CO KIM CHAM (alias CO KIM CHAM) v. EUSEBIO VALDEZ TAN KEH and ARSENIO P.

DIZON, Judge of First Instance of Manila,

Facts: This is a petition for mandamus praying for the respondent judge to continue the proceedings in a civil case which was initiated under the regime of the so called Republic of the Philippines establishd uring the Japanese military occupation in the country. The respondent judge refused to takec ognizance of the proceedings on the ground that the proclamation issued by Gen. Douglas MacArthur when the American forces took over the occupation of the island from the Japanese government, hadthe effect of invalidating and nullifying all the judicial proceedings and judgments of the court under the Philippine executive Committee and the Republic of the Philippines established during the Japanese military occupation. Respondent further claim that lower courts have no more jurisdiction to take cognizance and continue the case in courts under a defunct government in the absence of enabling law granting authority of such courts. Respondent contends that the government established during the Japanese occupation were no de facto government. The principal issues to be resolved now for the court are the following: 1. 2. Whether judicial acts and proceedings of the courts existing in the Philippines under the first government were good and valid and remained so even after the liberation oroccupation by the United States , Whether the proclamation by Gen. MacArthur declaring that all laws, regulations andprocesses of any of the government in the Philippines are null and void and without legaleffect in areas of the Philippines free of enemy occupation and control, has invalidated alljudgments and judicial acts and proceedings of the said court If the said judicial acts and proceedings were not been invalidated, will the present courtsunder Japanese occupation continue those proceedings pending in court

3.

The court in resolving the issue one by one shed light to the given questions. In the first issue, the court said that under international and political law, it is a legal truism that all acts and proceedings of the legislative, executive and judicial departments of a de facto government are good and valid. Another question now then needs an answer that is whether or not the government under the Japanese occupation was a de facto government. And if they were, then all those judicial proceedings remain good and valid even if there is a change of government. Several kinds of de facto government were elucidated by the court to find out what is applicable to the present case at bar. A Government de facto in a proper legal sense 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 Government de facto established and maintained by military forces this is by way of invasion and occupation of a territory of the enemy in the course of war and which is denominated a government of paramount force. A Government de facto established as an independent government by inhabitants of a country who rise in insurrection against the parent state The powers and duties of de facto government of the second kind are regulated in Section III of the Hague conventions of 1907, which 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 re-establish 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 possess all the powers of a de facto government and he can suspend the old laws and promulgate new ones and make such changes in the old as he may see fit, but is enjoined to respect municipal laws in force in the country, those laws which enforce public order, and regulate social and commercial life in the country. Laws of political in nature and affecting political relations such as the right of assembly, right to bear arms, right to travel freely are considered as suspended and in abeyance during military occupation. Although the local and civil administration of justice is suspended it is not unusual for the invader to take the whole administration into his hands. Local courts are authorized to continue administering justice, and judges and other judicial officers are kept in their posts. The municipal laws of a conquered territory or the laws which regulate private rights continue in force during military occupation except 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 the existing laws or make new ones. The Philippines during the Japanese occupation falls under the second kind of de facto government a civil government established by military forces of occupation. According to Halleck who wrote a book on international law, the government established over an enemys territory during the military occupation may exercise all the powers given by the laws of war to the conqueror over theconquered and is subject to all restrictions which the code imposes. The governments by the Philippine Executive commission and the Republic of the Philippines under the Japanese military occupation being a de facto government, it necessarily follows that the judicial acts and proceedings of the courts of justice of those government which are not 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 American and Filipino forces. According to that 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 wipe out the effects done by an invader, which for one reason or another it is within his competence to do. In the book of Isagani Cruz, the right of postliminy says Vatel is that in which persons or things taken by the enemy are restored to the former state on coming actually into the power of the nation to which they belong. In the present concept jus postliminium now also imports the reinstatement of the authority of the displaced government once control of the enemy is lost over the territory affected. In short non-political acts performed during the occupation (civil rights) remain valid even after the occupation but acts of political automatically lose their validity upon the end of the occupation. In Nachuras book, postliminium is explained as the revival or reversion to the old laws and sovereignty of territory in the belligerent occupation once control of the belligerent occupant is lost over the territory affected. Side discussion:On the phrase processes of any other government which is the second issue of the case, still the well-known principles of international law is upheld that is all judgments and judicial proceedings, which are not of political complexion, of the de facto government 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 sovereignLegal maxim, excepting that of a political nature, Law once established continues until changed by the some competent legislative power. It is not change merely by change of sovereignty. 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 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. (Joseph H. Beale, author cases on conflict of laws and treatise on conflict of laws.Respondent judge is ordered therefore to take cognizance of and continue to the final judgment of the proceedings. Co Kim Chan v Valdez Tan Keh Facts of the case: Co Kim Chan had a pending civil case, initiated during the Japanese occupation, with the Court of First Instance of Manila. After the Liberation of the Manila and the American occupation, Judge Arsenio Dizon refused to continue hearings on the case, saying that a proclamation issued by General Douglas MacArthur had invalidated and nullified all judicial proceedings and judgments of the courts of the Philippines and, without an enabling law, lower courts have no jurisdiction to take cognizance of and continue judicial proceedings pending in the courts of the defunct Republic of the Philippines (the Philippine government under the Japanese). The court resolved three issues: 1. Whether or not judicial proceedings and decisions made during the Japanese occupation were valid and remained valid even after the American occupation; 2. Whether or not the October 23, 1944 proclamation MacArthur issued in which he declared 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 invalidated all judgments and judicial acts and proceedings of the courts; 3. And whether or not if they were not invalidated by MacArthurs proclamation, those courts could continue hearing the cases pending before them. Ratio: Political and international law recognizes that all acts and proceedings of a de facto government are good and valid. The Philippine Executive Commission and the Republic of the Philippines under the Japanese occupation may be considered de facto governments, supported by the military force and deriving their authority from the laws of war. Municipal laws and private laws, however, usually remain in force unless suspended or changed by the conqueror. Civil obedience is expected even during war, for 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. And if they were not valid, then it would not have been necessary for MacArthur to come out with a proclamation abrogating them. The second question, the court said, hinges on the interpretation of the phrase processes of any other government and whether or not he intended it to annul all other judgments and judicial proceedings of courts during the Japanese military occupation. IF, according to international law, non-political judgments and judicial proceedings of de facto governments are valid and remain valid even after the occupied territory has been liberated, then it could not have been MacArthurs intention to refer to judicial processes, which would be in violation of international law.

A well-known rule of statutory construction is: A statute ought never to be construed to violate the law of nations if any other possible construction remains. Another is that where great inconvenience will result from a particular construction, 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. Annulling judgments of courts made during the Japanese occupation would clog the dockets and violate international law, therefore what MacArthur said should not be construed to mean that judicial proceedings are included in the phrase processes of any other governments. In the case of US vs Reiter, the court said that if such laws and institutions are continued in use by the occupant, they become his and derive their force from him. The laws and courts of the Philippines did not become, by being continued as required by the law of nations, laws and courts of Japan. It is a legal maxim that, excepting of a political nature, law once established continues until changed by some competent legislative power. IT IS NOT CHANGED MERELY BY CHANGE OF SOVEREIGNTY. Until, of course, the new sovereign by legislative act creates a change. Therefore, even assuming that Japan legally acquired sovereignty over the Philippines, and the laws and courts of the Philippines had become courts of Japan, as the said courts and laws creating and conferring jurisdiction upon them have continued in force until now, it follows that the same courts may continue exercising the same jurisdiction over cases pending therein before the restoration of the Commonwealth Government, until abolished or the laws creating and conferring jurisdiction upon them are repealed by the said government. DECISION: Writ of mandamus issued to the judge of the Court of First Instance of Manila, ordering him to take cognizance of and continue to final judgment the proceedings in civil case no. 3012. Summary of ratio: 1. International law says the acts of a de facto government are valid and civil laws continue even during occupation unless repealed. 2. MacArthur annulled proceedings of other governments, but this cannot be applied on judicial proceedings because such a construction would violate the law of nations. 3. Since the laws remain valid, the court must continue hearing the case pending before it. ***3 kinds of de facto government: one established through rebellion (govt gets possession and control through force or the voice of the majority and maintains itself against the will of the rightful government) through occupation (established and maintained by military forces who invade and occupy a territory of the enemy in the course of war; denoted as a government of paramount force) through insurrection (established as an independent government by the inhabitants of a country who rise in insurrection against the parent state)