal Eugenio Angeles and Assistant City Fiscal Eulogio S. Serrano for respondent City
Treasurer.
Dionisio Reyes as Amicus Curiae.
Marcial G. Mendiola as Amicus Curiae.
Emiliano R. Navarro as Amicus Curiae.
LABRADOR, :
. The case and issue, in general
This Court has before it the delicate task of passing upon the validity and constitutionality of a
legislative enactment, fundamental and far-reaching in significance. The enactment poses questions
of due process, police power and equal protection of the laws. t also poses an important issue of
fact, that is whether the conditions which the disputed law purports to remedy really or actually exist.
Admittedly springing from a deep, militant, and positive nationalistic impulse, the law purports to
protect citizen and country from the alien retailer. Through it, and within the field of economy it
regulates, Congress attempts to translate national aspirations for economic independence and
national security, rooted in the drive and urge for national survival and welfare, into a concrete and
tangible measures designed to free the national retailer from the competing dominance of the alien,
so that the country and the nation may be free from a supposed economic dependence and
bondage. Do the facts and circumstances justify the enactment?
. Pertinent provisions of Republic Act No. 1180
Republic Act No. 1180 is entitled "An Act to Regulate the Retail Business." n effect it nationalizes
the retail trade business. The main provisions of the Act are: (1) a prohibition against persons, not
citizens of the Philippines, and against associations, partnerships, or corporations the capital of
which are not wholly owned by citizens of the Philippines, from engaging directly or indirectly in the
retail trade; (2) an exception from the above prohibition in favor of aliens actually engaged in said
business on May 15, 1954, who are allowed to continue to engaged therein, unless their licenses are
forfeited in accordance with the law, until their death or voluntary retirement in case of natural
persons, and for ten years after the approval of the Act or until the expiration of term in case of
juridical persons; (3) an exception therefrom in favor of citizens and juridical entities of the United
States; (4) a provision for the forfeiture of licenses (to engage in the retail business) for violation of
the laws on nationalization, control weights and measures and labor and other laws relating to trade,
commerce and industry; (5) a prohibition against the establishment or opening by aliens actually
engaged in the retail business of additional stores or branches of retail business, (6) a provision
requiring aliens actually engaged in the retail business to present for registration with the proper
authorities a verified statement concerning their businesses, giving, among other matters, the nature
of the business, their assets and liabilities and their offices and principal offices of judicial entities;
and (7) a provision allowing the heirs of aliens now engaged in the retail business who die, to
continue such business for a period of six months for purposes of liquidation.
. Grounds upon which petition is based-Answer thereto
Petitioner, for and in his own behalf and on behalf of other alien residents corporations and
partnerships adversely affected by the provisions of Republic Act. No. 1180, brought this action to
obtain a judicial declaration that said Act is unconstitutional, and to enjoin the Secretary of Finance
and all other persons acting under him, particularly city and municipal treasurers, from enforcing its
provisions. Petitioner attacks the constitutionality of the Act, contending that: (1) it denies to alien
residents the equal protection of the laws and deprives of their liberty and property without due
process of law ; (2) the subject of the Act is not expressed or comprehended in the title thereof; (3)
the Act violates international and treaty obligations of the Republic of the Philippines; (4) the
provisions of the Act against the transmission by aliens of their retail business thru hereditary
succession, and those requiring 100% Filipino capitalization for a corporation or entity to entitle it to
engage in the retail business, violate the spirit of Sections 1 and 5, Article X and Section 8 of
Article XV of the Constitution.
n answer, the Solicitor-General and the Fiscal of the City of Manila contend that: (1) the Act was
passed in the valid exercise of the police power of the State, which exercise is authorized in the
Constitution in the interest of national economic survival; (2) the Act has only one subject embraced
in the title; (3) no treaty or international obligations are infringed; (4) as regards hereditary
succession, only the form is affected but the value of the property is not impaired, and the institution
of inheritance is only of statutory origin.
V. Preliminary consideration of legal principles involved
a. The police power.
There is no question that the Act was approved in the exercise of the police power, but petitioner
claims that its exercise in this instance is attended by a violation of the constitutional requirements of
due process and equal protection of the laws. But before proceeding to the consideration and
resolution of the ultimate issue involved, it would be well to bear in mind certain basic and
fundamental, albeit preliminary, considerations in the determination of the ever recurrent conflict
between police power and the guarantees of due process and equal protection of the laws. What is
the scope of police power, and how are the due process and equal protection clauses related to it?
What is the province and power of the legislature, and what is the function and duty of the courts?
These consideration must be clearly and correctly understood that their application to the facts of the
case may be brought forth with clarity and the issue accordingly resolved.
t has been said the police power is so far - reaching in scope, that it has become almost impossible
to limit its sweep. As it derives its existence from the very existence of the State itself, it does not
need to be expressed or defined in its scope; it is said to be co-extensive with self-protection and
survival, and as such it is the most positive and active of all governmental processes, the most
essential, insistent and illimitable. Especially is it so under a modern democratic framework where
the demands of society and of nations have multiplied to almost unimaginable proportions; the field
and scope of police power has become almost boundless, just as the fields of public interest and
public welfare have become almost all-embracing and have transcended human foresight.
Otherwise stated, as we cannot foresee the needs and demands of public interest and welfare in this
constantly changing and progressive world, so we cannot delimit beforehand the extent or scope of
police power by which and through which the State seeks to attain or achieve interest or welfare. So
it is that Constitutions do not define the scope or extent of the police power of the State; what they
do is to set forth the limitations thereof. The most important of these are the due process clause and
the equal protection clause.
b. Limitations on police power.
The basic limitations of due process and equal protection are found in the following provisions of our
Constitution:
SECTON 1.(1) No person shall be deprived of life, liberty or property without due process of
law, nor any person be denied the equal protection of the laws. (Article , Phil. Constitution)
These constitutional guarantees which embody the essence of individual liberty and freedom in
democracies, are not limited to citizens alone but are admittedly universal in their application, without
regard to any differences of race, of color, or of nationality. (Yick Wo vs. Hopkins, 30, L. ed. 220,
226.)
c. The, equal protection clause.
The equal protection of the law clause is against undue favor and individual or class privilege, as
well as hostile discrimination or the oppression of inequality. t is not intended to prohibit legislation,
which is limited either in the object to which it is directed or by territory within which is to operate. t
does not demand absolute equality among residents; it merely requires that all persons shall be
treated alike, under like circumstances and conditions both as to privileges conferred and liabilities
enforced. The equal protection clause is not infringed by legislation which applies only to those
persons falling within a specified class, if it applies alike to all persons within such class, and
reasonable grounds exists for making a distinction between those who fall within such class and
those who do not. (2 Cooley, Constitutional Limitations, 824-825.)
d. The due process clause.
The due process clause has to do with the reasonableness of legislation enacted in pursuance of the
police power. s there public interest, a public purpose; is public welfare involved? s the Act
reasonably necessary for the accomplishment of the legislature's purpose; is it not unreasonable,
arbitrary or oppressive? s there sufficient foundation or reason in connection with the matter
involved; or has there not been a capricious use of the legislative power? Can the aims conceived
be achieved by the means used, or is it not merely an unjustified interference with private interest?
These are the questions that we ask when the due process test is applied.
The conflict, therefore, between police power and the guarantees of due process and equal
protection of the laws is more apparent than real. Properly related, the power and the guarantees
are supposed to coexist. The balancing is the essence or, shall it be said, the indispensable means
for the attainment of legitimate aspirations of any democratic society. There can be no absolute
power, whoever exercise it, for that would be tyranny. Yet there can neither be absolute liberty, for
that would mean license and anarchy. So the State can deprive persons of life, liberty and property,
provided there is due process of law; and persons may be classified into classes and groups,
provided everyone is given the equal protection of the law. The test or standard, as always, is
reason. The police power legislation must be firmly grounded on public interest and welfare, and a
reasonable relation must exist between purposes and means. And if distinction and classification
has been made, there must be a reasonable basis for said distinction.
e. Legislative discretion not subject to judicial review.
Now, in this matter of equitable balancing, what is the proper place and role of the courts? t must
not be overlooked, in the first place, that the legislature, which is the constitutional repository of
police power and exercises the prerogative of determining the policy of the State, is by force of
circumstances primarily the judge of necessity, adequacy or reasonableness and wisdom, of any law
promulgated in the exercise of the police power, or of the measures adopted to implement the public
policy or to achieve public interest. On the other hand, courts, although zealous guardians of
individual liberty and right, have nevertheless evinced a reluctance to interfere with the exercise of
the legislative prerogative. They have done so early where there has been a clear, patent or
palpable arbitrary and unreasonable abuse of the legislative prerogative. Moreover, courts are not
supposed to override legitimate policy, and courts never inquire into the wisdom of the law.
V. Economic problems sought to be remedied
With the above considerations in mind, we will now proceed to delve directly into the issue involved.
f the disputed legislation were merely a regulation, as its title indicates, there would be no question
that it falls within the legitimate scope of legislative power. But it goes further and prohibits a group of
residents, the aliens, from engaging therein. The problem becomes more complex because its
subject is a common, trade or occupation, as old as society itself, which from the immemorial has
always been open to residents, irrespective of race, color or citizenship.
a. mportance of retail trade in the economy of the nation.
n a primitive economy where families produce all that they consume and consume all that they
produce, the dealer, of course, is unknown. But as group life develops and families begin to live in
communities producing more than what they consume and needing an infinite number of things they
do not produce, the dealer comes into existence. As villages develop into big communities and
specialization in production begins, the dealer's importance is enhanced. Under modern conditions
and standards of living, in which man's needs have multiplied and diversified to unlimited extents
and proportions, the retailer comes as essential as the producer, because thru him the infinite variety
of articles, goods and needed for daily life are placed within the easy reach of consumers. Retail
dealers perform the functions of capillaries in the human body, thru which all the needed food and
supplies are ministered to members of the communities comprising the nation.
There cannot be any question about the importance of the retailer in the life of the community. He
ministers to the resident's daily needs, food in all its increasing forms, and the various little gadgets
and things needed for home and daily life. He provides his customers around his store with the rice
or corn, the fish, the salt, the vinegar, the spices needed for the daily cooking. He has cloths to sell,
even the needle and the thread to sew them or darn the clothes that wear out. The retailer,
therefore, from the lowly peddler, the owner of a small sari-sari store, to the operator of a department
store or, a supermarket is so much a part of day-to-day existence.
b. The alien retailer's trait.
The alien retailer must have started plying his trades in this country in the bigger centers of
population (Time there was when he was unknown in provincial towns and villages). Slowly but
gradually be invaded towns and villages; now he predominates in the cities and big centers of
population. He even pioneers, in far away nooks where the beginnings of community life appear,
ministering to the daily needs of the residents and purchasing their agricultural produce for sale in
the towns. t is an undeniable fact that in many communities the alien has replaced the native
retailer. He has shown in this trade, industry without limit, and the patience and forbearance of a
slave.
Derogatory epithets are hurled at him, but he laughs these off without murmur; insults of ill-bred and
insolent neighbors and customers are made in his face, but he heeds them not, and he forgets and
forgives. The community takes note of him, as he appears to be harmless and extremely useful.
c. Alleged alien control and dominance.
There is a general feeling on the part of the public, which appears to be true to fact, about the
controlling and dominant position that the alien retailer holds in the nation's economy. Food and
other essentials, clothing, almost all articles of daily life reach the residents mostly through him. n
big cities and centers of population he has acquired not only predominance, but apparent control
over distribution of almost all kinds of goods, such as lumber, hardware, textiles, groceries, drugs,
sugar, flour, garlic, and scores of other goods and articles. And were it not for some national
corporations like the Naric, the Namarco, the Facomas and the Acefa, his control over principal
foods and products would easily become full and complete.
Petitioner denies that there is alien predominance and control in the retail trade. n one breath it is
said that the fear is unfounded and the threat is imagined; in another, it is charged that the law is
merely the result of radicalism and pure and unabashed nationalism. Alienage, it is said, is not an
element of control; also so many unmanageable factors in the retail business make control virtually
impossible. The first argument which brings up an issue of fact merits serious consideration. The
others are matters of opinion within the exclusive competence of the legislature and beyond our
prerogative to pass upon and decide.
The best evidence are the statistics on the retail trade, which put down the figures in black and
white. Between the constitutional convention year (1935), when the fear of alien domination and
control of the retail trade already filled the minds of our leaders with fears and misgivings, and the
year of the enactment of the nationalization of the retail trade act (1954), official statistics
unmistakably point out to the ever-increasing dominance and control by the alien of the retail trade,
as witness the following tables:

Assets Gross Sales
Year and
Retailers
Nationality
No.-
Establishments
Pesos
Per cent
Distribution
Pesos
Per cent
Distribution
1941:


Filipino
..........
106,671 200,323,138 55.82 174,181,924 51.74

Chinese
...........
15,356 118,348,692 32.98 148,813,239 44.21

Others
............
1,646 40,187,090 11.20 13,630,239 4.05
1947:


Filipino
..........
111,107 208,658,946 65.05 279,583,333 57.03

Chinese
...........
13,774 106,156,218 33.56 205,701,134 41.96

Others
...........
354 8,761,260 .49 4,927,168 1.01
1948: (Census)


Filipino
..........
113,631 213,342,264 67.30 467,161,667 60.51

Chinese
..........
12,087 93,155,459 29.38 294,894,227 38.20

Others
..........
422 10,514,675 3.32 9,995,402 1.29
1949:


Filipino
..........
113,659 213,451,602 60.89 462,532,901 53.47

Chinese
..........
16,248 125,223,336 35.72 392,414,875 45.36

Others
..........
486 12,056,365 3.39 10,078,364 1.17
1951:


Filipino
.........
119,352 224,053,620 61.09 466,058,052 53.07

Chinese
..........
17,429 134,325,303 36.60 404,481,384 46.06

Others
..........
347 8,614,025 2.31 7,645,327 87

AVERAGE
ASSETS AND GROSS SALES PER ESTABLSHMENT
Year and Retailer's
Nationality
tem
Assets
(Pesos)
Gross
Sales
(Pesos)
1941:


Filipino ............................................. 1,878 1,633

Chinese
..............................................
7,707 9,691

Others
...............................................
24,415 8,281
1947:


Filipino ............................................. 1,878 2,516

Chinese ........................................... 7,707 14,934

Others .............................................. 24,749 13,919
1948: (Census)


Filipino ............................................. 1,878 4,111

Chinese
.............................................
7,707 24,398

Others .............................................. 24,916 23,686
1949:


Filipino ............................................. 1,878 4,069

Chinese
..............................................
7,707 24,152

Others .............................................. 24,807 20,737
1951:


Filipino ............................................. 1,877 3,905

Chinese
.............................................
7,707 33,207

Others
...............................................
24,824 22,033
(Estimated Assets and Gross Sales of Retail Establishments, By Year and Nationality of
Owners, Benchmark: 1948 Census, issued by the Bureau of Census and Statistics,
Department of Commerce and ndustry; pp. 18-19 of Answer.)
The above statistics do not include corporations and partnerships, while the figures on Filipino
establishments already include mere market vendors, whose capital is necessarily small..
The above figures reveal that in percentage distribution of assests and gross sales, alien
participation has steadily increased during the years. t is true, of course, that Filipinos have the
edge in the number of retailers, but aliens more than make up for the numerical gap through their
assests and gross sales which average between six and seven times those of the very many Filipino
retailers. Numbers in retailers, here, do not imply superiority; the alien invests more capital, buys and
sells six to seven times more, and gains much more. The same official report, pointing out to the
known predominance of foreign elements in the retail trade, remarks that the Filipino retailers were
largely engaged in minor retailer enterprises. As observed by respondents, the native investment is
thinly spread, and the Filipino retailer is practically helpless in matters of capital, credit, price and
supply.
d. Alien control and threat, subject of apprehension in Constitutional convention.
t is this domination and control, which we believe has been sufficiently shown to exist, that is the
legislature's target in the enactment of the disputed nationalization would never have been adopted.
The framers of our Constitution also believed in the existence of this alien dominance and control
when they approved a resolution categorically declaring among other things, that "it is the sense of
the Convention that the public interest requires the nationalization of the retail trade; . . . ." (
Aruego, The Framing of the Philippine Constitution, 662-663, quoted on page 67 of Petitioner.) That
was twenty-two years ago; and the events since then have not been either pleasant or comforting.
Dean Sinco of the University of the Philippines College of Law, commenting on the patrimony clause
of the Preamble opines that the fathers of our Constitution were merely translating the general
preoccupation of Filipinos "of the dangers from alien interests that had already brought under their
control the commercial and other economic activities of the country" (Sinco, Phil. Political Law, 10th
ed., p. 114); and analyzing the concern of the members of the constitutional convention for the
economic life of the citizens, in connection with the nationalistic provisions of the Constitution, he
says:
But there has been a general feeling that alien dominance over the economic life of the
country is not desirable and that if such a situation should remain, political independence
alone is no guarantee to national stability and strength. Filipino private capital is not big
enough to wrest from alien hands the control of the national economy. Moreover, it is but of
recent formation and hence, largely inexperienced, timid and hesitant. Under such
conditions, the government as the instrumentality of the national will, has to step in and
assume the initiative, if not the leadership, in the struggle for the economic freedom of the
nation in somewhat the same way that it did in the crusade for political freedom. Thus . . . it
(the Constitution) envisages an organized movement for the protection of the nation not only
against the possibilities of armed invasion but also against its economic subjugation by alien
interests in the economic field. (Phil. Political Law by Sinco, 10th ed., p. 476.)
Belief in the existence of alien control and predominance is felt in other quarters. Filipino
businessmen, manufacturers and producers believe so; they fear the dangers coming from alien
control, and they express sentiments of economic independence. Witness thereto is Resolution No.
1, approved on July 18, 1953, of the Fifth National convention of Filipino Businessmen, and a similar
resolution, approved on March 20, 1954, of the Second National Convention of Manufacturers and
Producers. The man in the street also believes, and fears, alien predominance and control; so our
newspapers, which have editorially pointed out not only to control but to alien stranglehold. We,
therefore, find alien domination and control to be a fact, a reality proved by official statistics, and felt
by all the sections and groups that compose the Filipino community.
e. Dangers of alien control and dominance in retail.
But the dangers arising from alien participation in the retail trade does not seem to lie in the
predominance alone; there is a prevailing feeling that such predominance may truly endanger the
national interest. With ample capital, unity of purpose and action and thorough organization, alien
retailers and merchants can act in such complete unison and concert on such vital matters as the
fixing of prices, the determination of the amount of goods or articles to be made available in the
market, and even the choice of the goods or articles they would or would not patronize or distribute,
that fears of dislocation of the national economy and of the complete subservience of national
economy and of the consuming public are not entirely unfounded. Nationals, producers and
consumers alike can be placed completely at their mercy. This is easily illustrated. Suppose an
article of daily use is desired to be prescribed by the aliens, because the producer or importer does
not offer them sufficient profits, or because a new competing article offers bigger profits for its
introduction. All that aliens would do is to agree to refuse to sell the first article, eliminating it from
their stocks, offering the new one as a substitute. Hence, the producers or importers of the
prescribed article, or its consumers, find the article suddenly out of the prescribed article, or its
consumers, find the article suddenly out of circulation. Freedom of trade is thus curtailed and free
enterprise correspondingly suppressed.
We can even go farther than theoretical illustrations to show the pernicious influences of alien
domination. Grave abuses have characterized the exercise of the retail trade by aliens. t is a fact
within judicial notice, which courts of justice may not properly overlook or ignore in the interests of
truth and justice, that there exists a general feeling on the part of the public that alien participation in
the retail trade has been attended by a pernicious and intolerable practices, the mention of a few of
which would suffice for our purposes; that at some time or other they have cornered the market of
essential commodities, like corn and rice, creating artificial scarcities to justify and enhance profits to
unreasonable proportions; that they have hoarded essential foods to the inconvenience and
prejudice of the consuming public, so much so that the Government has had to establish the
National Rice and Corn Corporation to save the public from their continuous hoarding practices and
tendencies; that they have violated price control laws, especially on foods and essential
commodities, such that the legislature had to enact a law (Sec. 9, Republic Act No. 1168),
authorizing their immediate and automatic deportation for price control convictions; that they have
secret combinations among themselves to control prices, cheating the operation of the law of supply
and demand; that they have connived to boycott honest merchants and traders who would not cater
or yield to their demands, in unlawful restraint of freedom of trade and enterprise. They are believed
by the public to have evaded tax laws, smuggled goods and money into and out of the land, violated
import and export prohibitions, control laws and the like, in derision and contempt of lawful authority.
t is also believed that they have engaged in corrupting public officials with fabulous bribes, indirectly
causing the prevalence of graft and corruption in the Government. As a matter of fact appeals to
unscrupulous aliens have been made both by the Government and by their own lawful diplomatic
representatives, action which impliedly admits a prevailing feeling about the existence of many of the
above practices.
The circumstances above set forth create well founded fears that worse things may come in the
future. The present dominance of the alien retailer, especially in the big centers of population,
therefore, becomes a potential source of danger on occasions of war or other calamity. We do not
have here in this country isolated groups of harmless aliens retailing goods among nationals; what
we have are well organized and powerful groups that dominate the distribution of goods and
commodities in the communities and big centers of population. They owe no allegiance or loyalty to
the State, and the State cannot rely upon them in times of crisis or emergency. While the national
holds his life, his person and his property subject to the needs of his country, the alien may even
become the potential enemy of the State.
f. Law enacted in interest of national economic survival and security.
We are fully satisfied upon a consideration of all the facts and circumstances that the disputed law is
not the product of racial hostility, prejudice or discrimination, but the expression of the legitimate
desire and determination of the people, thru their authorized representatives, to free the nation from
the economic situation that has unfortunately been saddled upon it rightly or wrongly, to its
disadvantage. The law is clearly in the interest of the public, nay of the national security itself, and
indisputably falls within the scope of police power, thru which and by which the State insures its
existence and security and the supreme welfare of its citizens.
V. The Equal Protection Limitation
a. Objections to alien participation in retail trade. The next question that now poses solution is,
Does the law deny the equal protection of the laws? As pointed out above, the mere fact of alienage
is the root and cause of the distinction between the alien and the national as a trader. The alien
resident owes allegiance to the country of his birth or his adopted country; his stay here is for
personal convenience; he is attracted by the lure of gain and profit. His aim or purpose of stay, we
admit, is neither illegitimate nor immoral, but he is naturally lacking in that spirit of loyalty and
enthusiasm for this country where he temporarily stays and makes his living, or of that spirit of
regard, sympathy and consideration for his Filipino customers as would prevent him from taking
advantage of their weakness and exploiting them. The faster he makes his pile, the earlier can the
alien go back to his beloved country and his beloved kin and countrymen. The experience of the
country is that the alien retailer has shown such utter disregard for his customers and the people on
whom he makes his profit, that it has been found necessary to adopt the legislation, radical as it may
seem.
Another objection to the alien retailer in this country is that he never really makes a genuine
contribution to national income and wealth. He undoubtedly contributes to general distribution, but
the gains and profits he makes are not invested in industries that would help the country's economy
and increase national wealth. The alien's interest in this country being merely transient and
temporary, it would indeed be ill-advised to continue entrusting the very important function of retail
distribution to his hands.
The practices resorted to by aliens in the control of distribution, as already pointed out above, their
secret manipulations of stocks of commodities and prices, their utter disregard of the welfare of their
customers and of the ultimate happiness of the people of the nation of which they are mere guests,
which practices, manipulations and disregard do not attend the exercise of the trade by the
nationals, show the existence of real and actual, positive and fundamental differences between an
alien and a national which fully justify the legislative classification adopted in the retail trade
measure. These differences are certainly a valid reason for the State to prefer the national over the
alien in the retail trade. We would be doing violence to fact and reality were we to hold that no
reason or ground for a legitimate distinction can be found between one and the other.
b. Difference in alien aims and purposes sufficient basis for distinction.
The above objectionable characteristics of the exercise of the retail trade by the aliens, which are
actual and real, furnish sufficient grounds for legislative classification of retail traders into nationals
and aliens. Some may disagree with the wisdom of the legislature's classification. To this we answer,
that this is the prerogative of the law-making power. Since the Court finds that the classification is
actual, real and reasonable, and all persons of one class are treated alike, and as it cannot be said
that the classification is patently unreasonable and unfounded, it is in duty bound to declare that the
legislature acted within its legitimate prerogative and it can not declare that the act transcends the
limit of equal protection established by the Constitution.
Broadly speaking, the power of the legislature to make distinctions and classifications among
persons is not curtailed or denied by the equal protection of the laws clause. The legislative power
admits of a wide scope of discretion, and a law can be violative of the constitutional limitation only
when the classification is without reasonable basis. n addition to the authorities we have earlier
cited, we can also refer to the case of Linsey vs. Natural Carbonic Fas Co. (1911), 55 L. ed., 369,
which clearly and succinctly defined the application of equal protection clause to a law sought to be
voided as contrary thereto:
. . . . "1. The equal protection clause of the Fourteenth Amendment does not take from the
state the power to classify in the adoption of police laws, but admits of the exercise of the
wide scope of discretion in that regard, and avoids what is done only when it is without any
reasonable basis, and therefore is purely arbitrary. 2. A classification having some
reasonable basis does not offend against that clause merely because it is not made with
mathematical nicety, or because in practice it results in some inequality. 3. When the
classification in such a law is called in question, if any state of facts reasonably can be
conceived that would sustain it, the existence of that state of facts at the time the law was
enacted must be assumed. 4. One who assails the classification in such a law must carry the
burden of showing that it does not rest upon any reasonable basis but is essentially
arbitrary."
c. Authorities recognizing citizenship as basis for classification.
The question as to whether or not citizenship is a legal and valid ground for classification has
already been affirmatively decided in this jurisdiction as well as in various courts in the United
States. n the case of Smith Bell & Co. vs. Natividad, 40 Phil. 136, where the validity of Act No. 2761
of the Philippine Legislature was in issue, because of a condition therein limiting the ownership of
vessels engaged in coastwise trade to corporations formed by citizens of the Philippine slands or
the United States, thus denying the right to aliens, it was held that the Philippine Legislature did not
violate the equal protection clause of the Philippine Bill of Rights. The legislature in enacting the law
had as ultimate purpose the encouragement of Philippine shipbuilding and the safety for these
slands from foreign interlopers. We held that this was a valid exercise of the police power, and all
presumptions are in favor of its constitutionality. n substance, we held that the limitation of domestic
ownership of vessels engaged in coastwise trade to citizens of the Philippines does not violate the
equal protection of the law and due process or law clauses of the Philippine Bill of Rights. n
rendering said decision we quoted with approval the concurring opinion of Justice Johnson in the
case of Gibbons vs. Ogden, 9 Wheat., , as follows:
"Licensing acts, in fact, in legislation, are universally restraining acts; as, for example, acts
licensing gaming houses, retailers of spirituous liquors, etc. The act, in this instance, is
distinctly of that character, and forms part of an extensive system, the object of which is to
encourage American shipping, and place them on an equal footing with the shipping of other
nations. Almost every commercial nation reserves to its own subjects a monopoly of its
coasting trade; and a countervailing privilege in favor of American shipping is contemplated,
in the whole legislation of the United States on this subject. t is not to give the vessel an
American character, that the license is granted; that effect has been correctly attributed to
the act of her enrollment. But it is to confer on her American privileges, as contra
distinguished from foreign; and to preserve the Government from fraud by foreigners; in
surreptitiously intruding themselves into the American commercial marine, as well as frauds
upon the revenue in the trade coastwise, that this whole system is projected."
The rule in general is as follows:
Aliens are under no special constitutional protection which forbids a classification otherwise
justified simply because the limitation of the class falls along the lines of nationality. That
would be requiring a higher degree of protection for aliens as a class than for similar classes
than for similar classes of American citizens. Broadly speaking, the difference in status
between citizens and aliens constitutes a basis for reasonable classification in the exercise
of police power. (2 Am., Jur. 468-469.)
n Commonwealth vs. Hana, 81 N. E. 149 (Massachusetts, 1907), a statute on the licensing of
hawkers and peddlers, which provided that no one can obtain a license unless he is, or has declared
his intention, to become a citizen of the United States, was held valid, for the following reason: t
may seem wise to the legislature to limit the business of those who are supposed to have regard for
the welfare, good order and happiness of the community, and the court cannot question this
judgment and conclusion. n Bloomfield vs. State, 99 N. E. 309 (Ohio, 1912), a statute which
prevented certain persons, among them aliens, from engaging in the traffic of liquors, was found not
to be the result of race hatred, or in hospitality, or a deliberate purpose to discriminate, but was
based on the belief that an alien cannot be sufficiently acquainted with "our institutions and our life
as to enable him to appreciate the relation of this particular business to our entire social fabric", and
was not, therefore, invalid. n Ohio ex rel. Clarke vs. Deckebach, 274 U. S. 392, 71 L. ed. 115
(1926), the U.S. Supreme Court had under consideration an ordinance of the city of Cincinnati
prohibiting the issuance of licenses (pools and billiard rooms) to aliens. t held that plainly irrational
discrimination against aliens is prohibited, but it does not follow that alien race and allegiance may
not bear in some instances such a relation to a legitimate object of legislation as to be made the
basis of permitted classification, and that it could not state that the legislation is clearly wrong; and
that latitude must be allowed for the legislative appraisement of local conditions and for the
legislative choice of methods for controlling an apprehended evil. The case of State vs. Carrol, 124
N. E. 129 (Ohio, 1919) is a parallel case to the one at bar. n Asakura vs. City of Seattle, 210 P. 30
(Washington, 1922), the business of pawn brooking was considered as having tendencies injuring
public interest, and limiting it to citizens is within the scope of police power. A similar statute denying
aliens the right to engage in auctioneering was also sustained in Wright vs. May, L.R.A., 1915 P. 151
(Minnesota, 1914). So also in Anton vs. Van Winkle, 297 F. 340 (Oregon, 1924), the court said that
aliens are judicially known to have different interests, knowledge, attitude, psychology and loyalty,
hence the prohibitions of issuance of licenses to them for the business of pawnbroker, pool, billiard,
card room, dance hall, is not an infringement of constitutional rights. n Templar vs. Michigan State
Board of Examiners, 90 N.W. 1058 (Michigan, 1902), a law prohibiting the licensing of aliens as
barbers was held void, but the reason for the decision was the court's findings that the exercise of
the business by the aliens does not in any way affect the morals, the health, or even the
convenience of the community. n Takahashi vs. Fish and Game Commission, 92 L. ed. 1479
(1947), a California statute banning the issuance of commercial fishing licenses to person ineligible
to citizenship was held void, because the law conflicts with Federal power over immigration, and
because there is no public interest in the mere claim of ownership of the waters and the fish in them,
so there was no adequate justification for the discrimination. t further added that the law was the
outgrowth of antagonism toward the persons of Japanese ancestry. However, two Justices
dissented on the theory that fishing rights have been treated traditionally as natural resources.
n Fraser vs. McConway & Tarley Co., 82 Fed. 257 (Pennsylvania, 1897), a state law which imposed
a tax on every employer of foreign-born unnaturalized male persons over 21 years of age, was
declared void because the court found that there was no reason for the classification and the tax
was an arbitrary deduction from the daily wage of an employee.
d. Authorities contra explained.
t is true that some decisions of the Federal court and of the State courts in the United States hold
that the distinction between aliens and citizens is not a valid ground for classification. But in this
decision the laws declared invalid were found to be either arbitrary, unreasonable or capricious, or
were the result or product of racial antagonism and hostility, and there was no question of public
interest involved or pursued. n Yu Cong Eng vs. Trinidad, 70 L. ed. 1059 (1925), the United States
Supreme Court declared invalid a Philippine law making unlawful the keeping of books of account in
any language other than English, Spanish or any other local dialect, but the main reasons for the
decisions are: (1) that if Chinese were driven out of business there would be no other system of
distribution, and (2) that the Chinese would fall prey to all kinds of fraud, because they would be
deprived of their right to be advised of their business and to direct its conduct. The real reason for
the decision, therefore, is the court's belief that no public benefit would be derived from the
operations of the law and on the other hand it would deprive Chinese of something indispensable for
carrying on their business. n Yick Wo vs. Hopkins, 30 L. ed 220 (1885) an ordinance conferring
powers on officials to withhold consent in the operation of laundries both as to persons and place,
was declared invalid, but the court said that the power granted was arbitrary, that there was no
reason for the discrimination which attended the administration and implementation of the law, and
that the motive thereof was mere racial hostility. n State vs. Montgomery, 47 A. 165 (Maine, 1900),
a law prohibiting aliens to engage as hawkers and peddlers was declared void, because the
discrimination bore no reasonable and just relation to the act in respect to which the classification
was proposed.
The case at bar is radically different, and the facts make them so. As we already have said, aliens
do not naturally possess the sympathetic consideration and regard for the customers with whom
they come in daily contact, nor the patriotic desire to help bolster the nation's economy, except in so
far as it enhances their profit, nor the loyalty and allegiance which the national owes to the land.
These limitations on the qualifications of the aliens have been shown on many occasions and
instances, especially in times of crisis and emergency. We can do no better than borrow the
language of Anton vs. Van Winkle, 297 F. 340, 342, to drive home the reality and significance of the
distinction between the alien and the national, thus:
. . . . t may be judicially known, however, that alien coming into this country are without the
intimate knowledge of our laws, customs, and usages that our own people have. So it is
likewise known that certain classes of aliens are of different psychology from our fellow
countrymen. Furthermore, it is natural and reasonable to suppose that the foreign born,
whose allegiance is first to their own country, and whose ideals of governmental environment
and control have been engendered and formed under entirely different regimes and political
systems, have not the same inspiration for the public weal, nor are they as well disposed
toward the United States, as those who by citizenship, are a part of the government itself.
Further enlargement, is unnecessary. have said enough so that obviously it cannot be
affirmed with absolute confidence that the Legislature was without plausible reason for
making the classification, and therefore appropriate discriminations against aliens as it
relates to the subject of legislation. . . . .
V. The Due Process of Law Limitation.
a. Reasonability, the test of the limitation; determination by legislature decisive.
We now come to due process as a limitation on the exercise of the police power. t has been stated
by the highest authority in the United States that:
. . . . And the guaranty of due process, as has often been held, demands only that the law
shall not be unreasonable, arbitrary or capricious, and that the means selected shall have a
real and substantial relation to the subject sought to be attained. . . . .
x x x x x x x x x
So far as the requirement of due process is concerned and in the absence of other
constitutional restriction a state is free to adopt whatever economic policy may reasonably be
deemed to promote public welfare, and to enforce that policy by legislation adapted to its
purpose. The courts are without authority either to declare such policy, or, when it is declared
by the legislature, to override it. f the laws passed are seen to have a reasonable relation to
a proper legislative purpose, and are neither arbitrary nor discriminatory, the requirements of
due process are satisfied, and judicial determination to that effect renders a court functus
officio. . . . (Nebbia vs. New York, 78 L. ed. 940, 950, 957.)
Another authority states the principle thus:
. . . . Too much significance cannot be given to the word "reasonable" in considering the
scope of the police power in a constitutional sense, for the test used to determine the
constitutionality of the means employed by the legislature is to inquire whether the restriction
it imposes on rights secured to individuals by the Bill of Rights are unreasonable, and not
whether it imposes any restrictions on such rights. . . .
x x x x x x x x x
. . . . A statute to be within this power must also be reasonable in its operation upon the
persons whom it affects, must not be for the annoyance of a particular class, and must not
be unduly oppressive. (11 Am. Jur. Sec. 302., 1:1)- 1074-1075.)
n the case of Lawton vs. Steele, 38 L. ed. 385, 388. it was also held:
. . . . To justify the state in thus interposing its authority in behalf of the public, it must appear,
first, that the interests of the public generally, as distinguished from those of a particular
class, require such interference; and second, that the means are reasonably necessary for
the accomplishment of the purpose, and not unduly oppressive upon individuals. . . .
Prata Undertaking Co. vs. State Board of Embalming, 104 ALR, 389, 395, fixes this test of
constitutionality:
n determining whether a given act of the Legislature, passed in the exercise of the police
power to regulate the operation of a business, is or is not constitutional, one of the first
questions to be considered by the court is whether the power as exercised has a sufficient
foundation in reason in connection with the matter involved, or is an arbitrary, oppressive,
and capricious use of that power, without substantial relation to the health, safety, morals,
comfort, and general welfare of the public.
b. Petitioner's argument considered.
Petitioner's main argument is that retail is a common, ordinary occupation, one of those privileges
long ago recognized as essential to the orderly pursuant of happiness by free men; that it is a gainful
and honest occupation and therefore beyond the power of the legislature to prohibit and penalized.
This arguments overlooks fact and reality and rests on an incorrect assumption and premise, i.e.,
that in this country where the occupation is engaged in by petitioner, it has been so engaged by him,
by the alien in an honest creditable and unimpeachable manner, without harm or injury to the
citizens and without ultimate danger to their economic peace, tranquility and welfare. But the
Legislature has found, as we have also found and indicated, that the privilege has been so grossly
abused by the alien, thru the illegitimate use of pernicious designs and practices, that he now enjoys
a monopolistic control of the occupation and threatens a deadly stranglehold on the nation's
economy endangering the national security in times of crisis and emergency.
The real question at issue, therefore, is not that posed by petitioner, which overlooks and ignores the
facts and circumstances, but this, s the exclusion in the future of aliens from the retail trade
unreasonable. Arbitrary capricious, taking into account the illegitimate and pernicious form and
manner in which the aliens have heretofore engaged therein? As thus correctly stated the answer is
clear. The law in question is deemed absolutely necessary to bring about the desired legislative
objective, i.e., to free national economy from alien control and dominance. t is not necessarily
unreasonable because it affects private rights and privileges (11 Am. Jur. pp. 1080-1081.) The test
of reasonableness of a law is the appropriateness or adequacy under all circumstances of the
means adopted to carry out its purpose into effect (Id.) Judged by this test, disputed legislation,
which is not merely reasonable but actually necessary, must be considered not to have infringed the
constitutional limitation of reasonableness.
The necessity of the law in question is explained in the explanatory note that accompanied the bill,
which later was enacted into law:
This bill proposes to regulate the retail business. ts purpose is to prevent persons who are
not citizens of the Philippines from having a strangle hold upon our economic life. f the
persons who control this vital artery of our economic life are the ones who owe no allegiance
to this Republic, who have no profound devotion to our free institutions, and who have no
permanent stake in our people's welfare, we are not really the masters of our destiny. All
aspects of our life, even our national security, will be at the mercy of other people.
n seeking to accomplish the foregoing purpose, we do not propose to deprive persons who
are not citizens of the Philippines of their means of livelihood. While this bill seeks to take
away from the hands of persons who are not citizens of the Philippines a power that can be
wielded to paralyze all aspects of our national life and endanger our national security it
respects existing rights.
The approval of this bill is necessary for our national survival.
f political independence is a legitimate aspiration of a people, then economic independence is none
the less legitimate. Freedom and liberty are not real and positive if the people are subject to the
economic control and domination of others, especially if not of their own race or country. The
removal and eradication of the shackles of foreign economic control and domination, is one of the
noblest motives that a national legislature may pursue. t is impossible to conceive that legislation
that seeks to bring it about can infringe the constitutional limitation of due process. The attainment of
a legitimate aspiration of a people can never be beyond the limits of legislative authority.
c. Law expressly held by Constitutional Convention to be within the sphere of legislative action.
The framers of the Constitution could not have intended to impose the constitutional restrictions of
due process on the attainment of such a noble motive as freedom from economic control and
domination, thru the exercise of the police power. The fathers of the Constitution must have given to
the legislature full authority and power to enact legislation that would promote the supreme
happiness of the people, their freedom and liberty. On the precise issue now before us, they
expressly made their voice clear; they adopted a resolution expressing their belief that the legislation
in question is within the scope of the legislative power. Thus they declared the their Resolution:
That it is the sense of the Convention that the public interest requires the nationalization of
retail trade; but it abstain from approving the amendment introduced by the Delegate for
Manila, Mr. Araneta, and others on this matter because it is convinced that the National
Assembly is authorized to promulgate a law which limits to Filipino and American citizens the
privilege to engage in the retail trade. (11 Aruego, The Framing of the Philippine Constitution,
quoted on pages 66 and 67 of the Memorandum for the Petitioner.)
t would do well to refer to the nationalistic tendency manifested in various provisions of the
Constitution. Thus in the preamble, a principle objective is the conservation of the patrimony of the
nation and as corollary the provision limiting to citizens of the Philippines the exploitation,
development and utilization of its natural resources. And in Section 8 of Article XV, it is provided that
"no franchise, certificate, or any other form of authorization for the operation of the public utility shall
be granted except to citizens of the Philippines." The nationalization of the retail trade is only a
continuance of the nationalistic protective policy laid down as a primary objective of the Constitution.
Can it be said that a law imbued with the same purpose and spirit underlying many of the provisions
of the Constitution is unreasonable, invalid and unconstitutional?
The seriousness of the Legislature's concern for the plight of the nationals as manifested in the
approval of the radical measures is, therefore, fully justified. t would have been recreant to its duties
towards the country and its people would it view the sorry plight of the nationals with the
complacency and refuse or neglect to adopt a remedy commensurate with the demands of public
interest and national survival. As the repository of the sovereign power of legislation, the Legislature
was in duty bound to face the problem and meet, through adequate measures, the danger and threat
that alien domination of retail trade poses to national economy.
d. Provisions of law not unreasonable.
A cursory study of the provisions of the law immediately reveals how tolerant, how reasonable the
Legislature has been. The law is made prospective and recognizes the right and privilege of those
already engaged in the occupation to continue therein during the rest of their lives; and similar
recognition of the right to continue is accorded associations of aliens. The right or privilege is denied
to those only upon conviction of certain offenses. n the deliberations of the Court on this case,
attention was called to the fact that the privilege should not have been denied to children and heirs
of aliens now engaged in the retail trade. Such provision would defeat the law itself, its aims and
purposes. Beside, the exercise of legislative discretion is not subject to judicial review. t is well
settled that the Court will not inquire into the motives of the Legislature, nor pass upon general
matters of legislative judgment. The Legislature is primarily the judge of the necessity of an
enactment or of any of its provisions, and every presumption is in favor of its validity, and though the
Court may hold views inconsistent with the wisdom of the law, it may not annul the legislation if not
palpably in excess of the legislative power. Furthermore, the test of the validity of a law attacked as
a violation of due process, is not its reasonableness, but its unreasonableness, and we find the
provisions are not unreasonable. These principles also answer various other arguments raised
against the law, some of which are: that the law does not promote general welfare; that thousands of
aliens would be thrown out of employment; that prices will increase because of the elimination of
competition; that there is no need for the legislation; that adequate replacement is problematical; that
there may be general breakdown; that there would be repercussions from foreigners; etc. Many of
these arguments are directed against the supposed wisdom of the law which lies solely within the
legislative prerogative; they do not import invalidity.
V. Alleged defect in the title of the law
A subordinate ground or reason for the alleged invalidity of the law is the claim that the title thereof is
misleading or deceptive, as it conceals the real purpose of the bill which is to nationalize the retail
business and prohibit aliens from engaging therein. The constitutional provision which is claimed to
be violated in Section 21 (1) of Article V, which reads:
No bill which may be enacted in the law shall embrace more than one subject which shall be
expressed in the title of the bill.
What the above provision prohibits is duplicity, that is, if its title completely fails to appraise the
legislators or the public of the nature, scope and consequences of the law or its operation (
Sutherland, Statutory Construction, Sec. 1707, p. 297.) A cursory consideration of the title and the
provisions of the bill fails to show the presence of duplicity. t is true that the term "regulate" does not
and may not readily and at first glance convey the idea of "nationalization" and "prohibition", which
terms express the two main purposes and objectives of the law. But "regulate" is a broader term than
either prohibition or nationalization. Both of these have always been included within the term
regulation.
Under the title of an act to "regulate", the sale of intoxicating liquors, the Legislature may
prohibit the sale of intoxicating liquors. (Sweet vs. City of Wabash, 41 nd., 7; quoted in page
41 of Answer.)
Within the meaning of the Constitution requiring that the subject of every act of the
Legislature shall be stated in the tale, the title to regulate the sale of intoxicating liquors, etc."
sufficiently expresses the subject of an act prohibiting the sale of such liquors to minors and
to persons in the habit of getting intoxicated; such matters being properly included within the
subject of regulating the sale. (Williams vs. State, 48 nd. 306, 308, quoted in p. 42 of
Answer.)
The word "regulate" is of broad import, and necessarily implies some degree of restraint and
prohibition of acts usually done in connection with the thing to be regulated. While word
regulate does not ordinarily convey meaning of prohibit, there is no absolute reason why it
should not have such meaning when used in delegating police power in connection with a
thing the best or only efficacious regulation of which involves suppression. (State vs. Morton,
162 So. 718, 182 La. 887, quoted in p. 42 of Answer.)
The general rule is for the use of general terms in the title of a bill; it has also been said that the title
need not be an index to the entire contents of the law ( Sutherland, Statutory Construction, See.
4803, p. 345.) The above rule was followed the title of the Act in question adopted the more general
term "regulate" instead of "nationalize" or "prohibit". Furthermore, the law also contains other rules
for the regulation of the retail trade which may not be included in the terms "nationalization" or
"prohibition"; so were the title changed from "regulate" to "nationalize" or "prohibit", there would have
been many provisions not falling within the scope of the title which would have made the Act invalid.
The use of the term "regulate", therefore, is in accord with the principle governing the drafting of
statutes, under which a simple or general term should be adopted in the title, which would include all
other provisions found in the body of the Act.
One purpose of the constitutional directive that the subject of a bill should be embraced in its title is
to apprise the legislators of the purposes, the nature and scope of its provisions, and prevent the
enactment into law of matters which have received the notice, action and study of the legislators or
of the public. n the case at bar it cannot be claimed that the legislators have been appraised of the
nature of the law, especially the nationalization and the prohibition provisions. The legislators took
active interest in the discussion of the law, and a great many of the persons affected by the
prohibitions in the law conducted a campaign against its approval. t cannot be claimed, therefore,
that the reasons for declaring the law invalid ever existed. The objection must therefore, be
overruled.
X. Alleged violation of international treaties and obligations
Another subordinate argument against the validity of the law is the supposed violation thereby of the
Charter of the United Nations and of the Declaration of the Human Rights adopted by the United
Nations General Assembly. We find no merit in the Nations Charter imposes no strict or legal
obligations regarding the rights and freedom of their subjects (Hans Kelsen, The Law of the United
Nations, 1951 ed. pp. 29-32), and the Declaration of Human Rights contains nothing more than a
mere recommendation or a common standard of achievement for all peoples and all nations (Id. p.
39.) That such is the import of the United Nations Charter aid of the Declaration of Human Rights
can be inferred the fact that members of the United Nations Organizations, such as Norway and
Denmark, prohibit foreigners from engaging in retail trade, and in most nations of the world laws
against foreigners engaged in domestic trade are adopted.
The Treaty of Amity between the Republic of the Philippines and the Republic of China of April 18,
1947 is also claimed to be violated by the law in question. All that the treaty guarantees is equality of
treatment to the Chinese nationals "upon the same terms as the nationals of any other country." But
the nationals of China are not discriminating against because nationals of all other countries, except
those of the United States, who are granted special rights by the Constitution, are all prohibited from
engaging in the retail trade. But even supposing that the law infringes upon the said treaty, the treaty
is always subject to qualification or amendment by a subsequent law (U. S. vs. Thompson, 258, Fed.
257, 260), and the same may never curtail or restrict the scope of the police power of the State
(plaston vs. Pennsylvania, 58 L. ed. 539.)
X. Conclusion
Resuming what we have set forth above we hold that the disputed law was enacted to remedy a real
actual threat and danger to national economy posed by alien dominance and control of the retail
business and free citizens and country from dominance and control; that the enactment clearly falls
within the scope of the police power of the State, thru which and by which it protects its own
personality and insures its security and future; that the law does not violate the equal protection
clause of the Constitution because sufficient grounds exist for the distinction between alien and
citizen in the exercise of the occupation regulated, nor the due process of law clause, because the
law is prospective in operation and recognizes the privilege of aliens already engaged in the
occupation and reasonably protects their privilege; that the wisdom and efficacy of the law to carry
out its objectives appear to us to be plainly evident as a matter of fact it seems not only
appropriate but actually necessary and that in any case such matter falls within the prerogative of
the Legislature, with whose power and discretion the Judicial department of the Government may
not interfere; that the provisions of the law are clearly embraced in the title, and this suffers from no
duplicity and has not misled the legislators or the segment of the population affected; and that it
cannot be said to be void for supposed conflict with treaty obligations because no treaty has actually
been entered into on the subject and the police power may not be curtailed or surrendered by any
treaty or any other conventional agreement.
Some members of the Court are of the opinion that the radical effects of the law could have been
made less harsh in its impact on the aliens. Thus it is stated that the more time should have been
given in the law for the liquidation of existing businesses when the time comes for them to close. Our
legal duty, however, is merely to determine if the law falls within the scope of legislative authority
and does not transcend the limitations of due process and equal protection guaranteed in the
Constitution. Remedies against the harshness of the law should be addressed to the Legislature;
they are beyond our power and jurisdiction.
The petition is hereby denied, with costs against petitioner.
Paras, C.J., Bengzon, Reyes, A., Bautista Angelo, Concepcion, Reyes, J.B.L., Endencia and Felix,
JJ., concur.


Separate Opinions
PADILLA, concurring and dissenting:
agree to the proposition, principle or rule that courts may not inquire into the wisdom of an the Act
passed by the Congress and duly approved by the President of the Republic. But the rule does not
preclude courts from inquiring and determining whether the Act offends against a provision or
provisions of the Constitution. am satisfied that the Act assailed as violative of the due process of
law and the equal protection of the laws clauses of the Constitution does not infringe upon them,
insofar as it affects associations, partnership or corporations, the capital of which is not wholly
owned by the citizens of the Philippines, and aliens, who are not and have not been engaged in the
retail business. am, however, unable to persuade myself that it does not violate said clauses
insofar as the Act applies to associations and partnerships referred to in the Act and to aliens, who
are and have heretofore been engaged in said business. When they did engage in the retail
business there was no prohibition on or against them to engage in it. They assumed and believed in
good faith they were entitled to engaged in the business. The Act allows aliens to continue in
business until their death or voluntary retirement from the business or forfeiture of their license; and
corporations, associations or partnership, the capital of which is not wholly owned by the citizens of
the Philippines to continue in the business for a period of ten years from the date of the approval of
the Act (19 June 1954) or until the expiry of term of the existence of the association or partnership or
corporation, whichever event comes first. The prohibition on corporations, the capital of which is not
wholly owned by citizens of the Philippines, to engage in the retail business for a period of more than
ten years from the date of the approval of the Act or beyond the term of their corporate existence,
whichever event comes first, is valid and lawful, because the continuance of the existence of such
corporations is subject to whatever the Congress may impose reasonably upon them by subsequent
legislation.
1
But the prohibition to engage in the retail business by associations and partnerships, the
capital of which is not wholly owned by citizen of the Philippines, after ten years from the date of the
approval of the Act, even before the end of the term of their existence as agreed upon by the
associates and partners, and by alien heirs to whom the retail business is transmitted by the death of
an alien engaged in the business, or by his executor or administrator, amounts to a deprivation of
their property without due process of law. To my mind, the ten-year period from the date of the
approval of the Act or until the expiration of the term of the existence of the association and
partnership, whichever event comes first, and the six-month period granted to alien heirs of a
deceased alien, his executor or administrator, to liquidate the business, do not cure the defect of the
law, because the effect of the prohibition is to compel them to sell or dispose of their business. The
price obtainable at such forced sale of the business would be inadequate to reimburse and
compensate the associates or partners of the associations or partnership, and the alien heirs of a
deceased alien, engaged in the retail business for the capital invested in it. The stock of
merchandise bought and sold at retail does not alone constitute the business. The goodwill that the
association, partnership and the alien had built up during a long period of effort, patience and
perseverance forms part of such business. The constitutional provisions that no person shall be
deprived of his property without due process of law
2
and that no person shall be denied the equal
protection of the laws
3
would have no meaning as applied to associations or partnership and alien
heirs of an alien engaged in the retail business if they were to be compelled to sell or dispose of their
business within ten years from the date of the approval of the Act and before the end of the term of
the existence of the associations and partnership as agreed upon by the associations and partners
and within six months after the death of their predecessor-in-interest.
The authors of the Constitution were vigilant, careful and zealous in the safeguard of the ownership
of private agricultural lands which together with the lands of the public domain constitute the
priceless patrimony and mainstay of the nation; yet, they did not deem it wise and prudent to deprive
aliens and their heirs of such lands.
4

For these reasons, am of the opinion that section 1 of the Act, insofar as it compels associations
and partnership referred to therein to wind up their retail business within ten years from the date of
the approval of the Act even before the expiry of the term of their existence as agreed upon by the
associates and partners and section 3 of the Act, insofar as it compels the aliens engaged in the
retail business in his lifetime his executor or administrator, to liquidate the business, are invalid, for
they violate the due process of law and the equal protection of the laws clauses of the Constitution.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-2662 March 26, 1949
SHIGENORI KURODA, petitioner,
vs.
Major GeneraI RAFAEL JALANDONI, Brigadier GeneraI CALIXTO DUQUE, CoIoneI
MARGARITO TORALBA, CoIoneI IRENEO BUENCONSEJO, CoIoneI 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:
Shigenori Kuroda, formerly a Lieutenant-General of the Japanese mperial Army and Commanding
General of the Japanese mperial Forces in The Philippines during a period covering 19433 and
19444 who is now charged before a military Commission convened by the Chief of Staff of the
Armed forces of the Philippines with having unlawfully disregarded and failed "to discharge his duties
as such command, permitting them to commit brutal atrocities and other high crimes against
noncombatant civilians and prisoners of the mperial 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.
n support of his case petitioner tenders the following principal arguments.
First. "That Executive Order No. 68 is illegal on the ground that it violates not only the provision of
our constitutional law but also our local laws to say nothing of the fact (that) the Philippines is not a
signatory nor an adherent to the Hague Convention on Rules and Regulations covering Land
Warfare and therefore petitioners is charged of 'crimes' not based on law, national and international."
Hence petitioner argues "That in view off the fact that this commission has been empanelled by
virtue of an unconstitutional law an illegal order this commission is without jurisdiction to try herein
petitioner."
Second. That the participation in the prosecution of the case against petitioner before the
Commission in behalf of the United State of America of attorneys Melville Hussey and Robert Port
who are not attorneys authorized by the Supreme Court to practice law in the Philippines is a
diminution of our personality as an independent state and their appointment as prosecutor are a
violation of our Constitution for the reason that they are not qualified to practice law in the
Philippines.
Third. That Attorneys Hussey and Port have no personality as prosecution the United State not
being a party in interest in the case.
Executive Order No. 68, establishing a National War Crimes Office prescribing rule and regulation
governing the trial of accused war criminals, was issued by the President of the Philippines on the
29th days of July, 1947 This Court holds that this order is valid and constitutional. Article 2 of our
Constitution provides in its section 3, that
The Philippines renounces war as an instrument of national policy and adopts the generally
accepted principles of international law as part of the of the nation.
n accordance with the generally accepted principle of international law of the present day including
the Hague Convention the Geneva Convention and significant precedents of international
jurisprudence established by the United Nation all those person military or civilian who have been
guilty of planning preparing or waging a war of aggression and of the commission of crimes and
offenses consequential and incidental thereto in violation of the laws and customs of war, of
humanity and civilization are held accountable therefor. Consequently in the promulgation and
enforcement of Execution Order No. 68 the President of the Philippines has acted in conformity with
the generally accepted and policies of international law which are part of the our Constitution.
The promulgation of said executive order is an exercise by the President of his power as
Commander in chief of all our armed forces as upheld by this Court in the case of
Yamashita vs. Styer (L-129, 42 Off. Gaz., 664) 1 when we said
War is not ended simply because hostilities have ceased. After cessation of armed hostilities
incident of war may remain pending which should be disposed of as in time of war. An
importance incident to a conduct of war is the adoption of measure by the military command
not only to repel and defeat the enemies but to seize and subject to disciplinary measure
those enemies who in their attempt to thwart or impede our military effort have violated the
law of war. (Ex parte "uirin 317 U.S., 1; 63 Sup. Ct., 2.) ndeed 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. t 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. n facts these rules and principles were accepted
by the two belligerent nation the United State and Japan who were signatories to the two
Convention, Such rule and principles therefore form part of the law of our nation even if the
Philippines was not a signatory to the conventions embodying them for our Constitution has been
deliberately general and extensive in its scope and is not confined to the recognition of rule and
principle of international law as continued inn treaties to which our government may have been or
shall be a signatory.
Furthermore when the crimes charged against petitioner were allegedly committed the Philippines
was under the sovereignty of United States and thus we were equally bound together with the United
States and with Japan to the right and obligation contained in the treaties between the belligerent
countries. These rights and obligation were not erased by our assumption of full sovereignty. f at all
our emergency as a free state entitles us to enforce the right on our own of trying and punishing
those who committed crimes against crimes against our people. n this connection it is well to
remember what we have said in the case of Laurel vs. Misa (76 Phil., 372):
. . . The change of our form government from Commonwealth to Republic does not affect the
prosecution of those charged with the crime of treason committed during then
Commonwealth because it is an offense against the same sovereign people. . . .
By the same token war crimes committed against our people and our government while we were a
Commonwealth are triable and punishable by our present Republic.
Petitioner challenges the participation of two American attorneys namely Melville S. Hussey and
Robert Port in the prosecution of his case on the ground that said attorney's are not qualified to
practice law in Philippines in accordance with our Rules of court and the appointment of said
attorneys as prosecutors is violative of our national sovereignty.
n the first place respondent Military Commission is a special military tribunal governed by a special
law and not by the Rules of court which govern ordinary civil court. t has already been shown that
Executive Order No. 68 which provides for the organization of such military commission is a valid
and constitutional law. There is nothing in said executive order which requires that counsel
appearing before said commission must be attorneys qualified to practice law in the Philippines in
accordance with the Rules of Court. n facts it is common in military tribunals that counsel for the
parties are usually military personnel who are neither attorneys nor even possessed of legal training.
Secondly the appointment of the two American attorneys is not violative of our nation sovereignty. t
is only fair and proper that United States, which has submitted the vindication of crimes against her
government and her people to a tribunal of our nation should be allowed representation in the trial of
those very crimes. f there has been any relinquishment of sovereignty it has not been by our
government but by the United State Government which has yielded to us the trial and punishment of
her enemies. The least that we could do in the spirit of comity is to allow them representation in said
trials.
Alleging that the United State is not a party in interest in the case petitioner challenges the
personality of attorneys Hussey and Port as prosecutors. t is of common knowledge that the United
State and its people have been equally if not more greatly aggrieved by the crimes with which
petitioner stands charged before the Military Commission. t can be considered a privilege for our
Republic that a leader nation should submit the vindication of the honor of its citizens and its
government to a military tribunal of our country.
The Military Commission having been convened by virtue of a valid law with jurisdiction over the
crimes charged which fall under the provisions of Executive Order No. 68, and having said petitioner
in its custody, this Court will not interfere with the due process of such Military commission.
For all the foregoing the petition is denied with costs de oficio.
Paras, Feria, Pablo, Bengzon, Tuason, Montemayor and Reyes, JJ., concur.

Separate Opinions
PERFECTO, dissenting:
A military commission was empanelled on December 1, 1948 to try Lt. Gen. Shigenori Kuroda for
Violation of the laws and customs of land warfare.
Melville S. Hussey and Robert Port, American citizens and not authorized by the Supreme Court to
practice law were appointed prosecutor representing the American CC in the trial of the case.
The commission was empanelled under the authority of Executive Order No. 68 of the President of
the Philippines the validity of which is challenged by petitioner on constitutional grounds. Petitioner
has also challenged the personality of Attorneys Hussey and Port to appear as prosecutors before
the commission.
The charges against petitioner has been filed since June 26, 1948 in the name of the people of the
Philippines as accusers.
We will consideration briefly the challenge against the appearance of Attorneys Hussey and Port. t
appearing that they are aliens and have not been authorized by the Supreme Court to practice law
there could not be any question that said person cannot appear as prosecutors in petitioner case as
with such appearance they would be practicing law against the law.
Said violation vanishes however into insignificance at the side of the momentous question involved
in the challenge against the validity of Executive Order No. 68. Said order is challenged on several
constitutional ground. To get a clear idea of the question raised it is necessary to read the whole
context of said order which is reproduced as follows:
EXECUTVE ORDER NO. 68.
ESTABLSHNG A NATONAL WAR CRMES OFFCE AND PRESCRBNG RULES
AND REGULATON GOVERNNG THE TRAL OF ACCUSED WAR CRMNAL.
, Manuel Roxas president of the Philippines by virtue of the power vested in me by the
Constitution and laws of the Philippines do hereby establish a National War Crimes Office
charged with the responsibility of accomplishing the speedy trial of all Japanese accused of
war crimes committed in the Philippines and prescribe the rules and regulation such trial.
The National War crimes office is established within the office of the Judge Advocate
General of the Army of the Philippines and shall function under the direction supervision and
control of the Judge Advocate General. t 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:
ESTABLSHMENT OF MLTARY COMMSSONS
(a) General. person accused as war criminal shall be tried by military commission to be
convened by or under the authority of the Philippines.
. JURSDCTON
(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.
. MEMBERSHP OF COMMSSONS
(a) Appointment. The members of each military commission shall be appointed by the
President of the Philippines or under authority delegated by him. Alternates may be
appointed by the convening authority. Such shall attend all session of the commission, and in
case of illness or other incapacity of any principal member, an alternate shall take the place
of that member. Any vacancy among the members or alternates, occurring after a trial has
begun, may be filled by the convening authority but the substance of all proceeding had
evidence taken in that case shall be made known to the said new member or alternate. This
facts shall be announced by the president of the commission in open court.
(b) Number of Members. Each commission shall consist of not less than three (3)
members.
(c) Qualifications. The convening authority shall appoint to the commission persons whom
he determines to be competent to perform the duties involved and not disqualified by
personal interest or prejudice, provided that no person shall be appointed to hear a case in
which he personally investigated or wherein his presence as a witness is required. One
specially qualified member whose ruling is final in so far as concerns the commission on an
objection to the admissibility of evidence offered during the trial.
(d) Voting. Except as to the admissibility of evidence all rulings and finding of the
Commission shall be by majority vote except that conviction and sentence shall be by the
affirmative vote of not less than conviction and sentence shall be by the affirmative vote of
not less than two-thirds (2\3) of the member present.
(e) Presiding Member. n the event that the convening authority does not name one of the
member as the presiding member, the senior officer among the member of the Commission
present shall preside.
V. PROSECUTORS
(a) Appointment. The convening authority shall designate one or more person to conduct
the prosecution before each commission.
(b) Duties. The duties of the prosecutor are:
(1) To prepare and present charges and specifications for reference to a commission.
(2) To prepare cases for trial and to conduct the prosecution before the commission of all
cases referred for trial.
V. POWER AND PROCEDURE OF COMMSSON
(a) Conduct of the Trial. A Commission shall:
(1) Confine each trial strictly to fair and expeditious hearing on the issues raised by the
charges, excluding irrelevant issues or evidence and preventing any unnecessary delay or
interference.
(2) Deal summarily with any contumacy or contempt, imposing any appropriate punishment
therefor.
(3) Hold public session when otherwise decided by the commission.
(4) Hold each session at such time and place as it shall determine, or as may be directed by
the convening authority.
(b) Rights of the Accused. The accused shall be entitled:
(1) To have in advance of the trial a copy of the charges and specifications clearly worded so
as to apprise the accused of each offense charged.
(2) To be represented, prior to and during trial, by counsel appointed by the convening
authority or counsel of his own choice, or to conduct his own defense.
(3) To testify in his own behalf and have his counsel present relevant evidence at the trial in
support of his defense, and cross-examine each adverse witness who personally appears
before the commission.
(4) To have the substance of the charges and specifications, the proceedings and any
documentary evidence translated, when he is unable otherwise to understand them.
(c) Witnesses. The Commission shall have power:
(1) To summon witnesses and require their attendance and testimony; to administer oaths or
affirmations to witnesses and other persons and to question witnesses.
(2) To require the production of documents and other evidentiary material.
(3) To delegate the Prosecutors appointed by the convening authority the powers and duties
set forth in (1) and (2) above.
(4) To have evidence taken by a special commissioner appointed by the commission.
(d) Evidence.
(1) The commission shall admit such evidence as in its opinion shall be of assistance in
proving or disproving the charge, or such as in the commission's opinion would have
probative value in the mind of a reasonable man. The commission shall apply the rules of
evidence and pleading set forth herein with the greatest liberality to achieve expeditious
procedure. n particular, and without limiting in any way the scope of the foregoing general
rules, the following evidence may be admitted:
(a) Any document, irrespective of its classification, which appears to the commission to have
been signed or issued by any officer, department, agency or member of the armed forces of
any Government without proof of the signature or of the issuance of the document.
(b) Any report which appears to the commission to have been signed or issued by the
nternational Red Cross or a member of any medical service personnel, or by any
investigator or intelligence officer, or by any other person whom commission considers as
possessing knowledge of the matters contained in the report.
(c) Affidavits, depositions or other signed statements.
(d) Any diary, letter to other document, including sworn statements, appearing to the
commission to contain information relating to the charge.
(e) A copy of any document or other secondary evidence of the contents, if the original is not
immediately available.
(2) The commission shall take judicial notice of facts of common knowledge, official
government documents of any nation, and the proceedings, records and findings of military
or other agencies of any of the United Nation.
(3) A commission may require the prosecution and the defense to make a preliminary offer of
proof whereupon the commission may rule in advance on the admissibility of such evidence.
(4) The official position of the accused shall not absolve him from responsibility nor be
considered in mitigation of punishment. Further action pursuant to an order of the accused's
superior, or of his Government, shall not constitute a defense, but may be considered in
mitigation of punishment if the commission determines that justice so requires.
(5) All purposed confessions or statements of the accused shall bee admissible in evidence
without any showing that they were voluntarily made. f it is shown that such confession or
statement was procured by mean which the commission believe to have been of such a
character that may have caused the accused to make a false statement the commission may
strike out or disregard any such portion thereof as was so procured.
(e) Trial Procedure. The proceedings of each trial shall be conducted substantially as
follows unless modified by the commission to suit the particular circumstances:
(1) Each charge and specification shall be read or its substance stated in open court.
(2) The presiding member shall ask each accused whether he pleads "Guilty" or "Not guilty."
(3) The prosecution shall make its opening statement."(4) The presiding member may at this
or any other time require the prosecutor to state what evidence he proposes to submit to the
commission and the commission thereupon may rule upon the admissibility of such
evidence.
(4) The witnesses and other evidence for the prosecution shall be heard or presented. At the
close of the case for the prosecution, the commission may, on motion of the defense for a
finding of not guilty, consider and rule whether he evidence before the commission may defer
action on any such motion and permit or require the prosecution to reopen its case and
produce any further available evidence.
(5) The defense may make an opening statement prior to presenting its case. The presiding
member may, at this any other time require the defense to state what evidence it proposes to
submit to the commission where upon the commission may rule upon the admissibility of
such evidence.
(6) The witnesses and other evidence for the defense shall be heard or presented.
Thereafter, the prosecution and defense may introduce such evidence in rebuttal as the
commission may rule as being admissible.
(7) The defense and thereafter the prosecution shall address the commission.
(8) The commission thereafter shall consider the case in closed session and unless
otherwise directed by the convening authority, announce in open court its judgment and
sentence if any. The commission may state the reason on which judgment is based.
( f ) Record of Proceedings. Each commission shall make a separate record of its
proceeding in the trial of each case brought before it. The record shall be prepared by the
prosecutor under the direction of the commission and submitted to the defense counsel. The
commission shall be responsible for its accuracy. Such record, certified by the presiding
member of the commission or his successor, shall be delivered to the convening authority as
soon as possible after the trial.
(g) Sentence. The commission may sentence an accused, upon conviction to death by
hanging or shooting, imprisonment for life or for any less term, fine or such other punishment
as the commission shall determine to be proper.
(h) Approval of Sentence. No. sentence of a military commission shall be carried into
effect until approved by the chief off Staff: Provided, That no sentence of death or life
imprisonment shall be carried into execution until confirmed by the President of the
Philippines. For the purpose of his review the Chief of Staff shall create a Board of Review to
be composed of not more than three officers none of whom shall be on duty with or assigned
to the Judge Advocate General's Office. The Chief of Staff shall have authority to approve,
mitigate remit in whole or in part, commute, suspend, reduce or otherwise alter the sentence
imposed, or (without prejudice to the accused) remand the case for rehearing before a new
military commission; but he shall not have authority to increase the severity of the sentence.
Except as herein otherwise provided the judgment and sentence of a commission shall final
and not subject to review by any other tribunal.
V. RULE-MAKNG 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.
V. The amount of amount of seven hundred thousand pesos is hereby set aside out of the
appropriations for the Army of the Philippines for use by the National War Crimes Office in
the accomplishment of its mission as hereinabove set forth, and shall be expended in
accordance with the recommendation of the Judge Advocate General as approved by the
President. The buildings, fixtures, installations, messing, and billeting equipment and other
property herefore used by then Legal Section, Manila Branch, of the General Headquarters,
Supreme Commander for the Allied Power, which will be turned over by the United States
Army to the Philippines Government through the Foreign Liquidation Commission and the
Surplus Property Commission are hereby specification reserved for use off the National War
Crimes Office.
Executive Order No. 64, dated August 16, 1945, is hereby repealed.
Done in the City of Manila, this 29th day of July in the year of Our Lord, nineteen hundred
and forty-seven, and of the ndependence of the Philippines, the second.
MANUEL ROXAS
President of the Philippines
By the President:
EMLO ABELLO
Chief of the Executive Office
EXECUTVE LEGSLATON
Executive Order No. 68 is a veritable piece of Legislative measure, without the benefit of
congressional enactment.
The first question that is trust at our face spearheading a group of other no less important question,
is whether or not the President of the Philippines may exercise the legislative power expressly
vested in Congress by the Constitution. .
The Constitution provides:
The Legislative powers shall be vested in a Congress of the Philippines which shall consist
of a Senate and House of Representatives. (Section 1, Article V.)
While there is no express provision in the fundamental law prohibiting the exercise of legislative
power by agencies other than Congress, a reading of the whole context of the Constitution would
dispel any doubt as to the constitutional intent that the legislative power is to be exercised
exclusively by Congress, subject only to the veto power of the President of the President of the
Philippines, to the specific provision which allow the president of the Philippines to suspend the
privileges of the writ of habeas corpus and to place any part of the Philippines under martial law, and
to the rule-making power expressly vested by the Constitution in the Supreme Court.
There cannot be any question that the member of the Constitutional Convention were believers in
the tripartite system of government as originally enunciated by Aristotle, further elaborated by
Montequieu and accepted and practiced by modern democracies, especially the United State of
America, whose Constitution, after which ours has been patterned, has allocated the three power of
government legislative, executive, judicial to distinct and separate department of government.
Because the power vested by our Constitution to the several department of the government are in
the nature of grants, not recognition of pre-existing power, no department of government may
exercise any power or authority not expressly granted by the Constitution or by law by virtue express
authority of the Constitution.
Executive Order No. 68 establishes a National War Crimes Office and the power to establish
government office is essentially legislative.
The order provides that person accused as war criminals shall be tried by military commissions.
Whether such a provision is substantive or adjective, it is clearly legislative in nature. t confers upon
military commissions jurisdiction to try all persons charge with war crimes. The power to define and
allocate jurisdiction for the prosecution of person accused of any crime is exclusively vested by the
Constitution in Congress. .
t provides rules of procedure for the conduct of trial of trial. This provision on procedural subject
constitutes a usurpation of the rule-making power vested by Constitution in the Supreme Court.
t authorized military commission to adopt additional rule of procedure. f the President of the
Philippines cannot exercise the rule -making power vested by the Constitution in the Supreme Court,
he cannot, with more reason, delegate that power to military commission.
t appropriates the sum of P7000,000 for the expenses of the National War Crimes office established
by the said Executive Order No. 68. This constitutes another usurpation of legislative power as the
power to vote appropriations belongs to Congress.
Executive Order No. 68., is, therefore, null and void, because, though it the President of the
Philippines usurped power expressly vested by the Constitution in Congress and in the Supreme
Court.
Challenged to show the constitutional or legal authority under which the President issued Executive
Order No. 68, respondent could not give any definite answer. They attempted, however, to suggest
that the President of the Philippines issued Executive Order No. 68 under the emergency power
granted to him by Commonwealth Act No. 600, as amended by Commonwealth Act No. 620, and
Commonwealth Act No. 671, both of which are transcribed below:

COMMONWEALTH ACT NO. 600.
AN ACT DECLARNG A STATE OF EMERGENCY AND AUTHORZNG THE
PRESDENT TO PROMULGATE RULES AND REGULATON TO SAFEGUARD
THE NTEGRTY OF THE PHLPPNES AND TO NSURE THE TRAN"ULTY OF
TS NHABTANTS.
Be it enacted by the National Assembly of the Philippines:
SECTON 1. The existence of war in many parts of the world has created a national
emergency which makes it necessary to invest the President of the Philippines with
extraordinary power in order to safeguard the integrity of the Philippines and to insure the
tranquility of its inhabitants, by suppressing espionage, lawlessness, and all subversive to
the people adequate shelter and clothing and sufficient food supply, and by providing means
for the speedy evacuation of the civilian population the establishment of an air protective
service and the organization of volunteer guard units, and to adopt such other measures as
he may deem necessary for the interest of the public. To carry out this policy the President is
authorized to promulgate rules and regulations which shall have the force and effect off law
until the date of adjournment of the next regulation which shall have the force and effect of
law until the date of adjournment of the next regular session of the First Congress of the
Philippines, unless sooner amended or repealed by the Congress of Philippines. Such rules
and regulation may embrace the following objects: (1) to suppress espionage and other
subversive activities; (2) to require all able-bodied citizens (a) when not engaged in any
lawful occupation, to engage in farming or other productive activities or (b) to perform such
services as may bee necessary in the public interest; (3) to take over farm lands in order to
prevent or shortage of crops and hunger and destitution; (4) to take over industrial
establishment in order to insure adequate production, controlling wages and profits therein;
(5) to prohibit lockouts and strikes whenever necessary to prevent the unwarranted
suspension of work in productive enterprises or in the interest of national security; (6) to
regulate the normal hours of work for wage-earning and salaried employees in industrial or
business undertakings of all kinds; (7) to insure an even distribution of labor among the
productive enterprises; (8) to commandership and other means of transportation in order to
maintain, as much as possible, adequate and continued transportation facilities; (9) to
requisition and take over any public service or enterprise for use or operation by the
Government;(10) to regulate rents and the prices of articles or commodities of prime
necessity, both imported and locally produced or manufactured; and (11) to prevent, locally
or generally, scarcity, monopolization, hoarding injurious speculations, and private control
affecting the supply, distribution and movement of foods, clothing, fuel, fertilizer, chemical,
building, material, implements, machinery, and equipment required in agriculture and
industry, with power to requisition these commodities subject to the payment of just
compensation. (As amended by Com. Act No. 620.)
SEC. 2. For the purpose of administering this Act and carrying out its objective, the President
may designate any officer, without additional compensation, or any department, bureau,
office, or instrumentality of the National Government.
SEC. 3. Any person, firm, or corporation found guilty of the violation of any provision of this
Act or of this Act or any of the rules or regulations promulgated by the President under the
authority of section one of this Act shall be punished by imprisonment of not more than ten
years or by a fine of not more than ten thousand pesos, or by both. f such violation is
committed by a firm or corporation, the manager, managing director, or person charge with
the management of the business of such firm, or corporation shall be criminally responsible
therefor.
SEC. 4. The President shall report to the national Assembly within the first ten days from the
date of the opening of its next regular session whatever action has been taken by him under
the authority herein granted.
SEC. 5. To carry out the purposed of this Act, the President is authorized to spend such
amounts as may be necessary from the sum appropriated under section five Commonwealth
Act Numbered four hundred and ninety-eight.
SEC. 6. f any province of this Act shall be declared by any court of competent jurisdiction to
be unconstitutional and void, such declaration shall not invalidate the remainder of this Act.
SEC. 7. This Act shall take upon its approval.
Approved, August 19, 1940.

COMMONWEALTH ACT NO. 671
AN ACT DECLARNG A STATE OF TOTAL EMERGENCY AS A RESULT OF WAR
NVOLVNG THE PHLPPNES AND AUTHORZNG THE PRESDENT TO
PROMULGATE RULE AND REGULATONS TO MEET SUCH EMERGENCY.
Be it enacted the National Assembly of the Philippines;
SECTON 1. The existed of war between the United State and other countries of Europe and
Asia, which involves the Philippines, makes it necessary to invest the President with
extraordinary powers in order to meet the resulting emergency.
SEC. 2. Pursuant to the provision of Article V, section 16, of the Constitution, the President
is hereby authorized, during the existence of the emergency, to promulgate such rules and
regulation as he may deem necessary to carry out the national policy declared in section 1
hereof. Accordingly, he is, among other things, empowered (a) to transfer the seat of the
Government or any of its subdivisions, branches, department, offices, agencies or
instrumentalities; (b) to reorganize the Government of the Commonwealth including the
determination of the order of precedence of the heads of the Executive Department; (c) to
create new subdivision, branches, departments, offices, agency or instrumentalities of
government and to abolish any of those already existing; (d) to continue in force laws and
appropriation which would lapse or otherwise became inoperative, and to modify or suspend
the operation or application of those of an administrative character; (e) to imposed new taxes
or to increase, reduce, suspend, or abolish those in existence; (f) to raise funds through the
issuance of bonds or otherwise, and to authorize the expensive of the proceeds thereof; (g)
to authorize the National, provincial, city or municipal governments to incur in overdrafts for
purposes that he may approve; (h) to declare the suspension of the collection of credits or
the payment of debts; and (i) to exercise such other power as he may deem necessary to
enable the Government to fulfill its responsibilities and to maintain and enforce its authority.
SEC. 3. The President of the Philippines report thereto all the rules and regulation
promulgated by him under the power herein granted.
SEC. 4. This Act shall take effect upon its approval and the rules and regulations.
promulgated hereunder shall be in force and effect until the Congress of the Philippines shall
otherwise provide.
Approved December 16, 1941.
The above Acts cannot validly be invoked, Executive Order No. 68 was issued on July 29, 1947.
Said Acts had elapsed upon the liberation of the Philippines form the Japanese forces or, at the
latest, when the surrender of Japan was signed in Tokyo on September 2, 1945.
When both Acts were enacted by the Second National Assembly, we happened to have taken direct
part in their consideration and passage, not only as one of the members of said legislative body as
chairman of the Committee on Third Reading population Known as the "Little Senate." We are,
therefore in a position to state that said measures were enacted by the second national Assembly for
the purpose of facing the emergency of impending war and of the Pacific War that finally broke out
with the attack of Pearl Harbor on December 7, 1941. We approved said extraordinary measures, by
which under the exceptional circumstances then prevailing legislative power were delegated to the
President of the Philippines, by virtue of the following provisions of the Constitution:
n time of war or other national emergency, the Congress may by law authorize the
President, for a limited period and subject to such restrictions as it may prescribe to
promulgate rules and regulations to carry out declared national policy. (Article V, section
26.)
t has never been the purpose of the National Assembly to extend the delegation beyond the
emergency created by the war as to extend it farther would be violative of the express provision of
the Constitution. We are of the opinion that there is no doubt on this question.; but if there could still
be any the same should be resolved in favor of the presumption that the National Assembly did not
intend to violate the fundamental law.
The absurdity of the contention that the emergency Acts continued in effect even after the surrender
of Japan can not be gainsaid. Only a few months after liberation and even before the surrender of
Japan, or since the middle of 1945, the Congress started to function normally. n the hypothesis that
the contention can prevail, then, since 1945, that is, four years ago, even after the Commonwealth
was already replaced by the Republic of the Philippines with the proclamation of our ndependence,
two district, separate and independence legislative organs, Congress and the President of the
Philippines would have been and would continue enacting laws, the former to enact laws of every
nature including those of emergency character, and the latter to enact laws, in the form of executive
orders, under the so-called emergency powers. The situation would be pregnant with dangers to
peace and order to the rights and liberties of the people and to Philippines democracy.
Should there be any disagreement between Congress and the President of the Philippines, a
possibility that no one can dispute the President of the Philippines may take advantage of he long
recess of Congress (two-thirds of every year ) to repeal and overrule legislative enactments of
Congress, and may set up a veritable system of dictatorship, absolutely repugnant to the letter and
spirit of the Constitution.
Executive Order No. 68 is equally offensive to the Constitution because it violates the fundamental
guarantees of the due process and equal protection of the law. t is especially so, because it permit
the admission of many kinds evidence by which no innocent person can afford to get acquittal and
by which it is impossible to determine whether an accused is guilty or not beyond all reasonable
doubt.
The rules of evidence adopted in Executive Order No. 68 are a reproduction of the regulation
governing the trial of twelve criminal, issued by General Douglas Mac Arthur, Commander in Chief of
the United State Armed Forces in Western Pacific, for the purpose of trying among other, General
Yamashita and Homma. What we said in our concurring and dissenting opinion to the decision
promulgated on December 19, 1945, in the Yamashita case, L-129, and in our concurring and
dissenting opinion to the resolution of January 23, 1946 in disposing the Homma case, L-244, are
perfectly applicable to the offensive rules of evidence in Executive Order No. 68. Said rules of
evidence are repugnant to conscience as under them no justice can expected.
For all the foregoing, conformably with our position in the Yamashita and Homma cases, we vote to
declare Executive Order No. 68 null and void and to grant petition.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-5 September 17, 1945
CO KIM CHAM (aIias CO KIM CHAM), petitioner,
vs.
EUSEBIO VALDEZ TAN KEH and ARSENIO P. DIZON, Judge of First Instance of
ManiIa, respondents.
1

Marcelino Lontok for petitioner.
P. A. Revilla for respondent Valdez Tan Keh.
Respondent Judge Dizon in his own behalf.
FERIA,
This petition for mandamus in which petitioner prays that the respondent judge of the lower court be
ordered to continue the proceedings in civil case No. 3012 of said court, which were initiated under
the regime of the so-called Republic of the Philippines established during the Japanese military
occupation of these slands.
The respondent judge refused to take cognizance of and continue the proceedings in said case on
the ground that the proclamation issued on October 23, 1944, by General Douglas MacArthur had
the effect of invalidating and nullifying all judicial proceedings and judgements of the court of the
Philippines under the Philippine Executive Commission and the Republic of the Philippines
established during the Japanese military occupation, and that, furthermore, the lower courts have no
jurisdiction to take cognizance of and continue judicial proceedings pending in the courts of the
defunct Republic of the Philippines in the absence of an enabling law granting such authority. And
the same respondent, in his answer and memorandum filed in this Court, contends that the
government established in the Philippines during the Japanese occupation were no de
facto governments.
On January 2, 1942, the mperial Japanese Forces occupied the City of Manila, and on the next day
their Commander in Chief proclaimed "the Military Administration under law over the districts
occupied by the Army." n said proclamation, it was also provided that "so far as the Military
Administration permits, all the laws now in force in the Commonwealth, as well as executive and
judicial institutions, shall continue to be effective for the time being as in the past," and "all public
officials shall remain in their present posts and carry on faithfully their duties as before."
A civil government or central administration organization under the name of "Philippine Executive
Commission was organized by Order No. 1 issued on January 23, 1942, by the Commander in Chief
of the Japanese Forces in the Philippines, and Jorge B. Vargas, who was appointed Chairman
thereof, was instructed to proceed to the immediate coordination of the existing central
administrative organs and judicial courts, based upon what had existed therefore, with approval of
the said Commander in Chief, who was to exercise jurisdiction over judicial courts.
The Chairman of the Executive Commission, as head of the central administrative organization,
issued Executive Orders Nos. 1 and 4, dated January 30 and February 5, 1942, respectively, in
which the Supreme Court, Court of Appeals, Courts of First nstance, and the justices of the peace
and municipal courts under the Commonwealth were continued with the same jurisdiction, in
conformity with the instructions given to the said Chairman of the Executive Commission by the
Commander in Chief of Japanese Forces in the Philippines in the latter's Order No. 3 of February 20,
1942, concerning basic principles to be observed by the Philippine Executive Commission in
exercising legislative, executive and judicial powers. Section 1 of said Order provided that "activities
of the administration organs and judicial courts in the Philippines shall be based upon the existing
statutes, orders, ordinances and customs. . . ."
On October 14, 1943, the so-called Republic of the Philippines was inaugurated, but no substantial
change was effected thereby in the organization and jurisdiction of the different courts that
functioned during the Philippine Executive Commission, and in the laws they administered and
enforced.
On October 23, 1944, a few days after the historic landing in Leyte, General Douglas MacArthur
issued a proclamation to the People of the Philippines which declared:
1. That the Government of the Commonwealth of the Philippines is, subject to the supreme
authority of the Government of the United States, the sole and only government having legal
and valid jurisdiction over the people in areas of the Philippines free of enemy occupation
and control;
2. That the laws now existing on the statute books of the Commonwealth of the Philippines
and the regulations promulgated pursuant thereto are in full force and effect and legally
binding upon the people in areas of the Philippines free of enemy occupation and control;
and
3. That all laws, regulations and processes of any other government in the Philippines than
that of the said Commonwealth are null and void and without legal effect in areas of the
Philippines free of enemy occupation and control.
On February 3, 1945, the City of Manila was partially liberated and on February 27, 1945, General
MacArthur, on behalf of the Government of the United States, solemnly declared "the full powers and
responsibilities under the Constitution restored to the Commonwealth whose seat is here established
as provided by law."
n the light of these facts and events of contemporary history, the principal questions to be resolved
in the present case may be reduced to the following:(1) Whether the judicial acts and proceedings of
the court existing in the Philippines under the Philippine Executive Commission and the Republic of
the Philippines were good and valid and remained so even after the liberation or reoccupation of the
Philippines by the United States and Filipino forces; (2)Whether the proclamation issued on October
23, 1944, by General Douglas MacArthur, Commander in Chief of the United States Army, in which
he declared "that all laws, regulations and processes of any of the government in the Philippines
than that of the said Commonwealth are null and void and without legal effect in areas of the
Philippines free of enemy occupation and control," has invalidated all judgements and judicial acts
and proceedings of the said courts; and (3) f the said judicial acts and proceedings have not been
invalidated by said proclamation, whether the present courts of the Commonwealth, which were the
same court existing prior to, and continued during, the Japanese military occupation of the
Philippines, may continue those proceedings pending in said courts at the time the Philippines were
reoccupied and liberated by the United States and Filipino forces, and the Commonwealth of the
Philippines were reestablished in the slands.
We shall now proceed to consider the first question, that is, whether or not under the rules of
international law the judicial acts and proceedings of the courts established in the Philippines under
the Philippine Executive Commission and the Republic of the Philippines were good and valid and
remained good and valid even after the liberation or reoccupation of the Philippines by the United
States and Filipino forces.
1. t is a legal truism in political and international law that all acts and proceedings of the legislative,
executive, and judicial departments of a de facto government are good and valid. The question to be
determined is whether or not the governments established in these slands under the names of the
Philippine Executive Commission and Republic of the Philippines during the Japanese military
occupation or regime were de facto governments. f they were, the judicial acts and proceedings of
those governments remain good and valid even after the liberation or reoccupation of the Philippines
by the American and Filipino forces.
There are several kinds of de facto governments. The first, or government de facto in a proper legal
sense, is that government that gets possession and control of, or usurps, by force or by the voice of
the majority, the rightful legal governments and maintains itself against the will of the latter, such as
the government of England under the Commonwealth, first by Parliament and later by Cromwell as
Protector. The second is that which is established and maintained by military forces who invade and
occupy a territory of the enemy in the course of war, and which is denominated a government of
paramount force, as the cases of Castine, in Maine, which was reduced to British possession in the
war of 1812, and Tampico, Mexico, occupied during the war with Mexico, by the troops of the United
States. And the third is that established as an independent government by the inhabitants of a
country who rise in insurrection against the parent state of such as the government of the Southern
Confederacy in revolt not concerned in the present case with the first kind, but only with the second
and third kinds of de facto governments.
Speaking of government "de facto" of the second kind, the Supreme Court of the United States, in
the case of Thorington vs. Smith (8 Wall., 1), said: "But there is another description of government,
called also by publicists a government de facto, but which might, perhaps, be more aptly
denominated a government of paramount force. ts distinguishing characteristics are (1), that its
existence is maintained by active military power with the territories, and against the rightful authority
of an established and lawful government; and (2), that while it exists it necessarily be obeyed in civil
matters by private citizens who, by acts of obedience rendered in submission to such force, do not
become responsible, or wrongdoers, for those acts, though not warranted by the laws of the rightful
government. Actual governments of this sort are established over districts differing greatly in extent
and conditions. They are usually administered directly by military authority, but they may be
administered, also, civil authority, supported more or less directly by military force. . . . One example
of this sort of government is found in the case of Castine, in Mine, reduced to British possession in
the war of 1812 . . . U. S. vs. Rice (4 Wheaton, 253). A like example is found in the case of Tampico,
occupied during the war with Mexico, by the troops of the United States . . . Fleming vs. Page (9
Howard, 614). These were cases of temporary possessions of territory by lawfull and regular
governments at war with the country of which the territory so possessed was part."
The powers and duties of de facto governments of this description are regulated in Section of the
Hague Conventions of 1907, which is a revision of the provisions of the Hague Conventions of 1899
on the same subject of said Section provides "the authority of the legislative power having actually
passed into the hands of the occupant, the latter shall take steps in his power to reestablish and
insure, as far as possible, public order and safety, while respecting, unless absolutely prevented, the
laws in force in the country."
According to the precepts of the Hague Conventions, as the belligerent occupant has the right and is
burdened with the duty to insure public order and safety during his military occupation, he possesses
all the powers of a de facto government, and he can suspended the old laws and promulgate new
ones and make such changes in the old as he may see fit, but he is enjoined to respect, unless
absolutely prevented by the circumstances prevailing in the occupied territory, the municipal laws in
force in the country, that is, those laws which enforce public order and regulate social and
commercial life of the country. On the other hand, laws of a political nature or affecting political
relations, such as, among others, the right of assembly, the right to bear arms, the freedom of the
press, and the right to travel freely in the territory occupied, are considered as suspended or in
abeyance during the military occupation. Although the local and civil administration of justice is
suspended as a matter of course as soon as a country is militarily occupied, it is not usual for the
invader to take the whole administration into his own hands. n practice, the local ordinary tribunals
are authorized to continue administering justice; and judges and other judicial officers are kept in
their posts if they accept the authority of the belligerent occupant or are required to continue in their
positions under the supervision of the military or civil authorities appointed, by the Commander in
Chief of the occupant. These principles and practice have the sanction of all publicists who have
considered the subject, and have been asserted by the Supreme Court and applied by the President
of the United States.
The doctrine upon this subject is thus summed up by Halleck, in his work on nternational Law (Vol.
2, p. 444): "The right of one belligerent to occupy and govern the territory of the enemy while in its
military possession, is one of the incidents of war, and flows directly from the right to conquer. We,
therefore, do not look to the Constitution or political institutions of the conqueror, for authority to
establish a government for the territory of the enemy in his possession, during its military occupation,
nor for the rules by which the powers of such government are regulated and limited. Such authority
and such rules are derived directly from the laws war, as established by the usage of the of the
world, and confirmed by the writings of publicists and decisions of courts in fine, from the law of
nations. . . . The municipal laws of a conquered territory, or the laws which regulate private rights,
continue in force during military occupation, excepts so far as they are suspended or changed by the
acts of conqueror. . . . He, nevertheless, has all the powers of a de facto government, and can at his
pleasure either change the existing laws or make new ones."
And applying the principles for the exercise of military authority in an occupied territory, which were
later embodied in the said Hague Conventions, President McKinley, in his executive order to the
Secretary of War of May 19,1898, relating to the occupation of the Philippines by United States
forces, said in part: "Though the powers of the military occupant are absolute and supreme, and
immediately operate upon the political condition of the inhabitants, the municipal laws of the
conquered territory, such as affect private rights of person and property and provide for the
punishment of crime, are considered as continuing in force, so far as they are compatible with the
new order of things, until they are suspended or superseded by the occupying belligerent; and in
practice they are not usually abrogated, but are allowed to remain in force and to be administered by
the ordinary tribunals, substantially as they were before the occupation. This enlightened practice is,
so far as possible, to be adhered to on the present occasion. The judges and the other officials
connected with the administration of justice may, if they accept the authority of the United States,
continue to administer the ordinary law of the land as between man and man under the supervision
of the American Commander in Chief." (Richardson's Messages and Papers of President, X, p. 209.)
As to "de facto" government of the third kind, the Supreme Court of the United States, in the same
case of Thorington vs. Smith, supra, recognized the government set up by the Confederate States
as a de factogovernment. n that case, it was held that "the central government established for the
insurgent States differed from the temporary governments at Castine and Tampico in the
circumstance that its authority did no originate in lawful acts of regular war; but it was not, on the
account, less actual or less supreme. And we think that it must be classed among the governments
of which these are examples. . . .
n the case of William vs. Bruffy (96 U. S. 176, 192), the Supreme Court of the United States,
discussing the validity of the acts of the Confederate States, said: "The same general form of
government, the same general laws for the administration of justice and protection of private rights,
which had existed in the States prior to the rebellion, remained during its continuance and
afterwards. As far as the Acts of the States do not impair or tend to impair the supremacy of the
national authority, or the just rights of citizens under the Constitution, they are, in general, to be
treated as valid and binding. As we said in Horn vs. Lockhart (17 Wall., 570; 21 Law. ed., 657): "The
existence of a state of insurrection and war did not loosen the bonds of society, or do away with civil
government or the regular administration of the laws. Order was to be preserved, police regulations
maintained, crime prosecuted, property protected, contracts enforced, marriages celebrated, estates
settled, and the transfer and descent of property regulated, precisely as in the time of peace. No
one, that we are aware of, seriously questions the validity of judicial or legislative Acts in the
insurrectionary States touching these and kindered subjects, where they were not hostile in their
purpose or mode of enforcement to the authority of the National Government, and did not impair the
rights of citizens under the Constitution'. The same doctrine has been asserted in numerous other
cases."
And the same court, in the case of Baldy vs. Hunter (171 U. S., 388, 400), held: "That what occured
or was done in respect of such matters under the authority of the laws of these local de
facto governments should not be disregarded or held to be invalid merely because those
governments were organized in hostility to the Union established by the national Constitution; this,
because the existence of war between the United States and the Confederate States did not relieve
those who are within the insurrectionary lines from the necessity of civil obedience, nor destroy the
bonds of society nor do away with civil government or the regular administration of the laws, and
because transactions in the ordinary course of civil society as organized within the enemy's territory
although they may have indirectly or remotely promoted the ends of the de facto or unlawful
government organized to effect a dissolution of the Union, were without blame 'except when proved
to have been entered intowith actual intent to further invasion or insurrection:'" and "That judicial and
legislative acts in the respective states composing the so-called Confederate States should be
respected by the courts if they were not hostile in their purpose or mode of enforcement to the
authority of the National Government, and did not impair the rights of citizens under the
Constitution."
n view of the foregoing, it is evident that the Philippine Executive Commission, which was organized
by Order No. 1, issued on January 23, 1942, by the Commander of the Japanese forces, was a civil
government established by the military forces of occupation and therefore a de facto government of
the second kind. t was not different from the government established by the British in Castine,
Maine, or by the United States in Tampico, Mexico. As Halleck says, "The government established
over an enemy's territory during the military occupation may exercise all the powers given by the
laws of war to the conqueror over the conquered, and is subject to all restrictions which that code
imposes. t is of little consequence whether such government be called a military or civil government.
ts character is the same and the source of its authority the same. n either case it is a government
imposed by the laws of war, and so far it concerns the inhabitants of such territory or the rest of the
world, those laws alone determine the legality or illegality of its acts." (Vol. 2, p. 466.) The fact that
the Philippine Executive Commission was a civil and not a military government and was run by
Filipinos and not by Japanese nationals, is of no consequence. n 1806, when Napoleon occupied
the greater part of Prussia, he retained the existing administration under the general direction of a
french official (Langfrey History of Napoleon, 1, V, 25); and, in the same way, the Duke of
Willington, on invading France, authorized the local authorities to continue the exercise of their
functions, apparently without appointing an English superior. (Wellington Despatches, X, 307.). The
Germans, on the other hand, when they invaded France in 1870, appointed their own officials, at
least in Alsace and Lorraine, in every department of administration and of every rank. (Calvo, pars.
2186-93; Hall, nternational Law, 7th ed., p. 505, note 2.)
The so-called Republic of the Philippines, apparently established and organized as a sovereign state
independent from any other government by the Filipino people, was, in truth and reality, a
government established by the belligerent occupant or the Japanese forces of occupation. t was of
the same character as the Philippine Executive Commission, and the ultimate source of its authority
was the same the Japanese military authority and government. As General MacArthur stated in
his proclamation of October 23, 1944, a portion of which has been already quoted, "under enemy
duress, a so-called government styled as the 'Republic of the Philippines' was established on
October 14, 1943, based upon neither the free expression of the people's will nor the sanction of the
Government of the United States." Japan had no legal power to grant independence to the
Philippines or transfer the sovereignty of the United States to, or recognize the latent sovereignty of,
the Filipino people, before its military occupation and possession of the slands had matured into an
absolute and permanent dominion or sovereignty by a treaty of peace or other means recognized in
the law of nations. For it is a well-established doctrine in nternational Law, recognized in Article 45
of the Hauge Conventions of 1907 (which prohibits compulsion of the population of the occupied
territory to swear allegiance to the hostile power), the belligerent occupation, being essentially
provisional, does not serve to transfer sovereignty over the territory controlled although the de
jure government is during the period of occupancy deprived of the power to exercise its rights as
such. (Thirty Hogshead of Sugar vs. Boyle, 9 Cranch, 191; United States vs. Rice, 4 Wheat., 246;
Fleming vs.Page, 9 Howard, 603; Downes vs. Bidwell, 182 U. S., 345.) The formation of the
Republic of the Philippines was a scheme contrived by Japan to delude the Filipino people into
believing in the apparent magnanimity of the Japanese gesture of transferring or turning over the
rights of government into the hands of Filipinos. t was established under the mistaken belief that by
doing so, Japan would secure the cooperation or at least the neutrality of the Filipino people in her
war against the United States and other allied nations.
ndeed, even if the Republic of the Philippines had been established by the free will of the Filipino
who, taking advantage of the withdrawal of the American forces from the slands, and the occupation
thereof by the Japanese forces of invasion, had organized an independent government under the
name with the support and backing of Japan, such government would have been considered as one
established by the Filipinos in insurrection or rebellion against the parent state or the Unite States.
And as such, it would have been a de facto government similar to that organized by the confederate
states during the war of secession and recognized as such by the by the Supreme Court of the
United States in numerous cases, notably those of Thorington vs. Smith, Williams vs.Bruffy, and
Badly vs. Hunter, above quoted; and similar to the short-lived government established by the Filipino
insurgents in the sland of Cebu during the Spanish-American war, recognized as a de
facto government by the Supreme Court of the United States in the case of McCleod vs. United
States (299 U. S., 416). According to the facts in the last-named case, the Spanish forces evacuated
the sland of Cebu on December 25, 1898, having first appointed a provisional government, and
shortly afterwards, the Filipinos, formerly in insurrection against Spain, took possession of the
slands and established a republic, governing the slands until possession thereof was surrendered
to the United States on February 22, 1898. And the said Supreme Court held in that case that "such
government was of the class of de facto governments described in Moore's nternational Law
Digest, S 20, . . . 'called also by publicists a government de facto, but which might, perhaps, be more
aptly denominated a government of paramount force . . '." That is to say, that the government of a
country in possession of belligerent forces in insurrection or rebellion against the parent state, rests
upon the same principles as that of a territory occupied by the hostile army of an enemy at regular
war with the legitimate power.
The governments by the Philippine Executive Commission and the Republic of the Philippines during
the Japanese military occupation being de facto governments, it necessarily follows that the judicial
acts and proceedings of the courts of justice of those governments, which are not of a political
complexion, were good and valid, and, by virtue of the well-known principle of postliminy
(postliminium) in international law, remained good and valid after the liberation or reoccupation of the
Philippines by the American and Filipino forces under the leadership of General Douglas MacArthur.
According to that well-known principle in international law, the fact that a territory which has been
occupied by an enemy comes again into the power of its legitimate government of sovereignty,
"does not, except in a very few cases, wipe out the effects of acts done by an invader, which for one
reason or another it is within his competence to do. Thus judicial acts done under his control, when
they are not of a political complexion, administrative acts so done, to the extent that they take effect
during the continuance of his control, and the various acts done during the same time by private
persons under the sanction of municipal law, remain good. Were it otherwise, the whole social life of
a community would be paralyzed by an invasion; and as between the state and the individuals the
evil would be scarcely less, it would be hard for example that payment of taxes made under
duress should be ignored, and it would be contrary to the general interest that the sentences passed
upon criminals should be annulled by the disappearance of the intrusive government ." (Hall,
nternational Law, 7th ed., p. 518.) And when the occupation and the abandonment have been each
an incident of the same war as in the present case, postliminy applies, even though the occupant
has acted as conqueror and for the time substituted his own sovereignty as the Japanese intended
to do apparently in granting independence to the Philippines and establishing the so-called Republic
of the Philippines. (Taylor, nternational Law, p. 615.)
That not only judicial but also legislative acts of de facto governments, which are not of a political
complexion, are and remain valid after reoccupation of a territory occupied by a belligerent occupant,
is confirmed by the Proclamation issued by General Douglas MacArthur on October 23, 1944, which
declares null and void all laws, regulations and processes of the governments established in the
Philippines during the Japanese occupation, for it would not have been necessary for said
proclamation to abrogate them if they were invalid ab initio.
2. The second question hinges upon the interpretation of the phrase "processes of any other
government" as used in the above-quoted proclamation of General Douglas MacArthur of October
23, 1944 that is, whether it was the intention of the Commander in Chief of the American Forces
to annul and void thereby all judgments and judicial proceedings of the courts established in the
Philippines during the Japanese military occupation.
The phrase "processes of any other government" is broad and may refer not only to the judicial
processes, but also to administrative or legislative, as well as constitutional, processes of the
Republic of the Philippines or other governmental agencies established in the slands during the
Japanese occupation. Taking into consideration the fact that, as above indicated, according to the
well-known principles of international law all judgements and judicial proceedings, which are not of a
political complexion, of the de facto governments during the Japanese military occupation were good
and valid before and remained so after the occupied territory had come again into the power of the
titular sovereign, it should be presumed that it was not, and could not have been, the intention of
General Douglas MacArthur, in using the phrase "processes of any other government" in said
proclamation, to refer to judicial processes, in violation of said principles of international law. The
only reasonable construction of the said phrase is that it refers to governmental processes other
than judicial processes of court proceedings, for according to a well-known rule of statutory
construction, set forth in 25 R. C. L., p. 1028, "a statute ought never to be construed to violate the
law of nations if any other possible construction remains."
t is true that the commanding general of a belligerent army of occupation, as an agent of his
government, may not unlawfully suspend existing laws and promulgate new ones in the occupied
territory, if and when the exigencies of the military occupation demand such action. But even
assuming that, under the law of nations, the legislative power of a commander in chief of military
forces who liberates or reoccupies his own territory which has been occupied by an enemy, during
the military and before the restoration of the civil regime, is as broad as that of the commander in
chief of the military forces of invasion and occupation (although the exigencies of military
reoccupation are evidently less than those of occupation), it is to be presumed that General Douglas
MacArthur, who was acting as an agent or a representative of the Government and the President of
the United States, constitutional commander in chief of the United States Army, did not intend to act
against the principles of the law of nations asserted by the Supreme Court of the United States from
the early period of its existence, applied by the Presidents of the United States, and later embodied
in the Hague Conventions of 1907, as above indicated. t is not to be presumed that General
Douglas MacArthur, who enjoined in the same proclamation of October 23, 1944, "upon the loyal
citizens of the Philippines full respect and obedience to the Constitution of the Commonwealth of the
Philippines," should not only reverse the international policy and practice of his own government, but
also disregard in the same breath the provisions of section 3, Article , of our Constitution, which
provides that "The Philippines renounces war as an instrument of national policy, and adopts the
generally accepted principles of international law as part of the law of the Nation."
Moreover, from a contrary construction great inconvenience and public hardship would result, and
great public interests would be endangered and sacrificed, for disputes or suits already adjudged
would have to be again settled accrued or vested rights nullified, sentences passed on criminals set
aside, and criminals might easily become immune for evidence against them may have already
disappeared or be no longer available, especially now that almost all court records in the Philippines
have been destroyed by fire as a consequence of the war. And it is another well-established rule of
statutory construction that where great inconvenience will result from a particular construction, or
great public interests would be endangered or sacrificed, or great mischief done, such construction
is to be avoided, or the court ought to presume that such construction was not intended by the
makers of the law, unless required by clear and unequivocal words. (25 R. C. L., pp. 1025, 1027.)
The mere conception or thought of possibility that the titular sovereign or his representatives who
reoccupies a territory occupied by an enemy, may set aside or annul all the judicial acts or
proceedings of the tribunals which the belligerent occupant had the right and duty to establish in
order to insure public order and safety during military occupation, would be sufficient to paralyze the
social life of the country or occupied territory, for it would have to be expected that litigants would not
willingly submit their litigation to courts whose judgements or decisions may afterwards be annulled,
and criminals would not be deterred from committing crimes or offenses in the expectancy that they
may escaped the penalty if judgments rendered against them may be afterwards set aside.
That the proclamation has not invalidated all the judgements and proceedings of the courts of justice
during the Japanese regime, is impliedly confirmed by Executive Order No. 37, which has the force
of law, issued by the President of the Philippines on March 10, 1945, by virtue of the emergency
legislative power vested in him by the Constitution and the laws of the Commonwealth of the
Philippines. Said Executive order abolished the Court of Appeals, and provided "that all case which
have heretofore been duly appealed to the Court of Appeals shall be transmitted to the Supreme
Court final decision." This provision impliedly recognizes that the judgments and proceedings of the
courts during the Japanese military occupation have not been invalidated by the proclamation of
General MacArthur of October 23, because the said Order does not say or refer to cases which have
been duly appealed to said court prior to the Japanese occupation, but to cases which had therefore,
that is, up to March 10, 1945, been duly appealed to the Court of Appeals; and it is to be presumed
that almost all, if not all, appealed cases pending in the Court of Appeals prior to the Japanese
military occupation of Manila on January 2, 1942, had been disposed of by the latter before the
restoration of the Commonwealth Government in 1945; while almost all, if not all, appealed cases
pending on March 10, 1945, in the Court of Appeals were from judgments rendered by the Court of
First Instance during the Japanese regime.
The respondent judge quotes a portion of Wheaton's nternational Law which say: "Moreover when it
is said that an occupier's acts are valid and under international law should not be abrogated by the
subsequent conqueror, it must be remembered that no crucial instances exist to show that if his acts
should be reversed, any international wrong would be committed. What does happen is that most
matters are allowed to stand by the restored government, but the matter can hardly be put further
than this." (Wheaton, nternational Law, War, 7th English edition of 1944, p. 245.) And from this
quotion the respondent judge "draws the conclusion that whether the acts of the occupant should be
considered valid or not, is a question that is up to the restored government to decide; that there is no
rule of international law that denies to the restored government to decide; that there is no rule of
international law that denies to the restored government the right of exercise its discretion on the
matter, imposing upon it in its stead the obligation of recognizing and enforcing the acts of the
overthrown government."
There is doubt that the subsequent conqueror has the right to abrogate most of the acts of the
occupier, such as the laws, regulations and processes other than judicial of the government
established by the belligerent occupant. But in view of the fact that the proclamation uses the words
"processes of any other government" and not "judicial processes" prisely, it is not necessary to
determine whether or not General Douglas MacArthur had power to annul and set aside all
judgments and proceedings of the courts during the Japanese occupation. The question to be
determined is whether or not it was his intention, as representative of the President of the United
States, to avoid or nullify them. f the proclamation had, expressly or by necessary implication,
declared null and void the judicial processes of any other government, it would be necessary for this
court to decide in the present case whether or not General Douglas MacArthur had authority to
declare them null and void. But the proclamation did not so provide, undoubtedly because the author
thereof was fully aware of the limitations of his powers as Commander in Chief of Military Forces of
liberation or subsequent conqueror.
Not only the Hague Regulations, but also the principles of international law, as they result from the
usages established between civilized nations, the laws of humanity and the requirements of the
public of conscience, constitute or from the law of nations. (Preamble of the Hague Conventions;
Westlake, nternational Law, 2d ed., Part , p. 61.) Article 43, section , of the Hague Regulations or
Conventions which we have already quoted in discussing the first question, imposes upon the
occupant the obligation to establish courts; and Article 23 (h), section , of the same Conventions,
which prohibits the belligerent occupant "to declare . . . suspended . . . in a Court of Law the rights
and action of the nationals of the hostile party," forbids him to make any declaration preventing the
inhabitants from using their courts to assert or enforce their civil rights. (Decision of the Court of
Appeals of England in the case of Porter vs. Fruedenburg, L.R. [1915], 1 K.B., 857.) f a belligerent
occupant is required to establish courts of justice in the territory occupied, and forbidden to prevent
the nationals thereof from asserting or enforcing therein their civil rights, by necessary implication,
the military commander of the forces of liberation or the restored government is restrained from
nullifying or setting aside the judgments rendered by said courts in their litigation during the period of
occupation. Otherwise, the purpose of these precepts of the Hague Conventions would be thwarted,
for to declare them null and void would be tantamount to suspending in said courts the right and
action of the nationals of the territory during the military occupation thereof by the enemy. t goes
without saying that a law that enjoins a person to do something will not at the same time empower
another to undo the same. Although the question whether the President or commanding officer of
the United States Army has violated restraints imposed by the constitution and laws of his country is
obviously of a domestic nature, yet, in construing and applying limitations imposed on the executive
authority, the Supreme Court of the United States, in the case of Ochoa, vs. Hernandez (230 U.S.,
139), has declared that they "arise from general rules of international law and from fundamental
principles known wherever the American flag flies."
n the case of Raymond vs. Thomas (91 U.S., 712), a special order issued by the officer in command
of the forces of the United States in South Carolina after the end of the Civil War, wholly annulling a
decree rendered by a court of chancery in that state in a case within its jurisdiction, was declared
void, and not warranted by the acts approved respectively March 2, 1867 (14 Stat., 428), and July 19
of the same year (15 id., 14), which defined the powers and duties of military officers in command of
the several states then lately in rebellion. n the course of its decision the court said; "We have
looked carefully through the acts of March 2, 1867 and July 19, 1867. They give very large
governmental powers to the military commanders designated, within the States committed
respectively to their jurisdiction; but we have found nothing to warrant the order here in question. . . .
The clearest language would be necessary to satisfy us that Congress intended that the power given
by these acts should be so exercised. . . . t was an arbitrary stretch of authority, needful to no good
end that can be imagined. Whether Congress could have conferred the power to do such an act is a
question we are not called upon to consider. t is an unbending rule of law that the exercise of
military power, where the rights of the citizen are concerned, shall never be pushed beyond what the
exigency requires. (Mithell vs. Harmony, 13 How., 115; Warden vs. Bailey, 4 Taunt., 67;
Fabrigas vs. Moysten, 1 Cowp., 161; s.c., 1 Smith's L.C., pt. 2, p. 934.) Viewing the subject before
us from the standpoint indicated, we hold that the order was void."
t is, therefore, evident that the proclamation of General MacArthur of October 23, 1944, which
declared that "all laws, regulations and processes of any other government in the Philippines than
that of the said Commonwealth are null and void without legal effect in areas of the Philippines free
of enemy occupation and control," has not invalidated the judicial acts and proceedings, which are
not a political complexion, of the courts of justice in the Philippines that were continued by the
Philippine Executive Commission and the Republic of the Philippines during the Japanese military
occupation, and that said judicial acts and proceedings were good and valid before and now good
and valid after the reoccupation of liberation of the Philippines by the American and Filipino forces.
3. The third and last question is whether or not the courts of the Commonwealth, which are the same
as those existing prior to, and continued during, the Japanese military occupation by the Philippine
Executive Commission and by the so-called Republic of the Philippines, have jurisdiction to continue
now the proceedings in actions pending in said courts at the time the Philippine slands were
reoccupied or liberated by the American and Filipino forces, and the Commonwealth Government
was restored.
Although in theory the authority the authority of the local civil and judicial administration is
suspended as a matter of course as soon as military occupation takes place, in practice the invader
does not usually take the administration of justice into his own hands, but continues the ordinary
courts or tribunals to administer the laws of the country which he is enjoined, unless absolutely
prevented, to respect. As stated in the above-quoted Executive Order of President McKinley to the
Secretary of War on May 19, 1898, "in practice, they (the municipal laws) are not usually abrogated
but are allowed to remain in force and to be administered by the ordinary tribunals substantially as
they were before the occupation. This enlightened practice is, so far as possible, to be adhered to on
the present occasion." And Taylor in this connection says: "From a theoretical point of view it may be
said that the conqueror is armed with the right to substitute his arbitrary will for all preexisting forms
of government, legislative, executive and judicial. From the stand-point of actual practice such
arbitrary will is restrained by the provision of the law of nations which compels the conqueror to
continue local laws and institution so far as military necessity will permit." (Taylor, nternational
Public Law, p.596.) Undoubtedly, this practice has been adopted in order that the ordinary pursuits
and business of society may not be unnecessarily deranged, inasmuch as belligerent occupation is
essentially provisional, and the government established by the occupant of transient character.
Following these practice and precepts of the law of nations, Commander in Chief of the Japanese
Forces proclaimed on January 3, 1942, when Manila was occupied, the military administration under
martial law over the territory occupied by the army, and ordered that "all the laws now in force in the
Commonwealth, as well as executive and judicial institutions, shall continue to be affective for the
time being as in the past," and "all public officials shall remain in their present post and carry on
faithfully their duties as before." When the Philippine Executive Commission was organized by Order
No. 1 of the Japanese Commander in Chief, on January 23, 1942, the Chairman of the Executive
Commission, by Executive Orders Nos. 1 and 4 of January 30 and February 5, respectively,
continued the Supreme Court, Court of Appeals, Court of First nstance, and justices of the peace of
courts, with the same jurisdiction in conformity with the instructions given by the Commander in
Chief of the mperial Japanese Army in Order No. 3 of February 20, 1942. And on October 14, 1943
when the so-called Republic of the Philippines was inaugurated, the same courts were continued
with no substantial change in organization and jurisdiction thereof.
f the proceedings pending in the different courts of the slands prior to the Japanese military
occupation had been continued during the Japanese military administration, the Philippine Executive
Commission, and the so-called Republic of the Philippines, it stands to reason that the same courts,
which had become reestablished and conceived of as having in continued existence upon the
reoccupation and liberation of the Philippines by virtue of the principle of postliminy (Hall,
nternational Law, 7th ed., p. 516), may continue the proceedings in cases then pending in said
courts, without necessity of enacting a law conferring jurisdiction upon them to continue said
proceedings. As Taylor graphically points out in speaking of said principles "a state or other
governmental entity, upon the removal of a foreign military force, resumes its old place with its right
and duties substantially unimpaired. . . . Such political resurrection is the result of a law analogous to
that which enables elastic bodies to regain their original shape upon removal of the external force,
and subject to the same exception in case of absolute crushing of the whole fibre and content."
(Taylor, nternational Public Law, p. 615.)
The argument advanced by the respondent judge in his resolution in support in his conclusion that
the Court of First nstance of Manila presided over by him "has no authority to take cognizance of,
and continue said proceedings (of this case) to final judgment until and unless the Government of
the Commonwealth of the Philippines . . . shall have provided for the transfer of the jurisdiction of the
courts of the now defunct Republic of the Philippines, and the cases commenced and the left
pending therein," is "that said courts were a government alien to the Commonwealth Government.
The laws they enforced were, true enough, laws of the Commonwealth prior to Japanese
occupation, but they had become the laws and the courts had become the institutions of Japan
by adoption (U.S. vs. Reiter. 27 F. Cases, No. 16146), as they became later on the laws and
institutions of the Philippine Executive Commission and the Republic of the Philippines."
The court in the said case of U.S. vs. Reiter did not and could not say that the laws and institutions
of the country occupied if continued by the conqueror or occupant, become the laws and the courts,
by adoption, of the sovereign nation that is militarily occupying the territory. Because, as already
shown, belligerent or military occupation is essentially provisional and does not serve to transfer the
sovereignty over the occupied territory to the occupant. What the court said was that, if such laws
and institutions are continued in use by the occupant, they become his and derive their force from
him, in the sense that he may continue or set them aside. The laws and institution or courts so
continued remain the laws and institutions or courts of the occupied territory. The laws and the
courts of the Philippines, therefore, did not become, by being continued as required by the law of
nations, laws and courts of Japan. The provision of Article 45, section , of the Hague Conventions
of 1907 which prohibits any compulsion of the population of occupied territory to swear allegiance to
the hostile power, "extends to prohibit everything which would assert or imply a change made by the
invader in the legitimate sovereignty. This duty is neither to innovate in the political life of the
occupied districts, nor needlessly to break the continuity of their legal life. Hence, so far as the courts
of justice are allowed to continue administering the territorial laws, they must be allowed to give their
sentences in the name of the legitimate sovereign " (Westlake, nt. Law, Part , second ed., p. 102).
According to Wheaton, however, the victor need not allow the use of that of the legitimate
government. When in 1870, the Germans in France attempted to violate that rule by ordering, after
the fall of the Emperor Napoleon, the courts of Nancy to administer justice in the name of the "High
German Powers occupying Alsace and Lorraine," upon the ground that the exercise of their powers
in the name of French people and government was at least an implied recognition of the Republic,
the courts refused to obey and suspended their sitting. Germany originally ordered the use of the
name of "High German Powers occupying Alsace and Lorraine," but later offered to allow use of the
name of the Emperor or a compromise. (Wheaton, nternational Law, War, 7th English ed. 1944, p.
244.)
Furthermore, it is a legal maxim, that excepting that of a political nature, "Law once established
continues until changed by the some competent legislative power. t is not change merely by change
of sovereignty." (Joseph H. Beale, Cases on Conflict of Laws, , Summary Section 9, citing
Commonwealth vs. Chapman, 13 Met., 68.) As the same author says, in his Treatise on the Conflict
on Laws (Cambridge, 1916, Section 131): "There can no break or interregnum in law. From the time
the law comes into existence with the first-felt corporateness of a primitive people it must last until
the final disappearance of human society. Once created, it persists until a change take place, and
when changed it continues in such changed condition until the next change, and so forever.
Conquest or colonization is impotent to bring law to an end; in spite of change of constitution, the law
continues unchanged until the new sovereign by legislative acts creates a change."
As courts are creatures of statutes and their existence defends upon that of the laws which create
and confer upon them their jurisdiction, it is evident that such laws, not being a political nature, are
not abrogated by a change of sovereignty, and continue in force "ex proprio vigore" unless and until
repealed by legislative acts. A proclamation that said laws and courts are expressly continued is not
necessary in order that they may continue in force. Such proclamation, if made, is but a declaration
of the intention of respecting and not repealing those laws. Therefore, even assuming that Japan
had legally acquired sovereignty over these slands, which she had afterwards transferred to the so-
called Republic of the Philippines, and that the laws and the courts of these slands had become the
courts of Japan, as the said courts of the laws creating and conferring jurisdiction upon them have
continued in force until now, it necessarily follows that the same courts may continue exercising the
same jurisdiction over cases pending therein before the restoration of the Commonwealth
Government, unless and until they are abolished or the laws creating and conferring jurisdiction
upon them are repealed by the said government. As a consequence, enabling laws or acts providing
that proceedings pending in one court be continued by or transferred to another court, are not
required by the mere change of government or sovereignty. They are necessary only in case the
former courts are abolished or their jurisdiction so change that they can no longer continue taking
cognizance of the cases and proceedings commenced therein, in order that the new courts or the
courts having jurisdiction over said cases may continue the proceedings. When the Spanish
sovereignty in the Philippine slands ceased and the slands came into the possession of the United
States, the "Audiencia" or Supreme Court was continued and did not cease to exist, and proceeded
to take cognizance of the actions pending therein upon the cessation of the Spanish sovereignty
until the said "Audiencia" or Supreme Court was abolished, and the Supreme Court created in
Chapter of Act No. 136 was substituted in lieu thereof. And the Courts of First nstance of the
slands during the Spanish regime continued taking cognizance of cases pending therein upon the
change of sovereignty, until section 65 of the same Act No. 136 abolished them and created in its
Chapter V the present Courts of First nstance in substitution of the former. Similarly, no enabling
acts were enacted during the Japanese occupation, but a mere proclamation or order that the courts
in the sland were continued.
On the other hand, during the American regime, when section 78 of Act No. 136 was enacted
abolishing the civil jurisdiction of the provost courts created by the military government of occupation
in the Philippines during the Spanish-American War of 1898, the same section 78 provided for the
transfer of all civil actions then pending in the provost courts to the proper tribunals, that is, to the
justices of the peace courts, Court of First nstance, or Supreme Court having jurisdiction over them
according to law. And later on, when the criminal jurisdiction of provost courts in the City of Manila
was abolished by section 3 of Act No. 186, the same section provided that criminal cases pending
therein within the jurisdiction of the municipal court created by Act No. 183 were transferred to the
latter.
That the present courts as the same courts which had been functioning during the Japanese regime
and, therefore, can continue the proceedings in cases pending therein prior to the restoration of the
Commonwealth of the Philippines, is confirmed by Executive Order No. 37 which we have already
quoted in support of our conclusion in connection with the second question. Said Executive Order
provides"(1) that the Court of Appeals created and established under Commonwealth Act No. 3 as
amended, be abolished, as it is hereby abolished," and "(2) that all cases which have heretofore
been duly appealed to the Court of Appeals shall be transmitted to the Supreme Court for final
decision. . . ." n so providing, the said Order considers that the Court of Appeals abolished was the
same that existed prior to, and continued after, the restoration of the Commonwealth Government;
for, as we have stated in discussing the previous question, almost all, if not all, of the cases pending
therein, or which had theretofore (that is, up to March 10, 1945) been duly appealed to said court,
must have been cases coming from the Courts of First nstance during the so-called Republic of the
Philippines. f the Court of Appeals abolished by the said Executive Order was not the same one
which had been functioning during the Republic, but that which had existed up to the time of the
Japanese occupation, it would have provided that all the cases which had, prior to and up to that
occupation on January 2, 1942, been dully appealed to the said Court of Appeals shall be
transmitted to the Supreme Court for final decision.
t is, therefore, obvious that the present courts have jurisdiction to continue, to final judgment, the
proceedings in cases, not of political complexion, pending therein at the time of the restoration of the
Commonwealth Government.
Having arrived at the above conclusions, it follows that the Court of First nstance of Manila has
jurisdiction to continue to final judgment the proceedings in civil case No. 3012, which involves civil
rights of the parties under the laws of the Commonwealth Government, pending in said court at the
time of the restoration of the said Government; and that the respondent judge of the court, having
refused to act and continue him does a duty resulting from his office as presiding judge of that
court, mandamus is the speedy and adequate remedy in the ordinary course of law, especially
taking into consideration the fact that the question of jurisdiction herein involved does affect not only
this particular case, but many other cases now pending in all the courts of these slands.
n view of all the foregoing it is adjudged and decreed that a writ of mandamus issue, directed to the
respondent judge of the Court of First nstance of Manila, ordering him to take cognizance of and
continue to final judgment the proceedings in civil case No. 3012 of said court. No pronouncement
as to costs. So ordered.
Moran, C.J., Ozaeta, Paras, Jaranilla and Pablo, JJ., concur.


Separate Opinions
DE JOYA, concurring:
The principal question involved in this case is the validity of the proceedings held in civil case No.
3012, in the Court of First nstance of the City of Manila, under the now defunct Philippine Republic,
during Japanese occupation; and the effect on said proceedings of the proclamation of General
Douglas MacArthur, dated October 23, 1944. The decision of this question requires the application
of principles of nternational Law, in connection with the municipal law in force in this country, before
and during Japanese occupation.
"uestions of nternational Law must be decided as matters of general law (Juntington vs. Attril, 146
U.S., 657; 13 Sup. Ct. 224; 36 Law. ed., 1123); and nternational Law is no alien in this Tribunal, as,
under the Constitution of the Commonwealth of the Philippines, it is a part of the fundamental law of
the land (Article , section 3).
As nternational Law is an integral part of our laws, it must be ascertained and administered by this
Court, whenever questions of right depending upon it are presented for our determination, sitting as
an international as well as a domestic Tribunal (Kansas vs. Colorado, 185 U.S., 146; 22 Sup. Ct.
552; 46 Law. Ed., 838).
Since nternational Law is a body of rules actually accepted by nations as regulating their mutual
relations, the proof of the existence of a given rule is to be found in the consent of nations to abide
by that rule; and this consent is evidenced chiefly by the usages and customs of nations, and to
ascertain what these usages and customs are, the universal practice is to turn to the writings of
publicists and to the decisions of the highest courts of the different countries of the world (The
Habana, 175 U.S., 677; 20 Sup. Cit., 290; 44 Law. ed., 320).
But while usage is the older and original source of nternational Law, great international treaties are
a later source of increasing importance, such as The Hague Conventions of 1899 and 1907.
The Hague Conventions of 1899, respecting laws and customs of war on land, expressly declares
that:
ARTCLE XL. Territory is considered occupied when it is actually placed under the authority
of the hostile army.
The occupation applies only to be territory where such authority is established, and in a
position to assert itself.
ARTCLE XL. The authority of the legitimate power having actually passed into the hands
of the occupant, the later shall take all steps in his power to reestablish and insure, as far as
possible, public order and safety, while respecting, unless absolutely prevented, the laws in
force in the country. (32 Stat. , 1821.)
The above provisions of the Hague Convention have been adopted by the nations giving adherence
to them, among which is United States of America (32 Stat. , 1821).
The commander in chief of the invading forces or military occupant may exercise governmental
authority, but only when in actual possession of the enemy's territory, and this authority will be
exercised upon principles of international Law (New Orleans vs. Steamship Co, [1874], 20 Wall.,
387; Kelly vs. Sanders [1878], 99 U.S., 441; MacLeod vs. U.S., 229 U.S. 416; 33 Sup. Ct., 955; 57
Law Ed., 1260; Oppenheim of nternational Law, section 167).
There can be no question that the Philippines was under Japanese military occupation, from
January, 1942, up to the time of the reconquest by the armed forces of the United States of the
sland of Luzon, in February, 1945.
t will thus be readily seen that the civil laws of the invaded State continue in force, in so far as they
do not affect the hostile occupant unfavorably. The regular judicial Tribunals of the occupied territory
continue usual for the invader to take the whole administration into his own hands, partly because it
is easier to preserve order through the agency of the native officials, and partly because it is easier
to preserve order through the agency of the native officials, and partly because the latter are more
competent to administer the laws in force within the territory and the military occupant generally
keeps in their posts such of the judicial and administrative officers as are willing to serve under him,
subjecting them only to supervision by the military authorities, or by superior civil authorities
appointed by him.(Young vs. U.S., 39; 24 Law, ed., 992; Coleman vs. Tennessee, 97 U.S., 509; 24
Law ed., 1118; MacLeod vs. U.S., 229 U.S., 416; 33 Sup. Ct., 955; 57 Law. ed., 1260; Taylor on
nternational Law, sections 576. 578; Wilson on nternational Law; pp. 331-37; Hall on nternational
Law, 6th Edition [1909], pp. 464, 465, 475, 476; Lawrence on nternational Law, 7th ed., pp. 412,
413; Davis, Elements of nternational Law, 3rd ed., pp. 330-332 335; Holland on nternational Law
pp. 356, 357, 359; Westlake on nternational Law, 2d ed., pp. 121-23.)
t is, therefore, evident that the establishment of the government under the so-called Philippine
Republic, during Japanese occupation, respecting the laws in force in the country, and permitting the
local courts to function and administer such laws, as proclaimed in the City of Manila, by the
Commander in Chief of the Japanese mperial Forces, on January 3, 1942, was in accordance with
the rules and principles of nternational Law.
f the military occupant is thus in duly bound to establish in the territory under military occupation
governmental agencies for the preservation of peace and order and for the proper administration of
justice, in accordance with the laws in force within territory it must necessarily follow that the judicial
proceedings conducted before the courts established by the military occupant must be considered
legal and valid, even after said government establish by the military occupant has been displaced by
the legitimate government of the territory.
Thus the judgments rendered by the Confederate Courts, during the American Civil War, merely
settling the rights of private parties actually within their jurisdiction, not tending to defeat the legal
rights of citizens of the United States, nor in furtherance of laws passed in aid of the rebellion had
been declared valid and binding (Cock vs.Oliver, 1 Woods, 437; Fed. Cas., No. 3, 164;
Coleman vs. Tennessee, 97 U. S., 509; 24 Law. ed., 118; Williams vs.Bruffy, 96 U. S., 176;
Horn vs. Lockhart, 17 Wall., 570; Sprott vs. United States, 20 id., 459; Texas vs. White, 7 id., 700;
Ketchum vs. Buckley [1878], 99 U.S., 188); and the judgment of a court of Georgia rendered in
November, 1861, for the purchase money of slaves was held valid judgment when entered, and
enforceable in 1871(Frenchvs. Tumlin, 10 Am. Law. Reg. [N.S.], 641; Fed. Case, No. 5104).
Said judgments rendered by the courts of the states constituting the Confederate States of America
were considered legal and valid and enforceable, even after the termination of the American Civil
War, because they had been rendered by the courts of a de facto government. The Confederate
States were a de facto government in the sense that its citizens were bound to render the
government obedience in civil matters, and did not become responsible, as wrong-doers, for such
acts of obedience (Thorington vs. Smith, 8 Wall. [U.S.], 9; 19 Law. ed., 361).
n the case of Ketchum vs. Buckley ([1878], 99 U.S., 188), the Court held "t is now settled law in
this court that during the late civil war the same general form of government, the same general law
for the administration of justice and the protection of private rights, which had existed in the States
prior to the rebellion, remained during its continuance and afterwards. As far as the acts of the
States did not impair or tend to impair the supremacy of the national authority, or the just and legal
rights of the citizens, under the Constitution, they are in general to be treated as valid and binding."
(William vs. Bruffy, 96 U.S., 176; Horn vs. Lockhart, 17 Wall., 570; Sprott vs. United States, 20 id.,
459; Texas vs. White, 7 id., 700.)
The government established in the Philippines, during Japanese occupation, would seem to fall
under the following definition of de facto government given by the Supreme Court of the United
States:
But there is another description of government, called also by publicists, a government de
facto, but which might, perhaps, be more aptly denominateda government of paramount
force. ts distinguishing characteristics are (1) that its existence is maintained by active
military power within the territories, and against the rightful authority of an established and
lawful government; and (2) that while it exists it must necessarily be obeyed in civil matters
by private citizens who, by acts of obedience rendered in submission to such force, do not
become responsible, as wrong doers, for those acts, though not warranted by the laws of the
rightful government. Actual government of this sort are established over districts differing
greatly in extent and conditions. They are usually administered directly by military authority,
but they may be administered, also, by civil authority, supported more or less directly by
military force. (Macleod vs. United States [1913] 229 U.S., 416.)
The government established in the Philippines, under the so-called Philippine Republic, during
Japanese occupation, was and should be considered as a de facto government; and that the judicial
proceedings conducted before the courts which had been established in this country, during said
Japanese occupation, are to be considered legal and valid and enforceable, even after the liberation
of this country by the American forces, as long as the said judicial proceedings had been conducted,
under the laws of the Commonwealth of the Philippines.
The judicial proceedings involved in the case under consideration merely refer to the settlement of
property rights, under the provisions of the Civil Code, in force in this country under the
Commonwealth government, before and during Japanese occupation.
Now, petitioner contends that the judicial proceedings in question are null and void, under the
provisions of the proclamation issued by General Douglas MacArthur, dated October 23, 1944; as
said proclamation "nullifies all the laws, regulations and processes of any other government of the
Philippines than that of the Commonwealth of the Philippines."
n other words, petitioner demands a literal interpretation of said proclamation issued by General
Douglas MacArthur, a contention which, in our opinion, is untenable, as it would inevitably produce
judicial chaos and uncertainties.
When an act is susceptible of two or more constructions, one of which will maintain and the others
destroy it, the courts will always adopt the former (U. S. vs. Coombs [1838], 12 Pet., 72; 9 Law. ed.,
1004; Board of Supervisors of Granada County vs. Brown [1884], 112 U.S., 261; 28 Law. ed., 704; 5
Sup. Ct. Rep., 125; In re Guarina [1913], 24 Phil., 37; Fuentes vs. Director of Prisons [1924], 46
Phil., 385). The judiciary, always alive to the dictates of national welfare, can properly incline the
scales of its decisions in favor of that solution which will most effectively promote the public policy
(Smith, Bell & Co., Ltd. vs. Natividad [1919], 40 Phil., 136). All laws should receive a sensible
construction. General terms should be so limited in their application as not lead to injustice,
oppression or an absurd consequence. t will always, therefore, be presumed that the legislature
intended exceptions to its language, which would avoid results of this character. The reason of the
law in such cases should prevail over its letter (U. S. vs. Kirby, 7 Wall. [U.S.], 482; 19 Law. ed., 278;
Church of Holy Trinity vs. U. S., 143 U. S. 461; 12 Sup. Ct., 511; 36 Law. ed., 226;
Jacobson vs. Massachussetts, 197 U. S., 39; 25 Sup. Ct., 358; 49 Law. ed., 643; 3 Ann. Cas., 765;
n re Allen, 2 Phil., 630). The duty of the court in construing a statute, which is reasonably
susceptible of two constructions to adopt that which saves is constitutionality, includes the duty of
avoiding a construction which raises grave and doubtful constitutional questions, if it can be avoided
(U. S. vs. Delaware & Hudson Co., U.S., 366; 29 Sup. Ct., 527; 53 Law. ed., 836).
According to the rules and principles of nternational Law, and the legal doctrines cited above, the
judicial proceedings conducted before the courts of justice, established here during Japanese
military occupation, merely applying the municipal law of the territory, such as the provisions of our
Civil Code, which have no political or military significance, should be considered legal, valid and
binding.
t is to be presumed that General Douglas MacArthur is familiar with said rules and principles, as
nternational Law is an integral part of the fundamental law of the land, in accordance with the
provisions of the Constitution of the United States. And it is also to be presumed that General
MacArthur his acted, in accordance with said rules and principles of nternational Law, which have
been sanctioned by the Supreme Court of the United States, as the nullification of all judicial
proceedings conducted before our courts, during Japanese occupation would lead to injustice and
absurd results, and would be highly detrimental to the public interests.
For the foregoing reasons, concur in the majority opinion.


PERFECTO, dissenting:
Law must be obeyed. To keep the bonds of society, it must not be evaded. On its supremacy
depends the stability of states and nations. No government can prevail without it. The preservation of
the human race itself hinges in law.
Since time immemorial, man has relied on law as an essential means of attaining his purposes, his
objectives, his mission in life. More than twenty-two centuries before the Christian Era, on orders of
the Assyrian King Hammurabi, the first code was engrave in black diorite with cunie form characters.
Nine centuries later Emperor Hung Wu, in the cradle of the most ancient civilization, compiled the
Code of the Great Ming. The laws of Manu were written in the verdic ndia. Moses received at Sinai
the ten commandments. Draco, Lycurgus, Solon made laws in Greece. Even ruthless Genghis Khan
used laws to keep discipline among the nomad hordes with which he conquered the greater part of
the European and Asiastic continents.
Animal and plants species must follow the mendelian heredity rules and other biological laws to
survive. Thanks to them, the chalk cliffs of the infusoria show the marvel of an animal so tiny as to
be imperceptible to the naked eye creating a whole mountain. Even the inorganic world has to
conform the law. Planets and stars follow the laws discovered by Kepler, known as the law-maker of
heavens. f, endowed with rebellious spirit, they should happen to challenge the law of universal
gravity, the immediate result would be cosmic chaos. The tiny and twinkling points of light set above
us on the velvet darkness of the night will cease to inspire us with dreams of more beautiful and
happier worlds.
Again we are called upon to do our duty. Here is a law that we must apply. Shall we shrink? Shall we
circumvent it ? Can we ignore it?
The laws enacted by the legislators shall be useless if courts are not ready to apply them. t is actual
application to real issues which gives laws the breath of life.
n the varied and confused market of human endeavor there are so many things that might induce us
to forget the elementals. There are so many events, so many problem, so many preoccupations that
are pushing among themselves to attract our attention, and we might miss the nearest and most
familiar things, like the man who went around his house to look for a pencil perched on one of his
ears.
THE OCTOBER PROCLAMATON
n October, 1944, the American Armed Forces of Liberation landed successfully in Leyte.
When victory in islands was accomplished, after the most amazing and spectacular war operations,
General of the Army Douglas MacArthur as a commander in Chief of the American Army, decided to
reestablish, in behalf of the United States, the Commonwealth Government.
Then he was confronted with the question as to what policy to adopt in regards to the official acts of
the governments established in the Philippines by the Japanese regime. He might have thought of
recognizing the validity of some of said acts, but, certainly, there were acts which he should declare
null and void, whether against the policies of the American Government, whether inconsistent with
military strategy and operations, whether detrimental to the interests of the American or Filipino
peoples, whether for any other strong or valid reasons.
But, which to recognize, and which not? He was not in a position to gather enough information for a
safe basis to distinguished and classify which acts must be nullified, and which must validated. At
the same time he had to take immediate action. More pressing military matters were requiring his
immediate attention. He followed the safe course: to nullify all the legislative, executive, and judicial
acts and processes under the Japanese regime. After all, when the Commonwealth Government is
already functioning, with proper information, he will be in a position to declare by law, through its
Congress, which acts and processes must be revived and validated in the public interest.
So on October 23, 1944, the Commander in Chief issued the following proclamation:
GENERAL HEAD"UARTERS
SOUTHWEST PACFC AREA
OFFCE OF THE COMMANDER N CHEF
PROCLAMATON
To the People of the Philippines:
WHEREAS, the military forces under my command have landed in the Philippines soil as a
prelude to the liberation of the entire territory of the Philippines; and
WHEREAS, the seat of the Government of the Commonwealth of the Philippines has been
re-established in the Philippines under President Sergio Osmea and the members of his
cabinet; and
WHEREAS, under enemy duress, a so-called government styled as the "Republic of the
Philippines" was established on October 14, 1943, based upon neither the free expression of
the people's will nor the sanction of the Government of the United States, and is purporting
to exercise Executive, Judicial and Legislative powers of government over the people;
Now, therefore, , Douglas MacArthur, General, United States Army, as Commander in Chief
of the military forces committed to the liberation of the Philippines, do hereby proclaim and
declare:
1. That the Government of the Commonwealth of the Philippines is, subject to the
supreme authority of the Government of the United States, the sole and the only
government having legal and valid jurisdiction over the people in areas of the
Philippines free of enemy occupation and control;
2. The laws now existing on the statute books of the Commonwealth of the
Philippines and the regulation promulgated pursuant thereto are in full force and
effect and legally binding upon the people in areas of the Philippines free of enemy
occupation and control; and
3. That all laws, regulations and processes of any other government in the
Philippines than that of the said Commonwealth are null and void and without legal
effect in areas of the Philippines free enemy occupation and control; and
do hereby announce my purpose progressively to restore and extend to the people of the
Philippines the sacred right of government by constitutional process under the regularly
constituted Commonwealth Government as rapidly as the several occupied areas are
liberated to the military situation will otherwise permit;
do enjoin upon all loyal citizens of the Philippines full respect for and obedience to the
Constitution of the Commonwealth of the Philippines and the laws, regulations and other acts
of their duly constituted government whose seat is now firmly re-established on Philippine
soil.
October 23, 1944.
DOUGLAS MACARTHUR
General U. S. Army
Commander in Chief
S THE OCTOBER PROCLAMATON LAW?
n times of war the Commander in Chief of an army is vested with extraordinary inherent powers, as
a natural result of the nature of the military operations aimed to achieve the purposes of his country
in the war, victory being paramount among them.
Said Commander in Chief may establish in the occupied or reoccupied territory, under his control, a
complete system of government; he may appoint officers and employees to manage the affairs of
said government; he may issue proclamations, instructions, orders, all with the full force of laws
enacted by a duly constituted legislature; he may set policies that should be followed by the public
administration organized by him; he may abolish the said agencies. n fact, he is the supreme ruler
and law-maker of the territory under his control, with powers limited only by the receipts of the
fundamental laws of his country.
California, or the port of San Francisco, had been conquered by the arms of the United
States as early as 1846. Shortly afterward the United States had military possession of all
upper California. Early in 1847 the President, as constitutional commander in chief of the
army and navy, authorized the military and naval commander of our forces in California to
exercise the belligerent rights of a conqueror, and form a civil government for the conquered
country, and to impose duties on imports and tonnage as military contributions for the
support of the government, and of the army which has the conquest in possession. . . Cross
of Harrison, 16 Howard, 164, 189.)
n May, 1862, after the capture of New Orleans by the United States Army, General Butler,
then in command of the army at that place, issued a general order appointing Major J. M.
Bell, volunteer aide-de-camp, of the division staff, provost judge of the city, and directed that
he should be obeyed and respected accordingly. The same order appointed Capt. J. H.
French provost marshal of the city, the Capt. Stafford deputy provost marshal. A few days
after this order the Union Bank lent to the plaintiffs the sum of $130,000, and subsequently,
the loan not having been repaid, brought suit before the provost judge to recover the debt.
The defense was taken that the judge had no jurisdiction over the civil cases, but judgement
was given against the borrowers, and they paid the money under protest. To recover it back
is the object of the present suit, and the contention of the plaintiffs is that the judgement was
illegal and void, because the Provost Court had no jurisdiction of the case. The judgement of
the District Court was against the plaintiffs, and this judgement was affirmed by the Supreme
Court of the State. To this affirmance error is now assigned.
The argument of the plaintiffs in error is that the establishment of the Provost Court, the
appointment of the judge, and his action as such in the case brought by the Union Bank
against them were invalid, because in violation of the Constitution of the United States, which
vests the judicial power of the General government in one Supreme Court and in such
inferior courts as Congress may from time to time ordain and establish, and under this
constitutional provision they were entitled to immunity from liability imposed by the judgment
of the Provost Court. Thus, it is claimed, a Federal question is presented, and the highest
court of the State having decided against the immunity claimed, our jurisdiction is invoked.
Assuming that the case is thus brought within our right to review it, the controlling question is
whether the commanding general of the army which captured New Orleans and held it in
May 1862, had authority after the capture of the city to establish a court and appoint a judge
with power to try and adjudicate civil causes. Did the Constitution of the United States
prevent the creation of the civil courts in captured districts during the war of the rebellion, and
their creation by military authority?
This cannot be said to be an open question. The subject came under the consideration by
this court in The Grapeshot, where it was decided that when, during the late civil war,
portions of the insurgent territory were occupied by the National forces, it was within the
constitutional authority of the President, as commander in chief, to establish therein
provisional courts for the hearing and determination of all causes arising under the laws of
the States or of the United States, and it was ruled that a court instituted by President Lincoln
for the State of Louisiana, with authority to hear, try, and determine civil causes, was lawfully
authorized to exercise such jurisdiction. ts establishment by the military authority was held to
be no violation of the constitutional provision that "the judicial power of the United States
shall be vested in one Supreme Court and in such inferior courts as the Congress may form
time to time ordain and establish." That clause of the Constitution has no application to the
abnormal condition of conquered territory in the occupancy of the conquering, army. t refers
only to courts of United States, which military courts are not. As was said in the opinion of
the court, delivered by Chief Justice Chase, in The Grapeshot, "t became the duty of the
National government, wherever the insurgent power was overthrown, and the territory which
had been dominated by it was occupied by the National forces, to provide, as far as possible,
so long as the war continued, for the security of the persons and property and for the
administration of justice. The duty of the National government in this respect was no other
than that which devolves upon a regular belligerent, occupying during war the territory of
another belligerent. t was a military duty, to be performed by the President, as Commander
in Chief, and instructed as such with the direction of the military force by which the
occupation was held."
Thus it has been determined that the power to establish by military authority courts for the
administration of civil as well as criminal justice in portions of the insurgent States occupied
by the National forces, is precisely the same as that which exists when foreign territory has
been conquered and is occupied by the conquerors. What that power is has several times
been considered. n Leitensdorfer & Houghton vs. Webb, may be found a notable illustration.
Upon the conquest of New Mexico, in 1846, the commanding officer of the conquering army,
in virtue of the power of conquest and occupancy, and with the sanction and authority of the
President, ordained a provisional government for the country. The ordinance created courts,
with both civil and criminal jurisdiction. t did not undertake to change the municipal laws of
the territory, but it established a judicial system with a superior or appellate court, and with
circuit courts, the jurisdiction of which declared to embrace, first, all criminal causes that
should not otherwise provided for by law; and secondly, original and exclusive cognizance of
all civil cases not cognizable before the prefects and alcades. But though these courts and
this judicial system were established by the military authority of the United States, without
any legislation of Congress, this court ruled that they were lawfully established. And there
was no express order for their establishment emanating from the President or the
Commander in Chief. The ordinance was the act of the General Kearney the commanding
officer of the army occupying the conquered territory.
n view of these decisions it is not to be questioned that the Constitution did not prohibit the
creation by the military authority of court for the trial of civil causes during the civil war in
conquered portions of the insurgent States. The establishment of such courts is but the
exercise of the ordinary rights of conquest. The plaintiffs in error, therefore, had no
constitutional immunity against subjection to the judgements of such courts. They argue,
however, that if this be conceded, still General Butler had no authority to establish such a
court; that the President alone, as a Commander in Chief, had such authority. We do not
concur in this view. General Butler was in command of the conquering and the occupying
army. He was commissioned to carry on the war in Louisina. He was, therefore, invested
with all the powers of making war, so far as they were denied to him by the Commander in
Chief, and among these powers, as we have seen, was of establishing courts in conquered
territory. t must be presumed that he acted under the orders of his superior officer, the
President, and that his acts, in the prosecution of the war, were the acts of his commander in
chief. (Mechanics' etc. Bank vs. Union Bank, 89 U. S. [22 Wall.], 276-298.)
There is no question, therefore, that when General of the Army Douglas MacArthur issued on
October Proclamation, he did it in the legitimate exercise of his powers. He did it as the official
representative of the supreme authority of the United States of America. Consequently, said
proclamation is legal, valid, and binding.
Said proclamation has the full force of a law. n fact, of a paramount law. Having been issued in the
exercise of the American sovereignty, in case of conflict, it can even supersede, not only the
ordinary laws of the Commonwealth of the Philippines, but also our Constitution itself while we
remain under the American flag.
"PROCESS" N THE OCTOBER PROCLAMATON
n the third section of the dispositive part of the October Proclamation, it is declared that all laws,
regulations and processes of any other government in the Philippines than that of the
Commonwealth, are null and void.
Does the word "processes" used in the proclamation include judicial processes?
n its broadest sense, process is synonymous with proceedings or procedures and embraces all the
steps and proceedings in a judicial cause from it commencement to its conclusion.
PROCESS. In Practice. The means of compelling a defendant to appear in court after
suing out the original writ, in civil, and after indictment, in criminal cases.
The method taken by law to compel a compliance with the original writ or command as of the
court.
A writ, warrant, subpoena, or other formal writing issued by authority law; also the means of
accomplishing an end, including judicial proceedings; Gollobitch vs. Rainbow, 84 la., 567; 51
N. W., 48; the means or method pointed out by a statute, or used to acquire jurisdiction of
the defendants, whether by writ or notice. Wilson vs. R. Co. (108 Mo., 588; 18 S. W., 286; 32
Am. St. Rep., 624). (3 Bouvier's Law Dictionary, p. 2731.)
A. Process generally. 1. Definition. As a legal term process is a generic word of every
comprehensive signification and many meanings. t is broadest sense it is equivalent to, or
synonymous with, "proceedings" or "procedure," and embraces all the steps and
proceedings in a cause from its commencement to its conclusion. Sometimes the term is
also broadly defined as the means whereby a court compels a compliance with it demands.
"Process" and "writ" or "writs" are synonymous in the sense that every writ is a process, and
in a narrow sense of the term "process" is limited to judicial writs in an action, or at least to
writs or writings issued from or out of court, under the seal thereof, and returnable thereto;
but it is not always necessary to construe the term so strictly as to limit it to a writ issued by a
court in the exercise of its ordinary jurisdiction; the term is sometimes defined as a writ or
other formal writing issued by authority of law or by some court, body, or official having
authority to issue it; and it is frequently used to designate a means, by writ or otherwise , of
acquiring jurisdiction of defendant or his property, or of bringing defendant into, or compelling
him to appear in, court to answer.
As employed in the statutes the legal meaning of the word "process" varies according to the
context, subject matter, and spirit of the statute in which it occurs. n some jurisdictions
codes or statutes variously define "process" as signifying or including: A writ or summons
issued in the course of judicial proceedings; all writs, warrants, summonses, and orders of
courts of justice or judicial officers; or any writ, declaration, summons, order, or subpoena
whereby any action, suit or proceeding shall be commenced, or which shall be issued in or
upon any action, suit or proceeding. (50 C. J., PP. 441, 442.)
The definition of "process" given by Lord Coke comprehends any lawful warrant, authority, or
proceeding by which a man may be arrested. He says: "Process of law is two fold, namely,
by the King's writ, or by proceeding and warrant, either in deed or in law, without writ."
(People vs. Nevins [N. Y.] Hill, 154, 169, 170; State vs. Shaw, 50 A., 869; 73 Vt., 149.)
Baron Comyn says that process, in a large acceptance, comprehends the whole proceedings
after the original and before judgement; but generally it imports the writs which issue out of
any court to bring the party to answer, or for doing execution, and all process out of the
King's court ought to be in the name of the King. t is called "process" because it proceeds or
goes upon former matter, either original or judicial. Gilmer, vs. Bird 15 Fla., 410, 421. (34
Words and Phrases, permanent edition, 1940 edition, p. 147.)
n a broad sense the word "process" includes the means whereby a court compels the
appearance of the defendant before it, or a compliance with it demands, and any every writ,
rule order, notice, or decree, including any process of execution that may issue in or upon
any action, suit, or legal proceedings, and it is not restricted to mesne process. n a narrow
or restricted sense it is means those mandates of the court intending to bring parties into
court or to require them to answer proceedings there pending. (Colquitt Nat.
Bank vs. Poitivint, 83 S. E., 198, 199; 15 Ga. App., 329. (34 Words and Phrases, permanent
edition, 1940 edition, p. 148.)
A "process" is an instrument in an epistolary from running in the name of the sovereign of a
state and issued out of a court of justice, or by a judge thereof, at the commencement of an
action or at any time during its progress or incident thereto, usually under seal of the court,
duly attested and directed to some municipal officer or to the party to be bound by it,
commanding the commission of some act at or within a specified time, or prohibiting the
doing of some act. The cardinal requisites are that the instrument issue from a court of
justice, or a judge thereof; that it run in the name of the sovereign of the state; that it be duly
attested, but not necessarily by the judge, though usually, but not always, under seal; and
that it be directed to some one commanding or prohibiting the commission of an act.
Watson vs. Keystone ronworks Co., 74 P., 272, 273; 70 Kan., 43. (34 Words and Phrases,
permanent edition, 1940 edition, p. 148.)
Jacobs in his Law Dictionary says: "Process" has two qualifications: First, it is largely taken
for all proceedings in any action or prosecution, real or personal, civil or criminal, from the
beginning to the end; secondly, that is termed the "process" by which a man is called into
any temporal court, because the beginning or principal part thereof, by which the rest is
directed or taken. Strictly, it is a proceeding after the original, before the judgement. A policy
of fire insurance contained the condition that if the property shall be sold or transferred, or
any change takes place in title or possession, whether by legal process or judicial decree or
voluntary transfer or convenience, then and in every such case the policy shall be void. The
term "legal process," as used in the policy, means what is known as a writ; and, as
attachment or execution on the writs are usually employed to effect a change of title to
property, they are or are amongst the processes contemplated by the policy. The words
"legal process" mean all the proceedings in an action or proceeding. They would necessarily
embrace the decree, which ordinarily includes the proceedings. Perry vs. Lorillard Fire ns.
Co., N. Y., 6 Lans., 201, 204. See, also, Tipton vs. Cordova, 1 N. M., 383, 385. (34 Words
and Phrases, permanent edition, 1940 edition, p. 148.)
"Process" in a large acceptation, is nearly synonymous with "proceedings," and means the
entire proceedings in an action, from the beginning to the end. n a stricter sense, it is
applied to the several judicial writs issued in an action. Hanna vs. Russell, 12 Minn., 80, 86
(Gil., 43, 45). (34 Words and Phrases, permanent edition, 1940, edition 149.)
The term "process" as commonly applied, intends that proceeding by which a party is called
into court, but it has more enlarged signification, and covers all the proceedings in a court,
from the beginning to the end of the suit; and, in this view, all proceedings which may be had
to bring testimony into court, whether viva voceor in writing, may be considered the process
of the court. Rich vs. Trimple, Vt., 2 Tyler, 349, 350. Id.
"Process" in its broadest sense comprehends all proceedings to the accomplishment of an
end, including judicial proceedings. Frequently its signification is limited to the means of
bringing a party in court. n the Constitution process which at the common law would have
run in the name of the king is intended. n the Code process issued from a court is meant.
McKenna vs. Cooper, 101 P., 662, 663; 79 Kan., 847, quoting Hanna vs. Russel, 12 Minn.,
80. (Gil., 43 ); Black Com. 279; Bou vs. Law. Dict. (34 Words and Phrases, permanent
edition 1940 edition, p. 149.)
"Judicial process" includes the mandate of a court to its officers, and a means whereby
courts compel the appearance of parties, or compliance with its commands, and includes a
summons. Ex parte Hill, 51 So., 786, 787; 165 Ala., 365.
"Judicial process" comprehends all the acts of then court from the beginning of the
proceeding to its end, and in a narrower sense is the means of compelling a defendant to
appear in court after suing out the original writ in civil case and after the indictment in
criminal cases, and in every sense is the act of the court and includes any means of
acquiring jurisdiction and includes attachment, garnishment, or execution, and also a writ.
Blair vs. Maxbass Security Bank of Maxbass, 176 N. W., 98, 199; 44 N. D. 12 (23 Words and
Phrases, permanent edition 1940 edition, p. 328.)
There is no question that the word process, as used in the October Proclamation, includes all judicial
processes or proceedings.
The intention of the author of the proclamation of including judicial processes appears clearly in the
preamble of the document.
The second "Whereas," states that so-called government styled as the "Republic of the Philippines,"
based upon neither the free expression of the people's will nor the sanction of the Government of the
United States, and is purporting to the exercise Executive, Judicial, and Legislative powers of
government over the people."
t is evident from the above-mentioned words that it was the purpose of General MacArthur to
declare null and void all acts of government under the Japanese regime, and he used, in section 3 of
he dispositive part, the word laws, as pertaining to the legislative branch, the word regulations, as
pertaining to the executive branch, and lastly, the word processes, as pertaining to the judicial
branch of the government which functioned under the Japanese regime.
t is reasonable to assume that he might include in the word "process." besides those judicial
character, those of executive or administrative character. At any rate, judicial processes cannot be
excluded.
THE WORDS OF PROCLAMATON EXPRESS UNMSTAKABLY
THE NTENTON OF THE AUTHOR
The October Proclamation is written in such a way that it is impossible to make a mistake as to the
intention of its author.
Oliver Wendell Holmes, perhaps the wisest man who had ever sat in the Supreme Court of the
United States, the following:
When the words in their literal sense have a plain meaning, courts must be very cautious in
allowing their imagination to give them a different one. Guild vs. Walter, 182 Mass., 225, 226
(1902)
Upon questions of construction when arbitrary rule is involved, it is always more important to
consider the words and the circumstances than even strong analogies decisions. The
successive neglect of a series of small distinctions, in the effort to follow precedent, is very
liable to end in perverting instruments from their plain meaning. n no other branch of the law
(trusts) is so much discretion required in dealing with authority. . . . There is a strong
presumption in favor of giving them words their natural meaning, and against reading them
as if they said something else, which they are not fitted to express. (Merrill vs. Preston, 135
Mass., 451, 455 (1883).
When the words of an instrument are free from ambiguity and doubt, and express plainly, clearly and
distinctly the sense of the framer, there is no occasion to resort to other means of interpretation. t is
not allowable to interpret what needs no interpretation.
Very strong expression have been used by the courts to emphasize the principle that they are to
derive their knowledge of the legislative intention from the words or language of the statute itself
which the legislature has used to express it. The language of a statute is its most natural guide. We
are not liberty to imagine an intent and bind the letter to the intent.
The Supreme Court of the United States said: "The primary and general rule of statutory
construction is that the intent of the law-maker is to be found in the language that he has used. He is
presumed to know the meaning of the words and the rules of grammar. The courts have no function
of legislation, and simply seek to ascertain the will of the legislator. t is true that there are cases in
which the letter of the statute is not deemed controlling, but the cases are few and exceptional and
only arise where there are cogent reasons for believing that the letter does not fully and accurately
disclose the intent. No mere ommission, no mere failure to provide for contingencies, which it may
seem wise should have specifically provided for will justify any judicial addition to the language of the
statute." (United States vs. Goldenberg, 168 U. S., 95, 102, 103; 18 S. C. Rep., 3; 42 Law. ed., 394.)
That the Government of the Commonwealth of the Philippines shall be the sole and only government
in our country; that our laws are in full force and effect and legally binding; that "all laws, regulations
and processes of any other government are null and void and without legal effect", are provisions
clearly, distinctly, unmistakably expressed in the October Proclamation, as to which there is no
possibility of error, and there is absolutely no reason in trying to find different meanings of the plain
words employed in the document.
As we have already seen, the annulled processes are precisely judicial processes, procedures and
proceedings, including the one which is under our consideration.
THE OCTOBER PROCLAMATON ESTABLSHES A CLEAR POLCY
Although, as we have already stated, there is no possible mistakes as to the meaning of the words
employed in the October Proclamation, and the text of the document expresses, in clear-cut
sentences, the true purposes of its author, it might not be amiss to state here what was the policy
intended to be established by said proclamation.
t is a matter of judicial knowledge that in the global war just ended on September 2, 1945, by the
signatures on the document of unconditional surrender affixed by representatives of the Japanese
government, the belligerents on both sides resorted to what may call war weapons of psychological
character.
So Japan, since its military forces occupied Manila, had waged an intensive campaign propaganda,
intended to destroy the faith of the Filipino people in America, to wipe out all manifestations of
American or occidental civilization, to create interest in all things Japanese, which the imperial
officers tried to present as the acme of oriental culture, and to arouse racial prejudice among
orientals and occidentals, to induce the Filipinos to rally to the cause of Japan, which she tried to
make us believe is the cause of the inhabitants of all East Asia.
t is, then, natural that General MacArthur should take counter-measures to neutralize or annul
completely all vestiges of Japanese influence, specially those which might jeopardize in any way his
military operations and his means of achieving the main objective of the campaign of the liberation,
that is, to restore in our country constitutional processes and the high ideals constitute the very
essence of democracy.
t was necessary to free, not only our territory, but also our spiritual patrimony. t was necessary, not
only to restore to us the opportunity of enjoying the physical treasures which a beneficent
Providence accumulated on this bountiful land, the true paradise in the western Pacific, but to
restore the full play of our ideology, that wonderful admixture of sensible principles of human
conduct, bequeathed to us by our Malayan ancestors, the moral principles of the Christianity
assimilated by our people from teachers of Spain, and the common-sense rules of the American
democratic way of life.
t was necessary to free that ideology from any Japanese impurity.
Undoubtedly, the author of the proclamation thought that the laws, regulations, and processes of all
the branches of the governments established under the Japanese regime, if allowed to continue and
to have effect, might be a means of keeping and spreading in our country the Japanese influence,
with the same deadly effects as the mines planted by the retreating enemy.
The government offices and agencies which functioned during the Japanese occupation represented
a sovereignty and ideology antagonistic to the sovereignty and ideology which MacArthur's forces
sought to restore in our country.
Under chapter of the Japanese Constitution, it is declared that Japan shall reigned and governed
by a line Emperors unbroken for ages eternal (Article 1); that the Emperor is sacred and inviolable
(Article 3); that he is the head of the Empire, combining in himself the rights of the sovereignty
(Article 4); that he exercises the legislative power (Article 5); that he gives sanction to laws, and
orders to be promulgated and executed (Article 6);that he has the supreme command of the Army
and Navy (Article 11); that he declares war, makes peace, and concludes treaties (Article 13).
There is no reason for allowing to remain any vestige of Japanese ideology, the ideology of a people
which as confessed in a book we have at our desk, written by a Japanese, insists in doing many
things precisely in a way opposite to that followed by the rest of the world.
t is the ideology of a people which insists in adopting the policy of self-delusion; that believes that
their Emperor is a direct descendant of gods and he himself is a god, and that the typhoon which
occured on August 14, 1281, which destroyed the fleet with which Kublai Khan tried to invade Japan
was the divine wind of se; that defies the heinous crime of the ronin, the 47 assassins who, in order
to avenge the death of their master Asano Naganori, on February 3, 1703, entered stealthily into the
house of Yoshinaka Kiro and killed him treacherously.
t is an ideology which dignifies harakiri or sepukku, the most bloody and repugnant from suicide,
and on September 13, 1912, on the occasion of the funeral of Emperor Meiji, induced General
Maresuke Nogi and his wife to practice the abhorrent "junshi", and example of which is offered to us
in the following words of a historian:
When the Emperor's brother Yamato Hiko, died in 2 B. C., we are told that, following the
occasion, his attendants were assembled to from the hito-bashira (pillar-men) to gird the
grave. They were buried alive in circle up to the neck around the thomb and "for several days
they died not, but wept and wailed day night. At last they died not, but wept and wailed day
night. At last they did not rotted. Dogs and cows gathered and ate them." (Gowen, an Outline
of History of Japan, p. 50.)
The practice shows that the Japanese are the spiritual descendants of the Sumerians, the ferocious
inhabitants of Babylonia who, 3500 years B. C., appeared in history as the first human beings to
honor their patesis by killing and entombing with him his window, his ministers, and notable men and
women of his kingdom, selected by the priests to partake of such abominable honor. (Broduer, The
Pageant of Civilization, pp. 62-66.)
General MacArthur sought to annul completely the officials acts of the governments under the
Japanese occupation, because they were done at the shadow of the Japanese dictatorship, the
same which destroyed the independence of Korea, the "Empire of Morning Frehsness"; they violated
the territorial integrity of China, invaded Manchuria, and initiated therein the deceitful system of
puppet governments, by designating irresponsible Pu Yi as Emperor of Manchukuo; they violated
the trusteeship granted by the Treaty of Versailles by usurping tha mandated islands in the Pacific;
they initiated that they call China ncident, without war declaration, and, therefore, in complete
disregard of an elemental international duty; they attacked Pearl Harbor treacherously, and
committed a long series of the flagrant violations of international law that have logically bestowed on
Japan the title of the bandit nation in the social world.
The conduct of the Japanese during the occupation shows a shocking an anchronism of a modern
world power which seems to be re-incarnation of one whose primitive social types of pre-history,
whose proper place must be found in an archeological collection. t represents a backward jump in
the evolution of ethical and juridical concepts, a reversion that, more than a simple pathological
state, represents a characteristics and well defined case of sociological teratology.
Since they entered the threshold of our capital, the Japanese had announced that for every one of
them killed they would kill ten prominent Filipinos. They promised to respect our rights by submitting
us to the wholesale and indiscriminate slapping, tortures, and atrocious massacres. Driving nails in
the cranium, extraction of teeth and eyes, burnings of organs, hangings, diabolical zonings, looting
of properties, establishments of redlight districts, machine gunning of women and children, interment
of alive persons, they are just mere preludes of the promised paradised that they called "Greater
East Asia Co-Prosperity Sphere".
They promised religious liberty by compelling all protestant sects to unite, against the religious
scruples and convictions of their members, in one group, and by profaning convents, seminaries,
churches, and other cult centers of the Catholics, utilizing them as military barracks, munitions
dumps, artillery base, deposits of bombs and gasoline, torture chambers and zone, and by
compelling the government officials and employees to face and to bow in adoration before that
caricature of divinity in the imperial palace of Tokyo.
The Japanese offered themselves to be our cultural mentors by depriving us of the use of our
schools and colleges, by destroying our books and other means of culture, by falsifying the contents
of school texts, by eliminating free press, the radio, all elemental principles of civilized conduct, by
establishing classes of rudimentary Japanese so as to reduce the Filipinos to the mental level of the
rude Japanese guards, and by disseminating all kinds of historical, political, and cultural falsehoods.
nvoking our geographical propinquity and race affinity, they had the insolence of calling us their
brothers, without the prejuce of placing of us in the category of slaves, treating the most prominent
Filipinos in a much lower social and political category than that of the most ignorant and brutal
subject of the Emperor.
The civil liberties of the citizens were annulled. Witnesses and litigants were slapped and tortured
during investigations. n the prosecuting attorney's offices, no one was safe. When the Japanese
arrested a person, the lawyer who dared to intercede was also placed under arrest. Even courts
were not free from their dispotic members. There were judges who had to trample laws and shock
their conscience in order not to disgust a Nipponese.
The most noble of all professions, so much so that the universities of the world could not conceive of
higher honor that may be conferred than that of Doctor of Laws, became the most despised. t was
dangerous to practice the profession by which faith in the effectiveness of law is maintained; citizens
feel confident in the protection of their liberties, honor, and dignity; the weak may face the powerful;
the lowest citizen is not afraid of the highest official; civil equality becomes reality; justice is
admnistered with more efficiency; and democracy becomes the best system of government and the
best guaranty for the welfare and happiness of the individual human being. n fact, the profession of
law was annulled, and the best lawyers for the unfortunate prisoners in Fort Santiago and other
centers of torture were the military police, concubines, procurers, and spies, the providers of war
materials and shameful pleasures, and the accomplices in fraudulent transactions, which were the
specialty of many naval and military Japanese officers.
The courts and Filipino government officials were completely helpless in the question of protecting
the constitutional liberties and fundamental rights of the citizens who happen to be unfortunate
enough to fall under the dragnet of the hated kempei. Even the highest government officials were not
safe from arrest and imprisonment in the dreaded military dungeons, where torture or horrible death
were always awaiting the defenseless victim of the Japanese brutality.
May any one be surprised if General MacArthur decided to annul all the judicial processes?
The evident policy of the author of the October Proclamation can be seen if we take into
consideration the following provisions of the Japanese Constitution:
ART. 57. The Judicature shall be exercised by the Courts of Law according to law, in the
name of the Emperor.
ART. 61. No suit at law, which relates to rights alleged to have been infringed by the illegal
measures of the executive authority .. shall be taken cognizance of by a Court of Law.
NTERNATONAL LAW
Nobody dared challenge the validity of the October Proclamation.
Nobody dared challenge the authority of the military Commander in Chief who issued it.
Certainly not because of the awe aroused by the looming figure of General of the Army Douglas
MacArthur, the Allied Supreme Commander, the military hero, the greatest American general, the
Liberator of the Philippines, the conqueror of Japan, the gallant soldier under whose authority the
Emperor of the Japan, who is supposed to rule supreme for ages as a descendant of gods, is
receiving orders with the humility of a prisoner of war.
No challenge has been hurled against the proclamation or the authority of the author to issue it,
because everybody acknowledges the full legality of its issuance.
But because the proclamation will affect the interest and the rights of a group of individuals, and to
protect the same, a way is being sought to neutralize the effect of the proclamation.
The way found is to invoke international law. The big and resounding word is considered as a
shibboleth powerful enough to shield the affected persons from the annulling impact.
Even then, international law is not invoked to challenge the legality or authority of the proclamation,
but only to construe it in a convenient way so that judicial processes during the Japanese
occupation, through an exceptional effort of the imagination, might to segregated from the processes
mentioned in the proclamation.
An author said that the law of nations, the "jus gentiun", is not a fixed nor immutable science. On the
country, it is developing incessantly, it is perpetually changing in forms. n each turn it advances or
recedes, according to the vicissitudes of history, and following the monotonous rythm of the ebb and
rise of the tide of the sea.
Le driot des gens, en effet, n'est point une science fixe est immuable: bein au contraire, il se
developpe sans cesse, il change eternellement de formes; tour il avance et il recule, selon
less vicissitudes de histoire et suivan un rhythm monotone qui est comme le flux et le reflux
d'un mer. (M. Revon, De l'existence du driot international sous la republique romain.)
Another author has this to say:
nternational law, if it is or can be a science at all, or can be, at most a regulative science,
dealing with the conduct of States, that is, human beings in a certain capacity; and its
principles and prescriptions are not, like those of science proper, final and unchanging. The
substance of science proper is already made for man; the substance of international is
actually made by man, and different ages make differently." (Coleman Philippson, The
nternational Law and Custom of Ancient Greece of Rome, Vol. , p. 50.)
"Law must be stable, and yet it cannot stand still." (Pound, nterpretations of Legal History., p. 1. )
Justice Cardozo adds: "Here is the great antimony confronting us at every turn. Rest and motion,
unrelieved and unchecked, are equally destructive. The law, like human kind, if life is to continue,
must find some path compromise." (The Growth of Law p. 2.) Law is just one of the manifestations of
human life, and "Life has relations not capable of division into inflexible compartments. The moulds
expand and shrink," (Glanzer vs. Shepard, 233 N.Y., 236, 241.)
The characteristic plasticity of law is very noticeable, much more than in any other department, in
international law.
n a certain matters it is clear we have made substantial progress, but in other points, he (M.
Revon) maintains, we have retrograded; for example, in the middle ages the oath was not
always respected as faithfully as in ancient Rome; and nearer our own times, in the
seventeenth century, Grotius proclaims the unquestioned right of the belligerents to
massacre the women and the children of the enemy; and in our more modern age the due
declaration of war which Roman always conformed to has not been invariably observed.
(Coleman Philippson, The nternational Law and Custom of Ancient Greece and Rome, Vol.
, p. 209.)
Now let us see if any principle of international law may effect the enforcement of the October
Proclamation.
n this study we should be cautioned not to allow ourselves to be deluded by generalities and
vagueness which are likely to lead us easily to error, in view of the absence of codification and
statutory provisions.
Our Constitution provides:
The Philippines renounces war as an instrument of national policy, and adopts the generally
accepted principles of international law as part of the law of the Nation. (Sec. 3, Art. .)
There being no codified principles of international law, or enactments of its rules, we cannot rely on
merely legal precepts.
With the exception of international conventions and treaties and, just recently, the Charter of the
United Nations, adopted in San Francisco Conference on June 26, 1945, we have to rely on
unsystemized judicial pronouncements and reasonings and on theories, theses, and propositions
that we may find in the works of authors and publicists.
Due to that characteristic pliability and imprecision of international law, the drafters of our
Constitution had to content themselves with "generally accepted principles."
We must insists, therefore, that the principles should be specific and unmistakably defined and that
there is definite and conclusive evidence to the effect that they generally accepted among the
civilized nations of the world and that they belong to the current era and no other epochs of history.
The temptation of assuming the role of a legislator is greater in international law than in any other
department of law, since there are no parliaments, congresses, legislative assemblies which can
enact laws and specific statutes on the subject. t must be our concern to avoid falling in so a great
temptation, as its, dangers are incalculable. t would be like building castles in the thin air, or trying to
find an exit in the thick dark forest where we are irretrievably lost. We must also be very careful in
our logic. n so vast a field as international law, the fanciful wandering of the imagination often impair
the course of dialistics.
THE OCTOBER PROCLAMATON AND NTERNATONAL LAW
s there any principle of international law that may effect the October Proclamation?
We tried in vain to find out in the majority opinion anything as to the existence of any principle of
international law under which the authority of General MacArthur to issue the proclamation can
effectively be challenged.
No principle of international law has been, or could be invoked as a basis for denying the author of
the document legal authority to issue the same or any part thereof.
We awaited in vain for any one to dare deny General MacArthur the authority, under international
law, to declare null and void and without effect, not only the laws and regulations of the governments
under the Japanese regime, but all the processes of said governments, including judicial processes.
f General MacArthur, as commander in Chief of the American Armed Forces of Liberation, had
authority, full and legal, to issue the proclamation, the inescapable result will be the complete
viodance and nullity of all judicial processes, procedures, and proceedings of all courts under the
Japanese regime.
But those who are sponsoring the cause of said judicial processes try to achieve their aim, not by
direct means, but by following a tortuous side-road.
They accept and recognize the full authority of the author of the proclamation to issue it and all its
parts, but they maintain that General MacArthur did not and could not have in mind the idea of
nullifying the judicial processes during the Japanese occupation, because that will be in violation of
the principles of international law.
f we follow the reasoning of the majority opinion we will have to reach the conlusion that the world
"processes" does not appear at all in the October Proclamation.
t is stated more than once, and reiterated with dogmatic emphasis, that under the principles of
international law the judicial processes under an army occupation cannot be invalidated.
But we waited in vain for the specific principle of international law, only one of those alluded to, to be
pointed out to us.
f the law exist, it can be pointed out. f the principle exists, it can stated specifically. The word is
being used very often in plural, principles, but we need only one to be convinced.
The imagined principles are so shrouded in a thick maze of strained analogies and reasoning, that
we confess our inability even to have a fleeting glimpse at them through their thick and invulnerable
wrappers.
At every turn international law, the blatant words, are haunting us with the deafening bray of a
trumpet, but after the transient sound has fled away, absorbed by the resiliency of the vast
atmosphere, the announced principles, which are the very soul of international law, would disappear
too with the lighting speed of a vanishing dream.
WEAKNESS OF THE MAJORTY POSTON
n the majority opinion three questions are propounded: first, whether judicial acts and proceedings
during the Japanese occupation are valid even after liberation; second whether the October
Proclamation had invalidated all judgement and judicial proceedings under the Japanese regime;
and third, whether the present courts of the Commonwealth may continue the judicial proceedings
pending at the time of liberation.
As regards the first question, it is stated that it is a legal tourism in political and international law that
all acts of ade facto government are good and valid, that the governments established during the
Japanese occupation. that is, the Philippine Executive Commission and the Republic of the
Philippines, were de facto governments, and that it necessarily follows that the judicial acts and
proceedings of the courts of those governments, "which are not of a political complexion," were good
and valid, and by virtue of the principle of postliminium, remain good and valid after the liberation.
n the above reasoning we will see right away how the alleged legal truism in political and
international law, stated as a premise in a sweeping way, as an absolute rule, is immediately
qualified by the exception as to judicial acts and proceedings which are of a "political complexion."
So it is the majority itself which destroys the validity of what it maintains as a legal truism in political
and international law, by stating from the beginning of the absolute proposition that all acts and
proceedings of the legislative, executive, and judicial departments of a de facto governments are
good and valid.
t is be noted that no authority, absolutely no authority, has been cited to support the absolute and
sweeping character of the majority proposition as stated in their opinion.
No authority could be cited, because the majority itself loses faith in the validity of such absolute and
sweeping proposition, by establishing an unexplained exception as regards the judicial acts and
proceedings of a "political complexion."
Besides, it is useless to try to find in the arguments of the majority anything that may challenge the
power, the authority of a de jure government to annul the official acts of a de facto government, or
the legal and indisputable authority of the restored legitimate government to refuse to recognize the
official acts, legislative, executive and judicial, of the usurping government, once the same is ousted.
As to the second question, the majority argues that the judicial proceedings and judgments of the de
factogovernments under the Japanese regime being good and valid, "it should be presumed that it
was not, and could not have been, the intention of General Douglas MacArthur to refer to judicial
processes, when he used the last word in the October Proclamation, and that it only refers to
government processes other than judicial processes or court proceedings."
The weakness and absolute ineffectiveness of the argument are self-evident.
t is maintained that when General MacArthur declared the processes of the governments under the
Japanese regime null and void, he could not refer to judicial processes, because the same are valid
and remained so under the legal truism announced by the majority to the effect that, under political
and international law, all official acts of a de facto government, legislative, executive or judicial, are
valid.
But we have seen already how the majority excepted from said legal truism the judicial processes of
"political complexion."
And now it is stated that in annulling the processes of the governments under Japanese occupation,
General MacArthur referred to "processes other than judicial processes."
That is, the legislative and executive processes.
But, did not the majority maintain that all acts and proceedings of legislative and executive
departments of a de facto governments are good and valid? Did it not maintain that they are so as a
"legal truism in political and international law?"
Now if the reasoning of the majority to the effect that General MacArthur could not refer to judicial
processes because they are good and valid in accordance with international law, why should the
same reasoning not apply to legislative and executive processes?
Why does the majority maintain that, notwithstanding the fact that, according that said legal truism,
legislative and executive official acts of de facto governments are good and valid, General
MacArthur referred to the latter in his annulling proclamation, but not to judicial processes?
f the argument is good so as to exclude judicial processes from the effect of the October
Proclamation, we can see no logic in considering it bad with respect to legislative and executive
processes.
f the argument is bad with respect to legislative and executive processes, there is no logic in holding
that it is not good with respect to judicial processes.
Therefore, if the argument of the majority opinion is good, the inevitable conclusion is that General
MacArthur did not declare null and void any processes, at all, whether legislative processes,
executive processes, or judicial processes, and that the word "processes" used by him in the
October Proclamation is a mere surplusage or an ornamental literary appendix.
The absurdity of the conclusion unmasks the utter futility of the position of the majority, which is but
a mere legal pretense that cannot stand the least analysis or the test of logic.
A great legal luminary admonished that we must have courage to unmasks pretense if we are to
reach a peace that will abide beyond the fleeting hour.
t is admitted that the commanding general of a belligerent army of occupation as an agent of his
government, "may not unlawfully suspend existing laws and promulgate new ones in the occupied
territory if and when exigencies of the military occupation demand such action," but it is doubted
whether the commanding general of the army of the restored legitimate government can exercise the
same broad legislative powers.
We beg to disagree with a theory so unreasonable and subversive.
We cannot accept that the commanding general of an army of occupation, of a rebellious army, of an
invading army, or of a usurping army, should enjoy greater legal authority during the illegal, and in
the case of the Japanese, iniquitous and bestial occupation, than the official representative of the
legitimate government, once restored in the territory wrested from the brutal invaders and
aggressors. We cannot agree with such legal travesty.
Broad and unlimited powers are granted and recognized in the commanding general of an army of
invasion, but the shadow of the vanishing alleged principle of international law is being brandished to
gag, manacle, and make completely powerless the commander of an army of liberation to wipe out
the official acts of the government for usurpation, although said acts might impair the military
operation or neutralize the public policies of the restored legitimate government.
We are not unmindful of the interest of the persons who might be adversely affected by the
annulment of the judicial processes of the governments under the Japanese regime, but we cannot
help smiling when we hear that chaos will reign or that the world will sink.
t is possible that some criminals will be let loose unpunished, but nobody has ever been alarmed
that the President, in the exercise of his constitutional powers of pardon and amnesty, had in the
past released many criminals from imprisonment. And let us not forget that due to human limitations,
in all countries, under all governments, in peace or in war, there were, there are, and there will
always be unpunished criminals, and that situation never caused despair to any one.
We can conceive of inconveniences and hardships, but they are necessary contributions to great
and noble purposes. Untold sacrifices were always offered to attain high ideals and in behalf of
worthy causes.
We cannot refrain from feeling a paternal emotion for those who are trembling with all sincerity
because of the belief that the avoidance of judicial proceedings of the governments under the
Japanese regime "would paralyze the social life of the country." To allay such fear we must remind
them that the country that produced many great hereos and martyrs; that contributed some of
highest morals figures that humanity has ever produced in all history; which inhabited by a race
which was able to traverse in immemorial times the vast expanses of the ndian Ocean and the
Pacific with inadequate means of navigation, and to inhabit in many islands so distantly located, from
Madagascar to the eastern Pacific; which made possible the wonderful resistance of Bataan and
Corregidor, can not have a social life so frail as to be easily paralyzed by the annulment of some
judicial proceedings. The Japanese vandalisms during the last three years of nightmares and bestial
oppression, during the long period of our national slavery, and the wholesale massacres and
destructions in Manila and many other cities and municipalities and populated areas, were not able
to paralyze the social life of our people. Let us not loss faith so easily in the inherent vitality of the
social life of the people and country of Rizal and Mabini.
t is insinuated that because of the thought that the representative of the restored sovereign power
may set aside all judicial processes of the army of occupation, in the case to courts of a future
invasions, litigants will not summit their cases to courts whose judgement may afterwards be
annulled, and criminals would not be deterred from committing offenses in the expectancy that they
may escape penalty upon liberation of the country. We hope that Providence will never allow the
Philippines to fall again under the arms of an invading army, but if such misfortune will happen, let
the October Proclamation serve as a notice to the ruthless invaders that the official acts of the
government of occupation will not merit any recognition from the legitimate government, especially if
they should not conduct themselves, as exemplified by the Japanese, in accordance with the rules of
action of a civilized state.
One conclusive evidence of the untenableness of the majority position is the fact that it had to resort
to Executive Order No. 37, issued on March 10, 1945, providing "that all cases that have heretofore
been appealed to the Court of Appeals shall be transmitted to the Supreme Court for final decision."
The far-fetched theory is advanced that this provision impliedly recognizes the court processes
during the Japanese military occupation, on the false assumption that it refers to the Court of
Appeals existing during the Japanese regime. t is self-evident that the Executive Order could have
referred only to the Commonwealth Court of Appeals, which is the one declared abolished in said
order. Certainly no one will entertain the absurd idea that the President of the Philippines could have
thought of abolishing the Court of Appeals under the government during the Japanese occupation.
Said Court of Appeals disappeared with the ouster of the Japanese military administration from
which it derived its existence and powers. The Court of Appeals existing on March 10, 1945, at the
time of the issuance of Executive Order No. 37, was the Commonwealth Court of Appeals and it was
the only one that could be abolished.
Without discussing the correctness of principle stated the majority opinion quotes from Wheaton the
following: "Moreover when it is said that occupier's acts are valid and under international law should
not be abrogated by the subsequent conqueror, it must be remembered that on crucial instances
exist to show that if his acts should be reversed, any international wrong would be committed. What
does happen is that most matters are allowed to stand by the stored government, but the matter can
hardly be put further than this." (Wheaton, nternational Law, War, 7th English edition of 1944, p.
245)
Then it says that there is no doubt that the subsequent conqueror has the right to abrogate most of
the acts of the occupier, such as the laws, regulations and processes other than the judicial of the
government established by the belligerent occupant.
t is evident that the statement just quoted is a complete diversion from the principle stated in the in
an unmistakable way by Wheaton, who says in definite terms that "it must be remembered that no
crucial instances exist to show that if his acts (the occupant's) should be reversed, any international
wrong would be committed."
t can be clearly seen that Wheaton does not make any distinction or point out any exception.
But in the majority opinion the principle is qualified, without stating any reason therefore, by limiting
the right of the restored government to annul "most of the acts of the occupier" and "processes other
than judicial."
The statement made by the respondent judge after quoting the above-mentioned principle, as stated
by Wheaton, to the effect that whether the acts of military occupant should be considered valid or
not, is a question that is up to the restored government to decide, and that there is no rule of
international law that denies to the restored government the right to exercise its discretion on the
matter, is quoted without discussion in the majority opinion.
As the statement is not disputed, wee are entitled to presume that it is concurred in and, therefore,
the qualifications made in the statement in the majority opinion seem to completely groundless.
THE DUTES MPOSED ON OCCUPANT ARMY ARE NOT LMTATONS TO THE RGHTS OF
THE LEGTMATE GOVERNMENT
The majority opinion is accumulating authorities to show the many duties imposed by international
law on the military occupant of an invaded country.
And from said duties it is deduced that the legitimate government, once restored in his own territory,
is bound to respect all the official acts of the government established by the usurping army, except
judicial processes political complexion.
The reasoning calls for immediate opposition. t is absolutely contrary to all principles of logic.
Between the duties imposed in the military occupant and the legal prerogatives of the legitimate
government there are no logical relationship or connection that might bind the ones with the others.
The military occupants is duty bound to protect the civil rights of the inhabitants, but why should the
legitimate government necessarily validate the measures adopted by the said occupant in the
performance of this duty, if the legitimate government believes his duty to annul them for weighty
reasons?
The military occupant is duty bound to establish courts of justice. Why should the legitimate
government validate the acts of said courts, if it is convinced that said courts were absolutely
powerless, as was the case during the Japanese occupation, to stop the horrible abuses of the
military police, to give relief to the victims of zoning and Fort Santiago tortures, to protect the
fundamental human rights of the Filipinos life, property, and personal freedom?
The majority opinion recognizes in the military occupant the power to annul the official acts of the
ousted and supplanted legitimate government, a privilege which is inversely denied to the last. This
preference and predilection in favor of the military occupant, that is in favor of the invader and
usurper, and against the legitimate government, is simply disconcerting, if we have to say the least.
PRESUMPTONS AND SUPPOSTONS AGANST TRUTH AND FACTS
The invading military occupant is duty bound to establish and maintain courts of justice in the
invaded territory, for the protection of the inhabitants thereof. t is presumed that the restored
legitimate government will respect the acts of said courts of the army of occupation. Therefore, it is a
principle of international law that said acts are valid and should be respected by the legitimate
government. t is presumed that General MacArthur is acquainted with such principle, discovered or
revealed through presumptive operations, and it is presumed that he had not the intention of
declaring null and void the judicial processes of the government during the Japanese regime.
Therefore, his October Proclamation, declaring null and void and without effect "all processes" of
said governments, in fact, did not annul the Japanese regime judicial processes.
So run the logic of the majority.
They don't mind the that General MacArthur speaks in the October Proclamation as follows:
NOW, THEREFORE, , Douglas MacArthur, General, United States Army, as Commander-in-Chief
of the military forces committed to the liberation of the Philippines, do hereby proclaim and declare:
xxx xxx xxx
3. That all laws, regulations and processes of any other government in the Philippines than that of
the said Commonwealth are null and void and without legal effect in areas of the Philippines free of
enemy occupation and control. (emphasis supplied.)
General MacArthur says categorically "all processes", but the majority insists on reading differently,
that, is: "NOT ALL processes." The majority presume, suppose, against the unequivocal meaning of
simple and well known words, that when General MacArthur said "all processes", in fact, he said "not
all processes", because it is necessary, by presumption, by supposition, to exclude judicial
processes.
f where General MacArthur says "all", the majority shall insist on reading "not all", it is impossible to
foresee the consequences of such so stubborn attitude, but it is possible to understand how they
reached the unacceptable possible conclusion which we cannot be avoid opposing and exposing.
Are we to adopt and follow the policy of deciding cases submitted to our consideration, by
presumption and suppositions putting aside truths and facts? Are we to place in the documents
presented to us, such as the October Proclamation, different words than what are written therein?
Are we to read "not all", where it is written "all"?
We are afraid to such procedure is not precisely the most appropriate to keep public confidence in
the effectiveness of the administration of justice.
That is why we must insists that in the October Proclamation should be read what General
MacArthur has written in it, that is, that, besides laws and regulations, he declared and proclaimed
null and void "ALL PROCESSES", including naturally judicial processes, of the governments under
the Japanese regime.
THE COMMONWEALTH COURTS HAVE NO JURSDCTON TO CONTNUE JAPANESE REGME
JUDCAL PROCESSES
Now we come to the third and last question propounded in the majority opinion.
The jurisdiction of the Commonwealth tribunals is defined, prescribed, and apportioned by legislative
act.
t is provided so in our Constitution. (Section 2, Article V.)
The Commonwealth courts of justice are continuations of the courts established before the
inauguration of the Commonwealth and before the Constitution took effect on November 15, 1935.
And their jurisdiction is the same as provided by existing laws at the time of inauguration of the
Commonwealth Government.
Act No. 136 of the Philippine Commission, known as the Organic Act of the courts of justice of the
Philippines, is the one that defines the jurisdiction of justice of the peace and municipal courts,
Courts of First nstance, and the Supreme Court. t is not necessary to mention here the jurisdiction
of the Court of Appeals, because the same has been abolished by Executive Order No. 37.
No provision may be found in Act. No. 136, nor in any other law of the Philippines, conferring on the
Commonwealth tribunals jurisdiction to continue the judicial processes or proceedings of tribunals
belonging to other governments, such as the governments established during the Japanese
occupation.
The jurisdiction of our justice of the peace and municipal courts is provided in section 68, chapter V,
of Act No. 136. The original and appellate jurisdiction of the Courts of First nstance is provided in
the sections 56, 57, Chapter V, of Act No. 136. The original and appellate jurisdiction of the
Supreme Court is provided in 17 and 18, Chapter , of the same Act. The provisions of the above-
cited do not authorize, even implicitly, any of the decisions and judgements of tribunals of the
governments, nor to continue the processes or proceedings of said tribunals.
NECESSTY OF ENABLNG ACT UNDER THE LEGAL DOCTRNE PREVALNG N THE
PHLPPNES AND N THE UNTED STATES
Taking aside the question as to whether the judicial processes of the government established during
the Japanese occupation should be considered valid or not, in order that said processes could be
continued and the Commonwealth tribunals could exercise proper jurisdiction to continue them,
under the well- established legal doctrine, prevailing not only in the Philippines, but also in the proper
enabling law.
Almost a half a century ago, in the instructions given by President McKinley on April 7, 1900, for the
guidance of the Philippine Commission, it was stated that, in all the forms of the govenment and
administrative provisions which they were authorized to prescribed, the Commission should bear in
mind that the government which they were establishing was designed not for the satisfaction of the
Americans or for the expression of their of their theoretical views, but for the happiness, peace and
prosperity of the people of the Philippines, and the measures adopted should be made to conform to
their customs, their habits, and even their prejudices, to the fullest extent consistent with the
accomplishment of the indispensable requisites of just and effective government.
Notwithstanding the policy so outlined, it was not enough for the Philippine Commission to create
and establish the courts of justice provided in Act No. 136, in order that said tribunals could take
cognizance and continue the judicial proceedings of the tribunals existing in the Philippines at the
time the American occupation.
t needed specific enabling provisions in order that the new tribunals might continue the processes
pending in the tribunals established by the Spaniards, and which continued to function until they
were substituted by the courts created by the Philippine Commission.
So it was done in regards to the transfer of the cases pending before the Spanish Audiencia to the
newly created Supreme Court, in sections 38 and 39 of Act No. 136 quoted as follows:
SEC. 38. Disposition of causes, actions, proceedings, appeals, records, papers, and so forth,
pending in the existing Supreme Court and in the "Contencioso Administravo." All records,
books, papers, causes, actions, proceedings, and appeals logged, deposited, or pending in
the existing Audiencia or Supreme Court, or pending by appeal before the Spanish tribunal
called "Contencioso Administravo," are transferred to the Supreme Court above provided for
which, has the same power and jurisdiction over them as if they had been in the first instance
lodged, filed, or pending therein, or, in case of appeal, appealed thereto.
SEC. 39. Abolition of existing Supreme Court. The existing Audiencia or Supreme Court is
hereby abolished, and the Supreme Court provided by this Act is substituted in place thereof.
Sections 64 and 65 of the same Act allowed the same procedure as regards the transfer of cases
and processes pending in the abolished Spanish Courts of First nstance to the tribunals of the same
name established by the Philippine Commission.
SEC. 64. Disposition of records, papers, causes, and appeals, now pending in the existing
Courts of First Instance. All records, books, papers, actions, proceedings, and appeals
lodged, deposited, or pending in the Court of First nstance as now constituted of or any
province are transferred to the Court of First nstance of such province hereby established,
which shall have the same power and jurisdiction over them as if they had been primarily
lodged, deposited, filed, or commenced therein, or in case of appeal, appealed thereto.
SEC. 65. Abolition of existing Courts of First Instance. The existing Courts First nstance
are hereby abolished, and the Courts of First nstance provided by this Act are substituted in
place thereof.
The same procedure has been followed by the Philippine Commission eventhough the courts of
origin of the judicial processes to be transferred and continued belonged to the same government
and sovereignty of the courts which are empowered to continue said processes.
So section 78 of Act No. 136, after the repeal of all acts conferring upon American provost courts in
the Philippines jurisdiction over civil actions, expressly provided that said civil actions shall be
transferred to the newly created tribunals.
And it provided specifically that "the Supreme Court, Courts of the First nstance and courts of the
justice of the peace established by this Act (No. 136) are authorized to try and determine the actions
so transferred to them respectively from the provost courts, in the same manner and with the same
legal effect as though such actions had originally been commenced in the courts created" by virtue
of said Act.
MUNCPAL COURTS UNDER ACT NO. 183
On July 30, 1901, the Philippine Commission enacted the Organic Act of the City of Manila, No. 183.
Two municipal courts for the city were created by section 40 of said Act, one for the northern side of
Pasig River and the other for the southern side.
They were courts with criminal jurisdiction or identical cases under the jurisdiction of the justices of
the peace then existing in Manila. Although both courts were of the same jurisdiction, in order that
the criminal cases belonging to the justice of the peace courts may be transferred to the municipal
courts just created, and the proceedings may be continued by the same, the Philippine Commission
considered it necessary to pas the proper enabling act.
So on August 5, 1901, it enacted Act No. 186, section 2 of which provides that all criminal cases and
proceedings pending in the justices of the peace of Manila are transferred to the municipal courts,
which are conferred the jurisdiction to continue said cases and proceedings.
THE CABANTAG CASE
On August 1, 1901, Narciso Cabantag was convicted of murder by a military commission.
(Cabantag vs. Wolfe, 6 Phil., 273.) The decision was confirmed on December 10, 1901, and his
execution by hanging was set for January 12,1902. .
On December 26, 1901, he fled, but surrendered to the authorities on July 18, 1902. The Civil
Governor on December 2, 1903, commuted the death penalty to 20 years imprisonment. The
commutation was approved by the Secretary of War, following instructions of the President.
Cabantag filed later a writ of habeas corpus on the theory that, with the abolition of the military
commission which convicted him, there was no existing tribunal which could order the execution of
the penalty of imprisonment.
The Supreme Court denied the writ, but stated that, if the petitioner had filed the writ before the
enactment of Act No. 865, the question presented to the Supreme Court would have been different.
Act No. 865, enacted on September 3, 1903, is enabling law, wherein it is provided that decisions
rendered by the provost courts and military commission shall be ordered executed by the Courts of
First nstance in accordance with the procedure outlined in said Act.
t is evident from the foregoing that this Supreme Court has accepted and confirmed the doctrine of
the necessity of an enabling act in order that our Courts of First nstance could exercise jurisdiction
to execute the decision of the abolished provost courts and military commission.
t is evident that the doctrine is applicable, with more force, to the judicial processes coming from
governments deriving their authority from a foreign enemy state.
THE DOCTRNE N THE UNTED STATES
t is also evident that the Congress of the United States, by enacting the Bill of the Philippines on
July 1, 1902, confirmed also the same doctrine.
n effect, in section 9 of said Act, the Congress approved what the Philippine Commission did as to
the jurisdiction of the courts established and transfer of cases and judicial processes, as provided in
Acts Nos. 136, 186, and 865.
The same doctrine was adopted by the United States government as part of its international policy,
as could be seen in Article X of the Treaty concluded with Spain on December 10, 1898, in Paris.
Even in 1866 the Congress of the United States followed the same doctrine.
The suit, shown by the record, was originally instituted in the District Court of the United
States for the District of Louisiana, where a decree was rendered for the libellant. From the
decree an appeal was taken to the Circuit Court, where the case was pending, when in 1861,
the proceedings of the court were interrupted by the civil war. Louisiana had become
involved in the rebellion, and the courts and officers of the United States were excluded from
its limits. n 1862, however, the National authority had been partially reestablished in the
State, though still liable to the overthrown by the vicissitudes of war. The troops of the Union
occupied New Orleans, and held military possession of the city and such other portions of
the State as had submitted to the General Government. The nature of this occupation and
possession was fully explained in the case of The Vinice.
Whilst it continued, on the 20th of October, 1862, President Lincoln, by proclamation,
instituted a Provisional Court of the State of Louisiana, with authority, among other powers,
to hear, try, and determine all causes in admiralty. Subsequently, by consent of parties, this
cause was transferred into the Provisional Court thus, constituted, and was heard, and a
decree was again rendered in favor of the libellants. Upon the restoration of civil authority in
the State, the Provincial Court, limited in duration, according to the terms of the
proclamation, by the event, ceased to exist.
On the 28th of July, 1866, Congress enacted that all suits, causes and proceedings in the
Provisional Court, proper for the jurisdiction of the Circuit Court of the United States for the
Eastern District of Louisiana, should be transferred to that court, and heard, and determined
therein; and that all judgements, orders, and decrees of the Provisional Court in causes
transferred to the Circuit Court should at once become the orders, judgements, and decrees
of that court, and might be enforced, pleaded, and proved accordingly.
t is questioned upon these facts whether the establishment by the President of a Provisional
Court was warranted by the Constitution.
xxx xxx xxx
We have no doubt that the Provisional Court of Louisiana was properly established by the
President in the exercise of this constitutional authority during war; or that Congress had
power, upon the close of the war, and the dissolution of the Provisional Court, to provide for
the transfer of cases pending in that court, and of its judgement and decrees, to the proper
courts of the United States. (U. S. Reports, Wallace, Vol. 9, The Grapeshot, 131-133.)
JUDGEMENTS OF THE REBEL COURTS N LOUSANA WERE VALDATED BY
CONSTTUTONAL PROVSON
During the civil war in 1861, the prevailing rebel forces established their own government in
Louisiana.
When the rebel forces were overpowered by the Union Forces and the de facto government was
replaced by the de jure government, to give effect to the judgments and other judicial acts of the
rebel government, from January 26, 1861, up to the date of the adoption of the State Constitution, a
provision to said effect was inserted in said document.
Section 149 of the Louisiana Constitution reads as follows:
All the rights, actions, prosecutions, claims, contracts, and all laws in force at the time of the
adoption of this Constitution, and not inconsistent therewith, shall continue as if it had not
been adopted; all judgments and judicial sales, marriages, and executed contracts made in
good faith and in accordance with existing laws in this State rendered, made, or entered into,
between the 26th day of January, 1861, and the date when this constitution shall be adopted,
are hereby declared to be valid, etc. (U. S. Report, Wallace, Vol. 22, Mechanics' etc.
Bank vs. Union Bank, 281.)
EVEN AMONG SSTERS STATES OF THE UNTED STATES JUDGEMENTS ARE NOT
EXECUTORY
The member states of the United States of America belong to the same nation, to the country, and
are under the same sovereignty.
But judgements rendered in one state are not executory in other states.
To give them effect in other states it is necessary to initiate an original judicial proceedings, and
therein the defendants in the domestic suit may plead bar the sister state judgement puis darrien
continuance. (Wharton, on the Conflict of Laws, Vol. , p. 1411.)
Under the Constitution of the United States, when a judgement of one state in the Union is
offered in a court of a sister state as the basis of a suit nil debet cannot be pleaded. The only
proper plea is nul tiel record. (Id., p. 1413.).
t is competent for the defendant, however, to an action on a judgement of a sister state, as
to an action on a foreign judgement, to set up as a defense, want of jurisdiction of the court
rendering the judgement; and, as indicating such want of jurisdiction, to aver by plea that the
defendant was not an inhabitant of the state rendering the judgement, and had not been
served with process, and did not enter his appearance; or that the attorney was without
authority to appear. (Id., pp. 1414-1415.)
The inevitable consequence is that the courts of the Commonwealth of the Philippines, in the
absence of an enabling act or of an express legislative grant, have no jurisdiction to take cognizance
and continue the judicial processes, procedures, and proceedings of the tribunals which were
created by the Japanese Military Administration and functioned under the Vargas Philippine
Executive Commission of the Laurel Republic of the Philippines, deriving their authority from the
Emperor, the absolute ruler of Japan, the invading enemy, and not from the Filipino people in whom,
according to the Constitution, sovereignty resides, and from whom all powers of government
emanate.
The position of Honorable Asenio P. Dizon, the respondent judge of the Court of the First nstance of
Manila in declaring himself without jurisdiction nor authority to continue the proceedings which
provoked the present controversy, being a judicial process of a Japanese sponsored government, is
absolutely correct, under the legal doctrines established by the United States and the Philippine
Government, and consistently, invariably, and without exception, followed by the same.
f we accept, for the sake of argument, the false hypothesis that the Commonwealth tribunals have
jurisdiction to continue the judicial processes left pending by the courts of the governments
established under the Japanese regime, the courts which disappeared and, automatically, ceased to
function with the ouster of the enemy, the position of the Judge Dizon, in declining to continue the
case, is still unassailable, because, for all legal purposes, it is the same as if the judicial processes in
said case were not taken at all, as inevitable result of the sweeping and absolute annulment
declared by the General MacArthur in the October Proclamation.
n said proclamation it is declared in unmistakable and definite terms that "ALL PROCESSES" of the
Japanese sponsored governments "ARE NULL AND VOD AND WTHOUT LEGAL EFFECT", and
they shall remain so until the Commonwealth, through its legislative power, decides otherwise in a
proper validating act.
The fact that the Japanese invaders, under international law, were in duty bound to establish courts
of justice during the occupation, although they made them completely powerless to safeguard the
constitutional rights of the citizens, and mere figureheads as regards the fundamental liberties of the
helpless men, women and children of our people, so much so that said courts could not offer even
the semblance of protection when the life, the liberty, the honor and dignity of our individual citizens
were wantonly trampled by any Japanese, military or civilian, does not change the situation. "ALL
PROCESSES" of said court are declared "NULL AND VOD AND WTHOUT LEGAL EFFECT" in the
October proclamation, and we do not have any other alternative but to accept the law, as said
proclamation has the full force of a law.
The fact that in the past, the legitimate governments, once restored in their own territory,
condescended in many cases to recognize and to give effect to judgments rendered by courts under
the governments set up by an invading military occupant or by a rebel army, does not elevate such
condescension to the category of a principle, when Wheaton declares that no international wrong is
done if the acts of the invader are reversed.
Many irrelevant authorities were cited to us as to the duties imposed by the international law on
military occupants, but no authority has been cited to the effect that the representative of the
restored legitimate government is a bound to recognize and accept as valid the acts and processes
of said occupants. On the contrary, Wheaton says that if the occupant's acts are reversed "no
international wrong would be committed."
Following the authority of Wheaton, undisputed by the majority, General MacArthur thought, as the
wisest course, of declaring "NULL AND VOD AND WTHOUT EFFECT," by official proclamation,
"ALL PROCESSES" under the Japanese regime, that is legislative, executive and judicial processes,
which fall under the absolute adjective "ALL".
That declaration is a law. t is a law that everybody bound to accept and respect, as all laws must be
accepted and respected. t is a law that the tribunals are duty bound to give effect and apply.
We are not unmindful of the adverse consequences to some individuals of the annullment of all the
judicial processes under the Japanese regime, as provided in the October Proclamation, but the
tribunals are not guardians of the legislative authorities, either an army commander in chief, during
war, or a normal legislature, in peace time. The tribunals are not called upon to guide the legislative
authorities to the wisdom of the laws to be enacted. That is the legislative responsibility. Our duty
and our responsibility is to see to it that the law, once enacted, be applied and complied with.
No matter the consequences, no matter who might be adversely affected, a judge must have the firm
resolve and the courage to do his duty, as, in the present case, Judge Dizon did, without fear nor
favor. We cannot see any reason why we should not uphold him in his stand in upholding the law.
t is our official duty, national and international duty. Yes. Because this Supreme Court is sitting, not
only as a national court, but as an international court, as is correctly stated in the concurring opinion
of Justice De Joya, and we should feel the full weight of the corresponding responsibility, as the
American courts with admiralty jurisdiction and the Prize Courts of England did feel. n fact, it is in
the judiciary where, more than in any point of view is more pressing, more imperative, more
unavoidable. Justice has no country. t is of all countries. The horizon of justice cannot be limited by
the scene where our tribunals are functioning and moving. That horizon is boundless. That is why in
our constitution the bill of rights has been written not for Filipinos, but for all persons. They are rights
that belong to men, not as Filipinos, Americans, Russians, Chinese or Malayan, but as a members
of humanity. The international character of our duty to administer justice has become more specific
by the membership of our country in the United Nations. And let us not forget, as an elemental thing,
that our primary duty is to uphold and apply the law, as it is; that we must not replace the words of
the law with what we might be inclined to surmise; that what is clearly and definitely provided should
not be substituted with conjectures and suppositions; that we should not try to deduce a contrary
intention to that which is unequivocally stated in the law; that we should not hold valid what is
conclusively declared null and void.
The October Proclamation declared "ALL PROCESSES" under the Japanese regime "AND VOD
WTHOUT EFFECT", so they must stand. There is no possible way of evasion. "ALL PROCESSES",
in view of the meaning of the absolute adjective "ALL", include "JUDCAL PROCESSES". Allegatio
contra factum non est admittenda.


CONCLUSON
For all the foregoing reasons we conclude:
1. That General MacArthur had full legal authority to issue the October Proclamation, and that no
principle of the international law is violated by said proclamation, no international wrong being
committed by the reversal by the legitimate government of the acts of the military invader.
2. That said proclamation was issued in full conformity with the official policies to which the United
States and Philippine Governments were committed, and the annulment of all the facts of the
governments under the Japanese regime, legislative, executive, and judicial, is legal, and justified by
the wrongs committed by the Japanese.
3. That when General MacArthur proclaimed and declared in the October Proclamation "That all
laws, regulations and processes" of the Japanese sponsored governments, during enemy
occupation, "are null and void and without effect", he meant exactly what he said.
4. That where General MacArthur said "all processes" we must read and understand precisely and
exactly "all processes", and not "some processes". "All" and "some" have incompatible meanings
and are not interchangeable.
5. That the word "processes" includes judicial procedures, proceedings, processes, and cases.
Therefore, "all processes" must include "all judicial processes.".
6. That we have no right to attribute General MacArthur an intention different from what he has
plainly, clearly, unmistakably expressed in unambiguous words with familiar meaning generally
understood by the common man.
7. That the judicial proceedings here in question are included among those adversely affected by the
October Proclamation.
8. That the Commonwealth tribunals have no jurisdiction to take cognizance of nor to continue the
judicial proceedings under the Japanese regime.
9. That to exercise said jurisdiction an enabling act of the Congress is necessary.
10. That respondent Judge Dizon did not commit the error complained of in the petition, and that the
petition has no merits at all.
We refuse to follow the course of action taken by the majority in the present case. t is a course
based on a mistaken conception of the principles of international law and their interpretation and
application, and on a pinchbeck. t is a course based on misconstruction or misunderstanding of the
October Proclamation, in utter disregard of the most elemental principles of legal here meneutics. t
is a course that leads to nowhere, except to the brink of disaster, because it is following the
dangerous path of ignoring or disobeying the law.
Let us not allow ourselves to be deceived. The issue confronting us is not of passing importance. t
is an issue of awesome magnitude and transcendency. t goes to and reaches the very bottom. t is
simple. Lacking in complexities. But it may shake the very foundation of society, the cornerstone of
the state, the primary pillar of the nation. t may dry the very foundation of social life, the source of
vitalizing sap that nurtures the body politic. The issue is between the validity of one or more
Japanese regime processes and the sanctity of the law.
That is the question, reduced to its ultimate terms. it is a simple dilemma that is facing us. t is the
alpha and the omega of the whole issue. Either the processes, or the law. We have to select
between two, which to uphold. t is a dilemma that does not admit of middle terms, or of middle ways
where we can loiter with happy unconcern . We are in the cross road: which way shall we follow?
The processes and the law are placed in the opposite ends of the balance. Shall we inclined the
balance of justice to uphold the processes and defeat law, or vice versa?
We feel jittery because some judicial processes might be rescinded or annulled, but we do not
tremble with sincere alarm at the thought of putting the law under the axe, of sentencing law to be
executed by the guillotine. We feel uneasy, fancying chaos and paralyzation of social life, because
some litigants in cases during the Japanese regime will be affected in their private interests, with the
annulment of some judicial processes, but we adopt an attitude of complete nonchalance in throwing
law overboard. This baffling attitude is a judicial puzzle that nobody will understand. So it is better
that we should shift to a more understandable way, that which is conformable to the standard that
the world expects in judicial action.
No amount of arguments and lucubration's, no amount of speculative gymnastics, no amount of
juggling of immaterial principles of international law, no amount of presumptions and suppositions,
surmises and conjectures, no amount of dexterity in juridical exegesis can divert our attention from
the real, simple, looming, hypostasis of the issue before us: Law. t is Law with all its majestic
grandeur which we are defying and intending to overthrow from the sacred pedestal where the ages
had placed her as a goddess, to be enshrined, obeyed, and venerated by men, forever. Let us not
dare to lay our profaning hands on her vestal virginity, lest the oracle should fling at us the thunder of
his prophetic anathema.
We cannot therefore vote except for the denial of the petition.


HILADO, dissenting:
dissent from the opinion of the majority and, pursuant to the Constitution, proceed to state the
reason for my dissent.
The proceeding involved in the case at bar were commenced by a complaint filed by the instant
petitioner, as plaintiff, on November 18, 1944, in civil case No. 3012 of the so-called Court of First
nstance of Manila, the complaint bearing this heading and title: "The Republic of the Philippines
n the Court of First nstance of Manila" (Annex X of Exhibit A of petition for mandamus). The farthest
that said proceedings had gone before the record was burned or destroyed during the battle for
Manila, was the filing by counsel for plaintiff therein of their opposition to a motion for dismissal filed
by opposing counsel.
t is, therefore, plain that the case had not been heard on the merits when the record was burned or
destroyed.
The respondent judge, in his order dated June 6, 1945, disposing of the petition dated May 25, 1945
filed by petitioner, as a plaintiff in said case, and of the petition filed by respondent Eusebio Valdez
Tan Keh, as defendant therein, on May 31, 19045, held: " first, that by virtue of the proclamation of
General MacArthur quoted above, all laws, regulations and processes of any other government in
the Philippines than that of the Commonwealth became null and void and without legal effect in
Manila on February 3, 1945 or, at the lates, on February 27 of the same year; second that the
proceedings and processes had in the present case having been before a court of the Republic of
the Philippines and in accordance with the laws and regulations of said Republic, the same are now
void and without legal effect; third, that this Court as one of the different courts of general jurisdiction
of the Commonwealth of the Philippines, has no authority to take cognizance of and continue said
proceedings to final judgement, until and unless the Government of the Commonwealth of the
Philippines, in the manner and form provided by law, shall have provided for the transfer of the
jurisdiction of the courts of the now defunct Republic of the Philippines, and the causes commenced
and left pending therein, to the courts created and organized by virtue of the provisions of Act No.
4007, as revived by Executive Order No. 36, or for the validation of all proceedings had in said
courts."
Petitioner prays that this Court declare that the respondent judge should not have ordered the
suspension of the proceedings in civil case No. 3012 and should continue and dispose of all the
incidents in said case till its complete termination. n my opinion, the petition should denied.
n stating the reasons for this dissent, we may divide the arguments under the following propositions:
1. The proceedings in said civil case No. 3012 are null and void under General of the Army
MacArthur's proclamation of October 23, 1944 (41 Off. Gaz., 147, 148);
2. (a) The government styled as, first, the "Philippine Executive Commission "and later as the
Republic of the Philippines", established here by the Commander in Chief of the mperial Japanese
Forces or by his order was not a de-facto government the so-called Court of First nstance of
Manila was not a de facto court, and the judge who presided it was not a de facto judge; (b) the rules
of nternational Law regarding the establishment of a de facto Government in territory belonging to a
belligerent but occupied or controlled by an opposing belligerent are inapplicable to the governments
thus established here by Japan;
3. The courts of those governments were entirely different from our Commonwealth courts before
and after the Japanese occupation;
4. The question boils down to whether the Commonwealth Government, as now restored, is to be
bound by the acts of either or both of those Japanese-sponsored governments;
5. Even consideration of policy of practical convenience militate against petitioner's contention.

The proceedings in said civil case No. 3012 are null and void under General of the Army
MacArthur's proclamation of October 23, 1944 (41 Off. Gaz., 147, 148).
n this proclamation, after reciting certain now historic facts, among which was that the so-called
government styled as the "Republic of the Philippines" was established on October 14, 1943 "under
enemy duress, . . . based upon neither the free expression of the people's will nor the sanction of the
Government of the United States," the great Commander-in-Chief proclaimed and declared:
xxx xxx xxx
3. That all laws, regulations and processes of any other government in the Philippines than
that of the said Commonwealth are null and void and without legal effect in areas of the
Philippines free of enemy occupation and control; and
xxx xxx xxx
do enjoin upon all loyal citizens of the Philippines full respect for and obedience to the
Constitution of the Commonwealth of the Philippines and the laws, regulations and other acts
of their duly constituted government whose seat is now firmly re-established on Philippine
soil.
The evident meaning and effect of the 3rd paragraph above quoted is, think, that as the different
areas of the Philippines were progressively liberated, the declaration of nullity therein contained shall
attach to the laws, regulations and processes thus condemned in so far as said areas were
concerned. Mark that the proclamation did not provide that such laws, regulations and processes
shall be or are annulled, but that they are null and void. Annulment implies some degree of the
effectiveness in the act annulled previous to the annulment, but a declaration of nullity denotes that
the act is null and void ab initio the nullity precedes the declaration. The proclamation speaks in
the present tense, not in the future. f so, the fact that the declaration of nullity as to the condemned
laws, regulations, and processes in areas not yet free from enemy occupation and control upon the
date of the proclamation, would attach thereto at a later date, is no argument for giving them validity
or effectiveness in the interregnum. By the very terms of the proclamation itself, that nullity had to
date back from the inception of such laws, regulations and processes; and to dispel any shadow of
doubt which may still remain, we need only consider the concluding paragraph of the proclamation
wherein the Commander in Chief of the army liberation solemnly enjoined upon all loyal citizens of
the Philippines full respect for and obedience to the Constitution of the Commonwealth of the
Philippines and the laws, regulations and other acts of their duly constituted government. This is all-
inclusive it comprises not only the loyal citizens in the liberated areas but also those in areas still
under enemy occupation and control. t will be noticed that the complaint in said civil case No. 3012
was filed twenty-six days after the above-quoted proclamations of General of the Army MacArthur. f
the parties to said case were to consider the proceedings therein up to the date of the liberation of
Manila valid and binding, they would hardly be complying with the severe injunction to render full
respect for and obedience to our Constitution and the laws, regulations and other acts of our duly
constituted government from October 23, 1944, onwards. ndeed, to my mind, in choosing between
these two courses of action, they would be dangerously standing on the dividing line between loyalty
and disloyalty to this country and its government.
The proceeding in question, having been had before the liberation of Manila, were unquestionably
"processes" of the Japanese-sponsored government in the Philippines within the meaning of the
aforesaid proclamation of General of the Army MacArthur and, consequently, fall within the
condemnation of the proclamation. Being processes of a branch of a government which had been
established in the hostility to the Commonwealth Government, as well as the United States
Government, they could not very well be considered by the parties to be valid and binding, at least
after October 23, 1944, without said parties incurring in disobedience and contempt of the
proclamation which enjoins them to render full respect for the obedience to our Constitution and the
laws, regulations and other acts of our duly constituted government. Nine days after the inauguration
of the so-called "Republic of the Philippines," President Franklin Delano Roosevelt of the United
States declared in one of his most memorable pronouncements about the activities of the enemy in
the Philippines, as follows:
One of the fourtheenth of this month, a puppet government was set up in the Philippine
sland with Jose P. Laurel, formerly a justice of the Philippine Supreme Court, as "president."
Jorge Vargas, formerly as a member of the Commonwealth Cabinet, and Benigno Aquino,
also formerly a member of that cabinet, were closely associated with Laurel in this
movement. The first act of the new puppet regime was to sign a military alliance with Japan.
The second act was a hyphocritical appeal for American sympathy which was made in fraud
and deceit, and was designed to confuse and mislead the Filipino people.
wish to make it clear that neither the former collaborationist "Philippine Executive
Commission" nor the present "Philippine Republic " has the recognition or sympathy of the
Government of the United States. . . .
Our symphaty goes out to those who remain loyal to the United States and the
Commonwealth that great majority of the Filipino people who have not been deceived by
the promises of the enemy.
October 23, 1943.
FRANKLN DELANO ROOSEVELT
President of the United States
(Form U.S. Naval War College nternational Law Documents, 1943, pp. 93, 94.).
t is a fact of contemporary history that while President Manuel L. "uezon of the Philippines was in
Washington, D.C., with his exiled government, he also repeatedly condemned both the "Philippine
Executive Commission" and the "Philippine Republic," as they had been established by or under
orders of the Commander in Chief of the mperial Japanese Forces. With these two heads of the
Governments of the United States and the Commonwealth of the Philippines condemning the
"puppet regime" from its very inception, it is beyond my comprehension to see how the proceedings
in question could be considered valid and binding without adopting an attitude incompatible with
theirs. As President Roosevelt said in his above quoted message, "Our symphaty goes out to those
remain loyal to the United States and the Commonwealth that great majority of the Filipino people
who have not been deceived by the promises of the enemy.
The most that can concede is that while the Japanese Army of occupation was in control in the
slands and their paramount military strength gave those of our people who were within their reach
no other alternative, these had to obey their orders and decrees, but the only reason for such
obedience would be that paramount military strength and not any intrinsic legal validity in the
enemy's orders and decrees. And once that paramount military strength disappeared, the reason for
the obedience vanished, and obedience should likewise cease.
As was stated by the Supreme Court of the United States in the case of Williams vs. Bruffy (96 U.S.,
176; 24 Law. ed., 719), "n the face of an overwhelming force, obedience in such matters may often
be a necessity and, in the interest of order, a duty. No concession is thus made to the rightfulness of
the authority exercised." (Emphasis ours.) The court there refers to its own former decision in
Thorington vs. Smith, and makes it clear that the doctrine in the Thorington case, so far as the
effects of the acts of the provisional government maintained by the British in Casetine, from
September, 1814 to the Treaty of Peace in 1815, and the consideration of Tampico as United States
territory, were concerned, was limited to the period during which the British, in the first case, retained
possession of Castine, and the United States, in the second, retained possession of Tampico. n
referring to the Confederate Government during the Civil War, as mentioned in the Thorington case,
the court again says in effect that the actual supremacy of the Confederate Government over a
portion of the territory of the Union was the only reason for holding that its inhabitants could not but
obey its authority. But the court was careful to limit this to the time when that actual supremacy
existed, when it said: . . . individual resistance to its authority then would have been futile and,
therefore, unjustifiable." (Emphasis ours.)
Because of its pertinence, we beg leave to quote the following paragraph from that leading decision:
There is nothing in the language used in Thorington vs. Smith (supra), which conflicts with
these views. n that case, the Confederate Government is characterized as one of
paramount force, and classed among the governments of which the one maintained by great
Britain in Castine, from September 1814, to the Treaty of Peace in 1815, and the one
maintained by the United States in Tampico, during our War with Mexico, are examples.
Whilst the British retained possession of Castine, the inhabitants were held to be subject to
such laws as the British Government chose to recognize and impose. Whilst the United
States retainedpossession of Tampico, it was held that it must regarded and respected as
their territory. The Confederate Government, the court observed, differed from these
temporary governments in the circumstance that its authority did not justifying acts of hostility
to the United States, "Made obedience to its authority in civil and local matters not only a
necessity, but a duty." All that was meant by this language was, that as the actual
supremancy of the Confederate Government existed over certain territory, individual
resistance to its authority then would have been futile and, therefore, unjustifiable. In the face
of an overwhelming force, obedience in such matters may often be a necessity and, in the
interest of order, a duty. No concession is thus made to the rightfulness of the authority
exercised. (Williams vs. Bruffy, 24 Law ed., 719; emphasis ours.)
The majority opinion, in considering valid the proceedings in question, invokes the rule that when a
belligerent army occupies a territory belonging to the enemy, the former through its Commander in
Chief, has the power to establish thereon what the decisions and treaties have variously
denominated provisional or military government, and the majority holds that the Japanese-
sponsored government in the Philippines was such a government. Without prejudice to later
discussing the effects which the renunciation of war as an instrument of national policy contained in
our Commonwealth Constitution, as well as in the Briand-Kellog Pact, must have produced in this
rule in so far as the Philippines is concerned, let us set forth some considerations apropos of this
conclusion of the majority. f the power to establish here such a provisional government is
recognized in the Commander in Chief of the invasion army, why should we not recognize at least
an equal power in the Commander in Chief of the liberation army to overthrow that government will
all of its acts, at least of those of an executory nature upon the time of liberation? Considering the
theory maintained by the majority, it would seem that they would recognize in the Japanese
Commander in Chief the power to overthrow the Commonwealth Government, and all of its acts and
institutions if he had choosen to. Why should at least an equal power be denied the Commander in
Chief of the United States Army to overthrow the substitute government thus erected by the enemy
with all of its acts and institutions which are still not beyond retrieve? Hereafter we shall have
occasion to discuss the aspects of this question from the point of view of policy or the practical
convenience of the inhabitants. f the Japanese Commander in Chief represented sovereignty of
Japan, the American Commander in Chief represented the sovereignty of the United States, as well
as the Government of the Commonwealth. f Japan had won this war, her paramount military
supremacy would have continued to be exerted upon the Filipino people, and out of sheer physical
compulsion this country would have had to bow to the continuance of the puppet regime that she
had set up here for an indefinite time. n such a case, we admit that, not because the acts of that
government would then have intrinsically been legal and valid, but simply because of the paramount
military force to which our people would then have continued to be subjected, they would have had
to recognize as binding and obligatory the acts of the different departments of that government. But
fortunately for the Filipinos and for the entire civilized world, Japan was defeated. And now ask:
Now that Japan has been defeated, why should the Filipinos be still bound to respect or recognize
validity in the acts of the Japanese-sponsored government which has been so severely condemned
by both the heads of the United States and our Commonwealth Government throughout the duration
of the war? f we were to draw a parallel between that government and that which was established
by the Confederate States during the American Civil War, we will find that both met with ultimate
failure. And, in my opinion, the conclusion to be drawn should be the same in both cases.
As held by the United States Supreme Court in Williams vs. Bruffy (supra), referring to the
Confederate Government, its failure carried with it the dissipation of its pretentions and the breaking
down in pieces of the whole fabric of its government. The Court said among other things:
The immense power exercised by the government of the Confederate States for nearly four
years, the territory over which it extended, the vast resources it wielded, and the millions who
acknowledged its authority, present an imposing spectacle well fitted to mislead the mind in
considering the legal character of that organization. t claimed to represent an independent
nation and to posses sovereign powers; as such to displace to jurisdiction and authority of
the United States from nearly half of their territory and, instead of their laws, to substitute and
enforce those of its own enactment. ts pretentions being resisted, they were submitted to the
arbitrament of war. n that contest the Confederacy failed; and in its failure its pretentions
were dissipated, its armies scattered, and the whole fabric of its government broken in
pieces. (24 Law, ed., 719; emphasis ours.)
By analogy, if the Japanese invasion and occupation of the Philippines had been lawful which,
however, is not the case and if Japan had succeeded in permanently maintaining the government
that she established in the Philippines, which would have been the case had victory been hers, there
would be more reason for holding the acts of that government valid, but because Japan has lost the
war and, therefore, failed in giving permanence to that government, the contrary conclusion should
legitimately follow.
The validity of legislation exercised by either contestant "depends not upon the existence of
hostilities but upon the ultimate success of the party which it is adopted" (emphasis ours). And,
referring to the overthrow of the of the Confederacy, the Court, said, "when its military forces were
overthrown, it utterly perished, and with it all its enactments" (emphasis ours)
The majority cite on page 9-10 of their opinion a passage from the same case of
Williams vs. Bruffy, supra, which is a mere obiter dictum. The majority opinion says that in this
passage the Court was "discussing the validity of the acts of the Confederate States." n the first
place, an examination of the decision will reveal that the controversy dealt with an act of
the Confederate Government, not of the Confederate States individually; and in the second place,
the quoted passage refers to something which was not in issue in the case, namely, the acts of the
individual States composing the Confederacy. But even this passage clearly places the case at bar
apart from the Court's pronouncement therein. The quoted passage commences by stating that "The
same general form of government the same general laws for the administration of justice and the
protection of private rights, which has existed in the States prior to the rebellion, remanded during
(its) continuance and afterwards. "n the case at bar, the same general form of the Commonwealth
Government did not continue under the Japanese, for the simple reason that one of the first acts of
the invaders was to overthrow the Commonwealth Constitution and, therefore, the constitutional
government which existed thereunder, as an effect of the following acts and decrees of the
Commander in Chief of the mperial Japanese Forces:
1. Order No. 3, dated February 20, 1942 of the Commander in Chief of the mperial Japanese
Forces to the Chairman of the Philippine Executive Commission directed that, in the exercise of
legislative, executive and judicial powers in the Philippines, the "activities" of the "administrative
organs and judicial courts in the Philippines shall be based upon the existing status, order,
ordinances and the Commonwealth Constitution (1 Official Journal of the Japanese Military
Administration, page 34). Under the frame of government existing in this Commonwealth upon the
date of the Japanese invasion, the Constitution was the very fountain-head of the validity and effects
of all the "status, orders, and ordinances" mentioned by the Japanese Commander in Chief, and in
overthrowing the Constitution he, in effect, overthrew all of them.
2. nstruction No. 6 of the Japanese Military Administration (Vol. 1, usages 36 et seq., Official
Gazette, edited at the Office of the Executive Commission) gave the "Detailed nstruction Based on
Guiding Principle of the Administration," and among other things required "The entire personnel shall
be required to pledge their loyalty to the mperial Japanese Forces. . . ." (This, of course, was
repugnant to the frame of government existing here under the Commonwealth Constitution upon the
date of invasion.)
3. Proclamation dated January 3, 19452 of the Japanese Commander in Chief provided in
paragraph 3 that "The Authorities and the People of the Commonwealth should sever their relations
with the U.S. o . . ." (This is, likewise, repugnant to the Commonwealth Constitution and the to the
Government of that Commonwealth Constitution and to the Government of that Commonwealth
which was expressly made subject to the supreme sovereignty of the United States until complete
independence is granted, not by the mere will of the United States, but by virtue of an agreement
between that Government and ours, under the Tydings-McDuffie Act.)
The individual States of the Confederate and their governments existed prior to the Civil War and
had received the sanction and recognition of the Union Government, for which the Federal Supreme
Court was speaking in the Williams-Bruffy case; while the Japanese-sponsored governments of the
"Philippine Executive Commission" and the Republic of the Philippines" neither existed here before
the war nor had received the recognition or sanction of either the United States or the
Commonwealth Government nay, they had received the most vigorous condemnation of both.
The Court further says in Williams vs. Bruffy (supra):
No case has been cited in argument, and we think unsuccesfully attempting to establish a
separate revolutionary government have been sustained as a matter of legal right. As justly
observed by the late Chief Justice in the case of Shortridge vs. Macon, Abb. U.S., 58,
decided at the circuit, and, in all material respects like the one at bar, "Those who engage in
rebellion must consider the consequences. f theysucceed, rebellion becomes revolution,
and the new government will justify is founders. f they fail, all their acts hostile to the rightful
government are violations of law, and originate no rights which can be recognized by the
courts of the nation whose authority and existence have been alike assailed. S.C., Chase,
Dec., 136. (Williams vs. Bruffy, 96 U.S., 176; 24 Law. ed., 716, 718.) (Emphasis ours.)
am of opinion that the principles thus enunciated for the case of an unsuccessful rebellion should
be applied with greater force to the case of a belligerent who loss the war. And since the founding of
the Japanese-sponsored government in the Philippines was designed to supplant and did actually
supplant the rightful government and since all its acts could not but a hostile to the latter (however
blameless the officials who acted under enemy duress might be), and since Japan failed, all said
acts, particularly those of the Japanese-sponsored court in said civil case No. 3012, "are violations
of law, and originate no rights which can be recognized by the courts of the nation whose authority
and existence have been alike assailed", quoting the language of the court in Shortridgevs. Macon,
cited by Mr. Justice Field in Williams vs. Bruffy, supra (24 Law. ed., 718).

(a) The government styled as, first, the "Philippine Executive Commission" and later as the
Republic of the Philippines", established here by the Commander in Chief of the mperial
Japanese Forces or by the his order was not a de facto government--the so-called Court of
First nstance of Manila was not a de factocourt and the who presided it was not a de
facto judge;
(b) The rules of nternational Law regarding the establishment of a de facto government in
territory belonging to a belligerent but occupied or controlled by an opposing belligerent are
inapplicable to the governments thus established here by Japan.
Under the doctrine of Williams vs. Bruffy, supra, and the pertinent cases therein cited, the short-lived
provisional government thus established by the Japanese in the Philippines should be classified, at
best, as a government of paramount force. But this is not all. The Constitution of this Commonwealth
which has been expressly approved by the United States Government, in Article , section 3, under
the heading "Declaration of Principles", renounces war as an instrument of national policy. This
renunciation of war as an instruments of national policy follows an equal renunciation in the Briand-
Kellog Pact. The rules of nternational Law , cited in support of the power or right of a belligerent
army of occupation to set up a provisional government on occupied enemy territory, were evolved
prior to the first World War, but the horrors and devastations of that war convinced, at least the
governments of the United States and France, that they should thereafter renounce war as an
instrument of national policy, and they consequently subscribed the Briand-Kellog Pact. Those
horrors and devastations were increased a hundred fold, if not more, in this second World War, but
even before this war occurred, our own people, through our Constitutional delegates, who framed
the Commonwealth Constitution also adopted the same doctrine, and embodied an express
renunciation of war as an instrument of national policy in the instrument that they drafted. t is true
that in section 3, Article , above-cited, our Constitution adopts the generally accepted principles of
nternational Law as a part of the law of the Nation. But, of course, this adoption is exclusive of those
principles of nternational Law which might involve recognition of war as an instrument of national
policy. t is plain that on the side of the Allies, the present war is purely defensive. When Japan
started said war, treacherously and without previous declaration, and attacked Pearl Harbor and the
Philippines on those two fateful days of December 7 and 8, 1941, she employed war as an
instrument of the national policy. Under the Briand-Kellog Pact and our Commonwealth Constitution,
the United States and the Commonwealth Government could not possibly have recognized in Japan
any right, as against them, to employ that war as an instrument of her national policy, and,
consequently, they could not have recognized in Japan power to set up in the Philippines the puppet
government that she later set up, because such power would be a mere incident or consequence of
the war itself. The authorities agree that such a power, under the cited rules, is said to a right derived
from war. (67 C.J., p. 421, sec. 171.) There can be no question that the United States and the
Commonwealth Governments were free to refuse to be bound by those rules when they made their
respective renunciations above referred to. ndeed, all the United Nations have exercised this free
right in their Charter recently signed at San Francisco.
As necessary consequence of this, those rules of nternational Law were no longer applicable to the
Philippines and to the United States at the time of the Japanese invasion as a corollary, it follows
that we have no legal foundation on which to base the proposition that the acts of that Japanese-
sponsored government in the Philippines were valid and binding. Moreover, am of opinion, that
although at the time of the Japanese invasion and up to the present, the United States retains over
the Philippines, a certain measure of sovereignty, it is only for certain specified purposes
enumerated in the Tydings-McDufie Act of the Commonwealth Constitution. (Ordinance appended to
the Constitution.) And our territory was at the time of the Japanese invasion not a territory of the
United States, within the meaning of the laws of war governing war-like operations on enemy
territory. Our territory is significantly called "The National Territory" in Article of our Constitution and
this bears the stamps of express approval of the United States Government. The Philippines has
been recognized and admitted as a member of the United Nations. We, therefore, had our own
national and territorial identity previous to that invasion. Our nation was not at war with the Filipinos.
And line with this, the Japanese army, in time, released Filipino war prisoners captured in Bataan. Lt.
Gen. Maeda, Chief of Staff, mperial Japanese Forces, in his speech of January 2, 1942, said:
. . . we had not the slighest intensions to make your people our enemy; rather we considered
them as our friends who will join us has hand-in-hand in the establishment of an orderly
Greater East Asia. . . ., (Official Gazette, edited at the Office of the Executive Commission,
Vol. , p. 55.)
f the Philippines was a neutral territory when invaded by the Japanese, the following principles from
Lawrence, nternational Law (7th ed.), p. 603, are pertinent:
The Duties of Belligerent States Towards Neutral States. . . . To refrain from carrying on
hostilities within neutral territory. We have already seen that, though this obligation was
recognized in theory during the infancy of nternational law, it was often very imperfectly
observed in practice. But in modern times it has been strickly enforced, and any State which
knowingly ordered warlike operations to be carried on in neutral territory . . . would bring
down upon itself the reprobation of civilized mankind. Hostilities may be carried on in the
territory of either belligerent, on the high seas, and in territory belonging to no one. Neutral
land and neutral territorial waters are sacred. No acts of warfare may lawfully take place
within them. . . . (Emphasis ours.)
n all the cases and authorities supporting the power or right to set up a provisional government, the
belligerent had the right to invade or occupy the territory in the first instance. Such was not the case
with the Philippines. President Roosevelt, in his message to the Filipino people, soon after the
landing of American Forces in Leyte, on October 20, 1944, characterized Japan's invasion and
occupation of the Philippines as "the barbarous, unprovoked and treacherous attack upon the
Philippines," and he announced the American people's "firm determination to punish the guilty." (41
Off. Gaz., 149.) (Emphasis ours.) The illustrious leader of the United Nations could not have in more
unmistakable terms the utter illegality of that invasion and occupation. f the establishment of a
provinsional government in occupied territory by a belligerent is "a mere application or extension of
the force by which the invasion or occupation was effected" (67 C.J., p. 421, sec 171), the illegality
of the invasion, would necessarily permeate the government, which was its mere application or
extention.
The fact that shortly before December 8, 1941, the date of the "barbarous, unprovoked and
treacherous attack," the meager and almost untrained forces of the Philippine Army had been
inducted into the American Army, did not change the neutral status of the Philippines. That military
measure had been adopted for purely defensive purposes. Nothing could be farther from the minds
of the government and military leaders of the United States and the Philippines in adopting it than to
embark upon any aggressive or warlike enterprise against any other nation. t is an old and honored
rule dating as far back as the 18th century that even solemn promises of assistance made before the
war by a neutral to a nation which later becomes a belligerent, would not change the status of the
neutral even if such promises were carried out, so long as they were made for purely defensive
purposes. n the words of Vattel "when a sovereign furnishes the succor due in virtue of a former
defensive alliance, he does not associate himself in the war. Therefore he may fulfill his
engagements and yet preserve an exact neutrality." (Lawrence, Principles of nternational Law [7th
ed.], pp. 585, 586.)
f the Filipinos had, from contemptible cowardice and fear, allowed their shores to be invaded, and
their territory occupied by the Japanese without resistance, such invasion occupation would
undoubtedly have been considered in violation of nternational Law. Should the Filipinos be
punished for having had the patriotism, bravery, and heroism to fight in defense of the sacredness of
their land, the sanctity of their homes, and the honor and dignity of their government by giving
validity, in whatever limited measure, to the lawless acts of the ruthless enemy who thus overran
their country, and robbed them of the tranquility and happiness of their daily lives? And yet, to my
mind, to give any measure of validity or binding effect to the proceedings of the Japanese-sponsored
Court of First nstance of Manila, involved herein, would be to give that much validity or effect to the
acts of those same invaders. To equalize the consequences of a lawful and a wrongful invasion of
occupation, would be to equalize right and wrong, uphold the creed that might makes right, and
adopt "the law of the jungle."
f said Japanese-sponsored government was not a de facto government, it would seem clearly to
follow that its "Court of First nstance of Manila" was not a de facto court. But it should additionally be
stated that for it be a de facto court, its judge had to be a de facto judge, which he could not be, as
presently demonstrated.
As said by President Osmea, in replying to the speech of General of the Army MacArthur when the
latter turned over to him the full powers and responsibilities of the Commonwealth Government, on
February 27, 1945:
xxx xxx xxx
The time has come when the world should know that when our forces surrendered in Bataan
and Corregidor, resistance to the enemy was taken up by the people itself resistance
which was inarticulate and disorganized in its inception but which grew from the day to day
and from island until it broke out into an open warfare against the enemy.
The fight against the enemy was truly a people's war because it counted with the
wholehearted support of the masses. From the humble peasant to the barrio school teacher,
from the volunteer guard to the women's auxilliary service units, from the loyal local official to
the barrio folk each and every one of those contributed his share in the great crusade for
liberation.
The guerrillas knew that without the support of the civilian population, they could not survive.
Whole town and villages dared enemy reprisal to oppose the hated invader openly or give
assistance to the underground movement. . . . (41 Off. Gaz., 88, 89.)
Under these facts, taken together with the General of the Army MacArthur's accurate statement that
the "Republic of the Philippines" had been established under enemy duress, it must be presumed
to say the least that the judge who presided over the proceedings in question during the
Japanese occupation, firstly, accepted his appointment under duress; and secondly, acted by virtue
of that appointment under the same duress. n such circumstances he could not have acted in
the bona fide belief that the new "courts" created by or under the orders of the Japanese Military
Commander in chief had been legally created--among them the "Court of first nstance of Manila,"
that the Chairman of the "Philippine Executive Commission" or the President of the "Republic of the
Philippines", whoever appointed him, and conferred upon him a valid title to his office and a
legitimate jurisdiction to act as such judge. Good faith is essential for the existence of a de
facto judge (Tayko vs. Capistrano, 53 Phil., 866, 872). The very idea of enemy duress would
necessarily imply that but for the duress exerted upon him by the enemy he would have refused to
accept the appointment and to act thereunder. And why? Because he must be presumed to know
that the office to which he was thus appointed had been created by the enemy in open defiance of
the Commonwealth Constitution and the laws and regulation promulgated by our Commonwealth
Government, and that his acceptance of said office and his acting therein, if willfully done, would
have been no less than an open hostility to the very sovereignty of the United Sates and to the
Commonwealth Government, and a renunciation of his allegiance to both. There is no middle ground
here. Either the judge acted purely under duress, in which case his acts would be null and void; or
maliciously in defiance of said governments, in which case his acts would be null and void for more
serious reasons.
The courts created here by the Japanese government had to look for the source of their supposed
authority to the orders of the Japanese Military Commander in chief and the so-called Constitution of
the "Republic of the Philippines," which had been adopted in a manner which would shock the
conscience of democratic peoples, and which was designed to supplant the Constitution which had
been duly adopted by the Filipino people in a Constitutional Convention of their duly elected
Constitutional Delegates. And it was decreed that the Commander in chief of the mperial Japanese
Forces "shall exercise jurisdiction over judicial courts." (Vol. 1, p. 7, Official Journal of the Japanese
Military Administration, cited on pp. 2, 3, of the order of the respondent judge complained of and
marked Exhibit H of the petition for mandamus.) How can our present courts legitimately recognize
any efficacy in the proceedings of such an exotic judicial system, wherein the Commander in Chief
of the mperial Japanese Forces possessed the highest judicial jurisdiction?

The courts of those governments were entirely different from our Commonwealth courts
before and after the Japanese occupation.
Executive Order No. 36 of the President of the Philippines, dated March 10, 1945, in its very first
paragraph, states the prime concern of the government "to re-establish the courts as fast as
provinces are liberated from the Japanese occupation." f the courts under the Japanese-sponsored
government of the "Republic of the Philippines" were the same Commonwealth courts that existed
here under the Constitution at the time of the Japanese invasion, President Osmea would not be
speaking of re-establishing those courts in his aforesaid Executive Order. For soothe, how could
those courts under the "Republic of the Philippines" be the courts of the Commonwealth of the
Philippines when they were not functioning under the Constitution of the Commonwealth and the
laws enacted in pursuance of said Constitution? The jurisdiction of the Commonwealth courts was
defined and conferred under the Commonwealth Constitution and the pertinent legislation enacted
thereunder, that of the Japanese-sponsored courts was defined and conferred by the orders and
decrees of the Japanese Commander in Chief, and, perhaps, the decrees of the "Philippine
Executive Commission" and the laws of the so-called Legislature under the Republic, which was not
composed of the elected representatives of the people. The Justices and Judges of the
Commonwealth courts had to be appointed by the President of the Commonwealth with confirmation
by the Commission on Appointments, pursuant to the Commonwealth Constitution. The Chief
Justice of the Supreme Court, under the "Philippine Executive Commission" was appointed by the
Commander in Chief of the mperial Japanese Forces, and the Associate Justices of the Supreme
Court, the Presiding Justice and Associate Justices of the Court of Appeals, the Judges of first
nstance and of all inferior courts were appointed by the Chairman of the Executive Commission, at
first, and later, by the President of the Republic, of course, without confirmation by the Commission
on Appointments under the Commonwealth Constitution. The Chief Justice and Associate Justices
of the Supreme Court, the President and Associate Justices of the Court of Appeals, and the Judges
of First nstance and of all inferior courts in the Commonwealth judicial system, had to swear to
support and defend the Commonwealth Constitution, while this was impossible under the Japanese-
sponsored government. n the Commonwealth judicial system, if a Justice or Judge should die or
incapacitated to continue in the discharge of his official duties, his successor was appointed by the
Commonwealth President with confirmation by the Commission on Appointments, and said
successor had to swear to support and defend the Commonwealth Constitution; in the exotic judicial
system implanted here by the Japanese, if a Justice or Judge should die or incapacitated, his
successor would be appointed by the Japanese Commander in Chief, if the dead or incapacitated
incumbent should be the Chief Justice of the Supreme Court, or otherwise, by the Chairman of the
"Executive Commission" or the President of the "Republic", of course without confirmation by the
Commission on Appointments of the Commonwealth Congress, and, of course, without the
successor swearing to support and defend the Commonwealth Constitution.
f, as we believe having conclusively shown, the Japanese-sponsored courts were not the same
Commonwealth courts, the conclusion is unavoidable that any jurisdiction possessed by the former
and any cases left pending therein, were not and could not be automatically transfered to the
Commonwealth courts which we re-established under Executive Order No. 36. For the purpose, a
special legislation was necessary.
Executive Order No. 37, in my humble opinion, does not, as held by the majority, imply that the
President recognized as valid the proceedings in all cases appealed to the Court of Appeals. Section
2 of that order simply provides that all cases which have been duly appealed to the Court of Appeals
shall be transmitted to the Supreme Court for final decision. The adverb "duly" would indicate that
the President foresaw the possibility of appeals not having been duly taken. All cases appealed to
the Court of Appeals before the war and the otherwise duly appealed, would come under the phrase
"duly appealed" in this section of the Executive Order. But considering the determined and firm
attitude of the Commonwealth Government towards those Japanese-sponsored governments since
the beginning, it would seem inconceivable that the President Osmea, in section 2 of Executive
Order No. 37, intended to include therein appeals taken to the Japanese-sponsored Court of
Appeals, or from the Japanese-sponsored inferior courts. t should be remembered that in the
Executive Order immediately preceeding and issued on the same date, the President speaks of re-
establishing the courts as fast as provinces were liberated from the Japanese occupation.
V
The question boils down to whether the Commonwealth Government, as now restored, is to
be bound by the acts of either or both of those Japanese-sponsored governments.
n the last analysis, in deciding the question of validity or nullity of the proceedings involved herein,
we are confronted with the necessity to decide whether the Court of first nstance of Manila and this
Supreme Court, as re-established under the Commonwealth Constitution, and the entire
Commonwealth Government, are to be bound by the acts of the said Japanese-sponsored court and
government. To propound this question is, to my mind, to answer it most decidedly in the negative,
not only upon the ground of the legal principles but also for the reasons of national dignity and
international decency. To answer the question in the affirmative would be nothing short for legalizing
the Japanese invasion and occupation of the Philippines. ndeed, it would be virtual submission to
the dictation of an invader our people's just hatred of whom gave rise to the epic Philippine
resistance movement, which has won the admiration of the entire civilized world.
V
Even considerations of policy or practical convenience militate against petitioner's
contention.
n this connection, the respondent judge, in his order of June 6, 1945, complained of, has the
following to say:
t is contended, however, that the judicial system implanted by the Philippine Executive
Commission and the Republic was the same as that of the Commonwealth prior to Japanese
occupation; that the laws administered and enforced by said courts during the existence of
said regime were the same laws on the statute books of Commonwealth before Japanese
occupation, and that even the judges who presided them were, in many instances, the same
persons who held the position prior to the Japanese occupation. All this may be true, but
other facts are just as stubborn and pitiless. One of them is that said courts were of a
government alien to the Commonwealth Government. The laws they enforced were, true
enough, laws of the Commonwealth prior to Japanese occupation, but they had become the
laws and the Courts had become the institutions-of Japan by adoption (U.S. vs. Reiter, 27
F. Case No. 16,146), as they became later on the laws and institution of the Philippine
Executive Commission and the Republic of the Philippines. No amount of argument or legal
fiction can obliterate this fact.
Besides, am of the opinion that the validity of the acts of the courts in the "judicial system implanted
by the Philippine Executive Commission and the Republic "would not depend upon the laws that
they "administered and enforced", but upon the authority by virtue of which they acted. f the
members of this Court were to decide the instant case in strict accordance with the Constitution and
the laws of the Commonwealth but not by the authority that they possess in their official capacity as
the Supreme Court of the Philippines, but merely as lawyers, their decision would surely be null and
void. And yet, am firmly of opinion that whoever was the "judge" of the Japanese sponsored Court
of First nstance of Manila who presided over the said court when the proceedings and processes in
the dispute were had, in acting by virtue of the supposed authority which he was supposed to have
received from that government, did so with no more legal power than if he had acted as a mere
lawyer applying the same laws to the case. f duplication of work or effort, or even if confussion,
should be alleged to possibly arise from a declaration of nullity or judicial proceedings had before
those Japanese-sponsored courts, it should suffice to answer that the party so complaining in
voluntarily resorting to such courts should be prepared to assume the consequences of his voluntary
act. On the other hand, his convenience should not be allowed to visit upon the majority of the
inhabitants of this country, the dire consequences of a sweeping and wholesale validation of judicial
proceedings in those courts. Let us set forth a few considerations apropos of this assertion. t is a
fact of general knowledge that during the Japanese occupation of the Philippines, the overwhelming
majority of our people and other resident inhabitants were literally afraid to go any place where there
were Japanese sentries, soldiers or even civilians, and that these sentries were posted at the
entrance into cities and towns and at government offices; that the feared Japanese "M. P.'s" or
Kempeitai's" were a constant terror to them; and lastly, that the greater number who lived or had
evacuated to places for from the Japanese, were found precisely in the cities and towns where the
courts were located; and as a consequence, the great majority of the people were very strongly
adverse to traveling any considerable distance from their homes and were, one might say, in
constant hiding. Add to these circumstances, the fact of the practical absence of transportation
facilities and the no less important fact of the economic structure having been so dislocated as to
have impoverished the many in exchange for the enrichment of the few and we shall have a fair
picture of the practical difficulties which the ordinary litigant would in those days have encountered in
defending his rights against anyone of the favored few who would bring him to court. t should be
easy to realize how hard it was for instances, to procure the attendance of witnesses, principally
because of the fact that most of them were in hiding or, at least, afraid to enter the cities and towns,
and also because of then generally difficult and abnormal conditions prevailing. Under such
conditions, cases or denial of a party's day in court expected. Such denial might arise from many a
cause. t might be party's fear to appear before the court because in doing so, he would have had to
get near the feared Japanese. t might be because he did not recognize any legal authority in that
court, or it might be his down-right repugnance of the hated enemy. And dare say that among such
people would be found more than seventeen million Filipinos. These are but a few of countless
cause. So that if some form of validation of such judicial proceedings were to be attempted, all
necessary safeguards should be provided to avoid that in any particular case the validation should
violate any litigant's constitutional right to his day in court, within the full meaning of the phrase, or
any other constitutional or statutory right of his. More people, am afraid, would be prejudiced than
would be benefited by a wholesale validation of said proceedings.
Much concern has been shown for the possible confusion which might result from a decision
declaring null and void the acts processes of the Japanese-sponsored governments in the
Philippines. think, this aspect of the question has been unduly stressed. The situation is not without
remedy, but the remedy lies with the legislature and not with the courts. As the courts cannot create
a new or special jurisdiction for themselves, which is a legislative function, and as the situation
demands such new or special jurisdiction, let the legislature act in the premises. For instance, the
Congress may enact a law conferring a special jurisdiction upon the courts of its selection, whereby
said courts may, after hearing all the parties interested, and taking all the necessary safeguards, so
that, a party's day in court or other constitutional or statutory right under the Commonwealth
Government should not be prejudiced by any of said acts, processes or proceedings, particullarly,
those in Japanese-sponsored courts, and subject to such other conditions as the special law may
provide, validate the corresponding acts, processes or proceedings. This, to my mind, would be
more conducive to a maximum of benefit and a minimum of prejudice to the inhabitants of this
country, rather than the procedure favored by the majority.
Finally, let us not equalize the conditions then prevailing in Manila to that prevailing in the provinces,
where the greater number of the people where then living outside the towns, in the farms and the
hills. These people constitute the great majority of the eighteen million Filipinos. To them the
semblance of an administration of justice which Japanese allowed, was practically unknown. But
they constituted the majority of loyal citizens to whom President Roosevelt's message of October 23,
1943 refers. They the majority of our people had an unshaken faith in the arrival of American
aid here and the final triumph of the Allied cause. They were willing to wait for the restoration of their
rightful government, with its courts and other institutions, for the settlement of their differences. May
in their common hardship and sufferings under yoke of foreign oppression, they had not much time
to think of such differences, if they did not utterly forget them. Their undoubted hatred of the invader
was enough to keep them away from the judicial system that said invader allowed to have. Those
who voluntarily went to the courts in those tragic days belong to the small minority.
As to the public order why! any public order which then existed was not due to the courts or other
departments of the puppet government. t was maintained at the point of the bayonet by the
Japanese army, and in their own unique fashion.
EN BANC
G.R. No. 154705. June 26, 2003]
THE REPUBLIC OF INDONESIA, HIS EXCELLENCY AMBASSADOR
SOERATMIN, and MINISTER COUNSELLOR AZHARI
KASIM,petitioners ;s JAMES VINZON, doing business under
the name and styIe of VINZON TRADE AND
SERVICES, respondent.
D E C I S I O N
AZCUNA, :
This is a petition for review on certiorari to set aside the Decision of the
Court of Appeals dated May 30, 2002 and its Resolution dated August 16,
2002, in CA-G.R. SP No. 66894 entitled "The Republic of Indonesia, His
Excellency Ambassador Soeratmin and Minister Counselor Azhari Kasim v.
Hon. Cesar Santamaria, Presiding Judge, RTC Branch 145, Makati City, and
James Vinzon, doing business under the name and style of Vinzon Trade and
Services."
Petitioner, Republic of ndonesia, represented by its Counsellor, Siti
Partinah, entered into a Maintenance Agreement in August 1995 with
respondent James Vinzon, sole proprietor of Vinzon Trade and Services. The
Maintenance Agreement stated that respondent shall, for a consideration,
maintain specified equipment at the Embassy Main Building, Embassy Annex
Building and the Wisma Duta, the official residence of petitioner Ambassador
Soeratmin. The equipment covered by the Maintenance Agreement are air
conditioning units, generator sets, electrical facilities, water heaters, and water
motor pumps. t is likewise stated therein that the agreement shall be effective
for a period of four years and will renew itself automatically unless cancelled
by either party by giving thirty days prior written notice from the date of
expiry.
[1]

Petitioners claim that sometime prior to the date of expiration of the said
agreement, or before August 1999, they informed respondent that the renewal
of the agreement shall be at the discretion of the incoming Chief of
Administration, Minister Counsellor Azhari Kasim, who was expected to arrive
in February 2000. When Minister Counsellor Kasim assumed the position of
Chief of Administration in March 2000, he allegedly found respondent's work
and services unsatisfactory and not in compliance with the standards set in
the Maintenance Agreement. Hence, the ndonesian Embassy terminated the
agreement in a letter dated August 31, 2000.
[2]
Petitioners claim, moreover,
that they had earlier verbally informed respondent of their decision to
terminate the agreement.
On the other hand, respondent claims that the aforesaid termination was
arbitrary and unlawful. Respondent cites various circumstances which
purportedly negated petitioners' alleged dissatisfaction over respondent's
services: (a) in July 2000, Minister Counsellor Kasim still requested
respondent to assign to the embassy an additional full-time worker to assist
one of his other workers; (b) in August 2000, Minister Counsellor Kasim asked
respondent to donate a prize, which the latter did, on the occasion of the
ndonesian ndependence Day golf tournament; and (c) in a letter dated
August 22, 2000, petitioner Ambassador Soeratmin thanked respondent for
sponsoring a prize and expressed his hope that the cordial relations happily
existing between them will continue to prosper and be strengthened in the
coming years.
Hence, on December 15, 2000, respondent filed a complaint
[3]
against
petitioners docketed as Civil Case No. 18203 in the Regional Trial Court
(RTC) of Makati, Branch 145. On February 20, 2001, petitioners filed a Motion
to Dismiss, alleging that the Republic of ndonesia, as a foreign sovereign
State, has sovereign immunity from suit and cannot be sued as a party-
defendant in the Philippines. The said motion further alleged that
Ambassador Soeratmin and Minister Counsellor Kasim are diplomatic agents
as defined under the Vienna Convention on Diplomatic Relations and
therefore enjoy diplomatic immunity.
[4]
n turn, respondent filed on March 20,
2001, an Opposition to the said motion alleging that the Republic of ndonesia
has expressly waived its immunity from suit. He based this claim upon the
following provision in the Maintenance Agreement:
'Any legal action arising out oI this Maintenance Agreement shall be settled
according to the laws oI the Philippines and by the proper court oI Makati City,
Philippines.
Respondent's Opposition likewise alleged that Ambassador Soeratmin and
Minister Counsellor Kasim can be sued and held liable in their private
capacities for tortious acts done with malice and bad faith.
[5]

On May 17, 2001, the trial court denied herein petitioners' Motion to
Dismiss. t likewise denied the Motion for Reconsideration subsequently filed.
The trial court's denial of the Motion to Dismiss was brought up to the
Court of Appeals by herein petitioners in a petition for certiorari and
prohibition. Said petition, docketed as CA-G.R. SP No. 66894, alleged that the
trial court gravely abused its discretion in ruling that the Republic of ndonesia
gave its consent to be sued and voluntarily submitted itself to the laws and
jurisdiction of Philippine courts and that petitioners Ambassador Soeratmin
and Minister Counsellor Kasim waived their immunity from suit.
On May 30, 2002, the Court of Appeals rendered its assailed decision
denying the petition for lack of merit.
[6]
On August 16, 2002, it denied herein
petitioners' motion for reconsideration.
[7]

Hence, this petition.
n the case at bar, petitioners raise the sole issue of whether or not the
Court of Appeals erred in sustaining the trial court's decision that petitioners
have waived their immunity from suit by using as its basis the
abovementioned provision in the Maintenance Agreement.
The petition is impressed with merit.
nternational law is founded largely upon the principles of reciprocity,
comity, independence, and equality of States which were adopted as part of
the law of our land under Article , Section 2 of the 1987 Constitution.
[8]
The
rule that a State may not be sued without its consent is a necessary
consequence of the principles of independence and equality of States.
[9]
As
enunciated in Sanders v. Veridiano ,
[10]
the practical justification for the
doctrine of sovereign immunity is that there can be no legal right against the
authority that makes the law on which the right depends. n the case of
foreign States, the rule is derived from the principle of the sovereign equality
of States, as expressed in the maxim par in parem non habet imperium. All
states are sovereign equals and cannot assert jurisdiction over one
another.
[11]
A contrary attitude would "unduly vex the peace of nations.
[12]

The rules of nternational Law, however, are neither unyielding nor
impervious to change. The increasing need of sovereign States to enter into
purely commercial activities remotely connected with the discharge of their
governmental functions brought about a new concept of sovereign
immunity. This concept, the restrictive theory, holds that the immunity of the
sovereign is recognized only with regard to public acts or acts jure imperii, but
not with regard to private acts or acts jure gestionis.
[13]

n United States v. Ruiz,
[14]
for instance, we held that the conduct of public
bidding for the repair of a wharf at a United States Naval Station is an act jure
imperii. On the other hand, we considered as an act jure gestionis the hiring
of a cook in the recreation center catering to American servicemen and the
general public at the John Hay Air Station in Baguio City,
[15]
as well as the
bidding for the operation of barber shops in Clark Air Base in Angeles City.
[16]

Apropos the present case, the mere entering into a contract by a foreign
State with a private party cannot be construed as the ultimate test of whether
or not it is an act jure imperii or jure gestionis. Such act is only the start of the
inquiry. s the foreign State engaged in the regular conduct of a business? f
the foreign State is not engaged regularly in a business or commercial activity,
and in this case it has not been shown to be so engaged, the particular act or
transaction must then be tested by its nature. f the act is in pursuit of a
sovereign activity, or an incident thereof, then it is an act jure imperii.
[17]

Hence, the existence alone of a paragraph in a contract stating that any
legal action arising out of the agreement shall be settled according to the laws
of the Philippines and by a specified court of the Philippines is not necessarily
a waiver of sovereign immunity from suit. The aforesaid provision contains
language not necessarily inconsistent with sovereign immunity. On the other
hand, such provision may also be meant to apply where the sovereign party
elects to sue in the local courts, or otherwise waives its immunity by any
subsequent act. The applicability of Philippine laws must be deemed to
include Philippine laws in its totality, including the principle recognizing
sovereign immunity. Hence, the proper court may have no proper action, by
way of settling the case, except to dismiss it.
Submission by a foreign state to local jurisdiction must be clear and
unequivocal. t must be given explicitly or by necessary implication. We find
no such waiver in this case.
Respondent concedes that the establishment of a diplomatic mission is a
sovereign function. On the other hand, he argues that the actual physical
maintenance of the premises of the diplomatic mission, such as the upkeep of
its furnishings and equipment, is no longer a sovereign function of the State.
[18]

We disagree. There is no dispute that the establishment of a diplomatic
mission is an act jure imperii. A sovereign State does not merely establish a
diplomatic mission and leave it at that; the establishment of a diplomatic
mission encompasses its maintenance and upkeep. Hence, the State may
enter into contracts with private entities to maintain the premises, furnishings
and equipment of the embassy and the living quarters of its agents and
officials. t is therefore clear that petitioner Republic of ndonesia was acting
in pursuit of a sovereign activity when it entered into a contract with
respondent for the upkeep or maintenance of the air conditioning units,
generator sets, electrical facilities, water heaters, and water motor pumps of
the ndonesian Embassy and the official residence of the ndonesian
ambassador.
The Solicitor General, in his Comment, submits the view that, "the
Maintenance Agreement was entered into by the Republic of ndonesia in the
discharge of its governmental functions. n such a case, it cannot be deemed
to have waived its immunity from suit. As to the paragraph in the agreement
relied upon by respondent, the Solicitor General states that it "was not a
waiver of their immunity from suit but a mere stipulation that in the event they
do waive their immunity, Philippine laws shall govern the resolution of any
legal action arising out of the agreement and the proper court in Makati City
shall be the agreed venue thereof.
[19]

On the matter of whether or not petitioners Ambassador Soeratmin and
Minister Counsellor Kasim may be sued herein in their private capacities,
Article 31 of the Vienna Convention on Diplomatic Relations provides:

. A diplomatic agent shall enjoy immunity Irom the criminal jurisidiction oI the
receiving State. He shall also enjoy immunity Irom its civil and administrative
jurisdiction, ecept in the case oI:
(a) a real action relating to private immovable property situated in the territory oI the
receiving State, unless he holds it on behalI oI the sending State Ior the purposes oI
the mission;
(b) an action relating to succession in which the diplomatic agent is involved as
eecutor, administrator, heir or legatee as a private person and not on behalI oI the
sending State;
(c) an action relating to any proIessional or commercial activity eercised by the
diplomatic agent in the receiving State outside his oIIicial Iunctions.

The act of petitioners Ambassador Soeratmin and Minister Counsellor
Kasim in terminating the Maintenance Agreement is not covered by the
exceptions provided in the abovementioned provision.
The Solicitor General believes that said act may fall under subparagraph
(c) thereof,
[20]
but said provision clearly applies only to a situation where the
diplomatic agent engages inany professional or commercial activity outside
official functions, which is not the case herein.
HEREFORE, the petition is hereby GRANTED. The decision and
resolution of the Court of Appeals in CA G.R. SP No. 66894 are REVERSED
and SET ASDE and the complaint in Civil Case No. 18203 against petitioners
is DSMSSED.
No costs.
SO ORDERED.
Davide, Jr., C.J., Bellosillo, Puno, Vitug, Panganiban, Quisumbing,
Ynares-Santiago, Sandoval-Gutierrez, Carpio, Corona, Carpio-
Morales, and Callejo, Sr., JJ., concur.
Austria-Martinez, J., on leave.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-2529 December 31, 1949
J. A. SISON, petitioner,
vs.
THE BOARD OF ACCOUNTANCY and ROBERT ORR FERGUZON, respondents.
Quijano, Rosete and Tizon for petitioner.
Perkins, Ponce Enrile, Contreras and Gomez for respondent.
Claro M. Recto as amicus curiae.

TORRES,
n his petition for certiorari against the Board of Accountancy and Robert Orr Ferguson, J. A. Sison
prays that this Court render judgment "ordering the respondent Board of Accountancy to revoke the
certificate issued to Robert Orr Ferguson, a British subject admitted without examination because
there does not exist any reciprocity between the Philippines and the United Kingdom regarding the
practice of accountancy."
Upon perusal of the pleadings and for a clear understanding of the issue raised by petitioner the
following facts, which we believe are not disputed, shall be stated:
Pursuant to the provisions of Act No. 342, several persons, British subjects, and the possessors of
certificates as chartered accountants issued by various incorporated private accountant's societies in
England and other parts of the British Empire, were, without examination, granted by the
respondents Board of Accountancy, certificates as public accountants to practice their profession in
this jurisdiction. The respondent Robert Orr Ferguson was granted certificate No. 713-W on January
14, 1939 pursuant to resolution No. 24 of the Board of Accountancy, series of 1938.
Subsequently, the Board of Accountancy, upon the examination of the case of those British
accountants without examination, came to the conclusion that , there being no law which regulates
the practice of accountancy in England, and that the practice of accountancy in England, and that
the practice of accountancy in said country being limited only to the members of incorporated private
accountant's societies, the certificates issued by the nstitutes of chartered accountants and other
similar societies in England and Wales cannot be considered on a par with the public accountant's
certificates issued by the Philippine Board of Accountancy, which is government entity. n view
thereof, the respondent Board of Accountancy "resolved to suspend, . . . the validity of the C.P.A.
certificates of the above-mentioned candidates pending the final revocation thereof should they fail
to prove to the satisfaction of the Board within sixty days' notice that : (a) Filipinos are allowed to
take the professional accountant examination given by the British government, if any, and (b) Filipino
certified public accountants can, upon application, be registered as chartered accountants or granted
similar degrees by the British Government." (Annex B.)lawphi1.n et
Such action of the Board of Accountancy was based on an opinion rendered by the Secretary of
Justice, on October 1, 1946 (Annex A), to the Chartered Accountants in England and Wales does
not meet the requirement of section 41 of Rule 123 of the Rules of Court and that the negative
statement therein, as quoted above, does not establish the existence of reciprocity, which induced
the board to hold that the registration, without examination, of those British subjects as certified
public accountants, is in accordance with the provision of section 122 of Act No. 3105 as amended
by Commonwealth Act No. 342.
However, the Secretary of justice, answering a query from the Secretary of Finance, in an opinion
rendered on February 10, 1947 "on the legality of the suspension or revocation " of the certificates
issued to those British subjects as contemplated in resolution No. 5, series of 1946 of the Board of
Accountancy, was of the opinion that "the board may not suspend or revoke the certificates
previously granted to the ten British accountants herein involved, including respondent Robert Orr
Ferguson, because such action is in contravention of section 13 of Act No. 3105 as amended which
explicitly provides that the suspension or revocation of the certificate issued under the said Act may
be done by the board for unprofessional conduct of the holder or other sufficient cause. The
Secretary of Justice further said that he believes that "the change in administrative interpretation with
respect to the existence of reciprocity between the Philippines and Great Britain as to the practice of
accountancy," does not constitute sufficient cause for the suspension or revocation of the certificates
in question within the meaning of said provision. The opinion of the Secretary of Justice further said
that if those certificates were issued to those British persons on the assumption that there is
"reciprocity between Great Britain and the Philippines as to the practice of certified public
accountancy in the Philippines" a change of administrative interpretation is not favored (42 Am. Jur.,
412).While in the instant case the public policy with respect to the practice of foreign accountants in
this country remains unchanged, the action intended by the Board of Accountancy, to suspend or
revoke the certificates already issued to such persons must be based on some other grounds, such
ignorance, incapacity, deception or fraud on the part of the holder of the certificates.
n the light of the above, the petitioner brought this action mainly on the ground that there is no
reciprocity "between the Philippines and the United Kingdom" as regards the practice of the
profession of certified public accountant, because the certificate submitted by the respondent.
Robert Orr Ferguson "is not a public or financial record, and does not meet the requirements of
section 41, rule 21 [123] of the Rules of the Court." And that the furthermore, the negative statement
that "there is nothing in the laws of the United Kingdom to restrict the right of the Filipino certified
public accountant to practice as professional accountant therein, " does not established the
existence of reciprocity.
Section 12 of Act No. 3105, as amended, reads:
Section 12. Any person who has been engaged in the professional accountancy work in the
Philippine slands for a period of five years or more prior to the date of his application, and
who holds certificates as certified public accountant, or as chartered accountant, or other
similar certificates or degrees in the country of nationality, shall be entitled to registration as
certified public accountant and to receive a certificate of registration as such certified public
accountant from the Board, Provided such country or state does not restrict the right of the
Filipino certified public accountants to practice therein or grants reciprocal rights to Filipino
certified public accountants to practice therein or grants reciprocal rights to Filipinos, and
provided that the application for their registration shall be filed with the Board not later than
December 31,1938.
From the text of the above-quoted section 12 of the Accountancy Law, it is inferred that the
registration as certified public accountant and the issuance of the corresponding certificate as such
certified public accountant, to a person who for five years has been engaged in professional
accountancy work in the Philippines and is a holder of a certificate as certified public accountant, or
as a chartered accountant, or other similar degrees in the country of his origin, is predicated on the
fact that the country of origin of such foreign applicant (a) "does not restrict the right of the Filipino
certified public accountant to practice therein," (b) "grants reciprocal rights to the Filipinos," and (c)
the application for registration "be filed with the Board not later than December 31, 1938."
n the case at bar, while the profession of certified public accountant is not controlled or regulated by
the Government of Great Britain, the country of origin of respondent Robert Orr Ferguson, according
to the record, said respondent had been admitted in this country to the practice of his profession as
certified public accountant on the strength of his membership of the nstitute of Accountants and
Actuaries in Glasgow (England), incorporated by the Royal Charter of 1855. The question of his
entitlement to admission to the practice of his profession in this jurisdiction, does not , therefore,
come under reciprocity, as this principle is known in nternational Law, but it is included in the
meaning of comity, as expressed in the alternative condition of the proviso of the above-quoted
section 12 which says: such country or state does not restrict the right of Filipino certified public
accountants to practice therein.
Mutuality, reciprocity, and comity as bases or elements. nternational Law is founded
largely upon mutuality, reciprocity, and the principle of comity of nations. Comity, in this
connection, is neither a matter of absolute obligation on the one hand, nor of mere courtesy
and good will on the other; it is the recognition which one nation allows within its territory to
the acts of foreign governments and tribunals, having due regard both to the international
duty and convenience and the rights of its own citizens or of other persons who are under
the protection of its laws. The fact of reciprocity does not necessarily influence the
application of the doctrine of comity, although it may do so and has been given consideration
in some instances. (30 Am. Jur., 178; Hilton vs. Guyot, 159 U. S., 113, 40 Law. ed., 95; 16 S.
Ct., 139.)
n Hilton vs. Guyot (supra), the highest court of the United States said that comity "is the recognition
which one nation allows within its territory to the legislative, executive, or judicial acts of another
nation, having due regard both to nternational duty and convenience, and to the rights of its own
citizens or of other persons who are under the protection of its laws. " Again, in Bank of Augusta vs.
Earle, 38 U.S., 13 Pet. 519, 589, Chief Justice Taney, speaking for the court while Mr. Justice Story
well-known author of the treatise on Conflict of Laws was a member of it, and largely adopting
his words, said:
. . . t is needless to enumerate here the instances in which by the general practice of
civilized countries, the laws of the one will, by the comity of nations, be recognized and
executed in another, where the rights of individuals are concerned . . . The comity thus
extended to other nations is no impeachment of sovereignty. t is the voluntary act of the
nation by which it is offered, and is inadmissible when contrary to its policy, or prejudicial to
its interest. But it contributes so largely to promote justice between individuals, and to
produce a friendly intercourse between the sovereignties to which they belong, that courts,
but the comity of the nation, which is administered and ascertained in the same way, and
guided by the same reasoning, by which all other principles of municipal law are ascertained
and guided.
The record shows that the British Minister accredited to the Philippine Republic in two notes
concerning this question, addressed to the President of the Philippines in his capacity as Head of the
Department of Foreign Affairs, said:
. . . there is no governmental control of the accounting profession in the United Kingdom and
any resident of the United Kingdom, of whatever nationality, may engage in the profession of
accounting without formality; and . . . that the high standards of the accounting profession in
the United Kingdom are maintained by a number of private societies whose membership is
restricted to persons who have passed a different professional examination but impose no
restriction whatsoever on membership with respect of nationality. (Night of November 5,
1946.)
Again , the British Minister, in his note of April 15, 1947, further said:
Your Excellency will recall that doubt had been expressed by the Philippine authorities
concerned as to whether qualified public accountants would be allowed to practice income
tax accounting in the United Kingdom. Accordingly, requested a ruling on this point, and
am happy to inform Your Excellency that have been authorized by His Majesty Principal
Secretary of State for Foreign Affairs to state, for the information of the Government of the
Philippines, that qualified Philippine citizen are allowed to practice the profession of
accountancy including income tax accounting, in the United Kingdom.
We are bound to take notice of the fact that fact that the Philippine and the United Kingdom, are
bound by a treaty of friendship and commerce, and each nation is represented in the other by
corresponding diplomatic envoy. There is no reason whatsoever to doubt the statement and
assurance made by the diplomatic representative of the British Government in the Philippines,
regarding the practice of the accountancy profession in the United Kingdom and the fact that Filipino
certified public accountant will be admitted to practice their profession in the United Kingdom should
they choose to do so.
Under such circumstances, and without necessarily construing that such attitude of the British
Government in the premises, as represented by the British Minister, amounts to reciprocity, we may
at least state that it comes within the realm of comity, as contemplated in our law.
t appearing that the record fails to show that the suspension of this respondent is . . . based on any
of the cause provided by the Accountancy Law, we find no reason why Robert Orr Ferguson, who
had previously been registered as certified public accountants and issued the corresponding
certificate public accountant in the Philippine slands, should be suspended from the practice of his
profession in these slands. The petition is denied, with cost.
Moran, C.J., Paras, Pablo, Bengzon, Padilla, Tuason, Montemayor and Reyes, JJ., concur.
Republic of the Philippines
SUPREME COURT
Manila
SECOND DVSON

G.R. No. 133876 December 29, 1999
BANK OF AMERICA, NT and SA, petitioner,
vs.
AMERICAN REALTY CORPORATION and COURT OF APPEALS, respondents.

BUENA,
Does a mortgage-creditor waive its remedy to foreclose the real estate mortgage constituted over a
third party mortgagor's property situated in the Philippines by filing an action for the collection of the
principal loan before foreign courts?
Sought to be reversed in the instant petition for review on certiorari under Rule 45 of the Rules of
Court are the decision
1
of public respondent Court of Appeals in CA G.R. CV No. 51094,
promulgated on 30 September 1997 and its resolution,
2
dated 22 May 1998, denying petitioner's
motion for reconsideration.
Petitioner Bank of America NT & SA (BANTSA) is an international banking and financing institution
duly licensed to do business in the Philippines, organized and existing under and by virtue of the
laws of the State of California, United States of America while private respondent American Realty
Corporation (ARC) is a domestic corporation.
Bank of America nternational Limited (BAL), on the other hand, is a limited liability company
organized and existing under the laws of England.
As borne by the records, BANTSA and BAL on several occasions granted three major multi-million
United States (US) Dollar loans to the following corporate borrowers: (1) Liberian Transport
Navigation, S.A.; (2) El Challenger S.A. and (3) Eshley Compania Naviera S.A. (hereinafter
collectively referred to as "borrowers"), all of which are existing under and by virtue of the laws of the
Republic of Panama and are foreign affiliates of private
respondent.
3

Due to the default in the payment of the loan amortizations, BANTSA and the corporate borrowers
signed and entered into restructuring agreements. As additional security for the restructured loans,
private respondent ARC as third party mortgagor executed two real estate mortgages,
4
dated 17
February 1983 and 20 July 1984, over its parcels of land including improvements thereon, located at
Barrio Sto. Cristo, San Jose Del Monte, Bulacan, and which are covered by Transfer Certificate of
Title Nos. T-78759, T-78760, T-78761, T-78762 and T-78763.
Eventually, the corporate borrowers defaulted in the payment of the restructured loans prompting
petitioner BANTSA to file civil actions
5
before foreign courts for the collection of the principal loan, to
wit:
a) n England, in its High Court of Justice, "ueen's Bench Division,
Commercial Court (1992-Folio No 2098) against Liberian Transport
Navigation S.A., Eshley Compania Naviera S.A., El Challenger S.A.,
Espriona Shipping Company S.A., Eddie Navigation Corp., S.A.,
Eduardo Katipunan Litonjua and Aurelio Katipunan Litonjua on June
17, 1992.
b) n England, in its High Court of Justice, "ueen's Bench Division,
Commercial Court (1992-Folio No. 2245) against El Challenger S.A.,
Espriona Shipping Company S.A., Eduardo Katipuan Litonjua &
Aurelio Katipunan Litonjua on July 2, 1992;
c) n Hongkong, in the Supreme Court of Hongkong High Court
(Action No. 4039 of 1992) against Eshley Compania Naviera S.A., El
Challenger S.A., Espriona Shipping Company S.A. Pacific Navigators
Corporation, Eddie Navigation Corporation S.A., Litonjua Chartering
(Edyship) Co., nc., Aurelio Katipunan Litonjua, Jr. and Eduardo
Katipunan Litonjua on November 19, 1992; and
d) n Hongkong, in the Supreme Court of Hongkong High Court
(Action No. 4040 of 1992) against Eshley Compania Naviera S.A., El
Challenger S.A., Espriona Shipping Company, S.A., Pacific
Navigators Corporation, Eddie Navigation Corporation S.A., Litonjua
Chartering (Edyship) Co., Jr. and Eduardo Katipunan Litonjua on
November 21, 1992.
n the civil suits instituted before the foreign courts, private respondent ARC, being a third party
mortgagor, was private not impleaded as party-defendant.
On 16 December 1992, petitioner BANTSA filed before the Office of the Provincial Sheriff of
Bulacan, Philippines an application for extrajudicial foreclosure
6
of real estate mortgage.
On 22 January 1993, after due publication and notice, the mortgaged real properties were sold at
public auction in an extrajudicial foreclosure sale, with ntegrated Credit and Corporation Services
Co (CCS) as the highest bidder for the sum of Twenty four Million Pesos (P24,000.000.00).
7

On 12 February 1993, private respondent filed before the Pasig Regional Trial Court, Branch 159, an
action for damages
8
against the petitioner, for the latter's act of foreclosing extrajudicially the real
estate mortgages despite the pendency of civil suits before foreign courts for the collection of the
principal loan.
n its answer
9
petitioner alleged that the rule prohibiting the mortgagee from foreclosing the
mortgage after an ordinary suit for collection has been filed, is not applicable in the present case,
claiming that:
a) The plaintiff, being a mere third party mortgagor and not a party to the principal
restructuring agreements, was never made a party defendant in the civil cases filed
in Hongkong and England;
b) There is actually no civil suit for sum of money filed in the Philippines since the
civil actions were filed in Hongkong and England. As such, any decisions (sic) which
may be rendered in the abovementioned courts are not (sic) enforceable in the
Philippines unless a separate action to enforce the foreign judgments is first filed in
the Philippines, pursuant to Rule 39, Section 50 of the Revised Rules of Court.
c) Under English Law, which is the governing law under the principal agreements,
the mortgagee does not lose its security interest by filing civil actions for sums of
money.
On 14 December 1993, private respondent filed a motion for
suspension
10
of the redemption period on the ground that "it cannot exercise said right of
redemption without at the same time waiving or contradicting its contentions in the case that the
foreclosure of the mortgage on its properties is legally improper and therefore invalid."
n an order
11
dated 28 January 1994, the trial court granted the private respondent's motion for
suspension after which a copy of said order was duly received by the Register of Deeds of
Meycauayan, Bulacan.
On 07 February 1994, CCS, the purchaser of the mortgaged properties at the foreclosure sale,
consolidated its ownership over the real properties, resulting to the issuance of Transfer Certificate
of Title Nos. T-18627, T-186272, T-186273, T-16471 and T-16472 in its name.
On 18 March 1994, after the consolidation of ownership in its favor, CCS sold the real properties to
Stateland nvestment Corporation for the amount of Thirty Nine Million Pesos
(P39,000,000.00).
12
Accordingly, Transfer Certificate of Title Nos. T-187781(m), T-187782(m), T-
187783(m), T-16653P(m) and T-16652P(m) were issued in the latter's name.
After trial, the lower court rendered a decision
13
in favor of private respondent ARC dated 12 May
1993, the decretal portion of which reads:
WHEREFORE, judgment is hereby rendered declaring that the filing in foreign courts
by the defendant of collection suits against the principal debtors operated as a waiver
of the security of the mortgages. Consequently, the plaintiff's rights as owner and
possessor of the properties then covered by Transfer Certificates of Title Nos. T-
78759, T-78762, T-78763, T-78760 and T-78761, all of the Register of Deeds of
Meycauayan, Bulacan, Philippines, were violated when the defendant caused the
extrajudicial foreclosure of the mortgages constituted thereon.
Accordingly, the defendant is hereby ordered to pay the plaintiff the following sums,
all with legal interest thereon from the date of the filing of the complaint up to the date
of actual payment:
1) Actual or compensatory damages in the amount of Ninety Nine Million Pesos
(P99,000,000.00);
2) Exemplary damages in the amount of Five Million Pesos (P5,000,000.00); and
3) Costs of suit.
SO ORDERED.
On appeal, the Court of Appeals affirmed the assailed decision of the lower court prompting
petitioner to file a motion for reconsideration which the appellate court denied.
Hence, the instant petition for review
14
on certiorari where herein petitioner BANTSA ascribes to the
Court of Appeals the following assignment of errors:
1. The Honorable Court of Appeals disregarded the doctrines laid
down by this Hon. Supreme Court in the cases of Caltex Philippines,
Inc. vs. Intermediate Appellate Courtdocketed as G.R. No. 74730
promulgated on August 25, 1989 and Philippine Commercial
International Bank vs. IAC, 196 SCRA 29 (1991 case), although said
cases were duly cited, extensively discussed and specifically
mentioned, as one of the issues in the assignment of errors found on
page 5 of the decision dated September 30, 1997.
2. The Hon. Court of Appeals acted with grave abuse of discretion
when it awarded the private respondent actual and exemplary
damages totalling P171,600,000.00, as of July 12, 1998 although
such huge amount was not asked nor prayed for in private
respondent's complaint, is contrary to law and is totally unsupported
by evidence (sic).
n fine, this Court is called upon to resolve two main issues:
1. Whether or not the petitioner's act of filing a collection suit against
the principal debtors for the recovery of the loan before foreign courts
constituted a waiver of the remedy of foreclosure.
2. Whether or not the award by the lower court of actual and
exemplary damages in favor of private respondent ARC, as third-
party mortgagor, is proper.
The petition is bereft of merit.
First, as to the issue of availability of remedies, petitioner submits that a waiver of the remedy of
foreclosure requires the concurrence of two requisites: an ordinary civil action for collection should
be filed and subsequently a final judgment be correspondingly rendered therein.
According to petitioner, the mere filing of a personal action to collect the principal loan does not
suffice; a final judgment must be secured and obtained in the personal action so that waiver of the
remedy of foreclosure may be appreciated. To put it differently, absent any of the two requisites, the
mortgagee-creditor is deemed not to have waived the remedy of foreclosure.
We do not agree.
Certainly, this Court finds petitioner's arguments untenable and upholds the jurisprudence laid down
in Bachrach
15
and similar cases adjudicated thereafter, thus:
n the absence of express statutory provisions, a mortgage creditor may institute
against the mortgage debtor either a personal action or debt or a real action to
foreclose the mortgage. n other words, he may he may pursue either of the two
remedies, but not both. By such election, his cause of action can by no means be
impaired, for each of the two remedies is complete in itself. Thus, an election to bring
a personal action will leave open to him all the properties of the debtor for attachment
and execution, even including the mortgaged property itself. And, if he waives such
personal action and pursues his remedy against the mortgaged property, an
unsatisfied judgment thereon would still give him the right to sue for a deficiency
judgment, in which case, all the properties of the defendant, other than the
mortgaged property, are again open to him for the satisfaction of the deficiency. n
either case, his remedy is complete, his cause of action undiminished, and any
advantages attendant to the pursuit of one or the other remedy are purely accidental
and are all under his right of election. On the other hand, a rule that would authorize
the plaintiff to bring a personal action against the debtor and simultaneously or
successively another action against the mortgaged property, would result not only in
multiplicity of suits so offensive to justice (Soriano vs. Enriques, 24 Phil. 584) and
obnoxious to law and equity (Osorio vs. San Agustin, 25 Phil., 404), but also in
subjecting the defendant to the vexation of being sued in the place of his residence
or of the residence of the plaintiff, and then again in the place where the property
lies.
n Danao vs. Court of Appeals,
16
this Court, reiterating jurisprudence enunciated in Manila Trading
and Supply Co vs. Co Kim
17
and Movido vs.
RFC,
18
invariably held:
. . . The rule is now settled that a mortgage creditor may elect to waive his security
and bring, instead, an ordinary action to recover the indebtedness with the right to
execute a judgment thereon on all the properties of the debtor, including the subject
matter of the mortgage . . . , subject to the qualification that if he fails in the remedy
by him elected, he cannot pursue further the remedy he has waived. (Emphasis
Ours)
Anent real properties in particular, the Court has laid down the rule that a mortgage creditor may
institute against the mortgage debtor either a personal action for debt or a real action to foreclose
the mortgage.
19

n our jurisdiction, the remedies available to the mortgage creditor are deemed alternative and not
cumulative. Notably, an election of one remedy operates as a waiver of the other. For this purpose, a
remedy is deemed chosen upon the filing of the suit for collection or upon the filing of the complaint
in an action for foreclosure of mortgage, pursuant to the provision of Rule 68 of the of the 1997
Rules of Civil Procedure. As to extrajudicial foreclosure, such remedy is deemed elected by the
mortgage creditor upon filing of the petition not with any court of justice but with the Office of the
Sheriff of the province where the sale is to be made, in accordance with the provisions of Act No.
3135, as amended by Act No. 4118.
n the case at bench, private respondent ARC constituted real estate mortgages over its properties
as security for the debt of the principal debtors. By doing so, private respondent subjected itself to
the liabilities of a third party mortgagor. Under the law, third persons who are not parties to a loan
may secure the latter by pledging or mortgaging their own property.
20

Notwithstanding, there is no legal provision nor jurisprudence in our jurisdiction which makes a third
person who secures the fulfillment of another's obligation by mortgaging his own property, to be
solidarily bound with the principal obligor. The signatory to the principal contractloanremains to
be primarily bound. t is only upon default of the latter that the creditor may have recourse on the
mortgagors by foreclosing the mortgaged properties in lieu of an action for the recovery of the
amount of the loan.
21

n the instant case, petitioner's contention that the requisites of filing the action for collection and
rendition of final judgment therein should concur, is untenable.
Thus, in Cerna vs. Court of Appeals,
22
we agreed with the petitioner in said case, that the filing of a
collection suit barred the foreclosure of the mortgage:
A mortgagee who files a suit for collection abandons the remedy of foreclosure of the
chattel mortgage constituted over the personal property as security for the debt or
value of the promissory note when he seeks to recover in the said collection suit.
. . . When the mortgagee elects to file a suit for collection, not foreclosure, thereby
abandoning the chattel mortgage as basis for relief, he clearly manifests his lack of
desire and interest to go after the mortgaged property as security for the promissory
note . . . .
Contrary to petitioner's arguments, we therefore reiterate the rule, for clarity and emphasis, that the
mere act of filing of an ordinary action for collection operates as a waiver of the mortgage-creditor's
remedy to foreclose the mortgage. By the mere filing of the ordinary action for collection against the
principal debtors, the petitioner in the present case is deemed to have elected a remedy, as a result
of which a waiver of the other necessarily must arise. Corollarily, no final judgment in the collection
suit is required for the rule on waiver to apply.
Hence, in Caltex Philippines, Inc. vs. Intermediate-Appellate Court,
23
a case relied upon by
petitioner, supposedly to buttress its contention, this Court had occasion to rule that the mere act of
filing a collection suit for the recovery of a debt secured by a mortgage constitutes waiver of the
other remedy of foreclosure.
n the case at bar, petitioner BANTSA only has one cause of action which is non-payment of the
debt. Nevertheless, alternative remedies are available for its enjoyment and exercise. Petitioner then
may opt to exercise only one of two remedies so as not to violate the rule against splitting a cause of
action.
As elucidated by this Court in the landmark case of Bachrach Motor Co., Inc, vs. Icarangal.
24

For non-payment of a note secured by mortgage, the creditor has a single cause of
action against the debtor. This single cause of action consists in the recovery of the
credit with execution of the security. n other words, the creditor in his action may
make two demands, the payment of the debt and the foreclosure of his mortgage.
But both demands arise from the same cause, the non-payment of the debt, and for
that reason, they constitute a single cause of action. Though the debt and the
mortgage constitute separate agreements, the latter is subsidiary to the former, and
both refer to one and the same obligation. Consequently, there exists only one cause
of action for a single breach of that obligation. Plaintiff, then, by applying the rules
above stated, cannot split up his single cause of action by filing a complaint for
payment of the debt, and thereafter another complaint for foreclosure of the
mortgage. f he does so, the filing of the first complaint will bar the subsequent
complaint. By allowing the creditor to file two separate complaints simultaneously or
successively, one to recover his credit and another to foreclose his mortgage, we
will, in effect, be authorizing him plural redress for a single breach of contract at so
much cost to the courts and with so much vexation and oppression to the debtor.
Petitioner further faults the Court of Appeals for allegedly disregarding the doctrine enunciated in
Caltex wherein this High Court relaxed the application of the general rules to wit:
n the present case, however, we shall not follow this rule to the letter but declare
that it is the collection suit which was waived and/or abandoned. This ruling is more
in harmony with the principles underlying our judicial system. t is of no moment that
the collection suit was filed ahead, what is determinative is the fact that the
foreclosure proceedings ended even before the decision in the collection suit was
rendered. . . .
Notably, though, petitioner took the Caltex ruling out of context. We must stress that the Caltex case
was never intended to overrule the well-entrenched doctrine enunciated Bachrach, which to our
mind still finds applicability in cases of this sort. To reiterate, Bachrach is still good law.
We then quote the decision
25
of the trial court, in the present case, thus:
The aforequoted ruling in Caltex is the exception rather than the rule, dictated by the
peculiar circumstances obtaining therein. In the said case, the Supreme Court
chastised Caltex for making ". . . a mockery of our judicial system when it initially filed
a collection suit then, during the pendency thereof, foreclosed extrajudicially the
mortgaged property which secured the indebtedness, and still pursued the collection
suit to the end." Thus, to prevent a mockery of our judicial system", the collection suit
had to be nullified because the foreclosure proceedings have already been pursued
to their end and can no longer be undone.
xxx xxx xxx
In the case at bar, it has not been shown whether the defendant pursued to the end
or are still pursuing the collection suits filed in foreign courts. There is no occasion,
therefore, for this court to apply the exception laid down by the Supreme Court in
Caltex by nullifying the collection suits. Quite obviously, too, the aforesaid collection
suits are beyond the reach of this Court. Thus the only way the court may prevent the
spector of a creditor having "plural redress for a single breach of contract" is by
holding, as the Court hereby holds, that the defendant has waived the right to
foreclose the mortgages constituted by the plaintiff on its properties originally
covered by Transfer Certificates of Title Nos. T-78759, T-78762, T-78760 and T-
78761. (RTC Decision pp., 10-11)
n this light, the actuations of Caltex are deserving of severe criticism, to say the least.
26

Moreover, petitioner attempts to mislead this Court by citing the case of PCIB vs. IAC.
27
Again,
petitioner tried to fit a square peg in a round hole. t must be stressed that far from overturning the
doctrine laid down in Bachrach, this Court in PCB buttressed its firm stand on this issue by
declaring:
While the law allows a mortgage creditor to either institute a personal action for the
debt or a real action to foreclosure the mortgage, he cannot pursue both remedies
simultaneously or successively as was done by PCB in this case.
xxx xxx xxx
Thus, when the PCB filed Civil Case No. 29392 to enforce payment of the 1.3 million
promissory note secured by real estate mortgages and subsequently filed a petition
for extrajudicial foreclosure, it violates the rule against splitting a cause of action.
Accordingly, applying the foregoing rules, we hold that petitioner, by the expediency of filing four civil
suits before foreign courts, necessarily abandoned the remedy to foreclose the real estate
mortgages constituted over the properties of third-party mortgagor and herein private respondent
ARC. Moreover, by filing the four civil actions and by eventually foreclosing extrajudicially the
mortgages, petitioner in effect transgressed the rules against splitting a cause of action well-
enshrined in jurisprudence and our statute books.
n Bachrach, this Court resolved to deny the creditor the remedy of foreclosure after the collection
suit was filed, considering that the creditor should not be afforded "plural redress for a single breach
of contract." For cause of action should not be confused with the remedy created for its
enforcement.
28

Notably, it is not the nature of the redress which is crucial but the efficacy of the remedy chosen in
addressing the creditor's cause. Hence, a suit brought before a foreign court having competence and
jurisdiction to entertain the action is deemed, for this purpose, to be within the contemplation of the
remedy available to the mortgagee-creditor. This pronouncement would best serve the interest of
justice and fair play and further discourage the noxious practice of splitting up a lone cause of action.
ncidentally, BANTSA alleges that under English Law, which according to petitioner is the governing
law with regard to the principal agreements, the mortgagee does not lose its security interest by
simply filing civil actions for sums of money.
29

We rule in the negative.
This argument shows desperation on the part of petitioner to rivet its crumbling cause. n the case at
bench, Philippine law shall apply notwithstanding the evidence presented by petitioner to prove the
English law on the matter.
n a long line of decisions, this Court adopted the well-imbedded principle in our jurisdiction that
there is no judicial notice of any foreign law. A foreign law must be properly pleaded and proved as a
fact.
30
Thus, if the foreign law involved is not properly pleaded and proved, our courts will presume
that the foreign law is the same as our local or domestic or internal
law.
31
This is what we refer to as the doctrine of processual presumption.
n the instant case, assuming arguendo that the English Law on the matter were properly pleaded
and proved in accordance with Section 24, Rule 132 of the Rules of Court and the jurisprudence laid
down in Yao Kee, et al. vs.
Sy-Gonzales,
32
said foreign law would still not find applicability.
Thus, when the foreign law, judgment or contract is contrary to a sound and established public policy
of the forum, the said foreign law, judgment or order shall not be applied.
33

Additionally, prohibitive laws concerning persons, their acts or property, and those which have for
their object public order, public policy and good customs shall not be rendered ineffective by laws or
judgments promulgated, or by determinations or conventions agreed upon in a foreign country.
34

The public policy sought to be protected in the instant case is the principle imbedded in our
jurisdiction proscribing the splitting up of a single cause of action.
Section 4, Rule 2 of the 1997 Rules of Civil Procedure is pertinent
f two or more suits are instituted on the basis of the same cause of action, the filing
of one or a judgment upon the merits in any one is available as a ground for the
dismissal of the others.
Moreover, foreign law should not be applied when its application would work undeniable injustice to
the citizens or residents of the forum. To give justice is the most important function of law; hence, a
law, or judgment or contract that is obviously unjust negates the fundamental principles of Conflict of
Laws.
35

Clearly then, English Law is not applicable.
As to the second pivotal issue, we hold that the private respondent is entitled to the award of actual
or compensatory damages inasmuch as the act of petitioner BANTSA in extrajudicially foreclosing
the real estate mortgages constituted a clear violation of the rights of herein private respondent
ARC, as third-party mortgagor.
Actual or compensatory damages are those recoverable because of pecuniary loss in business,
trade, property, profession, job or occupation and the same must be proved, otherwise if the proof is
flimsy and non-substantial, no damages will be given.
36
ndeed, the question of the value of property
is always a difficult one to settle as valuation of real property is an imprecise process since real
estate has no inherent value readily ascertainable by an appraiser or by the court.
37
The opinions of
men vary so much concerning the real value of property that the best the courts can do is hear all of
the witnesses which the respective parties desire to present, and then, by carefully weighing that
testimony, arrive at a conclusion which is just and equitable.
38

n the instant case, petitioner assails the Court of Appeals for relying heavily on the valuation made
by Philippine Appraisal Company. n effect, BANTSA questions the act of the appellate court in
giving due weight to the appraisal report composed of twenty three pages, signed by Mr. Lauro
Marquez and submitted as evidence by private respondent. The appraisal report, as the records
would readily show, was corroborated by the testimony of Mr. Reynaldo Flores, witness for private
respondent.
On this matter, the trial court observed:
The record herein reveals that plaintiff-appellee formally offered as evidence the
appraisal report dated March 29, 1993 (Exhibit J, Records, p. 409), consisting of twenty
three (23) pages which set out in detail the valuation of the property to determine its fair
market value (TSN, April 22, 1994, p. 4), in the amount of P99,986,592.00 (TSN, ibid., p.
5), together with the corroborative testimony of one Mr. Reynaldo F. Flores, an appraiser
and director of Philippine Appraisal Company, nc. (TSN, ibid., p. 3). The latter's
testimony was subjected to extensive cross-examination by counsel for defendant-
appellant (TSN, April 22, 1994, pp. 6-22).
39

n the matter of credibility of witnesses, the Court reiterates the familiar and well-entrenched rule that
the factual findings of the trial court should be respected.
40
The time-tested jurisprudence is that the
findings and conclusions of the trial court on the credibility of witnesses enjoy a badge of respect for
the reason that trial courts have the advantage of observing the demeanor of witnesses as they
testify.
41

This Court will not alter the findings of the trial court on the credibility of witnesses, principally
because they are in a better position to assess the same than the appellate court.
42
Besides, trial
courts are in a better position to examine real evidence as well as observe the demeanor of
witnesses.
43

Similarly, the appreciation of evidence and the assessment of the credibility of witnesses rest
primarily with the trial court.
44
n the case at bar, we see no reason that would justify this Court to
disturb the factual findings of the trial court, as affirmed by the Court of Appeals, with regard to the
award of actual damages.
n arriving at the amount of actual damages, the trial court justified the award by presenting the
following ratiocination in its assailed decision
45
, to wit:
ndeed, the Court has its own mind in the matter of valuation. The size of the subject
real properties are (sic) set forth in their individuals titles, and the Court itself has
seen the character and nature of said properties during the ocular inspection it
conducted. Based principally on the foregoing, the Court makes the following
observations:
1. The properties consist of about 39 hectares in Bo. Sto. Cristo, San Jose del
Monte, Bulacan, which is (sic) not distant from Metro Manila the biggest urban
center in the Philippines and are easily accessible through well-paved roads;
2. The properties are suitable for development into a subdivision for low cost
housing, as admitted by defendant's own appraiser (TSN, May 30, 1994, p. 31);
3. The pigpens which used to exist in the property have already been demolished.
Houses of strong materials are found in the vicinity of the property (Exhs. 2, 2-1 to 2-
7), and the vicinity is a growing community. t has even been shown that the house of
the Barangay Chairman is located adjacent to the property in question (Exh. 27), and
the only remaining piggery (named Cherry Farm) in the vicinity is about 2 kilometers
away from the western boundary of the property in question (TSN, November 19, p.
3);
4. t will not be hard to find interested buyers of the property, as indubitably shown by
the fact that on March 18, 1994, CCS (the buyer during the foreclosure sale) sold
the consolidated real estate properties to Stateland nvestment Corporation, in
whose favor new titles were issued, i.e., TCT Nos. T-187781(m); T-187782(m), T-
187783(m); T-16653P(m) and T-166521(m) by the Register of Deeds of Meycauayan
(sic), Bulacan;
5. The fact that CCS was able to sell the subject properties to Stateland nvestment
Corporation for Thirty Nine Million (P39,000,000.00) Pesos, which is more than triple
defendant's appraisal (Exh. 2) clearly shows that the Court cannot rely on
defendant's aforesaid estimate (Decision, Records, p. 603).
t is a fundamental legal aphorism that the conclusions of the trial judge on the credibility of
witnesses command great respect and consideration especially when the conclusions are supported
by the evidence on record.
46
Applying the foregoing principle, we therefore hold that the trial court
committed no palpable error in giving credence to the testimony of Reynaldo Flores, who according
to the records, is a licensed real estate broker, appraiser and director of Philippine Appraisal
Company, nc. since 1990.
47
As the records show, Flores had been with the company for 26 years
at the time of his testimony.
Of equal importance is the fact that the trial court did not confine itself to the appraisal report dated
29 March 1993, and the testimony given by Mr. Reynaldo Flores, in determining the fair market
value of the real property. Above all these, the record would likewise show that the trial judge in
order to appraise himself of the characteristics and condition of the property, conducted an ocular
inspection where the opposing parties appeared and were duly represented.
Based on these considerations and the evidence submitted, we affirm the ruling of the trial court as
regards the valuation of the property
. . . a valuation of Ninety Nine Million Pesos (P99,000,000.00) for the 39-hectare
properties (sic) translates to just about Two Hundred Fifty Four Pesos (P254.00) per
square meter. This appears to be, as the court so holds, a better approximation of the fair
market value of the subject properties. This is the amount which should be restituted by
the defendant to the plaintiff by way of actual or compensatory damages . . . .
48

Further, petitioner ascribes error to the lower court awarding an amount allegedly not asked nor
prayed for in private respondent's complaint.
Notwithstanding the fact that the award of actual and compensatory damages by the lower court
exceeded that prayed for in the complaint, the same is nonetheless valid, subject to certain
qualifications.
On this issue, Rule 10, Section 5 of the Rules of Court is pertinent:
Sec. 5. Amendment to conform to or authorize presentation of evidence. When
issues not raised by the pleadings are tried with the express or implied consent of the
parties, they shall be treated in all respects as if they had been raised in the
pleadings. Such amendment of the pleadings as may be necessary to cause them to
conform to the evidence and to raise these issues may be made upon motion of any
party at any time, even after judgement; but failure to amend does not affect the
result of the trial of these issues. f evidence is objected to at the trial on the ground
that it is not within the issues made by the pleadings, the court may allow the
pleadings to be amended and shall do so with liberality if the presentation of the
merits of the action and the ends of substantial justice will be subserved thereby. The
court may grant a continuance to enable the amendment to be made.
The jurisprudence enunciated in Talisay-Silay Milling Co., Inc. vs. Asociacion de Agricultures de
Talisay-Silay, Inc.
49
citing Northern Cement Corporation vs. Intermediate Appellate Court
50
is
enlightening:
There have been instances where the Court has held that even without the
necessary amendment, the amount proved at the trial may be validly awarded, as
in Tuazon v. Bolanos (95 Phil. 106), where we said that if the facts shown entitled
plaintiff to relief other than that asked for, no amendment to the complaint was
necessary, especially where defendant had himself raised the point on which
recovery was based. The appellate court could treat the pleading as amended to
conform to the evidence although the pleadings were actually not amended.
Amendment is also unnecessary when only clerical error or non substantial matters
are involved, as we held in Bank of the Philippine Islands vs. Laguna (48 Phil. 5).
n Co Tiamco vs. Diaz (75 Phil. 672), we stressed that the rule on amendment need
not be applied rigidly, particularly where no surprise or prejudice is caused the
objecting party. And in the recent case of National Power Corporation vs. Court of
Appeals (113 SCRA 556), we held that where there is a variance in the defendant's
pleadings and the evidence adduced by it at the trial, the Court may treat the
pleading as amended to conform with the evidence.
t is the view of the Court that pursuant to the above-mentioned rule and in light of
the decisions cited, the trial court should not be precluded from awarding an amount
higher than that claimed in the pleading notwithstanding the absence of the required
amendment. But it is upon the condition that the evidence of such higher amount has
been presented properly, with full opportunity on the part of the opposing parties to
support their respective contentions and to refute each other's evidence.
The failure of a party to amend a pleading to conform to the evidence adduced
during trial does not preclude an adjudication by the court on the basis of such
evidence which may embody new issues not raised in the pleadings, or serve as a
basis for a higher award of damages. Although the pleading may not have been
amended to conform to the evidence submitted during trial, judgment may
nonetheless be rendered, not simply on the basis of the issues alleged but also the
basis of issues discussed and the assertions of fact proved in the course of trial. The
court may treat the pleading as if it had been amended to conform to the evidence,
although it had not been actually so amended. Former Chief Justice Moran put the
matter in this way:
When evidence is presented by one party, with the expressed or implied
consent of the adverseparty, as to issues not alleged in the pleadings,
judgment may be rendered validly as regards those issues, which shall
be considered as if they have been raised in the pleadings. There is
implied consent to the evidence thus presented when the adverse party
fails to object thereto.
Clearly, a court may rule and render judgment on the basis of the evidence before it
even though the relevant pleading had not been previously amended, so long as no
surprise or prejudice is thereby caused to the adverse party. Put a little differently, so
long as the basis requirements of fair play had been met, as where litigants were
given full opportunity to support their respective contentions and to object to or refute
each other's evidence, the court may validly treat the pleadings as if they had been
amended to conform to the evidence and proceed to adjudicate on the basis of all
the evidence before it.
n the instant case, inasmuch as the petitioner was afforded the opportunity to refute and object to
the evidence, both documentary and testimonial, formally offered by private respondent, the
rudiments of fair play are deemed satisfied. n fact, the testimony of Reynaldo Flores was put under
scrutiny during the course of the cross-examination. Under these circumstances, the court acted
within the bounds of its jurisdiction and committed no reversible error in awarding actual damages
the amount of which is higher than that prayed for. Verily, the lower court's actuations are sanctioned
by the Rules and supported by jurisprudence.
Similarly, we affirm the grant of exemplary damages although the amount of Five Million Pesos
(P5,000,000.00) awarded, being excessive, is subject to reduction. Exemplary or corrective
damages are imposed, by way of example or correction for the public good, in addition to the moral,
temperate, liquidated or compensatory damages.
51
Considering its purpose, it must be fair and
reasonable in every case and should not be awarded to unjustly enrich a prevailing party.
52
n our
view, an award of P50,000.00 as exemplary damages in the present case qualifies the test of
reasonableness.
WHEREFORE, premises considered, the instant petition is DENED for lack of merit. The decision of
the Court of Appeals is hereby AFFRMED with MODFCATON of the amount awarded as
exemplary damages. According, petitioner is hereby ordered to pay private respondent the sum of
P99,000,000.00 as actual or compensatory damages; P50,000.00 as exemplary damage and the
costs of suit.
SO ORDERED.
Bellosillo, Mendoza, Quisumbing and De Leon, Jr., JJ., concur.